UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

Defendant Federal Election Commission respectfully moves the Court for an order 

dismissing this action for failure to state a claim on which relief can be granted pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure. A memorandum in support of this motion and 

a proposed order are attached. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: January 26, 2009 (202) 694-1650 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 1 of 34
i

TABLE OF CONTENTS 

I. STATUTORY AND PROCEDURAL BACKGROUND ...................................................1 

 A. The Bipartisan Campaign Reform Act of 2002 .......................................................1 

 B. McConnell v. FEC ...................................................................................................5

II. ARGUMENT ......................................................................................................................7 

 A. Standard of Review..................................................................................................7 

 B. The Claims of the RNC, Duncan, and the CRP Are Barred by Res Judicata .........8 

1. Claim Preclusion: The Claims of the RNC, Duncan, and the CRP 

Were Decided in McConnell........................................................................8 

2. Issue Preclusion: The Claims of the RNC, Duncan, and the CRP 

Are Premised on a Legal Argument that Was Litigated and Decided 

in McConnell..............................................................................................24 

 C. Plaintiffs’ Claims Fail as a Matter of Law Under McConnell...............................28

III. CONCLUSION..................................................................................................................29 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 2 of 34
ii

TABLE OF AUTHORITIES 

Cases 

Alaska Legislative Council v. Babbitt, 15 F. Supp. 2d 19 (D.D.C. 1998) .....................................20 

Allen v. McCurry, 449 U.S. 90 (1980)...............................................................................10, 21, 24 

Am. Fed’n of Gov’t Employees, AFL-CIO v. Loy, 332 F. Supp. 2d 218 (D.D.C. 2004) ...............21 

Apotex, Inc. v. FDA, 393 F.3d 210 (D.C. Cir. 2004) ........................................................... 8-10, 20

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) ........................................................................7 

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................................................2 

Camp v. Kollen, 567 F. Supp. 2d 170 (D.D.C. 2008)......................................................................7 

Capitol Hill Group v. Pillsbury Winthrop Shaw Pittman, LLP, 

574 F. Supp. 2d 143 (D.D.C. 2008).............................................................................10, 21 

Comm’r v. Sunnen, 333 U.S. 591 (1948).......................................................................................21 

Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220 (D.C. Cir. 2005)......................................7 

Cromwell v. County of Sac, 94 U.S. 351 (1876)............................................................................21 

Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002).................................................................................10

Erickson v. Pardus, 127 S. Ct. 2197 (2007) ....................................................................................7 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL II”)...................... 13, 22-23 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002) ......................................................7 

Kassem v. Wash. Hosp. Ctr., 513 F.3d 251 (D.C. Cir. 2008) ..........................................................7 

Martin v. Dep’t of Justice, 488 F.3d 446 (D.C. Cir. 2007)................................................ 24, 27-28 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003)......................................... 3, 5-6, 9, 12, 21 

McConnell v. FEC, 540 U.S. 93 (2003)................................................................................. passim 

Montana v. United States, 440 U.S. 147, 153 (1979) ............................................................ 8-9, 24 

Nader v. Democratic Nat’l Comm., --- F. Supp. 2d ---, Civ. No. 08-589, 

2008 WL 5273109 (D.D.C. Dec. 22, 2008)...................................................................7, 22 

Natural Res. Def. Council v. EPA, 513 F.3d 257 (D.C. Cir. 2008) ..................................... 9-10, 21 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 3 of 34
iii

Nevada v. United States, 463 U.S. 110 (1983) ..............................................................................21 

Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005) ..................................................................28 

Nuckols v. Fed. Bureau of Prisons, 578 F. Supp. 2d 79 (D.D.C. 2008).............................. 9-10, 20

Page v. United States, 729 F.2d 818 (D.C. Cir. 1984).............................................................10, 20 

Safadi v. Novak, 574 F. Supp. 2d 52 (D.D.C. 2008)......................................................................24 

Smalls v. United States, 471 F.3d 186 (D.C. Cir. 2006) ..................................................................9 

Stonehill v. IRS, 534 F. Supp. 2d 1 (D.D.C. 2008) ........................................................................28 

Taylor v. Sturgell, 128 S. Ct. 2161 (2008)................................................................................... 8-9 

Tembec Inc. v. United States, 570 F. Supp. 2d 137 (D.D.C. 2008) ........................... 7, 9-10, 20, 24 

United States v. Int’l Union United Auto., Aircraft & Agric. Implement Workers of Am., 

352 U.S. 567 (1957).........................................................................................................2, 4 

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (“WRTL I”) ................................. 23-23 

Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C. Cir. 1992)..................................24, 28 

Zellars v. United States, 578 F. Supp. 2d 1 (D.D.C. 2008) ................................................. 9-10, 20

Statutes and Regulations 

2 U.S.C. § 431(20) .........................................................................................................................18 

2 U.S.C. § 431(20)(A)................................................................................................................5, 23 

2 U.S.C. § 431(20)(A)(i)..................................................................................................................4 

2 U.S.C. § 431(20)(A)(ii).................................................................................................................4 

2 U.S.C. § 431(20)(A)(iii)..............................................................................................................19 

2 U.S.C. § 431(21) ...........................................................................................................................5 

2 U.S.C. § 441i(a) ...........................................................................................................................4 

2 U.S.C. § 441i(a)(2)......................................................................................................................18 

2 U.S.C. § 441i(b)......................................................................................................................5, 18 

2 U.S.C. § 441i(b)(2) .......................................................................................................................4 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 4 of 34
iv

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

 BCRA Title I.............................................................................................................. passim 

 BCRA § 101(a) .................................................................................................... 4, 6, 26-27 

 BCRA § 101(b)................................................................................................ 4-5, 6, 19, 26 

 BCRA § 203................................................................................................................. 22-23 

 BCRA § 403.....................................................................................................................6, 9 

11 C.F.R. § 300.2(i) .........................................................................................................................4 

11 C.F.R. § 300.31...........................................................................................................................4 

11 C.F.R. § 300.32...........................................................................................................................4 

Other Authorities 

18 Wright, Miller & Cooper, Federal Practice & Procedure 2d § 4426 (2002) ..........................28 

FEC, Contribution Limits 2009-2010, 

http://www.fec.gov/pages/brochures/contriblimits.shtml....................................................2 

Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 7 

S. Rep. No. 105-167 (1998)......................................................................................................... 3-4 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 5 of 34
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM IN SUPPORT OF 

 ) MOTION TO DISMISS

 Defendant. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

Defendant Federal Election Commission (“Commission”) hereby submits this 

memorandum in support of its motion to dismiss this action in its entirety pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure. In McConnell v. FEC, 540 U.S. 93 (2003), the 

Republican National Committee (“RNC”), Robert M. (Mike) Duncan, and the California 

Republican Party (“CRP”) asserted, argued, and lost causes of action that encompass those that 

they now assert here, and these Plaintiffs are therefore barred by res judicata from attempting to 

relitigate their claims. Plaintiff Republican Party of San Diego County (“RPSD”), although not a 

party to McConnell, premises its claims on legal grounds that the Supreme Court rejected in that 

case as a matter of law. Accordingly, Plaintiffs’ complaint should be dismissed in its entirety for 

failure to state a claim on which relief can be granted. 

I. STATUTORY AND PROCEDURAL BACKGROUND 

 A. The Bipartisan Campaign Reform Act of 2002 

In 1907, Congress prohibited corporations from making any monetary contribution in 

connection with any federal election. McConnell, 540 U.S. at 115. Over the years, Congress 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 6 of 34
2

gradually refined the manner in which it responded to concerns about the “‘political potentialities 

of wealth’” and their “‘untoward consequences for the democratic process,’” id. at 116 (quoting 

United States v. Int’l Union United Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 

567, 577-78 (1957)), first by extending the definition of “contribution” to include “anything of 

value,” id., and then by extending the limit to encompass labor unions. Id. at 116-17. Even these 

expanded provisions, however, “did not deter unseemly fundraising and campaign practices. 

Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act 

[“FECA”] Amendments of 1974.” Id. at 118. The 1974 Amendments, inter alia, limited 

individuals to contributing $1,000 per election per candidate and an aggregate of $25,000 each 

year. See Buckley v. Valeo, 424 U.S. 1, 7 (1976). The constitutionality of these limits was 

upheld in Buckley. See id. at 12-38.1

FECA’s “source-and-amount limitations” refer to, inter alia, the prohibition on corporate 

and labor union contributions and the dollar limits on individual contributions. See McConnell, 

540 U.S. at 122. Funds raised pursuant to the source-and-amount limitations are known as 

“federal funds” or “hard money,” while funds raised outside these limitations — i.e., funds raised 

from corporate or union sources or in excess of the contribution limits — are known as “nonfederal funds” or “soft money.” 

Although FECA prohibited any donation of soft money for the purpose of influencing 

any federal election, “[d]onations made solely for the purpose of influencing state or local 

elections [were] . . . unaffected by FECA’s requirements and prohibitions.” McConnell, 540 

U.S. at 122. The question that arose under this statutory scheme, therefore, was how to treat 

 

1

 As of the 2009-2010 election cycle, the individual contribution limits had been raised to 

$2,400 per election per candidate, $30,400 per national party per year, and $115,500 in the 

aggregate for the two-year election cycle. See FEC, Contribution Limits 2009-2010, 

http://www.fec.gov/pages/brochures/contriblimits.shtml (last visited Jan. 26, 2009). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 7 of 34
3

donations to entities, such as national political parties, that engage in both federal and nonfederal activity. From 1977 to 1995, the Commission promulgated a series of regulations 

permitting the national political parties and their state affiliates to “fund mixed-purpose activities 

— including get-out-the-vote drives and generic party advertising — in part with soft money.” 

McConnell, 540 U.S. at 123; McConnell v. FEC, 251 F. Supp. 2d 176, 196-99 (D.D.C. 2003) 

(discussing Commission’s regulations). Pursuant to these “allocation” regulations, political 

parties accumulated and transferred hundreds of millions of soft-money dollars from their 

national organizations to their state and local affiliates, which were subject to more favorable 

allocation rules. See McConnell, 540 U.S. at 124. The national parties also spent hundreds of 

millions of soft-money dollars themselves — including $498 million in the 2000 election cycle 

alone — on putatively mixed-use activities, such as “legislative advocacy media 

advertisements.” Id. at 123-24 (quoting FEC Advisory Op. 1995-25). Federal candidates, 

although prohibited by law from receiving soft money, directly solicited soft-money donations to 

their own national and state parties, and these candidates provided lucrative benefits and access 

to the highest government officials in exchange for the largest donations. Id. at 125, 130-31. All 

of this soft money, by definition, was donated either by a corporation, by a labor union, or by an 

individual who had exceeded his or her contribution limit. “The solicitation, transfer, and use of 

soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source 

and amount of contributions in connection with federal elections.” Id. at 126. 

In 1998, after an extensive investigation, the Senate Committee on Governmental Affairs 

issued a report detailing the influence that soft money had come to wield in the electoral process. 

Id. at 129; S. Rep. No. 105-167 (1998). The report concluded that the parties’ ability to solicit 

and spend soft money, particularly on “issue advertising designed to influence federal elections,” 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 8 of 34
4

had decimated FECA’s source-and-amount limitations. See McConnell, 540 U.S. at 129-32. 

The report also noted that state and local parties had played a crucial role in the soft-money 

process, as the national parties had made a practice of transferring funds to the state and local 

parties to conduct putatively non-federal activities “‘that in fact ultimately benefit[ed] federal 

candidates.’” Id. at 131 (quoting S. Rep. 105-167 at 4466 (alteration in original)). In sum, the 

national, state, and local political parties, as well as federal candidates themselves, had all 

become players in a system that was designed to evade FECA’s contribution limits and that 

bestowed on large and corporate donors the corrupting influence of which FECA was intended to 

deprive them. 

In response to the conduct detailed in the Senate report and similar conduct that 

continued in relation to subsequent elections, Congress passed and the President signed the 

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

is “the most recent federal enactment designed ‘to purge national politics of . . . the pernicious 

influence of “big money” campaign contributions.’” McConnell, 540 U.S. at 115 (quoting 

United Auto. Workers, 352 U.S. at 572). Title I of BCRA, entitled “Reduction of Special Interest 

Influence,” closed the soft-money loophole. Specifically, BCRA section 101(a) prohibited 

national political parties and their officers from soliciting, receiving, or disbursing soft money. 

BCRA § 101(a) (codified at 2 U.S.C. § 441i(a)); McConnell, 540 U.S. at 133 (“[Section 101(a)] 

takes national parties out of the soft-money business.”). With one notable exception,2

 BCRA 

 

2

 In the “Levin Amendment,” Congress provided an exception to the requirement that state, 

district, and local party committees spend only federal funds for certain “Federal election 

activity.” See McConnell, 540 U.S. at 162-64; 2 U.S.C. § 441i(b)(2); 11 C.F.R. §§ 300.2(i), 

300.31, 300.32. Under the Amendment, the federal election activity described in 2 U.S.C. 

§ 431(20)(A)(i) & (ii) can be financed by state and local party committees with either federal 

funds or a combination of federal and “Levin funds.” Individuals can donate as much as $10,000 

per year in Levin funds to a state or local political party. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 9 of 34
5

section 101(b) also prohibited state and local parties from receiving soft money for “federal 

election activity.” 2 U.S.C. § 441i(b). 

Federal election activity, in relevant part, was defined as: 

(i) voter registration activity during the period . . . 120 days before . . . 

a regularly scheduled Federal election . . . ; 

(ii) voter identification, get-out-the-vote activity, or generic campaign 

activity3

 conducted in connection with an election in which a 

candidate for Federal office appears on the ballot (regardless of 

whether a candidate for State or local office also appears on the 

ballot); [or] 

(iii) a public communication that refers to a clearly identified candidate 

for Federal office . . . and that promotes or supports . . . or attacks 

or opposes a candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a 

candidate) . . . . 

2 U.S.C. § 431(20)(A)(i)-(iii). Through these provisions, BCRA eliminated the receipt of soft 

money by national political party committees and the receipt of soft money by state and local 

parties for federal election activity. State and local parties remain free to receive funds under 

applicable state and local law for all other activities, and all political parties remain free to spend 

an unlimited amount of hard money for any activity. 

B. McConnell v. FEC

 Immediately after BCRA was passed, eleven complaints challenging the Act’s 

constitutionality were filed in this Court. One such complaint was Republican National 

Committee v. FEC, which named as plaintiffs the RNC, Mike Duncan, and several state and local 

party affiliates. Republican Nat’l Comm. v. FEC, Compl., Civ. No. 02-874 (D.D.C. filed May 7, 

2002) (appended hereto as Exhibit 1); see also McConnell, 251 F. Supp. 2d at 220, 225. Another 

 

3

 “Generic campaign activity” is “campaign activity that promotes a political party and 

does not promote a candidate or non-Federal candidate.” 2 U.S.C. § 431(21). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 10 of 34
6

complaint was filed jointly by the CRP and the California Democratic Party. Cal. Democratic 

Party v. FEC, Compl., Civ. No. 02-875 (D.D.C. filed May 7, 2002) (appended hereto as Exhibit 

2); see also McConnell, 251 F. Supp. 2d at 220, 225. Together, the complaints challenged, inter 

alia, the constitutionality of BCRA Title I’s prohibition on federal parties’ receipt of soft money 

and state parties’ receipt of soft money to engage in federal election activity. See infra Part 

II.B.1. 

