UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF LOUISIANA, ) 

et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) No. 1:15-cv- 01241 (CRC-SS-TSC) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

BRIEF OF AMICI CURIAE PUBLIC CITIZEN, INC., 

DEMOCRACY 21, AND CAMPAIGN LEGAL CENTER 

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY 

JUDGMENT AND IN SUPPORT OF DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT 

Seth P. Waxman, DC Bar No. 257337 Scott L. Nelson, DC Bar No. 413548 

Catherine M.A. Carroll, DC Bar No. 497890 PUBLIC CITIZEN LITIGATION GROUP

WILMER CUTLER PICKERING 1600 20th Street NW 

 HALE AND DORR LLP Washington, DC 20009 

1875 Pennsylvania Avenue NW (202) 588-1000 

Washington, DC 20006 

(202) 663-6000 Fred Wertheimer, DC Bar No. 154211 

 DEMOCRACY 21 

J. Gerald Hebert, DC Bar No. 447676 2000 Massachusetts Avenue NW 

Trevor Potter, DC Bar No. 413778 Washington, DC 20036 

Paul S. Ryan, DC Bar No. 502514 (202) 355-9600 

Tara Malloy, DC Bar No. 988280 

CAMPAIGN LEGAL CENTER Donald J. Simon, DC Bar No. 256388 

1411 K Street NW, Suite 1400 SONOSKY, CHAMBERS, SACHSE, 

Washington, DC 20005 ENDRESON & PERRY, LLP 

(202) 736-2200 1425 K Street NW 

 Suite 600 

 Washington, DC 20005 

 (202) 682-0240 

Attorneys for Amici Curiae

March 25, 2016 

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CORPORATE DISCLOSURE STATEMENT 

Amicus curiae Public Citizen, Inc., is a nonprofit, non-stock corporation. No 

other entity has any form of ownership interest in it. 

Amicus curiae Democracy 21 is a nonprofit, non-stock corporation. No other 

entity has any form of ownership interest in it. 

Amicus curiae Campaign Legal Center is a nonprofit, non-stock corporation. 

No other entity has any form of ownership interest in it. 

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TABLE OF CONTENTS 

CORPORATE DISCLOSURE STATEMENT ................................................................ i 

TABLE OF AUTHORITIES ......................................................................................... iii 

INTEREST OF AMICI CURIAE ................................................................................... 1 

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

ARGUMENT .................................................................................................................. 5 

I. McConnell and RNC are still controlling authority. ......................................... 5 

II. The challenged provisions limit contributions. ................................................ 10 

III. The Louisiana Republicans’ focus on the “independence” of their spending 

reflects a fundamental misunderstanding of the interest served by the 

contribution limits. ........................................................................................... 13 

IV. The McCutcheon plurality’s view of corruption does not control the 

outcome of this case. ......................................................................................... 17 

V. The Louisiana Republicans’ arguments would have extraordinarily farreaching negative consequences. ...................................................................... 22 

CONCLUSION ............................................................................................................. 24 

 

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TABLE OF AUTHORITIES 

Cases: 

Agostini v. Felton, 

521 U.S. 203 (1997) ....................................................................................... 9, 13 

Buckley v. Valeo, 

424 U.S. 1 (1976) ................................................................. 10, 11, 12, 13, 20, 21 

Citizens United v. FEC, 

558 U.S. 310 (2010) ........................................................6, 7, 9, 12, 18, 19, 20, 21 

Colo. Repub. Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) ........................................................................................... 14 

CTS Corp. v. Dynamics Corp. of Am., 

481 U.S. 69 (1987) ............................................................................................. 22 

FEC v. Beaumont, 

539 U.S. 146 (2003) ........................................................................................... 13 

FEC v. Colo. Repub. Fed. Campaign Comm., 

533 U.S. 431 (2001) ..................................................................................... 10, 14 

McConnell v. FEC, 

540 U.S. 93 (2003) ...... 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20, 21, 22 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ................................ 4, 9, 10, 12, 13, 17, 18, 19, 20, 21, 22

Nat’l Cable & Telecomm. Assn. v. Brand X Internet Servs., 

545 U.S. 967 (2005) ............................................................................................. 9 

Repub. Nat’l Comm. v. FEC, 

561 U.S. 1040 (2010), aff’g 698 F. Supp. 2d 150 

(D.D.C. 2010) ...................... 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18, 19, 20, 21 

SpeechNow.Org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ........................................................................... 16 

United States v. Brobst, 

558 F.3d 982 (9th Cir. 2009) ............................................................................. 22 

United States v. Epps, 

707 F.3d 337 (D.C. Cir. 2013) ........................................................................... 22 

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Wisc. Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) ............................................................................................. 8 

Other: 

Repub. Nat’l Comm. v. FEC, No. 09-1287, Jurisdictional Statement 

(U.S. filed April 23, 2010) ................................................................................... 7 

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INTEREST OF AMICI CURIAE1

As set forth more fully in their motion for leave to file this brief, amici curiae 

Public Citizen, Inc., Democracy 21, and Campaign Legal Center are organizations 

dedicated to fighting the corrupting influence of money in our electoral politics. 

