UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

)

STOP RECKLESS ECONOMIC )

INSTABILITY CAUSED BY )

DEMOCRATS, et al., ) Civ. No. 1:14-397 (AJT-IDD)

)

Plaintiffs, and )

)

AMERICAN FUTURE PAC, )

)

Plaintiff-Intervenor, )

)

v. )

) SUPPLEMENTAL BRIEF 

FEDERAL ELECTION COMMISSION, ) PERTAINING TO INTERVENOR 

) AMERICAN FUTURE PAC

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL 

FACTUAL SUBMISSION AND BRIEFING PERTAINING TO

INTERVENOR AMERICAN FUTURE PAC IN SUPPORT OF THE 

COMMISSION’S MOTION FOR SUMMARY JUDGMENT

Lisa J. Stevenson*

Deputy General Counsel – Law 

Kevin Deeley*

Acting Associate General Counsel

Harry J. Summers*

Assistant General Counsel

Holly J. Baker*

Esther D. Gyory (VA Bar # 76826)

Kevin P. Hancock*

Attorneys

COUNSEL FOR DEFENDANT

November 14, 2014 FEDERAL ELECTION COMMISSION

999 E Street NW, Washington, DC 20463

* Admitted Pro Hac Vice (202) 694-1650

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TABLE OF CONTENTS

BACKGROUND .......................................................................................................................2

RESPONSE TO PLAINTIFFS’ ALLEGED UNDISPUTED FACTS

REGARDING INTERVENOR AMERICAN FUTURE PAC............................................3

STATEMENT OF SUPPLEMENTAL UNDISPUTED MATERIAL FACTS

REGARDING INTERVENOR AMERICAN FUTURE PAC............................................4

A. Plaintiff-Intervenor American Future PAC and Its Chairperson 

Matt Lenell.........................................................................................................4

B. American Future PAC’s Agents, Vendors, and Alleged Purpose .....................5

C. American Future PAC Obtained 51 Contributors in Nine Days........................6

D. American Future PAC Contributed $2,600 to Rep. Cotton and $100 to 

Four Other Candidates Within 14 Days of Its Registration...............................8

E. The Effects of FECA on American Future PAC ...............................................9

ARGUMENT...........................................................................................................................10

I. THE COURT LACKS JURISDICTION OVER AMERICAN FUTURE 

PAC’S CLAIMS ..........................................................................................................10

A. American Future PAC Should Be Dismissed Because the Court 

Has Lacked Jurisdiction over Stop PAC’s Claims ..........................................10

B. American Future PAC’s Claims Appear to Have Become Moot 

After the November 4 General Election .........................................................11

II. AMERICAN FUTURE PAC ILLUSTRATES HOW THE SIX-MONTH

PERIOD HELPS PREVENT A DUMMY-LIKE PAC FROM

CIRCUMVENTING THE $2,600 LIMIT TO HELP A CANDIDATE

JUST PRIOR TO AN ELECTION..............................................................................11

A. American Future PAC Was Narrowly Focused on Helping One 

Candidate’s Campaign, for Which American Future PAC’s 

Chairperson Has Worked.................................................................................12

B. American Future PAC Easily Satisfied the 51-Contributor and 

Five-Contribution Requirements in Just 14 Days............................................13

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C. After 14 Days, American Future PAC Was Still a Circumvention Risk 

and Not Similarly Situated to a Bona Fide Multicandidate Group 

Like the Tea Party Leadership Fund or a Political Party.................................14

CONCLUSION........................................................................................................................16

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Pursuant to the Court’s October 31, 2014 Order (Doc. No. 67), defendant Federal 

Election Commission (“FEC” or “Commission”) provides this supplemental factual submission 

and briefing about plaintiff-intervenor American Future PAC (“AF PAC”). These supplemental 

facts support the constitutionality of the Federal Election Campaign Act’s (“FECA”) six-month 

period and the $2,600 contribution limit that generally applies to persons, including new 

nonconnected political committees (“PAC”) unless and until they become multicandidate PACs. 

See 52 U.S.C. § 30116(a)(1)(A), (a)(4). Plaintiffs claim that a new PAC with “more than 50 

contributors, by definition, cannot be a façade through which a single individual is attempting to 

evade other contribution limits.” (Mem. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ SJ Br.”) at 

17-18 (Doc. No. 56-1).) But the evidence suggests that AF PAC has served as just such a façade. 

AF PAC registered less than three months before the November 4, 2014 general election 

and was narrowly focused on assisting one Senate campaign — a campaign for which AF PAC’s 

chairperson has worked. AF PAC’s $2,600 contribution to that candidate was made possible 

only because a single major donor had given AF PAC $5,000, more than 90 percent of its funds, 

the day before. AF PAC wanted to give that Senate candidate more. So its chairperson obtained 

more than 50 contributors in just nine days by asking friends to give five dollars, telling one: “I 

need to get 51 donors.” AF PAC then gave a mere $100 to four more candidates, allowing it to 

satisfy the 51-contributor and five-contribution requirements in just 14 days — and nearly two 

months before AF PAC would have to file its first FEC report disclosing that it was bankrolled 

by that one donor, who later gave more than $1,700 directly to that same Senate campaign. 

