UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

______________________________________ 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY DEMOCRATS ) 

(“STOP REID”), NIGER INNIS, NIGER ) 

INNIS FOR CONGRESS, TEA PARTY ) 

LEADERSHIP FUND, and ALEXANDRIA ) 

REPUBLICAN CITY COMMITTEE, ) 

 ) 

Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 1:14-cv-00397 AJT-IDD 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

______________________________________ ) 

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR SUMMARY JUDGMENT

 Michael T. Morley (VSB #65762) 

 COOLIDGE-REAGAN FOUNDATION

 1629 K Street N.W., Suite 300 

 Washington, D.C. 20006 

 Phone: (202) 603-5397 

 Fax: (202) 331-3759 

michael@coolidgereagan.org 

 Dan Backer (VSB #78256) 

 DB CAPITOL STRATEGIES 

 717 King Street, Suite 300 

 Alexandria, VA 22314 

 Phone: (202) 210-5431 

 Fax: (202) 478-0750 

DBacker@DBCapitolStrategies.com 

Counsel for Plaintiffs

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i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ..................................................................................................... iii

INTRODUCTION ...................................................................................................................... 1 

LISTING OF UNDISPUTED FACTS ....................................................................................... 3 

 A. STOP REID and Discriminatory Limits on Contributions to Candidates .......... 3 

 B. The Fund and Discriminatory Limits on 

 Contributions to National Political Party Committees ........................................ 6 

 C. The Fund and Discriminatory Limits on 

 Contributions to State and Local Political Party Committees ............................ 7 

STATEMENT OF THE CASE ................................................................................................... 8 

ARGUMENT ............................................................................................................................ 10 

I. IMPOSING DIFFERENT CONTRIBUTION LIMITS ON IDENTICALLY 

 SITUATED POLITICAL COMMITTEES, BASED ON HOW LONG THEY 

 HAVE BEEN REGISTERED WITH THE FEC, VIOLATES THE EQUAL 

 PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE ........................ 11 

 A. The Disparate Limits for Contributions from Political 

 Committees to Candidates Violate the Equal Protection Clause ...................... 13 

 1. Political committees that have been registered for less than 

 six months are materially indistinguishable from such committees 

 that have been registered for more than six months ............................. 13 

 2. Section 441a(a)(4)’s six-month waiting period for contributing 

 the maximum statutory amount to candidates does not further 

 any important interests underlying campaign finance law ................... 14 

 3. Even assuming that § 441a(a)(4)’s six-month waiting period 

 furthers an important interest, it is not sufficiently tailored .................. 17 

 4. Plaintiffs’ Equal Protection challenge 

 is consistent with Buckley v. Valeo ....................................................... 18 

 5. The Government cannot adduce any evidence in support of 

 the distinction among otherwise identical committees 

 that § 441a(a)(4)’s six-month waiting period establishes ..................... 21 

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ii 

 B. The Disparate Limits for Contributions from Political 

 Committees to State and National Political Party 

 Committees Also Violates the Equal Protection Clause ................................... 24 

II. THE FIRST AMENDMENT PROHIBITS THE GOVERNMENT 

 FROM REQUIRING POLITICAL COMMITTEES TO WAIT SIX 

 MONTHS BEFORE ASSOCIATING WITH AND EXPRESSING 

 SUPPORT FOR CANDIDATES BY MAKING CONTRIBUTIONS OF $5,000 ...... 26 

CONCLUSION ......................................................................................................................... 30 

 

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TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze, 

 460 U.S. 780 (1983) ...................................................................................................... 15

Arlington Cnty. Republican Comm. v. Arlington Cnty., 

 790 F. Supp. 618 (E.D. Va. 1992) ................................................................................ 27 

Att’y Gen. of N.Y. v. Soto-Lopez, 

 476 U.S. 898 (1986) ...................................................................................................... 13

Bolling v. Sharpe, 

 347 U.S. 497 (1954) .................................................................................................. 1, 12 

Buckley v. Valeo, 

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

Cal. Med. Ass’n v. FEC, 

 453 U.S. 182 (1981) ............................................................................................ 2, 13, 15 

Carroll v. Comm’rs of Princess Anne, 

 393 U.S. 175 (1968) ...................................................................................................... 27

Citizens Against Rent Cont. / Coal. for Fair Hous. v. Berkeley, 

 454 U.S. 290 (1981) ...................................................................................... 1, 17, 23, 29 

Citizens United v. FEC, 

 558 U.S. 310 (2010) .................................................................................... 13, 17, 18, 23 

Colorado Republican Fed. Campaign Comm. v. FEC, 

 518 U.S. 604 (1996) ...................................................................................................... 18

Douglas v. Brownell, 

 88 F.3d 1511 (8th Cir. 1996) ............................................................................ 27, 28, 30 

FEC v. Colo. Republican Fed. Campaign Comm., 

 533 U.S. 431 (2001) ................................................................................................ 16, 23 

FEC v. Nat’l Conservative Political Action Comm., 

 470 U.S. 480 (1985) ..................................................................................... 18, 21-22, 23 

First National Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978) ...................................................................................................... 23

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Fw/Pbs, Inc. v. Dallas, 

 493 U.S. 215 (1990) .................................................................................................. 2, 27 

Grossman v. City of Portland, 

 33 F.3d 1200 (9th Cir. 1994) ........................................................................................ 28 

Long Beach Area Peace Network v. City of Long Beach, 

 574 F.3d 1011 (9th Cir. 2009) .......................................................................... 27, 28, 30 

McConnell v. FEC, 

 540 U.S. 93 (2003) ........................................................................................................ 16 

NAACP v. Ala. ex rel. Patterson, 

 357 U.S. 449 (1958) ...................................................................................................... 13

NAACP, Western Region v. Richmond, 

 743 F.2d 1346 (9th Cir. 1984) ...................................................................................... 27 

Nixon v. Shrink Missouri Gov’t PAC, 

 528 U.S. 377 (2000) ................................................................................................ 21, 22 

Plyler v. Doe, 

 457 U.S. 202 (1982) ...................................................................................................... 13

Police Dep’t of the City of Chicago v. Mosley, 

 408 U.S. 92 (1972) ........................................................................................................ 14 

Rosen v. City of Portland, 

 641 F.2d 1243 (9th Cir. 1981) .......................................................................... 27, 28, 30 

Santa Monica Food Not Bombs v. City of Santa Monica, 

 450 F.3d 1022 (9th Cir. 2006) ...................................................................................... 27 

Shuttlesworth v. City of Birmingham, 

 394 U.S. 147 (1969) ...................................................................................................... 26

Turner Broad. Sys., Inc. v. FCC, 

 512 U.S. 622 (1994) ...................................................................................................... 21

United States v. Carolene Products, Co., 

 304 U.S. 144 (1938) ........................................................................................................ 2 

Wagner v. FEC, 

 854 F. Supp. 2d 83 (D.D.C. 2012) ................................................................................ 14 

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Statutes

2 U.S.C. § 431 ................................................................................................................. 1, 10, 15 

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

2 U.S.C. § 441b ......................................................................................................................... 15 

2 U.S.C. § 441f ................................................................................................................... 21, 22 

Other Authorities

FEC, Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

78 FED. REG. 8,530 (Feb. 6, 2013) ...................................................................................... 10, 11 

Fed. R. Civ. P. 56 ...................................................................................................................... 12 

John Hart Ely, Democracy and Distrust (1980) ......................................................................... 1 

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INTRODUCTION 

 

 This case is about “clearing the channels of political change,” John Hart Ely, Democracy 

and Distrust 74 (1980), especially for citizens who have become politically active and joined 

together to defeat entrenched incumbents who no longer represent their interests. 

