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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Anh “Joseph” Cao CIVIL ACTION

Republican National Committee, and

Republican Party of Lousiana

VERSUS NO. 08-4887

Federal Election Commission SECTION: “C” (2)

ORDER AND REASONS

This action under 2 U.S.C. § 437h challenges the constitutionality of provisions of the

Federal Election Campaign Act (“FECA” or “the Act”) of 1971, 2 U.S.C. § 431 et seq, as

amended by the Bipartisan Campaign Reform Act (“BCRA”) of 2002. Section 437h of the Act

assigns to the en banc court of appeals the role of decision maker on constitutional challenges. 

The district court’s task is to determine whether the constitutional challenge is “frivolous.” If

the issues are not frivolous, the district court is to make findings of fact and certify the issues to

be resolved to the appellate court. Khachaturian v. Federal Election Commission, 980 F.2d.

330, 332 (5th Cir. 1992).

Plaintiffs Anh “Joseph” Cao (“Cao”), the Republican National Committee (“RNC”), and

the Louisiana GOP (“LA-GOP”) (hereinafter referred to collectively as “the Cao plaintiffs”)

bring the instant eight challenges to several provisions of the Act, contending, inter alia that the

Supreme Court has left unresolved questions regarding the constitutionality of contribution and

expenditures limits on political parties. (Rec. Doc. 19).

2 U.S.C. § 437h provides:

The Commission, the national committee of any political party, or any individual

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eligible to vote in any election for the office of President may institute such actions

in the appropriate district court of the United States, including actions for

declaratory judgment, as may be appropriate to construe the constitutionality of

any provision of this Act. The district court immediately shall certify all questions

of constitutionality of this Act to the United States court of appeals for the circuit

involved, which shall hear the matter sitting en banc.

The Fifth Circuit has expressly spoken on this particular statute and has required specific

findings by the district court prior to certification. In Khachaturian v. Federal Election

Commission, the Fifth Circuit remanded a case with certified questions because the district court

had failed to develop an adequate factual record. 980 F.2d. 330 (5th Cir. 1992). The Fifth

Circuit requires that the district court first determine whether or not the claim is frivolous, and

recommends an evidentiary hearing to conduct the inquiry. Second, a district court should a)

identify the constitutional issues in the complaint; b) take necessary evidence; c) make findings

of fact; d) certify constitutional questions arising from the above. Id. at 332 (quoting 

Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir.1975)). 

I. Standard of Review

The most thorough discussion of a district court’s obligation to assess the contours of the

plaintiff’s claim before certifying under this statute was set forth by the Ninth Circuit in Goland

v. United States, 903 F.2d 1247, 1257-58 (9th Cir. 1990). There, a district court refused to

certify questions to the Ninth Circuit on the grounds that the constitutional challenges were

frivolous, and the circuit court affirmed. Id. The court approved a “frivolousness” standard

“similar to that of a single judge presented with a motion to convene a three judge court to hear

constitutional challenges.” Id. 

Under that standard, a single judge could dismiss constitutional claims which already had

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been decided. We believe this is a more appropriate standard. Such a standard may more

closely resemble that applied under Rule 12(b)(6) to the failure to state a claim than it

does to the frivolousness standard under § 1915(d). . . . Nothing in Rule 12(b)(6) confines

its sweep to claims of law which are obviously insupportable. On the contrary, if as a

matter of law it is clear that no relief could be granted under any set of facts that could be

proved consistent with the allegations, a claim must be dismissed, without regard to

whether it is based on an outlandish legal theory or a close but ultimately unavailing one.

Id. at 1258 (citations omitted). The court also noted that “once a statute has been thoroughly

reviewed by the [Supreme] Court, questions arising under ‘blessed’ provisions understandably

should meet a higher threshold.” Id. at 257. 

The Cao plaintiffs argue repeatedly that the FEC has inappropriately argued the merits. 

(Rec. Doc. 76 at 6). Because the Court adopts a standard of review akin to that used in deciding

a Rule 12(b)(6) motion, some “merits” review is appropriate; the Court could not effectively

assess the “frivolousness” of the claims in the motion to certify without undertaking a thorough

review of the controlling law. 

What is less certain is the proper role of the Court with respect to reviewing the facts. 

The Khachaturian court remanded because the district court failed to determine whether the

plaintiff in that as applied challenge had “demonstrate[d] that the $1,000 limit [on campaign

contributions] had a serious adverse effect on the initiation and scope of his candidacy.” 980

F.2d at 331. The Fifth Circuit then laid out the steps the court should have taken, which have

already been cited above. Id. In conclusion, the court advised that 

[T]he district court should first determine whether Khachaturian's claim is frivolous in

light of Buckley. The district court may find it desirable to conduct an evidentiary

hearing to assist it in this inquiry. Should the court find that the case is not frivolous, it

should proceed to follow the four-step course of action outlined above. If no colorable

constitutional claims are presented on the facts as found by the district court, it should

dismiss the complaint. If it concludes that colorable constitutional issues are raised from

the facts, it should certify those questions to us.

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 As will be made clear below, the Court’s review of the facts only comes to bear on a

limited number of the plaintiffs’ challenges. To the extent the Court finds the plaintiffs’

challenges foreclosed as a matter of law, it is adopting the Goland standard of review, without

modification. 

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Khachaturian, 980 F.2d at 331 (emphasis added). This quote strongly supports a conclusion that

a district court can engage in some amount of factual review. Further, the “four step course of

action” indicates that this Court should only certify constitutional questions that arise from a

combination of the constitutional issues in the complaint and the Court’s findings of fact. Id.

There is little guidance beyond this in the caselaw to determine the appropriate standard of

review to apply to those facts. Nonetheless, despite the Goland court’s conclusion that the

proper standard is the 12(b)(6) standard, where “no relief could be granted under any set of

facts,” 903 F.2d at 1257, such a standard makes little sense in an as applied challenge, where

some review of the facts is inherently necessary to determine if a colorable claim has been

raised. The Court will therefore proceed using a deferential standard, akin to the 12(b)(6)

standard, but per the instructions in Khachaturian will only certify those questions that arise out

of the Court’s review of both the facts and the law.1

 In this case, both parties have submitted

extensive findings of fact, and declined the opportunity to have an evidentiary hearing,

preferring to proceed with the record before the Court and the briefs. 

Further, the FEC has filed a motion for summary judgment. (Rec. Doc. 69). In a motion

for summary judgment, the Court goes beyond the pleadings to determine whether there is any

genuine issue as to any material fact such that the movant is entitled to judgment as a matter of

law. See Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir. 2002). 

Because the Court is adopting a “frivolousness” standard that is somewhere between a

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motion to dismiss – where no factual review is appropriate – and a motion for summary

judgment – where the Court must review for genuine issues of material fact – it follows that any

question that the Court finds “frivolous” is also appropriate for summary judgment.

Finally, the Khachaturian court’s instructions suggested that the “frivolousness”

determination was the first step of the district court’s review process, followed by a second step,

involving the four step process from Buckley. 980 F.2d 330. Both steps, however, involve a

review of the evidence, followed by a determination of whether colorable constitutional claims

have been presented. Id. The Court has taken evidence, and its findings of facts are set forth

below. However, rather than engage in the analysis of those facts twice, after identifying the

constitutional issues, the Court will first set forth its findings, and then certify any colorable

constitutional questions that arise out of the facts and complaint as non-frivolous. 

II. Questions Presented for Certification to the En Banc Panel of the Fifth Circuit

The Cao plaintiffs ask the Court to certify eight questions: 

1. Has each of the plaintiffs alleged sufficient injury to constitutional rights enumerated

in the following questions to create a constitutional “case or controversy” within the

judicial power of Article III?

2. Do the Party Expenditure Provision limits at 2 U.S.C. § 441a(d)(2)-(3) violate the

First and Fifth Amendment rights of one or more plaintiffs in that they are excessively

vague, overbroad, and beyond the authority of Congress to regulate elections as applied

to coordinated expenditures other than (a) communications containing express advocacy,

(b) targeted federal election activity, (c) disbursements equivalent to paying a candidate’s

bills, and (d) distributing a candidate’s campaign literature?

3. Do the expenditure limits at 2 U.S.C. § 441a(d)(2)-(3) violate the First Amendment

rights of one or more plaintiffs as applied to coordinated expenditures for (a)

communications containing express advocacy and (b) targeted federal election activity?

4. Do the limits on coordinated expenditures 2 U.S.C. § 441a(d)(3) violate the First

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Amendment rights of one or more plaintiffs?

(a) Do all but the highest limits violate such rights because any lower rates are

unsupported by the necessary anti-corruption interest?

(b) Is 2 U.S.C. § 441a(d)(3) facially unconstitutional because lower rates cannot

be severed from higher rates and the voting-age-population formula is substantially

overbroad and inherently unconstitutional?

(c) Is the highest limit for expenditures coordinated with Representatives

unconstitutionally low?

5. Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) and the Coordinated

Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i) (treating coordinated expenditures

as in-kind “contributions”) violate the First and Fifth Amendment rights of one of more

plaintiffs in that they are excessively vague, overbroad, and beyond the authority of

Congress to regulate elections as applied to coordinated expenditures other than (a)

communications containing express advocacy, (b) targeted federal election activity, (c)

disbursements equivalent to paying a candidate’s bills, and (d) distributing a candidate’s

campaign literature?

6. Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) and Coordinated

Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i) (treating coordinated expenditures

as “contributions”) violate the First Amendment rights of one or more plaintiffs as

applied to coordinated expenditures for (a) communications containing express advocacy

and (b) targeted federal election activity?

7. Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) violate the First

Amendment rights of one or more plaintiffs as applied to a political party’s in-kind and

direct contributions because it imposed the same limits on parties as on political action

committees (“PACs”)?

8. Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) facially violate the

First Amendment rights of one or more plaintiffs?

(Rec. Doc. 19). 

III. FACTUAL FINDINGS

RULINGS ON EVIDENTIARY OBJECTIONS

As a preliminary matter, the Court notes its limited role as factfinder in this matter for

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 This objection was raised as to FEC proposed findings 9-14, and 98. 

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any questions that are not “frivolous.” The Court has opted to adopt the reasoned approach

followed by Judge Vanaskie in Mariani v. United States, 80 F.Supp.2d 352, 362 (M.D.Pa. 1999),

and will provide the circuit court extensive findings, describing in detail the relationship between

political parties, candidates, and donors under the current regulatory system. The Court further

notes that in the absence of a jury, it is inclined to be overinclusive rather than underinclusive

when presented with close evidentiary disputes, preferring to convey as detailed a record as

possible to the reviewing court. See CHARLES WRIGHT AND ARTHUR MILLER, 9A FED. PRAC. &

PROC. CIV. § 2411 (3d ed.) (“in a nonjury case the court should be slow to exclude evidence

challenged under one of the exclusionary rules”).

In their responses to each other’s proposed findings of facts, each side raised numerous

objections the other side’s claims. However, the FEC’s responses centered on the proper

interpretation of the evidence, not on its admissibility. The Cao plaintiffs raised numerous

substantive arguments about the facts, and also raised repeated evidentiary objections, which are

addressed below. The Court’s resolution of disputes about the proper interpretation of the facts

will be evident in its findings. Some proposed findings were legal conclusions or otherwise

insufficiently supported by the record, and have been omitted.

A. Relevance, Materiality, and Vagueness

The Cao plaintiffs assert that many of the FEC’s proposed findings are irrelevant to the

instant litigation because they: (1) address campaign contributions, whereas the parties here

contest the constitutionality of limits on expenditures;2

 (2) provide historical narrative and not

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 This objection was raised as to FEC proposed findings 21-25.

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 This objection was raised as to FEC proposed findings 8, 9, 11-14, 34, 35, 38-44, 48,

49, 72-77, 90, 92, 107, and 141.

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 This objection was raised as to FEC proposed findings 15-20, 72-78, 89, 93, 100, 112,

145.

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 This objection was raised as to FEC proposed findings 31-44, 89, and 149.

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 This objection was raised as to FEC proposed findings 5, 6, 26-31, 66, 68, 69, 78, 79,

81, 92, 99, 100, 103, 117, 119, 126, 130, 131, 138, 141, 145, and 150-52. (Rec. Doc. 76-2).

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factual evidence;3

 (3) relate to entities not a party to the case;4 or (4) do not directly address the

claims at issue.5

 They also argue that some of the FEC’s quantitative characterizations are

misleading without the proper economic context.6

The Court has taken all of the above objections into consideration in reaching its

Findings of Fact. To the extent proposed facts that are tangential to the instant litigation

nonetheless provide useful context for overall campaign finance regulation scheme, the above

objections have been overruled. However, to the extent those proposed facts obscure the most

relevant issues being put before the appellate court, those objections have been sustained. 

B. Professor Krasno’s Testimony

Jonathan Krasno is an Associate Professor at Binghamton University who has authored

an expert report in this litigation. (Jonathan Krasno, Political Party Committees and Coordinated

Expenditures in Cao v. FEC (Krasno Rept.), FEC Exh. 1). Professor Krasno has published

numerous works in the field of political science, many of which involve the role of campaign

finance regulation and political parties in United States politics.

The Cao plaintiffs object to Professor Krasno’s expert testimony “in so far as he is

testifying as to facts and not expressing an opinion as to facts already properly in the record.”7

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 The Cao plaintiffs opted not to depose Krasno or submit an expert report of their own.

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(Rec. Doc. 76-2 at 2). Some of the proposed findings based on Professor Krasno’s testimony are

assertions about historical trends and political motivations, and lack additional supporting

evidence in the record. See, e.g., FEC Proposed Finding 28 (“The goal of the RNC [in its

inception] was ‘survival’ and to ‘provide[] a vehicle for continuity”). Experts are, however,

permitted to testify as to their opinions regarding facts not in the record. FRE 703 (“The facts or

data in the particular case upon which an expert bases an opinion or inference may be those

perceived by or made known to the expert at or before the hearing.”). The Court will treat these

statements as Krasno’s opinion, and weigh them accordingly.8

 Some of Krasno’s statements,

however, are clearly facts. The Court considers many of these to be legislative facts, of which it

can take judicial notice. See 12 Fed. Proc., L. Ed. § 33:59 (“It has been said generally that

‘adjudicative facts’ relate specifically to the activities or characteristics of the litigants, as

opposed to ‘legislative facts,’ which are those a court relies upon when it purports to develop a

particular law or policy and thus considers material wholly unrelated to the activities of the

parties.”) Further, the Cao plaintiffs do not object to the content of many of these facts,

criticizing only their means of introduction. To the extent Cao’s objections raise doubts as to the

accuracy of such statements, the Court has not adopted those statements as its findings without

additional supporting evidence in the record.

C. The Biersack, Meehan, and Rozen Declarations

The Cao plaintiffs argue that the FEC improperly attached these declarations as exhibits

to their supplemental briefing on August 31, 2009, even though the discovery cut-off was July

30, 2009. (Rec. Doc. 78-2 at 1). They assert that they are prejudiced by the late filings because

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 Although the Cao plaintiffs characterize Biersack’s declaration as charts plus

“commentary,” (Rec. Doc. 85 at 4) the words accompanying the data are purely descriptive, and

provide no discernable “slant.” (Rec. Doc. 66-5). 

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they were not afforded an opportunity to depose the declarants or respond to their claims. (Rec.

Doc. 78-2 at 2). They also argue that the facts presented by the declarants are adjudicative facts,

not legislative facts, and therefore the FEC cannot avoid the above mentioned discovery

deadline. (Rec. Doc. 85 at 1-2).

The FEC argues that the declarations are not “discovery” as defined by the Federal Rules

of Civil Procedure, and are therefore not subject to the discovery deadlines, and dispute the Cao

plaintiffs’ characterization of the declaration as containing adjudicative facts. (Rec. Doc. 82 at 2,

4). They also point out that the Cao plaintiffs propounded no discovery requests, so the FEC

cannot be said to have withheld requested information. (Rec. Doc. 82).

Legislative facts are typically characterized as “general facts” that “apply universally”

and “do not relate specifically to the activities or characteristics of the litigants.” See 12 Fed.

Proc., L. Ed. § 33:59. At issue are a statement by former congressman Martin Meehan (Rec.

Doc. 66-4); a statement by Robert Biersack, Special Assistant to the Staff Director for Data

Integration at the FEC in which he compiles and describes9

 publicly available data on campaign

expenditures and contributions (Rec. Doc. 66-5); and a statement by lobbyist and fundraiser

Robert Rozen (Rec. Doc. 66-34). The Court acknowledges that information in these declarations

occupies a gray area in between legislative and adjudicative facts: the statements purport to

represent activities of candidates and political parties in general, and not those of the litigants in

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stronger argument that the Meehan declaration, at least, which describes the activity of political

parties and candidates, clearly “relates to” the activities of the litigants. However, as most of the

questions presented are as applied challenges and neither Meehan nor the Democratic National

Committee are parties, the declaration’s designation is more ambiguous.

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the instant case.10 See id. However, they are certainly disputable and might not “apply

universally.” Id. 

At oral argument on the motion to strike these declarations, the Court indicated its

inclination to convey as complete a record as possible to the circuit court, but gave the Cao

plaintiffs the opportunity to depose the objected to declarants or submit counter-declarations. 

They declined this offer, resting on their objection that the statements in the reports were

adjudicative rather than legislative facts and improperly before the Court. The Court therefore

holds that admitting these declarations to the record will cause no undue prejudice to the Cao

plaintiffs. The Court DENIES the Cao plaintiffs’ motion to strike these exhibits.

FINDINGS OF FACT

A. Background

The Litigation

1. The Cao plaintiffs filed their complaint on November 13, 2008, challenging several

provisions of the FECA/BCRA in what the complaint dubbed a successor case to Colorado

Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996)

(Colorado I) and FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431

(2001) (“Colorado II”). (Rec. Doc. 1 at 1). They filed a Motion for Certificate of Appealability

on December 23, 2008 (Rec. Doc. 19). After oral argument on the motion, the Court ordered an

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evidentiary hearing to comply with the Fifth Circuit’s requirement in Khachaturian. (Rec. Doc.

42). 

2. After the close of discovery, the parties jointly moved to convert the scheduled evidentiary

hearing to a second argument on the merits of the Motion for Certificate of Appealability and the

FEC’s cross motion for summary judgment. (Rec. Docs. 69, 72). That argument was heard on

November 9, 2009, and taken under submission.

The Parties

3. Anh “Joseph” Cao is the United States Representative for the Second Congressional District

of Louisiana. (Deposition of Anh “Joseph” Cao (Cao Dep.) at 8, FEC Exh. 4). Cao, a

Republican, defeated incumbent Democrat William Jefferson in a general election on December

6, 2008. (Second Amended Verified Complaint for Declaratory and Injunctive Relief (“AVC”) ¶

10 (Rec. Doc. 35)). The election was held in December because primaries had been postponed

due to damage from Hurricane Gustav. (Official 2008 Election Results at 113 n.*,

http://www.fec.gov/pubrec/fe2008/2008congresults.pdf). (Rec. Doc. 88, Joint Stipulation (“J.

