No. 09-1287 

IN THE 

Supreme Court of the United States 

REPUBLICAN NATIONAL COMMITTEE, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

MOTION TO AFFIRM FOR INTERVENORDEFENDANT REPRESENTATIVE 

CHRISTOPHER VAN HOLLEN, JR. 

ROGER M. WITTEN

LAUREN E. BAER

WILMER CUTLER PICKERING

 HALE AND DORR LLP

399 Park Ave. 

New York, NY 10022 

(212) 230-8800 

ALAN B. MORRISON

GEORGE WASHINGTON

 LAW SCHOOL

2000 H Street, NW 

Washington, DC 20052 

(202) 994-7120 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

PAUL R.Q. WOLFSON

FRANCESCO VALENTINI

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., NW 

Washington, DC 20006 

(202) 663-6000 

seth.waxman@wilmerhale.com 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, NW 

Washington, DC 20009 

(202) 588-1000 

(Additional counsel listed on inside cover) 
DONALD J. SIMON

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON & 

 PERRY, LLP 

1425 K Street, NW 

Suite 600 

Washington, DC 20005 

(202) 682-0240 

FRED WERTHEIMER

DEMOCRACY 21 

1825 Eye Street, NW 

Suite 400 

Washington, DC 20006 

(202) 355-9600 
(i) 

QUESTION PRESENTED 

Whether appellants’ purported “as-applied” challenge to Title I of the Bipartisan Campaign Reform Act 

of 2002—which limits contributions to political parties—is foreclosed by this Court’s decision in McConnell v. FEC, 540 U.S. 93 (2003), which upheld BCRA 

against the very same arguments that appellants now 

raise. 
(iii) 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED...............................................i 

TABLE OF AUTHORITIES ...........................................v 

STATEMENT .....................................................................1 

ARGUMENT.....................................................................12 

I. THIS COURT’S DECISION IN MCCONNELL

FORECLOSES EACH OF APPELLANTS’

CHALLENGES TO SECTION 323 .................................13 

A. Under McConnell, The RNC’s Proposed Use Of Soft Money Is “Beside 

The Point” ............................................................13 

B. McConnell Considered And Rejected 

CRP’s And SDRP’s Challenges ........................14 

C. The RNC’s Pledges Not To Grant 

Preferential Access To Soft-Money 

Donors Do Not Give Rise To A Proper 

As-Applied Challenge.........................................15 

D. This Court Has Recognized The Close 

Relationship Between National Parties 

And Their Federal Candidates And Officeholders ............................................................17 

II. NOTHING IN CITIZENS UNITED UNDERMINES MCCONNELL’S RATIONALE FOR 

UPHOLDING SECTION 323 ..........................................18 

A. Congress May Limit Contributions To 

Avoid The Risks Of Favoritism Toward And Improper Influence By 

Large Contributors.............................................19 
iv 

TABLE OF CONTENTS—Continued 

Page 

B. BCRA’s Soft-Money Restrictions Permissibly Curb The Risk Of Actual Or 

Apparent Quid Pro Quo Corruption................21 

C. BCRA Does Not Unfairly Disadvantage Political Parties ..........................................22 

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

APPENDIX 

Excerpt of Report of Thomas E. Mann 

(Sept. 20, 2002)............................................................1a 
v 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

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

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ...........22 

California Medical Ass’n v. FEC, 453 U.S. 182 

(1981) ............................................................................19 

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

City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41 (1986) .......................................................16 

Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996)..................18 

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

2009) .............................................................................23 

FEC v. Beaumont, 539 U.S. 146 (2003)......................8, 19 

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001).........18, 19, 20 

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

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C. 2003)...................................................5, 6, 8, 17 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) .......................................8, 9, 19, 20 

Randall v. Sorrell, 548 U.S. 230 (2006)..........................19 

STATUTES 

2 U.S.C. 

§ 431..........................................................................9, 14 

§ 441i....................................................................passim 
vi 

TABLE OF AUTHORITIES—Continued 

Page(s) 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 (1972)..........................2 

Federal Election Campaign Act Amendments 

of 1974, Pub. L. No. 93-443, 88 Stat. 1263 .............2, 3 

Federal Election Campaign Act Amendments 

of 1976, Pub. L. No. 94-283, 90 Stat. 475 ...................4 

Bipartisan Campaign Reform Act of 2002, 

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

LEGISLATIVE MATERIALS 

S. Rep. No. 105-167 (1998)..................................................6 

ADMINISTRATIVE MATERIALS 

FEC Advisory Opinions 

1978-10 ...........................................................................5 

1979-17 ...........................................................................5 

1995-25 ...........................................................................5 

OTHER AUTHORITIES 

Center for Responsive Politics, 

Political Parties Overview........................................24 
IN THE 

Supreme Court of the United States 

No. 09-1287 

REPUBLICAN NATIONAL COMMITTEE, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MOTION TO AFFIRM FOR INTERVENORDEFENDANT REPRESENTATIVE 

CHRISTOPHER VAN HOLLEN, JR. 