They have devoted years of effort to promoting campaign finance reform legislation, 

encouraging appropriate implementation of that legislation by the Federal Election 

Commission (FEC), and participating as parties, amici curiae and counsel in 

litigation over the construction and constitutionality of campaign finance laws and 

regulations at all levels of the federal court system and in state courts as well. They 

submit this brief as amici curiae because of their concern about the harmful effects 

that could result if this Court were to strike down the contribution limits at issue, 

which prevent state and local party committees from raising unlimited soft money 

to fund activities affecting federal elections and benefiting federal candidates, and 

because of their belief that a concise discussion of the applicable legal principles 

could assist this Court in resolving this important case. 

INTRODUCTION 

In this action, the Republican Party of Louisiana and two of its local 

committees (collectively, “the Louisiana Republicans”) raise what they describe as a 

series of as-applied and facial challenges to provisions of the Bipartisan Campaign 

 1 This brief was not written in whole or in part by counsel for a party, and no 

one other than the amici curiae and their counsel contributed money intended to 

fund the preparation of the brief. Counsel for the parties have stated that they do 

not oppose our motion for leave to file this brief. 

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Reform Act (BCRA) limiting the sources and amounts of contributions that state 

and local party committees may use to finance “federal election activity” as defined 

in BCRA. The Supreme Court upheld those provisions, which prohibit the use of 

“soft money”—that is, contributions not subject to the source and amount limits of 

the Federal Election Campaign Act (FECA)—against facial constitutional 

challenges in McConnell v. FEC, 540 U.S. 93, 161–73 (2003), and as-applied 

challenges in Republican National Committee v. FEC, 561 U.S. 1040 (2010), aff’g

698 F. Supp. 2d 150 (D.D.C. 2010) (RNC). Although the Louisiana Republicans in 

this case claim to challenge BCRA’s prohibition on state and local parties’ use of soft 

money for federal election activity as applied to an array of various types of federal 

election activity, their challenges boil down to one basic, and erroneous, proposition: 

that the First Amendment forbids Congress to limit contributions used by state and 

local political parties for federal election activities that are conducted independently 

of the candidates for federal office whose candidacies they benefit. Acceptance of 

that proposition would blow an enormous hole in the anticorruption protections 

erected by BCRA, as its logical implication would be that neither the federal 

government nor the states could impose contribution limits on funds used by 

political parties at any level for any independent spending affecting elections. The 

result would be a return to the era of unlimited use of soft money by the parties that 

BCRA sought to end. 

The Louisiana Republicans’ assertion that Congress cannot limit 

contributions used by state and local parties for “independent” federal election 

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activity does not square with the decisions in McConnell and RNC rejecting facial 

and as-applied constitutional challenges to the same BCRA soft-money provisions. 

In neither case did the decisions sustaining the soft-money provisions rest on 

whether a state party’s federal election activity was coordinated with or 

independent of a federal candidate, and the Louisiana Republicans’ current reliance 

on that consideration is inconsistent with the reasoning of both decisions. 

The Louisiana Republicans’ arguments not only disregard controlling 

authority, but also rest on a number of false premises. The Louisiana Republicans 

assert that BCRA’s limits on the sources and amounts of contributions that state 

and local parties can use for federal election activity is not really a contribution 

limit, but a spending limit subject to strict First Amendment scrutiny. That 

argument was rejected both in McConnell and in RNC, and it reflects a 

fundamental misunderstanding of the difference between contribution and spending 

limits. The BCRA provisions at issue do not limit how much state and local parties 

can spend on federal election activity. Rather, they provide that the funds used for 

such spending must be raised in limited amounts, and only from sources 

permissible under FECA. That is what a contribution limit is. 

The Republicans also contend that because the spending in which they wish 

to engage using contributions not subject to FECA limits will be “independent,” the 

spending cannot pose a risk of corrupting or appearing to corrupt candidates. That 

argument overlooks that the threat of actual or apparent corruption at which the 

state-party soft money provisions are directed does not come from the party 

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spending, but from the contributions themselves. It is the close and unique 

relationship between parties and their candidates, which differentiates parties from 

other campaign spenders, that creates the threat. In light of that relationship, the 

possibility of corruption (and of circumvention of other anticorruption measures) 

inheres in unlimited contributions to parties and exists regardless of whether the 

party proceeds to spend those funds independently or in coordination with the 

candidate. In other words, the evil the statute targets is not that parties will 

corrupt candidates by spending to support their candidacies, but that contributors 

will corrupt candidates, or appear to corrupt them, by contributing to entities that 

are part of a common political enterprise with the candidates. 

Finally, the Louisiana Republicans wrongly contend that McConnell and 

RNC have been superseded by a fundamentally different conception of the 

government’s anti-corruption interest exemplified in the plurality opinion in 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014). Even if statements in an opinion 

subscribed to by four Justices were binding on this Court, however, the soft money 

restrictions are fully compatible with the McCutcheon plurality’s view of corruption 

because they rest on a record demonstrating that very large contributions to party 

organizations present opportunities for the reality or appearance of prearrangement 

and corrupt bargains that involve more than mere “ingratiation” and “access.” See

id. at 1441. 

