JOSEPH E. SANDLER

NEIL P. REIFF

JOHN HARDIN YOUNG

SANDLER, REIFF & YOUNG

50 E STREET, S.E. 

SUITE 300 

WASHINGTON, D.C. 20003 

(202) 479-1111 

Counsel for California 

Democratic Party Appellants 

CHARLES H. BELL, JR.

BELL, MCANDREWS, HILTACHK 

& DAVIDIAN LLP 

455 Capitol Mall 

Suite 801 

Sacramento, CA 95814 

(916) 442-7757 

JAN WITOLD BARAN

THOMAS W. KIRBY

LEE E. GOODMAN

WILEY REIN & FIELDING

1776 K Street, N.W.

Washington, D.C. 20006 

(202) 719-7000 

Counsel for California 

Republican Party Appellants 

THOMAS J. JOSEFIAK

CHARLES R. SPIES

REPUBLICAN NATIONAL 

COMMITTEE

310 First Street, S.E. 

Washington, D.C. 20003 

(202) 863-8500 

BENJAMIN L. GINSBERG

ERIC A. KUWANA

PATTON BOGGS LLP 

2550 M Street, N.W.

Washington, D.C. 20037 

(202) 457-6000 

MICHAEL A. CARVIN

JONES DAY REAVIS & 

POGUE

51 Louisiana Ave., N.W. 

Washington, D.C. 20001 

(202) 879-3939 

Counsel for RNC Appellants 

JAMES BOPP, JR.

RICHARD E. COLESON

THOMAS A. MARZEN

JAMES MADISON CENTER FOR

FREE SPEECH

BOPP COLESON & BOSTROM

1 South 6th Street 

Terre Haute, IN 47807 

(812) 232-2434 

Counsel for Libertarian 

National Committee, Inc. 
i 

TABLE OF CONTENTS 

Page 

I. BCRA’s RESTRICTIONS ON POLITICAL 

PARTIES OFFEND THE FIRST 

AMENDMENT..........................................................6 

A. Title I’s Many Restrictions on Party 

Association, Spending, and Solicitation 

Call for Strict Scrutiny. ..................................6 

B. New Section 323(a) Infringes the First 

Amendment. .................................................18 

C. New Section 323(b) Infringes the First 

Amendment. .................................................19 

D. New Section 323(d) Infringes the First 

Amendment. .................................................25 

E. The Government Raises No Issues that 

Were Not Rejected Unanimously by the 

District Court in Invalidating Section 

213................................................................28 

F. Section 214 Infringes the First 

Amendment. .................................................31 

II. CONGRESS EXCEEDED ITS POWER 

UNDER THE FEDERAL ELECTIONS 

CLAUSE AND INTRUDED UPON STATE 

SOVEREIGNTY......................................................32 
ii 

III. TITLE I DENIES POLITICAL PARTIES 

EQUAL PROTECTION OF THE LAWS BY 

PLACING THEM AT A SEVERE 

DISADVANTAGE IN RELATION TO 

SPECIAL INTEREST GROUPS. ............................36 

IV. THE APPROPRIATE REMEDY IS TO 

DECLARE TITLE I UNCONSTITUTIONAL........39

CONCLUSION........................................................39 
iii 

TABLE OF AUTHORITIES 

Page 

FEDERAL CASES 

Blitz v. United States, 153 U.S. 308 (1894)..........................34 

Buckley v. Valeo, 424 U.S. 1 (1976) ..............................11, 39 

California Democratic Party v. Jones, 530 U.S. 567 

(2000) .................................................................29, 37 

California Medical Association v. FEC, 453 U.S. 182 

(1981) .................................................................37, 38

Carter v. Carter Coal Co., 298 U.S. 238 (1936)..................39 

Citizens Against Rent Control v. City of Berkeley, 454 

U.S. 290 (1981) ..................................................10, 21 

Colorado Republican Federal Campaign Committee v. 

FEC, 518 U.S. 604 (1996).................................passim

Elrod v. Burns, 427 U.S. 347 (1976)....................................29 

Eu v. San Francisco County Democratic Central 

Committee, 489 U.S. 214 (1989)..........................6, 38 

FEC v. Beaumont, 123 S. Ct. 2200 (2003).....................10, 17 

FEC v. National Conservative Political Action 

Committee, 470 U.S. 480 (1985)..............................15 

FEC v. National Right to Work Committee, 459 U.S. 

197 (1982) ..................................................................9 

FEC v. Colorado Republican Federal Campaign 

Committee, 533 U.S. 431 (2001)..................31, 37, 38 

First National Bank of Boston v. Bellotti, 435 U.S. 765 

(1978) .......................................................................21 

Hill v. Wallace, 259 U.S. 44 (1922) .....................................39 

McCullough v. Maryland, 4 (Wheat.) 316 (1819)................35 

Nixon v. Administrator of General Services, 433 U.S. 

425 (1977) ................................................................32 

Oregon v. Mitchell, 400 U.S. 112 (1970).............................32 

Perry v. Sindermann, 408 U.S. 593 (1972)..........................29 

Printz v. United States, 521 U.S. 898 (1997) .......................33 
iv 

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995).......................35 

Tashjian v. Republican Party of Connecticut, 479 U.S. 

208 (1986) ......................................................6, 32, 38 

United States v. National Treasury Employees Union, 

513 U.S. 454 (1995) .................................................15 

STATE CASES 

Jacobus v. State of Alaska, No. 01-35666, 2003 WL 

21911191 (9th Cir., Aug. 12, 2003) .........................36 

FEDERAL CONSTITUTIONAL PROVISIONS, 

STATUTES, AND REGULATIONS 

U.S. Const. art. I, § 4, cl. 1 ...................................................32 

U.S. Const. art. VI, cl. 2 .......................................................34 

Foreign Agents Registration Act, Pub. L. No. 89-486, 

80 Stat. 244, codified at 22 U.S.C. § 611 et seq.......35 

2 U.S.C. § 441a ..............................................................30, 31 

2 U.S.C. § 9008 et seq ..........................................................38 

15 U.S.C. § 78o-4.................................................................35 

15 U.S.C. § 78q ....................................................................35 

15 U.S.C. § 78u ....................................................................35 

11 C.F.R. § 114.3 (2003)........................................................7 

11 C.F.R. § 115.2(a) (2003) .................................................35 

11 C.F.R. § 9008.1 (2003)....................................................38 

STATE STATUTES 

Colo. Const. art. XXVIII, §2(3) .............................................3 

Iowa Code Ann. §56.5A (West 2003)....................................3 

Ohio Rev. Code Ann. §3517.10(J) (West 2003) ....................3 
v 

MISCELLANEOUS 

Bruce D. Brown, Alien Donors: The Participation of 

Non-Citizens in the U.S. Campaign Finance 

System, 15 Yale L. & Pol’y Rev. 503 (1997)...........35 

James R. Carroll, Court to Hear McConnell’s 

Challenge to Campaign Finance Law, The 

Courier-Journal (Nov. 25, 2002) ..............................12 

Thomas B. Edsall, Liberals Form Fund to Defeat 

President, Wash. Post, A3 (Aug. 8, 2003) ...............17 

Federalist No. 59 (C. Rossiter ed. 1961) ..............................32 

Deborah Jones Merritt, The Guarantee Clause and 

State Autonomy: Federalism for a Third 

Century, 88 Colum. L. Rev. 1, 41 (1988)................35 

Cal. Fair Pol. Practices Comm'n Adv. Op. A-91-448, 

1991 WL. 772902 ......................................................3 

FEC Adv. Op. 1978-9 .........................................................30 

67 Fed. Reg. 49064, (July 29, 2002) ......................................1 

142 Cong. Rec. S27158 (Oct. 3, 1996) ................................12 

147 Cong. Rec. S3124 (Mar. 29, 2001) (stmt. of Sen. 

Levin) .......................................................................20 

147 Cong. Rec. S3240 (Apr. 2, 2001) (stmt. of Sen. 

Nelson) .....................................................................20 

147 Cong. Rec. S3247 (Apr. 2, 2001) (stmt. of Sen. 

Nelson) .....................................................................20 

S. Rep. No. 59-3056 (1906) .................................................35 

Sen. Comm. on Rules & Admin., 106th Cong., 2d Sess. 

301 (2000) ................................................................14 

Tillman Act of 1907, 34 Stat. 864 (1907) ............................35 
1 

BCRA’s restrictions on political parties are much 

more severe than its restrictions on either federal 

officeholders or special interests. The Government asserts 

that BCRA's restrictions on political parties are necessary to 

prevent actual or apparent corruption by special interests of 

federal officeholders and candidates. Even if this were true, 

the Government cannot explain why parties are treated so 

much more harshly than officeholders and candidates, or 

even interest groups themselves. This glaring discrepancy in 

treatment calls into question the purported justification for 

Title I, and at the same time proves that Title I is neither 

narrowly tailored nor even closely drawn, but is instead 

fundamentally irrational. 

Members of Congress made sure that BCRA 

expressly allowed them to raise nonfederal funds for the very 

special interest groups whose efforts to buy influence are said 

to justify Title I.1 See new § 323(e)(4) (permitting federal 

officeholders and candidates – but not party officials – to 

solicit nonfederal money for tax-exempt interest groups, 

including those engaged in “Federal election activity”). 

BCRA leaves those interest groups largely unfettered to 

spend nonfederal funds on activities ranging from voter 

mobilization to various kinds of broadcast advertising. 

Congress also allowed federal officeholders and candidates – 

but not national party officials – to raise nonfederal funds for 

state and local candidates. See new § 323(e)(1)(B). It 

allowed them – but not national party officials – to speak at 

1

 Like all three judges of the district court and even the Federal Election 

Commission itself, this brief employs the term “nonfederal funds” rather 

than the more pejorative “soft money.” See Per Curiam 31sa n.9 (KollarKotelly; Leon, J.J.); Henderson 182-183sa n.30; 67 Fed. Reg. 49,064, 

49,064-65 (July 29, 2002). Also, whereas the factual statement in our 

opening brief drew from the findings of the lower court majority, see Pol. 

