United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 14-853 (CRC)

THREE-JUDGE COURT REQUESTED

Plaintiffs’ Reply Supporting Their Amended

Application for Three-Judge Court

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

relf@bopplaw.com

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

Reply Supporting Three-Judge Court

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 1 of 30
Table of Contents

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Plaintiffs Meet the Two Criteria for BCRA § 403’s Judicial-Review Provisions.. . . . . . . 2

A. FEC’s Suggested “Frivolous”/“Insubstantial” Bar Fails, if It Applies.. . . . . . . . . . . . . 3

B. Plaintiffs’ Claims Are Not So Clearly Insubstantial that There Is No Room for

Debate... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. Plaintiffs’ Claims Challenge BCRA Provisions/Amendments.. . . . . . . . . . . . . . . . . . 19

II. Supplemental Jurisdiction Is Available, if Required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Reply Supporting Three-Judge Court i

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 2 of 30
Table of Authorities

Cases

*Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

*Citizens United v. FEC, 558 U.S. 310 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

*Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996). . . . . passim

FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1488 (D. Col.

1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001). . . . . . . . . . 14

FEC v. National Conservative PAC, 470 U.S. 480 [(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1334 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . . 3-4

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . 13

Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

*McCutcheon v. FEC, 134 S.Ct. 1434 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Republican Party of N.M. v. King, 741 F.3d 1089 (10th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . 11

RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rufer v. FEC, No. 1:14-cf-00837-CRC (D.D.C., filed May 21, 2014). . . . . . . . . . . . . . . . . . . . . . 7

Schonberg v. FEC, 792 F. Supp. 2d 14 (D.D.C. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statutes, Rules, and Constitutions

2 U.S.C. § 431(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15

Reply Supporting Three-Judge Court ii

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 3 of 30
2 U.S.C. § 437h. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 U.S.C. § 441a(a)(1)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 U.S.C. § 441a(a)(1)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 U.S.C. § 441a(a)(8).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 U.S.C. § 441b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19

2 U.S.C. § 441i.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Public Law 107-155, 116 Stat. 81

(Mar. 27, 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

11 C.F.R. § 109.21.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

11 C.F.R. § 109.30.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 16

11 C.F.R. § 109.37.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 16

11 C.F.R. § 110.6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Federal Rule of Civil Procedure 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. art. III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Other Authorities

Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits (June 2,

2014), MoreSoftMoneyHardLaw.com, www.moresoftmoneyhardlaw.com/2014/05/circling-back-full-360-rnc-libertarian-party-lawsuits/.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

FEC, Advisory Opinion 2010-11 (Commonsense Ten).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FEC, Advisory Opinion 2011-12 (Majority PAC).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L.

Rev. 1185 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Reply Supporting Three-Judge Court iii

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 4 of 30
Introduction

“Glib,” says FEC of plaintiffs’ demonstration that this case fits BCRA § 403’s stated criteria

for § 403’s judicial procedures. Opp’n (Doc. 17) at 8. Fit doesn’t matter, FEC insists, because

this case is “frivolous” and “insubstantial.” Id. But FEC’s “frivolous” label addresses the legal

merits of the case, not § 403’s requirements. Considering the legal merits in any depth is more

appropriate to deciding summary-judgment motions after merits briefing, or to a motion to dismiss before a three-judge court as in McCutcheon v. FEC, 134 S.Ct. 1434 (2014). See infra at 5-

7. To the extent a minimal look at the merits is proper at this stage, this case easily clears a “frivolous” hurdle because it raises substantial issues. FEC’s “frivolous” label overlooks the rise of

wealthy IE-PACs as a result of two controlling constitutional holdings:

• Citizens United v. FEC, 558 U.S. 310, 357 (2010), held, as a matter of law, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption,” and

• SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc) (“SpeechNow”), held

that “because Citizens United holds that independent expenditures do not corrupt or give the

appearance of corruption as a matter of law, then the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.”1

And long ago the Supreme Court held that (a) party-committees could in fact make independent

expenditures, (b) those independent expenditures could not be presumed to be coordinated, and

(c) those independent expenditures posed no quid-pro-quo-corruption risk. See Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) (“Colorado-I”). FEC overlooks

 Moreover, FEC has already decided that where entities can legally do independent expendi- 1

tures separately, then they necessarily must be allowed to pool their resources for effective advocacy by doing those independent expenditures together. See FEC, Advisory Opinion (“AO”)

2010-11 (Commonsense Ten) at 3. The quid-pro-quo-corruption risk being absent, nothing justifies restricting the expressive association of contributors and a party-committee NCA here.

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the applicability of those holdings to party-committees’ non-contribution accounts (“NCAs”).

FEC overlooks the fact that both McConnell v. FEC, 540 U.S. 93, 145 n.45 (2003), and Citizens

United, 558 U.S. at 360-61, distinguished the independent-expenditure line of cases from the

soft-money context, so this case raises a new and important issue. This and more make this case

very substantial. Crucially, FEC overlooks its burden to prove that preventing quid-pro-quo corruption justifies barring party-committee NCAs. See Part I.B. Absent that proof, FEC’s claim that

this case is “insubstantial” cannot succeed in defeating BCRA § 403 jurisdiction.

“Nonsense,” says FEC of plaintiffs’ assertion that McConnell actually said “the Court ha[d]

jurisdiction to hear a challenge to § 307,” 540 U.S. at 229, though FEC concedes that a § 403

court does have jurisdiction of a § 307 amendment, nonetheless insisting that McConnell means

something other than what it plainly says. Opp’n 15. See infra at 20-22.

“[R]uminations on the particular metaphysics of resurrecting FECA provisions,” Opp’n 15

n.3, is how FEC responds to plaintiffs’ analysis of what McConnell meant when declining to consider a challenge to a BCRA base-limit increase where the Paul plaintiffs lacked standing for

other reasons, though “the Court ha[d] jurisdiction to hear a challenge to § 307,” 540 U.S. at 229.

See infra at 20-22.

“Glib,” “nonsense,” and “ruminations,” along with the labels “frivolous” and “insubstantial,” don’t satisfy FEC’s burden to prove that this case is without legal merit under the controlling constitutional analysis applicable to independent expenditures and independent-expenditure

entities. FEC has not proven that political-party independent expenditures pose a quid-pro-quocorruption risk—which it cannot—and absent such proof, this case is substantial, not frivolous.

I. Plaintiffs Meet the Two Criteria for BCRA § 403’s Judicial-Review Provisions.

In their three-judge-court application, plaintiffs established that this case qualifies for the

Reply Supporting Three-Judge Court 2

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judicial-review proceedings of BCRA § 403 because it meets § 403’s express criteria: (1) a constitutional challenge to (2) BCRA provisions/amendments. Appl. (Doc. 5) 1-4.

