)

v. ) Three-Judge Court Requested

)

Federal Election Commission, ) Oral Argument Requested

)

Defendant. )

))

MOTION FOR PRELEMENARY INJUNCTION

Plaintiff Virginia James, by and through undersigned counsel, moves this

Court for a preliminary injunction enjoining the Federal Election Commission(“the Commission”), from enforcing the aggregate limit on contributions to

candidate committees (“sub-aggregate limit”) under the Bipartisan Campaign

Reform Act. Pub. L. 107-155, 116 Stat. 93 (2002) (“BCRA”); 2 U.S.C. §

441a(a)(3)(A) (indexed for inflation per 11 C.F.R. § 1 10.5(b)(4) at 76 Fed. Reg.

8368 (Feb. 14, 2011 )). As set forth in the accompanying Memorandum of Law in

support of this Motion, if Ms. James is required to abide by the sub-aggregatelimit, she will be denied the hill expression of her First Amendment rights to

association and speech. Absent an injunction from this Court. Ms. James

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from utilizing PACs or political parties as a means of circumventing the limits on

contributions to individual candidate committees. However, for reasons

enumerated in the accompanying Memorandum of Law in support of this Motion.neither the anti-corruption nor the anti-circumvention rationales exists as regards to

the sub-aggregate limit, either facially or as applied to Ms. James. Thus, the

Commission, the agency charged with enforcing the Federal campaign financelaws, may not enforce the sub-aggregate limit against Ms. James.

Ms. James is likely to succeed on the merits of her constitutional claims.

Plaintiff would be irreparably harmed if the Commission enforces the subaggregate limit against her, thereby placing an unconstitutional burden on

Plaintiffs First Amendment rights. Moreover, neither the public interest tier the

Commission’s interest is contrary to the entering of an injunction. Consequently,

Ms. James meets the standard for the issuance of a preliminary injunction, and

requests that this Court enter the same.

Pursuant to LCvR 7(m) of this Court. Plaintiff has conferred with opposing

counsel by telephone, and Defendant opposes this motion.

7
is! Allen Dickerson

Allen DickersonCenter for Competitive Politics

124 West Street South

Suite 201

Alexandria. Virginia 22314Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson(21 campaigrifreedom.org

Counselfor PlaintUf

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mail:

David KolkerAssociate General Counsel

Federal Election Commission999 E Street, NW

Washington, DC. 20436

Phone: 202.694.1650

Facsimile: 202.219.0260

Email: dkoIkerfec.govCounselfor Defendant. FEC

s/ Allen Dickerson

Allen Dickerson

4
a

t

, )

Case No. 1:12-cv-01451

v. )

Three-Judge Court Requested

Federal Election Commission,

Oral Arument Requested

Defendant. )

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

Allen Dickerson, DCBarNo. 1003781

Center for Competitive Politics

124 West Street South,

Suite 201

Alexandria, Virginia 22314Phone: 703.894.6800Facsimile: 703.894.6811adickersoncampaignfreedom.org

Counselfor Plaintff
Facts 1.

Argtment 3.

I. Standard for preliminary injunction 3.

II. Ms. James will likely succeed on the merits 3.

A. Legal landscape and historical background 4.

B. Buckley v. Va/eo and McConnell v. FEC 6.

III. Standard of review for aggregate contribution limits 10.fl/ The aggregate contribution limit of $46,200 to candidate

conirniltees is not closely drawn to a sufficiently important

governmental interest 13.

A. 2 U.S.C. § 441a(a)(3)(A), as applied, is not rationally

related to a legitimate governmental interest 16.

V. If this Court does not issue a preliminary injunction,

Ms. James will suffer irreparable harm, but the FEC willnot suffer irreparable harm if the injunction is granted 17.

VI. If this Court issues a preliminary injunction, it will further

the public interest in protecting the First Amendment 20.

Conclusion 21.

11
ACLUv. Reno, 929 F.Supp. 824 (E.D.Pa. 1996) 21

Brady Campaign to Prevent Gun Violence v. Salazar,

612 F. Supp. 2d 1(DD.C. 2009) 3

Buckley ‘,‘. Valeo, 424 U.S. 1(1976) passirn

Careyv.FEC,791 F. Supp. 2d 121 (D.DC. 2011) 3

Carroll v. Princess Anne, 393 U.S. 175 (1968) 18

Chaplaincy ofTuft Gospel Churches v. England.