Parties Br. 7 n.4, the Government and Intervenors repeatedly invoke the 

findings of a single judge. 
2 

state-party fundraising events. See new § 323(e)(3). Neither 

the Government nor BCRA’s sponsors can explain BCRA’s 

preferential treatment of federal officeholders and candidates 

over political parties. See J.A. 854-55, McCain Dep. 205-15; 

J.A. 944-52, Feingold Dep. 189. 

In our opening brief, (“Pol. Parties”) Br. 1, we cited 

four paradigmatic examples of Title I’s overbreadth. To 

lessen the force of these examples, Intervenors assert that 

they are “obscure” or only “remotely conceivable.” 

Intervenors’ (“Int.”) Br. 6, 35. To the contrary, activities 

such as support of state and local candidates, campaigns for 

ballot measures, and full ticket voter mobilization are at the 

very heart of the American political process. 

Defendants’ dismissive tone cannot mask their 

inability to explain away these statutory flaws. First, we 

showed that new Section 323(a) makes it a felony for the 

Chairman of the RNC to send a fundraising letter on behalf 

of his party’s gubernatorial nominees during the upcoming 

off-year elections. Intervenors confirm our point, asserting 

“the FEC and Justice Department have made clear that 

national party officials may solicit hard money on behalf of 

any candidate.” Int. Br. 6 (emphasis added). As explained, 

Pol. Parties Br. 42, however, funds raised for a state 

candidate’s campaign are regulated by and reportable under 

state law; they are nonfederal funds. New Section 323(a) 

makes it a crime for the RNC or its agents to raise nonfederal 

funds under any circumstances. 

The Government, in turn, suggests that state 

candidates may simply “establish a federal PAC” for the sole 

purpose of accepting federal funds raised for their state 

campaigns by national party officials, since “so far as federal 

law is concerned” such money can be used for state election 

activity. Gov’t Br. 54 n.22 (emphasis added). But as the 

FEC undoubtedly knows, a state candidate’s formation of 

multiple campaign committees – that is, one subject to state 
3 

regulation and another to federal – is typically illegal under 

state law.

2 Even if it were not illegal, the gratuitous burden 

of establishing and running a federally-regulated PAC cannot 

be justified by any substantial federal interests in regulating 

national party solicitations for state candidates. This very 

suggestion discloses a disdain for the authority of states to 

regulate their own elections.3 

Second, Intervenors correctly observe that the 

California Secretary of State has now (since our opening 

brief was filed) fortuitously scheduled the recall election for 

October 7, 2003, 160 days rather than 120 days before the 

next federal election. Although the California parties may 

donate money to PACs formed to support or oppose a recall 

occurring in October, so long as the donee PAC does not 

otherwise engage in “Federal election activity,” see new 

§ 323(d), the very same contribution by a state party for an 

election later in the year (after the November filing deadline 

for federal candidates) would be illegal, even though no 

federal candidate is involved in either. It would also be 

2 See, e.g., Cal. Fair Pol. Practices Comm’n Adv. Op. A-91-448, 1991 

WL 772902 (“a candidate for elective office may have only one 

campaign bank account and one controlled committee for each specific 

election”) (California); Colo. Const. art. XXVIII, § 2(3) (Colorado) (“A 

candidate shall have only one candidate committee.”); Iowa Code Ann. § 

56.5A (West 2003) (Iowa) (“Each candidate for state, county, city, or 

school office shall organize one, and only one, candidate's committee for 

a specific office sought. . .”); Ohio Rev. Code Ann. § 3517.10(J) (West 

2003) (Ohio) (“A candidate shall have only one campaign committee at 

any given time for all of the offices for which the person is a candidate or 

holds office.”). 

3 We have addressed the Government’s unrealistic and constitutionally 

suspect assertion that national party officials solicit in their “individual 

capacities.” Pol. Parties Br. 41. The Government’s attempt to analogize 

national party officials to Executive Branch employees, charitable 

organizations, and municipal securities dealers fails because none of 

those persons has political speech as its core function. 
4 

illegal for the state parties to conduct their own get-out-thevote (“GOTV”) activities in a later recall election unless they 

used only federally permissible funds. Strikingly, 

Intervenors are silent about restrictions on national parties 

during the currently-scheduled recall campaign. See new § 

323(a). 

Third, new Section 323(b) and the definition of 

“Federal election activity” subject voter registration and 

GOTV activity by state and local parties to pervasive 

regulation during federal election years (including monthly 

reporting), even if only state or local candidates or ballot 

measures are named. See Henderson 311sa (major focus of 

state and local party activities is on state and local elections); 

Leon 1227sa (same). Nonsensically, Intervenors claim that 

“merely address[ing] the size and source of contributions 

used to finance [these activities] . . . does not regulate” them. 

Int. Br. 7 (emphasis added). But that is exactly how it 

regulates them. 

Fourth, and perhaps most important, we showed that 

Title I criminalizes national party participation in traditional 

voter mobilization “Victory Programs” and “Coordinated 

Campaigns,” even during years when there are no federal 

candidates on the ballot. According to Senator McCain, 

these “grassroots activities are the fundamentals of the 

democratic process.” J.A. 943-44, McCain Dep. 192-93. As 

the district court found, prior to BCRA national party 

officials sat down with party officials in every state at the 

start of each election year and jointly decided how to raise 

and spend a mix of federal and nonfederal funds on voter 

mobilization. See Pol. Parties Br. 19-20; Henderson 305sa, 

306sa; Leon 1222sa, 1223sa. Because the greatest emphasis 

was placed on state and local races, these plans relied most 

heavily on nonfederal funds. In 2000, for example, 60 

percent of Republican Victory Program budgets were paid 

with nonfederal funds. See Henderson 306sa; Leon 1223sa. 
5 

Critically, neither the Government nor the Intervenors 

can deny that the essence of Victory Programs and 

Coordinated Campaigns is joint decisionmaking by national, 

state, and local parties concerning fundraising, fund 

allocation, and spending on voter mobilization programs. 

J.A. 296-97, Josefiak Decl. ¶¶ 31-32; J.A. 694-95, Peschong 

Decl. ¶¶ 5-7; J.A. 823-24, 825-26, Stoltz Decl.¶¶ 3, 9.4 New 

Section 323(a) prohibits national party involvement in any 

such program unless it is funded with 100% federal dollars – 

even when there are no federal candidates on the ballot. 

Moreover, new Section 323(b)(2)(B)(iv) prohibits national 

parties from transferring even federal dollars into these 

programs if the state or local party is using any nonfederal 

“Levin” money. The Government confirms the statutory 

overbreadth by pointing out that the Levin Amendment’s 

“homegrown” requirement is intended to prevent the national 

parties from “gain[ing] influence over how the [Levin] 

account is spent.” Gov’t Br. 50-51 (emphasis added). 

Each of these four examples concerns traditional, core 

political party activities. The briefs describe many other 

examples of core party activity swept within the overbroad 

rubric of “Federal election activity.” In their effort to close 

“loopholes,” BCRA’s drafters created a Rube Goldberg 

statute with effects so bizarre – and apparently unanticipated 

even by its proponents – that it cannot survive any level of 

scrutiny. 

4 While Intervenors assert without citation that national parties may 

participate in these programs “so long as the national parties do not solicit 

soft money or control its expenditure,” Int. Br. 7, they fail to explain how 

beginning-to-end collaboration on fundraising, budgeting, and spending 

for such programs does not constitute “solicit[ing], . . . transfer[ing] . . . 

or spend[ing]” nonfederal Funds. See new § 323(a)(1). 
6 

I. BCRA’s RESTRICTIONS ON POLITICAL 

PARTIES OFFEND THE FIRST 

AMENDMENT. 

A. Title I’s Many Restrictions on Party 

Association, Spending, and Solicitation Call 

for Strict Scrutiny. 

1. The Statute Is Subject to, and Fails, Strict 

Scrutiny. 

As shown, Pol. Parties Br. 35-36, Title I’s restrictions 

on intra-party communication and cooperation demand strict 

scrutiny under this Court’s precedents addressing political 

party rights of association. See California Democratic Party 

v. Jones, 530 U.S. 567, 582 (2000) (law burdening political 

parties’ right of free association is “unconstitutional unless it 

is narrowly tailored to serve a compelling governmental 

interest”); see also Eu v. San Francisco County Democratic 

Central Comm., 489 U.S. 214, 225 (1989); Tashjian v. 

Republican Party of Connecticut, 479 U.S. 208, 217 (1986). 

Our showing that restrictions on party association activity are 

subject to strict scrutiny goes unrebutted and virtually 

unaddressed.5 As the district court found, the relationships 

among national, state, and local party organizations have 

strengthened in the past three decades, have never been 

closer, and are generally healthy for American democracy. 

See Henderson 304sa; Leon 1221-22sa. By creating what 

Senator McCain called “firewalls” separating the national, 

state, and local parties, J.A. 952, McCain Dep. 223, Title I 

strikes directly at the parties’ core associational functions. 

5

 The Government ignores Eu and Tashjian altogether, but meekly 

suggests that the broad holding in California Democratic Party should be 

limited to laws that allow nonmembers to participate in party affairs. 

Gov’t Br. 65 n.32. The Intervenors ignore all three precedents. 
7 

See Leon 1082sa (BCRA “transforms [national, state, and 

local parties’] relationship with each other”). 

Title I drives wedge after wedge within and among 

the party organizations. For example: 

• Title I penalizes state and local parties for 

associating with national parties in developing, 

funding, and implementing Republican Victory 

Programs and Democratic Coordinated 

Campaigns. See new § 323(a). 

