No. 

IN THE

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REPUBLICAN NATIONAL COMMITTEE, ET AL., 

Appellants,

v. 

FEDERAL ELECTION COMMISSION, ET AL.,

 Appellees.

_______________ 

On Appeal 

From The United States District Court 

For The District Of Columbia 

_______________

JURISDICTIONAL STATEMENT 

_______________

 THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

tolson@gibsondunn.com

 Counsel for Appellants 
QUESTION PRESENTED 

Whether the prohibition on political parties’ solicitation and expenditure of “nonfederal money” imposed by the Bipartisan Campaign Reform Act of 

2002 is unconstitutional as applied to political activities that, when funded by nonfederal money, do not 

create a risk of actual or apparent quid pro quo corruption of federal officeholders. 
ii 

PARTIES TO THE PROCEEDING 

AND RULE 29.6 STATEMENT 

In addition to the parties named in the caption, 

California Republican Party, Republican Party of 

San Diego County, and Michael Steele were plaintiffs 

below and are appellants in this Court, and Democratic National Committee and Representative Christopher Van Hollen, Jr., were intervenors below and 

are appellees in this Court. 

Pursuant to this Court’s Rule 29.6, undersigned 

counsel state that appellants are not incorporated 

entities. 
iii 

TABLE OF CONTENTS 

Page 

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

PARTIES TO THE PROCEEDING AND 

RULE 29.6 STATEMENT.......................................... ii

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

OPINIONS BELOW....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1 

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

THE QUESTION IS SUBSTANTIAL ........................8

I. FECA § 323 IS UNCONSTITUTIONAL AS 

APPLIED TO EACH OF APPELLANTS’

PLANNED POLITICAL ACTIVITIES....................11

A. BCRA’s Ban On Nonfederal Money 

Is Unconstitutional As Applied To 

Political Activities That Do Not 

Create A Risk Of Quid Pro Quo

Corruption ..............................................12

B. None Of The Challenged 

Applications Of FECA § 323 Would 

Prevent Actual Or Apparent Quid 

Pro Quo Corruption................................17

II. PLENARY REVIEW IS WARRANTED 

BECAUSE THE QUESTION PRESENTED 

HAS PROFOUND IMPLICATIONS FOR THE 

FIRST AMENDMENT RIGHTS OF 

POLITICAL PARTIES AND THEIR 

MEMBERS.......................................................20

CONCLUSION ..........................................................23 
iv 

APPENDIX A: Opinion of the United States 

District Court for the District of Columbia ..............1a 

APPENDIX B: Final Judgment of the United 

States District Court for the District of 

Columbia..................................................................26a 

APPENDIX C: Notice of Appeal to the U.S. 

Supreme Court ........................................................28a 

APPENDIX D: Relevant Statutory Provisions .....30a 
v 

TABLE OF AUTHORITIES 

Page(s) 

CASES

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ................12, 13, 15 

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975) (en banc)..............15

Cal. Democratic Party v. Jones, 

530 U.S. 567 (2000)........................................12, 21 

Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981)..............................21 

Citizens United v. FEC, 

130 S. Ct. 876 (2010)..........2, 3, 8, 9, 12, 13, 14, 22 

Colo. Republican Fed. Campaign Comm. 

v. FEC, 518 U.S. 604 (1996) ....................10, 16, 19 

EMILY’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009)..................................22 

Eu v. San Francisco County Democratic 

Central Comm., 489 U.S. 214 (1989).....................8 

FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ..........................10, 16 

FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985) ..................2, 9, 13, 14 

FEC v.Wisc. Right to Life, Inc., 

551 U.S. 449 (2007)..........................................8, 11 

McConnell v. FEC, 

540 U.S. 93 (2003)........2, 5, 8, 9, 11, 12, 13, 14, 17 
vi 

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) 

(per curiam)..........................................3, 11, 17, 18 

NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449 (1958)................................................2 

NAACP v. Button, 

371 U.S. 415 (1963)..............................................21 

Randall v. Sorrell, 

548 U.S. 230 (2006)..............................................20 

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986)................................................1 

Timmons v. Twin Cities Area New Party, 

520 U.S. 351 (1997)..............................................12 

STATUTES

2 U.S.C. § 431(8)(A)(i) .....................................4, 10, 21 

2 U.S.C. § 431(20)(A)(i)-(iii) ........................................5 

2 U.S.C. § 431(21)........................................................5 

2 U.S.C. § 441a(a)(1)(B) ..............................................4 

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

2 U.S.C. § 441i(a)(1) ..............................................4, 12 

2 U.S.C. § 441i(b)(1) ....................................................5 

OTHER AUTHORITIES

Price Index Increases for Contribution 

and Expenditure Limitations and 

Lobbyist Bundling Disclosure 

Threshold, 74 Fed. Reg. 7435 

(Feb. 17, 2009)........................................................4 
JURISDICTIONAL STATEMENT 

Appellants Republican National Committee 

(“RNC”), California Republican Party, Republican 

Party of San Diego County, and Michael Steele respectfully submit this jurisdictional statement in 

support of their appeal from the judgment of the 

United States District Court for the District of Columbia. 

