UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________

 ) 

 ) 

Rear Adm. James J Carey [Ret] ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

Kelly S. Eustis ) 

1431 Q Street ) 

Apt. 130 ) 

Sacramento, California 95811 ) 

 ) 

National Defense Political ) 

Action Committee ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

)

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________)

____________________________________________

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

____________________________________________

 Plaintiffs Retired Admiral James Carey, Kelly S. Eustis, and the National Defense 

Political Action Committee (“National Defense PAC”) bring this action for declaratory 

and injunctive relief, and complain as follows: 

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INTRODUCTION

1. This case challenges laws that, as interpreted and applied by the Federal Election 

Commission, abridge the freedom of speech and association guaranteed under the 

First Amendment to the Constitution. These challenges are brought as applied 

against 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). National Defense Political 

Action Committee (“National Defense PAC”) and its donors’ First Amendment 

rights are infringed by laws enforced and interpreted by the Federal Election 

Commission that prohibit it from soliciting and accepting funds solely for the 

purpose of making independent expenditure communications from one bank 

account while maintaining a separate bank account to accept source and amount 

limited contributions to fund similarly limited contributions pursuant to § 

441a(a)(1)(C).

2. Plaintiff Kelly S. Eustis is protected under the First Amendment to the United 

States Constitution to make contributions to organizations that share his views on 

public policy and candidates for public office. Wishing to exercise that right, 

Plaintiff Kelly S. Eustis would like to make contributions to National Defense 

PAC in amounts greater than $5,000 to fund its independent advocacy to support 

election of military veterans who support limited government to federal office. 

National Defense PAC is a non-connected political committee that would like to 

exercise its right to separately receive funding to make contributions to, and 

support its independent expenditure advocacy of, military veterans running for 

federal office.

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3. In 2009, the District of Columbia Circuit Court of Appeals recognized plaintiffs’ 

rights under the First Amendment. Non-connected political action committees, 

like National Defense PAC, have the right to accept unlimited contributions from 

individuals, committees, corporations, and unions to make independent 

expenditures. Non-connected political action committees, like National Defense 

PAC, have the concurrent right to accept amount and source limited contributions 

from individuals and other committees for the purpose of making candidate 

contributions under 2 U.S.C. § 441a(a)(2)(A). Pursuant to EMILY’s List v. 

Federal Election Commission, 581 F.3d 1 (D.C. Cir. 2009), non-connected 

political action committees, like National Defense PAC, do not lose their rights by 

choosing to exercise them. Individuals, in turn, have the reciprocal right to make 

contributions to organizations to associate with and amplify their voice. Id. This 

last term, the U.S. Supreme Court recognized the right of corporations to speak 

out about candidates and elections as being fully protected under the First 

Amendment. Citizens United v. FEC, 130 S.Ct. 876 .(2010)

4. To date, the Federal Election Commission has failed to implement the ruling of 

the D.C. Circuit Court of Appeals and the United States Supreme Court as 

pertains to these rights and in particular these plaintiffs. This occurred most 

recently in the FEC’s failure to grant an affirmative response to plaintiffs’ 

advisory opinion request seeking a declaration that its actions, which accord with 

nearly identical facts as that in EMILY’s List and Citizens United, would be legal 

under the Commission’s purview. Because of this, National Defense PAC had to 

forgo its speech during the 2010 electoral timeframe. It is presently stymied in 

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being able to accept contributions and speak out about the upcoming 2012 

election cycle, candidates for office, and issues of the day. 

5. The FEC has failed to abide by a controlling opinion for identical issues of law 

concerning almost-identical conduct issued by the District of Columbia Circuit 

Court of Appeals. See EMILY’s List. 581 F.3d 1. This infringes the 

constitutionally protected rights of plaintiffs – average American speakers – 

causing injuries by forcing them to seek judicial relief each time they wish to 

associate and speak freely. 

