UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF ) 

LOUISIANA, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISSOLVE OR 

 ) DISMISS 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION 

TO DISSOLVE THREE-JUDGE COURT WITH INSTRUCTIONS TO DISMISS 

OR, ALTERNATIVELY, TO DISMISS ACTION 

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, defendant Federal 

Election Commission (“Commission”) respectfully moves this Court for an order dissolving this 

three-judge Court for lack of jurisdiction, with instructions to the single-judge Court to dismiss 

the case or, alternatively, to enter an order dismissing the action. Plaintiffs lack a fundamental 

component of constitutional standing: actual injury. In support of this motion, the Commission 

is filing a supporting Memorandum, Exhibits, and a Proposed Order. 

Consistent with the schedule established by the Court, on March 18, 2016, the 

Commission will be separately filing its motion for summary judgment and opposition to 

plaintiffs’ summary judgment motion. 

Respectfully submitted, 

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

Acting General Counsel 

dpetalas@fec.gov 

Seth Nesin 

Attorney 

snesin@fec.gov 

Case 1:15-cv-01241-CRC-SS-TSC Document 40 Filed 03/15/16 Page 1 of 24
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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 

March 15, 2016 

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 

Case 1:15-cv-01241-CRC-SS-TSC Document 40 Filed 03/15/16 Page 2 of 24
1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF ) 

LOUISIANA, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

SUPPORT OF MOTION TO DISSOLVE THREE-JUDGE COURT WITH 

INSTRUCTIONS TO DISMISS OR, ALTERNATIVELY, TO DISMISS ACTION 

Plaintiffs have shown no injury, and thus have no standing to maintain this challenge, 

because they have no funds that they have alleged they want to use in a manner prohibited by the 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-30146 (“FECA” or “Act”), and no 

reasonable prospect of obtaining such funds. Plaintiffs are a state committee of a political party, 

the Republican Party of Louisiana (“LAGOP”), and two local party organizations, the Jefferson 

Parish Republican Parish Executive Committee (“JPGOP”) and the Orleans Parish Republican 

Executive Committee (“OPGOP”). They wish to raise and spend funds for use on 

communications and other activities affecting federal elections without complying with the 

longstanding contribution limits of FECA. 

Discovery has now established that there is only one source of nonfederal funds that 

plaintiffs wish to use on their desired federal activity: individual contributions in excess of 

FECA’s $10,000 limit. But plaintiffs have no such contributions or contributors ready to give 

them such sums, and they have no sufficiently concrete prospect of receiving such contributions 

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2

in the future. Indeed, the local party plaintiffs have no contributions or contributors at all. In 

any event, FECA does not impose on the local parties the reporting obligations they have 

alleged. And no plaintiff has shown that applicable reporting obligations cause it constitutional 

injury. Because plaintiffs have no injury, this Court lacks the jurisdiction to grant their sweeping 

demands to return federal campaign finance law to the state in which it existed in the 1990s, 

when well-documented abuses involving political parties’ use of soft money occurred. 

Accordingly, this three-judge Court should be dissolved and the matter remanded to the singlejudge district Court for dismissal for lack of jurisdiction, pursuant to Federal Rule of Civil 

Procedure 12(b)(1). Alternatively, the Court may dismiss the action itself. 

BACKGROUND 

I. PLAINTIFFS’ CLAIMS 

Plaintiffs are Louisiana-based state and local committees of the Republican Party. They 

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

state and local parties must generally fund their “[f]ederal election activity” (“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 

Prayer for Relief ¶¶ 3-10 (Docket No. 1) (“Compl.”); see also Mem. Op. at 6-7 (Docket No. 24) 

(“Mem. Op.”).) Plaintiffs’ claims have focused on contributions by individuals, not by 

corporations or other types of persons. (See Pls.’ Reply Mem. Supporting Mot. to Expedite at 1 

(Docket No. 18); Compl. ¶¶ 107, 137; Pls.’ Mot. for Summ. J. at 13 (Docket No. 33); Pls.’ 

Statement of Material Facts Not in Genuine Dispute at 29 ¶ 66 (Docket No. 33).) 

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The essence of plaintiffs’ challenge is their desire to raise individual contributions for use 

on FEA — communications and other activities affecting federal elections — without complying 

with FECA’s longstanding contribution restrictions, to which FEA is generally subject. 

However, as the single-judge Court explained in its opinion convening this three-judge Court, 

“[p]laintiffs do not directly challenge [FECA’s] base contribution limits” in this case. (Mem. 

Op. at 7.) That is because this Court would not have jurisdiction to hear such a challenge; it 

would be “unable” to provide them that relief. (Id. at 14.) Consequently, plaintiffs have instead 

sought to “enable circumvention of [FECA’s] limits” and to “effectively eviscerate” them by 

bringing a different case. (Id. at 7.) This different case asks the Court to invalidate the 

restrictions on state and local parties’ use of nonfederal funds for FEA, known as “soft money,” 

but the case appears to rest primarily on the claim that requiring plaintiffs to use federal funds for 

federal election activity injures them because it subjects them to federal political committee 

registration and reporting requirements. In other words, plaintiffs are seeking to avoid FECA’s 

restrictions on their use of soft money for FEA because they allege that the Act’s disclosure 

provisions — registration and reporting requirements — are burdensome. (Id. at 11-12.) 

