UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE 

___________________________________ 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) No. 15-cv-00017-LPS 

 Plaintiff, ) 

 ) 

 v. ) 

 ) REPLY BRIEF IN SUPPORT OF 

CHRISTINE O’DONNELL, et al., ) MOTION TO DISMISS 

 ) COUNTERCLAIMS 

 Defendants. ) 

___________________________________ ) 

REPLY BRIEF IN SUPPORT OF PLAINTIFF FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS COUNTERCLAIMS 

Lisa J. Stevenson Robert W. Bonham III 

Deputy General Counsel – Law Senior Attorney 

lstevenson@fec.gov rbonham@fec.gov 

Kevin Deeley Seth Nesin 

Acting Associate General Counsel Attorney 

kdeeley@fec.gov snesin@fec.gov 

Harry J. Summers FOR THE PLAINTIFF 

Assistant General Counsel FEDERAL ELECTION COMMISSION 

hsummers@fec.gov 999 E Street NW 

Washington, DC 20463 

August 6, 2015 (202) 694-1650 

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TABLE OF CONTENTS 

 Page 

I. THE COUNTERCLAIMS ARE REDUNDANT DUE TO THE AFFIRMATIVE 

DEFENSES IN DEFENDANTS’ ANSWER ................................................................1 

II. RATIONAL BASIS IS THE APPROPRIATE STANDARD OF REVIEW 

FOR THE CONSTITUTIONAL COUNTERCLAIMS ................................................2 

III. THE PERSONAL USE RESTRICTION AT ISSUE HERE IS 

CONSTITUTIONAL ....................................................................................................4 

A. The Facts of This Case Demonstrate That the Per Se Rule for Rent and 

Utilities Reasonably Serves Important Government Interests ...........................4

B. Prophylactic Rules Like This One Serve Important Government Interests .......7 

C. The Personal Use Ban Does Not Prevent a Candidate From Using Her 

Home in a Campaign .......................................................................................10

CONCLUSION ........................................................................................................................10 

 

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TABLE OF AUTHORITIES 

Cases 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) ..........3, 9, 10 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .........................................................................10 

Buckley v. Valeo, 424 U.S. 1 (1976) ..................................................................................2, 3, 8 

Burson v. Freeman, 504 U.S. 191 (1992) ..................................................................................8 

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................................... 2, 3 

Davis v. FEC, 554 U.S. 724 (2008) ...........................................................................................3 

Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214 (1989) ..............................................3 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) .................................................... 3-4 

McConnell v. FEC, 540 U.S. 93 (2003) .....................................................................................3 

Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781 (1988) ...............................................9 

Regulations 

11 C.F.R. § 113.1(g)(1)(i) ..........................................................................................................7 

11 C.F.R. § 113.1(g)(1)(i)(E) .....................................................................................................2 

Miscellaneous

Expenditures; Reports by Political Committees; Personal Use of Campaign Funds, 

60 Fed. Reg. 7862 (Feb. 9, 1995) ........................................................................6, 7, 10 

Federal Rule of Civil Procedure 12(c) .......................................................................................2

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 Defendants’ counterclaims against the Federal Election Commission (“Commission” or 

“FEC”) should be dismissed because they are redundant and the two constitutional counterclaims 

fail to state a claim. Defendants’ opposition to the FEC’s opening brief fails to make any 

response to most of the FEC’s arguments in support of why the Court should dismiss the three 

counterclaims. In particular, defendants fail to address the Commission’s threshold showing that 

the counterclaims and affirmative defenses are redundant. Defendants do assert that the personal 

use ban at issue here is an unconstitutional speech restriction that must be evaluated under strict 

scrutiny, but that argument is misconceived and unsupported. This case is about Christine 

O’Donnell’s use of federal campaign funds to pay rent and utilities for her personal residence in 

violation of the personal use ban. The rule is a reasonable one that deters corruption, promotes 

ethical behavior by federal candidates, and easily survives the applicable rational basis review. 

