UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) Civ. No. 14-853 (CRC) 

 ) 

 v. ) MEMORANDUM IN SUPPORT OF 

 ) MOTION FOR RULE 56(d) RELIEF 

FEDERAL ELECTION COMMISSION, ) AND IN OPPOSITION TO 

 ) SUMMARY JUDGMENT

 Defendant. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

SUPPORT OF MOTION TO ALLOW TIME FOR DISCOVERY UNDER RULE 56(d) 

AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Greg Mueller 

Charles Kitcher 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

July 31, 2014 (202) 694-1650 

Case 1:14-cv-00853-CRC Document 27 Filed 07/31/14 Page 1 of 13
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TABLE OF CONTENTS 

 Page 

I. BACKGROUND .................................................................................................................2 

A. The Parties and the Challenged Provisions ........................................................2 

B. Procedural History .............................................................................................3 

II. THE COURT SHOULD GRANT THE COMMISSION’S RULE 56(d) MOTION 

 AND DENY PLAINTIFFS’ SUMMARY JUDGMENT MOTION IN ORDER 

 TO ALLOW ADEQUATE TIME FOR DISCOVERY ......................................................5 

A. Plaintiffs’ Summary Judgment Motion is Premature Because It Was 

Filed Soon After the Complaint and Before Adequate Time for Discovery .....5 

B. Rule 56(d) Bars Plaintiffs from Railroading the FEC into Summary 

Judgment Briefing Without Discovery Essential to Its Defense of This 

Constitutional Challenge ....................................................................................7 

III. CONCLUSION ..................................................................................................................11 

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Pursuant to Federal Rule of Civil Procedure 56(d), defendant Federal Election 

Commission (“FEC” or “Commission”) requests that the Court deny plaintiffs’ premature 

motion for summary judgment in order to allow the FEC time to discover facts necessary to its 

defense. Plaintiffs have moved for summary judgment before the FEC has even answered their 

Complaint, which asserts constitutional challenges to political party contribution limits, 

prohibitions on receiving and spending soft money, and associated prohibitions on the 

solicitation of soft money. Without discovery, the Commission cannot gather and present facts 

essential to counter these claims. As the FEC explains in its accompanying declaration, if this 

Rule 56(d) motion is granted, the FEC will conduct discovery of plaintiffs and others to show the 

threats of quid pro quo corruption and its appearance that exist today in the case of national, 

state, and local party committees like the plaintiffs, as applied to funds raised in unlimited 

amounts to finance party independent expenditures supporting federal candidates. 

For decades, courts have stressed the importance of a full factual record in cases 

involving, as this one does, constitutional challenges to the Federal Election Campaign Act, 2 

U.S.C. §§ 431-57 (“FECA”). Indeed, a district court in the Eastern District of Virginia recently 

granted the FEC’s Rule 56(d) motion where political committee claimants had likewise sought 

summary judgment immediately after filing a constitutional challenge to FECA, concluding that 

an “adequate factual record is necessary for proper consideration of plaintiffs’ constitutional 

claims.” (See FEC’s Notice of Supplemental Authority (“FEC Supp. Auth.”) at 2 (Docket No. 

19).) In fact, the plaintiffs in this case asserted in their Complaint that defending the provisions 

they challenge “requires evidence” of how the provisions address the government’s interests in 

preventing corruption and its appearance. (Verified Compl. for Declaratory and Injunctive 

Relief (“Compl.”) ¶¶ 40, 47, 54 (Docket No. 1).) This Court should therefore grant the 

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Commission’s Rule 56(d) motion and deny plaintiffs’ summary judgment motion to allow the 

agency adequate time for discovery, subject to the renewal of plaintiffs’ motion after discovery. 

I. BACKGROUND 

A. The Parties and the Challenged Provisions 

The FEC is the independent agency of the United States government with statutory 

authority over the administration, interpretation, and civil enforcement of FECA. See 2 U.S.C. 

§§ 437c(b)(1), 437d(a)(7)-(8), 437g, 438(a)(8). Congress enacted FECA primarily “to limit the 

actuality and appearance of corruption resulting from large individual financial contributions.” 