Section 403 expressly authorizes challenges to BCRA “amendments.” That clear inclusion

of challenges to amendments governs any question about the scope of § 403 review because the

ultimate question is what does § 403 authorize?, not what is said in some non-BCRA case or

some BCRA opinion with multiple possible interpretations. Since a BCRA amendment raising a

base contribution limit is a BCRA amendment, under § 403 it is subject to § 403 review.

A. FEC’s Suggested “Frivolous”/“Insubstantial” Bar Fails, if It Applies.

FEC pronounces the foregoing, necessary application of § 403’s plain language “glib” and

insists that § 403 procedures are inapplicable here because “plaintiffs’ claims are insubstantial,”

Opp’n 8, citing a non-BCRA case for the proposition that

“claims may be regarded as insubstantial if they are obviously without merit, or if their

unsoundness so clearly results from the previous decisions of (the Supreme Court) as to

foreclose the subject and leave no room for the inference that the question sought to be

raised can be the subject of controversy.”

Id. (quoting Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1334, 1338 (D.C. Cir. 1975)) (emphasis

added). Based on this proposed bar, FEC alleges that plaintiffs’ claims are “frivolous” or “foreclosed.” Id. FEC’s suggested frivolous/insubstantial bar is very problematic in the BCRA context

because (a) it is not included in BCRA § 403 (though such language is easy to insert); (b) BCRA

deals with core political speech, which is afforded the highest protection by the First Amendment,

the Supreme Court, and BCRA § 403; and (c) it turns on the merits before full merits briefing.

However, even if this Feinberg bar applies to § 403 proceedings, FEC must prove, not that its

broad labels “frivolous” and “insubstantial” apply, but that the claims here are either (1) “obviously”

meritless or (2) “clearly” so unsound under controlling precedent that there is “no room for the

Reply Supporting Three-Judge Court 3

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inference” that plaintiffs’ complaint “state[s] a claim upon which relief can be granted,” as Federal

Rule of Civil Procedure 12(b)(6) puts it in the merits context. Feinberg, 522 F.2d at 1338 (emphasis

added). FEC has not proven plaintiffs’ claims frivolous or insubstantial, let alone obviously frivolous

or so clearly insubstantial that there is no room for debate on the subject.2

Before a (necessarily) brief discussion of the legal merits of this challenge, the nature of FEC’s

asserted frivolous/insubstantial bar requires examination to identify its necessary limitation (if it

applies). The central issue of the present three-judge application is whether this case complies with

§ 403’s two criteria for § 403’s judicial procedures, which it does. The central issue of the proposition FEC advances is whether some claims—regardless of whether they are claims against BCRA

amendments—should be dismissed before a 3-judge court is convened because the claims are

deemed (a) obviously frivolous or (b) clearly foreclosed by precedent without room for debate.

While an (a) obviously frivolous case might properly be rejected before a § 403 court is convened, this case is not frivolous, let alone obviously frivolous. See Introduction (holdings controlling

present challenge). See also infra Part I.B (developing further the controlling legal analysis).

But whether a case is (b) clearly foreclosed without room for debate by precedent is complex

and requires substantial legal briefing, with three-judge courts often being overturned on appeal by

the Supreme Court in the highlyprotected political-speech realm. Consider three key cases (in which

present plaintiffs’ counsel Bopp and Coleson were counsel for victorious plaintiffs).

First, Wisconsin Right to Life’s as-applied challenge to BCRA’s corporate electioneeringcommunication ban was held, by a three-judge BCRA court, to be foreclosed by McConnell, 540

U.S. 93, until the unanimous Supreme Court held, in Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) (“WRTL-I”), that McConnell did not foreclose the as-applied challenge. WRTL then won its

 “We give the benefit of the doubt to speech.” FEC v. Wisconsin Right to Life, 551 U.S. 2

449, 482 (2007) (plurality) (“WRTL-II”).

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challenge in WRTL-II, 551 U.S. 449. If a judge had deprived WRTL of a three-judge court because

WRTL’s challenge was erroneously deemed foreclosed, WRTL would have been deprived of the

important judicial proceedings that are an essential part of BCRA.

Second, in Citizens United, 558 U.S. 310, a BCRA § 403 court was convened and granted

summary judgment to FEC in Citizens United’s challenge to the corporate electioneering-communications ban at 2 U.S.C. § 441b. Since it was a summary judgment decision, the district court held

as a matter of law that Citizens United’s challenge was foreclosed by precedent. Yet the Supreme

Court facially invalidated both the corporate electioneering-communication ban and the corporate

independent-expenditure ban. If a judge had deprived Citizens United of a three-judge court based

on the notion that precedent foreclosed the challenge, Citizens United would also have been deprived

of the important BCRA proceedings that permitted speedy resolution of that case.

Third, in McCutcheon v. FEC, 134 S.Ct. 1434 (2014), where a BCRA § 403 court was convened

to review the constitutionality of a BCRA amendment to a FECA aggregate contribution limit, the

district court granted FEC’s motion to dismiss because the challenge was purportedly foreclosed by

precedent: “Plaintiffs raise the troubling possibility that Citizens United undermined the entire

contribution limits scheme, but whetherthat case will ultimately spur a new evaluation of Buckley[v.

Valeo, 424 U.S. 1 (1976),] is a question for the Supreme Court, not us.” (No. 1:12-cv-01034-JEBJRB-RLW, Doc. 26 at 13.) On appeal, the Supreme Court reversed and held the aggregate limit

unconstitutional. Again, if plaintiffs McCutcheon and RNC had been deprived of a three-judge court

because their challenge was deemed foreclosed, they would have been deprived of the valuable

judicial procedures that Congress afforded BCRA challengers, including challengers electing § 403

procedures after the initial period when such procedures were mandatory.

3

 Because Congress expressly provided for later election of § 403’s procedures, those proce3

dures were not just for cases soon after BCRA passage, as FEC implies. Opp’n 6.

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The WRTL, Citizens United, and McCutcheon decisions demonstrate decisively that politicalspeech holdings that prior decisions foreclose legal challenges are regularly overturned on appeal—even when the legal determinations are made after a three-judge court has been convened and

after opportunity for fuller merits briefing. The errors of the three-judge courts were quickly fixed

in those cases because of BCRA’s judicial-review provisions. The lesson of these cases is that

whether challenges are “foreclosed” should not be decided on short memos addressing BCRA § 403

procedures, but on full merits briefs.

Despite this history of FEC convincing lower courts that restrictions on core political speech are

foreclosed by Supreme Court precedents, only to be promptly reversed on appeal by the Supreme

Court, FEC tries to convince this Court that plaintiffs’ claims are foreclosed. FEC tries this—not in

a motion to dismiss or for summary judgment—but in a way that would deprive plaintiffs here of

the speedyBCRA procedures that WRTL, Citizens United, and McCutcheon plaintiffs employed, as

Congress intended, to quickly gain Supreme Court review. FEC tries to deprive plaintiffs of the

valuable procedures to which they are entitled under § 403—all without full merits briefing.