Stip.”) of the parties at 1-2). 

4. This litigation began prior to Cao’s election. In his Complaint, Cao indicated that he wanted

to participate with RNC and LA-GOP to the maximum extent constitutionally permissible in the

activities outlined in the Complaint. (AVC ¶ 10; Deposition of Anh “Joseph” Cao (Cao Dep.) at

13-15, Defendant Federal Election Commission’s Proposed Findings of Fact and Statement of

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Material Facts as to Which There is No Genuine Dispute (FEC Facts) Exh. 4 (Rec. Doc. 66)). (J.

Stip. at 1-2). 

5. Cao is “eligible to vote in any election for the office of President,” 2 U.S.C. § 437h. (AVC ¶

10). (J. Stip. at 1). He therefore has standing to bring the instant motion to certify under the

requirements of 2 U.S.C. § 437h. (“The Commission, the national committee of any political

party, or any individual eligible to vote in any election for the office of President may institute

such actions in the appropriate district court of the United States, including actions for

declaratory judgment, as may be appropriate to construe the constitutionality of any provision of

this Act.”).

6. RNC is the national political party committee of the Republican Party. Its headquarters are in

Washington, District of Columbia. (AVC ¶ 11). It is an unincorporated association made up of

168 members representing all of the states and territories of the United States. (Federal Rule of

Civil Procedure 30(b)(6) Deposition of Republican National Committee witness Thomas J.

Josefiak (Josefiak Dep.) at 12, FEC Facts Exh. 5). (J. Stip. at 2).

7. As a national party, RNC has historically participated, and participates today, in electoral and

political activities at the federal, state, and local levels. (AVC ¶ 35). (J. Stip. at 2). RNC

supports both federal, state, and local candidates. RNC also seeks to advance its core

principles–a smaller federal government, lower taxes at all levels of government, individual

freedom, and strong national defense – by promoting an issue agenda advocating Republican

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positions, electing Republican candidates, and encouraging governance in accord with these

Republican views. (AVC ¶ 35).

8. RNC’s core principles are more fully set out in its party platform, the 2008 Republican

Platform, available at http://www.gop.com/2008Platform/. (AVC ¶ 36). (J. Stip. at 3).

9. LA-GOP is the State committee of the Republican Party for Louisiana. LA-GOP maintains

offices in, among other places, New Orleans and Metairie, Louisiana, which offices are staffed

by paid employees. (AVC ¶ 12). LA-GOP is governed by the executive committee, consisting

of individuals serving on a voluntary basis. (Fed. R. Civ. P. 30(b)(6) Deposition of Republican

Party of Louisiana witness Charles Lee Buckels (Buckels Dep.) at 13-14, FEC Facts Exh. 6). (J.

Stip. at 3).

10. As a state party, LA-GOP has historically participated, and participates today, in electoral

political activities at the state and local levels. (AVC ¶ 38). (J. Stip. at 3). LA-GOP supports

both federal and state candidates. LA-GOP also seeks to advance its core principles–a smaller

federal government, lower taxes at all levels of government, individual freedom, and strong

national defense–by electing Republican candidates, and encouraging governance in accord with

there Republican views. (AVC ¶ 38). The purpose of the LA-GOP is to promote the Republican

message throughout the state and elect Republican candidates. (Buckels Dep. 18:1-19:1).

11. The defendant Federal Election Commission (“Commission” or “FEC”) is the independent

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agency of the United States with exclusive jurisdiction over the administration, interpretation,

and civil enforcement of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§

431-55, and other statutes. The Commission is empowered to “formulate policy” with respect to

the Act, 2 U.S.C. § 437c(b)(I); “to make, amend, and repeal such rules ... as are necessary to

carry out the provisions of [the] Act”, 2 U.S.C. §§ 437d(a)(8), 438(a)(8), 438(d); and to issue

written advisory opinions concerning the application of the Act and Commission regulations to

any specific proposed transaction or activity, 2 U.S.C. §§ 437d(a)(7), 437f. The Commission has

exclusive jurisdiction with respect to civil enforcement of the Act. 2 U.S.C. § 437c(b)(I). (J.

Stip. at 4). The Commission’s sole office is located in Washington, DC. (AVC ¶ 13). 

B. The Treatment of Political Parties under the BCRA/FECA

12. The national party committees for the Republican Party are the RNC, the National

Republican Congressional Committee (NRCC), and the National Republican Senatorial

Committee (NRSC). (Declaration of Robert W. Biersack (Biersack Decl.) at ¶ 2, FEC Exh. 3).

The national party committees for the Democratic Party are the Democratic National Committee

(DNC), the Democratic Congressional Campaign Committee (DCCC), and the Democratic

Senatorial Campaign Committee (DSCC). (Id.)

13. Jonathan Krasno is an Associate Professor at Binghamton University who has authored an

expert report in this litigation. (Jonathan Krasno, Political Party Committees and Coordinated

Expenditures in Cao v. FEC (Krasno Rept.), FEC Exh. 1). Professor Krasno has published

numerous works in the field of political science, many of which involve the role of campaign

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finance regulation and political parties in United States politics. (Id. at Curriculum Vitae 1-4).

Professor Krasno also co-wrote an expert report that was explicitly relied upon by the Supreme

Court in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 470 (2001)

(Colorado II) (citing Frank J. Sorauf & Jonathan S. Krasno, Political Parties and Coordinated

Spending (Sorauf & Krasno Colorado II Rept.), FEC Exh. 33).

14. According to Professor Krasno, political parties “have been strongly advantaged

by the system of financing campaigns.” (Krasno Rept. at 1, FEC Exh. 1).

15. Political parties are able to raise more money, from more sources, than other entities

regulated by the Act, including candidates and other political committees, such as separate

segregated funds of corporations and labor organizations, commonly known as political action

committees (PACs). (2 U.S.C. § 441a(a)).

16. Political parties also receive special non-monetary benefits in connection with federal

elections. Unlike interest groups, parties have their names next to those of their candidates on

ballots in most states. Major-party nominees are automatically included on the general election

ballot, and the names or symbols of their parties are printed near their names. States also often

run parties’ primary elections. (Expert Report of Jonathan S. Krasno and Frank J. Sorauf in

McConnell v. FEC, Evaluating the Bipartisan Campaign Reform Act (BCRA) (Krasno and

Sorauf McConnell Report) at 25 [DEV 1-Tab 2], FEC Exh. 39; Rebuttal Expert Report of

Donald P. Green in McConnell v. FEC, The Impact of BCRA on Political Parties: A Reply to

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LaRaja, Lott, Keller, and Milkis (D. Green McConnell Rebuttal Report) at 7-9 [DEV 5- Tab 1],

FEC Exh. 41; Responses and Objections of the Republican National Committee to Defendant

Federal Election Commission’s First Requests for Admissions in McConnell v. FEC (Resps.

RNC to FEC’s First McConnell RFA’s), Nos. 2, 4, 6 [DEV 12-Tab 10], FEC Exh. 42; Plaintiff

Republican National Committee's Responses and Objections to Defendant Federal Election

Commission’s Second Set of Discovery Requests in RNC v. FEC, 98-cv-1207 (D.D.C.) (RNC

Resps. to FEC RFA’s in RNC), Nos. 26, 34, 35 [DEV 68-Tab 35], FEC Exh. 59). “DEV” and

“Tab” citations refer to Defendants’ Exhibit Volumes from McConnell v. FEC, Civ. No 02-582

(D.D.C.). These documents, which include evidence from the McConnell case and other cases,

are part of the record in this litigation pursuant to a Stipulation and Protective Order entered into

by the parties and approved by the Magistrate Judge. (Rec. Doc. 49).

17. Unlike political parties, “[o]ther entities are not entitled to organize the slate of candidates

presented to voters. Other entities do not organize legislative caucuses, assign committee chairs

and members, or elect legislative leadership. . . . Even the largest political action committees

cannot begin to approach the political scope, influence, or depth of electoral support

characteristic of the Republican or Democratic Parties.” (Expert Report of Donald P. Green in

McConnell v. FEC, Report on the Bipartisan Campaign Reform Act (D. Green McConnell

Report) at 8 [DEV 1-Tab 3], FEC Exh. 40). 

C. Relevant Provisions of the BRCA/FECA and their Effects on Parties

Contributions to Candidates

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18. Under the Act, individuals, political parties, and other political committees are all limited in

the amounts that they can contribute to one candidate in a given election cycle. 2 U.S.C. §

441a(a)(1). (J. Stip. at 5).

19. Under the current limits, a federal candidate is limited to $2,400 in contributions from each

individual per election ($2,400 in a primary election and an additional $2,400 in the general

election). 2 U.S.C. § 441a(a)(1)(A); Price Index Increases for Contribution and Expenditure

Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). 

(J. Stip. at 5).

20. National, state, local and district parties are considered multicandidate political committees

under the Act, and therefore each is limited to $10,000 in contributions to one candidate in a

given election cycle ($5,000 in the primary and $5,000 in the general election). 2 U.S.C. §§

441a(a)(2)(A); 2 U.S.C. §§ 431(4), 431(16), 441a(a)(4). National parties and their Senatorial

campaign committees may together contribute up to $42,600 to each Senate candidate in the

2010 election cycle. 2 U.S.C. § 441a(h); 11 C.F.R. §§ 110.2(e)(1), 110.3(b)(2); Price Index

Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure

Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 5).

21. Candidates can receive contributions from each of the major parties’ three national

committees, as well as state and local committees (including state committees outside the state in

which the candidate is running). For example, in the 2008 election cycle, one U.S. Senate

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candidate received $51,563 in party contributions, and one U.S. House candidate received

$98,051, due to the variety of national, state, and local party committees permitted to contribute

$5,000 under 2 U.S.C. § 441a(a)(2)(A). In 2008, other Senate candidates reported receiving

party contributions of $46,897, $46,802, and $42,900. Other 2008 U.S. House candidates

reported receiving $57,250, $38,979, and $24,640 in party contributions. (Biersack Decl. ¶ 17,

Tables 24-25, FEC Exh. 3).

22. The Act’s contribution limits apply both to direct contributions of money and in-kind

contributions of goods or services. 2 U.S.C. § 431(8)(A). Expenditures made in coordination

with a candidate or her campaign are considered in-kind contributions to the candidate. 2 U.S.C.

§ 441a(a)(7)(B). 

Contributions to Parties

23. Under the Act, the committees established by each national party can together receive up to

$30,400 per year from each individual donor in federal contributions (money raised in accord

with the restrictions of the Act, also known as “hard money”). In each state, the state, district

and local committees of a party can receive up to a combined $10,000 per year from each

individual donor. By contrast, other political committees can receive only $5,000 per year from

an individual donor in hard money. 2 U.S.C. § 441a(a)(1); Price Index Increases for

Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed.

Reg. 7435-37 (Feb. 17, 2009). 

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24. Under the Act, the committees established by each national party can together receive up to

$15,000 per year from other multicandidate political committees. Multicandidate political

committees can themselves receive only $5,000 per year from individuals or other

multicandidate political committees. 2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(2); Price Index

Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure

Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). 

25. State, district and local committees of a party can also receive what are known as “Levin

Funds.” 2 U.S.C. 441i(b); 11 C.F.R. §§ 300.30-32. These are donations of up to $10,000 per

year per donor, and they may come from sources ordinarily impermissible under the Act, such as

corporations or labor unions. 11 C.F.R. § 300.31(c). These funds can be used in conjunction

with hard money for certain activities that benefit federal candidates, such as generic party voter

registration drives, voter identification programs, and get-out-the-vote efforts. 11 C.F.R. §

300.32. No other entity is permitted to receive Levin Funds under FECA. 11 C.F.R. §§ 300.10;

300.32. 

26. A national party committee can receive unlimited amounts as transfers from other national

party committees (e.g., the RNC can transfer unlimited amounts to the NRCC and vice versa). 2

U.S.C. § 441a(a)(4). A National Party committee can also receive unlimited amounts of hard

money as transfers from state, district, and local party committees, and vice versa. 2 U.S.C. §

441a(a)(4). State, district, and local party committees can transfer hard money to one another

without limit under the Act. 2 U.S.C. § 441a(a)(4). And candidate campaigns can transfer funds

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to national, state, or local committees of political parties “without limitation.” 2 U.S.C. §

439a(a)(4). This ability to freely transfer money between, among, and to political committees is

available only to party committees and committees affiliated with the same corporation, union or

other entity. 2 U.S.C. §§ 441a(a)(1); 441a(a)(2); 441a(a)(5).

27. In 2007 and 2008, the Republican national party committees (RNC, NRSC, and NRCC)

transferred a total of $46,176,897 to Republican state committees. In 2007 and 2008, the

Democratic national party committees (DNC, DSCC, and DCCC) transferred a total of

$116,020,742 to Democratic state committees. (Biersack Decl. ¶ 18, Table 26, FEC Exh. 3). 

28. National party committees also receive funding from the federal government for their

presidential nominating conventions. 26 U.S.C. § 9008(b). For the 2008 conventions, the

convention committees for the Democratic and Republican parties each received payments of

$16,356,000 from the United States Treasury. (Both Major Parties to Receive Public Funding for

2008 Convention, http://www.fec.gov/press/press2007/20070626conventions.shtml, FEC Exh.

17).

Party Expenditures

29. Expenditures made by parties that are not coordinated with a candidate are considered

independent and parties may generally engage in them without limit. Colorado II, 533 U.S. at

465; Colorado I, 518 U.S. at 618. Party independent expenditures are limited only where the

national committee of a political party has been designated as the authorized committee of a

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Presidential candidate and the campaign is subject to public financing restrictions. 11 C.F.R. §§

109.36, 9002.1. 

30. Party coordinated communications are one category of coordinated expenditures that are

limited under the Act. 11 C.F.R. § 109.37. 

31. Generally, coordinated expenditures are those that are made in “cooperation, consultation or

concert with, or at the request or suggestion of” the candidate or candidate’s authorized

committee. 11 C.F.R. §§ 109.20, 109.37; see also 2 U.S.C. § 431(17).

32. Party coordinated communications are, by definition, “paid for by a political party

committee or its agent.” 11 C.F.R. § 109.37(a)(1). (J. Stip. at 6).

33. However, under FEC regulations, not every communication is considered a coordinated

communication even if it is made in “cooperation, consultation or concert with, or at the request

or suggestion of” the candidate or candidate’s authorized committee. Whether a particular

communication is considered to be a party coordinated communication is based upon both the

conduct of those involved and the content of the communication. 11 C.F.R. § 109.37. The

conduct standard is met if, e.g., “[t]he communication is created, produced, or distributed at the

request or suggestion of a candidate,” “[t]he communication is created, produced, or distributed

after one or more substantial discussions about the communication between the person paying

for the communication . . . and the candidate who is clearly identified in the communication,” or

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the person paying for the communication hires a candidate’s vendor or former employee “to

create, produce, or distribute” it and in doing so that vendor/employee uses “material”

information about “campaign plans, projects, activities, or needs” or shares such information

with the payer. 11 C.F.R. §§ 109.21(d)(1)(i)); 109.21(d)(3); 109.21(d)(4)-(5).

34. In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.

No. 107-155, which included a provision prohibiting the national parties from receiving or

spending any “soft money” – money that was not subject to the limitation or prohibitions of

FECA. 2 U.S.C. § 441i(a). (J. Stip. at 7).

35. Prior to the passage of BCRA, the RNC made only limited independent expenditures as

compared to the substantial independent expenditures that it has made since the passage of

BCRA. (Josefiak Dep. at 70-72, FEC Facts Exh. 5 (recalling only one instance of pre-BCRA

independent expenditures)). (J. Stip. at 7).

36. In general, the Act currently allows a national and state committee of a political party each

to coordinate spending with a candidate up to $43,700 or $87,300 in races for the House of

Representatives, and up to a range of $87,300 to $2,392,400 in races for Senate, and the Act also

permitted the national parties to coordinate up to $19,151,200 in the most recent Presidential

race. 2 U.S.C. §§ 441a(d)(2)-(3); Price Index Increases for Contribution and Expenditure

Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009);

Price Index Increases for Expenditure Limitations, 73 Fed. Reg. 8698 (Feb. 14, 2008). These

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coordinated expenditures under the Act are in addition to the $5,000 in contributions that all

multicandidate political committees can make pursuant to 2 U.S.C. § 441a(a)(2)(A). Each

candidate may receive coordinated expenditures up to this limit from a national committee, and

also coordinated expenditures up to this limit from the relevant state party committee. 11 C.F.R.

§ 109.33(b). Thus, each candidate may receive party coordinated expenditures of up to

$174,600.

37. For most candidates for the U.S. House of Representatives, the Act currently allows a

national or state committee of a political party to make coordinated expenditures of up to

$43,700, in addition to the contributions the party committees may make under 2 U.S.C. §

441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. § 109.33; Price Index Increases for

Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed.

Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6). Each candidate may receive coordinated

expenditures up to this limit from a national committee, and also receive coordinated

expenditures up to this limit from the relevant state party committee. 11 C.F.R. § 109.33(b). 

Thus, each such candidate may receive party coordinated expenditures of up to $87,400.

38. If a candidate for the U.S. House of Representatives is running from a state with only one

Congressional district, a national or state committee of a political party can make coordinated

expenditures of up to $87,300, in addition to the contributions the party committees may make

under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. § 109.33; Price Index

Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure

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Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6). Each candidate may receive

coordinated expenditures up to this limit from a national committee, and also coordinated

expenditures up to this limit from the relevant state party committee. (11 C.F.R. § 109.33(b)).

Thus, each candidate may receive party coordinated expenditures of up to $174,600.

39. For U.S. Senate campaigns, the Act currently allows national or state committees of political

parties to make coordinated expenditures in amounts ranging from $87,300 to $2,392,400,

depending upon the voting age population of the state, in addition to the contributions the party

committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. §

109.33; Price Index Increases for Contribution and Expenditure Limitations and Lobbyist

Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6). Each

candidate may receive coordinated expenditures up to this limit from a national committee, and

also receive coordinated expenditures up to this limit from the relevant state party committee. 

(11 C.F.R. § 109.32(b)). Thus, Senate candidates may receive party coordinated expenditures in

amounts ranging from $174,600 to $4,784,800.

40. National committees and state committees of political parties can assign their authority to

make coordinated party expenditures to other political party committees under 2 U.S.C. §

441a(d)(3). 11 C.F.R. § 109.33(a). (See also Nov. 12, 2008 Letter from Roger Villere, Jr.,

Chairman of LAGOP to Mike Duncan, Chairman of RNC (LA-GOP0001), FEC Facts Exh. 13

(authorizing RNC to make LA-GOP's coordinated expenditures in 2008 Cao campaign); RNC

Spreadsheet for 2008 Cao Campaign (RNC 0000001), FEC Facts Exh. 14 (indicating that

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coordinated expenditure limit for 2008 Cao campaign increased from $42,100 to $84,200

following receipt of authorization from LA-GOP)). (J. Stip. at 6-7). This allows a candidate to

receive the maximum coordinated expenditures that the state and national parties are permitted

to make even though “the state parties do not have sufficient federal resources in a lot of the

smaller states to be able to fully fund a coordinated expenditure program.” (Federal Rule of

Civil Procedure 30(b)(6) Deposition of Republican National Committee witness Thomas J.