454 F.3d 290 (D.C. Cir. 2006) 3

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

58 F.3d 738 (D.C. Cir. 1995) 3

Elrod Burns, 427 U.S. 347 (1976) 18FEC v. tht ‘1 Right to Work C’omrn.. 459 U.S. 197 (1982) 10FECi FHs. Right ToLife. Inc.. 551 U.S. 449 (2007) 16

Florida Businessmen for Free Enterprise v. J-Iollvwood,

648 F.2d 956 (5th Cir. 1981) 18

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C. 1970) 20

Hohe v. Casey. 868 F.2d 69 (3d Cr. 1989) 21

Joelner v Village of Wash. Park, 378 F.3d 613 (7th Cir. 2004) 18KR Outdoor. LLC v. City olTrussville.

458 F.3d 1261 (11th Cir. 2006) 21

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

AAACP v. Ala. cx reL Patterson, 357 U.S. 449 (1958) 10

111
Virginian Ry. Co. v. System Fed,?, 300 U.S. 515 (1937) 20

Woody. Georgia, 370 U.S. 375 (1962) 18Yankus i United States, 321 U.S. 414 (1944) 20

Statutes, Rules and ConstitutionsU.S. Const. amend. I passirn

Federal Election Campaign Act VFECA”)

Pub.L. No.92-225,36 Stat. 3(1972) 7

2 U.S.C. § 441a(a)(1)(A) 2, 52 U.S.C. § 441a(a)(3) passim.

2 U.S.C. § 441i(a), (b), (d)-(f) 9

11 C.F.R. § 1 10.5(b)(3)-(4) 2

76 Fed. Reg. 8368 (Feb. 14, 2011) 2,5, 14-15

Other Authorities

CPI Inflation Calculator, Bureau of Labor Statistics,

http://www.bls.gov/dataIinflationcalculator.htm 7

Federal Election Commission Data, individual Contributions

for Virginia James, Jan. I 2011, to Aug. 30. 2012

Iv
is based on the changed state of the law since the landmark campaign finance case

Buckleyv. Valeo.’

Facts

Virginia James wishes to exercise her First Amendment right to associate by

contributing directly to candidates for federal office. She wishes to contribute up to

the aggregate limit of SI 17.000 over a two-year period. 2Ms. James is notchallenging this aggregate limit, and stipulates that her relevant biennial

contributions will not, in the aggregate, exceed SI 17.000.

In the past year, Ms. James gave 55.000 to the Club for Growth, a political

action committee or “PAC.’ 3She also contributed at least S27.000 to individual

candidates she supports, most of which was for primary election contests. 4Shemade all of these contributions in accordance with the $2,500 limit on

424 U.S. 1(1976).2 U.S.C. § 441a(aK3).Ms. James also gave S 1000,000 to independent-expenditure-on[v political aaion committees.

or ‘SuperPACs.” per the decision of the D.C. Circuit in Spcech;Vott.org i. FEC. 599 F.3d 686(DC Cir. 2010). However, contributions to independent-expenditure-on[y committees are notsubject to contribution limits, and consequently not relevant to this case.

‘See Federal Election Commission Data, [ndividual Contributions for Virginia James. Jan. I

2011. to Aug. 30. 2012. available at http:.:.www.fec.gov.finance.:disclosure/advindsea.shtrnl last

accessed Aug. 30. 20]2.
p

p

cycle is via direct contributions of up to S2.500 to individual candidates, consistent

with the individual candidate contribution limit. 6She wishes to do so up to theaggregate contribution cap of$l 17,000. But BCRA requires that she divide that

Si 17,000 among parties. PACs. and candidates, instead of allowing her to choose

which candidates to directly support. Consequently, Ms. James is subject to an

aggregate limit of 46,200 on her monetary participation in this election. 8Other

individuals, who would also like to associate with PACs and parties — in many

cases because those entities may in turn contribute to candidates — may contribute

$70,800 more than Ms. James.

Plaintiff wishes merely to exercise her associational right to contribute

during this election cycle at the same level as those who choose to contribute to

parties and PACs in addition to candidates. Ms. James asks for a ruling allowing

her to make contributions to the extent allowed by Congress, but to do so by

2 U.S.C. § 441a(a)(1)(A) (indexed for inflation peril c.F.R. § I 1O.5(b)(3)-(4) at 76 Fed. Reg.8368 (Feb. 14, 201 1)).

Id.

