United States District Court

District of Columbia

Shaun McCutcheon et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 1:12-cv-01034-JEB 

 THREE-JUDGE COURT REQUESTED

 ORAL ARGUMENT REQUESTED

Motion for Preliminary Injunction

Plaintiffs move for a preliminary injunction enjoining the Federal Election Commission

from enforcing the individual aggregate biennial contribution limits at 2 U.S.C. § 441a(a)(3) as

follows:

a. the limits on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B), as

applied to contributions to national party committees and facially, and

b. the limit on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A).

The Memorandum in Support of Motion for Preliminary Injunction explains why a preliminary

injunction should be granted. Oral argument is requested.

Plaintiffs have conferred with opposing counsel regarding this motion, and they oppose this

motion. LCvR 7(m).

Preliminary-Injunction Motion
Of Counsel for Shaun McCutcheon:

Stephen M. Hoersting*

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

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

Washington, DC 20003

202/210-5431 phone

202/478-0750 fax

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Jerad Wayne Najvar*

NAJVAR LAW FIRM

One Greenway Plaza, Suite 225

Houston, TX 77046

281/404-4696

jerad@najvarlaw.com

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Jeffrey P. Gallant*

jgallant@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application Filed

Preliminary-Injunction Motion
Certificate of Service

I hereby certify that the foregoing document was served on June 22, 2012 on the following

persons by this Court’s electronic case filing service (“ECF”) (as applicable), by First Class U.S.

Mail, and by a courtesy copy to Anthony Herman at aherman@fec.gov and Adav Noti at

anoti@fec.gov:

Anthony Herman, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

aherman@fec.gov

Counsel for Defendant FEC.

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

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

Washington, DC 20003
United States District Court

District of Columbia

Shaun McCutcheon et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 1:12-cv-01034-JEB 

 THREE-JUDGE COURT REQUESTED

 ORAL ARGUMENT REQUESTED

Memorandum in Support of

Motion for Preliminary Injunction

Of Counsel for Shaun McCutcheon:

Stephen M. Hoersting*

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

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

Washington, DC 20003

202/210-5431 phone

202/478-0750 fax

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Jerad Wayne Najvar*

NAJVAR LAW FIRM

One Greenway Plaza, Suite 225

Houston, TX 77046

281/404-4696

jerad@najvarlaw.com

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Jeffrey P. Gallant*

jgallant@bopplaw.com

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application Filed

Preliminary-Injunction Memorandum
Table of Contents

Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Plaintiffs Have Likely Merits Success.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. “The Closest Scrutiny” Is Required, Any Restriction Must Be No Broader than

Necessary, and Deference Is Subordinate to the Constitution... . . . . . . . . . . . . . . . . 5

B. (Count 1) The Biennial Limit on Contributions to Non-Candidate Committees

Lacks a Constitutionally Cognizable Interest as Applied to Contributions to

National Party Committees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Buckley’s Facial Upholding of the Now-Repealed “Overall $25,000 Ceiling” Does Not Control this Case, but Buckley’s Concerns Guide the Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Congress Fixed the Problems that Buckley Identified.. . . . . . . . . . . . . . . . . . . 10

3. In BCRA, Congress Repealed and Replaced the “Overall $25,000 Ceiling” with Multiple Biennial Contribution Limits... . . . . . . . . . . . . . . . . . . . . . 12

4. The $70,800 Biennial Contribution Limit Lacks a Cognizable Interest as

Applied to Contributions to National Party Committees.. . . . . . . . . . . . . . . . . 13

a. No Anti-Corruption Interest Applies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

b. No Anti-Circumvention Interest Exists.. . . . . . . . . . . . . . . . . . . . . . . . . . 14

(1) The Anti-Circumvention Interest and Remedy Are Limited in

Scope.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(2) Buckley Requires Examination of the Potential for Political-Committee Proliferation, “Massive” Contributions, and Conduit Capability... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Preliminary-Injunction Memorandum i
(3) Congress Imposed a Political-Committee-Proliferation Prophylaxis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

(4) Congress Imposed a Massive-Contribution Prophylaxis... . . . . . . . . 19

(5) Congress Imposed an Anti-Conduit Prophylaxis by Many

Prophylaxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

c. The Challenged Limit Relies on an Unconstitutional Equalizing Interest. . . . 30

C. (Count 2) The Biennial Limits on Contributions to Non-Candidate Committees

Are Facially Unconstitutional for Lacking a Cognizable Interest.. . . . . . . . . . . . . . 31

D. (Count 3) The Biennial Limits on Contributions to Non-Candidate Committees

Are Unconstitutionally Too Low, as Applied and Facially... . . . . . . . . . . . . . . . . . 32

E. (Count 4) The Biennial Limit on Contributions to Candidate Committees Lacks

a Constitutionally Cognizable Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

F. (Count 5) The Biennial Limit on Contributions to Candidate Committees Is

Unconstitutionally Too Low.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

II. Plaintiffs Have Irreparable Harm.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

III. The Balance of Harms Favors Plaintiffs... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

IV. The Public Interest Favors Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Preliminary-Injunction Memorandum ii
Table of Authorities

Cases

Arizona Free Enterprise PAC v. Bennett, 131 S. Ct. 2806 (2011). . . . . . . . . . . . . . . . . . . . . . . . 13

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). . . . . . . . . . . . . . . . . . . . . . . . 16

Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir.1998). . . . . . . 41

Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). . . . . . . . . . . . . . . . . 6

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

California Medical Association v. FEC, 453 U.S. 182 (1981). . . . . . . . . . . . . . . . 7, 11-12, 15, 36

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6, 13, 42

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006). . . . . . . . . . . . 43

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

Cobell v. Norton, 225 F.R.D. 41 (D.D.C. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996). . . . . . . . . . 14

Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir.1998).. . . . . . . . . . . . . . . . . . . . . . . . . . 41

Center for Individual Freedom, Inc. v. Ireland, 613 F. Supp. 2d 777 (S.D. W. Va. 2009).. . . . . 44

Davis v. FEC, 554 U.S. 724 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 37

Elrod v. Burns, 427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001). . . . . . . . . . 28

FEC v. National Conservative PAC, 470 U.S. 480 (1985). . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 23

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15, 43

Foster v. Dilger, No. 3:10-cv-00041, 2010 WL 3620238 (E.D. Ky. Sept. 9, 2010). . . . . . . . 42-44

Preliminary-Injunction Memorandum iii
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). . . . . . . . . . . 4

Joelner v. Village of Washington Park, 378 F.3d 613 (7th Cir.2004). . . . . . . . . . . . . . . . . . . 41, 43

Jones v. Caruso, 569 F.3d 258 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Martin–Marietta Corp. v. Bendix Corp., 690 F.2d 558 (6th Cir.1982).. . . . . . . . . . . . . . . . . . . . 44

McConnell v. FEC, 540 U.S. 93 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 16, 22, 23

Merrill Lynch, Pierce, Fenner & Smith v. Grall, 836 F. Supp. 428 (W.D. Mich. 1993).. . . . . . . 44

NAACP v. Alabama, 357 U.S. 449 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Newson v. Norris, 888 F.2d 371 (6th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Randall v. Sorrell, 548 U.S. 230 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 32-33, 35-37, 40

Republican Party of Minnesota v. White, 536 U.S. 765 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . 30

Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190 (9th Cir. 1953). . . . . 44

Sammartano v. First Judicial District Court, in and for County of Carson City, 303 F.3d 959

(9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 41

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Stenberg v. Cheker Oil Co., 573 F.2d 921 (6th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15

University of Texas v. Camenisch, 451 U.S. 390 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 44

Virginia v. Hicks, 539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33

Wagner v. FEC, No. 11-1841, 2012 WL 1255145 (D.D.C. April 16, 2012).. . . . . . . . . . . . . . . . . 7

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). . . . . . . . . . . . . . . . . . . . . . . . . 4

Yamada v. Kuramoto, 744 F. Supp. 2d 1075 (D. Haw. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Preliminary-Injunction Memorandum iv
Statutes, Rules, and Constitutions

11 C.F.R. 100.5(e)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11 C.F.R. 100.5(e)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20

11 C.F.R. 100.5(g)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 38

11 C.F.R. 100.5(g)(2)-(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 C.F.R. 100.5(g)(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 C.F.R. 101.1(a)-(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 101.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 102.12(c)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 36

11 C.F.R. 102.13(c)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

11 C.F.R. 110.1(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24

11 C.F.R. 110.2(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

11 C.F.R. 110.2(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

11 C.F.R. 110.3(b)(1)-(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 C.F.R. 110.3(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18

11 C.F.R. 110.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

11 C.F.R. 110.5(b)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

11 C.F.R. 110.5(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 C.F.R. 110.5(g)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 C.F.R. 110.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

11 C.F.R. 110.6... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 40

2 U.S.C. 432e(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Preliminary-Injunction Memorandum v
2 U.S.C. 441(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 U.S.C. 441a(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

2 U.S.C. 441a(a)(3)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

2 U.S.C. 441a(a)(3)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

2 U.S.C. 441a(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

2 U.S.C. 441a(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 27

2 U.S.C. 441a(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2 U.S.C. 441b(b)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2 U.S.C. 441f. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 40

26 U.S.C. 527.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 65(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Federal Election Campaign Act Amendments of 1974, Pub. L. 93-443, 88 Stat. 1263 (Oct.

15, 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475

(May 11, 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Federal Election Campaign Act of 1971 (“FECA”), Pub. L. No. 92-225, 86 Stat. 3 (1972). passim

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2d ed. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

FEC AO 2010-09 (Club for Growth).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

FEC, Congressional Candidates and Committees (Aug. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 28

FEC, Contributions Brochure (updated Feb. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28

Preliminary-Injunction Memorandum vi
FEC, Political Party Committees (July 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

FEC, The Biennial Contribution Limit (revised 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

FEC, 2012 Coordinated Party Expenditure Limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

H.R. Rep. No. 94-1057 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21

http://www.census.gov/main/www/cen2000.html.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Alicia Mundy & Sara Murray, Adelson Gives $10 Million to Pro-Romney Super PAC, Wall

St. J., June 13, 2012, http://blogs.wsj.com/washwire/2012/06/13/adelson-gives-10-

million-to-pro-romney-super-pac/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Anupama Narayanswamy, “Presidential campaign donors moving to super PACs,” Sunlight

Reporting Group (Apr. 26, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Preliminary-Injunction Memorandum vii
Introduction

This case challenges burdens on core political expression and association that are a forbidden “prophylaxis-on-prophylaxis,” FEC v. Wis. Right to Life, 551 U.S. 449, 479 (2007) (“WRTLII”) (controlling opinion). Plaintiffs move to preliminarily enjoin the Federal Election Commission (“FEC”) from enforcing the individual biennial (a) limits on contributions to non-candidate

committees at 2 U.S.C. 441a(a)(3)(B), as applied to contributions to national party committees

and facially, and (b) limit on contributions to candidate committees at 2 U.S.C. 441a(a)(3)(A).1, 2

The government must justify these limits under “the closest scrutiny” because they burden core

First Amendment rights. Buckley v. Valeo, 424 U.S. 1, 21-22, 24-25 (1976).

Facts

3

The FEC describes how the biennial contribution limits work as follows:

As an individual, you are subject to a biennial limit on contributions made to federal candi-

 This biennial-limits statute follows (2011-12, inflation-adjusted amounts in brackets): 1

(3) During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual maymake contributions aggregatingmore

than—

(A) $37,500 [$46,200], in the case of contributions to candidates and the authorized committees of candidates;

(B) $57,500 [$70,800], in the case of any other contributions, of which not more than

$37,500 [$46,200] may be attributable to contributions to political committees which are not

political committees of national political parties.