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ARGUMENT 

I. McConnell and RNC are still controlling authority. 

The Supreme Court has twice affirmed the constitutionality of BCRA’s stateparty soft money provisions. See McConnell, 540 U.S. at 161–73; RNC, 561 U.S. 

1040. In neither case did the Court’s holding that Congress may limit the 

contributions that state and local parties use for federal election activity rest in any 

way on the premise that federal election activity expenditures were coordinated 

with federal candidates. The Louisiana Republicans’ assertion that the soft money 

provisions cannot be applied to contributions used for “independent” federal election 

activity thus cannot be squared with either Supreme Court ruling. 

The Supreme Court’s holding in McConnell that the soft money provisions 

are facially constitutional rested on a number of bases, including: (1) the Court’s 

finding that the McConnell record substantiated the view that the close relationship 

between national political parties and their federal candidates made contributions 

to the parties a source of potential corruption, or its appearance, regardless of how 

the funds were ultimately used, see 540 U.S. at 143–56; (2) the Court’s finding that 

Congress reasonably concluded that “state [party] committees function as an 

alternative avenue [to national party committees] for precisely the same corrupting 

forces,” id. at 165, and that failing to restrict contributions used by state parties for 

activities affecting federal elections would thus allow ready circumvention of 

regulation of contributions to national parties, id. at 165–66; and (3) the Court’s 

determination that the soft money provisions were not overbroad because their 

limitation to funding of federal election activity was “narrowly focused on regulating 

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contributions that pose the greatest risk of ... corruption: those contributions to 

state and local parties that can be used to benefit federal candidates directly.” Id. at 

167. None of the Court’s reasoning was premised on the idea that the state and local 

parties’ federal election activity was coordinated with or otherwise not independent 

of federal candidates. See also id. at 167–71. 

In RNC, state and local Republican party committees joined in an “asapplied” challenge to BCRA’s state-party soft money provisions, contending that 

they were unconstitutional as applied to federal election activity that did not 

“target” the campaigns of specific federal candidates. A three-judge district court 

rejected that argument, reasoning that McConnell, in holding that the state-party 

soft money provisions were not overbroad, had considered and “squarely rejected” 

the argument that the provisions were unconstitutional as applied to activities that 

ostensibly “‘pose[d] no conceivable risk of corrupting or appearing to corrupt federal 

officeholders.’” 698 F. Supp. 2d at 161 (quoting McConnell, 540 U.S. at 166). The 

three-judge court concluded that because McConnell’s holding that the provisions 

were facially constitutional rested on the view that the soft-money provisions could 

constitutionally be applied to the full range of federal election activity as defined in 

BCRA, the as-applied challenge was inconsistent with McConnell’s reasoning. 

The three-judge court also rejected the RNC plaintiffs’ argument that 

McConnell’s soft-money holding had been undermined by Citizens United v. FEC, 

558 U.S. 310 (2010). The court pointed out that “Citizens United did not disturb 

McConnell’s holding with respect to the constitutionality of BCRA’s limits on 

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contributions to political parties.” 698 F. Supp. 2d at 153 (citing Citizens United, 

558 U.S. at 361). 

The parties in RNC appealed the three-judge court’s ruling to the Supreme 

Court and argued, as the Louisiana Republicans do here, that “the government 

must demonstrate that each application of BCRA’s prohibition on nonfederal money 

targets an activity that, if funded by nonfederal money, would create an appreciable 

risk of actual or apparent quid pro quo corruption of federal officeholders.” RNC v. 

FEC, No. 09-1287, Jurisdictional Statement, at 10 (U.S. filed April 23, 2010). The 

appellants, much like the Louisiana Republicans here, invoked Citizens United’s 

holding that independent expenditures by corporations cannot be limited on an 

anti-corruption rationale and argued that that holding supported their contention 

that contribution limits could not be applied to state and local parties’ federal 

election activities that were not “targeted” at specific federal candidates: 

Citizens United makes clear that independent expenditures—no 

matter their size—do not create a risk of quid pro quo corruption. It 

follows, a fortiori, that parties’ solicitation and expenditure of 

donations of nonfederal money do not have sufficient quid pro quo 

potential to warrant stifling the speech and associational rights of 

parties and their members. 

Id. at 19. The Supreme Court rejected those arguments and summarily affirmed the 

three-judge court’s decision. 561 U.S. 1040. 

Here, the Louisiana Republicans substitute “independent” federal election 

activity, as opposed to “non-targeted” federal election activity, as the category to 

which they claim the soft-money provisions cannot be applied. But the three-judge 

court’s reason for rejecting the as-applied challenge in RNC is equally applicable 

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here: “[N]othing in McConnell,” the court observed in RNC, “suggests that the 

question whether a state or local party’s communication implicates the federal anticorruption interest depends on whether the communication is ‘targeted’ at federal 

elections.” 698 F. Supp. 2d at 161; see also id. at 162 (“The Supreme Court made 

clear that whether § 323(b) can be constitutionally applied to a particular state or 

local party activity depends, not on whether the party's primary ‘target’ is federal, 

but on whether the activity would provide a direct benefit to federal candidates.”). 