STATEMENT 

This case arises against the backdrop of McConnell 

v. FEC, in which this Court upheld the contribution 

limitations of Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA) against a facial challenge 

brought by a group of plaintiffs that included two of the 

parties now bringing this action. 540 U.S. 93 (2003). In 

McConnell, the plaintiffs advanced virtually the same 

argument that appellants now recycle under the guise 

of an “as applied” challenge—i.e., that contributions to 

political parties that are spent on activities that alleg-
2 

edly are not specifically related to federal elections do 

not present a risk of actual or apparent corruption and 

thus lie beyond Congress’s power to regulate. This 

Court rejected that argument, and the Court’s decision 

(which appellants do not ask this Court to overrule) 

forecloses appellants’ challenges here—as the district 

court correctly concluded. Nothing in Citizens United 

v. FEC, 130 S. Ct. 876 (2010), which dealt exclusively 

with independent expenditures by corporations, undercuts McConnell’s upholding of contribution limits to 

political parties. This case is, therefore, at most, a footnote to McConnell—and, indeed, to Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam). The district court’s decision should be affirmed. 

1. In the 1970s, the public learned that its government officials had granted favors, positions, and preferential access to donors who had made large political 

contributions to federal candidates and officeholders. 

Shaken by the resulting loss of public confidence in the 

integrity of the political system, in 1974 Congress 

amended the recently enacted Federal Election Campaign Act of 1971. Neither the 1971 Act nor the 1974 

Amendments (collectively, FECA) removed private 

money from federal campaigns. Rather, FECA set limits on the amount that individuals could contribute to 

each federal candidate, imposed overall yearly limits on 

individual political contributions, required expanded 

disclosure of those contributions, and established the 

Federal Election Commission (FEC) to enforce the law. 

FECA also carried forward provisions, first enacted in 

1907 and 1947, prohibiting corporations and unions 

from using their general treasury funds to make contributions in connection with federal elections. At the 

same time, FECA permitted corporations and unions to 

contribute to federal candidates and political parties 
3 

through segregated funds financed by donations from 

affiliated individuals (PACs). 

2. In Buckley, this Court upheld FECA’s limits on 

contributions to candidates and political committees. 

424 U.S. at 23-36. The Court found it “unnecessary to 

look beyond the Act’s primary purpose to limit the actuality and appearance of corruption resulting from 

large individual financial contributions in order to find a 

constitutionally sufficient justification for the [then] 

$1,000 contribution limitation.” Id. at 26. Buckley

identified two distinct threats to the integrity of the 

nation’s political system that supported FECA’s contribution limits. First, “[t]o the extent that large contributions are given to secure a political quid pro quo 

from current and potential office holders”—a problem 

that was “not an illusory one”—“the integrity of our 

system of representative democracy is undermined.” 

Id. at 26-27. Second, and “[o]f almost equal concern,” 

was “the impact of the appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial 

contributions.” Id. at 27. Accordingly, “Congress could 

legitimately conclude that the avoidance of the appearance of improper influence is also critical ... if confidence in the system of representative Government is 

not to be eroded to a disastrous extent.” Id. (internal 

quotation marks omitted). 

In adopting this practical understanding of the 

threat that unregulated contributions pose to the integrity of the nation’s political system, Buckley explicitly 

rejected the notion that bribery laws and disclosure requirements sufficed to address the corrupting influence 

of unlimited political contributions: “[L]aws making 

criminal the giving and taking of bribes deal with only 

the most blatant and specific attempts of those with 
4 

money to influence governmental action.” Id. at 27-28. 

“Congress was surely entitled to conclude ... that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption 

inherent in a system permitting unlimited financial contributions.” Id. at 28. 

Buckley also upheld a $25,000 aggregate limit on all 

contributions made by individuals during a calendar 

year, which included contributions to political parties. 

424 U.S. at 38.1

 The Court viewed this contribution 

limit as a “quite modest restraint upon protected political activity” and “no more than a corollary of the basic 

individual contribution limitation” to candidates and 

political committees. Id. That was so, the Court explained, because the aggregate contribution limit 

“serve[d] to prevent evasion of the $1,000 contribution 

limitation by a person who might otherwise contribute 

massive amounts of money to a particular candidate 

through the use of ... huge contributions to the candidate’s political party.” Id. (emphasis added). 

3. Two years after Buckley, the FEC opened a 

loophole that, in time, undermined much of what Congress had sought to accomplish in 1974. The FEC ruled 

that political parties could use an allocation formula to 

spend a combination of FECA-compliant “hard” money 

and unlimited “soft” money (i.e., money contributed directly by corporations or labor unions, or contributed in 

excess of the FECA contribution limits) for “mixed ac-

 1 See also Federal Election Campaign Act Amendments of 

1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 475, 487 (codified as 

amended at 2 U.S.C. § 441a(a)(1)) (setting contribution limits specific to the political parties in addition to the pre-existing overall 

contribution limits). 
5 

tivities” that affected both federal and state elections. 

FEC Adv. Op. 1978-10; FEC Adv. Op. 1979-17. 

In practice (as Congress later found when it enacted BCRA), the fiction of “mixed activities” allowed 

political parties to raise and use massive soft-money 

contributions to influence federal elections, effectively 

nullifying FECA’s contribution limits and restrictions 

on corporate and union contributions. McConnell, 540 

U.S. at 126. Not surprisingly, soft-money spending by 

the national parties grew rapidly, from an estimated 

$19 million in 1980 to more than $80 million in 1992. 

App. 44a. This expansion turned into an explosion 

when, in 1995, the FEC permitted the political parties 

to use “mixed funds” to finance so-called “issue” advertisements like the ones appellants now seek to finance 

with soft money. Such advertisements prominently 

featured candidates for federal office but stopped just 

shy of using language of “express advocacy.” FEC 

Adv. Op. 1995-25. In the 1996 election cycle, the national parties raised $262 million in soft money. 