 Regarding terminology, Plaintiffs follow the FEC’s use of “candidate committee,” “na- 2

tional party committee,” and “political action committee” (“PAC”). See FEC, The Biennial Contribution Limit (revised 2011). “Candidate committee” includes “candidate” because candidates

(except for Vice President) must designate a principal campaign committee (and may designate

additional authorized political committees), 11 C.F.R. 101.1(a)-(b), and receive any contributions

as agents of their authorized committee(s), 11 C.F.R. 101.2. The cited brochure uses “state, local

& district party committee,” but “state party committee” will be used here to include local and

district party committees, unless context contraindicates, because all share a $10,000 per calendar

year combined limit. Plaintiffs do not follow the FEC’s use of “biennial contribution limit” to

refer to all limits at 2 U.S.C. 441a(a)(3) because the statute contains multiple limits.

 Facts are set out in greater detail in the Verified Complaint (“VC”). 3

Preliminary-Injunction Memorandum 1
dates, party committees and political action committees (PACs). The limit is in effect for a

two-year period beginning January 1st of the odd-numbered year and ending on December 31st

of the even-numbered year. 11 CFR 110.5.

The biennial limit is indexed for inflation in odd-numbered years. The 2011-12 limit is

$117,000. This limit includes up to: [4]

• $46,200 in contributions to candidate committees; and

• $70,800 in contributions to any other committees, of which no more than $46,200 of this

amount may be given to committees that are not national party committees. 11 CFR

110.5(b)(1).

* * *

Moreover, within this biennial limit on total contributions, an individual may not exceed

the specific limits placed on contributions to different types of committees, as illustrated in the

contribution limits chart later in this brochure.

* * *

Individual Limits for 2011-2012

Recipient Federal Committee Limit

Candidate Committee $2,500* per candidate, per election[FN5]

National Party Committee $30,800* per calendar year

State, Local & District Party Committee $10,000 per calendar year (combined limit)[FN6]

Political Action Committee $5,000 per calendar year

* These contribution limits are indexed for inflation in odd-numbered years. . . .

[FN5] A primary, runoff and general are each considered separate elections.

[FN6] Because local party committees are presumed to be affiliated with the party’s state

committee, a contribution to a local party committee counts against the contributor’s limit for

the state party. 11 CFR 110.3(b)(3).

FEC, The Biennial Contribution Limit (some footnotes omitted).

Plaintiff McCutcheon would contribute $25,000 each to the Republican National Committee

(“RNC”), the National Republican Senatorial Committee (“NRSC”), and the National Republican Congressional Committee (“NRCC”) before the November 2012 election but for the biennial

contribution limit at 2 U.S.C. 441a(a)(3)(B) (currently $70,800). VC ¶¶ 11, 34-37. In this biennium, Mr. McCutcheon has already given $1,776 each to RNC, NRSC, and NRCC, $2,000 to a

 While this $117,000 limit is the sum of limits for candidate committees and non-candidate 4

committees, those limits are statutorily independent, so their sum is not a separate statutory limit.

Thus, there are properly biennial contribution limits, not a biennial contribution limit. If any limit

is unconstitutional, this $117,000 limit lacks statutory authority and is unenforceable.

Preliminary-Injunction Memorandum 2
federal PAC, and $20,000 to the federal fund of a state party committee, VC ¶ 35-36, all of

which count against his $70,800 biennial limit. McCutcheon challenges the limits at 2 U.S.C.

441a(a)(3)(B) as unconstitutional, as applied to contributions to national party committees and

facially. He wants to express his support for, and to associate with, any non-candidate committees of his choice to the full extent permitted by the base contribution limits at 2 U.S.C.

441a(a)(1)(B)-(D) without restriction by any biennial contribution limits. VC ¶ 38.

Plaintiff McCutcheon also challenges the biennial limit on contributions to candidates at 2

U.S.C. 441a(a)(3)(A) (currently $46,200). He has already given contributions to federal candidates totaling $33,088 and verified his intent to give $21,312 in further contributions to federal

candidates, for a biennial aggregate of $54,400, which he would do but for the $46,200 biennial

contribution limit. VC ¶¶ 24-31. He wants to express his support for, and to associate with, any

and all candidates of his choosing to the full extent permitted by the base contribution limit at 2

U.S.C. 441a(a)(1)(A) without restriction by the biennial contribution limit. VC ¶ 33.

Plaintiff RNC is a “political committee[] established and maintained by a national political

party” under 2 U.S.C. 441a(a)(1)(B) and (3)(B), i.e., it is a national party committee. VC ¶ 12.

RNC challenges the $70,800 biennial contribution limit on non-candidate contributions at 2

U.S.C. 441a(a)(3)(B) as unconstitutional, as applied to contributions to national party committees

and facially, VC ¶¶ 39-58, because it wants to receive the speech and association of McCutcheon

and other contributors to the full extent permitted by the base contribution limit at 2 U.S.C.

441a(a)(1)(B) without restriction by any biennial contribution limit. VC ¶ 39, 41.

Defendant FEC is the government agency with enforcement authority over the Federal Election Campaign Act of 1971 (“FECA”), Pub. L. No. 92-225, 86 Stat. 3 (1972), as amended, 2

U.S.C. 431 et seq., and the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No.

Preliminary-Injunction Memorandum 3
107-155, 116 Stat. 81 (2002).

In the future, Plaintiffs intend to do materially similar actions if not limited by the biennial

contribution limits. If Plaintiffs do not obtain the requested relief, they will not proceed with their

planned activities and will be deprived of their First Amendment rights and suffer irreparable

harm. There is no adequate remedy at law.

Argument

The preliminary-injunction standards are as follows:

A plaintiff seeking a preliminary injunction must establish that:

(a) he is likely to succeed on the merits;

(b) he is likely to suffer irreparable harm in the absence of preliminary relief;

(c) the balance of equities tips in his favor; and

(d) an injunction is in the public interest.

Carey v. FEC, 791 F. Supp. 2d 121, 128 (D.D.C. 2011) (citing Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)). Though Plaintiffs establish each standard below, the FEC actually has the burden of justifying the limits because “the burdens at the preliminary injunction

stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 429 (2006). The government “must do more than simply posit the existence of the

disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (internal citation omitted). In First

Amendment cases, once likely merits success is established, the other standards logically follow.

See, e.g., Sammartano v. First Judicial District Court, in and for County of Carson City, 303

F.3d 959, 973-74 (9th Cir. 2002). This Court “may grant a preliminary injunction ‘to preserve the

relative position of the parties until trial on the merits,’” Carey, 791 F. Supp. at 128 (quoting

University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). The “relative position” to preserve

Preliminary-Injunction Memorandum 4
is the FEC not enforcing the challenged limits against Plaintiffs. See id. at 125, 127-28.

I. Plaintiffs Have Likely Merits Success.

Plaintiffs have a likelihood of success on the merits. This criterion “is the most critical” in

granting a preliminary injunction in this First Amendment challenge. Id. at 128.

A. “The Closest Scrutiny” Is Required, Any Restriction Must Be No Broader than Necessary, and Deference Is Subordinate to the Constitution.

The biennial contribution limits substantially burden core political activity protected by the

First Amendment rights of free expression and association, so they must be justified by the government under “the closest scrutiny” and any restriction must “avoid unnecessary abridgement of

associational freedoms.” Buckley, 424 U.S. at 21-22, 24-25. Buckley held that contribution limits

pose lesser First Amendment burdens than do expenditure limits and so imposed what has been

interpreted as lower scrutiny on contributions. Compare 424 U.S. at 23 (“expenditure ceilings

impose significantly more severe restrictions on protected freedoms of political expression and

association”) with id. at 25 (contribution limits require “sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms”) and id.

at 44-45 (“exacting scrutiny applicable to limitations on core First Amendment rights of political

expression”). In McConnell v. FEC, 540 U.S. 93, 141 (2003), the Court said, “we apply the less

rigorous scrutiny applicable to contribution limits.” 540 U.S. at 141. More recently, the Court has

imposed higher “strict scrutiny” on “laws that burden political speech,” Citizens United v. FEC,

130 S.Ct. 876, 898 (2010) (citation omitted) (emphasis added), albeit in the context of a political

speech ban. Plaintiffs challenge any lowered scrutiny of limits on campaign contributions as unconstitutional and, to the extent that Buckley is interpreted as imposing lowered scrutiny on contribution limits than on expenditure limits, expressly call for the reconsideration of Buckley on

Preliminary-Injunction Memorandum 5
that issue. Since the base contribution limits, 2 U.S.C. 441a(a)(1), already establish contribution 5

limits for contributors, added biennial contribution limits are more appropriately deemed expenditure limits, subject to strict scrutiny. In Carey, this Court applied strict scrutiny to the challenges to a base contribution limit at 2 U.S.C. 441a(a)(1)(C) ($5,000 per year to PACs) and to the

biennial contribution limits at 2 U.S.C. 441a(a)(3)(B) as applied to contributions to the

independent-expenditures-only account of a PAC. 791 F. Supp. 2d at 128. This Court decided

that “[l]aws that burden political speech are ‘subject to strict scrutiny.’” Id. (quoting Citizens

United, 130 S.Ct. at 898). Strict scrutiny requires the Government to prove that the restriction

furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens United,

130 S. Ct. at 898. Here the biennial contribution limits similarly “burden” First Amendment

rights, so strict scrutiny should apply.

But even under intermediate scrutiny, Plaintiffs have likely success on the merits. In

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), the D.C. Circuit considered whether a

base contribution limit and the biennial contribution limits were constitutional as applied to an

independent-expenditures-only PAC (an “IE-PAC” or “super PAC”), noting that “[p]laintiffs . . .

argue that Citizens United stands for the proposition that ‘burdensome laws trigger strict scrutiny.’” Id. at 695-96 (citation omitted). The court found it unnecessary to decide because, absent

any cognizable interest, “[n]o matter which standard of review governs contribution limits, the

limits on contributions cannot stand.” Id. at 696. That analysis applies here.

Plaintiffs preserve this argument for the U.S. Supreme Court, whose members have de5

bated whether lower scrutiny is proper for contribution limits and other burdens on political association. See Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 192 n.12 (1999);

id. at 206, 214 (Thomas, J., concurring in the judgment); Randall v. Sorrell, 548 U.S. 230, 242-

44 (2006) (plurality); id. at 263 (Alito, J., concurring in part and concurring in judgment); id. at

264 (Kennedy, J., concurring in judgment); id. at 266 (Thomas, J., joined by Scalia, J., concurring in judgment).

Preliminary-Injunction Memorandum 6
 Whatever scrutiny applies, there is a no-broader-than-necessary tailoring requirement. The

controlling opinion in California Medical Association v. FEC, 453 U.S. 182 (1981) (“CMA”),

required “that contributions to political committees can be limited only if those contributions implicate the governmental interest in preventing actual or potential corruption [he included derivative circumvention], and if the limitation is no broader than necessary to achieve that interest.”

Id. at 203 (Blackmun, J., concurring in part and in the judgment). This reaffirms Buckley’s requirement that “[a] restriction that is closely drawn must nonetheless ‘avoid unnecessary abridgement of associational freedoms.’” Wagner v. FEC, No. 11-1841, 2012 WL 1255145, at *6

(D.D.C. April 16, 2012) (quoting Buckley, 424 U.S. at 25).

And whatever scrutiny applies, deference to Congress must yield to the First Amendment. In

McConnell, 540 U.S. at 137, the Court deferred to Congress. But Citizens United subordinated

deference to the Constitution—“When Congress finds that a problem exists, we must give that

finding due deference; but Congress may not choose an unconstitutional remedy,” 130 S.Ct. at

911—and limited McConnell’s deference to Congress’s broad concept of “corruption” (e.g., access and gratitude) to the soft-money context, see id. at 910-11.

B. (Count 1) The Biennial Limit on Contributions to Non-Candidate Committees Lacks a

Constitutionally Cognizable Interest as Applied to Contributions to National Party

Committees.

RNC and Mr. McCutcheon challenge the $70,800 (currently) biennial limit on contributions

to non-candidate committees at 2 U.S.C. 441a(a)(3)(B) as unconstitutional (under the First

Amendment rights to free speech and association) as applied to contributions to national party

committees for lacking a cognizable interest. VC ¶ 84-105 (Count 1).

