UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________ 

 ) 

REAR ADM. JAMES J. CAREY [Ret.], ) 

 ) 

KELLY S. EUSTIS, ) 

 ) 

NATIONAL DEFENSE PAC, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. 11-259-RMC 

) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_________________________________ ) 

_____________________________________________________ 

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTION 

______________________________________________________ 

Dan Backer (D.C. Bar No. 996641) 

 P.O. Box 75021 

 Washington, DC 20013 

 202.210.5431 

 dbacker@dbcapitolstrategies.com 

Stephen M. Hoersting* 

 700 E Schantz Ave 

 Dayton, OH 45419 

 937.623.6102 

 hoersting@gmail.com 

Benjamin T. Barr* 

10737 Hunting Lane 

Rockville, MD 20850 

 240.863.8280 

benjamin.barr@gmail.com 

Attorneys for Plaintiffs 

 *Admitted Pro Hac Vice 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 1 of 29
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TABLE OF CONTENTS 

 Page(s) 

ARGUMENT...................................................................................1 

I. The FEC Elides the Fact That EMILY’s List was a 

Challenge To Federal Contribution Limits................................2

II. The D.C. Circuit Examined CalMed at Length in 

EMILY’s List and Rejected the Same Arguments Made 

by the FEC Here.................................................................7

III. If Separate Bank Accounts Cure the Threat of Corruption 

in Mixed Purpose Non-Connected Committees, They must 

also Cure the Threat for Non-Connected Committees 

Like National Defense PAC...................................................10

IV. Plaintiffs Need Not Clone Themselves to Make 

Independent Expenditures....................................................12

V. Recognizing Cognizable Injuries in First Amendment 

Jurisprudence....................................................................14

A. Setting Speech Protective Standards..................................14

B. Applying the Correct First Amendment Standards 

to the FEC’s Arguments..................................................18

 

CONCLUSION.................................................................................24 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 2 of 29
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TABLE OF AUTHORITIES 

Cases Page(s) 

American-Arab Anti-Discrimination Committee v. Reno

70 F.3d 1045 (9th Cir. 1995) ......................................................... 18 

* Buckley v. Valeo, 424 U.S. 1, 24 n.25 (1976) ................................... passim

California Medical Ass’n v. FEC

453 U.S. 182, 198-99 n.19 (1981) (opinion of Marshall, J.) ..................... 7 

Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995)... 13 

Chaplaincy of Full Gospel Churches v. England 

454 F.3d 290, 301 (D.C. Cir. 2006).................................................. 17 

Citizens Against Rent Control v. City of Berkeley 

 454 U.S. 290, 296 (1981)............................................................. 15 

* Citizens United v. FEC, 130 S.Ct. 876, 889 (2010)............................. passim

Cohen v. California, 403 U.S. 15 (1971)............................................ 14 

Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009)......... 18 

Davis v. FEC, 554 U.S. 724 (2008).................................................. 13 

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)................................. 17, 21, 22 

Elrod v. Burns, 427 U.S. 347 (1976)................................................ 21 

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

FEC v. California Medical Assn., 502 F. Supp. 196 (1980)...................... 7 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263 (1986)....... 12, 14 

FEC v. Nat’l. Conservative PAC, 470 U.S. 480 (1985)............................10 

* FEC v. Wisconsin Right to Life, Inc. (“WRTL”), 540 U.S. 93 (2007)........ passim

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980)........................... 17 

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 

513 U.S. 527 (1995).................................................................... 15 

Meyer v. Grant, 486 U.S. 414, 424 (1988).......................................... 14, 20 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 3 of 29
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NAACP v. Alabama, 357 U.S. 449, 460 (1958).................................... 14 

National Treasury Employees Union v. U.S., 

927 F.2d 1253, 1254-55 (D.C. Cir. 1991)........................................... 17, 21 

New Mexicans for Bill Richardson v. Gonzales, 

64 F.3d 1495 (10th Cir. 1995)........................................................ 18 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).......................... 3, 17 

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 391 (1988)...... 14 

Wagner v. Taylor, 836 F.2d 566, 577 n.76 (D.C. Cir. 1987)..................... 17 

Codes, Rules and Statutes 

2 U.S.C. § 431(17)..................................................................... 5, 12 

2 U.S.C. § 431(4)....................................................................... 11 

2 U.S.C. § 431(8) ...................................................................... 11 

2 U.S.C. § 431(9) ...................................................................... 11 

2 U.S.C. § 434(a)....................................................................... 4, 11 

2 U.S.C. § 441(f) ....................................................................... 11 

2 U.S.C. § 441a......................................................................... 3, 6 

2 U.S.C. § 441a(a)(1)(C)...............................................................4, 23 

2 U.S.C. § 441a(a)(3).................................................................. 4, 23 

2 U.S.C. § 441b......................................................................... 2, 3, 6 

2 U.S.C. § 441d(a)..................................................................... 12 

11 CFR 100.16(b) ..................................................................... 9 

11 CFR 100.5(e)(2).................................................................... 9 

11 CFR 100.5(f)(2).................................................................... 9 

11 CFR 100.87(c)...................................................................... 9 

11 CFR 106.6........................................................................... 2, 4, 5 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 4 of 29
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11 CFR 106.6(f)(1)(i).................................................................. 5 

11 CFR 110.1(h)........................................................................ 8 

11 CFR 300.2(g)........................................................................6 

11 CFR 300.30(b)(3)(i)................................................................ 6 

11 CFR Part 114........................................................................8 

FEC Advisory Op. 2010-09 (Club for Growth), 2010 WL 3184267............7, 8 

Explanation and Justification, Contribution and Expenditure 

Limitations and Prohibitions, 52 FR 760, 765 (Jan. 9, 1987).................... 8 