The supplemental facts also show that AF PAC’s claims should be dismissed for lack of 

jurisdiction. AF PAC intervened to assert the same claims as plaintiff Stop Reckless Economic 

Instability caused by Democrats (“Stop PAC”) at a time when the Court had no jurisdiction over 

Stop PAC’s claims, both because Stop PAC lacked standing and because its claims became moot 

on September 11 when it became a multicandidate PAC. In any event, AF PAC’s claims now 

appear to be moot. The only campaign for which AF PAC wanted to give in excess of $2,600 

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ended 10 days ago with the November 4, 2014 general election, in which AF PAC’s preferred 

candidate won, and AF PAC has alleged no desire to give funds after that date. 

For these reasons and those stated in the FEC’s previous briefing, the FEC’s motion for 

summary judgment should be granted and plaintiffs’ motion denied. 

BACKGROUND

At an early point in this case, the Commission noted that plaintiff Stop PAC’s claims in 

counts one and two of the Complaint would become moot on September 11, 2014, when Stop 

PAC would meet the requirements to become a multicandidate PAC and thus no longer be 

subject to the laws it claims are unconstitutional. (See Decl. of Counsel in Supp. of FEC’s Mot. 

to Allow Time for Disc. Under Rule 56(d) at 9, ¶ 8(b) (Doc. No. 27-2).) In response, plaintiffs 

stated that they would attempt to join additional new PACs “as necessary” to extend the alleged 

“undisputed justiciability of this case for as much time as possible,” including through any 

appeals until final judgment. (Joint Proposed Disc. Plan at 5 (Doc. No. 34).) On July 16, 2014, 

the Court issued a Scheduling Order pursuant to Federal Rule of Civil Procedure 16(b) requiring 

the parties to file any joinder motions “as soon as possible after counsel or the party becomes 

aware of the grounds for the motion.” (Rule 16(b) Scheduling Order at 1, ¶ 5 (Doc. No. 40).) 

Six weeks later, on August 27, plaintiffs moved to have AF PAC join or intervene in Stop 

PAC’s claims. (See Doc. No. 50.) With that motion, AF PAC anticipatorily filed Rule 26(a)(1) 

initial disclosures and responses to some of the discovery requests that the FEC had previously 

served on Stop PAC. (See Decl. of Attorney Jerad Najvar (“Najvar Decl.”) (Doc. No. 50-3); 

Exhs. 1-4 to Najvar Decl. (Doc. No. 50-4); AF PAC’s Objections and Resps. to FEC’s First Set 

of Disc. Reqs. to Stop PAC (“AF PAC’s Resps. to Stop PAC Disc. Reqs.”) (Doc. No 50-5); AF 

PAC’s Proffered Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1)(A) (Doc. No. 50-6).) 

On September 11, Stop PAC became a multicandidate PAC when its six-month 

registration period expired. (See FEC’s Mem. in Supp. of Mot. for Summ. J. (“FEC SJ Br.”) at 

4, Statement of Undisputed Material Facts (“FEC Facts”) ¶ 1 (Doc. No. 57-1).) Approximately a 

week later, the parties filed cross motions for summary judgment, including alleged undisputed 

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material facts. (See id.; see also Doc. Nos. 56, 56-1, 57.) Plaintiffs’ alleged facts included facts 

asserted by AF PAC, which plaintiffs claimed would be material in the event the Court granted 

AF PAC’s then-pending motion to join or intervene. (Pls.’ SJ Br. at 7-8, ¶¶ 33-39 & n.2 (Doc. 

No. 56-1).) Given that AF PAC was not then a party, the FEC objected to the relevance of 

alleged material facts regarding AF PAC and did not respond to their substance.1 (See FEC’s 

Resp. in Opp’n to Pls.’ Mot. for Summ. J. (“FEC Resp.”) at 5, ¶¶ 33-39 (Doc. No. 60).) 

On October 6, the Magistrate Judge issued an order denying AF PAC’s motion to join, 

but granting its alternative motion to intervene. (Order at 1 (Doc. No. 62).) That order also gave 

the Commission until October 31 to pursue discovery from AF PAC. (Id. at 2.) AF PAC 

responded to the FEC’s written discovery requests on October 27. (See, e.g., FEC Exhs. 17-19 

(Doc. Nos. 68-1 to 68-3).)

Four days later, on October 31, this Court held a hearing on the parties’ cross-motions for 

summary judgment. (See Doc. No. 66.) Afterwards, the Court ordered that “the parties shall 

provide to the Court any supplemental factual submissions and briefing pertaining to Intervenor 

American Future PAC.” (Order at 1 (Doc. No. 67).) 

RESPONSE TO PLAINTIFFS’ ALLEGED UNDISPUTED FACTS 

REGARDING INTERVENOR AMERICAN FUTURE PAC

33-37. Admit.

38. Admit that FECA prohibited AF PAC from contributing in excess of $2,600 to 

Congressman Tom Cotton’s campaign for Senate in the November 4, 2014 general election 

because AF PAC had yet to satisfy the six-month requirement of 52 U.S.C. § 30116(a)(4). 

