UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CHRIS RUFER, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-837 (CRC) 

 ) 

 ) 

 v. ) 

 ) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Lisa Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Seth Nesin 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 snesin@fec.gov 

gmueller@fec.gov 

 ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 11, 2014 (202) 694-1650 

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TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................1 

A. The Parties .........................................................................................................1 

B. Relevant Statutory and Regulatory Provisions ..................................................2 

C. The History of Political Party Corruption and Congressional Responses .........4 

ARGUMENT ...........................................................................................................................10 

A. Requirements for a Preliminary Injunction ......................................................10 

B. Plaintiffs Are Unlikely to Succeed on the Merits ............................................11 

1. Contribution Limits Are Reviewed Under a More Deferential 

Standard Than Laws That Restrict Expenditures .................................11 

2. The Limits on Contributions to Political Parties Further the 

Important Government Interest in Preventing Quid Pro Quo 

Corruption and Its Appearance ........................................................... 13 

a. There Is Ample Evidence of Parties Playing a Key Role 

in Quid Pro Quo Corruption and Its Appearance ....................14 

b. Unlike PACs, Parties Have a “Unity of Interests” and 

Are “Inextricably Intertwined” With Candidates ....................19 

c. McConnell and RNC Have Already Held the 

Contribution Limits Prevent Quid Pro Quo Corruption ..........21 

d. Courts Have Uniformly Found That Contributions 

to Political Parties Pose a Danger of Corruption 

Even if Contributions to PACs for Independent 

Expenditures Do Not ................................................................26 

e. Minor Parties Present the Threat of Quid Pro Quo 

Corruption and Its Appearance ................................................30 

f. The Constitutionality of the Limits Is Not Undermined by 

Plaintiffs' Assurances About How Personnel or Funds 

Will Be Segregated ..................................................................33 

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3. The Party Contribution Limits Are Closely Drawn to Advance 

the Government’s Interests ..................................................................35 

a. Political Parties Continue to Thrive Under the 

Current Contribution Limits ........................................36 

b. When the Full Scope of FECA Regulation Is 

Considered, Parties Have Many Advantages 

Over PACs ...................................................................37 

c. Political Parties Can Continue to Make 

Independent Expenditures Without Receiving 

Unlimited Contributions for That Purpose ..................38 

d. The Burden on Contributors Is Marginal and 

They Have Numerous Other Outlets for Political 

Expression ....................................................................39 

C. Plaintiffs Fail to Demonstrate Irreparable Harm .............................................40 

1. Plaintiffs’ Mere Allegations of Harm Are Insufficient to 

Show Irreparable Injury .......................................................................40 

2. Plaintiffs Face No Imminent Injury Requiring Expedited 

Consideration .......................................................................................42 

D. The Relief Plaintiffs Request Would Harm the Government and 

Undercut the Public Interest.............................................................................43 

CONCLUSION ........................................................................................................................45 

 

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TABLE OF AUTHORITIES 

Cases 

Agostini v. Felton, 521 U.S. 203 (1997) ..................................................................................25 

Am. Meat Inst. v. Dep't of Agric., 968 F. Supp. 2d 38 (D.D.C. 2013), 

aff’d, 746 F.3d 1065 (D.C. Cir. 2014) ...................................................................40, 41 

Anderson v. Celebrezze, 460 U.S. 780 (1983) .........................................................................22 

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

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ....................................................................14 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .........................................................................37 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La.), 

aff’d sub nom In re Cao, 619 F.3d 410 (5th Cir. 2010) .............................20, 26, 33, 36 

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011) .....................................................28, 35, 42 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 

(D.C. Cir. 2006) .....................................................................................................40, 41 

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir 2004) ....................42 

Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81 

(D.D.C. 2006) ..............................................................................................................44 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. 

District of Columbia, 919 F.2d 148 (D.C. Cir. 1990) ..................................................41 

Citizens Against Rent Control/Coal. for Fair Hous. v. 

City of Berkeley, Cal., 454 U.S. 290 (1981) ................................................................28 

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................22, 23, 25, 42 

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 

(D.C. Cir. 1995) ...............................................................................................40, 43, 44 

Colo. Republican Federal Campaign Comm. v. FEC, 

518 U.S. 604 (1996) .................................................................................................3, 38 

Elrod v. Burns, 427 U.S. 347 (1976) (plurality) ............................................................4, 40, 43 

Case 1:14-cv-00837-CRC Document 13 Filed 06/11/14 Page 4 of 55
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EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ..................................................... 26-27, 28 

FEC v. Beaumont, 539 U.S. 146 (2003) ..................................................................................11 

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ........ 15, 16, 20-21, 38

FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480 (1985) .....................................36 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..............................................................23 

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) ...................................................................40 

In re Disciplinary Proceedings Against Chvala, 300 Wis. 2d 206 (2007) ..............................18 

Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013), 

aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014) ................................. 32 

Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 

(9th Cir. 2010) ..............................................................................................................12 

 

Marks v. United States, 430 U.S. 188 (1977) ..........................................................................12 

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

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

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ..................................................12, 13, 25, 35, 39 

Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...............................................10 

Nat'l Treasury Employees Union v. United States, 927 F.2d 1253 

(D.C. Cir. 1991) ..................................................................................................... 40-41 

New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ........................44 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ...............................................29 

Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011) .................................................................25 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................................................................................31 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.), 

aff’d, 130 S. Ct. 3544 (2010) ................................................................... 8, 9, 21-25, 33 

Republican Party of N.M. v. King, 741 F.3d 1089 (10th Cir. 2013) ........................................12 

Case 1:14-cv-00837-CRC Document 13 Filed 06/11/14 Page 5 of 55
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Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) ..................................25 

Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258 (D.C. Cir. 2012) ..................42 

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................39 

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ...........................................................10, 11 

Smith v. Henderson, 944 F. Supp. 2d 89 (D.D.C. 2013)......................................................... 10 

SpeechNow.org v. FEC, 599 F.3d 694 (D.C. Cir. 2010) ............................................. 27-28, 42 

Stay the Course W. Va. v. Tennant, Civ. No. 12-1658, 2012 WL 3263623 

(S.D.W. Va. Aug. 9, 2012) ..........................................................................................29 

 

Stop This Insanity, Inc. Employee Leadership Fund v. FEC, 

902 F. Supp. 2d 23 (D.D.C. 2012) ...............................................................................28 

Sweis v. U.S. Foreign Claims Settlement Comm’n, 

950 F. Supp. 2d 44 (D.D.C. 2013) .............................................................................. 41 

Tenacre Found. v. INS, 78 F.3d 693 (D.C. Cir. 1996) .............................................................42 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ....................................................................11 

United States v. Goland, 959 F.2d 1449 (9th Cir. 1992) .........................................................30 

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 

413 U.S. 548 (1973) .......................................................................................................5 

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) ....................................................................43 

Walters v. Nat'l Ass'n of Radiation Survivors, 468 U.S. 1323 (1984) .....................................44 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...........................................10, 39 

Wis. Gas v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ..................................................................12 

Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305 (2004) ...........................................................44 

 

Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2004 WL 3622736 

(D.D.C. Aug. 17, 2004)................................................................................................41 

Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2006 WL 2666017 

(D.D.C. Sept. 14, 2006) ......................................................................................... 43-44 

Case 1:14-cv-00837-CRC Document 13 Filed 06/11/14 Page 6 of 55
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Yamada v. Weaver, 872 F. Supp. 2d 1023 (D. Haw. 2012) .....................................................29

Statutes and Regulations 

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, 

116 Stat. 81 (Mar. 27, 2002) ......................................................................................... 9 

BCRA § 102, 116 Stat. 86-87 ....................................................................................................9 

BCRA §§ 307(a)(2), (d), 116 Stat. 102-03 ................................................................................9 

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-57 ..............................1 

Fed. Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443 § 101(b)(3), 88 Stat. 1263 ..............................................................7 

Fed. Elections Campaign Act Amendments of 1976, 

Pub. L. No. 94-283 § 112, 90 Stat. 486-487 .............................................................. 7-8 

1940 amendments to the Hatch Act, Pub. L. No. 76-753, 54 Stat. 767 .....................................5 

2 U.S.C. § 431(4) .......................................................................................................................2 

2 U.S.C. § 431(8)(A)..................................................................................................................3 

2 U.S.C. § 431(17) .....................................................................................................................3 

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

2 U.S.C. § 437c(b)(1) .................................................................................................................1 

2 U.S.C. § 437d(a)(7) .................................................................................................................1 

2 U.S.C. § 437d(a)(8) .................................................................................................................1 

2 U.S.C. § 437f ..........................................................................................................................1 

2 U.S.C. § 437g ..........................................................................................................................1 

2 U.S.C. § 441a ..........................................................................................................................3 

2 U.S.C. § 441a(a)....................................................................................................................21 

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

2 U.S.C. § 441a(a)(1)(C)..........................................................................................................37 

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

2 U.S.C. § 441a(a)(4) ...............................................................................................................38 

2 U.S.C. § 441a(a)(5)(C)..........................................................................................................37 

2 U.S.C. § 441a(a)(7)(B)............................................................................................................3 

2 U.S.C. § 441a(a)(7)(B)(i) ......................................................................................................19

2 U.S.C. § 441a(d)(2) ...........................................................................................................3, 21 

2 U.S.C. § 441a(d)(3) ...........................................................................................................3, 21 

2 U.S.C. § 441a(h) ...................................................................................................................37

2 U.S.C. § 441i(a) ......................................................................................................................2 

2 U.S.C. § 441i(b) ..................................................................................................................2, 9 

11 C.F.R. § 109.30 ................................................................................................................. 3-4 

Legislative Materials 

Hatch Act, S. Rep. No. 101-165 (1939) .....................................................................................5 

S. Rep. No. 105-167 (1998) .......................................................................................................8 

Final Report of the Select Committee on Presidential Campaign Activities, S. Rep. 

