UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

FEDERAL	ELECTION	COMMISSION,	 )	

	 	 	 	 	 	 )	

	 	 Plaintiff,		 	 	 )	

	 	 	 	 	 	 )	

	 v.		 	 	 	 	 )	 Civil	Action	No.	15‐cv‐00017‐LPS	

	 	 	 	 	 	 )	

CHRISTINE	O’DONNELL,	 	 	 )	

FRIENDS	OF	CHRISTINE	O’DONNELL,	 )	

and	CHRIS	MARSTON,	in	his	capacity	 )	

as	Treasurer	of	Friends	of	Christine	 )	

O’Donnell,	 	 	 	 	 )	

	 	 	 	 	 	 )	

	 	 Defendants.	 	 	 )	

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND IN ANSWER TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Pursuant	to	Fed.	R.	Civ.	P.	56(a)	and	the	Court’s	December	15,	2015,	Scheduling	Order,	

Defendants	respectfully	move	 for	Summary	 Judgment	and	 to	oppose	Plaintiff’s	Motion	 for	

Summary	 Judgment	 for	 the	 reasons	 set	 forth	 in	 the	 accompanying	 Brief	 in	 Support	 of	

Defendants’	Motion	 for	Summary	 Judgment	and	in	Answer	 to	 FEC’s	Motion	 for	Summary	

Judgment.	

	 	 	 	 	 Respectfully	submitted,		

Chris	Gober	(Lead	Counsel)	

cg@gobergroup.com	

/s/ Stephen M. Hoersting__________________	

Stephen	M.	Hoersting*	

sh@gobergroup.com	

THE	GOBER	GROUP	PLLC	

PO	BOX	341016	

Austin,	TX	78734	

(512)	354‐1783	

	 	 	 	 	 	 	 *Admitted	pro hac vice

	 ATTORNEYS	FOR	DEFENDANTS	

Dated:	March	30,	2016	

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CERTIFICATE OF SERVICE

I	hereby	certify	that	on	the	30th	day	of	March,	2016,	I	electronically	filed	the	foregoing	

with	the	Clerk	of	Court	using	the	CM/ECF	system,	which	will	send	notification	of	such	filing	

to	the	following:	

Lisa	Stevenson	

Deputy	General	Counsel	–	Law	

lstevenson@fec.gov	

Kevin	Deeley	

Acting	Associate	General	Counsel	

kdeeley@fec.gov	

Harry	J.	Summers	

Assistant	General	Counsel	

hsummers@fec.gov	

Robert	W.	Bonham	

Senior	Attorney	

rbonham@fec.gov	

Seth	Nesin	

Attorney	

snesin@fec.gov		

FEDERAL	ELECTION	COMMISSION	

999	E	Street,	N.W.	

Washington,	D.C.	20463	

(202)	694‐1650	

								 /s/ Stephen M. Hoersting

	 	 	 	 	 	 	 	 Stephen	M.	Hoersting	

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

	 						

	 	 	 	 	 	 )	

FEDERAL	ELECTION	COMMISSION,	 	 )	

	 	 	 	 	 	 )	

	 	 Plaintiff,	 	 	 )	

	 	 	 	 	 	 )	

	 	 v.	 	 	 	 )	 No.	15‐cv‐00017‐LPS	

	 	 	 	 	 	 )	

FRIENDS	OF	CHRISTINE	O’DONNELL	 	 )	

CAMPAIGN	COMMITTEE,	et al.	 	 	 )	

	 	 	 	 	 	 )	

	 	 Defendants.	 	 	 )	

	 	 	 	 	 	 )	

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND IN

ANSWER TO FEC’S MOTION FOR SUMMARY JUDGMENT		

		

Chris	Gober	(Lead	Counsel)	

cg@gobergroup.com	

/s/	Stephen	M.	Hoersting	 	 	 	

		 	 	 	 	 	 Stephen	M.	Hoersting*	

sh@gobergroup.com	

THE	GOBER	GROUP	PLLC	

PO	Box	341016	

Austin,	TX	78734	

(512)	354‐1783	

	 	 	 	 	 	 	 *Admitted	pro hac vice

March	30,	2016	 	 	 	 	 	 ATTORNEYS	FOR	DEFENDANTS	

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BRIEF	IN	SUPPORT	OF	DEFENDANTS’	MOTION	FOR	SUMMARY	JUDGMENT	AND	IN				

ANSWER	TO	FEC’S	MOTION	FOR	SUMMARY	JUDGMENT																																																													i

   

TABLE	OF	CONTENTS	

STATEMENT	OF	NATURE	AND	STAGE	OF	THE	PROCEEDINGS	..........................................................	1	

SUMMARY	OF	ARGUMENT	...................................................................................................................................	1	

I.			FACTUAL	BACKGROUND	............................................................................................................................	3	

II.			LEGAL	BACKGROUND	..............................................................................................................................	10	

III.			ARGUMENT	.................................................................................................................................................	11	

A.	 STANDARD	OF	REVIEW	............................................................................................................	11	

B.	 THE	STATUTE’S	PERSONAL	USE	PROHIBITION	DOES	NOT	APPLY	TO	THE

ARRANGEMENTS	BETWEEN	MS.	O’DONNELL	AND	THE	CAMPAIGN	

COMMITTEE	...................................................................................................................................	11	

C.	 IF,	DESPITE	THE	CLEAR	INTENT	OF	THE	EXPLANATION	&	JUSTIFICATION,	

THE	PER	SE	PROHIBITIONS	ARE	APPLIED	TO	THE	ARRANGEMENT	BETWEEN	

MS.	O’DONNELL	AND	THE	CAMPAIGN	COMMITTEE,	THEY	ARE	

UNCONSTITUTIONAL	................................................................................................................	18	

D.	 MS.	O’DONNELL	AND	THE	CAMPAIGN	COMMITTEE	HAVE	ACTED	PRUDENTLY	

AND	IN	GOOD	FAITH	..................................................................................................................	20	

IV.	CONCLUSION	................................................................................................................................................	20	

CERTIFICATE	OF	SERVICE	................................................................................................................................	21	

	 	

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ANSWER	TO	FEC’S	MOTION	FOR	SUMMARY	JUDGMENT																																																													ii

   

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,		

477	U.S.	242	(1986)	.........................................................................................................................................	11	

Arizona Free Enterprise Club’s Freedom Club PAC, et al. v. Bennett,		

131	S.	Ct.	2806	(2011)	........................................................................................................................	3,	10,	19	

Broadrick v. Oklahoma,		

413	U.S.	601	(1973)	.....................................................................................................................................	2,	19	

Celotex Corp. v. Catrett,		

477	U.S.	317	(1986)	............................................................................................................................................	1	

Chevron USA, Inc. v. Nat. Resources Defense Council,		

467	U.S.	837	(1984)	..................................................................................................................................	12,	15	

Citizens United v. FEC,		

558	U.S.	310	(2010)	..................................................................................................................................	11,	19	

Davis v. FEC,		

554	U.S.	724	(2008)	................................................................................................................................	2,	4,	18	

Riley	v.	National	Federation	of	Blind	of	N.	C.,	Inc.,		

487	U.	S.	781	(1988)	........................................................................................................................................	19	

Federal Rules of Civil Procedure

Fed.	R.	Civ.	P.	56(a)	...........................................................................................................................................	1,	11	

Federal Regulations

11	CFR	100.77	.........................................................................................................................................................	20	

11	CFR	113.1(g)	............................................................................................................................................	passim	

60	Fed.	Reg.	7865,	Expenditures; Reports by Political Committees; Personal Use of Campaign

Funds (Feb.	9,	1995)	(“Explanation	and	Justification”)	...........................................................	passim	

United States Code

26	U.S.C.	§	280(A)	..................................................................................................................................................	19	

52	U.S.C.	§§	30101‐46	..........................................................................................................................................	10	