Josefiak (RNC 30(b)(6) Dep.) at 63, FEC Exh. 5).

41. Due to the restrictions on coordinated expenditures, LA-GOP typically assigns its

coordinated expenditure amounts to the RNC in order to increase the efficiency and

effectiveness of the limited funds. (Buckels Dep. at 35-36, FEC Exh. 6). (J. Stip. at 7).

42. The party coordinated expenditure provisions are adjusted for inflation each year. 2 U.S.C.

§ 441a(c)(1)(B). (J. Stip. at 6). 

43. Political parties are permitted to make coordinated expenditures with their federal candidates

in excess of the contribution limits that apply to all multicandidate political committees. 2

U.S.C. §§ 441a(d)(2)-(3). Neither other political committees nor individuals can engage in such

coordinated expenditures in excess of their contribution limits. 

44. Prior to 90 days before a Congressional or Senate election, or 120 days before a Presidential

election, a party communication is not deemed coordinated with a candidate unless it

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“disseminates, distributes, or republishes . . . campaign materials prepared by a candidate, ...” or

“expressly advocates the election or defeat of a clearly identified candidate.” 11 C.F.R. §§

109.37(a)(2)(i)-(ii). No other party communications made prior to the 90/120 day windows

count against the Act’s limits on party contributions or party coordinated expenditures. 

45. Even within the 90 or 120 days immediately before an election, a party communication is

not considered a party coordinated communication subject to the Act’s limits unless it refers to a

clearly identified federal candidate and is disseminated within that candidate’s jurisdiction. 11

C.F.R. § 109.37(a)(3).

46. A party communication also is not considered coordinated unless the party and candidate

have engaged in specific conduct indicating coordination, even if the communication is

disseminated within 90 or 120 days before an election and refers to a clearly identified federal

candidate in the appropriate jurisdiction. 11 C.F.R. §§ 109.37(a)(3), 109.21(d)(1)-(6). The

conduct standard is met if, e.g., “[t]he communication is created, produced, or distributed at the

request or suggestion of a candidate,” “[t]he communication is created, produced, or distributed

after one or more substantial discussions about the communication between the person paying

for the communication . . . and the candidate who is clearly identified in the communication,” or

the person paying for the communication hires a candidate’s vendor or former employee “to

create, produce, or distribute” it and in doing so that vendor/employee uses “material”

information about “campaign plans, projects, activities, or needs” or shares such information

with the payer. 11 C.F.R. §§ 109.21(d)(1)(i)); 109.21(d)(3); 109.21(d)(4)-(5).

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47. The Act provides special exemptions to the definitions of contributions and expenditures for

parties, which means some party activities are not subject to any contribution limit. Payment of

compensation for legal or accounting services by full-time staff on behalf of any political party

committee or candidate is excluded from these definitions. 2 U.S.C. §§ 431(8)(B)(viii)(I);

431(9)(B)(vii)(I)&(II). The Act also excludes, for parties and candidates, the use of real or

personal property, such as a community room, and the costs of invitations, food, and beverages

voluntarily provided by an individual to any political committee, provided that the value of an

individual’s activity does not exceed $2,000 in any calendar year. 2 U.S.C. § 431(8)(B)(ii). The

Act excludes from the definition of contribution for parties and candidates the payment of travel

expenses incurred by any individual on behalf of the candidate or party, as long as the

cumulative value of the expenses incurred by an individual does not exceed $1,000 for a

candidate and $2,000 for a political party for any calendar year. 2 U.S.C. § 431(8)(B)(iv). State

and local parties may pay for the costs of some communications, such as slate cards, sample

ballots, or other materials distributed by volunteers, without regard to the contribution and

expenditure limits, even if those activities are coordinated with candidates. 2 U.S.C. §§

431(8)(B)(v); 431(9)(B)(iv); Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 449

(Jan. 3, 2003). The Act also excludes, for state and local parties, expenditures for certain

campaign materials, as well as certain voter registration and get-out-the-vote activities. 2 U.S.C.

§§ 431(9)(B)(viii)-(ix). Certain transfers of payments received by political party committees as a

condition of ballot access are also excluded from the definition of “expenditure.” 2 U.S.C. §

431(9)(B)(x). 

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48. A party can avoid having a communication deemed a coordinated communication by setting

up and distributing a written “firewall” policy that prohibits the flow of information between the

individuals “providing services for the [party] paying for the communication” and the

individuals who are “currently or [were] previously providing services to the candidate who is

clearly identified in the communication [or his or his opponent’s committee].” 11 C.F.R. §§

109.37(a)(3), § 109.21(h).

49. Because the RNC has a continuous and ongoing relationship with its candidates, special

measures must be taken to do independent expenditures regarding its candidates. The RNC has

extensive discussions with its candidates about their needs, activities and strategy. As a result,

activities by the RNC about its candidates may be deemed to be coordinated with its candidates,

subjecting these activities to the FECA’s coordinated expenditure and contribution limits. In

order to engage in any independent expenditure supporting one of its candidates, the RNC may

hire an outside consulting group to do the independent expenditures but neither the RNC nor any

of its officers, employees or agents may have any involvement in the independent expenditure in

order for it to be truly independent. (Josefiak Dep. 58:6-60:12, 70:13-17, 72:19-73:6, 153:22-

155:4, 160:14-161:7). In fact, neither the chairman of the RNC nor any of the RNC’s officers,

employees or agents has control over the message of an independent expenditure yet the RNC

bears responsibility for that message. The RNC makes its independent expenditures in this way

out of a belief that there is no way to have a true “firewall policy.” (Josefiak Dep. 159:12-18). 

50. Some party committee officials and candidates have expressed dissatisfaction with party

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independent expenditures due to their lack of control over the content. (RNC 30(b)(6) Dep. at

72-73, FEC Exh. 5 (describing independent expenditure in Tennessee Senate race that “caused

the chairman angst” due to media scrutiny); Cao Dep. at 34-35, FEC Exh. 4 (describing

campaign’s frustration because NRCC independent expenditure robocalls were “hurting us more

than [they] helped us”); Krasno Rept. at 5-6 & n.4, FEC Exh. 1 (describing NRCC chairman’s

dismay at an inability to do anything about a misleading NRCC independent expenditure

alleging an opponent called a phone sex line while traveling on business)). As a result, the RNC

is reluctant to conduct independent expenditures. (Josefiak Dep. 74:16- 76:11, 157:9-158:20. 

51. Due to the perceived administrative and content advantages of coordinated expenditures,

plaintiffs generally prefer to coordinate activities between candidates and parties. (RNC 30(b)(6)

Dep. at 57, FEC Exh. 5 (“no chairman feels that independent expenditures is a preferable way to

spend money.”); LA-GOP 30(b)(6) Dep. at 79, FEC Exh. 6 (“Any coordination with our

candidates is something we would like to do more of.”); Cao Dep. at 42, FEC Exh. 4 (“I would

like for them to do more radio ads, do more mailing of products on my behalf. But before they

do it, I would like to know the contents of those ads ... .”)). 

52. So-called “issue advocacy” has been used extensively in connection with federal elections.

Prior to 2002, political party communications that did not contain “magic words” such as “Elect

John Smith” or “Vote Against Jane Doe” were considered “issue advocacy” and could be

financed in part with soft money even if they focused on specific candidates, allowing parties to

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11 The Court will at times throughout these findings include previous findings and

holdings of the Supreme Court to provide context for related findings of fact and a description of

controlling law. 

31

use money that was not subject to the Act’s source and amount limitations.11 McConnell, 540

U.S. at 126; (Krasno and Sorauf McConnell Report at 50-66 [DEV 1-Tab 2], FEC Exh. 39). 

These “issue ads” typically avoided using “magic words” by “condemn[ing] Jane Doe’s record

on a particular issue before exhorting viewers to call Jane Doe and tell her what you think.” 

McConnell, 540 U.S. at 127 (internal quotation marks and footnote omitted). In fact, campaigns

would rarely use such “magic words” anyway. McConnell, 251 F. Supp. 2d at 529 (KollarKotelly, J.) (“The uncontroverted testimony of political consultants demonstrates that it is

neither common nor effective to use the ‘magic words’ of express advocacy in campaign

advertisements.”). “[T]he overwhelming majority of modern campaign advertisements do not use

words of express advocacy, whether they are financed by candidates, political parties, or other

organizations.” Id. Thus, although deemed “issue ads” under the law, in practice issue ads and

express advocacy for candidates were “functionally identical in important respects.” McConnell,

540 U.S. at 126 (“[b]oth were used to advocate the election or defeat of clearly identified federal

candidates, even though the so-called issue ads eschewed the use of magic words”).

 

53. Thus, prior to BCRA – when national parties were permitted to receive soft money –

“genuine issue advocacy on the part of political parties [was] a rare occurrence.” McConnell,

251 F. Supp. 2d at 451 (Kollar-Kotelly, J.). Similarly, the RNC spent only “a minuscule

percentage” of its soft money budget on state and local governmental affairs. Id. at 463. “What

is clear from the evidence [in McConnell], however, is that regardless of whether or not it is

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done to advocate the party’s principles, the Republican Party’s primary goal is the election of its

candidates who will be advocates for their core principles.” Id. at 470.

54. The “conclusion that [issue] ads were specifically intended to affect election results was

confirmed by the fact that almost all of them aired in the 60 days immediately preceding a

federal election.” McConnell, 540 U.S. at 127 (footnote omitted).

55. BCRA prevented national parties from spending millions of dollars of soft money running

candidate-focused “issue ads” in the days before an election, because national parties could now

only receive and spend hard money and because BCRA treats coordinated electioneering

communications as coordinated communications subject to contribution limits. (2 U.S.C. §§

441a(a)(7)(C); 441i(a); 11 C.F.R. §§ 109.37(a)(3); 109.21(c)(4) (public communication in the

90-day or 120-day windows is coordinated if it, inter alia, “refers to a clearly identified ...

candidate”)). Prior to BCRA, independent expenditures, which can contain express advocacy,

had “remained limited” because national parties could use so-called issue advocacy for

“unlimited commercials (mostly) criticizing or (less often) praising a congressional candidate in

the days before an election.” (Krasno Rept. at 10, FEC Exh. 1; Colorado II, 533 U.S. at 455

(independent expenditures may contain express advocacy because “[a] party may spend

independently every cent it can raise wherever it thinks its candidate will shine, on every subject

and any viewpoint.”)). For example, in the 2000 and 2002 election cycles, the national party

committees spent less than $2 million per election cycle on independent expenditures while

spending “several hundred million dollars on issue advocacy.” (Biersack Decl. at ¶ 11, Table 15,

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FEC Exh. 3; Krasno Rept. at 10 and n.14, FEC Exh. 1). But after BCRA limited parties’ ability

to engage in unlimited coordinated so-called issue advocacy, “the parties turned immediately

back to independent expenditures.” (Krasno Rept. at 10 FEC Exh. 1; RNC 30(b)(6) Dep. at 96,

FEC Exh. 5 (“Q. Does the RNC usually make independent expenditures to support or oppose

Congressional candidates? A. It has been doing so post BCRA.”)). Parties began to spend

hundreds of millions of dollars per election cycle on independent expenditures. (Biersack Decl.

at ¶ 11, Table 15, FEC Exh. 3; Krasno Rept. at 10, FEC Exh. 1 (“Spending on independent

expenditures skyrocketed to $73 million in 2004 and $154 million in 2006 on House

elections.”)).

56. Political parties can currently use independent expenditures for any type of campaign

activity, but parties use them overwhelmingly for media advertising, primarily consisting of

television advertisements. (Krasno Rept. at 11 & n.15, FEC Exh. 1). Prior to the passage of

BCRA, “[e]stimates from party officials of the amount of money going to television went as high

as 75 percent at the DCCC.” (Expert Report of David B. Magleby, Report Concerning Interest

Group Election Advocacy and Party Soft Money Activity at 42 [DEV 4-Tab 8], FEC Exh. 55

(footnote omitted)). 

D. Recent Fund-Raising, Contribution, and Expenditure Levels for Political Parties

57. From 1992 to 2006, political party spending “increased tenfold.” (Krasno Rept. at

20-21, FEC Exh. 1). 

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58. Data shows that the Democratic and Republican parties together raised more than

$1.4 billion in the two-year 2004 election cycle, more than $1 billion in the 2006 cycle, and more

than $1.5 billion in the 2008 cycle. (Biersack Decl. ¶ 6, Table 5, FEC Exh. 3).

59. In the 2007-2008 election cycle, the national parties raised more money than in the election

cycles prior to the effective date of the Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, when they were also able to raise “soft” money – money that was not subject to the

limitation or prohibitions of FECA. (Biersack Decl. ¶ 3, Tables 1 & 2, FEC Exh. 3).

60. In the 2008 election cycle, the major national party committees (RNC and DNC) supported

their federal candidates with a total of $529,262 in contributions, $31,256,379 in coordinated

expenditures, and $54,563,499 in independent expenditures. During this same period, the

national Senatorial committees (NRSC and DSCC) supported their federal candidates with a

total of $648,095 in contributions, $5,353,546 in coordinated expenditures, and $112,013,708 in

independent expenditures. During this same period, the national Congressional committees

(NRCC and DCCC) supported their federal candidates with a total of $680,817 in contributions,

$5,074,523 in coordinated expenditures, and $112,612,969 in independent expenditures. During

this same period, candidates for the U.S. House of Representatives spent a total of $949,700,00

on their candidacies, and candidates for the U.S. Senate spent a total of $444,700,000 on their

candidacies. (Biersack Decl. ¶¶ 8, 12, 15, Tables 6-9, 16, FEC Exh. 3). 

61. In each of the last five two-year election cycles, the Republican national party committees

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(the RNC, NRSC and NRCC) have raised hundreds of millions of dollars of hard money.

(Biersack Decl. ¶ 3, Table 1, FEC Exh. 3). In the 2000 election cycle, the Republican national

party committees raised $361,588,430 of hard money. (Id.) In the 2002 election cycle, the

Republican national party committees raised $352,876,067 of hard money. (Id.) In the 2004

election cycle, the Republican national party committees raised $657,113,369 of hard money. 

(Id.) In the 2006 election cycle, the Republican national party committees raised $508,120,158

of hard money. (Id.) In the 2008 election cycle, the Republican national party committees

raised $640,308,267 of hard money. (Id.) (FEC Fact 34).

62. In each of the last five two-year election cycles, the Democratic national party committees

(the DNC, DSCC and DCCC) have raised hundreds of millions of dollars of hard money.

(Biersack Decl. ¶ 3, Table 2, FEC Exh. 3). In the 2000 election cycle, the Democratic national

party committees raised $212,880,651 of hard money. (Id.) In the 2002 election cycle, the

Democratic national party committees raised $162,325,003 of hard money. (Id.) In the 2004

election cycle, the Democratic national party committees raised $586,244,028 of hard money. 

(Id.) In the 2006 election cycle, the Democratic national party committees raised $392,089,836

of hard money. (Id.) In the 2008 election cycle, the Democratic national party committees

raised $599,113,650 of hard money. (Id.) 

63. In each of the last five two-year election cycles, Republican state and local party

committees, in the aggregate, have raised well over $100 million of hard money. (Biersack Decl.

¶ 5, Table 4, FEC Exh. 3). In each of the last five election cycles, Democratic state and local

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party committees, in the aggregate, have also raised well over $100 million of hard money. (Id.)

64. In the 2008 Presidential campaign, national committees of political parties were permitted to

make coordinated expenditures with their candidates of up to $19,151,200, in addition to the

contributions the party committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. §

441a(d)(2); 11 C.F.R. § 109.33; Price Index Increases for Expenditure Limitations, 73 Fed. Reg.

8698 (Feb. 14, 2008). (J. Stip. at 7).

65. In the 2008 election cycle, Republican party committees (including national, state, and local

committees) supported their federal candidates with $31,952,985 in coordinated expenditures,

and Democratic party committees (including national, state, and local committees) supported

their federal candidates with $37,988,558 in coordinated expenditures. In the 2006 election

cycle, six candidates for U.S. Senate each received $1 million or more in coordinated

expenditures from their parties. (Biersack Decl. ¶ 11, 14, Tables 14, 21, 22, FEC Exh. 3).

66. In the 2008 cycle, the six national party committees provided significant support to their

candidates in contributions. The Republican national committees contributed $1,286,809 to their

federal candidates. The Democratic national committees contributed $571,365 to their federal

candidates. (Biersack Decl. ¶ 12, Table 16, FEC Exh. 3). 

67. During each of the last five two-year election cycles, the Republican national party

committees have made millions of dollars of expenditures in coordination with federal

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candidates, from a low of $13,310,534 in the 2006 cycle to a high of $29,807,792 in the 2008

cycle. (Biersack Decl. ¶ 8, Table 6, FEC Exh. 3). 

68. Over each of the last five two-year election cycles, the Democratic national party

committees have made millions of dollars of expenditures in coordination with federal

candidates, from a low of $2,333,942 in the 2002 cycle to a high of $22,914,903 in the 2004

cycle. (Biersack Decl. ¶ 8, Table 8, FEC Exh. 3).

69. In the 2008 cycle, parties made $280,873,688 in independent expenditures. The Democratic

party committees spent $156,191,039 and the Republican party committees spent $124,682,649

in independent expenditures. (Biersack Decl. ¶ 11, Table 15, FEC Exh. 3).

70. During the last three two-year election cycles, both major parties’ national committees have

averaged well over $100 million in independent campaign expenditures. Republican national

party committees made $84,906,626 of independent expenditures in 2004, $115,241,737 of

independent expenditures in 2006, and $123,416,207 of independent expenditures in 2008.

(Biersack Decl. ¶ 8, Table 7, FEC Exh. 3). Democratic national party committees made

$175,982,712 of independent expenditures in 2004, $106,745,614 of independent expenditures in

2006, and $155,773,969 of independent expenditures in 2008. (Biersack Decl. ¶ 8, Table 9, FEC

Exh. 3). During those same cycles, both major parties’ state and local committees also spent

millions of dollars on independent expenditures. The Republican state and local parties spent

$1,266,442 in 2008, $404,650 in 2006, and $3,125,756 in 2004. The Democratic state and local

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party committees spent $417,070 in 2008, $1,354,651 in 2006, and $508,984 in 2004. (Biersack

Decl. ¶ 10, Table 12-13, FEC Exh. 3).

E. The Relationship between National and State Parties, Candidates, and Donors

The Role of Political Parties

71. National political parties are “‘inextricably intertwined with federal officeholders and

candidates.’” (McConnell v. FEC, 540 U.S. 93, 155 (2003) (quoting 148 Cong. Rec. H409 (Feb.