II. DISCOVERY 

The brief discovery period the Court authorized enabled the Federal Election 

Commission (“FEC” or “Commission”) to learn certain facts about plaintiffs’ operations, 

proposed activities, and claims. In particular, the FEC gained information about the kinds of 

“nonfederal funds” plaintiffs will use for their proposed FEA. (See, e.g., Mem. Op. at 5-6 

(“[Plaintiffs] seek to use nonfederal funds to engage in a wide variety of non-coordinated 

‘federal election activity,’ including conducting mass mailings exhorting voter registration and 

voting; performing voter identification; undertaking other generic campaign activity; and paying 

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4

some portion of the salaries of employees who spend a significant amount of their time on 

federal election activity.” (citing Compl. ¶¶ 84-106) (footnote omitted).) 

Each plaintiff responded to the FEC’s written discovery requests. (Exh. 1, Pl. LAGOP’s 

Responses to FEC’s First Set of Disc. Reqs. (“LAGOP’s Disc. Responses”); Exh. 2, Pl. JPGOP’s 

Responses to FEC’s First Set of Disc. Reqs. (“JPGOP’s Disc. Responses”); Exh. 3, Pl. OPGOP’s 

Responses to FEC’s First Set of Disc. Reqs. (“OPGOP’s Disc. Responses”).) The FEC also 

conducted a deposition of each plaintiff’s organizational designee pursuant to Federal Rule of 

Civil Procedure 30(b)(6). (Exh. 4, Dep. of Jason Dorè (Jan. 26, 2016) (“LAGOP 30(b)(6) 

Dep.”); Exh. 5, Dep. of Paulette Thomas (Jan. 27, 2016) (“JPGOP 30(b)(6) Dep.”); Exh. 6, Dep. 

of John A. Batt, Jr. (Jan. 27, 2016) (“OPGOP 30(b)(6) Dep.”).) 

Discovery established that the local party plaintiffs, JPGOP and OPGOP, expect no 

individual contributions at any level and have had none in recent years, with the sole exception 

of $1 an individual gave to JPGOP sometime in the last quarter of 2015. (Exh. 5, JPGOP 

30(b)(6) Dep. at 10:7-10; 22:11-18; 47:8-24; Exh. 6, OPGOP 30(b)(6) Dep. at 11:17-19; 21:21-

22:24; 36:24-37:13.) Instead, these plaintiffs have a single and defined source of income: 

“qualifying fees” that candidates pay in order to get on ballots. Exh. 5, JPGOP 30(b)(6) Dep. at 

23:3-10; 25:19-23; 47:25-48:3; Exh. 6, OPGOP 30(b)(6) Dep. at 21:21-22:19; La. Stat. § 18:464; 

Louisiana Secretary of State, Qualify for an Election, 

http://www.sos.la.gov/ElectionsAndVoting/BecomeACandidate/QualifyForAnElection/Pages/de

fault.aspx (last visited Mar. 11, 2016) (“Candidates may qualify for office by paying a qualifying 

fee or by filing a nominating petition.”). As LAGOP’s designee explained: 

Under State law . . . both parties, [R]epublican and [D]emocratic 

parties, are allowed to charge up to [a certain] percent of what the 

State or local governing body charges for a qualifying fee for an 

office. The candidate pays their qualifying fee to either the 

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5

Secretary of State or the respective clerk of court, and those 

percentage of fees owed to the Party are remitted back to the State 

Party . . . . They prefer it be used for party building purposes and 

overhead. 

Exh. 4, LAGOP 30(b)(6) Dep. at 24:21-25:9; see also La. Stat. § 18:464(G) (such fees “shall be 

used solely for the operation of such committees. No such fees shall be used for the direct 

benefit of any particular candidate for public office”). 

LAGOP, the state party, identified four sources of revenue: (1) donors — individuals and 

businesses; (2) qualifying fees; (3) data fees; and (4) transfers from other committees like the 

Republican National Committee (“RNC”). (Exh. 4, LAGOP 30(b)(6) Dep. at 24:11-27:10.) 

LAGOP is aware of no contributors seeking to give it more than $10,000. (Exh. 4, LAGOP 

30(b)(6) Dep. at 127:21-24; Exh. 1, LAGOP Disc. Responses at 21 (RFA #14) (admitting 

same).) LAGOP receives data fees for providing access to its data center, which contains 

information about voters that LAGOP provides to candidates who it determines are running 

“valid credible campaign[s].” (Exh. 4, LAGOP 30(b)(6) Dep. at 26:8-23.) Transfers from the 

RNC — LAGOP’s overwhelmingly predominant source for such transfers — are federal funds 

that the RNC has raised from permissible sources and decided to provide to LAGOP, which is 

lawful because the base contribution limits “do not apply to transfers between and among 

political committees which are national, State, district, or local committees (including any 

subordinate committee thereof) of the same political party,” 52 U.S.C. § 30116(a)(4). (Exh. 4, 

LAGOP 30(b)(6) Dep. at 27:2-10.) 

III. REGULATORY BACKGROUND 

Under FECA, individuals may contribute up to $10,000 annually to the state committee 

of a given political party and affiliated local committees in that state. 52 U.S.C. 