Preliminary-Injunction Memorandum 7
1. Buckley’s Facial Upholding of the Now-Repealed “Overall $25,000 Ceiling” Does

Not Control this Case, but Buckley’s Concerns Guide the Analysis.

“[FECA]’s contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” Buckley, 424 U.S. at 14. The association right is protected:

The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958),

stemmed from the Court’s recognition that “(e)ffective advocacy of both public and private

points of view, particularly controversial ones, is undeniably enhanced by group association.”

Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee

“‘freedom to associate with others for the common advancement of political beliefs and ideas,’”

a freedom that encompasses “‘(t)he right to associate with the political party of one’s choice.’”

Id. at 15 (citations omitted). “Making a contribution, like joining a political party, serves to affiliate a person with a candidate [or a political party]. In addition, it enables like-minded persons to

pool their resources in furtherance of common political goals.” Id. at 22.

Despite high constitutional protection for contributions, Buckley rejected a facial constitutional challenge to an “overall $25,000 ceiling” on total contributions. Id. at 38. (The statute limited contributions per year, but treated non-election-year contributions as made in the following

election year. Id. at 189.) This holding does not control here because: (a) that ceiling’s statutory

context was materially altered, see infra; (b) the ceiling was repealed and replaced by BCRA’s

multiple biennial limits, see 2 U.S.C. 441a(a)(3); and (c) Buckley was a facial holding (so inapplicable to as-applied challenges here). But the concerns on which Buckley relied to facially uphold the old ceiling control the analysis here, and those concerns were promptly eliminated by

Congress. Key to the analysis is the fact that the 1974 FECA contribution-limits scheme considered in Buckley included only the following applicable contribution limits, then codified at 18

U.S.C. 608, see Buckley, 424 U.S. at 189 (contribution-limit provision quoted at VC ¶ 88 n.3):

• a $1,000 per election limit on contributions by a “person” to a candidate;

• a $5,000 per election limit on contributions by what would now be called a multi-candiPreliminary-Injunction Memorandum 8
date political committee to a candidate; and

• an individual, biennial overall $25,000 ceiling on total contributions.

That FECA scheme lacked limits on contributions to political committees other than the

“overall $25,000 ceiling” on total contributions. Without that ceiling, individuals could give unlimited amounts to political party committees and unlimited PACs. Also missing was a restriction on the proliferation of political committees controlled by the same entities. Buckley upheld

the ceiling facially, in that context, with this limited analysis:

The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates

and committees with which an individual may associate himself by means of financial support.

But this quite modest restraint upon protected political activity serves to prevent evasion of the

$1,000 contribution limitation by a person who might otherwise contribute massive amounts of

money to a particular candidate through the use of unearmarked contributions to political

committees likely to contribute to that candidate, or huge contributions to the candidate’s

political party. The limited, additional restriction on associational freedom imposed by the

overall ceiling is thus no more than a corollary of the basic individual contribution limitation

that we have found to be constitutionally valid.

Id. (emphasis added). Essential to this analysis is the Court’s earlier highlighting of the politicalcommittee-proliferation potential, which, the Court expressly noted (regarding the tailoring of the

limit on contributions to candidates), left “persons free . . . to assist to a limited but nonetheless

substantial extent in supporting candidates and committees with financial resources [FN31].” Id.

at 28. The Court expanded on the potential for political-committee proliferation (including corporate and union “separate segregated funds,” see 2 U.S.C. 441b(b)(2)(C)) thus:

[FN31] While providing significant limitations on the ability of all individuals and groups to

contribute large amounts of money to candidates, the Act’s contribution ceilings do not foreclose the making of substantial contributions to candidates by some major special-interest

groups through the combined effect of individual contributions from adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime

example, § 610 permits corporations and labor unions to establish segregated funds to solicit

voluntary contributions to be utilized for political purposes. Corporate and union resources

without limitation may be employed to administer these funds and to solicit contributions from

employees, stockholders, and union members. Each separate fund may contribute up to $5,000

per candidate per election so long as the fund qualifies as a political committee under

Preliminary-Injunction Memorandum 9
§ 608(b)(2). . . . 

The Act places no limit on the number of funds that may be formed through the use of

subsidiaries or divisions of corporations, or of local and regional units of a national labor

union. The potential for proliferation of these sources of contributions is not insignificant. In

1972, approximately 1,824,000 active corporations filed federal income tax returns. . . . In the

same year, 71,409 local unions were chartered by national unions. . . .

The Act allows the maximum contribution to be made by each unit’s fund provided the

decision or judgment to contribute to particular candidates is made by the fund independently

of control or direction by the parent corporation or the national or regional union.

Buckley, 424 U.S. at 28 n.31 (emphasis added; citations omitted).

So the analytical keys to Buckley’s facial upholding were the potential for circumvention of

the base limits on contribution to candidates by massive contributions to the candidate’s politi6

cal party and to a proliferation of sympathetic PACs. Congress promptly eliminated politicalcommittee proliferation and massive contributions to political parties and PACs, removing the

bases on which Buckley upheld the “overall $25,000 ceiling” on contributions, as discussed next.

2. Congress Fixed the Problems that Buckley Identified.

In response to Buckley, Congress quickly enacted new base contribution limits, 2 U.S.C.

441a(a)(1), limiting contributions to political party committees and to PACs to eliminate the possible circumvention risk identified by Buckley with “massive” contributions, as follows:

• a $1,000 per election limit on contributions by persons to a candidate;

• a (new) $20,000 per year limit on contributions by persons to a national party committee;

• a (new) $5,000 per year limit on contributions by persons to other political committees;

• limits on contributions by a “multicandidate committee”7 as follows—

- $5,000 per election to a candidate,

- (new) $15,000 per year to a national party committee, and

 Only “large” contributions pose a cognizable risk: “To the extent that large contributions 6

are given to secure a political quid pro quo from current and potential office holders, the integrity

of our system of representative democracy is undermined.” Id. at 26-27 (emphasis added).

 These limits are only for multicandidate committees, i.e., those recognized as political com- 7

mittees for 6 months, receiving contributions from over 50 persons, and contributing to 5 or more

candidates. 11 C.F.R. 100.5(e)(3). So a single-candidate committee, 11 C.F.R. 100.5(e)(2), or

other non-multicandidate committee would be limited as any other “person.”

Preliminary-Injunction Memorandum 10
- (new) $5,000 per year to any other political committee; and

• the “overall $25,000 ceiling” on total individual biennial contributions.

See FECA Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (1976) (quoted at VC ¶ 92

n.6). And Congress eliminated the proliferation of political committees. See infra at 13. While

eliminating Buckley’s reasons for upholding the “overall $25,000 ceiling,” Congress retained it.

The $5,000 per year limit on contributions to a PAC was upheld in CMA, based on a circumvention risk. 453 U.S. at 197-99 (plurality); id. at 203 (Blackmun, J., concurring in part and in

judgment). The plurality recited legislative history explaining that the 1976 amendments were to 8

eliminate circumvention and political-committee proliferation:

[FN18] The Conference Report on the provision in the 1976 amendments to the Act that became

§ 441a(a)(1)(C) specifically notes:

“The conferees’ decision to impose more preciselydefined limitations on the amount an individual may contribute to a political committee, other than a candidate’s committees, and to impose

new limits on the amount a person or multicandidate committee may contribute to a political

committee, other than candidates’ committees, is predicated on the following considerations:

first, these limits restrict the opportunity to circumvent the $1,000 and $5,000 limits on contributions to a candidate; second, these limits serve to assure that candidates’ reports reveal the

root source of the contributions the candidate has received; and third, these limitations minimize

the adverse impact on the statutory scheme caused by political committees that appear to be

CMA involved an enforcement action against CMA for contributing more than the permit- 8

ted amount to the California Medical PAC. CMA argued that individuals and associations should

be able to contribute unlimited amounts to a multicandidate PAC, to which the plurality replied:

If appellants’ position . . . is accepted, . . . . [s]ince multicandidate political committees may

contribute up to $5,000 per year to any candidate . . . , an individual or association seeking to

evade the $1,000 limit on contributions to candidates could do so by channelling funds through

a multicandidate political committee. Similarly, individuals could evade the $25,000 limit on

aggregate annual contributions to candidates if they were allowed to give unlimited sums to

multicandidate political committees, since such committees are not limited in the aggregate

amount they may contribute in any year. These concerns prompted Congress to enact § 441a(a)

(1)(C), and it is clear that this provision is an appropriate means by which Congress could seek

to protect the integrity of the contribution restrictions upheld . . . in Buckley.

CMA, 453 U.S. at 197-99 (plurality) (emphasis added; footnote omitted). This statement about

the “$25,000 limit” does not control here because (a) it is not a court opinion; (b) it does not deal

with the new 2002 biennial contribution limits; and (c) the ceiling’s constitutionality was not at

issue. And because the Court upheld the base limit on contributions to PACs to eliminate “circumvention,” Buckley’s concerns in upholding the overall ceiling were eliminated.

Preliminary-Injunction Memorandum 11
separate entities pursuing their own ends, but are actually a means for advancing a candidate’s

campaign.”

CMA, 453 U.S. at 198 n.18 (emphasis added; citation omitted).

The Conference Report described the new anti-proliferation rules as follows:

The anti-proliferation rules established by the conference substitute are intended to prevent

corporations, labor organizations, or other persons or groups of persons from evading the

contribution limits of the conference substitute. Such rules are described as follows:

1. All of the political committees set up by a single corporation and its subsidiaries are

treated as a single political committee.

2. All of the political committees set up by a single international union and its local unions

are treated as a single political committee.

3. All of the political committees set up by the AFL-CIO and all its State and local central

bodies are treated as a single political committee.

4. All the political committees established by the Chamber of Commerce and its State and

local Chambers are treated as a single political committee.

5. The anti-proliferation rules stated also apply in the case of multiple committees established by a group of persons.

H.R. Rep. No. 94-1057, at 58 (1976) (Conf. Rep.) (available on WestLaw).

Thus, Congress eliminated the concerns on which Buckley relied to facially uphold the old

“overall $25,000 ceiling.” A contributor cannot give “massive” amounts of money to a political

committee. Political-committee proliferation is gone. There is no cognizable circumvention risk.

3. In BCRA, Congress Repealed and Replaced the “Overall $25,000 Ceiling” with

Multiple Biennial Contribution Limits.

The challenged biennial contribution limits were enacted as BCRA § 307(b), 116 Stat. 102-

03, amending FECA § 315(a)(3) by repealing the old “overall $25,000 ceiling” and replacing it

with separate biennial contribution limits. Supra note 1 (text of 2 U.S.C. 441a(a)(3)). So

Buckley’s facial upholding of the old ceiling does not control here. And the new limits are no

more justified than the old ceiling after the 1976, post-Buckley, FECA amendments.

Preliminary-Injunction Memorandum 12
4. The $70,800 Biennial Contribution Limit Lacks a Cognizable Interest as Applied

to Contributions to National Party Committees.

The $70,800 biennial limit on contributions to non-candidate committees at 2 U.S.C.

441a(a)(3)(B) is unconstitutional as applied to national party committees.

a. No Anti-Corruption Interest Applies.

“[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” FEC v. National

Conservative PAC, 470 U.S. 480, 496-97 (1985) (“NCPAC”). Corruption is strictly defined:

“Elected officials are influenced to act contrary to their obligations of office by the prospect of

financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id. at 497. Citizens United reaffirmed that corruption involves only quid-pro-quo corruption; it rejected influence, access, gratitude, and leveling the political playing field as cognizable corruption. 130 S.Ct. at 909-12. See

also Arizona Free Enterprise PAC v. Bennett, 131 S.Ct. 2806, 2821 (2011) (rejecting equalizing

interest); Davis v. FEC, 554 U.S. 724, 742 (2008) (same).

The anticorruption interest does not apply to contributions to national party committees because “‘[t]his anticorruption interest is implicated by contributions to candidates.’” Carey, 791 F.

