UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) Civ. No. 11-562 (RLW-MG-RBW) 

 ) 

 Plaintiff, ) THREE-JUDGE COURT 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY MEMORANDUM IN SUPPORT OF ITS 

MOTION FOR A MORE DEFINITE STATEMENT 

 In its memorandum in opposition, plaintiff Libertarian National Committee, Inc. (“LNC”) 

has clarified that it is not challenging the contribution limits of the Federal Election Campaign 

Act (“FECA”), 2 U.S.C. §§ 431-57, found in section 441a of Title 2. LNC incorrectly asserts, 

however, that its lawsuit can nevertheless indirectly invalidate section 441a because that 

provision would purportedly be rendered unenforceable by a favorable ruling on LNC’s claim 

against section 441i, the non-federal (soft) money ban imposed on national party committees like 

LNC by the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 

Stat. 82. LNC has chosen not to clarify its Complaint’s ambiguity about whether it claims a right 

to receive unlimited contributions through bequests for the purpose of influencing federal

elections. If LNC is making that claim, its position resembles a game of bait and switch: On the 

surface LNC challenges only section 441i to enjoy the special review features of BCRA section 

403, but the underlying substance of LNC’s claim is a challenge to section 441a, the pre-existing 

provision of FECA, for which no three-judge court is available. 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 1 of 9
2 

LNC cannot have it both ways. To be sure, LNC is the master of its complaint and can 

choose to challenge only section 441i for strategic reasons. But if LNC seeks federal funds, it 

must live with the full consequences of its choice not to challenge section 441a. A ruling 

striking down only section 441i would leave intact section 441a, along with its limits on the 

receipt of federal funds. As a result, LNC would lack standing because a three-judge court could 

not redress LNC’s claimed injury. But it would be premature for the Commission to bring a 

motion to dismiss on that basis before at least seeking clarification as to whether LNC wants 

federal funds. If LNC seeks only non-federal funds, there would be no basis for such a motion, 

because a ruling striking down section 441i would grant LNC full relief. Rather than clarify this 

point, LNC suggests that the FEC bring a potentially needless motion to dismiss. The 

Commission’s Rule 12(e) motion should be granted, because when a “‘defendant is unclear 

about the meaning of a particular allegation in the complaint, the proper course of action is not to 

move to dismiss but to move for a more definite statement.’” Potts v. Howard Univ., 269 F.R.D. 

40, 42 (D.D.C. 2010) (quoting Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716, 725 (7th Cir. 1986)). 

ARGUMENT 

I. LNC Has Clarified That It Is Not Challenging Section 441a, Yet the Complaint 

Remains Ambiguous About Whether LNC Seeks Unlimited Federal Funds 

In its opening memorandum, the Commission identified two critical ambiguities in 

LNC’s Complaint: (1) whether LNC is challenging the constitutionality of the contribution 

limits in 2 U.S.C. § 441a, and (2) whether LNC claims a right to accept unlimited contributions 

of money to be used to influence federal elections, as opposed to funds to be used for non-federal 

purposes. (FEC’s Memorandum in Support of Motion for a More Definite Statement (“Def.’s 

Mem.”) (Docket No. 9) at 5-7.) LNC has now clarified that it does not challenge the 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 2 of 9
3 

constitutionality of section 441a. (See Plaintiff’s Opposition to Motion for More Definite 

Statement (“Pl.’s Opp’n Mem.”) (Docket No. 10) at 2-3.) But despite the Commission’s motion, 

LNC has not clarified whether it is claiming a right to receive unlimited contributions of federal 

funds, and as a result, the Complaint remains ambiguous on this critical point. (See Def.’s Mem 

at 5-6 (citing Complaint (“Compl.”) (Docket No. 1) ¶¶ 4, 14, 24-25).) This ambiguity prevents 

the FEC from ascertaining the nature of LNC’s claim and reasonably addressing whether LNC 

has standing and whether the three-judge Court has jurisdiction to hear this case. See Dorsey v. 

Am. Express Co., 499 F. Supp. 2d 1, 3 (D.D.C. 2007) (“[T]he complaint must be detailed enough 

to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” 

(alteration in original; internal quotation marks omitted); Def.’s Mem. at 4-8. 

II. LNC May Decline to Challenge Section 441a, But if That Is Its Choice, LNC Cannot 

Obtain Relief from Section 441a’s Limits in This Case or a Future Case 

A plaintiff is the master of its complaint and is free to assert only some of the claims 

available to it for jurisdictional reasons, such as in the situation in which a plaintiff with possible 

state and federal law claims brings only the state law claims in order to prevent the defendant 

from removing the case to federal court. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 

392 (1987) (“[T]he plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction 

by exclusive reliance on state law.”); Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 

367 (5th Cir. 1995) (“[I]f a plaintiff indeed has a viable state law claim, he may depend on it 

alone and thereby defeat attempts at removal.”). While sections 441a and 441i both bar LNC 

from accepting unlimited contributions of federal funds, LNC is free to attack the 

constitutionality of only section 441i, as it has, to secure the jurisdiction of the three-judge Court. 

