UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF ) 

LOUISIANA, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ APPLICATION FOR A THREE-JUDGE COURT 

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

Acting General Counsel 

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

Deputy General Counsel — Law 

 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers

Assistant General Counsel 

Seth Nesin 

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

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

 Attorneys 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, DC 20463 

September 14, 2015 (202) 694-1650 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 1 of 53
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TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................3 

I. STATUTORY AND REGULATORY BACKGROUND ............................................3 

A. FECA’s $10,000 Contribution Limit for State 

and Local Committees .......................................................................................3 

B. BCRA’s Restrictions on Soft Money and 

 “Federal Election Activity” ................................................................................6 

 

C. FEC Regulations Implementing BCRA’s Soft 

Money Provisions ..............................................................................................8 

II. COURT CHALLENGES AFTER BCRA ......................................................................9 

A. McConnell v. FEC .............................................................................................9 

B. RNC v. FEC .....................................................................................................10 

C. RNC v. FEC and Rufer v. FEC (2014) .............................................................12 

III. PLAINTIFFS’ CLAIMS ..............................................................................................16 

IV. BCRA’S SPECIAL JUDICIAL REVIEW PROCEDURE .........................................18 

ARGUMENT ...........................................................................................................................18 

I. STANDARD OF SCRUTINY .....................................................................................19 

II. PLAINTIFF’S CLAIMS ARE NOT JUSTICIABLE 

 BEFORE A BCRA THREE-JUDGE COURT ............................................................21 

A. A Three-Judge Court Could Not Redress 

Plaintiffs’ Alleged Injury .................................................................................21 

B. Plaintiffs Also Fail to Establish Injury and 

Causation......................................................................................................... 27 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 2 of 53
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C. A Three-Judge Court Could Not Invalidate 

FEC Regulations ..............................................................................................29 

III. PLAINTIFFS’ CLAIMS ARE INSUBSTANTIAL ....................................................31 

A. Plaintiffs’ Challenges to Subsections 30125(b) 

and (c) Are Insubstantial ..................................................................................32 

1. McConnell and RNC Upheld Section 30125 .......................................32 

 2. Plaintiffs’ Challenge Is Foreclosed Because 

 This Case Is About FEA, Not Independent 

 Expenditures ........................................................................................34 

 3. Congress’s Regulation of FEA Remains 

 Constitutional Because it Is Based on 

 Limiting the Risk and Appearance of 

 Quid-Pro-Quo Corruption ....................................................................38 

B. The Availability of Levin Funds Further 

 Demonstrates that Plaintiffs’ Claims Are 

 Insubstantial .....................................................................................................41 

C. Plaintiffs’ Challenge to Section 30104(e)(2) 

Is Also Insubstantial .........................................................................................44 

CONCLUSION ........................................................................................................................45 

 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 3 of 53
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TABLE OF AUTHORITIES 

Cases 

B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015) ....................................23 

Bailey v. DiMario, 925 F. Supp. 801 (D.D.C. 1995) ...............................................................24 

Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2011) ..................................................................31 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................39, 43, 45 

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011) .................................................................36

Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 

467 U.S. 837 (1984) .....................................................................................................26 

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................37, 41, 44, 45 

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) .....................................................................................................36 

Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335 (D.C. Cir. 1975) ....................................32 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) .........................................................35 

Goldstein v. Cox, 396 U.S. 471 (1970) ....................................................................................20 

Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90 (1974) .......................................20, 21 

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012) .........................................................20, 27 

Independence Inst. v. FEC, 70 F. Supp. 3d 502 (D.D.C. 2014) ........................................20, 34 

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) .........................................................................44 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................................21 

Martin v. Dep’t of Justice, 488 F.3d 446 (D.C. Cir. 2007) ......................................................23 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................... passim

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ...............................8, 9, 30, 31, 41, 43 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ........................................3, 19, 25, 39, 40, 41, 44 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 4 of 53
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MTM, Inc. v. Baxley, 420 U.S. 799 (1975) ..............................................................................20 

Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 

468 F.3d 826 (D.C. Cir. 2006) .....................................................................................28 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) ........................... passim

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ............................................................ passim

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ...........................................................8, 9, 26, 31 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...................................................36, 45 

 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ..............................................................21 

Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C. Cir. 1992) ..................................24 

Statutes and Regulations 

28 U.S.C. § 1331 ......................................................................................................................22 

Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 (2002): 

BCRA § 101(a) ..............................................................................................................7 

BCRA § 101(b) ..............................................................................................................6 

BCRA § 102(3). .............................................................................................................5 

BCRA § 103(a) ..............................................................................................................6 

BCRA § 403(a) ......................................................................................................18, 30 

BCRA § 403(a)(3)-(4)..................................................................................................18 

BCRA § 403(d)(1) .......................................................................................................18 

BCRA § 403(d)(2) .......................................................................................................18 

Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101-30146: 

52 U.S.C. § 30101(20) ...................................................................................................6 

52 U.S.C. § 30101(20)(A)(i)-(iv) ...................................................................................6 

52 U.S.C. § 30101(20)(B)(i)-(iv) ...................................................................................6 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 5 of 53
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52 U.S.C. § 30104(e)(2) .....................................................................................6, 16, 44 

52 U.S.C. § 30104(e)(2)(A) ...........................................................................................7 

52 U.S.C. § 30104(e)(2)(B) ...........................................................................................7 

52 U.S.C. § 30108 ........................................................................................................16 

52 U.S.C. § 30110 ........................................................................................................22 

52 U.S.C. § 30116(a)(1)(D) ...................................................................5, 18, 24, 26, 38 

52 U.S.C. § 30125 ..........................................................................................................6 

52 U.S.C. § 30125(a) .....................................................................................................6 

52 U.S.C. § 30125(b)(1) ....................................................................................6, 16, 37 

52 U.S.C. § 30125(b)(2) ..........................................................................................7, 29 

52 U.S.C. § 30125(b)(2)(A) ...........................................................................................8 

52 U.S.C. § 30125(b)(2)(B)(i) .......................................................................................8 

52 U.S.C. § 30125(b)(2)(B)(iii) .........................................................................7, 28, 38 

52 U.S.C. § 30125(b)(2)(B)(iii)-(iv) ............................................................................38 

52 U.S.C. § 30125(b)(2)(B)(iv) .....................................................................................8 

52 U.S.C. § 30125(b)(2)(C) ...........................................................................................7 

52 U.S.C. § 30125(c) ...............................................................................................6, 16 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 112 ............. 3-4 

Federal Election Commission Regulations: 

11 C.F.R. § 100.24 .........................................................................................................9 

11 C.F.R. § 100.24(a)(2)-(3) ..........................................................................................9 

11 C.F.R. § 100.25 .........................................................................................................9 

11 C.F.R. § 100.26 .........................................................................................................9 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 6 of 53
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11 C.F.R. § 300.31 .................................................................................................28, 29 

11 C.F.R. § 300.31(d) ....................................................................................................7 

11 C.F.R. § 300.31(d)(3) ..............................................................................................38 

La. Rev. Stat. 18:1505.2(K)(1) ................................................................................................28 

Miscellaneous 

147 Cong. Rec. S2964 (daily ed. Mar. 27, 2001) ......................................................................5 

147 Cong. Rec. S3124 (daily ed. Mar. 29, 2001) ....................................................................43 

148 Cong. Rec. S2153 (daily ed. Mar. 20, 2002) ................................................................5, 26 

FEC Advisory Op. 2005-02 (Corzine), http://saos.fec.gov/aodocs/2005-02.pdf ......................5 

FEC, Political Party Committees (Aug. 2013), http://www.fec.gov/pdf/partygui.pdf ..............8 

Louisiana Board of Ethics, Ethics Administration Program, 

http://ethics.la.gov/Pub/Laws/pacsum.pdf ...................................................................27 

Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/ 

 SearchEFilingContributors.aspx ..................................................................................27

Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/ 

 SearchResultsByContributions.aspx ............................................................................28 

Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/ 

 SearchScanned.aspx .....................................................................................................28 

Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/ 

 ViewScannedFiler.aspx?FilerID=300306 ....................................................................27 

S. Rep. No. 105-167 (1998) .......................................................................................................4 

Restatement (Second) of Judgments § 13 (1982) ....................................................................23 

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Plaintiffs seek to raise funds for use on communications and other activities affecting 

federal elections without complying with the longstanding contribution limits of the Federal 

Election Campaign Act, 52 U.S.C. §§ 30101-30146 (“FECA” or “Act”). Reprising a challenge 

they brought before this Court and then voluntarily dismissed in 2014, the Republican Party of 

Louisiana (“LAGOP”), the Jefferson Parish Republican Parish Executive Committee (“JPGOP”), 

and the Orleans Parish Republican Executive Committee have returned once again to request that 

the Court convene a three-judge court to hear their claims against the Federal Election 

Commission (“FEC” or “Commission”). The last time the Court heard this request, it ruled that 

the claims of these same state and local committee plaintiffs against the same statutory 

provisions would proceed before this single-judge district Court. Dissatisfied with that decision, 

plaintiffs dismissed and have now refiled a revised complaint, renewing their improper effort to 

leverage the special judicial review procedure of section 403 of the Bipartisan Campaign Reform 

Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”), in order to gain access to the 

Supreme Court’s mandatory docket. 

Plaintiffs present no reason for the Court to alter its prior decision. Instead, their revised 

challenge adds new jurisdictional and substantiality problems to the justiciability barrier that 

precluded convening a three-judge court in 2014. In that earlier case, the plaintiffs 

acknowledged that they were targeting FECA’s provisions limiting individual contributions to 

national, state, and local party political committees. However, plaintiffs’ new complaint avoids 

mentioning FECA’s $10,000 base annual limit on contributions to state and local committees in 

order to avoid admitting the obvious — that they are again challenging this limit. Plaintiffs 

acknowledge that they must abide by other FECA provisions restricting contributions and 

tellingly accept that state contribution limits may constitutionally restrict the amounts they can 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 8 of 53
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receive for activity Congress deemed “federal,” but they make no effort to explain this 

incongruity. As the Court previously held, “regardless of what other statutory provisions” 

plaintiffs challenge — including the restrictions on the use of non-federal funds (or “soft 

money”) in FECA subsections 30125(b) and (c) that were targeted then and are again now — 

“no court can give them what they seek” without invalidating FECA’s base contribution limits. 

Rufer v. FEC, 64 F. Supp. 3d 195, 203 (D.D.C. 2014). Plaintiffs are estopped from relitigating 

that holding, and the same redressability problem requires the same conclusion in any event. 

The new detail in plaintiffs’ revised complaint describing their proposed communications 

and other federal-election-related activities also establishes that they lack injury. The two local 

committee plaintiffs do not want to receive more than $5,000 total for this activity, an amount 

they can receive right now, and LAGOP could satisfy its desired budgetary goals with 

contributions from a small number of contributors. Furthermore, because some of plaintiffs’ 

contemplated activities can be funded right now with an allocation of non-federal contributions, 

but plaintiffs have chosen not to do so, their injury is self-inflicted. Moreover, the additional 

detail in the complaint clarifies that certain of plaintiffs’ desired activities are impeded by FEC 

regulations, not the statutory provisions they purport to challenge. Plaintiffs have thus revealed 

that Counts I and II of their new complaint actually seek invalidation of regulations 

implementing FECA’s provisions. That Administrative Procedure Act challenge cannot be heard 

by a BCRA three-judge court, which may be established only to hear constitutional challenges to 

BCRA statutory provisions and amendments. These new jurisdictional problems separately 

preclude plaintiffs’ request for a three-judge court. 

Importantly, although this Court found plaintiffs’ previous challenge substantial, their 

new one is not. In contrast with the last case, plaintiffs do not request to be allowed to raise 

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funds without regard to FECA’s contribution limits for the purpose of making “independent 

expenditures”; they now seek to avoid those limits for the purpose of raising funds for their 

purported “independent” federal election activity (soft money) — i.e., a legislative request to be 

returned to the pre-BCRA soft money regime. This reframed challenge is wholly foreclosed. It 

was rejected by the Supreme Court in McConnell v. FEC, 540 U.S. 93 (2003), overruled in part 

by Citizens United v. FEC, 558 U.S. 310 (2010), in a holding that the Court’s later ruling in 

Citizens United regarding independent expenditures left “untouched,” Rufer, 64 F. Supp. 3d at 

203. For good measure, plaintiffs’ challenge was rejected again, post-Citizens United, in 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC”), aff’d, 130 S. Ct. 

