UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JAMES J. CAREY, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

 

 

 Civ. No. 11- 259-RMC 

FEDERAL ELECTION 

COMMISSION’S MEMORANDUM 

IN OPPOSITION TO PLAINTIFFS’ 

MOTION FOR PRELIMINARY 

INJUNCTION 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Christopher Hughey 

Acting General Counsel 

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

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

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

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

Attorneys 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

March 7, 2011 (202) 694-1650

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 1 of 49
Table of Contents 

 Page 

INTRODUCTION...........................................................................................................1

BACKGROUND .............................................................................................................2

I. THE FEDERAL ELECTION COMMISSION .............................................. 2

II. STATUTORY AND REGULATORY BACKGROUND ................................2 

A. Contributions and Expenditures .................................................................2 

B. Independent Expenditure .............................................................................2 

C. Political Committees .....................................................................................3 

D. Organizational and Reporting Requirements ............................................3 

E. Contribution Limits ......................................................................................4 

III. PLAINTIFFS .......................................................................................................6 

IV. ADVISORY OPINION REQUEST...................................................................8 

ARGUMENT .................................................................................................................10 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY 

REMEDY THAT REQUIRES PLAINTIFFS TO MEET 

A HEAVY BURDEN ........................................................................................10 

II. PLAINTIFFS CANNOT DEMONSTRATE A SUBSTANTIAL 

LIKELIHOOD OF SUCCESS ON THE MERITS .......................................11 

A. The Supreme Court Has Repeatedly Held That the Act’s 

Contribution Limits Are Valid Means of Preventing 

Corruption or Its Appearance ...................................................................12 

B. Sections 441a(a)(1)(C) and 441a(a)(3) Serve Important 

Governmental Interests as Applied to NDPAC ........................................14 

 

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ii 

1. The Supreme Court Has Recognized that the Act’s 

Limits on Contributions to Multicandidate Political 

Committees Prevent Corruption or Its Appearance .........................14 

2. Plaintiffs’ Reliance on SpeechNow and EMILY’s List 

Is Misplaced ..........................................................................................17 

3. Plaintiffs’ Analogy to Corporations and Their 

Separate Segregated Funds Supports the Commission’s 

Interpretation of Sections 441a(a)(1)(C) and 441a(a)(3) ..................24 

4. The Hard/Soft Money Account System for Committees 

that Engage in Both Federal and Nonfederal Activity Is 

Insufficient to Address Corruption and the Appearance of 

Corruption Here................................................................................... 25 

C. Sections 441a(a)(1)(C) and 441a(a)(3) as Applied Are Closely 

Drawn to Avoid Unnecessary Abridgement of Plaintiffs’ 

Associational Freedoms ............................................................................. 29 

III. PLAINTIFFS HAVE FAILED TO SHOW IRREPARABLE HARM ........31 

A. Plaintiffs’ Alleged Injuries Are Neither Actual Nor Certain ..................32 

B. Plaintiffs Face No Imminent Injury ..........................................................35 

C. None of Plaintiffs’ Alleged Harms Are Beyond Remediation .................36 

IV. THE RELIEF REQUESTED BY PLAINTIFFS WOULD HARM THE 

GOVERNMENT AND UNDERCUT THE PUBLIC INTEREST ...............37 

CONCLUSION .............................................................................................................39 

 

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iii 

Table of Authorities 

Page 

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2d Cir. 2003) ..................... 31 

Buckley v. Valeo, 424 U.S. 1 (1976) ..................................................................... passim

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ....................................................... passim

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .............................. 35-36 

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006) .................................................................... 31, 36, 37 

Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006) ......... 39 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. 

District of Columbia, 919 F.2d 148 (D.C. Cir. 1990) ............................................. 34 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ................................. 24 

Citizens United v. FEC, 130 S.Ct. 876 (2010) ...................................................... passim

CityFed Fin. Corp. v. Office of Thrift Supervision, 

58 F.3d 738 (D.C. Cir. 1995) ...................................................................... 34, 37, 39 

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973) ........ 16 

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) ......................................................... 10 

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................ 33 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ...................................... 9, 19, 20, 21 

FEC v. Beaumont, 539 U.S. 146 (2003) ......................................................................... 9 

FEC v. Cal. Med. Ass’n, 502 F. Supp. 196 (N.D. Cal. 1980) ........................................17 

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ..................... 23 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ......................................23, 25 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...................24 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 4 of 49
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FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) ..............................................23 

FEC v. Nat’l Republican Senatorial Comm., 966 F.3d 1471 (D.C. Cir. 1992) ............ 10

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ................................................... 23 

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978) ..............................................24 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ................................................ 37 

Haw. Gov’t Emp. Ass’n v. Martoche, 915 F.2d 718 (D.C. Cir. 1990) .......................... 22

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) ........................................................ 34 

Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) .................................................................. 34 

Labadie Coal Co. v. Black, 672 F.2d 92 (D.C. Cir. 1982) ............................................ 27 

Lyng v. Int’l Union, United Auto., Aerospace and Agric. 

Implement Workers of Am., 485 U.S. 360 (1988) ................................................... 21 

Maher v. Roe, 432 U.S. 464 (1977) .............................................................................. 21 

Mazurek v. Armstrong, 520 U.S. 968 (1997) .................................................................10 

McConnell v. FEC, 540 U.S. 93 (2003) ..............................................................29, 38, 39 

McConnell v. FEC, 251 F. Supp. 2d 176 (2003) ............................................................39 

NAACP v. Ala., 357 U.S. 449 (1958) .............................................................................24 

N.C. Right to Life, Inc. v. Leake, 482 F. Supp. 2d 686 (W.D.N.C. 2007), 

aff’d in part, rev’d in part, 525 F.3d 274 (4th Cir. 2008) ..............................................24 

New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) .............39 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ..................................... 12, 16, 26 

NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991) ........................................ 31, 34 

Otsuka v. Polo Ralph Lauren Corp., No. C 07-02780, 

 2010 WL 366653 (N.D. Cal. Jan 25, 2010) .............................................................22 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ..................................................................36 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 5 of 49
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Sears Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1972) ..................................... 37 

Sampson v. Murray, 415 U.S. 61 (1974) .......................................................................34 

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007) ................................................................. 34 

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

Troy Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997) ............................................... 21 

TRT Telecomms. Corp. v. FCC, 876 F.2d 134 (D.C. Cir. 1989) .................................. 22 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) ................................................11 

United States v. Mendoza, 464 U.S. 154 (1984) ........................................................... 23 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ......................................................... 11 

Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001) ................................................... 11 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987) .................................................. 31, 34 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ....................11, 38 

Winter v. Natural Res. Def. Council, Inc. 129 S. Ct. 365 (2008) ................................. 10 

Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) .......................................... 31, 35 

Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305 (2004) ................................................. 38 

Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260, 

 2006 WL 2666017 (D.D.C. Sept. 14, 2006) .................................................36, 38, 39 

Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260, 

 2004 WL 3622736 (D.D.C. Aug. 17, 2004) ............................................................34 

Statutes and Regulations 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ...................................................... 2 

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 

§§ 301-306, 86 Stat. 3 (Feb. 7, 1972) ..................................................................... 38 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

§ 101, 88 Stat. 1263 (Oct. 15, 1974) ....................................................................... 38 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 6 of 49
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Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

Title I, § 112(2), 90 Stat. 475 (May 11, 1976) ........................................................ 38 

2 U.S.C. § 431(4) ...................................................................................................4, 5, 37

2 U.S.C. § 431(4)(A)........................................................................................................ 3 

2 U.S.C. § 431(4)(B) ...................................................................................................... 25 

2 U.S.C. § 431(8) ............................................................................................................. 5 

2 U.S.C. § 431(8)(A)(i) .................................................................................................... 2 

2 U.S.C. § 431(9)(A)(i) .....................................................................................................2 

2 U.S.C. § 431(17) ........................................................................................................... 3 

2 U.S.C. § 432 ............................................................................................................ 5, 37 

2 U.S.C. § 432(a)-(d) ........................................................................................................3 

2 U.S.C. § 433 .............................................................................................................4, 37 

2 U.S.C. § 434 .................................................................................................................37 

2 U.S.C. § 434(a) ..............................................................................................................5 

2 U.S.C. § 434(b)(4)(H)(iii) ........................................................................................... 33 

2 U.S.C. § 434(b)(6)(B)(iii) ............................................................................................33 

2 U.S.C. § 437c(b)(1) ........................................................................................................2

2 U.S.C. §437c(c)..................................................................................................... 10, 35 

2 U.S.C. § 437d(a)(7) ................................................................................................. 2, 10

2 U.S.C. § 437d(a)(8) ........................................................................................................2 

2 U.S.C. § 437f .................................................................................................................2 

2 U.S.C. § 437g(a)(4)-(6) ............................................................................................... 36 

2 U.S.C. § 437g(a)(6) ......................................................................................................35 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 7 of 49
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2 U.S.C. § 437g(a)(6)(A) .............................................................................................. 23 

2 U.S.C. § 437g(a)(8) .....................................................................................................10 

2 U.S.C. § 438(a)(8) ..........................................................................................................2 

2 U.S.C. § 438(d) ............................................................................................................. 2 

2 U.S.C. § 441a(a)(1)(C)......................................................................................... passim

2 U.S.C. § 441a(a)(3) ............................................................................................. passim

2 U.S.C. § 441a(a)(3)(B) ..................................................................................................4 

2 U.S.C. § 441a(a)(4) ...................................................................................................... 3

2 U.S.C. § 441a(a)(7)(B).................................................................................................30 

2 U.S.C. § 441a(a)(7)(C).................................................................................................30 

2 U.S.C. § 441a(f) ............................................................................................................4 

2 U.S.C. § 441b(a) ...................................................................................................... 4, 9

2 U.S.C. § 441b(b)(2)(C) .................................................................................................3 

2 U.S.C. § 441b(b)(4)(A) .................................................................................................3 

2 U.S.C. § 441d .............................................................................................................. 28 

11 C.F.R. § 100.5(a) .........................................................................................................3

11 C.F.R. §100.57 (2009) ...............................................................................................20 

11 C.F.R. § 102.5(a)(i) .................................................................................................. 23 

11 C.F.R. § 106.6(a) ........................................................................................................ 3

11 C.F.R. § 106.6(c) (2009) ...........................................................................................20 

11 C.F.R. § 106.6(f) (2009) ............................................................................................20 

11 C.F.R. § 109 .............................................................................................................. 30 

11 C.F.R. § 109.21(d) .................................................................................................... 30 

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11 C.F.R. § 110.1(d) ....................................................................................................... 4

11 C.F.R. § 110.5 ............................................................................................................. 4 

11 C.F.R. § 112.4(a) .......................................................................................................10 

11 C.F.R. § 114.1(c) ........................................................................................................ 3

