IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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Republican National Committee, et al.,

Plaintiffs,

v.

Federal Election Commission, et al.,

Defendants.

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Civ. No. 08-1953 (BMK, RJL, RMC)

THREE-JUDGE COURT

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Roger M. Witten (D.C. Bar No. 163261)

Shane T. Stansbury

Lauren E. Baer

WILMER CUTLER PICKERING HALE

AND DORR LLP 

399 Park Avenue

New York, NY 10022 

Tel.: (212) 230-8800

Fax: (212) 230-8888

E-mail: roger.witten@wilmerhale.com

Seth P. Waxman (D.C. Bar No. 257337)

Randolph D. Moss (D.C. Bar No. 417749)

WILMER CUTLER PICKERING HALE

AND DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Tel.: (202) 663-6000

Fax: (202) 663-6363

E-mail: seth.waxman@wilmerhale.com

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP

1425 K Street. N.W., Suite 600

Washington, D.C. 20005 

Tel.: (202) 682-0240

Fax: (202) 682-0249

Email: dsimon@sonosky.com

Fred Wertheimer (D.C. Bar No. 154211)

DEMOCRACY 21

1875 I Street, N.W., Suite 500

Washington, D.C. 20006

Tel.: (202) 429-2008

Fax: (202) 293-2660

E-mail: FWertheimer@democracy21.org

Scott L. Nelson (D.C. Bar No. 413548)

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Tel.: (202) 588-1000

Fax: (202) 588-7795

Email: snelson@citizen.org

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TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................. i

TABLE OF AUTHORITIES ..................................................................................................... iii

INTRODUCTION...................................................................................................................... 1

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

ARGUMENT............................................................................................................................. 8

I. THE SUPREME COURT REJECTED IN MCCONNELL THE PRECISE 

CHALLENGES RAISED BY PLAINTIFFS IN THIS ACTION..................................... 9

A. The Supreme Court’s Anti-Corruption Rationale for Upholding 

Section 323(a) Forecloses Challenges That Are Predicated on the 

Ultimate Use of Soft Money Contributions.......................................................... 9

1. Soft Money Contributions to National Parties Can Corrupt 

Federal Candidates and Officeholders, or Create the 

Appearance of Corruption, Regardless of How the Contributions 

Are Ultimately Used ................................................................................ 9

2. Plaintiffs’ Section 323(a)’s Claims Are Foreclosed by McConnell ......... 15

B. The Supreme Court’s Anti-Corruption Rationale Also Forecloses 

Plaintiffs’ Challenges to Section 323(b)............................................................. 17

1. Section 323(b) Serves Congress’s Interest in Combating 

Actual or Apparent Corruption by Closing the State and 

Local Party Loophole............................................................................. 17

2. Plaintiffs’ Section 323(b) Claims Are Foreclosed by McConnell............ 18

II. PLAINTIFFS’ ARGUMENT THAT SECTION 323 CAN ONLY REGULATE 

ACTIVITIES THAT ARE “UNAMBIGUOUSLY RELATED TO THE 

CAMPAIGN OF A PARTICULAR FEDERAL CANDIDATE” HAS NO 

BASIS IN BUCKLEY OR ITS PROGENY ................................................................... 21

III. PLAINTIFFS’ PROMISE TO INSULATE FEDERAL CANDIDATES AND 

OFFICEHOLDERS FROM PLAINTIFFS’ PROPOSED FUNDRAISING 

ACTIVITIES DOES NOT SAVE PLAINTIFFS’ CLAIMS .......................................... 26

A. This Court Should Defer to Congressional Judgments Underlying 

Restrictions on Soft Money ............................................................................... 27

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1. McConnell Held That It Was in Congress’s Discretion to Limit 

Campaign Contributions When Those Contributions Might Foster 

Corruption or the Appearance Thereof................................................... 27

2. BCRA Reflects a Congressional Determination That Soft Money

Contributions Can Foster Corruption, or the Appearance Thereof,

Regardless of Whether Federal Candidates and Officeholders Are 

Involved in Fundraising, and Even if the RNC Provides Soft Money 

Donors No More Benefits Than Are Provided to Current Hard Money 

Donors................................................................................................... 28

3. BCRA Reflects a Congressional Determination That Soft Money

Contributions Can Foster Corruption, or the Appearance Thereof,

Regardless of Whether Federal Candidates and Officeholders Directly 

Benefit From Soft Money Expenditures................................................. 30

a) There is no legal basis for a “direct benefit” restriction on 

congressional regulation ................................................................. 31

b) Even if a “direct benefit” restriction on congressional regulation 

did apply, Plaintiffs’ intended activities would fall within the 

scope of permissible congressional regulation................................. 32

i) If Plaintiffs are permitted to raise soft money, they 

will divert hard money now spent elsewhere to federal 

elections and candidates...................................................... 32

ii) The activities Plaintiffs propose to fund with soft

money will directly benefit federal officeholders and 

candidates........................................................................... 32

B. Apart From the Legal Irrelevancy of Plaintiffs’ Promise to Insulate Federal 

Candidates and Officeholders From Their Proposed Fundraising Activities, 

Plaintiffs Have Put Forth No Evidence to Support the Factual Credibility of 

This Promise ..................................................................................................... 36

IV. FAR FROM WEAKENING THE PARTIES’ ABILITY TO PERFORM THEIR 

FUNCTION, BCRA’S SOFT MONEY RESTRICTIONS HAVE CAUSED THE 

PARTIES TO THRIVE................................................................................................. 38

CONCLUSION........................................................................................................................ 40

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TABLE OF AUTHORITIES

CASES 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ............................................. 23

Broward Coalition of Condominiums, Homeowners Associations & Community 

Organizations Inc. v. Browning, No. 08-445, 2008 WL 4791004 

(N.D. Fla. Oct. 29, 2008)............................................................................................... 25

*Buckley v. Valeo, 424 U.S. 1 (1976)..................................................................................passim

Center for Individual Freedom, Inc. v. Ireland, Nos. 1:08-cv-00190 & 01133, 

2008 WL 4642268 (S.D. W. Va. Oct. 17, 2008)............................................................ 25

Federal Election Commission v. Colorado Republican Federal Campaign Committee, 

533 U.S. 431 (2001)...................................................................................................... 11

Federal Election Commission v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986).................................................................................................23, 25

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)................................................. 23

*McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003).............passim

*McConnell v. Federal Election Commission, 540 U.S. 93 (2003)......................................passim

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008)................................. 25

National Right to Work Legal Defense & Education Foundation, Inc. v. Herbert, 

581 F. Supp. 2d 1132 (D. Utah 2008)............................................................................ 25

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)............................................. 27

Shays v. Federal Election Commission, 511 F. Supp. 2d 19 (D.D.C. 2007)..........................20, 24

Wisconsin Right to Life v. Federal Election Commission, 127 S. Ct. 2652 (2007)..........20, 22, 25

*Asterisk denotes authorities on which counsel chiefly relies.

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STATUTORY PROVISIONS

2 U.S.C. § 431...................................................................................................................... 3, 18

2. U.S.C. § 434......................................................................................................................... 23

2 U.S.C. § 441b........................................................................................................................ 23

Federal Election Campaign Act § 323 (codified at 2 U.S.C. § 441i)....................................passim

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 91 ...........................................................................passim

Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, 88 Stat. 1263 ................................................................................... 3

REGULATIONS

11 C.F.R. § 102.6(a)(2) (1977) ................................................................................................... 3

11 C.F.R. § 106.5 (1991)............................................................................................................ 3

LEGISLATIVE MATERIALS

S. Rep. No. 105-167 (1998)........................................................................................................ 1

148th Cong. Rec. H409 (Feb. 13, 2002)...................................................................................... 5

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INTRODUCTION

This case does not arise against a blank slate. To the contrary, over a period of decades, 

Congress and the Courts have considered and addressed precisely the issues posed. Congress 

has sought for over a century to curb the potentially corrupting influence of large political 

contributions, and, recognizing that contribution limits “entail[] only a marginal restriction upon 

the contributor’s ability to engage in free communications,” Buckley v. Valeo, 424 U.S. 1, 20 

(1976), the Courts have repeatedly affirmed Congress’s authority to do so. 

Following the Supreme Court’s affirmation of contribution limits in Buckley, the political 

parties created and exploited the “soft money” loophole by taking advantage of Federal Election 

Commission (“FEC”) regulations that purported to distinguish between contributions for federal 

and state election activity (much in the manner that Plaintiffs now propose). As was extensively 

chronicled in the late 1990s, see, e.g., S. Rep. No. 105-167 (1998), that loophole dramatically 

undermined the then-existing contribution limits. Congress recognized that permitting the 

national political parties to continue to raise and spend funds not subject to federal source and 

amount limitations would simply invite further evasion and would leave open the door to the 

actual and apparent corrupting influence of large political contributions. Congress also 

recognized that additional, but more limited, regulation of the state political parties was 

necessary to avoid circumvention of the federal limits. Congress responded by enacting the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), the core purpose of which was to close the 

soft money loophole. 

In McConnell v. Federal Election Commission, one of the most comprehensive lawsuits 

in recent history, the Supreme Court thoroughly considered the constitutionality of the new soft 

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money provisions and rejected an array of facial challenges to the law. 540 U.S. 93 (2003). 

Most significantly for present purposes, the McConnell plaintiffs—which included the 

Republican National Committee (RNC”) and the California Republican Party (“CRP”)—raised 

the same concerns that the Plaintiffs in this case raise, and the Supreme Court rejected each of 

those challenges. Id. at 134-74. The McConnell plaintiffs argued, for example, that BCRA’s 

soft money provisions are “impermissibly overbroad” because they apply to “all funds raised and 

spent by national parties . . . , including . . . funds spent on purely state and local elections in 

which no federal office is at stake.” Id. at 154 (emphasis in original). The Supreme Court 

rejected that argument, and others related to the use of soft money, stressing that the soft money 

provisions “regulate[ ] contributions, not activities,” id. (emphasis in original). Emphasizing the 

“close connection and alignment of interests” between the national parties and federal 

officeholders and candidates, the Court held that “large soft-money contributions to national 

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

regardless of how those funds are ultimately used.” Id. at 155 (emphasis added).

Accepting Plaintiffs’ invitation in this case to alter BCRA’s soft money provisions would 

once again open the door to systemic evasion of federal contribution limits and the risk of actual 

or apparent corruption. That door was firmly closed by Congress, in BCRA, and the Supreme 

Court, in McConnell. Accordingly, this Court should deny Plaintiffs’ Motion for Summary 

Judgment.

BACKGROUND

In 1974, Congress amended the Federal Election Campaign Act of 1971 (“FECA”). 

Among other things, the 1974 amendments limited individual political contributions to any

single candidate to $1,000 per election, imposed an overall annual limitation of $25,000 by any 

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contributor, and required reporting and public disclosure of contributions and expenditures 

exceeding certain limits. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-

443, 88 Stat. 1263. Under FECA, however, the term “contribution” only reached the gift or 

advance of anything of value “made by any person for the purpose of influencing any election 

for Federal office.” 2 U.S.C. § 431(8)(A)(i) (emphasis added). Accordingly, FECA left open 

the possibility for “corporations and unions, as well as individuals who had already made the 

maximum permissible contributions to federal candidates, to contribute ‘nonfederal money’—

also known as ‘soft money’—to political parties for activities intended to influence state or local

elections.” McConnell v. FEC, 540 U.S. 93, 123 (2003).

Shortly after FECA was enacted, the FEC sowed the seeds of the “soft money” loophole 

by adopting allocation rules that purported to distinguish between campaign contributions used 

to fund federal election activity—which were subject to FECA’s source and amount 

limitations—and contributions used to fund state election activity—which were not subject to 

FECA’s restrictions. See 11 C.F.R. § 102.6(a)(2) (1977); 11 C.F.R. § 106.5 (1991). Over time, 

the political parties learned to use these allocation rules to evade FECA and to inject massive 

amounts of unregulated soft money into the federal election system. See McConnell v. FEC, 251 

F. Supp. 2d 176, 197-201 (D.D.C. 2003) (per curiam); Expert Report of Thomas E. Mann, 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C 2003) (No. 02-0582) (“Mann Report”) Tbl. 2 

[Exhibit 1]. This pattern of evasion grew exponentially after the FEC concluded in 1995 that the 

parties could also use soft money to fund the costs of “legislative advocacy media 

advertisements,” including ads that mentioned the name of a federal candidate, so long as they 

did not expressly advocate the candidate’s election or defeat. FEC Advisory Op. 1995-25, 1995 

WL 571489 (Aug. 24, 1995) [Exhibit 2]. Moreover, to take even further advantage of the soft 

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money loophole, “[t]he national parties transferred large amounts of their soft money to the state 

parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose 

activities under FEC rules.” McConnell, 540 U.S. at 124 (citing Mann Report 26 [Exhibit 1]). In 

addition to “legislative advocacy advertisements,” these “mixed-purpose” activities included, 

among other things, get-out-the-vote drives and generic party advertising. 

The debilitating effect of soft money was not mitigated by the fact that its uses were, at 

least on paper, limited to certain activities, some of which were less than directly related to 

federal campaigns. As political scientists and the Courts have recognized, there is a fundamental 

unity of interest linking the national parties to their candidates and officeholders. See McConnell 

v. FEC, 540 U.S. at 145 (“[F]ederal candidates and officeholders enjoy a special relationship and 

unity of interest [with the national parties].”). “The party national committees do not exist to 

lose elections, or to be neutral in elections or court cases relating to them; they exist to capture 

public offices for their candidates and deny those offices to candidates from the other party.” 

