EN BANC ORAL ARGUMENT SCHEDULED FOR JANUARY 27, 2010 

No. 09-5342 

(consolidated with No. 08-5223) 

__________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

__________________ 

DAVID KEATING, EDWARD H. CRANE, III, FRED M. YOUNG, JR., 

BRAD RUSSO, AND SCOTT BURKHARDT, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

__________________ 

On Certified Questions from the United States 

District Court for the District of Columbia, 

Case No. 08-cv-00248 (JR) 

__________________ 

Brief of Amici Curiae The Brennan Center for Justice and Professor Richard 

Briffault in Support of the Defendant-Appellee and Supporting Affirmance of the 

Decision Below 

Devereux Chatillon Howard R. Rubin 

Nicholas Tardif Michael A. Zolandz 

Sonnenschein Nath & Rosenthal LLP John R. Feore III 

1221 Avenue of the Americas Sonnenschein Nath &Rosenthal LLP 

New York, NY 10020 1301 K Street, N.W. 

212 398-8494 Suite 600, East Tower 

 Washington, DC 20005-3364 

 202 408-9164 

 hrubin@sonnenschein.com 

Belinda L Harrison 

Sonnenschein Nath & Rosenthal LLP 

4520 Main Street, Suite 1100 

Kansas City, MO 64111-7700 

Attorneys for Amici Curiae the Brennan Center for Justice at NYU 

School of Law and Professor Richard Briffault 

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CERTIFICATE OF COUNSEL FOR AMICI CURIAE AS TO PARTIES, 

RULINGS AND RELATED CASES UNDER CIRCUIT RULE 28(a)(1) 

Pursuant to Rules 28(a)(1) and 26.1 of this Court and Federal Rule of 

Appellate Procedure 26.1, Amici Curiae the Brennan Center and Professor Richard 

Briffault certify as follows: 

A. Parties and Amici 

The parties in the District Court were Plaintiffs SpeechNow.org, David 

Keating, Fred M. Young, Jr., Edward H. Crane, III, Brad Russo, and Scott 

Burkhardt, and defendant Federal Election Commission (“FEC”). All parties 

below except SpeechNow.org are parties before this Court on the questions 

certified by the District Court. Amici Curiae in the District Court were Democracy 

21 and the Campaign Legal Center (“CLC”). Amici Curiae in this Court are the 

Brennan Center for Justice at NYU School of Law (“Brennan Center”), Professor 

Richard Briffault, Democracy 21, and the CLC, in support of the FEC, as well as 

the Alliance for Justice, the Family Research Council Action, the Concerned 

Women for America Legislative Action Fund, the Kansas Policy Institute, the 

Mackinac Center for Public Policy, the Caesar Rodney Institute, FreedomWorks 

Foundation, the James Madison Institute, the Public Interest Institute, and the 

Commonwealth Foundation for Public Policy Alternatives, in support of the 

Plaintiffs. 

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B. Corporate Disclosure Statement 

The Brennan Center is a nonprofit, non-partisan corporation. The Brennan 

Center has no parent corporation and no publicly held corporation has any form of 

ownership interest in the Brennan Center. 

C. Rulings Under Review 

The rulings under review are the Hon. James Robertson’s Memorandum 

Opinion issued September 28, 2009 in the District Court, and the findings of fact 

and certified questions issued by the Hon. James Robertson on October 7, 2009. 

The certified questions for review by this Court are set forth in the Joint Appendix 

(“J.A.”), filed in Docket No. 08-5223 on August 24, 2009, at pages 372-99. 

D. Related Cases 

The only related case pending in this Court or in any other court of which 

counsel for Amici are aware is the appeal from the opinion and order issued July 1, 

2008, by the Hon. James Robertson in the same case, denying Plaintiffs’ Motion 

for Preliminary Injunction. The District Court’s opinion denying the preliminary 

injunction is reported as Speechnow.Org v. FEC, 567 F. Supp. 2d 70 (D.D.C. 

2008), and the appeal is pending in this Court as No. 08-5223 and has been 

consolidated with the certified questions for consideration by the en banc Court. 

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Table of Contents 

Page 

CERTIFICATE OF COUNSEL FOR AMICI CURIAE AS TO PARTIES, 

RULINGS AND RELATED CASES UNDER CIRCUIT RULE 28(a)(1) ..............2

A. Parties and Amici ..................................................................................2

B. Corporate Disclosure Statement............................................................3

C. Rulings Under Review ..........................................................................3

D. Related Cases ........................................................................................3

Glossary......................................................................................................................v

BCRA = Bipartisan Campaign Reform Act.....................................................v

CFI = Campaign Finance Institute .............................................................v

CLC = Campaign Legal Center ...................................................................v

FEC = Federal Election Commission ..........................................................v

FECA = Federal Election Campaign Act .......................................................v

MCFL = Massachusetts Citizens for Life .......................................................v

MUR = Matter Under Review......................................................................v

PAC = Political action committee................................................................v

WRTL = Wisconsin Right to Life ...................................................................v

Interest of the Amici ..................................................................................................1

Summary of Argument...............................................................................................3

I. The District Court Correctly Ruled that Regulation of 

Contributions to Major Purpose Political Committees Serves a 

Strong Government Interest in Preventing Corruption and the 

Appearance of Corruption in Federal Elections....................................5

A. The Statutory and Constitutional Background ...........................5

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B. Regulation of Contributions to “Major Purpose” Political 

Committees Serves an Important Government Interest in 

Preventing Corruption and the Appearance of Corruption 

in Federal Elections...................................................................12

C. Nothing about the Proposed Committee or in the Record 

Before this Court Brings it Outside this Regulatory and 

Constitutional Framework. .......................................................24

Conclusion ...............................................................................................................26

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Table of Authorities 

 Page(s) 