52	U.S.C.	§	30114(b)	.........................................................................................................................................	2,	16	

FECA	Amendments	of	1979,	Pub.	L.	No.	96‐187,	§	113,	93	Stat.	1339	(1980)	(originally	

codified	as	2	U.S.C.	§	439a	(1980))	............................................................................................................	10	

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BRIEF	IN	SUPPORT	OF	DEFENDANTS’	MOTION	FOR	SUMMARY	JUDGMENT	AND	IN				

ANSWER	TO	FEC’S	MOTION	FOR	SUMMARY	JUDGMENT																																																													iii

   

Other Authorities

148	Cong.	Rec.	S1991‐02	(daily	ed.	Mar.	18,	2002)	.......................................................................	1,	4,	11	

Bipartisan	Campaign	Reform	Act	of	2002,Pub.	L.	No.	107‐155,	§	301,	116	Stat.	81		

	 (codified	as	amended	at	52	U.S.C.	§	30114(b)	(formerly	2	U.S.C.	§	439a(b)))	..............	1,	4,	11	

Federal	Election	Commission	Advisory	Opinion	2001‐09,	Bob	Kerrey	.........................................	18	

S.	Rep.	No.	96‐319	(1979)	..................................................................................................................................	10	

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ANSWER	TO	FEC’S	MOTION	FOR	SUMMARY	JUDGMENT																																																													 1	

STATEMENT OF NATURE AND STAGE OF THE PROCEEDINGS

There	being	no	genuine	issue	of	material	fact	between	the	parties—Plaintiff	Federal	

Election	Commission	(“FEC”)	and	Defendants	Christine	O’Donnell	(“Ms.	O’Donnell”)	and	the	

Friends	of	Christine	O’Donnell	Committee	(“Campaign	Committee”)—this	case	is	now	before	

the	 Court	 on	 cross	 motions	 for	 summary	 judgment.	 Fed.	 R.	 Civ.	 P.	 56(a);	 Celotex Corp. v.

Catrett,	477	U.S.	317	(1986).	

SUMMARY OF ARGUMENT

The	FEC’s	per se	categories	of	personal	use	do	not	apply	to	the	arrangement	between	

the	Campaign	Committee	and	Ms.	O’Donnell	 for	 two	 reasons:	First,	 the	FEC’s	 rulemaking,	

which	was	later	codified	by	Congress	in	the	Bipartisan	Campaign	Act	of	2002,	continues	to	

interpret	 the	 statute.	 See 148	 Cong.	 Rec.	 S1991‐02	 (daily	 ed.	 Mar.	 18,	 2002);	 Bipartisan	

Campaign	Reform	Act	of	2002,	Pub.	L.	No.	107‐155,	§	301,	116	Stat.	81	(codified	as	amended	

at	52	U.S.C.	§	30114(b)	(formerly	2	U.S.C.	§	439a(b))).	The	Explanation	and	Justification	of	

that	 rulemaking	 states,	 in	 black	 letter	 language,	 that	 the	 statute’s	 per se	 prohibitions	 on	

converting	mortgage,	rent,	or	utility	payments	to	the	personal	use	of	a	candidate	apply	only	

to	payments	for	property	owned	by	the	candidate	or	for	property	owned	by	a	member	of	the	

candidate’s	family.	Expenditures; Reports by Political Committees; Personal Use of Campaign

Funds,	60	Fed.	Reg.	7862,	7865	(Feb.	9,	1995)	(“Explanation	and	Justification”).	Ms.	O’Donnell	

did	not	then	(and	does	not	now)	own	the	townhouse	at	1242	Greenville	Place,	nor	does	any	

member	of	her	family.		

Second, Ms.	O’Donnell	declared	the	Townhouse	located	at	1242	Greenville	Place	her	

legal	 residence	 to	 protect	 her	 personal	 safety	 and	 the	 safety	 of	 her	 family,	 friends,	 and	

campaign	 staff—as	 such	 threats	were	made	 known	 to	 her	in	 prior	 campaigns	 under	less	

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secure	living	arrangements.	She	did	not	really	live	at	the	Townhouse,	which	was	a	hive	of	

campaign	activity	during	 the	 time	period	at	issue	in	 this	case. See	Deposition	of	Christine	

O’Donnell,	 February	 3,	 2016,	 attached	 as	 Exhibit	 A,	 p.	 105.	 She	 listed	 the	 Campaign	

Committee	headquarters	as	her	legal	residence	in	2010	to	leave	an	impression	with	would‐

be	 harassers	 that	 she	 slept	 and	 showered	 at	 a	 place	 located	 behind	 a	 guarded	 gate	 and	

watched	by	an	active	security	service.	Ex.	A,	pp.	27‐31.	This	kept	harassers	at	bay.	As	such,	

the	obligation	to	declare	a	legal	residence	other	than	the	place	she	laid	her	head,	to	protect	

her	safety,	was	a	commitment	or	obligation	that	would	not	have	existed	irrespective	of	her	

campaigns	for	federal	office.	52	U.S.C.	§	30114(b);	11	CFR	113.1(g).

The	 FEC’s	 regulatory	 interpretation,	 now	 codified	 by	 Congress	 in	 the	 Bipartisan	

Campaign	Reform	Act	of	2002,	is	unconstitutional. The	per se	prohibition—were	it	to	apply	

to	Ms.	O’Donnell	in	 this	case	 (but,	 by	 the	 terms	 of	 the	Explanation	and	 Justification,	does	

not)—would	 charge	 the	 entire	 set	 of	 expenses	 incurred	 by	 the	 Campaign	 Committee	 for	

campaign	 purposes	 to	 the	 personal	 use	 of	 Ms.	 O’Donnell.	 But	 preventing	 a	 subleasing	

arrangement	by	Ms.	O’Donnell	with	her	Campaign	Committee,	and	thereby	taking	away	the	

ability	to	sublease	space	using	reasonable,	market‐based	allocation	formulas,	would	deny	or	

disparage	Ms.	O’Donnell’s	First	Amendment	right	to	commit	her	personal	resources	to	a	run	

for	federal	office,	Davis v. FEC,	554	U.S.	724	(2008).	And	would	do	so,	the	FEC	readily	admits,	

only	to	further	a	putative	interest	in	administrative	efficiency.

Defendant	 O’Donnell,	 under	 the	 substantial	 overbreadth	 doctrine	 of	 Broadrick v.

Oklahoma,	413	U.S.	601	(1973)	has	standing	to	press	the	rights	of	a	real	property	owner	who	

wants	to	employ	his	residence	in	a	campaign	to	federal	office,	but	is	burdened	in	doing	so	by	

the	per se	categories	on	mortgage,	rent,	and	utility	payments	in	the	statute.	

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The	per se	categories	impose	an	expenditure	ban	on	the	Campaign	Committee,	subject	

to	 strict	 scrutiny,	 not	 rational	 basis	 review,	 as	 the	 FEC	 suggests.	 And	 the	 FEC	 crafted	its	

regulatory	interpretation	as	a	matter	of	administrative	convenience	without	due	to	concern	

to	 the	 right	 of	 campaign	 committees	 to	make	 campaign	 expenditures.	 As	 such,	 the	 FEC’s	

regulatory	 interpretation	 is	 overly	 broad	 and	 improperly	 tailored	 to	 allow	 space	 for	 the	

fundamental	rights	of	campaign	committees.	Arizona Free Enterprise PAC v. Bennett,	131	S.	

Ct.	2806	(2011).	

In	any	event,	Ms.	O’Donnell	and	the	Campaign	Committee	acted	prudently	and	in	good	

faith.	

I.			FACTUAL BACKGROUND

The	 factual	 background	in	 this	 case	is	long,	 but	 undisputed.	 Its	essential	elements	

have	yet	to	be	properly	presented	in	one	place.	Defendants	will	do	so	here.	