Voters who share common ideals and seek to advance the same goals often band together 

into groups—modern Committees of Correspondence, see Citizens Against Rent Cont. / Coal. for 

Fair Hous. v. Berkeley, 454 U.S. 290, 294 (1981)—that the Federal Election Campaign Act 

(“FECA”) refers to as “political committees,” 2 U.S.C. § 431(4)(A). Federal law 

unconstitutionally imposes discriminatory limits on the amount that identically situated political 

committees may contribute to the candidates and political parties they support, based solely on 

how long the committees have existed. 

 A political committee with more than 50 contributors, that supports at least 5 candidates, 

and that has been registered with the FEC for less than six months may contribute $2,600 per 

election to a federal candidate. Another committee that is identical in every way—that engages 

in the same types of activities, supports the same number of candidates, has the same number of 

contributors, and seeks to influence the same elections—but that has existed for more than six 

months may contribute $5,000 per election to a candidate for federal office. 

Such discrimination in the amounts that similarly situated political committees may 

contribute to the candidates they support, based solely on whether the committee has existed for 

more than six months, violates the equal protection component of the Fifth Amendment’s Due 

Process Clause. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). The Supreme Court has long 

recognized that campaign contribution limits burden the fundamental First Amendment right of 

association. Buckley v. Valeo, 424 U.S. 1, 22, 24-25 (1976). The challenged framework cannot 

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survive heightened Equal Protection scrutiny because it imposes disparate burdens on different 

committees’ First Amendment rights without furthering a substantial government interest or 

being reasonably tailored to achieve any such interest. Id.; see also Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 200 (1981) (hereafter, “CalMed”). This disparity gives longstanding committees that 

are already entrenched in the political system a substantial advantage over newly coalescing 

grassroots groups that struggle to challenge the status quo and “bring about the repeal of 

undesirable legislation.” United States v. Carolene Products, Co., 304 U.S. 144, 152 n.4 (1938). 

Additionally, delays and “waiting periods” for political association and speech are highly 

suspect under the First Amendment. Fw/Pbs, Inc. v. Dallas, 493 U.S. 215, 228 (1990) (opinion 

of O’Connor, J.). Although contribution limits generally are constitutional, requiring recently 

formed committees to wait six months before being able to contribute the full statutory amount 

to the candidates they support directly burdens those groups’ First Amendment rights, as well. 

 Finally, any interest the Government might assert in limiting political committees’ 

contributions during the first six months of their existence is entirely undermined by the fact that 

the law imposes the exact opposite structure on political committees’ contributions to local, state, 

and national political parties. Throughout the first six months of its existence, a political 

committee that has more than 50 contributors and contributes to at least 5 candidates may give a 

combined total of $10,000 to a state political party committee and its affiliated local party 

committees, as well as $32,400 to a national political party committee. After that committee has 

been registered with the FEC for six months, however, those limits drop precipitously to $5,000 

and $15,000, respectively. This disparity violates equal protection because reducing the amount 

a committee may contribute after it has existed for six months is not a reasonably tailored way of 

furthering a substantial governmental interest. 

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Thus, the current statutory framework, in which the various contribution limits for a 

political committee change in completely contradictory ways once the committee has existed for 

six months, cannot survive constitutional scrutiny. This Court should invalidate the six-month 

waiting period to which political committees are subject before they may contribute $5,000 to 

candidates. It also should protect longstanding political committees from reductions in the 

amounts they may contribute to local, state, and national political parties. 

LISTING OF UNDISPUTED FACTS

A. STOP REID and Discriminatory Limits on Contributions to Candidates

1. Plaintiff STOP Reckless Economic Insanity Caused By Democrats (“STOP 

REID”) is a “political committee” under the FECA. See Declaration of Gregory Campbell, ¶ 3, 

attached as Ex. A (hereafter, “Campbell Decl.”). 

2. STOP REID is registered in Alexandria, VA. Campbell Decl. ¶ 5. 

3. STOP REID registered with the Federal Election Commission (“FEC”) on 

February 24, 2014. Campbell Decl. ¶ 6. 

4. Because the FEC did not post STOP REID’s registration on its website, STOP 

REID resubmitted its registration paperwork on April 4, 2014. Campbell Decl. ¶ 7. 

5. STOP REID’s registration nevertheless is effective as of its original filing date of 

February 24, 2014. It has been a registered political committee for less than six months. 

Campbell Decl. ¶¶ 6-7. 

6. As of April 8, 2014, STOP REID has over 150 contributors. Campbell Decl. ¶ 8. 

7. As of April 8, 2014, STOP REID has made financial contributions to five (5) 

candidates for federal office, including Niger Innis. Campbell Decl. ¶ 9. 

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8. Although STOP REID has more than 50 contributors, and has contributed to at 

least 5 candidates, the maximum amount that federal law permits it to contribute to any particular 

federal candidate in connection with an election is $2,600, because it has been registered with the 

FEC for less than six months. Campbell Decl. ¶¶ 10-11; 2 U.S.C. § 441a(a)(1)(A). 

9. Plaintiff Niger Innis is a candidate for the Republican nomination for the U.S. 

House of Representatives in Nevada’s fourth congressional district (hereafter, “Nevada 

Primary”). Declaration of Niger Innis, ¶ 3, attached as Ex. B (hereafter, “Innis Decl.”). 

10. As of April 10, 2014, STOP REID has contributed $2,600 to candidate Innis 

towards the Nevada Primary. Campbell Decl. ¶ 9; Innis Decl. ¶ 4. 

11. The Nevada Primary will occur on June 10, 2014. Innis Decl. ¶ 5. 

12. As of April 10, 2014, STOP REID has, and will continue to maintain, a minimum 

of $7,400 in its bank account. Campbell Decl. ¶ 12. 

13. STOP REID wishes to contribute an additional $2,400 to Innis in connection with 

the Nevada Primary, for a total of $5,000 in connection with that election. It wishes to contribute 

those funds immediately, without having to wait a total of six months. Campbell Decl. ¶ 13. 

14. If STOP REID had been registered with the FEC for more than six months, it 

would qualify as a “multicandidate political committee” and be permitted under 2 U.S.C. 

§ 441(a)(4) to immediately contribute a total of $5,000 to Innis in connection with the Nevada 

Primary. Campbell Decl. ¶ 14. 

15. The Nevada Primary is less than six months away. STOP REID will not be able 

to qualify as a multicandidate PAC before that election occurs, and therefore will be permanently 

deprived of the right to fully exercise its First Amendment rights by contributing a total of 

$5,000 to Innis in connection with the Nevada Primary. Campbell Decl. ¶ 14. 

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16. If federal law presently permitted STOP REID to contribute a total of $5,000 to 

Innis in connection with the Nevada Primary, STOP REID already would have done so. Federal 

law’s $2,600 contribution limit, as well as the threats of enforcement by the FEC and criminal 

prosecution by the Department of Justice, are the only factors chilling STOP REID’s full 

exercise of its First Amendment rights. Campbell Decl. ¶¶ 11, 15. 

17. STOP REID shares candidate Innis’ commitment to limited government, lower 

taxes, and respecting fundamental constitutional rights. It wishes to contribute a total of $5,000 

as a way of associating itself with Innis, demonstrating its support for him, and assisting his 

campaign. Campbell Decl. ¶ 16. 

18. Innis shares STOP REID’s values, wishes to associate with STOP REID to the 

maximum extent permissible by law, and would like to accept a total of $5,000 from STOP 

REID in connection with the Nevada Primary. Innis Decl. ¶ 6. 