3544. And just last year, the Supreme Court expressly noted in McCutcheon v. FEC that its 

“holding . . . clearly does not overrule McConnell’s holding about ‘soft money.’” 134 S. Ct. 

1434, 1451 n.6 (2014). Notwithstanding their lengthy and erroneous interpretive contortions, 

plaintiffs’ challenge is plainly frivolous. 

Accordingly, the Court should once again deny plaintiffs’ application for a three-judge 

court because their claims do not qualify for that extraordinary procedure. Rather, this case 

should resume where plaintiffs were when they dismissed last year — in this single-judge Court. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. FECA’s $10,000 Contribution Limit for State and Local Committees 

In 1976, Congress amended FECA’s contribution limits to establish a specific, annual 

limit of $5,000 on individual contributions to certain “other” political committees, including state 

and local party committees. Federal Election Campaign Act Amendments of 1976, Pub. L. No. 

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94-283, § 112, 90 Stat. 486-87 (now codified at 52 U.S.C. § 30116(a)(1)(D)).1

 Following the 

enactment of this contribution limit and others, “certain corporations, labor unions, and wealthy 

individuals sought to bypass these contribution limits by making so-called ‘soft money’ 

contributions to political parties.” Rufer, 64 F. Supp. 3d at 199. The national parties used 

unlimited soft money donations, together with a proportion of “hard money” raised pursuant to 

FECA’s source and amount limits, for “mixed” activities purportedly affecting both federal and 

state elections, including advertising that “did not expressly advocate the election or defeat of a 

federal candidate,” but which nevertheless influenced federal elections. RNC, 698 F. Supp. 2d at 

153; see also Rufer, 64 F. Supp. 3d at 199 (explaining that soft money contributions were 

“ostensibly earmarked for state and local elections or ‘issue advertising’ and thus not subject to 

the same FECA requirements as contributions explicitly intended to influence federal elections”). 

In 1998, after an extensive investigation, the Senate Committee on Governmental Affairs 

issued a report detailing the influence that soft money had come to wield in the electoral and 

legislative processes. McConnell, 540 U.S. at 129; S. Rep. No. 105-167 (1998). The sixvolume, 9,500-page report concluded that the parties’ ability to solicit and spend soft money had 

completely undercut FECA’s source-and-amount limitations. See McConnell, 540 U.S. at 129-

32. The report explained that national, state, and local committees had played a crucial role in 

the soft-money system: the national parties had made a practice of transferring funds to the state 

and local parties to conduct putatively non-federal activities “‘that in fact ultimately benefit[ed] 

federal candidates.’” Id. at 131 (quoting S. Rep. 105-167 at 4466 (alteration in original)). 

 

1

 Effective September 1, 2014, the provisions of FECA formerly codified in Title 2 of the 

United States Code were recodified in Title 52. The Office of Law Revision Counsel has 

published a table showing how the provisions have been reclassified. Editorial Reclassification 

Table, http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.html. 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 11 of 53
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“Congress responded to this circumvention of FECA’s contribution limits in 2002 with 

the enactment of BCRA, a sweeping series of amendments to FECA which, among other things, 

limited soft money contributions to political parties.” Rufer, 64 F. Supp. 3d at 199 (citing 

McConnell, 540 U.S. at 122-26); McConnell, 540 U.S. at 126, 133 (BCRA was enacted in part to 

plug the “soft-money loophole” that had “enabled parties and candidates to circumvent . . . 

limitations on the source and amount of contributions [made] in connection with federal 

elections”). “Rather than specifically defining and prohibiting soft money contributions, BCRA 

imposed a general ban on collecting funds in excess of FECA’s base contribution ceilings for 

certain entities involved in federal elections.” Rufer, 64 F. Supp. 3d at 199. 

BCRA also adjusted FECA’s base limits, including by doubling the limit for individual 

contributions to state and local committees, from $5,000 to $10,000. Rufer, 64 F. Supp. 3d at 

199; BCRA § 102(3). Congress increased these limits in order to compensate the political 

parties for some of the funds they were expected to lose as a result of the soft money ban. 148 

Cong. Rec. S2153 (daily ed. Mar. 20, 2002) (statement of Sen. Feinstein) (“The soft money ban 

will work because we came to a reasonable compromise with regard to raising some of the 

existing hard money contribution limits by modest amounts . . . .”); 147 Cong. Rec. S2964 (daily 

ed. Mar. 27, 2001) (statement of Sen. Nickles) (“If we are going to ban soft money, we should 

allow some increases in hard money.”). The $10,000 contribution limit for contributions to state 

and local committees remains the limit today. 52 U.S.C. § 30116(a)(1)(D).2

 

 

2

 The limit is shared between a state party and “affiliated” local committees, but local 

committees of a given political party may receive separate contributions of up to $5,000 per year 

from individuals if the committee’s fundraising is generally separate from — and thus the 

committee is not “affiliated” with — the state committee of their political party. See, e.g., FEC 

Advisory Op. 2005-02 (Corzine), at 6-7 & n.3, http://saos.fec.gov/aodocs/2005-02.pdf. 

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B. BCRA’s Restrictions on Soft Money and “Federal Election Activity” 

BCRA’s new section of FECA — titled “Soft Money of Political Parties,” BCRA 

§ 101(a), now codified as 52 U.S.C. § 30125 — distinguishes between “[n]ational committees” 

and “[s]tate, district and local committees.” Subsection (a) establishes that national committees 

may no longer accept any soft money for any purpose. 52 U.S.C. § 30125(a). Subsection (b) 

provides that state, district, and local committees are likewise generally barred from using any 

soft money for “Federal election activity.” Id. § 30125(b)(1). And subsection (c) bars national, 

state, district, and local committees from using soft money to pay for fundraising costs for 

“Federal election activity.” Id. § 30125(c). 

“Federal election activity” (“FEA”) is a term Congress added in BCRA. 52 U.S.C. 

§ 30101(20) (defining FEA); BCRA § 101(b). FEA includes four distinct categories of election 

activity: (1) voter registration activity during the 120 days preceding a regularly scheduled 

federal election; (2) voter identification, get-out-the-vote, and generic campaign activity that is 

“conducted in connection with an election in which a candidate for Federal office appears on the 

ballot”; (3) any “public communication” that “refers to a clearly identified candidate for Federal 

office” and “promotes,” “supports,” “attacks,” or “opposes” a candidate for that office (the four 

verbs “promotes,” “supports,” “attacks,” or “opposes” are sometimes known by the shorthand 

“PASO”); and (4) the services provided by a state, district, or local committee employee who 

dedicates more than 25% of his or her time in a month to “activities in connection with a Federal 

election.” 52 U.S.C. § 30101(20)(A)(i)-(iv); see also id. § 30101(20)(B)(i)-(iv) (excluding four 

categories of activity from FEA). 

BCRA also required that state and local committees report their FEA above a $5,000 

threshold. Id. § 30104(e)(2); BCRA § 103(a). “In addition to any other reporting requirements 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 13 of 53
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applicable under this Act, a political committee . . . to which section 30125(b)(1) of this title 

applies[,] shall report all receipts and disbursements made for” FEA “unless the aggregate 

amount of such receipts and disbursements during the calendar year is less than $5,000.” 52 

U.S.C. § 30104(e)(2)(A). The provision also requires state and local committees to disclose 

“certain nonfederal amounts permitted to be spent on” FEA, including “receipts and 

disbursements described in section 30125(b)(2)(A) and (B) of this title.” Id. § 30104(e)(2)(B). 

These “nonfederal amounts” are also known as “Levin funds,” after the sponsor of the 

relevant amendment. Levin funds are an exception to the general rule that FEA by state and 

local party committees must be paid for entirely with funds subject to the Act’s source and 

amount restrictions. Id. § 30125(b)(2); BCRA § 101(a). “[T]he Levin Amendment allows state 

and local party committees to pay for certain types of [FEA] with an allocated ratio of hard 

money and ‘Levin funds’ — that is, funds raised within an annual limit of $10,000 per person.” 

McConnell, 540 U.S. at 162-63 (citing 52 U.S.C. § 30125(b)(2)); 52 U.S.C. § 30125(b)(2)(B)(iii) 

(setting a $10,000 per “person” per year limit). The $10,000 Levin funds limit is reduced if state 

law establishes a lower limit, and it is separate from FECA’s $10,000 limit on contributions from 

individuals to state and local committees. 11 C.F.R. § 300.31(d). Apart from the “$10,000 cap 

and certain related restrictions to prevent circumvention of that limit, § [30125](b)(2) leaves 

regulation of such contributions to the States”; thus, persons such as corporations and unions that 

are restricted from contributing under federal law can provide Levin funds. McConnell, 540 U.S. 

at 163; 52 U.S.C. § 30125(b)(2)(C) (barring involvement of national parties and others and joint 

activities by “2 or more State, local, or district committees of any political party”). 

Levin funds may only be used to fund certain activities falling within the first two 

categories of FEA: (1) voter registration activity in the run up to a federal election, and (2) voter 

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identification, get-out-the-vote, and certain generic campaign activity. 52 U.S.C. 

§ 30125(b)(2)(A). And Levin funds cannot be used to pay for any activities that refer to “a 

clearly identified candidate for Federal office,” even if the candidate is not promoted, supported, 

attacked, or opposed. Id. § 30125(b)(2)(B)(i). Levin funds also “cannot be used to fund 

broadcast communications unless they refer ‘solely to a clearly identified candidate for State or 

local office.’” McConnell, 540 U.S. at 163 (quoting 52 U.S.C. § 30125(b)(2)(B)(ii)). Finally, 

“both the Levin funds and the allocated portion of hard money used to pay for such activities 

must be raised entirely by the state or local committee that spends them.” Id.; 52 U.S.C. 

§ 30125(b)(2)(B)(iv); McConnell v. FEC, 251 F. Supp. 2d 176, 210 (D.D.C. 2003) (per curiam) 

(describing this “homegrown” rule).3

C. FEC Regulations Implementing BCRA’s Soft Money Provisions 

Following BCRA’s passage, the FEC promulgated regulations implementing these 

provisions and others, as Congress had required. Certain of these regulations were challenged 

and invalidated in a series of cases. 

As relevant here, the FEC had defined “voter registration activity” and “get-out-the-vote 

activity” as requiring “‘contacting individuals by telephone, in person, or by other individualized 

means.’” Shays v. FEC, 528 F.3d 914, 931 (D.C. Cir. 2008) (quoting former 11 C.F.R. 

§ 100.24(a)). The D.C. Circuit found that these definitions “exclude[d] efforts that actively 

encourage[d] people to vote or register to vote . . . [,] dramatically narrow[ed] which activities 

are covered” and “entirely exclude[ed] mass communications targeted to many people.” Id. at 

931. It thus held that, under the familiar two-step analysis in Chevron U.S.A. Inc. v. Natural 

 

3

 The FEC’s guidebook Political Party Committees (Aug. 2013), 

http://www.fec.gov/pdf/partygui.pdf, provides a summary of how Levin funds may be raised, 

spent, and allocated. Id. at 57-58 (raising and spending); id. at 116-17 (allocation). 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 15 of 53
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Resources Defense Council, Inc., 467 U.S. 837 (1984), “the definitions fail at . . . step two 

because they conflict with BCRA’s purpose of ‘prohibiting soft money from being used in 

connection with federal elections.’” Id. at 932 (quoting McConnell, 540 U.S. at 177 n.69). The 

FEC has since revised its regulations to broaden the definitions of these kinds of FEA, including 

by covering the encouragement of registration and voting by various means such as email. See

11 C.F.R. § 100.24(a)(2)-(3); see also generally id. § 100.24 (defining FEA). 

In addition, the FEC currently defines generic campaign activity to mean “a public 

communication that promotes or opposes a political party and does not promote or oppose a 

clearly identified Federal candidate or a non-Federal candidate.” 11 C.F.R. § 100.25. A public 

communication is “a communication by means of any broadcast, cable, or satellite 

communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone 

bank to the general public, or any other form of general public political advertising.” Id.

§ 100.26. But general public political advertising does “not include communications over the 

Internet, except for communications placed for a fee on another person’s Web site.” Id. 

