UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY IN SUPPORT OF 

et al., ) MOTION FOR SUMMARY JUDGMENT

 Defendants. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission (“Commission”) respectfully submits this reply 

memorandum in support of its motion for summary judgment. Plaintiffs’ opposition essentially 

relies on two arguments: (1) “[T]he relevant issue [in this case] is the nature of Plaintiffs’ 

intended First Amendment activities”; and (2) those activities “are too far removed from federal 

elections and campaigns to be regulated.” (See Pls.’ Mem. in Opp. to Def. FEC’s Mot. for S.J. 

(“Pls.’ S.J. Opp.”) at 3.) Each of these arguments is contrary to law and unsupported by the 

factual record. 

First, the “relevant issue” here is the constitutionality of a contribution limit; there is no 

prohibition on spending — i.e., “activities” — before the Court. Compare McConnell v. FEC, 

540 U.S. 93, 134-42 (2003) (setting forth standard of review for contribution limits at issue 

here), with Pls.’ S.J. Opp. at 3 & n.1 (citing FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2671 

(2007) (discussing corporate spending restriction), and Buckley v. Valeo, 424 U.S. 1, 19 n.18 

(1976) (discussing expenditure limit)). The Supreme Court’s test for the constitutionality of 

contribution limits asks whether the contributions to be limited “have a corrupting influence or 

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give rise to the appearance of corruption,” McConnell, 540 U.S. at 145, or whether the limits 

“prevent[ ] the circumvention” of other contribution limits, id. at 144. If the contribution limits 

further these important governmental interests, they are constitutional unless they “are so low as 

to ‘preven[t] candidates and political committees from amassing the resources necessary for 

effective advocacy.’” Id. at 135 (quoting Buckley, 421 U.S. at 21); Randall v. Sorrell, 548 U.S. 

230, 247 (2006) (plurality). 

As to the prevention of actual and apparent corruption, the McConnell record 

conclusively demonstrated that political parties’ acceptance of unlimited donations had a 

“corrupting influence,” 540 U.S. at 145, and created the appearance that legislative activity was 

improperly influenced by those who donated the largest amounts. See id. at 142-56. In their 

opposition, Plaintiffs ask this Court to disregard McConnell’s factual and legal holdings 

regarding the corrupting effects of soft money because, Plaintiffs argue, the soft money at issue 

in McConnell was spent on activities that “directly benefit[ted]” federal officials, whereas 

Plaintiffs’ planned activities would not provide such direct benefits. (See Pls.’ S.J. Opp. at 4-5, 

8.) Thus, Plaintiffs assert, federal officials would not feel gratitude to donors of unlimited 

amounts, and so “the FEC’s worry is for not [sic].” (See id. at 5.) 

As with nearly every other argument Plaintiffs have made in this case, they raised this 

assertion in McConnell, and the Court found it untenable: 

The fact that officeholders . . . donat[e] their valuable time [to soft-money 

donors] indicates either that officeholders place substantial value on the 

soft-money contribution themselves, without regard to their end use, or 

that national committees are able to exert considerable control over federal 

officeholders. . . . Either way, large soft-money donations to national 

party committees are likely to buy donors preferential access to federal 

officeholders no matter the ends to which their contributions are 

eventually put. 

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McConnell, 540 U.S. at 155-56 (emphasis added; citations omitted). The Court thus 

unequivocally rejected the argument that the limits on soft-money contributions to political 

parties are justified only to the extent that those donations are spent to directly benefit federal 

officeholders. Rather, actual or apparent corruption arises because — as the facts in McConnell

showed and Plaintiffs have not refuted — officeholders inevitably know who the largest softmoney donors to their parties are and feel tremendous pressure to assist those donors. (See FEC 

S.J. Opp. at 16-24 (Docket No. 39); FEC Mem. in Support of Mot. for S.J. at 7-11 (Docket No. 

56) (“FEC S.J. Mem.”).)1

 Thus, “‘whether they like it or not,’” political parties accepting soft 

money “serve as ‘agents for spending on behalf of those who seek to produce obligated 

officeholders.’” McConnell, 540 U.S. at 145 (quoting FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 452 (2001)). Because the Court specifically held that this actual or 

apparent corruption is inherent in allowing political parties to accept unlimited donations, 

Plaintiffs’ argument that the governmental interest in limiting soft money only applies to funds 

spent on certain activities must fail as a matter of law.2

In a further attempt to avoid the plain holding of McConnell, Plaintiffs repeat their 

allegation that they will “not provide non-federal contributors with preferential access to federal 

 

1

 Plaintiffs note that two of the witnesses in this case, Messrs. Rozen and Greenwald, 

submitted in McConnell declarations that discussed, inter alia, officeholder solicitations of soft 

money, but Plaintiffs do not point out any discrepancies between the testimony in the two cases. 