 All of the BCRA complaints were consolidated before this Court with McConnell v. 

FEC, Civ. No. 02-582 (D.D.C.). After expedited discovery, all parties filed cross motions for 

judgment. See infra Part II.B. In their respective briefs, the RNC, Duncan, and the CRP argued 

that Title I unconstitutionally limited the national and local parties’ ability to engage in activities 

that were not intended to influence federal elections. Id. On May 1, 2003, this Court issued an 

opinion that, in large part, agreed with the plaintiffs and struck down much of BCRA Title I as 

unconstitutional. See McConnell, 251 F. Supp. 2d at 184, 187 (summarizing holdings). 

Specifically, this Court held that the soft-money provisions in BCRA subsections 101(a) and 

101(b) were unconstitutional in all respects, except for the prohibition on national or state 

parties’ receipt of soft money for “public communications,” as described in subparagraph (iii) of 

the definition of federal election activity. See id. 

On direct appeal to the Supreme Court pursuant to BCRA section 403, the RNC, Duncan, 

and the CRP argued in favor of upholding the district court’s rulings striking down Title I in light 

of the parties’ receipt and disbursement of soft money for putatively non-federal activities. See 

infra Part II.B. The Supreme Court, however, rejected the plaintiffs’ argument, reversed the 

district court, and upheld BCRA Title I in its entirety. See McConnell, 540 U.S. at 188-89. The 

Court held that BCRA section 101(a) was constitutional because “there [was] substantial 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 11 of 34
7

evidence to support Congress’ determination that large soft-money contributions to national 

political parties give rise to corruption and the appearance of corruption,” id. at 154, and that 

the state and local party limits were also “closely drawn to match the important governmental 

interests of preventing corruption and the appearance of corruption,” id. at 173. See infra

Part II.B. 

II. ARGUMENT 

 A. Standard of Review 

Dismissal of a complaint is appropriate where, accepting the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to 

state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. 

Twombly, 127 S. Ct. 1955, 1966 (2007) (holding dismissal appropriate “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief”); Kassem v. Wash. 

Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. Pardus, 127 S. Ct. 2197, 2200 

(2007)). In deciding a motion to dismiss, the court may consider the complaint itself and 

“‘matters about which the Court may take judicial notice.’” Camp v. Kollen, 567 F. Supp. 2d 

170, 172 (D.D.C. 2008) (quoting Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 

2002)). Matters appropriate for judicial notice include complaints, filings, and decisions in prior 

court proceedings. See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 

2005) (taking judicial notice of prior proceedings); see also Tembec Inc. v. United States, 570 F. 

Supp. 2d 137, 138-42 (D.D.C. 2008) (examining filings and judgment in prior action in granting 

motion to dismiss for res judicata); Camp, 567 F. Supp. 2d at 172-74 & n.2 (same); Nader v. 

Democratic Nat’l Comm., --- F. Supp. 2d ---, Civ. No. 08-589, 2008 WL 5273109, at *5 (D.D.C. 

Dec. 22, 2008) (holding that res judicata arguments are properly raised in Rule 12(b)(6) motion). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 12 of 34
8

 B. The Claims of the RNC, Duncan, and the CRP Are Barred by Res Judicata

Res judicata encompasses two distinct doctrines: (1) claim preclusion, which bars a party 

from asserting a cause of action that it litigated or could have litigated in a prior action; and 

(2) issue preclusion, which bars a party from challenging specific findings of fact or law that 

were actually litigated and judicially decided in a prior matter. See Taylor v. Sturgell, 128 S. Ct. 

2161, 2171 & n.5 (2008). “Application of both doctrines is central to the purpose for which civil 

courts have been established, the conclusive resolution of disputes within their jurisdictions.” 

Montana v. United States, 440 U.S. 147, 153 (1979). As discussed below, each form of res 

judicata applies in this case. Claim preclusion forecloses this action as to the RNC, Duncan, and 

the CRP because these plaintiffs raised in McConnell the precise claims they now assert here, 

i.e., that BCRA’s prohibition on using soft money is unconstitutional in light of the parties’ 

allegedly non-federal activities. And issue preclusion forecloses this action because McConnell

explicitly rejected Plaintiffs’ legal assertion that BCRA’s soft-money contribution restriction was 

unconstitutional in relation to certain disbursements for non-federal elections. Because 

McConnell rejected this argument as a matter of law — holding instead that BCRA Title I was 

constitutional as a contribution limit regardless of the ultimate disbursement of the prohibited 

funds — and because the entirety of the instant action is premised on this rejected contention, 

Plaintiffs’ allegations regarding the effect of Title I on Plaintiffs’ non-federal activities fail to 

state a claim on which relief can be granted.

1. Claim Preclusion: The Claims of the RNC, Duncan, and the CRP 

Were Decided in McConnell 

The doctrine of claim preclusion “holds that a judgment on the merits in a prior suit bars 

a second suit involving identical parties or their privies based on the same cause of action.” 

Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004); see also Montana, 440 U.S. at 153. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 13 of 34
9

“To preclude parties from contesting matters that they have had a full and fair opportunity to 

litigate protects their adversaries from the expense and vexation attending multiple lawsuits, 

conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility 

of inconsistent decisions.” Montana, 440 U.S. at 153-54; see also Apotex, 393 F.3d at 217 

(quoting Montana). Under the D.C. Circuit’s test for determinations of claim preclusion, a claim 

is precluded “‘if there has been prior litigation (1) involving the same claims or cause of action, 

(2) between the same parties or their privies, and (3) there has been a final, valid judgment on the 

merits, (4) by a court of competent jurisdiction.’” Natural Res. Def. Council v. EPA, 513 F.3d 

257, 260 (D.C. Cir. 2008) (quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)); 

see also Nuckols v. Fed. Bureau of Prisons, 578 F. Supp. 2d 79, 83 (D.D.C. 2008); Tembec, 570 

F. Supp. 2d at 140-41. If this test is met, claim preclusion “extinguishes all rights of the plaintiff 

to remedies against the defendant with respect to all or any part of the transaction, or series of 

connected transactions, out of which the action arose.” Zellars v. United States, 578 F. Supp. 2d 

1, 3 (D.D.C. 2008) (internal quotation marks omitted).

As to the latter three prongs of the claim preclusion test, there does not appear to be any 

dispute between the parties. The RNC, Duncan, and the CRP were plaintiffs in McConnell, and 

the Commission was a defendant in that suit.4

 Jurisdiction was proper in this Court and the 

Supreme Court under BCRA section 403(a)(1),(3), see McConnell, 540 U.S. at 133; McConnell, 

251 F. Supp. 2d at 239, and the case was decided on its merits. Thus, the only possible dispute 

 

4

 The RPSD’s relationship with the CRP and the RNC may be such that the RPSD is in 

privity with either or both of them for purposes of res judicata. See Taylor, 128 S. Ct. at 

2172-73 (discussing grounds for applying res judicata to litigant that was not party to prior 

proceedings). Demonstrating this relationship, however, arguably requires the submission of 

extrinsic evidence inappropriate for a motion to dismiss; thus, for purposes of the instant motion 

only, the Commission does not argue that McConnell is res judicata as to the RPSD. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 14 of 34
10

regarding claim preclusion is whether Plaintiffs’ current claims are the same as the claims 

asserted in McConnell. They are. 

“Whether two cases implicate the same cause of action turns on whether they share the 

same ‘nucleus of facts.’” Apotex, 393 F.3d at 217 (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. 