19. STOP REID is registered and based in Virginia. It has no offices in or near the 

State of Nevada, and few of its contributors live in or near Nevada. Campbell Decl. ¶¶ 5, 17. 

20. STOP REID nevertheless seeks to associate with Innis to the maximum extent 

legally possible because he embodies its political philosophy and message. Campbell Decl. ¶ 16. 

21. Because neither STOP REID nor most of its members are located near the State of 

Nevada, making financial contributions is one of the only realistic and practical ways in which 

STOP REID can associate with Innis, particularly in association with one another to collectively 

promote their values. Campbell Decl. ¶¶ 17-18. 

22. STOP REID does not have the staff or financial resources to prepare and engage 

in independent expenditures on Innis’ behalf. Campbell Decl. ¶ 19. 

23. STOP REID’s website attracts very few visitors. Campbell Decl. ¶ 20. 

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B. The Fund and Discriminatory Limits on 

Contributions to National Political Party Committees 

 

24. Plaintiff Tea Party Leadership Fund (hereafter, “Fund”) is a “political committee” 

under the FECA. See Declaration of Caitlin Contestable, ¶ 3, attached as Ex. C (hereafter, 

“Contestable Decl.”). 

25. The Fund is registered in Alexandria, Virginia. Contestable Decl. ¶ 5. 

26. The Fund registered with the FEC on May 9, 2012. As of April 10, 2014, it has 

been registered with the FEC for nearly two years. Contestable Decl. ¶ 6. 

27. As of April 10, 2014, the Fund has over 100,000 contributors. Contestable Decl. 

¶ 7. 

28. As of April 10, 2014, the Fund has made financial contributions to dozens of 

federal candidates. Contestable Decl. ¶ 8. 

29. Because the Fund has more than 50 contributors, contributed to at least 5 

candidates, and has been registered with the FEC for more than six months, the maximum 

amount that federal law permits it to contribute to a national political party committee is $15,000 

each year. Contestable Decl. ¶ 9; 2 U.S.C. §§ 441a(a)(2)(B), 441a(a)(4). 

30. If the Fund had been registered with the FEC for less than six months, it would 

have qualified as a “person” rather than a “multicandidate political committee,” and been 

permitted to contribute up to $32,400 each year to a national political party committee. 

Contestable Decl. ¶ 9; 2 U.S.C. §§ 441a(a)(1)(B), 441a(a)(4). 

31. The National Republican Senatorial Committee (“NRSC”) is a national political 

party committee. Contestable Decl. ¶ 12. 

32. As of April 10, 2014, the Fund has, and will continue to maintain, a minimum of 

$37,400 in its bank account. Contestable Decl. ¶ 11. 

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33. The Fund wishes to contribute $32,400 to the NRSC in 2014. Contestable Decl. 

¶ 13. 

34. If federal law permitted the Fund to contribute $32,400 to the NRSC each year, 

the Fund already would have done so. The $15,000 contribution limit, as well as the threats of 

enforcement by the FEC and prosecution by the Department of Justice, are the only factors 

chilling the Fund’s full exercise of its First Amendment rights. Contestable Decl. ¶¶ 10, 13. 

C. The Fund and Discriminatory Limits on 

Contributions to State and Local Political Party Committees 

 

35. Because the Fund has more than 50 contributors, contributed to at least 5 federal 

candidates, and has been registered with the FEC for more than six months, the maximum 

amount that it may contribute to a state political party committee and its affiliated local political 

party committees is $5,000 each year. Contestable Decl. ¶ 14; 2 U.S.C. § 441a(a)(2)(C), (a)(4). 

36. If the Fund had been registered with the FEC for less than six months, it would 

have qualified as a “person” rather than a “multicandidate political committee,” and been 

permitted to contribute up to $10,000 each year to a state political party committee and its 

affiliated local party committees. Contestable Decl. ¶ 14; 2 U.S.C. § 441a(a)(1)(D), (a)(4). 

37. The Alexandria Republican City Committee (“ARCC”) is a local political party 

committee. It is affiliated with the Virginia Republican State Committee, a state political party 

committee. Contestable Decl. ¶ 15. 

38. As of April 10, 2014, the Fund has contributed $5,000 to the ARCC. Contestable 

Decl. ¶ 16. 

39. The Fund wishes to immediately contribute an additional $5,000 to the ARCC, for 

a total of $10,000 in 2014. Contestable Decl. ¶ 17. 

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40. If federal law permitted the Fund to contribute $10,000 to the ARCC in a single 

year, the Fund already would have done so. The $5,000 contribution limit, as well as the threats 

of enforcement by the FEC and prosecution by the Department of Justice, are the only factors 

chilling STOP REID’s full exercise of its First Amendment rights. Contestable Decl. ¶¶ 17-18. 

41. The Fund shares the ARCC’s commitment to federalism and devolving 

governmental responsibility to local governments, lower taxes, and respecting fundamental 

constitutional rights. The Fund wishes to contribute a total of $10,000 to the ARCC in 2014 as a 

way of associating itself and its members with the ARCC, demonstrating its support for the 

ARCC, and furthering the ARCC’s mission. Contestable Decl. ¶ 19. 

STATEMENT OF THE CASE

 This case challenges the discriminatory and conflicting changes in campaign contribution 

limits that apply to a political committee, once it has been registered with the FEC for more than 

six months. Otherwise similarly situated political committees are subject to substantially 

different limits on contributions to candidates, state and local political party committees, and 

national political party committees, based solely on whether they are more than six months old. 

Individuals who share common a political philosophy, interests, and goals may join 

together to collectively participate in the political process by forming a “political committee.” 2 

U.S.C. § 431(4)(A). “[T]he practice of persons sharing common views banding together to 

achieve a common end is deeply embedded in the American political process.” Citizens Against 

Rent Cont., 454 U.S. at 294. Through such “collective effort[,] individuals can make their views 

known, when, individually, their voices would be faint or lost.” Id. 

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When it is initially formed, a political committee—including a committee that has more 

than 50 contributors and has made contributions to 5 or more candidates—is treated as a 

“person.” See 2 U.S.C. § 431(11). Such a recently formed political committee may contribute: 

● $2,600 per election to each candidate, 2 U.S.C. § 441a(a)(1)(A), with primary and 

general elections treated as separate elections, id. § 431(1)(A); 

● a total of $10,000 annually to a state political party committee and its affiliated 

local political party committees, id. § 441a(a)(1)(D); and 

● $32,400 annually to a national political party committee, id. § 441a(a)(1)(B). 

See FEC, Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 78 FED. REG. 8,530, 8,532 (Feb. 6, 2013) (hereafter, “FEC Price 

Index Adjustments”) (adjusting for inflation limits on contributions to candidates and national 

political party committees). 

Political committees that have received contributions from more than 50 contributors and 

contributed to at least 5 candidates are treated as “multicandidate political committees,” rather 

than “persons,” once they have been registered with the FEC for six months. 2 U.S.C. 

§ 441a(a)(4). This redesignation changes the limits that apply to the committee in conflicting 

ways: 

● the limit for contributions to a candidate is raised to $5,000 per election, id. 

§ 441a(a)(2)(A), resulting in a maximum of $10,000 per candidate, including both 

the primary and general elections; 

● the limit for contributions to state political party committees and their local party 

committee affiliates is lowered to $5,000 each year, id. § 441a(a)(2)(C); and 

● the limit for contributions to national political party committees is lowered to 

$15,000 each year, id. § 441a(a)(2)(B). 