Supp. 2d at 129 (quoting EMILY’s List v. FEC, 581 F.3d 1, 6 (D.C. Cir. 2009)) (emphasis in EMILY’s List). Cognizable quid-pro-quo corruption is based on a financial benefit to a particular

candidate in such a “large” amount, Buckley, 424 U.S. at 26 (anticorruption interest triggered by

“large contributions”), as to cause a candidate “to act contrary to [his or her] obligations of office,” Citizens United, 130 S.Ct. at 497. National party committees are not candidates.

National party committees pose no cognizable quid-pro-quo-corruption risk to their candiPreliminary-Injunction Memorandum 13
dates as stated by three Justices in Colorado Republican Federal Campaign Committee v. FEC,

518 U.S. 604 (1996) (“Colorado-I”), who said, “We are not aware of any special dangers of corruption associated with political parties . . . .” Id. at 616 (“Breyer, J., joined by O’Connor &

Souter, JJ.). Another three agreed:

As applied in the specific context of campaign funding by political parties, the anti-corruption

rationale loses its force. . . . What could it mean for a party to “corrupt” its candidate or to

exercise “coercive” influence over him? The very aim of a political party is to influence its

candidate’s stance on issues and, if the candidate takes office or is reelected, his votes. When

political parties achieve that aim, that achievement does not, in my view, constitute “a subversion of the political process.”

Id. at 646 (Thomas, J., joined by Rehnquist, C.J., and Scalia, J., concurring in judgment and dissenting in part) (citations omitted). Thus, in Colorado-I an anti-corruption interest could not be

used as a basis to prohibit political-party-committee independent expenditures, and here it cannot

be used to limit contributions to national party committees.

b. No Anti-Circumvention Interest Exists.

While “preventing corruption” is the only cognizable interest “for restricting campaign finances.” NCPAC, 470 U.S. at 496-97, the Supreme Court has recognized a prophylactic interest

in preventing circumvention of the contribution limits that eliminate the quid-pro-quo risk. Does

an anti-circumvention interest justify the biennial contribution limits as applied to contributions

to national party committees? We first consider the cognizable scope of “circumvention.”

(1) The Anti-Circumvention Interest and Remedy Are Limited in Scope.

Just as the scope of cognizable “corruption” was strictly limited by the Supreme Court, see

Citizens United, 130 S.Ct. at 909-10, “circumvention” is also limited. First, because the anti-circumvention interest is derivative and prophylactic, there must be a viable quid-pro-quo-corruption risk to begin with. Since Buckley held that only “large contributions” triggered a quid-proPreliminary-Injunction Memorandum 14
quo-corruption risk, 424 U.S. at 26 (emphasis added), there is no conduit concern justifying biennial contribution limits unless it is possible to “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to

contribute to that candidate, or huge contributions to the candidate’s political party,” id. at 38. If

the ability to move “massive” funds through a conduit to a candidate is already eliminated by one

prophylaxis, there remains no justification for an additional prophylaxis. This is clear from the

prohibition on layering “prophylaxis-on-prophylaxis” articulated in WRTL-II, 551 U.S. 479 (Roberts, C.J., joined by Alito, J.) (controlling opinion). WRTL-II rejected the argument “that an expansive definition of ‘functional equivalent’ [wa]s needed to ensure that issue advocacy does not

circumvent the rule against express advocacy, which in turn helps protect against circumvention

of the rule against contributions.” 551 U.S. at 479. WRTL-II held that the “prophylaxis-on-prophylaxis approach” . . . is not consistent with strict scrutiny.” Id. Neither is it consistent with the

requirement that any contribution “limitation [be] no broader than necessary to achieve th[e governmental] interest,” CMA, 453 U.S. at 203 (controlling opinion), or that the government “avoid

unnecessary abridgement of associational freedoms,” Buckley, 424 U.S. at 25. If one prophylaxis

(e.g., the limit on contributions to a candidate from a party committee) eliminates a risk, that risk

cannot be used again to justify another prophylaxis because the risk is gone.

Second, the government must prove that asserted “harms are real, not merely conjectural,

and that the regulation will in fact alleviate these harms in a direct and material way.” Turner

Broad. Sys., 512 U.S. at 664. Just as “[r]eliance on a ‘generic favoritism or influence theory . . .

is at odds with standard First Amendment analyses because it is unbounded and susceptible to no

limiting principle,’” Citizens United, 130 S.Ct. at 910 (citation omitted), so also there can be no

generic circumvention theory lacking a “limiting principle.”

Preliminary-Injunction Memorandum 15
Third, perceived “circumvention”—based on barred contributors moving on to other political activity that remains legal—can be a reason to overturn restrictions, not multiply them:

Austin [v. Michigan Chamber of Commerce, 494 U.S. 652 (1990),] is undermined byexperience

since its announcement. Political speech is so ingrained in our culture that speakers find ways

to circumvent campaign finance laws. See, e.g., McConnell[, 540 U.S. at] 176-177 (“Given

BCRA’s tighter restrictions on the raising and spending of soft money, the incentives . . . to

exploit [26 U.S.C. 527] organizations will only increase[.]”). Our Nation’s speech dynamic is

changing, and informative voices should not have to circumvent onerous restrictions to exercise

their First Amendment rights.

Citizens United, 130 S.Ct. at 912 (emphasis added). So if would-be contributors to national party

committees are restricted by contribution limits and instead give to independent-expendituresonly PACs (“IE-PACs” or “super PACs”), that “circumvention” requires careful examination of 9

whether the contribution limits are constitutionally justified.10

In sum, absent a potential for real circumvention involving movement of massive sums to

political committees with a potential for contributions thereby reaching candidates, no prophylaxis is permitted. Where one prophylaxis makes a harm noncognizable, no other prophylaxis is

allowed based on the eliminated interest. Where people are forced to exercise their First Amendment rights to free speech and association in non-preferred ways because of an imposed prophylaxis, it must be eliminated if its First Amendment burdens are not strongly justified.

See, e.g., Anupama Narayanswamy, “Presidential campaign donors moving to super

9

PACs,” Sunlight Reporting Group (Apr. 26, 2012), http://reporting.sunlightfoundation.com/

2012/maxed-out-donors/ (“[A]fter some . . . donors hit their . . . contribution limits to President

Obama’s reelection campaign, they made donations to the super PAC supporting him . . . .”).

Buckley applied this “circumvention” principle in rejecting a limit on independent expen- 10

ditures, holding that, because the vagueness of the “expenditure” definition required the expressadvocacy construction, people would simply make permitted, non-magic-words communications,

making the limit meaningless. 424 U.S. at 45. Buckley also noted that the independence of independent expenditures “alleviates the danger that expenditures will be given as a quid pro quo for

improper commitments from the candidate.” Id. at 47. So “[r]ather than preventing circumvention of the contribution limitations, [the independent expenditure limit] severely restricts all independent advocacy despite its substantially diminished potential for abuse.” Id. at 47.

Preliminary-Injunction Memorandum 16
(2) Buckley Requires Examination of the Potential for Political-Committee

Proliferation, “Massive” Contributions, and Conduit Capability.

Applying these principles limiting cognizable circumvention, does a cognizable anti-circumvention interest justify the biennial contribution limit as applied to national party committees?11

The answer requires returning to Buckley’s concerns in facially upholding the old “overall

$25,000 ceiling.” The Court said the ceiling could “prevent evasion [circumvention] of the

$1,000 contribution limitation by a person who might otherwise contribute massive amounts of

money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political

party.” Id. (emphasis added). And this analysis was premised on possible political-committee

proliferation. Id. at 28. So in searching for a circumvention risk, Buckley requires us to consider

three questions of the current campaign-finance scheme: (a) Is political-committee proliferation

possible?; (b) Can massive contributions be made to political parties and PACs?; and (c) Are

political committees now capable of serving as conduits for transmitting massive contributions to

candidates?

(3) Congress Imposed a Political-Committee-Proliferation Prophylaxis.

Is it possible to move massive contributions to candidates through a proliferation of political

committees? No. Buckley’s specific concern was with a proliferation of PACs. See 424 U.S. at 28

n.31, but the 1976 FECA amendments implemented provisions to eliminate all political- 12

 Congress saw political parties as posing little circumvention risk because it created higher

11

limits on contributions to them, 2 U.S.C. 441a(a)(1)(B), and provided authority for expenditures

coordinated with candidates, 2 U.S.C. 441a(d), in addition to the $5,000 limit on contributions to

a candidate per election. See infra at 19 (limits chart).

 As the Court put it, id.:

12

[C]ontribution ceilings do not foreclose the making of substantial contributions to candidates

by some major special-interest groups through the combined effect of individual contributions

from adherents or the proliferation of political funds. . . . The Act places no limit on the number

Preliminary-Injunction Memorandum 17
committee proliferation, including by PACs. See supra at 11-12. The FEC has a lengthy regulation expanding on FECA’s “political committee” definition statutes. 11 C.F.R. 100.5(g)(2)-(3).13

These anti-proliferation rules prevent the same persons from controlling multiple PACs. Consequently, no “person . . . [can] contribute massive amounts of money to a particular candidate” by

means of giving to a proliferation of political committees. Buckley, 424 U.S. at 38.

Regarding state party committees, “[a]ll contributions made by the political committees established, financed, maintained or controlled by a State party committee and by subordinate State

party committees shall be presumed to be made by one political committee.” 11 C.F.R.

110.3(b)(3). Regarding candidate committees, “[a]ll authorized committees of the same candidate for the same election to Federal office are affiliated.” Id. at 100.5(g)(1). And regarding national party committees, there can be no proliferation because only three are permitted per political party. These are (1) the national committee of a political party, (2) the Senate campaign committee, and (3) the House campaign committee. Id. at 110.3(b)(1)-(2). RNC, NRSC, and NRCC 14

are, in fact, separate legal entities with separate histories, governing bodies, and focuses. VC

¶¶ 43-58. They have their own agendas, e.g., RNC focuses primarily on presidential elections and

party matters; NRSC focuses on electing Republican senators; and NRCC focuses on electing

of funds that may be formed through the use of subsidiaries or divisions of corporations, or of

local and regional units of a national labor union. The potential for proliferation of these sources

of contributions is not insignificant.

 The “affiliated committee” definition establishes which committees “shar[e] a single con- 13

tribution limitation.” 11 C.F.R. 110.5(g)(3). All committees run by the same entities are “affiliated.” Id. The FEC broadly defines the factors it considers in determining “affiliation,” including

formal and informal control, control over employees, overlapping membership, overlapping officers or employees, funding relationships, founding relationships, and patterns of contributions

and contributors. Id. at 100.5(g)(4). These affiliation rules are repeated at 110.3.

 National party committees have separate limits on contributions, e.g., each may receive 14

$30,800 per year from an individual and each may contribute $5,000 to a candidate per election.

But RNC and NRSC must share the additional allowed contribution of $43,100 to a Senate candidate. See infra (contribution limits chart).

Preliminary-Injunction Memorandum 18
Republican representatives. VC ¶¶ 43-46.In sum, it is no longer possible to move massive contributions to candidates through a proliferation of political committees.

(4) Congress Imposed a Massive-Contribution Prophylaxis.

Is it possible now for an individual to make what Buckley called “massive” contributions to a

political party committee or a PAC? 424 U.S. at 38. No. The system that Buckley considered had

no limits on contributions to parties and PACs, but these are now limited as follows:

Chart on Contribution Limits for 2011-2012

To each

candidate

or candidate committee per

election

To national

party committee per

calendar

year

To state,

district &

local party

committee

per calendar

year

To any

other political committee per

calendar

year[3]

Special Limits

Individual

may give

$2,500* $30,800* $10,000

(combined

limit)

$5,000 $117,000* overall

biennial limit:

• $46,200* to all candidates

• $70,800* to all

PACs and parties[4]

National Party

Committee

may give

$5,000 No limit No limit $5,000 $43,100* to Senate

candidate per campaign

[5]

State, District &

Local Party

Committee may

give

$5,000

(combined

limit)

No limit No limit $5,000

(combined

limit)

No limit

PAC (multi-candidate) may [6]

give

$5,000 $15,000 $5,000

(combined

limit)

$5,000 No limit

PAC (not multicandidate) may

give

$2,500* $30,800* $10,000

(combined

limit)

$5,000 No limit

Authorized

Campaign Committee may give

$2,000 No limit No limit $5,000 No limit [7]

* These contribution limits are indexed for inflation in odd-numbered years.