Cir. 2002)); see also Natural Res. Def. Council, 513 F.3d at 261 (quoting Apotex). Given a 

single “nucleus of facts,” claim preclusion prohibits a plaintiff from engaging in piecemeal 

litigation by offering one legal rationale in a first lawsuit, losing that claim, and then offering a 

new rationale on the same set of facts in a later suit: “[I]t is the facts surrounding the transaction 

or occurrence which operate to constitute the cause of action, not the legal theory upon which a 

litigant relies.” Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (internal quotations 

omitted); Nuckols, 578 F. Supp. 2d at 82 (quoting Page); Zellars, 578 F. Supp. 2d at 3-4; see 

Tembec, 570 F. Supp. 2d at 141. Stated differently, a plaintiff is precluded from relitigating not 

only the legal claims it specifically raised in the earlier action, but also those claims that the 

plaintiff “could have” litigated — but chose not to — based on the same set of facts. Allen v. 

McCurry, 449 U.S. 90, 94 (1980) (“[A] final judgment on the merits of an action precludes the 

parties or their privies from relitigating issues that were or could have been raised in that 

action.”); Natural Res. Def. Council, 513 F.3d at 261; Apotex, 393 F.3d at 218; Zellars, 578 F. 

Supp. 2d at 4; Capitol Hill Group v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d 

143, 149 (D.D.C. 2008). A plaintiff that loses a challenge to a particular governmental action is 

therefore precluded from challenging that same action in a later suit, even if the plaintiff presents 

a different legal theory in the second suit. See Natural Res. Def. Council, 513 F.3d at 261 

(holding challenge precluded despite plaintiff’s offering new legal rationale in second suit); 

Apotex, 393 F.3d at 217-18 (same). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 15 of 34
11

In the current action, the parties who were plaintiffs in McConnell allege that BCRA 

Title I is unconstitutional in relation to: 

(1) the RNC’s and Duncan’s plans to solicit and receive soft money to 

(a) support state candidates (Compl. ¶¶ 16-17, 20, 22, 29-34, 41-42 (Counts 1, 

2, and 5)); 

(b) “support the redistricting efforts of various states[’] Republican parties” 

(Compl. ¶ 18, 22, 35-37 (Count 3)); 

(c) “support grassroots lobbying efforts for federal legislation and issues” 

(Compl. ¶ 19, 22, 38-40 (Count 4)); 

(d) “pay[ ] the expenses and fees attributable to this case” (Compl. ¶ 21-22, 

43-45 (Count 6)); 

(2) Duncan’s plan to solicit direct soft-money donations to state candidates and 

parties (Compl. ¶ 22, 46-48 (Count 7)); and 

(3) the CRP’s plan to receive soft money for activities that the CRP alleges may 

constitute “federal election activity,” specifically: 

(a) “public communications” that “will ‘attack’ or ‘oppose’ federal 

candidates” in the context of state ballot initiatives (Compl. ¶¶ 23-24, 

49-51 (Count 8)); and 

(b) “voter registration, voter identification, and get-out-the-vote activities, as 

well as ‘generic campaign activity,’ in future elections where both state 

and federal candidates appear on the ballot” (Compl. ¶¶ 25, 52-54 (Count 

9) (internal citation omitted)). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 16 of 34
12

Plaintiffs argue that BCRA Title I’s prohibition of each of these activities is “unconstitutional 

under the First Amendment guarantees of free speech and association.” (See, e.g., Compl. ¶¶ 31, 

34, 37.) 

 The above-listed claims are virtually indistinguishable from the claims these same parties 

asserted in McConnell. The RNC’s and Duncan’s McConnell complaint challenged the 

constitutionality of BCRA Title I as it related to those plaintiffs’ soliciting and receiving soft 

money to: 

(a) “provid[e] support, including direct monetary contributions, to state and 

local candidates and party committees” (Exh. 1 ¶¶ 32, 36-38; see also id. 

¶ 47); 

(b) conduct “‘issue advertising’ through print, broadcast, and other media for 

the purpose of articulating the Party’s views on important public policy 

issues” (Exh. 1 ¶ 47; see also id. ¶¶ 69-82); 

(c) “participat[e] in” state referenda (Exh. 1 ¶ 36); 

(d) conduct “voter registration, voter identification, voter education, and getout-the-vote efforts in state and local elections” (Exh. 1 ¶ 47). 

The complaint also alleged that Title I unconstitutionally limited Duncan’s right to solicit funds 

on behalf of state candidates (Exh. 1 ¶ 37), and it challenged BCRA’s definition of “federal 

election activity” as unconstitutionally vague. (Exh. 1 ¶¶ 84-91.) Finally, although it was not 

specifically mentioned in the complaint, the RNC introduced substantial evidence before the 

McConnell district court showing that it used soft money “to support redistricting efforts, 

including redistricting litigation.” See McConnell, 251 F. Supp. 2d at 338 (opinion of 

Henderson, J.), 462, 508, 687 (opinion of Kollar-Kotelly, J.), 831-32 (opinion of Leon, J.). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 17 of 34
13

 As to the CRP, its complaint in McConnell asserted extensive claims against the 

constitutionality of the prohibition on state parties’ receiving soft money for federal election 

activity. (See Exh. 2 ¶¶ 43-61.) The CRP alleged in McConnell that the definition of federal 

election activity was unconstitutional in light of the CRP’s putatively non-federal activities, 

including: 

(a) “voter registration activity . . . before an election in which a federal 

candidate is on the ballot; any voter identification, get-out-the-vote, or 

generic campaign activity in connection with such an election, [and] any 

public communication that ‘promotes,’ ‘supports,’ ‘attacks,’ or ‘opposes’ 

a candidate for federal office” (Exh. 2 ¶ 45; see also id. ¶¶ 51-52, 54); and 

(b) “broadcast communications in support of or opposition to ballot 

measures” (Exh. 2 ¶ 56; see also id. ¶ 55). 

As these complaints demonstrate on their face, the overwhelming majority of the claims 

in the current complaint repeat the same plaintiffs’ claims in McConnell. The RNC’s allegations 

regarding the national party’s “support” of state and local candidates and parties, the RNC’s 

allegations regarding “issue advertising” or “grassroots lobbying,”5 Duncan’s allegations 

regarding soliciting soft money for state candidates, and the CRP’s allegations regarding partybuilding and ballot initiative advertising were each explicitly asserted by the same parties, 

respectively, in McConnell. 

 

5

 The terms “grassroots lobbying” and “issue advertising” are often used interchangeably 

in the campaign finance context. See, e.g., FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 

2659-60 (2007) (referring to WRTL’s ads as “issue advocacy” and noting that WRTL referred to 

them as “grassroots lobbying”); see also id. at 2685-86 (Scalia, J., dissenting) (discussing 

application of BCRA to “issue ads” and “grassroots advocacy”). 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 18 of 34
14

In addition to raising these claims in their complaints, the McConnell plaintiffs also made 

specific, detailed arguments regarding them in their briefs. For example, in their merits brief 

before this Court, the RNC and Duncan argued for the unconstitutionality of BCRA Title I in 

relation to the receipt of soft money for “participation in state and local elections . . . in oddnumbered years . . . when no federal candidates appear on the ballot.” See McConnell v. FEC, 

Civ. No. 02-582, Consol. Br. for Pls. in Support of Mot. for J. at RNC 6, 25-28, 41, 59 (D.D.C.) 