McConnell v. FEC, 251 F. Supp. 2d 176, 441 n.7 (D.D.C. 

2003) (Kollar-Kotelly, J.). By the 2000 election cycle, 

soft-money contributions reached $495 million, id., and 

soft money accounted for 42% of the parties’ total 

spending, id. at 440. 

4. The state political parties also played a significant role in fostering the soft-money loophole. The 

FEC’s allocation rules allowed state political parties to 

“use a larger percentage of soft money to finance 

mixed-purpose activities” than the national parties. 

McConnell, 540 U.S. at 124; McConnell, 251 

F. Supp. 2d at 441 (Kollar-Kotelly, J.); App. 17a, 20a, 

26a. As a result, the parties were able to maximize 

their use of soft money by “transfer[ring] large 

amounts of their soft money to the state parties.” 
6 

McConnell, 540 U.S. at 124. In 1996, for example, the 

national parties transferred $115 million in soft money 

to the state parties (App. 25a-26a) and, by 2000, softmoney transfers grew to $280 million. McConnell, 540 

U.S. at 124.

5. As the soft-money loophole emerged, the parties 

concentrated their fundraising efforts on a small number of very large donors. In the 2000 election cycle, for 

example, 60% of the soft money (accounting for almost 

$300 million) came from just 800 donors, each contributing in excess of $120,000. See McConnell, 540 U.S. at 

124; App. 28a-29a. And, many of these large donors simultaneously contributed hundreds of thousands of dollars to both political parties. See McConnell, 540 U.S. 

at 124 & n.12; McConnell, 251 F. Supp. 2d at 509 (Kollar-Kotelly, J.); id. at 868-869 (Leon, J.); App. 59a-64a. 

The abuses that accompanied the explosion of soft 

money in the 1990s are well documented in the legislative history of BCRA, see, e.g., S. Rep. No. 105-167 

(1998), as well as the “reams of disquieting evidence 

contained in the [McConnell] record.” 540 U.S. at 153; 

see id. at 146-152; 251 F. Supp. 2d at 467-517 (KollarKotelly, J.). “The evidence in the [McConnell] record 

show[ed] that candidates and donors alike ... exploited 

the soft-money loophole, the former to increase their 

prospects of election and the latter to create debt on 

the part of officeholders, with the national parties serving as willing intermediaries.” McConnell, 540 U.S. at 

146. At the donor end of the bargain, “lobbyists, CEOs, 

and wealthy individuals alike all ... candidly admitted 

donating substantial sums of soft money to national 

committees not on ideological grounds, but for the express purpose of securing influence over federal officials.” Id. at 147. At the other end of the bargain, the 

McConnell Court concluded, “national parties ... ac-
7 

tively exploited the belief that contributions purchase 

influence or protection to pressure donors into making 

contributions.” Id. at 148 n.47. The McConnell Court 

concluded that this convergence of interests between 

the national parties and large donors seeking influence 

over federal officeholders resulted in the “national 

party committees peddling access to federal candidates 

and officeholders in exchange for large soft-money donations.” Id. at 150. 

The McConnell record also showed that the injection of soft money into the national parties gave rise to 

instances in which officeholders took specific actions on 

pending legislation on account of large donations. As 

this Court concluded, “[t]he evidence connects soft 

money to manipulations of the legislative calendar, 

leading to Congress’ failure to enact, among other 

things, generic drug legislation, tort reform, and tobacco legislation.” McConnell, 540 U.S. at 149-150. 

6. Congress enacted Title I of BCRA in direct response to this rampant circumvention of long-standing 

contribution limits and the accompanying threat to the 

integrity of the national political system. Congress imposed no spending limits, but rather restored the efficacy of FECA by closing the soft-money loophole. Congress subjected all funds received (or solicited) by the 

national political parties and their officers to contribution limits. BCRA § 101(a), FECA § 323(a) (codified at 

2 U.S.C. § 441i(a)). As a necessary corollary, moreover, 

BCRA imposed contribution limits on funds used by 

the political parties’ state and local committees for federal election activities. BCRA § 101(b)(1), FECA 

§ 323(b)(1) (codified at 2 U.S.C. § 441i(b)(1)). 

7. Various entities—including appellants Republican National Committee (RNC) and California Repub-
8 

lican Party (CRP)—challenged the constitutionality of 

BCRA’s soft-money provisions. McConnell, 251 

F. Supp. 2d at 206. This Court upheld Sections 323(a) 

and (b) in their entirety. The McConnell Court asked 

whether Section 323’s limits on contributions to the 

parties were “‘closely drawn’ to match ‘a sufficiently 

important [government] interest.’” 540 U.S. at 136 

(quoting FEC v. Beaumont, 539 U.S. 146, 162 (2003)); 

see also Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377, 387-388 (2000); Buckley, 424 U.S. at 25. In 

so doing, McConnell adhered to an uninterrupted line 

of decisions that have given less-exacting scrutiny to 

contribution limits than to expenditure limits, see

McConnell, 540 U.S. at 134-137, and that have shown 

deference to Congress’ “significantly greater institutional expertise ... in the field of election regulation,” 

Shrink Missouri, 528 U.S. at 402 (Breyer, J., concurring). 