39. Admit that the November 4, 2014 general election occurred before AF PAC had 

been registered with the FEC for more than six months. Dispute that AF PAC was permanently 

deprived of the opportunity to fully exercise its First Amendment rights, since the contribution 

limit AF PAC challenges does not violate its First Amendment rights. (See, e.g., FEC SJ Br. at 

 1 Because AF PAC has since been permitted to intervene, the FEC responds to the 

substance of AF PAC’s alleged material facts below. 

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12-22 (Doc. No. 57-1).) Dispute that the threat of criminal prosecution inhibited AF PAC. See

52 U.S.C. § 30109(a)(5)(C) (criminal FECA violations require “knowing and willful” intent). 

STATEMENT OF SUPPLEMENTAL UNDISPUTED MATERIAL 

FACTS REGARDING INTERVENOR AMERICAN FUTURE PAC2

A. Plaintiff-Intervenor American Future PAC and Its Chairperson Matt Lenell

34. AF PAC is a nonconnected political committee that registered with the FEC on 

August 11, 2014. (Exh. 1 to Najvar Decl. (Doc. No. 50-4).) FECA currently limits AF PAC’s 

contributions to any federal candidate to $2,600 per election, as it does with all new nonconnected PACs and persons generally. 52 U.S.C. § 30116(a)(1)(A); Price Index Adjustments 

for Contribution Limitations, 78 Fed. Reg. 8530, 8532 (Feb. 6, 2013). 

35. AF PAC’s chairperson is Matt Lenell. (AF PAC’s Resps. to Stop PAC Disc. 

Reqs. at 3, Interrog. 1 (Doc. No. 50-5).) As chairperson, Lenell “makes all decisions concerning 

strategic messaging, fundraising, contributions, and expenditures.” (Id. at 6, Interrog. 8.) 

36. Lenell is an employee of a political consulting firm called Campaign Solutions. 

(FEC Exh. 17, AF PAC’s Resps. to FEC’s First Set of Disc. Reqs. (“AF PAC’s Disc. Resps.”) at 

5, Req. for Admis. (“RFA”) 1-2 (Doc. No. 68-1).) At some point between August 19 and 

October 27, 2014, Lenell provided services on behalf of Campaign Solutions to Congressman 

Tom Cotton’s Senate campaign in the November 4, 2014 general election. (Id. at 5, RFA 1; Exh. 

2 to Najvar Decl. (Doc. No. 50-4).) Lenell’s services to Rep. Cotton included editing 

“fundraising communications that Campaign Solutions publicly distributed on behalf of the 

Cotton campaign.” (FEC Exh. 17, AF PAC’s Disc. Resps. at 11, Interrog. 1 (Doc. No. 68-1).) 

Lenell also “provided html and other technical ‘coding’ for online communications such as emails that Campaign Solutions posted or distributed on behalf of the Cotton campaign.” (Id.) 

 2 These undisputed material facts regarding AF PAC start with paragraph 34 because the 

FEC provided 33 paragraphs of undisputed material facts in its opening brief in support of its 

motion for summary judgment. (See FEC SJ Br. at 10 (Doc. No. 57-1).) 

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B. American Future PAC’s Agents, Vendors, and Alleged Purpose

37. Only two people have been involved in AF PAC’s creation and operation: Lenell 

and Jerad Najvar, its treasurer, custodian of records, and counsel, who represents AF PAC in this 

case. (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 3-4, Interrog. 1 (Doc. No. 50-5); Exh. 1 to 

Najvar Decl. at 3 (Doc. No. 50-4).) Michael Morley, co-counsel for plaintiffs, is assisting Najvar 

in representing AF PAC. (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 3-4, Interrog. 1 (Doc. 

No. 50-5).) Lenell retained Najvar to register AF PAC with the FEC and to act as its treasurer. 

(FEC Exh. 17, AF PAC’s Disc. Resps. at 17-18, Interrog. 14 (Doc. No. 68-1).) 

38. AF PAC has used two vendors, Conservative November and Anedot. (AF PAC’s 

Resps. to Stop PAC Disc. Reqs. at 3-4, Interrog. 1 (Doc. No. 50-5).) Conservative November is 

“the general consultant” to AF PAC and it “licenses [AF PAC’s] data.” (Id. at 3, Interrog. 1.) 

Conservative November registered as a limited liability company in Virginia on July 31, 2014, 

11 days before AF PAC’s registration with the FEC. See Commonwealth of Virginia, State 

Corporation Commission, Business Entity Details for Conservative November LLC, 

https://sccefile.scc.virginia.gov/Business/S517543 (last visited Nov. 13, 2014). Conservative 

November’s registered agent is Dan Backer (id.), co-counsel for plaintiffs in this lawsuit. AF 

PAC stated in discovery that “Dan Backer is not an officer, agent, independent contractor, or 

volunteer for American Future” and “has not provided any services to American Future.” (FEC 

Exh. 17, AF PAC’s Disc. Resps. at 16, Interrog. 10 (Doc. No. 68-1).) 