4

So in a BCRA case, any argument that a non-frivolous challenge is foreclosed by precedent

should not be allowed to foreclose BCRA § 403 judicial procedures because determining precedential foreclosure properly requires full briefing of the legal issues (and decision by the three-judge

court that BCRA mandated). Any “foreclosure” screening function should be done—after a § 403

court is established—by summary judgment or a motion to dismiss. That is exactly what happened

in McCutcheon, 134 S.Ct. 1434, where a BCRA § 403 court was convened to review the constitutionality of a BCRA amendment to a prior aggregate contribution limit. Though that case was about

a BCRA amendment to an existing FECA limit, FEC did not object to a three-judge court, which was

 Appeal of a § 403-court denial would go to the D.C. Circuit because § 403(a)(3) allows 4

appeal of only “[a] final decision” to the Supreme Court, delaying BCRA’s speedy resolution.

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Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 10 of 30
formed to consider the legal challenge (and the Supreme Court struck the amended FECA contribution limit). Here, the three-judge court should be convened and then, if FEC wishes, it may file a

motion to dismiss based on its claim that this case is foreclosed.

Finally, concerning FEC’s assertion that this case is so clearly insubstantial that there is no room

for debate on the subject, it is helpful to step back for a general view before turning to more specific

refutations. In a political world dominated by IE-PACs, hybrid-PACs, and NCAs, political parties

are at a distinct disadvantage, as Joel Gora, law professor and former ACLU attorneyin Buckley, 424

U.S. at 4, explains:

There is only one severe drawback in all of this unlimited. political giving and spending,

which is, by and large, so beneficial for our democracy. That is that our two most central,

important political actors—our candidates and our parties—have to fight their political

battles with one hand tied behind their back. While their expenditures cannot be limited,

contributions to them can be. As a result, candidates and parties face the prospect of being

outspent by independent individuals and groups who are no longer restrained in terms of

what they can raise and spend. That is a potential imbalance in our political and electoral

speech system that should concern us.5

That “imbalance” helps explain why two cases have now been filed seeking IE-PAC-type rights

for political-parties’ independent-expenditure entities. See Rufer v. FEC, No. 1:14-cf-00837-

CRC (D.D.C., filed May 21, 2014). And former White House Counsel Bob Bauer, a politicalspeech-law expert, has opined that “th[is] suit does not exploit a ‘loophole’; it is not a ‘soft

money’ lawsuit; and the RNC has not previously made this claim:”

Political committees can spend independently without limitation, and they can also accept

contributions without limit to fund these expenditures. The RNC and Libertarian committees are simply saying: “us, too.” These party organizations, looking to regain a measure

of competitive parity with super PACs, are acting rationally . . . .

6

 Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L.

5

Rev. 1185, 1206-07 (2013), available at http://scholarship.shu.edu/cgi/viewcontent.cgi?article=

1482&context=shlr.

 Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits (June 6

2, 2014), www.moresoftmoneyhardlaw.com/2014/05/circling-back-full-360-rnc-libertarianReply Supporting Three-Judge Court 7

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 11 of 30
 This big-picture view, coupled with the controlling holdings set out in the Introduction, readily 7

establish that this case is not so clearly insubstantial that there is no room for debate on the subject. This big-picture view helps explain why six FEC lawyers are on this “insubstantial” case.

B. Plaintiffs’ Claims Are Not So Clearly Insubstantial that There Is No Room for Debate.

In this sub-part, plaintiffs briefly show why their claims are not so clearly insubstantial that

there is no room for debate—and, in fact, are very substantial. Plaintiffs have a 45-page draft of

their memo supporting summary judgment, which is full of extended legal arguments and which

they intend to file when the three-judge court is convened. In that context (or under a motion to

dismiss), before the three-judge court that BCRA provides, the merits issue of whether any claim

is foreclosed should be fought, after which the Supreme Court can quickly, finally resolve the

purely legal issues here. But here it suffices that FEC could not show that plaintiffs’ claims are so

clearly insubstantial that there is no room for debate. See supra at 3-4 (Feinberg test).

Missing from FEC’s argument is the essential constitutional analysis applying the sole governmental interest—fighting quid-pro-quo corruption—that might justify the restrictions at issue.

Briefly considering that analysis will show that there is plenty of room for debate over FEC’s

proposition that plaintiffs’ claims are clearly insubstantial (and reason to believe they are substantial). This constitutional analysis focuses primarily on plaintiffs’ desire to do independent

expenditures through an NCA. From that analysis, the similar analysis for Counts 2-3 follows. 8

First Amendment Protection. Plaintiffs’ planned independent expenditures through an

party-lawsuits/.

 “[I]ndependent expenditures . . . do not give rise to corruption or [its] appearance,” Citizens 7

United, 558 U.S. at 357, and “government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations,” SpeechNow, 599 F.3d at 696.

 Plaintiffs have verified their intent to establish NCAs “to receive unlimited contributions 8

from permissible sources for making only independent expenditures regarding federal candidates

and other independent communications that refer to federal candidates.” VC ¶ 11.

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Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 12 of 30
NCA are highly protected under the First Amendment “right to participate in democracy.”

McCutcheon, 134 S.Ct. at 1441 (Roberts, C.J., joined by Scalia, Kennedy & Alito, JJ.) (stating

the holding, Marks v. United States, 430 U.S. 188, 193 (1977)).

There is no right more basic in our democracy than the right to participate in electing our

political leaders. Citizens can exercise that right in a variety of ways: They can run for

office themselves, vote, urge others to vote for a particular candidate, volunteer to work on

a campaign, and contribute to a candidate’s campaign.

Id. at 1440-41. “‘When the Government restricts speech, the Government bears the burden of

proving the constitutionality of its actions.’” Id. at 1452.9

Scrutiny. The level of scrutiny in both McCutcheon, 134 S. Ct. at 1445-46, and SpeechNow,

599 F.3d at 696, was not decided because the government lost under either (what McCutcheon

called) “strict scrutiny” or the “‘closely drawn’ test,” 134 S.Ct. at 1445 (citing Buckley, 424 U.S.

at 26-27). Under either there was “a substantial mismatch between the Government’s stated 10

objective and the means selected to achieve it.” Id. at 1446. As SpeechNow put it: “[B]ecause

Citizens United holds that independent expenditures do not corrupt . . . , then the government can

have no anti-corruption interest in limiting contributions to independent expenditure-only organizations. No matter which standard of review governs contribution limits, the limits on contributions to SpeechNow cannot stand.” 599 F.3d at 696.

Interest. “Th[e Supreme] Court has identified only one legitimate governmental interest for

 Because McCutcheon analyzed the aggregate limit on political contributions as “speech,” a

9

fortiori independent-expenditure restrictions are speech restrictions, even though a contribution

element is involved as was also true in McCutcheon. See also 134 S.Ct. at 1441, 1446, 1449-52,

1466 (aggregate contribution limits described as “speech” burden).