In applying “closely drawn” scrutiny, the Court rejected the plaintiffs’ characterization of Section 323 as a 

spending regulation, holding that “it is irrelevant that 

Congress chose in § 323 to regulate contributions on the 

demand rather than the supply side” and that “neither 

[§ 323(a) nor § 323(b)] in any way limits the total 

amount of money parties can spend.” 540 U.S. at 138-

139. These provisions, the Court found, “simply limit 

the source and individual amount of donations.” Id. at 

139. The Court accordingly dismissed as irrelevant 

plaintiffs’ objection that Section 323(a) regulates all 

contributions to the national parties, including funds 

“spent on purely state and local elections in which no 

federal office is at stake.” Id. at 154. 

The Court also reaffirmed the holdings of Buckley 

and subsequent cases that, in the context of contribution limits, the government’s anti-corruption interest is 
9 

“not limited ... to the elimination of cash-for-votes exchanges.” McConnell, 540 U.S. at 143; see also id. at 

153-154. To the contrary, “‘[i]n speaking of ‘improper 

influence’ and ‘opportunities for abuse’ in addition to 

‘quid pro quo arrangements,’ [the Court had] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Id. at 143 (quoting Shrink Missouri, 528 U.S. at 

389). 

Turning to BCRA, the Court held that this government interest justifies Section 323(a)’s restrictions. 

Given “the reams of disquieting evidence contained in 

the record,” 540 U.S. at 153, the Court upheld “Congress’ determination that large soft-money contributions to national political parties give rise to corruption 

and the appearance of corruption.” Id. at 154. Further, 

based on that same massive record, the Court concluded that Section 323(a) is narrowly tailored to 

achieve the government’s anti-corruption interest. In 

this respect, the Court concluded that “the close relationship between federal officeholders and the national 

parties, as well as the means by which parties have 

traded on that relationship, ... have made all large softmoney contributions to national parties suspect.” Id. at 

154-155 (emphasis added). 

With respect to Section 323(b), the Court held that 

its targeted regulation of the state and local parties’ financing of federal election activity, 2 U.S.C. § 431(20), 

advanced the government’s anti-corruption interest. 

540 U.S. at 164-165. Further, the Court concluded that 

Section 323(b) was also instrumental to avoiding wholesale evasion of Section 323(a)—a “hard lesson of circumvention” having been taught “by the entire history 

of campaign finance regulation.” Id. at 165. The Court 
10 

concluded that, because large contributions made to 

support “federal election activity”—such as voter registration and get-out-the-vote efforts—“can be used to 

benefit federal candidates directly,” they “pose the 

greatest risk of this kind of corruption.” Id. at 167. 

8. In the present case, the RNC and its Chairman 

challenge Section 323(a)’s restrictions on receiving or 

soliciting soft-money contributions, purportedly “as applied” to a number of activities in which they intend to 

engage. These activities include so-called “issue” ads, 

redistricting activities, and support for state-office candidates in both off-cycle and dual federal-state elections. JS App. 7a. CRP and the Republican Party of 

San Diego County (SDRP) challenge Section 323(b)’s 

regulation of contributions to the state and local parties 

that are used for federal election activity, purportedly 

“as-applied” to CRP’s and SDRP’s intended ads attacking or opposing federal candidates in connection with 

certain ballot initiatives and to other intended campaign activities in dual state-federal elections. JS App. 

9a, 19a. Implicitly recognizing that providing softmoney donors with preferential access to federal officials is problematic, the RNC promises that “it will not 

arrange or facilitate meetings, conference calls, or other 

kinds of contact between soft-money contributors and 

federal candidates and officeholders ‘in any manner different than or beyond that currently afforded to contributors’ of hard money.” JS App. 8a (emphasis 

added). According to appellants, these promises eliminate any need for Section 323(a) and make its continued 

enforcement against them unconstitutional. 

9. The three-judge district court unanimously rejected appellants’ challenges, concluding that they are 

all foreclosed by McConnell. First, the court held that, 

to the extent the RNC’s “as-applied” challenge was 
11 

based on the claim that contribution limits could be applied only to funds raised by the national parties for 

federal electoral purposes, its argument was “not so 

much an as-applied challenge as it was an argument for 

overruling” McConnell, which “upheld § 323(a) against 

a facial challenge based on the same applications of the 

statute that the RNC now raises.” JS App. 13a. Second, the court dismissed CRP’s and SDRP’s “asapplied” challenges to Section 323(b) because they “are 

essentially the same arguments considered and rejected in McConnell.” JS App. 20a-21a. Third, the 

court held that, notwithstanding the RNC’s pledge not 

to have federal officials raise soft money or to grant 

soft-money donors greater access to federal candidates 

and officeholders than it already provides to its top federal-dollar contributors, McConnell forecloses the 

RNC’s argument that its proposed activities do not 

give rise to a risk of actual or apparent corruption. JS 

App. 15a-18a.2 Finally, the court rejected the RNC 

Chairman’s attack on Section 323(a)’s restriction preventing national-party officers from soliciting soft 

money in their official capacity. It held that, “[u]nder 

McConnell, there is no reason to think that contributions made to a national party and contributions made 

at the behest of a national party are any different in 

terms of their potential ability to produce corruption or 

the appearance of corruption.” JS App. 23a-24a. 

