1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

REPUBLICAN NATIONAL COMMITTEE et al. ) 

) 

Plaintiffs, ) 

) 

v. ) 

) Civ. No. 08–1953 (BMK, RJL, RMC) 

FEDERAL ELECTION COMMISSION, ) 

) THREE-JUDGE COURT 

Defendant ) 

and ) 

) 

REPRESENTATIVE CHRISTOPHER VAN ) 

HOLLEN, JR. ) 

) 

Defendant-Intervenor. ) 

__________________________________________) 

UNOPPOSED MOTION OF BRENNAN CENTER FOR JUSTICE, COMMON CAUSE, 

DEMOS, US PIRG, AND LEAGUE OF WOMEN VOTERS US TO PARTICIPATE AS 

AMICI CURIAE

Concerned groups The Brennan Center for Justice at NYU School of Law (“Brennan 

Center”), Common Cause, Dēmos: A Network for Ideas and Action (“Dēmos”), The League of 

Women Voters of the United States (“the League”), and U. S. Public Interest Research Group 

(“U.S. PIRG”), by their undersigned counsel, respectfully move this Court for leave to 

participate as amici curiae in the above-captioned matter in opposition to Plaintiffs and to file the 

attached Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment 

(“Memorandum”). 

Pursuant to Local Civil Rule 7(m), counsel for amici have discussed this nondispositive 

motion with counsel for Plaintiffs, Defendant FEC and Defendant-Intervenor Representative Van 
2

Hollen—all of whom have consented to the participation of the above groups as amici curiae in 

this proceeding. This motion is unopposed. 

As grounds for this unopposed motion, amici would show unto the Court that: 

1. Proposed amicus The Brennan Center for Justice at NYU School of Law 

(“Brennan Center”) is a non-partisan institute dedicated to a vision of effective 

and inclusive democracy. The Brennan Center’s Campaign Finance Project 

promotes reforms to ensure that our elections embody the fundamental principal 

of political equality underlying the Constitution. Through legislative efforts and 

litigation, the Brennan Center actively supports strong federal campaign finance 

laws that meet constitutional standards and encourage broad candidate 

participation in federal elections. The Brennan Center served as counsel to 

Intervenor-Defendants Senator John McCain, Senator Russell Feingold, 

Representative Christopher Shays, Representative Martin Meehan, Senator 

Olympia Snowe, and Senator James Jeffords in McConnell v. FEC, 540 U.S. 93 

(2003), which upheld the provisions of the Bipartisan Campaign Reform Act 

(“BCRA”) that Plaintiffs now challenge. 

2. Proposed amicus Common Cause is a non-profit, non-partisan citizens’ 

organization with approximately 300,000 members and supporters nationwide. 

Founded in 1970, Common Cause has long supported efforts to improve this 

nation’s campaign finance laws at the nation, state and local levels. In particular, 

Common Cause was a key proponent of the BCRA and has filed amicus curiae 

briefs supporting the constitutionality of BCRA in previous cases, including 

McConnell. 
3

3. Proposed amicus Dēmos: A Network for Ideas and Action is a non-profit, nonpartisan organization whose purpose is to help build a society in which America 

can achieve its highest ideals. Dēmos works to build a democracy that is robust 

and inclusive, with high levels of electoral participation and civic engagement; an 

economy where prosperity and opportunity are broadly shared and disparity is 

reduced; and a revitalized public sector that works for the common good. Dēmos’ 

advocacy in furtherance of these goals includes legal defense of meaningful 

campaign finance regulations that limit the corrosive effect of private fundraising 

and promote public confidence in the integrity of government, such as BCRA’s 

ban on unlimited soft-money contributions to political parties. Dēmos has 

participated as counsel or in an amicus capacity in key campaign finance cases 

including Randall v. Sorrell, 548 U.S. 230 (2006); Duke v. Leake, 524 F.3d 427 

(4th Cir. 2008); and North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 

2008). 

4. Proposed amicus The League of Women Voters of the United States (the 

"League") is a nonpartisan, community-based organization that encourages 

informed and active participation of citizens in government and seeks to influence 

public policy through education and advocacy. The League is organized in more 

than 850 communities in every state and has more than 150,000 members and 

supporters nationwide. One of the League's primary goals is to promote an open 

governmental system that is representative, accountable and responsive, and that 

assures opportunities for citizen participation in government decision making. To 
4

further this goal, the League has been a leader in seeing campaign finance reform 

at the state, local and federal levels for more than two decades. 

5. Proposed amicus The U. S. Public Interest Research Group (U.S. PIRG), is a 

federation of the state PIRGs, was founded in 1984 to conduct research and public 

education on a host of public interest issues including good government, public 

health, and consumer protection. Through our good government work, U.S. PIRG 

has been an outspoken advocate for democratizing campaign financing, engaging 

in efforts to promote small donor incentive programs, low contribution limits, and 

campaign spending limits. Moreover, the State PIRGs have pioneered campaign 

finance reform at the state level in the past decade, supporting lower contribution 

limits in Alaska, Arkansas, Colorado, Massachusetts, Missouri, Montana, Oregon, 

and Vermont. The long-term goals of the U.S. PIRG Democracy Program are to 

revitalize representative democracy and afford ordinary citizens greater political 

influence. Toward that end, U.S. PIRG has produced more than a dozen reports 

highlighting the role of money in elections, the problems created by the 

dominance of large contributors in campaigns, and the potential impact of policy 

solutions to enhance the influence of small donors and average Americans, and 

was also amicus curiae in McConnell. 

6. This motion to participate as amici curiae is timely and amici’s participation will 

not cause any delay in these proceedings. Amici seek leave to timely file a 

Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment on 

March 9, 2009, the deadline set forth in this Court’s December 22, 2008 

scheduling order for Defendant FEC’s Response to Plaintiffs’ Motion for 
5

Summary Judgment. Accordingly, participation by amici as proposed in this 

motion will not delay these proceedings in any way. 

Wherefore, premises considered, The Brennan Center for Justice, Common Cause, 

Demos, League of Women Voters US and US PIRG respectfully pray that this Court will grant 

this motion, permit them to participate in this case as amici curiae and file the attached 

Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment. 

Respectfully submitted, 

/s/ Monica Youn_____ 

 Monica Youn 

 Laura MacCleery 

 Brennan Center for Justice 

 at NYU School of Law 

 161 Avenue of the Americas 

 12th Floor 

 New York, NY 10013-1205 

 Telephone: (212) 998-6741 

 Fax: (212) 995-4550 

 Counsel for Amici Curiae 

 Brennan Center for Justice, 

 Common Cause, Demos, League 

 of Women Voters US, US PIRG 

Dated: March 9, 2009 
i 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

REPUBLICAN NATIONAL COMMITTEE et al. ) 

) 

Plaintiffs, ) 

) 

v. ) 

) Civ. No. 08–1953 (MBK, RJL, 

) RMC) 

FEDERAL ELECTION COMMISSION, ) 

) THREE-JUDGE COURT 

Defendant. ) 

__________________________________________) 

MEMORANDUM OF POINTS AND AUTHORITIES OF THE BRENNAN 

CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, COMMON CAUSE, 

DEMOS, LEAGUE OF WOMEN VOTERS OF THE UNITED STATES AND THE 

US PUBLIC INTEREST RESEARCH GROUP AS AMICI CURIAE OPPOSING

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
ii 

TABLE OF CONTENTS

Page

Table of Authorities ........................................................................................................... iii 

Statement of Interest ............................................................................................................1 

Preliminary Statement..........................................................................................................3 

I. Plaintiffs Fail To Give Adequate Regard For The States’ Interests In 

Enacting Campaign Finance Reform Regulations To Combat Corruption 

Or The Appearance Thereof ....................................................................................7 

A. Plaintiffs’ “Crabbed” View Of Corruption Disregards Applicable 

Supreme Court Case Law As Well As The Factual Record Of 

McConnell....................................................................................................7 

B. Plaintiffs’ Arguments Fail To Account For The State’s Compelling 

Interest In Combatting The Appearance Of Corruption ............................11 

C. Plaintiffs Also Fail To Recognize That The State’s Interests In 

Enacting Campaign Finance Regulations Extend To Regulating 

Conduct That Could Result From The Circumvention Of Such 

Regulations ................................................................................................15 

D. The Evidence In McConnell Demonstrates That Federal 

Candidates And Officeholders Derive Direct Benefit From 

Campaign Contributions To National, State And Local Parties, 

Regardless Of The Uses To Which Those Contributions Are Put.............19 

1. Plaintiffs’ Proposed Use Of RNC Specific Accounts For 

Soft Money Would Facilitate The Very Corruption That 

FECA And BCRA Were Enacted To Combat...............................19 

2. Plaintiffs’ Proposal To Allow CRP To Use Soft Money To 

Fund Election Activities In Mixed Races And State-Only 

Race Would Allow The State and Local Parties To Serve 

As Conduits For Corruption ..........................................................26 