But LNC’s choice must be clear, and LNC must live by all consequences of that choice, which 

means that LNC cannot obtain relief from section 441a’s limits through its current Complaint. 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 3 of 9
4 

LNC asserts that if it were “to prevail in this action, and obtain its requested declaratory 

relief . . . the Commission could not enforce some other law to bar the same conduct . . . .” (Pl.’s 

Opp’n Mem. at 8 (emphasis added).) Assuming that by “some other law” LNC is referring to 

section 441a, LNC is incorrect because (1) LNC cannot receive relief it has not requested, and it 

has not requested relief from section 441a; (2) the three-judge Court has no jurisdiction to grant 

relief as to section 441a; and (3) section 441a is distinct from section 441i, which would not fall 

by implication if section 441i were struck down. 

 First, a plaintiff cannot receive relief for a claim that it has specifically chosen not to 

assert, even if the facts pled would have supported that claim. For example, in Warthman v. 

Genoa Twp. Bd. of Trs., 549 F.3d 1055 (6th Cir. 2008), the court rejected the defendant’s 

argument that removal was appropriate merely because the plaintiff had pled facts that would 

have supported a federal due process claim, because the plaintiff chose not to assert that claim. 

Id. at 1062. The Court noted that the plaintiff “took great care to assert only state-law claims in 

her complaint, a choice that she was fully entitled to make even if it meant foregoing an available 

federal cause of action.” Id. at 1063. See Colo. Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604, 625 (1996) (explaining that if the Court were to strike down as unconstitutional 

FECA’s Party Expenditure Provision’s limits on a political party’s coordinated expenditures, a 

separate FECA limit on a party’s contributions — which plaintiff decided not to challenge as a 

matter of litigation strategy — would continue to limit its coordinated expenditures, which are 

treated as contributions under the Act). 

In this case, LNC has pled facts that may support a claim against section 441a. LNC has 

nevertheless taken great care to request only “[a]n order permanently enjoining” the FEC “from 

enforcing 2 U.S.C. § 441i” and “[d]eclaratory relief consistent with the injunction.” (Compl. 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 4 of 9
5 

Prayer for Relief at 8.) Thus, LNC has chosen to forgo a possible section 441a claim, “and when 

[a plaintiff] says that it is not bringing a . . . claim, we should take it at its word.” NicSand, Inc. 

v. 3M Co., 507 F.3d 442, 458 (6th Cir. 2007) (refusing to imply a claim that the plaintiff 

expressly disavowed in its briefing).1

 

 Second, even if LNC could receive relief on a section 441a claim it has declined to assert, 

a three-judge court lacks jurisdiction to grant such relief under BCRA section 403(a). See

McConnell v. FEC, 540 U.S. 93, 229 (2003). Like LNC, certain plaintiffs in McConnell brought 

a claim against only a provision of BCRA, but “[t]he relief the . . . plaintiffs s[ought wa]s for 

th[e] Court to strike down the [FECA] contribution limits” of section 441a. Id. Thus, as LNC 

notes, “[t]he challenge was, in reality, to the pre-existing law” (Pl.’s Opp’n Mem. at 10), which 

the Court had “no power to adjudicate,” McConnell, 540 U.S. at 229.2

 

 Contrary to plaintiff’s argument (Pl.’s Opp’n Mem. at 10-11), Bluman v. FEC, No. 10-

1766, 2011 WL 52561 (D.D.C. Jan 7, 2011), shows why this Court cannot grant LNC relief from 

section 441a’s limits. Bluman held that a three-judge court was appropriate in that case because 

if the BCRA provision challenged there were struck down, “no other law . . . would prohibit the 

plaintiffs from engaging in their desired conduct.” Id. at *3 (emphasis added). Unlike the 

 

1

 Additionally, LNC would be barred from obtaining relief from section 441a’s limits in a 

future case by the doctrine of res judicata, which “precludes the parties or their privies from 

relitigating issues that were or could have been raised in that action” so long as a final judgment 

on the merits was issued. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); 

see also Carpenter, 44 F.3d at 367 (“[P]laintiff with a choice between federal- and state-law 

claims may elect to proceed in state court on the exclusive basis of state law, thus defeating the 

defendant’s opportunity to remove, but taking the risk that his federal claims will one day be 

precluded.” (emphasis added)). 

2

 LNC mischaracterizes McConnell when it states that the case involved “an attempt to 

bring a direct challenge to FECA’s Section 441a contribution limits.” (Pl.’s Opp’n Mem. at 10 

(emphasis added).) These McConnell plaintiffs directly challenged only BCRA while asking for 

FECA relief, which the Court could not grant in a BCRA section 403(a) case. See McConnell, 

540 U.S. at 229. 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 5 of 9
6 

situation in McConnell, the BCRA provision challenged in Bluman had “entirely replaced” a 

FECA provision that was “no longer in effect.” Id. Here, section 441i did not replace section 

441a, and section 441a is still in effect. Although section 441i’s broad language partially 

overlaps section 441a’s coverage to the extent they both prohibit national party committees like 

LNC from accepting unlimited federal funds, they are still separate and distinct provisions, and if 

section 441i were struck down, section 441a would continue to restrict LNC’s receipt of federal 

funds. 