Prohibited and Excessive Contributions: Non-Federal Funds or 

Soft Money, Final Rule, 67 Fed. Reg. 49064 at 49064-65 (July 29, 2002).... 3 

Defendants Opposition Memorandum............................................... passim

Plaintiffs Verified Complaint......................................................... 22 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 5 of 29
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ARGUMENT 

Introduction 

Plaintiffs are before this court seeking protection of their First Amendment rights 

to assemble together and speak out about political issues important to them. The Federal 

Election Commission (FEC) has responded to that request by listing, in exhaustive detail, 

a myriad of burdensome alternative ways Plaintiffs, or acquaintances of Plaintiffs might 

speak — even going so far as to suggest that National Defense PAC should clone itself 

to do so. While the Commission would demand that Plaintiffs suffer repeat injuries or 

undergo radical organizational changes—just to speak—the First Amendment does not 

countenance such demands. “The Government may not render a ban on political speech 

constitutional by carving out a limited exemption through an amorphous regulatory 

interpretation.” Citizens United v. FEC, 130 S.Ct. 876, 889 (2010). Here, this court 

faces a familiar trend in the FEC’s regulatory zeal—to deny the fundamental 

constitutional liberties of speakers while pointing to legions of burdensome alternatives 

to demonstrate why regulation, and not free speech, should reign supreme. In the wake 

of Citizens United and EMILY’s List, these arguments are unavailing. 

The crux of the Commission’s arguments boil down to two main points: (1) 

Plaintiffs are not injured because they should speak first and defend against criminal or 

civil enforcement second, and (2) a plentitude of FEC-approved ways to speak and 

associate adequately protect First Amendment interests here. The FEC’s tried and not so 

true arguments fail to account for controlling precedent from the Supreme Court’s 

campaign finance and First Amendment jurisprudence that favor Plaintiffs’ request for 

injunctive relief in this matter. 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 6 of 29
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I. The FEC Elides the Fact That EMILY’s List was a Challenge to Federal 

Contribution Limits 

Plaintiffs rely on EMILY’s List to demonstrate that the Constitution compels the 

relief they request. But the FEC frames EMILY’s List as a controversy about allocation 

regulations and not about the constitutional reach of speech-limiting contribution statutes. 

Specifically, the FEC claims that, unlike this case, “EMILY’s List involved a challenge to 

Commission regulations—not to any statutory provisions of FECA—governing how 

funds contributed for nonfederal activity could be spent [and] how certain ‘mixed’ federal 

and nonfederal activity could be financed.” Opp’n Memo. at 17, 20. Plaintiffs will 

demonstrate, however, that EMILY’s List’s challenge to the allocation regulations of 11 

CFR 106.6 was necessarily a challenge to the contribution limits (and source restrictions) 

of the Federal Election Campaign Act (FECA), and that the holding in EMILY’s List is 

not dicta. EMILY’s List prevents the FEC from enforcing contribution limits against a 

non-connected committee that uses separate accounts to speak independently about 

federal candidates. 581 F.3d 1, 12 (D.C. Cir. 2009). The Supreme Court’s opinion in 

Citizens United, 130 S. Ct. 876 (2010), prevents the FEC from enforcing the corporate 

source prohibition of 2 U.S.C. § 441b against non-connected committees for the same 

communications. See EMILY’s List, 581 F.3d at 12 n.11 (“If Austin were overruled, then 

non-profits would be able to make unlimited express-advocacy expenditures from their 

soft-money accounts even if they accepted donations from for-profit corporations or 

unions to those accounts.”).

It is important for this Court to understand, despite the FEC’s repeated suggestion, 

that the term “non-federal funds” does not merely mean “state funds,” though non-federal 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 7 of 29
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funds happen to finance state elections in many instances. Rather, the term “non-federal 

funds,” like its synonym “soft money,” is shorthand for a precise definition. It defines 

funds the FEC has no authority to restrict, whether or not a state has authority to restrict 

them, either because the FECA does not restrict those funds or because those funds 

further speech that the FEC cannot restrict under the First Amendment to the U.S. 

Constitution.1

 See Federal Election Commission, “Prohibited and Excessive 

Contributions: Non-Federal Funds or Soft Money,” Final Rule, 67 Fed. Reg. 49064 at 

49064-65 (July 29, 2002) (term “non-federal funds” is preferable to the term “soft 

money” but each denotes “unregulated funds” or funds regulated only “under state law”). 

 The FEC concedes that in challenging the allocation regulations EMILY’s List 

challenged the line between “federal” and “non-federal” funds. Opp’n Memo. at 19. 

However, by challenging the federal funds percentage as too high, EMILY’s List was 

necessarily arguing that the FEC’s regulations had in fact reached funds the FEC had no 

authority to restrict at all. After all, the FEC restricts the receipt of funds in two ways: It 

either 1) limits the contributions an organization receives pursuant to 2 U.S.C. § 441a, or 

it 2) prohibits the receipt of funds from certain sources altogether; pursuant to 2 U.S.C. § 

441b. 

In determining which funds FEC regulations could legitimately reach, the 

EMILY’s List Court by necessity had to determine what activities the FEC had the power 

to reach at all. The Court correctly held that the FEC may restrict only those funds that 

the Supreme Court has ruled can corrupt candidates as a matter of law. 581 F.3d at 6. 

 

1

 Here is an example of where the funds are “non-federal” (a.k.a “soft money”) but the activity furthered 

appears to be federal: An individual gives money to an organization above a contribution limit for 

independent expenditures in favor of a candidate to federal office. See Citizens United v. FEC, 130 S. Ct. 

876 (2010); SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 8 of 29
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With this as its standard, the D.C. Circuit held that those funds that EMILY’s List accepts 

for contributions to candidates may be restricted as to source and amount. 581 F.3d at 

12. Funds accepted to administer contributions to candidates may also be restricted. Id. 

But all other funds may not be so restricted (even though they must be reported under 2 

U.S.C. 434(a)). Id. This led the D.C. Circuit Court of Appeals to hold that “a non-profit 

that makes expenditures and makes contributions to candidates” is “entitled to make their 

expenditures ... out of a[n] account that is not subject to source and amount limitations.” 