Conclusion .........................................................................................................................31 
iii

TABLE OF AUTHORITIES 

Cases Page(s) 

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) .............................8 

Buckley v. Valeo, 424 U.S. 1 (1976)..........................................................................7, 9, 11 

EMILY’s List v. FEC, 569 F. Supp. 2d 18 (D.D.C. 2008) .................................................30 

FEC v. Colo. Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431 

(2001)...................................................................................................................................8 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ....................................8 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .......................11 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) ..................................................9 

FEC v. Wisconsin Right to Life, Inc. (WRTL II), 127 S. Ct. 2652 (2007) .........................24 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 768 (1978)................................................9 

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

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003)........................................... passim 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)............................................8, 11, 12 

Sabri v. United States, 541 U.S. 600 (2004)................................................................20, 21 

McConnell Filings Page(s) 

Declaration of Wade Randlett, October 1, 2002................................................................11 

Declaration of Senator Warren Rudman, September 13, 2002..........................................10 

Declaration of Alan K. Simpson, October 4, 2002............................................................16 

Report of Donald P. Green, September 23, 2002 ...................................................... passim 

Report of Thomas E. Mann, September 20, 2002..............................................................12 

Report of Robert Y. Shapiro, October 7, 2002 ..................................................................14 
iv

Journal Articles Page(s) 

Jonathan S. Krasno & Frank J. Sorauf, Evaluating the Bipartisan Campaign 

Reform Act (BCRA), 28 NYU Rev. L. & Soc. Change 121 (2003) ...................................13 

David V. Magleby, Rolling in the Dough: The Continued Surge in Individual 

Contributions to Presidential Candidates and Party Committees, 6 The Forum 1 

(2008)...............................................................................................................................4, 5 

Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign 

Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. 

Rev. 119, 123 (2004). ........................................................................................................14

David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political 

Efficacy, 5 Election L.J. 23 (2006) ....................................................................................14 

Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009).............9 

News Articles Page(s) 

Gallup Poll Results, USA Today, July 9, 2007 .................................................................14 

How the Presidents Stack Up, Wall Street Journal Online, May 31, 2006........................15 

Megan King, Business Likes Soft-Money Ban, But Wants More, Roll Call, April 6, 

2005....................................................................................................................................13 

Norman Orenstein & Anthony Corrado, Jr., McCain-Feingold: Reform That Has 

Really Paid Off, Wash. Post, March 31, 2007 .....................................................................4 

Thomas E. Mann, Money in the 2008 Elections: Bad News or Good?, The 

Chautauquan Daily, July 1, 2008.........................................................................................4 
1

Statement of Interest 

The Brennan Center for Justice at NYU School of Law (“Brennan Center”), 

Common Cause, Dēmos: A Network for Ideas and Action (“Dēmos”), The League of 

Women Voters of the United States (“the League”), and U. S. Public Interest Research 

Group (“U.S. PIRG”) (collectively “the Reform Organizations”) submit the following 

Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment, dated 

January 26, 2009. 

The Brennan Center for Justice at NYU School of Law (“Brennan Center”) is a 

non-partisan institute dedicated to a vision of effective and inclusive democracy. The 

Brennan Center’s Campaign Finance Project promotes reforms to ensure that our 

elections embody the fundamental principle of political equality underlying the 

Constitution. Through legislative efforts and litigation, the Brennan Center actively 

supports strong federal campaign finance laws that meet constitutional standards and 

encourage broad candidate participation in federal elections. The Brennan Center served 

as counsel to Intervenor-Defendants Senator John McCain, Senator Russell Feingold, 

Representative Christopher Shays, Representative Martin Meehan, Senator Olympia 

Snowe, and Senator James Jeffords in McConnell v. FEC, 540 U.S. 93 (2003), which 

upheld the provisions of the Bipartisan Campaign Reform Act (“BCRA”) that Plaintiffs 

now challenge.

Common Cause is a non-profit, non-partisan citizens’ organization with 

approximately 300,000 members and supporters nationwide. Founded in 1970, Common 

Cause has long supported efforts to improve this nation’s campaign finance laws at the 

nation, state and local levels. In particular, Common Cause was a key proponent of the 
2

BCRA and has filed amicus curiae briefs supporting the constitutionality of BCRA in 

previous cases, including McConnell. 

Dēmos: A Network for Ideas and Action is a non-profit, non-partisan 

organization whose purpose is to help build a society in which America can achieve its 

highest ideals. Dēmos works to build a democracy that is robust and inclusive, with high 

levels of electoral participation and civic engagement; an economy where prosperity and 

opportunity are broadly shared and disparity is reduced; and a revitalized public sector 

that works for the common good. Dēmos’ advocacy in furtherance of these goals 

includes legal defense of meaningful campaign finance regulations that limit the 

corrosive effect of private fundraising and promote public confidence in the integrity of 

government, such as BCRA’s ban on unlimited soft-money contributions to political 

parties. Dēmos has participated as counsel or in an amicus capacity in key campaign 

finance cases including Randall v. Sorrell, 548 U.S. 230 (2006); Duke v. Leake, 524 F.3d 

427 (4th Cir. 2008); and North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 

2008). 

The League of Women Voters of the United States (the "League") is a 

nonpartisan, community-based organization that encourages informed and active 

participation of citizens in government and seeks to influence public policy through 

education and advocacy. The League is organized in more than 850 communities in 

every state and has more than 150,000 members and supporters nationwide. One of the 

League’s primary goals is to promote an open governmental system that is representative, 

accountable and responsive, and that assures opportunities for citizen participation in 
3

government decision making. To further this goal, the League has been a leader in seeing 

campaign finance reform at the state, local and federal levels for more than two decades. 

The U. S. Public Interest Research Group (U.S. PIRG), a federation of the state 

PIRGs, was founded in 1984 to conduct research and public education on a host of public 

interest issues including good government, public health, and consumer protection. 

Through its good government work, U.S. PIRG has been an outspoken advocate for 

democratizing campaign financing, engaging in efforts to promote small donor incentive 

programs, low contribution limits, and campaign spending limits. Moreover, the State 

PIRGs have pioneered campaign finance reform at the state level in the past decade, 

supporting lower contribution limits in Alaska, Arkansas, Colorado, Massachusetts, 

Missouri, Montana, Oregon, and Vermont. The long-term goals of the U.S. PIRG 

Democracy Program are to revitalize representative democracy and afford ordinary 

citizens greater political influence. Toward that end, U.S. PIRG has produced more than a 

dozen reports highlighting the role of money in elections, the problems created by the 

dominance of large contributors in campaigns, and the potential impact of policy 

solutions to enhance the influence of small donors and average Americans, and was also 

amicus curiae in McConnell. 

Preliminary Statement

Just in the few elections since BCRA, went into effect, the statute appears to have 

achieved its intended goals – stemming the flood of “soft money”1

 that had swamped the 

federal campaign finance system and had allowed the purchase of influence through 

 

1

 We use the term “soft money” to refer to those contributions from corporations and 

unions that are not subject to the Federal Election Campaign Act’s (“FECA”) source-andamount limitations. 
4

multimillion-dollar donations, while not depressing the ability of candidates or political 

parties to express and disseminate their political positions. In the two elections prior to 

BCRA, the national parties raised over $2 billion, with unregulated soft money 

representing almost half of that figure. In the 2004 and 2006 elections – the first two 

after BCRA went into effect – the parties raised the same total amount in hard money 

subject to BCRA’s limits on federal contribution limits. Norman Ornstein & Anthony 

Corrado, Jr., McCain-Feingold: Reform That Has Really Paid Off, Wash. Post, March 31, 

2007; see also David V. Magleby, Rolling in the Dough: The Continued Surge in 

Individual Contributions to Presidential Candidates and Party Committees, 6 The Forum 

1, 1 (2008) (“[T]he Republican National Committee and the Democratic National 

Committee raised more hard money alone in 2004 than they had in both soft and hard 

money contributions combined in 2002.”). Although contribution totals for the 2008 

general election are not yet available, Thomas E. Mann, a Senior Fellow in Governance 

Studies at the Brookings Institution who was one of Defendants’ experts in McConnell, 

stated with regard to the presidential primaries in July 2008: 

Large soft-money contributions to parties from corporations, unions, and 

wealthy individuals (often arranged through intense pressure from elected 

and party officials) are no longer a part of the picture. Presidential 

candidates have focused on hard-money contributors, which are limited to 

$2,300 per donor. 