No. 93-981, 93d Cong., 2d Sess. (1974) ................................................................14, 15

84 Cong. Rec. 9597-9600 (1939) ...............................................................................................5

84 Cong. Rec. 9598-99 (1939) (statement of Rep. Taylor) .......................................................6 

84 Cong. Rec. 9616 (daily ed. July 20, 1939) (statement of Rep. Ramspeck) ..........................5 

86 Cong. Rec. 2720 (1940) (statement of Sen. Bankhead) ........................................................5 

86 Cong. Rec. 2852-2853 (1940) ...............................................................................................6

107 Cong. Rec. S2153 (2002) (statement of Sen. Feinstein) .....................................................9 

117 Cong. Rec. 43,410 (1971) (statement of Rep. Abzug)........................................................7 

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Books 

Jack Abramoff, Capitol Punishment: The Hard Truth About Washington 

Corruption From America’s Most Notorious Lobbyist (WND Books 2011) ..............17 

David W. Adamany & George E. Agree, Political Money: A Strategy for Campaign 

 Financing in America (Johns Hopkins University Press 1975) ....................................7

Herbert E. Alexander, Financing Politics: Money, Elections and Political Reform

(Congressional Quarterly Press 1976) ...........................................................................7

Craig A. Doherty, Katherine M. Doherty, New York (2005) ...................................................28 

The Federalist, No. 85 (Hamilton) (Rossiter ed., 1961) ............................................................4 

Richard Hofstadter, The Idea of a Party System (1970) ........................................................4, 5 

Robert. E. Mutch, Campaigns, Congress, and Courts: 

The Making of Federal Campaign Finance Law 66 (Praeger 1988) .............................6 

Louise Overacker, Presidential Campaign Funds (Boston University Press 1946) ............. 6-7 

Richard Reeves, President Nixon: Alone in the White House 309 

(Simon & Schuster 2001) ............................................................................................15

E.E. Schattschneider, Party Government (1942) .......................................................................5 

G. Washington, Farewell Address, reprinted in 

Documents of American History (H. Commager ed. 1946) ...........................................4 

Articles 

Fletcher’s Opinion on the Application of Hatch Act, N.Y. Times, Aug. 4, 1940 ......................6 

James Grimaldi & Susan Schmidt, Lawmaker From Ohio Subpoenaed 

in Abramoff Case, Wash. Post, Nov. 5, 2005, 

www.washingtonpost.com/wp-dyn/content/article/2005/11/04/ 

AR2005110401197.html ..............................................................................................17 

Carla Marinucci, GOP Donors Funding Nader/Bush Supporters Give 

Independent’s Bid a Financial Lift, S.F. Chron., July 9, 2004, 

http://www.sfgate.com/politics/article/GOP-donors-fundingNader-Bush-supporters-give-2708705.php ..................................................................30 

Steve Schultze & Richard P. Jones, Chvala Charged With Extortion, 

Milwaukee J. Sentinel, Oct. 18, 2002 ..........................................................................18 

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Steven Walters & Patrick Marley, Chvala Reaches Plea Deal, 

Milwaukee J. Sentinel, Oct. 24, 2005 ..........................................................................18 

Jodi Wilgoren, Leader Charged With Extortion And Misconduct, 

N.Y. Times, Oct. 18, 2002, www.nytimes.com/2002/10/18/politics/campaigns/ 

18WISC.html?tntemail0 ..............................................................................................18 

Miscellaneous 

FEC, FEC Summarizes Campaign Activity of the 2011-2012 Election Cycle,

http://www.fec.gov/press/press2013/20130419_2012-24m-Summary.shtml ....... 36-37 

FEC, Transaction Query by Individual Contributor, 

http://www.fec.gov/finance/disclosure/norindsea.shtml ..............................................18 

Information, United States v. Abramoff, No. 06-01, Jan. 3, 2006 (D.D.C.) ............................17 

Information, United States v. Ney (D.D.C.), 

http://graphics8.nytimes.com/packages/pdf/politics/ 

060915_Information-signed,unstamped.pdf (last visited June 11, 2014) ....................17 

Price Index Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530 (Feb. 6, 2013) .....2, 3, 37 

Price Index Adjustments for Expenditure Limitations and Lobbyist Bundling 

 Disclosure Threshold, 77 Fed. Reg. 9925 (Feb. 21, 2012) ...........................................3 

United States v. Ney, Plea Agreement, Sept. 16, 2006, 

http://graphics8.nytimes.com/packages/pdf/politics/ 

060915_pin.ney.fact.pdf (last visited June 11, 2014) ............................................ 17-18 

Wisconsin v. Chvala, Crim. Compl., Oct. 17, 2002, 

www.docstoc.com/docs/133062815/Plaintiff-CRIMINAL-COMPLAINTvs-Chvala (last visited June 11, 2014) ................................................................... 18-19 

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Plaintiffs’ claims do not warrant the extraordinary remedy of a preliminary injunction as 

requested here. Plaintiffs are unlikely to succeed on the merits of their constitutional challenge 

to longstanding limits on contributions to political parties. The government has strong interests 

in preventing quid pro quo corruption and its appearance, and the contribution limits to parties 

are closely drawn to serve those interests. The Supreme Court has twice rejected claims similar 

to those plaintiffs make, and their challenge is thus foreclosed. Plaintiffs rely upon recent cases 

establishing that nonconnected political committees (commonly referred to as “PACs”) can 

accept unlimited contributions to fund independent expenditures advocating the election of 

federal candidates, but those very cases state that PACs can do so specifically because they are 

not political parties. Furthermore, plaintiffs have made no real effort to demonstrate any 

irreparable harm, and the relief they seek would harm the public interest by upsetting the status 

quo in the months leading up to a Congressional election. Plaintiffs’ motion should be denied. 

BACKGROUND 

A. The Parties 

The Federal Election Commission (“Commission” or “FEC”) is the independent agency 

of the United States government with exclusive jurisdiction to administer, interpret, and civilly 

enforce the Federal Election Campaign Act of 1971, as amended (“FECA” or “Act”), 2 U.S.C. 

§§ 431-57. The Commission is specifically empowered to “formulate policy” with respect to the 

Act, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry 

out the provisions of [the] Act,” 2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the 

Act, 2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce the Act, 2 U.S.C. § 437g. 

Plaintiffs are the Libertarian National Congressional Committee, Inc. (“LNCC”), a 

national committee of the Libertarian Party, the Libertarian Party of Indiana (“LPIN”), a state 

committee of the Libertarian Party, and Chris Rufer, a contributor to Libertarian Party 

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committees. Both party plaintiffs want to be able to accept unlimited contributions for the 

purpose of making independent expenditures in federal elections. Rufer wants to be able to 

make contributions to the two party plaintiffs in excess of the statutory limits, for the purpose of 

funding those independent expenditures. 

B. Relevant Statutory and Regulatory Provisions 

Individuals are not permitted to make contributions to “political committees established 

and maintained by a national political party” in excess of $32,400 in a calendar year. 2 U.S.C. 

441a(a)(1)(B); Price Index Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530-32 (Feb. 6, 2013). National party 

committees like LNCC may not solicit, receive, direct, or spend funds that have been raised in 

excess of the national-party contribution limit. 2 U.S.C. § 441i(a). 

Contributions to state and local party committees may not exceed $10,000 per year. 2 

U.S.C. § 441a(a)(1)(D). With certain exceptions not at issue here, that contribution limit 

represents the annual amount that such committees, including LPIN, can receive from an 

individual donor in a calendar year in order to make federal contributions or expenditures, 2 

U.S.C. § 431(4), or pay for “Federal election activity.” 2 U.S.C. § 441i(b). As relevant here, 

federal election activity includes any “public communication” that promotes, supports, attacks, 

or opposes a clearly identified federal candidate. Id. § 431(20)(A)(iii). FECA does not limit the 

amount that state and local parties may receive from donors for other purposes. 

Contributions to any “other” political committee may not exceed $5,000 in a single year. 

A “political committee” is a group that receives or spends more than $1,000 during a calendar 

year for the purpose of influencing federal elections, 2 U.S.C. § 431(4) (referencing 

“contributions” and “expenditures” under FECA), and has as its “major purpose . . . the 

nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976) (per curiam). 

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FECA also contains limitations on the amounts that individuals, political parties, and 

PACs can contribute to candidates. 2 U.S.C. § 441a. These contribution limits apply both to 

direct contributions of money and in-kind contributions of goods or services. 2 U.S.C. § 

431(8)(A). If an individual or entity coordinates with a candidate or her campaign to make an 

expenditure, that expenditure is considered an in-kind contribution because it benefits the 

campaign just as if the individual or entity had donated the good or service directly to the 

campaign. 2 U.S.C. § 441a(a)(7)(B). Political parties, unlike all other entities, are permitted 

under FECA to coordinate spending with candidates well above their contribution limits. 2 

U.S.C. §§ 441a(d)(2)-(3). The Act currently allows the national and state committee of a 

political party each to coordinate spending with a candidate up to $46,600 or $93,100 in races for 

the House of Representatives (depending on whether the state has only one or multiple districts), 

and up to a range of $93,100 to $2,682,200 in races for the Senate (depending on the state’s 

voting age population). 2 U.S.C. §§ 441a(d)(2)-(3); 78 Fed. Reg. 8530-02 (Feb. 6, 2013). The 

Act also permitted the national parties to coordinate spending up to $21,684,200 in the most 

recent Presidential race. 2 U.S.C. §§ 441a(d)(2); Price Index Adjustments for Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 77 Fed. Reg. 9925 (Feb. 21, 2012). 