Likewise, nothing in McConnell suggests that whether a state or local party’s 

federal election activity may be subjected to contribution limits depends on whether 

it is coordinated with or independent of a federal candidate. Rather, whether 

contributions may constitutionally be limited depends on whether they are used for 

federal election activity that, as defined in BCRA, directly benefits federal 

candidates. 

McConnell and RNC thus foreclose this purported as-applied challenge. As 

the court explained in RNC, a decision upholding a statute on its face does not bar 

an as-applied challenge as long as the challenge does not contradict the basis on 

which the Court upheld the statute, see 698 F. Supp. 2d at 157 (citing Wisconsin 

Right to Life, Inc. v. FEC, 546 U.S. 410, 412 (2006)), but “a plaintiff cannot 

successfully bring an as-applied challenge to a statutory provision based on the 

same factual and legal arguments the Supreme Court expressly considered when 

rejecting a facial challenge to that provision. Doing so is not so much an as-applied 

challenge as it is an argument for overruling a precedent.” Id. As in RNC, “the asCase 1:15-cv-01241-CRC-SS-TSC Document 51 Filed 03/25/16 Page 13 of 30
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applied arguments raised against § 323(b) are essentially the same arguments 

considered and rejected in McConnell.” Id. at 161. They are also essentially the 

same arguments considered and rejected in RNC. “There is nothing substantially 

new presented in plaintiffs’ as-applied challenge to § 323(b).” Id. 

Just as the RNC plaintiffs sought to avoid McConnell by arguing that it had 

been undercut by Citizens United, the Louisiana Republicans argue that this Court 

may disregard McConnell and RNC because their holdings concerning the softmoney provisions have been undermined by the reasoning of the plurality opinion in 

McCutcheon v. FEC, 134 S. Ct. 1434. The three-judge court’s answer to the RNC

plaintiffs’ reliance on Citizens United—that that decision left McConnell’s softmoney holding untouched, see 698 F. Supp. 2d at 153 (citing Citizens United, 558 

U.S. at 361)—is equally applicable here. The McCutcheon plurality stated 

unequivocally that “[o]ur holding ... clearly does not overrule McConnell’s holding 

about soft money.” 134 S. Ct. at 1451 n.6. 

The Supreme Court has pointedly stated that lower federal courts lack 

authority to determine that “more recent cases have, by implication, overruled an 

earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Lower courts are 

required “to adhere to [the Supreme Court’s] directly controlling precedents, even 

those that rest on reasons rejected in other decisions.” Nat’l Cable & Telecomm. 

Assn. v. Brand X Internet Servs., 545 U.S. 967, 986 (2005). The three-judge court in 

RNC thus correctly recognized that it had no power to “get ahead of the Supreme 

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money holding “as the Court sees fit.” 698 F. Supp. 2d at 160. The wisdom of that 

decision was validated when the Supreme Court did not “see fit” to alter 

McConnell’s approval of the soft-money provisions and summarily affirmed the 

three-judge court. Likewise, here, the four-Justice opinion in McCutcheon does not 

undermine McConnell’s premises (see infra at 17–22), but even if it did, it would 

still be up to the Supreme Court to determine whether McConnell’s reasons for 

upholding the application of the soft-money provisions to the full range of federal 

election activity in which state and local parties engage remain sound. 

II. The challenged provisions limit contributions. 

In urging this Court to disregard McConnell and RNC and strike down 

BCRA’s soft-money provisions as applied to the funding of “independent” federal 

election activity, the Louisiana Republicans posit that the provisions are actually 

spending limits subject to strict scrutiny, not contribution limits subject to less 

demanding First Amendment scrutiny. See Buckley v. Valeo, 424 U.S. 1, 20–25 

(1976). That erroneous argument is foreclosed by directly applicable precedent. 

The challenged provisions do not limit the amount state and local parties 

may spend on federal election activity. State and local parties are perfectly free to 

spend as much as they want as long as the spending is not coordinated with federal 

candidates. (Coordinated spending is generally treated as a contribution to the 

candidate and is subject to limits that are not challenged here. See FEC v. Colo. 

Repub. Fed. Campaign Comm., 533 U.S. 431 (2001) (Colorado II).) BCRA limits the 

sources and amounts of contributions that the parties may accept and use for 

federal election purposes, not the total amount of contributions that the parties may 

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accumulate and spend. If words are to retain their meaning, such provisions are 

contribution limits, not spending limits. To be sure, the statute applies those 

contribution limits only to funds used for certain purposes (that is, federal election 

activity, as well as express advocacy involving federal candidates and contributions 

to federal candidates). But from FECA’s very beginnings, contribution limits have 

applied only to funds raised for purposes related to federal elections: Even the limits 

on contributions to federal candidates only apply to contributions to be used to 

influence federal elections, not to gifts intended to be used for other purposes. That 

does not mean they are not contribution limits. 

Not surprisingly, then, courts have repeatedly rejected the exact argument 

the Louisiana Republicans press here. In McConnell, the Supreme Court addressed 

the contention that the state-party soft money provisions should be treated as 

spending limits subject to strict scrutiny, and concluded that although BCRA’s 

state-party soft money provision “prohibits state party committees from spending 

nonfederal money on federal election activities,” it does not “in any way limit[] the 

total amount of money parties can spend. ... Rather, [it] simply limit[s] the source 

and individual amount of donations. That [it] do[es] so by prohibiting the spending 

of soft money does not render [it an] expenditure limitation[].” 540 U.S. at 139. 