OPINIONS BELOW 

The opinion of the three-judge district court is 

not yet published but is electronically reported at 

2010 WL 1140721. J.S. App. 1a. 

JURISDICTION 

The judgment of the three-judge district court 

was entered on March 26, 2010. The notice of appeal 

was filed on April 2, 2010. The jurisdiction of this 

Court is invoked under § 403(a)(3) of the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 

107-155, 116 Stat. 81, 113-14. Under § 403(a)(4) of 

BCRA, it is “the duty of” this Court “to advance on 

the docket and to expedite to the greatest possible 

extent the disposition of th[is] . . . appeal.” Id. at 

114. 

STATUTORY PROVISIONS INVOLVED 

The pertinent provisions of BCRA are reproduced 

in the appendix to this jurisdictional statement. 

STATEMENT 

The “‘freedom to engage in association for the 

advancement of beliefs and ideas’”—including 

through “partisan political organization”—“‘is an inseparable aspect’” of the First Amendment. Tashjian 
2

v. Republican Party of Conn., 479 U.S. 208, 214 

(1986) (quoting NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449, 460 (1958)). BCRA smothers that 

freedom by prohibiting national political parties from 

raising and spending “nonfederal money”—money 

that is not spent to support the campaign of a specific federal candidate but instead used, for example, 

to support state candidates and fund general party 

operations, including voter registration drives and 

get-out-the-vote efforts. Under BCRA, any money 

that a national party raises or spends must comply 

with the same federal contribution limits and source 

restrictions as money used to support a specific candidate for federal office. 

BCRA’s prohibition on nonfederal money was always constitutionally suspect. After this Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 

(2010), however, that restriction on parties’ fundamental First Amendment rights is unconstitutional 

in most, if not all, its applications. Citizens United

held that the “fact that speakers may have influence 

over or access to elected officials does not mean that 

these officials are corrupt” and made clear that 

“[i]ngratiation and access . . . are not corruption.” Id.

at 910. Yet, both Congress’s enactment of the prohibition on nonfederal money and this Court’s decision 

upholding that prohibition on its face rested on the 

ground that “candidates would feel grateful for . . . 

donations [of nonfederal money] and that donors 

would seek to exploit that gratitude.” McConnell v. 

FEC, 540 U.S. 93, 145 (2003). Citizens United conclusively rejects the “ingratiation” and “access” theories of corruption. After Citizens United, there can 

be no doubt that the essential “‘hallmark of corruption is the financial quid pro quo: dollars for political 

favors.’” 130 S. Ct. at 910 (quoting FEC v. Nat’l Con-
3

servative Political Action Comm., 470 U.S. 480, 497 

(1985)). 

The government must therefore justify each application of BCRA’s prohibition on nonfederal money 

by demonstrating that the restriction is necessary to 

prevent actual or apparent quid pro quo corruption 

of federal officeholders. But Citizens United also 

makes clear that the danger of quid pro quo corruption arises with extraordinary infrequency. Independent expenditures, for example, never create a 

material risk of actual or apparent quid pro quo corruption—no matter the size of the expenditure. Citizens United, 130 S. Ct. at 908-09. Thus, to uphold 

the application of BCRA’s prohibition on nonfederal 

money, the Court would have to indulge the farfetched supposition that, while a multimillion-dollar 

independent advertising campaign cannot be a vehicle for quid pro quo corruption, the risk that a candidate would be willing to sell his vote in exchange for 

a donation to his party’s get-out-the-vote drive is so 

dire that Congress can constitutionally prohibit all 

donations of nonfederal money. That assumption is 

not only facially implausible but is also unsupported 

by anything in the congressional record accompanying BCRA’s enactment. See McConnell v. FEC, 251 

F. Supp. 2d 176, 481 (D.D.C. 2003) (Kollar-Kotelly, 

J.) (“The record does not contain any evidence of 

bribery or vote buying in exchange for donations of 

nonfederal money . . . .”). 

Because the government cannot meet its burden 

of establishing that BCRA’s prohibition on nonfederal money is constitutional in any of the applications challenged by appellants, probable jurisdiction 

should be noted. 
4

1. Prior to the enactment of BCRA, federal law 

imposed source and amount limitations on contributions to political parties made “for the purpose of influencing any election for Federal office.” 2 U.S.C. 

§ 431(8)(A)(i). Federal law placed no limitations, 

however, on the right of political parties to solicit 

and spend nonfederal—or “soft”—money for other 

purposes, including “to help fund issue ads” and 

“purely state and local election activities.” J.S. App. 

4a. The solicitation and expenditure of nonfederal 

money was subject solely to state-law restrictions. 

Federal law also permitted parties to use a combination of federally regulated money and nonfederal 

money to fund “mixed-purpose activities (for example, get-out-the-vote and voter registration in years 

when federal, state, and local candidates are all on 

the ballot).” Id. 