There are no limits on the amounts that political parties can spend to make independent 

expenditures. Colo. Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 617 (1996)

(“Colorado I”). “Independent expenditure” is defined under the Act as an expenditure “(A) 

expressly advocating the election or defeat of a clearly identified candidate; and (B) that is not 

made in concert or cooperation with or at the request or suggestion of such candidate, the 

candidate's authorized political committee, or their agents, or a political party committee or its 

agents.” 2 U.S.C. § 431(17); see also 11 C.F.R. § 109.30 (“Political party committees may make 

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independent expenditures subject to the provisions in this subpart.”). 

C. The History of Political Party Corruption and Congressional Responses 

Since the founding of this nation, political parties have presented special concerns of 

corruption. The Constitution’s Framers consciously created a constitutional framework designed 

to restrain the power of political parties because they viewed parties as a potential threat to 

representative governance. “Partisan politics bears the imprimatur only of tradition, not the 

Constitution.” Elrod v. Burns, 427 U.S. 347, 369 n.22 (1976) (plurality). Commenting on the 

political beliefs of leaders like Washington, Adams, Madison, Hamilton, and Jefferson, the 

historian Richard Hofstadter has written: “If there was one point of political philosophy upon 

which these men, who differed on so many things, agreed quite readily, it was their common 

conviction about the baneful effects of the spirit of party.” Richard Hofstadter, The Idea of a 

Party System at 3 (1970). Alexander Hamilton was among those who agreed that the elimination 

of parties was a possible goal in a well-designed and well-run state. “We are attempting by this 

Constitution,” he said to the New York ratifying convention in 1788, “to abolish factions, and to 

unite all parties for the general welfare.” Id. at 17; see also The Federalist, No. 85 (Hamilton) at 

521 (Rossiter ed., 1961). George Washington warned that although political parties can play a 

useful role, if their power is not checked they can destroy the government through corruption: “I 

have already intimated to you the danger of parties in the State. . . . It opens the door to foreign 

influence and corruption, which find a facilitated access to the government itself through the 

channels of party passion.” G. Washington, Farewell Address, reprinted in Documents of 

American History, 169, 172 (H. Commager ed. 1946). 

These concerns led the framers to structure the Constitution to try to minimize the 

influence of parties. 

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[T]he authors of the Constitution set up an elaborate division and balance of 

powers within an intricate governmental structure designed to make parties 

ineffective. It was hoped that the parties would lose and exhaust themselves in 

futile attempts to fight their way through the labyrinthine framework of the 

government. . . . This is the antiparty part of the constitutional scheme. To quote 

Madison, the “great object” of the Constitution was “to preserve the public good 

and private rights against the danger of such a faction [party] and at the same time 

to preserve the spirit and form of popular government.” 

E.E. Schattschneider, Party Government, at 7 (1942) (citing The Federalist, No. 10 (Madison) 

(alteration by Schattschneider). “[T]he Fathers hoped to create not a system of party government 

under a constitution but rather a constitutional government that would check and control parties.” 

Hofstadter at 53. 

In the first half of the twentieth century, Congress became particularly concerned about 

corruption arising from contributions to candidate campaigns and political parties. In 1939 

Senator Carl Hatch introduced, and Congress passed, S. 1871, officially titled “An Act to Prevent 

Pernicious Political Activities” and commonly referred to as the Hatch Act. S. Rep. 101-165 at 

*18; U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 560 (1973) 

(“Letter Carriers”); 84 Cong. Rec. 9597-9600 (1939). Congress established individual 

contribution limits in the 1940 amendments to the Hatch Act, Pub. L. No. 76-753, 54 Stat. 767 

(1940). That legislation prohibited “any person, directly or indirectly” from making 

“contributions in an aggregate amount in excess of $5,000, during any calendar year” to any 

candidate for federal office, to any committee “advocating” the election of such a candidate, or 

to any national political party. Id. § 13(a), 54 Stat. 770. The limit was sponsored by Senator 

John H. Bankhead, who expressed his hope that it would help “bring about clean politics and 

clean elections”: “We all know that large contributions to political campaigns . . . put the 

political party under obligation to the large contributors, who demand pay in the way of 

legislation . . . .” 86 Cong. Rec. 2720 (1940) (statement of Senator Bankhead); see also 84 

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6

Cong. Rec. 9616 (daily ed. July 20, 1939) (statement of Rep. Ramspeck) (stating that what “is 

going to destroy this Nation, if it is destroyed, is political corruption, based upon traffic in jobs 

and in contracts, by political parties and factions in power”). The House debates were animated 

in part by the notorious “Democratic campaign book” scandal, in which federal contractors were 

forced to buy books at hyper-inflated prices from the Democratic party to assure that they would 

continue to receive government business. 84 Cong. Rec. 9598-99 (1939) (statement of Rep. 

Taylor). 

From the start, the 1940 limit was “ineffective.” Robert. E. Mutch, Campaigns, 

Congress, and Courts: The Making of Federal Campaign Finance Law 66 (Praeger 1988). 

Individuals circumvented the $5,000 limit by routing contributions in excess of that amount 

through multiple committees supporting the same candidate. See Louise Overacker, Presidential 

Campaign Funds 36 (Boston University Press 1946) (“Gifts were hung on more branches of the 

family tree and routed through a variety of committees, but they came from the same old Santa 

Claus.”). In addition, the Hatch Act amendments allowed donors to continue making unlimited 

contributions to state and local parties. See 86 Cong. Rec. 2852-2853 (1940) (amending bill to 

exempt state and local parties from contribution limit). Indeed, after the law was passed, the 

general counsel of the Republican National Committee asked contributors to do just that: “It is 

therefore our advice that donors desiring to give more than $5,000 . . . should give only one gift 

of $5,000 . . . . Amounts above $5,000 that a donor desires to give should be given to State or 

local committees.” Fletcher’s Opinion on the Application of Hatch Act, N.Y. Times, Aug. 4, 

1940, at 2. 

In the elections that followed, contributors used these techniques to make five- and 

six-figure contributions to both parties. See, e.g., Overacker at 42-43 (summarizing 

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7

spending in the 1944 elections and concluding that “the $5,000 ceiling presented no barrier 

which could not be surmounted by generous, determined donors. By routing gifts through 

several committees . . . the ‘sky was the limit . . . .’”); Herbert E. Alexander, Financing 

Politics: Money, Elections and Political Reform 86 (Congressional Quarterly Press 1976) 

(listing the number of individuals who contributed $10,000 or more in each election cycle 

from 1952 through 1972); see also David W. Adamany & George E. Agree, Political 

Money: A Strategy for Campaign Financing in America 45 (Johns Hopkins University 

Press 1975) (noting that twenty-one members of a single family contributed more than $1.8 

million in the 1968 elections, an average of more than $85,000 each).

By 1971, when Congress began debating the initial enactment of FECA, the $5,000 

individual contribution limit was being “routinely circumvented.” 117 Cong. Rec. 43,410 

(1971) (statement of Rep. Abzug). In 1974, shortly after the Watergate scandal, Congress 

substantially revised FECA. These amendments established new contribution limits, 

including a $1,000 base limit on contributions to candidates and a $25,000 aggregate limit 

on how much an individual could contribute to all federal candidates and political 

committees during a two-year election cycle. Fed. Election Campaign Act Amendments of 

1974, Pub. L. No. 93-443 § 101(b)(3), 88 Stat. 1263. 

Shortly after the 1974 amendments to FECA were enacted, the statute was the subject of 

a broad challenge by a number of plaintiffs, including the Libertarian Party, in Buckley v. Valeo. 

424 U.S. 1. The Supreme Court upheld FECA’s contribution limits on the basis that they 

furthered the government’s important interest in preventing corruption and the appearance of 

corruption. Id. at 23-38. In 1976, after Buckley, Congress again amended FECA. The new 

amendments included an annual limit of $20,000 on contributions to national party committees 

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8

and a $5,000 annual limit on contributions to non-party political committees or PACs. Fed. 

Elections Campaign Act Amendments of 1976, Pub. L. No. 94-283 § 112 (1976), 90 Stat. 475, 

486-87. 

Despite the restrictions in FECA, corruption through political parties persisted. FECA 

only “limited contributions to political parties to the extent those contributions are made for the 

purpose of influencing federal elections.” Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 

153 (2010). Money raised pursuant to FECA’s source and contribution limits came to be known 

as “hard money,” while money raised outside those limitations was known as “soft money.” To 

evade the hard money limitations, the national parties began to accept donations of unlimited 

amounts of soft money for “mixed” activities purportedly affecting both federal and state 

elections, including advertising that “did not expressly advocate the election or defeat of a 

federal candidate” but which influenced federal elections. Id. In 1998, after an extensive 

investigation, the Senate Committee on Governmental Affairs issued a report detailing the 

influence that soft money had come to wield in the electoral and legislative processes. 

McConnell v. FEC, 540 U.S. 94, 129 (2003); S. Rep. No. 105-167 (1998). The report concluded 

that the parties’ ability to solicit and spend soft money had completely undercut FECA’s sourceand-amount limitations. See McConnell, 540 U.S. at 129-32. The report also noted that state 

and local parties had played a crucial role in the soft-money system, as the national parties had 

made a practice of transferring funds to the state and local parties to conduct putatively nonfederal activities “‘that in fact ultimately benefit[ed] federal candidates.’” Id. at 131 (quoting S. 