• If the state or local parties use any nonfederal 

funds or “Levin money” to pay for voter 

registration or GOTV, Title I bars the national 

parties from transferring even federal funds to 

state and local parties for those purposes. See 

new § 323(b)(2)(B)(iv) (the “homegrown” 

requirement). 

• If they use “Levin money,” Title I bars state and 

local party committees from transferring among 

themselves, even within the same state and with 

no national party involvement, federal funds for 

the broad range of activities that the statute 

defines as “federal election activity.” See new §§ 

323(b)(2)(B)(iv), 323(b)(2)(C). 

• Title I requires the RNC and LNC to spend 100 

percent federal funds for internal party 

communications aimed at party members and 

adherents, see new § 323(a), whereas 

corporations, unions, and membership 

organizations may spend unlimited nonfederal 

funds on even express advocacy directed to their 

stockholders, executives, and members. See 11 

C.F.R. § 114.3 (2003). 
8 

Neither the Government nor the Intervenors explain why 

these restrictions deserve less than strict scrutiny. 

Moreover, even under the Buckley 

“contribution/expenditure” dichotomy, strict scrutiny must 

apply. In its zeal to obtain the most “complaisant scrutiny,” 

the Government is forced to mischaracterize the statute. 

While the very text of new Section 323(a) makes it a felony 

for the RNC or LNC to “solicit, receive, or direct . . . transfer 

. . . or spend” nonfederal money – not just for themselves 

but for anyone else – the Government claims the provision is 

“directed solely at the acquisition of funds,” Gov’t Br. 13 

(emphasis in original); see id. 34 (“receiving funds,” 

“receiving any donation”), 35 (“solely as a source and 

amount limit”). To the contrary, new Section 323(a) is, in 

Intervenors’ words, an “across-the-board prohibition.” Int. 

Br. 23. It prohibits national party fundraising for state and 

local candidates or allied interest groups, as well as national 

party participation in the spending of state parties’ nonfederal 

funds, even though none of the money involved is 

“receiv[ed]” by the national party. 

As for new Section 323(b), the Government admits 

that “the applicability of these restrictions turns on the use to 

which the relevant funds are ultimately put,” Gov’t Br. 45 

(emphasis added), but again attempts to denominate the 

provision as a contribution limit. The Government’s claim 

that state and local parties are free to spend as much federal 

money as they want on so-called “Federal election activity” 

misses the point: Title I restricts the right of state and local 

parties to spend nonfederal funds raised legally pursuant to 

state law on behalf of state and local candidates. 

Similarly, new Section 323(d) prohibits national and 

state political parties from spending even a single penny, 

even of federal funds, to support tax-exempt I.R.C. Section 

501(c) organizations, if those organizations spend any money 

for “Federal election activity.” See infra pp. 25-28. That is a 
9 

flat ban on spending, without regard to the source and 

amount of funds involved. And, new Section 323(f) 

regulates the spending of campaign funds raised pursuant to 

state law. Try as they might, the Government and 

Intervenors simply cannot fit this multitude of interrelated 

restraints on spending into the contribution limit cubbyhole. 

Indeed, their semantic gymnastics confirm a very serious 

problem. 

The solicitation restrictions are another component of 

this oppressive regime. The Government argues against 

strict scrutiny because “[t]he provisions at issue here . . . are 

directed not at the content of the fundraising appeal, but at 

the identity of the fundraiser.” Gov’t Br. 52. Again, the 

Government is wrong. The RNC or LNC can solicit money 

from any U.S. citizen if its message seeks a contribution to 

itself, but it cannot ask that very same individual to 

contribute the same amount to Jones for Governor. See new 

§ 323(a). Likewise, the CDP can solicit Levin money from a 

labor union for itself, but it cannot ask that same labor union 

to give the same amount of Levin money to a county 

Democratic party. See new § 323(b)(2)(B)(iv).6 

Although it is not precisely clear, the Government 

appears to be saying that intermediate scrutiny should be the 

rule for restrictions on political parties, whereas strict 

scrutiny is but an exception applicable only to limits on the 

amount of money parties can spend. The Government has it 

exactly backwards. Strict scrutiny is the rule; only when 

reviewing limits on contributions to candidates has the Court 

employed intermediate scrutiny. See Pol. Parties Br. 36. Cf. 

6 FEC v. National Right to Work Committee, 459 U.S. 197, 200-01 (1982) 

(“NRWC”), applied intermediate scrutiny to solicitations that NRWC did 

for itself of funds that it was prohibited from receiving. The solicitation 

restrictions here are far broader. 
10 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 

290, 296-97 (1981) (“contribut[ion] to a candidate” is “single 

narrow exception to the rule that limits on political activity 

[are] contrary to the First Amendment.”). In FEC v. 

Beaumont, 123 S. Ct. 2200, 2210 (2003), the Court observed 

that “the level of scrutiny is based on the importance of the 

political activity at issue to effective speech or political 

association.” As shown, Title I’s pervasive restrictions 

impact the very core of political party speech and association. 

If, as shown, strict scrutiny applies, the Government 

implicitly concedes the statute must fall. The asserted 

interest is not compelling (nor is it argued to be), the 

restrictions are not narrowly tailored (nor are they argued to 

be), and the Government’s experts conceded that there is no 

evidence that Title I will reduce the appearance of corruption 

one whit. Henderson 337-38sa (citing J.A. 987-89, Shapiro 

CX 114-17 and Sorauf CX 191). This ends the inquiry. 

2. The Statute Fails Even Intermediate Scrutiny. 

Even applying intermediate scrutiny, Title I must fail. 

See Leon 1111sa. Both the Government and Intervenors 

repeatedly plead with the Court simply to defer to the 

legislators’ personal experience in the realm of campaign 

finance. See Gov’t Br. 27-28, 37, 42, 52, 72; Int. Br. 19, 20, 

63. Doubtless legislators have greater personal experience in 

political debate than most judges, but this experience cannot 

insulate restrictions on political speech and association from 

the most searching First Amendment inquiry. A legislative 

decision setting the level of contribution limits, to which this 

Court might defer, is a far different matter from the novel and 

wide-ranging restraints at issue here. 
11 

The Record Rebuts the Existence of Any Substantial 

Corruption or Appearance of Corruption. The 

Government’s exegesis on “the extensive network of laws” 

targeting corruption of federal officials, Gov’t Br. 30, serves 

to confirm Dr. Morton Keller’s undisputed testimony that 

“‘[c]orruption or the appearance of corruption’ . . . is less of a 

problem in American politics today than at any time in the 

past.” J.A. 1267, Keller Decl. ¶ 55.7 Indeed, the 

Government ignores this Court’s observation in Colorado I, 

confirmed by the record here, that the “opportunity for 

corruption” posed by “unregulated ‘soft money’ 

contributions to a party for certain activities, such as electing 

candidates for state office or for voter registration and ‘get 

out the vote’ drives” is “at best, attenuated.” Colorado 

Republican Fed. Campaign Committee v. FEC, 518 U.S. 

604, 616 (1996) (“Colorado I”) (emphasis added). Against 

this background, the factual case for BCRA is weak. 

The Government concedes that it lacks evidence of 

actual quid pro quo corruption, Gov’t Br. 39 n.15,8

 but 

7

 The Government’s effort to analogize Title I to bribery and gratuity 

statutes, Gov’t Br. 28-31, is of limited assistance here. Restrictions on 

political giving and spending implicate speech and associational values at 

the heart of the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14 

(1976) (per curiam) (“contribution and expenditure limitations operate in 

an area of the most fundamental First Amendment activities”). In short, 

contributions for political speech and association are different from 

gratuities such as Super Bowl tickets. 

8

 Intervenors continue to claim actual corruption, see Int. Br. 14, even 

though the district court flatly rejected their claim. Henderson 326sa; 

Leon 1256sa. Every Member who testified below denied being 

influenced by nonfederal money, and only two claimed to know a 

colleague who had been so influenced. See J.A. 918-19, Jeffords Dep. 

106-07; J.A. 974-75, Meehan Dep. 171-72; McCain Dep. 170-71; 

Rudman Dep. 45-46; J.A. 1011-13, Simpson Dep. 13-15; J.A. 1026-28, 

Snowe Dep. 205-08; J.A. 405, McConnell Decl. ¶ 8; Barr Decl. 5; Shays 

Dep. 171, 176 (refusing to identify any specific incidents). Intervenors 

repeat vague allegations made by Senators Feingold and Simon that 

(...continued) 
12 

claims that federal officeholders inhabit “an environment” in 

which political parties “control the resources crucial to 

subsequent electoral success and legislative power,” id. at 33. 

The Government’s own political party experts unequivocally 

rejected the claim that parties use resources to pressure 

Members as not “credible,” “self-defeating,” and “politically 

naïve.” Mann CX 113-15; see also Herrnson Dep. 185-86. 

The FEC admitted that there is no evidence of the RNC ever 

using contributions in an attempt to get a federal officeholder 

to change his or her position on legislation. See Henderson 

325sa; Leon 1254sa. 

According to Intervenors, it is the raising of the 

money, “regardless of how the national party spends that 

money,” that creates “the potential for corruption.” 

Int. Br. 26. The district court found, however, that it is 

“exceedingly rare” for the RNC to rely upon federal 

officeholders for personal solicitation of major donors. See 

Henderson 308sa; Leon 1245sa. Moreover, most RNC 

nonfederal money goes to purely state and local campaign 

activity, administrative overhead, and other uses besides the 

feared candidate-specific advertisements. Pol. Parties Br. 13. 

Lack of officeholder involvement in fundraising, coupled 

with spending for activity not affecting federal elections, 

nonfederal donations from Federal Express impacted legislation. See Int. 