§ 30116(a)(1)(D). Individuals may give more than $10,000 in a single year to state and local 

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committees only if state law so allows. Louisiana permits individuals to contribute up to 

$100,000 to state political committees, including each party’s state and local committees, over a 

period of four years. La. Stat. § 18:1505.2(K)(1). These “excess” contributions are considered 

to be nonfederal contributions and cannot be used on federal activities such as FEA. 52 U.S.C. 

§ 30125(b)(1). This lawsuit seeks to change that. 

With respect to qualifying and data fees, the FEC’s party committee guide explains that 

“[a]s a general rule, if the funds in question are from permissible sources (e.g., individuals) 

rather than from persons prohibited from making contributions under federal law (e.g., 

corporations, labor organizations, foreign nationals), the funds may be deposited into a federal 

account.” FEC, Political Party Committees at 18 (Aug. 2013), 

http://www.fec.gov/pdf/partygui.pdf. Thus, the agency has opined that ballot fees remitted to a 

state political party committee that were paid by a federal candidate may be deposited into the 

state party committee’s federal account. Advisory Op. 1988-33, 1988 WL 170426, at *4 (Oct. 

11, 1988) (“[T]he Party may deposit in its Federal account a sum that represents its portion of the 

qualification fees and party assessments paid by Florida’s Federal candidates.”). LAGOP has 

availed itself of this guidance. See, e.g., FEC, Republican Party of Louisiana, Report of Receipts 

and Disbursements at 38 (May 15, 2015), 

http://docquery.fec.gov/pdf/453/15970698453/15970698453.pdf (reporting receipt of $9,075 

worth of “federal candidate qualifying fees” in its federal account). Similarly, the Commission 

has opined that income resulting from a party committee’s rental of its mailing list at fair-market 

rates can be deposited into the committee’s federal account and used on federal activities. 

Advisory Op. 2002-14, 2003 WL 715988, at *4 (Jan. 31, 2003) (“The rental payments would be 

considered to be Federal funds usable by the [committee] for federal election purposes and for 

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any other purpose permitted under the Act and the Commission’s regulations.”). Again, LAGOP 

has done this itself. See, e.g., FEC, Republican Party of Louisiana, Report of Receipts and 

Disbursements at 13 (Oct. 20, 2013), 

http://docquery.fec.gov/pdf/022/13942148022/13942148022.pdf (reporting $1,500 in federal 

income from candidate’s payment of a “list rental fee”). 

Finally, because transfers of funds from the RNC consist solely of federally-permissible 

funds, 52 U.S.C. § 30125(a), they may be spent on any federal activities, including FEA. 

ARGUMENT 

This Court lacks jurisdiction over plaintiffs’ claims because plaintiffs are missing an 

essential component of Article III standing: actual injury. Their lawsuit asks this Court to 

invalidate, functionally if not formally, FECA’s provisions restricting their use of a certain kind 

of nonfederal funds — individual contributions that do not comply with FECA’s amount 

restrictions — on activities ranging from specific kinds of “independent” FEA to all FEA. 

(Mem. Op. at 7-8.) Information developed in discovery shows, however, that plaintiffs have no 

such contributions and no reasonable prospect of receiving them in the future. The local party 

plaintiffs, JPGOP and OPGOP, virtually never have contributors of any kind. And LAGOP is 

aware of no one wishing to give it a single dollar that it cannot deposit in its federal account and 

use on any FEA it wishes. Moreover, discovery has confirmed that the injuries identified by the 

single-judge Court are premised on plaintiffs’ erroneous assertions about what reporting 

obligations apply to the local party plaintiffs. Those parties have no injury because FECA does 

not impose upon them the reporting obligations that they previously identified. Finally, 

plaintiffs’ contention that injury resulting from FECA’s disclosure provisions grants them 

standing to challenge FECA’s contribution restrictions contravenes the bedrock jurisdictional 

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principle requiring a logical connection between the injury pled and the relief sought. Plaintiffs’ 

notion that their (illusory) injuries resulting from alleged burdens imposed by FECA’s disclosure 

provisions permit them to invalidate the Act’s contribution restrictions is wholly insubstantial 

and must be rejected. 

I. REQUIREMENTS FOR STANDING 

 

“Every plaintiff in federal court bears the burden of establishing the three elements that 

make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, 

causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) 

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Each of the three plaintiffs in 

this case must have an actual injury that is connected to the relief requested for the case to be a 

“proper object of this District Court’s remediation.” Lewis v. Casey, 518 U.S. 343, 358 (1996) 

(observing that the district court had found “actual injury on the part of only one named 

plaintiff”); Wagner v. FEC, 793 F.3d 1, 4 (D.C. Cir. 2015) (en banc) (explaining that claims of 

two of three plaintiffs had become moot because they were no longer federal government 

contractors), cert. denied sub nom. Miller v. FEC, 136 S. Ct. 895 (2016). The Supreme Court’s 

“standing inquiry has been especially rigorous when reaching the merits of the dispute would 

force [the Court] to decide whether an action taken by one of the other two branches of the 

Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997). 

Standing must exist on the date the complaint is filed and continue to exist throughout the 

litigation. Davis v. FEC, 554 U.S. 724, 734 (2008). 