Defendants’ counterclaims should be dismissed. 

I. THE COUNTERCLAIMS ARE REDUNDANT DUE TO THE AFFIRMATIVE 

DEFENSES IN DEFENDANTS’ ANSWER 

 All three of the counterclaims should be dismissed because they are redundant in light of 

the affirmative defenses that defendants pled and they will therefore be rendered moot when the 

principal case is decided. (Opening Br. in Supp. of Pl. FEC’s Mot. to Dismiss Countercls. (“FEC 

Br.”) at 8-10 (D.I. 14).) Indeed, the counterclaims and affirmative defenses are identical, word 

for word for the most part. (Id. at 9 & n.5.) In the course of determining whether defendants 

should be found to have violated the personal use ban, then, the Court will be required to address 

defendants’ claims that the statute does not apply to their circumstance (their first counterclaim) 

and that the statute and regulation are invalid facially and as applied (their second and third 

counterclaims). The FEC explained that the counterclaims and the affirmative defenses were 

redundant (id. at 8-9), but defendants do not address that issue, failing even to mention the 

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affirmative defenses in their opposition. (Defs.’ Answering Br. in Opp’n to Pl.’s Mot. to Dismiss 

Countercls. (“Defs.’ Opp.”) at 18 -19 (D.I. 17).) The counterclaims should be dismissed.1

II. RATIONAL BASIS IS THE APPROPRIATE STANDARD OF REVIEW FOR 

THE CONSTITUTIONAL COUNTERCLAIMS 

As the Commission demonstrated, constitutional challenges are reviewed under the 

deferential “rational basis standard” except in limited circumstances inapplicable to this case 

involving the infringement of a fundamental right or First Amendment burden. (FEC Br. at 10-

12). Defendants’ opposition does not directly respond to the FEC’s showing that the personal 

use restrictions at issue do not implicate fundamental rights. Rather, defendants’ argument rests 

solely on the view that the Court should apply strict scrutiny because the personal use ban is an 

“expenditure restriction.” (Defs.’ Opp. at 9-14.) For example, defendants claim that “any 

government-imposed restriction on campaign expenditures must meet strict scrutiny,” relying on 

Citizens United’s statement that “‘[l]aws that burden political speech are’ accordingly ‘subject to 

strict scrutiny.’” (Defs.’ Opp. at 12 (quoting Citizens United v. FEC, 558 U.S. 310, 340 (2010)).) 

But not all possible disbursements by a campaign committee constitute “political speech.” 

 “Expenditure limitations” are restrictions on the “amount of money a person or group can 

spend on political communication during a campaign.” Buckley v. Valeo, 424 U.S. 1, 19 (1976). 

The personal use restriction at 11 C.F.R. § 113.1(g)(1)(i)(E) is not such an expenditure limit 

because it does not limit the amount of money a campaign can spend, nor does it infringe on 

“political communication” or any other fundamental right. (FEC Br. at 11-14.) Defendants do 

                                                           

1

 We believe that the identical constitutional issues presented in defendants’ second and 

third counterclaims and third and fourth affirmative defenses are appropriate for resolution on 

the merits by preliminary motion. As indicated earlier (FEC Br. at 10 n.6), we intend to move 

for judgment on the pleadings regarding those affirmative defenses when permitted by Rule 

12(c), including in the event the constitutional issues are not resolved in the course of disposition 

of this motion. 

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not respond to these points.2 They do not explain why spending campaign funds for personal 

uses would constitute a “fundamental right,” nor how paying rent for part of a candidate’s 

residence rather than renting other office space as campaign headquarters would constitute “core 

First Amendment rights of political expression.” (FEC Br. at 12 (quoting Buckley, 424 at 44-

45).) Defendants also fail to explain why, even if political speech were infringed, the restriction 

would be dissimilar to a constitutional “time, place and manner” restriction. (FEC Br. at 13-14.) 