 

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ARGUMENT 

 

 This Court should invalidate 2 U.S.C. § 441a(a)(4)’s six-month waiting period, as it 

applies to political committees that have more than 50 contributors and have contributed to at 

least 5 candidates, under the Equal Protection component of the Fifth Amendment’s Due Process 

Clause. Because of this waiting period, identically situated committees that differ only in how 

long they have been registered with the FEC are subject to substantially different limits on the 

amounts they may contribute to the candidates they support. Compare id. § 441a(a)(1)(A) 

($2,600 limit for new committees, after adjustment for inflation) with id. § 441a(a)(2)(A) ($5,000 

limit for established committees). Section 441a(a)(4)’s six-month waiting period also violates 

the First Amendment, because the Constitution generally prohibits the Government from 

imposing delays on political association and expression. All political committees that have more 

than 50 contributors and have contributed to at least 5 candidates therefore should be permitted 

to contribute the statutory maximum of $5,000 per election to each candidate, id. 

§ 441a(a)(2)(A), without having to wait six months. 

 Additionally, this Court should invalidate the additional burdens on association that arise 

once a political committee that has received contributions from more than 50 contributors and 

contributed to at least 5 candidates has been registered with the FEC for at least 6 months and is 

redesignated a multicandidate political committee. Id. § 441a(a)(4). Because of this six-month 

cut-off, identically situated committees that differ only in how long they have been registered 

with the FEC are subject to substantially different limits on the amounts they may contribute to 

state, local, and national political party committees. Compare id. § 441a(a)(1)(B), (D) 

(permitting new political committees to contribute $10,000 annually to state and local party 

committees and $32,400 to national party committees, after adjustment for inflation) with id. 

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§ 441a(a)(2)(B)-(C) (allowing political committees that have existed for more than six months to 

contribute only $5,000 annually to state and local party committees and $15,000 to national party 

committees). All political committees that have more than 50 contributors and have contributed 

to at least 5 candidates therefore should be permitted to contribute the statutory maximum of 

$10,000 each year to state political party committees and their local political party affiliates, id. 

§ 441a(a)(2)(C), and $32,400 to national political party committees, id. § 441a(a)(2)(B).1 

I. IMPOSING DIFFERENT CONTRIBUTION LIMITS ON SIMILARLY 

SITUATED POLITICAL COMMITTEES, BASED ON HOW LONG THEY 

HAVE BEEN REGISTERED WITH THE FEC, VIOLATES THE EQUAL 

PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE. 

 The disparities in contribution limits for political committees violate the equal protection 

component of the Fifth Amendment’s Due Process Clause. Bolling v. Sharpe, 347 U.S. 497, 499 

(1954). Under Equal Protection principles, a court must “treat[] as presumptively invidious 

those classifications that . . . impinge upon the exercise of a fundamental right.” Plyler v. Doe, 

457 U.S. 202, 216 (1982) (quotation marks omitted); Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 

898, 906 n.6 (1986) (opinion of Brennan, J.) (holding that a law that disparately “infringes 

constitutionally protected rights” for different groups is subject to “heightened scrutiny”). 

In Buckley v. Valeo, 424 U.S. 1, 22, 24 (1976), the Court held that contributing to 

candidates and political parties is an important aspect of the freedom of association protected by 

the First Amendment. “The right to join together ‘for the advancement of beliefs and ideas’ is 

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.’” Id. at 65-66 (quoting NAACP v. 

Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958)). Moreover, “[m]aking a contribution, like 

joining a political party, serves to affiliate a person with a candidate” and “enables like-minded 

 

1

 Summary judgment is appropriate because there are no genuine issues of material fact in this 

case, and Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. 

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

contribution limits substantially burden the right to associate with candidates and political parties 

without completely cutting off other potential means of doing so, id. at 22, they are subject to 

heightened or “close[]” scrutiny, rather than strict scrutiny, id. at 25 (quotation marks omitted). 

Due to the substantial burden that contribution limits impose on First Amendment rights, 

the Government generally is “prohibited” from “distinguishing among different speakers, 

allowing [First Amendment activities] by some but not others.” Citizens United v. FEC, 558 

U.S. 310, 340 (2010). A campaign finance law “violates the equal protection component of the 

Fifth Amendment,” if it “burdens the First Amendment rights of [some] persons . . . to a greater 

extent than it burdens the same rights” of other comparable entities, and “such differential 

treatment is not justified.” CalMed, 453 U.S. at 200. 

To determine whether disparate restrictions on First Amendment rights are justified under 

heightened or close scrutiny, they must further “a sufficiently important interest and employ[] 

means closely drawn to avoid unnecessary abridgement of associational freedoms.” Buckley, 

424 U.S. at 25; accord Wagner v. FEC, 854 F. Supp. 2d 83, 96 (D.D.C. 2012) (“[T]o survive an 

equal protection challenge, § 441c’s ban on contributions by federal contractors must be closely 

drawn to match a sufficiently important interest.”) (quotation marks omitted), vacated on 

jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013); see also Police Dep’t of the City of 

Chicago v. Mosley, 408 U.S. 92, 102 (1972) (holding that, under the Equal Protection Clause, a 

court must determine whether a “selective restriction on expressive conduct” is “far greater than 

is essential to the furtherance of [a substantial] interest”). The disparate contribution limits for 

recently formed and longstanding political committees cannot satisfy scrutiny under these 

heightened constitutional standards. 

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A. The Disparate Limits for Contributions from Political 

Committees to Candidates Violate the Equal Protection Clause 

Section 2 U.S.C. § 441a(a)(4)’s six-month waiting period violates the Equal Protection 

component of the Fifth Amendment’s Due Process Clause, as applied to political committees that 

have received contributions from more than 50 contributors and contributed to at least 5 

candidates. A committee with more than 50 contributors that has contributed to 5 or more 

candidates, but has been registered for less than 6 months, may contribute only $2,600 per 

election to each candidate. 2 U.S.C. § 441a(a)(1)(A). An identically situated committee—one 

that engages in the same activities, contributes to the same number of candidates, has the same 

number of contributors, and seeks to impact the same elections—that has been registered for 

more than 6 months may contribute $5,000 per election to each candidate. Id. § 441a(a)(2)(A). 

The Equal Protection Clause prohibits Congress from imposing disparate burdens on the First 

Amendment right of association of similarly situated groups of citizens by subjecting them to 

different contribution limits. Cf. Anderson v. Celebrezze, 460 U.S. 780, 793-94 (1983) (“A 

burden that falls unequally on new or small political parties . . . impinges, by its very nature, on 

associational choices protected by the First Amendment. It discriminates against . . . those voters 

whose political preferences lie outside the existing political parties.”). 

1. Political committees that have been registered for less 

 than six months are materially indistinguishable from such 

 committees that have been registered for more than six months.

Congress does not have a legitimate interest in allowing an established committee that 

has existed for slightly longer than six months to contribute nearly twice as much to the 

candidates it supports as a newer committee that has existed for slightly less than six months. In 

CalMed, 453 U.S. at 200, the plaintiff was an unincorporated association that brought an equal 

protection challenge to contribution limits that allegedly discriminated between such entities and 

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corporations. Federal law permitted unincorporated associations to contribute only $5,000 to 

their affiliated PACs, id. at 195 (citing 2 U.S.C. § 441a(a)(1)(C)), whereas corporations could 

contribute an unlimited amount to their affiliated “segregated funds,” CalMed, 453 U.S. at 200 

(citing 2 U.S.C. §§ 431(8)(B)(vi), 441b(b)(2)(C)). The Court held that these different limits 

were permissible under the Equal Protection Clause because unincorporated associations and 

corporations “have differing structures and purposes,” and therefore “may require different forms 

of regulation in order to protect the integrity of the electoral process.” Id. at 201. 