BCRA imposed a blanket federal prohibition on 

national parties’ use of nonfederal money for all purposes. BCRA added § 323(a) to the Federal Election 

Campaign Act of 1971 (“FECA”), which prohibits national political parties and their agents from soliciting, receiving, directing, or spending funds “that are 

not subject to the limitations, prohibitions, and reporting requirements of th[e] Act.” 2 U.S.C. 

§ 441i(a)(1). Thus, a national party cannot solicit or 

spend annual contributions of more than $30,400 

(indexed for inflation) from any individual donor, or 

accept any contributions from corporations and unions, even if those contributions would be spent on 

state election activities completely unrelated to a 

federal campaign and would fully comply with state 

law. Id. § 441a(a)(1)(B); Price Index Increases for 

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

7435, 7437 (Feb. 17, 2009). 
5

BCRA also added FECA § 323(b), which prohibits 

state and local parties from soliciting or spending 

nonfederal money on “Federal election activity.” 2 

U.S.C. § 441i(b)(1). State and local parties thus cannot solicit or spend contributions of more than 

$10,000 annually from any individual donor, or accept any contributions from corporations and unions, 

to fund (1) “voter registration activity” that occurs in 

the 120-day period preceding a federal election; (2) 

“voter identification,” “get-out-the-vote activity,” or 

“generic campaign activity” that is conducted “in 

connection with” an election in which there is a federal candidate on the ballot; or (3) any “public communication” that promotes, supports, attacks, or opposes a clearly identified federal candidate. Id. 

§ 431(20)(A)(i)-(iii); see also id. § 441a(a)(1)(C).1 

In McConnell, this Court upheld FECA § 323 

against a facial First Amendment challenge. 540 

U.S. at 161, 173. 

2. In 2008, appellants filed this as-applied challenge to the restrictions that FECA §§ 323(a) and (b) 

impose on the First Amendment speech and associational rights of political parties and their members. 

The RNC and its Chairman alleged that FECA 

§ 323(a) was unconstitutional as applied to their solicitation and expenditure of nonfederal money to (1) 

support candidates in 2009 state elections in New 

Jersey and Virginia, where there were no federal 

candidates on the ballot, (2) support state candidates 

in elections where both federal and state candidates 

are on the ballot, (3) finance state Republican par-

 

1 “Generic campaign activity” is campaign activity that promotes the political party but does not promote any specific federal, state, or local candidate. 2 U.S.C. § 431(21). 
6

ties’ redistricting efforts after the 2010 census, (4) 

fund “grassroots lobbying” efforts to educate voters 

about legislative issues and mobilize grassroots 

movements regarding such issues, (5) fund litigation 

in cases not involving federal elections, and (6) pay 

for the maintenance and upkeep of the RNC’s national headquarters. The California Republican 

Party and Republican Party of San Diego County alleged that FECA § 323(b) was unconstitutional as 

applied to their solicitation and expenditure of nonfederal money to (1) campaign for or against California ballot initiatives using advertisements that featured federal candidates and (2) fund get-out-thevote drives and other generic campaign activity not 

targeted to the campaign of any specific federal candidate. 

A three-judge district court was convened pursuant to BCRA § 403(a)(1). The parties filed crossmotions for summary judgment. In support of its 

motion, the RNC submitted affidavits stating that it 

will not “‘use any federal candidates or officeholders 

to solicit’ soft-money contributions” or “‘aid’ softmoney donors ‘in obtaining preferential access to 

federal candidates or officeholders.’” J.S. App. 8a. 

The district court delayed resolution of the summary 

judgment motions pending this Court’s decision in 

Citizens United, and then ordered supplemental 

briefing regarding the potential implications of that 

decision. 

3. Deeming itself bound by this Court’s facial 

holding in McConnell, the district court denied appellants’ motion for summary judgment and granted 

summary judgment to the FEC. J.S. App. 24a. 

The district court “agree[d]” with appellants that 

“Citizens United undermines any theory of limiting 
7

contributions to political parties that might have 

rested on the idea that large contributions to parties 

create gratitude from, facilitate access to, or generate 

influence over federal officeholders and candidates.” 

J.S. App. 13a. The court explained that, “[t]o the extent the FEC argues that large contributions to the 

national parties are corrupting and can be limited 

because they create gratitude, facilitate access, or 

generate influence, Citizens United makes clear that 

those theories are not viable.” Id. at 14a. 

The district court further determined that, to the 

extent this Court’s facial analysis in McConnell 

rested “on evidence that national party committees 

had sold preferential access to federal officeholders 

and candidates in exchange for large soft-money donations,” there was “considerable logic and force” to 

appellants’ argument that McConnell’s facial analysis “does not control this as-applied challenge” because the RNC had made a pledge not to undertake 

such practices. J.S. App. 14a, 15a. “As a result,” the 

court explained, “a large soft-money contributor 

could obtain no better access to Republican officeholders or candidates—at least not RNC-arranged 

access—than a maxed-out hard-money contributor to 

the RNC.” Id. at 8a. The court found “no reason that 

the RNC’s pledge could not be meaningfully enforced 

by the FEC.” Id. at 8a n.4. 