EMILY’s List, 581 F.3d at 12 (emphasis added). The reference to “amount limitations” is 

a reference to the contribution limits of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). It is 

these contribution-limit statutes that provide the FEC’s authority for its (flawed) 

regulation at 11 CFR 106.6. Much as the FEC might wish this away, there is no other 

conclusion. 

The FEC suggests that its advisory opinion process honors the holding in 

EMILY’s List “by permitting groups to maintain one political committee to accept limited 

funds for contributions to federal candidates, and also establish a second political 

committee to accept unlimited contributions for independent expenditures.” Opp’n 

Memo. at 21. Citizens United eclipses the Commission’s reasoning because a “PAC is a 

separate association.” 130 S. Ct. at 897. That a separate, distinct legal entity may speak 

does nothing to cure the constitutional injuries at hand. Id. 

The FEC goes on to argue that while the EMILY’s List opinion did decide where 

federal activity ends and non-federal activity begins, the opinion can have no bearing on 

a committee like NDPAC that engages in federal activity (contributions) and still other 

federal activity (independent expenditures). Opp’n. Memo. at 20. In deciding which 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 9 of 29
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activities were “non-federal,” the EMILY’s List Court had to determine the outer reach of 

federal campaign funding restrictions. It freed the organization of restrictions on funds 

that would be used to make independent expenditures. The definition of “independent 

expenditure” includes federal candidates. See 2 U.S.C. 431(17) (“independent 

expenditure” means expressly advocating the election or defeat of a federal candidate). 

Independent expenditures clearly are, as the FEC would have it, federal activity. Yet, 

there is no doubt that the EMILY’s List Court permitted those expenditures to be made 

with 100% “non-federal funds”—that is, with “soft money”; that is, with unrestricted

funds. The essence of the FEC’s argument is that the EMILY’s List opinion might help a 

non-connected committee determine what funds it can raise to communicate in, say, 

gubernatorial races, but it offers no relief to non-connected committees that want to make 

independent expenditures about federal candidates. Opp’n. Memo. at 22. Not only does 

the FEC’s argument deny the very logic of the EMILY’s List opinion, it denies its very 

words. EMILY’s List, 581 F.3d at 12. 

 The error can be exposed fully by Plaintiffs speaking the FEC’s language. The 

FEC claims that the EMILY’s List case merely challenged the allocation regulations for 

non-connected committees at 11 CFR 106.6 but not FECA’s contribution limits. Opp’n. 

Memo. at 17. While on the books, section 106.6 required that “(1) The following shall be 

paid 100 percent from the Federal account of the nonconnected committee: (i) Public 

communications that refer to one or more clearly identified federal candidates.” See 11 

CFR 106.6(f)(1)(i) (invalidated as unconstitutional in EMILY’s List, 581 F.3d at 25). 

Invalidating section 106.6, the EMILY’s Court held that independent public 

communications that refer to one or more clearly identified federal candidates can be paid 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 10 of 29
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100 percent from the non-federal account. The court held it unconstitutional for the FEC 

to require that those communications be paid from the federal account. 581 F.3d at 12. 

But what is the “federal account”? It is an account made up of funds received 

under the contribution limits of 2 U.S.C. § 441a and the source restrictions of 2 U.S.C. § 

441b. See 11 CFR 300.30(b)(3)(i) (“Only contributions that are permissible pursuant to 

the limitations and prohibitions of the [Federal Election Campaign] Act may be deposited 

into any Federal account.”); see also 11 CFR 300.2(g) (“Federal funds mean funds that 

comply with the limitations, prohibitions, and reporting requirements of the Act”). 

Because the section 106.6 allocation rested on the limits and restrictions of 2 U.S.C. §§ 

441a and 441b, the EMILY’s List case was effectively an as-applied challenge to the 

scope of FECA’s contribution limits and source prohibitions. 

No matter how the FEC seeks to recast the issue, it is true that EMILY’s List

protects the right of non-connected committees to accept unrestricted funds into a 

separate account to make independent expenditures about federal candidates. 581 F.3d at 

12. The EMILY’s List holding is not dicta. Because NDPAC is a non-connected 

committee like EMILY’s List, the opinion is binding on the case at hand. 

II. The D.C. Circuit Examined CalMed at Length in EMILY’s List and Rejected 

the Same Arguments Made by the FEC Here 

The FEC submits “accepting plaintiffs’ view of EMILY’s List would require the 

Court to ignore or decline to follow the Supreme Court’s decision in CalMed.” Opp’n 

Memo at 22. The argument is remarkable when one considers the depth to which 

EMILY’s List considers and integrates the CalMed opinion. See EMILY’s List, 581 F.3d 

at 12 (“[n]on-profits may be compelled to use their hard-money accounts to pay an 

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appropriately tailored share of administrative expenses associated with their 

contributions”) (quoting California Medical Ass’n v. FEC, 453 U.S. 182, 198-99 n.19 

(1981) (opinion of Marshall, J.)). 

The FEC goes out of its way to argue that CalMed already decided the 

constitutionality of applying contribution limits to a political committee that makes both 

contributions to candidates and independent expenditures. The FEC makes this argument 

despite EMILY’s List’s holding that a non-connected committee “that makes expenditures 

to support federal candidates does not suddenly forfeit its First Amendment rights when it 

decides also to make direct contributions to ... candidates.” 581 F.3d at 12. It makes this 

argument despite CalMed’s footnote 17, in which the plurality noted an amicus brief that 

claimed the contribution limit “would violate the First Amendment if construed to limit 

the amount individuals could jointly expend to express their political views.” 453 U.S. at 

197 n.17. And, the FEC makes the argument despite the plurality’s explanation that, 

“[c]ontributions to such committees are therefore distinguishable from expenditures made 

jointly by groups of individuals in order to express common political views.” Id.