For	 decades	 leading	 up	 to	 the	 year	 1995,	 the	 Federal	 Election	 Commission	 had	 a	

constitutional,	workable	system	for	enforcing	Congress’	prohibition	on	converting	campaign	

funds	to	the	personal	use	of	any	person.	“[I]n	the	past,	the	Commission	has	generally	allowed	

campaigns	to	rent	property	owned	by	the	candidate	...	for	use	in	the	campaign,	so	long	as	the	

campaign	did	not	pay	rent	in	excess	of	the	usual	and	normal	charge	for	the	kind	of	property	

being	rented.”	Explanation	and	Justification,	60	Fed.	Reg.	7862,	7865.	With	regard	to	office	

space	inside	a	candidate’s	home,	the	FEC	required	payments	to	be	allocated	according	to	use,	

putting	 the	burden	on	committees	and	candidates	 to	be	 ready	 to	defend	 their	allocations	

with	evidence	of	square	footage	and	fair‐market	rental	rates.	Id.

In	 1995,	 the	 FEC	 rewrote	 its	 regulations	 on	 personal	 use.	 See	 Explanation	 and	

Justification	at	7862.	This	included	its	approach	to	enforcing	the	prohibition	on	converting	

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campaign	 funds	 to	 the	 personal	 use	 of	 candidates.	 The	 FEC	 noted,	in	its	 rulemaking	 that	

“Paragraph	(g)(1)(i)(E)”—the	per se	prohibition	at	issue	in	this	case—“addresses	the	use	of	

campaign	funds	for	mortgage,	rent	or	utility	payments	on	real	or	personal	property owned

by the candidate or a member of the candidate’s family.”		Explanation	and	Justification	

at	7865	(emphasis	added).	The	FEC	stated	that	its	switch	from	a	personal‐use	enforcement	

system	that	reviews	allocation	formulas	based	upon	market	rates,	to	an	enforcement	system	

based	 on	 per se	 categories	 of	 personal	 use,	 was	 to	 further	 the	 Commission’s	 need	 for	

administrative	convenience.	Id.	at	7865.	

In	2002,	Congress	poured	 the	FEC’s	personal‐use	regulation,	in toto,	into	 the	many	

provisions	 of	 the	Bipartisan	 Campaign	Reform	Act	 of	 2002.	See 148	 Cong.	Rec.	S1991‐02	

(daily	ed.	Mar.	18,	2002);	Bipartisan	Campaign	Reform	Act	of	2002,	Pub.	L.	No.	107‐155,	§	

301,	116	Stat.	81	(codified	as	amended	at	52	U.S.C.	§	30114(b)	(formerly	2	U.S.C.	§	439a(b))).	

In	 2006,	 Ms.	 O’Donnell	 was	 a	 write‐in	 candidate	 for	 U.S.	 Senator	 for	 the	 State	 of	

Delaware.	Ex.	A,	p.	6.	She	received	a	fair	amount	of	hate	mail,	but	no	harassers	showed	up	at	

her	premises.	

In	2008,	the	Supreme	Court	of	the	United	States	handed	down	Davis v. FEC,	554	U.S.	

724	(2008);	holding	that	a	candidate	has	a	fundamental	right	to	commit	personal	resources	

to	a	campaign	to	federal	office.	

That	 same	 year,	 2008,	 Ms.	 Christine	 O’Donnell	 was	 a	 candidate	 for	 United	 States	

Senate	for	the	State	of	Delaware	for	the	2008	election	cycle.	Ex.	A,	p.	6;	Affidavit	of	Christine	

O’Donnell,	Ex.	B,	¶	3.	In	July	of	2008,	Ms.	O’Donnell’s	home—her	personal	residence—was	

broken	into,	vandalized,	and	vulgar	names	and	graffiti	were	scrawled	onto	her	porch	wall	

and	windows.	Ex.	B,	¶	7.	On	or	about	November	of	2008,	Ms.	O’Donnell’s	Senate	campaign	

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office,	located	in	Wilmington,	DE,	was	broken	into.	Whole	file	cabinets	were	stolen.	Ex.	B,	¶	

8.	Throughout	the	2008	Senate	run,	during	the	primary	and	general	elections	of	that	year,	

threats	 were	made	 against	Ms.	 O’Donnell	 and	many	 were	made	 known	 to	 her	 via	 family	

members	working	on	the	campaign	or	by	other	campaign	staff.	Ex.	B,	¶	9;	Affidavit	of	Jennie	

O’Donnell,	Ex.	C,	¶	6.	

In	2009,	when	Ms.	O’Donnell	was	weighing	another	run	for	U.S.	Senator	for	the	2010	

cycle,	she	had	already	decided,	based	on	 the	nature	and	 frequency	of	 the	 threats	she	had	

experienced	during	the	2008	campaign,	that	she	would	have	to	take	better	precautions	to	

preserve	 her	 safety	 in	 any	 future	 campaign.	 She	 decided	 never again	 to	 list	 as	 a	 legal	

residence,	for	public	and	press	consumption,	the	locale	at	which	she	actually	lays	her	head.	

The	entire	decision‐making	process	is	provided	in	Ms.	O’Donnell’s	testimony:	

Q:	 At	what	point	in	 this	process	did	 you	decide	 that	 you	were	going	 to	live	in	 the	

townhouse?	

A:		 Well,	in	the	2008	campaign	and	in	the	2006	campaign	there	were	a	lot	of	threats.	

Someone	vandalized	my	home.	Someone	broke	in.	 I	had	death	 threats.	 It	was	a	

security	issue.	

So	I	had	decided	that	because	my	address	was	public	record	that	if	I	chose	to	run	

again	I	wouldn’t	do	that.	And	I	was	actually	looking	at	things	like	right	across	the	

street	there	is	a	UPS	store.	I	was	going	to	have	that.	I	talked	to	my	lawyer	to	see	if	

it’s	legal	to	make	that	a	residency.	Residency	requirements	are,	according	to	my	

former	lawyer,	are	very	ambiguous.	And	they	are	not	really	defined	until	they	are	

challenged	in	Delaware.	

So	I	didn’t	want	where	I	was	laying	my	head	to	be	my	legal	address	anymore	for	

security	reasons.	And	that	was	a	decision	I	made	as,	you	know	–	I	would	have	liked	

it	to	be	that	way	in	2008.	

Q:		When	 did	 you	 decide	 that	 you	 were	 going	 to	 use	 the	 campaign	 office	 as	 a	

residence?	

A:		 After	we	decided	to	get	that	place,	I	was	going	use	either	the,	either	a	P.O.	Box	type	

that’s	a	street	address	or	use	a	friend	of	mine’s	grandmother’s	address	as	my	legal	

residence.	But	I	was	very	hesitant	to	do	that	as	well	because	someone	would	be	

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showing	up	at	my	friend’s	grandmother’s	house.	It	must	have	helped	me,	but	the	

point	was	 to	 keep	 people	 safe.	And	 considering	 the	amount	 of	death	 threats	...	

considering	 that	 safety	 was	 a	 factor,	 I	 didn’t	 want	 anyone	involved	 with	 me,	 I	

didn’t	want	to	put	a	target	on	anyone	else’s	back.	

When	we	realized	that	where	[staffer]	David	[Hust]	was	going	to	be	living	[after	

moving	 North	 from	 Houston,	 TX	 to	 work	 on	 the	 campaign	 and	 live	 in	 the	

campaign’s	 townhouse],	 there	 was	 a	 guardhouse	 out	 front,	 they	 kept	 the	 place	

secured,	then	that’s	when,	you	know,	...	we	realized	it	would	have	been	smarter	to	

do	it	this	way	[declare	the	campaign	headquarters	my	legal	residence	to	ensure	my	

safety].	