(Declaration of Norman J. Ornstein (“Ornstein Decl.”) ¶ 7 [Exhibit 3]). As a consequence, 

“[r]aising money to win those elections is critical for the candidates, and the parties have long 

been vehicles and conduits for that purpose.” (Id. at ¶ 12.)1“Presidents and congressional 

leaders,” accordingly, “are favorite guests at fundraising affairs. . . . [T]hey fully recognize that 

their fundraising role both augments their power within the party-as organization . . . and 

indirectly strengthens their power within the party-as-government . . . .” (Green Report at 9 

[Exhibit 4].) In short, “as political scientists have observed since the earliest studies of political 

1

In McConnell, expert witness Donald Green also illustrated additional ways in which this 

symbiotic relationship manifests itself. Expert Report of Donald Green, McConnell v. FEC, 251 

F. Supp. 2d 176 (D.D.C 2003) (No. 02-0582) (“Green Report”) 7-8 [Exhibit 4]. These include, 

but are not limited to, the parties’ crucial role in the organization of the legislative caucuses, the 

assignment of committee posts, and the distribution of power within committees. Id.

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party machines, there is often a disquieting closeness between the party-in-government and the 

party-as-organization.” Green Report at 9. Thus, although nominally routed through the parties, 

soft money effectively became part of the indissoluble party-officeholder partnership.

Promises, moreover, to segregate “federal” and “state” campaign contributions are, in 

practice, meaningless. As Dr. Ornstein explains, “[w]e know that much political money is 

fungible. Money raised by parties for one purpose frees up resources that might otherwise be 

tied up to use for other purposes, including federal campaigns and elections.” (Ornstein Decl. 

¶ 20 [Exhibit 3].) Likewise, as discussed below in subsection III.A.3.b, funds used for purposes 

of what Plaintiffs characterize as “state” election activity—like “get-out-the-vote” drives and 

“issue advocacy”—have a substantial (and often intended) effect on federal elections. As former 

Representative Shays stated in 2002, “[t]he only effective way to address this [soft money] 

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

parties.” 148th Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays) (emphasis added). 

In culmination of a nearly decade-long legislative effort to close FECA’s soft money 

loophole, Congress enacted the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 

No. 107-155, 116 Stat. 91. In relevant part, Title I of BCRA amended FECA by prohibiting 

national parties and their officers from soliciting, receiving, or routing through third parties funds 

that are not subject to federal regulation. BCRA § 101(a), FECA § 323(a) (codified at 2 U.S.C. 

§ 441i(a)). BCRA reinforced section 323(a)’s restriction on national party involvement with soft 

money by also limiting the manner in which state and local party committees could use such 

funds for federal election activities.2 BCRA § 101(b)(1), FECA § 323(b)(1) (codified at 2 U.S.C. 

§ 441i(b)(1)).3

2 Under BCRA, the state and local parties remain free to use a combination of federal 

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Shortly after the President signed BCRA into law, various political parties (including the 

RNC and CRP), interest groups, and Members of Congress brought a series of lawsuits 

challenging the constitutionality of virtually every provision of BCRA, including the soft money 

provisions. McConnell, 251 F. Supp. 2d at 206. After those actions were consolidated before a 

three-judge panel of this Court, the parties developed a massive record, “which, by a 

conservative estimation, comprised the testimony and declarations of over 200 fact and expert 

witnesses and over 100,000 pages of material.” Id. at 209 (footnote omitted). The record 

developed in McConnell, which is meticulously reflected in Judge Kollar-Kotelly’s and Judge 

Leon’s separate opinions in that case, provides the core factual background for this action. Id. at

432-756 (Kollar-Kotelly, J.); id. at 756-919 (Leon, J.). 

On direct appeal, the Supreme Court upheld section 323 in its entirety against plaintiffs’ 

facial challenge. With respect to section 323(a), the Supreme Court concluded that “[t]he 

Government’s strong interests in preventing corruption, and in particular the appearance of 

corruption, are . . . sufficient to justify subjecting all donations to national parties to the source, 

amount, and disclosure limitations of FECA.” McConnell, 540 U.S. at 156 (emphasis added). 

Likewise, the Supreme Court concluded that “§ 323(b), on its face, is closely drawn to match the 

important governmental interests of preventing corruption and the appearance of corruption.” Id. 

at 173.

funds and so-called Levin Funds for certain voter identification, voter registration, and get-outthe-vote activities pursuant to a allocation ratio set by the FEC. See FECA § 323(b)(2) (codified 

at 2 U.S.C. § 441i(b)(2)).

3

The provisions at issue in this case are identified pursuant to the section numbers 

assigned to those provisions in FECA.

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Plaintiffs now seek an exemption from section 323’s soft money restrictions as applied to 

a series of activities in which, they allege, they intend to engage. In the Complaint for 

Declaratory and Injunctive Relief (“Complaint”), Plaintiff RNC alleges that it intends to solicit 

and use soft money funds for the following accounts: (1) an RNC New Jersey account, financing 

campaign activities in support of state Republican candidates in the November 10, 2009 election; 

(2) an RNC Virginia account, financing campaign activities in support of state Republican 

candidates in the November 10, 2009 election; (3) an RNC redistricting account, financing the 

redistricting efforts of various state Republican parties following the 2010 census; (4) an RNC 

“grassroots lobbying” account, financing “grassroots lobbying” efforts for federal legislation and 

issues important to the Republican Party’s platform; (5) an RNC state elections account, 

financing campaign activities in support of state candidates in connection with elections where 

both federal and state candidates appear on the ballot, and (6) an RNC litigation account, 

financing litigation challenging BCRA and other litigation efforts. (Compl. ¶¶ 16-21.) Former 

RNC Chairman Robert M. Duncan (“Duncan”) intends to solicit funds into these accounts. 

(Compl. ¶ 22.) 

In addition, the CRP and Republican Party of San Diego (“SDRP”) challenge the 

constitutionality of BCRA’s restrictions on their use of soft money to: (1) support or oppose the 

passage of California ballot initiatives through public communications that promote, attack, 

support, or oppose candidates for federal office; and (2) engage in voter identification, voter 

registration, get-out-the-vote activities, and generic campaign activity, in connection with 

elections where both state and federal candidates appear on the ballot. (Compl. ¶¶ 23, 25.) 

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ARGUMENT

Plaintiffs’ “as applied” challenge to section 323 fails to raise legal issues that were not 

considered and rejected in McConnell.

4

Plaintiffs do not attempt to undercut McConnell’s core 

conclusion that soft money donations to political parties can foster actual or apparent corruption 

and that this risk is a sufficient justification for BCRA’s closely drawn limits on campaign 

contributions. Nor do they argue that the political landscape has fundamentally changed in a 

way that renders the record in McConnell no longer accurate or relevant. Rather, Plaintiffs’ 

principal contention is that the First Amendment precludes application of section 323 to 

contributions that they seek to collect and use for a series of purposes that, in their view, are not 

“unambiguously related” to a federal election. That argument, however, ignores a fundamental 

holding of McConnell: How soft money may be used is irrelevant to the constitutional analysis 

of limits on soft money contributions. Indeed, Congress concluded, and the Court affirmed, that 

sufficient risks of actual and apparent corruption arise in connection with parties accepting and 

soliciting soft money that restrictions on soft money contributions can withstand constitutional

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

Plaintiffs’ “unambiguously related” test fails to find any support in McConnell or other cases 

addressing contribution, as opposed to expenditure, limits. And Plaintiffs’ attempt to inject a 

higher level of scrutiny than the courts have historically applied in considering the 

constitutionality of contribution limits finds no support in the controlling precedent; the courts 

4 On January 26, 2009, the FEC moved this Court to dismiss this action on the ground that 

the Supreme Court’s decision in McConnell precludes Plaintiffs’ claims as a matter of res 

judicata and collateral estoppel. Because the arguments that Plaintiffs now assert were raised 

and considered in McConnell, Representative Van Hollen agrees that Plaintiffs’ claims are 

precluded under principles of res judicata and collateral estoppel. Although Plaintiff label their 

current lawsuit an “as-applied” challenge, the substance of their arguments does not differ from 

those addressed in McConnell.

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have consistently recognized that contribution limits do not demand the level of scrutiny 

applicable to expenditure limits, since they impose only a “marginal restriction upon a 

contributor’s ability to engage in free speech.” Buckley, 424 U.S. at 20. Plaintiffs claims, quite 

simply, are foreclosed by McConnell.

I. THE SUPREME COURT REJECTED IN MCCONNELL THE PRECISE 

CHALLENGES RAISED BY PLAINTIFFS IN THIS ACTION

A. The Supreme Court’s Anti-Corruption Rationale for Upholding Section 

323(a) Forecloses Challenges That Are Predicated on the Ultimate Use of 

Soft Money Contributions 

1. Soft Money Contributions to National Parties Can Corrupt Federal 

Candidates and Officeholders, or Create the Appearance of Corruption, 

Regardless of How the Contributions Are Ultimately Used

In McConnell, the Supreme Court considered and rejected the central argument on which 

Plaintiffs’ claims depend—that the constitutionality of section 323(a)’s restrictions on soft 

money contributions to national parties depends on the nature of the activities for which those 

contributions are ultimately used. The Court held that “Section 323(a), like the remainder of 

§ 323, regulates contributions, not activities” and that “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.” 

McConnell, 540 U.S. at 154-55 (emphasis added).5In light of the “close connection and 

alignment of interests” between parties and candidates, whether any given use of soft money by 

itself poses a threat to corrupt a federal candidate or office holder is “beside the point.” Id. at 

154, 155 (emphasis added). This was no mere aside in the McConnell opinion; it was central to 

the Court’s holding, the issue having been put forcefully to the Court by plaintiffs there in terms 

5

See also id. at 156 (“[O]fficeholders place substantial value on soft-money contribution 

themselves, without regard to their end use” and, in turn, “national committees are able to exert 

considerable control over federal officeholders.”). 

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that Plaintiffs here simply echo. See id. (rejecting “Plaintiffs[’] and The Chief Justice[’s]” 

argument that section 323 is impermissibly overbroad because it subjects to regulation funds 

spent on activities that pose “‘little or no potential to corrupt . . . federal candidates and 

officeholders.’”). 

The Supreme Court characterized its conclusions regarding the threat of real and apparent 

corruption as “neither novel nor implausible.” McConnell, 540 U.S. at 144. The Court 

recognized, as it has since Buckley, that contributions to a candidate’s party could create a sense 

of obligation no less than a direct contribution to the candidate himself, id. at 144-45 (citing 

Buckley, 424 U.S. at 38), and that “[t]his is particularly true of contributions to national parties, 

with which federal candidates and officeholders enjoy a special relationship and unity of 

interest.” Id. at 145. Because of this “close affiliation,” the national parties are placed “in a 

unique position, ‘whether they like it or not,’ to serve ‘as agents for spending on behalf of those 

who seek to produce obligated officeholders,’” and the record showed that “rather than resist that 

role, the national parties . . . actively embraced it.” Id. 

The exhaustive record in McConnell contained strong evidence of this unity of interest 

between the parties and the candidates. In her findings of fact, which were echoed in relevant 

part by the Supreme Court,6Judge Kollar-Kotelly concluded that “[u]nlike other entities, 

political parties have uniquely close relationships with candidates they nominate and support, 

and who, in turn, lead the party.” McConnell, 251 F. Supp. 2d at 468 (citing Green Report at 7-9 

[Exhibit 4]; Declaration of Sen. John McCain, J.A., McConnell v. FEC, 540 U.S. 93 (2003) (No. 

6

See McConnell, 540 U.S. at 124 nn.9-10, 124 n.12, 125 nn.14-15, 126 n.16, 127 nn.17-

20, 128 nn.21, 23, 129 nn.24-25, 133 n.38, 146, 147 n.46, 148 n.47, 149, 150, 151, 154 n.50, 

155, 164 nn.59-60, 167, 173. 

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02-1674 et al.) (“McCain Decl.”) ¶¶ 22-23 [Exhibit 5]).7Even elected federal officials and party 

officials concurred.8

Having rejected the distinction between national parties and federal candidates and 

officeholders, the Supreme Court identified the many ways, evidenced by the record, that soft 

money contributions to the national parties could create corruption or the appearance of 

corruption. The Court noted that “[t]he evidence in the record shows 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. At the donor end of the bargain, 

7

See also McConnell, 251 F. Supp. 2d at 468-69 (Kollar-Kotelly, J.) (quoting Krasno & 

Sorauf Expert Report at 12-13) (“Party committees are headed by or enjoy close relationships 

with their leading officials, individuals who by virtue of their positions, reputations, and control 

of the legislative machinery have special influence on their colleagues.”).

8

Former Representative Meehan, for example, explained that “‘[i]n [his] experience, 

political parties do not have economic interests apart from their ultimate goal of electing their 

candidates to office.’” McConnell, 251 F. Supp. 2d at 468 (Kollar-Kotelly, J.) (quoting Meehan 

Decl. in RNC ¶¶ 3-4). And the Colorado Republican Party recognized, in a prior legal brief 

quoted by Judge Kollar-Kotelly in McConnell, just how closely intertwined the interests of the 

national parties and candidates are:

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 468 (Kollar-Kotelly, J.) (quoting Brief of Colorado Republican 

Party in FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001), at 19-20 

[Exhibit 6]).

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“lobbyists, CEOs, and wealthy individuals alike all . . . 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.” Id. at 147. At the other end of the bargain, 

“national parties . . . actively exploited the belief that contributions purchase influence or 

protection to pressure donors into making contributions.” Id. at 148 n.47. 

The McConnell record showed just how pervasive the corrupting effect of soft money 

donations had become. As one CEO put it, “‘[m]any members of the business community 

recognize[d] that [, prior to BCRA,] if they want[ed] to influence what happens in Washington, 

they [would] have to play the soft money game.’” McConnell, 251 F. Supp. 2d at 497 (KollarKotelly, J.) (quoting Randlett Decl. ¶ 14).9 Unsurprisingly, then, “‘labor and business leaders 

[we]re regularly advised that—and their experience directly confirm[ed] that—organizations that 

make large soft money donations to political parties in fact [did] get preferred access to 

government officials.’” Id. at 497-98 (quoting Greenwald Decl. ¶ 10). This opportunity to obtain 

preferred access to federal candidates and officeholders constituted a key component of 

9

Testimony from lobbyists in McConnell further supports this conclusion. See, e.g., 

McConnell, 251 F. Supp. 2d at 492 (Kollar-Kotelly, J.) (“Testimony from lobbyists demonstrates 

that large donations, particularly in nonfederal form, are a necessary ingredient for a successful 

lobbying campaign because they provide their clients with access to federal lawmakers, which 

allows them to influence legislation.”). For example, lobbyist Robert Rozen testified, 

I know of organizations who believe that to be treated seriously in 

Washington, and by that I mean to be a player and to have access, you 

need to give soft money. As a result, many organizations do give soft 

money. . . . They give soft money because they believe that’s what helps 

establish better contacts with Members of Congress and gets doors opened 

when they want to meet with Members. There is no question that money 

creates the relationships. 

