United States District Court

District of Columbia

Republican National Committee,

310 First Street, SE

Washington, D.C. 20003,

California Republican Party,

1201 K. Street #740

Sacramento, CA 95814,

Robert M. (Mike) Duncan,

Chairman, Republican National Committee

310 First Street, SE

Washington, D.C. 20003,

Republican Party of San Diego County,

 5703 Oberlin Dr., Suite 107

 San Diego, CA 92121

Plaintiffs,

v.

Federal Election Commission,

999 E Street, NW

Washington, DC 20463,

Defendant.

Case No.

THREE-JUDGE COURT

Complaint for Declaratory and Injunctive Relief

Republican National Committee (“RNC”), Robert M. (Mike) Duncan, California

Republican Party, and Republican Party of San Diego County complain as follows:

Introduction

1. This is an as-applied challenge to the constitutionality of portions of § 101 of the

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 82-

86, which added a new § 323 (entitled “Soft Money of Political Parties”) to the Federal

Complaint 1

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Election Campaign Act (“FECA”). The challenged provisions are codified at 2 U.S.C. § 441i.

2. Plaintiffs challenge 2 U.S.C. § 441i’s prohibition on soliciting, receiving and

spending funds not subject to the source and amount limitations of FECA, as applied to their

intended activities. This prohibition will herein be called the “Federal Funds Restriction” for

ease of identification. Plaintiffs do not challenge 2 U.S.C. § 441i’s prohibition on soliciting,

recieving and spending funds not subject to the reporting requirments of FECA.

3. The Federal Funds Restriction bans state, local and district committees of a

political party and their officials from using funds subject only to state source and amount

limitations (“state funds”) to engage in “federal election activity.” 2 U.S.C. § 441i(b)(1).

State political parties may only use funds subject to FECA’s source and amount restrictions

(“federal funds”) for this activity. Id. “Federal election activity” is defined to include (1)

voter registration activity in the 120 days leading up to a federal election, (2) “voter

identification, get-out-the-vote activity or generic campaign activity ” in connection with

elections for federal office, and (3) public communications that identify and “promote,”

“attack,” “support,” or “oppose” (“PASO”) a federal candidate. 2 U.S.C. § 431(20). “Generic

campaign activity” is further defined as “campaign activity that promotes a political party and

does not promote a candidate or non-federal candidate.” 2 U.S.C. § 431(21). The “PASO”

terms are undefined. 

4. The Federal Funds Restriction bans national committees of a political party and

their officials from soliciting or using “state funds” or any type of “non-federal funds,” i.e.

funds not subject to federal source and amount limitations, regardless of the purpose to which

the funds will be put. National parties are restricted to soliciting and using only federal funds.

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2 U.S.C. § 441i(a).

5. The Supreme Court requires that federal campaign finance laws be “unambiguously

related to the campaign of a particular federal candidate.” Buckley v. Valeo, 424 U.S. 1, 80

(1976). This threshold requirement assures that the law’s “relation . . . to the purposes of

[FECA]” (i.e., to regulate elections), is not “too remote,” making the provision

“impermissibly broad.” Id. The sole authority that permits restriction of First Amendment

activity in this area is Congress’ authority to regulate federal elections. Id. at 13-14 & n.16

(citing, inter alia, U.S. Const. art. I, § 4). So all federal campaign laws must limit only those

First Amendment activities that are “unambiguously [federal] campaign related,” id. at 81, to

assure that the laws are not too remotely related to their authority.

6. This threshold unambiguously-campaign-related requirement was recognized in

McConnell v. FEC, in its analysis upholding the Federal Funds Restriction facially, where it

required that the activity restricted by the Restriction must “benefit directly federal

candidates.” 540 U.S. 93, 170 (2003) (emphasis added). It was reaffirmed in FEC v.

Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) (“WRTL II”) (“an ad is the functional

equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific candidate”), 2672-73 (corporate-form

corruption interest does not “extend[] beyond campaign speech” to issue advocacy). WRTL II

also said that all doubts or ties in applying its no-other-reasonable-interpretation test must be

resolved in favor of the speaker. Id. at 2666, 2669 n.7, 2674.