The FEC believes that if it can just find independent expenditures in the record of 

the CalMed case then nothing stated in EMILY’s List or Citizens United can vindicate 

Plaintiffs’ claim. The FEC argues that "contrary to plaintiffs’ suggestion, ‘CALPAC 

ma[de] contributions to and expenditures on behalf of candidates in state and federal 

elections.’ FEC v. Cal. Med. Ass’n, 502 F. Supp. 196, 198 (N.D. Cal. 1980) (emphasis 

added)." Opp’n Memo. at 17 n.3. The FEC’s memorandum equates "expenditures on 

behalf of" candidates with independent expenditures. But that is inconsistent with the 

CalMed opinion and the FEC’s position in AO 2010-09 (Club for Growth). 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 12 of 29
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Plaintiffs can find nothing in the record to support the assertion that California 

Medical Association actually made independent expenditures calling for the election or 

defeat of a federal candidate or that the funding of independent expenditures was the 

issue in the case.2

 What’s more, the FEC has elsewhere maintained that expenditures “on 

behalf of” does not mean “independent expenditures,” it means “coordinated 

expenditures,” which are treated as in-kind contributions. In AO 2010-09, the FEC made 

the following statement: 

The Commission’s current regulation at 11 CFR 110.1(h) limits a person that has 

already contributed to a specific candidate from also contributing to an 

unauthorized political committee if the contributor "give[s] with the knowledge 

that a substantial portion will be contributed to, or expended on behalf of, that 

candidate for the same election." Section 110.1(h) "governs the circumstances 

under which contributions to a candidate and his or her authorized campaign 

committee(s) must be aggregated with contributions to other political committees 

for the purposes of the contribution limits of section 110.1." Explanation and 

Justification, Contribution and Expenditure Limitations and Prohibitions, 52 FR 

760, 765 (Jan. 9, 1987). In other words, the Commission’s earmarking regulation 

is designed to prevent the circumvention of contribution limits. 

However, the Club has represented that the Committee will not, itself, make any 

contributions or transfer any funds to any political committee if the amount of a 

contribution to the recipient committee is governed by the Act, nor will the 

Committee make any coordinated communications or coordinate any 

expenditures with any candidate, authorized committee, political party committee, 

or agent of such persons. Thus, because there is no possibility of circumvention of 

any contribution limit, section 110.1(h) and its rationale do not apply to the 

Committee’s solicitations or any contributions it receives that are earmarked for 

specific independent expenditures. 

 

2

 Plaintiffs are aware of no evidence of independent expenditures made by the California Medical 

Association in the record. See generally FEC v. California Medical Assn., 502 F. Supp. 196 (1980). 

Rather, the record shows the association making in-kind contributions to CALPAC in excess of $5000 per 

year to cover the expense of CALPAC employees. Id. One would think that CALPAC was the separate 

segregated fund of California Medical Association, which would permit the association to pay CALPAC’s 

administrative expenses. See 11 CFR Part 114. It appears, however, that CALPAC was established as a 

non-connected committee able to accept contributions from the general public. This made the association’s 

payment for CALPAC’s administrative expenses impermissible in-kind contributions. But plaintiffs can 

find no evidence that the Association made independent expenditures or that the CalMed Court ruled it is 

permissible to restrict funds that would finance them. See California Medical Ass’n v. FEC, 453 U.S. 182 

(1981). 

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AO 2010-09 at 5 (emphasis added). From this it is clear that an expenditure "on behalf 

of" a candidate is an in-kind contribution, not an independent expenditure. See also 

Buckley v. Valeo, 424 U.S. 1, 24 n.25 (1976) (“Expenditures by persons or associations 

that are ‘authorized or requested’ by the candidate ... are treated as contributions under 

the Act.”). This seems supported by the numerous occurrences of "on behalf of" in the 

federal regulations. See, e.g., 11 CFR §§ 100.5(e)(2) and (f)(2), 100.16(b), 100.87(c). 

Thus, the Club for Growth's Independent Expenditure-PAC was free to accept earmarked 

contributions to be used for independent expenditures because they were not expenditures 

“on behalf of” the candidate. Absent further evidence, it seems fair to assume that the 

quote the FEC cites (Opp’n. Memo. at 17 n.3) indicates that the California Medical 

Association was making in-kind contributions by paying bills on behalf of CALPAC, not 

making independent expenditures. The FECs reliance on CalMed is wholly misplaced. 

III. If Separate Bank Accounts Cure the Threat of Corruption in Mixed Purpose 

Non-Connected Committees, They must also Cure the Threat for NonConnected Committees Like NDPAC 

If separate bank accounts are adequate to prevent the corruption of federal 

candidates for mixed purpose non-connected committees, they are adequate to prevent 

corruption here. The FEC does not explain how a mixed purpose non-connected 

committee may swell with soft money in one account and not corrupt candidates, but that 

a non-connected committee that would accept unrestricted funds into a separate account 

for independent expenditures suddenly poses a threat of corruption. The FEC’s argument 

is nonsensical. 

The FEC also argues that “[t]he creation of separate bank accounts does not 

eliminate the potential for individuals, groups, corporations, or unions to try to leverage 

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unlimited donations as a means to pressure an organization to direct contributions to 

particular federal candidates.” Opp’n. Memo. at 16. Actually, it does. The reason is 

simple. The same individuals, groups, corporations, or unions could try to leverage 

unlimited donations to the state side of the non-connected committee and achieve the 

same result the FEC fears with independent expenditures. Yet, this prospect does not 

trouble the FEC, as it cannot: Mixed purpose non-connected committees have a right to 

speak without restriction where they pose no the threat of corruption. See generally 

Buckley v. Valeo, 424 U.S 1 (1976). Is it the FEC’s position that a corporation could give 

unlimited amounts to a non-connected committee for gubernatorial races and not sway 

the committee’s decision makers on candidate contributions, but that the moment the 

same corporation gave generously for independent expenditures the committee’s decision 

makers would lose their integrity? 

