No. 16-865

In The

Supreme Court of the United States

____________

Republican Party of Louisiana et al., Appellants

v.

Federal Election Commission, Appellee

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief Opposing

Motion to Dismiss or Affirm

____________

May 1, 2017

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Corrine L. Purvis

THE BOPP LAW FIRM, PC

 The National Building

 1 South Sixth Street

 Terre Haute, IN 47807

 812/232-2434 telephone

 812/235-3685 facsimile

 jboppjr@aol.com

Counsel for Appellants
Table of Contents

The Questions Presented Are Substantial.. . . . . . . . 1

I. This Case Turns on What “Corruption”

Means, and No Precedent Forecloses

this Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. McConnell Was Based on Now-Rejected

“Corruption,” So It Cannot Foreclose this

Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. The As-Applied Challenge Is Distinguishable.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. The FEA Requirements Are Unconstitutional as Applied to Independent FEA.. . . . . . 7

III. The FEA Restrictions Are Also Unconstitutional Facially.. . . . . . . . . . . . . . . . . . . . 12

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

(i)
Table of Authorities

Cases

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . 3, 5-7

Citizens United v. FEC, 558 U.S. 310 (2010). . passim

Colorado Republican Federal Campaign Committee

v. FEC, 518 U.S. 604 (1996). . . . . . . . . . . . . . 7, 11

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).. . 6

FEC v. National Conservative PAC, 470 U.S. 480

(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

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

McCutcheon v. FEC, 134 S.Ct. 1434 (2014). . . passim

McDonnell v. U.S., 136 S.Ct. 2355 (2016). . . . . . . . . 3

North Carolina Right to Life v. Leake, 525 F.3d 274

(4th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Republican National Committee v. FEC, 698 F.

Supp. 2d 150 (D.D.C. 2010). . . . . . . . . . . . . passim

SpeechNow.org v.FEC, 599F.3d 686 (D.C. Cir. 2010)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 8-9

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

(ii)
Constitutions, Statutes, Regulations & Rules

11 C.F.R. § 100.26 . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

Bob Bauer, “CFI On the State of the Political Parties: Is It Working Out After All?,” http://www.

moresoftmoneyhardlaw.com/2017/04/cfi-statepolitical-parties-working.. . . . . . . . . . . . . . . . . . . 9

Campaign Finance Institute, “Political Parties and

Candidates Dominated the 2016 House Elections While Holding Their Own in the Senate,”

http://www.cfinst.org/Press/PReleases/17-04-

13/POLITICAL_PARTIES_AND_CANDIDATES_DOMINATED_THE_2016_HOUSE_

ELECTIONS_WHILE_HOLDING_THEIR_

OWN_IN_THE_ SENATE.aspx.. . . . . . . . . . . . 8-9

FEC, Matter Under Review 3620 (DSCC). . . . . . . . 10

(iii)
The Questions Presented

Are Substantial

I.

This Case Turns on What “Corruption” Means,

and No Precedent Forecloses this Case.

FEC makes two erroneous “foreclosed” arguments:

• a facial challenge is “foreclose[d]” (Mot.14) because

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

FEA Restrictions “justified by an anticorruption interest” (Mot.15) and

• the “as-applied challenge presentsno ‘salientdistinction’ from the claims rejected in McConnell and Republican National Committee [v. FEC, 698 F. Supp.

2d 150 (D.D.C. 2010) (“RNC-I”)]” (Mot.14).

A. McConnell Was Based on Now-Rejected “Corruption,” So It Cannot Foreclose this Case.

This case turns on what “corruption” means. It

meant something different in McConnell than before

and after. (J.S. 21-26.) Yet FEC1

says this case is “foreclosed” (Mot.17) becauseMcConnell“found ‘substantial

evidence to support Congress’ determination that large

soft-money contributions to national party committees

give rise to corruption and the appearance of corruption.’” (Mot.20-21 (quoting 540 U.S. at 154).) 