13, 2002))). “Candidates are the rallying points for the party.” (Krasno Rept. at 5, FEC Exh. 1).

72. The Supreme Court has found that “‘there is no meaningful separation between the national

party committees and the public officials who control them.’” (McConnell, 540 U.S. at 155

(quoting McConnell v. FEC, 251 F. Supp. 2d 176, 468-69 (D.D.C. 2003) (Kollar-Kotelly, J.))).

73. The RNC has “constant contact” with candidates at the height of an election. (Josefiak Dep.

at 37, FEC Facts Exh. 5). (J. Stip. at 2).

74. “The President typically controls his party’s national committee, and once a favorite has

emerged for the presidential nomination of the other party, that candidate and his party's national

committee typically work closely together.” McConnell v. FEC, 251 F. Supp. 2d 176, 697

(D.D.C. 2003) (Kollar-Kotelly, J.). (J. Stip. at 3).

75. Party organizations, particularly those at the national level, directly assist federal candidates

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by providing them with campaign contributions, coordinated expenditures, and assistance in

areas of campaigning that require expertise and in-depth research. They also help candidates

raise funds and campaign support from other groups. The parties’ close involvement in political

campaigns gives them a special relationship with candidates. (RNC Resps. to FEC’s First

McConnell RFA’s, Nos. 17 – 19, 55 [DEV 12-Tab 10], FEC Exh. 42).

76. Party organizations recruit candidates and write the rules that govern nomination campaigns.

Party organizations also assist general election candidates with their campaigns, providing many

with money, political expertise, media and other election services, volunteers, and some of the

other resources that are needed to wage an election campaign. Parties also help candidates

collect money and other campaign resources from interest groups and individuals who are active

in politics. In addition, party organizations communicate messages designed to benefit a party’s

entire ticket or intended to help individual candidates win their races. (D. Green McConnell

Rebuttal Report at 7-9 [DEV 5-Tab 1], FEC Exh. 41; Declaration of Rocky Pennington in

McConnell v. FEC ¶ 5 [DEV 8-Tab 31], FEC Exh. 43; Declaration of Linda W. Chapin in

McConnell v. FEC ¶ 5 [DEV 6-Tab 12], FEC Exh. 44; Declaration of Terry S. Beckett in

McConnell v. FEC ¶ 5 [DEV 6-Tab 3], FEC Exh. 45).

77. One historic role that parties have played is to continue to operate between elections so that

each new candidate campaign need not start from scratch. Parties have historically been

considered “socializing institutions that help bring citizens into the political system, serve as an

outlet for their political energy by recruiting them to work in campaigns, and help mobilize

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voters.” (Krasno Rept. at 7, FEC Exh. 1).

78. The strength of a political party can be judged not only by its finances, but also by its

“organizational presence in a locale fueled by a combination of paid employees and, more likely,

activists and other party members” and the “attention and energy of party members.” (Krasno

Rept. at 8, FEC Exh. 1).

Parties Direct their Resources Strategically to have Maximum Impact

79. Political parties “try to maximize their impact by working hardest in – or targeting– the

races they deem closest.” (Krasno Rept. at 19, FEC Exh. 1). Parties “try to spend less on

uncompetitive races in order to spend more on competitive ones.” (Id.)

80. Political parties “allocate[ ] money based on a number of factors, including ‘the financial

strength of the campaign,’ ‘what [the candidate's] poll numbers looked like,’ and ‘who had the

best chance of winning or who needed the money most.’” Colorado II, 533 U.S. at 478 (quoting,

inter alia, declaration of Robert Hickmott, former Democratic fundraiser and National Finance

Director for Timothy Wirth's Senate campaign, in Colorado II (Hickmott Colorado II Decl.),

[DEV 76-Tab 121], FEC Exh. 34). “[T]he primary consideration in allocating funds is which

races are marginal – that is, which races are ones where party money could be the difference

between winning and losing . . .” FEC v. Colorado Republican Fed. Campaign Comm., 41 F.

Supp. 2d 1197, 1203 (1999) (Nottingham, J.).

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81. The RNC decides to spend money in particular races primarily based upon “how

competitive the race is and the commitment that the National Committee wants to make to

making its position known in that race.” (RNC 30(b)(6) Dep. at 55-56, FEC Exh. 5). The RNC

does not spend money on states that are considered uncompetitive, for example if “there is no

chance that the RNC is going to be able to win any of the races, and it’s just taking away money

from one competitive state and giving it to a state that won't have any impact on.” (Id. at 27-28). 

The RNC also does not spend money in races unless it is convinced that the Republican running

is “a legitimate candidate.” (Id. at 78).

82. As a result of their focus on close races, party committees like the RNC rarely reach their

legal limit for coordinated expenditures in a particular House or Senate race. There are 435 seats

in the U.S. House of Representatives, each of which is filled by an election during every twoyear election cycle. U.S. Const. art. I, § 2; 2 U.S.C. § 2. There are 100 seats in the U.S. Senate,

and one third of the total Senate membership is elected every two-year election cycle. U.S.

Const. art. I, § 3. Although there are at least 468 federal elections each cycle, Republican

committees reached the maximum amount of coordinated expenditures in only seven

congressional races in 2008, and in two races in 2006. (Biersack Decl. at ¶ 13, Tables 17 & 18,

FEC Exh. 3). Democratic committees only reached the legal limit in ten congressional races in

2008 and twelve races in 2006. (Id.)

83. Parties make no coordinated expenditures at all in many federal elections. In 2008, only 99

Republican candidates for Congress received coordinated expenditures from political parties,

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and in 2006 only 88 did. (Biersack Decl. at ¶ 13, Tables 17-18, FEC Exh. 3). Democratic party

committees only made coordinated expenditures for 168 of their congressional candidates in

2008 and 201 of them in 2006. (Id.). 

84. In only a small fraction of races do party committees spend 95% or more of the coordinated

expenditures available to them under the Act. Republican committees only reached the 95%

threshold in coordinated expenditures in 61 congressional races in 2008, and in 54 races in 2006.

(Biersack Decl. at ¶ 13, Tables 17 & 18, FEC Exh. 3). Democratic committees only reached the

95% standard in 30 congressional races for each of the last two election cycles. (Id.)

85. Party committees typically reach the 95% threshold only in the most competitive races. The

Cook Political Report is a newsletter that assesses the competitiveness of various elections.

(About the Cook Report, http://www.cookpolitical.com/node/1774, FEC Exh. 19 (“The Cook

Political Report is an independent, non-partisan newsletter that analyzes elections and campaigns

for the US House of Representatives, US Senate, Governors and President as well as American

political trends.”)). Cross-referencing Republican party spending to the 95% threshold with the

Cook Report analysis of 2008 House and Senate races (October 23, 2008) shows that:

a. Republican committees reached the threshold in 29 of 36 “Toss up” races (81%).

(Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; 2008 Competitive House Race Chart (Oct. 23,

2008) (Cook House Chart), FEC Exh. 20,

http://www.cookpolitical.com/charts/house/competitive_2008-10-23_11-33-46.php; 2008 Senate

Race Ratings (Oct. 23, 2008) (Cook Senate Chart), FEC Exh. 21,

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http://www.cookpolitical.com/charts/senate/raceratings_2008-10-23_11-37-46.php).

b. Republican committees reached the threshold in 9 of 15 “Lean Democratic” races

(60%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

c. Republican Committees reached the threshold in 9 of 16 “Lean Republican” races

(56%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

d. Republican Committees reached the threshold in 4 of 18 “Likely Democratic” races

(22%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

e. Republican Committees reached the threshold in 3 of 21 “Likely Republican” races

(14%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

f. Republican Committees reached the threshold in 7 of 364 of races judged as not

competitive nor likely to become competitive (2%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh.

3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21).

86. Cross-referencing Democratic spending to the 95% threshold with the Cook Report analysis

of 2008 House and Senate races (October 23, 2008) shows that:

a. Democratic committees reached the threshold in 10 of 36 “Toss up” races (28%).

(Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate

Chart, FEC Exh. 21).

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b. Democratic committees reached the threshold in 1 of 15 “Lean Democratic” races

(13%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

c. Democratic committees reached the threshold in 6 of 16 “Lean Republican” races

(38%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

d. Democratic committees reached the threshold in 2 of 18 “Likely Democratic” races

(11%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

e. Democratic Committees reached the threshold in 4 of 21 “Likely Republican” races

(14%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook

Senate Chart, FEC Exh. 21).

f. Democratic Committees reached the threshold in 6 of 364 of races judged as not

competitive nor likely to become competitive (2%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh.

3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21).

87. The majority of 2008 House and Senate general elections were not close, and in those races,

party coordinated expenditures were rare. In 322 of the 470 general elections (69%), a candidate

received over 60% of the vote. (Official Election Results for U.S. Senate/Official Election

Results for U.S. House of Representatives (Official 2008 Election Results),

http://www.fec.gov/pubrec/fe2008/2008congresults.pdf). Despite the fact that the majority of

races involved a candidate receiving over 60% of the vote, such races only made up a tiny

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minority of races in which the Republican or Democratic parties spent 95% or more of the

coordinated expenditures available to them under the Act. Of the 61 races in which Republican

party committees reached the 95% threshold, only two races (3%) featured a candidate who

received over 60% of the vote. (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Official 2008

Election Results). Of the 30 races in which Democratic party committees reached the 95%

threshold, only three races (10%) featured a candidate who received over 60% of the vote.

(Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Official 2008 Election Results).

Party Committees Facilitate Their Largest Donors’ Access to Federal Candidates and

Officeholders

88. Martin Meehan was a Democratic Congressman from Massachusetts between 1993 and

2007, and he has provided a declaration in this case. (Declaration of Martin Meehan (Meehan

Decl.) at ¶ 1, FEC Exh. 2). Congressman Meehan stated that “[p]arty fundraising serves as a

mechanism for major donors to get special access to lawmakers.” (Id. at ¶ 8). 

89. “At the request of the party, Members of Congress call prospective donors from lists

provided by the party to ask them to participate in party events, such as [DCCC or DNC]

dinners.” (Meehan Decl. at ¶ 9, FEC Exh. 2). National parties’ “fundraising events often []

feature members of Congress as draws, and they explicitly offer donors the opportunity to meet

and get to know various officials.” (Krasno Rept. at 5, FEC Exh. 1 (footnote omitted)). 

90. Prior to the passage of BCRA in 2002, large donations often provided access for those

donors to federal officeholders. (McConnell, 540 U.S. at 150-52 (“The record in the present

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case[] is replete with . . . examples of national party committees peddling access to federal

candidates and officeholders in exchange for large soft-money donations. . . . [T]he RNC holds

out the prospect of access to officeholders to attract soft-money donations and encourages

officeholders to meet with large soft-money donors.”) (citing McConnell, 251 F. Supp. 2d at

500-03 (Kollar-Kotelly, J.), 860-61 (Leon, J.)).

91. Notably, though, the RNC does not accept earmarked contributions, as defined in 11 C.F.R.

§ 110.6, for any particular candidate. (Josefiak Dep. at 48, FEC Facts Exh. 5).

92. The LA-GOP has ongoing and continuous contact with the RNC as well as federal

candidates in Louisiana. (Buckels Dep. at 19-21, FEC Facts Exh. 6). (J. Stip. at 3).

93. One of the purposes of state party committees like LA-GOP is to assist in the election of

candidates for federal office. (Buckels Dep. at 19-20, FEC Facts Exh. 6). In constructing a

“victory plan,” Republican federal candidates have meetings with both the national parties and

the state party. (Josefiak Dep. at 27, FEC Facts Exh. 5). State and local party organizations

assist federal candidates with voter mobilization and grassroots activities. (D. Green McConnell

Rebuttal Report at 10-15 [DEV 5-Tab 1],1 FEC Facts Exh. 41; Krasno and Sorauf McConnell

Report at 44-50 [DEV l-Tab 2], FEC Facts Exh. 39; Expert Report of Thomas E. Mann from

McConnell (Mann McConnell Report) at 30 [DEV I-Tab 1], FEC Facts Exh. 53). (J. Stip. at 3-

4).

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94. During an election cycle, LA-GOP also has “constant contact” with the party’s federal

candidates. (LA-GOP 30(b)(6) Dep. at 19-20, FEC Exh. 6). Republican federal officeholders

from Louisiana, by virtue of their office, automatically hold the position of an “exofficio, nonvoting Member” of the State Central Committee of LA-GOP during their time in office. LAGOP Bylaws, Art III § 2, FEC Exh. 16. Congressman Cao serves as a member of the State

Central Committee for the LA-GOP and the Parish Executive Committee for the Republican

party. (Cao Dep. at 10, FEC Exh. 4)

95. When federal candidates and officeholders have asked about donors to LA-GOP, the party

has “shared that donor list.” (LA-GOP 30(b)(6) Dep. at 25-26, FEC Exh. 6). The sharing of

information also happens in the other direction – LA-GOP receives information from federal

candidates about who has contributed to their campaigns. (Id. at 26).

96. LA-GOP encourages federal candidates to tell their donors to also contribute to LA-GOP.

(LA-GOP 30(b)(6) Dep. at 148, FEC Exh. 6). Donors who have contributed the maximum

allowable contribution to an individual candidate are encouraged to contribute more to LA-GOP.

(Id. at 147; see also Meehan Decl. at ¶ 10, FEC Exh. 2). Then-candidate Cao’s 2008 campaign

was expected not only to raise money for his campaign, but also to raise money for LA-GOP.

(Cao Dep. at 16, FEC Exh. 4 (“we had to raise some money for the state party.”)). Volunteers for

the Cao campaign solicited contributions to LA-GOP. (Id. at 16-17). 

97. Even after the passage of the soft money restrictions in BCRA, large donors to political

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parties are able to receive access to federal officeholders unavailable to the public. To facilitate

its donors’ access to federal candidates and officeholders, the RNC organizes “fulfillment”

events to which individuals who have made a large contribution to the RNC of a specified

amount are invited, and which officeholders such as the President, Vice-President or other

prominent Republicans also attend. (RNC 30(b)(6) Dep. at 27-30, FEC Exh. 5; Id. at 39-40

(“they will have, you know, basically fulfillment requirements where they will be at some resort,

they play a little golf, hear speakers on various issues, and so that will be an ongoing process.”)). 

98. These opportunities are only offered to individuals who are “fully contributing” the amount

to the RNC that is required to attend the event. (RNC 30(b)(6) Dep. at 44-45, FEC Exh. 5). The

RNC has created tiers of donors with specified benefits based on levels of annual giving: For

example, donors who give $15,000 receive “intimate luncheons, dinners, and meetings with key

policymakers”; donors who give $30,400 “enjoy exclusive private functions with elected

Republican leaders”; and donors who commit to raising $60,800 receive “at least one . . .

exclusive event during the year,” as well as other “intimate events with key GOP policymakers.”

(Republican National Committee Major Donor Groups 2009, FEC Exh. 25).

99. For example, at one Republican party event on November 1, 2007, the President of the

United States, six U.S. Senators, and one U.S. Representative attended a dinner with just fortynine donors. (New Republican Regents Dinner Invitation (Nov. 1, 2007), FEC Exh. 26). The

RNC has organized even smaller Presidential appearances in private homes – events at which the

President has been joined by as few as thirty-nine donors. (RNC Luncheon Invitation (Sept. 26,

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2007), FEC Exh. 27) (thirty-nine attendees); (RNC Presidential Trust Dinner Invitation (March

18, 2008), FEC Exh. 28) (forty-one attendees); (RNC Presidential Trust Luncheon Invitation

(March 18, 2008), FEC Exh. 29) (fifty-two attendees). And the RNC has arranged similar

interactions with executive branch officials: Senior White House official Karl Rove had

breakfast with twenty-eight donors (RNC Breakfast with Karl Rove Invitation (Oct. 10, 2006),

FEC Exh. 30) and White House Chief of Staff Joshua Bolten had lunch with thirty-seven donors

(RNC Luncheon with Josh Bolten Invitation (Oct. 19, 2006), FEC Exh. 31). According to the

RNC, however, the actual interaction between donors and candidates or office holders at these

events is minimal. “It’s basically cookie cutter. Individuals go and socialize. The president, for

example, would come, make a speech on a topic for 45 minutes, photo op and leave. . . . It’s not

like they sit around and have one-on-one like we’re having here today.” (Josefiak Dep. 45:19-

46:3).

100. In McConnell, the Supreme Court expressed concerns about the appearance of corruption.

Through lobbyists and others, “national parties have actively exploited the belief that

contributions purchase influence or protection to pressure donors into making contributions.”

McConnell, 540 U.S. at 148 n.47. As the CEO of a major corporate donor explained, if a

corporation had given a lot of money to one party, “the other side,” i.e., the opposing national

party committee, might have “a friendly lobbyist call and indicate that someone with interests

before a certain committee has had their contributions to the other side noticed.” (Id. (internal

quotation marks omitted)). 

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Federal Candidates and Officeholders Know the Identity of Their Parties’ Large Donors

101. Despite the soft money restrictions in BCRA, individual donors can still contribute up to

$30,400 to a national party committee each year and multicandidate PACs can still contribute up

to $15,000 to a national party committee each year. 2 U.S.C. §§ 441a(a)(1)- (2); Price Index

Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure

Threshold, 74 Fed. Reg. 7435, 7436-37 (Feb. 17, 2009).

102. Federal candidates and officeholders can learn the identity of individuals who have made

large donations to their party. (Meehan Decl. at ¶ 8, FEC Exh. 2) (“ Office holders and

candidates know who the major donors to their parties are.”).

103. One method by which parties and candidates learn the identity of one another’s

contributors is through the use of joint fundraising committees. (Krasno Rept. at 5, FEC Exh. 1). 

These committees hold joint fundraising events where donors contribute both to candidates and

parties. (Id.). Such joint fundraising events are a “trend” that has “becom[e] more and more

prevalent.” (RNC 30(b)(6) Dep. at 52, FEC Exh. 5).

104. It is not only “contributions made at the express behest of” a candidate that raise corruption

concerns, McConnell, 540 U.S. at 152, but also other contributions, because “[e]lected officials

know exactly who the big party contributors are.” (Declaration of Senator Warren Rudman in

McConnell ¶ 12 [DEV 8-Tab 34], FEC Exh. 46; accord Declaration of Alan K. Simpson in

McConnell (Simpson McConnell Decl.) ¶ 5 [DEV 9-Tab 38], FEC Exh. 47; Declaration of

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Gerald Greenwald in McConnell ¶ 11 [DEV 6-Tab 16], FEC Exh. 48).