The district court nevertheless concluded that it 

was bound by McConnell to reject appellants’ asapplied challenge because “the McConnell Court, in 

upholding § 323(a), appeared to rely not only on the 

selling of access in exchange for soft-money contributions, . . . but also on ‘the close relationship between 

federal officeholders and the national parties.’” J.S. 

App. 16a. While “acknowledg[ing] that the McConnell opinion is ambiguous on the question whether 
8

the ‘unity of interest’ between national parties and 

their candidates and officeholders was an independently sufficient rationale for the Court to uphold the 

blanket ban on soft-money contributions,” it stated 

that, “[a]s a lower court,” it did “not believe [it] possess[ed] authority to clarify or refine McConnell.” Id.

at 18a. 

In ruling in the FEC’s favor, the district court 

acknowledged that the “current mix of statutes, 

regulations, and court decisions has left a campaign 

finance system that reduces the power of political 

parties as compared to outside groups.” J.S. App. 

18a n.5. The court “recognize[ed] the RNC’s concern 

about this disparity,” but concluded that it was ultimately “an argument for the Supreme Court” to address. Id. 

THE QUESTION IS SUBSTANTIAL 

This Court recently reaffirmed that the “First 

Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political 

office.’” Citizens United v. FEC, 130 S. Ct. 876, 898 

(2010) (quoting Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989)). It is 

therefore the government’s burden to “prove” that 

“each application of a statute restricting” political 

speech survives constitutional scrutiny. FEC v. 

Wisc. Right to Life, Inc., 551 U.S. 449, 464, 478 

(2007) (op. of Roberts, C.J.) (emphasis in original). 

The government cannot meet that burden in this 

case as to any of the applications of FECA §§ 323(a) 

and (b) challenged by appellants. 

This Court’s decision to uphold FECA § 323 on 

its face in McConnell v. FEC, 540 U.S. 93 (2003), was 

premised on the ground that “candidates would feel 

grateful for . . . donations [of nonfederal money] and 
9

that donors would seek to exploit that gratitude.” Id.

at 145. In light of Citizens United, however, that rationale for restricting the speech and associational 

rights of political parties and their members is no 

longer tenable. In Citizens United, the Court made 

clear that the only constitutionally adequate basis 

for prohibiting political speech is the prevention of 

actual or apparent quid pro quo corruption—

arrangements that exchange dollars for political favors—and that “[i]ngratiation and access . . . are not 

corruption.” 130 S. Ct. at 910 (emphasis added). 

“Reliance on a ‘generic favoritism or influence theory,’” the Court concluded, is a constitutionally insufficient ground for suppressing First Amendment 

freedoms. Id. 

Thus, even if contributions of nonfederal money 

to political parties engender the gratitude of elected 

officials and facilitate access to those officials, Congress cannot respond to these inherent features of 

“‘representative politics’” by prohibiting the solicitation and expenditure of nonfederal money. Citizens 

United, 130 S. Ct. at 910. Moreover, the fact that, in 

the past, political parties may have “promised and 

provided special access to candidates . . . in exchange 

for large soft-money contributions” does not transform the provision of “access” into illicit quid pro quo 

corruption. McConnell, 540 U.S. at 130. Exchanging 

donations for political access cannot be equated with 

the exchange of “dollars for political favors”—which 

is the essential “hallmark” of all constitutionally 

cognizable corruption. FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985). In 

any event, as the district court found, the RNC has 

“submitted evidence it will not ‘aid’ soft-money donors ‘in obtaining preferential access to federal candidates or officeholders’”—a commitment that the 
10

court found could “be meaningfully enforced by the 

FEC.” J.S. App. 8a & n.4. 

Nor, despite the district court’s erroneous holding to the contrary, can the government satisfy its 

burden of proving quid pro quo corruption by relying 

on a purported “‘unity of interest’ between national 

parties and their candidates and officeholders.” J.S. 

App. 18a. By the time McConnell was decided, this 

Court had already repeatedly rejected “the notion of 

a ‘metaphysical identity’ between party and candidate.” FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 447-48 (2001); see also Colo. 

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

604, 623 (1996) (op. of Breyer, J.). McConnell gave 

no indication that it was overruling those prior decisions. 

After Citizens United, then, the government 

must demonstrate that each application of BCRA’s 

prohibition on nonfederal money targets an activity 

that, if funded by nonfederal money, would create an 

appreciable risk of actual or apparent quid pro quo

corruption of federal officeholders. The government 

cannot meet that burden in this case as to any of the 

challenged applications of FECA §§ 323(a) and (b). 