‘2 U.S.C. 441a(a)(3)(A)-(B) (indexed for inflation peril c.F.R. I I0.5(b)(3)-(4) a176 Fed.

Reg. 8368 (Feb. 14. 20] I)).

2 U.S.C. § 441a(a)(3)(. ) (indexed for inflation peril C.F.R. § llO5(hfl3)-(4) at 76 Fed. Reg.

8368 (Feb. 14, 2011)).

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I. Standard for preliminary injunction

To obtain a preliminary injunction, the moving party must show: (1)

substantial likelihood of success on the merits; (2) that it would suffer irreparable

injury ifthe injunction were not granted; (3) that an injunction would notsubstantially injure other interested parties; and (4) that the public interest would

be furthered by the injunction. 9This Court applies this four-factor test on a sliding

scale, where “a particularly strong showing in one area can compensate for

weakness in another.”° Thus, “[i]fthe showing in one area is particularly strong,

an injunction may issue even ifthe showings in other areas are rather weak.”’

TI. Ms. James will likely succeed on the merits.

When determining whether a preliminary injunction is appropriate, “the

most critical” factor is the plaintiff’s likelihood of success on the merits.’ 2Virginia

Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 11-12 (D.D.C. 2009)

(citing Chaplaincy qfFull Gospel Churches v. England, 454 F.3d 290, 297 (DC. Cir. 2006)).

‘°

England, 454 F.3d at 297.

Brady Campaign, id. (quoting CityFed Fin. Corp. v. Office ofThrfri Supervision, 58 F.3d 738,

747 (D.C. Cir. 1995)).

‘2 Carey v. FEC, 791 F. Supp. 2d 121, 128 (D.D.C. 2011).

3
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protected by the First Amendment, and because statutes limiting such contributionsmust survive exacting scrutiny, the challenged statute is likely unconstitutional.

A. Legal landscape and historical background.

Congress has established a biennial limit on the total value of political

contributions an individual may make in a two-year period.’ 3The current overall

biennial limit is $117,000. This limit is subject to “sub-aggregate” limits on (1) theaggregate amount an individual may contribute to individual candidates in a twoyear period,’ 4(2) the aggregate amount an individual may contribute to politicalcommittees that are not political committees of national political parties in a twoyear period,’ 5and (3) the aggregate amount of “any other contributions” anindividual may make in a two-year period.’ 6In addition, Congress has also

established “categorical limits” on the amount an individual may contribute to eachof three categories of political actors during a given election or calendar year: (1)

‘2 U.S.C. § 441a(a)(3).‘2 U.S.C. § 441a(a)(3)(A).‘2 U.S.C. § 441a(a)(3)(B). 62 U.S.C. § 441a(a)(3)(B).

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whole. That is. she does not ask to contribute more than S 117,000 to all regulated

entities in tWo. Nor is she challenging 2 U.S.C. § 441a(a)(1)’s categorical iiniit on

contributions to each individual candidate. That is, she will not give more than

$2,500 to any single candidate committee in either the primary or general election

periods.

Instead, she challenges 2 U.S.C. § 441a(a)(3)(A)’s sub-aggregate candidate

contribution limit as an unconstitutional burden on her associational right to

contribute to the individual candidates she supports. Ms. James limits her claims to

2 U.S.C. § 441a(a)(3)(A) and does not challenge any other element of campaign

finance law.

This Court is asked whether Ms. James may constitutionally be prohibited

from contributing more than $46.200 to candidate committees. but less than

$117,000, during this biennium. The question posed, then, is whether Congress

may place an aggregate cap on contributions to candidate committees when the

r’ 2 U.S.C. § 441a(a)(1) (with current price index adjustments reflected at 76 Fed. Reg. 8368

(Feb. 14, 2011)).

82 U.S.C. § 441a(a)(3) (with current price index adjustments reflected at 76 Fed. Reg. 8368

(Feb. 14, 2011)).

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so. its rules must actua]ly address corruption or its appearance, and nmst be

“closely drawn” to accomplish that end 2°Because Congress failed to appropriately

tailor its statutory means to its legitimate legislative ends, the sublimit on aggregate

contributions to candidate committees is unconstitutional.

B. BucMej’ Valea and Mcconnell v. FEC

Plaintiff is aware that the Supreme Court upheld FECA’s aggregate

contribution limit against a constitutional challenge in Buckley, 2’and ]efl that

holding intact in McConnell v. FEC. 22 But the constitutional challenge Ms. James

brings is one of first impression, since neither Buckley nor McConnell addressed

the constitutionality of BCRA’s sub-aggregate limit on contributions to individualcandidates under BCRA.