Br. 13. But see Leon 1254sa (describing the testimony of Senators 

Feingold and Simon, among others, as, “at best, their personal 

conjecture”). Intervenors fail to mention that former Senator Wendell 

Ford, the subject of the claim, has denied the allegation. See James R. 

Carroll, Court to Hear McConnell’s Challenge to Campaign Finance 

Law, The Courier-Journal (Nov. 25, 2002) (Sen. Ford stated, “I wouldn’t 

be going to Russ Feingold asking him to vote for FedEx. . . . He just got 

his facts wrong.”). Senator Feingold asserted that the legislation would 

not “have passed had it not been for soft money,” Feingold Dep. 133-34, 

but it passed the Senate by a vote of 92 to 2, with Senator Feingold 

himself in the majority. See 142 Cong. Rec. S27158 (Oct. 3, 1996). 
13 

confirms that the potential for corruption for most nonfederal 

money is, indeed, “attenuated.” Colorado I, 518 U.S. at 616. 

The Government admits that officeholders do not 

raise money for the RNC, but speculates that a blanket 

prohibition is necessary “to guard against the possibility that 

the RNC might begin to employ” techniques used by other 

national party committees. Gov’t Br. 41 (emphasis added). 

This response highlights the lack of tailoring in this one-sizefits-all statute, which inaccurately assumes that every 

national party committee inherently raises all its nonfederal 

money through federal officeholders, for use in federal 

campaigns. The Government cannot explain why a more 

limited measure directly restricting federal officeholders and 

candidates from raising nonfederal funds – such as new 

Section 323(e) standing alone – is insufficient to address this 

claimed possibility. 

As for the observation that the RNC invites 

officeholders to events with donors, Gov’t Br. 41, the FEC 

admitted that both federal and nonfederal donors attend those 

events. See Henderson 329sa; Leon 1263sa. Moreover, 

Senator McCain admitted to attending “numerous” such 

events, but could not recall the “individuals who were 

present,” and none of the matters discussed “made enough of 

an impression on [him] to influence any legislative 

judgments.” McCain Dep. 236-38. Likewise, presented with 

a list of persons with whom he dined at a recent major donor 

event, Representative Shays testified that he could not recall 

a single one. See J.A. 1004, Shays CX 20.9 

9

 The district court majority declined to credit Intervenors’ anecdotes of 

apparent corruption. For example, Intervenors suggest that nonfederal 

donations affected congressional action on prominent legislation, 

including tobacco-control legislation. See Int. Br. 13. Yet the record 

shows that while the tobacco legislation was pending in 1998, the tobacco 

industry’s nonfederal donations to political parties actually declined, 

(...continued) 
14 

Defendants repeatedly state that some corporate 

donors made nonfederal donations to both political parties, 

Gov’t Br. 38; see also Int. Br. 12, but fail to note that the 

stated figures include donations not just by the listed 

corporations, but also by their affiliates and individual 

executives. Further, at a time of almost historical equipoise 

between the two political parties – the 2000 presidential 

election was the closest in over a century; the Senate 

comprises 51 Republicans, 48 Democrats, and 

Independent; the House 229, 205, and 1 – it should not be 

surprising that many donors support both sides of the aisle. 

See Snyder Reb. Decl. at 11. A large corporation, with 

thousands of employees and perhaps millions of stockholders 

of varying political affiliations, may feel obligated to divide 

its political contributions between the two major parties. 

Neither Narrowly Tailored Nor Closely Drawn, Title 

I Is Fundamentally Irrational. As shown without rebuttal, 

Pol. Parties Br. 44-48, the very structure of the statute 

demonstrates that its restrictions on political parties are 

neither narrowly tailored nor closely drawn. Indeed, as a 

scheme to protect officeholders from special interest 

influence, the restrictions are fundamentally irrational. The 

restrictions on political parties are far more severe than those 

imposed on both the feared influencors (special interest 

while its spending on lobbying and issue advocacy dramatically 

increased. See FEC Resp. to Req. for Admis. Nos. 45-50 & 52-54 in 

RNC v. FEC, No. 98-CV-991 (D.D.C.). 

Sadly, Intervenors cannot resist distorting congressional testimony by the 

RNC’s counsel. Int. Br. 28-29. Compare Const. & Reform Hrgs., Sen. 

Comm. on Rules & Admin., 106th Cong., 2d Sess. 301 (2000) (testimony 

of Bobby R. Burchfield) (“Again, recognizing that a prohibition of soft 

money donations to national party committees alone would be wholly 

ineffective, legislative proposals to ban receipt of soft money often seek 

to impose soft money restrictions on state parties as well.”) (material 

omitted by Intervenors italicized). 

1 
15 

groups) and those who would be influenced (federal 

officeholders and candidates). Interest groups are permitted 

to engage in a wide array of federal election activities with 

unregulated and undisclosed funds. Officeholders and 

candidates are allowed to solicit nonfederal donations to 

interest groups engaged in those activities, new § 323(e)(4), 

as well as for state and local candidates, new § 323(e)(1)(B). 

The Government simply does not and cannot explain 

why parties are subject to the most severe restrictions, or why 

the limits on federal candidates and officeholders in new 

Section 323(e) are by themselves insufficient to address the 

claimed evil. Nor does the Government deign to explain why 

state parties are subject to more severe restrictions than 

special interest groups engaged in the very same voter 

mobilization activities. See new § 323(b)(1). 

The Government’s view appears to be that once a 

proper subject of regulation is found, all manner of collateral 

restraints can be tacked on to prevent “circumvention” 

(mentioned 45 times by the Government and Intervenors), or 

to close “loopholes” (17 times). This reasoning is the very 

antithesis of narrow tailoring or close drawing. As the Court 

put it in FEC v. National Conservative Political Action 

Committee, 470 U.S. 480, 501 (1985), “[w]e are not 

quibbling over fine-tuning of prophylactic limitations, but are 

concerned about wholesale restriction of clearly protected 

conduct.” (emphasis added). The number and breadth of the 

restraints here far surpass those struck down in NCPAC. 

Compare NRWC, discussed at n.6 above. 

Title I Is Worse Than the Disease It Is Intended To 

Cure. In addition to showing “that the recited harms are 

real,” it is the Government’s burden to “demonstrate that the 

regulation will in fact alleviate these harms in a direct and 

material way.” United States v. National Treasury Employees 

Union, 513 U.S. 454, 475 (1995). The Government’s abject 

failure to show that Title I will reduce the alleged appearance 
16 

of corruption is exacerbated by its own experts’ concessions 

that it probably won’t. See J.A. 987-89, Shapiro CX 114-17, 

Sorauf CX 191. Indeed, the record compellingly shows Title 

I will have the opposite effect. 

Whereas Intervenors refer to instances of donors 

directing their nonfederal donations to state rather than 

national parties in unsuccessful efforts to influence the 

Federal Government, the Levin Amendment continues to 

allow a single donor to donate an unlimited aggregate 

amount in increments of $10,000 to multiple state and local 

parties for use on “Federal election activity.”10 Although the 

parties dispute that such amounts were actually corrupting, 

the fact is that Title I continues to allow the very donations 

that were invoked to justify its passage. Under the 

Government’s unsupported “premise” that “federal 

candidates are likely to regard large donations used to 

finance ‘Federal election activity’ within their States or 

districts as substantially assisting their own campaigns,” 

Gov’t Br. 47, the fundamental irrationality of Title I is 

apparent. 

Nor does Title I restrict federal officeholders’ 

importunings for corporations or unions to give unlimited 

amounts to any special interest group (such as the NAACP or 

NRA) that engages in, but whose principal purpose is not, 

“Federal election activity,” see new § 323(e)(4)(A). If 

Intervenors are correct that “[a] federal officeholder cannot 

be expected to ignore the fact that a donor had made a 

substantial contribution at his request to a political ally,” Int. 

Br. 37, the irrationality is complete. And, whether solicited 

by a federal officeholder or not, the donor may still tout the 

10 Intervenors refer to Roger Tamraz and Carl Lindner, Int. Br. 30, who 

admitted donating, in smaller increments, aggregate amounts of $300,000 

and $500,000 respectively to state parties. 
17 

aggregate amount of its donations to these “allies” – 

politically active tax-exempt entities – through the Halls of 

Congress. Whatever salutary, insulating benefit parties have 

had is now gone; to “test the limits of the current law,” 

Beaumont, 123 S. Ct. at 2207, officeholders will surely go 

directly to corporations, unions, and interest groups to 

request donations to ideologically-friendly tax-exempt 

groups.11 

Moreover, Title I channels non-federal funds away 

from parties and toward the very corporations, trade 

associations, and special-interest membership organizations 

that, according to the Government’s own experts, seek to 

“curry favor” with candidates, J.A. 1561-62, Mann Decl. 33-

34, and create “strong policy oriented IOUs between 

contributors and legislators.” J.A. 877, Herrnson Dep. 208. 

Even the Government’s experts predicted that BCRA 

will drive some portion of the nonfederal donations 

previously made to political parties to special interests for 

use in the political process. See J.A. 928-29, Mann CX 164-

65; J.A. 861, Green CX 24; Bok CX 55. That shift of 

resources is proceeding full throttle. The media are 

reporting, for example, the formation of an organization that 

intends to spend $75 million in nonfederal funds – including 

a reported $10 million donation raised from a single 

individual – on voter mobilization during the 2004 federal 

elections. See Thomas B. Edsall, Liberals Form Fund to 

Defeat President, WASH. POST, A3 (Aug. 8, 2003). 

According to the author, the new organization was formed in 

11 Senator McCain testified that officeholders receive more requests to 

participate in such fundraisers for special interest groups “than they can 

shake a stick at.” McCain Dep. 166-67. Gun Owners of America, Inc. 