McConnell therefore sustained the provisions under the level of scrutiny applicable 

to contribution limits under Buckley. 

In RNC, the three-judge court faced a rehash of the same argument. Like the 

Louisiana Republicans here, the plaintiffs in RNC argued that, as applied to their 

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proposed spending on federal election activity that was not “targeted” at federal 

candidates, the contribution limits imposed by BCRA would “function as 

expenditure limits.” 698 F. Supp. 2d at 155. The three-judge court, in language 

equally applicable here, held that the RNC plaintiffs’ “argument flies in the face of 

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

contributions to candidates and parties does not depend on how the candidate or 

party chooses to spend the money or to structure its finances.” Id. The three-judge 

court further noted that the majority opinion in Citizens United “expressly left 

intact this portion of McConnell.” Id. The RNC court therefore applied the “less 

rigorous scrutiny” applicable to “limits on contributions.” Id. 

The Louisiana Republicans ask this Court to repudiate these precedents and 

treat the contribution limits applicable to state and local party committees as 

spending limits because, in McCutcheon, the plurality opinion described the 

contribution limits at issue there as implicating rights to engage in “speech.” See, 

e.g., 134 S. Ct. at 1449. But the McCutcheon plurality’s use of the term “speech” did 

not purport to change the standard of scrutiny applicable to contribution limits. On 

the contrary, the plurality opinion expressly declined to “revisit Buckley’s 

distinction between contributions and expenditures and the corollary distinction in 

the applicable standards of review,” id. at 1445, and it concluded that the aggregate 

limits at issue failed the less rigorous standard of scrutiny applicable to 

contribution limits under Buckley. See id. at 1446. Indeed, the separate opinion of 

Justice Thomas, who cast the fifth vote to strike down the aggregate limits, 

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criticized the plurality for adhering to Buckley’s standard of scrutiny for 

contribution limits. See id. at 1464 (Thomas, J., concurring in the judgment). 

The Louisiana Republicans’ argument thus rests on the supposition that the 

four Justices in the McCutcheon plurality somehow overruled opinions that they 

specifically disavowed overruling. If a lower court lacks authority to hold that the 

Supreme Court has overruled precedents by implication, see Agostini, 521 U.S. at 

237, it certainly cannot disregard precedents that the Supreme Court has explicitly

left intact. Thus, contribution limits are still contribution limits, and they are still 

subject to Buckley’s “relatively complaisant review under the First Amendment,” 

FEC v. Beaumont, 539 U.S. 146, 161 (2003). There is no reason to think there is a 

majority on the Supreme Court to change that settled law, and even if there were, it 

would be up to that Court, not this Court, to do so. 

III. The Louisiana Republicans’ focus on the “independence” of their 

spending reflects a fundamental misunderstanding of the interest 

served by the contribution limits. 

The Louisiana Republicans rely heavily on the assertion that because the 

Supreme Court has held that independent expenditures themselves do not pose a 

sufficient risk of corruption to justify restricting them, the contribution limits 

imposed by BCRA must be unconstitutional as applied to funds to be used for the 

party committees’ independent spending on federal election activity. That argument 

fundamentally misperceives the rationale for the contribution limits, which is not 

that a political party’s spending will corrupt its own candidates, but that large 

contributors to the party pose a real risk of corrupting, or appearing to corrupt, the 

party’s candidates. One of the reasons that a party’s independent spending by itself 

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may pose a lesser risk of corruption than spending by outside individuals or groups 

is that the party and its candidates already have a close relationship and 

conjunction of interests. See Colo. Repub. Fed. Campaign Comm. v. FEC, 518 U.S. 

604, 615–18 (1996) (opinion of Breyer, J.) (Colorado I); see also id. at 623. For that 

very reason, however, contributions to party committees pose much the same threat 

of corruption as contributions to the candidates those party committees support and 

with whom they are intimately connected. Thus, as the Supreme Court has put it, 

parties, “whether they like it or not, ... act as agents for spending on behalf of those 

who seek to produce obligated officeholders.” Colorado II, 533 U.S. at 452. 

The Supreme Court has therefore held that limits on contributions to parties 

are constitutional even if limits on independent party spending are not, because it is 

the large contributions, not the party’s spending, that present the relevant threat of 

corruption. Thus, the controlling opinion in Colorado I emphasized that, although 

parties could spend in unlimited amounts if they did so independently, corruption 

could be held in check by adequate limits on the amounts donors could contribute to 

the parties, and it observed that “Congress, were it to conclude that the potential for 

evasion of the individual contribution limits was a serious matter, might decide to 

change the statute’s limitations on contributions to political parties.” 518 U.S. at 

617. And when Congress in fact did so in BCRA by imposing new contribution limits 

that eliminated the parties’ ability to use soft money in connection with federal 

elections, the Court upheld those limits in McConnell—not because it found that 

party spending was inherently corrupting, but because the large contributions that 

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fueled that spending posed the same risk of corrupting candidates as large 

contributions to the candidates themselves. See 540 U.S. at 143–56; 161–71. 