Lastly, defendants ignore the Commission’s explanation of the functional analysis used in 

McConnell v. FEC, 540 U.S. 93 (2003), to distinguish between spending limits that are subject to 

strict scrutiny and other limits that are reviewed under a more lenient standard. (FEC Br. at 14 

(quoting McConnell, 540 U.S. at 138-39).)3

 Defendants’ other assertions are unresponsive to the Commission’s arguments. For 

example, defendants claim that “[t]he argument that a committee is not harmed so long as it may 

spend all the resources it can collect has been rejected again and again by the Supreme Court.” 

(Defs.’ Opp. at 15 (citing Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 

2806, 2824 (2011); Davis v. FEC, 554 U.S. 724, 740 (2008); FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238, 256 (1986)).) But the FEC’s argument was that any “harm” that a campaign 

                                                           

2

 To the extent defendants make any argument to explain why the personal use restriction 

is an expenditure limit, they rely on general judicial statements about “speech” or “amount of 

money.” (See, e.g., Defs.’ Opp. at 12 (quoting Citizens United, 558 U.S. at 340); Defs.’ Opp. at 

13 (“A ‘restriction on the amount of money a person or group can spend on political 

communication during a campaign necessarily reduces the quantity of expression’” (quoting 

Buckley, 424 U.S. at 28-29)); Defs.’ Opp. at 13 (“The First Amendment ‘has its fullest and most 

urgent application to speech uttered during a campaign for political office.’” (quoting Eu v. S.F. 

Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989).) These statements do not apply to the 

personal use restriction, which does not target political speech or limit the amount of money a 

campaign can spend. 

3

 Defendants characterize these legal questions as “open questions this Court is poised to 

answer.” (Defs.’ Opp. at 10.) But the Court is not writing on a clean slate; the precedent cited in 

both this reply and in the FEC’s opening brief dictate the result. 

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committee may suffer by being unable to rent space to its candidate did not implicate the First 

Amendment or any fundamental right. For purposes of deciding the appropriate level of 

scrutiny, the Court must decide whether the personal use restriction constitutes an “expenditure 

limit” as that term has been used by the Supreme Court. It does not. 

III. THE PERSONAL USE RESTRICTION AT ISSUE HERE IS CONSTITUTIONAL 

A. The Facts of This Case Demonstrate That the Per Se Rule for Rent and 

Utilities Reasonably Serves Important Government Interests 

 As an initial matter, under rational basis review an agency rule need not be the best 

possible rule or even one a court would choose, but merely a rational means to a legitimate 

governmental end. (FEC Br. at 15.) The rationality of the FEC’s per se rule for rent and utility 

payments is evident from the facts of this case. Defendants argue that an allocation system 

would be superior because it would give greater freedom to the Committee, which “is a separate 

legal entity from the candidate,” and that the Committee is looking out for its own interests when 

it rents space because “[n]o expenditure by or on behalf of the Campaign Committee can be 

made without the authorization of the Campaign Committee’s treasurer; in this case Matthew 

Moran, or his agent.” (Defs.’ Opp. at 11). Candidates and their campaign committees are 

distinct legal entities, but those committees exist primarily to carry out the candidates’ campaign 

instructions. And in this case, the Committee’s own FEC reports show that Christine O’Donnell 

herself was apparently acting as treasurer, signing the Committee’s reports from January 2010, 

when the townhouse lease began, through August 2010 — a period that encompasses much of 

the time that the Committee leased the property and the period in which O’Donnell made the 

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majority of her payments to the Committee to reimburse it for paying her rent.4 Thus, 

defendants’ assertions of independent action are dubious at best. 