CASES

*Buckley v. Valeo, 

424 U.S. 1 (1976)........................................................................................ passim

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)..............................................................................................7 

Caperton v. Massey

 129 S.Ct. 2252 (2009).........................................................................................22

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008), 

appeal docketed, No. 08-205 (U.S. Aug. 18, 2008) ...........................................12 

Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009)......................................................................2, 12, 14 

FEC v. Colorado Republican Federal Campaign Comm., 

533 U.S. 431 (2001)..............................................................................................1 

FEC v. Mass. Citizens for Life,

479 U.S. 238 (1986)........................................................................................5, 12 

FEC v. Wisc. Right To Life,

551 U.S. 449 (2007)........................................................................................6, 12 

In re League of Conservation Voters, 

Federal Election Commission MUR 5793 (Dec. 13, 2006) ...............................18 

In re The Media Fund, 

Federal Election Commission MUR 5440 (Nov. 19, 2007)...............................18 

In re Progress for America Voter Fund, 

Federal Election Commission MUR 5487 (Feb. 28, 2007)................................18 

In re Swift Boat Veterans and POWs for Truth, 

Federal Election Commission MUR 5511 (Dec. 13, 2006) ...............................18 

* Authorities chiefly relied upon are marked with an asterisk 

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*McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................................... passim

*Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000)....................................................................................1, 9, 11 

Randall v. Sorrell, 

 548 U.S. 230 (2006)..............................................................................................9 

Speechnow.Org v. FEC, 

567 F.Supp.2d 70 (D.D.C. 2008)..............................................................2, 19, 21 

STATUTES

2 U.S.C. § 441a .......................................................................................................13 

2 U.S.C. § 441a(a)(1) ..............................................................................................13 

2 U.S.C. § 441i.........................................................................................................11 

Cal. Gov. Code § 82031...........................................................................................23 

Cal. Gov. Code § 85303(c) ......................................................................................23 

Bipartisan Campaign Reform Act, 

Pub. L. No. 107-155, 116 Stat. 81 ............................................................. passim

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 431-

455) ............................................................................................................ passim

Internal Revenue Code § 501(c)(4)..........................................................................14 

OTHER AUTHORITIES

http://www.clubforgrowth.org/aboutus/?subsec=0&id=4 

(last visited Dec. 17, 2009) .................................................................................20 

http://www.fppc.ca.gov/bulletin/statelimithistory.pdf.............................................23 

Richard Briffault, The 527 Problem . . . and the Buckley Problem, 

73 Geo. Wash. L. Rev. 949 (2005)....................................................... 1-2, 18, 20 

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Laura MacCleery, Goodbye Soft money, Hello Grassroots: How Campaign 

Finance Reform Restructered Campaigns and the Political World, 

 58 Cath. U. L. Rev. 965 (2009) ..........................................................................10 

S. Weissman & R. Hassan, BCRA and the 527 Groups, 

The Election After Reform: Money, Politics, and the Bipartisan 

Campaign Reform Act (Michael J. Malbin 2005)......................................... 18-19 

S. Weissman and S. Sazawal, Soft Money Political Spending by 501(c) 

Nonprofits Tripled in 2008 Election, The Campaign Finance Institute, 

Feb. 25, 2009, available at

http://www.cfinst.org/pr/prRelease.aspx?ReleaseID=221 (last accessed 

on Dec. 16 (2009) .........................................................................................19, 21

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Glossary 

 BCRA = Bipartisan Campaign Reform Act 

 CFI = Campaign Finance Institute 

 CLC = Campaign Legal Center 

 FEC = Federal Election Commission 

 FECA = Federal Election Campaign Act 

 MCFL = Massachusetts Citizens for Life 

 MUR = Matter Under Review 

 PAC = Political action committee 

 WRTL = Wisconsin Right to Life 

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Interest of the Amici 

The Brennan Center is a non-partisan institute dedicated to a vision of 

effective and inclusive democracy. The Brennan Center’s Campaign Finance 

Reform Project promotes reforms to ensure that our elections embody the 

fundamental principle of political equality underlying the Constitution. Through 

public education, litigation, and advocacy, the Brennan Center actively supports 

strong federal campaign finance laws that meet constitutional standards and 

encourage broad candidate participation in federal elections. The Brennan Center 

served as counsel to Intervenor-Defendants Senator John McCain, Senator Russell 

Feingold, Representative Christopher Shays, Representative Martin Meehan, 

Senator Olympia Snowe, and Senator James Jeffords in McConnell v. FEC, 540 

U.S. 93 (2003), which upheld provisions of the Bipartisan Campaign Reform Act 

of 2002 (“BCRA”). Pub. L. No. 107-155, 116 Stat. 81. 

Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at 

Columbia Law School, has devoted much of his career to the study of election law, 

especially campaign finance law. He has published 23 articles or book chapters on 

campaign finance law, which have been cited by the Supreme Court in its 

campaign finance cases. See, e.g., FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 462 (2001); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 

406 (2000) (Kennedy, J., dissenting). His article, The 527 Problem . . . and the 

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Buckley Problem, 73 Geo. Wash. L. Rev. 949 (2005) was cited by the court below 

in this case, see Speechnow.Org, 567 F. Supp. 2d at 73 n.4, 75, as well as by this 

Court in Emily’s List v. FEC, 581 F.3d 1, 10, 18, 19, 23 (D.C. Cir. 2009); see also 

Emily’s List, 581 F.3d at 34, 35 (Brown, J., concurring). 