There is another aspect of the argument this Court should consider: The FEC’s 

remedy here is to stifle NDPAC’s independent expenditures. The FEC argues that 

Plaintiffs’ robust exercise of their rights to independent speech from one account will 

sway the decision of which candidates will receive contributions from another account. 

Therefore, argues the FEC, NDPAC and its supporters must renounce their right to robust 

independent speech by subjecting themselves to contribution limits and source 

prohibitions to ensure that NDPAC’s contributions to federal candidates—made from 

another account, subject to limits, to source restrictions, and to thorough reporting 

requirements—are truly the decision of Admiral James Carey. This is hardly a 

compelling interest. See FEC v. Nat’l. Conservative PAC, 470 U.S. 480 (“[a] restriction 

on the amount of money a ... group can spend on political communications ... 

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necessarily reduces the quantity of expression.”) It surely can be met by the less 

burdensome requirement that NDPAC report its every receipt and disbursement as 

required under 2 U.S.C. § 434(a). 

 Earmarking contributions is already illegal. 2 U.S.C. § 441f. The biennial 

aggregate limit on contributions to all political committee accounts that, in turn, go to 

candidates ensures that no one donor will assert too much influence. See Buckley, 424 

U.S. at 264. The FEC’s position—that NDPAC forfeits its rights to independent speech 

when it makes contributions to candidates—is contrary to the holding in EMILY’s List

and untenable. 

IV. Plaintiffs Need Not Clone Itself to Make Independent Expenditures 

The FEC argues that “requiring NDPAC to create a separate political committee 

to accept unlimited contributions to make independent expenditures will increase full and 

clear disclosure of NDPAC’s federal campaign activity.” Opp’n. Memo. at 27. Requiring 

Plaintiffs to establish and administer two political committees is unnecessarily 

burdensome. See Citizens United v. FEC, 130 S. Ct. 876 (2010). And it ignores the fact 

that plaintiff NDPAC is already a political committee under 2 U.S.C. 431(4). NDPAC 

not only reports every (federal) “contribution” it accepts, see 2 U.S.C. 431(8), and every 

(federal) “expenditure” it makes, see 2 U.S.C. § 431(9), it also reports every (non-federal) 

receipt and disbursement. See 2 U.S.C. 434(a). The FEC cannot argue that funds will go 

unreported if NDPAC does not clone itself and Adm. Carey is not forced to administer 

two committees. Every receipt and disbursement will be reported. Nonetheless, the FEC 

argues that people may better understand the reports if one political committee would 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 16 of 29
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handle the independent expenditures and another the contributions. With due respect to 

the FEC, the argument is nonsense: non-connected committees may currently make 

independent expenditures, which are quickly reported and readily understood. And, 

whatever its merit, the FEC’s argument does not justify restricting funds for NDPAC’s 

independent expenditures, essentially saying that NDPAC may speak as loudly as it 

wants so long as it only speaks as loudly as the FEC permits. Assuming, arguendo, there 

is some benefit in requiring all political committees to create sister committees to handle 

their independent expenditures, such is the prerogative of Congress. 

 Furthermore, any public communication by NDPAC that contains express 

advocacy will contain a disclaimer. See 2 U.S.C. 441d(a). The definition of 

“independent expenditure” subsumes express advocacy, see 2 U.S.C. § 431(17), and is 

the kind of communications NDPAC would make if it prevails. 

 The FEC says Adm. Carey is qualified to operate two political committees. 

Opp’n Memo. at 27. Plaintiffs note that seasoned political operative, David Bossie, of 

Citizens United, is no less qualified. But that fact hardly constitutes a legitimate, let 

alone compelling, governmental interest. See Citizens United, 130 S. Ct. at 897 

(establishing a PAC is burdensome); FEC v. Massachusetts Citizens for Life, Inc., 479 

U.S. 238, 263 (1986) (“While the burden on MCFL's speech [establishing a political 

committee] is not insurmountable, we cannot permit it to be imposed without a 

constitutionally adequate justification”). 

 As the FEC clings to its regulatory requirements, it misses important 

constitutional developments in First Amendment jurisprudence necessary for the 

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13 

disposition of this matter. Taking these considerations into view helps better illustrate 

why Plaintiffs’ request for injunctive relief should be granted. 

V. Recognizing Cognizable Injuries in First Amendment Jurisprudence 

The Commission maintains that Plaintiffs have not suffered enough injuries to 

warrant injunctive relief by this court. This position ignores the careful instruction given 

to the FEC in its recent trilogy of First Amendment losses before the Supreme Court. 

A. Setting Speech Protective Standards 

In response to Plaintiffs’ request for preliminary injunctive relief, the FEC is 

silent concerning salient First Amendment benchmarks applicable to this case. 

Following the FEC’s losses in Federal Election Comm’n v. Wisconsin Right to Life, Inc. 

(“WRTL”), 540 U.S. 93 (2007), Davis v. FEC, 554 U.S. 724 (2008), and Citizens 

United, several rules that give proper preference to the operation of the First Amendment 

must be integrated into this challenge. 