105. Federal officeholders are “well aware of the identities of the donors: National party

committees would distribute lists of potential or actual donors, or donors themselves would

report their generosity to officeholders.” McConnell, 540 U.S. at 147. “‘[F]or a member not to

know the identities of these donors, he or she must actively avoid such knowledge as it is

provided by the national political parties and the donors themselves.’” Id. (quoting McConnell,

251 F. Supp. 2d at 487-88) (Kollar-Kotelly, J.) (emphasis added); see also id. (citing McConnell,

251 F. Supp. 2d at 853-55) (Leon, J.)). 

State and Local Political Parties Are Particularly Well Suited to Facilitate Their Largest

Donors’ Access to Federal Candidates and Officeholders

106. State and local parties are “entities uniquely positioned to serve as conduits for corruption”

because of their close connection to the national parties and to federal officeholders and

candidates. McConnell, 540 U.S. at 156 n.51; see also id. at 161. Federal candidates and

officeholders raise funds for national and state parties. Congressman Meehan “helped the

DCCC, the DNC and the Massachusetts Democratic Party raise more than $300,000 in the two

elections cycles prior to [his] resignation from office.” (Meehan Decl. at ¶ 12, FEC Exh. 2). In

fundraising for the Massachusetts Democratic Party, Congressman Meehan “signed onto

invitations to political fundraisers” and “made fundraising phone calls to active Democrats to ask

them to participate in a given event or coordinated campaign.” (Id. at ¶ 13).

107. “Congress recognized that” there were also “close ties between federal candidates and state

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party committees,” and concluded – “based on the evidence before it” – that “state committees

function as an alternative avenue for precisely the same corrupting forces” as the national party

committees. McConnell, 540 U.S. at 161, 164.

108. The very structure of the state and national parties assures that each will be closely linked

to the other. For example, the 168 members of the RNC include the chairperson of each state

and territorial Republican party, as well as a “National Committeeman” and a “National

Committeewoman” from each state and territorial party. (RNC 30(b)(6) Dep. at 12, FEC Exh. 5;

LA-GOP 30(b)(6) Dep. at 15, FEC Exh. 6; Bylaws of the State Central Committee of the

Republican Party of Louisiana (June 7, 2008) (LA-GOP Bylaws), Art. V § 5, FEC Exh. 16 (“The

National Committeeman and National Committeewoman shall serve as the representatives of the

Party to the Republican National Committee, shall prepare a joint written report annually

summarizing the activities of the Republican National Committee, shall submit said report to the

State Central Committee at the first quarterly meeting each year and shall perform such other

duties as are assigned by the State Central Committee or by the Executive Committee.”)). The

Bylaws Committee of LA-GOP considers and reports to the State Central Committee regarding

such federal issues as “proposed reapportionment plans” “the endorsement of candidates,” “the

selection of delegates to the Republican National Convention” and “the conduct of Presidential

caucuses or primaries.” (LA-GOP Bylaws, Art VII § 1, FEC Exh. 16).

F. The Supreme Court has Recognized that Coordinated Expenditures Present a Risk of

Corruption or the Circumvention of Contribution Limits

109. “Coordinated expenditures of money donated to a party are tailor-made to undermine

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contribution limits.” Colorado II, 533 U.S. at 464. (FEC Fact 117).

110. The RNC encourages its candidates to tell their “maxed out” donors to contribute to the

RNC. (RNC 30(b)(6) Dep. at 56-57, FEC Exh. 5). Congressman Cao has personally suggested

to donors who had given the maximum amount to his campaign that they could also contribute to

the party. (Cao Dep. at 17, FEC Exh. 4). 

111. “Donors give to the party with the tacit understanding that the favored candidate will

benefit.” Colorado II, 533 U.S. at 458 (citing Hickmott Colorado II Decl., FEC Exh. 34 (“We ...

told contributors who had made the maximum allowable contribution to the Wirth campaign but

who wanted to do more that they could raise money for the DSCC so that we could get our

maximum [Party Expenditure Provision] allocation from the DSCC”).

112. “[I]f a candidate could be assured that donations through a party could result in funds

passed through to him for spending on virtually identical items as his own campaign funds, a

candidate enjoying the patronage of affluent contributors would have a strong incentive not

merely to direct donors to his party, but to promote circumvention as a step toward reducing the

number of donors requiring time-consuming cultivation.” Colorado II, 533 U.S. at 460.

113. “If a candidate could arrange for a party committee to foot his bills, to be paid with

$20,000 contributions to the party by his supporters, the number of donors necessary to raise

$1,000,000 could be reduced from 500 (at $2,000 per cycle) to 46 (at $2,000 to the candidate and

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$20,000 to the party, without regard to donations outside the election year).” Colorado II, 433

U.S. at 460 (footnote omitted) (discussing candidate incentives using the contribution limits

applicable at the time of that case).

114. “The same enhanced value of coordinated spending that could be expected to promote

greater circumvention of contribution limits for the benefit of the candidate-fundraiser would

probably enhance the power of the fundraiser to use circumvention as a tactic to increase

personal power and a claim to party leadership.” Colorado II, 533 U.S. at 460 n. 23. “If the

effectiveness of party spending could be enhanced by limitless coordination, the ties of straitened

candidates to prosperous ones and, vicariously, to large donors would be reinforced as well. 

Party officials who control distribution of coordinated expenditures would obviously form an

additional link in this chain.” Id. (“[The DSCC's three-member Executive Committee] basically

made the decisions as to how to distribute the money. . . . Taking away the limits on coordinated

expenditures would result in a fundamental transferal of power to certain individual Senators”)

(citing Billings Colorado II Decl. ¶¶ 3, 19, FEC Exh. 36).

115. “Despite years of enforcement of the challenged limits, substantial evidence demonstrates

how candidates, donors, and parties test the limits of the current law, and it shows beyond

serious doubt how contribution limits would be eroded if inducement to circumvent them were

enhanced by declaring parties' coordinated spending wide open.” Colorado II, 533 U.S. at 457

(footnote omitted).

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G. Political Parties’ Primary Interest is Winning Elections

116. A primary goal of all the major political parties is to win elections. “The ultimate goal of a

political party is to get as many party members as possible into elective office, and in doing so to

increase voting and party activity by average party members.” (Meehan Decl. at ¶ 5, FEC Exh.

2). “In practice, electing ... candidates is the RNC's primary focus.” McConnell, 251 F. Supp.

2d at 470 (Kollar-Kotelly, J.).

117. Senator McCain testified, in connection with the McConnell litigation, that “[t]he entire

function and history of political parties in our system is to get their candidates elected, and that is

particularly true after the primary campaign has ended and the party’s candidate has been

selected.” (McCain McConnell Decl. ¶ 23 [DEV 8-Tab 29], FEC Exh. 51). Then-RNC

Chairman Haley Barbour stated: “The purpose of a political party is to elect its candidates to

public office, and our first goal is to elect Bob Dole president . . . . Electing Dole is our highest

priority, but it is not our only priority. Our goal is to increase our majorities in both houses of

Congress and among governors and state legislatures.”). (Chairman’s Update to the Members of

the Republican National Committee (Aug. 7, 1996) ODP0021-02003 [DEV 70-Tab 48], FEC

Exh. 54). Senator Bumpers testified that he was “not aware that the party has any interest in the

outcome of public policy debates that is separate from its interest in supporting and electing its

candidates.” (Bumpers McConnell Decl. ¶ 6 [DEV 6-Tab 10], FEC Exh. 50). 

118. State parties also have the primary purpose of winning elections. The “basic role” of the

LA-GOP is “to elect Republican candidates to office.” (LA-GOP 30(b)(6) Dep. at 18-19, FEC

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Exh. 6). LA-GOP is in constant contact with the federal candidates in Louisiana during an

election cycle for the purpose of “[g]etting them elected.” (Id. at 20; Id at 70 (“[C]ertainly we're

concerned about issues, but our main emphasis is to run communication in support of electing

our candidates.”)).

119. The RNC has not been engaged in any sorts of activities that do not reference federal

candidates “in a long time.” (RNC 30(b)(6) Dep. at 143-45, FEC Exh. 5).

H. Plaintiffs’ Factual and Legal Claims

Unambiguously Campaign Related Argument

120. Plaintiffs have challenged, inter alia, the application of coordinated expenditure limits to

party activities that plaintiffs assert are not “unambiguously campaign related.” AVC ¶¶ 52-60,

76-81. (J. Stip. at 9). Plaintiffs explain what they mean by “unambiguously campaign related”

both by listing the few activities that purportedly fall within this category, and by listing many

other activities that plaintiffs believe do not fall within the category. (Id. at ¶¶ 40, 59, 80).

121. Plaintiffs state that the only activities that political parties engage in that are

“unambiguously campaign related” are “(a) communications containing express advocacy

(explicit words expressly advocating the election or defeat of a clearly identified federal

candidate); (b) targeted federal election activity (voter registration, voter identification, get-out

the vote, and generic campaign activities that are targeted to help elect the federal candidate

involved); (c) paying a candidate’s bills; and (d) distributing a candidate’s campaign literature.”

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Plaintiffs claim that no activities by political parties other than the four activities described

above are “unambiguously campaign related” and therefore no others can be regulated or

restricted under the Constitution. (Complaint ¶¶ 59, 80 (Rec. Doc. 35)).

122. Plaintiffs state that coordinated “non-targeted voter registration; non-targeted voter

identification; non-targeted get-out-the-vote activity and non-targeted generic campaign activity”

are not “unambiguously campaign related” and therefore cannot be regulated or restricted. AVC

¶¶ 40, 59, 80. (J. Stip. at 10).

123. Plaintiffs currently claim that virtually all voter registration, voter identification, get-outthe-vote activity and generic campaign activity is “non-targeted.” (RNC 30(b)(6) Dep. at 150-53,

FEC Exh. 5).

124. “[P]arties do not generally engage in ... GOTV activity, voter identification, or voter

registration, for any purpose other than to assist in their efforts to elect party members to public

office.” (Meehan Decl. at ¶ 7, FEC Exh. 2). Voter registration, voter identification, getout- thevote (GOTV) activity, and generic campaign activity as defined by BCRA “clearly capture

activity that benefits federal candidates,” and “funding of such activities creates a significant risk

of actual and apparent corruption.” McConnell, 540 U.S. at 167-68. See McConnell, 251 F.2d at

460 (“Common sense dictates, and it was ‘undisputed’ below, that a party’s efforts to register

voters sympathetic to that party directly assist the party’s candidates for federal office”) (KollarKotelly, J.). See id., at 459 (“‘[The evidence] shows quite clearly that a campaign that mobilizes

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residents of a highly Republican precinct will produce a harvest of votes for Republican

candidates for both state and federal offices. A campaign need not mention federal candidates to

have a direct effect on voting for such a candidate . . . . [G]eneric campaign activity has a direct

effect on federal elections’” (quoting Green Expert Report 14)). Id. (footnote omitted); RNC

Memorandum, Non-Allocable Party Building Programs, RNC 0084450-64 at 0084455 [DEV

101], FEC Exh. 56 (“There are certain election related party expenditures that make no reference

to any specific candidates but do benefit the entire Republican ticket . . . . These generic

programs include voter registration[] and GOTV programs . . . . These programs and projects

benefit the Republican Party and all of its candidates, federal and state.”); Excerpt of Deposition

of Alan Philp from McConnell at 49, FEC Exh. 57 (Chairman of Colorado Republican Party

testifying that state party’s “Get-out-the-vote program is designed to benefit all candidates. That

could include voter registration and so on and so forth. Q. And is the same true of generic party

advertising, in other words, Vote Republican, that’s designed to benefit all the candidates? A.

Yes.”).

125. In 2008, then-RNC Chairman Duncan stated publicly that the RNC’s “prodigious

fundraising” has allowed it to “buil[d] up over a long period of time” a GOTV program and other

“organizational efforts [that] make the difference . . . generally, there’s probably a 2 to 5 percent

difference in additional turnout for a candidate that you make.” (Victory Dream Team,

CONGRESS DAILY, July 29, 2008, 2008 WLNR 14131041, FEC Exh. 18). This “difference”

applies to federal, state, and local candidates. (Id.)

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126. The RNC acknowledges it would like to coordinate with candidates the “nontargeted”

activities within the scope of its claims at least in part “in an effort to help candidates win

elections . . . .” (RNC 30(b)(6) Dep. at 153-54, FEC Exh. 5).

127. If voter registration, voter identification, get-out-the-vote activity or generic campaign

activity takes place in more than one congressional district, plaintiffs consider it “nontargeted.”

(RNC 30(b)(6) Dep. at 151, FEC Exh. 5 (“[if] you were having a voter registration drive in

multiple districts outside of any election, then I don't think that's [] targeted.”)).

128. If voter registration, voter identification, get-out-the-vote activity or generic campaign

activity takes place in only part of a congressional district, Plaintiffs consider it “nontargeted.”

(RNC 30(b)(6) Dep. at 151, FEC Exh. 5 (“If you had a voter registration drive in just one county,

I would say that was a non-targeted voter registration drive, because you're not affecting the

entire district of that candidate.”); Id. at 152 (“Q. So it's only targeted if it's exactly every district,

every part of a district and not anything more, does that make sense? A. Right.”)).

129. If voter registration is done in a district in a manner that references multiple candidates,

plaintiffs consider it “non-targeted.” (RNC 30(b)(6) Dep. at 153, FEC Exh. 5 (“in the example of

the two, two or more candidates being mentioned, the answer is yes, that would not be

targeted”). 

130. What plaintiffs consider “targeted” voter registration rarely happens “because voter

registration is usually done statewide, or even if it’s done within a district, there are multiple

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candidates on a ballot within the district.” (RNC 30(b)(6) Dep. at 150, FEC Exh. 5).

131. Voter identification, registration, or GOTV efforts that are conducted in a geographic area

greater than or smaller than a single congressional district still benefit the campaign of a

candidate running in a district in which the activity is undertaken. (Meehan Decl. at ¶ 25-26,

FEC Exh. 2).

132. Plaintiffs also state that “issue advocacy, including ads that mention candidates” is not an

“unambiguously campaign related” activity and therefore cannot be regulated or restricted, even

within the 90-day or 120-day periods before an election. (AVC ¶¶ 40, 59, 80). According to

plaintiffs, such ads can never constitutionally be regulated unless they contain “explicit words

expressly advocating the election or defeat of a clearly identified federal candidate.” (Id. at ¶¶

59, 80).

133. Plaintiffs state that “public communications of any kind involving support or opposition to

state candidates, support or opposition to political parties, or support or opposition to candidates

generally of a political party” are not “unambiguously campaign related” and therefore cannot be

regulated or restricted. (AVC ¶¶ 40, 59, 80). However, public communications that do not

clearly identify any specific federal candidate are not considered party coordinated

communications under Commission regulations. 11 C.F.R. § 109.37(a).

134. Plaintiffs’ claim, if successful, would enable parties to run unlimited amounts of “issue

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ads” designed to influence federal elections, in coordination with candidates. Among the “issue

ads” that plaintiffs have indicated they would have liked to have coordinated with then-candidate

Cao and run just before the 2008 general election in Louisiana was one addressing former

Congressman William Jefferson’s “pending trial and alleged corruption.” (AVC ¶ 48). 

135. Plaintiffs’ claim, if successful, would enable parties to run unlimited amounts of

“grassroots lobbying” ads designed to influence federal elections, in coordination with

candidates. LA-GOP acknowledges that the reason it would like to coordinate its grassroots

lobbying with candidates is that “it brings the candidate into the message and gives us a greater

chance of electing a candidate.” (LA-GOP 30(b)(6) Dep. at 72, FEC Exh. 6).

136. Congressman Cao testified that if the RNC could have engaged in more coordinated

expenditures with his campaign, his preference would be that “the bulk of the money would go

into – into TV, mailings, radio advertising.” (Cao Dep. at 14-15, FEC Exh. 4). “When a party

can run coordinated expenditures to ensure the candidate’s name and image are on television

during [the last week or so before a general election], this benefits the candidate’s campaign and

may even make the difference between election or defeat.” (Meehan Decl. at ¶ 24, FEC Exh. 2).

137. None of the coordinated communications within the apparent scope of plaintiffs’ claims are

currently restricted by the limits on party coordinated communications until 90 days before a

Congressional or Senate election, or 120 days before a Presidential election. A party

communication prior to these 90-day or 120-day windows before an election is not deemed

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coordinated with a candidate unless it “disseminates, distributes, or republishes . . . campaign

materials prepared by a candidate,” or “expressly advocates the election or defeat of a clearly

identified candidate.” 11 C.F.R. §§ 109.21(c)(2)-(3); 109.37. 

“Own Speech” Arguments

138. Plaintiffs have challenged the constitutionality of limits on party coordinated

communications that represent a party's “own speech.” (AVC ¶¶ 61-64,82-85). (J. Stip. at 10).

139. Plaintiffs currently allege that any time a political party pays for a communication and

discloses publicly that it has done so, it is the party’s “own speech” and therefore limits on such

speech are unconstitutional. (Cao Dep. at 52, FEC Exh. 4 (stating that if a particular

communication is paid for by the party, it is the party’s “own speech.”); LA-GOP 30(b)(6) Dep.

at 124, FEC Exh. 6 (LA-GOP’s “own speech” is “any communication that the LAGOP states

through one form or another, that we have issued it, it is paid for by us ... .”); id. at 133 (it is the

party’s own speech “if we have taken responsibility, quote, ownership, of it by stating that we

have paid for it ... .”); RNC 30(b)(6) Dep. at 124, FEC Exh. 5 (communication becomes a

party’s “own speech” if the party “[a]pprove[s] it and pay[s] for it.”); RNC’s 2nd Discovery

Resps., Interrog. 1, FEC Exh. 10 (communication is a party’s “own speech” whenever it is

indicated as such by “a disclaimer, where one is required, or by the speech being otherwise

identified as the party’s speech.”); LA-GOP’s 2nd Discovery Resps., Interrog. 1, FEC Exh. 11

(same)).

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140. Plaintiffs claim that a party coordinated communication disclosed as having been paid for

by the party is the party’s “own speech” even if a candidate or her campaign is materially

involved in determining when the communication will be broadcast. (AVC ¶¶ 46-47; LA-GOP

30(b)(6) Dep. at 126, FEC Exh. 6). 

141. Plaintiffs claim that a party coordinated communication disclosed as having been paid for

by the party is the party’s “own speech” even if a candidate or her campaign edits the content of

the communication. (LA-GOP 30(b)(6) Dep. at 126-27, FEC Exh. 6; RNC 30(b)(6) Dep. at 167,

FEC Exh. 5 (“the fact that the RNC decided to run it with those edits, it would be the RNC’s

speech.”)).

142. Plaintiffs claim that a party coordinated communication disclosed as having been paid for

by the party is the party’s “own speech” even if a candidate or her campaign decides which out

of a group of proposed party communications should be broadcast. (LA-GOP 30(b)(6) Dep. at

128, FEC Exh. 6; RNC 30(b)(6) Dep. at 166-67, FEC Exh. 5).

143. Plaintiffs claim that a party coordinated communication disclosed as having been paid for

by the party is the party’s “own speech” even if the candidate or her campaign actually creates

the communication and passes it along to the party. (LA-GOP 30(b)(6) Dep. at 127-28, FEC

Exh. 6; RNC 30(b)(6) Dep. at 85-86, FEC Exh. 5 (“initially it would have been the campaign

speech, but, then if the RNC approached to ask if they would buy the time, I think then it

becomes the RNC’s speech.”); id. at 123-24 (“I don’t believe, from a speech perspective, who

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prepares the actual script matters. It’s whether or not the entity would accept that as its speech

and pay for it.”)).