In particular, McConnell pointed to the “close connection and alignment of 

interests” between national parties and federal candidates, id. at 155, and the 

“similarly close ties between federal candidates and state party committees,” id. at 

161. That intimate relationship leads candidates to place sufficient value on large 

contributions to the parties to justify viewing such contributions as posing a threat 

of corruption similar to that of contributions to the candidates themselves, 

regardless of the particular way in which the money is ultimately spent in 

connection with federal elections. See id. at 156, 164–71.2 The record in McConnell, 

moreover, amply demonstrated that regardless of the independence with which the 

parties may expend these funds in support of their electoral efforts and those of 

their candidates, the manner in which large contributions were raised by the 

parties presented ample opportunities for the reality or appearance of 

prearrangement and corrupt bargains between contributors and candidates. See 540 

U.S. at 145–56, 161–62. 

 2 See also RNC, 698 F. Supp. 2d at 159 (“In relying in part on the inherently 

close relationship between parties and their officeholders and candidates, the Court 

suggested that federal officeholders and candidates may value contributions to their 

national parties—regardless of how those contributions ultimately may be used—in 

much the same way they value contributions to their own campaigns. As a result, 

the reasoning goes, contributions to national parties have much the same tendency 

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

the appearance of quid pro quo corruption.”). 

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The relationship between parties and their candidates sharply distinguishes 

the issue of the constitutionality of limiting contributions to the parties from the 

question whether limiting contributions to outside groups that engage only in 

independent spending is permissible. In SpeechNow.Org v. FEC, 599 F.3d 686 (D.C. 

Cir. 2010) (en banc), the D.C. Circuit struck down such limits on the theory that, if 

independent outside spending poses no risk of corrupting candidates, contributions 

made to outside spending groups “also cannot corrupt or create the appearance of 

corruption.” Id. at 694. The Supreme Court has never addressed that issue, but 

even assuming the correctness of SpeechNow’s holding, it has no relevance here. 

The court in SpeechNow recognized that because of the relationship between parties 

and candidates, “expenditures by political parties ... are wholly distinct” from 

independent expenditures by outside groups. Id. at 695. The court therefore made 

clear that its holding affected only limits on contributions to “outside, independent 

expenditure-only group[s],” and did not address the constitutionality of other 

contribution limits. Id. at 696. RNC, decided on the very same day, and written by a 

judge who joined the unanimous opinion in SpeechNow, apparently saw 

SpeechNow’s holding regarding contributions to outside independent-spending 

groups as irrelevant to the constitutionality of contribution limits applicable to state 

and local party committees, as the decision was not even cited in RNC. SpeechNow

does not suggest that Congress may not limit contributions to political parties. 

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IV. The McCutcheon plurality’s view of corruption does not control the 

outcome of this case. 

The third major premise of the Louisiana Republicans’ position is that the 

plurality opinion in McCutcheon v. FEC adopted a narrow view of the compelling 

governmental interest in combatting corruption and the appearance of corruption—

a view that supersedes the rationale offered in McConnell for upholding BCRA’s 

soft-money provisions. According to the Louisiana Republicans, the McCutcheon

plurality opinion stands for the proposition that even direct quid pro quo exchanges 

of campaign dollars for official favoritism do not qualify as corruption, or the 

appearance of corruption, if an officeholder provides only “access” or other 

preferential treatment to a contributor and stops short of promising to sell a vote or 

to take other formal, official action. See, e.g., La. Repub. S.J. Mem. 24 (arguing that 

corruption is limited to “act[s] akin to bribery”). Thus, according to the Louisiana 

Republicans, the McConnell record fails to support BCRA’s soft-money provisions 

because—while it is replete with examples where parties openly sold access to 

officeholders for campaign cash, and officeholders demonstrated favoritism toward 

party contributors based on their contributions—it does not in their view 

demonstrate that officeholders sold legislative votes for contributions to state or 

local parties. 

As the FEC’s summary judgment memorandum demonstrates (at pp. 40–44), 

the historical record, the McConnell record, and the record of this case provide 

ample evidence of politicians exchanging more than mere access in return for large 

contributions to political parties. And in any event, the McCutcheon plurality’s 

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statements about corruption provide no substantive basis for casting aside 

McConnell’s anticorruption rationale for approving BCRA’s soft money provisions. 

McCutcheon largely echoed statements previously made by the Court in Citizens 

United to the effect that, in the absence of the opportunity for prearrangement and 

quid pro quo deals that contributions afford, any apparent ingratiation or 

preferential access that may result from purely independent spending by persons or 

groups unaffiliated with a candidate is not actual or apparent corruption that can 

justify a limit on such spending. Citizens United, 558 U.S. at 357–60; see

McCutcheon, 134 S. Ct. at 1450–51. Like the Court in Citizens United, however, the 

McCutcheon plurality did not purport to validate preferential access or other forms 

of favoritism that result not from merely “[s]pending large sums,” id. at 1450, but 

from prearrangements or understandings reached in exchange for contributions. 