JURISDICTION AND VENUE 

6. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 and 2201 

as a challenge arising under the First Amendment to the Constitution of the 

United States, the Federal Election Campaign Act, and the Declaratory Judgment 

Act, 28 U.S.C. §§ 2201-02

7. Venue is proper in this Court under 28 U.S.C. §1391(e) because Defendant is an 

entity of the United States Government. 

PARTIES 

8. Plaintiff Rear Admiral [retired] James J. Carey is a registered voter and the 

founder and treasurer of National Defense PAC and has served in that capacity 

since 2000. He resides in Alexandria, Virginia. 

9. Plaintiff Kelly Eustis is a registered voter who resides in Sacramento, California.

10. Plaintiff National Defense PAC is a non-partisan, non-connected political action 

committee registered with the Federal Election Commission with its principal 

mailing address in Washington, DC. 

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11. The FEC is the federal agency charged with enforcement of the Federal Election 

Campaign Act (“FECA”) and is located in Washington, D.C. 

STATEMENT OF FACTS 

12. A group of military veterans established National Defense PAC with the desire to 

promote shared patriotic values in government. National Defense PAC advocates 

in favor of limited government, upholding a national commitment to this nation’s 

veterans, and publicly defends the rights of American soldiers. In this role, 

National Defense PAC raises and expends funds in support of candidates for 

federal office who are military veterans and agree with its values. Such funds are 

raised subject to the amount and source limits detailed at 2 U.S.C. § 

441a(a)(1)(C). National Defense PAC makes contributions to candidates for 

federal office up to the applicable limit and makes independent expenditures in 

support or opposition of candidates. 

13. In the wake of what most legal experts have deemed a sea change in election law 

through Citizens United v. FEC, 130 S.Ct. 876 (2010), SpeechNow.org v. Federal 

Election Commission, 599 F.3d 686 (D.C. Cir 2010), and EMILY’s List v. Federal 

Election Commission, 581 F.3d 1 (D.C. Cir. 2009), plaintiffs hoped to secure and 

use the fullest extent of their recently recognized, but always existing, First 

Amendment rights in two separate ways. First, National Defense PAC sought to 

engage in independent expenditure campaigns, that is, campaigns advocating the 

election or defeat of clearly identified candidates for federal office. Part and 

parcel of National Defense PAC’s ability to engage in this speech is in its ability 

to raise funds to produce independent expenditures due to the cost of 

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advertisements, airtime, and print media. Thus, National Defense PAC sought, as 

recognized in EMILY’s List and elsewhere, to be free of contribution limits for 

contributions given for its independent expenditure campaigns. At the same time, 

Kelly S. Eustis desired to associate and speak with National Defense PAC by 

giving more than $5,000 per calendar year to fund independent expenditure 

campaigns. National Defense PAC sought to maintain a separate bank account 

from which to accept contributions for candidates subject to source and amount 

limits. 

14. While the Speechnow, EMILY’s List, and Citizens United courts could not have 

been clearer protecting these rights, the FEC continues to stonewall and ignore 

these rulings, causing continued injuries to the speakers before this court. 

The Advisory Opinion Request 

15. On August 11, 2010, National Defense PAC submitted an advisory opinion 

request (“AOR”), attached as EXHIBIT A, to the FEC pursuant to 2 U.S.C. § 

437f. This request asked whether its actions would be lawful if it: 

a. Accepted unlimited contributions from individuals, other political 

committees, corporations, and unions for the express purpose of making 

independent expenditures, including paying any or all of its own 

administrative and operating expenses, and

b. Accepted contributions from individuals and other political committees 

only, subject to the limits at 2 USC §§441a(a)(l)(C) and (2)(C), to expend 

as campaign contributions to candidates, pursuant to 2 USC §441a(a)(2), 

and

c. Recorded and segregated all such contributions by type and maintained 

separate bank accounts for each type, applying for the purpose of 

campaign contributions only those contributions expressly made for that 

purpose as indicated by the contributor at the time of the contribution and

subject to the limits at 2 USC §§441a(a)(l)(C) and (2)(C).