:c Bickii v. Va/co. 424 U.S. I, 3 (1976).

2G See. e.g. Randall y. Sorrell. 548 U.S. 230. 249 2006).2 Buckley. 424 US. at 38.

221Jcn EEC. 540 US 93 (2003).

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which, in the aggregate, exceed $l,000.25 In analyzing FECA, the Buckley Court

upheld the S 1,000 limit on individual candidate committee (or “hard money”)contributions in the interest of preventing donors from obtaining lLndue influenceover any particular candidate. 26The Court also upheld the $25,000 aggregate limit,

in order to prevent donors from circumventing the ]imits on candidate

contributions by- making large contributions to political parties and othercommittees, which would then funnel those finds, without formal earmarking, to

individual candidates, thereby circumventing the S 1.000 hard money limit. 2’Thus,

the candidate contribution limit was upheld under an anti-corruption rationale, andthe aggregate contribution limit was upheld under an anti-circumvention rationale.

23 Equivalent to roughly SI 16.000 today. CR Inflation Calculalor. Bureau of Labor Statistics. http:::www.bls.govdat&inflationcalculator.htm.

Buckley, 424 U.S. at 38 (citing Federal Election Campaign Act. Pub.L. No. 92-225. 86 Stat. 3

(1972) (“FECA”) §608th)rn.

Id. at 23 (citing FECA 608(b)).Ii at 29. (We find that, under the rigorous standard of review established by our prior

decisions, the “-eighty interests served by restricting the size of financial contributions to

political candidates are sufficient to justit- the limited effect upon First Amendment freedoms

caused by the 51,000 contribution ceiling”). - Id. at 38. Note that actually earmarking contributions to a party to be used for particularcandidate races would be treated by the law as a direct contribution to the candidate, thus

triggering the cap on contributions to individual candidates. What concerned the Court “as that

donors might give with an informal understanding that their contributions to the party would beused for particular candidates. Id.

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might otherwise contribute massive amounts ofmoney to a particularcandidate through the use of unearmarked contributions to politicalcommittees likely to contribute to that candidate, or hugecontributions to the candidate’s political party. The limited, additional

restriction on associational freedom imposed by the overall ceiling isthus no more than a corollary of the basic individual contribution

limitation that we have found to be constitutionally valid.” 2

Thus, to prevent circumention of the SI .000 per candidate ]imitt Buckley upheld

FECAs aggregate limit.

When BCRA modified FECA. it established sub-aggregate limits on each of

three contribution categories: (1) total contributions to candidates, (2) total

contributions to parties, and (3) total contributions to PACs. These limits together

comprised an aggregate cap on total contributions to candidates, parties, andPACs. 3°After BCRA entered into force, the Supreme Court again considered the

constitutionality of aggregate contribution limits in A’ie&nnell v. FEC. 3’

Buckley. 424 U.S. at 38 (emphasis added).This amount is akin to SCRA’s current inflation-adjusted individual candidate contribution

ceiling of 51500.

2 U.S.C. 44[a(a)(3).

McQonndi FEC. 540 U.S. 93(2003).

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aggregate and sub-aggregate contribution limits — without adding to Buckley’santi-circumvention analysis. The Court merely noted, “[cjonsiderations ofstare

decisis, buttressed by the respect that the Legislative and Judicial Branches owe to

one another, provide additional powerful reasons for adhering to the analysis of

contribution limits that the Court has consistently followed since Buckley wasdecided.” 33

Thus, the Court upheld the new sub-aggregate limit on candidate

contributions without finding an anti-corruption or anti-circumvention rationale.

This is logical as applied to those entities that pose a risk of circumvention: partiesand PACs. But it is irrational as applied to candidate committees, and the Court didnot discuss that limit at all.

Since the McConnell Court did not consider the sub-aggregate limit

challenge here, this challenge is a case of first impression.

The Supreme Court has been clear that an aggregate contribution limit is

justified to prevent circumvention of an individual candidate contribution limit.

32 McConnell, 540 U.S. at 133-134 (2003) (citing 2 U.S.C. § 441i(a), (I,), (d)-(O).

331d. at 137-138.