144. Plaintiffs claim that a party coordinated communication disclosed as paid for by the party

is the party’s “own speech” even if a candidate indicates in the communication that he has

approved the message. (LA-GOP 30(b)(6) Dep. at 128-29, FEC Exh. 6; RNC 30(b)(6) Dep. at

86, 107-108, FEC Exh. 5).

145. The only type of party-coordinated communication that plaintiffs believe is not a party’s

“own speech” and therefore may be constitutionally limited is one that a campaign airs and for

which the party merely pays the bill. (LA-GOP 30(b)(6) Dep. at 129-30, FEC Exh. 6 (“If we are

merely paying the bill, that is not our speech.”); id at 145-46 (“Q. Can you think of any other

example of a situation [other than paying a candidate’s bill] where LAGOP would spend money

on a public communication but it would not be LAGOP's own speech? A. No.”); RNC’s 2nd

Discovery Resps., Interrog. 1, FEC Exh. 10 (“merely paying a candidate’s bills is always subject

to coordinated expenditure limits.”); LA-GOP’s 2nd Discovery Resps., Interrog. 1, FEC Exh. 11

(same)).

146. When Plaintiffs described the concept of “own speech” in the Complaint, they did not

allege that party coordinated communications were the party’s “own speech” so long as they

were disclosed to have been paid for by the party. (AVC ¶¶ 62-63, 83). Rather, Plaintiffs stated

that a communication is a party’s “own speech” if it is “‘not functionally identical to

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contributions’ because it is ‘not a mere general expression of support for the candidate and his

views, but a communication of the underlying basis for the support,’ not just ‘symbolic

expression, . . . but a clear manifestation of the party’s most fundamental political views.’” (Id.

at ¶¶ 62, 83 (quoting Colorado II, 533 U.S. at 468 & 468 n.2 (Thomas, J., dissenting) (internal

quotations omitted)). Similarly, Plaintiffs stated in their first written discovery responses that a

communication is a party’s “own speech” if the communication contains the party’s “underlying

basis for support” because such speech would be “more than symbolic expression of support,

even if coordinated.” (RNC’s Discovery Resps., Interrog. 5, FEC Exh. 7; LA-GOP’s Discovery

Resps., Interrog. 5, FEC Exh. 8).

147. Plaintiffs’ Complaint identifies only a single example of what plaintiffs believe would

constitute a communication that falls within the “own speech” category – an advertisement

allegedly written without Congressman Cao’s involvement, but for which the party would

consult with the Congressman as to “the best timing” to run the ad. (AVC ¶¶ 43-44, 46-47).

Factual Claims

148. RNC and LA-GOP each spent their $42,100 expenditure limits under the Party Expenditure

Provision in connection with the campaign of Joseph Cao, and RNC reached its $5,000

contribution limit. RNC and LA-GOP each wanted to make more expenditures that would be

subject to the $5,000 contribution limit and the $42,100 expenditure limit and would have done

so if it were legal to do so. (AVC ¶ 39). (J. Stip. at 8). 

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149. In addition, a specific express-advocacy communication that RNC intended to make, if

legally permitted by the judicial relief sought in this case, is a radio ad (RNC Cao Ad) with the

following script:

Why We Support Cao

The Republican National Committee has long stood for certain core principles, which we

believe are the fundamentals of good government. When it comes to the issues of lower taxes,

individual freedoms and a strong national defense, we need leaders who will stand with the

American people and defend those issues. 

We need leaders who understand that our economy is in a recession, our individual

freedoms are constantly under attack and we continue to fight the global war on terrorism to

keep our families safe.

Joseph Cao understands and fights for those issues. And, that is why we ask you to join

us in supporting him on December 6. It’s important for Louisiana and important for the country.

(AVC ¶ 43). (J. Stip. at 8).

150. RNC intended to coordinate the RNC Cao Ad with Joseph Cao as to the best timing for the

Ad, but otherwise the Ad would not have been coordinated with Cao. (AVC ¶ 44). (J. Stip. at 8).

151. The LA-GOP intended to air an identical ad, and similarly wanted to coordinate with Cao

only as to the timing of the ad. (J. Stip. at 8-9). 

152. Some other specific activities that RNC intended to do and to coordinate with Joseph Cao,

if legally permitted to do so without contribution or expenditure limits by the judicial relief

sought in this case, were the following:

Issue advocacy concerning U.S. Representative William Jefferson, including his:

Position on the pending auto industry bailout;

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Position on serious ethics reform in Congress;

Opposition to off-shore oil-drilling;

Failure to support tax assistance for hurricane victims on the Gulf Coast;

Support for taxpayer funding for Planned Parenthood;

Support for increases in the federal income tax, the marriage tax penalty, the child

tax

credit, investment tax, and the death tax.

(AVC ¶ 45).

153. Some other specific activities that LA-GOP intends to do and to coordinate with Joseph

Cao, if legally permitted to do so without contribution or expenditure limits by the judicial relief

sought in this case, are the following:

issue-advocacy concerning U.S. Representative William Jefferson, including his: (a)

pending trial and alleged corruption; (b) his repeated votes against off-shore oil-drilling;

(c) vote to earmarks funds for a personal library and private office for Rep. Charles B.

Rangel (Charlie Rangel has made campaign contributions to Jefferson); (d) vote against

the financial bailout plan that included tax assistance for hurricane victims on the Gulf

Coast; (e) vote to allow taxpayer funding for Planned Parenthood; (f) repeated votes to

block consideration of the 2001 and 2003 cuts on income tax, the tax marriage penalty,

the child tax credit, investment tax, and the death tax.

issue advocacy and lobbying (direct and grassroots) on pending legislative matters, such

as the auto industry bailout to be considered when Congress reconvenes December 2nd,

encouraging Louisiana Second Congressional District voters to contact Representative

Jefferson and insure that any measure has taxpayer protections and demands a 21st

century business model that includes renegotiated labor contracts. 

(AVC ¶ 48, Buckels Dep. 91:2-8, 96:19-98:9, 99:22-100:16, 100:21-102:10).

154. RNC and LA-GOP want to make similar express-advocacy communications in the future,

and there is a strong likelihood that the circumstances leading to this lawsuit will be repeated,

given the recurring nature of elections, the ongoing existence and intended activities of RNC and

LA-GOP, and the regular recurrence of a broad range of issues in public and congressional

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debate. (AVC ¶ 50). (J. Stip. at 9).

155. During the 2008 cycle, then-candidate Cao’s congressional campaign had receipts of

$242,531, including $5,000 in contributions from the RNC and $500 from the South Carolina

Republican Party, and also had the benefit of $83,971 in coordinated expenditures from the RNC

(using its own and the LA-GOP’s Section 441a(d) authority). (Biersack Decl. ¶ 16, Table 23,

FEC Exh. 3). As of June 30, 2009, Mr. Cao reported receiving more funds for the upcoming

2010 election cycle than he received during the entire 2008 election cycle. In the current cycle,

he has reported $516,957 in total receipts, including $4,560 from LA-GOP, and he has also had

the benefit of $2,822 in coordinated expenditures. (Id.) As of June 30, 2009, Mr. Cao had

already disbursed $185,668 in funds for the 2010 election. (Id.) 

156. As a candidate, Cao found some of the independent expenditures conducted by Republican

party groups to be counterproductive and harmful. His constituents held him accountable for the

content, even though he was not consulted about the content and it was contrary to the goals of

his campaign. (Cao Dep. at 34- 35, 42-43, FEC Exh. 4). (J. Stip. at 9).

IV. Certification of Constitutional Questions

As set forth in Part II, the Cao plaintiffs ask the Court to certify eight questions. The

questions will be addressed in turn, though the second and fifth questions and the third and sixth

questions were addressed jointly by the parties and will be addressed jointly by the Court.

This is not the first time opponents of campaign finance regulation have brought an as

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69

applied challenge to the Constitutionality of a narrow provision of the Act. See, e.g., Citizens

United, Citizens United v. Federal Election Comm’n, _ S. Ct._, 2010 Westlaw 183856 (Jan. 21,

2010); FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL II); Colorado Republican

Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996) (Colorado I). To

say these challenges were narrow is not to say they were insubstantial. In WRTL II, the Supreme

Court held that the so-called “issue ads” that were the subject of that litigation were neither

“express advocacy nor its functional equivalent” and therefore could not be constitutionally

regulated. This holding affected its previous ruling in only a small part of McConnell v. Federal

Election Comm’n, 540 U.S. 93 (2003), but by clarifying the definition of “electioneering

communication” it had a profound impact on the acceptable use of “issue ads.” The Court here

must therefore determine if the Supreme Court’s previous rulings have foreclosed the challenges

before it, or if such a window remains open. 

Overview

“The constitutional power of Congress to regulate federal elections is well-established.” 

Buckley v. Valeo, 424 U.S. 1, 13. It has done so through enacting an intricate statutory scheme

that restricts campaign contributions and expenditures across a broad spectrum of individuals

and entities involved in federal political campaigns. Buckley, 424 U.S. at 12. Nevertheless, in 

Buckley, the Supreme Court concluded that limitations on campaign expenditures, on

independent expenditures by individuals and groups, and on expenditures by a candidate from

his personal funds were violations of freedom of speech and unconstitutional. 424 U.S. 1, 143-

44 (1976). However, campaign contributions, which indicate support for a candidate but not the

underlying reason for the support can be regulated because such regulations only marginally

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impact speech. Id. at 26. The Supreme Court further held that coordinated campaign

expenditures – that is, expenditures that are provided by a donor which is controlled by or

coordinated with a candidate and the campaign – are properly considered functionally equivalent

to contributions, and are therefore also regulable. Id. at 47.

At issue in this case are the contribution and expenditure regulations imposed by law

upon political parties in conjunction with federal election campaigns. More specifically, the

plaintiffs Anh Cao, RNC, and LA-GOP challenge the following provisions of the statute: 2

U.S.C. § 441a(d)(2-3); 2 U.S.C. § 441a(a)(2)(A); and 2 U.S.C. § 441a(a)(7)(B)(i).

A. Question 1 – Standing

Question One of the plaintiffs’ Motion to Certify asks if each of the plaintiffs alleged

sufficient injury to constitutional rights enumerated in the questions to create a constitutional

“case or controversy” within the judicial power of Article III. 

The FEC does not appear to oppose certification of this question, (See Rec. Docs. 28, 74)

and instead argues that the LA-GOP does not have statutory standing to bring a Motion to

Certify under the § 437h of the Act. A plain reading of the Act shows that they are correct: “the

national committee of any political party, or any individual eligible to vote in any election for the

office of President may institute such actions in the appropriate district court of the United

States.” The LA-GOP falls into neither of these groups. The Court therefore certifies Question

1 as non-frivolous, but holds that the LA-GOP does not have standing to appear before the Fifth

Circuit panel on the Motion to Certify.

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12 2 U.S.C. § 441a(d):

Expenditures by national committee, State committee, or subordinate committee of State

committee in connection with general election campaign of candidates for Federal office .

. .

(2) The national committee of a political party may not make any expenditure in

connection with the general election campaign of any candidate for President of

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B. Questions 2 and 5–“Unambiguously Campaign Related”

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court concluded that limitations on

campaign expenditures, on independent expenditures by individuals and groups, and on

expenditures by a candidate from his personal funds are constitutionally infirm as violating

freedom of speech. Id. at 143-44. However, campaign contributions, which are speech primarily

in their symbolic content, can be regulated. Id. at 26. The Supreme Court further held that

because coordinated campaign expenditures are functionally equivalent to contributions, they too

are regulable. Id. at 47.

Before Colorado I, 518 U.S. 604 (1996), the FEC treated all political party expenditures

as coordinated. Colorado II, 533 U.S. 431, 438 (2001). But Colorado I held that limits on a

political party’s independent expenditures were unconstitutional. 518 U.S. at 614. Colorado II,

however, held that limits on a party’s coordinated campaign expenditures, which are considered

contributions under 2 U.S.C. § 441a(a)(7)(B)(i), were constitutional. 533 U.S. at 465.

Questions Two and Five of the Cao plaintiffs’ Motion to Certify are both premised on the

idea that all campaign finance regulations are subject to an “unambiguously campaign related”

requirement. Cao lists four activities that he concedes are, in fact, unambiguously campaign

related: a) express advocacy; b) targeted federal election activity c) disbursements; and d)

campaign literature. Question Two specifically alleges that § 441a(d)(2-3),12 which limits

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the United States who is affiliated with such party which exceeds an amount equal

to 2 cents multiplied by the voting age population of the United States (as

certified under subsection (e) of this section). Any expenditure under this

paragraph shall be in addition to any expenditure by a national committee of a

political party serving as the principal campaign committee of a candidate for the

office of President of the United States.

(3) The national committee of a political party, or a State committee of a political

party, including any subordinate committee of a State committee, may not make

any expenditure in connection with the general election campaign of a candidate

for Federal office in a State who is affiliated with such party which exceeds--

(A) in the case of a candidate for election to the office of Senator, or of

Representative from a State which is entitled to only one Representative,

the greater of-- 

(i) 2 cents multiplied by the voting age population of the State (as

certified under subsection (e) of this section); or 

(ii) $20,000; and 

(B) in the case of a candidate for election to the office of Representative,

Delegate, or Resident Commissioner in any other State, $10,000.

13 2 U.S.C. § 441a:

(a) Dollar limits on contributions . . . 

(2) No multicandidate political committee shall make contributions–

(A) to any candidate and his authorized political committees with respect

to any election for Federal office which, in the aggregate, exceed $5,000

14 2 U.S.C. § 441a:

(a) Dollar limits on contributions . . . 

(7) For purposes of this subsection– . . . 

(B)(i) expenditures made by any person in cooperation, consultation, or

concert, with, or at the request or suggestion of, a candidate, his

authorized political committees, or their agents, shall be considered to be a

contribution to such candidate 

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expenditures “in connection” with a candidate’s campaign, is vague and overbroad. Question

Five alleges that the $5000 limit on contributions from multicandidate political committees to

any candidate under § 441a(a)(2)(A)13 and the provision defining coordinated expenditures as

contributions, § 441a(a)(7)(B)(i),14 are vague, overbroad, and beyond Congress’s authority to

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15 None of the coordinated communications within the apparent scope of plaintiffs’

claims are currently restricted by the limits on party coordinated communications until 90 days

before a Congressional or Senate election, or 120 days before a Presidential election. A party

communication prior to these 90-day or 120-day windows before an election is not deemed

coordinated with a candidate unless it “disseminates, distributes, or republishes . . . campaign

materials prepared by a candidate,” or “expressly advocates the election or defeat of a clearly

identified candidate.” 11 C.F.R. §§ 109.21(c)(2)-(3); 109.37.

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regulate.

In support of their the arguments, the Cao plaintiffs posit a variety of factual

circumstances that they allege would not be “unambiguously campaign related.” For example,

they argue that coordinated “non-targeted voter registration; non-targeted voter identification;

non-targeted get-out-the-vote activity and non-targeted generic campaign activity” are not

“unambiguously campaign related” and therefore cannot be regulated or restricted. (AVC ¶¶ 40,

59, 80).15 In addition, the Cao plaintiffs assert that “issue advocacy, including ads that mention

candidates” is not an “unambiguously campaign related” activity and therefore cannot be

regulated or restricted, even within the 90-day or 120-day periods before an election. (AVC ¶¶

40, 59, 80). According to plaintiffs, such ads can never be constitutionally regulated unless they

contain “explicit words expressly advocating the election or defeat of a clearly identified federal

candidate.” (Id. at ¶¶ 59, 80). The RNC acknowledges it would like to coordinate with

candidates the “nontargeted” activities within the scope of its claims at least in part “in an effort

to help candidates win elections . . . .” (RNC 30(b)(6) Dep. at 153-54, FEC Exh. 5).

The Cao plaintiffs’ primary legal argument is that the courts need to establish a

cognizable line between coordinated party spending that is unambiguously campaign related and

coordinated party spending that is not. (Rec. Doc. 76 at 15). Currently, the FEC promulgates

regulations establishing how to determine whether activities fall within the provisions governing

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16 They also cite New Mexico Youth Organized v Herrera, No. 08-1156 (D. N.M. Aug. 3,

2009) (mem.and order granting summ. j.); Broward Coalition of Condominiums, Homeowners

Associations and Community Organizations v. Browning, No. 4:08-cv-445, 2009 WL 1457972

(same); and National Right to Work Legal Defense and Education Foundation v. Herbert, 581 F.

Supp. 2d 1132, 1149 (D. Utah 2008).

74

coordination. 11 C.F.R. § 109.37. Per these guidelines, party communications are coordinated

expenditures if they disseminate, distribute, or republish campaign materials prepared by a

candidate, if they expressly advocate for a clearly identified candidate, or if they refer to a

clearly identified candidate within specified time windows leading up to elections. The Cao

plaintiffs argue that the FEC’s acknowledgment that some line exists demonstrates a

constitutionally deficient ambiguity in the current statutory language. (Rec. Doc. 76 at 11).

Further, the Cao plaintiffs argue that the Supreme Court has consistently applied some

test–though not necessarily the “unambiguously campaign related” test–to determine whether

communications fall within Congress’s regulatory power. For example, they cite Wisconsin

Right to Life v. FEC (WRTL II), 551 U.S. at 479, for the holding that campaign advertisements

can only be regulated if they are “susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate.” Id. (Rec. Doc. 76 at 15). WRTL II was an as

applied challenge to part of the Bipartisan Campaign Reform Act (BCRA) facially upheld in

McConnell, and held that the line established in McConnell was overbroad as applied to the facts

of the case. Id.

The Cao plaintiffs also point to several decisions in other circuits, most notably North

Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), that they argue demonstrate

that the “unambiguously campaign related” language applies to all campaign finance regulation. 

(Rec. Doc. 76 at 7).16 Similarly, they point to a brief filed in McConnell, 540 U.S. 93, by

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17 As discussed in Part C, infra, the Court holds that the plaintiffs’ similar argument

regarding “own speech” is non-frivolous, because own speech might be sufficiently independent

so as not to be functionally a contribution. See Colorado II, 533 U.S. at 463. 

75

supporters of the BCRA, in which they argued that BCRA was a constitutional “adjustment of

the definition of which advertising expenditures are campaign related.” (Rec. Doc. 62 at 7)

(quoting Brief for Intervenor-Defendants Senator John McCain et al. at 57, McConnell, 540 U.S.

93 (available at http://supreme.lp.findlaw.com/supreme_court/briefs/02-1674/02-

1674.mer.int.cong.pdf).

The FEC makes several counter-arguments. Their strongest arguments are interrelated:

that 1) the unambiguously campaign related language and its cousins are reserved for

expenditures, and have never been applied to contributions, and 2) the expenditure “lines” are

the product of statutory interpretation, not constitutional limitation. (Rec. Doc. 65 at 22-26). 