39. AF PAC has used a vendor named Anedot to “provide[] an online fundraising 

platform for American Future.” (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 4, Interrog. 1 

(Doc. No. 50-5).) Anedot is a software application that allows users to “[e]asily fundraise from 

your website and using social media” including Facebook. Anedot, http://www.anedot.com (last 

visited Nov. 13, 2014). 

40. AF PAC claims its purpose is to “stand for the veterans who have secured our 

freedom.” (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 6, Interrog. 8 (Doc. No. 50-5).) AF 

PAC states that Lenell believed that AF PAC “would be an effective vehicle for highlighting 

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veterans’ issues and sparking meaningful reform.” (FEC Exh. 17, AF PAC’s Disc. Resps. at 17, 

Interrog. 13 (Doc. No. 68-1).) 

C. American Future PAC Obtained 51 Contributors in Nine Days

41. AF PAC received contributions from 51 persons within nine days of its 

registration with the FEC on August 11, 2014. (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 4, 

Interrog. 4 (Doc. No. 50-5); Exh. 3 to Najvar Decl. (Doc. No. 50-4).) To solicit those donations, 

AF PAC used “e-mail and other electronic communications, as well as personal requests by” 

Lenell and Najvar “directly to individual friends, colleagues, and business and personal 

acquaintances.” (FEC Exh. 17, AF PAC’s Disc. Resps. at 13, Interrog. 4 (Doc. No. 68-1).) 

42. AF PAC solicited those 51 contributions in part for the purpose of satisfying 

FECA’s requirement that a political committee receive contributions “from more than 50 

persons” to become a multicandidate political committee under 52 U.S.C. § 30116(a)(4). (FEC 

Exh. 17, AF PAC’s Disc. Resps. at 6, RFA 4 (Doc. No. 68-1).) AF PAC asked for contributions 

explicitly so it could satisfy the “more than 50 persons” requirement. (Id. at 6, RFA 5.) For 

example, Lenell sent a solicitation via Facebook to a potential contributor that stated: “Hey. I 

need a favor. . . . I’m starting a Political Action Committee and I need to get to 51 donors to get 

standing and join a lawsuit. [W]ill you donate to help?” (FEC Exh. 18, Messages from Matt 

Lenell (Doc. No. 68-2).) Lenell also “made oral solicitations substantively identical to th[e]se 

written solicitations to other potential contributors.” (FEC Exh. 17, AF PAC’s Disc. Resps. at 

13-14, Interrog. 5 (Doc. No. 68-1).)

43. AF PAC solicited contributions of five dollars. (See FEC Exh. 19, Message from 

Matt Lenell (Doc. No. 68-3).) For example, Lenell solicited one potential contributor with an 

email that stated in its entirety: “Hey. Do me a favor — donate $5. https://anedot.com/

campaigns/american-future-pac.” (Id. at 2.) Out of the first 51 contributions that AF PAC 

received in the nine days after its registration, 41 were for five dollars. (Exh. 3 to Najvar Decl. 

(Doc. No. 50-4).) Three were for one dollar. (Id.)

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44. By August 22, 2014, AF PAC had raised $5,473 from 54 contributors. (Exh. 3 to 

Najvar Decl. (Doc. No. 50-4).) AF PAC received $5,000 of that amount on August 18 from one 

contributor, Shaun McCutcheon. Id.; AF PAC Oct. Quarterly Report of Receipts and 

Disbursements at 17 (Oct. 15, 2014), http://docquery.fec.gov/pdf/957/14978394957/

14978394957.pdf. Before McCutcheon’s $5,000 contribution, AF PAC had received a total of 

$321. (See Exh. 3 to Najvar Decl. (Doc. No. 50-4).) On August 19, the day after McCutcheon 

contributed $5,000 to AF PAC, AF PAC contributed $2,600 to Rep. Cotton’s Senate campaign. 

Id.; Exh. 2 to Najvar Decl. (Doc. No. 50-4); AF PAC Oct. Quarterly Report of Receipts and 

Disbursements at 27 (Oct. 15, 2014), http://docquery.fec.gov/pdf/957/14978394957/

14978394957.pdf. A few weeks later, McCutcheon contributed $1,776 directly to Rep. Cotton’s 

Senate campaign. See Cotton for Senate Oct. Quarterly Report of Receipts and Disbursements at 

1509 (Oct. 15, 2014), http://docquery.fec.gov/cgi-bin/fecimg/

?_14020822141+1509. 

45. Since reaching 54 contributors, AF PAC has received no reported contributions. 

See AF PAC Oct. Quarterly Report of Receipts and Disbursements at 6-23 (Oct. 15, 2014), 

http://docquery.fec.gov/pdf/957/14978394957/14978394957.pdf (reflecting that AF PAC 

received no contributions from August 22 through September 30, 2014;3 AF PAC Pre-General 

Election Report of Receipts and Disbursements at 3 (Oct. 19, 2014), http://docquery.fec.gov

/pdf/670/14951682670/14951682670.pdf (reflecting that AF PAC received no contributions 

from October 1 through October 10, 2014); see also FEC Exh. 17, AF PAC’s Disc. Resps. at 19, 

Interrog. 17 (stating that AF PAC had “approximately 54 contributors” on October 27, 2014) 

(Doc. No. 68-1).