Thomas E. Mann, Money in the 2008 Elections: Bad News or Good?, The Chautauquan 

Daily, July 1, 2008. This is exactly the result Congress sought in enacting federal 

contribution limits: a regime in which candidates and parties have ample resources to 

express their political views, but in which no contributor may purchase undue influence 

over federal elected officials by writing a multimillion-dollar check. Parties are 
5

flourishing under this new regime. Magleby, supra, at 10 (“Contrary to the speculation 

of some prior to the implementation of BCRA, the soft-money ban did not ‘short circuit 

the efforts...to revitalize political parties.’”). Now that BCRA has “plug [ged] the softmoney loophole,” McConnell v. FEC, 540 U.S. 93, 133 (2003), large soft-money 

donations no longer distort our democratic system through creating the appearance and 

reality of corruption. 

Plaintiffs now ask this Court to permit corporations and unions to, once again, 

write six- or seven-figure checks to the national parties, in an end-run around federal 

contribution limits. Plaintiffs the Republican National Committee and its chairman, 

Duncan (collectively “RNC”), request the ability to raise and spend soft money for the 

following uses: (1) to fund state election activities in races both in which federal and state 

candidates appear on the ballot (hereinafter, “mixed races”) as well as races in which 

only state candidates appear on the ballot (hereinafter, “state-only races”); (2) to support 

Republican redistricting efforts in various states; (3) to support “grassroots lobbying 

efforts” for federal legislation and other issues; (4) to pay for litigation “not involving 

federal elections,” and (5) to pay for costs associated with RNC headquarters. Plaintiffs 

the California Republican Party and the Republican Party of San Diego County 

(collectively “CRP”) request the ability to use soft money: (1) for public communications 

that associate state ballot measures with Republican federal candidates and officeholders, 

or that attack or oppose federal Democratic candidates and officeholders, and (2) to fund 

election activities in mixed races and state-only races without making reference to federal 

candidates. 
6

Although the Supreme Court’s holding in McConnell plainly prohibits these 

activities, Plaintiffs attempt to escape McConnell’s holding by promising to refrain from 

a subset of certain specified abuses that the McConnell Court noted. Plaintiffs promise: 

For example, the RNC will not, in any manner different than or beyond that 

currently afforded to contributors of federal funds, (1) encourage officeholders or 

candidates to meet with or have other contact with contributors to these accounts, 

(2) arrange for contributors to participate in conference calls with federal 

candidates or officeholders, or (3) offer access to federal officeholders or 

candidates in exchange for contributions. Furthermore, the RNC will not use any 

federal candidates or officeholders to solicit funds for any of the Accounts. 

(Pls.’ Mem. Supp. Sum. J. 5-6). Although the loophole Plaintiffs propose to open may 

differ slightly in its dimensions from the loophole that existed pre-BCRA, there is no 

doubt that Plaintiffs’ proposal, once again, would create the same regime of undue 

influence that Congress sought to combat in enacting federal campaign finance reforms 

over the past century. See McConnell, 540 U.S. at 115-116 (“More than a century ago 

the ‘sober-minded Elihu Root’ advocated legislation that would prohibit political 

contributions by corporations in order to prevent ‘the great aggregations of wealth, from 

using their corporate funds, directly or indirectly’ to elect legislators who would ‘vote for 

their protection and the advancement of their interests as against those of the public.’” 

(quoting United States v. UAW-CIO, 352 U.S. 567, 571 (1957)). The as-applied loophole 

that Plaintiffs seek to create would lead “to a ‘meltdown’ of the campaign finance system 

that had been intended ‘to keep corporate, union and large individual contributions from 

influencing the electoral process’. . . ‘leaving us with little more than a pile of legal 

rubble.’” McConnell, 540 U.S. at 129 (quoting S. Rep. No. 105-167, vol. 4, at 4611 

(1998); id., vol. 5, at 7515; id., vol. 3, at 4535 (additional views of Sen. Collins)). 
7

I. Plaintiffs Fail To Give Adequate Regard For The States’ Interests In 

Enacting Campaign Finance Reform Regulations To Combat Corruption Or 

The Appearance Thereof. 

A. Plaintiffs’ “Crabbed” View Of Corruption Disregards Applicable 

Supreme Court Case Law As Well As The Factual Record In McConnell. 

Although Plaintiffs admit, as they must, that Congress’s interest in combating 

corruption and its appearance in enacting campaign finance reform legislation 

encompasses more than quid pro quo exchanges, the theory of corruption that Plaintiffs 

advance is radically narrow. It directly contravenes the holding of McConnell as well as 

the entire body of Supreme Court authority on this issue. Plaintiffs urge this Court to rule 

that Congress has the power to regulate only those contributions that “directly benefit” 

federal candidates in seeking elected office, i.e., those that are “unambiguously related to 

the campaign of a particular federal candidate.” (Pls.’ Mem. Supp. Sum. J. 24.)2

 This 

definition of corruption is nothing more than quid pro quo by another name, and has been 

expressly and repeatedly rejected by the Supreme Court. 

 The McConnell majority specifically considered and rejected a nearly 

indistinguishable theory of corruption: the argument that the corruption rationale justifies 

only regulation of “contributions made directly to, contributions made at the express 

behest of, and expenditures made in coordination with, a federal officeholder or 

candidate.” McConnell, 540 U.S. at 152. As the Court reasoned, “this crabbed view of 

corruption, and particularly of the appearance of corruption, ignores precedent, common 

 

2

 Plaintiffs’ misreading of this isolated phrase from Buckley v. Valeo, 424 U.S. 1, 28 

(1976) as creating an “unambiguously-campaign-related requirement” is addressed at 

length in the Memorandum of Points and Authorities of Senators John S. McCain and 

Russell D. Feingold and Former Representatives Christopher Shays and Martin T. 

Meehan as Amici Curiae Opposing Plaintiffs’ Motion for Summary Judgment, to which 

we respectfully refer the Court. 
8

sense, and the realities of political fundraising exposed by the record in this litigation.” 

Id. Instead, the Court explained that the anti-corruption interest extended to “more subtle 

but equally dispiriting forms of corruption...the danger that officeholders will decide 

issues not on the merits or the desires of their constituencies, but according to the wishes 

of those who have made large financial contributions valued by the officeholder.” Id. at 

153. The Court held that “Congress’ legitimate interest extends beyond preventing 

simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s 

judgment, and the appearance of such influence.’” Id. at 150 (quoting FEC v. Colo. 

Republican Fed. Campaign Comm. (“Colorado II”), 533 U.S. 431, 441 (2001)). 

Thus, the McConnell holding extended an unbroken line of Supreme Court 

precedents that define corruption as the “undue influence” over a federal candidate’s 

judgment that results when a candidate is indebted to a large contributor. Colorado II, 

533 U.S. at 441 (“corruption [was] understood not only as quid pro quo agreements, but 

also as undue influence on an officeholder’s judgment, and the appearance of such 

influence.”(internal citation omitted)); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 

389 (2000) (“In speaking of ‘improper influence’ and ‘opportunities for abuse’ in 

addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery 

of public officials, but extending to the broader threat from politicians too compliant with 

the wishes of large contributors.”); Austin v. Michigan State Chamber of Commerce, 494 

U.S. 652, 660 (1990) (describing corruption in terms of “the corrosive and distorting 

effects of immense aggregations of wealth that are accumulated with the help of the 

corporate form and that have little or no correlation to the public’s support for the 

corporation’s political ideas”); FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 
9

238, 259 (1986) (corruption encompasses the “unfair deployment of wealth for political 

purposes”); FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 208 (1982) (citing First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 768 (1978)); Bellotti, 435 U.S. at 788 n.26 

(“The overriding concern behind the enactment of statutes such as the Federal Corrupt 

Practices Act was the problem of corruption of elected representatives through the 

creation of political debts. The importance of the governmental interest in preventing this 

occurrence has never been doubted.”) (internal citation omitted); Buckley, 424 U.S. at 28 

(“[C]ontribution ceilings were a necessary legislative concomitant to deal with the reality 

or appearance of corruption interest in a system permitting unlimited financial 

contributions....”); see also Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell 

L. Rev. 341, 387-397 (2009) (describing various formulations of anti-corruption rationale 

in Supreme Court jurisprudence). Plaintiffs offer no justification for overturning this 

settled weight of authority. 