II. COURT CHALLENGES AFTER BCRA 

A. McConnell v. FEC

Numerous individuals and entities, including Republican party national, state, and local 

committees, challenged BCRA as soon as it was passed. McConnell, 251 F. Supp. 2d at 220 

n.55 (listing dozens of parties in the case). Among other things, the plaintiffs facially challenged 

new FECA § 323 (section 30125) under the First Amendment. McConnell, 540 U.S. at 134. 

In upholding most of BCRA, the Supreme Court considered and rejected the plaintiffs’ 

arguments that section 30125(b) was unconstitutional. It upheld the requirement that state and 

local committees fund FEA with hard money subject to FECA’s $10,000 contribution limit (or in 

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some circumstances with an allocated mix of hard money and Levin funds), the definition of 

FEA, and the requirements governing use of Levin funds. McConnell, 540 U.S. at 161-73. 

“Congress recognized that, given the close ties between federal candidates and state party 

committees, BCRA’s restrictions on national committee activity would rapidly become 

ineffective if state and local committees remained available as a conduit for soft-money 

donations.” Id. at 161. Section 30125(b), the Court wrote, “is designed to foreclose wholesale 

evasion of § [30125](a)’s anticorruption measures by sharply curbing state committees’ ability to 

use large soft-money contributions to influence federal elections.” Id. 

Applying the “closely drawn” standard of review that applies to FECA’s contribution 

limits, id. at 136, the Court held that “[p]reventing corrupting activity from shifting wholesale to 

state committees and thereby eviscerating FECA clearly qualifies as an important governmental 

interest.” Id. at 165-66. Separately discussing each of the four categories of FEA, id. at 167-71, 

the Court found that they “all are reasonably tailored, with various temporal and substantive 

limitations designed to focus the regulations on the important anticorruption interests to be 

served,” id. at 167. Accordingly, the Court held that section 30125(b) “is a closely drawn means 

of countering both corruption and the appearance of corruption.” Id. at 167, 173. 

B. RNC v. FEC

In 2008, Republican party national, state, and local committees brought another challenge 

in this Court. Again they “target[ed],” among other things, “§ [30125](b), which prohibits them 

from using soft-money contributions for any ‘[FEA].’” RNC, 698 F. Supp. 2d at 160. The state 

and local party committees contended that section 30125(b) was unconstitutional “as applied” to 

certain proposed FEA that they planned. Id. “Specifically, they assert[ed] that the First 

Amendment entitles them to receive and spend soft-money contributions (that is, contributions 

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above the current $10,000 annual limit) on . . . public communications that promote the [state 

committee’s] ballot initiatives and incidentally criticize or oppose federal candidates.” Id. They 

also claimed that they were entitled to receive and spend soft money on “voter registration, voter 

identification, get-out-the-vote activities, and ‘generic campaign activity’ in connection with 

elections where both state and federal candidates appear on the ballot, but not ‘targeted to’ any 

federal race or candidate.” Id.

The district court first rejected plaintiffs’ argument that Congress, through BCRA, could 

not regulate certain activities that were insufficiently federal, finding that plaintiffs’ argument 

was “not so much an as-applied challenge as . . . an argument for overruling a precedent,” which 

the district court could not do. Id. at 157. The court next addressed the plaintiffs’ contention 

that the Supreme Court’s recent decision in Citizens United striking down financing restrictions 

on corporate independent expenditures had undermined McConnell’s holding concerning the 

governmental interests that apply to restricting soft money contributions to political parties. Id.

at 158-60. The plaintiffs argued “that no viable theory of corruption justifies these limits on 

contributions to political parties.” Id. at 158. The district court found, however, that McConnell

had permissibly justified the soft money ban, even when viewed under the definition of 

corruption set out in Citizens United. “‘[T]he close relationship between federal officeholders 

and . . . parties’” means that contributions to party committees “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.” Id. at 158-59 (quoting McConnell, 540 U.S. at 154). 

Addressing the state and local committees’ as-applied challenges to section 30125(b), the 

district court began by observing that the Supreme Court in McConnell had “squarely rejected 

those claims,” id. at 161, under the applicable “closely drawn” level of scrutiny, id. at 156. It 

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explained that the Supreme Court had expressly considered and rejected “the argument that 

§ [30125](b) was overbroad because it applied to expenditures by state and local parties that 

allegedly ‘pose no conceivable risk of corrupting or appearing to corrupt federal officeholders.’” 

Id. at 161 (quoting McConnell, 540 U.S. at 166). In McConnell, the Supreme Court had 

“examined each of the categories of activity that § [30125](b) requires state and local parties to 

pay for with hard money, and it found that expenditures in each category had a significant 

potential to ‘directly assist’ federal candidates.” Id. The court acknowledged that parties are 

permitted to bring as-applied challenges to section 30125(b) despite McConnell’s facial holding, 

but it found that the arguments the plaintiffs raised were “essentially the same arguments 

considered and rejected in McConnell. There is nothing substantially new presented in plaintiffs’ 

as-applied challenge to § [30125](b).” Id. Accordingly, the district court “reject[ed] plaintiffs’ 

as-applied challenges to § [30125](b) as a matter of law.” Id. at 162. Exercising its mandatory 

jurisdiction, the Supreme Court affirmed without opinion. 130 S. Ct. 3544 (2010). 

C. RNC v. FEC and Rufer v. FEC (2014) 

Last year LAGOP and the other plaintiffs in the current case, along with others including 

the Republican National Committee and Libertarian committees including the Libertarian Party 

of Indiana (“LPIN”), brought another round of challenges in this Court against various 

provisions of FECA. Specifically, they challenged 52 U.S.C. § 30116(a)(1)(B), “which limits 

the dollar amount individuals can contribute to national parties,” 52 U.S.C. § 30116(a)(1)(D), 

“which limits the dollar amount individuals can contribute to state and local parties,” and 52 

U.S.C. § 30125(a)-(c), “which prohibits national, state, and local parties and their officers and 

agents from soliciting, receiving, or spending funds raised outside of section [30116]’s 

contribution limits.” Rufer, 64 F. Supp. 3d at 200 n.2. The plaintiffs sought “to invalidate 

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Congress’s longstanding party contribution limits as applied to their non-coordinated 

expenditures,” seeking permission to create “segregated” accounts into which they could receive 

unlimited contributions for “non-coordinated federal campaign expenditures.” Id. at 198, 200. 

Included in the Republican plaintiffs’ challenge was the Republican state and local 

committee plaintiffs’ claim that “the non-federal-funds prohibition on [FEA, 52 U.S.C. 

§ 30125(b)],” by state and local party committees was unconstitutional under the First 

Amendment “as applied to independent [FEA]” and “facially.” Verified Compl. for Declaratory 

and Injunctive Relief ¶¶ 50-54 (Count 3), RNC v. FEC, No. 14-853 (D.D.C. May 23, 2014) 

(Docket No. 1) (“RNC 2014 Compl.”). The Libertarian plaintiffs likewise challenged section 

30125(b)(1)’s requirement that state committees like LPIN not “spend or disburse money in 

connection with a federal election, unless that money was raised in compliance” with the Act’s 

“contribution limits.” Verified Compl. for Injunctive and Declaratory Relief ¶¶ 105, 111 (Count 

III), Rufer v. FEC, No. 14-837 (May 21, 2014) (Docket No. 1) (“Rufer 2014 Compl.”). Both sets 

of plaintiffs also challenged section 30125(c) as applied, and the Republican plaintiffs 

challenged it facially as well. RNC 2014 Compl. ¶¶ 53-54; Rufer 2014 Compl. ¶¶ 106-07, 111. 

On the parties’ motions, the Court ruled that the plaintiffs’ challenges were substantial for 

the purpose of convening a BCRA three-judge court because the Supreme Court had not 

expressly considered “whether the threat of quid pro quo corruption or its appearance inherent in 

donations to political parties may be sufficiently reduced by segregating contributions to 

independent expenditure accounts so as to defeat the government’s ability to cap such 

contributions consistent with the First Amendment.” Rufer, 64 F. Supp. 3d at 203. It then held 

that, under McConnell, plaintiffs nevertheless lacked standing to bring their challenge in a 

BCRA three-judge court because, “regardless of what other statutory provisions Plaintiffs 

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challenge, no court can give them what they seek — redress their alleged injury in standing 

terms — without invalidating” FECA’s base contribution limits. Id. Because the “lynchpin of 

Plaintiffs’ challenge is the base limits,” plaintiffs lacked “standing to challenge them through a 

three judge court” and “the constitutional questions raised” by the challenges of eligible 

plaintiffs were certified to the en banc D.C. Circuit pursuant to 52 U.S.C. § 30110. Id. at 204. 

The Libertarian plaintiffs asked the Court to reconsider its decision and requested 

clarification of the Court’s intended treatment of LPIN, the Libertarian state party committee 

plaintiff. Pls.’ Mot. for Partial Reconsideration & Clarification of Denial of Mot. for ThreeJudge Panel, Rufer v. FEC, No. 14-837 (D.D.C. Sept. 3, 2014) (Docket No. 23). These plaintiffs 

argued that, because the Court of Appeals would not have jurisdiction to hear LPIN’s claims 

under 52 U.S.C. § 30110, LPIN’s challenge to sections 30125(a)-(c) “indisputably falls within 

BCRA § 403’s special judicial review provision,” and thus “LPIN respectfully requests that, at a 

minimum, this Court convene a three-judge panel to consider LPIN’s BCRA claims.” Id. at 2. If 

the “Court [were] inclined to grant [this] relief,” the Libertarian plaintiffs requested that the 

claims of their national party committee and individual plaintiff be stayed or dismissed so as to 

create jurisdiction before the three-judge court. Id. at 2 n.1; id. at 6-7. The FEC opposed the 

motion. It explained that “jettisoning everything but the claims of LPIN” would “leave them 

with no challenge to section [30116(a)(1)(D)] . . . in the first place.” FEC’s Opp. and Response 

to Pls.’ Mot. for Partial Recons. & Clarification of Denial of Mot. for Three-Judge Panel at 6, 

Rufer v. FEC, No. 14-837 (D.D.C. Sept. 22, 2014) (Docket No. 24).

The Court denied reconsideration. Order on Pls.’ Mot. for Partial Recons. & 

Clarification of Denial of Motion for Three-Judge Panel, Rufer v. FEC, No. 14-827 (D.D.C. 

Sept. 22, 2014) (Docket No. 25) (“Reconsideration Order”). It reiterated that “redressing 

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Plaintiffs’ alleged injuries would require overturning portions of [FECA],” which a BCRA threejudge court would lack the power to do, and it rejected the Libertarian plaintiffs’ request to 

“ignore the standing defects and convene a three-judge district court.” Id. at 1. It further 

explained that LPIN’s claims would not proceed before either a BCRA three-judge court or the 

en banc Court of Appeals, and would instead remain before the Court as a single-judge district 

court pursuant to its “jurisdiction to adjudicate claims under the Constitution and federal laws 

generally.” Id. at 2 (citing In re Cao, 619 F.3d 410, 435 (5th Cir. 2010) (en banc)). Consistent 

with that ruling regarding LPIN, the Court’s certification order stated that the claims of the 

Republican “state and local party committee plaintiffs — the Republican Party of Louisiana, the 

Jefferson Parish Republican Parish Executive Committee, and the Orleans Parish Republican 

Executive Committee” would similarly remain in the district court and be stayed “pending the 

decision of the circuit on the certified questions.” Certification Order at 1-2, RNC v. FEC, No. 

14-853 (D.D.C. Sept. 22, 2014) (Docket No. 36); Certification Order at 1-2, Rufer v. FEC, No. 

14-837 (D.D.C. Sept. 22, 2014) (Docket No. 26). 

All of the plaintiffs then voluntarily dismissed. The dismissals occurred both as to the 

state and local party plaintiff committees proceeding before this Court and as to the national 

party committee and individual plaintiffs proceeding before the Court of Appeals. Stipulation 

Dismissing Pls. and Action, RNC v. FEC, No. 14-853 (D.D.C. Dec. 3, 2014) (Docket No. 38); 

Stipulation of Dismissal, Rufer v. FEC, No. 14-837 (D.D.C. Dec. 2, 2014) (Docket No. 28); 

Order, Rufer v. FEC, No. 14-5240 (D.C. Cir. Dec. 10, 2014) (en banc) (dismissing actions) 

(Document #1526566). The Republican plaintiffs explained that they were dismissing primarily 

because of the Court’s procedural ruling. They “brought their claims as BCRA claims in the DC 

District Court and believe that is still the proper forum, but they were denied that forum, and as a 

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corollary, [mandatory] appellate review by the United States Supreme Court.” (Exh. 1, Email 

from Rich Coleson to Charles Kitcher, Nov. 18, 2014.) “[T]he Republican plaintiffs should not 

be compelled to litigate in a court not of their choosing.” (Id.) The plaintiffs also noted another 

reason for the dismissal: “[I]f the case were remanded for discovery, there would be further cost 

and delay which, together with the lack of [mandatory] Supreme Court appellate review, would 

make pursuing the claims unduly burdensome in the short term.” (Id.) 