Pursuant to Federal Rule of Appellate Procedure 29(c)(3), the source of 

Amici’s authority to file is pursuant to their motion for leave to file, currently 

pending before the Court. 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 11
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Summary of Argument 

The District Court was correct in rejecting the constitutional challenge of 

Plaintiffs-Appellants (“Plaintiffs”) to contribution limits for organizations whose 

major purpose is the election or defeat of candidates for federal office. The 

District Court correctly applied both long-standing Supreme Court precedent, and 

the constitutional principles enunciated in those cases, to the circumstances and 

proposed operational structure of the Plaintiffs’ organization. Moreover, the 

District Court gave appropriate recognition to the strong governmental interest in 

preventing corruption and the appearance of corruption underlying the statutory 

and regulatory scheme challenged by the Plaintiffs; courts have consistently upheld 

this strong anti-corruption interest supporting regulation in this constitutionally 

sensitive area. 

In this case, Plaintiffs assert that they intend to run advertisements calling 

for the election and defeat of candidates paid for exclusively by private donations 

from individuals, not corporations, labor unions, or anyone else not permitted to 

contribute to candidates for federal election. (Pl. Br. at 6-7). Plaintiffs assert that 

any limitations on contributions to an organization that would engage only in 

independent expenditures are unconstitutional. (Id. at 21-41). In making this 

argument, however, Plaintiffs confuse and conflate the governing constitutional 

principles of this area of the law by equating limits on the receipts of contributions 

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with limits on spending by the proposed organization, in contravention of 

longstanding Supreme Court precedents that differentiate between the First 

Amendment status of contributions and expenditures in connection with electoral 

activity. 

Plaintiffs’ argument mistakes two fundamental premises of the previous 

Supreme Court decisions. First, Plaintiffs wrongly assume that the associational 

rights at issue in the regulation of contributions to organizations are identical to the 

freedom of speech concerns at issue in the regulation of spending. Second, 

Plaintiffs also mistakenly assume that the governmental interest behind regulation 

of contributions is equivalent to, and no stronger than, the governmental interest in 

regulating the spending and speech itself. (E.g., Pl. Br. at 27-28.) But the record 

before this Court, the extensive legislative and judicial findings underlying 

previous restrictions on contributions, and the well-documented real world 

experience of past election cycles demonstrate that Congress, the FEC, and the 

courts have identified serious issues of corruption and the appearance of corruption 

that would result from potentially unlimited contributions expressly directed at 

determining the outcome of federal elections. Under controlling Supreme Court 

cases, these anti-corruption interests amply support the constitutionality of the 

portion of the campaign finance regulatory framework challenged in this litigation. 

Overturning campaign finance laws that regulate organizations whose major 

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purpose is to influence federal elections would lead to circumvention of 

contribution limits that apply to candidates and political parties and would frustrate 

Congress’ important anti-corruption goals. 

Argument 

I. The District Court Correctly Ruled that Regulation of Contributions to 

Major Purpose Political Committees Serves a Strong Government 

Interest in Preventing Corruption and the Appearance of Corruption in 

Federal Elections. 

A. The Statutory and Constitutional Background 

Since the beginning of the twentieth century, Congress and the courts have 

struggled with balancing regulations and constitutional rights in their effort to 

address the corrupting influence of unrestricted contributions to federal elections. 

The flow of money into federal election campaigns and the attendant problems of 

actual and potential corruption of public officials and public institutions has been 

and continues to be a central concern behind legislative restrictions on campaign 

contributions and disclosure requirements in the context of political campaigns and 

is also behind the judicial recognition of the legitimacy of those restrictions. The 

Supreme Court has recognized the special importance of this issue in a series of 

seminal cases that addressed congressional efforts to impose limitations on, or 

regulation of, political contributions. Buckley v. Valeo, 424 U.S. 1 (1976); FEC v. 

Mass. Citizens for Life, Inc., (“MCFL”), 479 U.S. 238 (1986); McConnell v. FEC, 

540 U.S. 93 (2003). Congress in 1907 prohibited corporate contributions to federal 

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candidates and since 1940 has placed dollar limits on individual donations in 

federal campaigns (now $2,400 per candidate per election). To deal with 

longstanding efforts to evade or circumvent these initial restrictions, Congress in 

1971 comprehensively revamped federal contribution restrictions to make sure that 

limits apply to donations to candidates’ campaign committees, to political party 

committees, and to other political committees that have the major purpose of 

supporting the election or defeat of federal candidates. Federal Election Campaign 

Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 

431-455) (“FECA”). It is those limits that Plaintiffs sought to challenge below. In 

the years following FECA, the continuation of large contributions to parties and 

independent groups – and continuing evidence of either actual or potential 

corruption from such contributions as well as the appearance of such corruption – 

led to the passage in 2002 of the Bipartisan Campaign Reform Act, which 

attempted to close a number of loopholes that enabled those seeking to influence 

federal elections to circumvent the regulatory framework established in FECA. 

BCRA, Pub. L. No. 107-155, 116 Stat. 81 (2002). 

As the courts have reviewed regulations promulgated under FECA and 

BCRA, the central challenge has been to reconcile necessary anti-corruption 

regulation with First Amendment speech and associational rights in the arena of 

election-related activity. E.g., Buckley, 424 U.S. at 26-27, 45; FEC v. Wisc. Right 

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To Life, Inc. (“WRTL”), 551 U.S. 449, 479-82 (2007). In addressing that 

reconciliation, the Supreme Court has repeatedly distinguished the constitutional 

issues that arise from direct contributions to candidates and other entities directly 

engaged in electoral activity from the constitutional issues that arise from 

expenditures by sympathetic parties supporting or opposing particular issues or 

candidates. See Buckley, 424 U.S. at 477-82; McConnell, 540 U.S. at 176-84; Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 195-98 (1981). 

The justifications for campaign finance reform enunciated in Buckley and 

the legal principles based on those justifications have lasted through thirty years of 

federal, state, and local elections and have survived shifts in the political 

landscape, as well as developments in statutory schemes regulating the funding of 

political campaigns. In Buckley, the Court upheld contribution limits against a 

facial challenge to the entire regulatory scheme and drew a distinction between the 

First Amendment interests involved in spending directly on one’s own political 

speech and the First Amendment interests that arise in the context of contributing 

to candidates, political committees or other election-related organizations. 