Defendants also claim that “Friends of Christine O’Donnell would have incurred the 

costs to lease the campaign headquarters irrespective of Christine O’Donnell’s subsequent 

decision to sublease a portion of the space.” (Defs.’ Answer & Countercls. at 7 ¶ 9 (D.I. 9).) But 

that assumes that the Committee would have rented more space than it actually needed: the 

space that O’Donnell subleased. It also makes the far-fetched assumption that the campaign’s 

utility usage would have been the same without O’Donnell living in the townhouse for many 

months. And the fact that O’Donnell was apparently acting as treasurer of her committee at the 

time it entered into the lease strongly suggests that the lease and sublease decisions were 

intertwined. 

 Moreover, far from showing that the personal use rule is irrational, defendants fail to 

show that their preferred alternative would even work as well. Under the allocation scheme 

defendants favor, the FEC would ordinarily have no way of knowing, without undergoing an 

investigation into a candidate’s living arrangements, whether the amounts reported as 

reimbursements from the candidate to her campaign represent the actual market value of the 

portion of the property she was using as her residence. Defendants’ own arguments here 

highlight this difficulty. To determine the value of what O’Donnell actually received from her 

campaign, the Commission might be required to request information from O’Donnell and others 

about what parts of the property and utilities she used, during what time periods, and whether for 

campaign or residential purposes. The Commission might also be required to obtain the services 

                                                           

4

   See, e.g., Jan. 24, 2010 FEC Form 3, http://docquery.fec.gov/cgibin/fecimg?_10020033729+0 (signed by Treasurer Christine O’Donnell); July 15, 2010 FEC 

Form 3, http://docquery.fec.gov/cgi-bin/fecimg?_10020573532+0 (same). 

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of an expert to determine the value of those benefits at that location during that time period. And 

after all that, if a candidate like O’Donnell turned out to have underpaid, defendants seem to 

argue that she should simply be allowed to make up the difference, leaving her no worse off than 

if she had paid an appropriate amount in the first place. (Defs.’ Opp. at 5-6 (suggesting that 

reimbursing for underpayments should be considered a “step toward cure.”).) 

Under the schemes made possible by defendants’ proposal, there would be little incentive 

for candidates to avoid converting campaign funds to personal use, the Commission might have 

to devote considerable resources to investigating personal living arrangements and analyzing real 

property and utility values, and the public might suspect widespread corruption and self-dealing. 

Concerns like these led the FEC to change the regulation 20 years ago, superseding at least four 

Advisory Opinions which had tried to make case-by-case determinations under the allocation 

rule that previously existed. Expenditures; Reports by Political Committees; Personal Use of 

Campaign Funds, 60 Fed. Reg. 7862, 7865 (Feb. 9, 1995) (“Explanation and Justification”). 

 Defendants claim in their brief that the current regulation “hobble[s] boot-strap 

campaigns to Federal office” and that it “substantially burden[s]” candidates or their campaigns 

(Defs.’ Opp. at 6, 17.) Those allegations do not appear in the counterclaim, however, so the 

court need not accept them as true. Moreover, defendants cite no evidence supporting the 

allegations. For example, if in fact O’Donnell was paying market value when she reimbursed the 

campaign, then she could just as easily have found an equally good property for the same amount 

of rent and utilities.5

 And if the property did not need to provide a residence for Ms. O’Donnell, 

the campaign could have rented a smaller space, at a lower cost. 

                                                           

5

 It is unlikely, however, that O’Donnell could have found a residence in which she 1) was 

not required to sign a written lease; 2) was not required to provide a security deposit; and 3) 

could make payments at irregular intervals to reimburse for the time she had already been living 

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 Defendants wrongly suggest that FEC rules treat mortgage and rent payments in a unique 

way, stating that the FEC “permits allocations for nearly everything else [other than rent 

payments]” and that it “usually handles personal use determinations [] with allocation formulas.” 