[3] A contribution earmarked for a candidate through a political committee counts against the

Preliminary-Injunction Memorandum 19
original contributor’s limit for that candidate. In certain circumstances, the contribution

may also count against the contributor’s limit to the PAC. 11 CFR 110.6. See also 11 CFR

110.1(h).

[4] No more than $46,200 of this amount may be contributed to state and local party committees and PACs. 

[5] This limit is shared bythe national committee and the national Senate campaign committee.

[6] A multicandidate committee is a political committee with more than 50 contributors which

has been registered for at least 6 months and, with the exception of state party committees,

has made contributions to 5 or more candidates for federal office. 11 CFR 100.5(e)(3).

[7] A federal candidate’s authorized committee(s) may contribute no more than $2,000 per

election to another federal candidate’s authorized committee(s). 11 CFR 102.12(c)(2).

FEC, Contributions Brochure at 2 (updated Feb. 2011), www.fec.gov/pages/ brochures/contributions_brochure.pdf). Thus, individuals may currently give $30,800 per year to a national party

committee; $10,000 per year to a state party committee (combined with local and district party

committees); $5,000 per year to a PAC; and $2,500 to a candidate per election. Id. None of these

is “massive,” in a year or a biennium. If the approach of the FECA scheme that Buckley considered (see FECA Amendments of 1974, Pub. L. 93-443, 88 Stat. 1263 (1974)) were still in effect

(without limits on contributions to parties and PACs), and if there were no biennial contribution

ceiling, an individual could give, e.g., $30,800,000, to a party or PAC. Thirty million dollars

would be “massive,” and the “overall $25,000 ceiling” prevented such “massive” contributions,

but now the base contribution limits eliminate “massive” contributions.

What guidance do we have on what the Court in Buckley considered “massive”? It did not

consider the $25,000 massive because it said the ceiling prevented massive contributions. What

is $25,000 worth today? The U.S. Department of Labor’s CPI Inflation Calculator (www.bls.gov/

data/inflation_calculator.htm) establishes that $25,000 in 1974 is worth $116,676 as of June

2012. So at a minimum, the ability to contribute $116,675.96 in a biennium currently is not “massive.” But the present biennial contribution limit on individual contributions to national party

committees (and state party committees and PACs) is $70,800. And even if a contributor gave

Preliminary-Injunction Memorandum 20
$30,800 to RNC, NRSC, and NRCC in one year (total = $92,400), or for a biennium (total =

$184,800), that is still not a “massive” amount.

This inflation calculator also provides the following current equivalents for the permissible

1974 contribution limits as of June 2012. The $1,000 limit on a person’s contributions to candidates upheld in Buckley, 424 U.S. at 23-35, is now worth $4,667, not the current $2,500 limit.

The $5,000 limit on a political committee’s contributions to candidates upheld in Buckley, id. at

35-37, is now worth $23,335, not the current $5,000 (for a party committee or multicandidate

PAC). Using 1974 dollar values in a typical election cycle with primary and general elections, an

individual should be able to contribute $9,334 to a candidate, not a mere $5,000, and a party

committee or multicandidate PAC should be able to contribute $46,670 to a candidate, not a

mere $10,000. Though Congress found no corruption risk below these inflation-adjusted

amounts, it failed to properly adjust the limits for inflation, thereby layering on yet another prophylaxis affecting the anti-circumvention analysis. For example, even if a contributor could

somehow use a national party committee as a conduit for a $5,000 contribution to a candidate,

the actual level at which Congress asserted a corruption risk is now worth $23,335.

Congress made the judgment that each of these base contribution limits (especially when

coupled with the anti-political-committee-proliferation prophylaxis, see supra) eliminates any

cognizable circumvention risk as to the entity to which the limit applies, e.g. giving $30,800 per

year eliminates any circumvention risk as to a contribution to RNC. See supra at 11 (Conference

Committee Report). Doing something that poses zero risk multiple times does not increase the

risk. Zero multiplied by anything equals zero. Thus, there is no anti-circumvention justification

for a biennial contribution limit, i.e., if there is no cognizable circumvention risk in giving

$30,800 to RNC, NRSC, or NRCC, then there is no cognizable circumvention risk in giving that

Preliminary-Injunction Memorandum 21
amount to all of them in a year or to each per year in a biennium.

In BCRA, Congress instituted yet another prophylaxis against moving “massive” funds

through conduit political committees in the form of non-federal funds, so-called “soft money.”

This prophylaxis was not instituted with a base limit and biennial limits on soft money, but by a

total ban. This ban was upheld in McConnell:

The question for present purposes is whether large soft-money contributions to national party

committees have a corrupting influence or give rise to the appearance of corruption. Both

common sense and the ample record in these cases confirm Congress’ belief that they do. . . .

[T]he FEC’s allocation regime has invited widespread circumvention of FECA’s limits on

contributions to parties for the purpose of influencing federal elections.

540 U.S. at 145. This was so, the Court said, because “[i]t is not only plausible, but likely, that

candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Id. Citizens United rejected the notion that influence on, access to, or gratitude from candidates was cognizable as corruption or circumvention. 130 S.Ct. at 909-10. Nonetheless, Congress’s ban on soft-money contributions remains in effect for candidates and political committees, providing yet another prophylaxis preventing the movement of “massive” funds to political

party committees and thereby in any way benefitting candidates.

In sum, Buckley’s circumvention concern was based on the movement of “massive” amounts

of money to candidates through political parties and PACs. 424 U.S. at 38. This is now impossible because of prophylaxes preventing it.

(5) Congress Imposed an Anti-Conduit Prophylaxis by Many Prophylaxes.

By eliminating political-committee “proliferation” and “massive” contributions, along with

failing to properly inflation-adjust the Buckley-era limits and banning soft money, Congress has

imposed an anti-conduit prophylaxis, as is further clear from the following prophylaxis layers.

A limit on contributions to candidates is itself a prophylactic measure, layered atop other

Preliminary-Injunction Memorandum 22
prophylaxes designed to eliminate quid-pro-quo corruption. There is no inherent wrong in a large

contribution to a candidate. Rather, the giving of financial quids for a political quos is wrong:

“The hallmark of corruption is the financial quid pro quo: dollars for political favors.” NCPAC,

470 U.S. at 497. In Buckley, two existing prophylaxes were asserted by challengers as sufficient

to eliminate the dollars-for-favors risk, i.e., laws criminalizing bribery and requiring contribution

disclosure. See 424 U.S. at 27-28. The Buckley Court decided that the challenged contribution

limits were justified as an additional prophylaxis because “laws making [bribes] criminal . . . deal

with only the most blatant and specific attempts of those with money to influence governmental

action.” Id. So a contribution limit is a prophylaxis, based on the idea that large contributions

pose a sufficient quid-pro-quo-corruption risk to justify banning large contributions.

Buckley added another layer of prophylaxis by saying contribution limits could be based on

the “appearance of corruption.” Id. at 28 (emphasis added). Of course, restricting core political

speech and association based on “appearance” is problematic for lacking a limiting principle.

Reliance on such an “appearance” interest resulted in the broad concept of “corruption” in

McConnell, which considered influence, access, and gratitude legitimate theories of corruption

for banning soft money. See 540 U.S. at 44. Citizens United rejected such broad theories of corruption and limited McConnell to its soft-money context, 130 S.Ct. at 910, but the prophylactic

“appearance” of corruption yet remains as justifying a base contribution limit to candidates.

Another prophylaxis involves earmarking and false-name-contribution laws. Earmarked

contributions through an intermediary are deemed contributions from the original contributor,

subject to that contributor’s contribution limit, and subject to reporting. 2 U.S.C. 441(a)(8). And

false-name contributions are barred. 2 U.S.C. 441f. So any effort to pass contributions to a candidate committee through another political committee (or any entity) must be done in one’s own

Preliminary-Injunction Memorandum 23
name and subject to one’s own limit or the effort is illegal and subject to stiff penalties.

But can there be any cognizable circumvention risk from truly unearmarked contributions?

Obviously, an unearmarked contribution to a political party committee or a PAC is not a contribution “to a particular candidate,” as Buckley suggested, 424 U.S. at 38 (emphasis added), though

an earmarked contribution is a contribution to a candidate. Unearmarked contributions are “to” 15

the recipient party committee or PAC, not “to” a candidate. See, e.g., id. at 23 n.24 (“[D]ollars

given to another person or organization that are earmarked for political purposes are contributions under the Act.” (emphasis added)). So Buckley’s conduit concern was that if individuals

gave “massive” contributions to a proliferation of party committees, some or all of those committees might decide (without being required) to contribute the permissible $1,000 to a candidate

and (if there were many political committees and many decided to contribute) those $1,000 contributions might add up to a “massive” aggregate contribution to a candidate.

This conduit concern could not be about favorable independent expenditures because the

independence of the expenditure eliminates any cognizable benefit to a candidate as a matter of

law. See Citizens United, 130 S.Ct. at 908 (quoting Buckley, 424 U.S. at 47). So giving “massive” amounts of money for the purpose of making independent expenditures, e.g., to an IE-PAC,

 The FEC eliminates conduits regarding contributions to party committees as follows: 15

A contribution received by a party committee may count against the contributor’s contribution

limit for a particular candidate if:

• The contributor knows that a substantial portion of his or her contribution will be given to

or spent on behalf of a particular candidate; or

• The contributor retains control over the funds after making the contribution (for example,

the contributor earmarks the contribution for a particular candidate). 110.1(h), 110.2(h) and

110.6.

FEC, Political Party Committees at 15 (July 2009) (FEC Campaign Guide). “On behalf of” here

means something like paying a candidate’s bills, not making independent expenditures supporting

a candidate, because contributionsto IE-PACsmaybe earmarked for particular independent expenditures. See, e.g., FEC AO 2010-09 (Club for Growth).

Preliminary-Injunction Memorandum 24
is not a cognizable conduit concern. Rather, the conduit concern is whether “massive” contributions can be made “to” candidates in excess of the individual limits on contributions to candidates through a proliferation of political committees, all without earmarking.

Without earmarking, there is no way to assure that any of the money one contributes to a

political committee will ever make it to a particular candidate as a contribution (or even to be

spent on independent expenditures intended to support the candidate). Once an unearmarked contribution is made, a political committee is free to do with the money as it wishes. National party

committees have many demands on their funds. The odds that any funds from an unearmarked

contribution might flow to a particular candidate are so low as to be noncognizable—even setting

aside the fact that pooled funds become fungible.

Buckley tried to address this long-odds issue (though not the fungible issue) by saying that

one might contribute “unearmarked contributions to political committees likely to contribute to

that candidate, or huge contributions to the candidate’s political party.” 424 U.S. at 38 (emphasis

added). Buckley’s acknowledgment that the constitutionality of this ceiling “ha[d] not been separately addressed at length by the parties,” id., is appropriate to recall here because there was no

evidence cited that giving to a political party committee or a PAC is a viable way to get contributions to a candidate absent earmarking. Especially as applied to national party committees, which

support numerous candidates and have many demands on their money, any conduit concern as to

unearmarked funds would be either non-existent or so minuscule as to be noncognizable. And the

sort of PAC most “likely to contribute to [a] candidate,” id., would be a single-candidate PAC

(which can only receive a contribution of $5,000 per year and can only contribute $2,500 per candidate per election) not a multi-candidate committee (which can still only receive $5,000 per

year, but can contribute $5,000 per candidate per election). So trying to contribute “to” a candiPreliminary-Injunction Memorandum 25
date through a party or PAC without earmarking is uncertain, inefficient, and unlikely to succeed—impossible in any cognizable amount—making it more likely that a would-be “massive”

contributor would simply spend the money on independent expenditures supporting the candidate

or contribute earmarked funds to an IE-PAC for independent expenditures favorable to the candidate. See VC ¶¶ 59-62 (recent rapid rise in IE-PAC expenditures). See also Alicia Mundy & Sara

Murray, Adelson Gives $10 Million to Pro-Romney Super PAC, Wall St. J., June 13, 2012,

http://blogs.wsj.com/washwire/2012/06/13/adelson-gives-10-million-to-pro-romney-super-pac/.