Buckley v. Valeo, 424 U.S. 1, 26 (1976). To that end, individuals are not permitted to make 

contributions to “political committees established and maintained by a national political party” in 

excess of $32,400 in a calendar year. 2 U.S.C. 441a(a)(1)(B); Price Index Adjustments for 

Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8530-32 (Feb. 6, 2013). National party committees like the plaintiff Republican National 

Committee (“RNC”) may not solicit, receive, direct, or spend funds that have been raised in 

excess of that national-party contribution limit. 2 U.S.C. § 441i(a). Nor can officers or agents of 

the RNC, such as plaintiff Reince Priebus, solicit such funds. Id. 

Under FECA, contributions to state and local party committees may not exceed $10,000 

per year. 2 U.S.C. § 441a(a)(1)(D). With certain exceptions not at issue here, that contribution 

limit represents the annual amount that such committees, including plaintiffs Republican Party of 

Louisiana, Jefferson Parish Republican Parish Executive Committee, and Orleans Parish 

Republican Executive Committee, can receive from an individual donor in a calendar year in 

order to make federal contributions or expenditures, 2 U.S.C. § 431(4), or pay for “Federal 

election activity.” 2 U.S.C. § 441i(b). FECA does not limit the amount that state and local 

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parties may receive from donors for other purposes. 

There are no limits on the amounts that political parties can spend to make independent 

expenditures. Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 617 (1996)

(“Colorado I”). FECA defines “independent expenditure” as an expenditure “(A) expressly 

advocating the election or defeat of a clearly identified candidate; and (B) that is not made in 

concert or cooperation with or at the request or suggestion of such candidate, the candidate's 

authorized political committee, or their agents, or a political party committee or its agents.” 2 

U.S.C. § 431(17); see also 11 C.F.R. § 109.30 (“Political party committees may make 

independent expenditures subject to the provisions in this subpart.”). However, such 

independent expenditures must be made with funds raised within the federal contribution limits. 

2 U.S.C. §§ 441a(a)(1)(B), (D). 

Plaintiffs allege that these provisions are unconstitutional as applied to certain activities 

they wish to engage in. Specifically, plaintiffs argue that (1) political parties have a 

constitutional right to accept unlimited contributions for the exclusive purpose of engaging in 

federal independent expenditures (Compl. ¶¶ 35-42 (Docket No. 1)); (2) party officers and agents 

have a constitutional right to solicit and direct such unlimited contributions (id. ¶¶ 43-47); and 

(3) state and local parties have a constitutional right to accept unlimited contributions for 

engaging in “independent” federal election activity (id. ¶¶ 48-54). Among other relief, plaintiffs 

seek a judgment declaring these provisions unconstitutional. (Id. at 18-19, Prayer for Relief ¶¶ 

1-12.) 

B. Procedural History 

On May 23, 2014, plaintiffs filed this suit. (Compl. (Docket No. 1).) One week later, 

plaintiffs filed an application to have the case heard by a three-judge court (Am. Appl. For Three 

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Judge Ct. & Mem. in Supp. (Docket No. 5)) and a motion to expedite the proceedings (Pls.’ Mot. 

to Expedite This Action (“Expedition Mot.”) (Docket No. 6)). The motion for expedition asked 

the Court to impose an unspecified “limit” on discovery and to “change the limits for summaryjudgment filings.” (Expedition Mot. at 1.) The FEC’s opposition to the expedition motion 

explained, among other things, that such expedition would be prejudicial and that the FEC 

should be permitted to engage in discovery to defend the challenged provisions. (FEC’s Opp’n 

to Pls.’ Mot. to Expedite This Action (“FEC Expedition Opp.”) at 13-16 (Docket No. 18).) The 

FEC’s opposition to the application for a three-judge court explained that the convening of such 

a court would be improper in part because some of this case is subject to FECA’s special review 

provision, 2 U.S.C. § 437h, which grants exclusive merits jurisdiction over any non-frivolous 

claims made by certain persons to the en banc court of appeals, not the district court. See FEC’s 

Opp’n to Pls.’ Appl. for a Three-Judge Ct. (“FEC Three-Judge Court Opp.”) at 22-24 (Docket 

No. 17); see also Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013). 