7. The unambiguously-campaign-related requirement has recently been recognized

and applied by the Fourth Circuit Court of Appeals and three district courts. See North

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Carolina Right to Life v. Leake, 525 F.3d 274, 282 (4th Cir. 2008) (“Pursuant to their power

to regulate elections, legislatures may establish campaign finance laws, so long as those laws

are addressed to communications that are unambiguously campaign related”); Nat’l Right to

Work Legal Def. and Educ. Found., Inc. v. Herbert, No. 2:07-cv-809, 2008 WL 4181336,

*10 (D. Utah Sept. 8, 2008) (“[T]he government possesses a substantial interest in the

regulation of political speech only when that political speech is unambiguously campaign

related”); Center for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133, 2008 WL

4642268 (S.D. W. Va. Oct. 17, 2008) (same); Broward Coalition of Condos., Homeowners

Ass’ns and Cmty. Orgs. v. Browning, No. 08-445, slip op. (N.D. Fla. Oct. 29, 2008) (same). 

8. Plaintiffs plan 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,” Buckley, 424 U.S. at 80, but they are prohibited by the Federal Funds Restriction.

Plaintiffs will not proceed as planned without the relief herein requested. The Federal Funds

Restriction is unconstitutional as applied to these activities.

Jurisdiction and Venue

9. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 2201,

as well as BCRA § 403, 116 Stat. at 113-14, because Plaintiffs “elect[] such provisions to

apply to this action.” BCRA § 403(d)(2), 116 Stat. at 114.

10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) and BCRA § 403,

116 Stat. at 113-14.

Parties

11. Plaintiff Republican National Committee “ha[s] the general management of the

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Republican Party, subject to direction from the national convention.” Rule 1, Rules of the

Republican Party (2004). It is “[a] national committee of a political party” under 2 U.S.C.

§ 441i(a).

12. Plaintiff California Republican Party is the state Republican Party of California. It

is “a State . . . committee of a political party” under 2 U.S.C. § 441i(b)(1).

13. Plaintiff Republican Party of San Diego County is a “local committee of a

political party” under 2 U.S.C. § 441i(b)(1).

14. Plaintiff Robert M. (Mike) Duncan is the National Committeeman of the Kentucky Republican Party and the RNC Chairman, in which capacity he is RNC’s chief

executive officer.

15. Defendant Federal Election Commission (“FEC”) is the government agency with

enforcement authority over FECA.

Facts

16. RNC intends to (a) create a New Jersey Account for state funds subject to New

Jersey state law, (b) solicit funds into the account under New Jersey state law, and (c) use

those state funds to support state Republican candidates in the November 10, 2009 election.

There are no federal candidates on the 2009 ballot in New Jersey. RNC intends to support the

Republican gubernatorial candidate as well as Republican candidates for the State Assembly

and Senate. This support would include, among other activities, communications expressly

advocating the election and defeat of state candidates, contributions to the campaigns of state

candidates, and contributions to the political parties involved. RNC is ready and able to do

this activity, and it would do this activity but for the fact that the Federal Funds Restriction

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makes it a crime. This activity, however, is not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80. Unless RNC is able to obtain the

timely judicial relief requested herein, it will not do this activity. RNC intends to solicit and

use state funds in materially similar situations in the future, if permitted.

17. RNC intends to (a) create a Virginia Account, for state funds subject to Virginia

state law, (b) solicit funds into the account under Virginia state law, and (c) use those state

funds to support Republican candidates for the November 10, 2009 election. There are no

federal candidates on the 2009 ballot in Virginia. RNC intends to support the Republican

gubernatorial candidate as well as Republican candidates for the State Assembly. This

support would include, among other activities, communications expressly advocating the

election and defeat of state candidates, contributions to the campaigns of state candidates, and 

and contributions to the political parties involved. RNC is ready and able to do this activity,

and it would do this activity but for the fact that the Federal Funds Restriction makes it a

crime. This activity, however, is not “unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. Unless RNC is able to obtain the timely judicial

relief requested herein, it will not do this activity. RNC intends to solicit and use state funds

in materially similar situations in the future, if permitted.