Q:		Were	you	concerned	that	having	your	address	at	the	campaign	office	where	other	

staffers	and	people	were	living	posed	a	security	threat	to	those	people?	

A:		 Well,	that’s	one	of	the	reasons	why	we	chose	it.	Like	I	said,	there	was	a	guardhouse	

there	 and	 they	 patrol	 it.	 And	 that	 turned	 out	 wonderful	 during	 the	 campaign	

because,	you	know,	if	...	people	showed	up	or	started	congregating	out	front,	we	

didn’t	have	to	worry	about	it.	Barbara	from	the	leasing	office	sent	security	out	and	

chased	them	away.	So,	of	course,	it	was	a	factor	that	they	provided	security.		

Q:		 To	your	knowledge,	were	there	any	such	incidents	at	the	2010	campaign	office?	

A:		 Yes.	

Q:		 Can	you	describe	what	happened?	

A:		 Oh,	there	were	several....	People	showed	up	on	the,	on	my	aunt’s	porch	thinking	it	

was	my	house	and	tried	to	break	in,	my	little	aunt.	It	was	hell.	Of	course	I	didn’t	

want	people	knowing	where	I	was.	And	I	felt	horrible	that	other	people	had	to	pay	

the	price	so	I	could	be	safe....	

I’m	sorry.	Like	it’s	infuriating.	I	took	every	measure	I	could	to	keep	people	safe	and	

they	still	weren’t.	But	I	was	safe	and	I’m	grateful.	And	the	reason	I	was	kept	safe	is	

the	reason	I	am	here	[in	this	lawsuit;	in	this	deposition].	It’s	nuts.	I’m	sorry.	This	is	

nuts.	

Q:		 If	you	need	to	take	a	break	at	any	time	‐‐	

Ex.	A,	pp.	27‐31.	

	 Ms.	O’Donnell	has	consistently	testified	that	she	“wasn’t	even	technically	living	there	

[in	 the	 Townhouse],”	 Ex.	 A,	 p.	 105,	 but	 also	 maintained	 that	 she	 listed	 the	 Campaign	

Committee	headquarters	(the	Townhouse)	as	her	legal	residence	to	ensure	her	safety:	

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So	 it	 was	 a	 security	 measure,	 getting	 a	 physical	 barrier	 as	 to	 how	 stalkers	 and	

harassers	and	people	would	make	 threats	against	me,	people	who	jeopardized	my	

safety:	We	had	to	quickly	put	up	a	physical	barrier,	which	is	your	physical	address.	

Ex.	A,	pp.	105‐06.	

Ms.	O’Donnell	took	every	precaution	to	ensure	it	was	legal	to	declare	the	Campaign	

Townhouse	as	her	legal	residence:		

Q:		 Can	you	tell	me	everything	you	did	at	that	time	to	assure	yourself	that	what	you	

were	doing	was	legal?	

A:		 Well,	I	called	the	FEC.	

Q:		 Right.	Other	than	that,	did	you	take	any	other	steps?	

A:		 I	checked	with	an	attorney	about	Delaware	residency	laws.	

Q:	 When	you	checked	with	the	attorney	about	Delaware	residency	laws,	was	that	a	

question	about	the	legalities	that	–	

A:		 Well,	would	I	have	to	stay	there,	you	know,	sleep	overnight	75	percent	of	the	time	

to	make	that	what	was	on	my	driver’s	license,	things	like	that.	For	the	address	that	

I	put	on	my	driver’s	license,	what	does	it	have	to	be?	Can	it	be	a	street	address	that’s	

actually	a	UPS	store?	You	know,	things	like	that.	What	am	I	allowed	to	do	to	shelter	

the	public	from	knowing	where	I	actually	live.	

Q:		 But	those	questions	were	directed	to	whether	you	were	breaking	any	state	laws,	

for	example.	

A:		 When	it	came	to	my	residency.	The	[federal]	campaign	laws	are	what	we	checked	

with	[FEC	employee]	Vicki	Davis	directly	explaining	to	her	what	we	were	going	to	

do.	

Ex	A.,	pp.	41‐42.	

Ms.	O’Donnell	also	testified	that	her	campaign	manager,	Matt	Moran,	had	consulted	

with	a	New	York	lawyer	about	the	arrangement	and	the	firm	retained	blue‐chip	lawyer,	Cleta	

Mitchell.	Ex.	A,	pp.	45,	77.	

In	 2010,	 the	 Campaign	 Committee	 entered	 into	 a	 lease	 for	 a	 townhouse	 at	 1242	

Presidential	Drive,	Greenville,	Delaware,	from	Mid‐Atlantic	Realty	Co.	(Pl.	FEC’s	Compl.	for	

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Civil	Penalty,	Declaratory,	Injunctive,	and	Other	Appropriate	Relief	(“Compl.”)	¶	13	(D.I.	1);	

Defs.	Answer	and	Countercls.	(“Answer	&	Countercls.”)	at	2‐3,	¶	13	(D.I.	9).)	The	Campaign	

Committee	used	the	Greenville	Townhouse	as	its	headquarters	during	Ms.	O’Donnell’s	2010	

campaign	for	Senate	and	continued	to	use	the	Townhouse	after	the	November	2010	general	

election.	(Compl.	¶	14;	Answer	&	Countercls.	at	3,	¶	14).	The	Campaign	Committee	paid	rent	

and	utilities	for	the	Townhouse,	including	payments	to	Comcast	for	communications	services	

and	to	Delmarva	Power	for	electricity.	(Compl.	¶	16;	Answer	&	Countercls.	at	3,	¶	16).	The	

Complaint	alleges	that	Ms.	O’Donnell	lived	on	the	floors	of	the	Greenville	townhouse	above	

the	 campaign	 office	 for	 at	 least	 ten	 months.	 (Compl.	 ¶	 15.)	 Defendants	 have	 denied	 that	

specific	allegation,	but	admitted	that	Ms.	O’Donnell	did,	at	a	minimum,	sublease	space	in	the	

Townhouse	during	the	relevant	period.	(Answer	&	Countercls.	at	3,	¶	15;	at	7,	¶	9;	at	10,	¶	

19.)	

According	 to	 the	 O’Donnell	 Committee’s	 FEC	 reports,	 Ms.	 O’Donnell	 did	 make	

sublease	rental	payments	to	the	Committee	for	a	portion	of	the	costs	for	the	townhouse	rent	

and	utilities.	(Compl.	¶	17;	Answer	&	Countercls.	at	3,	¶	17.)	

Ms.	O’Donnell	“wasn’t	even	technically	living	there.”	Ex.	A,	p.	105.	And	Ms.	O’Donnell	

was	“usually”	at	the	Campaign	Townhouse	“for	campaign	reasons.”	Ex.	A,	p.	130.	Choosing	

the	 Townhouse	 as	 her	legal	 residence	 “was	 a	 security	measure.”	Ex.	 A,	 pp.	 105‐106.	 The	

Campaign	Committee,	later	in	the	campaign,	paid	to	bring	in	beds	for	campaign	staffers.	Ex.	

A,	p.	95.	At	no	time	was	a	bed	ever	put	into	the	bedroom	(for	which	Ms.	O’Donnell	was	making	

sublease	 payments)	 for	Ms.	O’Donnell’s	 use.	She	 rarely	 slept	in	 the	Townhouse.	The	 only	

piece	of	furniture	put	in	the	room	for	Ms.	O’Donnell	was	a	desk,	for	campaign	use,	used	by	

Ms.	O’Donnell	mostly	for	media	and	fundraising	phone	calls.	Ex.	A,	95,	158.	

