United States District Court

District of Columbia

Shaun McCutcheon et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civ. No. 1:12-cv-01034-JEB-JRB-RLW 

THREE-JUDGE COURT

Plaintiffs’ Opposition to Motion to Dismiss

FEC has filed a Motion to Dismiss (“Motion”) based on Federal Rule of Civil Procedure

12(b)(6). (Doc. 21.) Plaintiffs oppose the Motion.

Rule 12(b)(6) provides that parties may assert by motion a defense based on “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

The Rule 12(b)(6) test has been revised in recent years. In Conley v. Gibson, 355 U.S. 41

(1957), the Supreme Court stated the interplay between Rule 8 (pleading) and Rule 12(b)(6) as

follows: “[T]he accepted rule [is] that a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” 355 U.S. at 45-46. In Bell Atlantic Corporation v.

Twombly, 55 U.S. 544 (2007), the Court noted questions raised regarding the “no set of facts”

test and clarified that “once a claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the complaint,” id. at 563. It continued:

“Conley, then, described the breadth of opportunity to prove what an adequate complaint claims,

not the minimum standard of adequate pleading to govern a complaint’s survival.” Id. In Ashcroft

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v. Iqbal, 556 U.S. 662 (2009), the Court further elaborated on the test, including this statement:

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to “state a claim to relief that is plausible on its face.’” Id. at 1949 (citation omitted). Where

a complaint is inadequate, leave to amend the complaint is common. See, e.g., Butt v. United

Brotherhood of Carpenters & Joiners of America, No. 09–4285, 2010 WL 2080034 (E.D. Pa.

May 19, 2010).

But FEC asserts no factual inadequacy in the Complaint—and seeks dismissal “with prejudice after the consolidated motion hearing.” (Motion 2 (emphasis added).) Rather, it claims that

“as a matter of law” it has “demonstrated the constitutionality” of the challenged individual biennial contribution limits. (Motion 1.) FEC particularly relies on the notion that Buckley v. Valeo,

424 U.S. 1 (1976), foreclosed Plaintiffs’ as-applied and facial challenge to “the aggregate contribution limit.” (Motion 1.).

These arguments go to the merits, and Plaintiffs have already addressed the merits at length

in their Verified Complaint (“VC”) (Doc. 1), Preliminary-Injunction Memo (“PI-Mem.”) (Doc.

8-1), and Preliminary-Injunction Reply (“PI-Reply”) (Doc. 20)—all refuting the FEC’s claim that

it has “demonstrated” the constitutionality of the challenged limits and all establishing the unconstitutionality of the limits as challenged.

As shown below, (A) Buckley did not foreclose as-applied challenges; (B) Buckley did not

rule on the new biennial-contribution-limits statute and its revised statutory context; (C) FEC has

not proven the constitutionality of the present limits; and (D) this Court has already left open

possible additions to the record.

A. Buckley’s Facial Holding Could Not Have Foreclosed As-Applied Challenges. 

FEC argues that Buckley foreclosed this challenge “as a matter of law.” This line of attack

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will sound familiar to anyone familiar with the FEC’s strategy in the landmark litigation resulting

in the decision in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL-II”). WRTL-II is 1

designated as a “II” because there was a “I,” i.e., Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) (per curiam) (“WRTL-I”). In Wisconsin Right to Life v. FEC, No. 04-1260, 2004 WL

3622736 (D.D.C. Aug. 17, 2004), a three-judge court denied a preliminary injunction to WRTL

and ordered briefing on FEC’s argument that the facial upholding of the ban on corporate electioneering communications (2 U.S.C. § 441b) in McConnell v. FEC, 540 U.S. 93 (2003), foreclosed as-applied challenges. Then the court held that “ WRTL’s ‘as-applied’ challenge to BCRA

is foreclosed by the Supreme Court’s decision in McConnell. Accordingly, WRTL’s case is dismissed with prejudice.” WRTL, No. 04-1260, 2005 WL 3470512 (D.D.C. May 10, 2005).

This dismissal was appealed to the Supreme Court. Oral argument was January 17, 2006; a

decision issued January 23, 2006. See http://www.supremecourt.gov/Search.aspx?FileName=

/docketfiles/04-1581.htm (Supreme Court docket). The Court vacated the decision below, reversed, and remanded for the three-judge court “to consider the merits of WRTL’s as-applied

challenge in the first instance. WRTL-I, 546 U.S. at 412. The Court’s holding was simple: “In

upholding [the ban on corporate electioneering communications] against a facial challenge, we

did not purport to resolve future as-applied challenges.” Id. at 411-12.

On remand, the three-judge court considered cross-motions for summary judgment and held

in favor of WRTL. WRTL, 466 F. Supp. 2d 195 (D.D.C. 2006). Of course, the Supreme Court

affirmed that three-judge court in WRTL-II, 551 U.S. 449—which ultimately led to the decision

striking facially the corporate ban in Citizens United v. FEC, 130 S. Ct. 876 (2010), in principle

Two of Plaintiffs’ counsel herein (Bopp and Coleson) were counsel for Wisconsin Right to 1

Life (“WRTL”) in the cited litigation.

Opposition to Motion to Dismiss 3

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part because “the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling,

id. at 895, creating a scheme that “function[ed] as the equivalent of prior restraint,” id. at 896,

and was “ precisely what WRTL sought to avoid,” id. And regarding the facial versus as-applied

issue, Citizens United noted the following:

The controlling opinion in WRTL, which refrained from holding the statute invalid except

as applied to the facts then before the Court, was a careful attempt to accept the essential

elements of the Court's opinion in McConnell, while vindicating the First Amendment

arguments made by the WRTL parties. 551 U.S., at 482, 127 S.Ct. 2652 (opinion of ROBERTS, C.J.).