Appellants seek to solicit and expend donations 

for purposes other than “influencing an[ ] election for 

Federal office” (2 U.S.C. § 431(8)(A)(i)), including 

supporting state candidates in elections in which no 

federal candidate appears on the ballot, funding 

grassroots lobbying campaigns, and financing redistricting efforts. As the McConnell district court 

found, Congress presented no evidence at the time of 

BCRA’s enactment that such activities—or any other 

activities funded by nonfederal money—create a risk 

of actual or apparent quid pro quo corruption. See 
11

McConnell v. FEC, 251 F. Supp. 2d 176, 481 (D.D.C. 

2003) (Kollar-Kotelly, J.); id. at 852 (Leon, J.). Nor 

has the government proffered any evidence in this 

case that even remotely suggests that the solicitation 

and expenditure of nonfederal money to fund this 

constitutionally protected political speech could serve 

as the basis for illicit quid pro quo arrangements. 

If the decision below is permitted to stand, 

BCRA’s prohibition on nonfederal money will continue to stifle the fundamental First Amendment 

freedoms of appellants and party members, and political parties will continue to confront burdens on 

their rights of political speech and association that 

are not imposed on other political organizations, including nonprofit advocacy groups and 527 organizations. Plenary review is warranted to remove these 

obstacles to the exercise of political parties’ First 

Amendment rights and to safeguard parties’ essential role in the American political process. 

I. FECA § 323 IS UNCONSTITUTIONAL AS 

APPLIED TO EACH OF APPELLANTS’

PLANNED POLITICAL ACTIVITIES. 

The government bears the burden of proving that 

each application of FECA § 323 is “closely drawn” to 

serve a “sufficiently important” government interest. 

McConnell v. FEC, 540 U.S. 93, 136 (2003) (internal 

quotation marks omitted); FEC v. Wisc. Right to Life, 

Inc., 551 U.S. 449, 464, 478 (2007) (op. of Roberts, 

C.J.). The government cannot meet that burden in 

this case as to any of the challenged applications of 

FECA §§ 323(a) and (b).2 

 

2 FECA § 323 is unconstitutional as applied to appellants 

whether it is examined under the “closely drawn” standard of 

scrutiny or under strict scrutiny because it does not further an 
12

A. BCRA’s Ban On Nonfederal Money Is 

Unconstitutional As Applied To 

Political Activities That Do Not 

Create A Risk Of Quid Pro Quo

Corruption. 

In McConnell, this Court rejected a facial challenge to FECA § 323. Emphasizing that “Congress’ 

legitimate [anticorruption] interest extends beyond 

preventing simple cash-for-votes corruption,” the 

Court held that FECA § 323 was facially constitutional because nonfederal money could be used to secure the gratitude of, and gain access to, federal officeholders. 540 U.S. at 150. According to the Court, 

“large soft-money contributions to national parties 

are likely to create actual or apparent indebtedness 

 

[Footnote continued from previous page]

important—let alone, a compelling—government interest. 

FECA § 323 should be examined under strict scrutiny, however, 

because all “[l]aws that burden political speech are subject to 

strict scrutiny.” Citizens United v. FEC, 130 S. Ct. 876, 898 

(2010) (internal quotation marks omitted). Moreover, even if 

contribution limits are generally subject to a lower standard of 

scrutiny, FECA § 323 operates as both a contribution limit and

an expenditure limit. See 2 U.S.C. § 444i(a)(1) (“A national 

committee of a political party . . . may not . . . spend any 

funds[ ] that are not subject to the limitations, prohibitions, and 

reporting requirements of this Act.”); cf. Buckley v. Valeo, 424 

U.S. 1, 25 (1976) (per curiam). Finally, even if FECA § 323 

were only a contribution limit or were applicable to some activities that implicate only associational (rather than speech) interests, strict scrutiny would still be warranted in light of the 

“heav[y] burden” that the provision imposes on “political 

part[ies’] associational freedom.” Cal. Democratic Party v. 

Jones, 530 U.S. 567, 582 (2000); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (“Regulations imposing severe burdens on plaintiffs’ [associational] rights must 

be narrowly tailored and advance a compelling state interest.”). 
13

on the part of federal officeholders, regardless of how 

those funds are ultimately used,” and “are likely to 

buy donors preferential access to federal officeholders no matter the ends to which their contributions 

are eventually put.” Id. at 155, 156. 

To prevent this form of “corruption,” the Court 

continued, it was permissible for Congress to take 

what the Court described as the “modest” step of enacting a blanket prohibition on national parties’ solicitation and expenditure of nonfederal money. 

McConnell, 540 U.S. at 142. The Court also held 

that the limitations that BCRA imposes on state and 

local parties’ use of nonfederal money were facially 

constitutional because “state committees function as 

an alternative avenue for precisely the same corrupting forces” that affect national parties. Id. at 164. 