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must, as a result of the overall biennial limit of$ 117,000, conic at the expense of

PACs and party committees. Consequently, allowing Ms. James to contribute more

to candidates directly, and less to PACs and parties, in fact alleviates Thick/eu’s

anti-circumvention concerns. Buckley and McConnell, then, do not address Ms.James’s situation.

HI. Standard of review for aggregate contribution limlic

It has been the law for nearly four decades that, in cases involving limits on

political contributions, government “action which may have the effect of curtailingthe freedom to associate is subject to the closest scrutiny.’ 3While Buckley used

the phrase “the closest scrutiny.” recent case law affirms that contribution limitsare subject to a less-stringent “exacting scrutiny” standard. A brief review of thecase law on exacting scrutiny will outline the contours of the standard of review,

and demonstrate why the challenged law cannot sun’ive exacting scrutiny.

Buckietc 424 U.S. a125 (1976): FEC Nat’lRighuo Work Comm.. 45Q U.S. 197 207 (1982)(both citing NAAcP .A/a. e. ret Patterson. 357 L’S. 449. 460-61 (1958).

10
are 

y subject to strict scrutiny. 35 Neve

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ess, the Court noted that

“even a significant interference with protected rights of political association maybe sustained if the state demonstrates a sufficiently important interest arid employs

means closely drawn to avoid unnecessary abridgement of associational

freedoms.” 36The Court affirmed FECA’s contribution limits, but only hecaLise therestriction focused “precise1v’ on the problem of corruption. 3

Similarly, in McConnell, 3the Court explicitly acknowledged that

expenditures received closer scrutiny than contributions. But the majority opinion

also noted that contribution limitations are still subject to “heightened scrutiny” asthey impinge on the protected freedoms of expression and association. 3

;Vzxon v. Shrink Missouri Government PS4C, gave the now-standard formula

for exacting scrutiny in noting that a contribution limit could survive constitutional

muster if it was “closely drawn” to match a “sufficiently important interest.°Yet, the Court declined to further clarify. stating that it did not “attempt to parse

Buckkv. 424 U.S. at 23.Id. at 25 (internal citations omitted).

:Fj at 28.

McConnell. 540 U.S. at 134.

‘ Id. at 145.

4NLvoii v. ShrinkMo. Go’? PAC. 523 U.S. 377. 337-38S (200O (internal citations omitted).

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found that Missouri had met its factual burden. 43 The case thus reaffirmed thatcontributions are somewhat less protected than expenditures, but not by how much,

nor what specific factors would allow a contribution limitation to survive where an

expenditure limit wou[d not.

Finally. Randall v. Sorrell, 4a case concerning unconstitutionally-low

contribution limits. articulated a two-pafl lest for a cha]lenged contribution

restriction designed to determine ifthe contribution limit was “too low and toostrict to survive First Amendment scrutiny.” 45 The Court found that Vermont’s

low contribution cap was unconstitutional, 46but failed to clarify the precise levelof scrutiny being applied. The ambiguity of the majority opinion did not escape

‘Id. at 388.

‘Id. at 391.431d. at 393.

Randall v. Sorrelh 548 U.S. 230 (2006).

Id. at 248 (articulating a two part test in which the court (1) determines if the statute has the

danger signs of putting challengers and a significant disadvantage: and (2) reviews the recordindependently and carefully with an eye toward assessing the statutes tailoring and

proportionalityL

Idat263.

12
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ut

y is remains unclear. 

What is

known it that it is a heightened standard, but a less stringent one than that appliedto expenditure limits.

Therefore, in light of recent case law. Plaintiff asks the court to review the

statute under exacting scrutiny. Nevertheless. Plaintiff contends that BCRA’s subagegate limit on candidate contributions fails any level of scrutiny.

IV. The aggregate contribution limit of S46,200 to candidate committees

is not closely drawn to a sufficiently important governmental

interest.

Under exacting scrutiny, a law infringing on First Amendment rights may

only be upheld if it is “closely drawn” to a “sufficiently important” interest 5:The

Supreme Court has only permitted two such interests. The government may

permissibly limit contributions to prevent corruption or the appearance of

Id. at 267-68 (Thomas. J.. concurring) (“[N]either step of this test can be reduced to a

workable inquiry to be performed by States attempting to comply with this Court’s

jurisprudence.’).

Id. at 267 (Thomas. J.. concurring) (‘[C]ourts have no yardstick by which to judge the proper

amount and effectiveness of campaign speech.’) (internal citations omitted).