Id. at 894.

FEC’s current effort to persuade this Court that Buckley foreclosed as-applied challenges to

a biennial contribution limit—even if Buckley were binding as to a facial challenge, which it is

not, see infra—simply recycles a rejected litigation tactic doomed to failure again.

B. Buckley Did Not Rule Facially on the Present Limits in the Present Context.

FEC claims that Buckley “upheld the aggregate contribution limit as a constitutional means

of . . . reducing . . . corruption.” (Motion 1.) Analytically, FEC still fails to argue with the precision required where First Amendment burdens on core political activity exist because Buckley

relied on a circumvention interest, not a generic corruption interest. (PI-Mem. 8-10, 13-30).

Buckley’s facial holding does not control—though its analysis guides the analysis (PI-Mem. 8-

10)— because, inter alia, Congress fixed the problems that Buckley identified (PI-Mem. 10-12),

in BCRA, Congress repealed and replaced the old overall ceiling that Buckley considered (PIMem. 12), and Buckley did not even mention contributions to candidates as posing a potential

circumvention problem in its brief discussion facially upholding the old ceiling (PI-Mem. 33-41).

C. FEC Has Not Proven the Constitutionality of the Present Limits.

As part of FEC’s claim that “as a matter of law” it has “demonstrated the constitutionality”

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of the challenged individual biennial contribution limits (Motion 1), it points to various parts of

its Preliminary-Injunction Memorandum that it incorporates by reference (Motion 1-2). Of

course, Plaintiffs may (and do hereby) simply incorporate by reference their Preliminary-Injunction Memo and Reply, which rebut each of FEC’s assertions. But in particular, Plaintiffs note

that FEC here still relies on inapplicable soft-money cases (e.g., McConnell v. FEC, 540 U.S. 93

(2003)) and forbidden theories of corruption (e.g., access, gratitude, and influence) (Motion 1-2),

instead of meeting its burden of proving that a conduit contribution can get through to a particular candidate in light of all the existing prophylaxes in place without the biennial limits. (PIMem. 13-31, 33-41.)

D. This Court Has Already Addressed the Possibility of Expanding the Record.

FEC seeks dismissal with prejudice immediately after the hearing on September 6. (Motion

2.) But this Court has already issued an order explaining how it shall proceed, which requires

rejection of FEC’s present motion on yet another basis. In a July 12 Minute Order this Court

stated as follows:

MINUTE ORDER: As discussed with the parties in today’s conference call and as agreed

by all three judges designated to hear this case, the Court ORDERS that: 1) A hearing on

the Motion for Preliminary Injunction shall be consolidated with a hearing on the merits

of the case, provided that, in the event the Court determines that the resolution of disputed

factual issues is necessary for its merits determination, it may require a further merits

hearing following discovery; 2) The consolidated hearing shall be held on Sept. 6, 2012,

at 10:30 a.m.; and 3) The courtroom for the hearing and any time limits for argument shall

be the subject of a further ORDER. Signed by Judge James E. Boasberg on 7/12/12.

(lcjeb4)

Part of what was “discussed with the parties” in connection with consolidating the

preliminary-injunction and merits hearings was the potential need for Plaintiffs to put in the record certain evidence, e.g., an expert report about whether candidate committees actually pose a

cognizable risk of allowing conduit contributions to pass through them from contributors to inOpposition to Motion to Dismiss 5

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tended candidates, in the event the Court found that its decision turned on such evidence instead

of being purely based on matters of law. By this Minute Order, the Court has already ruled on

that question: “[P]rovided that, in the event the Court determines that the resolution of disputed

factual issues is necessary for its merits determination, it may require a further merits hearing

following discovery.” FEC’s current motion to dismiss seems designed to end-run that settled

ruling and so should be rejected for that reason, too. If this Court makes a ruling on the merits, as

a matter of law, as was the expectation of the discussion cited and the Minute Order, there will be

a decision one way or the other on the merits and no need for a dismissal of Plaintiffs’ Complaint. If this Court finds that further facts would be necessary to its decision, then those will be

provided under a prior order of this Court.

For the foregoing reasons and all the others discussed in the Plaintiffs’ Verified Complaint,

Preliminary-Injunction Memorandum, and Preliminary-Injunction Reply, the present Motion to

Dismiss should be denied.

Opposition to Motion to Dismiss 6

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Of Counsel for Shaun McCutcheon:

Stephen M. Hoersting*

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

209 Pennsylvania Ave., S.E., Suite 2109

Washington, DC 20003

202/210-5431 phone

202/478-0750 fax

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Jerad Wayne Najvar*

NAJVAR LAW FIRM

One Greenway Plaza, Suite 225

Houston, TX 77046

281/404-4696

jerad@najvarlaw.com

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

jboppjr@aol.com

 /s/ Richard E. Coleson 

Richard E. Coleson*

rcoleson@bopplaw.com

Jeffrey P. Gallant*

jgallant@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application Granted

Opposition to Motion to Dismiss 7

Case 1:12-cv-01034-JEB-JRB-RLW Document 23 Filed 09/04/12 Page 7 of 8
Certificate of Service

I hereby certify that the foregoing document was served on September 4, 2012 on the following persons by this Court’s electronic case filing service (“ECF”):

Anthony Herman, General Counsel

 aherman@fec.gov

Adav Noti

 anoti@fec.gov

David Brett Kolker

 dkolker@fec.gov

Lisa J. Stevenson

 lstevenson@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

Counsel for Defendant FEC.

 /s/ Richard E. Coleson

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

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