It is well established under Buckley that limitations on contributions, unlike 

limitations on expenditures act as “only a marginal restriction upon the contributor's 

ability to engage in free communication.” 424 U.S. at 20. 

A contribution serves as a general expression of support 

for the candidate and his views, but does not 

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communicate the underlying basis for the support. The 

quantity of communication by the contributor does not 

increase perceptibly with the size of his contribution, 

since the expression rests solely on the undifferentiated, 

symbolic act of contributing. At most, the size of the 

contribution provides a very rough index of the intensity 

of the contributor’s support for the candidate. 

Id. at 21. 

Thus, stating publicly that “I support Mr. Smith for Senate because he is for 

the working man...or local business... or protecting the environment,” for 

example, implicates a different First Amendment interest than giving money to 

Mr. Smith. While both are indicative of support for Mr. Smith’s candidacy, the 

constitutional protection afforded to the expression of this support through direct 

speech is much greater than the constitutional protection afforded to the expression 

of support that arises from a donation to the campaign of Mr. Smith. In addition, 

the Buckley Court noted that many avenues other than mere monetary contributions 

are available for interested people to demonstrate their support for a cause, 

candidate, or collection of candidates and thereby to exercise their associational 

rights. Even when individual contributions are limited to specified dollar amounts, 

individuals remain “free to engage in independent political expression, to associate 

actively through volunteering their services, and to assist to a limited but 

nonetheless substantial extent in supporting candidates and committees with 

financial resources.” Id. at 28. 

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In addition to holding that contribution limits only marginally restrict 

contributors’ First Amendment rights, the Court in Buckley expressly rejected 

arguments that contribution limits would have “any dramatic adverse effect” on 

financing campaigns and political committees. The Court reasoned that 

contribution limits “merely . . . require candidates and political committees to raise 

funds from a greater number of persons and to compel people who would 

otherwise contribute amounts greater than the statutory limits to expend such funds 

on direct political expression, rather than to reduce the total amount of money 

potentially available to promote political expression.” Buckley, 424 U.S. at 22; 

McConnell, 540 U.S. at 136 (quoting Buckley, 424 U.S. at 22); accord Shrink Mo. 

Gov’t PAC, 528 U.S. at 395-96 (finding that there is no indication that Missouri 

contribution limitations would have any adverse effect on funding of campaigns).1

 

History has amply vindicated the Court’s wisdom on this point, as candidates, 

parties, and political committees continue to raise and spend ever-growing sums of 

money even though the size of the contributions they are legally allowed to receive 

 

1

 The Court’s decision in Randall v. Sorrell, 548 U.S. 230 (2006), does not 

undercut this reasoning. At issue in Randall were both expenditure and 

contribution limits in state races imposed by Vermont state law. While there is no 

majority opinion for the Court, the plurality opinion found that the extraordinarily 

low contribution limits did not pass constitutional muster. As the contribution 

limits at issue here are those contained in federal law, which are precisely the ones 

that the Court upheld in Buckley and McConnell, the Randall plurality opinion is 

not applicable. 

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is restricted. See, e.g., Laura MacCleery, Goodbye Soft Money, Hello Grassroots: 

How Campaign Finance Reform Restructured Campaigns and the Political World, 

58 Cath. U. L. Rev. 965, 994-1009 (2009) For example, when BCRA sharply 

limited “soft money” donations to the political parties, the parties turned to more 

vigorous grass-roots fundraising efforts and were soon able to replace the now 

illegal large soft money gifts with increased legal hard money donations. See id. 

An important principle of campaign finance jurisprudence stemming from 

the holding Buckley is that in the context of contributions to entities, such as 

candidate committees or organizations, the political speech that such contributions 

enable is not the speech of the contributor, but rather is the speech of the receiving 

entity: 

While contributions may result in political expression if 

spent by a candidate or an association to present views to 

the voters, the transformation of contributions into 

political debate involves speech by someone other than 

the contributor. 

Buckley, 424 U.S. at 21. Accordingly, courts have consistently accorded the 

speech-related expenditures made by the entity receiving contributions (the 

candidate committee or organization) greater First Amendment protection than the 

contributions that fund such expenditures. 

The Buckley Court further found that the important government interests in 

preventing corruption of candidates, public officials, and public institutions justify 

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the limitation of contributions. “The . . . contribution limitation focuses precisely 

on the problem of large campaign contributions -- the narrow aspect of political 

association where the actuality and potential for corruption have been identified . . 

. .” Id. at 28. Picking up the same themes in Shrink Missouri Gov’t PAC, the 

Court upheld contribution limits imposed by the state of Missouri on state 

elections. The Court stated that in its previous decisions upholding contribution 

limits, “we recognized a concern not confined to bribery of public officials, but 

extending to the broader threat from politicians too compliant with the wishes of 

large contributors.” Shrink Mo. Gov’t PAC, 528 U.S. at 389 

Because of continuing problems with circumvention of contribution limits 

and other federal campaign finance reforms, in 2002, Congress tightened the 

campaign finance laws to narrow the amounts of unregulated “soft money” that 

could be spent in conjunction with a federal election. See 2 U.S.C. § 441i, BCRA 

§ 101. In McConnell, the Supreme Court rejected the principal constitutional 

challenges to BCRA and specifically upheld reforms meant to stem the flow of soft 

money in McConnell. In so doing, the Court reiterated its previous holding in 

Buckley that the Constitution permits contribution limits aimed directly at the 

prevention of corruption and the appearance of corruption. McConnell, 540 U.S. at 

137-38. 

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The Plaintiffs in this case, however, argue that because they wish to use 

contributions only for independent expenditures, they may not be constitutionally 

subjected to the federal statutes and regulations that limit contributions. Plaintiffs’ 

argument ignores the strong anti-corruption interests that support these laws, both 

in the context of the campaign finance system as a whole and standing alone. 