Rep. 105-167 at 4466 (alteration in original)). In sum, the national, state, and local political 

parties, as well as federal candidates themselves, had all become players in a system that was 

designed to evade FECA’s contribution limits and that permitted large and corporate donors the 

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corrupting potential FECA had been intended to limit. 

Congress enacted the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 

107-155, 116 Stat. 81 (2002) in part to plug this “soft-money loophole” that had “enabled parties 

and candidates to circumvent . . . limitations on the source and amount of contributions [made] in 

connection with federal elections.” McConnell, 540 U.S. at 126, 133. After BCRA, the national 

parties could no longer accept any soft money, 2 U.S.C. § 441i(a), and state and local parties 

could not use any soft money to fund “Federal election activity,” 2 U.S.C. § 441i(b), see supra p. 

2. Congress also increased the limit on contributions to national parties from $20,000 to $25,000 

and indexed it for inflation, BCRA §§ 307(a)(2), (d) 116 Stat. 102-03 (“Modification of 

Contribution Limits”), and increased the contribution limit to state and local party committees 

from $5,000 to $10,000, BCRA § 102, 116 Stat. 86-87 (“Increased Contribution Limit for State 

Committees of Political Parties”). In doing so, Congress sought to set the new limits high 

enough to compensate the parties for some of the funds they were expected to lose as a result of 

the soft money ban. 107 Cong. Rec. S2153 (2002) (statement of Sen. Feinstein) (“The soft 

money ban will work because we came to a reasonable compromise with regard to raising some 

of the existing hard money contribution limits by modest amounts, and indexing those limits for 

inflation.”). 

Following the passage of BCRA, numerous individuals and entities, including the 

Libertarian National Committee (“LNC”) and the Libertarian Party of Illinois, challenged 

various provisions of the law. In McConnell v. FEC, the Supreme Court upheld most of the law, 

including the restrictions on the acceptance of soft money by political parties. 540 U.S. at 131-

32. In RNC v. FEC, this Court rejected an as-applied challenge to the soft money restrictions by 

parties who sought to collect unlimited funds for ostensibly non-federal activities, and the 

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Supreme Court affirmed. 698 F. Supp. 2d 150 (D.D.C.), aff’d 130 S. Ct. 3543 (2010). 

ARGUMENT 

Plaintiffs’ request for a preliminary injunction should be denied. FECA’s political party 

contribution limits are closely drawn to serve the important government interests of deterring 

corruption and its appearance. Plaintiffs attempt to evade binding precedent upholding the 

challenged limits regardless of how parties ultimately use the money — even if for activities that, 

unlike plaintiffs’ planned expenditures, have no explicit link to federal elections. Thus, 

plaintiffs’ merits arguments are unlikely to succeed. And plaintiffs’ generalized legal assertions 

fail to demonstrate irreparable harm or to meet the other requirements for the extraordinary 

remedy they seek in this case. 

A. Requirements for a Preliminary Injunction 

 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief. . . . [It is] never awarded as of right.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008) (citations omitted). “A 

plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, 

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 

equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; see also Mills 

v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009). A plaintiff must make a “clear 

showing” that the extraordinary remedy is necessary, and it cannot be “based only on a 

possibility of irreparable harm.” Winter, 555 U.S. at 22. Moreover, the D.C. Circuit “has 

suggested, without deciding, that Winter should be read to abandon [any] sliding-scale analysis 

in favor of a ‘more demanding burden’ requiring Plaintiffs to independently demonstrate both a 

likelihood of success on the merits and irreparable harm.” Smith v. Henderson , 944 F. Supp. 2d 

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89, 95-96 (D.D.C. 2013) (quoting Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011)). 

 Plaintiffs here shoulder a particularly heavy burden because their request is at odds with 

the purpose of a preliminary injunction, which “is merely to preserve the relative positions of the 

parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981). Rather than seeking to preserve the status quo, plaintiffs seek to “upend” it by asking 

this Court to prevent the Commission from enforcing contribution limits to parties that have been 

in place for almost 40 years. See Sherley, 644 F.3d at 398. 

B. Plaintiffs Are Unlikely to Succeed on the Merits 

 Plaintiffs challenge the limits on contributions to parties as applied to funds to be used 

for independent expenditures advocating the election of federal candidates. Ample evidence 

shows the danger of corruption that would be presented if parties could use unlimited 

contributions for federal campaign activity, and the challenged limits are closely drawn to 

address that threat, including the threat posed by contributions to minor parties. The Supreme 

Court has thus twice upheld those limitations against similar challenges, and the relevant 

holdings of those cases have not been undermined by recent decisions, including cases 

recognizing the right of nonconnected PACs to collect unlimited funds for independent 

expenditures. 

1. Contribution Limits Are Reviewed Under a More Deferential 

Standard Than Laws That Restrict Expenditures 

Since Buckley, laws that restrict expenditures have been subject to strict scrutiny, while 

laws that restrict contributions have been reviewed under a more deferential standard. See 424 

U.S. at 23. The Supreme Court applies this lesser standard of review because contributions “lie 

closer to the edges than to the core of political expression,” FEC v. Beaumont, 539 U.S. 146, 161 

(2003), in contrast to laws limiting campaign expenditures, which “impose significantly more 

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severe restrictions on protected freedoms of political expression and association,” Buckley, 424 

U.S. at 23. Unlike a “limitation upon expenditures for political expression, a limitation upon the 

amount that any one person or group may contribute to a candidate or political committee entails 

only a marginal restriction upon the contributor’s ability to engage in free communication.” Id. 

at 20. “Contribution limits ‘permit[] the symbolic expression of support evidenced by a 

contribution but do[] not in any way infringe the contributor’s freedom to discuss candidates and 

issues.” McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014) (quoting Buckley, 424 U.S. at 21, 

alterations in McCutcheon).1

A contribution limit thus need not pass the strict scrutiny test of being upheld only if it 

“promotes a compelling interest and is the least restrictive means to further the articulated 

interest.” McCutcheon, 134 S. Ct. at 1444. Instead, “[e]ven a significant interference with 

protected rights of political association may be sustained if the [government] demonstrates a 

sufficiently important interest and employs means closely drawn to avoid unnecessary 

abridgment of associational freedoms.” Id. (internal quotation marks and citation omitted). 

“[C]ontribution limits impose serious burdens on free speech only if they are so low as to 

‘preven[t] candidates and political committees from amassing the resources necessary for 

effective advocacy.’” McConnell, 540 U.S. at 135 (quoting Buckley, 424 U.S. at 21)). 

This case is about how much money individuals can contribute to political parties. 

Plaintiffs attempt to obscure this fact by repeatedly invoking language from cases discussing 

expenditure limits, but those cases are inapposite. The fact that receiving unlimited contributions 

might allow the party plaintiffs to engage in more spending does not turn contribution limits into 

                                                           

1

 The plurality opinion authored by Chief Justice Roberts is “the holding of the Court” 

because it rests on narrower grounds than Justice Thomas’s opinion concurring in the judgment. 

Marks v. United States, 430 U.S. 188, 193 (1977) (citation and internal quotation marks omitted). 

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expenditure limits. As the Supreme Court explained in Buckley, the “overall effect of the Act’s 

contribution ceilings is merely to require candidates and political committees to raise funds from 

a greater number of persons and to compel people who would [have] otherwise contribute[d] 

amounts greater than the statutory limits to expend such funds on direct political expression.” 

424 U.S. at 21-22. 

2. The Limits on Contributions to Political Parties Further the 

Important Government Interest in Preventing Quid Pro Quo

Corruption and Its Appearance 

The party contribution limits that plaintiffs challenge serve to prevent quid pro quo

corruption and its appearance, interests that the Supreme Court has recently reaffirmed are 

sufficiently important to support such a law. McCutcheon, 134 S. Ct. at 1450 (“As Buckley

explained, Congress may permissibly seek to rein in ‘large contributions [that] are given to 

secure a political quid pro quo from current and potential office holders.’” (quoting Buckley, 424 

U.S. at 26)); McCutcheon, 134 S. Ct. at 1450 (“In addition to ‘actual quid pro quo

arrangements,’ Congress may permissibly limit ‘the appearance of corruption stemming from 

public awareness of the opportunities for abuse inherent in a regime of large individual financial 

contributions’ to particular candidates.” (quoting Buckley, 424 U.S. at 27)). 

In Buckley, the Supreme Court upheld FECA’s limit on individual contributions to 

candidates in light of the “deeply disturbing examples” of corruption relating to contributions 

found in the record and concluded that FECA’s purpose of “limit[ing] the actuality and 

appearance of corruption resulting from large individual financial contributions” was a 

“constitutionally sufficient justification” for that contribution limit. 424 U.S. at 26-29. In 

McConnell, the Court upheld the constitutionality of the BCRA soft money ban, finding that 

“there [was] substantial evidence to support Congress’ determination that large soft-money 

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contributions to national political parties give rise to corruption and the appearance of 

corruption.” 540 U.S. at 154. As the Court observed, the “quantum of empirical evidence 

needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with 

the novelty and plausibility of the justification raised,” and the “idea that large contributions to a 

national party can corrupt or, at the very least, create the appearance of corruption of federal 

candidates and officeholders is neither novel nor implausible.” McConnell, 540 U.S. at 144 

(citation and internal quotation marks omitted). 

a. There Is Ample Evidence of Parties Playing a Key Role in Quid 

Pro Quo Corruption and Its Appearance 

 The history of campaign finance in the United States clearly shows that quid pro quo

corruption does not just occur through contributions made directly to candidates; political parties 

have played a critical role in such corruption. See supra pp. 4-8. As described earlier, prior to 

the enactment of the Hatch Act, political parties had engaged in quid pro quo corruption 

involving federal legislation, contracts, and jobs. See supra pp. 5-6. 