This case, in contrast, is an as-applied Equal Protection challenge to the disparate limits 

on candidate contributions that federal law imposes on different groups of political committees 

with more than 50 contributors that have contributed to at least 5 candidates. Such committees 

that have been registered for less than six months may contribute only $2,600 per election to 

each candidate; that limit increases to $5,000 for otherwise identical committees that have been 

registered for more than six months. Unlike in CalMed, it is impossible to contend that the two 

groups of committees “have differing structures and purposes” and therefore “require different 

forms of regulation.” Id. “[D]ifferential treatment” of candidate contributions from materially 

identical political committees “is not justified.” Id. 

2. Section 441a(a)(4)’s six-month waiting period for contributing 

the maximum statutory amount to candidates does not further 

any important interests underlying campaign finance law. 

The Supreme Court has held that there are only three “constitutionally sufficient 

justification[s]” for contribution limits: preventing quid pro quo corruption, McConnell v. FEC, 

540 U.S. 93, 297 (2003) (opinion of Kennedy, J.); avoiding the appearance of such quid pro quo 

corruption, Buckley, 424 U.S. at 26; and preventing circumvention of other constitutionally 

proper limits, FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001) 

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(hereafter, “Colorado II”). Subjecting committees with more than 50 contributors and that have 

contributed to at least 5 candidates to a $2,600 candidate contribution limit, while allowing 

identical committees that have existed for more than 6 months to contribute up to $5,000 does 

not achieve any of these permissible ends, nor is it reasonably tailored to do so. 

Congress has already determined that allowing most political committees to contribute 

$5,000 to a candidate does not pose enough of a threat of quid pro quo corruption to prohibit. 2 

U.S.C. § 441a(a)(2)(A); see McCutcheon v. FEC, No. 12-536, 2014 U.S. LEXIS 2391, at *44-45 

(Apr. 2, 2014) (“Congress’s selection of a $5,200 base limit [including both primary and general 

elections] indicates its belief that contributions of that amount or less do not create a cognizable 

risk of corruption.”). There is no reason to believe that a $5,000 contribution would be more 

likely to have such a corrupting effect, simply because it came from a committee that has not yet 

existed for six months. Cf. McCutcheon, 2014 U.S. LEXIS 2391, at *44-45 (holding that, “[i]f 

there is no corruption concern” in allowing individuals to make $5,200 contributions to nine 

different candidates, “it is difficult to understand” how a tenth such contribution would be 

potentially corrupting). 

Similarly, there is no basis for concluding that the public would view a $5,000 

contribution to a candidate as more likely to lead to quid pro quo corruption because it came 

from a political committee that has not yet been registered with the FEC for six months. See id.

(“[T]he Government’s interest in preventing the appearance of corruption is . . . confined to the 

appearance of quid pro quo corruption.”). Extending the $5,000 contribution limit to recently 

formed committees that otherwise are materially identical to those already permitted to 

contribute $5,000 to candidates will “not cause the electorate to lose faith in our democracy.” 

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Citizens United, 558 U.S. at 360. To the contrary, the current discriminatory limits dull the 

impact of spontaneous grassroots democracy. 

An anticircumvention rationale similarly is inapplicable here. It is unclear why a $5,000 

contribution to a candidate from a political committee that has been registered for less than six 

months would facilitate circumvention of other contribution limits, while that same contribution 

would be unobjectionable if the committee satisfied the six-month threshold. Likewise, the sixmonth restriction plays no role in preventing individuals—i.e., the political committee’s 

donors—from circumventing contribution limits. Under current law, an individual is not deemed 

to “circumvent” limits on contributions to a candidate if he contributes to a multicandidate 

political committee that, in turn, makes a $5,000 contribution to that candidate—so long as that 

committee existed for more than six months. There is no basis for concluding that an identical 

contribution made to a similarly situated political committee that has existed for fewer than six 

months nevertheless constitutes “circumvention.” In any event, McCutcheon reaffirms that 

contributions to political committees do not raise substantial circumvention concerns because 

such contributions cannot be expressly or implicitly “earmarked” for the benefit of particular 

candidates, see 2 U.S.C. § 441a(a)(1)(C); 11 C.F.R. § 110.1(h)(3), 110.6(b)(1), and the decision 

to re-contribute any such funds lies with the committee itself, rather than the individual donor, 

see McCutcheon, 2014 U.S. LEXIS 2391, at *46-48. 

Consistent with this nation’s longstanding traditions, see Citizens Against Rent Cont., 454 

U.S. at 294, Congress has permitted citizens to band together to collectively participate in the 

political system by contributing to candidates through political committees. Within the universe 

of committees that satisfy § 441a(a)(4)’s other requirements, the Government does not have a 

substantial interest in favoring entrenched institutions over more recently established upstarts. 

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3. Even assuming that § 441a(a)(4)’s six-month waiting period 

furthers an important interest, it is not sufficiently tailored. 

 Section 441a(a)(4)’s six-month waiting period also is not a “closely drawn” means of 

furthering any valid interest the Government may have in preventing quid pro quo corruption, 

the appearance of quid pro quo corruption, or circumvention of contribution limits. Buckley, 424 

U.S. at 25. The McCutcheon Court recently emphasized that, in determining whether a 

campaign finance restriction is adequately tailored, “[i]t is worth keeping in mind that the base 

limits themselves are a prophylactic measure.” McCutcheon, 2014 U.S. LEXIS 2391, at *62-63; 

see also Citizens United, 558 U.S. at 357 (“[R]estrictions on direct contributions are 

preventative, because few if any contributions to candidates will involve quid pro quo

arrangements.”). Here, the six-month restriction is “layered on top” of the base contribution 

limits in a “‘prophylaxis-upon-prophylaxis approach’” that the court must be “particularly 

diligent in scrutinizing.” McCutcheon, 2014 U.S. LEXIS 2391, at *63 (quoting FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449, 479 (2007)). 

Under Buckley’s “closely drawn” standard, the Government may not seek to advance its 

goals through overbroad means that “unnecessar[ily] abridg[e]” First Amendment rights. 

Buckley, 424 U.S. at 25. A campaign finance restriction must be invalidated when only an 

“attenuated” relationship exists between the actual or apparent quid pro quo corruption the 

Government constitutionally may prevent, and the specific conduct it wishes to prohibit. 

Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996) (“Colorado I”). 

Moreover, the Government may not prohibit a broad range of constitutionally protected conduct 

in order to reach a narrow sliver of conduct that raises the specter of quid pro quo corruption. 

See, e.g., Citizens United, 558 U.S. at 362 (holding that the Government may not prohibit

independent expenditures from all corporations as a means of “preventing foreign individuals or 

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associations from influencing our Nation’s political process”); FEC v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480, 498 (1985) (“NCPAC”) (invalidating prohibition on 

independent expenditures by PACs because, “[e]ven were we to determine that the large pooling 

of financial resources [by PACs] did pose the potential for corruption or the appearance of 

corruption,” the challenged statute was “not limited to multimillion dollar war chests,” but rather 

“appl[ied] equally to informal discussion groups that solicit neighborhood contributions”). 

Prohibiting all recently formed committees that have more than 50 contributors and 

contributed to five or more candidates from taking advantage of the $5,000 candidate 

contribution limit is a clumsy, blunderbuss strategy that prohibits far more protected First 

Amendment conduct than the small sliver that conceivably might raise legitimate circumvention 

concerns. Cf. McCutcheon, 2014 U.S. LEXIS 2391, at *59 (“[B]ecause [aggregate contribution 

limits are] poorly tailored to the Government’s interest in preventing circumvention of the base 

limits, it impermissibly restricts participation in the political process.”); NCPAC, 470 U.S. at 498 

(“Even were we to determine that the large pooling of financial resources by [political 

committees] did pose a potential for corruption or the appearance of corruption, § 9012(f) is a 

fatally overbroad response to that evil.”). 