III. PLAINTIFFS’ CLAIMS 

Eight months after these dismissals, a subset of the Republican plaintiffs in the 2014 RNC

case (specifically, the state and local parties who are not eligible to proceed under 52 U.S.C. 

§ 30110) have brought another case raising some identical issues. These plaintiffs once more 

seek declaratory and injunctive relief against three provisions: (1) the requirement that state and 

local parties must generally fund FEA with money raised subject to FECA’s source and amount 

restrictions, 52 U.S.C. § 30125(b)(1); (2) the requirement that costs for raising funds for FEA be 

paid for with funds subject to FECA’s source and amount restrictions, id. § 30125(c); and (3) the 

requirement that state and local committees report their FEA, id. § 30104(e)(2). (Verified Compl. 

for Declaratory and Injunctive Relief (Docket No. 1) (“Compl.”) Prayer for Relief ¶¶ 3-10.)4

 

Plaintiffs’ causes of action each seek varying amounts of relief, but all contain certain 

qualifications. Count I asks that the three challenged provisions be invalidated as applied to 

 

4

 Although the local committee plaintiffs were alleged to be local committees “of a 

political party” in the 2014 challenge, they are no longer. Compare 2014 RNC Compl. ¶¶ 15-16 

(local committee plaintiffs were “local committee[s] of LAGOP”), with Compl. ¶¶ 7-8. But 

plaintiffs must believe these are still “local committee[s] of a political party,” 52 U.S.C. 

§ 30125(b)(1), as alleged in 2014, because otherwise these plaintiffs could not challenge that 

provision on basic standing and ripeness grounds. To the extent plaintiffs alternatively seek 

confirmation that the various planned activities of the local committee plaintiffs are exempt party 

activities or non-FEA, so as not to count towards their political-committee-status registration 

thresholds (Compl. ¶¶ 41-44), what they seek is an advisory opinion that should be directed to 

the FEC, 52 U.S.C. § 30108, not an Article III federal court. 

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“independent, non-individualized communications that exhort registering/voting” and to such 

communications made “by Internet.” (Compl. ¶¶ 117-29 (emphases removed).) Count III asks 

that the provisions be invalidated as applied to all “independent” FEA. (Id. ¶¶ 139-49 (emphasis 

removed).) Count IV asks that they be invalidated facially. (Id. ¶¶ 150-52.) Counts I, III, and 

IV are brought on behalf of all plaintiffs. Count II is brought on behalf of LAGOP only. It 

challenges the three provisions as applied to certain proposed FEA by LAGOP. (Id. ¶ 131.) It 

alternatively challenges only 30125(b)(1) and 30125(c) as applied to the proposed creation of an 

“independent-communications-only account,” which allegedly would “contain only contributions 

from individuals” to LAGOP “that are legal under state law and applicable federal law (other 

than the challenged provisions).” (Id. ¶ 132 (emphasis removed).) This account would allegedly 

be similar to “the non-contribution accounts . . . of nonconnected committees,” which such 

committees have used to finance independent expenditures following Citizens United and other 

decisions. (Id. ¶ 137.) Count II’s alternative request does not challenge section 30104(e)(2)’s 

reporting requirement. All four counts are based on plaintiffs’ claim that their planned activities 

raise no “cognizable” quid-pro-quo corruption risk. (Id. ¶¶ 121, 123, 134-35, 145, 151.) 

Notwithstanding the phrasing of their claims, all of the funds plaintiffs intend to raise will 

be “compliant with state law,” including Louisiana’s $100,000 four-year state limit on individual 

contributions. (Compl. ¶ 108; see also id. ¶ 109 (describing limit).) Plaintiffs seek only to “be 

able to use nonfederal funds to pay for an allocated amount of their activities under the existing 

allocation rules” applicable to state and local party activity that is not FEA. (Id. ¶ 137.) 

Plaintiffs acknowledge that use of Levin funds would permit them to allocate the costs of 

some of their desired activities to a nonfederal account. But plaintiffs assert that they “do not use 

[Levin funds] due to complexity, burdens, and restrictions.” (Id. ¶ 15 n.4.) In describing their 

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proposed activities in detail (id. ¶¶ 74-111), plaintiffs appear ultimately to concede that these 

activities mostly meet the definition of FEA, despite some equivocation (e.g., id. ¶ 104 (asserting 

that advertisement mentioning Hillary Clinton “might be deemed PASO”)). Finally, although 

plaintiffs allege that they intend to comply with just about every other applicable federal and 

state contribution restriction (id. ¶¶ 107-09), absent from the list is FECA’s annual $10,000 limit 

for individual contributions to state and local committees, 52 U.S.C. § 30116(a)(1)(D). 

IV. BCRA’S SPECIAL JUDICIAL REVIEW PROCEDURE 

Section 403 of BCRA makes available special procedures for actions brought on 

constitutional grounds challenging “any provision” of BCRA or “any amendment made by” it. 

BCRA § 403(a). Section 403 provides that all such actions initiated before December 31, 2006 

were to be filed in this Court and heard by a three-judge district court convened pursuant to 28 

U.S.C. § 2284. Id. § 403(d)(1). It also provides for expedition and that final decisions of such 

three-judge courts are reviewable only by direct appeal to the Supreme Court. Id. §§ 403(a)(3)-

(4). The special procedural rules do not apply to actions filed after December 31, 2006 unless 

they are elected. Id. § 403(d)(2). 

ARGUMENT 

Plaintiffs’ renewed request for a three-judge court should be denied. 

Their challenge is not justiciable by a three-judge court. The Court’s previous ruling on 

this issue precludes them from relitigating whether a three-judge court would have the power to 

grant them relief from FECA’s contribution limit, and, in any event, the same redressability 

problem that prompted the Court to deny their request in 2014 remains fatal. Plaintiffs also lack 

standing because their claimed injuries are to a significant extent illusory in that they are not 

being harmed by the federal contribution limit; these injuries are also self-inflicted because 

plaintiffs can do at least some of their desired activities using an allocation of federal and 

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nonfederal funds pursuant to the Levin amendment. And because some of plaintiffs’ claims are 

actually challenges to FEC regulations, not the Act’s provisions, they must be heard by a singlejudge court under the Administrative Procedure Act instead of a BCRA three-judge court. 

Additionally, plaintiffs’ claims cannot be heard by a three-judge court, even setting aside 

the jurisdictional barriers, because they are insubstantial. Plaintiffs have revised their challenge 

to focus on the constitutionality of BCRA’s regulation of FEA (i.e., soft money), making it 

wholly foreclosed by the controlling Supreme Court decisions that resolved the same issues and 

that remain good law. By no longer including any claims seeking permission to establish 

independent-expenditure-only accounts for unlimited contributions, plaintiffs have cut 

themselves off from their former reliance on independent-expenditure precedents. In contrast to 

independent expenditures, Congress’s regulation of FEA is finely-tailored, focuses exclusively 

on the activities of a comparatively small group of entities that includes plaintiffs, and already 

establishes a constitutional framework in which such committees may operate independently of 

their otherwise-affiliated party committees. Also, plaintiffs’ reprised argument that the 

government has no cognizable interest in regulating political parties’ use of soft money for FEA, 

on the basis that plaintiffs’ proposed activities pose no risk or appearance of quid-pro-quo 

corruption, has been repeatedly rejected in binding court opinions. And the availability of Levin 

funds separately establishes that plaintiffs’ claims are insubstantial. Finally, plaintiffs’ 

undeveloped challenge to the Act’s requirement that they report their FEA is foreclosed by the 

Supreme Court’s overwhelming approval of such reporting requirements. 

I. STANDARD OF SCRUTINY 

 The Supreme Court has no discretion to refuse adjudication on the merits in direct appeal 

cases. McCutcheon, 134 S. Ct. at 1444. “[D]ue to an ‘overriding policy . . . of minimizing the 

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mandatory docket of [the Supreme] Court in the interests of sound judicial administration,’ 

district courts are to narrowly construe statutory provisions providing for three-judge courts.” 

Rufer, 64 F. Supp. 3d at 202 (quoting Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90, 98 

(1974)); see also Goldstein v. Cox, 396 U.S. 471, 478 (1970) (“This Court has more than once 

stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since any 

loose construction of the requirements of [the Act] would defeat the purposes of Congress . . . to 

keep within narrow confines our appellate docket.” (internal quotation marks omitted)); accord 

MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per curiam). 

Consistent with that narrow construction mandate, applications for three-judge courts 

made pursuant to BCRA § 403 and 28 U.S.C. § 2284 should not be granted unless the case 

presents “a ‘substantial claim’ and ‘justiciable controversy.’” Rufer, 64 F. Supp. 3d at 202 

(quoting Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 2011) (per curiam) (quoting 

Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335, 1338 (D.C. Cir. 1975))); Independence Inst. 

v. FEC, 70 F. Supp. 3d 502, 506 (D.D.C. 2014) (denying application for BCRA three-judge court 

and dismissing because plaintiffs’ challenge was “‘clearly foreclosed by Supreme Court 

precedent’” (quoting Rufer, 64 F. Supp. 3d at 198)), appeal docketed, No. 14-5249 (D.C. Cir. 

Oct. 22, 2014); Hassan v. FEC, 893 F. Supp. 2d 248, 257-58 (D.D.C. 2012) (“A three-judge 

court is not required . . . when the Court lacks jurisdiction over a plaintiff’s claims. As the D.C. 

Circuit has stated, an individual district court judge may consider threshold jurisdictional 

challenges prior to convening a three-judge panel.” (internal quotation marks omitted)), aff’d, 

No. 12-5335, 2013 WL 1164506 (D.C. Cir. Mar. 11, 2013). 

Review of a district court’s refusal to convene “a three-judge court ab initio . . . is 

available only in the court of appeals.” Gonzalez, 419 U.S. at 101. 

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II. PLAINTIFFS’ CLAIMS ARE NOT JUSTICIABLE BEFORE A BCRA THREEJUDGE COURT 

The irreducible constitutional minimum of standing requires (1) injury in fact, (2) a 

causal connection between the injury and the conduct complained of, and (3) a likelihood that the 

injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992). “A three-judge court is not required where the district court itself lacks 

jurisdiction of the complaint or the complaint is not justiciable in the federal courts.” Gonzalez, 

419 U.S. at 100; Wertheimer v. FEC, 268 F.3d 1070, 1072 (D.C. Cir. 2001) (“[A]n individual 

district court judge may consider threshold jurisdictional challenges prior to convening a threejudge panel.”) (construing the Presidential Election Campaign Fund Act’s judicial review 

provision, 26 U.S.C. § 9011(b)). 

Here, plaintiffs lack standing. Not only are they collaterally estopped from relitigating 

whether a BCRA three-judge court possesses the power to invalidate FECA’s $10,000 limit on 

individual contributions to state and local committees, but, as before, they remain utterly unable 

to demonstrate redressability otherwise. Plaintiffs also fail to show injury and causation. 

Plaintiffs have not shown that their planned activities require receiving, or that any individual 

contributor actually intends to give them, the five- or six-figure excess contributions they 

contemplate. Their disinclination to use Levin funds is a self-inflicted injury that was not caused 

by the FECA provisions they challenge. And a three-judge court also lacks the power to 

invalidate the FEC regulations the plaintiffs are actually challenging in Counts I and II. 

A. A Three-Judge Court Could Not Redress Plaintiffs’ Alleged Injury 

Last year, the Court resolved the issue of whether plaintiffs can pursue their claim before 

a three-judge court. It ruled that the plaintiffs in the 2014 edition of these soft money challenges 

could not pursue their claims before a three-judge court because they lacked standing to bring 

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their challenge in that forum. Rufer, 64 F. Supp. 3d at 203-04. That challenge, like this one, 

included claims by the same state and local committee plaintiffs that “the non-federal-funds 

prohibition on [FEA]” in sections 30125(b) and (c) is unconstitutional “as applied to independent 

[FEA]” and “facially.” RNC 2014 Compl. ¶¶ 52-54; Compl., Prayer for Relief ¶¶ 3-10. 