But McConnell did not hold the FEA Restrictions

justified by an interest in preventing now-cognizable

quid-pro-quo corruption. FEC ignores the changed

meaning of “corruption” except for a parenthetical reference (near the end of its Motion) admitting that

1 Appellants use abbreviations from the Jurisdictional

Statement (“J.S.”) and FEC’s Motion (“Mot.”).
2

McConnell rejected JusticeKennedy’s definition of “corruption” as quid-pro-quo corruption in his opinion for

the dissent. (Mot.24-25 (quoting 540 U.S. at 152).)2 But

FEC ignores the implications of that change. And there

was no evidence of quid-pro-quo corruption (or appearance) in McConnell. See McCutcheon v. FEC, 134 S.Ct.

1434, 1469-70 (2014) (Breyer, J., joined by Ginsburg,

Sotomayor & Kagan, JJ., dissenting). 

Before McConnell, only preventingnarrowquid-proquo corruption (or its appearance) might justify campaign-finance restrictions (J.S.21-25), i.e., “dollars for

political favors,” FEC v. National Conservative PAC,

470 U.S. 480, 497 (1985).

McConnell rejected that and substituted what fairly

may be called “benefit-corruption.” In benefit-corruption, the quid is some perceived “benefit”; the quo is

merely potential “influence,” “gratitude,” “access,” “indebtedness,” or “value”; and the pro is merely “close

ties,” “close relationship,” and “close connection and

alignment of interests,” not any actual agreement to

make the exchange. Id. at 153-56, 161-70. (J.S.25-26.)

Such broad interpretations of “quid,” “quo,” and “pro” 

“dramatically expand government regulation of the

political process.” McCutcheon, 134 S.Ct. at 1461.3

This Court “retracted” benefit-corruption, SpeechNow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010),

and now recognizes only narrow quid-pro-quo corrup2 McConnell said: “Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption ‘inherent in’ contributions made directly to, contributions made at the express behest of, and expenditures made in coordination

with, a federal officeholder or candidate.” 540 U.S. at 152.

3 For example, many things “benefit” candidates.
3

tion as cognizable for an anticorruption interest. Citizens United v. FEC, 558 U.S. 310, 360 (2010) (independent-expenditure context); McCutcheon, 134 S.Ct.

at 1441 (contribution context). (J.S.22-25 (“cognizable

corruption”).) This Court clarified the narrowness of

what is cognizable as a quo in McDonnell v. U.S., 136

S.Ct. 2355 (2016), and the pro requires some form of

“commitment” to exchange the quid for the quo, see McCutcheon, 134 S.Ct. at 1451 (“‘commitments from the

candidate’” (quoting Buckley v. Valeo, 424 U.S. 1, 74

(1976))—both topics to be further developed in merits

briefing.

The fact that McConnell’s use of “corruption” meant

mere benefit-corruption is vital to understanding all of

McConnell’s references to “corruption.” For example,

the court below says “McConnell held that [the FEA

Ban] was . . . ‘closely drawn to meet the sufficiently

important governmental interest of avoiding corruption and its appearance.’” (App.7a (quoting 540 U.S. at

168-69).) “Corruption” there did not mean quid-pro-quo

corruption. Rather, “[McConnell] found that ‘the funding of [FEA] creates a significant risk of actual and

apparent corruption’ because FEA ‘confer[s] substantial benefits on federal candidates.’” (App.7a (quoting

540 U.S. at 168 (emphasis added)).) So McConnell

found the FEA Restrictions closely drawn to preventing benefit-corruption not quid-pro-quo corruption. 

And when McConnell said the Restrictions “serve

ananticircumvention interest, by ‘[p]reventing corrupting activity from shifting wholesale to state committees’” (Mot.16 (quoting 540 U.S. at 165-66); Mot.8

(same)), “corrupting” meant benefit-corruption, so no

anticircumvention interest exists.