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16. Pursuant to 11 C.F.R. § 112.1, the FEC accepted the AOR for review, assigned it 

AOR number 2010-20, and posted it on the FEC’s website for public commentary 

on August 11, 2010. 

17. On September 17, 2010, the FEC’s general counsel issued a draft advisory 

opinion in response to National Defense PAC’s AOR. The draft advisory opinion, 

Draft A, concluded that contributions to National Defense PAC made to finance 

its independent expenditures would be subject to the contribution limits of 2 

U.S.C. § 441a(a)(1)(C) and related FEC regulations. This “Draft A” advisory 

opinion is included as EXHIBIT B. 

18. An alternate draft, Draft B, was issued on September 21 and concluded that 

contributions to National Defense PAC made to finance its independent 

expenditures would not be subject to the contribution limits of 2 U.S.C. § 

441a(a)(1)(C) and related FEC regulations. The alternative “Draft B” advisory 

opinion is included as EXHIBIT C. 

19. On September 23, 2010, at an open meeting of the FEC, the Commission failed 

by a vote of 2-3 to approve Draft A. The Commission also failed by a vote of 3-2 

to approve Draft B. 

20. Pursuant to 11 C.F.R. § 112.4(a), the FEC certified on September 28, 2010 that it 

was unable to approve National Defense PAC’s AOR because it lacked the 

necessary four votes to approve the AOR. This certification is included as 

EXHIBIT D. The FEC’s failure to affirmatively provide a four-vote, binding 

advisory opinion in response to National Defense PAC’s request carries the 

equivalent legal effect that its proposed actions would be invalid under the FECA 

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and subject the organization to civil or criminal penalties under 2 U.S.C. § 437g 

for speaking out about candidates and otherwise engaging in political association. 

21. The Commission's refusal to issue an advisory opinion deprives plaintiffs that 

requested it of a legal reliance defense that they could otherwise receive under 2 

U.S.C. § 437f(c). The advisory opinion process in this matter is complete and 

deprived plaintiffs of a legal right – to engage freely in constitutionally protected 

speech and association. See Unity 08 v. Federal Election Commission, 596 F.3d 

861 (D.C. Cir. 2010) (“parties are commonly not required to violate an agency's 

legal position and risk an enforcement proceeding before they may seek judicial 

review”); see also Democratic Senatorial Campaign Committee v. Federal 

Election Commission, 918 F.Supp. 1 (D.D.C. 1994). 

Ensuing Harm to Plaintiffs 

22. At the time of filing the advisory opinion request, several primary elections were 

less than 60 days away. National Defense PAC filed its request as promptly as 

possible to ensure that its planned speech and association would be deemed lawful 

under the FECA and related regulations. Because the elections were so close 

upon it, National Defense PAC asked for an expedited advisory opinion request 

pursuant to 11 C.F.R. § 112.4(b) and 72 Fed. Reg. 32,160 (July 7, 2009). More 

than 40 days later, the Commission decided not to issue an advisory opinion. 

Given that the FEC could not issue a definitive statement concerning the legality 

of National Defense PAC’s planned actions, it was required to mute itself and 

curtail its activities during the 2010 election cycle.

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23. During the 2010 electoral cycle, National Defense PAC planned to deploy 

independent expenditure communications targeting several opponents of endorsed 

candidates nationwide. While National Defense PAC was free to endorse its 

preferred candidates, it was not legally permitted to solicit more than $5,000 per 

calendar year per person to fund independent expenditure campaigns for them. 

These proposed campaigns included focusing on candidates in the Eighth 

Congressional District of Michigan, the First Congressional District of Rhode 

Island, the Eighth Congressional District of Massachusetts, the Ninth 

Congressional District of New York, and the First Congressional District of 

Hawaii. A copy of National Defense PAC’s endorsements in these campaigns is 

included as EXHIBIT E. Because the FEC did not permit it to accept unlimited 

contributions to fund its independent expenditures, National Defense PAC was 

unable to gather the resources necessary to run independent expenditure 

campaigns and to be heard during the 2010 electoral cycle.