On July 10, 2014, the parties conferred by phone pursuant to Rule 26(f) to devise a 

discovery plan, at which time the FEC again stated that it intended to take discovery to defend 

the challenged provisions. (See Decl. of Counsel in Supp. of FEC’s Mot. to Allow Time for 

Disc. Under Rule 56(d) (“Nesin Decl.”) ¶ 5 (Docket No. 27-1).) Plaintiff’s counsel indicated 

that plaintiffs were likely amenable to at least a limited period of discovery, subject to further 

discussion with plaintiffs. (Id.) The FEC also noted during the conference that, to the extent this 

case is subject to the mandatory procedures of 2 U.S.C. § 437h, this Court must make findings of 

fact but lacks jurisdiction to rule for plaintiffs on the merits, and therefore it would not be able to 

grant summary judgment to at least three of the six plaintiffs. (Id. ¶ 6.) Four days after the 

phone conference, and only two days prior to the Court’s hearing on the motion for expedition 

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and application for a three-judge panel, plaintiffs moved for summary judgment. (Pls.’ Mot. for 

Summ. J. (“Pls.’ Mot.”) (Docket No. 25).) In the joint scheduling report filed on July 24, 2014, 

the Commission proposed a discovery and briefing schedule consistent with many past 

constitutional challenges to FECA. (Joint Scheduling Report at 7-9 (Docket No. 26).) In their 

portions of the report, plaintiffs retreated from the suggestion that even “limit[ed]” discovery 

might be appropriate (compare Pls.’ Reply to Def’s Response to Pls.’ Mot to Expedite this 

Action at 3 (Docket No. 22) (protesting the FEC’s characterization that the plaintiffs were 

arguing for no discovery at all)) and suggested that the Court enter a scheduling order that 

deprives the Commission of any discovery (Joint Scheduling Report at 5-7). 

Several matters already pending before the Court, therefore, may affect the conduct of 

discovery and merits briefing in this case. The pending decision on the three-judge court 

application will determine whether a statutory expedition provision applies, and may result in a 

determination that the Court lacks jurisdiction to grant summary judgment to some plaintiffs. 

II. THE COURT SHOULD GRANT THE COMMISSION’S RULE 56(d) MOTION 

AND DENY PLAINTIFFS’ SUMMARY JUDGMENT MOTION IN ORDER TO 

ALLOW ADEQUATE TIME FOR DISCOVERY 

A. Plaintiffs’ Summary Judgment Motion Is Premature Because It Was Filed 

Soon After the Complaint and Before Adequate Time for Discovery 

As the Commission explained in detail in its opposition to the plaintiff’s motion for 

expedition, plaintiffs have ignored the general rule that “summary judgment is premature unless 

all parties have ‘had a full opportunity to conduct discovery.’” Convertino v. DOJ, 684 F.3d 93, 

99 (D.C. Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)); see

FEC Expedition Opp. at 5-11 (Docket No. 18). Due process requires courts to “afford the parties 

a full opportunity to present their respective cases” before ruling on the merits. Univ. of Tex. v. 

Camenisch, 451 U.S. 390, 395 (1981) (citation and quotation marks omitted); see also Edward 

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Brunet, The Timing of Summary Judgment, 198 F.R.D. 679, 687 (2001) (“[I]t would be patently 

unfair to permit a judgment to be entered against a person without affording that party the 

opportunity to gather and submit evidence on his or her behalf.”). 

 Numerous Federal Rules of Civil Procedure embody the bedrock requirement that parties 

must have an adequate opportunity to gather evidence to defend themselves. Rule 56(b) sets the 

default deadline for filing a motion for summary judgment at “30 days after the close of all 

discovery.” Rule 56(d)(2) expressly contemplates deferring summary judgment in order to 

“allow time” for the non-movant “to take discovery.” Also, upon converting a motion to dismiss 

to a motion for summary judgment under Rule 12(d), a district court must give the parties “a 

reasonable opportunity to present all the material that is pertinent to the motion” before ruling, 

including the opportunity to “pursue reasonable discovery.” Taylor v. FDIC, 132 F.3d 753, 765 

(D.C. Cir. 1997) (citation and quotation marks omitted); see also FEC Expedition Opp. at 6. 