 2

 The three-judge court assumed, without any factual or legal 

basis (JS App. 8a n.4), that the FEC would be able to enforce the 

RNC’s promises. 
12 

ARGUMENT 

This is not a case of first impression. Each and 

every one of the challenges appellants raise was considered and rejected by this Court in McConnell. Appellants’ Jurisdictional Statement neither urges this 

Court to overrule the portion of McConnell that upheld 

Title I of BCRA nor even mentions the stare decisis

considerations that dictate whether a controlling precedent should be overruled. See Citizens United v. FEC, 

130 S. Ct. 876, 912 (2010).3

Nevertheless, appellants argue that, “as applied” to 

each of their intended uses of soft money, Section 323 

fails to advance a valid governmental interest. JS 11-

20. Yet, appellants wholly fail to explain how their supposed “as-applied” challenge differs from the facial 

challenges that the Court rejected in McConnell. Nor 

can appellants claim a constitutional exemption from 

BCRA merely by pledging to behave in a manner that 

supposedly would meet Congress’s concerns about the 

appearance of corruption; a law does not become unconstitutional just because one party subject to it promises, in hedged terms, not to act contrary to one of its 

purposes. Citizens United similarly provides no assistance to appellants, for that case involved independent 

expenditures and reemphasized that the regulation of 

 3

 A footnote in appellants’ jurisdictional statement suggests 

that “FECA §§ 323(a) and (b) may well be unconstitutional in all

their applications” (JS 20 n.4), but this oblique comment is insufficient to raise or preserve a facial challenge to BCRA. It does, 

however, amount to a tacit acknowledgment that appellants’ arguments for their as-applied challenge are irreconcilable with the 

reasoning of McConnell’s holding that Title I is facially constitutional. 
13 

expenditures and contributions raise fundamentally 

distinct constitutional considerations. 130 S. Ct. at 909. 

Finally, appellants’ argument that political parties have 

been severely and unconstitutionally disadvantaged 

vis-à-vis other political actors relies on reasoning that 

was squarely rejected in McConnell and, in any event, 

ignores reality. 

I. THIS COURT’S DECISION IN MCCONNELL FORECLOSES 

EACH OF APPELLANTS’ CHALLENGES TO SECTION 323 

A. Under McConnell, The RNC’s Proposed Use 

Of Soft Money Is “Beside The Point” 

In McConnell v. FEC, this Court considered and 

rejected the central argument on which the RNC’s 

claims rest—that the constitutionality of Section 

323(a)’s restrictions on contributions to national parties 

depends on the nature of the activities for which those 

contributions are ultimately used. JS 14, 17-20. There, 

the plaintiffs advanced the contention—which appellants recycle in this case—that Section 323(a) violates 

the First Amendment because “it subjects all funds 

raised and spent by national parties to FECA’s hardmoney source and amount limits, including, for example, funds spent on purely state and local elections in 

which no federal office is at stake.” 540 U.S. 93, 154 

(2003). The Court unequivocally dismissed that argument as simply “beside the point.” Id. The Court explained that “Section 323(a), like the remainder of § 323, 

regulates contributions, not activities.” Id.

Appellants purport to raise an “as-applied” challenge to Section 323, but they offer no plausible way to 

distinguish the factual and legal claims in this case from 

those raised in McConnell. In McConnell, the Court 

made clear that soft-money contributions to national 

political parties foster a risk of actual and apparent cor-
14 

ruption, “regardless of how those funds are ultimately 

used.” Id. at 155. (emphasis added). Appellants’ promise that soft money will be spent only on certain activities is thus “beside the point.” 540 U.S. at 154. It is not 

how soft money is spent that gives rise to the risk of 

actual or apparent corruption; rather, the McConnell 

Court held that 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.” Id. at 154-155. Accordingly, appellants do not raise a genuine “asapplied” challenge to Title I of BCRA. And, even if appellants’ challenge were properly conceived as an “asapplied” challenge, their arguments would still fail: 

They were raised and rejected in McConnell, on a record whose constitutionally significant facts encompass 

those here, and thus should not be reconsidered here. 

B. McConnell Considered And Rejected CRP’s 

And SDRP’s Challenges 

McConnell also squarely forecloses CRP’s and 

SDRP’s “as-applied” challenges. In upholding Section 

323(b), McConnell considered each of the types of activities that CRP and SDRP seek to finance with unlimited soft-money contributions—i.e., public communications that attack or oppose federal candidates, 2 U.S.C. 

§ 431(2)(A)(iii), voter registration, voter identification, 

get-out-the-vote activity, and other generic campaign 

activity in connection with dual state-federal elections, 

2 U.S.C. § 431(2)(A)(i)-(ii). The Court concluded that, 

because large contributions made to support these 

state-party activities “can be used to benefit federal 

candidates directly,” such contributions “pose the 

greatest risk ... of corruption.” 540 U.S. at 167. 
15 

CRP and SDRP do not—and cannot—identify any 

facts distinguishing their proposed activities from the 

activities this Court considered in McConnell. That 

their intended ads attacking federal candidates might 

also support or oppose state ballot initiatives is irrelevant; McConnell sustained the constitutionality of Section 323(b) regardless of whether a communication to 

which it applies is “‘targeted’” at federal elections, (JS 

App. 21a), since “any public communication” by a state 

or local party that “attacks a clearly identified federal 

candidate” implicates the federal anti-corruption interest. 540 U.S. at 170 (emphasis added). Similarly, it is 

irrelevant that CRP and SDRP seek to “target[]” their 

get-out-the-vote drives and other federal campaign activities to non-federal candidates in dual elections—

whatever that might mean in practice. JS 6.4

 McConnell concluded that because these state and local party 

activities inevitably “confer substantial benefits on federal candidates, the funding of such activities creates a 

significant risk of actual and apparent corruption.” 540 

U.S. at 168. 