(“GOA”), received more than $2 million in nonfederal donations as a 

result of solicitation letters sent by federal officeholders. See GOA’s 

Resp. to Ds.’ First Set of Ints. No. 4. 
18 

part because the national parties are now prohibited from 

raising nonfederal money to pay for such voter mobilization 

efforts as “‘coordinated campaign’ activities.” Id.; see also 

Pol. Parties Br. 24-25. 

While there is no evidence in the record of quid pro 

quo exchanges of nonfederal donations to parties for 

legislative action by federal officeholders, there is record 

evidence that special interests have offered to provide 

campaign support to federal candidates in exchange for 

legislative action. See Becket Decl. ¶ 7; Chapin Decl. ¶ 6; 

Strother Decl. ¶ 14. Congress’s decision to shackle the 

political parties while leaving special interests largely 

unfettered simply defies reason. 

B. New Section 323(a) Infringes the First 

Amendment. 

As shown, new Section 323(a) is so broad that it 

prohibits or at least severely hampers national party 

participation in state and local elections, severely restricts the 

ability of national party committees to participate with state 

and local parties in full ticket voter mobilization plans, and in 

numerous other ways restricts the ability of national political 

parties to associate with their component state and local 

parties and members. Neither the record in this case nor 

common sense discloses a national crisis of officeholder 

corruption driven by the two major national political parties, 

or by minor parties such as the LNC, that would be sufficient 

to justify such a dramatic change in the democratic system.

12 

12 The Government misconstrues the “principal thrust” of the argument of 

the Libertarian National Committee (“LNC”), which it describes as 

claiming that no federal regulation should apply to LNC candidates 

because none has ever been elected to federal office. Gov’t Br. 44, n.18. 

While the LNC reserves its right to argue this point elsewhere, the point 

here is that the BCRA is overly broad and restricts extensive nonfederal 

(...continued) 
19 

Moreover, the legislative record is clear that Congress 

intended the restrictions on national parties to be as broadranging and unequivocal as new Section 323(a) in fact is. On 

its face, new Section 323(a) is not narrowly tailored, closely 

drawn, or even rational. No mere striking of a word here or 

there could salvage it, and, in any event, Congress passed 

exactly what it intended. New Section 323(a) is invalid. 

C. New Section 323(b) Infringes the First 

Amendment. 

In order to justify the extensive regulation of state and 

local parties, the Government mischaracterizes them as mere 

extensions of the national parties pursuing the interests of 

federal candidates. In contrast, the district court found that 

state and local parties exist primarily to participate in state 

and local elections, and that they spend the majority of their 

resources on those elections. See Henderson 311-14sa; Leon 

1227-31sa. Their voter registration and GOTV activities, in 

particular, are directed primarily at state and local elections. 

See Henderson 312-14sa; Leon 1228-31sa. Even if one 

assumes (contrary to fact) the parties “‘never engage in 

public communication without regard to its electoral 

consequences’,” Gov't Br. 48 (quoting D. Green), state and 

local parties place their principal focus and the majority of 

their resources on state and local “electoral consequences,” 

not federal. These state and local election activities are 

regulated by state law. 

activity by the LNC that does not affect federal elections. The fact that 

no LNC candidate has been elected to federal office underscores that the 

party’s nonfederal activities are legitimate efforts to participate in state 

and local elections and/or simply to educate the public independent of 

any election. Congress has no interest – and certainly no authority – to 

restrict such nonfederal LNC activities. 
20 

The Government claims new Section 323(b) regulates 

only “federal” election activities. It sweeps to regulate 

activities directed to state and local elections, we are told, 

because those activities may potentially have an incidental 

effect on federal elections. This possible incidental effect, in 

turn, raises a potential for the appearance of corruption of the 

federal candidates incidentally benefited. This chain of 

potential–incidental–possible was specifically rejected by the 

district court, confirming this Court’s observation that any 

potential for corruption stemming from these activities is “at 

best, attenuated.” Colorado I, 518 U.S. at 616. 

Congress knew it was crossing the line. Although the 

Government asserts that the Levin Amendment was an 

exercise of legislative grace, the legislative history makes 

clear that Congress deemed the provision essential to avoid, 

as Senator Levin himself repeatedly said, going “too far” in 

regulating “some of the most core activities in which State 

parties are involved.” 147 Cong. Rec. S3124 (Mar. 29, 

2001); see also 147 Cong. Rec. S3247 (Apr. 2, 2001) (Sen. 

Levin) (“too far”); 147 Cong. Rec. S3240 (Apr. 2, 2001) 

(Sen. Nelson) (same). As shown, Pol. Parties Br. 60, 62-64, 

the Levin Amendment cannot salvage new Section 323(b), 

and in some respects (such as the “homegrown” requirement) 

it makes matters worse. 

The Broad Scope of New Section 323(b) Cannot Be 

Justified By Any Anti-Corruption Rationale. As shown, Pol. 

Parties Br. 51-52, BCRA abandons any requirement that 

contributions or expenditures be made “for the purpose of 

influencing a federal election.” Nor can new Section 323(b) 

be seen as simply another contribution limit. See p.8 above. 

After all, it restricts virtually all state and local political party 

activity in federal election years – even activities related to 

state and local ballot measures. This Court has previously 

held that restrictions on the funding of ballot measure 

campaigns cannot pass First Amendment challenge because 

these activities have no likelihood of corrupting a candidate. 
21 

See Citizens Against Rent Control, 454 U.S. at 296-99; First 

National Bank of Boston v. Bellotti, 435 U.S. 765, 777 

(1978). 

By its clear terms, new Section 323(b) goes beyond 

activities related to federal candidates and specifically 

includes GOTV communications that refer solely to 

candidates for state or local office. Since GOTV activities 

typically include the parties’ most basic election activities – 

direct mail, phone banks, and door-to-door canvassing with 

the distribution of doorhangers, flyers, and brochures – each 

of these activities is now “Federal election activity” 

whenever a federal candidate is on the ballot, even if 

conducted solely on behalf of state or local candidates or 

ballot measures.13 Not surprisingly, the court below found 

that, under the rubric of “Federal election activity,” new 

Section 323(b) actually regulates state and local party 

activities solely in support of state or local candidates. See 

Henderson 436-37sa; Leon 1118-22sa. 

The district court similarly found that other state party 

activities unrelated to federal candidates do not give rise to 

actual corruption or the appearance of corruption of federal 

13 In fact, Intervenors have admitted that Title I regulates each of the 

following communications: A radio advertisement urging voters to vote 

against a school voucher initiative; a phone bank supporting three state 

candidates; a newsletter mailed by a state party to its members; a mail 

advertisement in support of an Indiana mayoral candidate; a doorhanger 

supporting three Virginia state candidates; “generic” GOTV mail pieces 

(e.g., “Our Vote is Our Voice...Vote Democratic”); and a vote-by-mail 

application supporting Republican candidates. They also agreed that it 

would be illegal for CDP to make a contribution to any ballot measure 

committee if the measure appeared on a ballot with a federal candidate, or 

a donation to the A. Phillip Randolph Foundation, which conducts 

nonpartisan voter registration. Int. Resp. to Req. for Adm., Nos. 4, 5, 6, 

10, 13, 21, 22, 23, 24, 26, 28. 
22 

officeholders or candidates. See Henderson 438sa 

(“[n]othing in the record remotely suggests” that generic and 

noncandidate-specific activities “corrupt or appear to corrupt 

federal candidates”); Leon 1123sa (“mere conjecture” that 

“appearance of corruption arises from donations to state 

parties” used for “generic or noncandidate-specific 

activities”). It thus found the definition of “Federal election 

activity” unconstitutionally overbroad. See Henderson 

438sa; Leon 1123sa.14 

Since the prevention of corruption or the appearance 

of corruption is the only governmental interest that has been 

accepted by the Court as sufficiently compelling to justify 

substantial burdens upon freedom of speech and association, 

the findings by Judges Henderson and Leon effectively 

remove the only governmental justification that could 

support the restrictions imposed by new Section 323(b). The 

clear implication of the district court's findings is that 

donations for activities that are sufficiently removed from 

federal candidates (such as activities on behalf of state 

candidates) do not share the same potential for corruption 

and therefore cannot be justified by the anti-corruption 

rationale accepted in other contexts. Since new Section 

323(b) indiscriminately includes all state and local party 

voter mobilization activities when federal candidates are on 

the ballot, it is neither narrowly tailored nor closely drawn. 

See Henderson 441sa; Leon 1123sa.15 

14 Judge Leon found that new Section 301(20)(A)(iii) (“public 

communications”) was the only exception to this conclusion. Leon 

1123sa. 

15 The trial court found no likelihood of corruption arising from state 

party disbursements on behalf of state and local candidates. Thus, the 

need to avoid circumvention of the federal limits cannot independently 

justify restrictions on the state parties for disbursements that are unrelated 

to federal candidates. 
23 

The Restraints Imposed by Title I Directly on State 

and Local Parties Severely Restrict Their Direct Political 

Expression and Association. The Government asserts several 

times that parties are free to transfer funds among 

themselves, but the Levin Amendment plainly prohibits any 

transfers or joint fundraising – of even federal money – if the 

receiving party uses nonfederal funds (including Levin 

funds) for voter registration, GOTV (including for state 

candidates), or generic advertising. New §§ 323(b)(2)(B)(iv) 

& (C). Although a state or local party may elect to fund 

these activities with 100 percent federal funds, if it chooses 

not to do so (or, more probably, cannot do so), the price of 

using Levin funds is that it must forego all transfers and joint 

fundraising, as well as national party participation. 

The restrictions on transfers and joint fundraising 

apply to both federal and nonfederal money, and at all levels 

of the party. The result is not only that the national party is 

prohibited from transferring federal money to a state with a 

hotly contested U.S. Senate race; the state party is prohibited 

from transferring money to a county committee for GOTV 

activities in a district with a particularly competitive State 

Assembly race, and county committees are prohibited from 

jointly raising money to support local voter registration 

efforts. 