The Court observed that “regardless of what other statutory provisions” were challenged 

in that case — including the restrictions in subsections 30125(b) and (c) — “no court can give 

them what they seek” without invalidating FECA’s base contribution limits. Rufer, 64 F. Supp. 

3d at 203. The “pivotal question” the Court confronted, “then, is whether a three-judge district 

convened under BCRA § 403 would have that power. If the answer is ‘no,’ then Plaintiffs lack 

standing to present their challenges to a three-judge court.” Rufer, 64 F. Supp. 3d at 203. 

Applying the Supreme Court’s analysis in McConnell, the Court held that the answer indeed was 

no. Id. at 203-04. The Court reiterated that holding in denying the Libertarian plaintiffs’ 

reconsideration request. Reconsideration Order at 1-2. Those plaintiffs sought to abandon all 

claims other than the state party committee’s (LPIN) challenge to subsections 30125(b) and (c), 

as plaintiffs here have now done. See supra p. 14. The Court explained, however, that although 

the jurisdiction of a BCRA three-judge court is limited, mixed BCRA and FECA claims may be 

heard either by a single-judge district court under regular federal question jurisdiction, 28 U.S.C. 

§ 1331, or before the en banc Court of Appeals under 52 U.S.C. § 30110 if the plaintiffs are 

among those enumerated in that provision. Reconsideration Order at 2. 

That answer has not changed. As an initial matter, plaintiffs are estopped from 

relitigating this question. The issue of whether a three-judge court can hear plaintiffs’ challenge, 

including their challenges to section 30125, was (1) “‘contested by the parties and submitted for 

judicial determination in the prior case’”; and (2) “‘determined by a court of competent 

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jurisdiction’”; in addition, (3) no “‘basic unfairness’” would result from plaintiffs being 

precluded by their (and the Libertarian plaintiffs’) previous but unsuccessful to obtain review 

before a three-judge court. Martin v. Dep’t of Justice, 488 F.3d 446, 454-55 (D.C. Cir. 2007) 

(quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). 

Plaintiffs have had their bite at the apple. The jurisdictional question was extensively 

briefed both in RNC v. FEC, No. 14-853, and Rufer v. FEC, No. 14-837, the Court heard oral 

argument on the question, including argument addressing questions that the Court itself crafted 

after reviewing the parties’ briefs, Notice Regarding July 16, 2014 Hearing at 1-2, RNC v. FEC, 

No. 14-853 (D.D.C. July 10, 2014) (Docket No. 24) (articulating five “specific questions”), and 

the Libertarian plaintiffs and the FEC also filed briefs concerning reconsideration. The Court’s 

ruling addressed plaintiffs’ arguments and fully resolved the jurisdictional issue in a published 

opinion that all plaintiffs chose not to appeal when they dismissed their cases. That ruling is 

“sufficiently firm to be accorded conclusive effect.” Restatement (Second) of Judgments § 13 

(1982); Martin, 488 F.3d at 454-55 (citing Restatement and affirming district court’s decision 

applying collateral estoppel)); B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 

1303 (2015) (noting that the Supreme Court “regularly turns to the Restatement (Second) of 

Judgments for a statement of the ordinary elements of issue preclusion”). And no unfairness 

would result from applying issue preclusion here. Plaintiffs’ previous incentives “to litigate the 

point . . . were no less present in the prior case, nor are the stakes of the present case of ‘vastly 

greater magnitude.’” Martin, 488 F.3d at 455 (quoting Yamaha Corp. of Am., 961 F.2d at 254). 

Importantly, for purposes of issue preclusion, “once an issue is raised and determined, it 

is the entire issue that is precluded, not just the particular arguments raised in support of it in the 

first case,” and “[p]reclusion cannot be avoided simply by offering evidence in the second 

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24 

proceeding that could have been admitted, but was not, in the first.” Yamaha Corp. of Am., 961 

F.2d at 254-55. As the Court analogously explained in its Reconsideration Order, 

reconsideration “is not ‘a second opportunity to present argument upon which the Court has 

already ruled.’” Reconsideration Order at 2 (quoting Niedermeier v. Office of Baucus, 153 F. 

Supp. 2d 23, 28 (D.D.C. 2001)). The Court accordingly should find plaintiffs precluded from 

relitigating whether they may proceed before a three-judge court, consistent with the goals of 

relieving “the parties of the expense, vexation, and burdens attending multiple lawsuits,” 

conserving judicial resources, and minimizing the “risk of forum shopping, piecemeal litigation, 

and inconsistent decisions.” Bailey v. DiMario, 925 F. Supp. 801, 810 (D.D.C. 1995).5

Furthermore, even if plaintiffs were not formally precluded, they would remain unable to 

satisfy the requirement of redressability. A BCRA three-judge court still lacks the power to 

invalidate FECA’s base limit on individual contributions to state and local party committees. 52 

U.S.C. § 30116(a)(1)(D). Plaintiffs attempt to avoid that conclusion by reframing their challenge 

as one that does not seek to have FECA’s contribution limits be invalidated. But this move only 

underscores plaintiffs’ redressability problem, especially in light of their express concession that 

state contribution limits still apply (e.g., Compl. ¶¶ 107, 109, 132). Plaintiffs fail to explain why, 

if they were to prevail here, their proposed activities would remain subject to general state and 

federal contribution restrictions, including state law limits on the amount of those contributions, 

but not the federal limits on the amount of those contributions. Although those last limits are 

intentionally not cited, plaintiffs’ case is in essence a challenge to the federal contribution limits. 

Because plaintiffs are still seeking to pay for FEA using funds raised outside of FECA’s amount 

 

5

 The Commission stipulated to the Republican plaintiffs’ voluntary dismissal but 

explicitly reserved “any rights or arguments that may apply in future cases,” which include the 

ability to assert issue preclusion here. Stipulation Dismissing Pls. and Action at 1, RNC v. FEC, 

No. 14-853 (D.D.C. Dec. 3, 2014) (Docket No. 38). 

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restrictions, i.e., the limit of $10,000 that applies to individual contributions to state and local 

committees, “no court can give them what they seek” without invalidating that base limit. Rufer, 

64 F. Supp. 3d at 203. Indeed, that is why the plaintiffs found themselves before this Court, and 

not a BCRA three-judge court, when they dismissed the same claims last year. 

Undaunted, plaintiffs once again contend that this case is “like” other BCRA three-judge 

court cases, including McConnell and McCutcheon, which invalidated BCRA’s revision of 

FECA’s aggregate contribution limit. (Pls.’ Mem. Supporting Appl. for Three-Judge Court at 1, 

3-4 (Docket No. 3) (“Pls.’ Mem.”).) But McCutcheon was appropriately before a three-judge 

court because that revision created a “different statutory regime” from the one that had been 

considered in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). McCutcheon, 134 S. Ct. at 

1446. McConnell (and RNC) were likewise appropriately before three-judge courts because 

those challenges directly targeted BCRA’s soft money provisions as improperly regulating 

nonfederal activities. This case, by contrast, seeks to avoid FECA’s contribution limits due to 

the claimed “independence” of the plaintiffs’ concededly federal activities. (E.g., Pls.’ Mem. at 

36 (“There is no quid-pro-quo risk due to the independence of the activities.” (emphasis 

added)).) This was the same basis plaintiffs claimed for avoiding FECA’s contribution limits in 

the previous case. But the Court correctly rejected that basis for a BCRA three-judge court, 

explaining that the challenged FECA contribution limits restricting contributions for independent 

expenditures predated BCRA. Rufer, 64 F. Supp. 3d at 203-04. Here, plaintiffs’ claim similarly 

does not ultimately hinge on any alterations made by BCRA, but on the purported “absence of 

prearrangement and coordination” (Pls.’ Mem. at 35 (internal quotation marks omitted) — the 

independence justification upon which Buckley invalidated FECA’s expenditure limits. 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 32 of 53
26 

Even assuming subsections 30125(b) and (c) were wiped away, plaintiffs still could not 

accept the $100,000 individual contributions (per four years) they say they would like to use to 

fund their contemplated activities. As explained further below, LAGOP is the only committee 

with planned or historical party activity above de minimis levels, see infra pp. 27-28, and it is a 

federal political committee. (Compl. ¶ 6.) FECA provides that “no person shall make 

contributions . . . to a political committee established and maintained by a State committee of a 

political party in any calendar year which, in the aggregate, exceed $10,000.” 52 U.S.C. 

§ 30116(a)(1)(D). That means that plaintiffs remain subject to the $10,000 limit. 

Plaintiffs are wrong in assuming that the campaign finance regime created by FEC’s preBCRA interpretations of FECA permitting soft money to be used for “mixed” activities springs 

back into existence upon the invalidation of subsections 30125(b) and (c). (E.g., Compl. ¶ 75 

(LAGOP is “burdened by the inability to allocate costs to nonfederal funds as allowed before 

BCRA”).) That assumption cannot be squared with Congress’s clear intent to reject the preBCRA regime by prohibiting the use of soft money to fund FEA. See McConnell, 540 U.S. at 

123 (noting that “a literal reading of FECA’s definition of ‘contribution’ would have required 

[activities influencing both federal and state elections] to be funded with hard money”). As part 

of that legislative choice, Congress doubled the hard money limit on contributions to state and 

local committees in order to offset partially the loss of soft money funds. 148 Cong. Rec. S2153 

(daily ed. Mar. 20, 2002) (statement of Sen. Feinstein). Congress has thus “spoken” to the 

“precise question” of whether FECA should be interpreted to permit the use of soft money to 

fund FEA. Chevron, 467 U.S. at 842; accord Shays, 528 F.3d at 932 (invalidating FEC’s 

interpretations unduly narrowing statutory provisions). That was why the plaintiffs in 2014 

challenged “whatever provisions [stood] in the way” of their ability to receive unlimited 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 33 of 53
27 

contributions, “whether they are a soft-money ban or a BCRA-amended contribution limit.” 

Pls.’ Reply Supporting Their Amended Appl. for Three-Judge Court at 18, RNC v. FEC, No. 14-

853 (D.D.C. June 23, 2014) (Docket No. 21). Without challenging section 30116(a)(1)(D) here, 

plaintiffs only challenge some of the provisions standing in the way of their desired relief. Their 

claims remain unredressable by a three-judge court. 

B. Plaintiffs Also Fail to Establish Injury and Causation 

The new detail in plaintiffs’ complaint shows that their challenge also runs afoul of the 

injury and causation elements of standing. 

First, plaintiffs have offered no evidence that, even absent the limit, there is anyone who 

wants to give them such significant sums. Plaintiffs have thus failed to establish any injury. 

Hassan, 893 F. Supp. 2d at 257. In 2014, when LAGOP purportedly did not undertake activities 

but for FECA, the committee’s state account appears to have had only one contributor who gave 

a contribution of more than $10,000.6

 The local committee plaintiffs raise virtually no 

contributions. JPGOP has filed reports of its receipts and disbursements with the state of 

Louisiana for all but one year dating back to 2005, and its receipts of a couple thousand dollars 

each year consist almost entirely of candidate filing fees forwarded by local clerk’s offices.7

 It 

has not reported a single “contribution” under state law during that time.8

 The Orleans Parish 

 

6

 Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/SearchEFilingContributors.aspx (permitting search 

by date, filer, amount, and name of contributor). 

7

 Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/ViewScannedFiler.aspx?FilerID=300306. 

8

 Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/SearchResultsByContributions.aspx (permitting 

search under committee name, which for JPGOP yields only a $150 “other” receipt of a 

candidate qualifying fee from a clerk). 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 34 of 53
28 

Republican Executive Committee has apparently never filed a report with the state of Louisiana, 

indicating that it never had financial activity in excess of $500 within a calendar year dating back 

to at least 1998.9

 Any failure of the two committees to raise contributions in excess of federal 

limits is hardly traceable to BCRA. 