 Even under the closely drawn test, McCutcheon requires rigorous scrutiny and avoidance 10

of unnecessary abridgement. 134 S.Ct. at 1446 (citation omitted). Under either scrutiny, no deference is afforded “an unconstitutional remedy.” Citizens United, 558 U.S. at 361. And “‘mere

conjecture [is not] adequate to carry a First Amendment burden.’” McCutcheon, 134 S.Ct. at

1452 (citation omitted). 

Reply Supporting Three-Judge Court 9

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 13 of 30
restricting campaign finances: preventing corruption or the appearance of corruption.”

McCutcheon, 134 S.Ct. at 1450 (citations omitted). This “corruption” is limited:

Any regulation must . . . target what we have called “quid pro quo” corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for

money. “The hallmark of corruption is the financial quid pro quo: dollars for political

favors.” Campaign finance restrictions that pursue other objectives, we have explained,

impermissibly inject the Government “into the debate over who should govern.” And those

who govern should be the last people to help decide who should govern.

Id. at 1441-42 (citations omitted) (emphases in original). But this anti-corruption interest applies

to only contributions to a candidate:

[T]here is not the same risk of quid pro quo corruption or its appearance when money flows

through independent actors to a candidate, as when a donor contributes to a candidate

directly. When an individual contributes to a candidate, a party committee, or a PAC, the

individual must by law cede control over the funds. See 2 U.S.C. § 441a(a)(8); 11 CFR

§ 110.6. The Government admits that if the funds are subsequently re-routed to a particular

candidate, such action occurs at the initial recipient’s discretion—not the donor’s. See Brief

for Appellee 37. As a consequence, the chain of attribution grows longer, and any credit

must be shared among the various actors along the way. For those reasons, the risk of quid

pro quo corruption is generally applicable only to “the narrow category of money gifts that

are directed, in some manner, to a candidate or officeholder.” McConnell, 540 U.S., at 310,

124 S.Ct. 619 (opinion of KENNEDY, J.).

Id. at 1452. And “independent expenditures . . . do not give rise to corruption or the appearance of 11

corruption.” Citizens United, 558 at 357. So an anti-corruption interest cannot support independentexpenditure restrictions, including “limiting contributions to independent expenditure-onlyorganizations.” SpeechNow, 599 F.3d at 696.12

 Asserted anti-corruption interests based on “access,” “gratitude,” or “influence” are not 11

cognizable, Citizens United, 558 U.S. at 360-61, because the only cognizable corruption is quidpro-quo corruption, id. at 359. Citizens United made these holdings in the independent-expenditure context, while McCutcheon affirmed them in the context of a BCRA amendment to a FECA

contribution limit. 134 S.Ct. at 1450-51. That interest analysis applies and controls here.

 The Colorado-I plurality said, “We are not aware of any special dangers of corruption as- 12

sociated with political parties . . . .” 518 U.S. at 616. “What could it mean for a party to ‘corrupt’

its candidate or to exercise ‘coercive’ influence over him?” Id. at 646 (Thomas, J., joined by

Rehnquist, C.J., and Scalia, J.). Because limits on contributions to political-party committees are

not contributions to candidates (the only context in which there could be corruption as limited to

Reply Supporting Three-Judge Court 10

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 14 of 30
Nor does any anti-circumvention concern justify independent-expenditure restrictions. In

13

McCutcheon, the controlling opinion said that “if there is no risk that . . . candidates will be corrupted by [direct] donations . . . [to them], then the Government must defend [the challenged provisions] by demonstrating that they prevent circumvention of the base limits.” 134 S.Ct. at

1452. But that was because the government argued that aggregate limits posed a conduit-contri- 14

bution risk, which the Court rejected. Here there is no potential anti-circumvention interest at all

because no anti-circumvention interest protects limits on independent expenditures: “Rather than

preventing circumvention of the contribution limitations, [the expenditure limit] severely restricts

all independent advocacy despite its substantially diminished potential for abuse.” Buckley, 424

U.S. at 47 (holding independent-expenditure ceiling unconstitutional). Moreover, there could be

no “circumvention” by reason of “access,” “gratitude,” or “influence” because there is no cognizable governmental interest in preventing those. Citizens United, 558 U.S. at 360-61. So any 15

anti-circumvention interest would have to based on a conduit-contribution reaching a candidate,

but that cannot occur with independent expenditures, which are not contributions. And independent expenditures are by definition not coordinated, see, e.g., Buckley, 424 U.S. at 47 (“The abthe quid-pro-quo-corruption risk in McCutcheon, 134 S.Ct. at 1434), such contributions are necessarily based on a conduit-contribution circumvention concern. But with political-party committee independent expenditures, no contributions to candidates are involved, eliminating that potential governmental interest.

 Government may prevent circumvention but not with otherwise unconstitutional law, i.e., 13

preventing circumvention cannot justify otherwise unconstitutional law. McCutcheon, 134 S.Ct.

at 1452-60. In political-speech law, “there can be no freestanding anti-circumvention interest.”

Republican Party of N.M. v. King, 741 F.3d 1089, 1102 (10th Cir. 2013).

 Government may prevent circumvention, rightly defined as illegal conduit-contributions, 14

but not with unconstitutional law. Id. at 1452-60. McCutcheon found no conduit-contribution

risk because of numerous prophylaxes. Id.

 In SpeechNow, “FEC relied heavily on McConnell, arguing that independent expenditures 15

. . . benefit candidates . . . [who might be ] grateful” and “‘preferential access . . . and undue influence” might ensue. 599 F.3d at 694. “Whatever the merits of those arguments before Citizens

United,” the en-banc court responded, “they plainly have no merit after Citizens United.” Id.

Reply Supporting Three-Judge Court 11

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 15 of 30
sence of . . . coordination of an expenditure with the candidate . . . not only undermines the value

of the expenditure to the candidate, but also alleviates the danger that expenditures will be given

as a quid pro quo for improper commitments from the candidate”), so they cannot become contributions by reason of coordination. See id. at 47 n.53 (“we find that the “authorized or requested”

standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate . . . as contributions ”). So because independent expenditures and

independent-expenditure entities are independent, the independent-expenditure entity cannot

serve as a vehicle for persons seeking to circumvent base limits by conduit contributions.