11 C.F.R. § 114.2(b)(1) ................................................................................................... 4 

11 C.F.R. § 114.5(g)(1) ....................................................................................................3 

Miscellaneous 

FEC Advisory Op. 2010-11 (Commonsense Ten), 

 2010 WL 3184269 (July 22, 2010) ................................................................. 5, 6, 18 

FEC Advisory Op. 2010-09 (Club for Growth), 

 2010 WL 3184267 (July 22, 2010) ......................................................5, 6, 11, 18, 21 

H.R. Conf. Rep. No. 94-1057 (1976) ................................................................ 13, 15, 26 

Carolyn B. Lamm, Assertion of Jurisdiction Over Non-U.S. Defendants, 

785 Prac. L. Inst./Com. 85 (Feb. 1999) ...................................................................27 

Political Committee Status, 72 Fed. Reg. 5595, 5603 

 (FEC Supplemental Explanation and Justification, Feb. 7, 2007) .....................20, 26 

Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist 

 Bundling Disclosure Threshold, 

76 Fed. Reg. 8368 (FEC Notice, Feb. 14, 2011) .......................................................4 

Funds Received in Response to Solicitations; Allocation of Expenses by Separate 

Segregated Funds and Nonconnected Committees, 75 Fed. Reg. 13,223 

(FEC Final Rule, Mar. 19, 2010) .............................................................................20 

Funds Received in Response to Solicitations; Allocation of Expenses by Separate 

Segregated Funds and Nonconnected Committees, 74 Fed. Reg. 68,661 

(FEC Interim Final Rule, Dec. 29, 2009) .................................................................20 

Section 106.6: Allocation of Expenses Between Federal and Non-Federal Activities by 

Separate Segregated Funds and Nonconnected Committees, 55 Fed. Reg. 26,058 

(FEC Explanation and Justification, June 26, 1990) ................................................19 

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INTRODUCTION 

Contrary to plaintiffs’ portrayal, the dispute between the parties is not about prohibiting 

plaintiffs’ First Amendment activity. National Defense PAC and two individuals allege that the 

Federal Election Commission (“Commission”) has prevented them from taking advantage of 

recent court decisions that allow certain organizations to accept unlimited funds to make 

independent expenditures to support or oppose federal candidates. As we explain below, 

however, plaintiffs can both accept such funds and make direct contributions to federal 

candidates as long as they establish two separate political committees and comply with the 

applicable recordkeeping and reporting requirements. This case, therefore, is not about banning 

plaintiffs’ speech or fundraising, but about reasonable requirements that help prevent corruption 

and inform the public. 

Plaintiffs satisfy none of the requirements for a preliminary injunction. They cannot meet 

their burden of demonstrating a substantial likelihood of success on the merits because they can 

collect and spend the money they seek as long as the unlimited contributions they receive are 

accepted by a political committee that makes only independent expenditures and gives no direct 

contributions to federal candidates. Plaintiffs also cannot demonstrate any irreparable harm that 

would arise in the absence of an injunction because they have alleged a potential loss of only 

$1,300 in revenue during the pendency of this case, and because they face no imminent risk of 

enforcement proceedings against them. Finally, the government and the public have important 

interests in continued enforcement of the provisions challenged here, to minimize corruption or 

the appearance of corruption of the federal political system. 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 10 of 49
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BACKGROUND

I. THE FEDERAL ELECTION COMMISSION 

The Commission is the independent agency of the United States with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act (“Act” or “FECA”), 2 U.S.C. §§ 431-57, and other statutes. The Commission is 

empowered to “formulate policy” with respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” 

2 U.S.C. §§ 437d(a)(8), 438(a)(8),(d); and to issue written advisory opinions concerning the 

application of the Act and Commission regulations to any specific proposed transaction or 

activity, 2 U.S.C. §§ 437d(a)(7), 437f. 

II. STATUTORY AND REGULATORY BACKGROUND 

A. Contributions and Expenditures 

The Act defines “contribution” to include “any gift, subscription, loan, advance, or 

deposit of money or anything of value made by any person for the purpose of influencing any 

election for Federal office.” 2 U.S.C. § 431(8)(A)(i). “Expenditure” is defined to include “any 

purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, 

made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. 

§ 431(9)(A)(i). 

B. Independent Expenditures 

The Act defines “independent expenditure” as an expenditure by a person “expressly 

advocating the election or defeat of a clearly identified candidate; and . . . that is not made in 

concert or cooperation with or at the request or suggestion of such candidate, the candidate’s 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 11 of 49
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authorized political committee, or their agents, or a political party committee or its agents.” 

2 U.S.C. § 431(17). 

C. Political Committees 

A “political committee” includes “any committee, club, association, or other group of 

persons which receives contributions aggregating in excess of $1,000 during a calendar year or 

which makes expenditures aggregating in excess of $1,000 during a calendar year,” 2 U.S.C. 

§ 431(4)(A), and is “under the control of a candidate” or has as its “major purpose” “the 

nomination or election of a candidate,” Buckley v. Valeo, 424 U.S. 1, 79 (1976). A 

“nonconnected committee” is a political committee that is not a political party committee, an 

authorized committee of a candidate, or a separate segregated fund (“SSF”) established by a 

corporation or labor organization. See 11 C.F.R. §§ 100.5(a), 106.6(a). Corporations and labor 

organizations may underwrite the administrative and fundraising costs of their connected SSFs, 

but may solicit contributions only from a “restricted class” of individuals associated with the 

company or union. 2 U.S.C. § 441b(b)(2)(C), (b)(4)(A); 11 C.F.R. §§ 114.1(c), 114.5(g)(1). 

Nonconnected political committees, on the other hand, have no such restriction, and may solicit 

contributions from the general public. A “multicandidate political committee” is a political 

committee that has been registered for at least 6 months, has more than 50 contributors and has 

made contributions to at least 5 candidates for federal office. 2 U.S.C. § 441a(a)(4). 

D. Organizational and Reporting Requirements

Any organization that qualifies as a political committee must observe certain 

organizational and reporting requirements. Every political committee is required to have a 

treasurer who, in turn, is required to keep an account and preserve the records, inter alia, of the 

committee’s receipts and disbursements. 2 U.S.C. § 432(a)-(d). Political committees are also 

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required to file a statement of organization with the Commission within 10 days of either their 

designation (authorized campaign committees), establishment (separate segregated funds), or 

becoming a political committee within the meaning of section 431(4) (all other political 

committees). 2 U.S.C. § 433. Political committees must file periodic reports for disclosure to 

the public of all receipts from and disbursements to a person in excess of $200 in a calendar year 

(and in some instances, of any amount), as well as total operating expenses and cash on hand. 2 

U.S.C. § 434. 

E. Contribution Limits 

The Act and Commission regulations prohibit any individual from making contributions 

that in the aggregate exceed $5,000 per year to a political committee that is not an authorized 

committee of a candidate or a political party committee. 2 U.S.C. § 441a(a)(1)(C); 11 C.F.R. 

§ 110.1(d). The Act and Commission regulations also prohibit any individual from making 

contributions to political committees (that are not national party committees) that in the 

aggregate exceed $46,200 for the 2011-2012 biennial period. 2 U.S.C. § 441a(a)(3)(B); 

11 C.F.R. § 110.5.1

 The Act correspondingly prohibits political committees from knowingly 

accepting contributions in excess of these limitations. 2 U.S.C. § 441a(f). In addition, the Act 

and Commission regulations prohibit corporations and labor organizations from making 

contributions to candidates. 2 U.S.C. § 441b(a); 11 C.F.R. § 114.2(b)(1). 

The Supreme Court has upheld the limits on contributions to multicandidate political 

committees that make contributions to candidates as a legitimate means to prevent corruption or 

its appearance. Cal. Med. Ass’n v. FEC, 453 U.S. 182, 197-98 (1981) (“CalMed”) (“Congress 

enacted § 441a(a)(1)(C) in part to prevent circumvention of the very limitations on contributions 

                                                           

1

 See Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist 

Bundling Disclosure Threshold, 76 Fed. Reg. 8368 (FEC Notice, Feb. 14, 2011). 

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that this Court upheld in Buckley.”); see id. at 203 (Blackmun, J., concurring) (“[C]ontributions 

to multicandidate political committees may be limited to $5,000 per year as a means of 

preventing evasion of the limitations on contributions to a candidate or his or her authorized 

campaign committee upheld in Buckley.”). 

Following the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876, 909 

(2010), in which the Court held that “independent expenditures, including those made by 

corporations, do not give rise to corruption or the appearance of corruption,” the D.C. Circuit 

struck down the contribution limits at 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) as applied to 

political committees that make only independent expenditures. SpeechNow.org v. FEC, 599 

F.3d 686, 689, 694 (D.C. Cir. 2010) (en banc) (“SpeechNow”). At the same time, the D.C. 

Circuit upheld the reporting requirements for political committees in 2 U.S.C. §§ 432, 433, and 

434(a), as well as the organizational requirements of 2 U.S.C. §§ 431(4) and 431(8). Id. at 

696-98. To “be clear,” the D.C. Circuit noted, it decided questions of constitutionality only “as 

applied to contributions to SpeechNow, an independent expenditure-only group. [The] holding 

does not affect, for example, § 441a(a)(3)’s limits on direct contributions to candidates.” Id.

at 696. 

In two recent advisory opinions, the Commission interpreted Citizens United and 

SpeechNow and concluded that political committees that each sought to make only independent 

expenditures (and not any monetary or in-kind contributions or coordinated communications) 

may accept unlimited contributions from individuals, other political committees, corporations, 

labor organizations, and “the general public” to fund such independent expenditures. See FEC 

Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269, at *1-*2 (July 22, 2010) 

(“Commensense Ten AO”); FEC Advisory Op. 2010-09 (Club for Growth), 2010 WL 3184267, 

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at *2 (July 22, 2010) (“Club for Growth AO”). Consistent with both Citizens United and 

SpeechNow, the Commission explained that these independent expenditure-only political 

committees must comply with the Act’s registration and reporting requirements. Commonsense 

Ten AO, at *1, *2; Club for Growth AO, at *2, *4. See Citizens United, 130 S. Ct. at 909; 

SpeechNow, 599 F.3d at 696. The Commission approved Club for Growth’s plan to establish a 

new independent expenditure-only political committee even though the Club also administers a 

separate segregated fund, Club for Growth PAC, that makes contributions to candidates. The 

Club’s new independent expenditure-only committee, however, will not accept any contributions 

from Club for Growth PAC, nor will it transfer any funds to the PAC. Club for Growth AO, 

at *2.