 Courts have long emphasized the fundamental importance of creating a full factual record 

in cases involving constitutional challenges to FECA, like the one here. See, e.g., Bread 

Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982) (requiring district court to make 

findings of fact before certifying constitutional question to en banc court of appeals under 2 

U.S.C. § 437h); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981) (“[I]mmediate 

adjudication of constitutional claims . . . would be improper in cases where the resolution of such 

questions required a fully developed factual record.”); FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 457-65 (2001) (upholding federal limits on coordinated expenditures 

between political parties and candidates based on summary-judgment record containing 

“substantial evidence [of] how candidates, donors, and parties test the limits of the current law 

and . . . how [those] contribution limits would be eroded if” the challenged limits were 

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invalidated); Colorado I, 518 U.S. at 618 (plurality opinion) (discussing importance of record 

evidence in reviewing constitutionality of limits on political-party expenditures); SpeechNow.org 

v. FEC, 599 F.3d 686, 697 (D.C. Cir. 2010) (en banc) (relying on evidence presented to district 

court regarding plaintiffs’ plans to make and receive contributions in future elections); Buckley v. 

Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (per curiam) (ordering district court to 

“[t]ake whatever may be necessary in the form of evidence” and “[m]ake findings of fact with 

reference to those issues”); Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 154, 156-57, 166-

67 (D.D.C. 2013) (allowing seven months for discovery in an as-applied challenge to a 

contribution limit, and then relying in part upon plaintiff’s deposition testimony to deny its 

claim), aff’d mem. in relevant part, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014); 

Wagner v. FEC, Civ. No. 11-1841 (D.D.C. Apr. 26, 2012) (Docket No. 29) (allowing discovery 

in as-applied constitutional challenge to FECA ban on contributions by federal government 

contractors), vacated for lack of jurisdiction,717 F.3d 1007 (D.C. Cir. 2013); Cao v. FEC, 688 F. 

Supp. 2d 498, 504-34 (E.D. La. 2010) (making findings of fact relying on discovery materials 

following four-month discovery period), aff’d sub nom. In re Cao, 619 F.3d 410, 414, 433 & 

n.32 (5th Cir. 2010) (en banc) (relying on deposition testimony and finding district court 

“abid[ed] by its proper role” in a case brought under 2 U.S.C. § 437h); see also FEC Expedition 

Opp. at 6-8. 

B. Rule 56(d) Bars Plaintiffs from Railroading the FEC into Summary Judgment 

Briefing Without Discovery Essential to Its Defense of This Constitutional Challenge 

Rule 56(d) prevents a nonmoving party from being “railroaded” into summary judgment 

by a “premature motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).1

 When faced with 

                                                           

1

 That case, like many cited herein, applied the former Rule 56(f), which was identical in 

substance to the current Rule 56(d). 

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a premature motion, the nonmoving party is required to file an affidavit under Rule 56(d). 

Convertino, 684 F.3d at 99. The Rule 56(d) affidavit “must outline the particular facts [the nonmovant] intends to discover and describe why those facts are necessary to the litigation.” Id.

(citing Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 239, 248 (D.C. Cir. 1999)). The affidavit or 

declaration must also explain why the non-movant “could not produce [the facts] in opposition to 

the motion [for summary judgment].” Convertino, 684 F.3d at 99-100 (quoting Carpenter v. 

Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999)). Lastly, “it must show the 

information is in fact discoverable.” Convertino, 684 F.3d at 100 (citing Messina v. Krakower,

439 F.3d 755, 762 (D.C. Cir. 2006)). The district court must then (1) “defer considering the 

motion or deny it”; (2) “allow time to obtain affidavits or declarations or to take discovery”; or 

(3) “issue any other appropriate order.” Fed. R. Civ. P. 56(d). “Time for additional discovery 

should be granted ‘almost as a matter of course unless the non-moving party has not diligently 

pursued discovery of the evidence.’” Convertino, 684 F.3d at 99 (quoting Berkeley v. Home Ins. 

Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995)); see also id. (“Consistent with the salutary purposes 

underlying Rule [56(d)], district courts should construe motions that invoke the rule generously, 

holding parties to the rule’s spirit rather than its letter.”). 

As explained in its attached Rule 56(d) declaration, the FEC requires discovery to present 

evidence that is essential to its defense of FECA against plaintiffs’ as-applied constitutional 

challenge. (See Nesin Decl. ¶¶ 7-8.) Indeed, although plaintiffs claim in their motion for 

summary judgment that their case “raises pure questions of law” (Mem. in Supp. of Pls.’ Mot. 

for Summ. J. at 1 (Docket No. 25-1)), their Complaint alleges that the FEC’s defense “requires 

Case 1:14-cv-00853-CRC Document 27 Filed 07/31/14 Page 10 of 13
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evidence” of how the challenged FECA provisions prevent corruption and its appearance 