18. RNC intends to (a) create a Redistricting Account, for non-federal funds and

state funds subject to state law, (b) solicit funds into the account under applicable state laws,

and (c) use those state funds to support the redistricting efforts of various states Republican

parties following the 2010 census. RNC intends to provide logistical support to the parties

and state legislators involved in redistricting, e.g., computer redistricting software, litigation

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support, as well as direct support or opposition to related state initiatives and litigation

support, if necessary. This activity is not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80. RNC is ready and able to do this

activity, and it would do this activity but for the fact that the Federal Funds Restriction makes

it a crime. Unless RNC is able to obtain the timely judicial relief requested herein, it will not

do this activity. RNC intends to solicit and use non-federal funds and state funds in materially

similar situations in the future, if permitted.

19. RNC intends to (a) create a Grassroots Lobbying Account, for non-federal

funds, (b) solicit non-federal funds into the account and (c) use those funds to support

grassroots lobbying efforts for federal legislation and issues important to the Republican

Party’s platform. This activity is not “unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. RNC is ready and able to do this activity, and it

would do this activity but for the fact that the Federal Funds Restriction makes it a crime.

Unless RNC is able to obtain the timely judicial relief requested herein, it will not do this

activity. RNC intends to solicit and use non-federal funds in materially similar situations in

the future, if permitted.

20. RNC intends to (a) create several State Elections Accounts, for state funds, (b)

solicit state funds into the account and (c) use those funds exclusively to support state

candidates in various states. The funds would be solicited and spent in accordance with the

any applicable state law. Support for state candidates from the Fund would include, among

other activities, communications expressly advocating the election and defeat of state

candidates, contributions to the campaigns of state candidates, and contributions to the state

Complaint 7

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and local political parties involved. RNC intends to support state candidates from this Fund

in elections where only state candidates appear on the ballot and in elections where both

federal and state candidates appear on the ballot. This activity is not “unambiguously related

to the campaign of a particular federal candidate.” Buckley, 424 U.S. at 80. RNC is ready and

able to do this activity, and it would do this activity but for the fact that the Federal Funds

Restriction makes it a crime. Unless RNC is able to obtain the timely judicial relief requested

herein, it will not do this activity. RNC intends to solicit and use non-federal funds in

materially similar situations in the future, if permitted.

21. RNC intends to solicit non-federal funds to pay for the present litigation, which

activity is not “unambiguously related to the campaign of a particular federal candidate.”

Buckley, 424 U.S. at 80. RNC wants to solicit non-federal funds into a Litigation Account to

be used solely for paying the fees and expenses attributable to this case. RNC is ready and

able to do this activity, and it would do this activity but for the fact that the Federal Funds

Restriction makes it a crime. Unless RNC is able to obtain the timely judicial relief requested

herein, it will not do this activity. RNC intends to solicit and use non-federal funds in

materially similar situations in the future, if permitted.

22. RNC Chairman Duncan intends to (1) solicit people to contribute state funds and

non-federal funds to RNC’s New Jersey Account, Virginia Account, Redistricting Account,

Grassroots Lobbying Account, State Elections Accounts and Litigation Account, (2) solicit

people to contribute state funds to the California Republican Party, and (3) solicit people to

contribute state funds to the campaigns of Republican candidates for state office appearing on

the November 2009 ballot in New Jersey and Virginia. Chairman Duncan intends to make the

Complaint 8

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described solicitations in his official capacity as RNC Chairman on behalf of RNC, i.e., as an

“officer or agent acting on behalf of such a national committee.” 2 U.S.C. § 441i(a)(2). Mr.

Duncan’s solicitation of funds for the RNC accounts described above, state parties, and state

candidates’ campaigns is not “unambiguously related to the campaign of a particular federal

candidate.” Buckley, 424 U.S. at 80 (emphasis added). He is ready and able to do this activity,

and he would do this activity but for the fact that the Federal Funds Restriction makes it a

crime. Unless he is able to obtain the timely judicial relief requested herein, he will not do

this activity. Chairman Duncan intends to solicit state funds and non-federal funds in

materially similar situations in the future, if permitted.

23. California Republican Party and Republican Party of San Diego County (collectively “CRP”) intend to use state funds for public communications, 2 U.S.C. § 431(22)

(“public communication” definition), to support or oppose the passage of California ballot

initiatives appearing on the June 8, 2010 ballot, which involve the issues of property taxes,

budget reform, and campaign finance. 