Ongoing Harm to Plaintiffs 

24. As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to make independent expenditures from its 

general fund, in various amounts, expressly advocating for or against clearly 

identified candidates of its choice. A specific example of this is included as 

EXHIBIT F, which includes a proposed advertisement for Newsmax – a popular 

Internet destination – expressly advocating against the retention of Anthony 

Weiner in New York’s Ninth Congressional District. This advertisement, with a 

guaranteed 50,000 views per week, would cost $6,300.00 to run in the months 

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leading up to the November 2012 elections. The advertisements in question 

would include a picture of Anthony Weiner along with the call to “defeat 

Anthony Weiner” – asking users to click on the advertisement to learn more. See

EXHIBIT F. 

25. National Defense PAC would like to make additional independent expenditures in 

the months leading up to the 2012 primary and general elections based on issues 

and candidates that present themselves. Without the ability to solicit unlimited 

contributions to fund such communications, it will not be able to speak during the 

2012 electoral season. Without an immediate ruling from this court, it will not 

have the necessary time to fundraise and generate support for its message from 

likeminded individuals. 

26. As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to solicit contributions for its independent 

expenditures in amounts greater than $5,000.00 per calendar year. National 

Defense PAC has contacted donors willing to give more than $5,000.00 in single 

contributions to fund independent expenditures, but has not solicited or accepted 

such amounts due to the effect of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). A 

specific example of this is included as EXHIBIT G, a letter of intent from Kelly 

S. Eustis, who wishes to donate $6,300.00 to help fund independent expenditure 

communication campaigns against Anthony Weiner but cannot due to the current 

operation and interpretation of the law by the FEC. 

27. As soon as possible, and certainly before the 2012 primary and general elections, 

Kelly S. Eustis would like to make a $6,300.00 contribution to National Defense 

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PAC to help fund independent expenditure communications against Anthony 

Weiner in the Ninth Congressional District of New York. But for operation and 

interpretation of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), Kelly S. Eustis would 

make this contribution. 

28. As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to make contributions to candidates for federal 

office subject to source and amount limits found at 2 U.S.C. §§ 441a(a)(1)(C) 

and (2)(C). Because it plans to make unlimited independent expenditures while 

receiving unlimited contributions for them, current interpretation of the law by the 

FEC prohibits National Defense PAC from making source and amount limited 

contributions out of a separate bank account.

29. As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to receive contributions to fund contributions, 

subject to source and amount limits found at 2 U.S.C. §§ 441a(a)(1)(C) and 

(2)(C), to provide to favored candidates for federal office. Because it plans to 

make unlimited independent expenditures while receiving unlimited contributions 

for them, current operation and interpretation of the law by the FEC prohibits it 

from concurrently soliciting and receiving limited contributions. Were it 

permissible, National Defense PAC would actively fundraise and accept 

contributions for making contributions. 

National Defense PAC’s Structure and Operations 

30. National Defense PAC is an unincorporated association in Virginia, registered as 

a non-connected political action committee with the FEC. The PAC’s bylaws 

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require it to operate independently of political candidates, committees, and 

political parties. See EXHIBIT H. In accord with its bylaws, National Defense 

PAC does not coordinate any of its activities with candidates or national, state, 

district or local political party committees or their agents as defined in 2 U.S.C. 

§§ 441a(a)(7)(B) and (C) and 11 C.F.R. § 109. Id. In addition, National Defense 

PAC does not and will not coordinate its activities with other political 

committees. 

31. National Defense PAC’s expenditures for advertisements will be “independent 

expenditures” under 2 U.S.C. § 431(17) because they will be expenditures by a 

person “expressly advocating the election or defeat of a clearly identified 

candidate” that are “not made in concert or cooperation with or at the request or 

suggestion of such candidate, the candidate’s authorized [campaign] committee, 

or their agents, or a political party committee or its agents.” An example of a 

proposed future independent expenditure is included as EXHIBIT F.