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At	one	point,	 the	Townhouse	had	 ten	people	living	in	it.	Ex.	A,	p.	26.	The	bedroom	

listed	as	Ms.	O’Donnell’s	(for	purposes	of	calculating	the	fair	value	of	the	sublease	payments)	

housed	five	female	interns,	but	not	Ms.	O’Donnell	herself.	Id.	As	the	number	of	staff	began	to	

increase,	and	the	Campaign	Townhouse	was	“bursting	at	the	seams,”	Ms.	O’Donnell	no	longer	

used	the	Campaign	Townhouse	even	as	her	office.	Ex.	A,	pp.	122,	159.	But	she	continued	to	

list	it	to	the	public	as	her	legal	residence	and	to	make	sublease	payments.	Ex.	A,	pp.	122,	159.	

The	downstairs	of	the	Campaign	Committee	Townhouse	had	no	living	room	furniture,	

only	four	desks,	computers,	campaign	televisions,	etc.	Ex.	A,	p.	97.	There	was	an	additional	

desk	in	 the	dining	room,	which	was	used	as	a	conference	room	 for	meetings.	 It	had	 filing	

cabinets	and	bookcases	and	“the	big	campaign	schedule	above	the	table.”	Ex.	A,	p.	128.	The	

kitchen	was	partly	used	as	a	break	room,	the	same	as	in	any	office	setting.	Ex.	A,	p.	97.	But	

the	kitchen	also	had	a	little	table	in	it	and	was	more	often	used	by	volunteers	to	work	on	

whatever	projects	they	had.	Ex.	A,	p.	128.	The	garage	was	not	used	for	Ms.	O’Donnell’s	vehicle,	

but	rather	to	store	campaign	signs,	boxes	of	campaign	T‐shirts,	and	boxes	of	push	cards.	Ex.	

A,	p.	142.	Indeed,	such	items	were	already	overflowing	the	basement,	which	was	never	used	

to	store	personal	items	for	Ms.	O’Donnell.	Ex.	A,	p.	142.	

On	 no	 night	 during	 the	 campaign	were	 the	 occupants	 of	 the	 Campaign	 Committee	

Townhouse	 ever	 limited	 solely	 to	 the	 people	 who	 lived	 there,	 Ex.	 A,	 p.	 126,	 and	 it	 was	

common	to	find	campaign	volunteers	and	staff	working	there	at	all	hours,	certainly	as	late	

(or	as	early)	as	3	a.m.	Ex.	A,	p.	126.	What	also	increased	were	the	threats:	the	campaign	had	

consulted	security	expert	Dr.	Shawn	Greener	to	ensure	the	safety	of	Ms.	O’Donnell	and	her	

staff.	Ex.	C,	¶	9.		

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In	 2011,	 the	 Supreme	 Court	 of	 the	 United	 States	 handed	 down	 Arizona Free

Enterprise,	131	S.	Ct.	2806.	In	that	opinion,	the	High	Court	held	that	neither	administrative	

efficiency	nor	administrative	convenience	are	governmental	interests	sufficient	to	deny	or	

disparage	the	First	Amendment	right	to	political	association	and	speech.	

After	 the	 campaign	 wound	 down	 in	 2011,	 Ms.	 O’Donnell	 continued	 to	 list	 the	

Townhouse	as	her	legal	residence,	for	security	reasons	(though	still	she	did	not	actually	live	

there).	Ex.	A,	p.	105.	She	changed	her	address	in	2014.	She	has	testified	that	she	still	receives	

unwanted	 harassment	 whenever	 the	 press	 writes	 a	 story	 about	 the	 2010	 campaign,	

including	the	status	of	the	instant	case.	Ex.	A,	p.	166.	

II.			LEGAL BACKGROUND

		 The	Federal	Election	Campaign	Act,	52	U.S.C.	§§	30101‐46,	was	first	enacted	in	

1971	without	a	“personal	use”	provision.	Congress	amended	FECA	in	1979	to	state	that	no	

campaign	funds	“may	be	converted	by	any	person	to	personal	use.”	FECA	Amendments	of	

1979,	Pub.	L.	No.	96‐187,	§	113,	93	Stat.	1339	(1980)	(originally	codified	as	2	U.S.C.	§	439a	

(1980)).	 Congress	 thus	 sought	 to	 apply	 to	 all	 federal	 candidates	 the	 “position	 [against	

personal	use]	adopted	by	the	Senate	on	previous	occasions	and	reflected	in	.	.	.	the	Standing	

Rules	of	the	Senate.”	S.	Rep.	No.	96‐319,	at	5	(1979).

In	1995,	the	Commission	promulgated	a	regulation	defining	“personal	use.”	See 11	

C.F.R.	 §	 113.1(g).	 The	 regulation	 divides	 the	 prohibited	 uses	 of	 campaign	 funds	into	 two	

different	categories.	Some	 types	of	spending	are	designated	as	per se “personal	use.”	Id. §	

113.1(g)(1)(i).	Other	 spending	is	examined	 on	a	 case‐by‐case	 basis	 under	what	 has	 been	

referred	to	as	the	“irrespective	test”:	“Personal	use	means	any	use	of	[campaign	funds]	.	.	.	to	

fulfill	a	commitment,	obligation	or	expense	of	any	person	that	would	exist	irrespective	of	the	

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candidate’s	 campaign	 or	 duties	 as	 a	 Federal	 officeholder.”	 Id. §	 113.1(g);	 see also id. §	

113.1(g)(1)(ii).	

The	purpose	of	enacting	 the	per se	categories	was	administrative	convenience,	see

Expenditures; Reports by Political Committees; Personal Use of Campaign Funds,	60	Fed.	Reg.	

7862,	7864	(Feb.	9,	1995)	(“Explanation	and	Justification”);	to	avoid	FEC	investigations	into	

whether	 campaigns	 have	 properly	 allocated	 expenses	 between	 personal	 and	 campaign‐

related	activities.	Id. at	 7864.	But	it	 sweeps	in	 too	much	activity	 to	 be	 constitutional.	 See

Citizens United v. FEC,	558	U.S.	310	(2010)	(campaign	expenditures	are	core	political	speech	

subject	to	strict	scrutiny).	

In	2002,	Congress	codified	the	Commission’s	regulation	in	statute,	including	both	the	

irrespective	test	and	the	list	of	per se violations.	See 148	Cong.	Rec.	S1991‐02	(daily	ed.	Mar.	

18,	2002);	Bipartisan	Campaign	Reform	Act	of	2002,	Pub.	L.	No.	107‐155,	§	301,	116	Stat.	81	

(codified	as	amended	at	52	U.S.C.	§	30114(b)	(formerly	2	U.S.C.	§	439a(b))).	

III.			ARGUMENT		

A. STANDARD OF REVIEW

“The	 court	 shall	 grant	 summary	 judgment	 if	 the	 movant	 shows	 that	 there	 is	 no	

genuine	issue	of	material	fact	and	the	movant	is	entitled	to	judgment	as	a	matter	of	law.”	Fed.	

R.	Civ.	P.	56(a).	The	“mere	existence	of	some	alleged	factual	dispute	between	the	parties	will	

not	 defeat	an	 otherwise	 properly	 supported	motion	 for	 summary	judgment.”	Anderson v.

Liberty Lobby, Inc.,	477	U.S.	242,	247‐48	(1986).	

B. THE STATUTE’S PERSONAL USE PROHIBITION DOES NOT APPLY TO THE

ARRANGEMENTS BETWEEN MS. O’DONNELL AND THE CAMPAIGN COMMITTEE

In	this	section,	Defendants	will	demonstrate	that	the	personal	use	prohibition	does	

not	 apply	 to	 the	 decision	 of	Ms.	O’Donnell	 and	 the	 Campaign	 Committee	 to	list,	 with	 the	

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general	 public,	 the	 Greenville	 Place	 Townhouse	 (aka	 the	 Campaign	 Committee)	 as	 Ms.	