 3 Lenell and Najvar lent money to AF PAC after August 22, which AF PAC later paid 

back. See AF PAC’s Oct. Quarterly Report of Receipts and Disbursements at 24, 28 (Oct. 15, 

2014), http://docquery.fec.gov/pdf/957/14978394957/14978394957.pdf.

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D. American Future PAC Contributed $2,600 to Rep. Cotton and $100 to Four 

Other Candidates Within 14 Days of Its Registration

46. AF PAC had contributed to five federal candidates as of August 25, 2014 — 14 

days after it registered with the FEC. (Exh. 2 to Najvar Decl. (Doc. No. 50-4).) On August 19, 

AF PAC contributed $2,600 to Rep. Cotton’s campaign for Senate in the November 4, 2014 

general election. (Id.) AF PAC then contributed $100 each to four other candidates. (Id.) 

47. AF PAC contributed to the four other candidates in part to satisfy FECA’s 

requirement that a political committee make “contributions to 5 or more candidates for Federal 

office” to become a multicandidate political committee under 52 U.S.C. § 30116(a)(4). (FEC 

Exh. 17, AF PAC’s Disc. Resps. at 6, RFA 6 (Doc. No. 68-1).)

48. AF PAC filed its first report of receipts and disbursements with the FEC on 

October 15, 2014, nearly two months after August 25 when it had first obtained 51 contributors 

and contributed to five candidates. See AF PAC Oct. Quarterly Report of Receipts and 

Disbursements (Oct. 15, 2014), http://docquery.fec.gov/pdf/957/14978394957/

14978394957.pdf.

49. AF PAC’s FEC reports reflect no contributions to any candidate after August 25. 

See AF PAC Oct. Quarterly Report of Receipts and Disbursements at 25-28 (Oct. 15, 2014), 

http://docquery.fec.gov/pdf/957/14978394957/14978394957.pdf; AF PAC Pre-General Election 

Report of Receipts and Disbursements at 4 (Oct. 19, 2014), http://docquery.fec.gov/pdf/670/

14951682670/14951682670.pdf.

50. The only campaign to which AF PAC has alleged that it wants to contribute in 

excess of $2,600 is Rep. Cotton’s campaign for U.S. Senate, an election which occurred on 

November 4, 2014. (Pls.’ SJ Br. at 7-8, ¶¶ 33-39 (Doc. No. 56-1).) Rep. Cotton prevailed in that 

election. See Katie Glueck, Tom Cotton Defeats Mark Pryor in Arkansas, Politico.com (Nov. 4, 

2014), http://www.politico.com/story/2014/11/arkansas-senate-results-elections-2014-tomcotton-mark-pryor-112515.html.

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E. The Effects of FECA on American Future PAC

51. Because American Future PAC has 51 contributors and has contributed to five 

candidates, and because it registered with the FEC on August 11, 2014, it will become a 

multicandidate PAC and gain the ability to contribute $5,000 per election to federal candidates 

on February 11, 2015. See 52 U.S.C. § 30116(a)(2), (a)(4).

52. AF PAC admits that FECA does not limit the number of candidates to whom it 

may contribute. (FEC Exh. 17, AF PAC’s Disc. Resps. at 6-7, RFA 8 (Doc. No. 68-1).)

53. AF PAC acknowledges that prior to February 11, 2015, FECA permits it to 

contribute more to political party committees than multicandidate political committees may 

contribute to political party committees. (FEC Exh. 17, AF PAC’s Disc. Resps. at 8, RFA 11 

(Doc. No. 68-1).) AF PAC also acknowledges that FECA permits it to contribute more to 

candidates and political party committees than corporations, unions, government contractors, and 

foreign nationals may contribute to candidates and political party committees. (Id. at 9, RFA 

12.) AF PAC further admits that FECA gives it the opportunity to qualify to contribute up to 

$5,000 per election to a candidate, while FECA offers no such opportunity to individuals, 

partnerships, and associations. (Id. at 9-10, RFA 13.) Finally, AF PAC acknowledges that under 

current law, it could register with the FEC as a “hybrid” political committee and accept 

contributions of unlimited amounts to fund independent political speech, while political parties 

and connected political committees may not do so. (Id. at 10, RFA 14.) 

54. AF PAC is aware that it is legally permitted to spend unlimited funds on 

independent expenditures in support of or in opposition to federal candidates. (FEC Exh. 17, AF 

PAC’s Disc. Resps. at 7-8, RFA 10 (Doc. No. 68-1).) AF PAC is “unaware of any 

circumstances that would prevent it from” making independent expenditures. (AF PAC’s Resps. 

to Stop PAC Disc. Reqs. at 5, Interrog. 6 (Doc. No. 50-5).) However, AF PAC “has not sought 

to make any independent expenditures for any candidate” and has no plans to do so. (Id.)

55. AF PAC acknowledges that it is legally permitted to encourage volunteer 

activities in support of federal campaigns. (AF PAC’s Resps. to Stop PAC Disc. Reqs. at 12, 

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RFA 8 (Doc. No. 50-5). However, AF PAC has not organized any volunteer efforts for 

candidates. (FEC Exh. 17, AF PAC Disc. Reqs. at 19-20, Interrog. 19 (Doc. No. 68-1).) 