Even if a contributor’s unearmarked contribution to a political committee could somehow be

attributed to a political-committee contribution to a candidate, it only would be attributable on a

pro-rata basis because unearmarked contributions become a fungible part of all contributions

received (which in turn are added to funds carried over from prior election cycles). Consider if a

contributor gives $30,800 in 2011 and 2012 to RNC, totaling $61,600. RNC’s biennial contributions received for 2011 through April 30, 2012 totaled $126,625,901. As a share of these contri- 16

butions, $61,600 is a minuscule share (.05%) that will shrink as the general election nears and

contributions to RNC increase. This sort of pro-rata share would have to be applied to any na- 17

tional party committee contribution to a candidate to determine the contributor’s share of the

contribution. And since the limits on contributions to national party committees and by them to

candidates already eliminate any circumvention risk, see supra at 11 (Conference Committee

Report), a contributor’s minuscule share of any contribution to a candidate is noncognizable as a

See VC ¶¶ 51 (2011 net contributions = $82,112,485), 52 (2012 through April 30 net con- 16

tributions = $44,513,416).

 In the 2007-08 presidential election cycle, RNC received $286,111,959 in contributions. 17

See VC ¶ 47 (2007 net contributions = $82,925,219), 48 (2008 net contributions =

$202,541,855).

Preliminary-Injunction Memorandum 26
governmental interest justifying biennial contribution limits, which are thus meaningless prophylaxes atop existing prophylaxes.

This pro-rata analysis also applies to multicandidate PACs, which must have at least 51 contributors and must contribute to 5 or more candidates. So if 51 contributors gave $5,000 per year

(total = $255,000) to a PAC that gave $5,000 to a candidate, the share per contributor (if there

were only one contribution to a candidate) would be under 2%, i.e., under $100. But multicandidate PACs must contribute to at least 5 candidates, which would total $25,000 if each receives $5,000. A PAC with $255,000 is likely to make more than 5 contributions, since contributions are its reason to exist (else it would be an IE-PAC). If the PAC uses all $255,000 to make

contributions to candidates in a general election, it could contribute $5,000 to 51 candidates. And

a contributor’s $5,000 contribution would be under 2% of the total contributions made, i.e., under $100 each when spread among 51 candidates. Even if a contributor could find multiple PACs

that might be “likely” to contribute to a favored candidate, the pro-rata shares involved would be

minuscule and noncognizable to support a biennial contribution limit.

Moreover, even if numerous contributors try to use a political committee as a conduit to get

pro-rata contributions to a candidate, there is the barricade of the limit on contributions to a candidate. For example, if a $5,000 per candidate per election contribution has already been made

by a multicandidate committee, then no matter how many contributors give in the hope of triggering a contribution to the candidate, no more can go to the candidate. The limits on contributions to and by political committees eliminate any cognizable circumvention risk.

In addition to the permitted $5,000 per candidate per election contribution limit, a political

party’s national committee has spending authority under 2 U.S.C. 441a(d) (the “Party ExpendiPreliminary-Injunction Memorandum 27
ture Provision”) for expenditures coordinated with federal candidates. “The national committee 18

may designate (in writing) the party’s national Senatorial Committee or national Congressional

Committee to spend its allowance with respect to a particular nominee, but those committees do

not have separate spending limits.” FEC, Congressional Candidates and Committees at 43

(2011), www.fec.gov/pdf/candgui.pdf. Thus, Buckley’s political-committee-proliferation concern

is resolved. Buckley’s “massive”-contribution-conduit concern is resolved by the facts that the 19

limit of $30,800 per year on contributions to national party committees remains in effect and that

the Party Expenditure Provision limits were upheld as to coordinated expenditures in FEC v.

Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (“Colorado-II”). The

Court held that parties could not engage in unlimited expenditures coordinated with their candidates but had to be restricted because “they act as agents for spending on behalf of those who

seek to produce obligated officeholders.” Id. at 452. So Colorado-II reiterated Buckley’s concern

about political parties serving as conduits for circumventing contribution limits. (The dissent disputed that the evidence showed any corruption or circumvention concern. Id. at 475-80.) But, the

Court added, “[i]t is this party role . . . that the Party Expenditure Provision targets.” Id. This targeting by Congress was its cure for any possible circumvention, and it was the level at which

Congress perceived a potential problem and asserted an interest. Thus, the combination of the

See FEC, 2012 Coordinated Party Expenditure Limits, www.fec. gov/info/charts_441ad_ 18

2012.shtml. For example, RNC, NRSC, and NRCC share a limit on coordinated spending “on

behalf of Presidential, Senate and House nominees.” Id. This Party Expenditure Limit ranges

from $21,684,200 for Presidential nominees down to $45,600 for House nominees in states with

more than one representative. Id.

 The same is true for the additional $43,100 (currently) per election cycle contribution au- 19

thority for a national party committee to give to a Senate candidate per campaign, which must be

“shared by the national committee and the national Senate campaign committee.” FEC, Contributions Brochure at 2 n.5. See also 2 U.S.C. 441a(h); 11 C.F.R. 110.2(e).

Preliminary-Injunction Memorandum 28
base contribution limit on individual contributions to national party committees and the Party

Expenditure Provision limits eliminate any “massive” contributions “to” candidates through parties and any cognizable anti-circumvention interest.

Putting these figures together, here is what would be permissible if the biennial contribution

limits are held unconstitutional as applied to national party committees. An individual could give

the base contribution limit of $30,800 per year per biennium per national party committee to

RNC, NRSC, and NRCC for a biennial total of $184,800. This individual could then also give a

biennial total of $46,200 to state-party committees and PACs. For example, this individual could

give $10,000 per year per biennium to a state party committee (total = $20,000); $5,000 per year

per biennium to 2 PACs (total = $20,000); and $5,000 one year and $1,200 a second year to another PAC (total = $6,200). There is no possible movement of “massive” contributions to candidates through a proliferation of parties and PACs. There are no “massive” contributions to political committees to begin with, and the contributor’s pro-rata share of contribution to any political

committee and of any political committee’s contribution to a candidate are noncognizable as circumvention because of existing base limits absent the biennial limits.

From this review of Buckley’s conduit concerns as applied, it is clear that Congress has created prophylaxes on prophylaxes that have eliminated Buckley’s concerns. See 424 U.S. at 38.

The 1976 Conference Report specifically said that Congress was amending FECA to eliminate

these concerns. See supra at 11-12. Because Buckley’s conduit concern is already amply addressed without the biennial contribution limits, there remains no justification for the $70,800

biennial limit on contributions to national party committees. This limit is a vestigial appendage

lacking constitutional justification. It is simply layering prophylaxis on prophylaxes without justification and in a manner that is broader than necessary to address the expressed circumvention

Preliminary-Injunction Memorandum 29
concern.20

c. The Challenged Limit Relies on an Unconstitutional Equalizing Interest. 

Because the biennial contribution limit as applied is not justified by any anti-circumvention

interest, it serves only to level the playing field, limiting persons who could give a biennial total

of $184,800 to three national party committees (under the base contribution limits) to just

$70,800. Buckley rejected any equalizing interest:

[T]he concept that government may restrict the speech of some elements of our society . . . to

enhance the relative voice of others is wholly foreign to the First Amendment, which was

designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”

424 U.S. at 48-49 (citations omitted). And again, “[t]he ancillary interest in equalizing the . . .

resources of candidates . . . , therefore, provides the sole relevant rationale for . . . [the] expenditure ceiling. That interest is clearly not sufficient to justify the provision’s infringement of fundamental First Amendment rights.” Id. at 54. Moreover, “[i]n the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and

range of debate on public issues in a political campaign.” Id. at 57. Citizens United again rejected

any equalizing interest, including the anti-distortion rationale used to ban corporate independent

expenditures. 130 S.Ct. at 904. That rejected interest cannot support a biennial contribution limit.

 Moreover, Congress’s assertion of an anti-circumvention interest is underinclusive be20

cause PACs have no biennial aggregate limit. Multi-candidate PACs, as deeply interested in legislative outcomes as individual contributors, may contribute $5,000 to as many candidates as they

can afford. Cf. Republican Party of Minnesota v. White, 536 U.S. 765, 780 (2002) (“As a means

of pursuing the objective . . . that respondents now articulate, the [challenged provision] is so

woefully underinclusive as to render belief in that purpose a challenge to the credulous”).

Preliminary-Injunction Memorandum 30
C. (Count 2) The Biennial Limits on Contributions to Non-Candidate Committees Are

Facially Unconstitutional for Lacking a Cognizable Interest.

McCutcheon and RNC challenge the biennial contribution limits (currently $70,800 and

$46,200) on contributions to non-candidate committees at 2 U.S.C. 441a(a)(3)(B) as facially unconstitutional under the First Amendment rights of speech and association. As noted above, the

post-Buckley, 1976 FECA amendments eliminated the two bases on which Buckley relied, 424

U.S. at 38, to facially uphold the now-repealed and replaced “overall $25,000 ceiling,” i.e., there

can no longer be either political-committee proliferation or the risk of circumvention of contribution limits by moving “massive” amounts of money through party committees or PACs “to” candidates. See supra 10-12. Thus, there is no cognizable interest to justify these biennial contribution limits as applied to any non-candidate committees, so they are facially unconstitutional.

These biennial contribution limits are facially unconstitutional for being substantially

overbroad under the analysis of Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). This Court is

justified in “prohibiting all enforcement” of the limits because their application to protected

speech and association is substantial, “not only in an absolute sense, but also relative to the scope

of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U.S. 113, 119-20 (2003). The

unconstitutional application of 2 U.S.C. 441a(a)(3)(B) to all national party committees is substantial, not only in an absolute sense, but also in a relative sense, especially because there is no

“scope of . . . plainly legitimate applications” due to the lack of legitimate application to state

party committees and PACs, as set out in the preceding paragraph.

Because the $46,200 sub-limit on contributions to non-national party committees is an integral part of 2 U.S.C. 441a(a)(3)(B), because Congress thereby indicated its intention that the provision operate as a unit, and because the sub-limit is dependent grammatically on the whole of

Preliminary-Injunction Memorandum 31
441a(a)(3)(B) for its meaning, this sub-limit must fall facially with the whole provision.

D. (Count 3) The Biennial Limits on Contributions to Non-Candidate Committees Are

Unconstitutionally Too Low, as Applied and Facially.

McCutcheon and RNC challenge the limits on contributions to non-candidate committees at

2 U.S.C. 441a(a)(3)(B) as unconstitutional for being too low, as applied to national party committees and facially, under Randall v. Sorrell, 548 U.S. 230 (2006). Randall’s analysis rejects

contribution limits “fail[ing] to satisfy the First Amendment’s requirement of careful tailoring”

by “impos[ing] burdens upon First Amendment interests that (when viewed in light of the statute’s legitimate objectives) are disproportionately severe.” Id. at 237 (plurality).

McCutcheon’s contributions to non-candidate federal committees in this biennium total

$27,328, and, if he is permitted to exceed the $70,800 biennial limit by contributing $25,000

each to RNC, NRSC, and NRCC, his total biennial contributions to non-candidate committees

would total $97,000. The current biennial limit on contributions to non-candidate committees

(including national party committees, state party committees, and PACs) is $70,800, of which no

more than $46,200 may go to non-national-party committees. 2 U.S.C. 441a(a)(3)(B).