The Court agrees. Plaintiffs are attempting to conflate the Supreme Court’s jurisprudence

limiting expenditures, where the content of the communication is inherently at issue and “lines”

are inherently necessary, with that limiting contributions, where it is the act of coordination with

political candidates that makes the communication regulable.17

Since Buckley, the Supreme Court has never applied a limiting “line” to coordinated

campaign expenditures. The portion of the Buckley decision that introduced the phrase

“unambiguously campaign related” was explicitly discussing expenditure limits as distinct from

contribution limits: 

In Part I we discussed what constituted a ‘contribution’ for purposes of the

contribution limitations set forth in 18 U.S.C. s 608(b). We construed that term to

include not only contributions made directly or indirectly to a candidate, political party,

or campaign committee, and contributions made to other organizations or individuals but

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76

earmarked for political purposes, but also all expenditures placed in cooperation with or

with the consent of a candidate, his agents, or an authorized committee of the candidate. .

. . So defined, “contributions” have a sufficiently close relationship to the goals of the

Act, for they are connected with a candidate or his campaign.

When we attempt to define “expenditure” in a similarly narrow way we encounter

line-drawing problems. . . . To insure that the reach of s 434(e) is not impermissibly

broad, we construe “expenditure” for purposes of that section in the same way we

construed the terms of s 608(e) to reach only funds used for communications that

expressly advocate the election or defeat of a clearly identified candidate. This reading is

directed precisely to that spending that is unambiguously related to the campaign of a

particular federal candidate. 

Buckley, at 78-80 (emphasis added). 

Further, the line drawn in Buckley was to avoid a Constitutional difficulty, specifically as

to the expenditure provisions of FECA: “in order to preserve the provision against invalidation

on vagueness grounds, [the challenged provision of the FECA] must be construed to apply only

to expenditures for communications that in express terms advocate the election or defeat of a

clearly identified candidate for federal office.” Buckley, at 44. As the Court later explained, the

“express advocacy line” was “an endpoint of statutory interpretation, not a first principle of

constitutional law.” McConnell v. FEC, 540 U.S. 93, 191 (2003). The McConnell court

reiterated, “a plain reading of Buckley makes clear that the express advocacy limitation, in both

the expenditure and the disclosure contexts, was the product of statutory interpretation rather

than a constitutional command. In narrowly reading the FECA provisions in Buckley to avoid

problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither

vague nor overbroad would be required to toe the same express advocacy standard.” 540 US at

191-92. The McConnell court made the above holding in the context of addressing a challenge

to coordinated contributions: “there is no reason why Congress may not treat coordinated

disbursements for electioneering communications in the same way it treats all other coordinated

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18 The same can be said of the district court decisions cited by the plaintiffs.

77

expenditures.” Id. 

The Cao plaintiffs’ reliance on Leake and the McConnell brief is similarly unpersuasive. 

Leake was about state campaign finance law, and the language quoted by Cao was not being

used to put a fine point on the contours of regulable speech18: it was a background explanation of

the state of campaign finance law. 525 F.3d at 281. The FEC’s characterization of this language

as dicta is accurate. Similarly, the brief by members of Congress in McConnell was not adopted

by the high court and in no way reflects controlling precendent.

To the contrary, the high court has expressly noted the distinction in the level of scrutiny

(and tailoring of the law) required for coordinated expenditures as distinct from independent

expenditures. Coordinated expenditures pose a sufficient risk of corruption and circumvention

to warrant stricter regulation. “[S]ubstantial evidence demonstrates how candidates, donors, and

parties test the limits of the current law, and it show beyond a serious doubt how contribution

limits would be eroded if inducement to circumvent them were enhanced by declaring parties’

coordinated spending wide open.” Colorado II, 533 U.S. at 457. However, when an expenditure

is not coordinated, the concern over corrupting influence is significantly reduced because the

candidate is not beholden to the entity making the expenditure. In such cases, an

“unambiguously campaign related” requirement is appropriate, because absent the heightened

risk of corruption (or the appearance thereof) the government’s interest in regulation is greatly

diminished: “[Independent] expenditures [are] not potential alter egos for contributions, . . . and

therefore . . . qualify[] for the most demanding First Amendment scrutiny employed in Buckley.

Thus, in Colorado I, [the Supreme Court] could not assume, ‘absent convincing evidence to the

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78

contrary,’ that the Party’s independent expenditures formed a link in a chain of corruption-byconduit.’” Colorado II, 533 U.S. at 463-64 (quoting Colorado I, 518 U.S. 617). The Colorado II

went on to note that “[t]he absence of prearrangement and coordination of an expenditure with

the candidate or his agent not only undermines the value of the expenditure to the candidate, but

also alleviates the danger that expenditures will be given as a quid pro quo for improper

commitments from the candidate.” 533 U.S. at 463-64 (quoting Buckley, 424 U.S. at 47).

In sum, Supreme Court jurisprudence has repeatedly emphasized that it is the

coordination with the candidate, not the relationship between the speech and a campaign, that

makes the communication Constitutionally regulable: “There is no significant functional

difference between a party’s coordinated expenditure and a direct party contribution to the

candidate, and there is good reason to expect that a party’s right of unlimited coordinated

spending would attract increased contributions to parties to finance exactly that kind of

spending. Coordinated expenditures of money donated to a party are tailor-made to undermine

contribution limits.” Colorado II, 533 U.S. at 464 (footnote omitted). Thus, “the

constitutionally significant fact” that caused to Court to allow independent expenditures in

Colorado I (but disallow coordinated expenditures in Colorado II) “was the lack of coordination

between the candidate and the source of the expenditure.” 533 U.S. at 464 (quoting Colorado I,

518 U.S. 617).

The Cao plaintiffs have not raised arguments sufficient to convince the Court that 2

U.S.C. §§ 441a(d)(2-3), 441a(a)(2)(A), and 441a(a)(7)(B)(I) are vague, overbroad, or beyond

Congress’s authority to regulate. The Court finds Questions 2 and 5 of the plaintiffs’ Motion to

Certify to be frivolous, and DENIES their motion as to these questions. The Court also

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19 “Do the expenditure limits at 2 U.S.C. § 441a(d)(2)-(3) violate the First Amendment

rights of one or more plaintiffs as applied to coordinated expenditures for (a) communications

containing express advocacy and (b) targeted federal election activity?” (Rec. Doc. 19 at 3).

20 “Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) and Coordinated

Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i) (treating coordinated expenditures as

“contributions”) violate the First Amendment rights of one or more plaintiffs as applied to

coordinated expenditures for (a) communications containing express advocacy and (b) targeted

federal election activity?” (Rec. Doc. 19 at 4).

79

GRANTS the FEC’s motion for summary judgment as to these questions.

C. Questions 3 and 6–the "Own Speech" Claims

The Cao plaintiffs’ Questions Three19 and Six20 argue that Colorado II explicitly left

room for an as applied challenge for coordinated expenditures that are the party’s “own speech.” 

(Rec. Doc. 76 at 26). They argue that such speech, even though coordinated, is not “functionally

identical to contributions” and cannot be given the same scrutiny as coordinated expenditures

that are controlled by the candidate. This argument derives from Justice Thomas's dissent in

Colorado II, along with two footnotes in the same case, one in the majority opinion and one from

Justice Thomas’s dissent. In the dissent, Thomas wrote that a wide category of speech that the

Court’s ruling encompassed should have been “entitled to the same protection as independent

expenditures.” 533 U.S. at 467-68. For example, he wrote, “in a situation in which the party

develops a television advertising campaign touting a candidate’s record on education, and the

party simply ‘consult[s]’ with the candidate on which time slot the advertisement should run for

maximum effectiveness. I see no constitutional difference between this expenditure and a purely

independent one.” Id. He reasoned that, based on the language of Buckley, such an

advertisement would not be a “mere general expression of support for the candidate and his

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80

views but a communication of the underlying basis for the support.” Id. at 468. The majority

acknowledged this possibility in their footnote 17: 

Whether a different characterization, and hence a different type of scrutiny, could

be appropriate in the context of an as-applied challenge focused on application of the

limit to specific expenditures is a question that, as Justice THOMAS notes we need not

reach in this facial challenge.

The Party appears to argue that even if the Party Expenditure Provision is

justified with regard to coordinated expenditures that amount to no more than payment of

the candidate’s bills, the limitation is facially invalid because of its potential application

to expenditures that involve more of the party's own speech. But the Party does not tell

us what proportion of the spending falls in one category or the other, or otherwise lay the

groundwork for its facial overbreadth claim.

533 U.S. at 456 n.17. Justice Thomas elaborated: 

The Court makes this very assumption [that all coordinated expenditures are

functionally equivalent to contributions] (“There is no significant functional difference

between a party’s coordinated expenditure and a direct party contribution to the

candidate”). To the extent the Court has not defined the universe of coordinated

expenditures and leaves open the possibility that there are such expenditures that would

not be functionally identical to direct contributions, the constitutionality of the Party

Expenditure Provision as applied to such expenditures remains unresolved. At oral

argument, the Government appeared to suggest that the Party Expenditure Provision

might not reach expenditures that are not functionally identical to contributions. See Tr.

of Oral Arg. 15 (stating that the purpose of the Party Expenditure Provision is simply to

prevent someone “from making contributions in the form of paying the candidate’s

bills”).

Id. at 469 n.2.

Not coincidentally, perhaps, the Cao plaintiffs’ as applied challenge presents just the

situation contemplated by Justice Thomas: the RNC and LA-GOP have developed an

advertisement touting Cao’s record and values and tying them to the Republican party’s core

values, with the following script:

Why We Support Cao

The Republican National Committee has long stood for certain core principles,

which we believe are the fundamentals of good government. When it comes to the issues

of lower taxes, individual freedoms and a strong national defense, we need leaders who

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will stand with the American people and defend those issues. 

We need leaders who understand that our economy is in a recession, our

individual freedoms are constantly under attack and we continue to fight the global war

on terrorism to keep our families safe.

Joseph Cao understands and fights for those issues. And, that is why we ask you

to join us in supporting him on December 6. It’s important for Louisiana and important

for the country.

(J. Stip. at 8). They wanted to coordinate with Cao only as to the timing of running the ad.

The Cao plaintiffs also argue that conveying the “underlying basis for support” is not the

sole means by which parties could bring their coordinated expenditures out from under the

umbrella of “functional” contributions. They assert that by paying for the speech directly

(instead of providing the funds to the candidate to do so), a party is “adopt[ing]” the speech as its

own, “regardless [of] who came up with an idea” or whether the candidate was consulted, and

therefore it is an expenditure, not a contribution. (Rec. Doc. 62 at 13-15). In this as applied

challenge, they argue that the ad described above would be attributable to the party, not the

candidate, because they “bear a disclaimer showing that they paid for them.” (Rec. Doc. 62 at

14). In support, they point to language in Buckley: “While contributions may result in political

expression if spent by a candidate or an association to present views to the voters, the

transformation of contributions into political debate involves speech by someone other than the

contributor.” 424 U.S. at 20-21. 

The FEC attempts to parse the majority’s language in Footnote 17 of Colorado II,

arguing that the Court was merely explaining the limits of its decision. (Rec. Doc. 74 at 12). 

The FEC also argues that the Cao plaintiffs’ argument was foreclosed by the Supreme Court in

Colorado I, when it wrote that “the constitutionally significant fact [in determining whether

party expenditures have a potential for corruption] . . . is the [presence or] lack of coordination

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21 See Findings of Fact Nos. 88 to 100, supra.

82

between the candidate and the source of the expenditure.” 518 U.S. 604, 617 (1996); (Rec. Doc.

74 at 14). They argue that allowing the argued-for exception would allow precisely the type of

circumvention the high court has for so long sought to avoid. (Rec. Doc. 65 at 21). Finally, the

FEC argues that the plaintiffs’ definition of “own speech” is unworkable. (Rec. Doc. 74 at 15-

16). These arguments are ultimately unpersuasive. 

 As discussed in Part B, supra, the Supreme Court has repeatedly affirmed that

coordinated expenditures are comparable to contributions under a First Amendment analysis. 

Buckley, 424 U.S. at 47; Colorado II, 533 U.S. at 457, 463-64. Thus, party communications that

would otherwise be deemed expenditures, when coordinated, become– “functionally” –

contributions. Colorado II, 533 U.S. at 464. Indeed, it is the act of coordination that, to use the

plaintiffs’ terms, arguably make a communication “unambiguously campaign related” and

regulable. The same strong justifications for such a policy discussed above also apply here: if

contributions to a party are used for coordinated communications, donors could easily

circumvent the existing contribution limits by donating to the party instead. Colorado II, 533

U.S. at 464 (“Coordinated expenditures of money donated to a party are tailor-made to

undermine contribution limits”). As has been well documented,21 parties give large donors

privileged access to candidates. Allowing unregulated coordinated expenditures for “own

speech” therefore leads to a heightened risk of circumvention and improper “quid pro quos”

between donors and candidates. Colorado II, 533 U.S. at 464.

Despite these rather persuasive indications that coordinated communications can be

Constitutionally regulated, the plaintiffs’ position is not frivolous. In Buckley, the Supreme

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22 See Findings of Fact Nos. 48 to 51, supra.

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Court explained that contributions and expenditures are distinguishable because contributions

are symbolic and do not convey the “underlying basis for the support.” 424 U.S. at 21. Thus,

where a coordinated expenditure explicitly conveys that underlying basis, it arguably becomes

less symbolic and begins to look more like a “direct restraint on . . . political communication.” 

Id. Because of this reasoning and because the Supreme Court has explicitly contemplated an

analysis of this distinction, this Court finds that plaintiffs’ questions raise issues that are not

frivolous.

In addition to the legal argument above, the Cao plaintiffs also argue that the current

coordination rules are functionally unworkable and prevent parties from actually expressing their

own speech. They assert that there is no way for party officials–who are most familiar with the

desired party message–to involve themselves in independent expenditures made legal in

Colorado I because they are too intimately involved in candidates’ campaigns. Under current

rules, Cao argues, any involvement by those officials would be deemed coordinated, and subject

to the contribution limits of the statute. (Rec. Doc. 77 at 31).22

Because the Court holds that the questions are not frivolous, it need not reach a

conclusion regarding the functionality of the current legal distinction between independent party

expenditures and coordinated party expenditures. The Court notes, however, that the Supreme

Court has previously addressed similar arguments by political parties. In Colorado II, the

political parties argued that coordination was necessary for the parties to operate effectively. 

The Supreme Court summarily rejected that argument: “[t]he assertion that the party is so joined

at the hip to candidates that most of its spending must necessarily be coordinated spending is a

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statement at odds with the history of nearly 30 years under the act. . . . For the Party to claim

after all these years of strictly limited coordinated spending that unlimited coordinated sending is

essential to the nature and functioning of parties is in reality to assert just that ‘metaphysical

identity’ between free-spending party and candidate that we could not accept in Colorado I.” 

533 U.S. at 449-50 (quoting Colorado I, 518 U.S. at 623). Indeed, despite the allegedly

unworkable current independent expenditure system, in the 2008 election cycle parties spent

$280,873,688. (Biersack Decl. ¶ 11, Table 15, FEC Exh. 3). Further, up until 90 days before a

congressional election and 120 days before a presidential election, party communications are not

subject to the coordinated expenditure limit at all, unless the communication “disseminates,

distributes, or republishes . . . campaign materials prepared by the candidate” or “expressly

advocates the election or defeat of clearly identified candidates.” (11 C.F.R. §§ 109.21(c)(2)-(3);

109.37).

Although the Court finds the substance of Questions Three and Six non-frivolous, the

plaintiffs, in their briefing, put a much finer point on the questions than those originally proposed

in the motion to certify. As such, the Court will exercise its discretion in fashioning a question

for the Fifth Circuit that more precisely captures the Constitutional difficulty raised by the

plaintiffs’ arguments. 

Thus, the Court certifies the following question to the Fifth Circuit:

Do the expenditure and contribution limits and contribution provision in 2 U.S.C. §§

441a(d)(2-3), 441a(a)(2)(A), and 441a(a)(7)(B)(I) violate the First Amendment rights of one or

more of plaintiffs as applied to coordinated communications that convey the basis for the

expressed support?

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23 2 U.S.C. § 441a(d):

Expenditures by national committee, State committee, or subordinate committee of State

committee in connection with general election campaign of candidates for Federal office .

. . 

(3) The national committee of a political party, or a State committee of a political

party, including any subordinate committee of a State committee, may not make

any expenditure in connection with the general election campaign of a candidate

for Federal office in a State who is affiliated with such party which exceeds--

(A) in the case of a candidate for election to the office of Senator, or of

Representative from a State which is entitled to only one Representative,

the greater of--

(i) 2 cents multiplied by the voting age population of the State (as

certified under subsection (e) of this section); or

(ii) $20,000; and

(B) in the case of a candidate for election to the office of Representative,

Delegate, or Resident Commissioner in any other State, $10,000. 

85

The FEC’s motion for summary judgment as to Questions Three and Six is DENIED.

D. Question 4 – The Constitutionality of Coordinated Expenditure Limits

Plaintiffs’ Question 4 challenges the constitutionality of the current coordinated

expenditure limits, in three parts:

Do the limits on coordinated expenditures at 2 U.S.C. § 441a(d)(3)23 violate the First

Amendment rights of one or more plaintiffs?

(a) Do all but the highest limits violate such rights because any lower rates are

unsupported by the necessary anti-corruption interest?

(b) Is 2 U.S.C. § 441a(d)(3) facially unconstitutional because lower rates cannot

be severed from higher rates and the voting-age-population formula is

substantially overbroad and inherently unconstitutional?

(c) Is the highest limit for expenditures coordinated with Representatives

unconstitutionally low?”

(Rec. Doc. 19 at 2). These will be addressed in turn.

i. Plaintiffs’ Argument that Lower limits cannot be Constitutionally Justified Under the

Anti-Corruption Rationale

The Cao plaintiffs argue in this part that higher expenditure limits in some districts or for

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86

some political offices logically preclude lower limits from being justified under the anticorruption rationale. Put otherwise, they argue that it is unconstitutional to have a system that

implies “that a Louisiana Senator can be ‘bought’ for a little more [than] a quarter million dollars

but it takes more than two million dollar to ‘buy’ a California Senator.” (Rec. Doc. 19-2 at 12).

Plaintiffs rely on a decision in Eastern District of California, California Council Political

Action Committee v. Scully, 989 F. Supp 1282 (E.D.Cal. 1998) for their first argument. There,

the court held that a California statute that imposed variable campaign contribution limits

depending on whether candidates agreed to expenditure limits was not closely drawn, and

violated the First Amendment. Id. at 1292, 1296. 

The state financing system at issue in California Prolife is distinguishable from that

established by § 441a(d)(3) because the California funding system created variable limits for the

exact same candidate, depending on her own choice: 

The statute prohibits any person, broadly defined to include virtually any entity other

than a political party and a small contributor committee (as defined by the statute), from

contributing more than $100 per election in small local districts (less than 100,000

residents), $250 per election for Senate, Assembly, Board of Equalization and large local

districts, and $500 per election for statewide office. Section 85301(a)-(c). These limits

are increased to $250, $500 and $1,000, respectively, for candidates who agree to

specified expenditure limits. 