O’Donnell’s	 legal	 residence.	 This	 is	 demonstrable	 for	 two	 reasons.	 First,	 the	 regulatory	

Explanation	and	Justification	interpreting	the	statutory	prohibition	on	personal	use	states,	

in	black	letter,	that	the	per se	prohibition	for	mortgages,	rent,	and	utilities	applies	only	where	

a	candidate	(or	a	member	of	the	candidate’s	family)	owns	the	real	property	in	question.	Ms.	

O’Donnell	did	not	then	(and	does	not	now)	own	1242	Greenville	Place,	nor	does	any	member	

of	 Ms.	 O’Donnell’s	 family.	 Second,	 while	 the	 expenses	 associated	 with	 having	 a	 personal	

space	 to	 rest	one’s	head	 to	sleep	 (other	 than	while	on	a	business	 trip),	having	a	space	 to	

entertain	 family	and	 friends,	 to	spend	evenings	watching	TV,	 to	shower,	dress,	or	even	 to	

park	one’s	vehicle	in	a	garage,	generally	are	commitments	or	obligations	 that	would	exist	

irrespective	of	any	decision	to	run	for	federal	office.	11	CFR	113.1(g).	But	Ms.	O’Donnell	did	

none	of	these	things	at	1242	Greenville	Place.	To	the	contrary,	Ms.	O’Donnell	rested	her	head	

elsewhere.	Ex.	A,	p	105.	Ms.	O’Donnell	listed	 the	Townhouse	as	her	legal	residence	not	 to	

actually	live	there,	but	rather	to	distract	would‐be	harassers.	Any	expense	associated	with	

declaring,	legally	and	to	the	general	public,	Ms.	O’Donnell’s	legal	residence	as	the	Campaign‐

Committee	 Townhouse,	 was	 a	 commitment	 or	 obligation	 that	 would	 not have existed

irrespective of	her	campaign	for	United	States	Senator	 from	the	State	of	Delaware.	11	CFR	

113.1(g).	

1. The per se categories in the statute do not apply to this type of

sublease arrangement because Ms. O’Donnell did not own 1242

Greenville Place, nor did any member of her family.

In	our	American	system	of	law,	administrative	agencies	enforcing	statutes	are	bound	

to	follow	the	interpretations	they	put	forth	in	their	rulemakings.	See Chevron USA, Inc. v. Nat.

Resources Defense Council,	467	U.S.	837,	844	(1984)	(“If	Congress	has	explicitly	left	a	gap	for	

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the	agency	 to	 fill,	 there	is	an	express	 delegation	 of	authority	 to	 the	agency	 to	elucidate	a	

specific	 provision	 of	 the	 statute	 by	 regulation.	 Such	 legislative	 regulations	 are given

controlling weight	 unless	 they	 are	 arbitrary,	 capricious,	 or	 manifestly	 contrary	 to	 the	

statute).	 That	 goes	 double	 for	 the	 per se	 categories	 against	 personal	 use	 now	 codified	in	

section	30114(b),	as	Congress	merely	codified	the	FEC’s	1995	rulemaking	on	the	matter.	So,	

the	question	is,	what	does	the	per se	prohibition	on	mortgages,	rent,	and	utilities	address?	

The	 Explanation	 and	 Justification	 could	 not	 be	 more	 clear:	 “Paragraph	 (g)(1)(i)(E)	 ...	

addresses	 the	 use	 of	 campaign	 funds	 for	 mortgage,	 rent	 or	 utility	 payments	 on	 real	 or	

personal	 property owned by the candidate or a member of the candidate’s family.		

Explanation	and	Justification	at	7865	(emphasis	added).	

That	property	owned	by	candidates	or	their	families	is	what	was	being	addressed	is

only	made	more	 clear	 by	 the	 discussion	 of	 property	 that	is	 not	a	 personal	 residence:	 “In	

contrast,	paragraph	(g)(1)(i)(E)(2)	continues	the	Commission’s	current	policy	in	situations	

where	 the	property	being	rented	is	not	part	of	a	personal	residence	of	 the	candidate	or	a	

member	of	the	candidate’s	family.	Thus,	a	campaign	committee	can	continue	to	rent	part	of	

an	office	building	owned	by	the	candidate	for	use	in	the	campaign,	so	long	as	the	committee	

pays	no	more	than	fair	market	value.”	Id. 	(emphasis	added).	

The	same	construction,	the	construction	of	candidate	ownership,	is	apparent	when	

we	 look	 at	 another	 section	 of	 the	 Explanation	 and	 Justification	 (“E&J”)	 from	 yet	 another	

perspective—the	perspective	of	practical	application.	Another	section	of	 the	E&J	explains	

that	the	personal	use	statute	allows	a	campaign	committee	to	“use”	the	personal	residence	

of	the	candidate	so	long	as	the	campaign	committee	does	not	“pay rent”	to	use	it.	Id. (“It	is	

important	to	note	that	paragraph	(g)(1)(i)(E)(1)	does	not	prohibit	the	campaign	from	using	

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a	portion	of	the	candidate’s	personal	residence	for	campaign	purposes.	It	merely	limits	the	

committee’s	 ability	 to	 pay	 rent	 for	 such	 a	 use.”)	 But	 Ms.	 O’Donnell	 did	 not	 own	 1242	

Greenville	Place;	nor	was	she	the	tenant	on	the	lease—making	it	nearly	impossible	for	the	

campaign	 committee	 to	 “use”	 1242	Greenville	 Place	while	 being	 prohibited	 from	 “paying	

rent”	to	use	it.	Indeed,	it	is	nearly	impossible	to	imagine	a	scenario	in	which	any	campaign	

committee	“may	use”	space	a)	it	does	not	own,	b)	that	the	candidate	(or	candidate’s	family)	

does	not	 own,	and	c)	 for	which	neither	 the	candidate	nor	 the	campaign	committee	 “pays	

rent”	 to	 “use.”	 See	 Explanation	 and	 Justification	 at	 7865.	 Indeed,	 how	 long	 would	 a	

commercial	landlord,	like	Greenville	Place,	allow	a	campaign	committee	to	“use”	space	for	

which	 the	 campaign	 committee	 is	 prohibited	 from	 “pay[ing]	 rent”?	 The	 answer	 to	 the	

question	is	obvious.	And	so	is	the	construction	of	the	prohibition:	Practically	speaking,	the	

statute	only	can	permit	the	use	of	a	property,	while	at	the	same	time	prohibiting	campaign	

committees	 from	 making	 rental payments,	 only	 for	 those	 properties	 a	 candidate	 (or	 a	

member	of	the	candidate’s	family)	owns—or,	perhaps,	for	property	on	which	the	candidate

(or	 his	 family)	 is	 the	 first	 leaseholder.	 Any	 other	 scenario	 contemplating	 “use”	 without	

“payment”	 is	 unimaginable.	 Therefore,	 any	 broader	 construction	 of	 the	 statute’s	 rental	

payment	prohibition	is	nonsense—especially	a	rental	payment	prohibition	triggered	solely	

by	a	sublease	to	the	candidate.	

The	Explanation	and	Justification	comes	right	out	and	states	the	outer	and	upper	limit	

of	the	statute	and	the	regulation	that	construes	it,	and	it	is	binding	on	the	FEC:	“Paragraph	

(g)(1)(i)(E)	...	addresses	the	use	of	campaign	funds	for	mortgage,	rent	or	utility	payments	on	

real	 or	 personal	 property owned by the candidate or a member of the candidate’s

family.	Explanation	and	Justification	at	7865	(emphasis	added).	Ms.	O’Donnell	did	not	own	

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1242	Greenville	 Place.	No	member	of	Ms.	O’Donnell’s	 family	 owned	 (or	 owns)	Greenville	

Place.	