Id. at 492-93 (quoting Rozen Decl. ¶ 10).

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management’s overall corporate strategy, just like any other investment. See id. at 498 (quoting 

Eli Lilly and Company Memorandum (Jan. 15, 1997)).10

Perhaps more alarmingly, “[t]he evidence from the federal officeholders’ perspective 

[wa]s similar.” McConnell, 540 U.S. at 149. As former Senator Rudman explained,

Special interests who give large amounts of soft money to political 

parties do in fact achieve their objectives. They do get special 

access. Sitting Senators and House Members have limited 

amounts of time, but they make time available in their schedules to 

meet with representatives of business and unions and wealthy 

individuals who gave large sums to their parties. These are not 

idle chit-chats about the philosophy of democracy. . . . Senators are 

pressed by their benefactors to introduce legislation, to amend 

legislation, to block legislation, and to vote on legislation in a 

certain way. No one says: “We gave money so you should do this 

to help us.” No one needs to say it—it is perfectly understood by 

all participants in every such meeting.

McConnell, 251 F. Supp. 2d at 496 (quoting Rudman Decl. ¶¶ 7, 9). Submissions by numerous 

other current and former Members of Congress reflected the same observation: that soft money 

creates a reciprocal understanding between donors and federal officials whereby large donations 

are more or less tacitly traded for access to the federal officeholders.11

10 See McConnell, 251 F. Supp. 2d at 498 (quoting Hassenfeld Decl. ¶¶ 23-24) (“I think 

companies in some industries have reason to believe that because their activities are so closely 

linked with federal government actions, they must participate in the soft money system in order 

to succeed.”); id. at 493 (quoting Rozen Decl. ¶ 10) (“Companies with interests before particular 

committees need to have access to the chairman of that committee, make donations, and go to 

events where the chairman will be.”).

11 See McConnell, 251 F. Supp. 2d at 496 (Kollar-Kotelly, J.) (quoting Simpson Dep. 11-12 

(“It’s giving so you can get access.”) (former Sen. Simpson)); id. (quoting former Rep. Mazzoli 

as saying, “People who contribute get the ear of the member and the ear of the staff. They have 

the access—and access is it. Access is power. Access is clout. That’s how this thing works. . . 

.”); id. (quoting Simon Decl. ¶ 16) (“Giving to party committees also helps you gain access to 

Members. While I realize some argue donors don’t buy favors, they buy access. That access is 

the abuse and it affects all of us. If I got to a Chicago hotel at midnight, when I was in the 

Senate, and there were 20 phone calls waiting for me, 19 of them names I didn’t recognize and 

the 20th someone I recognized as a $1,000 donor to my campaign, that is the one person I would 

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The corrupting influence of soft money is not limited to the provision of preferential 

access opportunities to federal candidates and officeholders. The McConnell record shows that 

the injection of soft money in the financing of the national parties has also altered the 

officeholders’ actual decision-making on specific pending legislation. McConnell, 540 U.S. at

149. As the Supreme Court observed, “[t]he evidence connects soft money to manipulations of 

the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug 

legislation, tort reform, and tobacco legislation.” Id. at 150. The record contained a host of 

explicit instances of legislative manipulation, including first-hand accounts of closed-door 

meetings in which Members of Congress informed their colleagues of large corporations’ 

commitment to support future campaigns in exchange for a certain legislative outcome on 

pending legislation. (McCain Decl. ¶ 8 [Exhibit 5].)12 The Supreme Court, confronted with this 

call. You feel a sense of gratitude for their support.”); id. at 496-97 (quoting McCain Decl. ¶ 6 

[Exhibit 5]) (“At a minimum, large soft money donations purchase an opportunity for the donors 

to make their case to elected officials, including the President and Congressional leaders, in a 

way average citizens cannot. Many legislators have been in situations where they would rather 

fit in an appointment with a soft money contributor than risk losing his or her donation to the 

party.”); id. at 497 (quoting Shays Decl. ¶ 9) (“Soft money donations, particularly corporate and 

union donations, buy access and thereby make it easier for large donors to get their points across 

to influential Members of Congress. The donors of large amounts of soft money to the national 

parties are well-known to the leadership and to many other Members of Congress. The access to 

elected officials that large donors receive goes far beyond an average citizen’s opportunity to be 

heard.”).

12 See also McCain Decl. ¶¶ 8-11 [Exhibit 5]; Declaration of Alan K. Simpson, J.A., 

McConnell v. FEC, 540 U.S. 93 (2003) (No. 02-1674 et al.) (“Simpson Decl.”) ¶ 10 [Exhibit 7]

(“Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as 

contributions from the trial lawyers to Democrats stopped tort reform”); Declaration of Paul 

Simon, J.A., McConnell v. FEC, 540 U.S. 93 (2003) (No. 02-1674 et al.) (“Simon Decl.”) ¶¶ 13-

14 [Exhibit 8] (describing an instance in which a colleague explicitly referred to “special 

interests” as a ground of decision on pending legislation.).

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evidence, concluded that “[t]o claim that such actions do not change legislative outcomes surely 

misunderstands the legislative process.” McConnell, 540 U.S. at 150. 

It was against this landscape of fundraising and legislative abuse that the Supreme Court 

held that “there is substantial evidence to support Congress’ determination that large soft-money 

contributions to national political parties give rise to corruption and the appearance of 

corruption,” regardless of how they are ultimately used. Id. at 154. In so doing, the Court gave 

appropriate deference to a congressional determination, made upon consideration of an extensive 

factual record, and in an area in which Congress possesses institutional expertise, that a blanket 

prohibition on soft money contributions to national parties was necessary to protect the integrity

of the federal system.13

2. Plaintiffs’ Section 323(a)’s Claims Are Foreclosed by McConnell

In the face of all this, Plaintiffs contend that this Court should disregard McConnell’s 

unequivocal and blanket holding, because this challenge involves the application of BCRA to 

contributions to accounts funding what Plaintiffs describe as “state” and “non-federal” activities 

or, at least, activities that are not “unambiguously related” to federal elections. (See Mem. in 

Supp. of Pls.’ Mot. for Summ. J. 3-6, 30-40.) According to Plaintiffs, the anti-corruption 

rationale is “too remote” to apply to such activities—for example, because they are not 

“unambiguously” designed to influence or benefit federal candidates or officeholders, or because 

some of the activities will take place in the context of elections where no federal candidate is on 

the ballot. 

The McConnell Court squarely rejected the argument Plaintiffs now recycle. In 

McConnell, the Court considered the same types of RNC activities for which the party now, 

13 See infra Section III.A.

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again, seeks an exemption. The Court specifically noted, for example, that “in 2001, the RNC 

spent $15.6 million of nonfederal funds (30% of the nonfederal amount raised that year) on 

purely state and local election activity, including contributions to state and local candidates, 

transfers to state parties, and direct spending.” 540 U.S. at 154 n.50. Presented with this “purely 

state and local election activity” taking place where “no federal office is at stake,” id., the Court 

not only upheld section 323(a), but explicitly dismissed this evidence as simply “beside the 

point,” id. at 154. It is therefore irrelevant that Plaintiffs intend to spend soft money on elections 

in which no federal candidates appear on the ballot. (See Mem. in Supp. of Pls.’ Mot. for Summ. 

J. 30-33; Compl. ¶ 16 (New Jersey Account will be used to support state Republican candidates 

in an election in which no federal candidates are on the ballot); id. ¶ 17 (same with respect to the 

Virginia Account); id. ¶ 20 (State Elections Account will “use . . . funds exclusively to support 

state candidates in various states”).

Plaintiffs’ argument flouts the fundamental point of the Supreme Court’s analysis of 

section 323(a) in McConnell. As discussed above, soft money contributions to national political 

parties foster actual and apparent corruption, whether they are directed to “redistricting efforts,” 

“grassroots lobbying efforts,” or “costs associated with litigation.” (See Mem. in Supp. of Pls.’ 

Mot. for Summ. J. 2-7; Compl. ¶¶ 18, 19, 21.) What makes them inherently suspect is not their 

ultimate use, but “the close relationship between federal officeholders and the national parties . . 

. that ha[s] made all large soft-money contributions to national parties suspect.” See McConnell, 

540 U.S. at 154-55. It is therefore fundamentally incompatible with the Supreme Court’s 

holding and reasoning in McConnell to challenge—as Plaintiffs attempt to do here—section 

323(a)’s restriction on soft money contributions on the basis of the end use to which the 

contributions are put. Plaintiffs offer no reason to disturb a controlling decision of the Supreme 

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Court upholding a sound congressional judgment, formulated on an extensive record, in an area 

in which Congress possesses expertise.

B. The Supreme Court’s Anti-Corruption Rationale Also Forecloses Plaintiffs’ 

Challenges to Section 323(b)

1. Section 323(b) Serves Congress’s Interest in Combating Actual or 

Apparent Corruption by Closing the State and Local Party Loophole 

McConnell also conclusively forecloses the claims made by CRP and SDRP, namely, that 

certain activities in connection with state and local elections and ballot initiatives in which 

federal candidates appear on the ballot cannot be constitutionally regulated. The Supreme Court 

recognized that “the corrupting influence of soft money does not insinuate itself into the political 

process solely through national party committees” and held that soft money contributions to state 

and local political parties can themselves corrupt federal candidates and officeholders. 

McConnell, 540 U.S. at 164.

As the McConnell record showed, prior to the enactment of BCRA, the state committees 

“function[ed] as an alternative avenue for precisely the same corrupting forces” that manifested 

themselves in connection with soft money contributions to the national parties. Id. Accordingly, 

soft money had long been routed through state and local parties whenever donors “ha[d] reached 

the limit on their direct contributions.” Id. The Supreme Court also recognized that permitting 

unlimited amounts of soft money to flow into the coffers of state and local parties, only to be 

used for federal election purposes, would open a giant loophole in BCRA’s carefully crafted soft

money regulation. Regulating contributions to the national parties while leaving contributions to 

state parties unregulated raises the risk that “corrupting activity [will] shift[] wholesale to state 

committees . . . thereby eviscerating FECA.”14 Id. at 165-66. Therefore, the Supreme Court held 

14 See also McConnell, 251 F. Supp. 2d at 467 (Kollar-Kotelly, J.) (quoting Rudman Decl. ¶ 

19) (“‘The fact is that much of what state and local parties do helps to elect federal candidates. 

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that, in addition to the fundamental government interest in avoiding actual and apparent 

corruption of federal officials, section 323(b) serves a critical function in preventing 

circumvention of section 323(a)’s restrictions on soft money contributions to, and spending by, 

the national parties. See id. at 165-66 (“Preventing corrupting activity from shifting wholesale to 

state committees and thereby eviscerating FECA clearly qualifies as an important governmental 

interest.”).

2. Plaintiffs’ Section 323(b) Claims Are Foreclosed by McConnell

The Court’s decision in McConnell leaves no room for an exemption permitting CRP or 

SDRP to spend soft money on federal election activities. 15 CRP and SDRP argue that they 

“intend to use state funds for public communications” in connection with California’s ballot 

initiatives. (Mem. in Supp. of Pls.’ Mot. for Summ. J. 6.) Plaintiffs claim that these 

communications will “refer[] to a clearly identified candidate for Federal office [and] . . . 

promote[] or support[] a candidate for that office, or attack[] or oppose[] a candidate for that 

office” within the meaning of 2 U.S.C. § 431(20)(A)(iii). (Id.)

Specifically, Plaintiffs claim that CRP and SDRP seek to use soft money to fund the 

distribution of a letter targeting Senator Barbara Boxer and House Speaker Nancy Pelosi—both 

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.’”).

15 It bears emphasizing that this is not one of the narrow circumstances in which McConnell

expressly left open the possibility that state or local parties could bring as-applied challenges to 

section 323(b). McConnell reserved judgment on section 323(b)’s constitutionality where a state 

or local party could show that the provision’s effect is “so radical as to . . . drive the sound of 

[the recipient’s] voice below the level of notice.” McConnell, 540 U.S. at 173. However, neither 

CRP nor SDRP contend that section 323(b) has or will have such an effect on their ability to 

engage in effective advocacy. Accordingly, nothing in McConnell suggests that an as-applied 

challenge is available to them.

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of whom are scheduled to face re-election in 2010—purportedly in connection with a potential 

California congressional-redistricting ballot initiative. (Pls’. Stat. Undisp. Facts ¶¶ 63-64.) 

Plaintiffs claim they would accuse Nancy Pelosi and Barbara Boxer of “want[ing] to keep 

California voters from effectively choosing their Congressional representatives” and “do 

everything they can to stop a change from happening.” (Christiansen Decl. Mem. & Letter (Jan.

15, 2009); Tetlow Decl. ¶ 6.) 

As the Supreme Court recognized in McConnell, the type of communications that 

Plaintiffs describe—public communications that promote or attack a clearly identified federal 

candidate—“undoubtedly have a dramatic effect on federal elections.” 540 U.S. at 169. The 

Court noted that “[s]uch ads were a prime motivating force behind BCRA’s passage” and that 

section 323(b) was a closely drawn response to Congress’s anti-corruption interest because “any 

public communication that . . . attacks a clearly identified federal candidate directly affects the 

election in which [s]he is participating. The record on this score could scarcely be more 

abundant.” Id.