 Some years later, the congressional findings accompanying the enactment of contribution 

limits after Watergate identified instances in which contributors had made excessive 

contributions by giving to numerous separate entities, transferred through political party 

committees. For example, the dairy industry had divided $2 million in support for President 

Nixon into $2,500 contributions made to hundreds of committees in different states. Buckley v. 

Valeo, 519 F.2d 821, 839 n.36 (D.C. Cir. 1975) (per curiam), aff’d in part, rev’d in part, 424 

U.S. 1 (1976) (per curiam); Final Report of the Select Committee on Presidential Campaign 

Activities, S. Rep. No. 93-981, 93d Cong., 2d Sess. at 615 & n.44 (1974) (“Final Report”) 

(explaining that “this use of multiple committees was not unusual—even 750 or 1,000 

committees would not have been too many, if needed to accommodate a large contributor like 

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15

the milk producers”). Party committees were evidently involved in funneling the contributions 

to the reelection campaign. Final Report at 736-42; id. at 738 (“[W]ithin th[e] 2-week period just 

before and after the [1972] election, the two [Republican] congressional committees received 

$352,500 from [the dairy industry’s political fund] and transferred $221,000 to RNC committees, 

which, in turn, forwarded $200,000 to [the Finance Committee to Re-Elect the President].”). In 

return for the dairy industry’s contribution, President Nixon “reversed the decision * * * the 

Agriculture Department” had made just two weeks earlier not to increase milk price supports, 

“circumvent[ing]” that department’s “legitimate functions.” Id. at 1209. President Nixon’s 

Secretary of Agriculture estimated that the decision would cost the public “‘about $100 

million.’” Richard Reeves, President Nixon: Alone in the White House 309 (Simon & Schuster 

2001). The industry’s contribution also led Attorney General John Mitchell — who at that time 

“doubled” as President Nixon’s reelection campaign manager — to instruct that a grand jury 

investigation of the industry’s associations be ended. Final Report at 1184, 1205.

Voluminous record evidence in McConnell revealed donors’ more recent use of large 

soft-money donations to affect legislative outcomes and create at least the appearance if not the 

reality of quid pro quo arrangements. That evidence was exhaustively catalogued in several 

lower court opinions (see, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 481-512 (D.D.C. 2003) 

(opinion of Kollar-Kotelly, J).2

 

                                                           

2

 McConnell’s documentation of soft money circumvention is among the best evidence 

now available, even though plaintiffs seek here to engage in independent speech that — unlike in 

the soft money era — includes express advocacy of candidates. FECA has limited contributions 

to federal party committees for more than 35 years, including contributions used for independent 

expenditures. “Since there is no recent experience with unlimited [contributions to fund party 

express advocacy], the question is whether experience under the present law confirms a serious 

threat of abuse from the unlimited [contributions to finance party independent expenditures].” 

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001) (citing Burson v. 

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 The McConnell record contains frank testimony from former officeholders about how 

large soft money donors to political parties were able to exact favorable legislative outcomes in 

these quid pro quo arrangements. For example, former Senator Paul Simon testified about 

consideration of the amendment of a bill that would benefit Federal Express, a large soft-money 

donor to the Democratic Party. McConnell, 251 F. Supp. 2d at 482 (Kollar-Kotelly, J.). Simon 

stated that, after one Senator said “we've got to pay attention to who is buttering our bread,” the 

Democratic caucus voted to move ahead on the legislation, and Simon believed that “[t]his was a 

clear example of donors getting their way, not on the merits of the legislation, but just because 

they had been big contributors.” Id. (quoting Simon Decl.); see also FEC v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 451 n.12 (2001) (“Colorado II”) (quoting Senator 

Simon’s statement that “I believe people contribute to party committees on both sides of the aisle 

for the same reason that Federal Express does, because they want favors. There is an expectation 

that giving to party committees helps you legislatively.”) 

Former Senator Warren Rudman and current Senator John McCain shared similar stories 

and perspectives. McConnell, 251 F. Supp. 2d at 496 (“Senators are pressed by their benefactors 

to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a 

certain way. No one says: ‘We gave money so you should do this to help us.’ No one needs to 

say it — it is perfectly understood by all participants in every such meeting.” (quoting Rudman 

Declaration)); Decl. of Sen. John McCain, No. 02-0582 (D.D.C. Mar. 27, 2002) at ¶ 10, 

http://www.campaignlegalcenter.org/attachments/BCRA_MCCAIN_FEINGOLD/McConnell_v_

FEC_Supreme_Court/719.pdf (describing the Senate Democratic leadership’s procedural 

                                                                                                                                                                                               

Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) (noting difficulty of mustering 

evidence to support long-enforced statutes)).

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blocking of his proposed amendment to Sarbanes-Oxley at the behest of a large soft money 

donor) 

Similarly, lobbyists have long believed that contributions to political parties and various 

entities would lead to desirable legislative action. “The amount of influence that a lobbyist has is 

often directly correlated to the amount of money that he or she and his or her clients” contribute 

to such committees. McConnell, 251 F. Supp. 2d at 869. Former lobbyist Jack Abramoff, who 

pled guilty in 2006 to corruption and related charges, wrote a book about how he and fellow 

lobbyists made campaign contributions to a range of political committees as part of a strategy to 

obtain political favors. See generally Jack Abramoff, Capitol Punishment: The Hard Truth 

About Washington Corruption From America’s Most Notorious Lobbyist (WND Books 2011). 

In one instance, Abramoff arranged for lavish contributions to be made, including donations to 

the Democratic Party, in exchange for legislative action that benefitted his client. See Abramoff 

at 206 (commenting that “request for a $50,000 contribution to the Democrats . . . was just how 

politics worked”). 

In another instance, in exchange for Congressman Bob Ney’s commitment to add to the 

Help America Vote Act (“HAVA”) language favoring a casino owned by the Tiguas, a Texas 

Indian tribe that Abramoff represented, Abramoff arranged for lavish contributions to be made 

by tribal officials to or on Ney’s behalf, including at least $32,000 in contributions “to Ney’s 

campaign and political action committees.” James Grimaldi & Susan Schmidt, Lawmaker From 

Ohio Subpoenaed in Abramoff Case, Wash. Post, Nov. 5, 2005, www.washingtonpost.com/wpdyn/content/article/2005/11/04/AR2005110401197.html (last visited June 11, 2014); 

Information, United States v. Abramoff, No. 06-01, Jan. 3, 2006 (D.D.C.) ¶¶ 22-23; Information, 

United States v. Ney (D.D.C.) (Ney Information) ¶ 20, 

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http://graphics8.nytimes.com/packages/pdf/politics/060915_Information-signed,unstamped.pdf 

(last visited June 11, 2014). On March 20, 2002, Ney agreed to “move forward” with the plan to 

slip into HAVA an “abstruse” sentence drafted by Abramoff’s office that “would magically open 

the doors to the Tigua casino.” Abramoff at 197-198, 205-206; United States v. Ney, Plea 

Agreement, Sept. 16, 2006 (Ney Plea Agreement), Att. A ¶ 10(a)(ii), 

http://graphics8.nytimes.com/packages/pdf/politics/060915_pin.ney.fact.pdf (last visited June 11, 

2014). In exchange, Abramoff had the Tiguas make contributions to Congressman Ney’s 

campaign committee and a nonconnected PAC, Ney Information ¶ 20; see also Ney Plea 

Agreement, Att. A ¶ 9(d) (admitting receipt of substantial campaign contributions from 

Abramoff’s clients in exchange for performing official acts); according to FEC records, two days 

after the March 20, 2002 agreement between Abramoff and Ney, the Tiguas donated $30,000 to 

the NRSC’s nonfederal account and over the next few months gave an additional $62,000 in soft 

money to other Republican party entities. FEC, Transaction Query by Individual Contributor, 

http://www.fec.gov/finance/disclosure/norindsea.shtml (search “Tigua” for a summary of soft 

money donations and links to reports). 

There have been similar experiences at the state level. In 2005, for example, Wisconsin 

Senate Majority Leader Charles Chvala pled guilty to felony corruption charges arising out of an 

investigation of his fundraising techniques. Steven Walters & Patrick Marley, Chvala Reaches 

Plea Deal, Milwaukee J. Sentinel, Oct. 24, 2005. Witnesses confirmed Chvala’s practice of 

conducting “cattle calls,” in which he summoned lobbyists to his offices and requested that they 

have their clients contribute to a list of approved candidates, PACs, and party committees with 

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19

“target amounts for contributions” suggested by Chvala.3 Chvala and his aides also set up 

several PACs that purported to be independent, but in fact made excess in-kind contributions to a 

state senator’s campaign through coordinated advertisements. Chvala Complaint ¶¶ 130-233; 

see also Wis. Stat. § 11.06(7); 2 U.S.C. 441a(a)(7)(B)(i). At least $292,000 of these 

contributions were funneled through the Democratic Legislative Campaign Committee, a 

political party committee, which then made matching contributions back to Chvala’s ostensibly 

independent PACs supporting the other Senator’s campaign. See id. ¶¶ 170-172; see also id. ¶¶ 

220-24 (suggesting a scheme of contributions routed through the Kansas Democratic Party). 