(attached hereto as Exhibit 3).6

 Indeed, the RNC and Duncan specifically argued for the 

unconstitutionality of Title I as it affected the RNC’s planned activities in New Jersey’s and 

Virginia’s off-year elections (Exh. 3 at RNC 6, 25-26) — the same state elections these parties 

raise in the instant case. (See Compl. ¶¶ 16-17.) The RNC and Duncan also contended that Title 

I was unconstitutional in relation to the RNC’s support for state parties (see Exh. 3 at RNC 9-10, 

15-16, 41, 54), solicitations of soft money by party leaders (see id. at RNC 10, 25, 41, 47-50), 

and funding “issue speech” (see id. at RNC 52, 59). The CRP’s brief similarly expanded on the 

claims in its McConnell complaint, raising constitutional arguments against the “limitation on the 

use of state-regulated contributions for state and local election activities” (see id. at CDP/CRP 1), 

as well as Title I’s effect on get-out-the-vote activities (id. at CDP/CRP 19), “television or radio 

advertisements” (id. at CDP/CRP 31), “grass-roots campaign activities” (id.), and soft-money 

solicitations by party leaders (id. at CDP/CRP 39-43). 

These arguments were reiterated in the parties’ briefs opposing the Commission’s motion 

for judgment in this Court. In their opposition brief, the RNC and Duncan discussed at length 

the purported unconstitutionality of BCRA’s restriction on solicitations of soft money by party 

 

6

 The McConnell plaintiffs filed consolidated briefs with the district court; within each 

brief, each of the various plaintiff groups submitted separately paginated sections. Because of 

the length of the consolidated briefs, the attached exhibits comprise only the sections submitted 

by the RNC, Duncan, and the CRP in support of their challenges to Title I. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 19 of 34
15

officers, including Duncan himself. See McConnell v. FEC, Civ. No. 02-582, Consol. Opp. Br. 

for Pls. at RNC 16-18, 20, 23, 29-30, 34-35 (D.D.C.) (attached hereto as Exhibit 4). The RNC 

also raised further arguments regarding the party’s support for state candidates (Exh. 4 at RNC 

18, 23), and the receipt of soft money for “issue ads” (see id. at RNC 30-31). The CRP’s 

opposition brief likewise reiterated plaintiffs’ arguments concerning the receipt of soft money for 

“generic” and get-out-the-vote party activities (see id. at CDP/CRP 7-11, 14, 19), receipt of soft 

money for communications regarding state ballot measures (see id. at CDP/CRP 7-8), and 

solicitations of soft money by party leaders (see id. at CDP/CRP 21-23).

The opinions of this Court in McConnell also readily demonstrate that the same nucleus 

of facts at issue here were at issue in that case. For example, all three members of the Court 

discussed the use of soft money by the CRP to pay for generic campaign activity, such as voter 

identification, voter registration, and get-out-the-vote efforts to assist state candidates. See, e.g.,

McConnell, 251 F. Supp. 2d at 342-48 (opinion of Henderson, J.), 460-62 (opinion of KollarKotelly, J.), 836-45 (opinion of Leon, J.). All three judges also discussed solicitation by national 

party officers — including Duncan — of funds for state parties and candidates. See, e.g., id. at 

339 (Henderson, J.), 522-23 (Kollar-Kotelly, J.), 833-34 (Leon, J.). And, as mentioned above, 

all three members of the Court referred to the RNC’s use of soft money to support redistricting 

efforts, including litigation. See supra p. 12. The opinion is replete with examples like these of 

this Court discussing the same conduct for which plaintiffs RNC, CRP, and Duncan now seek 

relief for the second time.

The McConnell plaintiffs continued to raise these arguments before the Supreme Court. 

On jurisdictional briefing, the RNC and Duncan asked the Court to uphold this Court’s 

determination striking down the portions of Title I that “make[ ] it a felony for the Chairman of 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 20 of 34
16

the RNC” to solicit soft money, Republican Nat’l Comm. v. FEC, S. Ct. No. 02-1727, 

Jurisdictional Statement at 3, 12 (attached hereto as Exhibit 5), and that restrict receipt of soft 

money in relation to off-year state elections (Exh. 5 at 5-6, 13), redistricting activities (id. at 8 

& n.3), and advertising (id. at 14-15). The CRP requested that the Supreme Court affirm this 

Court’s holding regarding the invalidity of Title I as to the CRP’s “federal election activity,” 

including “public communications” in general, Cal. Democratic Party v. FEC, S. Ct. No. 

02-1753, Jurisdictional Statement at 3, 5, 13, 15-17 (attached hereto as Exhibit 6), and 

communications regarding ballot measures specifically (Exh. 6 at 16-17). The CRP also sought 

the Supreme Court’s affirmance of this Court’s holdings regarding voter registration and get-outthe-vote activity (id. at 3-5, 11-13), and solicitations of soft money by national party officers (id. 

at 6, 14-15). 

At the merits stage before the Supreme Court, the RNC, Duncan, and the CRP filed a 

joint brief. Republican Nat’l Comm. v. FEC, S. Ct. Nos. 02-1727, 02-1733, 02-1753, Br. of 

Political Parties (attached hereto as Exhibit 7). This brief went into great detail regarding the 

same activities raised in the instant case, including soft-money solicitations by the RNC’s 

officers (see Exh. 7 at 1, 13, 34, 41, 43-44, 59-60, 78), the RNC’s and CRP’s spending on 

putative issue advertising (see id. at 12-13, 17-18, 34, 48-50, 51-56), the CRP’s spending 

regarding ballot measures (see id. at 37, 52-55, 62, 79, 88-89), and the CRP’s spending on voter 

registration and mobilization efforts (see id. at 1, 12, 16-19, 50-53, 57, 87-90). Most 

prominently, the brief discussed the RNC’s desire to support state and local candidates (see id. at 

1, 9-12, 14, 19-20, 34, 40-41, 58-59, 63-64, 78-79, 86-87), including those in states holding their 

elections in odd-numbered years, such as New Jersey and Virginia. (Id. at 11-12 (“[T]he RNC 

. . . devoted considerable ‘in-house’ efforts to the Virginia and New Jersey gubernatorial and 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 21 of 34
17

state legislative races in 2001, committing staff and other resources to those campaigns.”).) The 

plaintiffs’ joint reply brief before the McConnell Court discussed these activities in further depth. 

Republican Nat’l Comm. v. FEC, S. Ct. Nos. 02-1727, 02-1733, 02-1753, Reply Br. of Political 

Parties at 1-2 (solicitations by party officers), 2, 4-5, 7, 33 (RNC support of state parties), 2-5, 7, 

19-25 (state party registration and GOTV), 2, 21 & n.13, 24-25 (ballot measures) (attached 

hereto as Exhibit 8).

The Supreme Court ruled on these claims, denying them both categorically and 

individually. In its decision on the merits, the Court first rejected the plaintiffs’ premise that the 

constitutionality of Title I — which is a statutory limit on contributions to political parties — 

should be judged based on the activities for which the contributed funds would ultimately be 

spent. See McConnell, 540 U.S. at 138-39, 154-56; see also infra Part II.B.2. The Court’s 

reasoning and holding are dispositive here: 

 Plaintiffs and THE CHIEF JUSTICE contend that [section 101(a)] is 

impermissibly overbroad because it subjects all funds raised and spent by 

national parties to FECA’s hard-money source and amount limits, including, for 

example, funds spent on purely state and local elections in which no federal 

office is at stake. Such activities, THE CHIEF JUSTICE asserts, pose “little or 

no potential to corrupt . . . federal candidates and officeholders.” This 

observation is beside the point. Section [101(a)], like the remainder of [§ 101], 

regulates contributions, not activities. As the record demonstrates, it is the close 

relationship between federal officeholders and the national parties, as well as 

the means by which parties have traded on that relationship, that have made all 

large soft-money contributions to national parties suspect. 