III. PLAINTIFFS 

Plaintiff Rear Admiral James J. Carey is retired from the United States Navy and resides 

in Alexandria, Virginia. (Ver. Compl. ¶ 8.) Carey is the founder and chairman of the National 

Defense Committee (“NDC”), a non-profit organization of war veterans headquartered in 

Northern Virginia. He formed NDC with several colleagues during the late 1990s with the stated 

goals of addressing certain military, defense, and veterans issues, including military voting, 

reemployment following service, and campus access for military recruiters. See NDC, Who We 

Are (Feb. 25, 2011) (FEC Exh. 1); The Pers. Website of Rear Adm. (Ret.) James J. Carey, Links

(Feb. 27, 2011) (FEC Exh. 2). 

 In 2000, Carey registered plaintiff National Defense PAC (“NDPAC”) with the 

Commission as a nonconnected political committee, and he has served as its treasurer ever since. 

NDPAC, Stmt. of Org. (July 17, 2000) (FEC Exh. 3). Carey formed NDPAC to support the 

candidacy of military veterans who hold certain positions concerning the size of government and 

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national defense and military issues. NDPAC, (Feb. 25, 2011) (FEC Exh. 4 at 2-3); FEC Exh. 2 

at 2-3; see also Ver. Compl. ¶¶ 10, 12. NDPAC is “headquartered in Northern Virginia.” Carey 

Website, Links (Feb. 27, 2011) (FEC Exh. 2 at 2). (See also Ver. Compl. (caption listing 

NDPAC’s Virginia address).) And it is incorporated in Virginia. (Ver. Compl. Exh. A, at ECF 

p. 7 (email from Dan Backer, NDPAC, to William Powers, FEC, Aug. 16, 2010) (confirming 

NDPAC is incorporated in Virginia).) It has continuously filed reports with the Commission 

since 2000 and obtained multicandidate political committee status in 2004. FEC, Reports Image 

Index for National Defense PAC (FEC Exh. 5 at 1-3). Carey filed NDPAC’s reports until 2009, 

when NDPAC’s Assistant Treasurer began filing its reports. See id.; NDPAC, Stmt. of Org., 

Dec. 29, 2009 (FEC Exh. 6 at 3). 

 In 2002, Carey registered another political committee, “National Defense Committee 

PAC,” listing NDC as a “connected” organization. NDC PAC, Stmt. of Organization, Nov. 18, 

2002 (FEC Exh. 7 at 2). Carey continuously filed reports for National Defense Committee PAC 

from 2002 until 2009, when the Assistant Treasurer began to file its reports. FEC, Reports 

Image Index for National Defense PAC (FEC Exh. 8 at 1-2); National Defense Committee PAC, 

Stmt. of Organization, Dec. 29, 2009 (FEC Exh. 9). National Defense Committee PAC’s 

amended registration in 2009 no longer listed NDC as a connected organization. (FEC Exh. 9 

at 2) NDPAC and National Defense Committee PAC indicated for the first time that they were 

affiliated with each other in their amended 2009 registrations. NDPAC, Stmt. of Organization, 

Dec. 29, 2009 (FEC Exh. 6 at 3); National Defense Committee PAC, Stmt. of Organization, Dec. 

29, 2009 (FEC Exh. 9 at 3). 

 Plaintiff Kelly Eustis resides in Sacramento, California. (Ver. Compl. ¶ 9.) Eustis is the 

founder, president, and CEO of Eusatrix Corporation, which describes itself as “a strategic 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 16 of 49
8

public relations and political consulting firm specializing in campaigns and issue advocacy, 

public affairs, and online strategy.” Eusatrix Corp., About Eusatrix (Feb. 25, 2011) (FEC Exh. 

10). “Eusatrix serves conservative political, non-profit, and corporate clients across the United 

States.” (Id.) Eustis has never been reported to have made a contribution to a federal candidate 

of $200 or more. FEC, Transaction Query By Individual, (Feb. 25, 2011) (query “Kelly Eustis”) 

(FEC Exh. 11). 

 NDPAC alleges that it would like to pay to run an advertisement on the Newsmax website 

expressly advocating against the election of a candidate for New York’s ninth congressional 

district in the months leading up to the 2012 election. (Ver. Compl. ¶ 24.) Such an 

advertisement would cost $6,300 and Eustis would like to contribute that amount to NDPAC. 

(Id.) 

IV. ADVISORY OPINION REQUEST 

 On August 11, 2010, NDPAC submitted a letter to the Commission requesting an 

advisory opinion from the Commission. (Ver. Compl. Exh. A (FEC, AO Request 2010-20, 

Letter from Dan Backer, NDPAC, to Thomasenia Duncan (“AO Request”), Aug. 11, 2011).) 

NDPAC, a political committee that makes both contributions and independent expenditures, 

outlined its intention to accept unlimited contributions from individuals, other political 

committees, corporations, and labor organizations to fund independent expenditures from a 

separate bank account. (Id.) The Commission considered two draft responses to NDPAC’s AO 

Request on September 23, 2010. (Ver. Compl. Exh. D (FEC Certification, Sept. 23, 2010).) 

 Draft A concluded that a committee such as NDPAC could not accept unlimited 

contributions if it makes both contributions to candidates and independent expenditures. (Ver. 

Compl. Exh. B (FEC, Draft AO 2010-20 – Revised Draft A, Agenda Doc. 10-60-B (“Draft A”), 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 17 of 49
9

Sept. 23, 2010).) That draft concluded that the Act and Commission regulations prohibit such a 

political committee from accepting the types of contributions contemplated by NDPAC’s 

request, even if it uses a separate bank account. (Id. at 6-7 (citing 2 U.S.C. § 441a(a)(l)(C), (f) 

and 2 U.S.C. § 441b(a)).) Draft A relied on Supreme Court decisions upholding these amount 

limitations and source prohibitions as a valid means of preventing corruption as applied to 

political committees that make both contributions and expenditures. (Id. at 3, 7 n.3 (citing 

CalMed, 453 U.S. at 197-98, and FEC v. Beaumont, 539 U.S. 146, 154 (2003)).) The draft 

distinguished SpeechNow as well as the Commonsense Ten and Club for Growth Advisory 

Opinions by noting that each of the entities in those matters made only independent 

expenditures. (Id. at 4.) 

 Draft B concluded that NDPAC may accept unlimited contributions to its separate bank 

account to fund independent expenditures. (Ver. Compl. Exh. C (FEC, Draft AO 2010-20 – 

Draft B, Agenda Doc. 10-60-A (“Draft B”), Sept. 21, 2010).) The draft relied on the holdings 

in Citizens United, SpeechNow, and EMILY’s List v. FEC, 581 F.3d 1, 12 (D.C. Cir. 2009), that 

independent expenditures do not corrupt or create the appearance of corruption. (Draft B, 

at 5-7.) The draft cited EMILY’s List for the proposition that NDPAC merely had to set up 

separate accounts to accept unlimited contributions, and concluded that NDPAC’s making of 

contributions did not meaningfully distinguish it from SpeechNow, Commonsense Ten, or the 

Club for Growth. (Id. at 5-6.) Draft B also noted, in the alternative, that the “persons who 

created and operate NDPAC may establish a separate political committee to make independent 

expenditures.” (Id. at 7 n.4.)2

                                                           

2

 NDPAC also sought in its AO Request to allocate its administrative and operating 

expenses between its accounts however it wished. (Ver. Compl. Exh. A, at 5.) Draft A did not 

permit such allocation because, inter alia, the draft did not permit creation of the separate 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 18 of 49
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Two commissioners supported issuance of Draft A, three supported issuance of Draft B, 

and one did not vote. (Ver. Compl. Exh. D.) Because the affirmative vote of four members of 

the Commission is required for the Commission to render an advisory opinion, 2 U.S.C. 

§§ 437c(c), 437d(a)(7); 11 C.F.R. § 112.4(a), the Commission was thus unable to render an 

opinion in this matter. As a result, the defense in this case is consistent with the position of the 

“controlling group” of Commissioners that declined to vote for Draft B, which would have 

provided NDPAC the relief it seeks in this lawsuit. Cf. FEC v. National Republican Senatorial 

Comm., 966 F.3d 1471, 1476 (D.C. Cir. 1992) (explaining that when the Commission deadlocks 

and a case is then brought under 2 U.S.C. § 437g(a)(8), the decision of the controlling group of 

Commissioners becomes the subject of judicial review).

ARGUMENT 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES PLAINTIFFS TO MEET A HEAVY BURDEN 

In seeking a preliminary injunction, plaintiffs bear a heavy burden. “A plaintiff seeking a 

preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is 

likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of 

equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural 

Res. Def. Council, Inc. 129 S. Ct. 365, 374 (2008). “A preliminary injunction is an 

extraordinary remedy that should be granted only when the party seeking the relief, by a clear 

showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 

2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)); see also Winter, 129 S. Ct. 

                                                                                                                                                                                               

accounts at all. (Ver. Compl. Exh. B, at 7.) Draft B indicated that NDPAC must allocate its 

administrative and operating expenses between its accounts in a manner that corresponds to the 

proportion of its activities funded by each account. (Ver. Compl. Exh. C, at 7-8.) Plaintiffs do 

not seek in this litigation the right to allocate administrative and operating costs in any manner 

they see fit. (See Ver. Compl. Prayer for Relief ¶¶ 1-4.) 

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375-76 (plaintiff must make “clear showing” that extraordinary remedy is necessary; “only a [] 

possibility of irreparable harm” is not sufficient) (internal quotation marks and citation omitted). 

Plaintiffs shoulder a particularly heavy burden here because the requested relief “would 

alter, not preserve, the status quo.” Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001). 

“The purpose of a preliminary injunction is merely to preserve the relative positions of the 

parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981). Plaintiffs, however, seek to alter the relative position of the parties while their request 

for permanent relief is pending by preventing the Commission from enforcing provisions of 

FECA that have been in effect for over thirty years. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 

1301 (1993) (Rehnquist, C.J., in chambers) (refusing to enjoin enforcement of congressional Act, 

despite First Amendment claim: “By seeking an injunction, applicants request that I issue an 

order altering the legal status quo.”) (emphasis in original). There is a “presumption of 

constitutionality which attaches to every Act of Congress.” Walters v. Nat’l Ass’n of Radiation 

Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). Plaintiffs fail to meet their 

burden of showing clearly that the longtime status quo should be altered and a federal statute 

preliminarily enjoined.

II. PLAINTIFFS CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF 

SUCCESS ON THE MERITS 

 Plaintiffs do not contest the facial constitutionality of the $5,000 limit on contributions to 

political committees. Nor is it disputable that CalMed upheld that contribution limit as applied 

to political committees — like NDPAC — that make both contributions and independent 

expenditures with the money they receive. Plaintiffs nevertheless argue that under Citizens 

United, SpeechNow, and EMILY’s List, they must be permitted to do what CalMed prohibits 

because NDPAC will segregate its funds in separate bank accounts. As explained below, the 

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cases plaintiffs rely upon do not go that far. However, to take full advantage of the recent 

decisions they cite, plaintiffs need only follow the model of Club for Growth, see Club for 

Growth AO; supra pp. 5-6, and establish a separate political committee to accept unlimited 

contributions to spend on independent expenditures.