B. Regulation of Contributions to “Major Purpose” Political 

Committees Serves an Important Government Interest in 

Preventing Corruption and the Appearance of Corruption in 

Federal Elections. 

Federal campaign finance law regulates three basic types of vehicles for 

campaign finance contributions – (i) the candidates’ campaigns themselves 

(candidate committees); (ii) political parties (political party committees); and 

(iii) non-party political committees.2

 It is this third group that has attracted the 

majority of recent litigation, including this case. Under current law, each of these 

groups are subject to limits on the amount of contributions they may receive from 

any one source for purposes of influencing the election or defeat of candidates for 

office. 2 U.S.C. § 441a(a)(1). Both candidate committees and political parties 

 

2

 Unlike cases such as Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 

2008), appeal docketed, No. 08-205 (U.S. Aug. 18, 2008), Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009), MCFL, 479 U.S. 238 (1986), WRTL, 551 U.S. 449 

(2007), and others, the entity in this case is a single purpose election related 

organization, organized pursuant to Section 527 of the Internal Revenue Code. 

That is to say, SpeechNow was established and has as its stated and sole purpose 

the goal of producing and disseminating express advocacy communications for and 

against specific candidates for federal office. 

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may raise and use only “hard money,” that is, money subject to both individual 

and overall contribution limits,3

 to finance campaign activities. 2 U.S.C. § 441a. 

Current law, stemming from the decision in Buckley, provides that entities 

such as SpeechNow may be regulated as political committees only if their major 

purpose is the election or defeat of a clearly identified candidate or candidates for 

federal office. Organizations that meet this test and thus qualify as political 

committees may make independent expenditures, contribute to other political 

committees, party committees, or candidate committees, and may contribute to 

state candidates.4

 Such “major purpose” political committees are inherently 

different from other tax-exempt organizations that may engage a wide range of 

political activity. The major, and often the sole purpose of such a “major purpose” 

political committee is to affect the outcome of a federal election. This is a central 

distinction in assessing whether limits on contributions to groups such as 

 

3

 Federal election law limits the amount of money that an individual may 

contribute to a campaign or committee. These limits are either annual or per 

election (e.g., primary, general, and special elections). In addition, individuals 

must adhere to “special” biennial limits on the total amount of money that may be 

contributed to candidates, committees, and political parties. Thus, every individual 

may contribute money to the candidates, committees, and parties of their choosing. 

However, no individual may contribute in the aggregate more than the biennial 

limit. 

4

 Of course, state contributions are outside the regulation of FECA, and beyond the 

scope of this case, given the stated purpose of SpeechNow to run advertisements 

that seek to expressly advocate for the election or defeat of federal candidates. 

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SpeechNow are constitutionally valid.5

 Unlike other non-profit organizations, such 

as those organized under 501(c)(4) of the Internal Revenue Code, SpeechNow 

makes no claim that it intends to engage in a mixture of issue advertising, voter 

education, or other advocacy efforts. (Pl. Br. at 8.) Not only its major purpose, but 

its sole purpose is to influence federal elections by publicly advocating for the 

election or defeat of identified candidates for federal office. 

Under the framework that Plaintiffs urge this Court to adopt, major purpose 

organizations such as SpeechNow that raise funds to elect or defeat specific 

candidates for office, would be the only organizations primarily devoted to express 

advocacy in federal campaigns that would not be subject to contribution limits. 

Such a result would effectively allow such organizations to solicit and collect 

unlimited contributions for use in federal election campaigns. This disparity would 

create an enormous loophole for those wanting to make large contributions. As 

numerous examples have shown, those wishing to gain influence over federal 

candidates and officeholders could potentially make use of such large contributions 

to circumvent existing safeguards against corruption. 

 

5

 This difference in organizational purpose and structure is one reason why the 

panel decision in Emily’s List should not control the outcome in this en banc 

appeal. As the additional reasons for distinguishing or overruling this case are 

extensively discussed in the Brief of Amici Curiae Campaign Legal Center and 

Democracy 21, filed December 15, 2009, they will not be repeated here. 

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Plaintiffs urge that this loophole should be created because their 

organization will not make contributions directly to candidates or parties but will 

instead pursue its federal electoral agenda indirectly by devoting its funds to 

nominally independent expenditures that advocate the election or defeat of federal 

candidates. They argue that because they seek to make independent expenditures 

no corruption or appearance of corruption could occur that would justify 

restrictions on contributions. (Pl. Br. at 27-28.) But to accept that argument would 

require this Court to assume that there could never be corruption or the appearance 

of corruption from contributions of unlimited funds to “major purpose” committees 

for direct advocacy on behalf of or against a particular candidate. To make their 

case, Plaintiffs assert that this new world order of unrestricted contributions to 

organizations that seek to elect or defeat candidates via television or other direct 

advertising would raise no possibility of corruption or the appearance of 

corruption. Under Plaintiffs’ theory, an individual wealthy donor could contribute 

up to $4,800 to a candidate for Congress – $2,400 for the primary and $2,400 for 

the general election. That same donor could donate up to $30,400 to the 

Democratic or Republican Party to continue to help support that candidate. And 

that same donor could then donate an unlimited amount to a non-party committee 

formed for the express and exclusive purpose of running ads to defeat that 

candidate’s opponent in the race for Congress or to support the candidate directly. 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 24
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Plaintiffs argue that there is no risk that this kind of unlimited contribution could 

lead to the appearance of corruption, or actual corruption, despite the large sums 

involved. (Pl. Br. at 28-43.) Thus, Plaintiffs argue that there is no sufficient or 

plausible reason for the government to regulate such large contributions to such 

major purpose 527 organizations. (Id.) 