McConnell, 540 U.S. at 154-55 (second and third emphases added; footnote and citations 

omitted). In making these points, the Court explicitly acknowledged that thirty percent of the 

nonfederal funds the RNC had raised in 2001 was spent on “purely state and local election 

activity.” Id. at 154 n.50. However, despite this fact, the Court found the ban on all soft-money 

contributions justified by the extensive evidence demonstrating the influence that soft-money 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 22 of 34
18

donors to the national parties wielded over the federal officeholders affiliated with those parties. 

See generally id. at 143-54; id. at 150 (“The evidence connects soft money to manipulations of 

the legislative calendar,” and “[t]he record . . . is replete with similar examples of national party 

committees peddling access to federal candidates and officeholders in exchange for large softmoney donations.”). The Court therefore upheld the soft-money prohibition, finding that “large 

soft-money contributions to national political parties give rise to corruption and the appearance 

of corruption.” Id. at 154. 

The Court then addressed the prohibition on officers of national parties soliciting soft 

money for state and local parties, 2 U.S.C. § 441i(a)(2), which is one of the claims that Duncan 

raised in McConnell and raises again here. The Court rejected Duncan’s claim, holding that the 

prohibition on officer solicitation “follows sensibly from the prohibition on national committees’ 

receiving soft money.” McConnell, 540 U.S. at 157-58. Thus, the Court held that the 

solicitation prohibition was constitutional for the same reasons as the national party prohibition. 

Id. 

Turning to the prohibition on state and local parties’ receipt of soft money for federal 

election activity, 2 U.S.C. §§ 441i(b), 431(20), the Court held that prohibiting these affiliates of 

the national parties from receiving soft money for the enumerated activities was a necessary 

corollary to the national party soft-money ban. McConnell, 540 U.S. at 161. The Court noted 

the evidence that the national limit would be “wholly ineffective” without the state and local 

limit, id. at n.53 (internal quotation omitted), and so held that the latter “promotes an important 

governmental interest by confronting the corrupting influence that soft-money donations to 

political parties already have.” Id. at 165. Accordingly, the Court upheld the state and local 

limit on the grounds that “[p]reventing corrupting activity from shifting wholesale to state 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 23 of 34
19

committees and thereby eviscerating FECA clearly qualifies as an important governmental 

interest.” Id. at 165-66. 

The Court discussed the state and local parties’ contention that some conduct meeting the 

“federal election activity” statutory definition is non-federal activity relating only to state and 

local elections. See id. at 166-68. The Court rejected this contention, finding that the statutory 

definition of federal election activity — particularly “voter registration, voter identification, 

GOTV, and generic campaign activity” — “clearly capture[s] activity that benefits federal 

candidates” and that “funding of such activities creates a significant risk of actual and apparent 

corruption.” Id. at 167-68. The Court held that section 101(b) “is a reasonable response to that 

risk,” and therefore constitutional. Id. 

Finally, the Court addressed the state and local parties’ arguments regarding the 

prohibition on receiving soft money for advertising that promotes, attacks, supports, or opposes a 

federal candidate. 2 U.S.C. § 431(20)(A)(iii). The Court found that, as to the substantial 

influence of such advertising on federal elections, “[t]he record on this score could scarcely be 

more abundant.” McConnell, 540 U.S. at 169-70. Because the evidence regarding such 

influence was clear, the Court held that the statutory limit is “closely drawn to the anticorruption 

interest it is intended to address,” id., and does not unconstitutionally limit state and local parties’ 

“ability to engage in effective advocacy,” id. at 173. 

In sum, each of the duplicative claims that Plaintiffs raised in McConnell and now raise 

again was rejected by the Supreme Court. Accordingly, these claims are res judicata, and they 

cannot be relitigated here. 

There are two superficial differences between McConnell and the instant action that 

Plaintiffs may cite in an attempt to salvage their case. First, Plaintiffs style the current case an 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 24 of 34
20

“as applied” constitutional challenge, and they imply that this distinguishes it from McConnell, 

which was a facial challenge. But, as the foregoing indicates, the “nucleus of facts” of the two 

cases is essentially identical: The McConnell plaintiffs presented extensive evidence regarding 

the activities that they alleged were not intended to influence federal elections, and the current 

Plaintiffs present factual allegations of these same activities. Indeed, in seeking expedited 

summary judgment briefing, Plaintiffs themselves argued that the Commission would not require 

discovery in this case because “activities of the Plaintiffs were fully investigated and included in 

the McConnell record.” (Pls.’ Reply in Support of Mot. to Expedite at 2.) By conceding that 

there are few, if any, facts to be developed in this case beyond those found by the McConnell

courts, Plaintiffs concede that the facts underlying the two cases are the same. As a matter of 

law, this renders McConnell preclusive as to any claims Plaintiffs now wish to reassert under the 

alternate theory of an as-applied challenge, for a party cannot bring the same suit twice simply 

by devising a new legal theory under which the same facts entitle the party to relief that has 

already been denied. Page, 729 F.2d at 820; Nuckols, 578 F. Supp. 2d at 82; Zellars, 578 F. 

Supp. 2d at 3-4; Tembec, 570 F. Supp. 2d at 141. Plaintiffs’ characterization of this case as an 

“as applied” challenge is therefore legally irrelevant: Plaintiffs are “simply raising a new legal 

theory. This is precisely what is barred by res judicata.” Apotex, 393 F.3d at 218; see also

Alaska Legislative Council v. Babbitt, 15 F. Supp. 2d 19, 22-23 (D.D.C. 1998) (holding 

constitutional challenge to agency determination precluded by plaintiff’s prior action challenging 

same determination on statutory grounds). 

Second, two of the specific activities that Plaintiffs allege they plan to conduct — the 

redistricting and litigation activities — were not specifically referenced in the McConnell

complaint. As to redistricting activity, however, the RNC introduced substantial evidence to 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 25 of 34
21

support a claim that such activity was one of the soft-money funded activities on which BCRA 

unconstitutionally infringed. See supra p. 12; McConnell, 251 F. Supp. 2d at 338 (opinion of 

Henderson, J.), 462, 508, 687 (opinion of Kollar-Kotelly, J.), 831-32 (opinion of Leon, J.); see 

also Exh. 7 at 89 (countering one of Commission’s arguments regarding redistricting). Because 

the preclusive effect of a prior judgment turns on the “nucleus of facts” a plaintiff presents to 

support its claim, the RNC’s presentation in McConnell of facts regarding redistricting to support 

its constitutional argument precludes the RNC from attempting to raise the same facts here in 

support of renewed constitutional claims. See Am. Fed’n of Gov’t Employees, AFL-CIO v. Loy, 

332 F. Supp. 2d 218, 223 (D.D.C. 2004) (holding that plaintiff’s First Amendment challenge to 

firing of government employee was precluded by prior suits in which plaintiff introduced 

evidence regarding same firing). In any event, it is beyond dispute that facts regarding 

redistricting and litigation activities “could have been presented” in McConnell, and so the RNC 

is precluded from now raising claims based on those facts. See id.; see also Allen, 449 U.S. at 

94; Natural Res. Def. Council, 513 F.3d at 261; Capitol Hill Group, 574 F. Supp. 2d at 149. As 

the Supreme Court has explained, 

when a final judgment has been entered on the merits of a case, “[i]t is a 

finality as to the claim or demand in controversy . . . , not only as to every 

matter which was offered and received to sustain or defeat the claim or 

demand, but as to any other admissible matter which might have been 

offered for that purpose.” The final “judgment puts an end to the cause of 

action, which cannot again be brought into litigation between the parties 

upon any ground whatever.” 