From	every	perspective,	it	is	clear	that	the	regulatory	interpretation	of	this	part	of	the	

statute	does not prohibit	a	campaign	committee	from	leasing	campaign	office	space	from	a

commercial	 landlord	 (or,	 in	 FEC	 nomenclature,	 does	 not	 contemplate	 charging	 lease	

payments	 to	 a	 commercial	 landlord	to the candidate	 as	 “personal	 use”)	 just	 because	 the	

campaign	 committee	 later	 subleases	 to	 the	 candidate	 a	 portion	 of	 the	 space	 for	 a	 legal	

residence.	It	is	clear	from	the	E&J	that	the	statutory	prohibition	was	never	intended	to	apply	

and,	 in	 fact,	 does	 not	 apply,	 to	 candidates	 subleasing	 residential	 space	 from	 a	 campaign	

committee.	And	because	the	2002	statute	derives	from	the	1995	rulemaking,	and	because	

administrative	 agencies	 are	 permitted	 to	 construe	 statutes,	 interstitially	 and	 within	 the	

bounds	of	the	Constitution,	(see Chevron)	this	Court	must	conclude	that	the	FEC,	and	later	

Congress,	never intended	to	reach	arrangements	like	this	one	with	its	per se	rule.	

So,	 the	per se	rule	does	not	apply	here.	With	regard	 to	 the	remaining	 “irrespective	

test,”	Defendants	would	make	two	points:	First,	that	an	obligation	for	a	safety	measure	would	

not	have	existed	irrespective	of	Ms.	O’Donnell’s	campaigns	to	federal	office	and,	second,	even	

if	this	Court	were	to	find	that	the	obligation	somehow	would	have	existed	irrespective	of	the	

campaign,	allocation	formulas	apply	(because	the	per se	categories	do	not	apply).	And	under	

those	applicable	allocation	formulas,	Ms.	O’Donnell	made	market‐rate	sublease	payments	to	

prevent	any	personal	use	from	transpiring.	

However,	when	one	considers	the	true	import	of	the	irrespective	test,	Ms.	O’Donnell	

was	not	under	any	obligation	to	make	sublease	payments	at all.	

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2. Listing the townhouse as Ms. O’Donnell’s legal residence was a

financial “commitment or obligation” that “would [not] have

exist[ed] irrespective of the candidacy.”

Establishing	a	legal	residence	in	a	place	other than	the	place	one	lays	one’s	head	to	

sleep—to	avoid	physical	threats,	vandalism,	and	repeated	harassment	by	stalkers	disturbed	

by	the	fact	of	one’s	candidacy	for	federal	office—is	a	campaign	safety	measure.	Instituting	a	

campaign	 safety	 measure—including	 incurring	 financial	 obligations	 to	 institute	 the	

measure—is	a	commitment	or	obligation	that	would	not	“exist	irrespective	of	the	candidacy.”	

52	U.S.C.	§	30114(b);	11	CFR	113.1(g).	As	such,	the	statutory	prohibition	does	not	apply	to	

her	activity—the	activity	was	a	qualified	campaign	expense—and	Ms.	O’Donnell	was	under	

no	legal	obligation	to	make	sublease	payments	to	the	Campaign	Committee	at all.	

Ms.	O’Donnell	considered	multiple	other	alternatives.	She	considered	listing	as	a	legal	

residence	a	property	owned	and	occupied	by	a	friend	of	a	friend,	Ex.	A,	p.	27,	but	realized	

that	option	was	untenable	because	it	would	“paint	a	target”	on	the	friends’	back.	Ex.	A,	pp.	

27‐31.	She	considered	listing	her	personal	residence	as	a	Post	Office	Box	at	a	UPS	Store.	Ex.	

A,	 pp.	 27‐31.	 She	 even	 consulted	 a	 Delaware	 attorney	 to	 explain	 the	legal	 parameters	 of	

residency	 under	 Delaware	 property	 law.	 	 However,	 she	 was	 uncertain	 a	 P.O.	 Box	 would	

qualify	as	a	legal	residence	under	Delaware	law	and	knew,	most	assuredly,	that	listing	a	P.O.	

Box	could	not	call‐off	the	search	for	her	true	residence	by	those	wanting	to	harass	her.	After	

all,	it	is	common	knowledge	that	no	human	being	sleeps	within	the	four	walls	of	a	P.O.	Box.	

The	FEC	may	suggest	that	Ms.	O’Donnell	might	have	done	something	else.	But	 there	is	no	

Platonic	ideal	in	circumstances	such	as	this;	no	perfect	alternative	in	a	parallel	universe.	And	

Ms.	O’Donnell	chose	the	best	real‐world	option	she	could,	given	multiple	considerations	to	

preserve	her	safety,	the	safety	of	her	family,	the	safety	of	her	campaign	staff,	and	others.	The	

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reality	 was	 this:	 Ms.	 O’Donnell	 had	 to	 list	 a	 public	 residence	 or	 else	 egg‐on	 would‐be	

harassers	to	search	for	her	further.	She	made	the	best	real‐world	choice	she	could	make.	She	

listed	to	the	public,	as	her	official	and	legal	residence,	a	locale	that	was	plausible	(after	all	

she	was	campaigning	from	that	base	eighteen	or	more	hours	per	day,	Ex.	A,	p.	165);	a	place	

that	 had	a	guard	 tower,	a	gate,	and	a	 security	 service.	Any	 other	 place	 but	 the	 Campaign	

Committee	Townhouse	selected	by	Ms.	O’Donnell	would	either	have	been	a	lie—the	kind	of	

lie	 that	 can	 destroy	 a	 federal	 campaign—or	 a	 physical	 locale	 vulnerable	 to	 would‐be	

attackers;	attackers	of	either	herself	or	the	collateral	attacks	against	persons	actually	living	

at	the	place	listed.	This	is	not	mere	speculation	on	Ms.	O’Donnell’s	part.	She	testified	to	the	

example	of	attackers	visiting	her	aunt,	“[her]	little	aunt,”	and	trying	to	break	into	her	aunt’s	

home	during	the	2008	campaign.	Ex.	A,	pp.	27‐31.	

To	maintain	the	integrity	of	her	campaign,	as	well	as	the	security	of	herself	and	her	

staff,	Ms.	O’Donnell	1)	listed	the	campaign	address	on	her	driver’s	license	(data	accessible	to	

the	press	and	public),	2)	never	disputed,	to	this	day,	that	the	campaign	headquarters	was	her	

“legal	residence,”	and	3)	swore,	in	this	lawsuit,	consistently,	that	she	never	lived	there.	She	

has	repeatedly	testified—and	events	bear	her	out—that	she	listed	the	Townhouse	as	a	“legal	

residence”	for	“security	reasons.”	Ex.	A,	p.	105;	Ex.	B,	¶14.	Listing	the	campaign	headquarters	

with	the	public	as	her	legal	residence	was a security measure; a	security	measure	necessitated

by	her	run	 for	Senator	 for	 the	State	of	Delaware—a	lesson	she	had	learned	 the	hard	way	

during	 her	 2008	 bid	 for	 the	 same	 office.	 It	 was	 a	 security	 obligation	 that	 did	 not	 “exist	

irrespective”	of	her	run	for	federal	office.	

“The	rule	prohibits	payments	for	use	of	a	personal	residence	because	the	expenses	of	

maintaining	a	personal	residence	would	exist	irrespective	of	the	candidacy.”	Explanation	and	

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Justification	at	7865.	But	expenses	associated	with	this	arrangement	would	not	have	existed	

irrespective	of	Ms.	O’Donnell’s	candidacy.	

The	Campaign	Committee	leased	a	townhouse	for	a	campaign	headquarters	from	a	

commercial	landlord,	by	dint	of	written	contract,	in	an	arm’s	length	bargained‐for	exchange	

at	market	rates.	Campaign	Committees	across	America	engage	in	such	leases	every	day;	and	

they	have	a	First	Amendment	right	to	do	so.	There	is	no	reason	those	lease	payments	should	

be	charged	to	Ms.	O’Donnell	as	personal	use.	That	some	of	the	threats	driving	her	decision	

were	in	the	past	is	of	no	moment.	See	Federal	Election	Commission	Advisory	Opinion	2001‐

09,	Bob	Kerrey	(former	Senator’s	use	of	remaindered	campaign	funds	to	burnish	his	image	

post‐incumbency	was	not	a	conversion	of	campaign	funds	to	his	personal	use).	