Similarly, Plaintiffs’ position is that citizens who become aware of such 

large contributions would believe that such support would have no impact on the 

views of the legislators benefited by those donations or the ability of the donor to 

gain a favorable audience for that donor’s views. The realities of electoral politics, 

as demonstrated in the election cycles before the enactment of BCRA’s limitations 

on “soft money” contributions to political parties, belies that assertion. As one 

former Senator testified in the District Court in McConnell: 

Too often, Members’ first thought is not what is right or 

what they believe, but how it will affect fundraising. 

Who, after all, can seriously contend that a $100,000 

donation does not alter the way one thinks about–and 

quite possibly votes on–an issue? . . . When you don’t 

pay the piper that finances your campaigns, you will 

never get any more money from that piper. Since money 

is the mother’s milk of politics, you never want to be in 

that situation. 

540 U.S. at 149 (citation omitted) (internal quotation marks omitted). One of the 

core holdings of both Buckley and McConnell is that the primary purpose of the 

laws regulating campaign finance was to “‘limit the actuality and appearance of 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 25
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corruption resulting from large individual financial contributions.’” Id. at 120 

(quoting Buckley, 424 U.S. at 26). Similarly, Plaintiffs assume that even when 

citizens become aware that unlimited contributions are being made to political 

committees devoted to federal electoral activity they would believe that such 

support would have no impact on the legislative process or the ability of such big 

donors to have special influence with elected officials. It seems unlikely that many 

citizens would take this view. 

If existing contribution limitations were lifted, major purpose political 

committees would be particularly attractive conduits for influence peddling efforts. 

Unlike 501(c) organizations whose political activities are sharply limited, the 

“major purpose” – by definition – of the major purpose organizations subject to 

FECA’s contribution restrictions is support of or opposition to specific candidates. 

The Court in Buckley emphasized one key requirement as the basis for the Court’s 

conclusion that contributions to such groups can be constitutionally limited – that 

these groups must be operated in a manner that clearly demonstrates that their 

intention is to elect or defeat candidates for federal office. Enunciated as the 

“major purpose” test, the Court in Buckley held that such groups cannot be 

regulated by the FEC unless their “major purpose” is the election or defeat of a 

clearly identified candidate for federal office. 424 U.S. at 79. This central holding 

of Buckley has been followed by the courts in the intervening years, and used 

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extensively by the FEC in evaluating enforcement matters. See, e.g., In re Swift 

Boat Veterans and POWs for Truth, FEC Matter Under Review (“MUR”) 5511, 

5525 (Dec. 13, 2006), available at http://eqs.sdrdc.com/eqsdocs/00005900.pdf; In 

re Progress for Am. Voter Fund, FEC MUR 5487 (Feb. 28, 2007), available at

http://eqs.sdrdc.com/eqsdocs/00005AA7.pdf; In re Media Fund, FEC MUR 5440 

(Nov. 19, 2007), available at http://eqs.sdrdc.com/eqsdocs/000066D5.pdf; In re 

League of Conservation Voters 527, FEC MUR 5753 (Dec. 13, 2006), available at

http://eqs.sdrdc.com/eqsdocs/00005905.pdf. 

As studies of recent elections have demonstrated, these kinds of 527 groups 

have raised enormous sums of money for their candidates and, further, have often 

had close ties to candidates and political parties. See, e.g., Richard Briffault, The 

527 Problem . . . and the Buckley Problem, 73 Geo. Wash. L. Rev. 949, 965-66 

(2005). Were the source and amount limitations that apply to contributions to such 

major purpose groups to be struck down, one could expect that large contributors 

seeking political influence could use such groups to circumvent contribution 

limitations to candidates and political parties. As Professor Briffault’s article in 

the George Washington Law Review recounted, during the 2004 presidential 

election campaign, a total amount of $405 million, nearly one-fifth of all money 

spent on the presidential election, came from eighty-eight different Section 527 

organizations. Briffault, 73 Geo. Wash. L. Rev. at 960; accord S. Weissman & R. 

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Hassan, BCRA and the 527 Groups at 81, in The Election After Reform: Money, 

Politics, and the Bipartisan Campaign Reform Act (Michael J. Malbin ed., 2005) 

(cited in Speechnow.Org v. FEC, 567 F. Supp. 2d 70, 74 (D.D.C. 2008). The same 

non-partisan organization – the Campaign Finance Institute (“CFI”) – that was 

cited by the District Court and relied upon by the experts in the record below 

published similar analyses of the 2006 and 2008 federal election cycles. CFI found 

that during the 2006 congressional elections and the 2008 presidential election, 

such major purpose organizations raised and spent approximately $143 million and 

$202 million, respectively. S. Weissman and S. Sazawal, Press Release, The 

Campaign Finance Institute, Soft Money Political Spending by 501(c) Nonprofits 

Tripled in 2008 Election (Feb. 25, 2009), available at

http://www.cfinst.org/pr/prRelease.aspx?ReleaseID=221. And while the amount 

raised and contributed by 527s decreased overall in the most recent elections, it 

still was in the hundreds of millions and represented a significant piece of the 

campaign finance picture. 

In addition to the sheer amount of money that these kinds of organizations 

have raised and spent during federal election cycles, there are other reasons to 

believe that if existing regulations on contributions to major purpose groups were 

struck down, very large contributions that raise the prospect of the corruption and 

the appearance of corruption of federal officeholders would inevitably result. The 

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structure of these organizations would allow them to become “mere vehicles for 

large contributions to aid candidates.” (J.A. at 1036, 1052-53, Expert Report of 

Professor Clyde Wilcox (“Wilcox Report”) at 9, 25-26.) 

Many political committees are clearly committed to supporting the candidates of 

just one or the other of the major political parties. Of the sixty-four organizations listed 

by the Campaign Finance Institute in 2009 that raised or spent more than $200,000 in the 

2008 election cycle, only one organization was listed that did not have an affiliation with 

either the Republican or Democratic party. The 2004 presidential cycle also 

demonstrated the interrelationship between many Section 527 groups and the formal 

leadership of political parties. Briffault, 73 Geo. Wash. L. Rev. at 965-66. 