4. Plaintiffs’ Equal Protection challenge 

is consistent with Buckley v. Valeo. 

Plaintiffs’ claim is consistent with Buckley v. Valeo. In Buckley, 424 U.S. at 35-36, the 

plaintiffs had raised a much broader, generalized equal protection challenge to FECA’s various 

limits on contributions from different types of entities. They argued that § 441a(a)(4)’s 

requirements for qualifying as a multicandidate political committee—including minimum 

number of contributors, minimum number of candidates supported, and time since registration—

“unconstitutionally discriminate” against unspecified “ad hoc organizations in favor of 

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established interest groups and impermissibly burden free association.” Id. at 35. The Court 

rejected this argument in a single sentence in its 144-page opinion, stating, “Rather than 

undermining freedom of association, the basic provision enhances the opportunity of bona fide 

groups to participate in the election process, and the registration, contribution, and candidate 

conditions serve the permissible purpose of preventing individuals from evading the applicable 

contribution limitations by labeling themselves committees.” Id. at 35-36. 

The facial Equal Protection challenge in Buckley involved an attempted comparison 

between an entity that qualified as a multicandidate political committee under § 441a(a)(4) and 

other unspecified “ad hoc organizations,” Buckley, 424 U.S. at 35, including groups that might 

have been a front for a single contributor or sought to funnel all of their funds to a single 

candidate. The instant suit, in contrast, involves a narrower, as-applied challenge to 

§ 441a(a)(4)’s six-month waiting period, specifically as it applies to political committees that 

satisfy § 441(a)(4)’s other requirements for being recognized as a multicandidate committee (i.e., 

they have more than 50 contributors and contribute to at least 5 candidates). 

Not only is the instant case easily distinguishable from the Equal Protection claim in 

Buckley, but the Buckley Court’s reasoning is patently inapplicable to this suit. A group that has 

more than 50 contributors, by definition, cannot be a façade through which a single individual is 

attempting to evade other contribution limits. Cf. id. at 35-36. Moreover, there is no reason to 

believe that a recently formed group with more than 50 contributors that has contributed to five 

or more candidates is any less “bona fide” than a materially identical group that has existed for 

more than six months. Cf. id. at 35. 

Additionally, as the Supreme Court recently recognized in McCutcheon, campaign 

finance law has changed dramatically since Buckley in ways that already ensure that individuals 

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cannot use PACs to evade contribution limits, making § 441a(a)(4)’s six-month waiting period 

“particularly heavy-handed.” McCutcheon, 2014 U.S. LEXIS 2391, at *28 (“[S]tatutory 

safeguards against circumvention have been considerably strengthened since Buckley was 

decided, through both statutory additions and the introduction of a comprehensive regulatory 

scheme” that establish “more targeted anticircumvention measures”). Unlike pre-Buckley FECA, 

the law now limits the amount that an individual may contribute to a political committee 

(including multicandidate political committees), 2 U.S.C. § 441a(a)(1)(C), as well as to local, 

state, and national political party committees, id. § 441a(a)(1)(B), (D). “Because a donor’s 

contributions to a political committee are now limited, a donor cannot flood the committee with 

‘huge’ amounts of money so that each contribution the committee makes is perceived as a 

contribution from him.” McCutcheon, 2014 U.S. LEXIS 2391, at *28-29. 

The law also now limits the amount that political committees can contribute to each 

other, id. § 441a(a)(2)(C), thereby preventing people from circumventing the new limits on 

contributions to a particular political committee by funneling money through other such entities. 

Additionally, anti-proliferation restrictions ensure that a person cannot circumvent these limits 

by simply creating a series of committees that will, in turn, contribute to a particular candidate. 

McCutcheon, 2014 U.S. LEXIS 2391, at *29. All contributions from political committees that 

are established, financed, or controlled by the same corporation, union, or person—including an 

entity’s parents, subsidiaries, branches, divisions, departments, or local units—are now 

“considered to have been made by a single political committee.” Id. § 441a(a)(5). 

Finally, anti-earmarking rules prohibit a person from evading contribution limits by 

channeling contributions through a political committee or party committee to a specific 

candidate. All contributions that a person makes “either directly or indirectly, on behalf of a 

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particular candidate, including contributions which are in any way earmarked or otherwise 

directed through an intermediary or conduit to such candidate” are “treated as contributions from 

such person to such candidate.” Id. § 441a(a)(8). The intermediary is required to report to the 

FEC the contributor and the intended recipient of the contribution. Id.; see also 2 U.S.C. § 441f 

(prohibiting contributors from making a contribution in the name of another person or with the 

funds of another person). “Although the earmarking provision, 2 U. S. C. § 441a(a)(8), was in 

place when Buckley was decided, the FEC has since added regulations that define earmarking 

broadly.” McCutcheon, 2014 U.S. LEXIS 2391, at *30. 

The combination of pre- and post-Buckley restrictions eliminates any concerns that may 

have existed at the time Buckley was decided that recently formed committees with more than 50 

contributors that have contributed to 5 or more candidates may be used to evade other 

contribution limits. 

5. The Government cannot adduce sufficient evidence to 

support the distinction that § 441a(a)(4)’s six-month waiting 

period establishes among otherwise identical committees 

 To sustain its burden of establishing the constitutionality of § 441a(a)(4)’s waiting 

period, the Government must introduce actual evidence to show that political committees that 

have more than 50 contributors and have contributed to five or more candidates, but have been 

registered for less than six months, will likely engage in actual or apparent quid pro quo 

corruption, or attempt to circumvent other contribution limits. The Supreme Court has “never 

accepted mere conjecture as adequate to carry a First Amendment burden,” Nixon v. Shrink 

Missouri Gov’t PAC, 528 U.S. 377, 392 (2000); see also Turner Broad. Sys., Inc. v. FCC, 512 

U.S. 622, 664 (1994) (“When the Government defends a regulation on speech as a means to . . . 

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prevent anticipated harms, it must do more than simply posit the existence of the disease sought 

to be cured.”) (internal citation and quotation marks omitted). 

To carry its burden, the Government must provide actual evidence that the First 

Amendment activity it seeks to prohibit tends to cause quid pro quo corruption or the appearance 

of such corruption. Nixon, 528 U.S. at 392; Turner Broad. Sys., 512 U.S. at 664. A burden on 

First Amendment rights cannot rest on “a hypothetical possibility and nothing more.” NCPAC, 

470 U.S. at 498 (invalidating limit on independent expenditures by PACs where the Government 

failed to introduce any evidence suggesting that “an exchange of political favors for 

uncoordinated expenditures” was likely to occur). “The quantum of empirical evidence needed 

to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the 

novelty and plausibility of the justification raised.” Shrink Missouri, 528 U.S. at 391. The Court 

has excused the Government from presenting actual evidence to meet this burden only where 

“there is little reason to doubt” that the targeted act involves “the evil of potential corruption.” 

NCPAC, 470 U.S. at 500; Shrink Missouri, 528 U.S. at 395. 