First Amendment case law recognizes that pre-enforcement challenges are 

entirely permissible, if not welcome. Where a challenged law targets speech by the class 

belonged to by plaintiffs, a credible threat of enforcement and corresponding injury 

exists. See Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) 

(FEC’s inability to affirmatively vote on an advisory opinion request confers standing 

because nothing “prevents the Commission from enforcing its rule at any time”); but see 

Opp’n Memo. at 35-36 n.10 (where the FEC suggests there is no harm because the 

Commission will probably not enforce this rule). A related rule holds that a party most 

assuredly may challenge a statute in the pre-enforcement context if “First Amendment 

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14 

rights are arguably chilled, so long as there is a credible threat of prosecution.” Chamber 

of Commerce, at 603-04. Because speakers might have to undergo costly compliance or 

risk prosecution, pre-enforcement challenges in the context of the First Amendment are 

appropriate. Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 391 (1988); but 

see Opp’n Memo. at 36 (where the FEC explains that Plaintiffs should risk investigations 

and litigation to speak). 

It should be recounted that a fundamental maxim of the Supreme Court’s First 

Amendment jurisprudence is that while speakers could employ other methods to 

disseminate their message, such a fact “does not take their speech . . . outside the bounds 

of First Amendment protection.” Meyer v. Grant, 486 U.S. 414, 424 (1988) (citing FEC 

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)). This then means that 

speakers not only possess the right to determine their message, but also to “select what 

they believe to be the most effective means for so doing.” Id; But see Opp’n Memo. at 

32 (detailing the many ways the FEC suggests Plaintiffs should associate and speak). 

This principle was confirmed most recently in WRTL, where the Court noted that 

instructing individuals that they may speak, but only in a manner the government 

approves, is “akin to telling Cohen that he cannot wear his jacket because he is free to 

wear one that says ‘I disagree with the draft.’” 551 U.S. at 477 n.9 (citing Cohen v. 

California, 403 U.S. 15 (1971)). 

The principles of Meyer and Hurley take especially strong force in the context of 

political speech – communication at the very core of the First Amendment. Buckley, 424 

U.S. at 39. It is when citizens unite that effective advocacy is had, as the Supreme Court 

has routinely protected the “close nexus” between freedoms of speech and assembly. 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 19 of 29
15 

NAACP v. Alabama, 357 U.S. 449, 460 (1958). The right to speak effectively proves 

crucial in the context of association, because it would be “diluted if it does not include 

the right to pool money through contributions, for funds are often essential if ‘advocacy’ 

is to be truly or optimally ‘effective.’” Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290, 296 (1981) (quoting Buckley, 424 U.S. at 65-66). 

These principles find their realization in Wisconsin Right to Life and Citizens 

United. In WRTL, the Supreme Court was careful to explain that while the FEC might 

expound about the many ways an organization could speak, such burdensome options 

did nothing to cure the constitutional maladies. WRTL, 551 U.S. at 477 n.9. While the 

FEC argued that a “PAC option” was sufficient to protect First Amendment speech, the 

Court explained that PACs “well-documented and onerous burdens, particularly on small 

nonprofits” did not cure the constitutional injuries at hand. Id. Similarly, while the 

speakers in WRTL might have availed themselves of other communication outlets, such 

alternatives might not be as effective. Id. As a result, they were no remedy to the real 

constitutional injuries suffered by the WRTL speakers. WRTL returned the Supreme 

Court’s jurisprudence to one favoring speech, not regulation. Id. at 482 (“we give the 

benefit of the doubt to speech, not censorship”). 

After the FEC lost WRTL, it went on to lose Citizens United by revamping its 

regulations to include a two-prong, eleven factor speech code – designed as a response to 

the WRTL Court’s admonition that speech tests must not rely on an “open-ended roughand-tumble of factors.” Id. at 451 (quoting Jerome B. Grubart, Inc. v. Great Lakes 

Dredge & Dock Co., 513 U.S. 527, 547 (1995)). The Court then offered another rule of 

hand: “The First Amendment does not permit laws that force speakers to retain a 

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campaign finance attorney, conduct demographic marketing research, or seek declaratory 

rulings before discussing the most salient political issues of our day.” Citizens United, 

130 S.Ct. at 889. Thus, a guiding principle emerges from Citizens United – the 

continued maintenance of complicated regulatory structures that inhibit First 

Amendment rights must fall if average speakers are to have their rights protected. 

In the wake of the Supreme Court’s speech-friendly precedent, most recently 

recognized in Wisconsin Right to Life and Citizens United, any review of First 

Amendment burdens must incorporate, not ignore, these principles. To wit, citizens 

facing overbroad provisions that smother and inhibit speech must have a remedy to 

protect their constitutional rights. This remedy is not found in piling burdensome 

alternatives on already-strained grassroots organizations like National Defense PAC. 

Nor is an adequate remedy found by demanding that citizens risk enforcement actions 

when they associate together about issues they care about and speak out to the public. 

Instead, it is the proper function of this court to ensure that Plaintiffs’ speech is not 

chilled and that their ongoing injuries to their First Amendment rights receive an 

appropriate remedy – injunctive relief. 

B. Applying the Correct First Amendment Standards to the 

FEC’s Arguments 

 The FEC submits that Plaintiffs have failed to meet the threshold standards to 

satisfy preliminary injunctive relief. Most specifically, it claims that Plaintiffs cannot 

demonstrate any cognizable irreparable injury. To make this claim, the FEC relies on 

cases resting outside of the special protection enjoyed by speakers under the First 

Amendment. For example, the FEC asserts that any “additional administrative burden of 

setting up a new political committee” is only “[m]ere injuries of money, time, and 

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energy.” Opp’n Memo. at 37 (internal quotations and citations omitted). Or having to 

“respond to an administrative enforcement proceeding would not create irreparable 

harm.” Id. How quickly the FEC forgets the lessons of Citizens United.3

The D.C. Circuit has held that when it comes to the First Amendment and 

preliminary injunctions, speakers must “establish they are or will be engaging in 

constitutionally protected behavior to demonstrate that the allegedly impermissible 

government action would chill allowable individual conduct.” Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006). Where plaintiffs have 

demonstrated that First Amendment rights are “either threatened or in fact being impaired 

at the time relief is sought,” irreparable harm will be demonstrated. National Treasury 

Employees Union v. U.S., 927 F.2d 1253, 1254-55 (D.C.Cir. 1991) (quoting Wagner v. 