McConnell’s substitution of benefit-corruption for

quid-pro-quo corruption reveals a crucial error when
4

the court below quoted RNC-I for the proposition that

McConnell said nonfederal-fund donations pose a risk

of “quid pro quo corruption.” (App.19a (quoting 698 F.

Supp. 2d at 159 (citing McConnell, 540 U.S. at 144)).)

The error is that McConnell only said “corruption,” not

“quid pro quo corruption,” and that the “corruption”

involved only “a sense of obligation.” 540 U.S. at 144.

So McConnell meant benefit-corruption. Adding “quid

pro quo” was error.

McConnell implicitly acknowledged that the FEA

Restrictions posed no quid-pro-quo-corruption risk

(none was in evidence) by relying on benefit-corruption

instead. And when McConnell spoke of a “‘close connection and alignment of interests,’” it linked that merely

to a potential sense of “‘indebtedness.’” (Mot.15 (quoting 540 U.S. at 155).) McConnell also expressly linked

“access” with “close ties” as sufficient for “corruption.”

540 U.S. at 152. So such “close” arguments are not

free-standing interests and arise only in now-retracted

benefit-corruption. Thus, the issue of whether the FEA

Restrictions are justified by an anti-quid-pro-quo-corruption interest is undecided and presented here.

FEC tries to evade this by reframing the argument

by saying Appellants argue that this retraction of

benefit-corruption and reaffirmation of quid-pro-quo

corruption “implicitly overrul[es] McConnell, [b]ut the

relevant decisions disavow any such intent.” (Mot.20.)

But Citizens United and McCutcheon simply said they

were not deciding issues not before them. (Mot.20;

J.S.17.) And since they did not say that the “corruption” sea-change does not apply in First Amendment

challenges, it does. So FEC must prove that the FEA

Restrictions protect against quid-pro-quo corruption.

And FEC has no such evidence. (J.S.32-35.)
5

Thus, this case turns on this sea-change. Simply

applying that change in a First Amendment tailoringinterest analysis reveals that FEC has no anti-quidpro-quo-corruption interestto supporttheFEA Restrictions, especially as applied to independent FEA. And

that presents a substantial, undecided, non-foreclosed

question meriting plenary consideration.

B. The As-Applied Challenge Is Distinguishable.

FEC says the challenge as applied to independent

FEA “presents no ‘salient distinction’ from the claims

rejected inMcConnell and [RNC-I].” (Mot.14.) FEC errs

for at least eight reasons. (Mot.22-25.) See also Part II.

First, FEC ignores Get Registered and AfricanAmerican Outreach (J.S.9-11), communications not at

issue in McConnell or RNC-I. They are like the communications at issue when this Court held BCRA’s ban on

corporate electioneering communications unconstitutional as applied in FEC v. Wisconsin Right to Life, 551

U.S. 449 (2007) (“WRTL-II”).

Second, FEC expressly relies on broad language in

McConnell and RNC-I for the proposition that “all”

FEA “benefits” candidates. (Mot.22 (“3.a”).) But similar, broad, facial-holding language was unanimously

rejected as foreclosing as-applied challenges in Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTLI”), which led to WRTL-II’s as-applied holding.

Third, the perceived “benefit” FEA recites in the

foregoing paragraphis immaterial because benefit-corruption is now replaced by quid-pro-quo corruption.

Fourth, perceived “benefit” is also irrelevant to independent expression because, as a matter of law, it

poses no cognizable benefit. Buckley, 424 U.S. at 47;

Citizens United, 558 U.S. at 357.
6

Fifth, FEC’s arguments that “independent” FEA is

indistinguishable from what McConnell considered

(Mot.22-25 (“3.b”)) relies on broad facial-holding language of the sort WRTL-I rejected and on benefit-corruption instead of quid-pro-quo corruption. For example, FEC argues that (non-cognizable) “indebtedness”

might arise “‘regardless of how those funds are ultimately used.’” (Mot.23 (quoting McConnell, 540 U.S. at

155 (emphasis by FEC)).) But how funds are used matters, e.g., use for independent expression poses no quidpro-quo risk. (J.S.15.)