Contributions to these groups resulted in legislative favors. See, e.g., Chvala Complaint ¶ 173-

174 (describing how a $40,000 contribution resulted in the removal of an “unfavorable” tax 

provision from the Senate version of the 2001 budget). 

Thus, the ability to lavish unlimited funds on political party committees has resulted in 

quid pro quo corruption and its appearance. The government therefore has a strong and enduring 

interest in preventing such conduct in the future. 

b. Unlike PACs, Parties Have a “Unity of Interests” and Are 

“Inextricably Intertwined” With Candidates 

The threat of quid pro quo corruption and its appearance is heightened with respect to 

political parties both because of the special role parties play in our democratic process and their 

inherent connection with candidates and officeholders. This starkly distinguishes parties from 

                                                           

3 Wisconsin v. Chvala, Crim. Compl., Oct. 17, 2002 ¶ 8, 

www.docstoc.com/docs/133062815/Plaintiff-CRIMINAL-COMPLAINT-vs-Chvala (last visited 

June 11, 2014) (Chvala Complaint); Steve Schultze & Richard P. Jones, Chvala Charged With 

Extortion, Milwaukee J. Sentinel, Oct. 18, 2002; Jodi Wilgoren, Leader Charged With Extortion 

And Misconduct, N.Y. Times, Oct. 18, 2002, 

www.nytimes.com/2002/10/18/politics/campaigns/18WISC.html?tntemail0 (last visited June 11, 

2014); see also In re Disciplinary Proceedings Against Chvala, 300 Wis. 2d 206, 208 (2007).

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PACs, who “do not select slates of candidates for elections,” “determine who will serve on 

legislative committees, elect congressional leadership, or organize legislative caucuses.” 

McConnell, 540 U.S. at 188 (“[P]olitical parties have influence and power in the Legislature that 

vastly exceeds that of any interest group.”); id. (“[P]arty affiliation is the primary way . . . voters 

identify candidates,” and therefore parties “have special access to and relationships with” those 

who hold public office.) 

Parties also present special risks of corruption because they differ greatly from PACs in 

their purposes and goals. “A primary goal of all the major political parties is to win elections.” 

Cao v. FEC, 688 F. Supp. 2d 498, 527 (E.D. La.), aff’d sub nom In re Cao, 619 F.3d 410 (5th 

Cir. 2010).4

 This overriding purpose makes political parties particularly susceptible to 

contributors who want to create a quid pro quo relationship with an officeholder. As the 

Supreme Court has explained, 

[p]arties are . . . necessarily the instruments of some contributors whose object is 

not to support the party’s message or to elect party candidates across the board, 

but rather to support a specific candidate for the sake of a position on one narrow 

issue, or even to support any candidate who will be obliged to the contributors. 

                                                           

4

 See also Cao, 688 F. Supp. 2d at 527 (“The ultimate goal of a political party is to get as 

many party members as possible into elective office, and in doing so to increase voting and party 

activity by average party members.” (quoting declaration from former Representative Meehan)); 

id. (“The entire function and history of political parties in our system is to get their candidates 

elected, and that is particularly true after the primary campaign has ended and the party's 

candidate has been selected.” (quoting Senator McCain’s declaration in McConnell); id. (“ThenRNC Chairman Haley Barbour stated: ‘The purpose of a political party is to elect its candidates 

to public office, and our first goal is to elect Bob Dole president. . . . Electing Dole is our highest 

priority, but it is not our only priority. Our goal is to increase our majorities in both houses of 

Congress and among governors and state legislatures.’” (quoting Barbour letter from McConnell

record); id. (“Senator Bumpers testified that he was ‘not aware that the party has any interest in 

the outcome of public policy debates that is separate from its interest in supporting and electing 

its candidates.’” (quoting Senator Bumpers’s declaration in McConnell)); id. (“State parties also 

have the primary purpose of winning elections.”); id. (“[C]ertainly we’re concerned about issues, 

but our main emphasis is to run communication in support of electing our candidates.” (quoting 

Louisiana state GOP deponent)). 

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Colorado II, 533 U.S. at 451-52 (footnote omitted); id. at 455 (“In reality, parties . . . function for 

the benefit of donors whose object is to place candidates under obligation, a fact that parties 

cannot escape. Indeed, parties’ capacity to concentrate power to elect is the very capacity that 

apparently opens them to exploitation as channels for circumventing contribution and 

coordinated spending limits binding on other political players.); id. at 452 (“[W]hether they like 

it or not, [parties] act as agents for spending on behalf of those who seek to produce obligated 

officeholders.”).5

c. McConnell and RNC Have Already Held the Contribution 

Limits Prevent Quid Pro Quo Corruption 

Twice in the past eleven years, the Supreme Court has decisively rejected claims that 

were very similar to those plaintiffs make — indeed, claims that were arguably more likely to 

succeed than those in this case because they were focused on allegedly non-federal activity. In 

McConnell, plaintiffs including national and state committees of the Libertarian Party challenged 

the soft money ban, arguing that certain expenditures, such as money spent exclusively on state 

and local elections, would not corrupt federal office holders and therefore any such limits on 

contributions to fund those expenditures were unconstitutional. McConnell, 540 U.S. at 145, 

154. The Supreme Court disagreed, concluding that “large soft-money contributions to national 

parties are likely to create actual or apparent indebtedness on the part of federal officeholders, 

                                                           

5

 FECA reflects the unique relationship between parties and candidates, perhaps most 

notably in the special provision for party coordinated expenditures. Political parties, unlike 

PACs or any other entities, are given special dispensation to coordinate higher amounts of 

spending with candidates. See 2 U.S.C. §§ 441a(d)(2)-(3); see also supra p. 3. For example, 

FECA allows national and state parties to join together and spend as much as $2.6 million in 

conjunction with some Senate candidates to accomplish their shared goal of winning elections. 

The provision represents Congress’s recognition that parties and candidates are in many ways a 

coherent unit. By contrast, funds that a PAC coordinates with candidates are subject to the 

contribution limits in 2 U.S.C. § 441a(a), which are $2,600 or $5,000 per election, depending on 

the type of PAC.

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regardless of how those funds are ultimately used.” Id. at 155 (emphasis added). Thus, large 

contributions to political parties can lead to corruption or its appearance even if the funds are 

ultimately used in non-federal elections. 

The Supreme Court reaffirmed McConnell’s holding just four years ago. In RNC, 

plaintiffs argued that the limits on contributions to parties were unconstitutional when the 

resulting funds were spent on activities that lacked a “sufficient connection to a federal election,” 

(such as supporting state candidates and “grassroots lobbying efforts”), which were allegedly 

less likely to corrupt federal candidates and officeholders. 698 F. Supp. 2d at 155. The RNC

plaintiffs submitted declarations indicating that federal candidates and officeholders would not 

be involved in soliciting any soft money contributions, and therefore there could be no 

corruption or appearance of corruption. Id at 159. A three-judge panel of this court rejected the 

argument. It held, based on McConnell, that unlimited funds pose a danger of corruption no 

matter how the recipient party committee uses the money. Id. at 157. It also held that Citizens 

United v. FEC, 558 U.S. 310 (2010), which had been decided in the interim, did not overturn 

McConnell’s holding on this issue because McConnell had been based in part on the danger of 

quid pro quo corruption and its appearance, a justification expressly endorsed in Citizens United. 

RNC, 698 F. Supp. 2d at 158-59. The case received direct review from the Supreme Court, and 

the Court summarily affirmed the judgment. 130 S. Ct. 3544.6 

Plaintiffs’ efforts to escape the conclusion that McConnell and RNC foreclose their 

claims are unavailing. Their first flawed argument is that McConnell and RNC were “broad 

facial challenges to the application of contribution limits to all soft money collected by political 

                                                           

6

 A summary affirmance is not merely a denial of certiorari, but an act of the Supreme 

Court with precedential value, at least with respect to “the precise issues presented and 

necessarily decided by those actions.” Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983). 

Plaintiffs here fail to show that their claims differ sufficiently from those decided in RNC. 

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parties,” while plaintiffs here have made “an as-applied challenge specifically focusing on the 

right of political party committees to create accounts solely for the purpose of engaging in 

independent expenditures.” (Mem. of P&A in Supp. of Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mem.”) 

at 21 (Docket No. 3-1).) As an initial matter, RNC was not a broad facial challenge, but an asapplied challenge after McConnell had facially upheld the law. RNC, 698 F. Supp. 2d at 157. 

The RNC court found that distinction unimportant because “[i]n general, a plaintiff cannot 

successfully bring an as-applied challenge to a statutory provision based on the same factual and 

legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that 

provision.” RNC, 698 F. Supp. 2d at 157. Plaintiffs’ claims suffer from the same flaw — their 

legal argument that contributions used for allegedly non-corrupting expenditures must be 

unlimited is foreclosed by McConnell’s holding that “large soft-money contributions to national 

parties are likely to create actual or apparent indebtedness on the part of federal officeholders, 

regardless of how those funds are ultimately used.” Id.7

 

Furthermore, even if the ultimate use of the funds did matter, the activities that the party 

plaintiffs contemplate here, engaging in express advocacy in support of federal candidates, pose 

an even greater threat of corruption than the activities contemplated in those earlier cases. See

McConnell, 540 U.S. at 167 (contributions to state and local parties “that pose the greatest risk” 

of corruption are those “that can be used to benefit federal candidates directly”); RNC, 698 F. 