Second, plaintiffs also have not shown that they need the excess individual contributions 

they seek in order to fund their intended activities. In addition to FECA’s $10,000 limit, state 

and local committees each may receive Levin funds up to a separate $10,000 limit (unless the 

state limit is lower, which is not the case in Louisiana, La. Rev. Stat. 18:1505.2(K)(1)). 52 

U.S.C. § 30125(b)(2)(B)(iii); 11 C.F.R. § 300.31. LAGOP alleges that in 2014 it “wanted to use 

approximately $100,000 in nonfederal funds for [FEA], but could not because it did not want to 

do so under the challenged provisions” and that it intends “materially similar” FEA activities in 

the future. (Compl. ¶¶ 111, 114.) Raising these amounts using federal funds or Levin accounts 

(which each plaintiff could have separately) would require only a handful of contributors to give 

the maximum $10,000 in contributions. Plaintiffs have failed to establish that LAGOP is 

hampered by abiding by this restriction. The local committee plaintiffs say they want to “spend 

under $5,000 in 2015 and 2016 on [FEA],” (Compl. ¶ 110 (emphasis added)), and thus they 

would need only a single contributor to give half the legal limit. That is no injury. 

Third, the D.C. Circuit has also “consistently held that self-inflicted harm doesn’t satisfy 

the basic requirements for standing.” Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. 

Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006). Self-inflicted injuries are not “cognizable under 

Article III,” nor would they be “fairly traceable to the defendant’s challenged conduct.” Id. 

 

9

 Louisiana Ethics Administration Program, 

http://ethics.la.gov/CampaignFinanceSearch/SearchScanned.aspx (permitting search by name of 

committee); Louisiana Board of Ethics, Ethics Administration Program, 

http://ethics.la.gov/Pub/Laws/pacsum.pdf (summarizing Louisiana law). 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 35 of 53
29 

Here, it appears that plaintiffs could use Levin funds to pay for certain of their contemplated 

FEA, such as voter registration activity, voter identification, get-out-the-vote, and certain generic 

campaign activity. For example, plaintiffs’ complaint alleges that they wish to email a 

“nonpartisan article” that LAGOP has posted on its website to potential voters, and that this 

email will qualify as voter registration and get-out-the-vote activity in the coming months. 

(Compl. ¶ 86.) Plaintiffs contend that they should be able to fund this activity using an 

allocation of federal and non-federal money (e.g., id. ¶¶ 118, 131), but plaintiffs already can use 

an allocation of federal and non-federal money to do this kind of activity, so long as they comply 

with the provisions governing how Levin funds are raised. See 52 U.S.C. § 30125(b)(2); 11 

C.F.R. § 300.31. The same is true of other FEA falling into the first two categories of FECA’s 

definition and which do not refer to a clearly-identified candidate for Federal office. (Compl. 

¶¶ 87, 88, 91-93 (voter registration, get-out-the-vote, and generic campaign activities); id. ¶ 96 

(voter identification related to state legislative and gubernatorial candidates for use in federal 

election).) To the extent plaintiffs’ claim that they must pay for their proposed FEA solely with 

federal funds derives from their choice to do so rather than through the already permissible 

allocation method, they have failed to establish injury caused by FECA. 

C. A Three-Judge Court Could Not Invalidate FEC Regulations 

Plaintiffs’ revised case also raises a new redressability problem. The extensive 

discussions of FEC regulations in plaintiffs’ complaint and the brief supporting their three-judge 

court application, together with the descriptions of plaintiffs’ desired activities, demonstrate that 

at least as to Counts I and II, plaintiffs’ grievances are actually with FEC regulations, not the 

statutory provisions they purport to challenge. (Compl. ¶ 127 (citing portions of 11 C.F.R. 

§ 100.24 (FEC’s regulation implementing FECA’s definition of FEA); id. ¶ 131 (citing portions 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 36 of 53
30 

of 11 C.F.R. § 100.24 and the FEC’s regulation defining “public communication,” 11 C.F.R. 

§ 100.26, and “PASO” communications, 11 C.F.R. § 100.24(b)(3)).) 

In pressing these counts, plaintiffs seek to resurrect the FEC’s “original” post-BCRA 

regulatory definitions of “voter registration activity” and “get-out-the-vote activity.” (Compl. 

¶¶ 118 & n.16, 131 & n.18; Pls.’ Mem. at 31-32 (explaining that plaintiffs’ proposed activities 

are intended to conform with “what [the] FEC meant in its original rule” (emphasis added)).) If 

the plaintiffs obtained that relief, then the FEC’s current and supposedly unduly “broad” (Compl. 

¶ 53) regulatory definitions of “voter-registration activity and get-out-the-vote-activity 

definitions” would be invalidated and the agency’s new definitions could no longer reach 

plaintiffs’ contemplated email blasts and website “Internet communications” (see Pls.’ Mem. at 

32-34 (arguing that Internet communications should be carved out of the “voter registration 

activity” and “get-out-the-vote activity” definitions, as plaintiffs contend they are with the 

definition of “public communication”)). In that event, plaintiffs’ activities would no longer be 

FEA, and Counts I and II would be resolved without invalidating any statutory provisions. 

Because these “alleged constitutional infirmities are found in the implementing 

regulations rather than the statute itself,” McConnell, 540 U.S. at 223, these claims cannot be 

heard by a three-judge court. BCRA provides for three-judge court jurisdiction for actions 

challenging “the constitutionality of any provision of this Act or any amendment made by this 

Act.” BCRA § 403(a) (emphases added). The district court in McConnell held that the 

plaintiffs’ challenges to FEC regulations were unripe and that the proper venue to challenge them 

was a single-judge court under the Administrative Procedure Act, rather than in a three-judge 

court. 251 F. Supp. 2d at 264. The Supreme Court affirmed this point: “As the District Court 

explained, issues concerning the regulations are not appropriately raised in this facial challenge 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 37 of 53
31 

to BCRA, but must be pursued in a separate proceeding.” 540 U.S. at 223. Because a threejudge court would “lack[] the jurisdiction to rule on the regulations,” McConnell, 251 F. Supp. 

2d at 264, this Court should deny plaintiffs’ request for a three-judge court “insofar as it requests 

that a three-judge court hear its claim[s] that [the regulations are] unconstitutional,” Bluman v. 

FEC, 766 F. Supp. 2d 1, 4 (D.D.C. 2011). 

Plaintiffs acknowledge (Pls.’ Mem. at 31) that the D.C. Circuit has already ruled that 

their preferred regulatory interpretation is impermissible because it “conflict[s] with BCRA’s 

purpose of prohibiting soft money from being used in connection with federal elections.” Shays, 

528 F.3d at 932 (internal quotation marks omitted) (invalidating the FEC’s original regulatory 

definitions of “voter registration activity” and “get-out-the-vote activity” that plaintiffs now seek 

to have resurrected). But that does not transform their challenge from a regulatory one to a 

statutory one. It merely establishes that, in addition to the redressability problem, plaintiffs’ 

regulatory claims are frivolous and foreclosed by binding precedent. 

III. PLAINTIFFS’ CLAIMS ARE INSUBSTANTIAL 

Even if plaintiffs’ reprised challenges to subsections 30125(b)(1) and (c) were justiciable 

before a three-judge court, they are insubstantial. Plaintiffs have attempted an end run around 

the Court’s previous jurisdictional ruling by altering the scope of relief they seek in order to 

create the appearance of a BCRA, rather than FECA, case. This effort is too clever by half. 

Plaintiffs have navigated away from the “confluence” of precedents that led the Court to find 

their previous challenge substantial. Rufer, 64 F. Supp. 3d at 200-03. By no longer seeking to 

raise unlimited funds for their proposed independent-expenditure-only accounts, they have also 

abandoned the basis on which they can plausibly rely on “independent expenditure” precedents. 

This time, plaintiffs seek to raise funds without regard to FECA’s base limits solely in order to 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 38 of 53
32 

engage in FEA and concede that state law limits are applicable. Although the “determination of 

substantiality is rarely mechanical and often demands of the district judge an exceedingly close 

analysis of petitioner’s constitutional claims vis-a-vis prior case law,” this reframed case falls 

squarely under McConnell and its progeny, making it “obviously without merit” and clearly 

foreclosed by “the previous decisions of [the Supreme Court].” Feinberg, 522 F.2d at 1339 

(internal quotation marks omitted); Rufer, 64 F. Supp. 3d at 202. 

A. Plaintiffs’ Challenges to Subsections 30125(b) and (c) Are Insubstantial 

1. McConnell and RNC Upheld Section 30125 

Plaintiffs’ case is foreclosed by McConnell and RNC. In McConnell, the plaintiffs 

challenged section 30125 facially and argued that the soft money ban failed to serve the 

government interest in deterring actual and apparent corruption because the funds at issue were 

ostensibly given for nonfederal purposes and in some cases spent on purely state and local 

elections. McConnell, 540 U.S. at 145, 154. The Supreme Court disagreed. It found that “large 

soft-money contributions to national parties are likely to create actual or apparent indebtedness 

on the part of federal officeholders, regardless of how those funds are ultimately used.” Id. at 

155. The Court likewise rejected the state and local committees’ argument that section 30125(b), 

the provision primarily challenged here, represented “a new brand of pervasive federal regulation 

of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal 

officeholders.” Id. at 166. The Court found that section 30125(b) was “premised on Congress’ 

judgment that if a large donation is capable of putting a federal candidate in the debt of the 

contributor, it poses a threat of corruption or the appearance of corruption.” Id. at 167. 

In upholding section 30125(b)(1), the Court found that the provision, like the other 

“remaining provisions of new FECA § 323 [section 30125],” “largely reinforce[s]” the 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 39 of 53
33 

restrictions of section 30125(a), id. at 133; it “foreclose[s] wholesale evasion of § [30125](a)’s 

anticorruption measures by sharply curbing state committees’ ability to use large soft-money 

contributions to influence federal elections,” id. at 161. Having been taught the “hard lesson of 

circumvention,” Congress had reasonably concluded that “political parties would react to 

§ [30125](a) by directing soft-money contributors to the state committees, and that federal 

candidates would be just as indebted to these contributors as they had been to those who had 

formerly contributed to the national parties.” Id. at 165. Applying closely drawn scrutiny, the 

Court held that “[p]reventing corrupting activity from shifting wholesale to state committees and 

thereby eviscerating FECA clearly qualifies as an important governmental interest.” Id. at 165-

66. The Court upheld the restrictions on all four categories FEA as “reasonably tailored, with 

various temporal and substantive limitations designed to focus the regulations on the important 

anticorruption interests to be served.” Id. at 167. Section 30125(b), it concluded, “is a closely 

drawn means of countering both corruption and the appearance of corruption.” Id. at 167, 173. 

With respect to the third category of FEA (public communications that refer to a clearlyidentified public candidate and that PASO a candidate), the Court observed that such “ads were a 

prime motivating force behind BCRA’s passage”: the Senate’s hearings had “‘provided 

overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have 

virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal 

rubble.’” Id. at 169-70 (quoting S. Rep. 105-167 at 4535 (additional views of Sen. Collins)). As 

an example, the Court quoted the script of a television advertisement attacking Bill Yellowtail, a 

1996 federal candidate, through non-express advocacy that criticized his family values and 

described him as “‘a convicted felon.’” Id. at 193 & n.78 (quoting S. Rep. 105-167 at 6305 

(minority views)). Here, plaintiffs’ proposed advertisement supporting Louisiana Governor 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 40 of 53
34 

Bobby Jindal (Compl. ¶ 105 (“‘Let’s face the Facts. Bobby Jindal has been the nation’s finest 

example of a Republican leader . . . .’”)) is precisely the same kind of PASO communication that 

BCRA was passed to regulate. McConnell, 540 U.S. at 193 (“[T]he unmistakable lesson from 

the record in this litigation . . . is that Buckley’s magic-words [of express advocacy] requirement 

is functionally meaningless. Not only can advertisers easily evade the line by eschewing the use 

of magic words, but they would seldom choose to use such words even if permitted.” (citations 

omitted)). Yet here plaintiffs are again requesting that a three-judge court grant them an 

exemption in order to do the very thing BCRA was passed to prevent. The request is frivolous. 

See Independence Institute, 70 F. Supp. 3d at 511-12 (rejecting request for BCRA three-judge 

court and dismissing as-applied challenge to BCRA’s regulation of broadcast communications 

made in the run up to an election based on plaintiff’s claim that its proposed advertisement was 

less “pejorative” than those considered in the facial challenge). 

