United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

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

 THREE-JUDGE COURT

Plaintiffs’ Supplemental Memorandum 

Regarding Citizens United v. FEC

In accordance with this Court’s January 26, 2010 order, Plaintiffs Republican National

Committee (“RNC”) et al. respectfully file this supplemental memorandum stating the impact of

the Supreme Court’s decision in Citizens United v. Federal Election Comm’n, ___ U.S. ___

(2010), 2010 WL 183856 (“Citizens United”) on the present litigation. In Citizens United, the 1 2

Supreme Court reaffirmed the First Amendment principles central to this case, stated that the

prevention of access and gratitude is not a cognizable anti-corruption interest, and afforded

corporations and labor unions more rights than presently enjoyed by political parties.

 The slip opinion is available at http://www.supremecourtus.gov/opinions/09pdf/ 1

08-205.pdf

 Plaintiffs incorporate by reference their Memorandum in Support of Summary Judgment 2

(“Pls.’ Mem.”) (Dkt. 21), Reply Memorandum in Support of Summary Judgment (“Pls.’ Reply

Mem.”) (Dkt. 50), and Memorandum in Opposition to Defendant Federal Election Commission’s

Motion to Dismiss (Dkt. 27), Memorandum in Opposition to Defendant FEC’s Motion for

Summary Judgment (“Pls.’ Op.”) (Dkt. 61), Supplemental Memorandum in Opposition to

Defendant FEC’s Supplemental Motion to Dismiss (Dkt. 80), Supplemental Reply Memorandum

in Support of Summary Judgment (Dkt. 86), and Supplemental Memorandum in Opposition to

Defendant FEC’s Supplemental Motion for Summary Judgment (Dkt. 87).

Supplemental Memo 

Regarding Citizens United 1

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I. The Supreme Court Affirmed the First Amendment Principles Advanced by

Plaintiffs.

In Citizens United, the Supreme Court facially struck down the federal ban on corporate

independent expenditures and electioneering communications, overruling Austin v. Michigan

Chamber of Commerce, 494 U.S. 652 (1990), and portions of McConnell v. FEC, 540 U.S. 93

(2003). Although the plaintiff in Citizens United was a corporation, the Court’s rationale will

affect other significant participants in our electoral democracy, including political parties.

Recognizing the inadequacy of an as-applied holding, the Supreme Court stated that political

speech is so important, that even corporations and unions, as associations of citizens, are

protected by the First Amendment. 

The Supreme Court emphasized that strict scrutiny is required for laws burdening

political speech, Citizens United, slip op. at 23, thereby indicating that McConnell incorrectly

applied intermediate scrutiny in facially upholding the Federal Funds Restriction, 2 U.S.C. § 441i

(“the Restriction”), and incorrectly decided that the Restriction prohibited contributions rather

than the ability of political parties to speak (for which they could use federal funds). 540 U.S.

138-39. However, the Court in Citizens United employed the scrutiny framework used in the

more recent political speech case, FEC v. Wisconsin Right to Life, 551 U.S. 449 (“WRTL-II”).

There, the Court, applying strict scrutiny, held that the ability to use federal funds did not

eliminate the right to use non-federal funds where the First Amendment activity was not

unambiguously campaign related. 551 U.S. at 477. 

Similarly, here, the FEC has continuously argued that the Restriction does not

unconstitutionally regulate speech because the Plaintiffs are able to speak using federal funds.

Supplemental Memo 

Regarding Citizens United 2

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However, Plaintiffs are seeking to use non-federal funds for activities that are not unambiguously

campaign related. Pls.’ Mem at 9-14. As in WRTL-II, the “burdensome alternative” under which

Plaintiffs may use federal funds for their intended activities does not remove the constitutional

flaws present within the Restriction. See Citizens United, slip op. at 21 (rejecting a similar

“solution” to the constitutional shortcomings of the expenditure ban). 

Citizens United reaffirmed that, under the First Amendment, courts “‘must give the

benefit of any doubt to protecting rather than stifling speech.’” Id. at 10 (quoting WRTL-II, 551

U.S. at 469). Here, the Restriction impermissibly regulates activities that are not unambiguously

campaign related. Pls.’ Mem. at 7-18; Pls.’ Reply Mem. at 1-10. Since we begin with the premise

that all speech is free, the government has the burden of showing a sufficient interest to justify

the regulation of speech. 