Nor may coordination between party-committees’ independent-expenditure entities and candidates be presumed because the “independent expenditures” for public communications that

political-party committees may make, see 11 C.F.R. § 109.30, by definition, may not be coordinated with candidates identified in the communication, see 11 C.F.R. § 109.37 (“What is a ‘party

coordinated communication’?”). And Colorado-I expressly rejected FEC’s presumption that

political-party committees were incapable of making independent expenditures because FEC presumed that all political-party committee expenditures were coordinated with a political party’s

candidates. 518 U.S. 604. What the Colorado-I decisions said in rejecting presumed coordination extends to the present analysis. For example, the Colorado-I plurality held that in examining

alleged coordination, one may not look to “general descriptions of Party practice,” such as a

“statement that it was the practice of the Party to ‘coordinat[e] with the candidate’ campaign strategy” or for a Party official “to be ‘as involved as [he] could be’ with the individuals seeking the

Republican nomination . . . by making available to them ‘all of the asserts of the party.” 518 U.S.

at 614. Instead of such a generalized presumption, which FEC asserted, the plurality held that the

coordination analysis examines whether a particular communication is, in fact, coordinated, id.:

Reply Supporting Three-Judge Court 12

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 16 of 30
These latter statements, however, are general descriptions of Party practice. They do not

refer to the advertising campaign at issue here or to its preparation. Nor do they conflict

with, or cast significant doubt upon, the uncontroverted direct evidence that this advertising

campaign was developed by the Colorado Party independently and not pursuant to any

general or particular understanding with a candidate. . . . And we therefore treat the expenditure, for constitutional purposes, as an “independent” expenditure, not an indirect campaign contribution.

The Colorado-I plurality further stated that political-party-committee independent expenditures posed less corruption threat than those by individuals (which pose none), id. at 617-18:

If anything, an independent expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than

the same (or a much larger) independent expenditure made directly by that donor. In any

case, the constitutionally significant fact, present equally in both instances, is the lack of

coordination between the candidate and the source of the expenditure. See Buckley, [424

U.S.] at 45-46; [FEC v. National Conservative PAC, 470 U.S. 480,] 498 [(1985)]. This fact

prevents us from assuming, absent convincing evidence to the contrary, that a limitation on

political parties’ independent expenditures is necessary to combat a substantial danger of

corruption of the electoral system.

And the Colorado-I plurality expressly rejected the notion that a political-party committee

“expenditure is ‘coordinated’ because a party and its candidate are identical, i.e., the party, in a

sense, ‘is’ its candidates.” 518 U.S. at 622. “We cannot assume, however, that this is so,” the plurality continued, id., and such “a metaphysical identity would . . . arguabl[y] . . . eliminate[] any

potential for corruption . . . ,” id. at 623, citing First National Bank of Boston v. Bellotti, 435

U.S. 765, 790 (1978) (“where there is no risk of ‘corruption’ of a candidate, the Government may

not limit even contributions”). So in the independent-expenditure context, if the government argues that political parties and candidates have “an absolute identity of views and interests,” id.,

then there is no corruption potential and, consequently, no constitutional justification for any

limit even on their coordinated expenditures (making any coordination presumption meaningless, even if permitted). But if political-party committees and their candidates are separate legal

entities, as Colorado-I and FECA treat them, then political party committees are factually capaReply Supporting Three-Judge Court 13

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 17 of 30
ble of making expenditures independently of their candidates.

From the foregoing, it is clear that in deciding whether any particular public communication

by a political-party committee is possibly coordinated, one must examine the same conduct standards employed for other persons. That is a factual question. No presumed coordination is per- 16

mitted.

IE-PAC cases have distinguished IE-PACs from political parties, citing concerns discussed

in Colorado-I, 518 U.S. 604, FEC v. Colorado Republican Federal Campaign Committee, 533

U.S. 431 (2001) (“Colorado-II”), and/or McConnell, 540 U.S. 93. For example, SpeechNow

noted that “FEC also argues that we must look to the discussion about the potential for independent expenditures to corrupt in [Colorado-I],” but SpeechNow rejected FEC’s argument, distinguishing political party independent expenditures and holding, in any event, that “a discussion in

a 1996 opinion joined by only three justices cannot control our analysis when the more recent

opinion of the Court in Citizens United clearly states as a matter of law that independent expenditures do not pose a danger of corruption or the appearance of corruption.” 599 F.3d at 695.

But SpeechNow’s distinction between independent expenditures by party committees and

those by others was unnecessary, both analytically and because the issue of national-party-committees NCAs was not before the court, so the statement is dictum. And the independent expen- 17

ditures of party-committees and other entities are alike for constitutional analysis. SpeechNow

 Because plaintiffs verified their intent to make independent expenditures “subject to all 16

applicable federal laws and regulations and pursuant to the standards of Colorado-I, 518 U.S.

604,” VC ¶ 24, factual independence must be assumed. In fact, plaintiffs already make independent expenditures in compliance with federal laws, VC ¶ 26, and simply wish to continue that factually legal practice through an NCA.

 Decisions from other circuits are not controlling here. Moreover, some of the distinctions 17

in the IE-PAC cases likely presume coordination between party-committees and their candidates,

which is impermissible under Colorado-I. See supra at 12-14.

Reply Supporting Three-Judge Court 14

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 18 of 30
overstated the situation when it distinguished political-party-committees’ independent expenditures, saying that “[Colorado-I] concerned expenditures by political parties, which are wholly

distinct from ‘independent expenditures’ as defined in 2 U.S.C. 431(17).” 599 F.3d at 695.

Section 431(17) defines “independent expenditure” as including express advocacy, while the

“independent expenditure” at issue in Colorado-I lacked express advocacy, see FEC v. Colorado

Republican Federal Campaign Committee, 839 F. Supp. 1488, 1451 (D. Col. 1993) (ad criticized

candidate on issues). But that minor distinction does not change the constitutional analysis.

The statutory independent-expenditure definition arose from Buckley’s imposition of a saving construction on two FECA “expenditure” definitions, 424 U.S. at 44 & n.52, 80, and

Colorado-I said “that the expenditure in question is what this Court in Buckley called an ‘independent’ expenditure.” 518 U.S. at 613 (plurality). So while the ad at issue in Colorado-I lacked express advocacy, the common Buckley analysis makes “independent” expenditures by politicalparty committees equivalent to FECA-defined independent expenditures for the relevant constitutional analysis here—which turns on the independence of the communications, not the presence

or absence of express advocacy. A political-party committees’s right to make express-advocacy

communications includes the right to make independent, non-express-advocacy communications.

Moreover, distinguishing between supposedly different types of independent expenditures is

analytically flawed because FEC imposes similar “content” and “conduct” rules for determining

whether such communications are coordinated. The general “coordinated communication” rule is

at 11 C.F.R. § 109.21, while the specific “party coordinated communication” rule at 11 C.F.R.