                                                           

7

 The plaintiffs engage in some obfuscation about the term “soft money” to make it seem 

as though this case is distinct from McConnell and RNC, despite the obvious similarities among 

the three cases. Seizing upon a quote from Citizens United, the plaintiffs argue that, unlike 

McConnell and RNC, this case is “about independent expenditures, not soft money.” (Pls.’ Mem. 

at 21 (quoting Citizens United, 558 U.S. at 361).) But “soft money” refers to the receipt of 

donations — funds raised outside of the FECA source and amount limitations constitute “soft 

money.” Plaintiffs here also seek to give and receive funds that do not comply with those limits. 

When Citizens United said it was a case “about independent expenditures, not soft money,” it 

was merely stating that the case was about the right to make expenditures, not contributions.

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Supp. 2d at 162 (tying the danger of corruption to “whether the activity would provide a direct 

benefit to federal candidates”); cf. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 471 (2007) 

(advertisements expressly advocating the election or defeat of a candidate can be constitutionally 

limited more easily than issue advertisements).8 It is unreasonable to believe that the Supreme 

Court would hold that the Constitution requires permitting unlimited contributions for an activity 

with more corruptive potential but allows limits on contributions for less corrupting activities. 

Plaintiffs next argue that this case is not settled by McConnell and RNC because those 

cases rested in part on the premise that candidates may view contributions to their parties as 

being as valuable as contributions to their campaigns. (Pls.’ Mem. at 22 (citing RNC, 698 F. 

Supp. 2d at 159).) According to plaintiffs, that premise is “flatly inapplicable” to independent 

expenditures because it applies to activity in which there “was no assurance that such activities 

were not coordinated with candidates.” (Pls.’ Mem. at 22.) But RNC actually said that “federal 

officeholders and candidates may value contributions to their national parties — regardless of 

how those contributions ultimately may be used — in much the same way they value 

contributions to their own campaigns.” RNC, 698 F. Supp. 2d at 159 (emphasis added and 

altered from original). The category therefore encompasses the independent expenditures that 

plaintiffs seek to engage in here. Moreover, the RNC opinion was not concerned with 

coordination. What makes a particular expenditure valuable to candidates is whether it benefits 

                                                           

8

 Indeed, the plaintiffs in McConnell — including the LNC — conceded that contributions 

to fund party independent expenditures could be corrupting and thus permissibly subject to 

contribution limits. McConnell v. FEC, 251 F. Supp. 2d at 765 & n.24 (Leon, J.) (describing, 

inter alia, the position of the McConnell plaintiffs); id. at 221 n.55 (per curiam) (listing the 

McConnell plaintiffs). And though he was overruled, Judge Leon struck down all of the soft 

money restrictions except as to contributions to fund independent expenditures and 

communications that promote, support, attack, or oppose federal candidates. Id. at 758-59, 763-

68. Plaintiffs thus attack the limits as applied to some of the party committees’ most clearly 

regulable contributions. 

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them, not necessarily whether they are involved in making the expenditure. While the Supreme 

Court has stated that coordinated expenditures are more valuable to a candidate than independent 

expenditures on his behalf (because in the former case he is able to exert control over the content 

and conduct), expenditures made on his behalf are likely more valuable than expenditures spent 

on other things. Thus, federal candidates are more likely to value contributions to the party that 

are spent on express advocacy for candidate campaigns (as plaintiffs want to do in this case) than 

contributions spent on helping state candidates, grassroots lobbying, or maintenance of party 

headquarters (as the plaintiffs in RNC wanted to do). 

Plaintiffs next argue that notwithstanding McConnell and RNC, there is no danger of 

corruption from their planned activities because the Supreme Court’s subsequent decisions in 

Citizens United and McCutcheon undermine all of the rationales of those earlier cases (Pls.’ 

Mem. at 23). That is incorrect. First, the decision in Citizens United had already been issued 

prior to both the district court’s decision and the Supreme Court’s summary affirmance in RNC. 

And the plurality opinion in McCutcheon expressly stated that it was leaving intact McConnell’s 

holding about soft money, which is the relevant holding for purposes of this case. McCutcheon, 

134 S. Ct. at 1451 n.6 (“Our holding about the constitutionality of the aggregate limits clearly 

does not overrule McConnell 's holding about ‘soft money.’”)9

 

Lastly, the plaintiffs argue that McConnell and RNC are distinguishable because “unlike 

                                                           

9

 Furthermore, even if all of the justifications in McConnell and RNC had been arguably 

undercut by Citizens United or McCutcheon, this Court would nonetheless be bound by those 

earlier decisions. “If a precedent of [the Supreme Court] has direct application in a case, yet 

appears to rest on reasons rejected in some other line of decisions, the Court of Appeals [and the 

District Court] should follow the case which directly controls, leaving [the Supreme Court] the 

prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) 

(quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)); see also 

Ognibene v. Parkes, 671 F.3d 174, 184 (2nd Cir. 2011) (“Citizens United left Buckley intact, and 

it is not for this Court to stretch Citizens United.”). 

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what might have been possible with general contributions to a party’s soft-money account, a 

contributor cannot use contributions to a political party committee’s segregated IE-only account 

to circumvent base limits on contributions to a candidate.” (Pls.’ Mem. at 24.) But there is no 

relevant difference between plaintiffs’ proposed independent expenditure account and the 

proposed soft money accounts at issue in McConnell and RNC. Under both scenarios the parties 

sought to collect unlimited funds, and even though it would be unlawful for the parties to use the 

funds to make contributions or coordinated expenditures with a candidate, McConnell and RNC

were concerned with how federal officeholders and candidates might value the party 

contributions.10 A federal candidate who received that money would benefit in the same manner 

as if the donor had contributed directly to his campaign. 

As discussed infra pp. 32-35, this bond between parties and their candidates does not 

dissolve merely because the party chooses to place certain funds into a segregated account or to 

build firewalls between personnel. Though particular expenditures may not be coordinated with 

federal candidates, the danger of corruption exists if the amounts at which the parties take in 

funds are not limited. 

d. Courts Have Uniformly Found That Contributions to Political 

Parties Pose a Danger of Corruption Even if Contributions to 

PACs for Independent Expenditures Do Not 

Plaintiffs rely heavily on cases holding that PACs have a constitutional right to accept 

unlimited contributions to engage in independent expenditures (Pls.’ Mem. at 8-13), but virtually 

all of those cases held that PACs have that right specifically because they are not political 

                                                           

10 In addition, the national parties currently use a significant amount of their hard money to 

engage in independent expenditures, but do not maximize their candidate contributions and 

coordinated expenditures in most races. See Cao, 688 F. Supp. 2d at 520-22. If the parties could 

use unlimited funds to engage in those independent expenditures, that would free up more hard 

money to be spent to make contributions to candidates, including through coordinated spending. 

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parties. As a result, those cases undermine rather than support plaintiffs’ position here. 

In EMILY’s List v. FEC, the D.C. Circuit struck down FEC regulations related to mixed 

federal and nonfederal activities because they infringed upon the First Amendment rights of a 

PAC that wished to engage in “election-related activities such as advertisements, get-out-thevote efforts, and voter registration drives.” 581 F.3d 1, 5, 24 (D.C. Cir. 2009). But the EMILY’s 

List opinion repeatedly stated that the outcome of the case would have been governed by 

McConnell and come out the other way if the challenge had come from a political party rather 

than a PAC. The court first noted that contribution limits to candidates could be limited and, due 

in part to “the close relationship between candidates and parties, the [McConnell] Court has held 

that the anti-corruption interest also justifies limits on contributions to parties.” Id. at 6 

(emphasis in original). The court then characterized its constitutional analysis as a question of 

“whether independent non-profits are treated like individual citizens (who under Buckley have 

the right to spend unlimited money to support their preferred candidates) or like political parties 

(which under McConnell do not have the right to raise and spend unlimited soft money).” Id. at 

8 (footnote omitted). It concluded that “non-profit groups do not have the same inherent 

relationship with federal candidates and officeholders that political parties do.” Id. at 14. The 

court approvingly quoted the plaintiff attorney’s conclusion that the FEC had mistakenly 

“brought to bear what was essentially a political party analysis to a non-connected, independent 

committee which is not under the control of, or associated with candidates in the fashion of a 

political party.” Id. at 15 (citation and internal quotations omitted). And the court noted that its 

holding would “permit non-profits to receive and spend large soft-money donations when 

political parties and candidates cannot.” Id. at 19. 

In SpeechNow.org v. FEC, the D.C. Circuit held that, after Citizens United, contribution 

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limits could not constitutionally be applied to PACs that engaged solely in independent 

expenditures, explaining that “contributions to groups that make only independent expenditures 

also cannot corrupt or create the appearance of corruption.” 599 F.3d 686, 694 (D.C. Cir. 2010) 

(en banc) (emphasis added). The court went on to acknowledge that the Supreme Court’s 

plurality opinion in Colorado I had indicated that independent expenditures could still lead to 

corruption or its appearance, but distinguished that case by noting that “Colorado Republican

concerned expenditures by political parties.” Id. at 695. The court concluded by cautioning that 

“[w]e should be clear, however, that we only decide these questions as applied to contributions 

to SpeechNow, an independent expenditure-only group.” Id. at 696. 