(Defs.’ Opp. at 7, 10.) Although the FEC does permit allocation of certain mixed expenses (see 

id. at 7-8), many other types of spending are considered personal use and prohibited, with no 

allocation permitted, because of the reasonable assumption that “these expenses would exist 

irrespective of the candidate’s campaign.” Explanation and Justification, 60 Fed. Reg. at 7864.6

 

B. Prophylactic Rules Like This One Serve Important Government Interests 

 The Commission’s decision to treat certain campaign spending as per se “personal use” 

also survives rational basis review because it is a prophylactic measure designed to provide 

useful guidance to campaigns, to avoid having campaigns engage in behavior that could trigger 

an agency investigation, and to draw an easily administrable bright line. (FEC Br. at 6-7, 17.) 

Defendants ignore most of these considerations and characterize the benefits of the per se rule as 

a matter of mere “administrative convenience.” (Defs.’ Opp. at 14.) Defendants do 

acknowledge that the statute is an “otherwise constitutional personal-use prohibition,” but they 

                                                                                                                                                                                               

there. Even without these benefits, and assuming she reimbursed market value rent and utilities, 

this arrangement would have provided O’Donnell with what amounted to “interest free loans” 

(FEC Br. at 8, 18) — another FEC point that defendants fail to address.

6

 Commission regulations state that using campaign funds for the following items, among 

others, are all per se violations of the personal use ban: “(A) Household food items or supplies. 

(B) Funeral, cremation or burial expenses [with limited exceptions]. . . . (C) Clothing, other than 

items of de minimis value that are used in the campaign . . . (D) Tuition payments, other than 

those associated with training campaign staff. . . . (F) Admission to a sporting event, concert, 

theater, or other form of entertainment, unless part of a specific campaign or officeholder 

activity. (G) Dues, fees or gratuities at a country club, health club, recreational facility or other 

nonpolitical organization, unless they are part of the costs of a specific fundraising event that 

takes place on the organization’s premises. . . . (J) A vacation.” 11 C.F.R § 113.1(g)(1)(i). It 

would seem that under defendants’ logic, each of these restrictions would constitute an 

expenditure restriction subject to strict scrutiny review. 

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argue that the per se rule infringes on the First Amendment by barring the campaign from paying 

for any of the rent and utilities for the property where Ms. O’Donnell resided. (Defs.’ Opp. at 6.) 

However, the Supreme Court has repeatedly upheld viewpoint-neutral laws that vindicate 

important government interests while restricting the time, place or manner of political speech. 

(See FEC Br. at 13-14 (citing several cases).) A law’s constitutionality does not hinge on 

whether the government interest is vindicated in every single instance; indeed, it is often the case 

that a bright-line rule is necessary for a rule to be effective. 

 The personal use ban is comparable in this respect to the statute upheld in Burson v. 

Freeman, 504 U.S. 191 (1992). In that case, an individual challenged Tennessee’s law that 

prohibits the display of campaign material within 100 feet of a polling place. Id. at 193-94. The 

state asserted interests in “protecting the right of its citizens to vote freely for the candidates of 

their choice [and] protect[ing] the right to vote in an election conducted with integrity and 

reliability.” Id. at 198-99. The Supreme Court upheld the law, applying “exacting scrutiny” 

because the areas around polling places were public forums, and it rejected the argument that the 

law was overinclusive because the state could achieve the same goals more narrowly by 

enforcing laws for interference with an election or intimidation to prevent voting. Id. at 198, 

206-07, 211. The Court held that such solutions may be insufficient because they “‘deal with 

only the most blatant and specific attempts’ to impede elections” and “many acts of interference 

would go undetected” that could “drive the voter away before remedial action could be taken.” 

Id. at 206-07 (quoting Buckley, 424 U.S. at 28). The state did not need to show that every sign 

near a polling place leads to voter intimidation or confusion. Rather, the law was a prophylactic 

measure that could be more easily administered and provide greater guidance to the public, 

diminishing the likelihood of improper behavior and the need to investigate such behavior. 