A. The Supreme Court Has Repeatedly Held That the Act’s Contribution 

Limits Are Valid Means of Preventing Corruption or Its Appearance 

In Buckley, the Supreme Court upheld the Act’s limits on the amount individuals and 

multicandidate political committees can contribute to federal candidates and their campaign 

committees. 424 U.S. at 23-38; see also CalMed, 453 U.S. at 194 (discussing Buckley’s 

holdings). Buckley “drew a line between expenditures and contributions, treating expenditure 

restrictions as direct restraints on speech” while saying, “in effect, that limiting contributions left 

communications significantly unimpaired.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386-

87 (2000) (citing Buckley, 424 U.S. at 19-21). Contribution limits “permit[] the symbolic 

expression of support” without “in any way infring[ing] the contributor’s freedom to discuss 

candidates and issues.” Buckley, 424 U.S. at 21. These limits help prevent corruption and the 

appearance of corruption. “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.” Id. at 26-27. “Of almost equal concern . . . is the 

impact of the appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial contributions.” Id. at 27; see also 

Citizens United, 130 S. Ct. at 901 (“The Buckley Court recognized a ‘sufficiently important’ 

governmental interest in ‘the prevention of corruption and the appearance of corruption.’”) 

(quoting Buckley, 424 U.S. at 25). 

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In CalMed, the Court explained that section 441a(a)(1)(C)’s limits on contributions to 

multicandidate political committees “further the governmental interest in preventing the actual or 

apparent corruption of the political process” by “prevent[ing] circumvention of the very 

limitations on contributions that th[e] Court upheld in Buckley.” CalMed, 453 U.S. 197-98 

(plurality opinion); id. at 203 (Blackmun, J., concurring). The Court recognized that such 

committees are “essentially conduits for contributions to candidates,” and thus “pose a perceived 

threat of actual or potential corruption” that is not posed by “a committee that makes only

independent expenditures.” Id. at 203 (Blackmun, J., concurring) (emphasis added). Four 

justices adopted the conclusion in the House Conference Report regarding the amendments that 

became section 441a(a)(1)(C) that multicandidate political committees “‘appear to be separate 

entities pursuing their own ends, but are actually a means for advancing a candidate’s 

campaign.’” Id. at 199 n.18 (plurality opinion) (quoting H.R. Conf. Rep. No. 94-1057, at 57-58 

(1976)). Justice Blackmun did not disclaim the Conference Report’s findings or the plurality’s 

reliance on them, and concluded that “contributions to multicandidate political committees may 

be limited to $5,000 per year as a means of preventing evasion of the limitations on contributions 

to a candidate or his authorized campaign committee upheld in Buckley.” Id. at 203 (Blackmun, 

J., concurring) (citing Buckley, 424 U.S. at 38). 

Plaintiffs mischaracterize CalMed’s holding as merely the “plurality’s” conclusion. 

(E.g., Plaintiffs’ Memorandum of Law in Support of Motion for Preliminary Injunction 

(“PI Br.”) at 17 (“a plurality of the Court upheld the limit on the ground that it served the 

government’s interest in preventing circumvention of the limits on contributions made directly to 

candidates”); id. (“Thus, according to the plurality, contributors seeking to avoid the . . . 

candidate contribution limits could make larger contributions to multi-candidate committees, 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 22 of 49
14

which could then be funneled to candidates.”) (emphases added).) But as explained above, 

Justice Blackmun agreed with the plurality on the constitutionality of the contribution limits as 

applied to CALPAC, a political committee that made both contributions and expenditures. 

CalMed, 453 U.S. at 203 (Blackmun, J., concurring). Justice Blackmun’s reservation concerned 

“contributions to a committee that makes only independent expenditures.” Id.

CalMed also makes clear that the “Buckley standard of scrutiny” for contribution limits 

applies here, where NDPAC “plans to make contributions to candidates for federal office” (PI 

Br. at 1). See CalMed, 453 U.S. at 202 (Blackmun, J., concurring) (limits on contributions to 

multicandidate committees “can be upheld only ‘if the State demonstrates a sufficiently 

important interest and employs means closely drawn to avoid unnecessary abridgment of 

associational freedoms’”) (quoting Buckley, 424 U.S. at 25). Although plaintiffs attempt to 

suggest that a different level scrutiny may apply here, they fail to offer any support for an 

alternative constitutional standard, or any basis for deviating from the Court’s approach in 

CalMed. (See PI Br. at 12-13, 27.) The question here is thus whether sections 441a(a)(1)(C) and 

441a(a)(3) serve a “sufficiently important interest” and are “closely drawn to avoid unnecessary 

abridgment of [plaintiffs’] associational freedoms.” CalMed, 453 U.S. at 202-03 (Blackmun, J., 

concurring). As discussed below, the answer to both parts of that question is yes. 

B. Sections 441a(a)(1)(C) and 441a(a)(3) Serve Important Governmental 

Interests as Applied to NDPAC 

1. The Supreme Court Has Recognized that the Act’s Limits on 

Contributions to Multicandidate Political Committees Prevent 

Corruption or Its Appearance 

As explained supra pp. 12-13, the Supreme Court has upheld the Act’s limits on 

contributions to multicandidate political committees to prevent circumvention of the Act’s limits 

on direct contributions to candidates. CalMed, 453 U.S. 199 (plurality opinion); id. at 203 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 23 of 49
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(Blackmun, J., concurring). The fact that a multicandidate political committee may also make 

independent expenditures does not eliminate or even reduce its function as “‘a means for 

advancing a candidate’s campaign.’” CalMed, 453 U.S. at 199 n.18 (plurality opinion) (quoting 

H.R. Conf. Rep. No. 94-1057, at 57-58 (1976)). 

Moreover, the plurality’s concern in CalMed — that donors who make unlimited 

contributions, even if ostensibly targeted to pay for administrative expenses, could “completely 

dominate the operations and contribution policies of independent political committees” — 

applies equally here. Id. at 199 n.19. Specifically, individuals and groups who seek to maximize 

their contributions to candidates for federal office could make large “independent expenditure” 

donations to NDPAC as a means to gain control over NDPAC’s contribution decisions. And 

corporations and unions, from which NDPAC intends to accept unlimited contributions (see Ver. 

Compl. ¶ 15.a.; PI Br. at 3), could seek to evade the ban on their direct contributions to 

candidates by obtaining influence over NDPAC’s contributions through large donations to 

NDPAC’s independent expenditure account. NDPAC’s contributors could leverage their 

unlimited contributions to control NDPAC’s direct contributions to federal candidates “to an 

extent . . . far greater than the individual or group [or corporation or union] that finances the 

committee’s [independent expenditures] would be able to do acting alone.” CalMed, 453 U.S. 

at 199 n.19. Permitting NDPAC to accept unlimited contributions, even if intended to be used 

for independent expenditures, could thus result in corruption or the appearance of corruption by 

facilitating the “circumvention of the very limitations on contributions that th[e] Court upheld in 

Buckley.” CalMed, 453 U.S. at 197-98. 

To be sure, maintaining separate bank accounts may reduce the most blatant avenue for 

corruption: the direct circumvention of the contribution limits — i.e., NDPAC’s conversion of 

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unrestricted independent expenditure donations into candidate contributions. But the creation of 

separate bank accounts does not eliminate the potential for individuals, groups, corporations, or 

unions to try to leverage unlimited donations as a means to pressure an organization to direct 

contributions to particular federal candidates. Nor do separate bank accounts end “the 

appearance of improper influence [which] ‘is also critical . . . if confidence in the system of 

representative Government is not to be eroded to a disastrous extent.’” Buckley, 424 U.S. at 27

(quoting U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973)). 

While the public may be aware of the activities of political committees like NDPAC — i.e., 

whether they make independent expenditures, contributions, or both — the public is less likely to 

be aware of committees’ internal financial controls or the nature and number of their various 

bank accounts. Separate bank accounts may thus “[l]eave the perception of impropriety 

unanswered.” Shrink, 528 U.S. at 390. 

Requiring NDPAC to establish a separate, independent expenditure-only committee to 

solicit and accept unlimited contributions for its independent expenditures reduces the potential 

for both actual and apparent corruption created by individuals, corporations, and unions giving 

unrestricted contributions to a political committee that itself makes contributions directly to 

federal candidates. As discussed infra pp. 28-30, the burden imposed by such a requirement is 

not onerous, and it is closely drawn to meet this “sufficiently important” interest. 

Plaintiffs incorrectly suggest (PI Br. at 16-18) that Justice Blackmun’s caveat regarding 

“contributions to a committee that makes only independent expenditures” undermines the 

applicability of CalMed’s analysis or holding here. CalMed, 453 U.S. at 203 (Blackmun, J., 

concurring). Although Justice Blackmun did observe that “contributions to a committee that 

makes only independent expenditures pose no such threat [of corruption],” id. (emphasis added), 

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NDPAC does not even purport to be such a committee. NDPAC instead seeks not only to solicit 

and accept donations for independent expenditures, but also to “[a]ccept[] contributions from 

individuals and other political committees . . . to expend as campaign contributions to 

candidates.” (PI Br. at 3 (emphasis added).)3

 Finally, plaintiffs conspicuously omit Justice 

Blackmun’s important qualification when quoting his admonition that “a different result would 

follow if § 441a(a)(1)(C) were applied to contributions to a political committee established for 

the purpose of making independent expenditures, rather than contributions to candidates.” 

Compare CalMed, 453 U.S. at 203 (Blackmun, J., concurring) (emphases added), with PI Br. at 

17 (quoting italicized portion of Blackmun concurrence but omitting underscored words). Since 

NDPAC was established for the purpose of making both independent expenditures and 

contributions to federal candidates, Justice Blackmun’s caveat is inapposite here. 

2. Plaintiffs’ Reliance on SpeechNow and EMILY’s List Is Misplaced 

SpeechNow does not support plaintiffs’ arguments because that case involved an 

organization that made only independent expenditures. The en banc D.C. Circuit could not have 

been more explicit when it stated, “We should be clear, however, that we only decide these 

questions as applied to contributions to SpeechNow, an independent expenditure-only group.” 

599 F.3d at 696. The court thus carved out from the scope of its decision organizations like 

NDPAC, which make direct contributions to federal candidates. 