32. National Defense PAC has not yet solicited or accepted any contributions in 

excess of the $5000 limit imposed by 2 U.S.C. § 441a(a)(1)(C), because doing so 

would subject it to civil and criminal penalties. 

33. The contribution limits contained in 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) 

prevent National Defense PAC from accepting the contributions from Kelly S. 

Eustis as described in paragraphs 26 and 27 above. 

34. The contribution limits contained in 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) 

prevent National Defense PAC from soliciting additional contributions above 

those limits. 

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35. Even if National Defense PAC could somehow raise enough money in increments 

of $5000 or less per donor per calendar year to pay for its advertisements, the 

contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) would, 

by making it harder to gather funds, limit the type and number of times it could 

run advertisements. The limits would also diminish National Defense PAC’s 

ability to run additional advertisements concerning other federal candidates in 

other races. This is precisely the muting effect the law had on National Defense 

PAC’s operations during the 2010 electoral cycle as described in paragraphs 22-

23. This constitutes a direct impediment on National Defense PAC’s association 

and speech. 

36. National Defense PAC will face a credible threat of prosecution if it solicits or 

accepts contributions in excess of the limits contained in 2 U.S.C. 

§§441a(a)(1)(C) and 441a(a)(3) to fund its advertisements as described herein. 

Rear Admiral Carey and Kelly S. Eustis’ Activities 

37. The contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) 

prevent plaintiff Kelly S. Eustis from making the contributions he wants to make 

as described in paragraphs 26 and 27 above, and thus prevents him from 

associating with National Defense PAC and with other like minded individuals, as 

well as speaking, for the purpose of producing and distributing the advertisements 

described herein. 

38. Similarly, the contribution limits found in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) prevent Rear Admiral Carey, as an agent of National Defense PAC, 

from soliciting or accepting contributions as described in paragraphs 24-26 above. 

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39. Plaintiff Kelly S. Eustis will face a credible threat of prosecution if he makes 

contributions to National Defense PAC in excess of the limits contained in 2 

U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) to fund National Defense PAC’s 

advertisements as described herein. Plaintiff Kelly S. Eustis should not have his 

contributions to National Defense PAC count against the amount of money he 

may contribute to federal candidates under 2 U.S.C. § 441a(a)(3). 

40. Plaintiff Rear Admiral Carey will face a credible threat of prosecution if he 

solicits or accepts contributions to National Defense PAC in his role as treasurer 

in excess of the limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) to 

fund National Defense PAC’s advertisements as described herein. 

COUNT 1 

Contribution Limits — National Defense PAC

41. Plaintiffs reallege and incorporate by reference all of the allegations contained in 

all of the preceding paragraphs. 

42. The application of the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) to National Defense PAC’s independent expenditure 

communications severely burden its right to freedom of speech. In application, 

these provisions act as expenditure limits, denying National Defense PAC the 

ability to speak effectively and efficiently. 

43. 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) are the functional equivalent of a 

speech ban imposed by the FEC against certain groups of individuals. As the 

Supreme Court noted in Buckley v. Valeo, 424 U.S. 1, 19 n.18 (1976), “Being free 

to engage in unlimited political expression subject to a ceiling on expenditures is 

like being free to drive an automobile as far and as often as one desires on a single 

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tank of gasoline.” The FEC imposes this limit against certain groups of 

individuals wishing to speak out about candidates for public office without 

constitutional support. 

44. National Defense PAC has prepared advertisements calling for the defeat of 

candidates for federal office and wishes to distribute those advertisements in the 

state and district in which those candidates are running for office. But for 

operation of the law, National Defense PAC is prepared to run independent 

expenditures in the Ninth Congressional District of New York to defeat Anthony 

Weiner. See EXHIBIT F. 

45. National Defense PAC would like to produce and broadcast additional 

advertisements calling for the election or defeat of candidates for federal office in 

the 2012 election cycle and in future election cycles. 

46. National Defense PAC has a donor who is ready, willing, and able to donate more 

than $5000 each to finance its advertisements calling for the election or defeat of 

candidates for federal office as described herein. 