II. Access and Gratitude Do Not Constitute Corruption, and In the Absence of

Quid Pro Quo Corruption, the Restriction Serves No Government Interest.

Regardless of the nature of the activity or speech at issue, there is no justifiable

government interest in regulating Plaintiffs’ intended activities. In Citizens United, the Court

emphatically dismissed the government’s fall-back argument in that case regarding corruption

interests. Specifically, the Court rejected the theory that there is any corruption interest at all

beyond quid pro quo corruption. Citizens United, slip op. at 43. According to the Court:

“Ingratiation and access, in any event, are not corruption.” Id. at 45. The Court further stated that

all “independent expenditures, including those made by corporations, do not give rise to

corruption or the appearance of corruption.” Id. at 42. Furthermore, an anti-circumvention

Supplemental Memo 

Regarding Citizens United 3

Case 1:08-cv-01953-RJL-RMC Document 95 Filed 02/02/10 Page 3 of 11
argument, reliant on the presence of access and gratitude, cannot stand as a valid justification for

regulation under the First Amendment. 

Here, when arguing that the Restriction is essential to prevent corruption or its

appearance, the FEC relies solely on the potential for gratitude and access. The FEC claims that

“[o]nce the federal officials know who the big donors are, ‘those checks open the doors to the

offices of individual and important Members of Congress and the Administration,’ which ‘gives

[soft money donors] an opportunity to shape and affect governmental decisions.’” FEC Summ. J.

Mot. at 8 (Dkt. 56) (citing FEC SMF ¶ 16). The FEC goes on to assert that any access leads to

“inevitable system corruption” that merits governmental intrusion. FEC Summ. J. Reply at 4

(Dkt. 63). In fact, the FEC devoted at least 13 pages of summary judgment argument and 39 of

their 83 findings of fact to the corrupting nature of access and gratitude, the very interests

foreclosed by the Supreme Court in Citizens United. See FEC Summ. J. Mot., FEC Summ. J.

Reply, FEC Supp. Summ. J. Mot. and Supp. Stmt. of Mat. Facts (Dkt. 82). 

Speaking directly to the FEC, the Court in Citizens United stated that evidence showing

“that speakers may have influence over or access to elected officials does not mean these officials

are corrupt” and “[t]he appearance of influence or access . . . will not cause the electorate to lose

faith in our democracy.” Citizens United, slip op. at 43 and 44. Therefore, the Restriction is not

narrowly tailored or closely drawn to any compelling or important government interest in

preventing corruption or its appearance and the FEC finds itself without any legitimate

government interest to justify the Restriction. See Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at

10-25; Pls.’ Op. at 4-8.

Supplemental Memo 

Regarding Citizens United 4

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Even so, the FEC cannot so much as show that Plaintiffs’ intended activities even pose a

“threat” of the type of access or gratitude discussed in McConnell. Plaintiffs have repeatedly

shown that, just as no preferential access is now provided to federal donors, the RNC will not

provide non-federal donors with preferential access to any federal candidate or officeholder. Pls.’

Exh. 1, Beeson Aff. ¶ 19, 30; FEC Exh. 4 at 7; FEC Exh. 1, Josefiak Dep. at 126:20-130:3; FEC

Exh. 42, Steele Dep. at 51:10-18, 55:13-22, 111:12-21. Furthermore, Plaintiffs’ intended

activities pose no threat of gratitude that is anything more than generalized. The FEC fails to

demonstrate how donations earmarked for and used for activities that do not directly benefit any

federal candidate or officeholder give rise to undue influence. Pls.’ Reply Mem. at 21-24; Pls.’

Op. at 8-13. 

While the Court in Citizens United did not examine the evidence in McConnell regarding

the present Restriction, the FEC has not and cannot point to the remaining permissible corruption

interest, quid pro quo corruption. See Citizens United, slip op. at 43. Since the FEC has not

offered any evidence of quid pro quo corruption, let alone enough evidence to satisfy strict (or

even intermediate) scrutiny, the Restriction is unconstitutional. See Transcript of Oral Argument

at 5: 9-10:8, 16:10-18:9, RNC v. FEC, 08-1953 (FEC relying solely on the prevention of access

and gratitude as governmental interests). 