                                                           

3

 Plaintiffs go even further by suggesting that “National Defense PAC’s case is 

distinguishable from the fact pattern in CalMed — National Defense PAC asks to make 

independent expenditures, the California Medical Association did not — and falls squarely 

within the reason [sic] of Justice Blackmun’s controlling concurrence.” (PI Br. at 19.) However, 

contrary to plaintiffs’ suggestion, “CALPAC ma[de] contributions to and expenditures on behalf 

of candidates in state and federal elections.” FEC v. Cal. Med. Ass’n, 502 F. Supp. 196, 198 

(N.D. Cal. 1980) (emphasis added). 

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To be clear, plaintiffs have the right, consistent with the Commission’s recent Advisory 

Opinions, to establish a separate, independent expenditure-only political committee that, like the 

independent expenditure-only political committees created by SpeechNow, Club for Growth, and 

Commonsense Ten, could accept unlimited contributions for independent expenditures. See 

Commonsense Ten AO, at *1-*2; Club for Growth AO, at *2. In those opinions, the 

Commission concluded that a political committee that does “not make any monetary or in-kind 

contributions (including coordinated communications) to any other political committee or 

organization,” and makes only independent expenditures may “solicit[] and accept[] unlimited 

contributions from individuals, political committees, corporations, and labor organizations for 

the purpose of making independent expenditures.” Commonsense Ten AO, at *1-*2; Club for 

Growth AO, at *1. Plaintiffs thus remain free to follow the Club for Growth model approved in 

Advisory Opinion 2010-09 and establish two political committees, one for independent 

expenditures and one for contributions to federal candidates.4

 The independent expenditure-only 

committee, like the committees at issue in SpeechNow and in the Commission’s recent Advisory 

Opinions, would be restricted to making independent expenditures and thus could not make any 

monetary or in-kind contributions to, or coordinate communications with, any candidate, other 

political committee or organization. (Cf. Draft A, at 4 (distinguishing NDPAC’s request to make 

both contributions and independent expenditures from the holdings in Citizens United, 130 S. Ct. 

at 909, and SpeechNow, 599 F.3d at 689, and the Commission’s conclusions in the 

Commonsense Ten and Club for Growth AOs).) But plaintiffs, like Club for Growth, would 

                                                           

4

 In addition to its new, independent expenditure-only political committee, Club for 

Growth, an incorporated non-profit organization, also has a separate segregated fund that 

receives funds subject to the Act’s contribution limits and makes candidate contributions. See 

Club for Growth AO, at *2; Committees and Candidates Supported/Opposed for Club for 

Growth PAC, FEC Disclosure Database, (Feb. 25, 2011) (FEC Exh. 12). 

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19

remain free to make candidate contributions from NDPAC, as long as that separate committee 

observes the Act’s source and amount limits and other applicable requirements. 

 The decision in EMILY’s List does not require a different result. Contrary to plaintiffs’ 

argument (PI Br. at 21), EMILY’s List does not “squarely decide[]” the question here. (Plaintiffs’ 

AO Request did not even mention the case. (See Ver. Compl. Exh. A (FEC AO Request 2010-

20), at 1-2.).) Unlike this case, EMILY’s List involved a challenge to Commission regulations — 

not to any statutory provisions of FECA — governing how funds contributed for nonfederal 

election activities could be spent, how certain “mixed” federal and nonfederal activity could be 

financed, and whether funds solicited in certain ways are federal contributions. See, e.g., 

EMILY’s List, 581 F.3d at 20 (rejecting FEC regulations that “federalize[d] the funding and 

reporting of a large portion of [EMILY’s List’s] nonfederal receipts and disbursements, which 

are not made for the purpose of influencing federal elections”) (emphasis added); id. at 31 

(Brown, J., concurring) (EMILY’s List “challenge[d] the regulations as the ‘functional 

equivalent of spending limits, prohibiting EMILY’s List from supporting state and local 

candidates in certain ways when its federal funds are exhausted’ and claim[ed] they [were] not 

properly tailored because they ‘restrict[ed] vast amounts of nonfederal activity’”) (quoting 

EMILY’s List Br. at 17) (emphasis added by Brown, J.). 

 The Commission had originally promulgated the allocation regulations to address, inter 

alia, the fact that committees like EMILY’s List are subject to both federal campaign finance 

laws and the distinct laws of each state in which they act. See Section 106.6: Allocation of 

Expenses Between Federal and Non-Federal Activities by Separate Segregated Funds and 

Nonconnected Committees, 55 Fed. Reg. 26,058, 26,066 (FEC Explanation and Justification, 

June 26, 1990) (“This section has been added to the rules to provide . . . detailed instructions as 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 28 of 49
20

to how [political committees] are to allocate their administrative expenses and costs for 

combined federal and non-federal activities.”). The allocation regulations “appl[ied] only to 

those committees that make disbursements in connection with federal and non-federal elections.” 

Id. (emphasis added). The regulations — including their revisions in 2007 — thus clarified 

when such committees could use “hard money” subject to federal campaign finance 

requirements, when they were permitted to use “soft money” that was not subject to such federal 

restrictions (but is subject to various state-law restrictions), and when they could use an allocated 

combination of both for certain mixed activity. See 11 C.F.R. §§ 100.57 (2009), 106.6(c), (f) 

(2009); see also, e.g., Political Committee Status, 72 Fed. Reg. 5595, 5603 (FEC Supplemental 

Explanation and Justification, Feb. 7, 2007). 

 The EMILY’s List decision ordered the district court to vacate the three challenged 

regulations, EMILY’s List, 581 F.3d at 25, and the agency has implemented the courts’ orders by 

deleting the regulations, see Funds Received in Response to Solicitations; Allocation of 

Expenses by Separate Segregated Funds and Nonconnected Committees, 75 Fed. Reg. 13,223, 

13,223-24 (FEC Final Rule, Mar. 19, 2010); Funds Received in Response to Solicitations; 

Allocation of Expenses by Separate Segregated Funds and Nonconnected Committees, 74 Fed. 

Reg. 68,661, 68,661-62 (FEC Interim Final Rule, Dec. 29, 2009). But EMILY’s List neither 

invalidated nor even considered the constitutionality of the contribution limits imposed by 

sections 441a(a)(1)(C) and 441a(a)(3), which were not challenged in that case and concern only 

contributions made to influence federal elections.5

 While the Commission may consider 

                                                           

5

 Indeed, at oral argument counsel for EMILY’s list argued that CalMed “‘didn’t raise any 

of the issues in this case’” and that its analysis of limits on contributions “‘made to [a] federal 

program’” has no “‘bear[ing] at all on this invasion of our state and local programs through the 

promulgation of these excessive federal regulatory schemes.’” EMILY’s List, 581 F.3d at 32 

(Brown, J., concurring) (quoting Tr. of Oral Arg. at 32-33). 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 29 of 49
21

additional rulemaking to implement the decision, see Club for Growth AO, at *1 n.1, nothing in 

the opinion requires the Commission to stop enforcing sections 441a(a)(1)(C) and 441a(a)(3) or 

the regulations implementing those statutory provisions. 

Although the majority opinion in EMILY’s List grounded its decision on broad 

constitutional principles, it must be reconciled with both CalMed and SpeechNow. In particular, 

the panel majority reasoned that a “non-profit that makes expenditures to support federal 

candidates does not suddenly forfeit its First Amendment rights when it decides also to make 

direct contributions to parties or candidates.” 581 F.3d at 12. Through advisory opinions, the 

Commission has honored that reasoning consistent with other precedent by permitting groups to 

maintain one political committee to accept limited funds for contributions to federal candidates, 

and also establish a second political committee to accept unlimited contributions for independent 

expenditures. E.g. Club for Growth AO, at *2. 

Plaintiffs nevertheless argue that notwithstanding CalMed, EMILY’s List establishes a 

First Amendment right for NDPAC to accept both source- and amount-limited donations for 

contributions to federal candidates and unlimited contributions for independent expenditures, as 

long as the respective contributions are deposited into separate bank accounts. (PI Br. at 21-22.) 

But EMILY’s List was decided in a different context and does not resolve the distinct issue 

presented here. See, e.g., Lyng v. Int’l Union, United Auto., Aerospace and Agric. Implement 

Workers of Am., 485 U.S. 360, 369 n.7 (1988) (distinguishing prior case “‘decided in [a] 

significantly different context’”) (quoting Maher v. Roe, 432 U.S. 464, 475 n.8 (1977)); Troy 

Corp. v. Browner, 120 F.3d 277, 284 (D.C. Cir. 1997) (holding that out-of-circuit decision 

“under a different statute . . . on a different factual record would not compel a similar result on 

our part even if that case were a binding precedential decision from our own circuit”) (emphasis 

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22

added); Haw. Gov’t Emp. Ass’n v. Martoche, 915 F.2d 718, 726 (D.C. Cir. 1990) (“We are 

satisfied that [the case relied upon by plaintiffs] is not controlling here. The facts of that case 

differ in critical respects.”); Otsuka v. Polo Ralph Lauren Corp., No. C 07-02780, slip op., 2010 

WL 366653, at *5 n.2 (N.D. Cal. Jan 25, 2010) (declining to rely on case that “dealt with . . . an 

entirely different context from that presented” in pending case). 

Moreover, accepting plaintiffs’ view of EMILY’s List would require the Court to ignore 

or decline to follow the Supreme Court’s decision in CalMed, which addressed the precise 

statute and question presented here. And SpeechNow, the only precedent invalidating the 

contribution limits at issue here, expressly stated that it was addressing only political committees 

that make only independent expenditures. 599 F.3d at 696. 

Alternatively, to the extent that EMILY’s List’s statements regarding “hard-money” and 

“soft-money” accounts can be interpreted to apply outside the context of mixed federal and nonfederal spending to conduct like plaintiffs’ proposed expenditures that are entirely federal, that 

limited portion of the majority opinion should be treated as dicta. The suggestion that separate 

accounts are the constitutionally required solution for addressing possible corruption in the 

context of a non-profit’s federal independent expenditures was not necessary to the decision 

regarding whether to strike down Commission regulations for allocation of federal and nonfederal spending. The distinct issue here regarding exclusively federal activity was simply not 

before the court in EMILY’s List. Cf. TRT Telecomms. Corp. v. FCC, 876 F.2d 134, 149 (D.C. 

Cir. 1989) (where agency “has never been asked, nor purported to speak to the question” 

presented, agency’s prior interpretations of statute, “were necessarily rendered in different 

contexts, and, accordingly, were dicta”). Indeed, because the independent spending NDPAC 

alleges it wants to make consists entirely of expenditures expressly advocating the election or 

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23

defeat of federal candidates (see Ver. Compl. ¶¶ 12, 24, 31, 35, 44-46), the account it seeks to 

create has as its “major purpose” the election of federal candidates and thus merits treatment as a 

political committee. See Buckley, 424 U.S. at 79.6 EMILY’s List did not address facts like 

these.7

CalMed, which the Supreme Court has “consistently cited . . . for the unqualified 

proposition that it is constitutional to limit contributions to multicandidate committees,” thus 

remains the controlling authority here. EMILY’s List, 581 F.3d at 37 (Brown, J., concurring) 

(citing FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 441-42 (2001); FEC v. 