Plaintiffs attempt to minimize the Supreme Court’s broad conception of 

corruption by referring to it as the “gratitude theory of corruption” and argue that, at 

some point, any benefit to a federal candidate’s campaign becomes “too attenuated” to 

justify congressional regulation of soft-money contributions. (Pls. Mem. 25.) This 

nomenclature unfairly trivializes the potential of large soft-money contributions to a 

national party to create “undue influence” that can make a federal officeholder beholden 

to a major contributor. If someone opens a door for a Member of Congress, one could 

say that the officeholder feels mere “gratitude” for the courtesy; this bears little 

resemblance to the possible changes in legislative and policy priorities that can occur 

when a corporation or union writes a six-figure check to the Member’s party to benefit 
10

his or her reelection campaign. McConnell, 540 U.S. at 149 (“Who, after all, can 

seriously contend that a $100,000 donation does not alter the way one thinks about–and 

quite possibly votes on–an issue?”(quoting Simpson Decl. ¶ 10)). Plaintiffs’ slipperyslope “attenuation” argument goes nowhere: Plaintiffs offer no evidence that could justify 

overturning Congress’s particular expertise3

 in determining that FECA’s current 

threshold of $28,500 is the point at which a federal officeholder would feel beholden 

rather than merely grateful for a contribution to his or her national party, thus creating 

undue influence over that officeholder’s judgment. 

After reviewing the massive evidentiary record in McConnell, the Court 

determined that large soft-money contributions inherently give rise to corruption or its 

appearance, regardless of the eventual use for which those funds are channeled. See, e.g., 

Declaration of Senator Warren Rudman, September 13, 2002, ¶ 10 (“[The influence 

accorded large donors] is inherently, endemically, and hopelessly corrupting. You can’t 

swim in the ocean without getting wet; you can’t be part of this system without getting 

dirty.”). The evidence established that donors intended large soft-money contributions to 

 

3

 As this Court noted, the subject of campaign fundraising and its potential for undue 

influence is one on which Congress deserves especial deference: 

As Senator Fritz Hollings wryly observed during the Senate debate on 

BCRA: “... The reason we have a debate is because this is the first subject 

we know anything about. All the rest of it is canned speeches that the staff 

gives you, and you come out and you talk about Kosovo, you talk about 

the defense budget, or you talk about the environment, and you read 

scientific statements and everything – but we know about money. Oh boy, 

do we know.” 

McConnell v. FEC, 251 F. Supp. 2d 176, 434 n.2 (D.D.C. 2003) (quoting 147 Cong. Rec. 

S2852-53 (daily ed. March 26, 2001) (statement of Sen. Hollings), rev’d in part, 540 U.S. 

93 (2003). 
11

purchase influence with federal officeholders and that donors believed that influence had, 

in fact, been purchased. McConnell, 540 U.S. at 147 (“For their part, lobbyists, CEOs, 

and wealthy individuals alike all have candidly admitted donating substantial sums of soft 

money to national committees not on ideological grounds, but for the express purpose of 

securing influence over federal officials.”); see also Declaration of Wade Randlett, 

October 1, 2002, ¶ 5 (“For most institutional donors, if you’re going to put that much 

money in, you need to see a return, just as though you were investing in a corporation or 

some other economic venture.”). A system that allows large donors to bid for influence 

makes it inevitable that such influence will, in certain instances, in fact be bought. 

B. Plaintiffs’ Arguments Fail to Account for the State’s Compelling Interest 

in Combatting the Appearance of Corruption. 

 Plaintiffs also almost completely ignore a state interest “[o]f almost equal concern 

as the danger of actual quid pro quo arrangements” – namely, “the impact of the 

appearance of corruption stemming from public awareness of the opportunities for abuse 

inherent in a regime of large individual financial contributions.” Buckley, 424 U.S. at 27; 

see also McConnell, 540 U.S. at 143-145; Shrink Missouri, 528 U.S. at 390; FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 496-97 (1985). In McConnell, this 

Court specifically credited testimony from multiple sources that when a corporation or 

union is able to write a multimillion dollar check to a political party, and members of that 

political party subsequently achieve a legislative or policy outcome that advances the 

interests of that corporation, it is impossible to combat the public perception that 

influence-peddling has occurred. This Court highlighted two examples that demonstrate 

that allowing large soft-money contributions to the national parties puts federal 

officeholders under a cloud of undue influence: 
12

For example, Senator McCain testifies: [T]here’s an appearance [of corruption] 

when there’s a million dollar contribution from Merck and millions of dollars to 

your last fundraiser that you held, and then there is no progress on a prescription 

drug program. There’s a terrible appearance there. There’s a terrible appearance 

when the Generic Drug Bill, which passes by 78 votes through the Senate, is not 

allowed to be brought up in the House shortly after a huge fundraiser with 

multimillion dollar contributions from the pharmaceutical drug companies who 

are opposed to the legislation. 

...Senator Feingold has remarked that “a $200,000 contribution [was] given 2 

days after the House marked up a bankruptcy bill by MBNA. OK, it is not illegal. 

Conceded. Maybe it is not even corrupt, but it certainly has the appearance of 

corruption to me and I think to many people.” 

McConnell, 251 F. Supp. 2d at 684 (internal citation omitted); see also Shrink Missouri, 

528 U.S. at 390 (“Democracy works ‘only if the people have faith in those who govern, 

and that faith is bound to be shattered when high officials and their appointees engage in 

activities which arouse suspicions of malfeasance and corruption.’” (quoting United 

States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961)); see also Report of 

Thomas E. Mann, September 20, 2002, at 32 (“[S]ince most of the largest soft-money 

donors had high stakes in decisions made by Washington policymakers, the public has a 

substantial basis for its concerns about conflicts of interest and corruption of the policy 

process.”). 

This Court in McConnell also credited polling data demonstrating that the 

presence of large contributions leads ordinary citizens to believe that their elected 

representatives may give short shrift to their constituencies’ interests in favor of large 

monied interests. 

Mellman and Wirthlin’s survey found that 71 percent of those polled believe that 

Members of Congress make decisions based on what the big contributors to their 

party want, even if it is not what their constituents want or what the Member 

thinks is in the best interests of the country. An even greater percentage, 84 

percent, believe that Members are more likely to listen to large party contributors 

because of their contributions, and 68 percent think that big contributors to 

political parties have blocked decisions by the federal government that could 
13

improve people’s everyday lives. The poll also reflects that the public perceives 

that their views are given less attention than those of large contributors. Eightyone percent of those polled believe that the views of those corporations, unions, 

interest groups or individuals who donate $50,000 or more to a political party 

would likely receive special consideration from Members of Congress, while only 

24 percent believe a Member is “likely to give the opinion from someone like 

them special consideration.” 

McConnell, 251 F. Supp. 2d at 683 (internal citations omitted). Based on this evidence, 

this Court concluded that “[t]he polling surveys entered into the record provide powerful 

proof that the presence of large donations create the appearance of corruption in the eyes 

of the majority of Americans.” Id. at 517. 

The available polling data from the years since BCRA’s enactment bolster this 

conclusion. Despite the complexities of campaign finance regulation, the American 

public appears to appreciate the benefits of BCRA. In a poll of 800 subjects taken after 

BCRA passed Congress, 50% of respondents agreed with the proposition, “I have more 

optimism about government since campaign finance reform passed Congress and will be 

implemented in November.” Only 31% of respondents disagreed with the statement. 

Jonathan S. Krasno & Frank J. Sorauf, Evaluating the Bipartisan Campaign Reform Act 

(BCRA), 28 NYU Rev. L. & Soc. Change 121, 135 (2003) (citing Institute for 

GlobalPolitics/Pew, June 6-11, 2002). Additionally, a Zogby poll of 301 business 

executives found that 73% agreed “that BCRA’s prohibition on soft money was good for 

both them personally and for the country.” Megan King, Business Likes Soft-Money Ban, 

But Wants More, Rollcall, April 6, 2005. The Committee for Economic Development, 

who were amicus curiae in McConnell, announced the results of this poll by stating, 

“corporate executives are no longer being ‘shaken down’ by elected officials and party 

leaders for soft-money contributions.” Id. Indeed, one of the very articles cited by 

Plaintiffs found that limits on campaign contributions by organizations have a statistically 
14

significant positive effect on public opinion, as does public disclosure of campaign 

contributions. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political 

Efficacy, 5 Election L.J. 23, 33 (2006).

The polling data upon which Plaintiffs rely do nothing to disturb the McConnell

Court’s conclusion that the presence of large soft-money contributions inevitably 

generates the appearance of corruption. Plaintiffs cite a September 2007 Gallup Poll 

indicating that public trust in the federal government had declined below levels measured 

during the Watergate Era, as well as two articles regarding the effect of campaign finance 

regulation as a whole on “citizen perceptions of democratic rule” and “confidence in the 

system of representative government.” (Pls.’ Mem. Supp. Sum. J. 26 n.16.)4

 Plaintiffs 

 

4

 One of the McConnell plaintiffs’ experts, Q. Whitfield Ayres, attempted to make an 

identical argument, offering the lack of statistical correlation between campaign finance 

and trust in government as evidence for the lack of a causal effect of campaign reform on 

trust and satisfaction with government. However, as Defendants’ expert Robert Shapiro 

explained: 

[T]rust and satisfaction with government, as Ayres acknowledges, have been 

affected by other factors like the economy and other indicators of the 

government's effective performance. To make statistical inferences about 

causation requires taking into account multiple factors simultaneously – through 

multivariate statistical analysis. Mr. Ayres would have to control for, and thereby 

exclude the effects of these substantial other factors, such as foreign military 

engagements, and peaks and troughs in the economy, before reaching his 

conclusions. Mr. Ayres makes no such attempt. 