47. Under 2 U.S.C. §§ 431(8), 441a(a)(1)(C), 441a(a)(3), and the FEC’s regulations, 

as interpreted and applied by the FEC, in contradistinction to the First 

Amendment and opinions of the D.C. Circuit Court of Appeals in EMILY’s List v. 

FEC and SpeechNow.org v. FEC, National Defense PAC is prohibited from 

accepting these and other contributions that exceed the limits contained in 2 

U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) that are made to finance its 

advertisements as described herein. 

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48. The application of the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) to National Defense PAC’s independent expenditure 

communications severely burden its right to associate with its potential donors by 

placing constitutionally unjustified limits on how much money it may receive 

from likeminded individuals. 

49. National Defense PAC poses no threat of corruption or its appearance because all 

of its contributions to candidates, party committees or the hard money accounts of 

other PACs will be made from a separate account comprised of funds received 

from individuals in amounts of $5000 or less. It will pay the expense of 

administering its contributions to candidates from the same account. Independent 

expenditures will be made from a separate account. 

50. The application of contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) to National Defense PAC violates its contributors’ rights to freedom of 

speech and association under the First Amendment. By denying National Defense 

PAC contributors the meaningful ability to associate and speak through the act of 

contributing, its constitutional rights are abridged. 

51. As recognized by the District of Columbia Circuit Court of Appeals, associations 

of individuals wishing to speak out about candidates for federal office and issues 

of the day are “constitutionally entitled to raise and spend unlimited money in 

support of candidates for elected office . . . .” EMILY’S List, 581 F.3d at 9. 

52. It is never constitutionally permissible to restrict the amount of money individuals 

may contribute to an organization that makes independent expenditures. See, e.g., 

EMILY’S List, 583 F.3d 1; SpeechNow.org, 599 F.3d 686; N.C. Right to Life, Inc. 

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v. Leake, 525 F.3d 274 (4th Cir. 2008). As a result, 2 U.S.C. §§ 441a(a)(1)(C), 

441a(a)(3), and the FEC’s regulations, as interpreted and applied by the FEC must 

necessarily fail to survive constitutional scrutiny. 

COUNT 2 

Contribution Limits—Individual Plaintiffs

53. Plaintiffs reallege and incorporate by reference all of the allegations contained in 

all of the preceding paragraphs. 

54. Kelly S. Eustis is ready, willing, and able to contribute more than $5000 to 

finance National Defense PAC’s advertisements as described herein. See 

EXHIBIT G (Letter of Intent, Kelly S. Eustis).

55. Kelly S. Eustis would like to make additional contributions in the future to 

finance National Defense PAC’s advertisements as described herein and as may 

arise in future circumstances. 

56. Under 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) and the FEC’s regulations, as 

interpreted and applied by the FEC, in contradistinction to the First Amendment 

and opinions of the D.C. Circuit Court of Appeals in EMILY’s List and 

SpeechNow.org, Kelly S. Eustis is prohibited from making any contributions to 

National Defense PAC that would exceed $5000 in any calendar year that are 

made to finance its advertisements calling for the election or defeat of candidates 

for federal office. 

57. The application of the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) severely burdens Kelly S. Eustis’ rights to associate with National 

Defense PAC, as well as speak, and its other potential donors for the purpose of 

calling for the election or defeat of candidates for federal office. As noted by the 

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District of Columbia Circuit Court of Appeals, if one person is “constitutionally 

entitled to spend $1 million to run advertisements supporting a candidate (as 

Buckley held), it logically follows that 100 people are constitutionally entitled to 

donate $10,000 each to a non-profit group that will run advertisements supporting 

a candidate.” EMILY’s List, 581 F.3d at 10.

58. The application of the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) severely burdens Kelly Eustis’ right to freedom of speech. Indeed, 

organizations like National Defense PAC “offer an opportunity for ordinary 

citizens to band together to speak on the issue or issues most important to them.” 