C. The RNC’s Pledges Not To Grant Preferential 

Access To Soft-Money Donors Do Not Give 

Rise To A Proper As-Applied Challenge 

The RNC’s studiously worded pledges that it will 

not have federal officeholders raise soft money nor will 

it provide preferential treatment to soft-money donors 

“in any manner different than or beyond that currently 

 4

 Notably, in McConnell, too, plaintiffs pointed to the state 

and local parties’ activities in connection with ballot initiatives in 

support of their challenge to Section 323(b). See Political Parties 

Br. 53-55, McConnell, 540 U.S. 93. The Court, of course, upheld 

Section 323(b) in its entirety. 540 U.S. at 161-174. 
16 

afforded to contributors” (JS App. 8a, 14a-15a; JS 15) 

cannot release the RNC from this Court’s holding in 

McConnell. Carried to its logical conclusion, appellants’ attempt to construct an “as-applied” challenge 

based on behavioral pledges would permit all manner of 

circumvention of the law. Under the logic of appellants’ 

position, for example, the operator of an adult theater 

would be able to circumvent any facially valid zoning 

ordinance addressing the danger of criminal activity 

resulting from the operation of adult theaters simply by 

pledging that he will serve only well-meaning customers whose patronage will not increase crime in the area. 

See, e.g., City of Renton v. Playtime Theatres, Inc., 475 

U.S. 41 (1986). Indeed, appellants’ logic would permit 

candidates to escape limits on contributions made directly to them merely by promising not to be corrupted 

by large gifts of money. Surely, that cannot be the law, 

for it would preclude Congress from adopting prophylactic rules—a proposition that is at odds with the holding in Buckley and virtually every contribution limit 

case since then. 

But, in any event, appellants do not envision a 

fundraising environment materially different from the 

one that existed before, and led to, the enactment of 

BCRA. In McConnell, too, the RNC said that “‘access’ 

to federal officeholders is [not] uniquely granted to 

nonfederal donors as a result of their donations to political parties” and that “‘federal officeholders are [not] 

more likely to meet with nonfederal donors than with 

federal donors.’” Political Parties Br. 26-27, McConnell, 540 U.S. 93 (citation omitted). The McConnell 

Court, nonetheless, rejected the relevance of that contention, holding, among other things, that federal officeholders and candidates will inevitably become 

aware of the identities of large soft-money donors, 540 
17 

U.S. at 147, and that, as a result, unregulated contributions pose a unique risk of actual or apparent corruption. Nothing appellants have proposed differs from 

what the Court considered and rejected in McConnell. 

D. This Court Has Recognized The Close Relationship Between National Parties And Their 

Federal Candidates And Officeholders 

Appellants argue that “contributions to political 

parties are not the equivalent of direct candidate contributions.” JS 15. However, even if this statement is 

true, it is not a basis for holding Section 323 unconstitutional, for the Court has long recognized that large contributions to political parties are a means of circumventing limitations on contributions to candidates. In 

Buckley v. Valeo, for example, this Court upheld 

FECA’s $25,000 limit on aggregate yearly contributions to candidates, political committees, and political 

party committees as a “quite modest restraint ... to 

prevent evasion of the $1,000 contribution limitation” 

by, among other things, “huge contributions to the candidate’s political party.” 424 U.S. 1, 38 (1976). 

Moreover, McConnell could not have been clearer 

that national parties and federal candidates and officeholders are “‘inextricably intertwined,’” 540 U.S. at 155, 

have a “close connection and alignment of interests,” 

id., and “enjoy a special relationship and unity of interest,” id. at 145. McConnell concluded that “‘[t]here is 

no meaningful separation between the national party 

committees and the public officials who control them.’” 

Id. at 155 (quoting McConnell v. FEC, 251 F. Supp. 2d 

176, 468-469 (D.D.C. 2003) (Kollar-Kotelly, J.)). And, 

according to McConnell, it was precisely this “close relationship between federal officeholders and the national parties, as well as the means by which parties 
18 

have traded on that relationship, that ... made all large 

soft-money contributions to national parties suspect.” 

Id. at 154-155. 

Pointing to observations in Colorado Republican 

Federal Campaign Committee v. FEC (“Colorado I”), 

518 U.S. 604 (1996), and FEC v. Colorado Republican 

Federal Campaign Committee (“Colorado II”), 533 

U.S. 431 (2001), appellants assert that “there is no 

‘“metaphysical identity” between party and candidate,’” JS 15-16 (quoting Colorado II, 533 U.S. at 447-

448). But those observations are irrelevant to the issue 

of contributions to political parties; rather, they concerned expenditures by political parties—as this Court 

pointed out in McConnell, 540 U.S. at 145 n.45. And 

although the Court in Colorado II recognized that 

“[p]arties ... perform functions more complex than simply electing candidates,” it also noted that “they act as 

agents for spending on behalf of those who seek to produce obligated officeholders.” 533 U.S. at 452; see also 

id. at 450-451. This Court has thus consistently recognized that unlimited contributions to political parties 

present the same danger of corruption and appearance 

of corruption as is created by unlimited contributions to 

candidates—and on that basis has upheld Congress’s 

reasonable regulation of such contributions. Appellants 

present no basis for overruling this settled law. 