In Randall, the Supreme Court struck down as too low a $400 limit on contributions an individual may make, over a two-year period, to a state party committee. Id. at 262 (plurality opinion). The state party committee at issue in Randall needed funds to reach the voters in a population of 621,000, see id. at 250 (Vermont population in 2006). Applying Randall’s analysis to the

current $70,800 biennial limit as applied to national party committees shows its unconstitutionality. RNC and its sister committees need funds to reach the voters in a population of over

308,000,000, see http://2010.census.gov/2010census/data/ (2010 United States population was

308,745,538). A ratio shows that contributions of $198,389.69 over two years to the national

Preliminary-Injunction Memorandum 32
committees of one political party—RNC, NRSC, and NRCC—would still be too low under

Randall. ($400/621,000 = $198,389/308,000,000). The $30,800 per national-party committee per

year that individuals are permitted to give under 2 U.S.C. 441a(a)(1)(B) would result in $184,800

to the party committees per biennium. This $184,000 is much closer to the $198,389 ratio derived from Randall. But the national party committees cannot accept these otherwise legal

amounts because of the $70,800 biennial limit, which is far too low to be constitutional. The biennial limit frustrates an individual’s right to meaningfully associate with the national committees of his political party and to fund robust political discussion.

This $70,800 biennial contribution limit is also facially unconstitutional as too low because

it is substantially overbroad under Broadrick, 413 U.S. at 613. This $70,800 limit applies to national party committees, state party committees (also district and local party committees), and

PACs. This Court is justified in “prohibiting all enforcement” of the limit because its application

to protected speech and association is substantial, “not only in an absolute sense, but also relative

to the scope of the law’s plainly legitimate applications.” Hicks, 539 U.S. at 119-20. Its unconstitutional application to all national party committees is substantial, not only in an absolute sense,

but also in a relative sense.

Because the $46,200 sub-limit on contributions to non-national party committees is an integral part of 2 U.S.C. 441a(a)(3)(B), because Congress thereby indicated its intention that the provision operate as a unit, and because the sub-limit is dependent grammatically on the whole of

441a(a)(3)(B) for its meaning, this sub-limit must fall facially with the whole provision.

E. (Count 4) The Biennial Limit on Contributions to Candidate Committees Lacks a Constitutionally Cognizable Interest.

McCutcheon challenges the $46,200 (currently) biennial limit on contributions to candidate

Preliminary-Injunction Memorandum 33
committees at 2 U.S.C. 441a(a)(3)(A) as unconstitutional for lacking a constitutionally cognizable interest to justify it. This limit severely burdens McCutcheon’s right to free speech and association. It is the functional equivalent of a ban on an individual associating with the candidates of

his choosing because it has the effect of prohibiting contributions to “too many” candidates.

Even candidates who do not represent Mr. McCutcheon’s home district or state have a direct

effect on him and the implementation of his principles, such as by chairing committees or subcommittees, controlling the legislative agenda through congressional leadership, being staunch

advocates for certain issues or co-sponsors of key legislation. So McCutcheon has as much interest in being involved in races outside his home district and state as within them. But this biennial

limit restricts contributors’ ability to do so by forcing nonsensical tradeoffs, e.g., (an arbitrary

example), contributors just under their biennial limit might have to choose between their belief in

a strong national defense (by donating to the ranking member of the Senate Armed Services

Committee) and a free economy (by donating to the chair of the House Commerce Committee).

The biennial limit on contributions to candidate committees should be subjected to strict

scrutiny because it substantially burdens McCutcheon’s right to free speech and association with

the candidates of his choosing. Because the base contribution limit at 2 U.S.C. 441a(a)(1)(A) already limits contributions to candidate committees, the biennial limit is effectively a limit on expenditures and should be considered under the scrutiny applicable to expenditures. Alternatively,

if this Court considers the aggregate limit to be a contribution limit, though the U.S. Supreme

Court has treated contributions and expenditures to different standards of scrutiny,

441a(a)(3)(A)’s serious burden on speech and association means Buckley’s holding that contribution limits are subject to less rigorous “exacting scrutiny,” 424 U.S. at 19-23, 25, must be revisited. But under either level of scrutiny, McCutcheon should prevail.

Preliminary-Injunction Memorandum 34
Section 441a(a)(3)(A) fails strict scrutiny because it is not supported by a compelling government interest. See Randall, 548 U.S. at 267 (2006) (Thomas, J. dissenting) (“I would subject

contribution limits to strict scrutiny, which they would fail”). Alternatively, under exacting scrutiny, the limit fails exacting scrutiny because it is not supported by a sufficient government interest. The U.S. Supreme Court has rejected any theory of corruption beyond actual financial quid

pro quo, such as preventing candidate influence, access, or gratitude, which do not constitute corruption. See Citizens United, 130 S. Ct. at 909-10. The Supreme Court has expressly and thoroughly rejected the “antidistortion” rationale as a cognizable justification for contribution limits.

See, id. at 912. See also Davis, 554 U.S. at 741-42 (“[T]he concept that the government may restrict the speech of some . . . to enhance the relative voice of others is wholly foreign to the First

Amendment.”) (quoting Buckley, 424 U.S. at 48-49); Arizona Free Enterprise Club’s Freedom

Club PAC v. Bennett, 131 S. Ct. 2806, 2826 (2011).

Though an anti-corruption interest may justify contribution limits, see Citizens United, 130

S.Ct. at 909-10; Davis, 554 U.S. at 741-44; Buckley, 424 U.S. at 26-28, it does not apply because

the biennial limit does not apply to any contribution to a particular candidate (essential to a cognizable quid-pro-quo-corruption risk) and McCutcheon’s contributions will be within the base

contribution limits, which preclude any quid-pro-quo-corruption risk.

This biennial aggregate contribution limit is not supported by an anti-circumvention interest,

the only cognizable interest that could support it. Buckley did not even suggest that the old

“overall $25,000 ceiling” might be justified by the use of candidate committees as conduits. Contributions to candidate committees posed no threat that a “person . . . might . . . contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to

political committees likely to contribute to that candidate, or huge contributions to the candiPreliminary-Injunction Memorandum 35
date’s political party.” 424 U.S. at 38. No “massive” funds could be channeled through candidate

committees because candidate committees were “persons” limited to contributing $1,000 per

election to candidates or candidate’s committees under the FECA scheme that Buckley considered. In 1980 Congress enacted a new limit of $1,000 per election on contributions from candidate committees to candidates committees, see Pub. L. No. 96-187, 93 Stat. 1339 (1980), codified at 42 U.S.C. 432(e)(3)(A)-(B), which was increased to $2,000 in 2004, see Pub. L. No. 108-

447, 118 Stat. 2809 (2004). See 11 C.F.R. 102.12(c)(2) and 102.13(c)(2) (same). Consequently,

contributions to candidate committees could not pose any possibility of circumvention by “massive” contributions to candidate committees that might somehow benefit other candidates. Even

Congress itself clearly does not view contributions to candidate committees as posing a circumvention risk. See CMA, 453 U.S. at 198 n.18 (quoted supra at 11).

The fact that this biennial aggregate limit is not remotely directed at quid-pro-quo corruption

or circumvention—but is directed at a noncognizable anti-distortion interest—is demonstrated by

simple arithmetic. In 2006, the Supreme Court invalidated a contribution limit of $200 per election to statewide candidates passed by the Vermont legislature, holding that it was unconstitutionally low. Randall, 548 U.S. at 249, 262-63. Vermont’s population in 2004 was 621,000, id. at

250, well below the population of the average congressional district, i.e., 646,947. By compari- 1

son, in 2006 the biennial aggregate contribution limit was $40,000. If an individual wanted to

make a contribution of equal value to one candidate of his choice in all 468 federal races that

year (435 House races, 33 Senate races, and the presidential race), in order to comply with 2

U.S.C. 441a(a)(3)(A), he would have been limited to contributing only $85.29 per candidate for

 In 2000, the population of the average congressional district was 646,947 (dividing the 1

U.S. population, 281,421,90, see http://www.census.gov/main/www/cen2000.html, by 435).

Preliminary-Injunction Memorandum 36
the entire 2006 election cycle, which amounts to $42.64 per election (primary and general). That

is far below the $200 limit held too low in Randall. In the 2012 biennium, with an aggregate

limit of $46,200, McCutcheon is limited to $98.71 per candidate for the entire cycle (468 races).

This amounts to a mere $49.35 per election—and leaves out the fact that thirty-three of those

races are statewide races for Senator, requiring candidates to reach an average of 8.7 times the

number of persons needed to be reached in a congressional campaign. Aside from being too low

under Randall, see infra Count 5, considering that $49.35 is $2,450.65 less than the per-candidate limit Congress itself deems permissible, it is clear—based on the math alone—that the aggregate limit has nothing to do with preventing corruption or circumvention.

Instead, the math demonstrates that this restriction furthers only the antidistortion goals, an

illegitimate government purpose. See, e.g., Davis, 554 U.S. at 741-42. To the extent the government argues that, despite appearances, the aggregate limit is actually directed at quid-pro-quo

corruption or circumvention, the fact remains that this limit operates in addition to the base percandidate limit, which McCutcheon does not challenge. The burden is on the FEC to demonstrate

how an aggregate limit on contributions to candidates addresses a threat of corruption. The court

should not defer to Congress’s judgment on the scope of the corruption threat and the constitutionality of responses thereto because incumbents are not motivated to protect candidates challenging their hold on power. See Randall, 548 U.S. at 270 n.2 (Thomas, J., concurring). While

prior holdings of the Supreme Court have extended deference to Congressional judgment on contribution limits, see, e.g., Davis, 554 U.S. at 737, those holdings should be revisited, if necessary,

though the Supreme Court has since clarified that deference must yield to the First Amendment.

See Citizens United, 130 S. Ct. at 911 (“When Congress finds that a problem exists, we must

give that finding due deference; but Congress may not choose an unconstitutional remedy.”).

Preliminary-Injunction Memorandum 37
As noted, Buckley did not even suggest that contributions to candidates might pose the circumvention risk because there was no possibility of “massive” amounts moving through candidate committees “to” candidates. 424 U.S. at 38. And there was no candidate-committee proliferation problem because each candidate had only one principal-campaign committee, id. at 187,

and contributions to any authorized candidate committee were deemed made to the candidate, id.

at 189-90. So Buckley’s concerns in upholding the old ceiling simply did not exist with respect to

individuals’ contributions to candidates.

This remains true because individuals now may contribute a mere $2,500 per candidate per

election and candidate committees may contribute only $2,000 per candidate per election to other

candidates. See supra at 19. Moreover, “[a]ll authorized committees of the same candidate for

the same election to Federal office are affiliated,” 11 C.F.R. 100.5(g)(1), so there is no proliferation. Yet in BCRA, Congress acted as if the circumvention risk somehow had increased by restricting what contributors could do in three ways.

First, it failed to properly adjust for inflation from the 1974 FECA scheme that Buckley considered. The old $1,000 limit on a person’s contribution to a candidate is now worth $4,667, not

the current $2,500 limit, and an individual should be able to contribute $9,334 to a candidate for

a primary- and general-election cycle, not the current mere $5,000 See supra at 21. And in 1974,

if an individual wanted to give his whole “overall $25,000 ceiling” to candidates, that biennial

ceiling is now worth $116,676, not the $46,200 biennial limit currently allowed for contributions

to candidates. See supra at 20.

Second, BCRA decreased the number of candidates with which a contributor may associate

by giving the maximum contribution. Under Buckley’s old “overall $25,000 ceiling” on contributions, an individual deciding to give all of his ceiling to candidates could contribute the maxiPreliminary-Injunction Memorandum 38
mum amount per election ($1,000) to 25 candidates in a biennium. Under BCRA’s new $46,200

biennial limit on contributions to candidates, an individual may contribute the maximum amount

per election ($2,500) to 18 candidates in a biennium (with a $1,200 contribution to another). Or

if an individual gave to each candidate in both primary and general elections, a contributor giving

the maximum amount under Buckley’s “ceiling” could give to 12 candidates (with a $1,000 contribution to another) but under BCRA could only give to 9 candidates (with $1,200 to another).