 Third, a ruling striking down section 441i would not cause section 441a to fall by 

implication simply because section 441i references FECA’s contribution limits, as LNC claims. 

(See Pl.’s Opp’n Mem. at 8.) LNC asserts that section 441i merely “impose[s]” section 441a’s 

contribution limits (id. at 2) and that “inherently, every BCRA case is intertwined with FECA” 

(id. at 8; see also id. at 3, 9 (further suggesting that every BCRA case implicates FECA)). 

However, before BCRA, section 441a(f) already “imposed” FECA’s federal money contribution 

limits on national party committees. BCRA reinforced that provision and added something new 

— the soft money ban of section 441i, which prevents parties from circumventing the federal 

money contribution limits by accepting unlimited donations of money to be used for non-federal 

purposes. See McConnell, 540 U.S. at 133, 142. Indeed, section 441i is entitled, “Soft money of 

political parties.” (emphasis added). Thus, it is easy to “conceive of a BCRA challenge that 

would not involve FECA” (Pl.’s Opp’n Mem. at 9) and which would be appropriate for a threejudge court: a case in which the plaintiff seeks only soft money.3

 

 

3

 For example, last year, a three-judge district court heard a challenge to section 441i in 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.), aff’d, 130 S. Ct. 3544 (2010). 

In that case, the plaintiff argued unsuccessfully that the “First Amendment entitles it to raise and 

spend soft money for . . . activities [that] lack sufficient connection to a federal election.” Id. at 

155. See also McConnell, 540 U.S. at 142-61 (addressing a facial attack on section 441i, in 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 6 of 9
7 

By contrast, LNC’s Complaint is ambiguous about whether it claims a right to solicit and 

receive federal or non-federal money above the contribution limits in section 441a. Assuming 

LNC does seek federal funds, section 441a and 441i both bar LNC’s desired conduct. But this 

overlap does not invest this three-judge Court with the statutory authority to grant LNC relief 

from the prohibitions of section 441a. Analogously, the three-judge district court in Bluman held 

that although it could review the plaintiffs’ challenge to BCRA section 303, it could not review a 

challenge to the regulation implementing BCRA section 303 since that regulation was not part of 

BCRA. See 2011 WL 52561, at *3. The court so concluded despite the plaintiffs’ argument that 

the implementing regulation would “necessarily fall along with the” challenged BCRA provision 

if the plaintiffs were to win the suit. See id. 

Thus, LNC cannot obtain relief from section 441a’s limits by challenging only the 

restrictions in section 441i as stated in its current Complaint. 

III. LNC Should Clarify Whether It Seeks Federal Funds; If It Does, LNC Lacks 

Standing Before This Three-Judge Court 

Because LNC cannot obtain relief from section 441a’s limits before this three-judge 

Court, the Commission’s motion for a more definite statement should be granted in order to 

clarify whether LNC claims a right to receive federal or non-federal funds. If LNC claims a right 

to only non-federal funds, a ruling by this Court striking down section 441i would fully redress 

the LNC’s alleged injury from its inability to accept limitless non-federal funds, and thus LNC 

would have standing. But if LNC claims a right to federal funds, this three-judge Court cannot 

redress LNC’s alleged injury because it cannot reach section 441a, and so LNC would lack 

standing. See McConnell, 540 U.S. at 229 (holding that certain plaintiffs lacked standing 

 

which the question presented was “whether large soft-money contributions to national party 

committees have a corrupting influence”). The Commission did not challenge the three-judge 

court’s jurisdiction in that case. 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 7 of 9
8 

because “[a]lthough [it] ha[d] jurisdiction to hear a challenge to [BCRA] § 307, if the Court were 

to strike down the increases and indexes established by BCRA § 307, it would not remedy the 

. . . plaintiffs’ alleged injury because . . . the limitations imposed by FECA . . . would remain 

unchanged”); Schonberg v. FEC, No. 1:10-cv-02040, slip op. at 8 (D.D.C. May 12, 2011) 

(holding that a plaintiff lacked standing before a three-judge court because “[a]s in McConnell, 

were this court to hold that BCRA § 301 is unconstitutional, the limitations imposed by FECA 

would remain in force”). Thus, this Court should order LNC to provide a more definite 

statement, which would permit the Commission to identify the nature of LNC’s claim and to 

determine how to respond in a way that promotes judicial efficiency. 

CONCLUSION 

For the foregoing reasons, the Commission’s motion for a more definite statement 

pursuant to Rule 12(e) should be granted.4

 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

 

4

 Contrary to the text of LNC’s proposed order (Docket No. 11), if the Court were to deny 

this motion, the Commission would have 14 days after notice of the Court’s action to file a 

responsive pleading, unless the Court were to set a different time. See Fed. R. Civ. P. 

12(a)(4)(A). 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 8 of 9
9 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

 Attorney 

 khancock@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

 Washington, DC 20463 

May 26, 2011 (202) 694-1650 

Case 1:11-cv-00562-RLW -MG -RBW Document 12 Filed 05/26/11 Page 9 of 9