24. In past ballot initiative campaigns in California candidates for federal office have

publically supported or opposed ballot initiatives. CRP expects this to happen again and

intends to mention such federal candidates in its public communications. Although “attack”

and “oppose” are undefined in the definition of “federal election activity,” 2 U.S.C.

§ 431(20)(A)(iii), CRP believes that its public communications will “attack” or “oppose”

federal candidates, as these terms are used in the definition of “federal election activity,” and

so its communications must be funded with federal funds. 2 U.S.C. § 441i(b)(1). However,

CRP’s public communications supporting or opposing state ballot initiatives are not

Complaint 9

Case 1:08-cv-01953-RJL Document 1 Filed 11/13/2008 Page 9 of 17
“unambiguously related to the campaign of a particular federal candidate.” Buckley, 424 U.S.

at 80. CRP is ready and able to do this activity, and it would do so but for the fact that the

Federal Funds Restriction makes it a crime. CRP intends to use state funds in materially

similar situations in the future, if permitted.

25. CRP also intends to use state funds for voter registration, voter identification, and

get-out-the-vote activities, as well as “generic campaign activity,” 2 U.S.C. § 431(21), in

future elections where both state and federal candidates appear on the ballot. None of these

activities will be targeted to any federal race or federal candidate. Thus, these activities are

not “unambiguously related to the campaign of a particular federal candidate.” Buckley, 424

U.S. at 80. CRP is ready and able to do these activities, and it would do so but for the fact

that the Federal Funds Restriction makes them a crime because they qualify as “Federal

election activity” under 2 U.S.C. § 441i(b)(1). Unless it is able to obtain the judicial relief

requested herein, CRP will not do these activities. CRP intends to use state funds in materially similar situations in the future, if permitted.

26. In accordance with 2 U.S.C. § 441i(e) no federal candidate or officeholder will

solicit, receive, or spend funds in connection with any of the Plaintiffs’ activities described

above.

27. As noted after the descriptions of each planned activity, Plaintiffs intend to solicit

and use state funds and non-federal funds in materially similar situations in the future, if

permitted. There is a strong likelihood that similar situations will recur, given the facts that

Plaintiffs have engaged in similar activity in the past and that such activity relating to state

candidate elections, ballot initiatives, redistricting, grassroots lobbying and litigation is

Complaint 10

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common, and regularly recurring.

28. If Plaintiffs do not obtain the requested injunctive relief, they will not proceed

with their planned activities. In such an event, they will be deprived of their constitutional

rights under the First Amendment to the United State Constitution and will suffer irreparable

harm. There is no adequate remedy at law.

Count 1

RNC & Duncan—New Jersey Account

29. Plaintiffs RNC and Duncan reallege and incorporate by reference all of the

allegations contained in all of the preceding paragraphs.

30. As applied to the activities that RNC and Chairman Duncan intend to do in

connection with the “New Jersey Account,” supra, the Federal Funds Restriction is unconstitutional because the activity is not “unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the Federal

Funds Restriction does not come within congressional authority to regulate elections and is

overbroad for sweeping in First Amendment activity without authority.

31. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 2

RNC & Duncan—Virginia Account

32. Plaintiffs RNC and Duncan reallege and incorporate by reference all of the

allegations contained in all of the preceding paragraphs.

33. As applied to the activities that RNC and Chairman Duncan intend to do in

connection with the “Virginia Account,” supra, the Federal Funding Restriction is unconstiComplaint 11

Case 1:08-cv-01953-RJL Document 1 Filed 11/13/2008 Page 11 of 17
tutional because the activity is not “unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the Federal

Funds Restriction does not come within congressional authority to regulate elections and is

overbroad for sweeping in First Amendment activity without constitutional authority.

34. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 3

RNC & Duncan—Redistricting Account

35. Plaintiffs RNC and Duncan reallege and incorporate by reference all of the

allegations contained in all of the preceding paragraphs.

36. As applied to the activities that RNC and Chairman Duncan intend to do in

connection with the “Redistricting Account,” supra, the prohibition on soliciting and using

state funds is unconstitutional because the activity is not “unambiguously related to the

campaign of a particular federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold

requirement, the Federal Funds Restriction does not come within congressional authority to

regulate elections and is overbroad for sweeping in First Amendment activity without

constitutional authority.

37. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 4

RNC & Duncan–-Grassroots Lobbying Account

38. Plaintiffs RNC and Duncan reallege and incorporate by reference all of the

allegations contained in all of the preceding paragraphs.

Complaint 12

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39. As applied to the activities that RNC and Chairman Duncan intend to do in

connection with the “Grassroots Lobbying Account,” supra, the Federal Funds Restriction is

unconstitutional because the activity is not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the

Federal Funds Restriction does not come within congressional authority to regulate elections

and is overbroad for sweeping in First Amendment activity without constitutional authority.

40. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 5

RNC & Duncan––State Elections Accounts

41. As applied to the activities that RNC and Chairman Duncan intend to do in

connection with the several “State Elections Accounts,” supra, the Federal Funds Restriction

is unconstitutional because the activity is not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the

Federal Funds Restriction does not come within congressional authority to regulate elections

and is overbroad for sweeping in First Amendment activity without constitutional authority.

42. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 6

RNC & Duncan—Litigation Account

43. Plaintiffs RNC and Duncan reallege and incorporate by reference all of the

allegations contained in all of the preceding paragraphs.

44. As applied to the activities that RNC and Chairman Duncan intend to do in

Complaint 13

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connection with the “Litigation Account,” supra, the Federal Funds Restriction is unconstitutional because the activity is not “unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the Federal

Funds Restriction does not come within congressional authority to regulate elections and is

overbroad for sweeping in First Amendment activity without constitutional authority.

45. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 7

Duncan––Solicitation for State Candidates and Parties

46. Plaintiff Duncan realleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

47. As applied to Chairman Duncan’s intended solicitation of contributions to state

parties and state candidates, supra, the Federal Funds Restriction is unconstitutional because

the activity is not “unambiguously related to the campaign of a particular federal candidate.”

Buckley, 424 U.S. at 80. Failing this threshold requirement, the Federal Funds Restriction

does not come within congressional authority to regulate elections and is overbroad for

sweeping in First Amendment activity without constitutional authority.

48. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 8

CRP—PASO Activities for California Initiatives

49. Plaintiff CRP realleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

Complaint 14

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50. As applied to CRP’s intended public communications supporting or opposing

California ballot initiatives, supra, the Federal Funds Restriction is unconstitutional because

the activity is not “unambiguously related to the campaign of a particular federal candidate.”

Buckley, 424 U.S. at 80. Failing this threshold requirement, the Federal Funds Restriction

does not come within congressional authority to regulate elections and is overbroad for

sweeping in First Amendment activity without constitutional authority.

51. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Count 9

CRP ––Non-targeted “Federal Election Activity”

52. Plaintiff CRP realleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

53. As applied to CRP’s intended “Federal election activity” in future elections,

which will not targeted at any federal candidate or race, supra, the Federal Funds Restriction

is unconstitutional because the activity is not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80. Failing this threshold requirement, the

Federal Funds Restriction does not come within congressional authority to regulate elections

and is overbroad for sweeping in First Amendment activity without constitutional authority.

54. As applied to the proposed activities, the Federal Funds Restriction is unconstitutional under the First Amendment guarantees of free speech and association.

Complaint 15

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Prayer for Relief

Wherefore, Plaintiffs pray for the following relief:

1. a declaratory judgment declaring 2 U.S.C. § 441i unconstitutional in all the asapplied situations in Counts 1-9;

2. a permanent injunction enjoining defendant FEC from enforcing 2 U.S.C. § 441i

against Plaintiffs in all the as-applied situations in Counts 1-9;

3. costs and attorneys fees pursuant to any applicable statute or authority; and

4. any other relief this Court in its discretion deems just and appropriate.

Complaint 16

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Charles H. Bell, Jr., 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and San Diego Republican Party

Respectfully submitted,

 /s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO0041

 /s/ Richard E. Coleson

Richard E. Coleson*

 /s/ Clayton J. Callen

Clayton J. Callen*

/s/ Kaylan L. Phillips 

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice Motion pending

Complaint

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