As the district court correctly recognized, these 

“ingratiation” and “access” theories of corruption are 

no longer constitutionally tenable. J.S. App. 14a. In 

Citizens United, the Court made clear that the government’s interest in preventing actual and apparent 

corruption does not extend beyond illicit quid pro quo

arrangements. 130 S. Ct. at 910. “When Buckley

identified a sufficiently important governmental interest in preventing corruption or the appearance of 

corruption,” the Court explained, “that interest was 

limited to quid pro quo corruption.” Id. at 909 (citing 

Buckley v. Valeo, 424 U.S. 1, 26-28, 30, 46-48 (1976) 

(per curiam)). Because the “‘hallmark of corruption 

is the financial quid pro quo,’” “[i]ngratiation and access . . . are not corruption.” Id. at 910 (quoting FEC 

v. Nat’l Conservative Political Action Comm. 

(“NCPAC”), 470 U.S. 480, 497 (1985)). Thus, the 

“fact that speakers may have influence over or access 

to elected officials does not mean that these officials 

are corrupt.” Id. Indeed, the Court emphasized that 
14

“‘[f]avoritism and influence are not . . . avoidable in 

representative politics’” and that the “appearance of 

influence or access” therefore “will not cause the 

electorate to lose faith in our democracy.” Id. (ellipsis in original). 

Citizens United removes any doubt that 

“[r]eliance on a generic favoritism or influence theory” to defend restrictions on political speech “is at 

odds with standard First Amendment analyses.” 130 

S. Ct. at 910 (internal quotation marks omitted). 

The government therefore cannot meet its burden of 

proving the constitutionality of FECA § 323’s application to appellants by contending that appellants’ 

First Amendment freedoms must be suppressed to 

prevent donor “[i]ngratiation and access.” Id. 

To prevail in this as-applied challenge, the government must instead prove that each disputed application of FECA § 323 furthers the government’s 

interest in preventing actual or apparent quid pro 

quo corruption. To satisfy that burden, the government cannot rely on the fact that political parties 

may in the past have “sold access to federal candidates and officeholders” in exchange for donations of 

nonfederal money. McConnell, 540 U.S. at 153-54 

(emphasis omitted). This Court has defined a quid 

pro quo arrangement as one exchanging “dollars for 

political favors.” NCPAC, 470 U.S. at 497 (emphasis 

added). Selling “access”—in the form of private 

meetings, telephone calls, and social invitations—in 

exchange for donations is a far cry from illicit quid 

pro quo deals in which an officeholder agrees to take 

favorable governmental action—supporting legislation or directing sought-after agency action, for example—in exchange for a donation. Indeed, the “record before Congress” at the time it enacted FECA 

“was replete with specific examples of improper at-
15

tempts to obtain governmental favor in return for 

large campaign contributions.” Buckley v. Valeo, 519 

F.2d 821, 839 n.37 (D.C. Cir. 1975) (en banc). It was 

those examples on which the Court relied in Buckley

to illustrate the “pernicious practice[ ]” of “large contributions . . . given to secure a political quid pro quo

from current and potential office holders.” 424 U.S. 

at 26, 27. 

In any event, the RNC has made a commitment 

that “it will not arrange or facilitate meetings, conference calls, or other kinds of contact between softmoney contributors and federal candidates and officeholders ‘in any manner different than or beyond 

that currently afforded to contributors’ of hard 

money.” J.S. App. 8a. The district court found “no 

reason that the RNC’s pledge could not be meaningfully enforced by the FEC,” including by “initiat[ing] 

an investigation and requir[ing] the RNC to disclose 

the names of invitees to its donor maintenance 

events” and “adopt[ing] regulations requiring such 

disclosures even outside the context of an investigation.” Id. at 8a n.4. 

Nor can the government simply rely—as the district court erroneously did—on “‘the close relationship between federal officeholders and the national 

parties’” to establish a constitutionally sufficient basis for upholding future applications of FECA § 323. 

J.S. App. 16a. Although this Court has held that 

large contributions to candidates themselves may 

create a risk of actual or apparent quid pro quo corruption (Buckley, 424 U.S. at 26), contributions to 

political parties are not the equivalent of direct candidate contributions. 

This Court has repeatedly held that there is no 

“‘metaphysical identity’ between party and candi-
16

date.” FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 447-48 (2001) (“Colorado II”); 

see also Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604, 622 (1996) (op. of Breyer, J.) 

(“Colorado I”). In Colorado I, for example, the Court 

rejected the FEC’s argument that all expenditures by 

political parties in support of a candidate can be 

deemed “coordinated”—rather than “independent”—

expenditures. 518 U.S. at 621. While “the Government . . . argue[d] that [such] expenditure[s] [are] 

‘coordinated’ because a party and its candidates are 

identical, i.e., the party, in a sense, ‘is’ its candidates,” the Court refused to “assume . . . that this is 

so” because parties are “‘coalitions’ of differing interests” and because “Congress chose to treat candidates and their parties quite differently under” 

FECA. Id. at 622, 623; see also id. at 629 (Kennedy, 

J., concurring) (a “political party has its own traditions and principles that transcend the interests of 

individual candidates and campaigns”). The Court 

reaffirmed this conclusion in Colorado II, which held 

that the “assertion that the party is so joined at the 

hip to candidates that most of its spending must necessarily be coordinated spending is a statement at 

odds with the history of nearly 30 years under the 

Act.” 533 U.S. at 449. 