NRA Political Victory Fund, 513 U.S. 88, 97 (1994); Buckley, 424 U.S. at 38). And none of the 

other cases on which plaintiff s rely (PI Br. at 23-28) undermine the Court’s conclusion in 

CalMed upholding limits on contributions to political committees like NDPAC that make direct 

contributions to federal candidates. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) 

(narrowing the constitutional application of limits on corporate independent spending on 

electioneering communications, but not addressing limits on contributions to political 

committees or other groups); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) 

                                                           

6 See also 11 C.F.R. § 102.5(a)(i) (explaining when political committee’s federal account 

“shall be treated as a separate Federal political committee that must comply with the 

requirements of the Act including the registration and reporting requirements of 11 CFR parts 

102 and 104”) (emphasis added). 

7

 Plaintiffs contend that the Commission “fail[ed] to follow EMILY’s List” when it did not 

issue their requested advisory opinion. (PI Br. at 11.) But at the time the Commission was 

considering the AO Request, it appeared that any potential enforcement action against NDPAC 

would be brought outside this Circuit, in the Northern District of Virginia, where NDPAC 

resides and is incorporated. See supra pp. 6-7; 2 U.S.C. § 437g(a)(6)(A) (providing for venue of 

Commission enforcement actions “in the district court of the United States for the district in 

which the person against whom such action is brought is found, resides, or transacts business”). 

Thus, EMILY’s List would have persuasive, but not binding, authority for such a hypothetical 

enforcement action, because the federal government is not bound to treat a decision of one circuit 

court of appeals as binding law in the other circuits. United States v. Mendoza, 464 U.S. 154, 

160 (1984). 

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(exempting limited class of ideological non-profit corporations from FECA’s then-existing 

prohibition on corporate expenditures); FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480, 494 (1985) (striking down limit on political committee’s independent spending but 

distinguishing contribution limit upheld in CalMed); Citizens Against Rent Control v. Berkeley, 

454 U.S. 290, 298 (1981) (striking down limits on contributions to committees that spent funds 

to influence ballot referenda, not to make contributions to candidates); First Nat’l Bank of Bos. v. 

Bellotti, 435 U.S. 765, 790 (1978) (“risk of corruption perceived in cases involving candidate 

elections . . . simply is not present in a popular vote on a public issue”); NAACP v. Ala., 357 U.S. 

449, 460 (1958) (recognizing First Amendment protects political association); N.C. Right to Life, 

Inc. v. Leake, 482 F. Supp. 2d 686, 698-99 (W.D.N.C. 2007) (state contribution limit 

unconstitutional as applied to independent expenditure-only committees), aff’d in part, rev’d in 

part, 525 F.3d 274 (4th Cir. 2008). Although some of these cases may support the undisputed 

proposition that individuals may pool funds to finance unlimited independent expenditures, none 

of them support plaintiffs’ claim that NDPAC may accept unlimited contributions while 

simultaneously making direct contributions to federal candidates. 

3. Plaintiffs’ Analogy to Corporations and Their Separate Segregated 

Funds Supports the Commission’s Interpretation of Sections 

441a(a)(1)(C) and 441a(a)(3) 

Plaintiffs invoke the analogy of corporations — which may use their general treasuries to 

make unlimited independent expenditures but not direct contributions to federal candidates, and 

their separate segregated funds (“SSFs”), which are permitted to make direct candidate 

contributions — to support their argument that separate bank accounts for unlimited independent 

expenditures and limited candidate contributions serve an adequate “prophylactic effect” to 

address the government’s anti-corruption interests here. (See PI Br. at 14-16.) But this analogy 

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actually weakens, not strengthens, plaintiffs’ position. As plaintiffs concede, SSFs are legally 

separate entities from the corporations or unions to which they are connected. (Id. at 19 (“The 

FEC . . . may point out that a corporation or labor union (‘connected organization’) and its 

separate segregated fund are legally separate entities.” (citations omitted).) As the Supreme 

Court stated in Citizens United, “[a] PAC is a separate association from the corporation” subject 

to its own administrative and regulatory obligations. 130 S. Ct. at 897. An SSF “is considered a 

‘political committee’ under the Act.” Mass. Citizens for Life, 479 U.S. at 253 (citing 2 U.S.C. 

§ 431(4)(B)). The corporation-PAC scenario is thus more analogous to the separate political 

committee approach upheld in SpeechNow and approved by the Commission in Advisory 

Opinions 2010-11 and 2010-09, not to plaintiffs’ proposal to allow a single legal entity to 

separate its activities only by creating two separate bank accounts. 

4. The Hard/Soft Money Account System for Committees that Engage in 

Both Federal and Nonfederal Activity Is Insufficient to Address 

Corruption and the Appearance of Corruption Here 

 

Plaintiffs further suggest that even though corporations and their SSFs are necessarily 

separate legal entities, the “prophylactic” of separate “hard-money” and “soft-money” accounts, 

which Commission regulations require for political committees engaged in both federal and 

nonfederal election activity, must be an adequate solution to address the distinct corruption 

concerns raised here. (PI Br. at 19-20.) Not so. 

First, as discussed supra pp. 19-22, it is incorrect to conflate the “hard money”/“soft 

money” dichotomy, which relates to federal and nonfederal political activity, with Buckley’s

expenditure/contribution dichotomy concerning exclusively federal activity. The “soft money” 

that political committees like EMILY’s List may solicit and accept for their nonfederal activities 

is not analogous to the unlimited funds that independent expenditure-only committees like 

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SpeechNow may accept for their federal independent expenditures. Because the individual states 

have their own campaign finance regimes with which political committees that engage in 

nonfederal political activity must comply, “soft money” is not synonymous with “unlimited” 

funds; instead, it describes money that, while not subject to federal campaign finance 

restrictions, remains subject to those restrictions imposed by the individual states. See Political 

Committee Status, 72 Fed. Reg. 5595, 5603 (FEC Supplemental Explanation and Justification, 

Feb. 7, 2007) (noting that Commission regulations permit registered political committees that 

participate in both federal and nonfederal elections to maintain both federal and nonfederal 

accounts containing funds that comply, respectively, with federal and state restrictions.). 

Second, as explained supra pp. 14-16, separate bank accounts do not adequately respond 

to the actual and apparent corruption concerns presented here. As long as NDPAC solicits and 

accepts donations for making direct contributions to federal candidates, regardless of which bank 

account such donations are deposited in, it functions as “‘a means for advancing a candidate’s 

campaign.’” CalMed, 453 U.S. at 199 n.18 (plurality opinion) (quoting H.R. Conf. Rep. No. 94-

1057, at 57-58 (1976)). And it thus remains available to individuals, groups, corporations, and 

unions as a mechanism for circumventing the Act’s limits (or outright prohibition) on direct 

contributions to candidates, creating the potential for actual and apparent corruption of the 

political process. See, e.g., Shrink, 528 U.S. at 390; CalMed, 453 U.S. at 197-99 nn.18-19 & 

203; Buckley, 424 U.S. at 27. 

The formality of separate political committees, on the other hand, addresses both actual 

and apparent corruption. By removing unlimited independent expenditure contributions 

completely from a committee engaged in contributing money directly to federal candidates, 

opportunities for actual circumvention of the contribution limits, and the appearance of such 

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circumvention, are substantially diminished. As the D.C. Circuit has explained in the context of 

corporate formalities, “the formalities are themselves an excellent litmus of the extent to which 

the individuals involved actually view the corporation as a separate being.” Labadie Coal Co. v. 

Black, 672 F.2d 92, 96-97 (D.C. Cir. 1982). Here, too, where plaintiffs seek collectively to 

engage in two distinct forms of federal political activity, which are subject to different federal 

restrictions, adherence to the formality of separate political committees for plaintiffs’ unlimited 

independent expenditures and their limited contributions to federal candidates would further the 

separation of such activities, thus reducing actual and apparent corruption. Cf. Carolyn B. 

Lamm, Assertion of Jurisdiction Over Non-U.S. Defendants, 785 Prac. L. Inst./Com. 85, 116-17 

(Feb. 1999) (“The observation of formalities is particularly important where the business affairs 

of two corporations are intertwined, or where the subsidiary and parent operate parts of a single 

line of business . . . . [A]dherence to corporate formalities helps to ensure that third parties are 

not misled into believing that they are dealing with the parent.”). 

Third, requiring NDPAC to create a separate political committee to accept unlimited 

contributions to make independent expenditures will increase full and clear disclosure of 

NDPAC’s federal campaign activity. The Act’s disclosure requirements remain valid and 

enforceable as applied to independent campaign spending. See, e.g., Citizens United, 130 S. Ct. 

at 913-14 (upholding disclaimer and reporting requirements for electioneering communications 

as applied to Citizens United, citing government’s interest in provide electorate with 

information). And the D.C. Circuit has confirmed that the Act’s disclosure and organizational 

requirements for political committees are valid as applied to groups that make only independent 

expenditures. SpeechNow, 599 F.3d at 698 (citing public’s “interest in knowing who is speaking 

about a candidate and who is funding that speech” as well as “expos[ure of] violations of other 

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campaign finance restrictions, such as those barring contributions from foreign corporations or 

individuals”). 

 Disclosing plaintiffs’ independent expenditure activity by a separate legal entity will 

increase transparency to the public. If separate political committee reports are submitted to the 

Commission, voters will more easily be able to understand which of NDPAC’s contributors have 

given money to support its independent advocacy and which are supporting its direct 

contributions to candidates. Even if a contributor donates money “towards administrative 

expenses” to support NDPAC’s independent expenditures, the “public has an interest in 

knowing” who is helping to fund that speech. SpeechNow, 599 F.3d at 698. Similarly, if 

NDPAC’s independent expenditures are paid for by a separate political committee, that specific 

committee will be directly identified in the disclaimers that must appear in the communications 

themselves, see 2 U.S.C. § 441d, thus making it easier for the public or press to research the 

Commission’s databases and determine who is funding the political committee that sponsored 

the public communications. And because solicitations by political committees must also identify 

who has paid for the solicitation, id., persons who receive NDPAC’s solicitations will be more 

clearly informed of the exact recipient and use of their funds if they are told which political 

committee under the National Defense umbrella is seeking their money. 