The Government claims that restrictions on joint 

fundraising and transfers are necessary to prevent donors 

from evading the limit by making the maximum $10,000 

donation to multiple committees and earmarking those 

donations for transfer to a single party committee. Of course, 

this rationale is completely inapplicable to transfers or joint 

fundraising of federal money – which is subject to a strict 

aggregate limit and earmarking prohibitions. Nor does it 

explain why concerns about large transfers of Levin money 

could not be addressed by similar provisions. 
24 

The claim that the restriction on transfers of federal 

money is necessary to keep the national party from gaining 

“influence” over how Levin money is spent, Gov’t Br. 51, 

fails because the ban applies not just to national parties, but 

to state and local party committees as well. Moreover, the 

bans on transfers and joint fundraising are imposed 

irrespective of the amounts involved. If the state or local 

party is using any nonfederal funds for “Federal election 

activity,” all transfers to and joint fundraising for it – even of 

federal money – are banned. 

New Section 323(b) Will Prevent State and Local 

Parties from Amassing the Resources Necessary for Effective 

Advocacy. We have submitted essentially unrebutted 

evidence that Title I’s restrictions on state and local party 

activities will dramatically reduce the parties’ ability to 

disseminate their messages and elect state and local 

candidates. See Pol. Parties Br. 61-64. Defendants argue 

that the parties will simply have to raise money from more 

people. The evidence shows that the federal revenues of the 

state parties have not significantly increased despite 

increased fundraising efforts, and the majority of their 

nonfederal revenues will be unavailable because of the Levin 

limits. See J.A. 124, Bowler Decl. ¶ 19; see also Henderson 

315sa, 317sa; Leon 1240-41sa. 

As the district court found, federalization of state 

party disbursements in support of state and local candidates 

and ballot measures will severely constrain the ability of the 

parties to reach voters with their messages. See Henderson 

317sa; Leon 1242sa. CDP has raised approximately $4 

million in federal money, and $12-16 million in nonfederal 

money per cycle in the last three election cycles. Henderson 

315sa; Leon 1240-41sa. This federal money is primarily 

used for the federally-required share of administrative costs 

and, to a lesser extent, for expenditures relating to federal 

candidates. J.A. 130-31, Bowler Decl. ¶¶ 21-22. CDP spent 

the largest share of the nonfederal money ($7-8 million) on 
25 

its mail program in support of candidates for eight state 

constitutional officers, 120 legislators, and numerous 

statewide ballot measures. Id. ¶ 20b, J.A. 126-29. Even if all 

federal money were redirected to state candidate and ballot 

measure activities (and this would be impossible because of 

the required federal share of administrative costs), the mail 

program would still be reduced by almost half. 

In short, the district court correctly found that 

requiring state parties to spend federal money for activities 

unrelated to federal candidates will result in a significant 

reduction in the parties’ ability to perform traditional 

functions such as voter registration, party-building, and 

grassroots organizing. Henderson 315-317sa; Leon 1242sa. 

D. New Section 323(d) Infringes the First 

Amendment. 

New Section 323(d) prohibits the parties at all levels 

from soliciting on behalf of, or making a donation to, certain 

tax-exempt organizations. None of the Government's 

arguments support restrictions on political party solicitations 

for, or donations to, these organizations; in particular, none 

justify the restrictions on state party donations to state-based 

organizations such as ballot measure committees or local 

Democratic and Republican Clubs.16 

The Government states (in another context) that 

restrictions on solicitation are “in the nature of conflict-ofinterest regulations and serve to prevent individuals who 

have acquired power or influence . . . from utilizing it” in 

circumstances where corruption of federal officeholders may 

16 As one ex post facto justification, the Government asserts that Congress 

can restrict the donations these tax-exempt entities may accept as a 

condition of their tax-exempt status. Gov’t Br. 56 n.25. But new Section 

323(d) restrains the political party donors, not the tax-exempt recipients. 
26 

result. See Gov't Br. 52; see also Int. Br. 36. Inexplicably, 

however, new Section 323(d) bans solicitation and donation 

by the political parties, but new Section 323(e)(4) allows 

federal officeholders to solicit up to $20,000 per donor for 

organizations primarily engaged in “Federal election 

activity,” and unlimited amounts per donor for organizations 

that engage in “Federal election activity” as long as it is not 

their primary purpose. 

Nor is new Section 323(d) limited to the solicitation 

of large donations. For example, it is perfectly legal for an 

individual to make a $5,000 contribution to a political party – 

national, state or local. Yet, new Section 323(d) makes it 

illegal for a representative of any political party to ask the 

same individual to give $5,000 to a Section 501(c)(4) 

organization that does nonpartisan voter registration. It is 

similarly legal for state parties (in California) to receive 

contributions from unions, but illegal for those parties to ask 

the same union to contribute to a ballot measure committee 

registered under Section 501(c)(4). In short, new Section 

323(d) bans solicitation of funds for nonprofit organizations 

even when it would be completely legal for the party to 

solicit and accept such funds directly. 

In a related argument, the Government urges that the 

parties will be tempted to circumvent contribution limits by 

setting up “sham” or “satellite” organizations that will accept 

“large” or “unlimited” donations. But the Government 

cannot explain why the concern about “sham” organizations 

could not be addressed by a provision that extends all 

restrictions applicable to the parties to organizations that are 

directly or indirectly established, financed, maintained, or 

controlled by any party committee. See, e.g., new § 

323(a)(2). 

The Government contends that the parties donate to 

tax-exempt groups in order to “control” them. Gov’t Br. 55 

n. 24. Again, the statute is far too broad for this asserted 
27 

purpose. New Section 323(d) bans all such donations, 

regardless of whether the donation is of a size sufficient to 

allow such control. The average CDP donation to such 

groups was under $1,000, an amount within the federal limits 

and hardly likely to allow control of any organization. J.A. 

166-67, Bowler Reb. Decl. ¶ 9. 

The rationale that new Section 323(d) is necessary to 

force political parties to make disbursements in their own 

names rather than through “surrogates” is similarly 

disingenuous. Any disbursement by a political party to a taxexempt group is reported by the donating party and 

sometimes by the group as well. 

In advancing the “control” and “disclosure” theories, 

the Government pointedly ignores the central argument of the 

California parties that they have a right to participate in ballot 

measure advocacy both by their direct spending – such as by 

including an endorsement or opposition of the measure in 

party mail – and by their donations to allied groups. The 

ban on donations imposed by new Section 323(d) most 

definitely restrains the parties’ “direct political expression” in 

the context of pure ideological advocacy. 

As shown, Pol. Parties Br. 70, California ballot 

measure committees are typically registered under Section 

501(c)(4). Since these committees normally engage in 

GOTV activity during federal election years, they meet the 

overbroad definition of “Federal election activity.” There is 

surely no argument that the parties seek to “control” the 

nonfederal money of ballot measure committees, since those 

committees exist for only one election, and usually spend all 

the money they raise on the campaign itself. Nor can there 

be a disclosure issue, since all ballot measure donations and 

expenditures are reportable in California. 

Intervenors apparently concede that Citizens Against 

Rent Control prohibits restrictions on donations to a ballot 

measure committee. Int. Br. 22, n.15. In a tortured reading 
28 

of that case, however, Intervenors distinguish Citizens 

Against Rent Control on the basis that the Court found “no 

nexus” to corruption of officeholders or candidates whereas 

“political parties have a close connection to officeholders and 

candidates, which enable them to serve as highly efficient 

conduits of corruption.” Id. Intervenors fail to explain, 

however, how this reasoning justifies prohibiting the parties 

not from receiving donations, but from making them. There 

is no hint at how a donation to a ballot measure committee 

“corrupts” a federal candidate or officeholder, particularly 

when anyone seeking to use the party as a “conduit” could 

give an unlimited amount of money directly to the ballot 

measure committee. 

Finally, while it is true that Section 527 committees 

are engaged in “political activity,” they are not necessarily 

involved in federal political activity. The clearest 

illustrations in California are the local Democratic and 

Republican “Clubs.” While not part of the official party 

structure, they are groups that provide much of the grassroots support for the parties, and are often organized by city 

or university campus. They have historically received 

modest financial assistance from the state or county parties. 

The Government can advance no reason why the parties 

should be precluded from providing limited financial support 

to these groups. 

E. The Government Raises No Issues that 

Were Not Rejected Unanimously by the 

District Court in Invalidating Section 213. 

Section 213 has nothing to do with nonfederal 

money; rather, it forces political parties to choose between 

two uses of federal money – independent expenditures and 

coordinated expenditures. The district court unanimously 

and correctly rejected each argument to sustain the provision 

raised by the Government here. Gov’t Br. 60-65; see Per 
29 

Curiam 7sa; Henderson 385sa, 396-97sa; Kollar-Kotelly 

886sa; Leon 1170-76sa. 

The Government’s claim that Section 213 “provide[s] 

party committees an additional spending option [that] creates 

no constitutional infirmity” is without merit. Gov’t Br. 61. 

To the contrary, Section 213 forces the parties to choose 

between two pre-existing “spending options.” 

The constitutional focus, as the district court 

recognized, must be on Section 213’s requirement that party 

committees forego making constitutionally-protected 

independent expenditures if any single party committee – 

local, state or national – makes any coordinated expenditure 

of any amount first. One party committee’s “choice” 

forecloses all other committees from making any 

independent or coordinated spending choice whatsoever. 

This burdening of the right to make independent expenditures 

strikes squarely at the holding of Colorado I. 