 There is little actual evidence to suggest that committees with more than 50 contributors 

that have contributed to 5 or more candidates, but have been registered for less than 6 months, 

pose any more of a threat of actual or apparent quid pro quo corruption than their identically 

situated counterparts that have existed for more than a half-year. There is even less reason to 

fear such committees, due to the range of restrictions on political committees that Congress has 

enacted in the decades since Buckley, see, e.g., 2 U.S.C. § 441a(a)(1)(C) (limits on contributions 

to political committees); id. § 441a(a)(2)(C) (limits on amounts political committees may 

contribute to each other); id. § 441a(a)(5) (anti-proliferation rules requiring that contributions to, 

or by, all affiliated committees be treated as involving a single committee); id. § 441a(a)(8) (antiCase 1:14-cv-00397-AJT-IDD Document 6-1 Filed 05/06/14 Page 28 of 37 PageID# 61
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earmarking provisions prohibiting people from funneling contributions through a political 

committee to a particular candidate); 2 U.S.C. § 441f (prohibiting contributions in the name of 

another or with the funds of another). 

If the Government wishes to establish that newer committees pose a greater risk of actual 

or apparent quid pro quo corruption or circumvention of other contribution limits, it must 

provide some concrete evidence to support that unlikely contention, and cannot rest upon a mere 

“hypothetical possibility.” NCPAC, 470 U.S. at 498; see also McCutcheon, 2014 U.S. LEXIS 

2391, at *59 (inquiring “‘whether experience under the present law confirms a serious threat of 

abuse’”) (quoting Colorado II, 533 U.S. at 457). The Supreme Court repeatedly has invalidated 

campaign finance laws where the Government or a State failed to satisfy its burden of proof. In 

First National Bank of Boston v. Bellotti, for example, the Court refused to allow a State to 

restrict corporate political speech based on “the assumption that such participation would exert 

undue influence” over the electorate. 435 U.S. 765, 789 (1978) (emphasis added). 

Likewise, in Citizens Against Rent Control, the Court struck down a contribution limit on 

the amount a person could give to committees supporting or opposing ballot measures where 

“the record . . . [did] not support the [lower court’s] conclusion that [the limit was] needed to 

preserve voters’ confidence in the ballot measure process.” 454 U.S. at 299; see also 

Colorado II, 533 U.S. at 457 (scouring the evidentiary record to determine whether “adequate

evidentiary grounds exist[ed]” to conclude that there was “a serious threat of abuse from 

unlimited coordinated party spending”); Citizens United, 558 U.S. at 360 (emphasizing the 

“scant evidence that independent expenditures” by corporations “ingratiate” those corporations 

to the candidates they support). Because the Government cannot produce sufficient evidence to 

establish that § 441a(a)(4)’s six-month waiting period actually supports any of its asserted 

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interests, at least as applied to political committees that have more than 50 contributors and have 

contributed to 5 or more candidates, the provision is unconstitutional as applied. 

For all these reasons, this Court should hold that § 441a(a)(4)’s six-month waiting period 

is unconstitutional as applied to political committees that have more than 50 contributors and 

have contributed to 5 or more candidates. Any committees meeting those contributor and 

candidate requirements therefore should be permitted to contribute $5,000 per election to a 

candidate for federal office, 2 U.S.C. § 441a(a)(2)(A), regardless of how long the committee has 

been registered with the FEC. 

 B. The Disparate Limits for Contributions from Political 

 Committees to State and National Political Party 

 Committees Also Violate the Equal Protection Clause 

 The reduced limits that federal law imposes on contributions from longstanding political 

committees that have received contributions from more than 50 contributors and contributed to 5 

or more candidates (i.e., multicandidate political committees) to state and national political party 

committees similarly violate the Equal Protection component of the Fifth Amendment’s Due 

Process Clause. A committee with more than 50 contributors, that has contributed to 5 or more 

candidates, but that has been registered for less than 6 months, may contribute up to $10,000 

annually to state political party committees and their local affiliates, and $32,400 each year to a 

national political party committee. 2 U.S.C. § 441a(a)(1)(B), (D). An identically situated 

committee—one that engages in the same activities, contributes to the same number of 

candidates, has the same number of contributors, and seeks to impact the same elections—but 

that has been registered for more than 6 months may contribute only $5,000 annually to state and

local parties and $15,000 annually to national parties. Id. § 441a(a)(2)(B)-(C). Again, the Equal 

Protection Clause prohibits Congress from imposing disparate burdens on the First Amendment 

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right of association of materially identical committees by subjecting them to different 

contribution limits. 

 All of the arguments discussed above in Section I.A concerning the unconstitutionality of 

disparate contribution limits apply equally to the discriminatory limits on contributions to state 

and national political party committees. A political committee with more than 50 contributors 

and that has contributed to five or more candidates does not pose a greater risk of actual or 

apparent corruption once it has existed for six months, necessitating a reduction in the limits on 

its contributions to local, state, and national political party committees. Moreover, to the extent 

any such risks exist, precipitously slashing the amount that every single multicandidate political 

committee may contribute to a local, state, or national political party—without regard to any 

individual committee’s track record, whether it has engaged in any suspicious transactions, or 

any other individualized evidence of quid pro quo corruption—is a grossly overbroad categorical 

response that is not even remotely tailored to achieving the Government’s goals. 

Indeed, the disparate limits on contributions to local, state, and national political parties 

underscore the unconstitutionality of the entire framework. In Buckley, the Government argued 

that newer political committees could be subject to lower limits on candidate contributions than 

established multicandidate political committees due to concerns that new committees may not be 

“bona fide.” Buckley, 424 U.S. at 35. It would be antithetical to such reasoning for the 

Government to claim that such newer committees nevertheless should be permitted to contribute 

greater amounts than materially identical multicandidate political committees to local, state, and 

national political parties. Once a committee hits the six-month mark and qualifies as a 

“multicandidate political committee,” arbitrarily raising some contribution limits to which it is 

subject while simultaneously cutting others cannot survive heightened constitutional scrutiny. 

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For all these reasons, this Court should hold that § 441a(a)(2)(B)-(C)’s decreased limits 

on contributions to local, state, and national political party committees is unconstitutional. Any 

political committees with more than 50 contributors that have contributed to 5 or more 

candidates therefore should be permitted to contribute a combined total of $10,000 each year to a 

state political party committee and its local political party affiliates, 2 U.S.C. § 441a(a)(1)(D), 

and $32,400 annually to a national political party committee, id. § 441a(a)(1)(B), regardless of 

how long the committee has been registered with the FEC. 

II. THE FIRST AMENDMENT PROHIBITS THE GOVERNMENT FROM 

REQUIRING POLITICAL COMMITTEES TO WAIT SIX MONTHS 

BEFORE ASSOCIATING WITH AND EXPRESSING SUPPORT 

FOR CANDIDATES BY MAKING CONTRIBUTIONS OF $5,000. 

 Section 441a(a)(4)’s six-month waiting period violates the First Amendment as applied to 

political committees that have more than 50 contributors and contributed to at least 5 candidates 

for federal office. Due to that waiting period, such committees may contribute only $2,600 to a 

candidate within the first six months of their existence, 2 U.S.C. § 441a(a)(1)(A), and $5,000 

afterward, id. § 441a(a)(2)(A). Thus, they must wait six months before being able to contribute 

the maximum statutorily permissible amount to the candidates they support. This scheme 

imposes a waiting period before these political committees may fully associate with the 

candidates they support through political contributions. See Buckley, 424 U.S. at 21, 24-25 

(recognizing that political contributions are an important means of associating with a candidate). 