C. IF, DESPITE THE CLEAR INTENT OF THE EXPLANATION & JUSTIFICATION, THE

PER SE PROHIBITIONS ARE APPLIED TO THE ARRANGEMENT BETWEEN MS.

O’DONNELL AND THE CAMPAIGN COMMITTEE, THEY ARE UNCONSTITUTIONAL

	The	FEC’s	interpretation—not	the	interpretation	in	its	Explanation	and	Justification	

but	 its	 position	 in	 this	 case—seeks	 to	 ban	 certain	 categories	 of	 campaign	 committee	

expenditures.	11	CFR	113.1(g)(1)(i)(E)(1).	It	is	intended	 to	ease	 the	FEC’s	administrative	

burden,	but	at	the	expense	of	core	First	Amendment	rights.		

The	FEC’s	interpretation	of	an	otherwise	constitutional	personal‐use	prohibition	is	

unconstitutional	in	four	respects.	

First,	 the	 FEC’s	interpretation	in	 this	 case	would	 frustrate	Ms.	O’Donnell’s	 right	 to	

commit	personal	resources	towards	a	candidacy	for	federal	office	in	contravention	of	Davis

v. FEC,	 554	 U.S.	 724	 (2008).	 The	 Davis	 Court	 made	 no	 distinction	 between	 government	

restrictions	on	funds	the	candidate’s	campaign	committee	would	need	to	make	expressive	

expenditures	in	furtherance	of	the	candidacy,	on	the	one	hand,	and	restrictions	on	funds	the	

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candidate’s	campaign	would	need	 to	make	non‐expressive	expenditures	in	 furtherance	of	

the	candidacy,	on	 the	other.	At	no	point	did	 the	Davis	Court	subject	restrictions	on	either	

expressive	or	non‐expressive	campaign	expenditures	to	rational	basis	review.	Id.		

Second,	 the	 FEC’s	 interpretation	 is	 an	 expenditure	 prohibition	 on the Campaign

Committee,	 in	 violation	 of	 the	 First	 Amendment.	 As	 such,	 review	 of	 the	 agency’s	

interpretation	is	required	to	survive	strict	scrutiny.	Citizens United, 558	U.	S.	at	310	(internal	

quotation	marks	omitted)	(“Laws	that	burden	political	speech	are”	accordingly	“subject	to	

strict	 scrutiny.”)	 This	 “requires	 the	 Government	 to	 prove	 that	 the	 restriction	 furthers	 a	

compelling	interest	and	is	narrowly	tailored	to	achieve	that	interest.”	 Id.

But	the	FEC	issued	its	rule	in	the	name	of	administrative	efficiency.	And	 this	is	 the	

third	 ground	 on	 which	 on	 the	 FEC’s	 interpretation	 in	 this	 case	 is	 unconstitutional.	 The	

Supreme	Court	has	been	clear:	“‘the	First	Amendment	does	not	permit	the	State	to	sacrifice	

speech	for	efficiency.’”	Arizona Free Enterprise Club’s Freedom Club PAC, et al.,	131	S.	Ct.	at	

2824	(quoting	Riley	v.	National Federation of Blind of N. C., Inc.,	487	U.	S.	781,	795	(1988)).	

Fourth,	the	per se	prohibition	on	mortgages,	rent,	and	utilities	(no	matter	the	FEC’s	

overly	broad	interpretation)	permit	Ms.	O’Donnell,	under	Broadrick, 413	U.S.	601,	to	press	

the	 claim	 of	 property	 owners	 who	 may	 want	 to	 finance	 a	 campaign	 to	 Federal	 office	 by	

deploying	real	assets.	

To	meet	narrow	tailoring	and	cure	the	constitutional	deficiencies	with	this	rule,	the	

FEC	 should,	 again,	 recognize	 the	 right	 of	 candidates	 and	 their	 campaign	 committees	 to	

allocate	between	campaign	office	space	and	personal	use	of	a	residence,	much	as	the	Internal	

Revenue	Service	insists	be	done	for	home	office	deductions.	26	U.S.C.	§	280(A).	The	FEC	still	

permits	 allocations	 for	 nearly	 everything	 else.	 See	 11	 CFR	 113.1(g)(1)(i)(E)(2)	 (second	

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home);	11	CFR	113.1(g)(ii)(D)	(campaign	vehicles);	11	CFR	100.77	(food	and	beverage);	11	

CFR	113.1g(ii)(B)	(meals);	113.1g(ii)(C)	(travel).				

D. MS. O’DONNELL AND THE CAMPAIGN COMMITTEE HAVE ACTED PRUDENTLY AND

IN GOOD FAITH		

Defendants	 will	 have	 more	 to	 say	 in	 their	 Sur	 Reply.	 For	 now,	 it	 suffices	 to	 say	 Ms.	

O’Donnell	acted	prudently	in	making	her	decision.	She	contacted	a	Delaware	lawyer	about	

residency	law	and	 consulted	Vicki	Davis	about	 FEC	 rules.	Her	 treasurer	 contacted	a	New	

York	lawyer	on	the	same	matter,	the	Campaign	Committee	retained	blue‐chip	counsel,	Cleta	

Mitchel,	and	used	a	square‐footage	measure	to	apportion,	against	a	fair‐market	rate	charged	

by	a	commercial	leasing	company	(Greenville	Place),	an	appropriate	allocation	of	rent	and	

utilities	 for	Ms.	O’Donnell.	 Ex.	 A,	passim.	 The	O’Donnell	Defendants	 can	 even	 address	 the	

competing	testimony	of	Vicki	Davis	and	Nataliya	Ioffe	(transcripts	not	appended),	in	their	

Sur	Reply.

IV. CONCLUSION

Defendants’	Motion	for	Summary	Judgment	should	be	granted.	Plaintiff	FEC’s	Motion	

for	Summary	Judgment	should	be	denied.	

	 Respectfully	submitted	this	30th	day	of	March,	2016,		

		 	 	 	 	 	 Chris	Gober	(Lead	Counsel)	

cg@gobergroup.com	

						

	 /s/	Stephen	M.	Hoersting	 	 	

Stephen	M.	Hoersting*	

sh@gobergroup.com	

THE	GOBER	GROUP	PLLC	

PO	Box	341016	

Austin,	TX	78734	

(512)	354‐1783	

	 	 	 	 	 	 	 *Admitted	pro hac vice

ATTORNEYS	FOR	DEFENDANTS	

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CERTIFICATE OF SERVICE

I	hereby	certify	that	on	the	30th	day	of	March	2016,	I	electronically	filed	the	

foregoing	with	the	Clerk	of	Court	using	the	CM/ECF	system	which	will	send	notification	of	

such	filing	to	the	following:	

Lisa	Stevenson	

Deputy	General	Counsel	–	Law	

lstevenson@fec.gov	

Kevin	Deeley	

Acting	Associate	General	Counsel	

kdeeley@fec.gov	

Harry	J.	Summers	

Assistant	General	Counsel	

hsummers@fec.gov	

Robert	W.	Bonham	

Senior	Attorney	

rbonham@fec.gov	

Seth	Nesin	

Attorney	

snesin@fec.gov		

FEDERAL	ELECTION	COMMISSION	

999	E	Street,	N.W.	

Washington,	D.C.	20463	

(202)	694‐1650	

	 							 /s/ Stephen M. Hoersting

	 	 	 	 	 	 	 	 Stephen	M.	Hoersting	

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