The Plaintiffs before this Court demonstrate this same pattern of intersecting 

circles. The president and treasurer of SpeechNow, Plaintiff David Keating, is also the 

executive director of the Club for Growth, a prominent Republican leaning non profit. 

Club for Growth’s president is a former Congressman who was also the Indiana Finance 

Chairman for Mitt Romney’s presidential campaign. Club for 

Growth, http://www.clubforgrowth.org/aboutus/?subsec=0&id=14 (last visited Dec. 17, 

2009). As a general matter, in recent elections, party operatives and consultants have 

shifted between party jobs, campaigns, and interest groups – sometimes holding more 

than one position simultaneously – to such a degree that major purpose organizations 

were essentially considered “shadow” political parties. (J.A. at 1036, Wilcox Report at 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 29
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9); Speechnow.Org, 567 F. Supp. 2d at 74. Such major purposes entities, therefore, are 

ideally situated to effectively use contributions for expenditures that fill in the gaps in 

campaign and party efforts, all without illegally “coordinating” their efforts with the 

actual parties and campaigns. 

Finally, although legally “independent” from candidate campaigns and political 

parties, there are substantial overlaps of both donors and operational personnel among the 

527 political committees, the parties, and the candidates. According to the CFI, “[f]or 

nearly all of the $75,000 and over donors [during the 2008 election cycle], [a contribution 

to a] 527 was part of a broader election strategy that included very substantial donations 

of ‘hard money’ to candidates, parties and PACs.” Weissman and Sazawal, supra. This 

is reaffirmed by the testimony adduced in McConnell in which a former party official 

described the election landscape before the additional regulation of soft money: 

Once you've helped a federal candidate by contributing 

hard money to his or her campaign, you are sometimes 

asked to do more for the candidate by making donations 

of hard and/or soft money to the national party 

committees, the relevant state party (assuming it can 

accept corporate contributions), or an outside group that 

is planning on doing an independent expenditure or issue 

advertisement to help the candidate's campaign. 

McConnell, 540 U.S. at 125 n.15 (citation omitted) (internal quotation marks 

omitted). While BCRA certainly created restrictions that were not present during 

the heyday of political party soft money dominance, donations to major purpose 

political committees, like SpeechNow, that solicit donations with the stated 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 30
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intention of defeating particular candidates raise the same risk of corruption as 

donations to candidates and parties. 

Just this year in Caperton v. Massey, 129 S.Ct. 2252 (2009), the Supreme 

Court acknowledged that unregulated large contributions to an independent 

expenditure organization could result in influence-buying, or the appearance 

thereof. In Caperton, an individual whose corporation was involved in a case 

before the West Virginia Supreme Court donated $2.5 million to a 527 

organization that made independent expenditures in support of a candidate for 

election to the West Virginia Supreme Court. The individual also spent an 

additional $500,000 in the form of independent expenditures in support of the 

candidate. The Supreme Court held that these expenditures created a "risk of 

actual" bias, and required the judge to recuse himself from the case. Caperton, 129 

S.Ct. at 2264-65. 

To illustrate this risk of corruption, one can look to the example of states that 

have state campaign finance regulatory regimes that look very much like what the 

Plaintiffs are proposing here – no contribution limits on donations to political 

committees that make exclusively independent expenditures in state races. In 

those states, independent expenditure committees often served as ready conduits 

through which individuals have managed to circumvent contribution limits to 

candidate committees. In California, for example, there are no limits on the 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 31
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amount of money an individual can contribute to a committee that engages solely 

in making independent expenditures.6

 Cal Gov. Code § 85303(c). During 

California’s 2006 gubernatorial primary the contribution limit was $22,300.7

Despite these limits, Californians for a Better Government, an independent 

expenditure organization, made all its expenditures, totaling nearly $10,000,000, in 

support of one candidate for state treasurer, Phil Angelides. (J.A. at 1039, Wilcox 

Report at 12.) More than eighty percent of these expenditures were paid for by 

two individuals, Angelo Tsakopoulos and his daughter Eleni Tsakopoulos. (Id.) 

Although, technically these expenditures were not coordinated with Angelides, it is 

implausible that he did not know the identity of the contributors or the amount of 

spending made on his behalf. 

Clearly those contributors who wish to gain influence over public officials 

will use all avenues available to gain access to those officials through direct and 

indirect funding for their campaigns. (J.A. at 1038, 1040, Wilcox Report at 11, 13.) 

Accordingly, an effective scheme of federal campaign finance regulation that 

 

6

 Under California law, “‘Independent expenditure’ means an expenditure made by 

any person in connection with a communication which expressly advocates the 

election or defeat of a clearly identified candidate . . . or taken as a whole and in 

context, unambiguously urges a particular result in an election but which is not 

made to or at the behest of the affected candidate or committee.” Cal Gov Code § 

82031. 

7

 http://www.fppc.ca.gov/bulletin/statelimhistory.pdf 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 32
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reduces corruption and its appearance by limiting contributions must apply to 

contributions to all of these entities – candidates, parties, and major purpose 

political committees.8

C. Nothing about the Proposed Committee or in the Record Before 

this Court Brings it Outside this Regulatory and Constitutional 

Framework. 

Plaintiffs nevertheless argue that their proposed independent expenditures 

should remove them from longstanding restrictions of contributions to “major 

purpose” political committees. But the fact that they would spend their funds 

alongside – rather than contribute to – the parties and candidates does nothing to 

remove the corruption danger posed by the contributions they receive. Their 

ability to produce advertisements supporting or attacking federal candidates would 

free up scarce hard money resources for more direct campaign-related expenses. 