BCRA withdraws a statutory right from political 

parties as punishment for engaging in constitutionallyprotected activity. This removal of a protected “benefit” was 

rejected in the line of “unconstitutional conditions” cases, 

such as Perry v. Sindermann, 408 U.S. 593 (1972), which 

were not analyzed by the Buckley court in upholding the 

public funds provisions of FECA. See also Elrod v. Burns, 

427 U.S. 347 (1976). 

The Government cannot salvage Section 213 by 

asserting that Congress passed the coordinated expenditure 

provisions in 1976 because it failed to comprehend the right 

of parties to make independent expenditures. See Gov’t Br. 

62-63. As this Court made clear in Colorado I, this 

congressional intent is insufficient to limit independent 

spending by political parties. 518 U.S. at 621. 

The Government’s attempt, Gov’t Br. 65 & n.32, to 

distinguish California Democratic Party v. Jones is 
30 

meritless. Section 213 requires a national party committee to 

consult with and control the activities of numerous state and 

local party committees, because the national party 

committee’s decisions may be completely foreclosed by the 

separate and independent campaign spending decisions of 

state and local party committees. Apart from the irony of 

BCRA forcing collaboration on this issue while restricting 

collaboration on voter mobilization programs, this 

interference in the way political parties operate is, if 

anything, even more intrusive than that struck down in 

California Democratic Party. 

Finally, the Government erroneously claims that 

Section 213 imposes no “forced choice,” because party 

committees at the national, state, and local levels already are 

“affiliated.” State and local party committees are not 

conclusively affiliated if those local party committees have 

not been “established, financed, maintained or controlled” by 

the state party committee, however. See 2 U.S.C. § 

441a(a)(5).17 Yet under BCRA Section 213(2), such 

affiliation is conclusively presumed for purposes of the 

“forced choice” provision. Moreover, the national 

committees and state committees have separate coordinated 

expenditure limits. See 2 U.S.C. §§ 441a(d)(2) & (3). The 

Levin Amendment prohibits parties from raising certain 

funds together, or sharing certain funds. New § 

323(b)(2)(B). Thus, the conclusive presumption of affiliation 

is both factually inaccurate and at odds with other statutory 

provisions. 

17 See FEC Advisory Op. 1978-9 (Dallas County (Iowa) Republican 

County Central Committee not affiliated with Iowa state party). 
31 

F. Section 214 Infringes the First Amendment. 

As shown in our opening brief, Pol. Parties Br. 78-90, 

Section 214 violates the First Amendment because any 

definition of coordination that treats mere “consultation” 

with a candidate or political party as coordination, even 

where there is no agreement concerning an expenditure of 

funds, is fatally overbroad. 

The Government defends Section 214 on the ground 

that the language of Section 214(a) is essentially the same as 

the definition of candidate coordination found in FECA since 

it was first enacted, see 2 U.S.C. § 441a(a)(7)(B)(ii). Gov’t 

Br. 123.18 But Section 214(c) now makes clear that nothing 

more than informal collaboration – whatever that means – is 

necessary to support a finding that otherwise independent 

expenditures were coordinated with the candidate. It is the 

nature of the political process for candidates to have 

discussions with their supporters and with their political 

parties. The very real threat here is that even the most casual 

and innocent discussions will lead to charges that 

independent spending is “informal collaboration,” and thus 

an illegal contribution. There is no question that association 

and independent speech will be chilled. 

Nor must the political parties await judicial review of 

the FEC’s new coordination regulations to pursue their facial 

challenge to Section 214. This is not a case in which judicial 

review of the agency’s regulations “might eliminate, limit, or 

18 In Colorado I , the Court rejected the FEC’s view that expenditures by 

political parties were per se coordinated with candidates. 518 U.S. at 

619-23. Likewise, in Federal Election Comm’n v. Colorado Republican 

Fed. Campaign Comm. (“Colorado II”), 533 U.S. 431, 465 (2001), the 

Court upheld the constitutionality of FECA’s coordinated party 

expenditure provision. In neither case did the Court confront a challenge 

to the definition of coordination found in 2 U.S.C. § 441a(a)(7)(B)(ii). 
32 

cast” the constitutional claims “in a different light.” Nixon v. 

Adm’r Gen. Servs., 433 U.S. 425, 430 (1977). Here 

Congress required the FEC to adopt a definition of 

coordination that would necessarily be unconstitutional on its 

face. Because Section 403(a) of BCRA vests exclusive 

jurisdiction in the court below and this Court on appeal to 

consider any constitutional challenge to the statute, this case 

– not a challenge to the rulemaking – is the appropriate 

vehicle to advance this constitutional challenge to the statute. 

II. CONGRESS EXCEEDED ITS POWER 

UNDER THE FEDERAL ELECTIONS 

CLAUSE AND INTRUDED UPON STATE 

SOVEREIGNTY. 

As shown, Pol. Parties Br. 78-91, this Court has long 

recognized that the Federal Elections Clause, U.S. CONST. 

art. I, § 4, cl. 1, vests the power to regulate state and local 

elections in the sovereign states.19 Federalist 59 and Justice 

Story’s Commentaries confirm that federal regulation of state 

elections was inconceivable to the Founding Fathers. Even 

the Government’s lead expert, Dr. Donald Green of Yale, 

confirmed that BCRA “goes a lot farther” than the Founders 

envisioned. J.A. 868-69, Green CX 148-49. Whereas the 

Government cites Dr. Green at least eight times in its 

discussion of Title I, and Intervenors cite him at least twice, 

they ignore both Federalist 59 and Dr. Green’s accurate but 

fatal admission. 

Every even-numbered year, state parties engage in 

purely state and local campaign activity. Indeed, the district 

19 See e.g., Tashjian, 479 U.S. at 217; Oregon v. Mitchell, 400 U.S. 112, 

134-35 (1970) (controlling opinion of Black, J.) (“Our judgments . . . 

save for the States the power to control state and local elections which the 

Constitution originally reserved to them and which no subsequent 

amendment has taken from them.”). 
33 

court found that state and local parties exist primarily to 

engage in those activities and spend the majority of their 

resources on them. Henderson 311sa; Leon 1227sa. Those 

activities are now swept within the federal regulatory regime 

even though they are unrelated to any federal candidate. 

Further, the district court unanimously found that 

during the 2001 off-year elections, the RNC spent $15.6 

million of nonfederal money, not including associated 

overhead, on state and local races. See Pol. Parties Br. 11-12. 

The RNC engages in similar purely state and local election 

activities in even years. Id. 12. Section 323(a) federalizes all 

this activity. 

Effectively repudiating the Federal Elections Clause, 

the Government (Br. 42-43) makes the case for full federal 

authority to regulate any and all state election activity.20 

Because money is fungible, a donation that 

defrays the costs of state electoral advocacy 

will free up funds for other activities that 

20 The Government admitted that the Federal Elections Clause was the 

sole congressional basis for Title I. Pol. Parties Br. 79. Nevertheless, the 

Government invites the Court to sustain Title I as based on the Federal 

Government’s “more general power to superintend and protect the 

integrity of the federal workforce.” Gov’t Br. 30. This “more general 

power” is derived, we are told, from the Necessary and Proper Clause, 

which this Court has aptly described as “the last, best hope of those who 

defend ultra vires Congressional action.” Printz v. United States, 521 

U.S. 898, 923 (1997). Congress can no more use the Necessary and 

Proper Clause to override the limits of the Federal Elections Clause than 

it can to override the Commerce Clause: “When a ‘La[w] . . . for 

carrying into Execution’ the Commerce Clause violates the principle of 

state sovereignty reflected in the various constitutional provisions we 

mentioned earlier . . . , it is not a ‘La[w] . . . proper for carrying into 

Execution the Commerce Clause,’ and is thus, in the words of The 

Federalist, ‘merely [an] ac[t] of usurpation’ which ‘deserve[s] to be 

treated as such.’” Id. at 923-24 (quoting The Federalist No. 33 (A. 

Hamilton)). 
34 

may directly and tangibly affect federal 

elections. . . . Because the decennial 

redrawing of congressional district lines is 

typically performed by state legislatures, a 

party’s congressional candidates can expect 

to benefit if the party obtains a legislative 

majority within the State. . . . A presidential 

candidate’s likelihood of winning a state’s 

electoral votes may be increased if the State’s 

Governor is a member of the candidate’s own 

political party. 

While we agree that such a broad view of federal 

power would be essential to uphold Title I, settled precedent 

unequivocally rejects the Government’s view. For example, 

in Blitz v. United States, 153 U.S. 308, 314-15 (1894), the 

Court held that “[v]oting, in the name of another, for a state 

officer, cannot possibly affect the integrity of an election for 

Representative in Congress.” (emphasis added). 

The Government’s invocation of the Supremacy 

Clause, Gov’t Br. 66, 69, simply begs the question. 

Supremacy Clause issues arise only for “Laws of the United 

States which shall be made in Pursuance” of the 

Constitution. U.S. CONST., art. VI, cl. 2 (emphasis added). 

Because Title I exceeds the grant of power under the Federal 

Elections Clause, the Supremacy Clause is not at issue. 

Equally odd is the Government’s claim that the 

federalism arguments are completely subsumed within the 

First Amendment arguments, since (we are told) a federal 

interest sufficient to overcome the serious First Amendment 

problems would, ipso facto, be sufficient to justify federal 

intrusion into state election regulation as well. To the 

contrary, even an overriding federal interest (not present 

here) could not justify federal regulation of state election 

activity in contravention of the Federal Elections Clause. 