Moreover, seven years after McConnell was decided, this court reaffirmed its holding in 

rejecting another as applied challenge to section 30125(b). RNC, 698 F. Supp. 2d 150, aff’d, 130 

S. Ct. 3544. The court found that “‘the close relationship between federal officeholders and . . . 

parties’” means that soft money contributions to party committees “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.” Id. at 158-59 (quoting McConnell, 540 U.S. at 154). It 

thus “reject[ed] plaintiffs’ as-applied challenges to § [30125](b) as a matter of law.” Id. at 162. 

2. Plaintiffs’ Challenge Is Foreclosed Because This Case Is About FEA, 

Not Independent Expenditures 

Despite the Supreme Court’s upholding of section 30125, plaintiffs now again challenge 

subsections 30125(b) and (c) facially and on various as-applied grounds, including as applied to 

all “independent” FEA. (Compl. ¶¶ 117-52.) Plaintiffs go on at great length in their brief 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 41 of 53
35 

attempting to explain why this challenge is not foreclosed. (Pls.’ Mem. at 4-39.) To the extent it 

can be followed, plaintiffs’ argument deconstructs authorities by stripping away context until 

those precedents supposedly end up meaning the opposite of what they say. Plaintiffs thus 

contend, for example, that “[w]hat . . . McConnell [r]eally [s]aid [s]upports [p]laintiffs.” (Id. at 

23.)10 But “not every sophistic twist that arguably presents a ‘new’ question” warrants using 

special judicial review procedures. Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990) 

(denying section 30110 certification). And in reality, as plaintiffs eventually seem to 

acknowledge, their case is simply “a request for overturning McConnell.” (Pls.’ Mem. at 43.) 

Plaintiffs nevertheless argue that this “request for overturning a facial holding is neither 

insubstantial nor foreclosed in light of the developments in the independent-expenditure case line 

and McCutcheon’s holding in the contribution-restriction case line.” (Id.) 

 

10 While cataloguing all of plaintiffs’ errors is unnecessary, the FEC notes that plaintiffs 

incorrectly identify “seven controlling holdings” from McCutcheon that strain credulity, 

including the notion that McCutcheon altered the “closely drawn” standard of scrutiny that has 

applied since Buckley. (Pls.’ Mem. at 10-11 & n.16.) Plaintiffs bizarrely assert that the FEC 

should not be able to rely on “some prior language” from cases like McConnell (id. at 14-17), or 

others such as SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc) that 

“distinguished [independent-expenditure-only]-PACs from party-committees” (id. at 18-22), as if 

those decisions should be treated differently from “language” in court decisions generally. They 

assert fictional holdings that have never been rendered by any court, including that there is “no 

constitutional justification for any limit even on [parties’] coordinated expenditures” (id. at 21), 

the abandoned claim from their 2014 challenge that party committees “may . . . do independent 

expenditures . . . including through an [‘independent-communications-only account’]” (id. at 24), 

and that “facial challenges . . . may even be raised” for the first time “on appeal” (id. at 39). And 

they contend, relying exclusively on quotations from dissenting opinions, that the record in 

McConnell reflected no quid-pro-quo corruption (e.g., id. at 39), when in fact that record was “to 

the contrary”: the “evidence connect[ed] soft money to manipulations of the legislative calendar, 

leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, 

and tobacco legislation,” McConnell, 540 U.S. at 150 (citing evidence of how, e.g., “[d]onations 

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

the trial lawyers to Democrats stopped tort reform”). Though the evidence may not have been 

sufficient to support criminal bribery prosecutions, these were apparent quid-pro-quos on a 

massive scale. Id. The “meltdown of the campaign finance system” caused by “the soft-money 

loophole,” which spurred BCRA’s passage, id. at 94, was not the result of corruption-free 

activity, as plaintiffs contend. 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 42 of 53
36 

Plaintiffs are wrong. A three-judge court cannot be convened to hear a request to 

overturn Supreme Court precedent because no lower court can grant that relief, so such a request 

cannot be substantial. And because plaintiffs do not make the same request to raise unlimited 

funds for independent expenditures by the national committees (as in the last case), they have 

severed the connection that formerly existed between the independent-expenditure cases on 

which they rely and the relief they now seek. This action involving state-compliant funds is thus 

squarely within the “current” of limited contributions to political parties, and plaintiffs’ 

arguments are “so clearly foreclosed as to be insubstantial for purposes of three-judge court 

jurisdiction.” Rufer, 64 F. Supp. 3d at 200, 203. 

As this Court has explained, McConnell “upheld the portions of BCRA that cabined 

contributions to political parties in connection with federal elections, ‘regardless of how th[e] 

funds are ultimately used.’” Rufer, 64 F. Supp. 3d at 202-03 (quoting McConnell, 540 U.S. at 

155). “This portion of McConnell” — “upholding [52 U.S.C. §§ 30125](a) & (b)” — “was 

untouched by the Court’s later ruling in Citizens United, which overturned the ban on unlimited 

expenditures by private and public corporate entities.” Id. at 203 (emphasis added). Limits on 

contributions to other entities were held unconstitutional precisely because they did not intend to 

involve candidates or political party committees in their activity. See SpeechNow.org v. FEC, 

599 F.3d 686, 696 (D.C. Cir. 2010) (en banc); Carey v. FEC, 791 F. Supp. 2d 121, 125-26 

(D.D.C. 2011). Indeed, the D.C. Circuit in SpeechNow.org specifically distinguished Colorado 

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996), by observing that that case 

concerned expenditures by political parties. 599 F.3d at 695. 

Citizens United in no way supports plaintiffs’ legislative suggestion that state, but not 

federal, contribution limits and reporting requirements should apply to their proposed FEA. 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 43 of 53
37 

Citizens United applied strict scrutiny to expenditure limits, and as the opinion itself said, 

distinguishing McConnell, Citizens United was “about independent expenditures, not soft 

money.” 558 U.S. at 361. This case is about soft money, not independent expenditures, and 

nothing about McConnell’s upholding of section 30125 — as a contribution restriction subject to 

closely-drawn scrutiny — has been called into question. Rufer, 64 F. Supp. 3d at 202-03.11 

Furthermore, in contrast to independent expenditures, which are no longer at issue in this 

challenge, FECA’s regulation of FEA is targeted particularly to “[s]tate, district, or local 

committee[s] of a political party” like plaintiffs. 52 U.S.C. § 30125(b)(1). Based on an 

overwhelming record of abuse by such committees, Congress specifically cabined their use of 

soft money for FEA, and did so in a “reasonably tailored” manner (McConnell, 540 U.S. at 167) 

that was designed to curb the risk and appearance of quid-pro-quo corruption. Notwithstanding 

plaintiffs’ claims that certain planned communications will be “non-coordinated” under FEC 

regulations (Compl. ¶¶ 78-83; Pls.’ Mem. at 20-22), section 30125 was premised on the tight 

“nexus between national parties and federal officeholders” that “prompted one of [BCRA] Title 

I’s framers to conclude” that the parties “‘are inextricably intertwined with federal officeholders 

and candidates,’” McConnell, 540 U.S. at 155 (emphasis added) (quoting 148 Cong. Rec. H409 

(Feb. 13, 2002) (statement of Rep. Shays)). Political party committees do not need to coordinate 

on specific communications in order to return to a system in which vast sums of soft money 

raised and spent by “state and local political parties for ‘generic voter activities’ that in fact 

 

11 By seeking to have state rather than federal contribution limits govern plaintiffs’ conduct, 

plaintiffs are in actuality making a federalism challenge. (Compl. ¶¶ 107-09, 137.) This is 

another claim that McConnell directly rejected. 540 U.S. at 186-87 (“Congress has a fully 

legitimate interest in maintaining the integrity of federal officeholders and preventing corruption 

of federal electoral processes through the means it has chosen. Indeed, our above analysis turns 

on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that 

finding, we cannot conclude that those interests are insufficient to ground Congress’ exercise of 

its Elections Clause power.”). No intervening decision calls this holding into question. 

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ultimately benefit[] federal candidates,’” id. at 131 (some internal quotation marks omitted), 

present the same actual and apparent abuses as before BCRA. (Contra Pls.’ Mem. at 37 

(suggesting that plaintiffs’ “independent” activities “may actually be counterproductive”).) 

Plaintiffs’ argument also ignores that Congress already tailored section 30125(b) to 

accommodate independent FEA activity by state and local committees in the Levin amendment. 

State and local committees presumptively are treated as “affiliated committees” and, unless the 

presumption is rebutted, share the federal limit of $10,000 due to their close relationship, 52 

U.S.C. § 30116(a)(1)(D); see 2014 RNC Compl. ¶¶ 15-16 (local committee plaintiffs are “local 

committee[s] of LAGOP”). However, in the Levin context, “State, district, and local committees 

of the same political party shall not be considered affiliated.” 11 C.F.R. § 300.31(d)(3); 52 

U.S.C. § 31025(b)(2)(B)(iii). Accordingly, state and local committees are permitted to raise 

funds using a separate limit of up to $10,000 in their Levin accounts for the FEA that they wish 

to do with that independently-raised “homegrown” money. 52 U.S.C. § 30125(b)(2)(B)(iii)-(iv). 

Plaintiffs’ claim to a right to do “independent” FEA without regard to federal contribution limits 

is thus expressly belied by the fact that Congress has already established a more tailored 

framework for such activity. And the Supreme Court has held that that framework is 

constitutional “regardless of how th[e] funds are ultimately used.” McConnell, 540 U.S. at 155. 

3. Congress’s Regulation of FEA Remains Constitutional Because it Is 

Based on Limiting the Risk and Appearance of Quid-Pro-Quo 

Corruption 

Equally flawed is plaintiffs’ claim that “the facial upholding of the challenged provisions 

in McConnell was built on a now-rejected, broadly defined ‘corruption,’” and so “it is without a 

foundation and therefore the superstructure must collapse.” (Pls.’ Mem. at 38; see id. at 15.) 

Quoting the dissenting opinion in McCutcheon, plaintiffs repeatedly contend that the Supreme 

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Court has now limited the notion of corruption to “‘an act akin to bribery.’” (See, e.g., id. at 11 

(quoting McCutcheon, 134 S. Ct. at 1466 (Breyer, J., dissenting)), 15, 35, 36, 38.) But the 

controlling opinion categorically rejected this idea: “Our holding about the constitutionality of 

the aggregate limits clearly does not overrule McConnell’s holding about ‘soft money.’” 134 S. 

Ct. at 1451 n.6. On the contrary, the controlling opinion relied upon the notion of corruption that 

the Court had used in Citizens United, which in turn had relied upon Buckley. See id. at 1450 

(quoting Citizens United, 558 U.S. at 359 (“When Buckley identified a sufficiently important 

governmental interest in preventing corruption or the appearance of corruption, that interest was 

limited to quid pro quo corruption.”)). Buckley itself rejected an overbreadth argument based 

upon existing bribery laws, explaining that such laws “deal with only the most blatant and 

specific attempts of those with money to influence governmental action.” 424 U.S. at 27-28. 

Quid-pro-quo corruption (and its appearance) is not limited to bribery. 

Plaintiffs’ argument that post-McConnell limitations on the government’s anticorruption 

interests have undermined McConnell’s soft money holding was also considered and rejected in 

RNC. In challenging section 30125(b) and other provisions, Republican state and local party 

committees argued that after Citizens United “no viable theory of corruption justifies” the law. 

698 F. Supp. 2d at 158. The court disagreed, holding that McConnell had already determined 

that unlimited funds posed a danger of corruption however the recipient party committee may 

use those funds. Id. at 157. Further, it held that McConnell had upheld the soft money ban not 

just on the basis of an interest in deterring preferential access, a theory later rejected by Citizens 

United, but also due to the danger of quid pro quo corruption and its appearance inherent in the 

close relationship between federal candidates and officeholders and political party committees. 

Id. at 158-59. The Supreme Court affirmed. 130 S. Ct. 3544. 

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In making the same argument here, plaintiffs’ simply substitute “McCutcheon” for 

“Citizens United” and invent holdings from McCutcheon, such as the plurality’s supposed 

rejections of “indebtedness” as an element of quid-pro-quo corruption and the “notion that large 

federal-funds contributions pose any corruption [risk] absent quid-pro-quo exchanges with 

candidates.” (Pls.’ Mem. at 16 n.18.) These alleged holdings do not appear anywhere in the 

McCutcheon opinion and would contradict the plurality’s express holding that it was not 

overruling McConnell. What the plurality actually said was that it was “leav[ing] the base limits 

undisturbed. Those base limits,” which apply to plaintiffs, “remain the primary means of 

regulating campaign contributions.” McCutcheon, 134 S. Ct. at 1451. 