Report of Robert Y. Shapiro, October 7, 2002, at 11. As another of the articles cited by 

Plaintiffs on this point candidly admit,s "available long-term survey data, which measures 

perceptions of 'crookedness' and whether 'government is run by a few big interests,' do 

not precisely answer the more relevant constitutional questions concerning the perception 

of corruption arising from large campaign contributions." Nathaniel Persily & Kelli 

Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion 

Determines Constitutional Law, 153 U. PA. L. Rev. 119, 123 (2004). For an example of 

such confounding factors, we note that in 2007, the year in which Plaintiffs’ Gallup Poll 

was taken, Gallup polls indicated that President George W. Bush’s job approval ratings 

declined to below 30% – levels not seen since Watergate. See Gallup Poll Results, USA 

Today, July 9, 2007, available at http://www.usatoday.com/news/washington/2007-07-
15

imply that this Court should infer, from these data, that BCRA’s restrictions on soft 

money would not advance the state’s interest in preventing the appearance of corruption. 

However, these broad measures of “trust” are not at all probative of the specific question 

that was emphatically answered in the affirmative by the polling data in McConnell: i.e., 

whether the public perceives inherent corruption in large contributions to political parties. 

Both the evidence before the Court in McConnell as well as more recent evidence 

confirms the link between large campaign contributions and the appearance of corruption. 

C. Plaintiffs Also Fail to Recognize that the State’s Interests in Enacting 

Campaign Finance Regulations Extend to Regulating Conduct That 

Could Result From the Circumvention of Such Regulations. 

 

Plaintiffs’ argument that the state’s anticorruption interest extends no further than 

those activities that directly benefit a federal candidate or that are “unambiguously 

related” to a federal election ignores the unanimous view of the McConnell Court “that 

circumvention is a valid theory of corruption.” McConnell, 540 U.S. at 144 (quoting 

Colorado II, 533 U.S. at 456). As the Court explained, because the First Amendment 

does not require Congress to ignore the fact that ‘candidates, donors, and parties test the 

limits of the current law,’ these interests have been sufficient to justify not only 

contribution limits themselves, but laws preventing the circumvention of such limits.” Id.

(quoting Colorado II, 533 U.S. at 457). 

 

09-bush-poll-results_N.htm (last visited March 7, 2009); see also How the Presidents 

Stack Up, Wall Street Journal Online, May 31, 2006, available at

http://online.wsj.com/public/resources/documents/info-presapp0605-31.html (last visited 

March 7, 2009). That “public trust in the federal government” had also declined at this 

time is hardly surprising and says nothing whatsoever about public perceptions regarding 

the efficacy of campaign finance reform in general, much less about the specific 

restrictions on large soft-money contributions enacted in BCRA and upheld by the 

McConnell Court. 
16

In McConnell, the Court considered an “overwhelming” evidentiary record that 

led it to an inescapable conclusion: “From 1996 until the enactment of BCRA, the parties 

used nonfederal funds for the exact purpose that the Supreme Court stated those funds 

cannot be used for: ‘to influence a federal campaign.’” McConnell, 251 F. Supp. 2d at 

767 n.29 (quoting Colo. Republican Fed. Campaign Comm. v. FEC (“Colorado I”), 518 

U.S. 604, 616 (1996)). Despite the pre-BCRA restrictions on the uses of soft money, the 

Court found that “candidates and donors alike have in fact exploited the soft-money 

loophole, the former to increase their prospects of election and the latter to create debt on 

the part of officeholders, with the national parties serving as willing intermediaries.” 

McConnell, 540 U.S. at 146. Extensive testimony in the record demonstrated that 

anything less than a complete ban on large soft-money contributions for the national 

parties would fail to achieve the anti-corruption goals of FECA and BCRA.  As former 

Senator Alan Simpson testified: 

Although soft money cannot be given directly to federal candidates, everyone 

knows that it is fairly easy to push the money through our tortured system to 

benefit specific candidates. I always knew that both the national and state parties 

would find ways to assist my candidacy with soft money, whether it be staff 

assistance, polling, get-out-the-vote activities, or buying television 

advertisements. 

Declaration of Alan K. Simpson, October 4, 2002, ¶ 7; see also Report of Donald P. 

Green (Green I), September 23, 2002, 16 (“Under the pre-BCRA provisions, the parties 

demonstrated great ingenuity in moving money around so as to minimize the amount of 

hard money needed to fund federal election activity.”). As Professor Green testified in 

McConnell, soft-money contributions to the political parties carry an inherent risk of 

corruption since soft-money fundraising practices feature “the conditions that give rise to 

corruption:” 
17

Scholars who study corruption have emphasized three such conditions: (1) large 

payoffs to those involved, (2) small probabilities of detection and punishment, 

and (3) enduring relationships between donors and politicians so that informal 

deals can be monitored and enforced. Unlimited soft money donations satisfy all 

of these conditions. 

Green I at 28 (citing Handbook of Criminology 1062 (Daniel Glaser ed., 1974). 

Thus, the Court found that “large soft-money contributions to national parties are 

likely to create actual or apparent indebtedness on the part of federal officeholders, 

regardless of how those funds are ultimately used.” McConnell, 540 U.S. at 155 

(emphasis added). 

Section 323(a), like the remainder of § 323, regulates contributions, not activities. 

As the record demonstrates, it is the close relationship between federal 

officeholders and the national parties, as well as the means by which parties have 

traded on that relationship, that have made all large soft-money contributions to 

national parties suspect. 

Id. at 154-55. Accordingly, the Court held that the only solution tailored to Congress’s 

anticorruption goals was a complete ban on soft money for the national parties: “The best 

means of prevention is to identify and to remove the temptation.” McConnell, 540 U.S. 

at 153. 

The RNC now promises not to facilitate “access” to federal candidates and 

officeholders if this Court allows the RNC to raise and spend large soft-money 

contributions. Even if such a premise were enforceable, Plaintiffs erroneously assume 

that the Court’s concerns regarding corruption in McConnell were limited to the parties’ 

provision of access to federal candidates and officeholders. Such an assumption confuses 

ends with means. Although the evidentiary record in McConnell discusses direct access 

as the most common means by which undue influence was facilitated pre-BCRA, nothing 
18

in the Court’s opinion suggests that the state’s interest in combating corruption or its 

appearance was limited to preventing direct access. 

To the contrary, the record demonstrated that large contributions created undue 

influence, whether or not the parties offered specific opportunities for access. As this 

Court found in McConnell, “the record suggests that for a Member not to know the 

identities of these donors, he or she must actively avoid such knowledge as it is provided 

by the national political parties and the donors themselves.” McConnell, 251 F. Supp. 2d 

at 488; see also id. (“Donors or their lobbyists often inform a particular Senator that they 

have made a large donation.”) (quoting Declaration of Senator John McCain, October 4, 

2002). As Professor Green explained, “When donors make soft-money donations to 

parties on behalf of candidates, neither the donors nor the parties have any incentive to 

hide this fact from the candidates....” Green I at 28. The RNC’s promises would do 

nothing to prevent influence peddling since they would not constrain potential buyer of 

undue influence (a large soft-money contributor) from attempting to purchase such 

influence, nor would such a pledge on the part of the RNC prevent a federal candidate or 

officeholder from being overly compliant with the wishes of large soft-money 

contributors. 

Moreover, such promises have proven ineffectual in the past. In McConnell, the RNC 

Finance Director submitted sworn testimony that “the RNC does not arrange meetings 

with government officials for any of its donors-federal or nonfederal.” McConnell, 251 

F. Supp. 2d at 502 (citing Declaration of Beverly Ann Shea, October 4, 2002, ¶ 44). 

Despite this policy, the record in McConnell contained a multitude of instances in which 

the national parties had, in fact, requested federal officeholders to meet with large soft-
19

money contributors and to take notice of the wishes of such contributors in setting 

legislative and policy priorities. See, e.g., McConnell, 251 F. Supp. 2d at 498 (“RNC 

Finance Division...may pass along requests to a Member’s scheduler and say ‘this is a 

Team 100 member, could you see if you could fit them in.’”) (citing Deposition of 

Beverly Ann Shea, September 24, 2002, 82); see also id. at 452-53, 500, 501 (citing other 

instances of RNC officials setting up meetings for major donors with Members of 

Congress including RNC Chair asking Senate Majority Leader Dole to meet with the 

“loyal and generous” CEO of Pfizer as well as an RNC employee asking to establish a 

contact in Senator Dole’s office for a “generous” RNC contributor). The RNC’s proposal 

would create a regime of winks and nods that would lend itself to ready circumvention of 

federal hard-money limits and which would do nothing to constrain influence peddling on 

the part of parties and candidates. 