16 McConnell held that section 323(b)’s contribution caps were constitutional as 

applied to precisely the kind of communications Plaintiffs have put at issue in this case.17

16 See also McConnell, 251 F. Supp. 2d at 781-82 (Leon, J.) (“[I]t is natural for [a] 

candidate to feel indebted towards those whose donations funded the [§ 431(20)(A)(iii)] 

communication, even if he does not know exactly which soft money donors’ funds actually made 

it possible. Concomitantly, it is natural for the public to perceive that those whose large soft 

money donations funded the national and state parties’ communications are not only known by 

the parties’ staffs, but by the federal candidates who directly benefitted from the donations.”).

17 Plaintiffs argue that their proposed letter should be subject to strict scrutiny as an 

expenditure because “the state political party already has state funds it wishes to use for the 

proposed spending.” (Mem. in Supp. of Pls.’ Mot. for Summ. J. 41.) However, nothing in 

BCRA prevents the state parties from spending resources on their proposed letter; BCRA only 

requires that they use federal funds to do so. The fact that the state parties may already have soft

money available is irrelevant. As the Supreme Court explained in McConnell, “for purposes of 

determining the level of scrutiny, it is irrelevant that Congress chose in § 323 to regulate 

contributions on the demand rather than the supply side. The relevant inquiry is whether the 

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CRP and SDRP contend that they also seek “to use state funds for voter registration, 

voter identification, GOTV [get-out-the-vote], and ‘generic campaign activity’ in future elections 

where both state and federal candidates are on the ballot.” (Mem. in Supp. of Pls.’ Mot. for 

Summ. J. 6.) Although Plaintiffs argue that “none of these activities will be targeted to any 

federal race or federal candidate,” (Mem. in Supp. of Pls.’ Mot. for Summ. J. 6-7), the holding in 

McConnell, as well as the records from both McConnell and this case, tell a different story. 

“Common sense dictates, and it was ‘undisputed’ [in McConnell], that a party’s efforts to register 

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

McConnell, 540 U.S. at 167. Moreover, both the CRP and the SDRP have candidly recognized 

in this action that their voter registration, voter identification, and get-out-the-vote activities not 

only inevitably affect state and federal elections alike, but are actually intended to affect both 

state and federal elections. (Christiansen Dep. Feb. 24, 2009, 123:1-13, 128:24-130:5 [Exhibit 9 

(excerpted)]; Buettner Dep. Feb. 24, 2009, 63:2-18; 69:7-10 [Exhibit 10 (excerpted)].) It follows 

mechanism adopted to implement the contribution limit, or to prevent circumvention of that 

limit, burdens speech in a way that a direct restriction on the contribution itself would not. That 

is not the case here.” McConnell, 540 U.S. at 138-39 (citation omitted).

Plaintiffs also argue that, notwithstanding the findings of McConnell, their purported 

letter poses no risk of corruption because it is “genuine issue advocacy” like the ads upheld in 

Wisconsin Right to Life v. FEC (“WRTL II”),127 S. Ct. 2652 (2007), and is not “electioneering” 

or “campaign speech.” (Mem. in Supp. of Pls.’ Mot. for Summ. J. 42-44.) But that argument 

fundamentally confuses the difference between a political committee, whose actions are 

“presumed to be in connection with election campaigns,” McConnell, 540 U.S. at 170 n.64, and 

an independent corporate entity. WRTL II applied to expenditures by the latter, not contributions 

to the former. 127 S. Ct. at 2659. See also Buckley, 424 U.S. at 79 (noting that political 

committees are “under the control of a candidate or the major purpose of which is the nomination 

or election of a candidate” and thus their expenditures “are, by definition, campaign related”); 

Shays v. FEC, 511 F. Supp. 2d 19, 27 (D.D.C. 2007) (citing Buckley, 424 U.S. at 80) (“[T]he 

Court imposed the narrowing gloss of express advocacy on the term ‘expenditure’ only with 

regard to groups other than ‘major purpose’ groups.”). Plaintiffs candidly admit that CRP and 

SDRP are properly qualified as “political committees,” (Compl. ¶¶ 12-13), leaving no doubt that 

this argument should be rejected. 

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that CRP’s and SDRP’s intended activities “all confer substantial benefits on federal candidates” 

and “the funding of such activities creates a significant risk of actual and apparent corruption.” 

McConnell, 540 U.S. at 168.

More fundamentally, in McConnell, the Supreme Court expressly rejected challenges to 

the application of section 323(b) to precisely the same types of federal election activities 

proposed by Plaintiffs in this case. Here, CRP and SDRP allege no unique facts that would make 

their participation in federal election activity any different from analogous activities performed 

by their counterparts in other states or counties. Accordingly, the as-applied challenges Plaintiffs 

advance here would leave nothing of McConnell’s facial holding that Congress may limit state 

and local parties to hard money (or Levin funds) for the same types of activities at issue in this 

case. 

II. PLAINTIFFS’ ARGUMENT THAT SECTION 323 CAN ONLY REGULATE 

ACTIVITIES THAT ARE “UNAMBIGUOUSLY RELATED TO THE 

CAMPAIGN OF A PARTICULAR FEDERAL CANDIDATE” HAS NO BASIS IN 

BUCKLEY OR ITS PROGENY

Plaintiffs’ contention that the soft money provisions in McConnell can be sustained only 

where a political party uses the funds to support an activity that is “‘unambiguously related to the 

campaign of a particular federal candidate,’” (Mem. in Supp. of Pls.’ Mot. for Summ. J. 9 

(quoting Buckley, 424 U.S at 80)), finds no support in Supreme Court precedent and should be 

rejected for several reasons. 

The constitutionality of section 323 turns on one—and only one—inquiry: whether its 

restriction on the use and solicitation of soft money is “‘closely drawn’ to match ‘a sufficiently 

important [government] interest.’” McConnell, 540 U.S. at 136. “Closely drawn” scrutiny is 

“less rigorous” than strict scrutiny, id. at 141, and while the Supreme Court has not hesitated to 

apply strict scrutiny to laws regulating campaign expenditures, it has refused to apply strict 

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scrutiny to the type of laws at issue here: those regulating political contributions. Id. at 134. 

Indeed, the Court has explicitly stated that “when reviewing Congress’ decision to enact 

contribution limits, ‘there is no place for a strong presumption against constitutionality, of the 

sort often thought to accompany the words strict scrutiny.’” Id. at 137. 

The Supreme Court has held, moreover, that sections 323(a) and (b) govern contributions 

and not expenditures. Neither “in any way limits the total amount of money parties can spend. 

Rather, the[se] [restrictions] simply limit the source and individual amount of donations.” 

McConnell, 540 U.S. at 139 (citation omitted). As the McConnell Court held, it is 

inconsequential that section 323 also restricts the spending and solicitation of soft money

contributions; the reference to particular uses of contributions merely reflects a “Congress[ional] 

cho[ice] . . . to regulate contributions on the demand rather than the supply side” and does not 

“render [section 323] [an] expenditure limitation[].” Id. at 138. 

The Supreme Court’s analysis in Wisconsin Right to Life v. FEC (“WRTL II”), which 

applied strict scrutiny in the context of an expenditure limitation, does not, as Plaintiffs contend, 

alter sub silentio the level of scrutiny applicable in what, since Buckley, has for constitutional 

purposes been seen as the entirely different context of campaign contributions. 127 S. Ct. 2652, 

2664 (2007). In WRTL II, the Supreme Court addressed only the constitutionality of BCRA 

§ 203—which regulates certain independent expenditures made by corporations and unions for 

“electioneering communications.” See 2 U.S.C § 441b(b)(2), § 434(f)(3)(A). Neither WRTL II

nor the cases cited therein address the regulation of political contributions or reverse the 

constitutional distinction between contributions and expenditures that has existed since 

Buckley.

18

18 See McConnell, 540 U.S. at 205 (applying, in relevant part, strict scrutiny to section 

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The Plaintiffs’ contention that Buckley announced a generally applicable constitutional 

principle that federal campaign finance laws may regulate only activities that are 

“unambiguously related to the campaign of a particular federal candidate,” (Mem. in Supp. of 

Pls.’ Mot. for Summ. J. 9-10, 15), is equally misplaced. The Buckley Court wrote:

[W]hen the maker of the expenditure . . . is an individual other than 

a candidate or a group other than a “political committee” . . . we 

construe “expenditure” . . . to reach only funds used for 

communications that expressly advocate the election or defeat of a 

clearly identified candidate. This reading is directed precisely to 

that spending that is unambiguously related to the campaign of a 

particular federal candidate.

424 U.S. at 79-80 (emphasis added). As the Supreme Court held in McConnell, “the express 

advocacy restriction is a product of statutory interpretation, not a constitutional command.” 540 

U.S. at 103. Yet, even if (contrary to the Court’s holding in McConnell) the Buckley Court’s test 

was constitutionally-derived—and not merely adopted as a matter of statutory construction to 

eliminate any potential vagueness and overbreadth issues that FECA’s provision regulating 

independent expenditures may have caused19—it would have no relevance here. 

203’s ban on independent expenditures made from general corporate and union treasury funds to 

finance electioneering communications); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 

658 (1990) (applying strict scrutiny to a Michigan statute requiring corporate entities wishing to 

make independent campaign expenditures to do so through regulated PAC funds); FEC v. Mass. 

Citizens for Life, Inc., 479 U.S. 238, 252 (1986) (plurality opinion) (applying strict scrutiny in 

reviewing constitutionality of § 441b as applied to nonprofit organization making independent 

expenditures directly from corporate funds); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 

774, 787 n.26 (1978) (applying strict scrutiny to a state law prohibiting corporate expenditures 

and contributions for the purpose of influencing the vote on a ballot question submitted to the 

voters, but noting that “[a]ppellants do not challenge the constitutionality of laws prohibiting or 

limiting corporate contributions to political candidates or committees, or other means of 

influencing candidate elections.”); Buckley, 424 U.S. at 39, 96 (applying, in relevant part, strict 

scrutiny to federal limitation on expenditures relative to a clearly identified candidate).

19 See Buckley, 424 U.S. at 80 (“To ensure the reach of [the mandatory reporting 

requirements] is not impermissibly broad, we construe ‘expenditure’ for purposes of that section 

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Despite Plaintiffs’ suggestions to the contrary, the language from Buckley says nothing 

about the regulation of contributions collected by political parties.

20 The “unambiguously 

related” phrase was confined to the domain of independent expenditures by outside spenders; it 

did not speak to political parties. Buckley adopted the construction cited by Plaintiffs only with 

respect to “an individual other than a candidate or a group other than a ‘political committee’ [of 

a party].” Buckley, 424 U.S. at 79-80 (emphasis added). And Buckley also recognized that, in 

contrast with outside spenders, political committees, which are “by definition, campaign 

related,” never present “line-drawing problems” of the sort that caused the Court to endorse the 

“express advocacy” construction; there is never any doubt that soft money contributions to the 

committees of the political parties are intended to support “advocacy of a political result.” 424 

U.S. at 78-79. See also Shays v. FEC, 511 F. Supp. 2d 19, 27 (D.D.C. 2007) (quoting Buckley, 

424 U.S. at 80) (“[T]he Court imposed the narrowing gloss of express advocacy on the term 

in the same way we construed the terms of section 608(e) to reach only funds used for 

communications that expressly advocate the election or defeat of a clearly identified candidate. 

This reading is directed precisely to that spending that is unambiguously related to the campaign 

of a particular federal candidate.”) (emphasis added; footnotes omitted).

20 In attempting to prove that the Buckley Court applied the “unambiguously campaign 

related” test to contribution limits, Plaintiffs cite to language in Buckley construing the Act’s 

definition of contributions. (Mem. in Supp. of Pls.’ Mot. for Summ. J. 10.) In the passage cited, 

the Court concluded that the term “contribution” had been narrowly enough construed because 

activities considered to be contributions would be “connected with a candidate or his campaign” 

and would therefore “have a sufficiently close relationship to the goals of the Act.” Buckley, 424 

U.S. at 78. Here, what rendered the definition constitutional was that it related to the goals of the 

Act: limiting the actuality and appearance of corruption resulting from large individual financial 

contributions. Id. at 26. That it was so related in virtue of being connected to candidates and 

their campaigns in no way limited constitutional contribution limits to only those restrictions 

related to candidates and campaigns. 

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‘expenditure’ only with regard to groups other than ‘major purpose’ groups.”) (emphasis 

added).21

Nor does the Supreme Court’s post-Buckley jurisprudence support the principle 

advocated by Plaintiffs. Plaintiffs rely on what they call the “major-purpose” test, the “express 

advocacy” test, and the “appeal-to-vote” test as evidence of a universal requirement that 

campaign finance laws be “unambiguously campaign-related.” (Mem. in Supp. of Pls.’ Mot. for 

Summ. J. 10-13.) But the cases cited—FEC v. Massachusetts Citizens for Life, Inc.,22

McConnell, and WRTL II—do not support Plaintiffs’ broad contention, and, indeed, do not even 

mention any version of Plaintiffs’ proposed test outside the context of independent expenditures. 

Nor has a single lower court case referred to the “unambiguously-related” language outside the 

context of independent expenditures by outside spenders.23 And, perhaps more importantly, 

Plaintiffs’ proposed standard is completely at odds with the holding of McConnell, which 

expressly affirmed the constitutionality of restrictions on the use of soft money contributions by 

state and local parties for activities that, on their face, are not unambiguously related to the 

21 In this case, Plaintiffs themselves admit that they are properly qualified as “political 

committees,” (Compl. ¶¶ 11-13), and therefore “major purpose” groups. See McConnell, 251 F. 

Supp. 2d at 470 (Kollar-Kotelly, J.) (“In practice, electing [federal] candidates is the RNC’s 

primary focus.”).

22 479 U.S. 238 (1986). 

23 See N.C.. Right to Life v. Leake, 525 F.3d 274, 281 (4th Cir. 2008) (quoting the Buckley 

language in assessing the constitutionality of a state law provision regulating expenditures on 

issue advocacy); Nat’l Right to Work Legal Def. and Educ. Found., Inc. v. Herbert, 581 F. Supp. 