ARGUMENT

I. THE COURT LACKS JURISDICTION OVER AMERICAN FUTURE PAC’S 

CLAIMS

A. American Future PAC Should Be Dismissed Because the Court Has Lacked 

Jurisdiction over Stop PAC’s Claims

In support of its motion for summary judgment, the Commission has shown that Stop 

PAC lacks standing and that its claims became moot on September 11, 2014. (FEC SJ Br. at 10-

11 (Doc. No. 57-1); FEC Resp. at 6-8 (Doc. No. 60); FEC’s Rebuttal in Supp. of Its Mot. for 

Summ. J. (“FEC Rebuttal”) at 2-5 (Doc. No. 63).) AF PAC sought to join this suit to keep those 

claims alive, but it did not intervene until October 6 — after the Court clearly lacked jurisdiction 

over Stop PAC’s claims — and that lack of jurisdiction is fatal to AF PAC’s claims. See 

Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 840 (4th Cir. 1999) (“[I]t is well-settled law that 

intervention presupposes pendency of an action in a court of competent jurisdiction.” (internal 

quotation marks omitted)); 7C C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman, Federal

Practice and Procedure § 1917, at 458 (3d ed. 2005) (“Intervention cannot cure any jurisdictional 

defect that would have barred the federal court from hearing the original action.”). In particular, 

AF PAC’s intervention could not cure the Court’s lack of jurisdiction over counts one and two, 

whether jurisdiction was deemed to be lacking on standing or mootness grounds. See, e.g., 

Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 160 (2d 

Cir. 2012) (“We have long recognized that if jurisdiction is lacking at the commencement of [a] 

suit, it cannot be aided by the intervention of a [plaintiff] with a sufficient claim.” (internal 

quotation marks omitted; alterations in original)); Becton v. Greene Cnty. Bd. of Educ., 32 F.R.D. 

220, 222-23 (E.D.N.C. 1963) (rejecting motion “for leave to intervene as plaintiffs in an action 

that has admittedly become moot” since “intervention may not be allowed to give life to a 

lawsuit which does not actually exist”). 

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B. American Future PAC’s Claims Appear to Have Become Moot After the 

November 4 General Election

Even if AF PAC’s intervention was proper, the Court should dismiss AF PAC’s claims 

because they now appear to be moot. AF PAC sought to contribute in excess of $2,600 to one

candidate: “[Rep. Tom] Cotton in connection with the 2014 general election.” (Pls.’ SJ Br. at 7, 

¶¶ 37-38 (Doc. No. 56-1).) That election is over, however, and although it may still be possible 

to contribute to the Cotton campaign to retire any campaign debt the campaign may have, AF 

PAC has not alleged any desire to do so. Thus, FECA is no longer causing AF PAC any 

purported injury. Since “the relief sought can no longer be given or is no longer needed,” 

Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007) (internal quotation marks omitted), AF 

PAC’s claims are moot.

II. AMERICAN FUTURE PAC ILLUSTRATES HOW THE SIX-MONTH PERIOD 

HELPS PREVENT A DUMMY-LIKE PAC FROM CIRCUMVENTING THE 

$2,600 LIMIT TO HELP A CANDIDATE JUST PRIOR TO AN ELECTION 

In its previous briefing, the Commission explained that Congress sought to reserve the 

special $5,000 contribution limit for broad-based groups, such as political parties and 

multicandidate PACs, that are legitimately supported by many people and interested in 

supporting multiple candidates. The six-month period helps prevent one candidate’s supporters 

from circumventing the $2,600 contribution limit for individuals just before an election by 

labeling themselves a committee. (See FEC SJ Br. at 13-16 (Doc. No. 57-1); FEC Resp. at 15-17 

(Doc. No. 60); FEC Rebuttal at 7-8 (Doc. No. 63).) 

The FEC also presented evidence showing that plaintiff Stop PAC illustrated this 

circumvention risk, since it was created and operated by two workers for the then-ongoing 

congressional campaign of Niger Innis, to whom Stop PAC sought to contribute in excess of 

$2,600. After registering, Stop PAC was able to easily satisfy the other two multicandidate PAC 

requirements — obtaining 51 contributors and contributing to five candidates — in only 24 days. 

Plaintiffs argue that at that point Stop PAC should have qualified for the $5,000 limit. Yet Stop 

PAC was then still just two individuals with close ties to one candidate and had yet to even file 

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an FEC disclosure report, let alone become a broad-based group like its co-plaintiff Tea Party 

Leadership Fund. (See FEC SJ Br. at 13-16 (Doc. No. 57-1); FEC Resp. at 15-17 (Doc. No. 60); 

FEC Rebuttal at 7-8 (Doc. No. 63).)

The evidence regarding AF PAC similarly illustrates that without the six-month period, 

there would be a much greater risk that a dummy-like PAC could circumvent the $2,600 limit 

and evade disclosure to aid one candidacy right before an election. 