Critically, the RNC court determined that the challenge in that case was “‘based on the 

same factual and legal arguments the Supreme Court expressly considered when rejecting a 

facial challenge to that provision.’” Rufer, 64 F. Supp. 3d at 203 (quoting RNC, 698 F. Supp. 2d 

at 157). The plaintiffs had alleged that they planned “to use state funds and non-federal funds to 

engage in First Amendment activities that are not unambiguously related to the campaign of a 

particular federal candidate, but they are prohibited by” section 30125; that the state and local 

party committee plaintiffs planned “public communications” they believed would “‘attack’ or 

‘oppose’ federal candidates, as these terms are used in the definition of [FEA]”; and that they 

intended “to use state funds for voter registration, voter identification, and get-out-the-vote 

activities, as well as ‘generic campaign activity,’ [52 U.S.C. § 30101(21)], in future elections 

where both state and federal candidates appear on the ballot.” Compl. for Declaratory and 

Injunctive Relief ¶¶ 8, 23-25, RNC v. FEC, No. 08-1953 (D.D.C. Nov. 13, 2008) (Docket No. 1). 

That challenge, the court said, was “‘not so much an as-applied challenge as it is an argument for 

overruling a precedent.’” Rufer, 64 F. Supp. 3d at 203 (quoting RNC, 698 F. Supp. 2d at 157). 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 47 of 53
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Here, plaintiffs claim a First Amendment right to use non-federal money to fund planned 

FEA, including “PASO communications . . . without express advocacy” and “communications 

exhorting registration and voting,” “voter identification,” and generic campaign activity. 

(Compl. ¶¶ 84, 94, 97, 101.) Just as there was nothing “substantially new presented in plaintiffs’ 

as-applied challenge to § [30125](b)” in RNC, 698 F. Supp. 2d at 161, there is nothing new or 

substantial here either. As in McConnell and RNC, plaintiffs simply seek the same relief of 

avoiding FECA’s $10,000 contribution limit for FEA on the same false premise that no 

“cognizable” quid-pro-quo corruption interest justifies the Act’s restriction of their proposed 

activities. (Compl. ¶¶ 121, 123, 134-35, 145, 151; Pls.’ Mem. at 12, 13, 14-17, 21, 29, 34, 36, 

37, 42, 43.) Plaintiffs’ challenge is wholly foreclosed and obviously without merit because 

McConnell has “‘expressly considered’” and rejected “the specific factual and legal arguments 

advanced by Plaintiffs.” Rufer, 64 F. Supp. 3d at 203 (quoting RNC, 698 F. Supp. 2d at 157). 

The Supreme Court has reaffirmed that ruling three times. Citizens United, 558 U.S. at 361; 

RNC, 698 F. Supp. 2d at 158-59, aff’d, 130 S. Ct. 3544; McCutcheon, 134 S. Ct. at 1451 n.6.12

B. The Availability of Levin Funds Further Demonstrates that Plaintiffs’ 

Claims Are Insubstantial 

Plaintiffs’ complaint repeatedly states that Levin funds “are not involved here.” (Compl. 

¶¶ 10 n.3, 15 n.4, 36 & n.8, 37.) It is obvious why plaintiffs wish that were true: by permitting 

 

12 Plaintiffs make no independent showing that their challenge to section 30125(c) is 

substantial. But after upholding section 30125(a) facially, the Supreme Court in McConnell

explained that “[t]he remaining provisions of [section 30125] largely reinforce the restrictions in 

§ [30125](a).” 540 U.S. at 133. The constitutionality of section 30125(c) thus follows from the 

constitutionality of sections 30125(a) and (b). Indeed, one of the district court opinions in 

McConnell also viewed the analysis of section 30125(c) as deriving from the analysis of section 

30125(b)’s restrictions on FEA. See 251 F. Supp. 2d at 412 (explaining that section 30125(c) 

demanded “only passing attention” and should have been invalidated on the basis that the 

definition of FEA was unconstitutional and section 30125(c) was “inseverable”) (Henderson, J., 

concurring in the judgment in part and dissenting in part). Of course, the Supreme Court’s 

decision rejected that opinion’s conclusion. 

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state and local committees to use some nonfederal funds for FEA, raised under a separate limit of 

up to $10,000, the Levin amendment softened the impact of section 30125(b)(1). The 

amendment was “[a] refinement on the pre-BCRA regime that permitted parties to pay for 

certain activities with a mix of federal and nonfederal funds.” McConnell, 540 U.S. at 162. But 

here, plaintiffs do not want a refined pre-BCRA regime; they want the unrefined version. So 

plaintiffs pretend that Levin funds do not exist in order to support their fiction that the 

constitutional choice is between no allocation at all (section 30125(b)(1)) or pre-BCRA rules. 

Yet the availability of Levin funds demonstrates that the difference between what plaintiffs 

would like to do and what they can do right now is obviously not of constitutional dimension. 

Consequently, their claims are insubstantial. Here, the local committee plaintiffs want to 

spend less than $5,000 on FEA (Compl. ¶ 110), and LAGOP wants to use an amount that is 

“materially similar” to the “approximately $100,000 in nonfederal funds for [FEA]” that it 

wanted to spend in 2014 (id. ¶¶ 111, 114). Given that LAGOP can right now raise a separate 

$10,000 in Levin funds from each individual contributor, it could satisfy its desired nonfederal 

budget goals with maximum contributions from just ten contributors. 

Because these limits apply on an annual basis, and are separate from the limit for its 

federal account, LAGOP actually could receive up to $80,000 from a single contributor over the 

course of four years ($10,000 per year to each of its federal and Levin accounts). During that 

same period, if LAGOP were subject only to the higher Louisiana state limit of $100,000-perfour-years that plaintiffs prefer (and could not also accept four additional annual federal 

contributions of $10,000), it could raise a maximum of $100,000 from a single contributor. That 

is $20,000 more ($100,000 vs. $80,000) over a four-year period, or an average of $5,000 more 

annually. If plaintiffs are “satisfied that some limit on contributions is necessary, a court has no 

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43 

scalpel to probe, whether, say, a [$25,000 annual] ceiling might not serve as well as [$20,000].” 

Buckley, 424 U.S. at 30 (internal quotation marks omitted) (discussing amounts with 2:1 ratio). 

LAGOP’s claim is insubstantial if it can be solved by expanding its donor pool beyond a single 

individual (who is at this point hypothetical). Cf. id. at 21-22 (observing that an “overall effect 

of the Act’s contribution ceilings is merely to require . . . political committees to raise funds from 

a greater number of persons”). 

Notwithstanding these relatively small contribution differences, plaintiffs also appear to 

base their objection to Levin funds on the types of FEA that are permitted to be paid for in part 

with those funds. (Compl. ¶ 15 n.4 (objecting to “restrictions” on Levin funds).) But the more 

plaintiffs allege that the kinds of FEA they wish to engage in are those not permitted by the 

Levin amendment, the more they acknowledge that the activity they would like to do is precisely 

the activity Congress passed BCRA to rein in. Compare McConnell, 251 F. Supp. 2d at 702-03 

(Kollar-Kotelly, J.) (explaining that the activity that can be paid for with a portion of Levin funds 

in FEA categories (1) and (2) is more likely to concern “state and local elections”), and 147 

Cong. Rec. S3124 (daily ed. Mar. 29, 2001) (statement of Sen. Levin) (“[T]his amendment will 

allow the use of some non-Federal dollars by State parties for voter registration and get out the 

vote, where the contributions are allowed by State law, where there is no reference to Federal 

candidates, where limited to $10,000 of the contribution which is allowed by State law, and 

where the allocation between Federal and non-Federal dollars is set by the Federal Election 

Commission.”), with supra p. 33 (advertisement attacking federal candidate Bill Yellowtail), 

Compl. ¶¶ 104-105 (scripts “[c]elebrating” federal candidate Bobby Jindal and describing 

Hillary Clinton as “more ‘hope & change,’” which could not be paid for using Levin funds 

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because they clearly identify federal candidates, 52 U.S.C. § 30125(b)(2)(B)(i)), and McConnell, 

540 U.S. at 169 (“Such [PASO] ads were a prime motivating force behind BCRA’s passage.”). 

C. Plaintiffs’ Challenge to Section 30104(e)(2) Is Also Insubstantial

As with their challenge to section 30125(c), plaintiffs assert no independent reason why 

the reporting provision they challenge, 52 U.S.C. § 30104(e)(2), is unconstitutional. See supra p. 

41 n.12.13 Plaintiffs declare that “[a]n informational interest is inadequate to support” this 

provision, “because the foundational justification for regulating [FEA]” was the “theory of 

corruption” plaintiffs say Citizens United and McCutcheon rejected. (Pls.’ Mem. at 37.) 

Once again, plaintiffs are wrong. Binding court decisions have repeatedly embraced the 

important interests that FECA’s disclosure provisions support, including the Supreme Court in 

decisions from Buckley to McCutcheon, as well as the full D.C. Circuit as recently as 2010 in 

SpeechNow.org. In McCutcheon, for example, the plurality opinion generally explained that 

“[d]isclosure requirements are in part justified based on a governmental interest in provid[ing] 

the electorate with information about the sources of election-related spending.” 134 S. Ct. at 

1459 (internal quotation marks omitted). “With modern technology, disclosure now offers a 

particularly effective means of arming the voting public with information.” Id. at 1460. In 

Citizens United, eight Justices agreed that the challenged disclosure provisions were valid, 

observing that “the public has an interest in knowing who is speaking about a candidate shortly 

before an election,” even when such speech occurs in communications lacking express candidate 

advocacy. 558 U.S. at 368-69; cf. John Doe No. 1 v. Reed, 561 U.S. 186, 228 (2010) (Scalia, J., 

concurring) (“Requiring people to stand up in public for their political acts fosters civic courage, 

without which democracy is doomed.”). “Disclaimer and disclosure requirements,” the Court 

 

13 Plaintiffs’ Prayer for Relief and brief almost exclusively cite the supposedly challenged 

provision incorrectly, as section 30105(e)(2). 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 51 of 53
45 

has said, “‘impose no ceiling on campaign-related activities,’ and ‘do not prevent anyone from 

speaking.’” Citizens United, 558 U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell, 540 

U.S. at 201); contra Pls.’ Mem. at 34 (complaining that challenged provisions “restrict[] . . . core 

political speech”). In SpeechNow.org, the en banc D.C. Circuit likewise unanimously held that 

political committee disclosure requirements further the public’s “interest in knowing who is 

speaking about a candidate and who is funding that speech,” and “deter[] and help[] expose 

violations of other campaign finance restrictions.” 599 F.3d at 698. And in Buckley, the 

Supreme Court upheld the Act’s disclosure requirements for political committees, which 

“directly serve substantial governmental interests.” 424 U.S. at 68; see id. at 60-84. 

Plaintiffs acknowledge that state reporting requirements still apply to them. (Compl. 

¶ 107.) LAGOP presently files the reports at issue here with the FEC and analogous reports with 

the state of Louisiana, and JPGOP similarly complies with the state reporting regime. See supra

pp. 27-28. Plaintiffs offer no reason to suggest that they cannot comply with such reporting 

resulting from their planned activity. Section 30104(e)(2) is constitutional in light of the courts’ 

overwhelming support for such provisions, and plaintiffs’ challenge is thus insubstantial.14

CONCLUSION 

For the foregoing reasons, the Court should deny plaintiffs’ application and decline to 

 convene a three-judge court. 

Respectfully submitted, 

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

Acting General Counsel 

dpetalas@fec.gov 

Seth Nesin 

Attorney 

snesin@fec.gov 

 

14 Finally, plaintiffs once again ask the Court to expedite the case and to limit the FEC’s 

ability to defend itself with evidence obtained through discovery, as argued in both their 

memorandum supporting their three-judge court application (Pls.’ Mem. at 43-44), and in a 

separately filed motion (Pls.’ Mot. to Expedite (Docket No. 9)). The Court should deny these 

requests, as the Commission will establish in its separate opposition to the expedition motion. 

Case 1:15-cv-01241-CRC Document 15 Filed 09/14/15 Page 52 of 53
46 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

September 14, 2015 

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

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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