(See Pls.’ S.J. Opp. at 6-8.) Plaintiffs’ burden in opposing the Commission’s motion for 

summary judgment is to “set out specific facts” showing genuinely disputed issues of fact. See

Fed. R. Civ. P. 56(e)(2). Regarding the Rozen and Greenwald declarations, Plaintiffs provide no 

evidence whatsoever disputing the declarants’ testimony that — due to the inevitable 

officeholder knowledge of and gratitude for unlimited donations — the same actual and apparent 

corruption that existed before the Bipartisan Campaign Reform Act would arise under Plaintiffs’ 

proposed soft-money system. (See Rozen Decl. ¶¶ 3-4 (FEC Exh. 31); Greenwald Decl. ¶ 11 

(FEC Exh. 30).) 

2

 Plaintiffs’ argument also fails as a factual matter, given that the voter registration, GOTV, 

sham issue advertising, and other activities they wish to fund with unlimited donations do, in 

fact, benefit federal candidates. (FEC S.J. Mem. at 12-19; FEC SMF ¶¶ 57-83.) 

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candidates or officeholders.” (Pls.’ S.J. Opp. at 5-6, 8.) As noted above, however, the evidence 

shows that those donors who give the most soft money to the parties will receive such access and 

influence regardless of whether the parties actively facilitate it, just as was the case before the 

Bipartisan Campaign Reform Act (“BCRA”). So, if unlimited soft-money donations were to 

become permissible again, federal candidates and officeholders would know who the big donors 

are, and, whether directly or through lobbyists, those donors would exploit that knowledge to 

gain legislative influence that is unavailable to those who do not give huge sums, just as was the 

case before BCRA. Plaintiffs provide no argument — much less evidence — to contradict these 

showings of inevitable systemic corruption, relying instead on their allegations of future selfrestraint in facilitating preferential treatment for soft-money donors. Even if taken as true,3

however, Plaintiffs’ unenforceable pledge to avoid selling access in exchange for soft money 

would not — and could not — prevent the same corruption that arose in the pre-BCRA system 

from infecting the soft-money system that Plaintiffs seek to create. The McConnell record 

established definitively that such corruption is inherent when political parties accept massive 

unlimited donations, because the parties are “‘inextricably intertwined with federal officeholders 

and candidates.’” 540 U.S. at 155 (quoting 148 Cong. Rec. H409 (Feb. 13, 2002)). 

 

3

 As the Commission noted in its prior brief, there is substantial reason to doubt Plaintiffs’ 

self-imposed restriction: It is essentially identical to the RNC’s sworn testimony in McConnell 

regarding its pre-BCRA policies — testimony that was not consistent with the factual record as 

found by the Court. (See FEC S.J. Mem. at 9-11; FEC SMF ¶¶ 11, 14.) Plaintiffs provide no 

facts to dispute the Commission’s showing that their current pledge largely repeats their prior 

one. Plaintiffs continue to maintain that “the record from McConnell does not support” rampant 

pre-BCRA trading of soft money for access to federal officeholders by the RNC (Pls.’ Statement 

of Material Issues ¶ 11), in spite of the Supreme Court’s holding — supported by citations to five 

pages of the district court opinions — that “the RNC holds out the prospect of access to 

officeholders to attract soft-money donations and encourages officeholders to meet with large 

soft-money donors.” (FEC SMF ¶ 11 (quoting McConnell, 540 U.S. at 150-52 (citing 

McConnell, 251 F. Supp. 2d at 500-03 (Kollar-Kotelly, J.), 860-61 (Leon, J.))).) 