D. The Evidence In McConnell Demonstrates That Federal Candidates 

And Officeholders Derive Direct Benefit From Campaign 

Contributions to National, State and Local Parties, Regardless Of The 

Uses Of Those Contributions. 

1. Plaintiffs’ Proposed Use of RNC Specific Accounts for Soft 

Money Would Facilitate the Very Corruption that FECA and 

BCRA Were Enacted to Combat. 

The Court’s conclusion in McConnell that only a total ban on large soft-money 

contributions to the national parties could achieve the anti-corruption goals of FECA and 

BCRA was predicated on its finding of a unity of interest between the national parties 

and federal candidates and officeholders. 

Because the national parties operate at the national level, and are inextricably 

intertwined with federal officeholders and candidates, who raise the money for the 

national party committees, there is a close connection between the funding of the 

national parties and the corrupting dangers of soft money on the federal political 

process. The only effective way to address this [soft-money] problem of 
20

corruption is to ban entirely all raising and spending of soft money by the national 

parties. 

McConnell, 540 U.S. at 155 (quoting 148 Cong. Rec. H409 (2002) (statement of Rep. 

Shays)); McConnell, 251 F. Supp. 2d at 471 (“The evidence makes clear that the national 

party committees are creatures of their elected federal politician members, who run them 

and set their priorities.”). Plaintiffs now attempt to dispute this finding, arguing that 

“political parties are organizations that promote principles through a variety of means, 

only one of which is electing candidates....” (Pls.’ Mem. Supp. Sum. J. 28.) However, 

as this Court noted, even the Colorado Republican Party has admitted; 

A party and its candidate are uniquely and strongly bound to one another because: 

[a] party recruits and nominates its candidate and is his or her first and natural 

source of support and guidance[;][a] candidate is identified by party affiliation 

throughout the election, on the ballot, while in office, and in the history 

books[;][a] successful candidate becomes a party leader, and the party continues 

to rely on the candidate during subsequent campaigns[;][a] party’s public image 

largely is defined by what its candidates say and do[;][a] party’s candidate is held 

accountable by voters for what his or her party says and does[;][a] party succeeds 

or fails depending on whether its candidates succeed or fail. No other political 

actor shares comparable ties with a candidate. 

McConnell, 251 F. Supp. 2d at 469 (quoting Brief of Colorado Republican Party, 

Colorado II, at 19-20). Plaintiffs offer this Court no reason to disregard the holding and 

factual record of McConnell as well as simple common sense. 

Plaintiffs’ proposal to allow the RNC to raise and spend soft money for particular 

uses in dedicated accounts would do nothing but facilitate the regime of undue influence 

that existed pre-BCRA because Plaintiffs’ proposed segregation of funds fails to 

recognize the common-sense observation that, when corruption is at issue, “[m]oney is 

fungible.” Sabri v. United States, 541 U.S. 600, 606 (2004). In Sabri, eight members of 

the Court rejected petitioner’s argument that a statute prohibiting the bribery of entities 

receiving federal funds exceeded Congress’s regulatory authority because it lacked a 
21

specific nexus between the illegal activity and the federal funds at issue. Although 

Justice Souter’s opinion noted “that not every bribe or kickback ...will be traceably 

skimmed from specific federal payments,” the Court ruled that “corruption does not have 

to be that limited to affect the federal interest.” Id. at 605-06. The Court engaged in a 

common-sense, functional analysis, reasoning, that in the corruption context, “Liquidity 

is not a financial term for nothing; money can be drained off here because a federal grant 

is pouring in there.” Id. Similarly, here, if this Court accepted Plaintiffs’ proposition, a 

donor’s $1 million soft-money check, if used for activities that were not “unambiguously 

related” to a federal election, would free up $1 million in hard money funds that would 

otherwise be needed for those purposes but that could now be dedicated to direct support 

of a federal candidate’s election. Plaintiffs’ proposed establishment of specific 

“Accounts” does nothing to change the fact that large soft-money contributions to the 

national parties would enable Plaintiffs to reallocate funding priorities for hard money 

funds to benefit specific federal candidates, to the same net effect as a direct hard-money 

contribution in excess of FECA limits. 

Furthermore, Plaintiffs can offer neither evidence nor argument establishing that 

the appearance of corruption inherent in large soft-money contributions to the RNC 

would be ameliorated if the RNC channeled such contributions into particular internal 

accounts. As extensively demonstrated in the McConnell record, the public deems large 

contributions to the political parties to inherently corrupting. See supra Section I(B). If 

the public perceives that the RNC has created a loophole in BCRA so that it can once 

again accept six-and seven-figure checks from corporations and unions, the widespread 

public perception that elected officials are for sale will rise again, “except it will all be 
22

worse in the public’s mind because a perceived reform was undercut once again by a 

loophole that allows big money into the system.” McConnell, 251 F. Supp. 2d at 467 

(citing Rudman Decl. ¶ 19).

More specifically, each of the particular uses of soft money which the RNC asks 

this Court to permit would themselves create a substantial risk of corruption and the 

appearance thereof. First, although the RNC proposes to create Virginia and New Jersey 

Accounts and other future accounts dedicated to state-only races, this limitation for 

“state-only” races is meaningless, since the RNC simultaneously proposes to set up a 

“State Elections Account” that would support both state-only and mixed races elections 

activities. Thus, the Virginia and New Jersey Accounts create no net restrictions on use 

of funds. More fundamentally, even if the RNC’s Virginia and New Jersey Accounts 

existed in isolation, they would still pose a substantial threat of corruption. Plaintiffs fail 

to give due weight to the extensive factual record demonstrating that 

federal officeholders and candidates control the national political party 

committees and are so deeply involved in raising non-federal funds for the 

national party committees that there is no meaningful separation between the 

national committees and the federal candidates and officeholders that control 

them. 

McConnell, 251 F. Supp. 2d at 668. Given this Court’s finding that “the national party 

committees are creatures of their elected federal politician members, who run them and 

set their priorities,” id. at 471, every incentive exists for the RNC to steer supposedly 

“state-only” funds in a way that benefits particular federal candidates, and every 

incentive exists for corporate donors and federal officeholders to go along with this 

arrangement. For example, a corporate donor wishing to secure influence over a federal 

officeholder from Virginia seeking reelection in 2010 (“Candidate A”) could make a 

$1 million donation to the Virginia Account in 2009 and inform the RNC that the funds 
23

are intended to identify, register and mobilize Republican voters in Virginia. The donor 

could then inform Candidate A that this donation was intended to benefit her upcoming 

election. There is nothing “indirect” or “attenuated” about the benefit that Candidate A 

would derive from such a donation or the undue influence that would result. McConnell, 

540 U.S. at 167 (“Common sense dictates . . . that a party’s efforts to register voters 

sympathetic to that party directly assist the party’s candidates for federal office.”) 

(emphasis added). The factual record in McConnell, which demonstrated that individual 

nonfederal money donors have made specific requests that the national political party 

apply their nonfederal money gifts to particular federal campaigns, makes such a scenario 

not only plausible but highly likely. McConnell, 251 F. Supp. 2d at 476. Pre-BCRA, the 

national parties, donors, and officeholders collaborated in arrangements that would allow 

soft money to be used for a prohibited purpose: to influence federal elections. See id. at 

768 n.29 (citing Colorado I, 518 U.S. at 616); id. at 476 (citing fundraising letters 

requesting that nonfederal money donations be used for particular federal elections); 

Green I at 28 (“The reality of soft-money donations is that donors are often instructed to 

direct their funds to political parties, which use them in ways that benefit specific 

candidates...”). There is no reason for this Court to open a conduit for such 

circumvention of federal hard-money restrictions. 

The other Accounts the RNC proposes to establish would similarly lend 

themselves to ready circumvention in a manner that would defeat the aims of FECA and 

BCRA. For example, the RNC proposes to raise and spend soft money in a Redistricting 

Account, which would support Republican redistricting efforts in various states. 