2d 1132, 1140-41 (D. Utah 2008) (same); Ctr. for Individual Freedom v. Ireland, Nos. 1:08-cv00190, 1:08-cv-01133, 2008 WL 4642268, *5 (S.D. W. Va. Oct. 17, 2008) (same); Broward 

Coalition of Condos., Homeowners Ass’ns and Cmty. Orgs. v. Browning, No. 08-445, 2008 WL 

4791004, *7 (N.D. Fla. Oct. 29, 2008) (same).

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campaigns of particular federal candidates—that is, the very activities that Plaintiffs here assert 

they are free to raise soft money to finance. See 540 U.S. at 166-69.

III. PLAINTIFFS’ PROMISE TO INSULATE FEDERAL CANDIDATES AND 

OFFICEHOLDERS FROM PLAINTIFFS’ PROPOSED FUNDRAISING 

ACTIVITIES DOES NOT SAVE PLAINTIFFS’ CLAIMS

Plaintiffs offer several explanations as to why their proposed activities do not pose a 

threat of actual or apparent corruption. They contend that federal candidates and officeholders 

will neither directly benefit from their intended activities nor be involved in those activities. 

Plaintiffs also maintain that they will not provide soft money donors any more access to federal 

officeholders or candidates than is already provided to hard money donors. (Mem. in Supp. of 

Pls.’ Mot. for Summ. J. 22.) 

Plaintiffs’ proposal, however, remains fundamentally at odds with the history that gave 

rise to BCRA and with the purposes for which Title I of the statute was enacted. Based on years 

of experience, Congress understood that the political parties are inseparable from their elected 

officials and candidates. Regardless of how large political contributions are actually used, large 

financial contributions to the parties risks creating an appearance that those contributors will 

receive special treatment by the elected officials whom the parties represent and serve. 

Moreover, given the fungibility of money, if the national political parties were allowed to accept 

unlimited contributions for purposes unrelated to federal elections, Congress understood that 

these funds could be used to free up other funds to promote candidates in federal elections. And, 

in any event, the activities that Plaintiffs propose funding with contributions not subject to 

FECA’s source and amount limitations are, in fact, precisely the type of activities that the 

political parties typically pursue to help elect federal candidates. 

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A. This Court Should Defer to Congressional Judgments Underlying 

Restrictions on Soft Money

“Where a legislature has significantly greater institutional expertise, as, for example, in 

the field of election regulation, the Court in practice defers to empirical legislative judgments . . 

.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 402 (2000) (Breyer, J., concurring). BCRA 

Title I reflects Congress’s determination that FECA’s regulatory structure had been undermined 

to the point of collapse by the parties’ burrowing at its vulnerable points, specifically the soft 

money loophole. Members of Congress understood from personal and institutional experience, 

and an extensive factual record, how the soft money system functioned and what was needed to 

close this loophole. Title I’s contribution restrictions were a carefully calibrated response to that 

system’s failures and deserve this Court’s deference. 

1. McConnell Held That It Was in Congress’s Discretion to Limit Campaign 

Contributions When Those Contributions Might Foster Corruption or the 

Appearance Thereof

Since Buckley, the Supreme Court has consistently held that “the prevention of corruption 

or its appearance constitutes a sufficiently important interest to justify political contribution 

limits.” McConnell, 540 U.S. at 143 (emphasis added). And in McConnell, the Court explicitly 

rejected limiting Congress’s regulatory power to preventing the actuality or appearance of

corruption caused by quid pro quo transactions—i.e., contributions made directly to, at the 

express behest of, or in coordination with a federal officeholder or candidate, in exchange for 

action taken by that federal officeholder or candidate. The Court recognized that “[j]ust as 

troubling to a functioning democracy as classic quid pro quo corruption is 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 

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officeholder.” Id. at 153 (emphasis added). The Court also recognized that officeholders and 

candidates greatly value contributions made to their political parties. Id. at 146, 155-56. 

Furthermore, the Court noted that, “[e]ven if it occurs only occasionally, the potential for 

such undue influence is manifest. And unlike straight cash-for-votes transactions, such 

corruption is neither easily detected nor practical to criminalize.” Id. at 153. Accordingly, and 

contrary to Plaintiffs’ contentions, (Mem. in Supp. of Pls.’ Mot. for Summ. J. 24-25), the Court 

refused to render Congress “powerless to address more subtle but equally dispiriting forms of 

corruption” than “the classic quid pro quo.” McConnell, 540 U.S. at 153. Nor did the Court 

render Congress powerless to undertake prophylactic measures. (Mem. in Supp. of Pls.’ Mot. for 

Summ. J. 25.) Rather, the Court recognized that “the First Amendment does not require 

Congress to ignore the fact that candidates, donors, and parties test the limits of the current law,” 

and that “these interests have been sufficient to justify not only contribution limits themselves, 

but laws preventing the circumvention of such limits.” McConnell, 540 U.S. at 144. 

2. BCRA Reflects a Congressional Determination That Soft Money 

Contributions Can Foster Corruption, or the Appearance Thereof, 

Regardless of Whether Federal Candidates and Officeholders Are 

Involved in Fundraising, and Even if the RNC Provides Soft Money 

Donors No More Benefits Than Are Provided to Current Hard Money 

Donors

A “political party is an autonomous group of citizens having the purpose of making 

nominations and contesting elections in hope of gaining control over governmental power 

through the capture of public offices and the organization of the government.” (Ornstein Decl. 

¶ 6 [Exhibit 3].) Political parties “are intimately and directly connected, through their central 

goal of capturing public offices, with their candidates for office and their officeholders.” Id. 

“[F]ederal candidates and officeholders enjoy a special relationship and unity of interest” with 

national parties. McConnell, 540 U.S. at 145. And “[t]here is no meaningful separation between 

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the national party committees and the public officials who control them.” Id. at 155 (internal 

quotation marks omitted). This close affiliation has placed national parties in a unique position, 

“whether they like it or not, to serve as agents for spending on behalf of those who seek to 

produce obligated officeholders.” Id. at 145 (internal citations and quotation marks omitted). In 

light of this tight nexus, the ability of “corporate, union, and wealthy individual donors . . . to 

contribute substantial sums of soft money to the national parties” makes it “not only plausible, 

but likely, that candidates [and officeholders] would feel grateful for such donations and that 

donors would seek to exploit that gratitude.” Id. Under McConnell, this risk of corruption—

both actual and apparent—is sufficient to justify congressional regulation of soft money 

contributions, “[e]ven when [federal officeholders do] not participat[e] directly in the 

fundraising,”24 and regardless of whether soft money donors are afforded greater benefits than 

donors of hard money. Id. at 146-47.

The risk of actual and apparent corruption stems, first and foremost, from the fact that 

federal officeholders and candidates are “well aware of the identities of the donors.” Id. at 147. 

In the past, “[n]ational party committees would distribute lists of potential or actual donors” and 

there is nothing to prevent them from doing so in the future. See id. Moreover, even if parties 

don’t distribute donors lists, “donors themselves [are prone to] report their generosity to 

officeholders [and candidates].” Id. And those same officeholders and candidates can seek out 

this information themselves through publicly available records. These types of disclosure arm 

24 Indeed, some of the more disquieting evidence quoted by Judge Kollar-Kotelly in 

McConnell involved instances in which the federal candidates and officeholders had not been 

involved in soliciting the funds. For instance, Judge Kollar-Kotelly quoted the following 

testimony by former Senator Wirth: “The Democratic national campaign committees sometimes 

asked me to meet with large donors to the party whom I had not met before. At the party’s 

request, I met with the donors. . . . On these occasions, sometimes all I knew about the donor 

would be the issue in which he was interested.” McConnell, 251 F. Supp. 2d at 501 (KollarKotelly, J.) (quoting Wirth Decl. Ex. A ¶ 15). 

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officeholders and candidates with ample knowledge to form the type of appreciation or 

“gratitude” that concerned the McConnell Court. Id. 

As Congress and the Supreme Court have common-sensically found, federal 

officeholders and candidates will predictably listen harder to donors who have made large soft 

money contributions to their parties, a phenomenon that does not attenuate based on how the 

party has spent the soft money donation. Accordingly, it does not matter that the RNC promises 

to confer on soft money donors no greater benefits than hard money donors are currently 

afforded. The critical point is that candidates and officeholders will know the identity of the 

large, soft money contributors, and that knowledge will give rise to the same risk of actual and 

apparent corruption that Congress responded to when it enacted BCRA.25

Of course, the point at which donations become corrupting, or create the appearance of 

corruption, is a matter of judgment. But “in the context of this complex legislation,” this 

“judgmental decision [is] best left . . . to congressional discretion.” Buckley, 424 U.S. at 83. 

3. BCRA Reflects a Congressional Determination That Soft Money 

Contributions Can Foster Corruption, or the Appearance Thereof,

Regardless of Whether Federal Candidates and Officeholders Directly 

Benefit From Soft Money Expenditures

Plaintiffs argue that, under McConnell, only activities that “directly benefit federal 

candidates” can create the appearance of corruption, and therefore be subject to regulation. 

(Mem. in Supp. of Pls.’ Mot. for Summ. J. 24.) But McConnell created no such limit on the 

25 It is likewise irrelevant that the RNC promises not to respond to donor requests for oneon-one meetings with officeholders and candidates. (Josefiak Dep. 128:11-15; 129:18-21 

[Exhibit 11].) In McConnell, the RNC’s Finance Director had stated that the RNC had an “an 

informal, unwritten policy” against facilitating access to its federal officeholders upon request by 

donors. 251 F. Supp. 2d at 502 (Kollar-Kotelly, J.) (citing B. Shea Dep. 80). In upholding 

section 323, the Court evidently found that policy insufficient to override Congress’s reasoned 

judgment that soft money contributions fostered corruption and the appearance thereof.

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scope of congressional regulation, and neither common sense nor historical experience support a 

limitation of this nature. 

a) There is no legal basis for a “direct benefit” restriction on 

congressional regulation

Throughout its analysis of section 323(a), the McConnell Court did not give any 

analytical relevance to an activity’s tendency directly to benefit a federal candidate or 

officeholder. To the contrary, as noted above, the Court held that, because of the “close 

connection and alignment of interests” between the national parties and federal candidates and 

officeholders, “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). 

With respect to section 323(b), which restricts soft money contributions to state and local 

parties, the Supreme Court concluded that Congress had crafted a “narrowly focused” provision 

that “regulat[ed] contributions that pose the greatest risk of th[e] [appearance of] corruption: 

those contributions to state and local parties that can be used to benefit federal candidates 

directly.”26 Id. at 167. From these statements, Plaintiffs infer a “direct benefit” requirement that 

limits the scope of activities able to be regulated by Congress. (Mem. in Supp. of Pls.’ Mot. for 

Summ. J. 24.) But a finding that the activities Congress chose to regulate do, in fact, benefit 

federal candidates does not establish a requirement that the appearance of corruption exists only

when party activity directly benefits federal candidates, or that the scope of congressional power 

should be limited to regulating activities that directly benefit federal candidates.

26 As an empirical matter, the Court found that “voter identification, GOTV, and generic 

campaign activities conducted in connection with a federal election, § 301(20)(A)(ii), clearly 

capture activity that benefits federal candidates,” McConnell, 540 U.S. at 167, and that “public 

communications, as carefully defined in § 301(20)(A)(iii),” have an “overwhelming tendency . . . 

to benefit directly federal candidates,” id. at 170.

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b) Even if a “direct benefit” restriction on congressional regulation 

did apply, Plaintiffs’ intended activities would fall within the scope 

of permissible congressional regulation

i) If Plaintiffs are permitted to raise soft money, they will 

divert hard money now spent elsewhere to federal elections 

and candidates

As a general matter, Plaintiffs’ contention that Congress may only regulate soft money 

contributions that will directly benefit federal candidates and officeholders ignores the fact that 

campaign contributions are fungible; any financial contribution to the national political parties 

will benefit federal candidates and officeholders by either funding particular campaign activity or 

freeing up other funds that can then be used to do so. As Dr. Ornstein explains: there is no 

“meaningful distinction between money raised for non-federal purposes and money raised for 

federal purposes[.] We know that much political money is fungible. Money raised by parties for 

one purpose frees up resources that might otherwise be tied up to use for other purposes, 

including federal campaigns and elections.” (Ornstein Decl. ¶ 20 [Exhibit 3].) Indeed, Plaintiffs 

themselves acknowledge, they could presently devote more hard money to the activities they 

propose to pursue, but choose not to, because this would divert hard dollars from federal 

candidates. The RNC acknowledges that the only thing preventing it from using hard money to 

undertake the activities it proposes to fund through soft money accounts is “the budget,” 

specifically “choosing to spend hard money on what it was raised to [be spent on], namely, 

federal candidates.” (Josefiak Dep. 141:10-21, Mar. 3, 2009 [Exhibit 11 (excerpted)].) If 

Plaintiffs were permitted to raise soft money, they would divert the hard money currently spent 

on these activities to federal candidates, thereby conferring a direct benefit on those candidates 

and meeting the terms of their own test for when congressional regulation is permissible.

ii) The activities Plaintiffs propose to fund with soft money 

will directly benefit federal officeholders and candidates

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Even if money were not fungible, Plaintiffs intended activities would, in their own right, 

directly benefit federal officeholders and candidates.27

The RNC proposes to creates the following accounts to be funded with soft money: a 

redistricting account, Compl. ¶ 18, a grassroots lobbying account, (Compl. ¶ 19), a litigation 

account, Compl. ¶ 21, a general state elections account, Compl. ¶ 20, and state specific accounts 

for New Jersey, Compl. ¶ 16, and Virginia, Compl. ¶ 17. The activities to be undertaken in 

connection with each of these accounts will directly benefit federal officeholders and candidates. 

As for redistricting, McConnell expert witness Dr. Green explained that “[t]he 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.” McConnell, 251 F. Supp. 