Sixth, FEC ignores responses to the no-salient-distinction argument that Appellants have already provided (J.S.4, 12-17), including the fact that RNC-I does

not control. (J.S.16 n.18.) 

Seventh, as Appellants explained previously, the

challenge in RNC-I differed because:

“[it was] as applied to activities that are not ‘unambiguously related to the campaign of a particular federal candidate,’ Buckley, 424 U.S. at 80,”

such as communications regarding state ballot

measures and FEA “not targeted to any federal

race or candidate.”

(J.S.16 n.18 (quoting 698 F. Supp. 2d at 157, 160 (citations omitted).) By contrast, in the present challenge

(as applied to independent FEA), “even if FEAs are

clearly ‘unambiguously campaign related,’ the FEA

Restrictions could not constitutionally be applied if the

FEA were independent.” (J.S.16 n.18.) This as-applied

challenge presents the confluence of two currents: (i)

the nonfederal-funds case, McConnell, 540 U.S. 93, and

(ii)the independent-expenditure case line, e.g., Citizens

United, 558 U.S. 310; SpeechNow, 599 F.3d 686; EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009); and
7

North Carolina Right to Life v. Leake, 525 F.3d 274

(4th Cir. 2008). But FEC ignores this.

Eighth, not only does RNC-I not control, as already

noted, it is unpersuasive analytically because (i) it said

McConnell found a risk of “quid pro quo corruption”

when it did not, see supra at 3-4; (ii) it relied on FEA

providing a “benefit” (Mot.13, 25 (quoting RNC-I, 698

F. Supp. 2d at162)) though independent expression

provides no cognizable benefit; (iii) it erroneously

equated “indebtedness” with “corruption”; and (iv) it

deemed “close relationship” a freestanding interest

(J.S.32-31), though “close” arguments inhered only in

benefit-corruption and were expressly rejected in the

quid-pro-quo corruption context in Colorado Republican Federal Campaign Committee v. FEC, 518 U.S.

604, 622 (1996) (“Colorado-I”) (no presumed coordination based on “metaphysical identity”), and by McConnell itself when it held that the closeness of coordinated activity could not justify requiring political parties to choose between coordinated activity and independent expenditures, 540 U.S. at 213-19.

In sum, neither McConnell nor RNC-I forecloses

this case, which turns on whether FEC can prove that

the FEA restrictions are justified by now-cognizable,

narrow, quid-pro-quo corruption. That is a substantial,

undecided question meriting plenary consideration.

II.

The FEA Restrictions Are Unconstitutional

as Applied to Independent FEA.

As applied to independent FEA, FEC lacks a cognizable interest because independent expression poses

neither quid-pro-quo-corruption risk, Citizens United,

558 U.S. at 357, nor even cognizable benefit, Buckley,

424 U.S. at 47. So funds donated for independent ex-
8

pression may not be limited4because they also pose no

quid-pro-quo risk, as SpeechNow put it:

In light of the [Supreme] Court’s holding as a

matter of law that independent expenditures do

not corrupt or create the appearance of quid pro

quo corruption, contributions to groups that

make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is

no corrupting “quid” for which a candidate

might in exchange offer a corrupt “quo.”[5]

Given this analysis from Citizens United, we

must conclude that the government has no

anti-corruptioninterestin limiting contributions

to an independent expenditure group . . . .

599 F.3d at 694-95. This analysis led to (independentexpenditure-only) super-PACs receiving unlimited contributions and to PACs that make contributions being

able to set up Non-Contribution Accounts (“NCAs”) to

do the same. (J.S.3.) State and local political parties

are severely harmed because they can do nothing similar (J.S.1, 8), which FEC ignores.6

4 As nonfederal-fund donations to Appellants remain

subject to Louisiana limits, unlimited donations are not at

issue, but the following analysis applies.