In addition, “‘[s]tanding is not dispensed in gross.’” Davis, 554 U.S. at 734 (quoting 

Lewis, 518 U.S. at 358 n.6); Wagner, 793 F.3d at 5 (same). “[A] plaintiff must demonstrate 

standing for each claim he seeks to press and for each form of relief that is sought.” Davis, 554 

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U.S. at 734 (internal quotation marks omitted). “If the right to complain of one administrative 

deficiency automatically conferred the right to complain of all administrative deficiencies, any 

citizen aggrieved in one respect could bring the whole structure of state administration before the 

courts for review. That is of course not the law.” Lewis, 518 U.S. at 358 n.6. “‘[A] plaintiff 

who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury 

the necessary stake in litigating conduct of another kind, although similar, to which he has not 

been subject.’” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 999 (1982)). 

If this Court determines that plaintiffs lack standing, it may dissolve itself. Schonberg v. 

FEC, 792 F. Supp. 2d 14, 19 (D.D.C. 2011) (“We . . . hold that this three-judge district court 

lacks jurisdiction to consider Schonberg’s BCRA claim and we grant the Commission’s motion 

to dissolve.”). That is because “[a] three-judge court is not required . . . when the Court lacks 

jurisdiction over a plaintiff’s claims.” Hassan v. FEC, 893 F. Supp. 2d 248, 257-58 (D.D.C. 

2012), aff’d, No. 12-5335, 2013 WL 1164506 (D.C. Cir. Mar. 11, 2013); Shapiro v. McManus, 

136 S. Ct. 450, 455 (2015) (“‘[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.’” 

(quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 100 (1974))). 

Whether the Court grants the FEC’s request for dissolution and remand, or its alternative 

request to dismiss, the result will be the same: “when a three-judge court denies a plaintiff 

injunctive relief on grounds which, if sound, would have justified dissolution of the court as to 

that plaintiff, or a refusal to request the convention of a three-judge court ab initio, review of the 

denial is available only in the court of appeals.” Gonzalez, 419 U.S. at 101; see also id. (“Where 

the three-judge court perceives a ground justifying both dissolution and dismissal, the 

chronology of decisionmaking is typically a matter of mere convenience or happenstance. Our 

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mandatory docket must rest on a firmer foundation than this.”); accord Mem. Op. at 10 n.2 

(noting that “the three-judge court convened to hear Plaintiffs’ challenge will retain and may 

exercise the authority to dissolve itself — an order that would be appealable not directly to the 

Supreme Court, but instead to the U.S. Court of Appeals for the D.C. Circuit”). 

II. PLAINTIFFS LACK STANDING BECAUSE THEY HAVE NO INJURY 

A. The Local Party Plaintiffs Lack Injury 

1. The Local Party Plaintiffs Have No Contributions 

The local party plaintiffs cannot show that FECA causes them any injury because they 

have no contributions at all, much less any individual contributions that could not be used for 

FEA. OPGOP has not received a single contribution of any kind in at least the last eight years. 

(Exh. 6, OPGOP 30(b)(6) Dep. at 11:17-19; 36:24-37:8 (“Q. Can you tell me the last time the 

[committee] received a contribution from any individual? A. I don’t believe we have on my 

watch. . . . Q. What about other types of contributors, organizations? A. No. Q. Same answer, 

not on your watch? A. Correct.”).) JPGOP has received only $1 in contributions during the last 

five years or more. (Exh. 5, JPGOP 30(b)(6) Dep. at 10:7-10; 22:11-18; 47:8-24.)1

Neither committee reasonably anticipates receiving contributions in the future. OPGOP’s 

representative testified that the committee’s efforts at fundraising have “failed miserably.” (Exh. 

6, OPGOP 30(b)(6) Dep. at 29:5-18; see also id. at 37:9-13 (“Q. Are you aware of any individual 

or entity that wishes to contribute to the [committee]? A. I am not. Q. At any level of 

contribution? A. No.”).) JPGOP’s representative testified that the committee does not solicit 

contributions because its “source of income is defined.” (Exh. 5, JPGOP 30(b)(6) Dep. at 47:25-

 

1

 Of course, that $1 individual contribution could be used on FEA. 52 U.S.C. 

§§ 30116(a)(1)(D), 30125(b)(1). 

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48:3; see also id. at 47:8-24 (“Q. Other than the individual dollar contributor, any other 

individual contributors that the Jefferson [committee] is aware of? A. That’s correct. Q. Other 

types of contributors like corporations on entities that you are aware of? A. That does not 

happen. Q. Are you aware of any individual that currently desires to give a contribution to the 

Jefferson [committee]? A. I would have no way of knowing that. . . . Q. . . . I’m asking if you 

are aware of anyone who has communicated to you interest in making a contribution either as an 

individual or a corporation to the Jefferson PEC? A. I’m not aware of any.”). 

With respect to the local party plaintiffs’ sole source of funds, qualifying fees (Exh. 5, 

JPGOP 30(b)(6) Dep. at 23:3-10; 25:19-23; Exh. 6, OPGOP 30(b)(6) Dep. at 21:21-22:19), 

Louisiana law provides that such fees “shall be used solely for the operation of such committees. 

No such fees shall be used for the direct benefit of any particular candidate for public office.” 