§ 109.37 governs whether the “independent expenditures” that political-party committees “may

make,” 11 C.F.R. § 109.30. For a political-party committee, the content of a communication subject to the coordination rule essentially includes “public communications” that distribute candiReply Supporting Three-Judge Court 15

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 19 of 30
date campaign materials, contain express advocacy, refer to House and Senate candidates in the

90 days before an election, or refer to a Presidential and Vice Presidential candidate in the 120

days before an election. The “party coordinated expenditure” rule adopts the same conduct standards as in the general rule (with minor modifications), which include such topics as “[r]equest

or suggestion,” “[m]aterial involvement,” “[s]ubstantial discussion,” “[c]ommon vendor,”

“[f]ormer employee or independent contractor,” and “[d]issemination, distribution, or

republication of campaign material.” 11 C.F.R. § 109.21(d). A “safe harbor” is recognized where

a “firewall” is erected to prevent the flow of material candidate information to the independentexpenditure entity. 11 C.F.R. § 109.21(h). So the independence of independent expenditures is

identical, whether an independent expenditure is made by a political-party committee or not.

In sum, no political-party-committee communication may be presumed to be coordinated

with a candidate supported by the communication, so that erroneous presumption may not be

used to discriminate against party-committees by not recognizing their right to have an NCA.

And once that presumption is removed, the distinctions between political-party committees’ independent expenditures and those by others are seen to be flawed for purposes of determining the

constitutionality of preventing political-party committees from having NCAs. In any event, controlling holdings require that political-party committees NCAs be constitutionally protected to

the same extent as other independent-expenditure-only entities:

• Citizens United, 558 U.S. at 357, held, as a matter of law, that “independent expenditures

. . . do not give rise to corruption or the appearance of corruption,” and

• SpeechNow, 599 F.3d at 696, held that “because Citizens United holds that independent expenditures do not corrupt or give the appearance of corruption as a matter of law, then the

government can have no anti-corruption interest in limiting contributions to independent exReply Supporting Three-Judge Court 16

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 20 of 30
penditure-only organizations.”

Tailoring. Just as in McCutcheon, there is “a substantial mismatch between the Government’s stated objective and the means selected to achieve it.” 134 S.Ct. at 1446. The government’s sole interest is preventing quid-pro-corruption or its appearance, but neither independent

expenditures nor unlimited contributions to a party-committee’s NCA implicates that interest.

Two Distinct Lines of Cases. FEC consistently relies on citations to the soft-money line of

cases. See, e.g., Opp’n 9-12 (relying on the soft-money cases McConnell, 540 U.S. 93, and RNC

v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010), as “controlling”). But soft-money cases don’t control here because this case is based on the IE-PAC line of cases and thus is not a soft-money case.

Both McConnell, 540 U.S. at 145 n.45, and Citizens United, 558 U.S. at 360-61, expressly distinguished the soft-money context from the independent-expenditure context. As stated in Citizens

United: “This case, however, is about independent expenditures, not soft money.” Id. at 361. So

the McConnell record and its (now-rejected) theories of corruption based on access, gratitude,

and influence are all inapplicable to an independent-expenditure case. Id. at 360-61. The present

case, too, is an independent-expenditure case and governed by the independent-expenditure line

of cases. Because FEC interprets the unlimited funds that IE-PACs/NCAs may receive as not 18

being “federal funds,” RNC and LAGOP do challenge the ban on using non-federal funds at 2 19

Cf. Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits,

18

www.moresoftmoneyhardlaw.com/2014/05/circling-back-full-360-rnc-libertarian-party-lawsuits/

(“[T]he suit does not exploit a ‘loophole’; it is not a ‘soft money’ lawsuit; and the RNC has not

previously made this claim.”).

 In AO 2011-12 (Majority PAC), FEC decided that the non-federal funds bans—which pro- 19

hibits “funds[] that are not subject to the limitations, prohibitions, and reporting requirements of

[FECA],” 2 U.S.C. § 441i(a)(1), (b)(1), (c), and (e)(1)(A)—exclude from “federal funds” any

money given to IE-PACs beyond the base limit on contributions to PACs. Thus, the AO decided

that a federal officeholder or candidate can only solicit up to $5,000/year, under § 441i(e), for an

IE-PAC (for whom the base limits are unconstitutional).

Reply Supporting Three-Judge Court 17

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 21 of 30
U.S.C. § 441i(a)-(c) as unconstitutional as applied to their intended NCAs. But that does not 20

make this a soft-money case. Plaintiffs’ core claim is that they should be able to have NCAs, just

as other entities may have NCAs, based on the IE-PAC/NCA line of cases—so whatever provisions stand in the way of that are unconstitutional, whether they are a soft-money ban or a

BCRA-amended contribution limit. Because this case depends on, and arises within, the IE-PAC

line of cases, FEC’s arguments about the interrelated nature of political parties and candidates,

corruption based on now-rejected gratitude-corruption, and the like are simply inapplicable.

Applying this distinction between lines of cases to FEC’s arguments leaves FEC with none applicable to this case.21

A Red Herring. FEC argues that express-advocacy independent expenditures are “clearly

regulable,” Opp’n 12, so that this is an easy case to decide against plaintiffs, id. at 13. This cannot succeed. Buckley imposed the “express advocacy” construction on two “expenditure” provisions to avoid constitutional problems of vagueness and overbreadth, 424 U.S. at 39-44, 79-80,

by restricting them to expenditures that are “unambiguously related to the campaign of a particular federal candidate,” id. at 80. So as a result, express-advocacy independent expenditures were

subject to reporting requirements and the corporate ban at 2 U.S.C. § 441b, while issue-advocacy

 Section 441i(a) mandates that national-party committees (or their officers, agents, or enti- 20

ties) “not solicit, receive, or direct to another person . . . anything of value, or spend any funds,

that are not subject to the limitations, prohibitions, and reporting requirements of [FECA].”

Section 441i(b) mandates that state-party committees (or their officers, agents, or entities)

use federal funds for “an[y] amount that is expended or disbursed for Federal election activity.”

Section 441i(c) mandates that only federal funds may be used to fundraise for federal election activity.

 For example, FEC cites soft-money cases for the proposition that there is a “danger of quid 21

pro quo corruption and its appearance inherent in the close relationship between federal candidates and officeholders and political party committees.” Opp’n 10-11. FEC insists that this softmoney-context proposition “remains controlling.” Id. at 11. But that proposition was rejected in

Colorado-I in the independent-expenditure context. 518 U.S. 604. So even if FEC’s “close-relationship” proposition survived Citizens United and McCutcheon, it doesn’t apply here.

Reply Supporting Three-Judge Court 18

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 22 of 30
communications were not. But then Citizens United held, as a matter of law, that independent

expenditures pose no quid-pro-quo-corruption risk and overturned the ban on corporate independent expenditures. 558 U.S. at 336-66. Independent expenditures remain subject to reporting

requirements, but that does not alter the IE-PAC line of authorities, which hold that when both

potential contributors and independent-expenditure entities can do independent expenditures separately, there is no reason to prevent them from pooling their resources to amplify their speech in

expressive association. See supra footnote 1. Absent any quid-pro-quo-corruption risk, there is

no constitutional justification to limit contributions to independent-expenditure entities. And

FEC’s argument that hard money has always paid for party-committee independent expenditures,

Opp’n 11, does not make it constitutional to require it now after recent Supreme Court decisions

and FEC’s inability to show a constitutional justification for requiring it.