2d at 462 (Kollar-Kotelly, J.) (quoting Green Expert Report at 11-12 [Exhibit 4]). Indeed, “[t]he 

chances that a House incumbent will be ousted by unfavorable district boundaries are often 

greater than the chances of defeat at the hands of the typical challenger.” Id. And the RNC itself 

acknowledged that “[t]he intended end goal” of redistricting efforts is “to divide a number of 

legislative and Congressional districts into a . . . format that hopefully would be . . . more of a 

benefit to us than the opposition party.” (Josefiak Dep. 155:14-21 (emphasis added) [Exhibit 

11].) 

Similarly, with respect to so-called “grassroots lobbying,” former RNC operatives and 

experts alike have testified that, pre-BCRA, its key component—so-called “issue advocacy”—

27 In fact, one of the RNC’s own declarants in this case has stated that the intent behind 

reintroducing soft money into the financing of the political parties is to affect federal elections: 

“Republicans ‘need to be on an equal footing, and we think that law [BCRA] keeps us from 

doing that,’ Beeson said. ‘The enormous amount of money that was raised in this campaign [by 

Obama] has changed the game moving forward, and we’re going to be prepared.’” BCRA: GOP 

Official Says Soft-Money Lawsuits Prompted by Need to Compete With Obama, Money & 

Politics Report (Bureau of Nat’l Aff., Arlington, V.A.), Dec. 16, 2008 [Exhibit 12]. 

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was a means of funneling soft money to federal electoral activities. “‘[I]ssue advertisements’ are 

intended to and do support the campaigns of federal candidates.” McConnell, 251 F. Supp. 2d at 

449 (quoting La Raja Cross Exam. Ex. 3 at 14-15). The RNC’s former political operations 

director, Terry Nelson, testified in McConnell that the RNC engaged in “issue advocacy in order 

to achieve one of [its] primary objectives, which is to get more Republicans elected.” Id. at 450 

(quoting Nelson Dep. 191).28 Likewise, expert witness Magleby explained that “[t]he content, 

tactics and strategy [of the political parties’ advertisements] [we]re generally indistinguishable 

from the candidate[s’] campaigns.” Id. (quoting Magleby Expert Report at 45). The importance 

of such “grassroots lobbying” to the national parties’ goal of electing federal officeholders is 

evidenced by the fact that, pre-BCRA, the vast majority of the soft money expenditures by 

political parties were directed towards issue advocacy advertising campaigns. Prior to BCRA,

[t]he national political parties spen[t] a large proportion of their 

budgets on “issue advertisements” that [we]re designed to help 

elect federal officeholders and candidates. In 2000, for example, 

the RNC spent an estimated $70-75 million dollars on the 

production and broadcasting of television and radio 

advertisements, including both issue advocacy and coordinated 

expenditures. “During the 2000 presidential election year, the 

largest single portion of the DNC budget was used for issue 

advertising.” 

Id. at 453 (internal citations omitted).29 In light of this abundant evidence, the RNC’s present 

desire to spend soft money on issue advertising, through the guise “grassroots lobbying,” reveals 

28 A popular tactic of the national parties was to “engage in ‘issue advocacy’ to help their 

candidates whose campaigns [we]re low on funds. For example, the RNC spent $20 million on 

issue advertisements from March 18, 1996, through the Republican National Convention in 

August, designed to boost Senator Dole’s image at a time when he had virtually run out of 

federal matching primary funds.” McConnell, 251 F. Supp. 2d at 451 (Kollar-Kotelly, J.). 

29 Prior to BCRA, “‘over half, and sometimes as much as three-quarters, of soft money 

expenditures [by political parties went] to broadcast advertising,’” and most of that was spent on 

issue advertisements. McConnell, 251 F. Supp. 2d at 453 (Kollar-Kotelly, J.) (quoting Magleby 

Expert Report at 49). For example, “[o]ut of the estimated $25.6 million spent by political 

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itself as no more than a thinly veiled attempt to use soft money to influence federal elections. In 

McConnell, the Court held that Congress acted well within constitutional bounds in closing the 

issue advertising loophole; Plaintiffs offer no reason to reopen it now.

With respect to its proposed litigation account, the RNC has candidly admitted that it 

intends to use soft money to fund lawsuits that will, in substance, affect federal elections. These 

include, but are not limited to, suits contesting vote counts in House and Senate races. (Josefiak 

Dep. 173:4-8 [Exhibit 11].) The RNC denies that such litigation directly benefits candidates for 

federal office; but experts have noted that “[a]ny claim that the Republican National Committee 

does not engage in litigation to win federal elections, but simply wants to make sure votes are 

counted, defies both common sense and the practical definition of parties . . . .” (Ornstein Decl. 

¶ 7 [Exhibit 3].)

RNC’s proposed New Jersey and Virginia accounts, and its general state elections 

account, will directly benefit federal officeholders and candidates. The RNC intends to use soft 

money in these accounts to fund voter identification and registration, both of which benefit 

federal officeholders and candidates. During its voter identification efforts the RNC collects 

information about donors and stores that information in its “voter vault.” (Josefiak Dep. 246:17-

21 [Exhibit 11].) The information is used—after being appropriately updated—as the building 

block for get-out-the-vote efforts in future election cycles. (Id. at 246:17-22.) Thus, even if it is 

collected in a contest in which only state candidates are on the ballot, it stands to benefit federal 

candidates in the same geographic area in future election cycles. Likewise, voters registered in 

parties on advertisements in the 1998 election cycle, $24.6 million went to fund advertisements 

that referred to a federal candidate. Out of 44,485 commercials, 42,599 referred to a federal 

candidate. Viewers perceived 94 percent of these advertisements as electioneering in nature.” Id. 

at 449 (quoting Krasno & Sorauf Expert Report at Table 1 & 7).

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connection with a state election remain registered to vote for future election cycles, absent an 

intervening disqualifying event. (Id. at 248:21-249:4.) A Republican registered in a contest in 

which only state candidates are on the ballot is free to vote in all future federal elections. 

Plaintiffs’ “direct benefit” argument fares no better with respect to section 323(b), 

because this section only purports to regulate activities that, as was made abundantly clear from 

the record in McConnell, always benefit federal candidates appearing on the ballot.30 See supra 

subsection III.A.2.a; McConnell, 540 U.S. at 167 (“Common sense dictates, and it was 

‘undisputed’ [in McConnell], that a party’s efforts to register voters sympathetic to that party 

directly assist the party’s candidates for federal office.”); id. at 170 (holding that “any public 

communication that . . . attacks a clearly identified federal candidate directly affects the election 

in which he is participating. The record on this score could scarcely be more abundant.”).

B. Apart From the Legal Irrelevancy of Plaintiffs’ Promise to Insulate Federal 

Candidates and Officeholders From Their Proposed Fundraising Activities, 

Plaintiffs Have Put Forth No Evidence to Support the Factual Credibility of 

This Promise 

In the instant case, the RNC has submitted affidavits by former Chairman Robert M. 

Duncan and former Political Director Richard Clinton Beeson (“Beeson”). (Mem. in Supp. of 

Pls.’ Mot. for Summ. J. Ex. 1-2.) Neither Duncan nor Beeson is currently an officer of the party. 

(Josefiak Dep. 29:4-30:20; 38:8-18 [Exhibit 11].)31 The RNC’s Rule 30(b)(6) designee, Thomas 

30 In any event, Plaintiffs themselves have candidly acknowledged such a direct benefit in 

this litigation. The CRP’s and SDRP’s designees stated that the goal and effect of their voter 

registration and get-out-the-vote activities is to maximize the number of Republicans elected to 

both state and federal office. (Christiansen Dep. 121:23-122:3; 128:1-4; 129:25-130:5 [Exhibit 

9]; Buettner Dep. 63:2-18; 67:3-9 [Exhibit 10].) The SDRP stated that, even if it tried to avoid 

affecting federal elections, its GOTV activities “would affect both elections if [they] are able to 

generate more Republicans getting out to vote.” (Id. at 68:7-9 [Exhibit 10].)

31 On January 29, 2009, the RNC elected Michael Steele to serve as its Chairman. Duncan 

ceased serving as Chairman upon Steele’s election. (Josefiak Dep. 29:4-6 [Exhibit 11].) As 

former Chairman, Duncan has no responsibilities under the RNC’s bylaws and does not have any 

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J. Josefiak, is similarly no longer an officer or employee of the RNC. (Id. at 11:22-13:1.) At the 

time of this filing, many of the RNC’s leadership posts, including Political Director, Finance 

Director, Budget Committee Chairman and General Counsel, are vacant. (Id. at 38:9; 22:10-11; 

21:3-5; 36:9). And the RNC’s new Chairman has publicly stated that he is currently reviewing 

all of the RNC’s operations.32 Plaintiffs CRP and SDRP also submitted affidavits in support of 

their allegations. The CRP’s only declarant, former Chief Operating Officer Bill Christiansen, is 

no longer an officer of the CRP. 33 (Christiansen Dep. 7:25-8:22 [Exhibit 9].) Likewise, 

Jonathan Buettner, the SDRP’s Rule 30(b)(6) designee and one of its two declarants, is no longer 

an officer of the SDRP. (Buettner Dep. 8:4-5 [Exhibit 10].)

For the reasons given above, these representations are legally irrelevant. But, even if 

they were in anyway material, the evidence that Plaintiffs have submitted is deficient. Plaintiffs’ 

claims depend not merely on factual assertions about what the parties have done, but on 

representations about how the parties will behave in the future; former officers of a political 

party have no authority to bind current officers of the party or to execute any plans that current 

officers may have.34 (Josefiak Dep. 29:4-29:20; 38:8-18 [Exhibit 11]; Christiansen Dep. 6:25-

7:21[Exhibit 9]; Buettner Dep. 8:4-5 [Exhibit 10].)

authority over activities in which his successor may decide, or decline, to engage. (Id. at 29:18-

30:5.) Beeson stepped down as Political Director at the beginning of February 2009. (Id. at

38:18.)

32 Press Release, Republican National Committee, Steele Announces RNC Transition Team: 

Team Will Implement Sweeping Changes; Prepare Party for Upcoming Elections (Feb. 3, 2009), 

available at http://www.gop.com/Print/?Guid=47948a5d-1121-46dd-81a5-

67ebd7ff2737&pg=news (last visited Mar. 2, 2009) [Exhibit 13].

33 Christiansen was also CRP’s Rule 30(b)(6) designee in this case.

34 In addition, as of the date of this submission, Plaintiffs have not responded to 

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IV. FAR FROM WEAKENING THE PARTIES’ ABILITY TO PERFORM THEIR 

FUNCTION, BCRA’S SOFT MONEY RESTRICTIONS HAVE CAUSED THE 

PARTIES TO THRIVE

Plaintiffs also appear to contend that section 323 unconstitutionally restricts the political 

parties’ ability to perform their traditional functions. Their argument fails as a matter of law and 

is belied by the overwhelming evidence that the parties have thrived since BCRA was enacted. 

The RNC appears to challenge the constitutionality of BCRA on the ground that corporations 

and unions are permitted to solicit and spend non-federal funds on “grassroots lobbying” and 

contributions to state candidates, whereas, under BCRA, the RNC may only use federal funds to 

finance similar activities. Plaintiffs’ argument conflates, once again, section 323’s restriction on 

contributions with the regulation of independent expenditures. See McConnell, 540 U.S. at 154 

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

more fundamentally, Plaintiffs’ argument runs contrary to the core principle established in 

Buckley that “‘political committees’ . . . can be assumed to fall within the core area sought to be 

addressed by Congress. They are, by definition, campaign related.” 424 U.S. at 79. There is 

accordingly nothing surprising, let alone problematic, about Congress’s exercise of its 

institutional judgment in limiting contributions to the political parties through regulations that, 

like section 323, are “closely drawn to match a sufficiently important [government] interest.” 

McConnell, 540 U.S. at 136 (internal quotation marks omitted). 

Nor do Plaintiffs come even close to showing that section 323 prevents them from 

engaging in effective advocacy. Under this category of analysis, the relevant question is “not 

whether § 323[] reduces the amount of funds available over previous election cycles, but whether 

Representative Van Hollen’s First Set of Discovery Requests, which were served on Plaintiffs on 

February 23, 2009. Representative Van Hollen reserves the right to supplement his submission 

to the court upon Plaintiffs’ response.

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it is ‘so radical in effect as to . . . drive the sound of [the recipient’s] voice below the level of 

notice.’” McConnell, 540 U.S. at 173. In fact, the evidence shows that the RNC would fail even 

the former standard. As Dr. Ornstein observes: 

The first election after the passage of BCRA was in 2004; as 

Anthony Corrado and Katie Varney note, comparing presidential 

election cycles, “[T]he parties demonstrated a remarkable capacity 

to adapt to the new law, raising as much in hard money alone as 

they had raised in hard and soft money combined four years 

earlier.”

The 2006 midterm contest posed a different challenge when 

compared to the previous, pre-BCRA midterm: “The parties 

typically collect less hard money in midterm cycles than in 

presidential years . . . Moreover, 2002 would be a tough standard 

to meet. That year, the parties emphasized soft money fundraising 

in advance of the anticipated BCRA ban and collected almost $500 

million of soft money, which represented almost half of all 

national party receipts.” Corrado and Varney conclude, “By the 

end of the [2006] election cycle, the parties had once again 

demonstrated their ability to meet the challenges posed by BCRA. 

Overall, the parties raised 75 percent more hard money than in 

2002, thereby replacing most (but not all) of the soft money they 

had raised in the prior midterm. More importantly, they spent 

more money in 2006 directly supporting congressional candidates 

than they had in any previous election.”

(Ornstein Decl. ¶¶ 21-22 [Exhibit 3] (quoting Anthony Corrado and Katie Varney, Party Money 

in the 2006 Elections: The Role of National Party Committees in Financing Congressional 

Campaigns (2007)) (internal citations omitted).) The evidence from the most recent two-year 

election cycle shows that the national parties are continuing to do well. In the 2007-2008, the 

RNC alone received contributions for $427,558,768 and the Democratic National Committee 

(“DNC”) received contributions for $260,111,657. (Ornstein Decl. ¶ 24 [Exhibit 3].) When the 

RNC and DNC are viewed in combination with their respective congressional campaign 

committees, the Republican National Party committee received contributions of $640,308,267, 

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and the Democratic National Party committees received contributions of $599,113,650. 