In sum, replicating a system established for differentiating federal and nonfederal 

campaign activity is not constitutionally required here, given the dissimilar context of a political 

committee seeking to make direct contributions to federal candidates while simultaneously 

engaging in the solicitation and acceptance of unlimited — by federal or state law — 

contributions for independent expenditures. The differing schemes established to regulate these 

distinct contexts reflect the consideration that “these entities have differing structures and 

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purposes, and that they therefore may require different forms of regulation in order to protect the 

integrity of the electoral process.” CalMed, 453 U.S. at 201. 

C. Sections 441a(a)(1)(C) and 441a(a)(3) as Applied Are Closely Drawn to Avoid 

Unnecessary Abridgement of Plaintiffs’ Associational Freedoms 

As applied to plaintiffs, sections 441a(a)(1)(C) and 441a(a)(3) are closely drawn to avoid 

unnecessary abridgement of associational freedoms. See CalMed, 453 U.S. at 202-03 

(Blackmun, J., concurring). Indeed, plaintiffs are not “prevent[ed] . . . from joining together to 

exercise their First Amendment rights to speech and association” (PI Br. at 1). On the contrary, 

as indicated supra pp. 17-18, plaintiffs remain free to join together both to solicit unlimited 

amounts for the exclusive purpose of making independent expenditures and to accept source- and 

amount-limited contributions to make contributions to candidates. Plaintiffs simply must 

establish a separate, independent expenditure-only committee to solicit and accept unlimited 

contributions for independent expenditures. 

The Supreme Court has explained that “[d]isclaimer and disclosure requirements may 

burden the ability to speak, but they ‘impose no ceiling on campaign-related activities,’ and ‘do 

not prevent anyone from speaking,’” Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 

U.S. at 64; McConnell v. FEC, 540 U.S. 93, 201 (2003)) (internal quotation marks and brackets 

omitted). And the D.C. Circuit has specifically held that the organizational and disclosure 

burdens of an independent expenditure-only political committee are “minimal.” 

Because SpeechNow intends only to make independent expenditures, the 

additional reporting requirements that the FEC would impose on SpeechNow 

if it were a political committee are minimal. . . . Nor do the organizational 

requirements that SpeechNow protests, such as designating a treasurer and 

retaining records, impose much of an additional burden upon SpeechNow. . . . 

SpeechNow, 599 F.3d at 697. Indeed, it would require “a specious interpretation of the facts” 

before the Court, id., for a finding that establishing and maintaining a separate, independent 

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expenditure-only political committee is unduly burdensome. Carey has been operating two

political committees under the National Defense umbrella of entities for over eight years: 

plaintiff National Defense PAC and non-party National Defense Committee PAC. See supra

pp. 6-7.8

 By establishing those two committees and continuously reporting their receipts and 

disbursements for almost a decade, Carey has shown himself quite capable of operating two 

separate political committees. Plaintiffs have thus already accepted the expense of 

administration and regulatory compliance, they have appointed a treasurer, and they already are 

filing the requisite disclosures. See Citizens United, 130 S. Ct. at 897 (detailing burdens 

associated with forming PAC in the first instance). Moreover, in accordance with the 

Commission’s decision in the Club for Growth AO, the same person who serves as NDPAC’s 

treasurer could also serve as treasurer for an ND independent expenditure-only PAC, provided 

that the independent expenditure-only PAC does not engage in coordinated activity and complies 

with the requirements of the Commission’s conduct standards related to coordination in 

11 C.F.R. § 109.21(d).9

 Club for Growth AO, at *3 & n.7.

Finally, while NDPAC claimed in its AO Request the desire to “expand the scope of its 

activities” “[i]n response to the rulings in Citizens United v. FEC and SpeechNow v. FEC, as 

well as AO 2010-09 and AO 2010-11” (AO Request, at 2), plaintiffs have never offered any 

indication of why they are unable to conduct such activities as the Club for Growth intends to do 

                                                           

8

 From 2002 through 2009, National Defense Committee PAC was registered with the 

Commission as a “connected organization” of the National Defense Committee. See supra p. 7; 

FEC Exhs. 7-9. In 2009, National Defense Committee PAC indicated that Carey had incorrectly 

identified itself as having a “connected organization.” See supra p. 7; FEC Exh. 9. The two 

political committee entities, NDPAC and National Defense Committee PAC, have identified 

themselves as affiliated since 2009. See supra p. 7; FEC Exhs. 6, 9. 

9

 Plaintiffs have asserted that NDPAC “does not coordinate any of its activities with 

candidates or national, state, district or local political party committees or their agents as defined 

in 2 U.S.C. § 441a(a)(7)(B) and (C) and 11 C.F.R. § 109,” and that it “does not and will not 

coordinate its activities with other political committees.” (PI Br. at 8-9; Ver. Compl. ¶ 30.) 

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in accordance with the advisory opinion the Commission issued at its request. See Club for 

Growth AO, at *2. 

III. PLAINTIFFS HAVE FAILED TO SHOW IRREPARABLE HARM 

Plaintiffs also fail to meet their burden of demonstrating that they will suffer irreparable 

harm without the requested temporary relief, another showing plaintiffs must make clearly. 

Plaintiffs must “articulate a tangible injury that is either ‘certain and great’ or irreparable.” 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 298 (D.C. Cir. 2006). To obtain 

a preliminary injunction, “[a] litigant must do more than merely allege the violation of First 

Amendment rights” because “the finding of irreparable injury cannot meaningfully be rested on a 

mere contention of a litigant.” Wagner v. Taylor, 836 F.2d 566, 576 n.76 (D.C. Cir. 1987) 

(citation and internal quotation marks omitted); see also NTEU v. United States, 927 F.2d 1253, 

1254-55 (D.C. Cir. 1991). 

Instead, where a plaintiff alleges injury from a provision that may only potentially affect 

speech, “the plaintiff must establish a causal link between the injunction sought and the alleged 

injury,” i.e., “that the injunction will prevent the feared deprivation of free speech rights.” 

Chaplaincy, 454 F.3d at 301; (quoting Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 

349-50 (2d Cir. 2003)). This requirement sets a “high standard for irreparable injury.” Id. at 

297. The “injury must be both certain and great,” and “actual and not theoretical.” Wis. Gas Co. 

v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Plaintiffs must also “show that [t]he injury 

complained of [is] of such imminence that there is a clear and present need for equitable relief to 

prevent irreparable harm.” Id. (citation and internal quotation marks omitted). Further, the 

prospective injury must be “beyond remediation.” Chaplaincy, 454 F.3d at 297. 

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A. Plaintiffs’ Alleged Injuries Are Neither Actual Nor Certain 

 Plaintiffs fail to establish that they will be irreparably injured if they comply with the 

requirement that independent expenditures and contributions be conducted by different legal 

entities while this case is pending. Indeed, plaintiffs have several options for financing the 

advertisement they wish to run without violating the Act’s contribution limits. 

 Plaintiffs conclusorily allege that “[w]ithout the ability to solicit unlimited contributions 

to fund [independent expenditures], [NDPAC] will not be able to speak during the 2012 electoral 

season.” (Ver. Compl. ¶ 25; see PI Br. at 5-6.) However, plaintiffs could fully accomplish their 

plans while this case proceeds without accepting unlimited contributions into the NDPAC 

multicandidate political committee. Plaintiffs could fund the planned $6,300 expenditure in at 

least four obvious ways: 

• NDPAC could accept a $5,000 contribution from Eustis and combine it with $1,300 from 

the PAC’s existing funds. In so doing, the committee would not violate the contribution 

limit in 2 U.S.C. § 441a(1)(C). 

• NDPAC could accept $5,000 from Eustis and combine it with $1,300 from another single 

donor or combination of donors. See Buckley, 424 U.S. at 21-22 (The “overall effect of 

the Act’s contribution ceilings is merely to require candidates and political committees to 

raise funds from a greater number of persons . . . .”). 

• Consistent with SpeechNow and the Club for Growth and Commonsense Ten advisory 

opinions, NDPAC could set up a separate entity that accepts contributions of unlimited 

amounts, including $6,300 from Eustis. See SpeechNow, 599 F.3d at 696; Commonsense 

Ten AO, at *1-*2; Club for Growth AO, at *2. 

• Eustis could spend the $6,300 “on direct political expression” rather than “contribut[ing] 

amounts greater than the statutory limits.” Buckley, 424 U.S. at 22. That is to say, Eustis 

could simply pay Newsmax to run the ad himself. 

Receiving only about 5/6th of Eustis’s intended contribution does not irreparably harm NDPAC 

given these other available avenues. Nor does it irreparably harm Eustis, for he is still able to 

make the “undifferentiated, symbolic act of contributing,” Buckley, 424 U.S. at 21, or pay for the 

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ad himself. And plaintiffs could avoid any diminution in funds from Eustis by creating an 

independent expenditure-only committee, similar to the two National Defense political 

committees that Carey has demonstrably been able to oversee. 

Plaintiffs make virtually no demonstration that they will be irreparably harmed without 

an injunction. (See PI Br. at 29.) Instead, they simply cite Elrod v. Burns, 427 U.S. 347 (1976) 

(plurality), but that case does not support their position. Elrod held that employee dismissal 

based on political party affiliation was an unconstitutional infringement on employees’ First 

Amendment rights. Id. at 372. But that holding rested on the specific finding that government 

employees had already been “threatened with discharge or had agreed to provide support for the 

Democratic Party in order to avoid discharge,” and it was “clear therefore that First Amendment 

interests were threatened or in fact being impaired at the time relief was sought” — i.e., an actual 

or imminent harm. Id. at 373. Here, however, plaintiffs have alleged no governmental action 

against them whatsoever. In fact, the only governmental action has been the Commission’s vote 

failing to issue the advisory opinion that plaintiffs had sought. (See Ver. Compl. Exh. D.) But 

this Commission inaction bears no resemblance to the kind of actual or certain threats that were 

present in Elrod. 

 Plaintiffs’ claimed need for preliminary relief is also belied by their past conduct. They 

have raised only a handful of contributions that were up to the contribution limits, and NDPAC 

has never before in its 11-year history run independent expenditure advertising that in the 

aggregate exceeded $200 in a calendar year. FEC, Disclosure Reports (FEC Exhs. 13 at 1-4, 14 

at 1-6). See 2 U.S.C. § 434(b)(4)(H)(iii), (6)(B)(iii) (requiring disclosure of such independent 

expenditures). NDPAC has received a $5,000 contribution only a few times, and it has received 

none in the past five years. Likewise, plaintiff Kelly Eustis has never made a contribution in 

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34

excess of $200 to a federal candidate or committee. FEC, Disclosure Database (FEC Exh. 11). 

Given NDPAC’s long history without many contributions up to the limit and its complete lack of 

experience making independent expenditures, plaintiffs cannot demonstrate the certain, actual 

harm needed for the extraordinary relief they seek. 