5 Note that the quid here is the independent expression.

The contribution therefor is then discussed.

6 On April 13, Campaign Finance Institute published

“Political Parties and Candidates Dominated the 2016

House Elections While Holding Their Own in the Senate,”

purporting to show that the political parties aren’t having

the problems that the parties say they are having because

of BCRA. See http:// www.cfinst.org/Press/PReleases/17-04-

13/POLITICAL_PARTIES_AND_CANDIDATES_DOMI-
9

But political parties should be able to do something

similar based on SpeechNow’s analysis, as follows:

• Independent expression poses no quid-pro-quo risk

because there is no quid.

• So government has no anti-corruption interest to

limit donations used for independent expression.

• As the foregoing is based on non-corrupting expression and independent political-party expression is

equally non-corrupting, government has no anticorruption interest to limit donations therefor.

(J.S.3.) FEC says the foregoing analysis doesn’t apply

to political parties for two reasons. 

First, FEC says the quid is giving to the political

party, not the independent expression. (Mot.22-23.) 

That does not square with SpeechNow, which said

the expression is the potential quid, but since independence eliminates corruption, there is no quid. 599

F.3d at 694-95. So donations for independent expression pose no corruption risk because the quid’s independence already broke any quid-pro-quo chain. Id.

Even if the donation could be considered the quid,

any quid-pro-quo-corruption chain is also broken because one “cede[s] control over the funds” given to

PACs or political parties. McCutcheon, 134 S.Ct. at

1452. FEC also acknowledged this by deciding that the

NATED_THE_2016_HOUSE_ELECTIONS_WHILE_

HOLDING_THEIR_OWN_IN_THE_SENATE.aspx. But as

former White House Counsel Bob Bauer notes, it does so by

redefining “what a political party is” to view them as “‘networks’ of allied entities” that include super-PACs. “CFI On

the State of the Political Parties: Is It Working Out After

All?,” http://www.moresoftmoneyhardlaw.com/2017/04/cfistate-political-parties-working/. Parties still have “a competitive disadvantage.” Id.
10

DemocraticSenatorial Campaign Committeeno longer

had to put a notice on solicitations saying that it could

do whatever it wants with contributions after it was

required to include such notices in the wake of this

court citing DSCC’s “tallying” system, in FEC v. Colorado Republican Federal Campaign Committee, 533

U.S. 431 (2001) (“Colorado-II”), as some evidence of

why parties should not be able to spend unlimited

funds on expenditures coordinatedwith candidates, id.

at 459. Matter Under Review 3620 (DSCC).7 FEC relieved DSCC of that notice requirement because everyone already knows that parties may do what they will

with contributed funds, even under a “tallying” system.

So even if the initial donation were the quid, there

could be no quid-pro-quo corruption.8

Second, FEC argues that political parties differ because of their “special relationship and unity of interest” with candidates. (Mot.20-22.) But asFEC acknowledges with its own quotations, this “close” argument is

inextricably linked to “obligat[ion]” and “indebtedness”

(Mot.20-21), which inhere in benefit-corruption, not

quid-pro-quo corruption. See supra at 4, 7. And such

“closeness” inheres in coordinated, but not independent, expenditures. (J.S.14-15.) FEC resurrects a presumption of coordination between political parties and

candidates that this Court expressly rejected in Colorado-I, 518 U.S. 604. (J.S.30-31, 33.)

7 Available through http://fec.gov/em/mur.shtml.

8

“[T]he risk of quid pro quo corruption is generally applicable only to ‘the narrow category of money gifts that are

directed, in some manner, to a candidate or officeholder.’”