Id. at 22 (Thomas. J.. concurring) (“T]ying an individuals First Amendment rights to de

presence or absence of similar laws in other States is inconsistent with [he First Amendment.”).

Id. at 264 (Kennedy, .1.. concurring).

H Aio,,. 528 LES. at 387-388.

13
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interests and fails exacting scrutiny.

The current aggregate limit for individuals is $ll7,OOO.’ However, the law

does not permit an individual to contribute $1 L7,000 to candidates. Instead, the

statute caps all contributions to candidate committees at S46,2OO.’ The practicaleffect ofthis law is that individuals who wish to express their political views andexercise their associational rights by supporting candidates, and to do so beyond

S46.200, must seek other means of doing so. The means provided by BCRA is

contributions to PACs or parties. indeed, the mere existence of a biennialaggregate cap on individual contributions that is only a third of the total biennialaggregate cap itself actually directs individuals to contribute to parties or PACs—

the very entities whose existence demands the need for an anti-circumventionrationale in the first place, and the entities that are, if anything, disJàvored by

Bucklej c analysis.

°BkI 424 U.S. at 28.

Id. at 45. See also McConnell, 540 U.S. at 145-154 (2003) (upholding restrictions on “soft

rnonev’ under the anti-circumvention rationale).

2U.S.C. § 441a(a)(3); 76 Fed. Reg. .8368 (Feb. 14. 2Q11).

Ia.

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ce. Specifically, she wishes to

contribute within the 52.500 contribution limit of2 U.S.C. § 441 a(a)( I )(A) to

candidates of her choice up to a total of$1 17.000.

Additionally. the anti-corruption interest is not threatened by Ms. Jamess

donations. In setting a cap of SI 1 7J300. Congress has determined that total

contributions in this amount from a single individual are not corupting.’

Moreover, in drafling the categorical limits, Congress determined that individual

contributions to candidate committees consistent with the limits of2 U.S.C. §

441a(a)(l)(A) 57are non-corrupting. Since Ms. James is willing to adhere to both

the limits on individual candidate contributions and the aggregate contribution

limit, there is no thrther anti-corruption interest served by the ‘sub-aggregate’ limit

of 2 U.S.C. §441a(a)(3)(A).

Furthermore, the threat of corrupting “soft money” that the Supreme Court

acknowledged in McConnell does not present any threat in the instant case: BCRA

56 See Buckley. 424 U.S. M 25.

52500 in 2012. See 76 Fed. Reg 8368 (Feb. 14. 2011).

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limit cap is not properly tailored and does not pass exacting scrutiny as it applies to

Ms. James. In fact, because each dollar Ms. James contributes to a candidate is adollar that cannot be contributed to a PAC or party as “unearmarked contributionsto political committees likely to contribute to that candidate, or huge contributions

to the candidate’s political party[ 5her desired contributions would in fact lessenthe danger of circumvention that concerned the Supreme Court in Buckley.

A. 2 U.S.C. §441a(a)(3)(A), as applied, is not rationally related to a

legitimate governmental interest.

While the standard for determining the constitutionality of a statute affecting

First Amendment rights is exacting scrutiny. 602 U.S.C. §44la(a)(3flA) also does

not sun’ive rational basis review. As stated supra. there are only two interests that

the government may rely upon in limiting contributions—I) the prevention of

McCo,;;ell. 540 U.S. at 133.

Buckler. 424 U.S. at 38.

Of course, a statute that cannot sun ive lesser standards of review cannot, by definition,

sunive strict scrutiny. See FEC i’. ftis. Right To Life The.. 551 U.S. 449. 464 (2007).

16
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individual contributing to eighteen candidates to pose a risk of corruption or itsappearance. 6’But the nineteenth candidate cannot be supported at the same level as

the previous eighteen. Nor may our hypothetical contributor associate with a

twentieth candidate at all.

Such a line is arbitrary and lacking in foundation. Moreover, to prohibit

association with a twentieth candidate, but allow significant additional

contributions to entities which mm’ in Itirti make uneannarked contributions qfthat

money to the twentieth candidate, is a decision without any rational basis.

V. If this Court does not issue a preliminary injunction, Ms. James will

suffer irreparable harm, but the FEC will not suffer irreparableharm if the injunction is granted.