Nevada v. United States, 463 U.S. 110, 129-30 (1983) (quoting Cromwell v. County of Sac, 94 

U.S. 351, 352 (1876), and Comm’r v. Sunnen, 333 U.S. 591, 597 (1948)). Because the RNC’s 

redistricting and litigation activities were undoubtedly “admissible” in support of the RNC’s 

McConnell claims that BCRA was unconstitutional because the political parties wished to fund 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 26 of 34
22

activities allegedly unrelated to federal elections — indeed, facts regarding the former were 

actually admitted — this Court should reject any attempt by Plaintiffs to relitigate McConnell

based on such allegations. See Nader, 2008 WL 5273109, at *5-6 (holding second suit precluded 

where plaintiffs had “voluntarily” withdrawn facts underlying it from earlier litigation; previous 

withdrawal of facts demonstrated that they “could have been raised” in first case). 

Finally, Plaintiffs have cited Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) 

(“WRTL I”), and FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL II”), for 

the proposition that the instant case should be permitted to proceed as an “as-applied challenge to 

a prohibition in BCRA that had been facially upheld in McConnell.” (Pls.’ Mem. of P. & A. in 

Support of Mot. to Expedite 2-4.) But the WRTL cases simply do not speak to the res judicata

issue presented here. Indeed, the Commission never asserted a claim preclusion defense in 

WRTL, for the plaintiff in those cases had not been a plaintiff in McConnell. Instead, the issue in 

WRTL was simply whether McConnell had already decided the constitutional question raised by 

WRTL (as the Commission argued), or whether McConnell had left that question to be decided 

at a later time (as WRTL argued). See WRTL I, 546 U.S. at 411-12. The Supreme Court agreed 

with WRTL, holding that McConnell had not resolved the issue. Id. No question of res judicata

was raised or decided in WRTL, and Plaintiffs’ attempt to rely on that case to avoid preclusion 

here is therefore misplaced. 

Furthermore, because of the substantive differences between the constitutional issues in 

WRTL and the present case, it would be inappropriate to extend WRTL’s holding to apply to the 

Commission’s motion to dismiss. The question in WRTL was how to reconcile two apparently 

conflicting portions of the McConnell opinion: the statements that (1) “[w]e uphold all 

applications of the primary definition” of “electioneering communication” and (2) that BCRA 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 27 of 34
23

section 203 was not overbroad “to the extent that” advertisements subject to that section were 

“the functional equivalent of express advocacy.” See McConnell, 540 U.S. at 190 n.73, 206. In 

WRTL I, the Court explained that the “all applications” statement in McConnell “merely notes 

that . . . it was unnecessary to consider the constitutionality of the backup definition Congress 

provided.” 546 U.S. at 412. In WRTL II, the Court was called on to determine the boundaries of 

the “functional equivalent of express advocacy” test — an issue that had not been decided by 

McConnell itself. See WRTL II, 127 S. Ct. at 2664-65. In other words, McConnell had created a 

test in facially upholding BCRA section 203, and WRTL fleshed out that test through an 

as-applied challenge, granting relief to a plaintiff that had not been a party to McConnell and 

whose claims were premised on specific facts — three particular communications — that had not 

been presented to the McConnell Court.7

 

This case presents the reverse situation: In upholding Title I of BCRA, the Supreme 

Court did consider the same general facts — categories of political party activity — that 

Plaintiffs now allege, and the Court did not create a test requiring further explication. On the 

contrary, as discussed above, the Court upheld Title I on the basis of long-established 

contribution-limit jurisprudence. It explicitly rejected the plaintiffs’ request to draw a 

constitutional boundary based on how the soft-money contributions would be spent.8

 Thus, this 

 

7

 The advertisements at issue in WRTL were intended to be broadcast in July 2004, more 

than one year after McConnell was decided. See WRTL II, 127 S. Ct. at 2660-61. 

8

 The Commission does not argue that all conceivable as-applied challenges to BCRA 

Title I are precluded, but challenges to it based on the activities to be funded with the intended 

large contributions are clearly foreclosed under McConnell. In any event, Plaintiffs’ 

characterization of the present case as an as-applied challenge elevates form over substance, as 

the Complaint challenges the great majority of the activities that are subject to BCRA Title I. 

For example, the CRP’s challenge to the constitutionality of the definition of “federal election 

activity” encompasses all of the particular activities listed in the first three clauses of that 

definition. Compare Compl. ¶¶ 23-25 with 2 U.S.C. § 431(20)(A)(i)-(iii). An “as-applied” 

challenge to the entirety of a statute is merely a facial challenge under a different label. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 28 of 34
24

case is nothing more than a second attempt to seek relief regarding the same conduct litigated in 

McConnell, but with no opening from that decision to do so. Because preventing such repeat 

actions by according finality to litigation is the very purpose of the claim preclusion doctrine, 

this matter must be dismissed as to the RNC, Duncan, and the CRP. 

2. Issue Preclusion: The Claims of the RNC, Duncan, and the CRP Are 

Premised on a Legal Argument that Was Litigated and Decided in 

McConnell

Even if their claims were not precluded, the RNC, Duncan, and the CRP would 

nonetheless be prohibited from relitigating the issues of law that they argued and lost in 

McConnell. The doctrine of issue preclusion provides that a party that litigates a factual or legal 

question and receives a final decision on that question may not litigate it again in a subsequent 

action. See Montana, 440 U.S. at 153; Tembec, 570 F. Supp. 2d at 141-42 (citing Allen, 449 U.S. 

at 94). Issue preclusion “relieves parties of the cost and vexation of multiple lawsuits, conserves 

judicial resources, prevents inconsistent decisions, and encourages reliance on adjudication.” 

Safadi v. Novak, 574 F. Supp. 2d 52, 55 (D.D.C. 2008) (citing Montana, 440 U.S. at 153-54). 

For issue preclusion to apply, “[1], the same issue now being raised must have been contested by 

the parties and submitted for judicial determination in the prior case[; 2], the issue must have 

been actually and necessarily determined by a court of competent jurisdiction in that prior case[; 

and] [3], preclusion in the second case must not work a basic unfairness to the party bound by 

the first determination.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting 

Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)) (alterations in 

original). 

The RNC, Duncan, and the CRP extensively litigated and “submitted for judicial 

determination” in McConnell whether the contribution limit of BCRA Title I was constitutional 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 29 of 34
25

in relation to specific types of disbursements of soft money. As detailed previously, their 

McConnell complaints explicitly raised these issues, and their briefs were replete with arguments 

in support of them. See supra Part II.B.1. Before the district court, Plaintiffs’ briefs discussed at 

length the effect that Title I would have on different spending activities; indeed, the brief of the 

RNC and Duncan specifically argued that Title I should be considered “an [e]xpenditure [c]ap” 

because of the burdens it allegedly imposed on disbursements for particular activities that the 

RNC wished to conduct with soft money. (See Exh. 3 at RNC 51-56; see also id. at RNC 6-10 

(discussing soft-money activities), 25-29 (state election activities), 46-51 (“speech” 

accompanying solicitations).) In opposing the Commission’s motion for judgment, the RNC and 

Duncan asserted not only that the Commission was wrong to view Title I as a contribution limit, 

but that “the use to which a contribution is put is also important.” (Exh. 4 at RNC 37.) These 

plaintiffs then argued that such uses were deserving of heightened constitutional protection. (See 

id. at RNC 15-16, 34-41.) Similarly, the CRP’s district court briefs were devoted almost entirely 

to discussing Title I’s alleged constitutional infringements on particular CRP activities. (See

Exh. 3 at CDP/CRP 1-7, 11-20, 27-36; Exh. 4 at CDP/CRP 6-11, 14-23.) Like the RNC and 

Duncan, the CRP specifically argued that BCRA “does act as a direct limit” on the conduct of 

state parties. (Exh. 4 at CDP/CRP 15.) This Court largely agreed with the plaintiffs, striking 

down much of Title I. See supra Part I.B. 