Third, Congress isolated candidate contributions in BCRA’s biennial contribution limits by

giving them their own limit (currently $46,200) that is not dependent on what an individual contributed to non-candidate committees. 2 U.S.C. 441a(a)(3). Thus, Congress decided that giving

solely to candidates posed a circumvention interest. This is unlike the “overall $25,000 ceiling”

on all contributions that was facially upheld in Buckley, see 424 U.S. at 38, which included contributions to candidates, party committees, and PACs in one ceiling. Thus, there can be no argument now that this biennial limit is analytically part of an anti-circumvention package with contributions to party committees and PACs. Rather, this $46,200 biennial limit must be justified

solely on the basis that the government can establish a clear anti-circumvention interest as applied to individual contributions to candidate committees.

Congress has failed to justify these changes by explaining how there is a greater circumvention risk now than in 1974. Of course, there was no risk then, and there is no greater risk now,

because (a) Buckley expressed no conduit concerns as to candidate committees, (b) there were

was no conduit potential in 1974, and (c) anti-proliferation provisions and contribution limits

enacted in 1976 eliminated any conduit concerns the Buckley Court might have had. Because

there are limits on contributions to candidate committees ($1,000 when Buckley was decided and

now $2,500 per candidate per election), there is neither a quid-pro-quo-corruption risk as to that

Preliminary-Injunction Memorandum 39
candidate nor any “massive” contribution to be passed along to another candidate in circumvention of the base contribution limits. Consequently, there is no cognizable interest to justify the

biennial contribution limit as applied to contributions to candidates or candidate committees.

It strains credulity to suggest that officeholders desire so little the hard-money funds they

receive from individuals that they would forward them on to another candidate and credit the

original, individual contributor. The more likely scenario is that the officeholder would credit

himself with the $2,000 in support and not credit the initial individual contributor at all. After all,

the leadership PACs, which are non-connected committees controlled by an officeholder, exist to

propel the officeholder into leadership positions, not to credit the initial, individual contributors

that in turn fund leadership PAC contributions to other candidates. Bundlers of campaign contributions also exist. See 2 U.S.C. 441a(a)(8); 11 CFR 110.6. But bundling aggrandizes the bundler

not the individuals who make $2,500 contributions via the bundler.

This is true even absent earmarking, though earmarking contributions to a candidate via another officeholder’s authorized committee is already illegal, 2 U.S.C. 441a(a)(8) and 441f. Individuals even suggesting that the first officeholder forward $2,000, see 2 U.S.C. 432e(3)(B), of

the original $2,500 contribution, see 2 U.S.C. 441a(a)(l)(A), to another candidate violate the earmarking prohibition. Moreover, even if candidate committees could be deemed conduits absent

earmarking, the $2,000 contribution limit raises no corruption concerns. If used to support a Senate candidate running statewide, $2,000 is only five times greater than the $400 limit struck down

in Randall six years ago as too low to further a statewide campaign in Vermont. Randall, 548

U.S. at 253, 261-62. And “Vermont is about one-ninth the size of Missouri.” Id. at 251.

In sum, because the biennial aggregate limit on candidate contributions at 2 U.S.C.

441a(a)(3)(A) is unsupported by any cognizable government interest, it fails constitutional scruPreliminary-Injunction Memorandum 40
tiny at any level of review.

F. (Count 5) The Biennial Limit on Contributions to Candidate Committees Is Unconstitutionally Too Low.

McCutcheon challenges the biennial limit on contributions to candidate committees (currently $46,200 per biennium) at 2 U.S.C. 441a(a)(3)(A) as unconstitutional because it is unconstitutionally too low. The reasons set out above, supra at 36 (first full paragraph), demonstrate

the unconstitutionality of this biennial limit. Because the biennial aggregate limit on contributions to candidates, is set at an amount that prevents Mr. McCutcheon from meaningfully associating with all the candidates of his choice, it is set too low to pass muster under the First Amendment to the United States Constitution and must be invalidated. The biennial limit at 2 U.S.C.

441a(a)(3)(A) is unconstitutional under the First Amendment guarantees of free speech and association because it is not properly tailored because it is too low.

II. Plaintiffs Have Irreparable Harm.

In First Amendment challenges, once likely merits success is established, the other preliminary injunction elements follow as a result. See, e.g., Sammartano, 303 F.3d at 973-74. “When a

party seeks a preliminary injunction on the basis of a potential First Amendment violation, the

likelihood of success on the merits will often be the determinative factor.” Joelner v. Village of

Washington Park, 378 F.3d 613, 620 (7th Cir.2004) (citing Connection Distrib. Co. v. Reno, 154

F.3d 281, 288 (6th Cir.1998)). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373

(1976). “Given that First Amendment rights are at stake, the likelihood of irreparable harm is presumed.” Yamada v. Kuramoto, 744 F. Supp. 2d 1075, 1085 (D. Haw. 2010). “[A]ny post-election

remedy would not compensate . . . for the loss of the freedom of speech.” Brownsburg Area PaPreliminary-Injunction Memorandum 41
trons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir.1998).2

Because Plaintiffs have likely success on the claim that their First Amendment rights are

being violated, they have irreparable harm. As this Court has held in finding irreparable harm in

Carey, “political speech is at the very core of the First Amendment. The right to speak effectively

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.” 791 F. Supp. 2d at 133-34

(citations and quotation marks omitted). Plaintiffs want to make and receive contributions without regard to the biennial contribution limits. The political season is in full swing, with primaries

ongoing, conventions upcoming, and a November election looming. If Plaintiffs lose this opportunity to make and receive contributions without regard to the challenged limits and to use them

for core political activity protected by the First Amendment, the opportunity will be lost forever.

Plaintiffs’ rights are in fact being impaired now; there is nothing speculative about their claims.

See also Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (“There appears to be no 2

dispute over the appellants’ entitlement to relief under the other criteria if their First Amendment

rights were violated” (citing Elrod, 427 U.S. at 369-73); Jones v. Caruso, 569 F.3d 258, 277 (6th

Cir. 2010) (likely success prong is “most important . . . and often determinative in First Amendment cases”); Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (likely merits success in

First Amendment case established irreparable harm and favorable equities balance and public

interest); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2948.1 (2d ed. 1995) (When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable harm is necessary.”).

The violation of an individual’s constitutional guarantees is intolerable and undoubtably causes

irreparable injury. The Supreme Court has recognized that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod,

427 U.S. at 372; see also Newson v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“[E]ven minimal

infringement upon First Amendment values constitutes irreparable injury sufficient to justify

injunctive relief.”). If [the challenged provision] does in fact violate Plaintiffs’ constitutional

freedom of association or speech, allowing its continued operation would cause Plaintiffs

irreparable harm.

Foster v. Dilger, No. 3:10-cv-00041, 2010 WL 3620238, at *3 (E.D. Ky. Sept. 9, 2010) (memorandum and order granting preliminary injunction).

Preliminary-Injunction Memorandum 42
See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006)

(“Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.”)

While Plaintiffs are irreparably harmed right now, that harm is ongoing and increases as time

passes. Any contribution that Mr. McCutcheon cannot make now dilutes the amount of speech he

can make in the 2012 primary elections and subsequent elections within the same biennium. Any

contributions that RNC cannot now receive cannot be used before the coming general election

and the opportunity for association with would-be contributors will be lost forever.

III. The Balance of Harms Favors Plaintiffs.

The balance of harms favors Plaintiffs. “[There can be no irreparable harm to [the government] when it is prevented from enforcing an unconstitutional statute because ‘it is always in the

public interest to protect First Amendment liberties.’” Joelner, 378 F.3d at 620 (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)). “The harm and difficulty of changing a regulation cannot be said to outweigh the violation of constitutional rights it perpetuates. It

would be far worse that an election continue under an unconstitutional regime than the [government agency] experience difficulty or expense in altering that regime.” Foster, No. 3:10-cv00041, 2010 WL 3620238, at *7. In WRTL-II, the Supreme Court made clear that in any conflict

between First Amendment rights and regulation, courts “must give the benefit of any doubt to

protecting rather than stifling speech,” and that “the tie goes to the speaker, not the censor.” 551

U.S. at 469, 474 (controlling opinion). Thus, while the FEC can be said to have an enforcement

interest, that interest cannot trump Plaintiffs’ First Amendment rights.

IV. The Public Interest Favors Plaintiffs.

The public interest favors Plaintiffs. “‘It is in the public interest not to perpetuate the unconPreliminary-Injunction Memorandum 43
stitutional application of a statute.’” Foster, No. 3:10-cv-00041, 2010 WL 3620238, at *7 (quoting Martin–Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.1982). “[I]t is always in

the public interest to prevent the violation of a party’s constitutional rights.”). Martin-Marietta

Corp., 690 F.2d at 568 (citation omitted). The government may not be heard to argue that it has

an enforcement interest, that duly-enacted laws must be presumed constitutional, that there will

be a ‘wild west’ scenario shortly before an election or that the status quo must be preserved if 3 4

the First Amendment prescribes liberty. Such interests asserted for balancing harms or determining public interest are not cognizable if they were inadequate to defeat a determination of likely

success on the merits. The First Amendment trumps all such interests.

 “[F]inding these laws unconstitutional will not likely result in the type of chaotic ‘wild 3

west’ scenario Defendants . . . foretell. Rather, it will simply result in the dissemination of more

information of precisely the kind the First Amendment was designed to protect.” Ctr. for Individual Freedom, Inc. v. Ireland, 613 F. Supp. 2d 777, 807 (S.D. W. Va. 2009) (“CFIF”).

 The notion that a free speech and association plaintiff cannot get preliminary injunctive 4

relief because of the status quo was recently rejected by a federal court:

The purpose of a preliminaryinjunction is to preserve the status quo between the parties pending

a final determination on the merits. Merrill Lynch, Pierce, Fenner & Smith v. Grall, 836 F.

Supp. 428, 431-432 (W.D. Mich. 1993) (citing University of Texas v.Camenisch, 451 U.S. 390,

395 (1981)). In this case, the status quo is the operation and enforcement of [the challenged

contribution limit]. It could be argued that enjoining enforcement of the statute would be improper because doing so would disrupt the status quo rather than preserve it. However, the Sixth

Circuit has held that “[t]oo much concern with the status quo may lead a court into error.”

Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978). There is no “particular magic”

in the phrase “status quo.” Id. “The purpose of a preliminary injunction is always to prevent

irreparable injury so as to preserve the court’s ability to render a meaningful decision on the

merits.” Id. If the current status quo is the cause of the irreparable injury, the Court should alter

the status quo to prevent the injury. Id. In doing so, the Court returns to the “last uncontested

status quo between the parties.” Id. (citing Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190 (9th Cir. 1953)). Here, there is no bar to the Court granting a preliminary

injunction because it would disrupt the “status quo.”

Foster, No. 3:10-cv-00041, 2010 WL 3620238, at *2.

Preliminary-Injunction Memorandum 44
Conclusion

For the reasons shown, this Court should grant the requested preliminary injunction. And the

Court should waive the bond requirement, Fed. R. Civ. P. 65(c), which is discretionary and appropriate to waive in constitutional challenges. See Cobell v. Norton, 225 F.R.D. 41, 50 n.4

(D.D.C. 2004); Ogden v. Marendt, 264 F. Supp. 2d 785, 795 (S.D. Ind. 2003).

Of Counsel for Shaun McCutcheon:

Stephen M. Hoersting*

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

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

Washington, DC 20003

202/210-5431 phone

202/478-0750 fax

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Jerad Wayne Najvar*

NAJVAR LAW FIRM

One Greenway Plaza, Suite 225

Houston, TX 77046

281/404-4696

jerad@najvarlaw.com

Respectfully submitted,

 /s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Jeffrey P. Gallant*

jgallant@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application Filed

Preliminary-Injunction Memorandum 45
Certificate of Service

I hereby certify that the foregoing document was served on June 22, 2012 on the following

persons by this Court’s electronic case filing service (“ECF”) (as applicable), by First Class U.S.

Mail, and by a courtesy copy to Anthony Herman at aherman@fec.gov and Adav Noti at

anoti@fec.gov:

Anthony Herman, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

aherman@fec.gov

Counsel for Defendant FEC.

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

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

Washington, DC 20003

Preliminary-Injunction Memorandum