Indeed, the Court had acknowledged in Citizens United that the McConnell record 

established that such transactions had occurred in the soft money era. See Citizens 

United, 558 U.S. at 360–61. Citizens United also recognized that the Court owed 

deference to congressional findings of such abuses. Id. at 361. Nothing in the 

McCutcheon plurality opinion’s citations of Citizens United suggests a retraction of 

those points. 

Nor did the McCutcheon plurality purport to disavow RNC’s holding that 

McConnell’s soft-money ruling remains valid after Citizens United. 561 U.S. 1040, 

aff’g 698 F. Supp. 2d 150. The three-judge court in RNC expressly held that the 

Citizens United’s discussion of corruption did not undermine McConnell’s holding 

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that the interest in avoiding the reality and appearance of corruption justifies 

BCRA’s soft-money bans. See 698 F. Supp. 2d at 158–62. In particular, the court 

pointed out that, although Citizens United stated that mere access and ingratiation 

resulting from independent spending by unaffiliated persons and groups is not 

corruption, Citizens United had not validated what the McConnell record showed to 

have occurred in the soft-money era: “the selling of preferential access to federal 

officeholders and candidates in exchange for soft-money contributions.” Id. at 158. 

Nor, RNC concluded, did Citizens United’s discussion of corruption undermine the 

McConnell Court’s conclusion that candidates and parties are so closely connected 

that candidates value contributions to the parties nearly as much as they value 

contributions to their own candidacies, and thus the same obvious anticorruption 

interest that unquestionably justifies candidate contribution limits validates party 

limits as well. See id. at 159. The Supreme Court’s affirmance in RNC confirmed 

that, as the three-judge court had found, Citizens United’s discussion of corruption 

left McConnell’s soft-money holdings unscathed. 

The McCutcheon plurality’s brief discussion of corruption restates Citizens 

United’s observation that “mere influence or access”—absent any quid pro quo 

arrangement—is not corruption. See 134 S. Ct. at 1450–51. The plurality’s 

statements on the issue seem to have had little or nothing to do with their decision. 

Rather, their reasons for striking down the aggregate contribution limits at issue 

rested principally on their skepticism that limited contributions spread among a 

plethora of candidates, party committees, and other political committees would be 

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likely to corrupt any particular candidate or circumvent base limits on contributions 

to candidates and party committees. See id. at 1452–56. Rather than adopting a 

new and narrower understanding of corruption, the plurality concluded that “widely 

distributed support [for political parties] within all applicable base limits” was 

unlikely to present opportunities for corruption. Id. at 1461 (emphasis added). 

Moreover, although the FEC and its supporters had argued that in the absence of 

aggregate contribution limits, there were many ways in which large sums could be 

solicited by or amassed to benefit particular candidates, the plurality took the view 

that those scenarios were implausible, unlikely, and unsupported by evidence, and 

would or could be prevented by the operation of other laws.3 See id. at 1453–60. 

Critically, just as the majority in Citizens United stressed that the decision 

did not overturn limits on soft money contributions, the McCutcheon plurality 

emphasized that the base limits on contributions—including the limits on 

contributions to party committees at issue here—would remain in effect. Id. at 1451 

& nn.6–7. Indeed, the McCutcheon plurality strongly reaffirmed Buckley’s analysis 

of the anticorruption interests served by base limits. See, e.g., id. at 1441, 1450. If, 

as RNC held, the Citizens United comments on corruption left McConnell’s 

anticorruption rationale for soft-money limits intact, the McCutcheon plurality’s 

repetition of the point could not require a different result. 

 3 Thus, even if the plurality’s opinion were itself authoritative, its discussion 

of “corruption” would fairly be characterized as dicta, just as the McCutcheon

dissenters justifiably labeled Citizens United’s comments on corruption dicta. See

134 S. Ct. at 1471 (Breyer, J., dissenting). 

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And even if the McCutcheon plurality opinion were authoritative and could be 

read to go beyond Citizens United, the McConnell record would remain relevant and 

adequate to demonstrate a threat of actual or apparent corruption justifying party 

contribution limits. The McCutcheon plurality reaffirmed that “Congress may 

permissibly limit ‘the appearance of corruption stemming from public awareness of 

the opportunities for abuse inherent in a regime of large individual financial 

contributions.’” 134 S. Ct. at 1450 (quoting Buckley, 424 U.S. at 27) (emphasis 

added). Even if a sale of access in exchange for a contribution to a party is not itself 

“corruption,” the existence of such transactions demonstrates that party 

contributions present the opportunity for prearrangement and quid pro quo 

transactions: If such contributions can buy access, they surely also create the 

opportunity and, at least, the very real potential for even more sinister transactions 

and the appearance that such deals may be occurring. 

Finally, in asserting that the McCutcheon plurality implicitly rejected 

McConnell’s reasoning, the Louisiana Republicans are mounting not an as-applied 

challenge within the framework of McConnell, but a direct frontal assault on 

McConnell’s basis for upholding BCRA’s soft-money provisions against the facial 

challenges asserted in that case. As RNC recognized, that kind of claim is “an 

argument for overruling a precedent,” which only the Supreme Court has the power 

to do. 698 F. Supp. 2d at 157. And whatever it says about corruption, the 

McCutcheon plurality opinion provides no basis for this Court to conclude that the 

Supreme Court has overruled McConnell on soft money. Not only did the plurality 

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opinion expressly state that it was “clearly” not overruling McConnell’s soft-money 

holding, 134 S. Ct. at 1451 n.7, but the reasoning of four Justices could not 

supersede a majority holding of the Court in any event. Because the McCutcheon

opinion’s comments on corruption “did not represent the views of a majority of the 

Court,” courts in later cases are “not bound by its reasoning.” CTS Corp. v. 