The D.C. Circuit and other courts have clearly explained that Elrod did not eliminate a 

First Amendment plaintiff’s burden to show that its interests are actually threatened or in fact 

being impaired. NTEU, 927 F.2d at 1254-55; Wagner, 836 F.2d at 576-77 n.76; see also 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 919 F.2d 

148, 149-150 (D.C. Cir. 1990) (rejecting preliminary injunction sought by Ku Klux Klan to 

require local government to issue parade permit for planned march longer than one for which it 

had received permit, finding Elrod not controlling on irreparable harm because shorter parade 

allowed in permit was not total denial of First Amendment rights); Wis. Right to Life, Inc. v. 

FEC, Civ. No. 04-1260, 2004 WL 3622736, at *4 (D.D.C. Aug. 17, 2004) (rejecting WRTL’s 

reliance on Elrod); Smith v. Frye, 488 F.3d 263, 271 (4th Cir. 2007) (allegation does not 

“necessarily, by itself, state a First Amendment claim under Elrod”); Hohe v. Casey, 868 F.2d 

69, 72-73 (3d Cir. 1989) (“[A]ssertion of First Amendment rights does not automatically require 

a finding of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a 

likelihood of success on the merits.”). 

 “[T]he basis of injunctive relief in the federal courts has always been irreparable harm.” 

Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted). Because plaintiffs have made “no 

showing of irreparable injury, ‘that alone is sufficient’ for a district court to refuse to grant 

preliminary injunctive relief.” Hicks v. Bush, 397 F. Supp. 2d 36, 40 (D.D.C. 2005) (citing 

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)); see also 

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Wis. Gas, 758 F.2d at 674 (“[A]nalysis of [irreparable harm] disposes of these motions . . . .”). 

Since plaintiffs are unable to establish any such constitutional burden that is actual and certain, 

they clearly fall short of meeting the “high standard” necessary for a preliminary injunction. 

B. Plaintiffs Face No Imminent Injury 

Plaintiffs also fail to establish that “[t]he injury complained of [is] of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas, 758 

F.2d at 674 (internal citation and quotation marks omitted). As explained supra p. 32, plaintiffs 

have numerous ways to avoid harm to their intended campaign activity, and any potential harm 

from governmental action is far off and speculative. NDPAC has plans to raise funds above the 

contribution limits and then run an independent expenditure advertisement “in the months 

leading up to the November 2012 elections” and perhaps others “in the months leading up to the 

2012 primary and general elections.” (PI Br. at 6-7.) Neither this activity, nor any potential 

injury from a Commission enforcement proceeding, is imminent. There is thus no “clear and 

present need for equitable relief.” Wis. Gas, 758 F.2d at 674 (citation and internal quotation 

marks omitted). 

Plaintiffs argue that they are “chilled due to fear of prosecution by the Federal Election 

Commission” (PI Br. at 33), but they make no showing that any action against them by the 

Commission is imminent.10 Congress carefully designed the Act’s enforcement procedures “to 

                                                           

10 The vote by three of the six sitting Commissioners to grant NDPAC’s advisory opinion 

request suggests that it is highly unlikely that the current Commission would reach a majority 

vote (of at least four Commissioners) to bring an enforcement action against plaintiffs in the 

event that an administrative complaint were filed against them in the future. See generally 

2 U.S.C. §§ 437c(c), 437g(a)(6). The D.C. Circuit found that a party confronting such a split 

vote is “not faced with any present danger of an enforcement proceeding” but nevertheless 

possesses standing to challenge a Commission rule. See Chamber of Commerce v. FEC, 69 F.3d 

600, 603 (D.C. Cir. 1995). To be sure, a new Commissioner or a change of mind by a current 

Commissioner could lead to an enforcement action against NDPAC, and the Commission 

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ensure fairness . . . to respondents.” See Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). 

As Congress presumably was aware, under the Act’s elaborate enforcement procedures — which 

include multiple opportunities for a respondent to file briefs and permit only a court to impose a 

remedy on a respondent unwilling to agree to one — “complaints filed shortly before elections 

. . . might not be investigated and prosecuted until after the event.” Id. at 559 (recounting 

statutory enforcement procedures). Accordingly, the likelihood that plaintiffs would suffer 

anything beyond an investigative proceeding during the life of a preliminary injunction is 

remote. Wis. Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 2666017, at *5 (D.D.C. Sept. 14, 

2006) (“[A]n FEC administrative investigation . . . carries little threat of imminent or certain 

sanction.”). Even if an administrative proceeding during that time then concluded with the 

institution of an enforcement suit against plaintiffs, they would then have a full opportunity to 

present their constitutional arguments de novo to a federal court before they could be subject to 

any penalties for their conduct. See generally 2 U.S.C. § 437g(a)(4)-(6). That distant eventuality 

is manifestly not imminent. Wis. Right to Life, 2006 WL 2666017, at *5 (“It is clear that even if 

an administrative investigation is opened, the investigation likely would not conclude until long 

after the . . . ad has been broadcast.”). 

C. None of Plaintiffs’ Alleged Harms Are Beyond Remediation 

Finally, plaintiffs must demonstrate that their alleged injury is “beyond remediation,” 

Chaplaincy, 454 F.3d at 297, or “irreparable,” Wis. Gas, 758 F.2d at 674. As the D.C. Circuit 

has explained, “[m]ere injuries, however substantial, in terms of money, time and energy 

necessarily expended in the absence of a stay are not enough. The possibility that adequate 

                                                                                                                                                                                               

therefore does not challenge plaintiffs’ standing to bring this action. Id. To obtain a preliminary 

injunction, however, a “present danger of an enforcement proceeding” is precisely the showing 

of imminent danger that plaintiffs must make, but cannot. 

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37

compensatory or other corrective relief will be available at a later date, in the ordinary course of 

litigation weighs heavily against a claim of irreparable harm.” Chaplaincy, 454 F.3d at 297-98. 

 None of plaintiffs’ claimed harms are irreparable. For example, the incremental 

additional administrative burden of setting up a new political committee and complying with the 

requirements of the FECA would constitute “[m]ere injuries” of “money, time and energy.” Id. 

at 297. And having to respond to an administrative enforcement proceeding would not create 

irreparable harm. FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980) (“Mere litigation 

expense, even substantial and unrecoupable cost, does not constitute irreparable injury.”) 

(internal quotation marks and citation omitted); see also Sears Roebuck & Co. v. NLRB, 473 F.2d 

91, 93 (D.C. Cir. 1972). Thus, any burden associated with responding to a possible future FEC 

enforcement proceeding cannot constitute irreparable harm warranting preliminary injunctive 

relief. 

IV. THE RELIEF REQUESTED BY PLAINTIFFS WOULD HARM THE 

GOVERNMENT AND UNDERCUT THE PUBLIC INTEREST 

Permitting plaintiffs to fund independent expenditures through an existing political 

committee that also makes contributions to candidates would undermine the anti-corruption 

purpose and disclosure requirements in the Act. This would hinder the public interest and 

substantially injure the government. To prevail on their application for a preliminary injunction, 

plaintiffs must establish precisely the opposite. CityFed. Fin. Corp., 58 F.3d at 746. Because of 

the strong public and Commission interest in enforcement of the federal campaign finance laws, 

plaintiffs’ proposed injunction would substantially injure other parties. 

The statutory provisions challenged by plaintiffs have been on the books for more than 

thirty years. Indeed, the requirements for registration and reporting by political committees in 

2 U.S.C. §§ 432, 433 and 434, and the definition of political committee in 2 U.S.C. § 431(4) 

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were enacted by Congress in 1971.11 The individual contribution limits in 2 U.S.C. 

§ 441a(a)(1)(C) and 441a(a)(3)(B) were enacted in 1974 and 1976.12 The Act’s contribution 

limits and registration and reporting provisions were generally upheld by the Supreme Court in 

Buckley in 1976. 

“The public has a strong interest in the enforcement of laws passed by Congress and 

signed by the President.” Wis. Right to Life, 2006 WL 2666017, at *5. There is a “presumption 

of constitutionality which attaches to every Act of Congress,” and that presumption is “an equity 

to be considered in favor of . . . [the government] in balancing hardships.” Walters, 468 U.S. at 

1324. As Chief Justice Rehnquist stated in the similar context of a requested injunction pending 

appeal, “barring the enforcement of an Act of Congress would be an extraordinary remedy.” 

Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305, 1305 (2004) (Rehnquist, C.J., in chambers) 

(citation omitted). 

The limits on contributions to political committees and the registration and reporting 

requirements for political committees relate to the public interest in preventing corruption and its 

appearance. See supra pp. 14-17, 25-27. In addition, permitting NDPAC to fund both its 

contributions and independent expenditures through a single political committee would reduce 

transparency to the public of NDPAC’s financing and activities. See supra pp. 27-28. Thus, the 

relief sought by plaintiffs would interfere with the achievement of Congress’s goals of 

“‘shed[ding] the light of publicity’ on campaign financing,” McConnell, 540 U.S. at 231 

(quoting Buckley, 424 U.S. at 81), and protecting the “‘First Amendment interests of individual 

                                                           

11 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, §§ 301-306, 86 Stat. 3, 

11-16 (Feb. 7, 1972). 

12 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101, 

88 Stat. 1263 (Oct. 15, 1974); Federal Election Campaign Act Amendments of 1976, Pub. L. No. 

94-283, Title I, § 112(2), 90 Stat. 475 (May 11, 1976). 

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citizens seeking to make informed choices in the political marketplace,’” id. at 197 (quoting 

McConnell, 251 F. Supp. 2d 176, 237 (D.D.C. 2003)). 

Granting plaintiffs’ motion for preliminary injunction would also “substantially injure” 

the government and the public. CityFed Fin., 58 F.3d at 746. As Justice Rehnquist explained, 

“any time a State is enjoined by a court from effectuating statutes enacted by representatives of 

its people, it suffers . . . injury.” New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 

1345, 1351 (1977) (Rehnquist, J., in chambers). The government and the public are similarly 

harmed when a court proscribes enforcement of a federal statute. “[E]njoining the FEC from 

performing its statutory duty constitutes a substantial injury to the FEC.” Wis. Right to Life, 

2006 WL 2666017, at *5; see also Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 

81, 90 (D.D.C. 2006). 

CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court deny 

plaintiffs’ motion for a preliminary injunction. 

 Respectfully submitted, 

Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

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

Associate General Counsel 

dkolker@fec.gov 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

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

Attorney 

gmueller@fec.gov 

Case 1:11-cv-00259-RMC Document 11 Filed 03/07/11 Page 48 of 49
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/s/ Erin Chlopak 

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

Attorney 

echlopak@fec.gov 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

March 7, 2011 

 

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