II. NOTHING IN CITIZENS UNITED UNDERMINES MCCONNELL’S RATIONALE FOR UPHOLDING SECTION 323 

Citizens United neither implicitly overruled 

McConnell’s holding that Title I of BCRA is constitutional nor undermined the foundation of that holding. 

Rather, Citizens United dealt with the entirely distinct 

question whether Congress may regulate independent

expenditures by corporations. It did not address con-
19 

tribution limits and the very different constitutional 

standards that apply in that context. 

A. Congress May Limit Contributions To Avoid 

The Risks Of Favoritism Toward And Improper Influence By Large Contributors 

Appellants concede (JS 11)—as they must—that 

Section 323 is not subject to strict scrutiny, since it 

regulates contributions and not expenditures.5

 Instead, 

the government need only satisfy the “lesser demand” 

of showing that Section 323 is “‘closely drawn’ to match 

‘a sufficiently important [governmental] interest.’” 

McConnell, 540 U.S. at 136.6 

Appellants, nonetheless, seek to divorce the holding of Citizens United from its context. Citizens 

 5

 In a footnote, appellants contradict their concession by arguing that Section 323 operates as a spending limit in that it restricts 

political parties from “‘spend[ing] any funds that are not subject to 

[BCRA’s] limitations, prohibitions, and reporting requirements.’” 

JS 11 n.2 (quoting 2 U.S.C. § 441i(a)(1)). This argument was 

squarely rejected in McConnell, where the Court made clear that 

Section 323 was not an expenditure limit merely because Congress 

chose “to regulate contributions on the demand rather than the 

supply side.” 540 U.S. at 138. Citizens United did not in any way 

alter this holding. See 130 S. Ct. at 909 (“Citizens United has not 

made direct contributions to candidates, and it has not suggested 

that the Court should reconsider whether contribution limits 

should be subject to rigorous First Amendment scrutiny.”). 

6 See also Randall v. Sorrell, 548 U.S. 230 (2006) (plurality 

opinion of Breyer, J., joined by Roberts, C.J. and Alito, J.) (applying “closely drawn” scrutiny to contribution limits); FEC v. Beaumont, 539 U.S. 146 (2003) (same); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (same); California Med. Ass’n 

v. FEC, 453 U.S. 182 (1981) (plurality opinion) (same); Buckley, 

424 U.S. 1 (same); see also Colorado II, 533 U.S. 431 (same with 

respect to coordinated expenditures).
20 

United did not hold, as appellants suggest, that the 

government must always be oblivious to the risks of 

generating favoritism, undue influence, gratitude, and 

preferential access—regardless of the context in which 

the regulation arises. To the contrary, Citizens United 

dealt only with the unique demands of strict scrutiny 

and the regulation of independent expenditures. Nothing in the Court’s decision addresses what types of governmental interests are sufficient to meet the “less rigorous” requirements of “closely drawn” scrutiny, 

McConnell, 540 U.S. at 136 n.39, much less undermines 

the Court’s holding in McConnell that Title I of BCRA 

meets that standard. 

Nor was McConnell’s holding in this respect at all 

novel. Indeed, in Buckley, the Court held that contribution limits are justified not only by apparent or “actual quid pro quo arrangements,” but also by “the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime 

of large individual financial contributions.” 424 U.S. at 

27. Similarly, in Shrink Missouri, 528 U.S. at 389—

again, in the context of addressing contribution limits—

the Court relied on the corrupting “threat” of “improper influence” and “politicians too compliant with 

the wishes of large contributors” as the basis for upholding contribution limits such as those challenged today. See also Colorado II, 533 U.S. at 440-441 (noting 

that corruption extends beyond explicit cash-for-votes 

agreements to “undue influence on an officeholder’s 

judgment”). Citizens United did not disturb this 

Court’s long history of recognizing government interests beyond the prevention of actual or apparent quid 

pro quo corruption as a sufficient justification for contribution limits under closely drawn scrutiny. 
21 

B. BCRA’s Soft-Money Restrictions Permissibly 

Curb The Risk Of Actual Or Apparent Quid 

Pro Quo Corruption 

Even if Citizens United did somehow narrow the 

anti-corruption interest that can support limits on contributions—an issue that was not before the Court—

the Court’s holding in McConnell remains both sound 

and binding. The record in that case contained abundant evidence of actual or apparent quid pro quo arrangements resulting from soft-money donations to political parties. “The evidence,” for example, “connect[ed] soft money to manipulations of the legislative 

calendar, leading to Congress’ failure to enact, among 

other things, generic drug legislation, tort reform, and 

tobacco legislation.” McConnell, 540 U.S. at 150 (record citations omitted). The Court, moreover, specifically rejected the contention, repeated by appellants 

here (JS 18), that vote selling is necessary for quid pro 

quo corruption, and explained that “[t]o claim that such 

[non-voting] actions d[id] not change legislative outcomes ... misunderst[ood] the legislative process.” Id. 

Accordingly, the Court held that “there exists real or 

apparent corruption” notwithstanding the lack of “concrete evidence of an instance in which a federal officeholder ha[d] actually switched a vote.” Id. at 149. 