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Regarding the second test of constitutionality for contribution limits, i.e., whether the 

limits are so low that the parties cannot “amass[ ] the resources necessary for effective 

advocacy,” Plaintiffs make no effort to rebut the Commission’s extensive factual showing that 

the political parties have raised billions of dollars since BCRA — amounts unquestionably large 

enough to finance “effective advocacy.” (See FEC S.J. Mem. at 2-7; FEC SMF ¶¶ 40-50.)4

 In 

lieu of presenting any facts, Plaintiffs object that the Commission has no constitutional authority 

to determine what level of advocacy is “effective.” (See Pls.’ S.J. Opp. at 2-3.) This 

mischaracterizes the Commission’s role in this case, which is to demonstrate the constitutionality 

of BCRA under the Supreme Court’s “necessary for effective advocacy” test. By providing the 

Court with statistics about the parties’ fundraising prowess, the Commission is not, as Plaintiffs 

argue, presuming that “all political speech is regulable” (id. at 2); rather, the Commission is 

simply explaining that hundreds of millions of dollars provide the parties with more than 

sufficient funds, in both absolute and relative terms, to have their voices heard in the political 

marketplace. 

Finally, even if this Court were to consider the specific activities that Plaintiffs wish to 

fund with soft money, the Supreme Court has already held that reducing the corruption arising 

from soft-money donations to political parties is a governmental interest sufficiently important to 

justify Congress’ decision to require parties to fund those activities with money raised pursuant 

to the Federal Election Campaign Act’s source-and-amount limitations. (See FEC Mot. to 

Dismiss at 17-19 (discussing McConnell, 540 U.S. at 154-73).) In this context, the McConnell

Court specifically considered the activities at issue here and found no constitutional difficulty in 

 

4

 To properly apply the automotive analogy Plaintiffs cite in their opposition brief (at 3 

n.1): BCRA Title I provides that Plaintiffs may drive any car as far and as often as they would 

like, as long as they buy the gasoline one tankful at a time; there is no limit on the total amount 

of gas that Plaintiffs can buy, the cars that they can fuel with it, where they can drive, etc. 

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the requirement that they be financed with federal funds.5

 (Id.) Plaintiffs’ opposition brief 

provides no new facts regarding these activities; indeed, Plaintiffs do not respond at all to the 

Commission’s primary factual showings regarding Plaintiffs’ planned spending. Most notably, 

Plaintiffs provide no facts to dispute the Commission’s evidence that (1) the RNC’s “grassroots 

lobbying” activity would include — by Plaintiffs’ own admission — the same sham issue 

advertising that the Supreme Court found regulable in McConnell; and (2) the RNC’s “state 

election” activity and the other Plaintiffs’ “federal election activity” — by Plaintiffs’ own 

admission — affect federal elections.6 (See FEC S.J. Mem. at 12-19; FEC SMF ¶¶ 60-67, 72-83; 

Pls.’ S.J. Opp. at 8-12.) Because Plaintiffs cannot avoid McConnell as a matter of law or provide 

facts by which to distinguish it, the Commission is entitled to summary judgment on each of 

Plaintiffs’ claims regarding particular soft-money activities. 

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

summary judgment to the Commission. 

Respectfully submitted, 

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

General Counsel 

 

5

 Plaintiffs’ assertion that “federal funds . . . by there [sic] very nature are raised for federal 

purposes” (Pls.’ S.J. Opp. at 4) is purely semantic. “Federal funds” are simply funds raised 

within FECA’s contribution limits, not funds that must be spent for any particular purpose. For 

example, Plaintiffs have spent federal funds on state elections, as demonstrated by the RNC’s 

direct contributions of $2.2 million in federal funds to state candidates and parties in off-year 

elections. (FEC SMF ¶ 57.) 

6

 As to elections in which there is no federal candidate on the ballot, Plaintiffs continue to 

assert that the “FEC’s own expert in McConnell noted that contributions to state candidates in 

such elections do not affect federal elections.” (Pls.’ S.J. Opp. at 9 (citing McConnell, 251 F. 

Supp. at 830 (Leon, J.); Pls.’ S.J. Reply at 13 (same).) That expert, however, testified only that 

donations to odd-year gubernatorial candidates were not “intended to affect a federal election,” 

McConnell, 251 F. Supp. at 830 (Leon, J.) (emphasis added); see also id. at 769 n.31 (Leon, J.), 

465 (Kollar-Kotelly, J.), and did not contradict the Commission’s showing that voter registration 

efforts, for example, have continuing value in subsequent elections. (See FEC SMF ¶ 60.) 

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

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

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

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: April 28, 2009 (202) 694-1650 

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