(Ornstein Decl. ¶ 25 [Exhibit 3].) 

Indeed, for both parties, the 2008 contribution figures are substantially higher than the 

total amount of hard and soft money they were able to raise in the aggregate in either the 2002 

midterm-election cycle or the 2000 election cycle—the two relevant pre-BCRA observation 

points. In 2002, the RNC raised a total of approximately $284 million in hard and soft money 

combined, while the DNC raised a total of approximately $162 million; when viewed in 

combination with their respective campaign committees, the aggregate 2002 figures show total 

contributions of $603 million for the Republican National Party committees and $408 million for 

their Democratic National Party counterparts. (Ornstein Decl. attachment at 3 Tbl. 1 [Exhibit 

3].) In 2000, the last pre-BCRA election cycle involving a presidential election, the RNC had 

raised a total of $379 million in hard and soft money, while the DNC had raised approximately

$261 million; in combination with their respective campaign committees, the Republican Party 

had raised $611 million and the Democratic Party had raised $458 million. (Id.) Far from 

weakening the parties’ ability to raise contributions and make their voice heard, the 

developments in campaign finance since BCRA have confirmed what the Supreme Court had 

predicted in upholding BCRA: “If the history of campaign finance regulation . . . proves 

anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on 

their fundraising abilities.” McConnell, 540 U.S. at 173.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment should be denied.

Dated this 9th day of March 2009. Respectfully submitted,

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 45 of 65
- 41 -

/s/ Seth P. Waxman

Roger M. Witten (D.C. Bar No. 163261)

Shane T. Stansbury

Lauren E. Baer

WILMER CUTLER PICKERING HALE

AND DORR LLP 

399 Park Avenue

New York, NY 10022 

Tel.: (212) 230-8800

Fax: (212) 230-8888

E-mail: roger.witten@wilmerhale.com

Seth P. Waxman (D.C. Bar No. 257337)

Randolph D. Moss (D.C. Bar No. 417749)

WILMER CUTLER PICKERING HALE

AND DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Tel.: (202) 663-6000

Fax: (202) 663-6363

E-mail: seth.waxman@wilmerhale.com

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP

1425 K Street. N.W., Suite 600

Washington, D.C. 20005 

Tel.: (202) 682-0240

Fax: (202) 682-0249

Email: dsimon@sonosky.com

Fred Wertheimer (D.C. Bar No. 154211)

DEMOCRACY 21

1875 I Street, N.W., Suite 500

Washington, D.C. 20006

Tel.: (202) 429-2008

Fax: (202) 293-2660

E-mail: FWertheimer@democracy21.org

Scott L. Nelson (D.C. Bar No. 413548)

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Tel.: (202) 588-1000

Fax: (202) 588-7795

Email: snelson@citizen.org

Counsel for Intervenor-Defendant

Representative Christopher Van Hollen, Jr.

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 46 of 65
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, et al., ) THREE-JUDGE COURT

)

Defendants. )

_______________________________________)

INTERVENOR-DEFENDANT REPRESENTATIVE CHRISTOPHER VAN HOLLEN’S

STATEMENT OF GENUINE ISSUES AND OBJECTIONS

TO PLAINTIFFS’ STATEMENT OF MATERIAL FACTS

Pursuant to Local Civil Rules (“LCvR”) 7(h) and 56.1, Intervenor-Defendant 

Representative Christopher Van Hollen, Jr., submits the following Statement of Genuine Issues 

and Objections to Plaintiffs’ Statement of Material Facts, filed January 26, 2009 (“Plaintiffs’ 

Statement”). This statement contains Representative Van Hollen’s responses and objections to 

the evidence adduced by Plaintiffs in support of their January 26, 2009 Motion for Summary 

Judgment. These responses and objections are presented below in numbered paragraphs tracking 

the numbering scheme in Plaintiffs’ Statement.

1. No response.

2. No response.

3. No response.

4. Representative Van Hollen objects to the statement that “Plaintiff Robert M. (Mike) 

Duncan is . . . the RNC Chairman, in which capacity he is RNC’s chief executive 

officer.” The statement is false and controverted in the record. Mr. Duncan is no longer 

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Chairman of the Republican National Committee (“RNC”), nor is he the RNC’s chief 

executive officer. (Josefiak Dep. 29:15-30:16, Mar. 3, 2009.) 

5. No response.

6. Representative Van Hollen objects to the first sentence of this paragraph because the 

statement contained therein does not include “references to the parts of the record relied 

on to support the statement,” LCvR 7(h), and is unsupported in the record. 

Representative Van Hollen has no response to all other statements in this paragraph. 

7. Representative Van Hollen objects to this paragraph, because the statements contained 

therein are controverted in the record. “What is clear from the evidence . . . is that 

regardless of whether or not it is done to advocate the party’s principles, the Republican 

Party’s primary goal is the election of its candidates who will be advocates for their core 

principles.” McConnell v. FEC, 251 F. Supp. 2d 176, 470 (D.D.C. 2003) (KollarKotelly, J.) (emphasis added).

8. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that it is speculative and lacks foundation because the declarant cited is not a current 

officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) 

Representative Van Hollen objects to the second sentence in this paragraph on the ground 

that it is speculative and lacks foundation because the declarant cited does not, and 

cannot, have personal knowledge as to whether a special federal election will be held in 

New Jersey in November 2009. 

9. Representative Van Hollen has no response to the second sentence of this paragraph. 

Representative Van Hollen objects to all other statements in this paragraph on the ground 

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that they are speculative and lack foundation because the declarant cited is not a current 

officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

10. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that it is speculative and lacks foundation because the declarant cited is not a current 

officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) 

Representative Van Hollen has no response to the second sentence. Representative Van 

Hollen objects to the third sentence of this paragraph on the ground that it is speculative 

and that the statement contained therein lacks foundation because the declarant cited does 

not, and cannot, have personal knowledge as to whether a special federal election will be 

held in Virginia in November 2009. 

11. Representative Van Hollen objects to the first, third, and fourth sentences in this 

paragraph on the ground that the statements contained therein lack foundation because 

the declarant cited is not a current officer of the RNC, lacks authority to bind current 

officers of the RNC, and lacks authority to execute any future plans the RNC may have. 

(Josefiak Dep. 38:8-18.) Representative Van Hollen objects to second sentence in this 

paragraph on the ground the statement contained therein does not include “references to 

the parts of the record relied on to support the statement,” LCvR 7(h), and is unsupported 

in the record. 

12. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein lack foundation because the declarant cited is not a current officer of 

the RNC, lacks authority to bind current officers of the RNC, and therefore cannot speak 

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to the basis for the RNC’s current “political strategy.” (Josefiak Dep. 38:8-18.) 

Representative Van Hollen also objects that the phrases “stronghold for Republicans,” 

“recapturing this ‘red state,’” “extremely high name recognition,” and “national focus” 

on the ground that they are vague, ambiguous, and undefined. To the extent that 

subsections (1), (2), (3), and (4) purport to contain facts serving as the basis for the 

RNC’s “political strategy,” Representative Van Hollen objects to them on the ground 

that plaintiffs do not include “references to the parts of the record relied on to support the 

statement[s],” LCvR 7(h), and the statements are unsupported in the record. 

13. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

14. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

15. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) 

Representative Van Hollen objects that the phrase “grassroots lobbying” is vague, 

ambiguous, and undefined.

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16. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) 

Representative Van Hollen also specifically objects to the first sentence on the ground 

that the phrases “grassroots lobbying” and “relevant public-policy issues” are vague, 

ambiguous, and undefined. 

17. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

18. Representative Van Hollen has no response to the second sentence of this paragraph. 

Representative Van Hollen objects to the remainder of this paragraph on the ground that 

the statements contained therein are speculative and lack foundation because the 

declarant cited is not a current officer of the RNC, lacks authority to bind current officers 

of the RNC, and lacks authority to execute any future plans the RNC may have. (Josefiak 

Dep. 38:8-18.) Representative Van Hollen also objects that the phrase “compete on an 

equal playing field” is vague, ambiguous, and undefined. 

19. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

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20. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) To 

the extent this paragraph suggests that “challenging BCRA” is not “related to federal 

elections,” Representative Van Hollen objects that the paragraph contains a purported 

legal conclusion that is not properly included in a statement of material facts under Local 

Rule 7(h). See Waterhouse v. District of Columbia, 124 F. Supp. 2d 1, 4 n.3 (D.D.C. 

2000) (legal argument is not proper in a statement of material facts).

21. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.)

22. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that the term “critical,” as used by Plaintiffs, is vague and ambiguous. Representative 

Van Hollen has no response to the second and third sentences. 

23. Representative Van Hollen objects to all of the sentences in this paragraph on the ground 

that the statements contained therein are speculative and lack foundation because the 

declarant cited is not a current officer of the RNC, lacks authority to bind current officers 

of the RNC, and lacks authority to execute any future plans the RNC may have. (Josefiak 

Dep. 38:8-18.) Representative Van Hollen separately objects to the statement in the first 

sentence of this paragraph that the RNC “cannot” engage in its proposed activities 

“because it is permitted to solicit and use only federal funds;” this statement is 

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controverted in the record by evidence that the RNC can spend hard money on its 

proposed activities, but elects not to on the basis of discretionary budgetary decisions. 

(Josefiak Dep. 141:10-21.) Representative Van Hollen also objects to the third sentence 

on the ground that the phrase “materially similar,” as used in this paragraph, is vague, 

ambiguous, and undefined. 

24. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative and lack foundation because the declarant cited is not a 

current officer of the RNC, lacks authority to bind current officers of the RNC, and lacks 

authority to execute any future plans the RNC may have. (Josefiak Dep. 38:8-18.) 

Representative Van Hollen also objects on the ground that the following phrases, as used 

by Plaintiffs in this paragraph, are vague and ambiguous: “preferential access,” “in any 

manner different than or beyond that currently afforded to contributors of federal funds,” 

“encourage officeholders or candidates to meet with or have other contact with

contributors to these accounts,” “arrange for contributors to participate in conference 

calls with federal candidates or officeholders,” “offer access to federal officeholders or 

candidates in exchange for contributions,” and “use any federal candidates or 

officeholders to solicit funds.” 

25. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that the phrase “changed due to leadership and staff turnover” is vague, ambiguous, and 

undefined. Representative Van Hollen has no response to the second and third sentences. 

26. Representative Van Hollen has no response to the first sentence. Representative Van 

Hollen objects to the second sentence on the ground that the phrase “[t]he potential 

problems the RNC identified in its briefs before the McConnell Court” is vague, 

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ambiguous, and undefined. To the extent the statement is intelligible, it is controverted in 

the record. “The opponents of BCRA claimed that parties would wither on the vine if 

deprived of soft money, and that their ability to support their candidates and to flourish at 

grass roots activities would be dramatically compromised. The research done on parties 

and their funding and spending suggests that these predictions were wrong. . . . Parties 

have thrived, expanding significantly their grass roots and get-out-the-vote activities and 

energizing small donor bases, which also become fertile recruiting grounds for party 

volunteers and precinct workers. (Ornstein Decl. ¶¶ 21-26.) Representative Van Hollen 

objects to the third sentence on the ground that the phrase “fundraising disadvantage for a 

host of its activities” is vague, ambiguous, and undefined. Representative Van Hollen 

objects to the fourth sentence on the ground that the phrase “barriers to collaborative 

relationships between national party and state parties” is vague, ambiguous, and 

undefined, and the phrase “inequality of restrictions on a party’s ability to raise and spend 

funds” is unintelligible.

27. Representative Van Hollen objects to this paragraph because the statement that Mike 

Duncan is “the current Chairman of the RNC” is false and controverted in the record. 

(Josefiak Dep. 29:15-30:16.) Representative Van Hollen further objects that the 

statements contained in this paragraph lack foundation because the declarant cited is not 

the current Chairman of the RNC and does not have the authority to act in an official 

capacity as the Chairman of the RNC. (Id.)

28. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein lack foundation because the declarant cited is not the current Chairman 

of the RNC and does not have the authority to act in an official capacity as the Chairman 

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of the RNC. (Josefiak Dep. 29:15-30:16.) Representative Van Hollen further objects to 

the paragraph on the ground it contains a legal conclusion that is not properly included in 

a statement of material facts under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 

4 n.3.

29. To the extent Plaintiffs propose to establish that Mike Duncan will engage in the 

activities described in this paragraph in his individual capacity, no objection is 

interposed. To the extent Plaintiffs propose to establish that Mike Duncan will in engage 

in the activities described in this paragraph in an official capacity, Representative Van 

Hollen objects on the ground that Mike Duncan is not the current Chairman of the RNC 

and does not have the authority to act in an official capacity as the Chairman of the RNC. 

(Josefiak Dep. 29:15-30:16.)

30. To the extent that this paragraph speaks to Mike Duncan’s actions as an individual, no 

objection is interposed. To the extent that this paragraph proposes to establish the 

intended actions of the RNC Chairman, Representative Van Hollen objects on the ground 

that Mike Duncan is not the current Chairman of the RNC and does not have the 

authority to bind the current Chairman of the RNC. (Josefiak Dep. 29:15-30:16.) 

Representative Van Hollen also objects to this paragraph on the ground that the phrase 

“preferential access” is vague, ambiguous, and undefined.

31. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that it contains a legal conclusion that is not properly included in a statement of material 

facts under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 4 n.3. Representative 

Van Hollen has no response to the second sentence of this paragraph. Representative 

Van Hollen objects to the third sentence of this paragraph on the ground that the phrase 

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“materially similar situations” is vague, ambiguous, and undefined. Further, to the extent 

that this paragraph proposes to establish the intended actions of the RNC Chairman, 

Representative Van Hollen objects on the ground that Mike Duncan is not the current 

Chairman of the RNC and does not have the authority to bind the current Chairman of the 

RNC. (Josefiak Dep. 29:15-30:16.)