La. Stat. § 18:464(G). When the FEC asked whether the local plaintiffs intend to use such funds 

on FEA, the plaintiffs said that these fees are “not relevant” to their claims, a “matter of state 

law,” and “not relevant to this case.” (Exh. 2, JPGOP’s Disc. Responses at 18-19 (Interrogatory 

#7); Exh. 3, OPGOP’s Disc. Responses at 18-19 (Interrogatory #7).) The complaint does not 

seek any relief relating to such fees. Nor does it even mention them. 

It now seems clear that the local parties have challenged restrictions that do not harm 

them. When asked how OPGOP ended up being a plaintiff here, OPGOP’s representative 

answered: “I don’t know.” (Exh. 6, OPGOP 30(b)(6) Dep. at 37:14-18.) 

Q. Do you have an understanding of what [the committee] is trying to 

accomplish in this case? 

A. What the [committee] is trying [to] accomplish in the case? 

Q. Yes. 

A. I believe I do. 

Q. What is that understanding? 

A. Clarification of support for those candidates on the federal level in our 

interactions with them. 

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Q. Anything besides clarification? 

A. No. 

Q. . . . Is there something the committee would like to do but can’t?

A. Referring to the [committee]? 

Q. Yes. 

A. No. Pardon me. I’ll correct that. Getting more republicans elected in 

Orleans Parish. 

(Id. at 37:19-38:10 (emphasis added).)2

 JPGOP’s representative testified that while JPGOP is 

attempting to vindicate its “[f]reedom of speech” by suing the FEC in order to be able to do 

“whatever activities are appropriate to elect not only our local and state officials but also our 

federal officials without the burdensome activity that the FEC would require, if we currently 

supported, federal candidates, for example” (Exh. 5, JPGOP 30(b)(6) Dep. at 51:11-18), it does 

not seek to use the qualifying fees that wholly constitute its budget to support federal candidates 

because the fees “cannot be spent on that because of state law” (id. at 53:2-22); see also id. at 

24:5-8 (the committee’s funds are used for “[m]eetings, refreshments, telephone line, postage, 

printing”); Exh. 6, OPGOP 30(b)(6) Dep. at 19:17-20:25; 22:20-24 (the committee’s funds are 

used for mailings coordinated with nonfederal candidates and “refreshments at meetings”); Exh. 

4, LAGOP 30(b)(6) Dep. at 25:8-9 (noting that the state prefers qualifying fees to “be used for 

party building purposes and overhead”). None of the plaintiffs is suing the state of Louisiana for 

the right to use qualifying fees to support federal candidates. (E.g., Exh. 5, JPGOP 30(b)(6) Dep. 

at 62:15-21.) 

The complaint does state that the local party plaintiffs want to “spend under $5,000 in 

2015 and 2016 on [FEA].” (Compl. ¶ 110.) Although the complaint is devoid of allegations 

 

2

 Plaintiffs have not identified any genuine need for clarification of FECA and FEC 

regulations applying to the local party plaintiffs, but any such clarification can be obtained by 

calling the FEC’s Information Division’s toll-free phone number or by emailing that Division. 

FEC, Quick Answers to Common Questions, http://www.fec.gov/ans/answers.shtml. 

Alternatively, persons can request advisory opinions from the Commission. 52 U.S.C. § 30108.

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discussing specific FEA these plaintiffs wish to spend money on, even if the Court were to 

assume that such intent existed, the plaintiffs’ desired level of activity could be funded by a 

single individual, who could today give JPGOP and OPGOP $5,000 each (and do so again every 

year) in order to fund their FEA. 52 U.S.C. § 30125(b)(1). No law needs to be invalidated in 

order for these plaintiffs to do this activity. What they need is a contributor, not a judgment. 

(Accord Exh. 2, JPGOP’s Disc. Responses at 11 (RFA #16) (admitting that the committee is 

aware of no one wishing to contribute $5,000 or more to it); Exh. 3, OPGOP’s Disc. Responses 

at 12 (RFA #17) (same).) 

The evidence conclusively establishes that the local party plaintiffs do not have an injury 

conferring standing before this Court. That no one wishes to make contributions to these 

plaintiffs is simply not attributable to FECA. 

2. No Registration or Reporting Requirements Restrict or Burden the 

Local Party Plaintiffs’ Desired Activity 

Discovery has also confirmed that the local party plaintiffs’ claim that they would suffer 

injury from reporting obligations if they had contributions is incorrect. In convening this threejudge Court, the single-judge Court relied on plaintiffs’ characterizations of their injuries. 

Observing that although “the allegations in [the] verified complaint are far from crystal clear on 

this point, Plaintiffs appear to claim that their injury derives from being forced to spend only 

federal funds, contained in a federal account and subject to federal regulations, on federal 

election activity.” (Mem. Op. at 11.) The Court explained that, despite this lack of clarity, “for 

the local-party plaintiffs to conduct their desired federal election activity — at least the amount 

of activity they seek to fund — they would be forced to open a federal account and to comply 

with the accompanying regulations and reporting requirements.” (Id. at 11-12.) The Court thus 

concluded that “[b]ecause BCRA forces Plaintiffs to channel funding for most federal election 

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activity through federal accounts, which they allege to be a relatively burdensome alternative to 

funding such activity through existing nonfederal accounts, Plaintiffs have identified an injury — 

a restriction on their speech — that suffices to establish constitutional standing.” (Id. at 12.) 