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 Similarly, the government has important interests in banning the personal use of 

campaign funds. For rent and utilities of a candidate’s personal residence, the FEC has chosen a 

bright-line rule that is more administrable, provides greater guidance, and deters wrongdoing. 

Setting aside appearances, it is possible that a particular candidate could reside in a property that 

is paid for in part with campaign money without leading to a quid pro quo or compromised 

candidate ethics. However, making such determinations on a case-by-case basis would 

insufficiently achieve the objectives of the law, potentially leading to regulatory confusion and 

unnecessary enforcement activity. As a result, the regulation is constitutional, and it would be 

even if examined under a higher level of scrutiny, as the law in Burson was. 

Defendants primarily rely on Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011), for the proposition that the “‘First Amendment does not permit 

the State to sacrifice speech for efficiency.’” (Defs.’ Opp. at 15 (quoting Ariz. Free Enter., 131 

S. Ct. at 2824 (quoting Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781, 795 (1988)).) 

But the “efficiency” described in that case bears no relationship to the rationales applicable to 

this case. Arizona Free Enterprise struck down a state public funding scheme that disbursed 

additional money to a candidate when his privately-financed opponent (or independent groups 

supporting the opponent) spent money over a certain threshold. Ariz. Free Enter., 131 S. Ct. at 

2813. The Court held that providing funding to candidates in direct response to their opponent’s 

actions was a “substantial burden on the speech of privately financed candidates and independent 

expenditure groups,” and the fact that the scheme may have been designed to efficiently give 

appropriately-sized subsidies did not overcome that substantial burden. Id. at 2824. The 

restriction at issue in this case suffers from none of the constitutional infirmities of the law in 

Arizona Free Enterprise—it does not impose a particular burden on any defined group of 

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candidates or on any “speech,” but merely bars the conversion of campaign funds to noncampaign uses and, as the FEC noted in another point to which defendants do not respond, the 

regulation was not passed for any improper purpose. (FEC Br. at 16-17.) 

 C. The Personal Use Ban Does Not Prevent a Candidate From Using Her 

 Home in a Campaign 

 Defendants claim that O’Donnell has standing to bring constitutional counterclaims that 

“may not apply specifically” to her (Defs.’ Opp. at 16, citing Broadrick v. Oklahoma, 413 U.S. 

601, 612 (1973)), but the claims they wish to pursue are misconceived and hypothetical. In 

particular, defendants suggest that a candidate who owns one home is “substantially burden[ed]” 

by 11 C.F.R. § 113.1(g)(1)(i)(E) because she purportedly cannot contribute the use of that home 

to her campaign for federal office, while a candidate with two homes can. (Defs.’ Opp. at 17.) 

But the regulation does not prohibit a candidate from giving anything to his campaign; it 

prohibits a campaign from giving things to the candidate. As the defendants themselves point 

out, the Explanation and Justification makes clear that the regulation “does not prohibit the 

campaign from using a portion of the candidate’s personal residence for campaign purposes,” but 

“merely [bans] the committee’s ability to pay rent for such a use.” (Defs.’ Opp. at 12 (quoting 

Explanation and Justification, 60 Fed. Reg. at 7865).) And of course, O’Donnell did not own the 

townhouse or try to give her campaign any such benefit, so such a contention is hypothetical and 

irrelevant to this enforcement action. 

CONCLUSION 

For the foregoing reasons, defendants’ counterclaims should be dismissed. 

Respectfully submitted, 

Lisa J. Stevenson Robert W. Bonham III 

Deputy General Counsel – Law Senior Attorney 

lstevenson@fec.gov rbonham@fec.gov 

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Kevin Deeley /s/ Seth Nesin 

Acting Associate General Counsel Seth Nesin 

kdeeley@fec.gov Attorney 

snesin@fec.gov 

Harry J. Summers 

Assistant General Counsel FOR THE PLAINTIFF 

hsummers@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

August 6, 2015 Washington, DC 20463 

 (202) 694-1650

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