On jurisdictional briefing of the Commission’s cross-appeal to the Supreme Court, the 

RNC and Duncan sought affirmance of this Court’s determination that “Title I [of] BCRA as 

enacted would severely restrict the traditional associational activities of political parties” (Exh. 5 

at 9), in part because “Title I regulates, inter alia, the spending of nonfederal funds.” (Id. at 12; 

see also id. at 12-15 (“Title I restricts political parties’ freedom to engage in pure speech and a 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 30 of 34
26

wide range of associational activities that are essential to their ability to function effectively.”).) 

The CRP also asked the Supreme Court to accept the case and find that “BCRA prohibits a broad 

range of speech, conduct and associational activity”; the CRP devoted nearly its entire 

Jurisdictional Statement to discussing the alleged unconstitutionality of these putative 

prohibitions. (See Exh. 6 at 2, 3-17.) 

In the joint Supreme Court merits brief of the RNC, Duncan, and the CRP, more than half 

of the ninety-nine page filing was devoted to asserting facts regarding how national, state, and 

local parties spend soft money. (See Exh. 7 at 9-23, 32-64, 86-90.) The plaintiffs presented at 

length their legal arguments as to why BCRA Title I was “[f]ar more restrictive than a mere 

contribution limit” (id. at 32), and unconstitutional in light of the putatively nonfederal way that 

the parties spend soft money (see id. at 32-64). These parties’ reply brief similarly focused 

heavily on “Title I’s Many Restrictions on Party Association, Spending, and Solicitation.” (See

Exh. 8 at 1-7, 19-25.) 

Ultimately, the Supreme Court rejected these arguments unequivocally. First, the Court 

found that Title I’s restrictions were a contribution limit rather than an expenditure limit: 

Plaintiffs contend that we must apply strict scrutiny to § 323 

because many of its provisions restrict not only contributions but also the 

spending and solicitation of funds raised outside of FECA’s contribution 

limits. But for purposes of determining the level of scrutiny, it is 

irrelevant that Congress chose in [Title I] to regulate contributions on the 

demand rather than the supply side. The relevant inquiry is whether the 

mechanism adopted to implement the contribution limit, or to prevent 

circumvention of that limit, burdens speech in a way that a direct 

restriction on the contribution itself would not. That is not the case here. 

For example, while [BCRA section 101(a)] prohibits national 

parties from receiving or spending nonfederal money, and [section 101(b)] 

prohibits state party committees from spending nonfederal money on 

federal election activities, neither provision in any way limits the total 

amount of money parties can spend. Rather, they simply limit the source 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 31 of 34
27

and individual amount of donations. That they do so by prohibiting the 

spending of soft money does not render them expenditure limitations. 

McConnell, 540 U.S. at 138-39 (internal citations omitted). Next, as explained above, the Court 

held that the plaintiffs’ allegations regarding activities funded by soft money were “beside the 

point. Section [101(a)], like the remainder of [section 101], regulates contributions, not 

activities.” McConnell, 540 U.S. at 154 (emphasis in original). Accordingly, the Court assessed 

the constitutionality of Title I as a contribution limit — which must be “closely drawn to match a 

sufficiently important interest,” id. at 136 (internal quotation marks omitted) — and upheld 

Title I regardless of how the plaintiffs planned to spend soft money. See supra Part II.B.1. 

 As the foregoing demonstrates, the RNC, Duncan, and the CRP fully litigated the issue of 

whether BCRA Title I might be unconstitutional in relation to disbursements of soft money for 

specific types of putatively nonfederal activities, and the Supreme Court “actually and 

necessarily” decided that question in the negative. Instead, the Court held that all relevant 

aspects of Title I were constitutional because they were contribution limits closely drawn to 

match the government’s important interest in preventing actual and apparent corruption, 

regardless of how contributed funds would be disbursed. See McConnell, 540 U.S. at 154-73. 

That holding is binding and preclusive here: The Plaintiffs who were parties to McConnell had 

their opportunity to litigate the question of whether BCRA Title I was unconstitutional if 

contributed funds were used only for certain purposes, and they were unsuccessful in making 

that argument.9

 See Martin, 488 F.3d at 454-55 (precluding plaintiff from relitigating FOIA 

 

9

 Applying preclusion here would not “work a basic unfairness” under the D.C. Circuit’s 

test. Such “unfairness” is found primarily in cases where the issue to be precluded played only a 

small role in the earlier action, such that the party against whom preclusion is sought may not 

have had sufficient motivation to litigate it fully. See Martin, 488 F.3d at 455 (finding no 

unfairness where plaintiff’s “incentives to litigate the point now disputed were no less present in 

the prior case, nor are the stakes of the present case of ‘vastly greater magnitude’”) (quoting 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 32 of 34
28

argument he had lost in prior case); Stonehill v. IRS, 534 F. Supp. 2d 1, 6-8 (D.D.C. 2008) 

(holding defendant’s privilege argument precluded where it had been rejected in prior case 

between parties, even though first case concerned tax law and second was FOIA action); 

Newdow v. Bush, 355 F. Supp. 2d 265, 275 (D.D.C. 2005) (holding constitutional challenge to 

2005 presidential inauguration precluded by jurisdictional dismissal of plaintiff’s constitutional 

challenge to 2001 inauguration, despite minor differences between two inaugurations and 

complaints). Accordingly, the constitutionality of Title I on the grounds of how the funds will be 

disbursed, irrespective of the specific activities alleged in Plaintiffs’ complaint, is res judicata.

10 

Because each of Plaintiffs’ claims is premised on the precluded argument regarding the way that 

soft money will be spent, these claims all fail to state a claim on which relief can be granted. 

 C. Plaintiffs’ Claims Fail as a Matter of Law Under McConnell

 Even apart from the claim and issue preclusion doctrines, McConnell’s holding that 

BCRA Title I was constitutional without regard to how contributed funds were to be spent 

controls the entirety of the present case. Each count of the Complaint — those of the Plaintiffs 

who were parties to McConnell, as well as of the RPSD — assumes that allegations regarding 

Title I’s effects on particular categories of Plaintiffs’ spending state a viable claim. But this 

assumption is invalid, for, as discussed above, McConnell held that Title I survives the 

appropriate level of scrutiny for a contribution limit because it is narrowly tailored to the 

 

Yamaha, 961 F.2d at 254); see generally 18 Wright, Miller & Cooper, Federal Practice & 

Procedure 2d § 4426 (2002) (discussing “[t]ruly exceptional cases” in which “unfairness” 

limitation may apply). Given Plaintiffs’ focus on the particular uses on which they intended to 

spend contributed funds, the enormous factual record, and the multiple rounds of substantial 

briefing, there is no viable argument that Plaintiffs litigated Title I’s constitutionality as applied 

to particular types of activities at less than full force in McConnell. 

10 Because McConnell decided that the ultimate spending of the soft money was irrelevant, 

its preclusive effect extends to all of the soft money that the instant Plaintiffs seek to obtain, 

including that sought for purposes that were not explicitly referred to in the McConnell 

complaints, such as litigation and redistricting activities. 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 33 of 34
29

government’s interest in preventing actual and apparent corruption, regardless of what activities 

the prospective large contributions would fund. Plaintiffs’ allegations, even if true, could not 

raise a claim of entitlement to relief because the purported unconstitutionality of Title I rests 

exclusively on the argument that soft money will be used to fund only certain categories of 

activities. Because this is not a valid basis for challenging the constitutionality of BCRA’s 

contribution limits under McConnell, Plaintiffs’ claims fail as a matter of law for essentially the 

same reason that they are subject to issue preclusion. 

III. CONCLUSION 

 For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

this action. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: January 26, 2009 (202) 694-1650 

Case 1:08-cv-01953-RJL-RMC Document 20 Filed 01/26/2009 Page 34 of 34