Indeed, such an unregulated pot of money would bring back the very corruption 

that Congress and the Court have worked so hard to prevent. Yet, according to 

Plaintiffs, the Constitution does not permit Congress to place any limits on the size 

of contributions to this type of organization. 

 

8

 Should this Court have any concerns about the adequacy of the record before it 

on the nature and depth of the legitimate governmental interest in preventing 

corruption and the appearance of corruption posed by this case, Amici would 

respectfully join with Defendant FEC to urge the Court to remand the case to the 

District Court for more in depth fact-finding and, if desirable, additional discovery. 

(See Def. FEC Br. at 58-61.) 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 33
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As the Court said in a slightly different context in McConnell: 

Congress also made a prediction. Having been taught the 

hard lesson of circumvention by the entire history of 

campaign finance regulation, Congress knew that softmoney donors would react to [limits on certain soft 

money donations] by scrambling to find another way to 

purchase influence. It was “neither novel nor 

implausible,” for Congress to conclude that political 

parties would react to [those limits] by directing softmoney contributors to the state committees, and that 

federal candidates would be just as indebted to these 

contributors as they had been to those who had formerly 

contributed to the national parties. We “must accord 

substantial deference to the predictive judgments of 

Congress,” particularly when, as here, those predictions 

are so firmly rooted in relevant history and common 

sense. Preventing corrupting activity from shifting 

wholesale to state committees and thereby eviscerating 

FECA clearly qualifies as an important governmental 

interest. 

McConnell, 540 U.S. at 165 (citations omitted). There is no basis for this Court to 

second-guess Congress’s predictions about the corruption that would result from 

the loophole that Plaintiffs propose to open. 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 34
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Conclusion 

Preventing corrupting activity from shifting wholesale to nominally 

independent organizations and thereby eviscerating FECA’s longstanding and 

clearly constitutional limits on individual contributions in federal election 

campaigns, Amici submit, clearly also qualifies as an important governmental 

interest. For that reason the decision of the District Court should be affirmed. 

December 21, 2009 

Respectfully submitted, 

 /s/ Howard R. Rubin 

Howard R. Rubin 

Michael A. Zolandz 

John R. Feore III 

Sonnenschein Nath & Rosenthal LLP 

1301 K Street, N.W. 

Suite 600, East Tower 

Washington, DC 20005-3364 

202 408-9164 

hrubin@sonnenschein.com 

Of Counsel: 

Devereux Chatillon 

Nicholas Tardif 

Sonnenschein Nath & Rosenthal LLP 

1221 Avenue of the Americas 

New York, NY 10020 

212 398-8494 

dchatillon@sonnenschein.com 

Belinda L Harrison 

Sonnenschein Nath & Rosenthal LLP 

4520 Main Street, Suite 1100 

Kansas City, MO 64111-7700 

Attorneys for Amici Curiae the Brennan Center for Justice at NYU 

School of Law and Professor Richard Briffault 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 35
 

Certificate of Counsel Pursuant to Circuit Rule 29(d) 

Amici’s participation in this case and the filing of this separate brief is 

necessary for Amici to fully address the anti-corruption interests served by limiting 

contributions to political organizations that, technically-speaking, do not 

coordinate spending with candidates or political parties but make only independent 

expenditures. Involvement by Amici is of particular importance as the Brennan 

Center and Professor Briffault are uniquely positioned to explain that the 

challenged regulations are in fact essential to combating corruption and the 

appearance thereof. Indeed, Professor Briffault’s legal scholarship on this subject 

was cited as persuasive authority by the District Court in its decision in this case 

denying the Plaintiffs-Appellants’ request for a preliminary injunction. See 

Speechnow.Org v. FEC, 567 F. Supp. 2d 70, 73 n.4 & 75 (D.D.C. 2008). Amici’s 

participation would allow us to point the Court to other relevant scholarship, and to 

explain how other legal precedent further bolsters this body of scholarship. 

 /s/ Howard R. Rubin 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 36
 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because the brief contains 5,856 words, excluding 

the parts of the brief exempted by Rule 32(a)(7)(B)(iii) and D.C. Circuit Rule 

32(a). This brief complies with the typeface requirements of Rule 32(a)(5) and the 

type style requirements of Rule 32(a)(6) because this brief has been prepared in 

proportionately spaced typeface using Microsoft Word 2003, in 14-point Times 

New Roman. 

 /s/ Howard R. Rubin 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 37
 

CERTIFICATE OF SERVICE

 I hereby certify that on December 21, 2009, the foregoing Amicus Brief of 

the Brennan Center for Justice at NYU School of Law and Professor Richard 

Briffault was served electronically by using the court’s electronic filing system or 

first class U.S. Mail, postage pre-paid, according to the service preference report 

for this case, which is as follows: 

Service Preference Report

Case Number: 09-5342 Service Preference

Alan Page Dye 

Webster, Chamberlain & Bean 

1747 Pennsylvania Avenue, NW 

Suite 1000 

Washington, DC 20006 

US Mail 

David Brett Kolker 

Federal Election Commission 

(FEC) 

999 E Street, NW 

Washington, DC 20463 

Email 

Heidi K. Abegg 

Webster, Chamberlain & Bean 

1747 Pennsylvania Avenue, NW 

Suite 1000 

Washington, DC 20006 

Email 

Robert P. Frommer 

Institute for Justice 

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

Email 

Stephen Michael Hoersting 

Center for Competitive Politics 

124 West Street, South 

Alexandria, VA 22314 

US Mail 

Steven M. Simpson 

Institute for Justice 

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

Email 

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 38
 

Vivien Clair 

Federal Election Commission 

(FEC) 

999 E Street, NW 

Washington, DC 20463 

Email 

 __/s/ Howard R. Rubin___

Case: 09-5342 Document: 1221716 Filed: 12/21/2009 Page: 39