Taylor, 836 F.2d 566, 577 n.76 (D.C.Cir. 1987)). More recently, while the Speechnow

district court denied preliminary injunctive relief based on a similar argument, the D.C. 

Circuit Court of Appeals reversed that ruling. 599 F.3d 686. 

The D.C. Circuit has likewise recognized the inherent difficulty in alleging 

irreparable harm in the context of the First Amendment, leading it to note what the Third 

Circuit has stated, that the “assertion of First Amendment rights does not automatically 

require a finding of irreparable injury . . . rather the plaintiffs must show ‘a chilling effect 

on free expression.’” Chaplaincy of Full Gospel Churches, 454 F.3d at 301 (internal 

citations omitted). Thus, where this chilling effect appears true, such allegations “clearly 

 

3

 The FEC bends over backwards to rely on non-speech oriented cases to substantiate its claim that no 

irreparable injury exists here. FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980), cited in the 

Opposition Memo on page 37, is a case that has nothing to do with constitutionally protected liberties. 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006), involved the 

Establishment Clause of the First Amendment, and did not concern itself with the special speech-protective 

rules applicable to political speech. 

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show irreparable injury.” Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). It is fair to 

state in the context of political speech being threatened by unconstitutional regulation and 

enforcement that a finding of irreparable injury is more easily met. See, e.g., Connection 

Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009); New Mexicans for Bill 

Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995) (First Amendment preenforcement challenges employ relaxed standards due to the “fear of irretrievable loss”); 

American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995) 

(explaining that joining “organizations that participate in public debate, making 

contributions to them, and attending their meetings are activities that enjoy substantial 

First Amendment protection” so that “the duration of a trial is an ‘intolerably long’ period 

during which to permit the continuing impairment of First Amendment rights”). In sum, 

courts are more apt to grant this form of extraordinary relief due to the high value of 

political speech under the Constitution. 

In Citizens United, even the Supreme Court explained that “When the FEC issues 

advisory opinions that prohibit speech, ‘[m]any persons, rather than undertake the 

considerable burden (and sometimes risk) of vindicating their rights through case-by-case 

litigation, will choose simply to abstain from protected speech—harming not only 

themselves but society as a whole, which is deprived of an uninhibited marketplace of 

ideas.” 130 S. Ct. at 896. In this challenge, the FEC could not muster four votes to issue 

an advisory opinion indicating that Plaintiffs would be safe associating and speaking in 

the manner contemplated, even though the holding of EMILY’s List demands so. Fearful 

of being investigated, fined, or imprisoned, Plaintiffs had no other remedy than to seek 

injunctive relief before this court. 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 23 of 29
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Oddly enough, the FEC submits that Plaintiffs have nothing to complain about – 

speakers can take their odds with a not-so-friendly-sounding “investigative proceeding” 

or enjoy the “institution of an enforcement suit” where they would have a “full 

opportunity to present their constitutional arguments.” Opp’n Memo. at 36. Under this 

unconstitutional game of First Amendment Russian Roulette, Plaintiffs could face 

criminal or civil penalties just for following this very advice. Chilling. Of course, the 

Commission’s position runs headlong into the Supreme Court’s instruction in Citizens 

United, where it explained that a “speaker’s ability to engage in political speech that 

could have a chance of persuading voters is stifled if the speaker must first commence a 

protracted lawsuit. By the time the lawsuit concludes, the election will be over and the 

litigants in most cases will have neither the incentive nor, perhaps, the resources to carry 

on.” Citizens United, 130 S. Ct. at 895. Déjà vu Citizens United. 

Without reference to the aforementioned principles, the FEC argues that if 

Plaintiffs are not willing to dance with the Enforcement Division, they “could fully 

accomplish their plans while this case proceeds” in at least four ways. Opp’n Memo. at 

32. First, the FEC contends that Plaintiff Eustis could donate less money to fund 

National Defense PAC’s independent expenditures because his funds could be comingled 

with those of NDPAC. Id. Second, NDPAC could accept the lower-amount contribution 

from Eustis and spend time fundraising to find additional money to perhaps, one day, 

enable it to produce its independent expenditures. Id. Third, NDPAC could “set up a 

separate entity that accepts contributions of unlimited amounts” – alleging that NDPAC’s 

First Amendment rights might be fungible and otherwise transferred to a separate 

organization. Id. Fourth, the FEC submits that NDPAC need not speak at all and that 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 24 of 29
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Eustis should be forced to pay for the advertisement himself. Id. Each of these 

arguments suffers from one fundamental flaw – they ignore the recognition of Plaintiffs’ 

full First Amendment rights. 

To argue, as the FEC does, that forcing individuals to speak less, spend less, or 

associate less adequately protects First Amendment interests puts an entirely new spin on 

“less is more.” It remains a basic principle that speakers are free to “select what they 

believe to be the most effective means for [communicating].” Meyer, 486 U.S. at 424. 

To demand that speakers do less, or that government possesses the authority to instruct 

free people how to communicate otherwise turns this principle on its head. In this matter, 

Plaintiffs have done exactly this – forming together as NDPAC and wishing to exercise 

their rights to speak out about Anthony Weiner and other candidates for federal office. 

The Supreme Court has affirmed just this right in Citizens United, itself explaining that 

the government “may not render a ban on political speech constitutional by carving out a 

limited exemption through an amorphous regulatory interpretation.” 130 S.Ct. at 889. In 

attempting to fashion four regulatory exemptions to explain how some members of 

NDPAC might speak runs against the Supreme Court’s holding in Citizens United. 