EMILY’s List, 581 F.3d at 11 (internal citation omitted).

59. Kelly S. Eustis’ contributions to National Defense PAC pose no threat of 

corruption or its appearance because National Defense PAC’s contributions to 

candidates, party committees or the hard money accounts of other PACs will be 

made from a separate account comprised of funds received from individuals in 

amounts of $5000 or less. National Defense PAC will pay the expense of 

administering its contributions to candidates from the same account. Independent 

expenditures will be made from a separate account. 

60. The application of contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) as applied to National Defense PAC and to Kelly S. Eustis and Rear 

Admiral Carey violate their right to freedom of speech and association under the 

First Amendment. 

PRAYER FOR RELIEF 

 Wherefore, Plaintiffs pray for the following relief: 

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 1. A declaratory judgment that the contribution limits contained in 2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3), as well as any applicable rules and regulations 

regarding these provisions, are unconstitutional as applied to National Defense PAC; 

 2. A declaratory judgment that the contribution limits contained in 2 U.S.C. 

§§441a(a)(1)(C) 441a(a)(3), as well as applicable rules and regulations regarding those 

provisions, are unconstitutional as applied to any contributions that the individual 

Plaintiffs and other supporters wish to make to National Defense PAC for its independent 

advertisements as described herein; 

 3. Preliminary and permanent injunctions enjoining Defendant FEC from 

enforcing §§441a(a)(1)(C), and 441a(a)(3), as well as any applicable rules and 

regulations regarding those provisions, against National Defense PAC; 

 4. Preliminary and permanent injunctions enjoining Defendant FEC from 

enforcing 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), as well as any applicable rules and 

regulations regarding those provisions, against the individual Plaintiffs and National 

Defense PAC’s other supporters for any contributions they may make to National 

Defense for independent advertisements as described herein; 

 5. An award of nominal damages of $1 for the violation of Plaintiffs’ 

constitutional rights; 

 6. Costs and attorney’s fees pursuant to any applicable statute or authority; 

 7. Any other relief that the Court deems just and appropriate. 

Date this 28th day of January, 2011. 

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EXHIBIT A 

Advisory Opinion Request 2010-20 

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EXHIBIT B 

FEC Advisory Opinion 2010-20, Draft “A” 

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EXHIBIT C 

FEC Advisory Opinion 2010-20, Draft “B” 