Nothing in McConnell purported to overrule 

these decisions or otherwise disturb the Court’s prior 

holdings that political parties and their candidates 

are not so closely aligned as to be considered a single, 

unitary entity under the law. 
17

B. None Of The Challenged 

Applications Of FECA § 323 Would 

Prevent Actual Or Apparent Quid 

Pro Quo Corruption. 

Because the government cannot rely on “ingratiation” and “access” or the purported “unity of interest” between candidates and parties to defend 

BCRA’s prohibition on nonfederal money, the government must demonstrate that each challenged application of FECA § 323 prevents actual or apparent 

quid pro quo corruption of federal officeholders. The 

government cannot meet that burden as to any of 

appellants’ intended uses of nonfederal money. 

In McConnell, this Court did not purport to identify a single example of quid pro quo corruption associated with nonfederal money. Nor could it plausibly 

have done so in light of the district court’s unambiguous factual finding to the contrary. See McConnell 

v. FEC, 251 F. Supp. 2d 176, 851 (D.D.C. 2003) 

(Leon, J.) (“The record contains no evidence of quid 

pro quo corruption”) (capitalization altered). Indeed, 

the district court found that “[t]here is no evidence 

presented in the record that any Member of Congress 

has ever changed his or her vote on any legislation in 

exchange for a donation of nonfederal funds to his or 

her political party.” Id. (emphasis added); see also 

id. at 481 (Kollar-Kotelly, J.).3 

 

3 The Court in McConnell stated that the “evidence connects 

soft money to manipulations of the legislative calendar.” 540 

U.S. at 150 (citing 251 F. Supp. 2d at 482 (Kollar-Kotelly, J.); 

id. at 852 (Leon, J.)). The pages of the district court’s opinion 

cited to substantiate these calendar “manipulations” recount 

testimony regarding what amounts, at most, to legislators’ responsiveness to a donor’s legislative priorities, not to a quid pro 

quo arrangement in which donations of nonfederal money were 
18

The government has not filled that evidentiary 

void here by introducing any evidence that the political activities that appellants are seeking to fund with 

nonfederal money could conceivably generate actual 

or apparent quid pro quo corruption. 

Appellants seek to solicit and expend nonfederal 

money to (1) support candidates in state elections 

where there are no federal candidates on the ballot 

(such as the 2009 state elections in New Jersey and 

Virginia), (2) support state candidates in elections 

where both federal and state candidates appear on 

the ballot, (3) finance party redistricting efforts after 

the 2010 census, (4) fund “grassroots lobbying” efforts to mobilize voters in response to legislative issues, (5) fund litigation in cases not involving federal 

elections, (6) pay for the maintenance and upkeep of 

the RNC’s national headquarters, (7) finance advertising campaigns regarding California ballot initiatives using advertisements that mention federal candidates, and (8) fund get-out-the-vote efforts and 

other generic campaign activity. 

The government has not identified any evidence 

that the solicitation of nonfederal money to finance 

these political activities would create a risk of actual 

or apparent quid pro quo corruption. The government’s difficulty in building an evidentiary record is 

not surprising. It is far-fetched, to say the least, to 

think that a federal officeholder would sell his vote 

in exchange for donations to his party that are used 

 

[Footnote continued from previous page]

exchanged for favorable legislative outcomes. See 251 F. Supp. 

2d at 482 (Kollar-Kotelly, J.) (recounting an episode where, in 

the absence of a hearing, the Senate amended a bill supported 

by a donor of nonfederal money); id. at 852 (Leon, J.) (same). 
19

to support a state candidate in an election where federal candidates do not even appear on the ballot, to 

fund a generic get-out-the-vote drive, or to maintain 

the parties’ headquarters. See Colorado I, 518 U.S. 

at 616 (op. of Breyer, J.) (“the opportunity for corruption posed by [‘soft money’ contributions] is, at best, 

attenuated”). 

A federal candidate is much more likely to be 

corrupted, it would seem, by a multimillion-dollar 

independent advertising campaign that expressly 

endorses his candidacy. But, Citizens United makes 

clear that independent expenditures—no matter 

their size—do not create a risk of quid pro quo corruption. It follows, a fortiori, that parties’ solicitation and expenditure of donations of nonfederal 

money do not have sufficient quid pro quo potential 

to warrant stifling the speech and associational 

rights of parties and their members. See Colorado I, 

518 U.S. at 617 (op. of Breyer, J.) (“an independent 

expenditure made possible by a $20,000 donation, 

but controlled and directed by a party rather than 

the donor, would seem less likely to corrupt than the 

same (or a much larger) independent expenditure 

made directly by that donor”) (emphasis added). 