III. Political Parties Are Now Disadvantaged and Should Be Favored. 

Citizens United granted corporations and labor unions greater protection under the First

Amendment than presently afforded to political parties. This is contrary to our nation’s historic

treatment of political parties. Political parties have long held a favored status in law and society

Supplemental Memo 

Regarding Citizens United 5

Case 1:08-cv-01953-RJL-RMC Document 95 Filed 02/02/10 Page 5 of 11
because they serve the vital role of allowing citizens to advance “common political goals and

ideas.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997). A “political party’s

independent expression . . . reflects its members’ views about the philosophical and

governmental matters that bind them together.” Id. at 615 (Breyer, J., joined by O’Connor &

Souter, JJ.). As such, they have a “unique role in serving” the principles of the First Amendment,

Colo. Rep. Fed. Camp. Comm. v. FEC, 518 U.S. 604, 629 (1996) (“Colorado I”) (Kennedy, J.,

concurring, joined by Rehnquist, CJ., & Scalia, J.), and political party expression is protected

“‘core’ political speech.” Id. at 616 (citation omitted). The First Amendment protects a party’s

primaries, California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (describing

constitutional importance of associating in political parties to elect candidates), internal

processes, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 230

(1989) (including how a party chooses to “organize itself, conduct its affairs, and select its

leaders”), and rights of association generally, Tashjian v. Rep. Party of Conn., 479 U.S. 208, 224

(1986) (“The Party’s determination of the . . . structure which best allows it to pursue its political

goals, is protected by the Constitution”) and Randall v. Sorrell, 548 U.S. 230, 256 (2006) (stating

that the challenged provision’s “insistence that political parties abide by exactly the same low

contribution limits that apply to other contributors threatens harm to a particularly important

political right, the right to associate in a political party”).

However, as a result of Citizens United, corporations and unions now have a substantial

advantage over political parties. The Restriction improperly hinders political parties, entities vital

to the nation’s electoral process, from speaking. Because the RNC, the California Republican

Supplemental Memo 

Regarding Citizens United 6

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Party (“CRP”), and the Republican Party of San Diego County (“RPSD”), like corporations and

unions, are associations of citizens, the same analysis applied in Citizens United to strike

prohibitive regulations should be applied here. 

A. Citizens United Affords Corporations and Unions More

Freedom to Speak

In Citizens United, the Supreme Court emphasized that political speech is “‘indispensable

to decision-making in a democracy, and this is no less true because the speech comes from a

corporation.’” Citizens United, slip op. at 33 (quoting First National Bank of Boston v. Bellotti,

435 U.S. 765, 777 (1978)). Applying strict scrutiny, the Court found no compelling government

interest to maintain the expenditure restrictions in question. As stated above, the Court

determined that only a quid pro quo corruption interest is sufficient, and the Court found

insufficient threat of such corruption with regard to corporate independent expenditures and

electioneering communications. See Citizens United, slip op. at 43-45. The Court determined

that the First Amendment concerns are sufficient to protect corporate expenditures, even in

situations where “the corporate funds may have ‘little to no correlation to the public’s support for

the corporation’s political ideas.’” Id. at 35 (quoting Austin, 494 U.S. at 660). This reasoning

resulted in the striking down of the expenditure bans, thus allowing corporations and unions

more freedom to exercise their First Amendment rights. 

B. Political Parties, Like Corporations and Unions, Are

Associations of Citizens

The holding in Citizens United reaffirms the right of association. Just as corporations and

unions are associations, so too are local, state and the national party committees associations of

Supplemental Memo 

Regarding Citizens United 7

Case 1:08-cv-01953-RJL-RMC Document 95 Filed 02/02/10 Page 7 of 11
of citizens banding together for a common purpose. Individuals join a political party in order to

speak collectively regarding common issues and beliefs. Applying the Court’s rationale in

Citizens United to the present case further strengthens Plaintiffs’ argument. If corporate

expenditures are afforded protection under the First Amendment, even if the funds are not

attributable to individuals’ support of the corporate platform, a political party, as the embodiment

of its members’ political beliefs, should be afforded at least equal — if not greater — protection

under the Constitution.

Political parties are formed around ideas and principles, which they advance in a variety

of manners. Electing federal candidates is merely one of the ways parties promotes their

platform. While candidates come and go, parties endure as a bulwark for the political philosophy

upon which they were formed. Stated differently, political parties are ideological organizations

that seek to promote principles through a variety of means; electing candidates to federal office is

but one goal.