The local party plaintiffs’ claims that they would have to report their FEA to the 

Commission and open new bank accounts are erroneous. Because JPGOP and OPGOP are not 

federal political committees, and because they want to stay that way by “spend[ing] under $5,000 

in 2015 and 2016 on [FEA]” (Compl. ¶ 110), they are not required to report their FEA to the 

FEC at all. Def. FEC’s Answer to Pls.’ Compl. (Docket No. 19) ¶ 35 (“Answer”); 11 C.F.R. 

§ 300.36(a)(1); Exh. 2, JPGOP Disc. Responses at 11 (RFA #9) (admitting same); Exh. 3, 

OPGOP Disc. Responses at 11 (RFA #10) (same). Thus, the mistaken understanding that these 

plaintiffs would have “to comply with” FEC “reporting requirements” (Mem. Op. at 11-12) 

results from plaintiffs’ inaccurate pleading (Compl. ¶ 35), which warrants reconsideration. See

Nat’l Ctr. for Mfg. Scis. v. Dep’t of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (explaining that 

district court was correct to grant reconsideration where it found errors of law compelling it to 

change its position). Although 11 C.F.R. § 300.36(a)(1) requires organizations like JPGOP and 

OPGOP to “keep records of amounts received or expended . . . and, upon request, . . . make such 

records available for examination by the Commission,” it does not require them to file any 

reports with the FEC. Further, both organizations’ designees testified that this kind of 

recordkeeping is no burden but something “[a]ny reasonable person would do” (Exh. 5, JPGOP 

30(b)(6) Dep. at 29:21-30:2) and “standard operating procedure” (Exh. 6, OPGOP 30(b)(6) Dep. 

at 24:5-15). 

In addition, under the FEC’s regulations, FEA by state and local committees like 

plaintiffs may be paid for with various kinds of accounts, which can include a “federal account.” 

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(Answer ¶¶ 36-39.) The local parties have not alleged that they will receive any relevant 

federally impermissible funds, nor is there any reasonable prospect they will do so. See supra 

pp. 10-11. And, of course, these plaintiffs have no standing to complain about bank accounts 

when they do not have any contributions to deposit into them in the first place. And even if they 

did, this Court lacks the power to invalidate the FEC regulations that govern the local party 

plaintiffs’ uses of bank accounts. The Court’s jurisdiction is limited to hearing challenges to “the 

statute itself,” not FEC regulations. McConnell v. FEC, 540 U.S. 93, 223 (2003), overruled in 

part by Citizens United v. FEC, 558 U.S. 310 (2010); McConnell v. FEC, 251 F. Supp. 2d 176, 

264 (D.D.C. 2003) (per curiam); Bluman v. FEC, 766 F. Supp. 2d 1, 4 (D.D.C. 2011). 

* * * 

In sum, the record developed since this three-judge Court was convened reveals that the 

local party plaintiffs are not injured by having to file any federal reports or disclose any 

contributions for use on FEA, which they have alleged no specific desire to do. (Exh. 6, OPGOP 

30(b)(6) Dep. at 39:4-23 (explaining that although “by virtue of human nature we desire to have 

more resources to be able to do more things,” the committee has not “actually sat down and 

thought about what those things might be”).) Nor are they injured by having to open any new 

bank accounts. These plaintiffs have no injury that is related to any relief requested that is a 

“proper object of this District Court’s remediation.” Lewis, 518 U.S. at 358. 

B. LAGOP Also Lacks Standing 

LAGOP lacks standing because discovery shows it does not reasonably anticipate 

receiving any individual contributions that it cannot spend on FEA. LAGOP is not aware of any 

individual contributor wishing to give it more than the federal limit of $10,000 (Exh. 4, LAGOP 

30(b)(6) Dep. at 127:21-24; Exh. 1, LAGOP Disc. Responses at 21 (RFA #14) (admitting 

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same)). Because any funds raised within that limit are federally compliant and can easily be 

identified as such, LAGOP’s claim based upon the receipt of hypothetical nonfederal funds is 

fictitious.3 

LAGOP’s claims have focused on individual donors as the only source of funds at issue. 

Plaintiffs have stated that this case is about “the right of state and local committees to make 

independent communications . . . with . . . contributions, from individuals, that they have and 

routinely raise.” (Pls.’ Reply Mem. Supporting Mot. to Expedite at 1 (Docket No. 18) (emphasis 

added); see Compl. ¶ 137 (explaining that plaintiffs’ proposed account would “only solicit 

contributions from individuals,” not corporations or unions).) Plaintiffs have repeatedly 

indicated that they will comply with a long list of other FECA contribution prohibitions, 

including the “ban on any contributions by national banks and congressionally authorized 

corporations ‘in connection with any election.’” (Compl. ¶ 107 (fourth bullet (citing 52 U.S.C. 

§ 30118); Pls.’ Mot. for Summ. J. at 13 (Docket No. 33) (averring that “[i]n paying for 

independent FEA, Plaintiffs want to use nonfederal funds, on hand or to be raised, compliant 

with state law and the federal law provisions listed in SMF ¶ 66 (Compl. ¶ 107)”); Pls.’ 

Statement of Material Facts Not in Genuine Dispute at 29 ¶ 66 (Docket No. 33) (same).) 