In sum, FEC has not met its burden of showing that the claims of this case are clearly foreclosed without room for debate by precedent, if indeed that threshold test is even required for

BCRA § 403 judicial proceedings. Rather, plaintiffs claims are substantial, as FEC’s all-out effort to derail this case at the beginning implicitly acknowledges.

C. Plaintiffs’ Claims Challenge BCRA Provisions/Amendments.

Plaintiffs demonstrated that: (a) the challenged provisions all fit the BCRA “provision” or

“amendment” criterion, Appl. 3-4: (b) BCRA §§ 101 and 307 (at issue here) were addressed by

BCRA courts in McConnell and McCutcheon, id. at 4-6; (c) plaintiffs’ claims qualify for BCRA

procedures under McConnell, id. at 6-9; and (d) Schonberg v. FEC, 792 F. Supp. 2d 14 (D.D.C.

2011) (per curiam), is distinguishable (or incorrect, if wrongly interpreted), id. at 9-14.

In opposition, FEC turns to its “nonsense” and “ruminations” arguments. Opp’n 15. FEC

argues that plaintiffs’ challenges to BCRA amendments to FECA contribution limits are not “jusReply Supporting Three-Judge Court 19

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 23 of 30
ticiable” under BCRA § 403, Opp’n 13, though there is no dispute that those amendments are, in

fact, BCRA “amendments” as specified in § 403’s criteria for BCRA judicial proceedings. Section 403’s clear “amendments” language should govern wherever there is doubt about whether

§ 403 judicial proceedings should apply—BCRA “amendments” of any kind must be presumed

to be subject to § 403 procedures with the burden on FEC to prove that this is not so.

FEC argues that “McConnell squarely forecloses [plaintiffs’] request.” Opp’n 13. Plaintiffs

have already noted that McConnell made an unmistakable statement of its jurisdiction over

BCRA § 307 in that § 403 proceeding: “the Court has jurisdiction to hear a challenge to § 307.”

540 U.S. at 229. Plaintiffs devoted four pages to explaining why that clear McConnell statement

of jurisdiction over § 307 (“striking” old, and “inserting” new, contribution limits, 116 Stat. 102)

means exactly what it says—that a BCRA amendment striking and inserting base limits is subject

to § 403 judicial procedures. That clear statement (like the clear “amendments” criterion of

§ 403), must control over any debatable interpretations of other language in opinions.

“Nonsense,” says FEC. Opp’n 15. Yet FEC concedes “that jurisdiction,” i.e., that § 307

amendments are subject to § 403 proceedings. Id. But, FEC insists, “that jurisdiction” doesn’t

22

matter because “the limited scope of that jurisdiction causes the redressability problem that is

fatal to their application.” Id. (emphasis in original). According to FEC, there would be no

redressability here, as there was none in McConnell, because “if plaintiffs were to succeed . . . the

individual contribution limit would decrease to pre-amendment base-limit amounts, leaving plaintiffs’ NCAs yet subject to base limits and without redress. Opp’n 15-16. FEC’s argument fails 23

for at least three obvious reasons.

 With that necessary concession, FEC’s opposition logically collapses, as shall be shown. 22

 The lack of redressability in McConnell was for other reasons than FEC suggests, and does 23

not apply here, as plaintiffs have already explained. See Appl. 6-9.

Reply Supporting Three-Judge Court 20

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 24 of 30
First, if, as FEC properly conceded, a § 307 amendment is subject to § 403 jurisdiction, then

the question for this three-judge court application is resolved, i.e., since the challenged amendments are subject to § 403 proceedings, a three-judge court should be convened. Then, it is up to

that three-judge court to decide whether plaintiffs have Article III standing. This is exactly what

happened in McConnell where the § 403 court decided that the Paul plaintiffs lacked Article III

standing, not the judge deciding whether to convene a § 403 court. See 540 U.S. at 229. 

Second, McCutcheon shows what actually happens when a § 403 court declares a BCRA

amendment to a FECA contribution limit unconstitutional, and it is not as FEC suggests. In McCutcheon, RNC challenged the aggregate contribution limit, which the Court held unconstitutional under the First Amendment. 134 S.Ct. at 1442. There was a preexisting FECA $25,000

aggregate contribution limit, upheld in Buckley, 424 U.S. at 38, which BCRA § 307 amended.24

Under FEC’s argument, if the BCRA aggregate limit is held unconstitutional, then the old FECA

limit takes its place. That didn’t happen. No one, including FEC, even suggested it. Once the

amended limit was held unconstitutional, there was no limit. In the present case, if any BCRAamended contribution limit is held unconstitutional by a § 403 court, no FECA limit will spring.

But this as-applied case is even easier.

Third, because this is an as-applied challenge, the base limits go nowhere if plaintiffs succeed. For example, when SpeechNow, 599 F.3d 686, held contribution limits unconstitutional as

applied to IE-PACs, those BCRA-amended base and aggregate contribution limits remained in

place, just as they had been, for those who were not IE-PACs. No old FECA limits leaped into

the BCRA limits’ place. And SpeechNow didn’t have to challenge both the BCRA and the FECA

base and aggregate limits to get as-applied relief, just as McCutcheon and RNC had not been re-

 The new aggregate limits were subdivided by category, which is irrelevant to this analysis. 24

Reply Supporting Three-Judge Court 21

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 25 of 30
quired to do in McCutcheon. No one, not even FEC, even suggested such a thing.

Of course FEC dismisses this as “irrelevant” “ruminations on the particular metaphysics of

resurrected FECA provisions.” Opp’n 15 n.3. But the foregoing shows that FEC is simply wrong.

FEC next argues that “plaintiffs seek permission to fund express advocacy without regard to

FECA’s hard money contribution limits.” Opp’n 16. Plaintiffs do seek to fund independent expenditures without regard to “hard money contribution limits,” just like SpeechNow sought to

do. But FECA base and aggregate limits became BCRA “amendments” when BCRA amended

them, as FEC conceded by acknowledging that BCRA § 307 amendments are subject to § 403

jurisdiction. See supra at 20. And since it has just been shown that FECA limits don’t spring into

place when BCRA limits are struck, especially in as-applied cases, FEC’s argument fails.

FEC then very briefly points to Schonberg, 792 F. Supp. 2d 14, apparently for the proposition that a challenge to a BCRA provision is really a challenge to the FECA provision underlying

it because replaced FECA provisions really do spring into place when BCRA amendments are

struck, though FEC declares plaintiffs’ extended discussion of Schonberg and possibly springing

FECA provisions (Appl. 9-14) an “irrelevant notion.” Opp’n 17. But as shown before, Appl. 9-

14, Schonberg is clearly distinguishable (and incorrect, if wrongly interpreted), and simply has no

bearing in this as-applied context. In any event, as just shown above, binding Supreme Court precedent such as McCutcheon demonstrates that challenges to BCRA provisions do not cause

FECA provisions to spring into their place, And this is especially so in as-applied cases.