The Restriction, however, prohibits parties from soliciting and spending non-federal/state

funds for any activity, including activities that promote a party’s ideological platform in ways

unrelated to any federal candidate or officeholder. For example, the New Jersey Account,

Virginia Account, Redistricting Account, Grassroots Lobbying Account, Litigation Account, and

the State Elections Accounts all further the RNC’s platform in ways other than by electing

federal candidates. As such, these accounts are not “unambiguously related to the campaign of a

particular federal candidate,” Buckley, 424 U.S. at 80. Similarly, CRP’s planned communications

regarding ballot measures and various state election activities all support CRP’s platform in ways

Supplemental Memo 

Regarding Citizens United 8

Case 1:08-cv-01953-RJL-RMC Document 95 Filed 02/02/10 Page 8 of 11
other than electing federal candidates. As such, these activities are not “unambiguously related to

the campaign of a particular federal candidate,” Buckley, 424 U.S. at 80. 

Additionally, despite the unique and important role of political parties, they are prohibited

by the Restriction from engaging in these non-campaign activities while other organizations,

namely corporations and unions, may engage in these activities freely. The disparity between

corporations and political parties is illustrated by the fact that, because of Citizens United, all

corporations and unions can now use non-federal funds for independent expenditures, while

political parties are limited to federal funds. Even beyond the campaign activities permitted by

Citizens United, corporations may also solicit and spend non-federal funds for grassroots

lobbying, for example, while the RNC may not. Plaintiffs are similar to corporations or unions in

that they are associations of citizens, but unlike these entities, Plaintiffs truly speak directly for

their members as an embodiment of their collective political beliefs. 

As Justice Steven’s pointed out in his dissent, Citizens United “dramatically enhance[d]

the role of corporations and unions –and the narrow interests they represent–vis-à-vis the role of

political parties–and the broad coalitions they represent–in determining who will hold public

office.” Citizens United, Stevens, J., dissenting, slip op. at 21. Stevens goes on to note that the

current imbalance between corporations and political parties created by the majority in Citizens

United may be corrected by removing the very Restriction before this Court. See id., slip op. at

fn. 22. 

IV. In Light of Citizens United, the “Federal Funds Restriction” Should Be

Overruled Facially. 

As previously asserted by the Plaintiffs, to the extent McConnell found that contributions

Supplemental Memo 

Regarding Citizens United 9

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to national political parties were “suspect,” irrespective of their end use, it premised this

conclusion on the historical practice of national parties to provide large donors of non-federal

funds with preferential access to federal candidates and officeholders. Pls.’ Mem. at 21-24; Pls.’

Reply Mem. at 18-21. Now that the Supreme Court has stated that preventing access and gratitude

is not a proper government interest, Citizens United, slip op. at 43-44, the Restriction is

unconstitutional. Not only is the Restriction unconstitutional as applied to Plaintiffs’ activities, it

is facially unconstitutional since McConnell’s foundation of corruption cannot stand. 

In Citizens United, the Court determined that the First Amendment interests at stake were

so important that they required a facial holding, even though the plaintiff had brought an asapplied challenge. Instead of issuing a narrow holding regarding the medium through which the

Citizens United was speaking, the Court “decline[d] to draw, and then redraw, constitutional

lines based on the particular media or technology used to disseminate political speech from a

particular speaker.” Citizens United, slip op. at 9. Due to the clear chill to political speech, the

Court refused to “require[] intricate case-by-case determinations to verify whether political

speech is banned, especially if we are convinced that, in the end, this corporation has a

constitutional right to speak on this subject.” Citizens United, slip op. at 12. As Chief Justice

Roberts noted in his concurring opinion, justice required a facial holding regardless of “whether

we label Citizens United’s claim a ‘facial’ or ‘as-applied’ challenge,” since “the consequences of

the Court’s decision are the same.” Citizens United, Roberts, C.J., concurring, slip op. at 5.

Similarly, due to the determinations and reasoning in Citizens United, it is appropriate to

now consider a facial challenge to the Restriction. Since the FEC’s only justification for the

Supplemental Memo 

Regarding Citizens United 10

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Restriction is based on the theory of access and gratitude as corruption or its appearance, this

Court should recognize that the Supreme Court has now implicitly overruled the relevant portion

of McConnell by stating that the prevention of access and gratitude is not a proper governmental

anti-corruption interest. Citizens United, slip op. at 43-44. Therefore, the Restriction is

unconstitutional.

Conclusion

For the reasons stated above, Plaintiffs’ motion for summary judgment should be granted.

Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Supplemental Memo 

Regarding Citizens United 11

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