Corporate contributions are therefore excluded from the case.4

 Furthermore, like the local party 

 

3

 LAGOP has maintained a federal political committee since 1993, and it must continue to 

maintain one due to expenditures it makes each year for the purpose of influencing federal 

elections, such as communications coordinated with candidates. FEC, Candidate and Committee 

Viewer, http://www.fec.gov/finance/disclosure/candcmte_info.shtml (permitting a search for 

LAGOP, committee no. C00187450). LAGOP’s registration and reporting with the 

Commission, and maintenance of a Federal account, are thus not fairly traceable to BCRA. 

4

 Although plaintiffs’ discovery responses and deposition answers mention that they would 

like to use corporate contributions on FEA (e.g., Exh. 1, LAGOP Disc. Responses at 24-25 

(Interrogatory #3)), the court filings cited above disclaim that request, and plaintiffs’ complaint 

and summary judgment motion leave out such contributions. And for good reason, because this 

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plaintiffs, LAGOP admits that the qualifying fees it receives pursuant to Louisiana law are “not 

relevant” to its claims, a “matter of state law,” and “not relevant to this case.” (Exh. 1, 

LAGOP’s Disc. Responses at 28 (Interrogatory #7).) In any event, LAGOP has (consistent with 

FEC guidance) deposited qualifying fees received from Louisiana’s Secretary of State into its 

federal account. See supra p. 6. The same is true of LAGOP’s data fees and the transfers it has 

received from the RNC. See supra pp. 6-7. Consequently, the only nonfederal source of funds 

at issue is LAGOP’s individual contributions. 

When the single-judge Court was determining whether to convene this three-judge Court, 

the FEC contended that there was no standing due to plaintiffs’ failure to identify any individual 

contributor wishing to give them sums exceeding the $10,000 limit on contributions to state and 

local committees. See 52 U.S.C. § 30116(a)(1)(D) (providing 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”); FEC’s Opp’n to 

Pls.’ Appl. for a Three-Judge Ct. at 27 (Docket No. 15) (“Three-Judge Court Opp’n”) (“plaintiffs 

have offered no evidence that, even absent the limit, there is anyone who wants to give them 

such significant sums”). Plaintiffs countered that, e.g., “[t]he gravamen of this case is that 

Plaintiffs want to use funds from their state account, even at the level of $1, for FEA.” (Exh. 1, 

LAGOP Disc. Responses at 30 (Interrogatory #10).) At oral argument, plaintiffs argued that 

they should be free to deposit that $1 individual contribution in their state account “bucket” 

instead of their federal account “bucket” if they so chose. They contended that “there is no 

justification at all for asking [plaintiffs] to comb their contributions to screen them for 

 

Court lacks the authority to invalidate FECA’s ban on corporate contributions in section 

30118(a). Cf. Mem. Op. at 14 (“The Court agrees that a three-judge court would be unable to 

provide Plaintiffs the relief they seek if what they sought was to invalidate the base contribution 

limits put in place by FECA.”); Rufer v. FEC, 64 F. Supp. 3d 195, 203-04 (D.D.C. 2014). 

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compliance with FECA, when they have to date only been screened to meet state requirements” 

and asserted a “screening problem” that makes it “overwhelmingly difficult and burdensome” to 

identify FECA-compliant funds that ended up in LAGOP’s nonfederal account. (E.g., id. at 30-

31 (Interrogatory #10).) 

Discovery has revealed these “screening” contentions to be “[p]ure applesauce.” King v. 

Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting). In fact, LAGOP’s website states 

on its donation page form that “Contributions to The Republican Party of Louisiana received 

from individuals and other federally permissible sources will be deposited in [LAGOP’s] federal 

account.” LAGOP, Donate, http://www.lagop.com/donate (last visited Mar. 14, 2016). 

LAGOP’s designee not only confirmed that this statement is true (Exh. 4, LAGOP 30(b)(6) Dep. 

at 108:5-109:2) but also testified that, “as a general rule, when we have federally compliant 

dollars, they are deposited into the federal account first” (id. at 39:3-5; see also id. at 110:18-24 

(explaining that LAGOP’s treasurer has been “instruct[ed]” to put “all” federally-compliant 

dollars “into the federal account”). This is borne out by LAGOP’s depositing of federallypermissible qualifying and data fees into its federal account. The few federally-permissible 

dollars that ended up in LAGOP’s nonfederal account were deposited there solely for 

convenience. (Id. at 109:8-110:9.) Discovery also revealed that LAGOP has no problem 

screening individual contributions for federal compliance. (Id. at 111:3-112:12.) LAGOP’s 

treasurer simply determines whether the contributor has already given the maximum 

contributions by checking its disclosure database, a process that its compliance firm repeats as a 

“double-check[] before they file a report.” (Id.) 

Discovery also confirmed the obvious: FECA does not prohibit LAGOP from receiving, 

for example, an individual contribution in the amount of $250 and then using such funds on any 

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FEA LAGOP wishes to do. (Exh. 4, LAGOP 30(b)(6) Dep. at 126:8-11.) Despite being able to 

use its federally-permissible funds on FEA, however, LAGOP does not actually want to do that. 