New Section 323(b) regulates virtually all state and local 
35 

party activity occurring proximate to federal elections even 

though the vast majority of that activity is directed solely at 

state or local elections and has no discernible effect on a 

federal election. And, a very substantial part of the RNC’s 

activities relate exclusively to state and local elections. This 

effort to regulate activity having no effect on a federal 

election is, by itself, sufficient to invalidate the statute as 

exceeding Congress’ Article I, § 4 powers.21 

Moreover, it is offensive to our federal system for the 

Federal Government to supercede rather than accommodate 

the state regulatory structure, especially in an area so central 

to sovereignty and self-governance. See Deborah Jones 

Merritt, The Guarantee Clause and State Autonomy: 

21 None of the FECA provisions cited by the Government as restricting 

state and local election activity, Gov’t Br. 67, were enacted pursuant to 

the Federal Elections Clause. Although the Government asserts that 

FECA prohibits contributions by federal government contractors in state 

and local elections, the FEC’s own regulations state that the prohibition 

“does not apply to contributions or expenditures in connection with State 

or local elections.” 11 C.F.R. § 115.2(a). FECA’s prohibition on 

contributions to federal or state candidates by national banks and 

federally-chartered corporations was first enacted as part of the Tillman 

Act of 1907, 34 Stat. 864, under Congress’s unquestioned authority, 

recognized as long ago as McCullough v. Maryland, 4 Wheat. 316 

(1819), to regulate creatures of the Federal Government. See also S. Rep. 

No. 59-3056, at 2 (1906) (“The Congress has the undoubted right thus to 

restrict and regulate corporations of its own creation.”). FECA’s ban on 

foreign national contributions to federal or state candidates originated in 

the 1966 amendments to the Foreign Agents Registration Act, Pub. L. 

No. 89-486, 80 Stat 244, codified at 22 U.S.C. § 611 et seq.; this 

provision is a valid exercise of Congress’s plenary power over 

immigration. See Bruce D. Brown, Alien Donors: The Participation of 

Non-Citizens in the U.S. Campaign Finance System, 15 Yale L. & Pol’y 

Rev. 503, 528 (1997). Municipal securities dealers are licensed and 

extensively regulated by the SEC, pursuant to the Commerce Clause, see 

15 U.S.C. § 78o-4, 78q, 78u; regulation of political contributions by 

municipal securities dealers grew out of that regulation. See Blount v. 

SEC, 61 F.3d 938 (D.C. Cir. 1995). 
36 

Federalism for a Third Century, 88 Colum. L. Rev. 1, 41 

(1988) (“[S]tates should have the power to control the 

procedures by which their government officials are 

selected”).

22 In this federal system, state regulation of state 

elections is more than a mere “policy choice” which can be 

“displac[ed]” by Congress. See Gov’t Br. 66. For all their 

flaws, the FEC’s allocation regulations allowed purely state 

activity to be funded with purely nonfederal dollars, and for 

“mixed” activities at least made an attempt to accommodate 

the state interests. Title I makes no such effort. 

Finally, the Government claims Title I does nothing 

more than regulate “financial transactions” to prevent 

corruption of federal officeholders. Gov’t Br. 66. As shown, 

Title I does much more than regulate financial transactions. 

Most pertinently here, it restricts or prohibits political parties 

from participating in state election activity on terms that the 

states expressly allow. Further, the record confirms that any 

potential corruptive effect on federal elections from political 

party participation in purely state and local election activities 

is, as Colorado I put it, “at best, attenuated.” 

III. TITLE I DENIES POLITICAL PARTIES 

EQUAL PROTECTION OF THE LAWS BY 

PLACING THEM AT A SEVERE 

DISADVANTAGE IN RELATION TO 

SPECIAL INTEREST GROUPS. 

This Court has recognized, and the record in this case 

confirms, that “players” in the political process other than 

political parties “could marshal the same power and 

sophistication for the same electoral objectives as political 

22 The Ninth Circuit’s recent decision in Jacobus v. State of Alaska, No. 

01-35666, 2003 WL 21911191 (9th Cir. Aug. 12, 2003), upholding 

Alaska’s restrictions on contributions to state political parties’ nonfederal 

accounts, confirms the authority of states to regulate nonfederal funds. 
37 

parties themselves,” Colorado II, 533 U.S. at 455. Unlike 

parties, those players tend to be “most concerned with 

advancing their narrow interest[s].” Id. at 451. Even as they 

seek to “curry favor” with federal officeholders, J.A. 1561-

62, Mann Decl. 33-34, special interests use those same 

federal officeholders to raise nonfederal funds, which they 

then spend, generally without public disclosure, on voter 

mobilization through direct mail, door-to-door canvassing, 

telephone banks, member communications, and both 

broadcast and non-broadcast advertising. See Pol. Parties Br. 

92-93, 95-96. While severely restricting the activities of 

political parties, BCRA leaves corporations, labor unions, 

trade associations, and other special interest groups largely 

free to raise and spend nonfederal funds for all of these 

purposes at any time, with no disclosure.23 

The Government cannot deny that Title I imposes on 

political parties uniquely burdensome restrictions. Its sole 

defense against the equal protection claim is that political 

parties receive certain “benefits” not available to other 

groups. As support, the Government cites California 

Medical Association v. FEC, 453 U.S. 182, 200-01 (1981), 

which did not, of course, address a political party. See Gov’t 

Br. 70-72. 

Strikingly, Defendants choose to ignore the relevant 

precedents cited in our opening brief. Pol. Parties. Br. 95. In 

those decisions, this Court uniformly struck down unique 

restrictions on political parties. See, e.g., Colorado I, 518 

U.S. at 616; California Democratic Party, 530 U.S. at 582; 

23 Even if upheld, Title II’s restrictions on broadcast issue advertising 

would restrict and require disclosure of only broadcast advertising that 

refers to a federal candidate immediately prior to a federal election. 

BCRA §§ 201, 203. Interest groups remain free to spend 100 percent 

nonfederal funds for voter mobilization, non-broadcast advertising, and 

even cleverly-crafted broadcast advertising during the blackout period. 
38 

Eu, 489 U.S. at 225; Tashjian, 479 U.S. at 217. In none of 

these cases was the mere fact that political parties enjoyed 

some benefits relative to other players mentioned by the 

Court as supporting the challenged restrictions. 

Indeed, in Colorado I, the Government cited 

California Medical Association to support its claim that 

parties could be precluded from making independent 

expenditures. See Gov’t Br. in Colorado I, at 39-40. This 

Court disagreed, explaining in the principal opinion, “[w]e do 

not see how a Constitution that grants to individuals, 

candidates, and ordinary political committees the right to 

make unlimited independent expenditures could deny the 

same right to political parties.” Colorado I, 518 U.S. at 618. 

Ignoring Colorado I, the Government quotes the 

Court’s observation in Colorado II that parties’ coordinated 

expenditure limits afford them a “special privilege . . . others 

do not enjoy,” Gov’t Br. 71 (quoting Colorado II, 533 U.S. at 

455). The question addressed, however, was the degree to 

which Congress could limit the “special privilege” of 

coordinated party expenditures, not whether that “privilege” 

could justify a plethora of wholly-unrelated restrictions.24 

Finally, the Government’s suggestion that parties’ 

supposed closeness to federal officeholders justifies disparate 

treatment, Gov’t Br. 71-72, makes little sense in view of the 

fact that Title I expressly permits close collaboration between 

officeholders and interest groups. Common sense suggests 

that the more “heightened risk that a federal candidate will 

regard a large donation . . . as a direct benefit to himself,” id. 

72, comes from a disbursement by a special interest directly 

24 Public funding of political party conventions is provided only if the 

party agrees in writing to forego certain rights, 2 U.S.C. § 9008 et seq.; 

11 C. F. R. § 9008.1 et seq., and obviously cannot be used by the 

Government’s lawyers to justify additional, unrelated burdens. 
39 

benefiting the candidate, rather than a special interest 

donation to a party, which might or might not be used by the 

party in a manner beneficial to the candidate. 

IV. THE APPROPRIATE REMEDY IS TO 

DECLARE TITLE I UNCONSTITUTIONAL. 

The components of Title I are an integrated, 

interrelated whole. Defendants’ experts have asserted that 

neither new Section 323(a) (governing national parties) nor 

new Section 323(b) (governing state and local parties) can 

meaningfully function without the other. See Mann CX 109-

10 (“the whole effort would be lost” if new Section 323(a) 

were struck down); id. (“the objective Congress had in mind 

would be undermined” if new Section 323(b) were struck 

down); see also Green CX 118-19. Indeed, if this Court 

strikes down one of them as unconstitutional, the other must 

fall as well. The same is true for the other provisions of new 

Section 323, which make little sense without new Section 

323(a) or (b), or vice versa. 

Although BCRA includes a “severability clause,” see 

§ 401, a severability clause does not by itself require this 

Court to sever provisions of a statute. See, e.g., Carter v. 

Carter Coal Co., 298 U.S. 238, 312-13 (1936) (refusing 

severance despite clause materially identical to BCRA § 

401); Hill v. Wallace, 259 U.S. 44, 69-71 (1922) (same). 

Rather, severability depends in part on whether Congress 

would have enacted the remaining provisions without those 

invalidated and whether what remains “is fully operative as a 

law.” Buckley, 424 U.S. at 108. The provisions of new 

Section 323 are so “mutually dependent,” Carter, 298 U.S. at 

313, that no single subsection would retain vitality absent the 

others. 
40 

CONCLUSION 

For the reasons stated, the Court should hold Title I, 

Section 213, and Section 214 to be unconstitutional. 

LANCE H. OLSON

OLSON HAGEL & FISHBURN

555 Capitol Mall, Suite 1425

Sacramento, CA 95814 

(916) 442-2952 

Counsel for California Party 

Appellants 

JAMES BOPP, JR. 

JAMES MADISON CENTER 

FOR FREE SPEECH

BOPP COLESON & BOSTROM

1 South 6th Street 

Terre Haute, IN 47807 

(812) 232-2434 

Counsel for Libertarian 

National Committee, Inc. 

AUGUST 21, 2003 

Respectfully submitted, 

BOBBY R. BURCHFIELD 

Counsel of Record 

COVINGTON & BURLING 

1201 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

(202) 662-6000 

Counsel for RNC Appellants