Dynamics Corp. of Am., 481 U.S. 69, 81 (1987); see United States v. Brobst, 558 F.3d 

982, 991 (9th Cir. 2009); see also United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 

2013). In appears quite unlikely that a majority of the Supreme Court would agree 

with the extreme version of the McCutcheon plurality’s views advocated by the 

Louisiana Republicans, but even if it were possible that the Justices might consider 

whether to overrule McConnell on such a basis, this Court cannot. 

V. The Louisiana Republicans’ arguments would have extraordinarily 

far-reaching negative consequences. 

The Louisiana Republicans obscure the enormous consequences of accepting 

their argument. Although they present their claims as a focused set of as-applied 

challenges, the theory that underlies all the challenges is that funds used for any 

independent spending by a party committee—even independent spending for 

express candidate advocacy, and even independent spending by a national rather 

than a state party committee—cannot be subject to the source and amount 

limitations imposed by federal law. If their argument were accepted, the only party 

fundraising that could be subjected to contribution limits would be funds used for 

direct cash contributions to federal candidates and funds used for coordinated 

expenditures (which are treated as contributions under federal law). Because the 

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amounts of such contributions and coordinated spending are subject to limits, they 

amount to a relatively small proportion of the parties’ overall spending. The 

remainder, accounting for the vast bulk of party spending, could not be subjected to 

federal contribution limits at all under the Louisiana Republicans’ theory. The 

return to the era of soft money would be complete. 

Indeed, although the Louisiana Republicans purport not to challenge the preBCRA laws and regulations requiring allocation of spending between hard-money 

and soft-money accounts for certain state-party activities affecting federal elections, 

those rules, too, would be unconstitutional under their theory. If no interest is 

sufficient to support contribution limits (that is, the use of hard money) to fund such 

activities as long as they are “independent,” no rationale would be sufficient to 

support requiring that part of the money used for them must be subject to federal 

contribution limits. 

Nor can the Court derive any comfort from the Louisiana Republicans’ 

assertion that they would raise funds for federal election activity subject to the 

(very high) limits on contributions imposed by Louisiana for contributions to the 

state parties. If federal limits on the funds used for such “independent” federal 

election activity cannot be justified under the First Amendment, it would follow 

that state contribution limits applicable to fundraising for the same activity would 

be equally suspect. After all, the states, too, are subject to the First Amendment. 

Success in this challenge would inevitably lead to a follow-on challenge to state-law 

limits. The natural consequence of the Louisiana Republicans’ theories, and their 

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undoubted ultimate goal, is the eradication of all limits on contributions to parties 

for “independent” campaign activity. 

Fortunately, that result is foreclosed by precedent. The constitutionality of 

contribution limits applicable to state and local party fundraising has twice been 

authoritatively sustained, and those limits remain constitutional as applied to 

federal election activity, independent or not. 

CONCLUSION 

This Court should deny the Louisiana Republicans’ motion for summary 

judgment, grant the Federal Election Commission’s cross-motion for summary 

judgment, and dismiss this action with prejudice. 

 Respectfully submitted, 

 /s/Scott L. Nelson 

Seth P. Waxman, DC Bar No. 257337 Scott L. Nelson, DC Bar No. 413548 

Catherine M.A. Carroll, DC Bar No. 497890 PUBLIC CITIZEN LITIGATION GROUP

WILMER CUTLER PICKERING 1600 20th Street NW 

 HALE AND DORR LLP Washington, DC 20009 

1875 Pennsylvania Avenue NW (202) 588-1000 

Washington, DC 20006 

(202) 663-6000 Fred Wertheimer, DC Bar No. 154211 

 DEMOCRACY 21 

J. Gerald Hebert, DC Bar No. 447676 2000 Massachusetts Avenue NW 

Trevor Potter, DC Bar No. 413778 Washington, DC 20036 

Paul S. Ryan, DC Bar No. 502514 (202) 355-9600 

Tara Malloy, DC Bar No. 988280 

CAMPAIGN LEGAL CENTER Donald J. Simon, DC Bar No. 256388 

1411 K Street NW, Suite 1400 SONOSKY, CHAMBERS, SACHSE, 

Washington, DC 20005 ENDRESON & PERRY, LLP 

(202) 736-2200 1425 K Street NW 

 Suite 600 

 Washington, DC 20005 

 (202) 682-0240 

Attorneys for Amici Curiae

March 25, 2016 

Case 1:15-cv-01241-CRC-SS-TSC Document 51 Filed 03/25/16 Page 29 of 30
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing document was served by the Court’s ECF 

system on all parties to this action. 

 /s/ Scott L. Nelson 

 Scott L. Nelson 

Case 1:15-cv-01241-CRC-SS-TSC Document 51 Filed 03/25/16 Page 30 of 30