What it wishes to do is “free[] up” (id. at 126:16) its federal money for use on other federally 

permissible expenditures — such as independent expenditures. Thus, even though it can use 

FECA-compliant contributions on FEA, it would prefer to use other, hypothetical nonfederal 

funds on FEA so that FECA-compliant funds can be saved for other federal uses that LAGOP 

values more. (Id. at 126:12-127:20.) 

The result of this discovery is that LAGOP lacks standing to pursue its claims. There is 

not a single dollar that LAGOP has or expects to receive from an individual that it is prevented 

from using on the FEA it alleges it would like to do. Its choice not to use its FECA-compliant 

funds on FEA, because it would prefer to spend those funds on other things, is a “self-inflicted 

harm [that] 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). And even if 

LAGOP or one of the other plaintiffs were now to produce a donor wishing to give it more than 

$10,000, plaintiffs’ claims have been revealed to be what the FEC has said all along: a 

hypothetical challenge to “FECA’s $10,000 base annual limit on [individual] contributions to 

state and local committees” (Three-Judge Court Opp’n at 1) that this Court lacks jurisdiction to 

redress, Mem. Op. at 14 (“The Court agrees that a three-judge court would be unable to provide 

Plaintiffs the relief they seek if what they sought was to invalidate the base contribution limits 

put in place by FECA.”); Rufer v. FEC, 64 F. Supp. 3d 195, 203-04 (D.D.C. 2014). And in any 

case, such a submission would come too late: standing must exist at the time the complaint is 

filed. See Davis, 554 U.S. at 734. Plaintiffs’ lawsuit seeking permission to spend funds they 

currently do not have and have shown no expectation of receiving means the case is “‘essentially 

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fictitious.’” Shapiro, 136 S. Ct. at 455-56 (quoting Bailey v. Patterson, 369 U.S. 31, 33 (1962) 

(per curiam)). It should be dismissed. 

III. PLAINTIFFS LACK STANDING TO CHALLENGE FECA’S CONTRIBUTION 

RESTRICTIONS BASED UPON A DISCLOSURE INJURY 

An independent jurisdictional impediment to all plaintiffs’ standing is the mismatch 

between their supposed injury and the broad relief they request. As the single-judge Court 

determined, to the extent LAGOP or the other plaintiffs have any injury, that injury is being 

“forced to maintain a federal account and to comply with the regulations and reporting 

requirements that accompany such an account.” (Mem. Op. at 11.) But standing “is not 

dispensed in gross.’” Lewis, 518 U.S. at 358 n.6; Wagner, 793 F.3d at 5 (same). The injury the 

single-judge Court identified is exclusively a disclosure-based injury. This injury has nothing to 

do with freeing plaintiffs from limits on the contributions they may receive, or what they can do 

with such contributions. And in discovery, plaintiffs have failed to demonstrate any link 

between such an injury and their requested relief, or any unusual burden they suffer because of 

FECA’s disclosure requirements. 

And even if plaintiffs were bringing a bona fide challenge to the Act’s disclosure 

provisions, those provisions have been overwhelmingly approved by the Supreme Court and the 

D.C. Circuit. See, e.g., Citizens United, 558 U.S. at 310 (“Identification of the source of 

advertising may be required as a means of disclosure, so that the people will be able to evaluate 

the arguments to which they are being subjected.” (internal quotation marks omitted)); Buckley v. 

Valeo, 424 U.S. 1, 68 (1976) (per curiam) (holding that the Act’s disclosure requirements for 

political committees “directly serve substantial governmental interests”); SpeechNow.org v. 

FEC, 599 F.3d 686, 698 (D.C. Cir. 2010) (en banc) (political committee disclosure requirements 

further the public’s “interest in knowing who is speaking about a candidate and who is funding 

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that speech,” and “deter[] and help[] expose violations of other campaign finance restrictions”), 

cert. denied, 562 U.S. 1003 (2010). Furthermore, disclosure provisions are evaluated not based 

on whether they are closely drawn to match the government’s important interest in limiting quidpro-quo corruption (the standard for evaluating generally applicable contribution limits, 

McCutcheon v. FEC, 134 S. Ct. 1434, 1445 (2014)), but with respect to whether they have a 

substantial relation to the government’s important interests, Citizens United, 558 U.S. at 366-67, 

such as providing the public with information. Such disclosure-based interests extend beyond 

reducing the risk and appearance of quid-pro-quo corruption. E.g., McCutcheon, 134 S. Ct. at 

1459 (“Disclosure requirements are in part justified based on a governmental interest in 

provid[ing] the electorate with information about the sources of election-related spending.” 

(internal quotation marks omitted)). 

Accordingly, plaintiffs’ attempt to “eviscerate” (Mem. Op. at 7) FECA’s soft money 

contribution limits on the basis of a disclosure injury is insubstantial and federal courts lack 

jurisdiction to hear it. See Shapiro, 136 S. Ct. at 455 (“Absent a substantial federal question, 

even a single-judge district court lacks jurisdiction . . . .”). Plaintiffs’ case should be dismissed. 

CONCLUSION 

For the foregoing reasons, the Court should dissolve this three-judge Court with 

instructions to the single-judge Court to dismiss or, alternatively, dismiss the case for lack of 

jurisdiction. 

Respectfully submitted, 

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

Acting General Counsel 

dpetalas@fec.gov 

Seth Nesin 

Attorney 

snesin@fec.gov 

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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 

March 15, 2016 

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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