The First Amendment is foundational to our political process, and so the loss

ofthe freedom of association is particularly harmful during an election cycle. The

Supreme Court held that the “loss of First Amendment freedoms, for even minimal

The 546.200 sub-aggregate [imit. divided by the 51500 limit on contributions to candidates.

velds eighteen candidates to whom the fiu[[ 52.500 maybe given. Similar calculations are used

for the remainder of the paragraph. The number is, of course. lower if a contributor supports the

candidate in both the primary and general elections.

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is no exception. While there will be another fedeial election in two years, the

candidates and issues will change—that is, no future election will be this election.

Additionally, candidates elected in this election will cast votes on vital legislation

in the next Congress. Ms. James wishes to associate with particular candidates this

term in the context of the current political climate. Restricting her ability to do so

will irreparably harm her, in violation of the First Amendment.

In contrast, the FEC will not suffer irreparable injury ifthis Court grants the

relief Ms. James seeks. No path’ can be injured through lack of enforcement of astatute that violates the First Amendment. Any injury the FEC could allege would

o2 Llrod Burns, 427 U.S. 347. 373 (1976) (Inasmuch as this case involves First Amendment

rights of association which must be carefully guarded against infringement by public officeholders, we judge that injunctive relief is clearly appropriate in these cases.’ We agree...lt is

clear therefore that First Amendment interests were either threatened or in fact being impaired at

the time relief was sought. The loss of First Amendment freedoms, for even minimal periods oftime, unquestionably constitutes irreparable injury.”) (internal citation omitted).05 Id. at 374. fn. 29 (recognizing timeliness of action in context of po[itica[ speech) (citing

QarroHL PrincessAnne. 393 U.S. 175. 182 (1968) and Worn/v. Georgia. 370 L’S. 375. 391-

392 (1962)).‘See. e.g..Joelnerv. Village of Wash. Park. 378 F.3d 613. 620 (7th Cir. 2004)(‘Concomitantly, there can be no irreparable harm to a municipality when it is prevented fromenforcing an unconstitutiona[ statute because it is always in the public interest to protect First

Amendmot liberties.”) (internal quotation marks and citations omitted); Florida BusinessmenJor Free Enterprise v. Hollywood. 648 F.2d 956. 959 (5th Cir. 1981) (Given appellantssubstantial likelihood ofsuccess on the merits, however, the harm to the cit from delaying

Its
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James will submit to the candidate contribution limits and the aggregate bienniallimit. She will therefore not give beyond the limit for each candidate, whichCongress has set at what is—in its judgment—a non-corrupting level 67 Ms. James

intends to follow the aggregate limits as well, She asks for the freedom to choosein which manner and with whom to associate. Consequently, the sub-aggregate

limit on contributions to candidate committees is unconstitutional as applied to her.

Finally, as discussed supiv. the courts have consistently noted their concern

that limits on contributions to candidates could be circumvented by contributionsto parties. Since Ms. James will not contribute to panics or PACs, the antienforcement is slight. The public interest does not support the city’s expenditure of time, money,

and effort in attempting to enforce an ordinance that may well be held unconstitutional’)(internal citations omitted).

Buckler. 424 LI.S. at 26 (It is unnecessary to look beyond the Act’s primary purposeto limit

the actuality and appearance of corruption resulting from Large individual financial contributions

—in order to find a constitutionally sufficient justification for the S 1.000 contribution

limitation).

See. e.g. McConnell. 540 US. at 136 (“Our treatment of contribution restrictions reflects more

than the limited burdens they impose on First Amendment freedoms. It aLso reflects theimportance of the interests that underlie contribution limits--interests in preventing ‘both the

actual corruption threatened by large financial contributions and the eroding of public confidence

in the electoral process through the appearance of corruption’) (applying the anticorruptionrationale in examining BCRA) (internal citations omitted).OF See. e.z,id. at 137-138 (stating that Congress relied on Buckler and its progeny when settingcontribution liniks in BCRA).
p

gg

g

not survive any level of scrutiny and are therefore unconstitutional as applied to

Ms. James. Thus, the FEC cannot be harmed by an injunction against an

unconstitutional application of this statute.

VI. If this court issues a preliminary injunction, it will further the public

interest in protecting the First Amendment.