Although it is true, as Plaintiffs point out, that specific redistricting decisions are in the 
24

hands of state officeholders, Plaintiffs’ suggestion that the effects of redistricting are “far 

removed” from federal elected officials bears no relationship to the realities of the U.S. 

political system. This Court has recognized that “redistricting efforts affect federal 

elections no matter when they are held.” McConnell, 251 F. Supp. 2d at 468. As 

Professor Green explains: 

The American political system ties the fortunes of state legislators and U.S. House 

members through the institutional mechanism of redistricting. The most 

important legislative activity in the electoral lives of U.S. House members takes 

place during redistricting, a process that is placed in the hands of state 

legislatures. The chances that a House incumbent will be ousted by unfavorable 

district boundaries are often greater than the chances of defeat the hands of the 

typical challenger. Thus, federal legislators who belong to the state majority party 

have a tremendous incentive to be attuned to the state legislature and the state 

party leadership. 

Green I at 11. The political survival of federal officeholders depends in large part upon 

redistricting decisions, and to allow large soft-money donations to affect the redistricting 

process would guarantee that undue influence would be brought to bear on Members of 

Congress. 

Similarly, allowing the RNC to raise and spend soft money for a Grassroots 

Lobbying Account would recreate an RNC soft-money slush fund that would invite 

corruption and abuse. Although Plaintiffs point out that, since McConnell, the Court has 

provided further guidance regarding the distinction between issue ads and electioneering 

communications for non-party entities, FEC v. Wisconsin Right to Life, Inc. (“WRTL II”), 

127 S. Ct. 2652, 2659 (2007), this development is simply not relevant to the issue at 

hand. Congress’s power to ban the national parties from raising and spending soft money 

does not turn on the distinction between issue advocacy and electioneering 

communications – instead, the prophylactic nature of this ban is grounded in Congress’s 

finding that any use of soft money by the national parties would open a loophole for 
25

undue influence. See supra, Section I(C). Given the close relationship between federal 

candidates and officeholders and the national parties, and given that, pre-BCRA, 

“political advertisements... constitute[d] the largest category of nonfederal spending of 

the national and state political parties,” McConnell, 251 F. Supp. 2d at 468, soft-money 

donations intended to fund issue advertising campaigns and other “grassroots lobbying 

activity” would undoubtedly influence federal elections. As the Supreme Court 

recognized, a soft-money issue advertising campaign “need not mention federal 

candidates to have a direct effect on voting for such candidates.” McConnell, 540 U.S. at 

168 (quoting McConnell, 251 F. Supp. 2d at 459). Nothing in WRTL II disturbs this 

Court’s findings that national party soft-money issue advertisements and other 

“grassroots lobbying activities” “are engineered to still have an impact on federal 

elections” and thus fall within Congress’s power to enact campaign finance regulations 

that combat corruption and its appearance. McConnell, 251 F. Supp. 2d at 467; see also 

McConnell, 540 U.S. at 167. (“Title I... is premised on Congress’ judgment that if a large 

donation is capable of putting a federal candidate in the debt of the contributor, it poses a 

threat of corruption or the appearance of corruption.”). 

Plaintiffs try to conflate the treatment of interest groups and political parties; a 

position the Supreme Court has roundly rejected. That non-party entities such as 

Wisconsin Right to Life can run issue advertisements that potentially create a benefit to 

federal candidates is irrelevant to BCRA’s restrictions on political parties because such 

non-party organizations lack the unity of interest with federal candidates that makes 

political party expenditures more akin to coordinated expenditures than truly independent 

expenditures. See also Buckley, 424 U.S. at 47 (upholding restrictions on coordinated 
26

expenditures to “prevent attempts to circumvent [FECA] through prearranged or 

coordinated expenditures amounting to disguised contributions.”). The Supreme Court 

considered and rejected this identical argument in McConnell: “We agree ... that 

Congress could not regulate financial contributions to political talk show hosts or 

newspaper editors on the sole basis that their activities conferred a benefit on the 

candidate.” McConnell, 540 U.S. at 156 n.51. Despite this freedom of non-party 

organizations to expend funds that influenced federal elections without triggering softmoney restrictions applicable to national parties, the Court upheld the prophylactic ban 

on soft-money contributions for national parties based on two interrelated rationales: that 

such contributions influenced federal elections and that they were directed to 

organizations inextricably linked to federal candidates and officeholders. McConnell, 540 

U.S. at 156 n. 51 (“Thus, in upholding §§ 323(b), (d), and (f), we rely not only on the fact 

that they regulate contributions used to fund activities influencing federal elections, but 

also that they regulate contributions to, or at the behest of, entities uniquely positioned to 

serve as conduits for corruption.”); Id. at 188. (“Congress is fully entitled to consider the 

real-world differences between political parties and interest groups when crafting a 

system of campaign finance regulations.”). It is the combination of those two conditions 

which create the risk of undue influence and which provide a rationale for Congressional 

regulation for political parties’ uses of soft money. 

2. Plaintiffs’ Proposal to Allow CRP to Use Soft Money to Fund 

Election Activities in Mixed Races and State-Only Races 

Would Allow the State and local Parties to Serve as Conduits 

for Corruption. 

In McConnell, the Supreme Court found that, just as with the national parties, 

state and local political parties’ use of soft money featured the conditions that gave rise to 
27

an unacceptable risk of corruption: (1) a unity of interest between the state and local 

parties and federal officeholders and candidates; and (2) benefit to a federal candidate 

that was substantial enough to create undue influence. Specifically, the Court found that 

“the record demonstrates close ties between federal officeholders and the state and local 

committees of their parties. That close relationship makes state and local parties effective 

conduits for donors desiring to corrupt federal candidates and officeholders.” 

McConnell, 540 U.S. at 156 n. 51. The Court credited Congress’s prediction that, absent 

BCRA’s restrictions on the uses of soft money by state and local parties, “political parties 

would react to § 323(a) by directing soft-money contributors to the state committees..., 

and that federal candidates would be just as indebted to these contributors as they had 

been to those who had formerly contributed to the national parties.” McConnell, 540 

U.S. at 98; McConnell, 251 F. Supp. 2d at 480 (“The testimony and documentary 

evidence makes clear that candidates value such donations [to state parties] almost as 

much as donations made directly to their campaigns and that these donations assist 

federal candidates’ campaigns.”). As the Court explained, “Having been taught the hard 

lesson of circumvention by the entire history of campaign finance regulation, Congress 

knew that soft-money donors would react to s 323(a) by scrambling to find another way 

to purchase influence.” McConnell, 540 U.S. at 166. The evidence further demonstrated 

that prior to BCRA, the national parties and federal officeholders funneled soft-money 

contributions to the state parties in order to influence federal elections. See, e.g., 

McConnell, 251 F. Supp. 2d at 442 (“The national Democratic party managed to finance 

two-thirds of its pro-Clinton ‘issue ad’ television blitz by taking advantage of the more 

favorable allocation methods available to state parties. They simply transferred the 
28

requisite mix of hard and soft dollars to party committees in the states they targeted and 

had the state committees place the ads.”) (citing Mann Expert Report at 22). As 

Professor Green explained: 

To create a system in which the national parties are banned from raising soft 

money, except for soft money raised on behalf of their state party allies, 

inevitably puts pressure on party operatives to construe national party 

expenditures as transfers to the states. Under the pre-BCRA provisions, the 

parties demonstrated great ingenuity in moving money around so as to minimize 

the amount of hard money needed to fund federal election activity. If the BCRA 

provisions regarding state and local parties were overturned, clever accountants 

will doubtless figure out ways to place a maximal share of the national parties’ 

overhead and fundraising costs on the state parties’ budget ledgers. This 

incentive system also puts pressure on the state parties to engage in as much 

federal election activity as possible so that the national parties can recoup their 

soft money investment. 

Green I at 16-17. Accordingly, the Supreme Court concluded, “state committees function 

as an alternative avenue for precisely the same corrupting forces” as soft-money 

contributions to the national parties. McConnell, 540 U.S. 164. 

Thus, this Court found that FECA and BCRA would be self-defeating if they did 

not account for state and local parties’ uses of soft money where those uses had the 

potential to affect federal elections. As former Senator Rudman testified: 

To curtail soft-money fundraising and giving, it is necessary to have a 

comprehensive approach that addresses the use of soft money at the state and 

local party levels as well as at the national party level. The fact is that much of 

what state and local parties do helps to elect federal candidates. The national 

parties know it; the candidates know it; the state and local parties know it. If state 

and local parties can use soft money for activities that affect federal elections, 

then the problem will not be solved at all. The same enormous incentives to raise 

the money will exist; the same large contributions by corporations, unions, and 

wealthy individuals will be made; the federal candidates who benefit from state 

party use of these funds will know exactly whom their benefactors are; the same 

degree of beholdenness and obligation will arise; the same distortions on the 

legislative process will occur; and the same public cynicism will erode the 

foundations of our democracy.... 
29

McConnell, 251 F. Supp. 2d at 467 (quoting Rudman Decl. ¶ 19). The CRP’s proposal 

does nothing to ameliorate this concern. 