A. American Future PAC Was Narrowly Focused on Helping One Candidate’s 

Campaign, for Which American Future PAC’s Chairperson Has Worked

The evidence shows that AF PAC is exactly the type of “narrow-based political 

committee” that Senator Kennedy feared would attempt to “take on new sources of 

contributions” and “new candidate beneficiaries in order to qualify for the $5,000 gifts allowed 

to be made by broad-based committees.” 120 Cong. Rec. S18527 (daily ed. Oct. 8, 1974). AF 

PAC was formed and run by just two individuals, and it was apparently interested in assisting 

only Rep. Cotton’s campaign for Senate in the November 4 general election. 

AF PAC has no officers, employees, or agents other than Matt Lenell, its chairperson, 

and Jerad Najvar, its treasurer, custodian of records, and counsel. (FEC’s Statement of 

Supplemental Undisputed Material Facts Regarding Intervenor American Future PAC (“FEC 

Supp. Facts”) ¶ 37.)4 Lenell has worked for Cotton’s 2014 Senate campaign as an employee of 

the political consulting firm Campaign Solutions. (Id. ¶ 36.) Lenell’s work for Cotton included 

editing “fundraising communications that Campaign Solutions publicly distributed on behalf of 

the Cotton campaign” and providing “html and other technical ‘coding’ for online 

communications such as e-mails that Campaign Solutions posted or distributed on behalf of the 

Cotton campaign.” (Id.) Lenell retained Najvar to register AF PAC with the FEC. (Id. ¶ 37.) 

That registration occurred on August 11, less than three months before Cotton’s November 4 

 4 AF PAC has hired two vendors; one was created just before AF PAC’s FEC registration, 

and plaintiffs’ counsel Dan Backer is that vendor’s registered agent. (FEC Supp. Facts ¶¶ 38-

39.) 

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election. (Id. ¶¶ 34, 36.) As chairperson, Lenell makes all decisions concerning AF PAC’s 

contributions. (Id. ¶ 35.) 

On August 19, AF PAC contributed the maximum allowed by FECA only to Cotton and 

then just $100 to four other candidates. (FEC Supp. Facts ¶ 46.) Lenell wanted AF PAC to 

contribute even more to Cotton (id. ¶ 50), but the PAC has expressed no interest in contributing 

more than $100 to any other candidate in pursuit of its broad stated purpose of “stand[ing] for the 

veterans who have secured our freedom” (id. ¶ 40). In fact, AF PAC made no reported 

contributions to any candidate after August 25. (Id. ¶ 49.) 

B. American Future PAC Easily Satisfied the 51-Contributor and FiveContribution Requirements in Just 14 Days

As the Commission has demonstrated, the six-month period is an essential aspect of the 

three multicandidate PAC criteria, in part because the other two criteria can be satisfied quickly. 

(FEC SJ Br. at 13-16 (Doc. No. 57-1); FEC Resp. at 15-17 (Doc. No. 60); FEC Rebuttal at 7-8 

(Doc. No. 63).) This is even more true today than it was in 1976 when the multicandidate 

criteria were enacted, since it is now easier to quickly solicit donors using the Internet and social 

media. Using such techniques, AF PAC satisfied the 51-contributor and five-contribution 

requirements in only 14 days. 

First, Lenell and Najvar successfully solicited contributions for AF PAC from more than 

50 persons in just nine days. (FEC Supp. Facts ¶ 41.) They did so using online fundraising 

software and by sending emails, texts, and Facebook messages to friends, colleagues, and 

acquaintances asking for five dollars. (Id. ¶¶ 39, 41, 43.) Forty-one of AF PAC’s first 51 

contributions after registration were for five dollars, while three were for just one dollar. (Id. ¶ 

43.) AF PAC admits that it solicited contributors in part for the purpose of satisfying FECA’s 

51-contributor requirement; indeed, some solicitations explicitly asked potential contributors to 

give to AF PAC for that purpose, not to help veterans. (Id. ¶ 42.) In one solicitation, Lenell said 

to a potential contributor: “Hey. I need a favor. . . . I’m starting a Political Action Committee 

and I need to get 51 donors to get standing and join a lawsuit. [W]ill you donate to help?” (Id.) 

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Lenell made similar oral solicitations. (Id.) Lenell and Najvar’s concerted effort to satisfy the 

51-contributor requirement resulted in AF PAC obtaining 54 contributors by August 22. (Id. ¶ 

44.) AF PAC has since received no further reported contributions. (Id. ¶ 45.) 

Second, AF PAC had contributed to five federal candidates by August 25. (FEC Supp. 

Facts ¶ 46.) It gave $2,600 to Rep. Cotton and then a relatively nominal $100 to four others —

amounts that AF PAC admits were given in part simply to satisfy the five-contribution 

requirement for multicandidate PAC status. (Id. ¶ 47.) Since contributing to Cotton and the four 

other candidates, AF PAC has made no other reported contributions to any candidate. (Id. ¶¶ 48, 

49.)

AF PAC’s efforts to satisfy the 51-conributor and five-contribution requirements, even if 

litigation-driven, illustrate how easy it would be for a dummy-like group motivated by narrow 

circumvention interests to quickly obtain the $5,000 limit were it not for the six-month period. 