Moreover, even if the solicitation and expenditure of nonfederal money could create a risk of quid 

pro quo corruption, FECA §§ 323(a) and (b) would 

not be “closely drawn” to serve the government’s anticorruption interest because there are substantially 

less restrictive regulatory alternatives available to 

the government. For example, a monetary limit on 

the amount of nonfederal money that a donor could 

give to a party would further the government’s anticorruption interest (assuming that interest were implicated by nonfederal money), and, in so doing, 

would impose a less severe First Amendment burden 
20

than the outright prohibition on nonfederal money 

established by FECA §§ 323(a) and (b). Like other 

campaign-finance regulations invalidated by this 

Court, BCRA’s blanket prohibition on nonfederal 

money is manifestly “disproportionate to the public 

purposes” it was purportedly “enacted to advance.” 

Randall v. Sorrell, 548 U.S. 230, 262 (2006) (op. of 

Breyer, J.). 

In the absence of any evidence that the challenged applications of FECA §§ 323(a) and (b) are 

“closely drawn” to further the government’s interest 

in preventing quid pro quo corruption of federal officeholders, those applications of the statute unconstitutionally deprive appellants of their rights to political speech and association.4 

II. PLENARY REVIEW IS WARRANTED BECAUSE 

THE QUESTION PRESENTED HAS PROFOUND 

IMPLICATIONS FOR THE FIRST AMENDMENT 

RIGHTS OF POLITICAL PARTIES AND THEIR 

MEMBERS. 

BCRA’s prohibition on nonfederal money imposes 

onerous restrictions on the First Amendment rights 

of political parties and their members, and places political parties at a profound disadvantage to other 

participants in the political process. 

This Court has repeatedly emphasized the important role of political parties in the American democratic process. “Representative democracy in any 

 

4 Although this case was filed as an as-applied challenge, this 

Court’s post-filing decision in Citizens United—together with 

the absence of any evidence in BCRA’s legislative history or the 

record in this case linking donations of nonfederal money to 

quid pro quo corruption—indicates that FECA §§ 323(a) and (b) 

may well be unconstitutional in all their applications. 
21

populous unit of governance is unimaginable,” the 

Court has explained, “without the ability of citizens 

to band together in promoting among the electorate 

candidates who espouse their political views.” Cal. 

Democratic Party v. Jones, 530 U.S. 567, 574 (2000). 

It is no surprise, then, that the “formation of national political parties was almost concurrent with 

the formation of the Republic itself.” Id. 

FECA § 323 is incompatible with the Nation’s political history and constitutional tradition because it 

severely restricts the ability of political parties to finance political activities. Indeed, BCRA’s blanket 

prohibition on nonfederal money does not preserve a 

single political activity that a national party can finance with nonfederal money. No matter how attenuated the link to federal elections, a national 

party cannot speak unless its speech is financed by 

funds raised in compliance with FECA’s source and 

amount limitations. Even if those limitations may be 

a reasonable response to the potential for quid pro 

quo corruption of federal officeholders where the 

money is to be spent “for the purpose of influencing” 

a federal election (2 U.S.C. § 431(8)(A)(i)), those requirements are unwarranted and unconstitutional 

where a national party is spending funds for other 

purposes, such as state campaigns, litigation, or redistricting. 

The First Amendment burdens of BCRA’s prohibition on nonfederal money reach not only the parties themselves but also their members. As this 

Court has emphasized, “[a]ny interference with the 

freedom of a party is simultaneously an interference 

with the freedom of its adherents” to associate together. NAACP v. Button, 371 U.S. 415, 431 (1963) 

(internal quotation marks omitted); see also Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 
22

290, 296 (1981) (“To place a . . . limit . . . on individuals wishing to band together to advance their views 

. . . is clearly a restraint on the right of association.”). 

Indeed, exercising their associational right to join together in a political party is generally the most effective means for individuals to make their voices heard 

in the political process. BCRA’s prohibition on nonfederal funds impairs that associational right by constraining the ability of political parties to speak on 

their members’ behalf. 

In so doing, BCRA places political parties at a 

disadvantage to those political organizations, such as 

nonprofit advocacy groups and 527 organizations, 

that have the ability to fund political activities without regard to the source and amount restrictions that 

impede political parties’ nonfederal activities. See 

Citizens United, 130 S. Ct. at 913 (advocacy groups 

and other corporations); EMILY’s List v. FEC, 581 

F.3d 1, 25 (D.C. Cir. 2009) (527s). Singling out political parties for disfavored First Amendment status 

is fundamentally at odds with parties’ overriding importance to the electoral process, and with the speech 

and associational rights of their members. See 

Citizens United, 130 S. Ct. at 898 (the First Amendment . . . [p]rohibit[s] . . . restrictions distinguishing 

among different speakers, allowing speech by some 

but not others”). 

Unless the government can make a showing that 

parties’ use of nonfederal money to fund political activities creates a meaningful risk of actual or apparent quid pro quo corruption, parties cannot be relegated to second-class constitutional status. Because 

the government has not made that showing here, 

FECA §§ 323(a) and (b) are unconstitutional in each 

of their challenged applications. 
23

CONCLUSION

Probable jurisdiction should be noted. 

Respectfully submitted. 

 THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

tolson@gibsondunn.com 

 Counsel for Appellants 

April 23, 2010