Moreover, to the extent Citizens United mentioned 

contribution limits at all, it embraced Buckley’s conclusion that contribution limits can be sustained even on a 

record that does not include specific instances of actual 

quid pro quo corruption. As the Court explained, “restrictions on direct contributions are preventative, because few if any contributions to candidates will involve 

quid pro quo arrangements.” Citizens United, 130 S. 

Ct. at 908. The Court noted that “[t]he Buckley Court, 

nevertheless, sustained limits on direct contributions in 
22 

order to ensure against the reality or appearance of 

corruption.” Id.

Indeed, in defining the government’s interest in 

preventing quid pro quo arrangements, Buckley

pointed to instances in which donors had obtained access to President Nixon by pledging large donations 

and where the President later took action favorable to 

the donors. Buckley, 424 U.S. at 27 n.28; Buckley v. 

Valeo, 519 F.2d 821, 839 n.36 (D.C. Cir. 1975) (en banc). 

Notably, “[i]t [wa]s not material” to determine 

“whether the President’s [subsequent administrative] 

decision was in fact, or was represented to be, conditioned upon or ‘linked’ to the reaffirmation of the 

pledge.” 519 F.2d at 839 n.36. Whether or not an actual quid pro quo exchange had occurred, the selling of 

access, combined with a subsequent favorable government action, was sufficient to create an appearance of 

quid pro quo corruption. McConnell, likewise, concluded that “[i]t was not unwarranted for Congress to 

conclude that the selling of access gives rise to the appearance of corruption.” 540 U.S. at 154. Citizens 

United does not undercut that holding. 

C. BCRA Does Not Unfairly Disadvantage Political Parties 

Appellants argue that the loosening of restrictions 

on corporate expenditures in Citizens United puts the 

political parties at an unfair disadvantage because corporations may now spend unlimited general treasury 

money on political activities while political parties may 

not raise soft money for “nonfederal activities.” JS 20, 

22. This argument both misconceives the reasons underlying the soft-money restrictions and ignores the 

enormous resources the political parties have at their 

disposal. 
23 

First, as McConnell made clear and Citizens 

United affirmed, Section 323 “regulates contributions, 

not activities.” McConnell, 540 U.S. at 154; Citizens 

United, 130 S. Ct. at 910-911 (“The BCRA record establishes that certain donations to political parties, called 

‘soft money,’ were made to gain access to elected officials. This case, however, is about independent expenditures, not soft money.” (citations omitted)). It restricts the source and amount of donations political parties can accept, but leaves them as free as corporations 

to spend money, without restriction, on electoral advocacy, grassroots advocacy, and other political activities. 

Indeed, the distinction in treatment to which appellants object “has existed to some extent since Buckley,” 

EMILY’s List v. FEC, 581 F.3d 1, 22 (D.C. Cir. 2009), 

which upheld the $25,000 limit on aggregate yearly contributions to candidates, political committees, and parties, Buckley, 424 U.S. at 38. Most notably, after 

BCRA was enacted, various groups other than political 

parties “remain[ed] free to raise soft money to fund” 

the type of activities that appellants complain that they 

cannot fund with soft money, and, in McConnell, the 

RNC argued that Title I of BCRA violated equal protection “because it discriminates against political parties in favor of special interest groups.” 540 U.S. at 

187-188; see Political Parties Br. 2, 91-99, McConnell, 

540 U.S. 93. This Court, however, rejected that challenge, stressing that “BCRA actually favors political 

parties in many ways,” and concluded that Congress 

was “fully entitled to consider the real-world differences between political parties and interest groups.” 

540 U.S. at 188. As the Court wrote, “[i]nterest groups 

do not select slates of candidates for elections” and “do 

not determine who will serve on legislative committees, 
24 

elect congressional leadership, or organize legislative 

caucuses.” Id. 

Second, appellants’ argument that political parties 

are now hobbled in the political marketplace beggars 

plausibility. In the 2007-2008 election cycle, the Republican national party committees received hard-money 

contributions of $640,308,267, and the Democratic national party committees received hard-money contributions of $599,107,722.7

 Funds in excess of a total of a 

billion dollars are certainly sufficient to raise the voices 

of the national parties above “the level of notice.” 

McConnell, 540 U.S. at 173 (internal quotation marks 

and citation omitted). Given these numbers, it is farfetched, to say the least, to suggest that the political 

parties will find it difficult to compete with corporations, unions, or nonprofit advocacy groups. 

CONCLUSION 

The judgment of the district court should be affirmed. 

 7 See Center for Responsive Politics, Political Parties Overview, available at http://www.opensecrets.org/parties/index.php? 

cmte=&cycle=2008 (last visited May 21, 2010) (sum of contributions to the three national committees of each party).
25 

Respectfully submitted. 

ROGER M. WITTEN

LAUREN E. BAER

WILMER CUTLER PICKERING

 HALE AND DORR LLP

399 Park Ave. 

New York, NY 10022 

(212) 230-8800 

ALAN B. MORRISON

GEORGE WASHINGTON

 LAW SCHOOL

2000 H Street, NW 

Washington, DC 20052 

(202) 994-7120 

DONALD J. SIMON

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON & 

 PERRY, LLP 

1425 K Street, NW 

Suite 600 

Washington, DC 20005 

(202) 682-0240 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

PAUL R.Q. WOLFSON

FRANCESCO VALENTINI

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., NW 

Washington, DC 20006 

(202) 663-6000 

seth.waxman@wilmerhale.com 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, NW 

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FRED WERTHEIMER

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MAY 2010