32. No response. 

33. No response.

34. No response.

35. Representative Van Hollen objects to the first sentence in this paragraph on the ground 

that the term “substantial support” is vague, ambiguous, and undefined. Representative 

Van Hollen has no response to the second sentence.

36. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that the phrases “little money” and “competitive Congressional districts” are vague, 

ambiguous, and undefined. To the extent the phrases “little money” and “competitive 

Congressional districts” are at all intelligible as used in this paragraph, the statement is 

controverted by the record. In addition to direct contributions to, and coordinated 

expenditures in connection with, federal candidates, (Christiansen Decl. ¶ 9), since 2003, 

CRP has spent large sums on activities that directly support federal candidates that appear 

on the ballot, including voter registration activities ($7,768,683) and voter 

identification/GOTV activities ($619,372). (Christiansen Decl. ¶¶ 13-14.) 

37. Representative Van Hollen objects to this paragraph on the ground that the phrases “little 

funds” and “significant coordinated expenditures” are vague, ambiguous, and undefined. 

To the extent the phrase “little funds” is at all intelligible as used in this paragraph, the 

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first sentence is controverted in the record. Since 2003, CRP has spent large sums on 

activities that directly support federal candidates that appear on the ballot, including voter 

registration activities ($7,768,683) and voter identification/GOTV activities ($619,372). 

(Christiansen Decl. ¶¶ 13-14.) 

38. Representative Van Hollen objects to the first sentence of this paragraph on the ground 

that the phrases “virtually eliminate” and “substantial contribution” are vague, 

ambiguous, and undefined. Representative Van Hollen further objects to this sentence on 

the ground that the characterization of an activity as falling within the definition of 2 

U.S.C. § 441a(d) is a legal conclusion that is not properly included in a statement of 

material facts under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 4 n.3. 

Representative Van Hollen objects to the second, third, fourth, fifth, and sixth sentences 

of this paragraph on the ground that the phrases “contested,” “highly-contested,” “not 

seriously contested,” and “non-contested” are not adequately differentiated, thereby

rendering the conclusion drawn in the seventh sentence unintelligible. Representative 

Van Hollen objects to the last sentence of this paragraph on the ground that the statement 

contained therein is false and controverted in the record. CRP has expressly mentioned 

federal candidates in door hangers that CRP has admitted distributing to the public. 

(Christiansen Dep. 136:23-139:3, Feb. 24, 2009.) To the extent that door hangers 

purportedly do not come under Plaintiffs’ understanding of “absentee ballot application, 

chase mailings, and similar voter communications,” (Pls’ Stat. Undisp. Facts ¶ 38), 

Representative Van Hollen also objects to the last sentence of this paragraph on the 

ground that the phrase “similar voter communications” is vague, ambiguous, and 

undefined.

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39. No response.

40. Representative Van Hollen objects to this paragraph on the ground that the phrase “on all 

candidates for federal candidate support” is vague, ambiguous, and undefined.

41. Representative Van Hollen has no response to the first sentence. Representative Van 

Hollen objects to the last sentence of this paragraph on the ground that the statement 

contained therein is controverted in the record. CRP has been able to engage in state and 

local candidate communications that promote and support federal candidates, despite 

presumably funding such communications through federal funds, as required by BCRA. 

(Christiansen Dep. 136:23-139:3) 

42. No response.

43. No response.

44. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are misleading and are controverted in the record. For the period 

between 2003 and 2008, CRP was unable to account for the spending of nearly 

$50,000,000 in non-federal funds and $11,000,000 in transferred federal funds. 

(Christiansen Dep. 149:16-154:10.)

45. Representative Van Hollen objects to the first, second, and fourth sentences of this 

paragraph on the ground that the statements contained therein are speculative and lack 

foundation because the declarant cited is not a current officer or employee of the CRP, 

lacks authority to bind current officers of the CRP, and lacks authority to execute any

future plans the CRP may have. (Christiansen Dep. 6:25-7:21.) Representative Van 

Hollen objects to the third sentence of this paragraph on the ground that the statement 

contained therein is a legal conclusion that is not properly included in a statement of 

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material facts under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 4 n.3. 

Representative Van Hollen also specifically objects to the fourth sentence of this 

paragraph on the ground that the statement contained therein is false and controverted in 

the record. CRP has spent well over $8,000,000 since 2003 on voter registration, voter 

identification, and get-out-the-vote activities, and nothing suggests that it will not 

continue to engage in these activities in the future. (Christiansen Decl. ¶¶ 13-14.)

46. No response.

47. No response.

48. Representative Van Hollen has no response to the first sentence. Representative Van 

Hollen objects to the second clause of the second sentence on the ground that the 

statements contained therein are speculative and lack foundation because the declarant 

cited is not a current officer or employee of the CRP, lacks authority to bind current 

officers of the CRP, and lacks authority to execute the any future plans the CRP may

have. (Christiansen Dep. 6:25-7:21.) 

49. No response.

50. No response.

51. No response.

52. No response.

53. Representative Van Hollen objects to this paragraph on the ground that the phrases 

“substantial support,” “activity,” and “a smaller amount” are vague, ambiguous, and 

undefined.

54. Representative Van Hollen objects to this paragraph on the ground that the statement 

contained therein is controverted by the record. The Republican Party of San Diego 

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County (“SDRP”) has engaged in voter registration and get-out-the-vote activities in 

elections in which both state and federal candidates appeared on the ballot. (Buettner 

Dep. 61:19-63:18, 66:7-67:9, Feb. 24, 2009.) These activities directly support federal 

candidates that appear on the ballot, including candidates for the United States Senate.

55. Representative Van Hollen objects to this paragraph on the ground that the phrases 

“virtually eliminate” and “substantial contribution” are vague, ambiguous, and undefined. 

Representative Van Hollen further objects that the characterization of an activity as 

falling within the definition of 2 U.S.C. § 441a(d) is a legal conclusion that is not 

properly included in a statement of material facts under Local Rule 7(h). See 

Waterhouse, 124 F. Supp. 2d at 4 n.3.

56. Representative Van Hollen has no response to the first two sentences of this paragraph. 

Representative Van Hollen objects to the third sentence in this paragraph on the ground 

that the statements contained therein are misleading and controverted in the record. 

SDRP has admitted distributing by email voter guides that clearly identify federal 

candidates, and using activists to physically distribute the same. (Buettner Dep. 77:11-

79:11.)

57. Representative Van Hollen objects to this paragraph because the statements contained 

therein are misleading. SDRP has admitted that the amounts spent on activities other 

than “state and local candidate support” included the production and distribution of door 

hangers that clearly identified federal candidates and other get-out-the-vote activities that 

inevitably benefited federal candidates. (Buettner Dep. 79:22-81:17.) 

58. Representative Van Hollen objects to this paragraph on the ground that the statement 

contained therein is unintelligible. Representative Van Hollen further objects that this 

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paragraph contains legal conclusions that are not properly included in a statement of 

material facts under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 4 n.3.

59. No response.

60. Representative Van Hollen objects to this paragraph on the ground that the statements 

contained therein are speculative. 

61. No response.

62. Representative Van Hollen objects to the first, second, fourth, and fifth sentences of this 

paragraph on the ground that they are speculative. Representative Van Hollen also 

objects to the third sentence of this paragraph on the ground that the statement contained 

therein is a legal conclusion that is not properly included in a statement of material facts 

under Local Rule 7(h). See Waterhouse, 124 F. Supp. 2d at 4 n.3. Representative Van 

Hollen furthermore objects to the fourth sentence on the ground that the statement 

contained therein is controverted by the record. The Republican Party of San Diego 

County (“SDRP”) has engaged in voter registration and get-out-the-vote activities in 

elections in which both state and federal candidates appeared on the ballot. (Buettner 

Dep. 61:19-63:18, 66:7-67:9.) Representative Van Hollen additionally objects to the fifth 

sentence on the ground that the phrase “materially similar situations” is vague, 

ambiguous, and undefined.

63. Representative Van Hollen objects to the first, second, fourth, and fifth sentences of this 

paragraph on the ground that they are speculative. Representative Van Hollen objects to 

the third sentence on the ground that it contains legal conclusions that are not properly

included in a statement of material facts under Local Rule 7(h). See Waterhouse, 124 F. 

Supp. 2d at 4 n.3. Representative Van Hollen specifically objects to the fifth sentence on 

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 61 of 65
- 16 -

the ground that the phrase “materially similar situations” is vague, ambiguous, and 

undefined.

64. No response.

Dated this 9th day of March 2009. Respectfully submitted,

/s/ Seth P. Waxman

Roger M. Witten (D.C. Bar No. 163261)

Shane T. Stansbury

Lauren E. Baer

WILMER CUTLER PICKERING HALE

AND DORR LLP 

399 Park Avenue

New York, NY 10022 

Tel.: (212) 230-8800

Fax: (212) 230-8888

E-mail: roger.witten@wilmerhale.com

Seth P. Waxman (D.C. Bar No. 257337)

Randolph D. Moss (D.C. Bar No. 417749)

WILMER CUTLER PICKERING HALE

AND DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Tel.: (202) 663-6000

Fax: (202) 663-6363

E-mail: seth.waxman@wilmerhale.com

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP

1425 K Street. N.W., Suite 600

Washington, D.C. 20005 

Tel.: (202) 682-0240

Fax: (202) 682-0249

Email: dsimon@sonosky.com

Fred Wertheimer (D.C. Bar No. 154211)

DEMOCRACY 21

1875 I Street, N.W., Suite 500

Washington, D.C. 20006

Tel.: (202) 429-2008

Fax: (202) 293-2660

E-mail: FWertheimer@democracy21.org

Scott L. Nelson (D.C. Bar No. 413548)

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Tel.: (202) 588-1000

Fax: (202) 588-7795

Email: snelson@citizen.org

Counsel for Intervenor-Defendant

Representative Christopher Van Hollen, Jr.

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 62 of 65
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

––––––––––––––––––––––––––––––––––––––––– 

Republican National Committee, et al., 

Plaintiffs, 

v. 

Federal Election Commission, et al., 

Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

––––––––––––––––––––––––––––––––––––––––– 

 

Civ. No. 08-1953 (BMK, RJL, RMC) 

THREE-JUDGE COURT 

CERTIFICATE OF SERVICE

I, Seth P. Waxman, a member of the bar of this Court, certify that on March 9, 2009, a 

copy of the foregoing Memorandum of Points and Authorities in Opposition to Plaintiffs’ 

Motion for Summary Judgment, with accompanying Exhibits, Statement of Genuine Issues, and 

Proposed Order, was filed electronically. Notice of this filing will be sent to the following 

parties by operation of the Court’s electronic filing system: 

Counsel for Plaintiffs Counsel for Defendants

James Bopp, Jr. Adav Noti (Bar No. 490714) 

Clayton J. Callen (pro hac vice) David Kolker (Bar No. 394558) 

Kaylan L. Phillips (pro hac vice) Kevin Deeley 

Richard E. Coleson (pro hac vice) FEDERAL ELECTION COMMISSION 

BOPP, COLESON & BOSTROM 999 E Street, N.W. 

1 South Sixth Street Washington, D.C. 20463 

Terre Haute, IN 47807 Tel.: (202) 694-1650 

Tel.: (812) 232-2434 Fax: (202) 219-0260 

Fax: (812) 234-3685 Email: dkolker@fec.gov 

Email: jboppjr@aol.com Attorneys for Federal Election Commission 

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 63 of 65
-2- 

Charles H. Bell, Jr. (pro hac vice) Robert F. Bauer (D.C. Bar No. 938902) 

BELL, MCANDREWS & HILTACHK, L.L.P. Kate Andrias (D.C. Bar No. 983674) 

455 Capitol Mall 607 Fourteenth Street N.W. 

Suite 801 Washington, D.C. 20005 

Sacramento, CA 95815 Tel: (202) 628-6600 

Tel.: (916) 442-7757 Fax: (202) 434-1690 

Fax: (812) 234-3685 Email: RBauer@perkinscoie.com 

 Attorneys for Democratic National 

 Committee 

 Joseph E. Sandler (D.C. Bar No. 255919) 

 SANDLER REIFF & YOUNG PC 

 300 M Street, S.E. Suite 1102 

 Washington, D.C. 20003 

 Tel.: (202) 479-1111 

 Fax: (202) 479-1115 

 Email: sandler@sandlerreiff.com 

 Of Counsel to the Democratic National 

 Committee 

Dated this 9th day of March, 2009. 

Respectfully submitted, 

Roger M. Witten (D.C. Bar No. 163261) 

Shane T. Stansbury 

Lauren E. Baer 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

399 Park Avenue 

New York, NY 10022 

Tel.: (212) 230-8800 

Fax: (212) 230-8888 

E-mail: roger.witten@wilmerhale.com 

/s/ Seth P. Waxman 

Seth P. Waxman 

Seth P. Waxman (D.C. Bar No. 257337) 

Randolph D. Moss (D.C. Bar No. 417749) 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

1875 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Tel.: (202) 663-6000 

Fax: (202) 663-6363 

E-mail: seth.waxman@wilmerhale.com 

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 64 of 65
-3- 

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP 

1425 K Street. N.W., Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fax: (202) 682-0249 

Email: dsimon@sonosky.com 

Fred Wertheimer (D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20006 

Tel.: (202) 429-2008 

Fax: (202) 293-2660 

E-mail: FWertheimer@democracy21.org 

Scott L. Nelson (D.C. Bar No. 413548) 

Public Citizen Litigation Group 

1600 20th Street, N.W. 

Washington, DC 20009 

Tel.: (202) 588-1000 

Fax: (202) 588-7795 

Email: snelson@citizen.org 

Counsel for Intervenor-Defendant 

 Representative Christopher Van Hollen, Jr.

Case 1:08-cv-01953-RJL-RMC Document 41 Filed 03/09/2009 Page 65 of 65