Id. at 1292 (footnote omitted). In this system, the same candidate could be subjected to two

different contribution limits–one if they agreed to expenditure limits, and one if they did not. Id.

at 1296. This difference led the court to conclude that the lower limit was not closely drawn to

prevent corruption, because a candidate’s choice to adhere to expenditure limits is a

“constitutionally noncognizable condition[].” Id. 

In contrast, the expenditure limit differences that result from § 441a(d)(3) do not occur

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87

within the same race. Rather, they vary with the office sought and size (in population) of the

state. As such, plaintiffs’ reliance on California Prolife is not persuasive. Nonetheless, the

question remains whether Congress has discretion within the anti-corruption rationale to set

variable limits to coordinated expenditure limits based on these criteria.

In Davis v. FEC, 128 S. Ct. 2759 (2008), the Supreme Court noted that its decision in

Colorado II upheld the “facial constitutionality” of coordinated party expenditures. Id. at 2771. 

In striking down a provision of BCRA that applied different limits to candidates in the same race

depending on whether one candidate reached a $350,000 threshold in personal spending, the

Court noted that it has “never upheld the constitutionality of a law that imposes different

contribution limits for candidates who are competing against each other.” Id. at 2770-71

(emphasis added). Despite ample opportunity, the Court did not comment on the

constitutionality of having different limits for candidates in different races. Similarly, in Nixon

v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000), the Supreme Court was faced with a state

campaign finance system that imposed variable contribution limits “depending on specified state

office or size of constituency.” Id. at 382. The statute at issue was challenged for setting

unconstitutionally low limits. Id. at 383. Again, despite being squarely presented with statutes

comparable in nature to § 441a(d)(3), the Court did not address, much less criticize, the notion

that different limits could apply in different races and geographic regions. Id. at 382-84; see also

Randall v. Sorrell, 548 U.S. 230, 248 (2006) (striking down unconstitutionally low limits in

Vermont campaign finance law without addressing variable limits for different offices). 

In Buckley, the Supreme Court held that the judiciary has “no scalpel to probe” each

possible contribution level, 424 U.S. at 30 (quoting Buckley v. Valeo, 519 F.2d 821, 842 (D.C.

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24 See Part D.iii, infra.

88

Cir. 1975)), and noted that such complex line drawing – which is “necessarily a judgmental

decision” – is best left to congressional discretion. Id. at 83. It is legislators, not judges, who are

best equipped with the “particular expertise” to assess what limits will adequately prevent

corruption among their peers. Randall, 548 U.S. at 248.

Absent unconstitutionally low limits,24 it is consistent with the anti-corruption rationale

to allow Congress the discretion to set different coordinated expenditure limits in different races

in different states. The Court therefore holds that the plaintiffs’ Question 4(a) is frivolous.

ii. Plaintiffs’ Argument on Severability

Plaintiffs next argue that 2 U.S.C. § 441a(d)(3) is facially unconstitutional because lower

rates cannot be severed from higher rates and the voting-age-population formula is substantially

overbroad and inherently unconstitutional. The second part of this subpart – that the formula is

overbroad and inherently unconstitutional – has already been addressed in Part i. The variable

rate formula is constitutional. As such, the first part–that the lower rates cannot be “severed”

from the higher rates – does not need to be addressed.

iii. Plaintiffs’ Argument that the Highest Limits are Unconstitutionally Low

The Cao plaintiffs argue that Randall v. Sorrell, 548 U.S. 230 (2006) stands for the

proposition that low expenditure limits can be unconstitutional. They are correct. In Randall,

the Court held that “limits that are too low can also harm the electoral process by preventing

challengers from mounting effective campaigns against incumbent officeholders, thereby

reducing democratic accountability.” Id. at 249. In that case, the Vermont statute imposed the

following contribution limits, not indexed for inflation: “The amount any single individual can

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89

contribute to the campaign of a candidate for state office during a ‘two-year general election

cycle’ is limited as follows: governor, lieutenant governor, and other statewide offices, $400;

state senator, $300; and state representative, $200.” Id. at 238. After noting the Court’s

reluctance to second guess the Vermont legislature, it nonetheless held that when there is

a“strong indication in a particular case, i.e., danger signs, that such risks [of harming the

electoral process] exist (both present in kind and likely serious in degree)” it is the courts’ duty

to review the proportionality of the restrictions. Id. at 249. In the Vermont statute, the Court

saw three such danger signs. First, the limits, adjusted for inflation, were well below those

approved in Buckley ($57 per election compared to $1000 per election). Id. at 250. Second, the

Vermont statute imposed the lowest contribution limits in the nation. Id. at 250-51. Finally, the

limit was lower than the lowest limit previously upheld by the Supreme Court, $1075 for

Missouri state auditor. Id. at 251.

However, the Cao plaintiffs have not presented any evidence that would lead the Court to

question the current expenditure limits. Although the Cao plaintiffs argue otherwise (Rec. Doc.

77 at 41-42), it is the candidate’s speech that is affected by the magnitude of the contribution

limits, and it is the ability of the candidate to speak effectively that the Court must safeguard. 

See Buckley, 424 U.S. at 21 (“contribution restrictions could have a severe impact on political

dialogue if the limitations prevented candidates and political committees from amassing the

resources necessary for effective advocacy”); Shrink, 528 U.S. at 397 (“We asked, in other

words, whether the contribution limitation was so radical in effect as to render political

association ineffective, drive the sound of a candidate’s voice below the level of notice, and

render contributions pointless”).

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25 During the 2008 cycle, then-candidate Cao’s congressional campaign had receipts of

$242,531. As of June 30, 2009, he had reported $516,957 in total receipts. (Biersack Decl. ¶ 16,

Table 23, FEC Exh. 3)

26 2 U.S.C. § 441a:

(a) Dollar limits on contributions

(2) No multicandidate political committee shall make contributions--

(A) to any candidate and his authorized political committees with respect

to any election for Federal office which, in the aggregate, exceed $5,000

90

Thus, the warning signs suggest in Randall are not present here. Indeed, the Randall

decision reaffirmed that the limits approved in Buckley, far from being constitutionally suspect,

should be used as a benchmark. Id. at 250. The FEC has presented ample evidence that Cao was

able to secure significant funding for his campaign,25 and Cao has not countered with any

evidence that the effect of Cao’s political speech was weakened by lack of resources. 

The Court therefore DENIES the Cao plaintiffs’ Motion to Certify Question 4, in its

entirety, and GRANTS the FEC’s motion for summary judgment.

E. Question 7 – Whether the $5000 Contribution Limit in 2 U.S.C. § 441a(2)(A) is

Unconstitutional because it Imposes the same Limits on Parties as it does Political Action

Committees

The Cao plaintiffs next argue that 2 U.S.C. § 441(a)(2)(A),26 is “per se unconstitutional”

because it imposes the same limit on parties that it does on political action committees (PACs). 

In support, the Cao plaintiffs again rely primarily on Randall v. Sorrell, 548 U.S. 230 (2006). In

striking down Vermont’s campaign finance statute, the Randall court noted that the statute’s

“insistence that political parties abide by exactly the same low contribution limits that apply to

other contributors threatens harm to a particularly important political right, the right to associate

in a political party.” Id. at 256 (emphasis in original). 

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Such a restriction is constitutionally problematic because it diminishes the benefits that

parties seek to obtain by pooling the collective resources of their members. Thus, the Randall

court was concerned that contribution limits that failed to distinguish between parties and

individuals demonstrated that the Vermont legislature had not balanced “the need to allow

individuals participate in the political process by contributing to political parties that help elect

candidates with . . . the need to prevent the use of political parties ‘to circumvent contribution

limits that apply to individuals.” Id. at 258 (quoting Colorado II, 533 U.S. at 453). This

shortcoming in the statute “prevent[s] a political party from using contributions by small donors

to provide meaningful assistance to any individual candidate.” Id. at 258. Although the

Supreme Court in that case raised the associational rights concern as one among a host of flaws

that ultimately caused the Court to hold that the Vermont statute was unconstitutional, id. at 253,

that it was one among many does not reduce the validity of the constitutional deficiency. 

The provision at issue in this case raises many of the same problems, though in a slightly

different context. The Cao plaintiffs complain not that the provision in the Act treats parties

identically to the way it treats individuals, as was the concern in Randall, but rather that it does

not distinguish between parties and PACs. 

Political parties occupy a unique role in American politics. A primary goal of all the

major political parties is to win elections. “The ultimate goal of a political party is to get as

many party members as possible into elective office, and in doing so to increase voting and party

activity by average party members.” (Meehan Decl. at ¶ 5, FEC Exh. 2). “In practice, electing

... candidates is the RNC's primary focus.” (McConnell, 251 F. Supp. 2d at 470 (Kollar-Kotelly,

J.)). See also Randall, 548 U.S. at 257-58 (“[individuals contribute] with the intent that party

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27 The FEC argues that political parties’ statutory advantages compared to PACs should

lead the Court to the conclusion that applying equal contribution limits is constitutionally

permissible. (Rec. Doc. 65 at 50). Although it is true that parties, unlike PACs, are permitted to

make coordinated expenditures, 2 U.S.C. § 441a(d)(3), and have other comparative advantages

(Rec. Doc. 65 at 50), this is equally an argument for why political parties are inherently different

from PACs and should not be tied to the same contribution limits. Further, given the low

threshold for certifying questions to the Fifth Circuit, this Court is not in a position to weigh the

relative advantages of the various provisions within the Act.

92

use its money to help elect whichever candidates the party believes would best advance its ideals

and interests – the basic object of a political party”) (emphasis added). Senator McCain

testified, in connection with the McConnell litigation, that “[t]he entire function and history of

political parties in our system is to get their candidates elected, and that is particularly true after

the primary campaign has ended and the party’s candidate has been selected.” (McCain

McConnell Decl. ¶ 23 [DEV 8-Tab 29], FEC Exh. 51). 

In contrast, PACs are “most concerned with advancing their narrow interests and

therefore provide support to candidates who share their views, regardless of party affiliation.” 

Colorado II, 533 U.S. at 451 (internal quotes omitted). Indeed, many PACs contribute to both of

the major national parties in the same election cycle, under the belief that donating to a party

“helps you legislatively.” Id. at 452 n.12. “Parties are thus necessarily the instruments of some

contributors whose object is not to support the party’s message or to elect party candidates

across the board, but rather to support a specific candidate for the sake of a position on one

narrow issue, or even to support any candidate who will be obliged to the contributors.” Id. at

451-52. Parties, therefore, are funded by groups and individuals with many and varying

interests. The unique purpose of parties, as compared to other political associations like PACs,

arguably entitles it to heightened constitutional protection.27

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28 Plaintiffs’ argument that parties cannot corrupt their own candidates is not persuasive. 

(Rec. Doc. 62 at 28). The cases cited do not support such a claim, and the Colorado II court

noted that among the motives that contributors may have in donating to a political party is “to

support any candidate who will be obliged to the contributors.” 533 U.S. at 452. The Court sees

no reason why this would not apply equally to parties. Regardless, plaintiffs’ corruption interest

argument is not essential to the issue they raise regarding the constitutionality of the contribution

limits.

93

The FEC argues that the Supreme Court foreclosed this question in Buckley and in

Colorado II. It did not. The cited portion of Buckley mentioned the predecessor to §

441a(2)(A), but did so only in the context of discussing ad hoc political groups as opposed to

“established interest groups.” 424 U.S. at 36. Political parties were not mentioned, nor was the

constitutionality of undifferentiated limits. Similarly, the portion of Colorado II cited by the

FEC dealt exclusively with coordinated expenditures, not contributions. 533 U.S. at 448-49. As

has been thoroughly discussed above, contributions and expenditures require distinct

constitutional analysis. In fact, the Colorado II court suggested that parties might warrant

additional constitutional protections, but declined to address the question. “There is some

language in our cases supporting the position that parties’ rights are more than the sum of their

member’s rights, e.g., California Democratic v. Jones, 530 U.S. 567, 575 (2000) (referring to the

‘special place’ the First Amendment reserves for the process by which political party selects a

standard bearer); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 373 (1997) (Stevens, J.,

dissenting), but we have never settled upon the nature of any such difference and have no reason

to do so here.” Colorado II, 533 U.S. at 448 n.10. This acknowledgment by the high court that

parties may possess uniquely protected associational rights is sufficient for this Court to hold

that Question 7 is non-frivolous.28 

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F. Question 8 – Whether 2 U.S.C. § 441a(a)(2)(A) Facially Violates the First Amendment Rights

of the Plaintiffs

Finally, plaintiffs’ Question 8 raises the issue whether the $5,000 contribution limit in §

441a(a)(2)(A) facially violates the First Amendment rights of any of the plaintiffs. They raise

three challenges, addressed in turn below.

(a) The limit is not adjusted for inflation, creating multiple lower contribution limits in

years after passage of the statute and thereby vitiating any anti-corruption interest in all but the

highest limit. (Rec. Doc. 19-2 at 16)

The Cao plaintiffs first argue that because the contribution provision is not indexed to

inflation, and remains at the same level, $5000, as it was in 1976 when Buckley initially

addressed the FECA, it can no longer be justified as necessary under the anti-corruption interest. 

(Rec. Doc. 19-2 at 16). In Randall, the Supreme Court held that a failure to index to inflation

can be constitutionally significant: “[a] failure to index limits means that limits which are already

suspiciously low will almost inevitably become too low over time.” 548 US at 261. 

The Randall court found the Vermont statute constitutionally infirm after examining five

areas in which the statute was suspect and concluding that “[t]aken together” the act was not

closely drawn. Id. at 253 (emphasis in original). Thus, failure to index, taken on its own, is

certainly not fatal to a campaign finance statute. Indeed, the Buckley court approved unindexed

limits in 1976. See 424 U.S. at 35. Further, there is no evidence that the challenged limits were

“suspiciously low” in 1976. 

However, as the Cao plaintiffs point out, $5000 in 1976 is nearly $19,000 in today’s

terms. (Rec. Doc. 77 at 48) (applying the U.S. Department of Labor Inflation Calculator). 

Assuming that the $5000 limit was based on a Congressional determination about corruption,

legislative inactivity for thirty years presents a valid basis for a facial challenge – if Congress

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determined that $5,000 in 1976 was the proper balance of political expression and prevention of

corruption, arguably that limit must approach $19,000 today, and $5,000 might be

unconstitutionally low. The Court therefore finds Question 8(a) to be non-frivolous.

(b) The additional $35,000 that may be contributed to candidates for Senator, 2 U.S.C. §

441a(h) (adjusted for inflation to $39,900, 73 Fed. Reg. 8698), creates disparate limits so that (i)

the higher limit as to candidates for Senator vitiates the anti-corruption interest as to any lower

amount for candidates for Senator and (ii) the higher limit as to candidates for Senator also

vitiates the anti-corruption interest as to any lower amount for candidates for Representative. 

(Rec. Doc 19-2 at 16).

The Cao plaintiffs next argue that the provision in 2 U.S.C. § 441a(h) that allows parties

to contribute an additional $35,000 (now adjusted to $39,900) to candidates for Senate vitiates

the anti-corruption interest of any lower limits for either Senators or Representatives. As

discussed in Part D.i, supra, the Court does not find these arguments persuasive. Complex line

drawing regarding the anti-corruption interest is “necessarily a judgmental decision” best left to

congressional discretion. Buckley, 424 U.S. at 83. The Court finds this subpart of Question 8 to

be frivolous. 

(c) The limit is simply too low to allow political parties to fulfill their historic and

important role in our democratic republic. (Rec. Doc. 19-2 at 16).

Lastly, the Cao plaintiffs argue that the $5,000 contribution limit in 2 U.S.C. §

441a(a)(2)(A) is too low to allow political parties to “fulfill their historic and important role in

the democratic republic.” (Rec. Doc. 19-2 at 16). Much like their argument in Question 4, that

the coordinated expenditure limit in 2 U.S.C. § 441a(d)(3) is unconstitutionally low, the

plaintiffs make this suggestion without providing evidence to support the claim. As to Question

4, the Court held that the determination of whether the limits are too low must be made by

reference to the candidate’s ability to engage in political speech. In rejecting the claim, the

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96

Court noted the evidence in the record indicating that Representative Cao raised significant

funds in the recent election cycles.

Here, however, the Cao plaintiffs more plainly emphasize the effect on the party itself,

suggesting that the party is somehow unable to function under the current contribution limits. 

They quote Randall for two arguments in support of this claim: 1) that low limits limit the ability

of a party to “assist its candidate’s campaigns” and 2) that low limits “hinder the need to allow

individuals to participate in the political process by contributing to political parties.” (Rec. Doc.

19-2 at 18) (quoting Randall, 548 U.S. at 257).

Again, the facts presented belie the Cao plaintiffs’ unsupported arguments. In the 2008

election cycle, parties supported their federal candidates with a total of $529,262 in

contributions, $31,256,379 in coordinated expenditures, and $54,563,499 in independent

expenditures. (Biersack Decl. ¶¶ 8, 12, 15, Tables 6-9, 16, FEC Exh. 3). If the limits are

hindering the parties' ability to support candidates, that evidence is not before the Court, and the

plaintiffs have not provided any legal arguments that would support certifying this question for

the Fifth Circuit.

The Court therefore holds that Question 8, subpart c is frivolous.

V. Conclusion

Accordingly, 

IT IS ORDERED that plaintiffs’ Motion to Strike (Rec. Doc. 78) is DENIED. Plaintiffs’

Motion to Certify (Rec. Doc. 19) is GRANTED IN PART. The following questions are to be

certified to the en banc panel of the Fifth Circuit Court of Appeals:

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97

1) Has each of the plaintiffs alleged sufficient injury to constitutional rights enumerated

in the following questions to create a constitutional “case or controversy” within the

judicial power of Article III?

2) Do the expenditure and contribution limits and contribution provision in 2 U.S.C. §§

441a(d)(2-3), 441a(a)(2)(A), and 441a(a)(7)(B)(i) violate the First Amendment rights of

one or more of plaintiffs as applied to coordinated communications that convey the basis

for the expressed support?

3) Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) violate the First

Amendment rights of one or more plaintiffs as applied to a political party’s in-kind and

direct contributions because it imposes the same limits on parties as on political action

committees?

4) Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) facially violate the

First Amendment rights of one or more plaintiffs because it is not adjusted for inflation?

IT IS FURTHER ORDERED that defendant’s Motion for Summary Judgment (Rec. Doc.

69) is granted as to all remaining claims. 

Plaintiff LA-GOP does not have standing to bring the certified questions before the en

banc panel. Those questions remain before the Court.

New Orleans, Louisiana, this 27th day of January, 2010. 

______________________________

HELEN G. BERRIGAN

UNITED STATES DISTRICT JUDGE

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