First, CRP seeks to raise and spend soft money to create public communications 

regarding ballot initiatives where such communications make specific reference to federal 

candidates and officeholders. The ease with which such a “ballot initiative” exception to 

BCRA’s state soft-money allocation requirements would allow circumvention of 

BCRA’s hard-money contribution limits is readily apparent. In essence, CRP’s proposal 

would enable a proliferation of “sham ballot initiative advertisements” with the same 

corrupting effect as the flood of “sham issue advertisements” that was one of the primary 

motivating factors behind the passage of BCRA. McConnell, 540 U.S. at 169 (citing 3 

1998 Senate Report 4535 (additional views of Sen. Collins)). To take just one possible 

example, CRP’s proposal would enable a donor to write a $1 million check to CRP to 

fund a barrage of advertisements attacking Speaker Pelosi, as long as those 

advertisements contained some sort of ballot initiative “hook.” Such a campaign would 

clearly place Speaker Pelosi’s opponent in the debt of this contributor, and the close ties 

between the CRP and California Republican federal candidates would easily enable the 

donor to communicate both the fact of the donation and the policy outcome which the 

donor hoped to achieve. The same is true for ballot initiative advertisements that 

promote Republican candidates under the guise of supporting ballot initiatives. 

(Undoubtedly, state Democratic parties would engage in similar activities to similar 

effect.) As this Court recently found, “common sense” suggests that “encouraging 

sympathetic voters to vote for the ballot measure gets them to the polls, where the 
30

endorsing federal candidate is on the ballot.” EMILY’s List v. FEC, 569 F.Supp.2d 18, 50 

n.14 (D.D.C. 2008) (citation omitted). 

The CRP also asks this Court to allow it to use soft money for “voter registration, 

voter identification, GOTV and ‘generic campaign activity’ in future elections where 

both state and federal candidates are on the ballot.” (Pls. Mem. 6-7.) Although Plaintiffs 

claim that “[n]one of these activities will identify, reference, or otherwise depict any 

federal candidates,” id. at 7, Plaintiffs’ unsupported assertion that “[a]ctivities so 

indirectly benefitting federal candidates, if at all, cannot be said to create ‘obligated’ or 

‘grateful’ officeholders” is belied by specific evidence in the McConnell record 

demonstrating that federal candidates are, in fact, beholden to contributors who fund such 

“generic campaign” activity. See, e.g., McConnell, 540 U.S. at 164 (“both candidates and 

parties already ask donors who have reached the limit on their direct contributions to 

donate to state committees”); id. at 168 (quoting a letter thanking a California Democratic 

Party donor and noting that CDP’s voter registration and GOTV efforts would help 

“‘increase the number of Californian Democrats in the United States Congress’” and 

“‘deliver California’s 54 electoral votes’” to the Democratic Presidential candidate). For 

example, the record contains a flyer from CRP titled “The California Golden Circle” 

noting that,: 

‘Through Golden Circle contributions, California Republicans have been able to 

elect leaders from the White House to the State House,’ that Golden Circle 

members will assist the CRP ‘goal ... to deliver fifty-five electoral votes for our 

Republican Presidential nominee in 2004, maintain a Republican majority in 

Congress, and elect a Republican Legislature’ 

McConnell, 251 F. Supp. 2d at 505. In fact, the record demonstrated that, pre-BCRA, 

federal officeholders often requested that “maxed-out” contributors fund such state party 
31

activities on their behalf. See, e.g., McConnell, 540 U.S. at 165 (quoting Congressman 

Wayne Allard’s Aug. 27, 1996, fundraising letter informing the recipient that “‘you are at 

the limit of what you can directly contribute to my campaign,’” but “‘you can further help 

my campaign by assisting the Colorado Republican Party’”). 

Professor Green provided an explanation of the benefits of state party “generic” 

campaign activity to federal candidates: 

Voter mobilization activities are an integral part of electoral campaigns; 

national parties spend millions on voter mobilization. National parties 

would be quite grateful to any other entity that engaged in this activity on 

their behalf, freeing up the national parties to spend their money on other 

things. From an accounting standpoint, this arrangement would be 

tantamount to a massive transfer of funds to the national parties. If a 

donor were intent upon currying favor with federal officeholders and the 

national parties they inhabit, there would be no better opportunity than 

making lavish donations to this type of generic campaign activity, were 

such donations outside the purview of the BCRA. The many informal 

connections between slate and federal politicians and between national 

and subnational parties make this type of exchange easy to orchestrate. 

Green I at 18-19. Given the state and local parties’ past willingness to act as conduits for 

soft-money contributions intended to influence federal elections prior to BCRA, their 

organizations are in not position to complain if Congress enacts a scheme intended to 

thwart such circumvention. Plaintiffs provide neither evidence nor argument that would 

cast doubt on the McConnell Court’s conclusion that BCRA’s restrictions on state and 

local party committee’s use of soft money was necessary to avoid circumvention of 

FECA and BCRA’s anticorruption goals. 

CONCLUSION

The court should deny Plaintiffs’ motion for summary judgment. 

Respectfully submitted, 
32

 

 _/s/ Monica Youn_____ 

 Monica Youn 

 (pro hac vice application pending) 

 Laura MacCleery 

BRENNAN CENTER FOR 

JUSTICE AT NYU 

SCHOOL OF LAW 

 161 Avenue of the Americas 

 12th Floor 

 New York, NY 10013-1205 

 Telephone: (212) 998-6741 

 Fax: (212) 995-4550 

 Counsel for Amici Curiae 

 Brennan Center for Justice, 

 Common Cause, Demos, League 

 of Women Voters US, US PIRG 

Dated: March 9, 2009 
CERTIFICATE OF SERVICE

I hereby certify that the foregoing motion, memorandum of points and authorities and a 

proposed order have been filed via email to dcd_cmecf@dcd.uscourts.gov on this 9th day of 

March, 2009. In addition, the following counsel have been served with copies of the foregoing 

motion for leave to participate amici curiae, proposed order and memorandum of points and 

authorities via email (where email addresses are available and known) and via first-class mail, 

postage pre-paid. 

Attorneys Representing Plaintiffs: 

James Bopp, Jr. 

Richard E. Coleson 

Clayton J. Callen 

Kaylan L. Phillips 

BOPP, COLESON AND BOSTROM

1 South Sixth Street 

Terre Haute, IN 47807-3510 

Telephone: (812) 232-2434 

Facsimile: (812) 234-3685 

JBoppjr@aol.com

rcoleson@bopplaw.com

ccallen@bopplaw.com

kphillips@bopplaw.com

Lead Counsel for All Plaintiffs 

Charles H. Bell, Jr., Esq. 

BELL, MCANDREWS & HILTACHK, LLP 

455 Capitol Mall, Suite 801 

Sacramento, California 95814 

Telephone: (916) 442-7757 

Facsimile: (916) 442-7759 

cbell@bmhlaw.com

Counsel for California Republican Party 

and Republican Party of San Diego County

Attorneys Representing Defendant Federal Election Commission: 

Thomasenia P. Duncan 

David B. Kolker 

Kevin Deeley 

Adav Noti 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

tduncan@fec.gov

dkolker@fec.gov

kdeeley@fec.gov

anoti@fec.gov
Attorneys Representing Defendant-Intervenor Rep. Christopher Van Hollen, Jr.: 

Seth P. Waxman 

Randolph D. Moss 

WILMER CUTLER PICKERING 

HALE AND DORR LLP

1875 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Telephone: (202) 663-6000 

seth.waxman@wilmerhale.com

randolph.moss@wilmerhale.com

Roger M. Witten 

Shane T. Stansbury 

Lauren E. Baer 

WILMER CUTLER PICKERING 

HALE AND DORR LLP

399 Park Avenue 

New York, New York 10022 

Telephone: (212) 230-8800 

roger.witten@wilmer.com

shane.stansbury@wilmerhale.com

lauren.baer@wilmerhale.com

Fred Wertheimer 

DEMOCRACY 21 

1825 I Street, N.W., Suite 500 

Washington, D.C. 20006 

Telephone: (202) 429-2008 

FWertheimer@democracy21.org

/s/ Monica Youn

Monica Youn 

 Brennan Center for Justice 

 Brennan Center for Justice 

 at NYU School of Law 

 161 Avenue of the Americas 

 12th Floor 

 New York, NY 10013-1205 

 Telephone: (212) 998-6741 

 Fax: (212) 995-4550 

 Counsel for Amici Curiae 

 Brennan Center for Justice, 

 Common Cause, Demos, League 

 of Women Voters US, US PIRG