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EXHIBIT D 

FEC Certification of failure to approve either 

draft Advisory Opinion 

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EXHIBIT E 

2010 Endorsements by National Defense PAC 

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National Defense PAC

2010 Endorsements

Results First Last State Race

lost General Stephen Bailey Colorado 2

lost General Sean Bielat Massachusetts 4

Won General Scott Brown Massachusetts Senate

lost Primary David Castillo Washington 3

lost Primary William Clegg Rhode Island 2

Won General Rick Crawford Arkansas 1

lost Primary Paul Crespo Florida 25

lost General Vince Danet Virgin Islands Delegate

lost General Charles Djou Hawaii 1

lost Primary Dave Evans Tennessee 6

Won General Chris Gibson New York 20

Won General Tim Griffin Arkansas 2

lost Primary Bill Hardiman Michigan 3

Won General Andy Harris Maryland 1

lost Primary Doug Hoffman New York 23

lost General Harold Johnson North Carolina 8

Won General Bill Johnson Ohio 6

Won General Adam Kinzinger Illinois 11

Won General Mark Kirk Illinois Senate

lost General York Kleinhandler New York 17

lost General Savas Kyriakidis Tennessee 3

lost Primary Stephen Labate New York 2

lost General John Loughlin Rhode Island 1

lost Primary Bob McConnell Colorado 3

lost Primary Bert Mizusawa Virginia 2

lost General Patrick Murray Virginia 8

lost General Ilario Pantano North Carolina 7

Won General Steve Pearce New Mexico 2

Won General Michael Pompeo Kansas 4

lost General Rocky Raczkowski Michigan 9

lost Primary Brian Rooney Michigan 7

lost Primary Roger Roth Wisconsin 8

lost Primary Frank Ryan Pennsylvania 17

Won General John Shimkus Illinois 19

lost Primary Lang Sias Colorado 7

lost Primary Rob Simmons Connecticut Senate

lost General Charles Thompson Oklahoma 2

lost General Tom Watson California 23

Won General Allen West Florida 22

Won General Joe Wilson South Carolina 2

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EXHIBIT F 

Proposed online banner advertisement and script 

of ‘click through page’ in opposition to 

Congressman Anthony Weiner 

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EXHIBIT G 

Letter of Intent from Contributor (Kelly Eustis) 

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EXHIBIT H 

Bylaws of National Defense PAC 

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NDPAC Bylaws as of 01/2010 1 of 3 

BYLAWS

of the 

NATIONAL DEFENSE POLITICAL ACTION COMMITTEE 

 ARTICLE I 

Name

The Name of this Organization shall be the National Defense Political Action Committee, 

hereinafter “NDPAC”. 

 ARTICLE II 

Purposes

The purpose for which NDPAC is to operate is as a Political Action Committee for the raising and 

disbursing of funds for political purposes in local, state, and federal elections in compliance with all 

applicable law. 

 ARTICLE III 

Form of Organization 

The form of organization of NDPAC shall be a registered non-connected Political Action Committee 

pursuant to the rules and regulations of the Federal Election Commission (FEC). 

ARTICLE IV 

Officers

NDPAC shall have the following officers. 

Section 1. Treasurer 

The Treasurer shall fulfill all the duties and responsibilities of the Treasurer of a Political Action 

Committee pursuant to the regulations of the FEC, and shall have ultimate executive authority for 

the operations of NDPAC. 

Section 2. Assistant Treasurer 

The Assistant Treasurer shall fulfill all the duties and responsibilities of the Assistant Treasurer of a 

Political Action Committee pursuant to the regulations of the FEC, and as may be delegated by the 

Treasurer. In the absence, unavailability, or incapacity of the Treasurer, the Assistant Treasurer shall 

assume his duties until such time as the Board of Directors shall appoint a new Treasurer. 

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NDPAC Bylaws as of 01/2010 2 of 3 

Section 3. Executive Director 

The Executive Director shall be the primary officer of NDPAC and shall exercise the customary 

duties of said officer in the management and operations of NDPAC. 

Section 4. Secretary & Custodian of Records 

The Secretary & Custodian of Records shall fulfill all the duties and responsibilities of the Custodian 

of Records of a Political Action Committee pursuant to the regulations of the FEC. 

Section 5. Dual role. 

Any officer of NDPAC may also serve as a member of the Board of Directors and/or a member 

of any other board or committee of NDPAC unless otherwise provided herein, and may hold 

additional office within NDPAC, except that the Treasurer and Assistant Treasurer shall always 

be two separate persons. 

ARTICLE V 

Board of Directors 

The Board of Directors of NDPAC shall govern its business affairs. 

Section 1. Membership, term, removal, size 

Membership upon the Board of Directors shall be by appointment of the Board of Directors by 

majority vote, unless otherwise provided. The term of membership shall be for so long as the 

Director wishes to remain a member of the Board, subject to removal by a three-fourths (3/4) 

vote of all other Directors. The Board of Directors shall not be limited as to size, but shall at all 

times have at least one (1) member. 

Section 2. Role 

The Board of Directors role shall exercise the customary duties and responsibilities of a Board of 

Directors of an unincorporated association in Virginia, and of a Political Action Committee as 

governed by the rules and regulations of the Federal Elections Commission. The Board of 

Directors shall appoint or remove by majority vote all officers of NDPAC. 

Section 3. Candidate Contribution Decisions 

The Board of Directors shall approve by a majority vote any proposed contribution to a political 

candidate by its own motion, or as brought before it by the Executive Director, or by any 

committee established for the purpose of making such recommendations whether or not such 

committee has any Directors serving on it. 

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