(Compl. ¶¶ 40, 47, 54).2

Specifically, the Commission needs discovery from plaintiffs and possibly third parties to 

obtain evidence that political-party contribution limits continue to deter quid pro quo corruption 

and its appearance as applied to the independent expenditures plaintiffs seek to make in support 

of federal candidates using unlimited funds. (Nesin Decl. ¶ 8.a.) The FEC needs discovery to 

show the particular corruption dangers that are currently present in the case of national, state, and 

local political party committees like the plaintiffs, government interests that the Supreme Court 

has previously indicated are weighty enough to sustain contribution limits. (Nesin Decl. ¶ 8.b.) 

This may include written discovery to parties, depositions, and expert testimony. (Nesin Decl. ¶ 

10.) Moreover, because the appearance of corruption is a distinct interest justifying the 

challenged provisions, the Commission will seek evidence about whether the acceptance by 

political parties of unlimited contributions to be used for independent expenditures would create 

that appearance. (Nesin Decl. ¶ 8.c.) The Commission also needs discovery regarding whether 

plaintiffs contend they lack the resources for effective advocacy under the existing contribution 

limits. Nesin Decl. ¶ 8.d; McConnell v. FEC, 540 U.S. 93, 135 (2003) (“[C]ontribution limits 

impose serious burdens on free speech only if they are so low as to ‘preven[t] candidates and 

political committees from amassing the resources necessary for effective advocacy.’” (quoting 

Buckley, 424 U.S. at 21)). In addition, the Commission may seek discovery regarding the 

manner in which plaintiffs will raise and spend the unlimited funds they seek, and the 

proportionality of a political-party contribution limit to further the important interest in 

                                                           

2

 Although plaintiffs’ claims here are insubstantial and therefore unworthy of review by a 

three-judge court, it is possible that appellate courts may revisit controlling authority, see, e.g.,

McCutcheon v. FEC, 134 S. Ct. 1434, 1446-47 (2014), and a full record should be available 

during appellate review for that contingency. (See FEC Three-Judge Court Opp. at 24.) 

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combating corruption. (Nesin Decl. ¶ 8.e.) Third-party discovery from entities situated similarly 

to plaintiffs may provide additional evidence of the threat of corruption posed by parties’ use of 

unlimited funds for independent expenditures. (Nesin Decl. ¶ 8.f.) Lastly, discovery may be 

necessary for the FEC to test the jurisdictional bases for plaintiffs’ claims. (Nesin Decl. ¶ 8.g.) 

A recent order issued in Stop Reckless Economic Instability Caused by Democrats, et al. 

v. FEC (“Stop PAC”), No. 14-397 (E.D. Va. June 18, 2014) (Docket No. 32) illustrates the 

prematurity of plaintiffs’ motion for summary judgment here. (See FEC Supp. Auth. (Docket 

No. 19).) Like this case, Stop PAC is a constitutional challenge to FECA contribution limits, and 

like plaintiffs here, the Stop PAC plaintiffs sought summary judgment before the Commission 

could pursue any discovery. See Def. FEC’s Mot. to Allow Time for Disc. Under Rule 56(d) and 

in Opp’n to Pls.’ Mot. for Summ. J. at 7-16, Stop PAC, No. 14-397 (E.D. Va. May 23, 2014) 

(Docket No. 27). The Commission responded by filing a motion under Rule 56(d) to allow 

adequate time for record development. Id. The district court granted the Rule 56(d) motion and 

denied plaintiffs’ motion for summary judgment “without prejudice to its being refiled at an 

appropriate time.” (FEC Supp. Auth., Exh. 1 at 2 (Docket No. 19).) The Stop PAC court 

concluded “that the [FEC] is entitled to a reasonable opportunity to obtain discovery for th[e] 

purpose [of building an adequate factual record], that there are no facts or circumstances that 

would justify adjudicating plaintiffs’ constitutional claims in the absence of such a record,” and 

that plaintiffs’ attempt to pursue summary judgment before the FEC had an opportunity to obtain 

any discovery was “therefore premature.” (Id.) The same is true here. 

 

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III. CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s Rule 56(d) motion 

and deny plaintiffs’ motion for summary judgment to allow the FEC time to take discovery. 

 Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

/s/ Seth Nesin 

Seth Nesin 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

July 31, 2014 (202) 694-1650 

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