C. After 14 Days, American Future PAC Was Still a Circumvention Risk and 

Not Similarly Situated to a Bona Fide Multicandidate Group like the Tea 

Party Leadership Fund or a Political Party

Plaintiffs have asserted that a new PAC “that has more than 50 contributors, by 

definition, cannot be a façade through which a single individual is attempting to evade other 

contribution limits.” (Pls.’ SJ Br. at 17-18 (Doc. No. 56-1).) But just like the evidence regarding 

Stop PAC, the evidence here regarding AF PAC undermines that assertion.

On August 25, 2014, when AF PAC had 51 contributors and had made five candidate 

contributions (FEC Supp. Facts ¶¶ 41, 46), it was far from being a broad-based citizen interest 

group akin to plaintiff Tea Party Leadership Fund or a political party. AF PAC was then only 14 

days old and created and operated by just two people. (Id. ¶¶ 34, 37.) It had contributed the 

$2,600 maximum allowed by FECA to a single candidate, Rep. Cotton, while showing little 

interest in other candidates. (Id. ¶¶ 46, 49-50.) AF PAC admits that it donated to four other 

candidates in part simply to satisfy the five-contribution requirement. (Id. ¶ 47.) AF PAC’s 

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chairperson either had worked or would soon work for the Cotton campaign, performing tasks 

that included editing Cotton campaign fundraising communications. (Id. ¶ 36.) 

Furthermore, AF PAC’s $2,600 contribution to Rep. Cotton was made possible only 

because a single donor had given AF PAC $5,000 the day before. (FEC Supp. Facts ¶ 44.) That 

single donor, Shaun McCutcheon, dominated AF PAC’s receipts: More than 91 percent of the 

$5,473 AF PAC had raised by August 22 came from McCutcheon’s $5,000. (Id.) McCutcheon 

would later donate $1,776 directly to Rep. Cotton’s campaign. (Id.) On August 25, however, the 

public had no way to know that AF PAC’s receipts consisted largely of money from one donor 

who would later give directly to Rep. Cotton, since AF PAC had yet to file a disclosure report 

detailing the sources of its funding.5 (Id. ¶ 48.) In fact, AF PAC would not be required to file a 

disclosure report for nearly another two months, on October 15. (Id.)

Finally, after August 25, once AF PAC had obtained 51 contributors and had made five 

contributions including to Rep. Cotton, it apparently ceased engaging in any activity. From that 

date on, including the critical time immediately preceding the general election, AF PAC neither 

received nor made any reported contributions (FEC Supp. Facts ¶¶ 45, 49) to further its stated 

mission of “stand[ing] for the veterans” (id. ¶ 40). 

Nevertheless, plaintiffs claim that the Constitution requires that AF PAC be entitled to 

contribute as much to a candidate as national party committees may. The Constitution, however, 

requires no such thing. See, e.g., Cal. Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981) (holding 

that FECA may, consistent with the Constitution, “reflect a judgment by Congress that . . . 

entities have differing structures and purposes, and that they therefore may require different 

forms of regulation in order to protect the integrity of the electoral process”). 

 5 AF PAC disclosed information regarding its contributors on August 27 in response to 

discovery in this litigation (Exh. 3 to Najvar Decl. (Doc. No. 50-4)), but of course, such 

disclosure would not normally occur. 

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CONCLUSION

For the foregoing reasons, and for the reasons stated in the FEC’s previous briefing, the 

FEC’s motion for summary judgment should be granted and plaintiffs’ motion for summary 

judgment should be denied.

Respectfully submitted,

Lisa J. Stevenson*

Deputy General Counsel – Law 

Kevin Deeley*

Acting Associate General Counsel

Harry J. Summers*

Assistant General Counsel

* Admitted pro hac vice

November 14, 2014

Holly J. Baker*

Kevin P. Hancock*

/s/

Esther D. Gyory (VA Bar #76826)

Attorneys

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

(202) 694-1650

Case 1:14-cv-00397-AJT-IDD Document 68 Filed 11/14/14 Page 19 of 21 PageID# 1014
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

)

STOP RECKLESS ECONOMIC )

INSTABILITY CAUSED BY )

DEMOCRATS, et al., ) Civ. No. 1:14-397 (AJT-IDD)

)

Plaintiffs, )

)

and )

)

AMERICAN FUTURE PAC, )

)

Plaintiff-Intervenor, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2014, I will electronically file the foregoing with 

the Clerk of Court using the CM/ECF system, which will then send a notification of such filing 

to the following counsel:

Dan Backer, Esq.

DB Capitol Strategies PLLC

717 King Street, Suite 300

Alexandria, VA 22314

DBacker@DBCapitolStrategies.com

Michael Thomas Morley, Esq.

Coolidge-Reagan Foundation

1629 K Street, Suite 300

Washington, D.C. 20006

morley@coolidgereagan.org

Case 1:14-cv-00397-AJT-IDD Document 68 Filed 11/14/14 Page 20 of 21 PageID# 1015
2

Jerad Najvar, Esq.

Najvar Law Firm

4151 Southwest Freeway, Suite 625

Houston, TX 77027

jerad@najvarlaw.com

/s/

Esther D. Gyory (VA Bar # 76826)

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

EGyory@fec.gov

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