 The courts have repeatedly recognized that delays and waiting periods impose substantial 

burden on First Amendment rights, particularly in the political realm. See Watchtower Bible & 

Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 167 (invalidating ordinance that 

“effectively banned” a “significant amount of spontaneous speech”). “Timing is of the essence 

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in politics. . . . When an event occurs, it is often necessary to have one’s voice heard promptly, if 

it is to be considered at all.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969) 

(Harlan, J., concurring). “A delay ‘of even a day or two’ may be intolerable when applied to 

‘‘political' speech in which the element of timeliness may be important.’” NAACP, Western 

Region v. Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984) (quoting Carroll v. Comm’rs of 

Princess Anne, 393 U.S. 175, 182 (1968)). In some cases, delay may “stifle spontaneous 

expression,” Rosen v. City of Portland, 641 F.2d 1243, 1247-48 (9th Cir. 1981), and 

“permanently vitiate the expressive content” of First Amendment activity, NAACP, 743 F.2d at 

1356; in other cases, “the change in timing will alter the potential impact of the[] speech,” Santa 

Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1046 (9th Cir. 2006). Thus, 

“undue delay results in the unconstitutional suppression of protected speech.” FW/Pbs, Inc. v. 

Dallas, 493 U.S. 215, 228 (1990) (opinion of O’Connor, J.) 

 Under the First Amendment, the Government may not require entities to wait or delay 

before engaging in constitutionally protected expression and association. See, e.g., Watchtower 

Bible, 536 U.S. at 167-68 (invalidating ordinance that required people to wait until a license was 

issued before they engaged in door-to-door solicitations, including for political or religious 

reasons); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1038 (9th Cir. 

2009) (invalidating ordinance that required groups to wait at least 24 hours after notifying 

municipality before holding a “spontaneous” gathering); Douglas v. Brownell, 88 F.3d 1511, 

1524 (8th Cir. 1996) (invalidating ordinance requiring people to provide at least 5 days’ notice 

before holding a parade); Rosen, 641 F.2d at 1244 (invalidating ordinance that required groups to 

wait at least 24 hours after notifying municipality before distributing literature); see also 

Arlington Cnty. Republican Comm. v. Arlington Cnty., 790 F. Supp. 618, 629-30 (E.D. Va. 1992) 

Case 1:14-cv-00397-AJT-IDD Document 6-1 Filed 05/06/14 Page 33 of 37 PageID# 66
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(holding that a thirty-day waiting period for posting political signs violated the First 

Amendment), vacated in part as moot, 983 F.2d 587, 595 (4th Cir. 1993). 

The constitutional infirmities of delays on First Amendment activities are exacerbated 

when they extend to harmless speech and “burden[] substantially more speech than is necessary 

to further the government’s legitimate interests.” Grossman v. City of Portland, 33 F.3d 1200, 

1205 (9th Cir. 1994) (quotation marks omitted). In Rosen, 641 F.2d at 1247-48, the court 

invalidated a one-day waiting period on the distribution of literature at airports because the 

challenged ordinance “regulates far more than mass conduct that necessarily interferes with the 

use of public facilities.” See also Douglas, 88 F.3d at 1524 (invalidating ordinance requiring 

people to provide at least five days’ notice before holding a parade because it “restrict[ed] a 

substantial amount of speech that does not interfere with the city’s asserted goals of protecting 

pedestrian and vehicle traffic, and minimizing inconvenience to the public”); Long Beach Area 

Peace Network, 574 F.3d at 1038 (invalidating restriction on “spontaneous” assemblies in part 

because it “is not narrowly tailored to regulate only events in which there is a substantial 

governmental interest in requiring such advance notice,” extending to “places where there is no 

threat of disruption of the flow of pedestrian or vehicular traffic”). 

 In this case, of course, federal law does not completely prohibit recently formed 

committees that have more than 50 contributors and have contributed to 5 or more candidates 

from associating with candidates by making contributions to them. Rather, it limits the extent to 

which such committees may associate with candidates through their contributions, permitting 

them to contribute only $2,600 per election to each candidate for the first six months after the 

committee’s registration, 2 U.S.C. § 441a(a)(1)(A), and $5,000 per candidate only after the 

committee has been registered for six months, id. § 441a(a)(2)(A). This waiting period cannot 

Case 1:14-cv-00397-AJT-IDD Document 6-1 Filed 05/06/14 Page 34 of 37 PageID# 67
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survive constitutional scrutiny because there is no reason to believe that it will somehow prevent

quid pro quo corruption, the appearance of quid pro quo corruption, or circumvention of other 

contribution limits. Indeed, depending on how close to an election such a committee is formed, 

the committee may never have the opportunity to contribute the full statutory amount of $5,000, 

particularly if the candidate that committee supports loses. 

The Court has recognized that, although making a contribution is only one way of 

associating with a candidate, Buckley, 424 U.S. at 22, the First Amendment burden of 

contribution limits “is especially great for individuals who do not have ready access to 

alternative avenues for supporting their preferred politicians and policies,” McCutcheon, 2014 

U.S. LEXIS 2391, at *35-36. For political committees such as Plaintiffs, means of association 

other than making contributions generally will be impractical. The whole point of associating as 

a PAC is to allow people to join together to collectively further a political cause. Citizens 

Against Rent Cont., 454 U.S. at 294. The contributors of many political committees are spread 

across the country, far from any particular candidate the committee supports. It would be 

prohibitively expensive and impractical for a committee’s contributors to travel together to 

associate with a candidate by personally working on her campaign. McCutcheon, 2014 U.S. 

App. LEXIS 2391, at *36 (“[P]ersonal volunteering is not a realistic alternative for those who 

wish to support a wide variety of candidates or causes.”). 

Other traditional methods of association—wearing pins or other apparel, displaying 

bumper stickers, erecting lawn signs—will be effectively meaningless for most political 

committee members, who live far from the supported candidate, where most people are 

unfamiliar with the referenced race. Committees that lack substantial staffs and war chests will 

also generally be unable to fund independent expenditures on the radio or television. Thus, 

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30 

contributions to candidates are a crucial means through which most political committees 

associate with them. 

 Moreover, the six-month waiting period is a grossly overbroad means of attempting to 

achieve any interests the government may seek to further. Most of the transactions it will delay 

are totally innocuous, cf. Douglas, 88 F.3d at 1524; Rosen, 641 F.2d at 1247-48; Long Beach 

Area Peace Network, 574 F.3d at 1038. Additionally, there is no reason to believe that the risk 

of actual or apparent quid pro quo corruption or circumvention of other contribution limits will 

somehow change once the committee has existed for six months. Thus, this Court should hold 

that § 441a(a)(4)’s six-month waiting period violates the First Amendment, as applied to political 

committees that have 50 contributors and have contributed to 5 or more candidates. Any 

committees meeting those contributor and candidate requirements therefore should be permitted 

to contribute $5,000 per election to each candidate, 2 U.S.C. § 441a(a)(2)(A), regardless of how 

long the committee has been registered with the FEC. 

CONCLUSION

 For these reasons, this Court should GRANT Plaintiffs’ Motion for Summary Judgment. 

 Respectfully submitted, 

 

 /s/ Michael T. Morley 

 Michael T. Morley, Esq. 

 Virginia State Bar # 65762 

 COOLIDGE-REAGAN FOUNDATION

 1629 K Street, Suite 300 

 Washington, DC 20006 

 Phone: (202) 603-5397 

 Fax: (202) 331-3759 

 E-mail: Morley@coolidgereagan.org 

 

 /s/ Dan Backer 

 Dan Backer, Esq. 

 Virginia State Bar # 78256 

Case 1:14-cv-00397-AJT-IDD Document 6-1 Filed 05/06/14 Page 36 of 37 PageID# 69
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 DB CAPITOL STRATEGIES PLLC 

 717 King Street, Suite 300 

 Alexandria, VA 22314 

 Phone: (202) 210-5431 

 Fax: (202) 478-0750 

 E-mail: DBacker@DBCapitolStrategies.com 

 

 Attorneys for Plaintiffs 

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