FEC acknowledges that McCutcheon was a § 403 procedure against a BCRA § 307 amendment to a FECA aggregate limit. Opp’n 18. That should be the end of the matter, because as already discussed, see supra at 21-22, McCutcheon proves that (a) a BCRA § 403 challenge to a

BCRA § 307 amendment really is to the BCRA amendment, not the underlying FECA provision,

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Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 26 of 30
(b) no springing FECA provisions replaces a struck BCRA provision, and (c), as relevant here, a

§ 307 amendment is subject to § 403 jurisdiction.

But FEC argues that McCutcheon “is of no help to [plaintiffs’] application because the

BCRA aggregate limits . . . were quite different from the . . . FECA provision.” Opp’n 18. That

argument depends on the degree of change in an amendment, which is nowhere stated in § 403’s

clear criterion that a BCRA “amendment” is subject to § 403 judicial proceedings. Such a matterof-degree line provides no guidance as to how much change entitles plaintiffs to their statutory

right to § 403 proceedings. And crucially, FEC’s argument that too little change in an acknowledged BCRA § 307 amendment makes it unsuitable for § 403 review is inconsistent with FEC’s

core argument, as stated in its summation, that “FECA as it existed before BCRA would still proscribe all of plaintiffs’ intended activities.” Opp’n 20. That is a springing FECA argument that

has nothing to do with how much change an amendment made to a FECA provision. But as

shown above, McCutcheon and other cases have shown that FECA provisions don’t spring to

replace struck BCRA provisions, especially in as-applied challenges.

Even under FEC’s degree-of-change analysis, LAGOP’s challenge to BCRA § 102 is a

“true” BCRA provision because there was no such provision in FECA before BCRA § 102.

Appl. 3 n.3. BCRA § 102 created a totally new provision (codified at 2 U.S.C. § 441a(a)(1)(D))

where none existed before. That new provision created a separate base limit for state-party committees of $10,000. Before, FECA contained only a catch-all base limit ($5,000) on contributions

“to any other political committee.” 2 U.S.C. § 441a(a)(1)(C). FEC does not, can not, show why

the increase of the aggregate limit (with subdivisions) in § 307 was sufficient for § 403 judicial

proceedings while the creation of a brand-new provision in § 102 (with a limit, language, and

citation (§ 441a(a)(1)(D) that did not exist before) is not sufficient for § 403 proceedings.

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Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 27 of 30
In sum, there is no doubt that all of plaintiffs challenges are to BCRA “provisions” or

“amendments,” under which criterion § 403 provides them BCRA’s special judicial proceedings.

And a holding in favor of plaintiffs on their challenges will give them full redress. They will receive declaratory judgment that the government has no cognizable anti-corruption interest to prevent party-committees from receiving unlimited contributions to fund their independent expenditures through NCAs. No BCRA-amended base limit and no BCRA soft-money provision will

prevent it, which is full redress. FEC has shown no reason why plaintiffs’ three-judge court application should not be granted, with the three-judge court having jurisdiction over all claims.

II. Supplemental Jurisdiction Is Available, if Required.

Plaintiffs believe that all of their claims are against BCRA “provisions” and “amendments”

so that § 403 judicial proceedings are proper as to all claims, but they invoked supplemental jurisdiction under 28 U.S.C. § 1367 in the event this court disagreed on any claim. Appl. 14-16.

FEC argues that there could be no supplemental jurisdiction because its “analysis of substantiality and justiciability” establishes that “a three-judge court would not have jurisdiction over

any part of this case.” Opp’n 21 (emphasis in original). As discussed at length above, FEC’s

analysis established no such thing, so supplemental jurisdiction is not precluded on that basis.

FEC says “supplemental jurisdiction would be contrary to McConnell,” Opp’n 21, but is unable cite any evidence that supplemental jurisdiction was invoked there, let alone ruled on as precluded, so that argument fails. And FEC’s argument that McConnell treated BCRA amendments

as FECA provisions has been refuted at length. Appl. 6-9. See also supra Part I.C. 

FEC argues that to the extent any provision is really a FECA challenge it must be brought

under 2 U.S.C. § 437h. Of course, plaintiffs believe no challenge here is to FECA, but even so

FEA cites no authority, not even Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013), that precludes

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Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 28 of 30
supplemental jurisdiction where a court has proper jurisdiction under BCRA § 403, as a threejudge court in this case would. So supplemental jurisdiction remains available and invoked, if

this Court deems it is necessary.

25

Conclusion

This Court should grant plaintiffs’ Amended Application for Three-Judge Court.

Respectfully submitted,

 /s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

relf@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

 In Part IV of its Opposition, FEC argues about proceedings under 2 U.S.C. § 437h, not 25

BCRA § 403. (FEC believes that plaintiffs’ claims do not qualify for BCRA § 403’s judicial procedures, so that those plaintiffs who qualify under § 437h must proceed under that provision.)

But Plaintiffs filed a motion for BCRA § 403 proceedings. FEC addresses a motion that plaintiffs

did not make, i.e., plaintiffs made no motion to certify questions under § 437h. So FEC’s arguments about § 437h are not germane to the present motion. Therefore, Plaintiffs do not address

FEC’s arguments about § 437h and do not waive their arguments against FEC’s assertions if

those assertions become germane to a current motion.

Reply Supporting Three-Judge Court 25

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 29 of 30
Certificate of Service

I certify that today I electronically filed the foregoing with the clerk of court using the

CM/ECF system, which will notify:

Kevin Deeley KDeeley@fec.gov 

JSadio@fec.gov

RFreeman@fec.gov

VGraham@fec.gov 

Harry Summers HSummers@fec.gov, 

JSadio@fec.gov

KDeeley@fec.gov 

RFreeman@fec.gov

VGraham@fec.gov 

Erin Chlopak EChlopak@fec.gov

DKolker@fec.gov 

JSadio@fec.gov

KDeeley@fec.gov 

VGraham@fec.gov 

Greg Mueller GMueller@fec.gov, 

 EChlopak@fec.gov

JSadio@fec.gov

KDeeley@fec.gov 

VGraham@fec.gov 

Seth Nesin SNesin@fec.gov

JSadio@fec.gov

KDeeley@fec.gov 

RFreeman@fec.gov

VGraham@fec.gov 

Charles Kitcher CKitcher@fec.gov

June 23, 2014

/s/ James Bopp, Jr.

James Bopp, Jr. 

Reply Supporting Three-Judge Court

Case 1:14-cv-00853-CRC Document 21 Filed 06/23/14 Page 30 of 30