Plaintiffs’ full First Amendment rights must be recognized, not through an FEC 

regulatory exemption, but in realization that acts of speech and association are not 

inherently corrupt, but are, instead, inherently protected under the First Amendment.4

 

See WRTL, 551 U.S. at 457 (the “First Amendment requires us to err on the side of 

protecting political speech rather than suppressing it”). 

 

4

 Indeed, the Supreme Court noted that because the FEC’s “business is to censor, there inheres the danger 

that [it] may well be less responsive than a court – part of an independent branch of government – to the 

constitutionally protected interests in free expression.” Citizens United, 130 S. Ct. at 896. 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 25 of 29
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In this instance, it is members of National Defense PAC who would like to 

engage in independent expenditure campaigns while also making contributions from a 

separate account. To argue that one contributor to NDPAC may speak instead of the 

organization fully misses the constitutional argument at hand. To suggest that members 

might donate less money or that NDPAC should be forced to fundraise more in hopes of 

bringing in enough funding for its speech is likewise unavailing. National Defense PAC 

wishes to speak, unabridged in the manner it has selected, and cannot due to the 

challenged laws and the FEC’s interpretation of them. 

The FEC next focuses on an especially narrow construction of Elrod v. Burns, 

427 U.S. 347 (1976), in discussing the injuries at hand. The Commission seems to allege 

that because there are no specific threats of enforcement here and no “governmental 

action,” that no irreparable injury could be had. Opp’n Memo. at 33. But a narrow focus 

on the factual holding of Elrod is misplaced. The D.C. Circuit has held that when 

plaintiffs have demonstrated their First Amendment rights are “either threatened or in fact 

being impaired” irreparable harm will be demonstrated. National Treasury Employees 

Union, 927 F.2d at 1254-55. When a chilling effect has been demonstrated, these 

allegations “clearly show irreparable injury.” Dombrowski, 380 U.S. at 486. 

The Commission submits that its inability to issue an advisory opinion clearing 

Plaintiffs for the independent expenditure campaign they hoped to run does not work a 

cognizable injury in this case. Opp’n Memo at 33. Plaintiffs are not required to illustrate 

that they have been specifically threatened or are currently facing government 

investigation or enforcement to obtain injunctive relief. As Dombrowski holds, when 

“statutes also have an overbroad sweep . . . the hazard of loss or substantial impairment 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 26 of 29
22 

of those precious rights may be critical.” 380 U.S. at 486. To force Plaintiffs to step out 

on their own and risk enforcement actions by the FEC is not tolerated under controlling 

First Amendment case law. Citizens United, 130 S. Ct. at 896. 

In this challenge, Plaintiffs have established concrete, well-articulated plans to 

engage in a focused independent expenditure campaign as soon as they are legally 

permitted to do so. In fact, ¶ 24 of the Verified Complaint indicates that “as soon as 

possible” NDPAC would like to engage in an independent expenditure campaign directed 

against Anthony Weiner in New York’s Ninth Congressional District. VC at ¶ 24 

(emphasis added). Plaintiffs specifically included EXHIBIT F, which includes the 

proposed advertisement to be run on Newsmax. Id. Going further, National Defense 

PAC articulated its plans for additional independent expenditure campaigns in the near 

future, having contacted donors willing to give more than $5,000.00 per calendar year to 

finance such campaigns. Id. at ¶ 25. Plaintiffs NDPAC and Eustis articulated clear and 

concrete plans to engage in speech protected at the very core of the First Amendment, as 

well as association with other likeminded individuals, both now and in the near future. 

Id. at ¶¶ 26-29. 

Plaintiffs have satisfied well-established rules to demonstrate the need for 

injunctive relief in the context of the First Amendment. National Defense PAC, its 

members, and Plaintiff Eustis need not test the FEC’s enforcement division by engaging 

in its independent expenditure campaign risking fines or criminal penalties. Just the 

same, Plaintiffs need not exhaust burdensome FEC alternatives to its own plans to reach 

the public with its political message. In this challenge, that means allowing Plaintiff 

Eustis to donate beyond the $5,000.00 annual federal limit to be able to permit NDPAC 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 27 of 29
23 

to run advertisements about its views on Anthony Weiner. It also means that NDPAC 

should be permitted to keep two separate bank accounts for its independent expenditures 

and contributions, as detailed earlier.

CONCLUSION 

 For the foregoing reasons, the Court should grant Plaintiffs’ motion for 

preliminary injunction and enjoin the contribution limits contained in 2 U.S.C. §§ 

441a(a)(1)(C) and 441a(a)(3) and applicable regulatory requirements as they apply to 

Plaintiffs. 

 Dated: March 28, 2011 

 Respectfully submitted, 

 

_/s/ Dan Backer_____ _____________ 

Dan Backer (D.C. Bar No. 996641) 

P.O. Box 75021 

Washington, DC 20013 

202.210.5431 

dbacker@dbcapitolstrategies.com 

 

Stephen M. Hoersting* 

700 E Schantz Ave 

Dayton, OH 45419 

937.623.6102 

hoersting@gmail.com 

Benjamin T. Barr* 

10737 Hunting Lane 

Rockville, MD 20850 

240.863.8280 

benjamin.barr@gmail.com 

Attorneys for Plaintiffs 

*Admitted Pro Hac Vice

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 28 of 29
CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of March, 2011, I caused to be served this 

Reply Memorandum by electronic mail, pursuant to the agreement of counsel, upon the 

following counsel: 

Erin Chlopak 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

echlopak@fec.gov 

Dated: March 28, 2011 

Respectfully submitted, 

 

 _/s/ Dan Backer_____ _____________ 

Dan Backer (DC Bar No. 996641) 

 PO Box 75021 

 Washington, DC 20013 

 202. 210.5431 

 dbacker@dbcapitolstrategies.com 

Case 1:11-cv-00259-RMC Document 15 Filed 03/28/11 Page 29 of 29