The issuance ofa preliminary injunction in this case would further the public

interest by protecting the freedom of association. While a preliminaiy injunction is

an extraordinary remedy, courts may “go much farther” in granting relief when a

public (as opposed to private) interest is at stake. 68 Constitutional rights are a prime

example of an arena that seriously implicates the public interest. 69 Since “no party

has an interest in the enforcement of an unconstitutional law,” the public interest is

68 Nat/Ass ‘ii. ofFarrnworkers Orgs i. Marshall, 628 F.2d 604, 616 (DC. Cir. 1980) (“As the

Supreme Court has held, Courts of equiEy may. and frequently do, go much farther both to give

and withhold relief in furtherance oidrn public interest than they are accustomed to go when

only private interests are involved’) (citing Virginian Rv. Co. v. System Fed ‘n, 300 US. 515,

552. 1937). quoted with approval. Yakus v. United States, 32 US. 414, 441.

Green

.Kennedy. 309 F. Supp 1127, 1139 (D.DC. 1970) (‘Equity properly grants relief

when considerations of public interest are involved, as distinguished from purely private interest.This principle is properly invoked by plaintiffs claiming denial of constilutional righis”)(citations omitted).

20
y 

p

Amendment rights, it only examines a small portion of campaign finance law: howa contributor can spend (or is prohibited from spending) their money subject to the

candidate contribution and aggregate limits. So while the importance to the public

is high, the relative impact on administration of campaign finance laws is low.

Therefore, issuing a preliminary injunction would protect Ms. Jame&s First

Amendment rights while not greatly impacting the administration of the currentcampaign finance regime. Importantly, the aggregate amount of money available

for contribution to regulated entities would not increase.

Conclusion

The “sub-aggregate” contribution limits can only be upheld if, as applied to

Plaintiff, they enforce the government’s anti-corruption or anti-circumvention

70ACLUV Reno, 929 F. Supp. S24. 849 (ED. Pa. 1996) (citing Elrod, 427 U.S. at 373-74; FIche

v Casey, 868 F.2d 69,72 (3d Cir 1989), cot denied, 493 U.S. 848 (1989); Acierno v New

Qistle Cnly., 40 F.3d 645. 653 (3d Cir. 1994)).

5cc. e.g.. ACLUv. J?eno. 929 F. Supp. at 851 ‘No long stringof citations is necessary to find

that the public interesi weighs in favor of having access to a free flow of constitulionallyprotected speech) (interna] citations ornilled): K]-!. Outdoor, LLC v Cliv of Trusyvilk’. 458 F.3d

1261. 1272 (11th Cir. 2006) (“The public has no interest in enforcing an uncouslilutional

ordinance in the First Amendment context) (internal citations omitted).

21
Respectfully submitted this 5th day of September, 2012.

/s/ Allen DickersonAllen Dickerson, DC Bar No. 1003731

Center for Competitive Politics

124 West Street South, Ste. 201

Alexandria. Virginia 22314Phone: 703.894.6800

Facsimile: 703.894.6811

adickersoncäcampaignfreedom.org

‘2
foregoing document to be served on the following, via electronic and first class

mail:

David Kolker

Associate General Counse’

Federal Election Commission

999 E Street, NW

Washington. D.C. 20436

Phone: 202.694.1650

Facsimile: 202.219.0260Email: dko1kerfec.gov

Counsel for Defendant, FEC

s/Allen DickersonAllen Dickerson

23
)

v. )

)

Federal Election Commission,

)

Defendant. )

))

Order

Upon consideration of the Plaintiffs’ Motion for Preliminary Injunction and

Memorandum in support thereof

IT IS HEREBY ORDERED that the Motion is granted; and it is

FURTHER ORDERED that the Federal Election Commission is

preliminarily enjoined from enforcing the limit on contributions to candidate

committees at 2 U.S.C. § 441a(a)(3)(A).

SO ORDERED this day of 2012.

United States District Judge

United States District Judge

United States District Judge
Plaintiff, )

Case No.: I:12-cv-01451

v. )

Three-Judge Court Requested

Federal Election Commission,

Oral Ar2ument Requested

Defendant. )

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of September. 2012, 1 caused the Motion

for Preliminary Injunction. Memorandirni of Law in Support of Motion for

Preliminary Injunction, and the proposed Order granting the preliminary injunctionto be served on the following, via electronic and first class mail:

David KolkerAssociate General CounselFederal Election Commission999 E Street, NW

Washington, D.C. 20436Phone: 202.694.1650

Facsimile: 202.219.0260

Email: dkolkergfec.gov

Counsellor Defendant, EEC
Telephone: 7038946800

Facsimi[e: 703.894.6811

adickersoncarnpaignfieedorn.org

2