McCutcheon, 134 S.Ct. at 1452 (quoting McConnell, 540

U.S. at 310 (op. of Kennedy, J.)).
11

So neither Get Registered (J.S.9-10), nor AfricanAmerican Outreach, (J.S.10-11), nor any of Appellants’

other intended independent communications and expressive activities in the record can even cognizably

benefit candidates, due to independence, let alone corrupt anyone. FEC studiously ignores those concrete

examples of independent FEA. But it has the burden to

prove that such concrete examples pose a quid-pro-quo

risk. And as mentioned above, those communications

were not considered in McConnell or RNC-I and so are

like the genuine-issue ads that this Court considered,

as applied, in WRTL-II, 551 U.S. 449, after McConnell

facially upheld the ban on corporate electioneering

communications. And FEC makes no attempt to show

how simply posting Get Registered online could corrupt

any candidate, when it (i) is independent (so cannot

even cognizably benefit); (ii) merely exhorts registration and voting in a nonpartisan way; and (iii) was on

the state party’s website, though elsewhere similar online activity remains unregulated, 11 C.F.R. § 100.26

(“public communication” generally excludes “communications over the Internet”).

FEC disputes that strict scrutiny applies. (Mot.17-

19.) Appellants showed that strict scrutiny should apply (J.S.18-21), but said that, “regardless of scrutiny

level,” quid-pro-quo corruption is the only interest that

might justify campaign-finance restrictions. So while

this Court should decide that strict scrutiny always

applies wherever the “right to participate in democracy” by free speech and association is involved, McCutcheon, 134 S.Ct. at 1441, even if the Court decides,

as in McCutcheon, to postpone that decision, there still

must be a “fit,” id. at 1445, between the FEA Restrictions and the interest in preventing quid-pro-quo corruption. And FEC has shown no fit.
12

Finally, Appellants showed that, though FEC has

had decades to do so, it has not provided evidence of

state and local political parties corrupting candidates,

under a now-cognizable “corruption” definition, as a

result of independent expressive activity, including

independent FEA. (J.S.32-35.)The only argument FEC

has come up with is that there might be “benefit,”

“closeness,” “access,” “gratitude,” and the like, but that

is all part of now-retracted benefit-corruption.

In sum, this is an undecided, substantial question

meriting plenary consideration.

III.

The FEA Restrictions Are

Unconstitutional Facially.

Regarding their facial challenge, Appellants highlighted two crucial elements of a First Amendment

tailoring-interest analysis. (J.S.35-36.) 

First, this Court’s retraction of benefit-corruption

and reaffirmation of narrow quid-pro-quo corruption

removed McConnell’s benefit-corruption foundation.

Second, McConnell’s record has no evidence of quidpro-quo corruption resulting from state and local parties engaging in FEA, and FEC has provided no such

evidence for nearly three decades.

So McConnell’s foundation has been undercut both

as a constitutional matter and an evidentiary matter.

Thus, no anticorruption interest supports McConnell.

FEC’s response—relying onrejectedbenefit-corruption and broad facial-holding language inextricably

linked to benefit corruption—has already been refuted

in Parts I and II above. And FEC’s no-“record” and no-

“arguments” assertion that this is not a proper case to

reconsider McConnell (Mot.15 n.1) fails for at least

three reasons. First, no “record” is required regarding
13

the matter-of-law “corruption” sea-change. Second, the

“arguments” are already made, i.e., there has been a

“corruption” sea-change and there is no quid-pro-quocorruption evidence. Third, FEC’s absent evidence of

quid-pro-quo corruption from state- and local-party

FEA is well established. See McCutcheon, 134 S.Ct. at

1469-70 (Breyer, J., joined by Ginsburg, Sotomayor &

Kagan, JJ., dissenting). No more is needed.

In sum, McConnell should be facially overruled—a

substantial question meriting plenary consideration.

Conclusion

Probable jurisdiction should be noted.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Corrine L. Purvis

THE BOPP LAW FIRM, PC

 The National Building

 1 South Sixth Street

 Terre Haute, IN 47807

 812/232-2434 telephone

 812/235-3685 facsimile

 jboppjr@aol.com

 Counsel for Appellants