Finally, plaintiffs rely on Carey v. FEC, a decision in this District holding that a single 

nonconnected PAC could operate a segregated independent expenditure account that accepted 

unlimited contributions, while also accepting hard money funds in a different account for the 

purpose of candidate contributions. 791 F. Supp. 2d 121, 125-26 (D.D.C. 2011). In addressing 

the question, the court reaffirmed that contribution limits were constitutional for “political party 

committees because of the ‘close relationship between candidates and parties.’” Id. at 125 

(quoting EMILY’s List, 581 F.3d at 9). And in rejecting the FEC’s arguments, the court stated 

that “the Commission fails to recognize that non-connected non-profits are not the same as 

political parties and do not cause the same concerns.” Id. at 131; see also Stop This Insanity, Inc. 

Employee Leadership Fund v. FEC, 902 F. Supp. 2d 23, 43 (D.D.C. 2012) (“[T]he government’s 

interest in preventing the appearance of political corruption and undue influence is at its zenith 

when individuals and organizations give money directly to political candidates and political 

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parties.”).11

The decisions plaintiffs cite from other Circuits similarly make clear that parties should 

be treated differently from PACs. As the Fourth Circuit explained: 

McConnell specifically emphasized the difference between political parties and 

independent expenditure political committees, which explains why contribution 

limits are acceptable when applied to the former, but unacceptable when applied 

to the latter. . . . It is thus not an exaggeration to say that McConnell views 

political parties as different in kind than independent expenditure committees. 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008). None of the cases 

plaintiffs cited support the view that parties should be treated like PACs, and virtually all of the 

cases specifically state that political parties do not have a constitutional right to collect unlimited 

contributions to spend on independent expenditures.12 

                                                           

11 Plaintiffs ignore or distort the inherent differences between political parties and advocacy 

groups. When quoting a Supreme Court case about a group formed to oppose a ballot measure, 

for example, plaintiffs suggest that “[p]olitical parties may be considered modern-day variations 

of “[t]he 18th-century Committees of Correspondence.’” (Pls.’ Mem. at 14 (quoting Citizens 

Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, Cal., 454 U.S. 290, 294 (1981).) 

But the Committees of Correspondence were simply pro-colonist advocacy groups formed to 

disseminate information during the time of British rule. See Craig A. Doherty, Katherine M. 

Doherty, New York 85 (2005). Today’s political parties have little in common with either the 

Committees of Correspondence or the group at issue in Citizens Against Rent Control. 

12 See Republican Party of N.M. v. King, 741 F.3d 1089, 1100 (10th Cir. 2013) (holding that 

“more onerous contribution restrictions may be placed on political parties than on independent 

groups.”); id. at 1102-03 (noting that “[a] state political party, due to McConnell, is much less 

likely to bring a successful as-applied challenge to a limitation on the contributions it may 

receive” (quoting McConnell, 540 U.S. at 153)); Long Beach Area Chamber of Commerce v. 

City of Long Beach, 603 F.3d 684, 696, 698 (9th Cir. 2010) (stating that McConnell upheld 

limitations on contributions to political parties due to their close relationship to candidates before 

concluding that “the City offers no basis on which to conclude that the Chamber PACs have the 

sort of close relationship with candidates that supports a plausible threat of corruption or the 

appearance thereof.”); Stay the Course W. Va. v. Tennant, Civ. No. 12-1658, 2012 WL 3263623, 

at *6 (S.D.W. Va. Aug. 9, 2012) (citing Leake’s analysis about why contribution limits on 

political parties are acceptable, but such limits on independent expenditure groups are not); 

Yamada v. Weaver, 872 F. Supp. 2d 1023, 1041 (D. Haw. 2012) (“Although the government can 

still limit contributions made directly to candidates or parties, . . . contribution limitations to 

[independent expenditure only organizations] violate the First Amendment.”).

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e. Minor Parties Present the Threat of Quid Pro Quo Corruption 

and Its Appearance 

The threats of corruption and its appearance presented by unlimited contributions are no 

less real in the case of minor party committees like LNCC and LPIN. As the Supreme Court has 

recognized, “the relevance of the interest in avoiding actual or apparent corruption is not a 

function of the number of legislators a given party manages to elect,” and thus it is “reasonable 

to require that all parties and all candidates follow the same set of rules designed to protect the 

integrity of the electoral process.” McConnell, 540 U.S. at 159 (emphasis added). 

 In Buckley, the Supreme Court rejected a claim by the Libertarian Party, among others, 

that FECA’s contribution limits invidiously discriminate against minor-party candidates. 424 

U.S. at 33-35 & n.40. The Court explained that “any attempt to exclude minor parties and 

independents en masse from the Act’s contribution limitations overlooks the fact that minorparty candidates may win elective office or have a substantial impact on the outcome of an 

election.” Id. at 34-35.13 In McConnell, the Court rejected a similar argument by the LNC, 

another national committee of the Libertarian Party, and others who claimed that the soft money 

ban was overbroad because it applied to minor parties, “which, owing to their slim prospects for 

electoral success and the fact that they receive few large soft-money contributions from 

corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC.” 

540 U.S. at 158-59. In response, McConnell reiterated Buckley’s observation that minor-party 

                                                           

13 “Even when a minor-party candidate has little or no chance of winning, he may be 

encouraged by major-party interests in order to divert votes from other major-party contenders.” 

Buckley, 424 U.S. at 70. See, e.g., United States v. Goland, 959 F.2d 1449 (9th Cir. 1992); Carla 

Marinucci, GOP Donors Funding Nader/Bush Supporters Give Independent’s Bid a Financial 

Lift, S.F. Chron., July 9, 2004, http://www.sfgate.com/politics/article/GOP-donors-fundingNader-Bush-supporters-give-2708705.php (last visited June 11, 2014). 

. 

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candidates may win or substantially affect elections and held that the corruption rationale applies 

fully to minor parties. Id. at 159. 

 In this case, the party plaintiffs argue that, even if the Constitution permits limits on 

contributions to the major parties, minor parties should be treated differently because they “lack 

the number of supporters that major parties enjoy to help them propagate their message” and 

therefore “are limited to a fairly small base of realistic potential donors to fund their political 

expression.” (Pls.’ Mem. at 25-26.) According to the plaintiffs, preventing them from receiving 

unlimited contributions makes it more difficult for them to convey their message and attract 

supporters, thereby “perpetuating their relegation to minor-party status.” (Id. at 26.) But these 

are the same assertions the Supreme Court has rejected. 

 Plaintiffs have provided no evidence that they lack the funds for “effective advocacy.” 

Randall v. Sorrell, 548 U.S. 230, 247 (2006) (contribution limits are unconstitutional if they 

“prevent[ ] candidates and political committees from amassing the resources necessary for 

effective advocacy.” ((quoting Buckley, 424 U.S. at 21).) But the current $32,400 limit on 

contributions to LNCC and the $10,000 limit on contributions to LPIN are no lower than the 

limits the Supreme Court has previously indicated would enable advocacy by minor parties. See 

McConnell, 540 U.S. at 158-59; Buckley, 424 U.S. at 34 (no evidence that FECA’s contribution 

limit “will have a serious effect on the initiation and scope of minor-party and independent 

candidacies”). 

 Furthermore, while McConnell noted that “a nascent or struggling minor party” might 

bring an as-applied challenge against the soft money ban, 540 U.S. at 159, the Libertarian Party 

is not a “nascent or struggling minor party.” Plaintiffs state that “[i]n 2012, dozens of 

Libertarian candidates ran for the U.S. House of Representatives and Senate across the country” 

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and that “[o]ver 50 Libertarian candidates presently are running for Congress in districts 

throughout the nation in 2014.” (Complaint ¶¶ 39-40.) They also note that Libertarian 

candidates have run for numerous federal offices in the past two election cycles, including a 

Senate candidate who received 5.33% of the vote and a House candidate who received 7.74% of 

the vote. (Id. ¶ 55.) Several Libertarian candidates will also be running for federal office in 

Indiana this election cycle. (Id. ¶56.) Plaintiffs also state that LPIN “is Indiana’s third-largest 

political party” and identify “three elected Libertarian officials in the State of Indiana.” (Id. ¶¶ 

52, 54.) 

 The LNC recently made a similar argument to this Court in a case involving limits on 

bequests to political parties. Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 167 

(D.D.C. 2013) aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014). The Court 

rejected the LNC’s attempt to claim special privileges for minor parties while the party was also 

asking to strike down a law for all parties. 930 F. Supp. 2d at 167 (“LNC seeks to eliminate the 

restrictions on all bequests to all political parties, not just to smaller parties such as the LNC. . . . 

Thus, the arguments about the effect of FECA limits on the LNC’s ability to express its message 

as a struggling minor party or to engage in effective advocacy, even if credited, do not support 

the claim as articulated”.). This Court should decline the plaintiffs’ request to do the same 

here.14

                                                           

14 Plaintiffs have failed to establish that their principal claims in this case would actually 

help LNCC and LPIN achieve major party status. The plaintiffs challenge the current party 

contribution limits to all national and state party committees (Pls.’ Mem. at 28); if plaintiffs were 

to prevail, all those parties — including their major-party rivals — would be able to accept 

unlimited contributions for independent expenditures, possibly putting the LNC at a further 

competitive disadvantage. The Court is forbidden from adjusting the contribution limits to 

equalize the resources of the Libertarian Party with the major parties. Buckley, 424 U.S. at 34-

35. Even if the Court were not so constrained, however, plaintiffs would not have established 

the propriety of the relief they seek. Cf. id. at 33 (explaining that the contribution limits “would 

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33

f. The Constitutionality of the Limits Is Not Undermined by 

Plaintiffs’ Assurances About How Personnel or Funds Will Be 

Segregated 

Plaintiffs make numerous assurances about how they intend to keep their independent 

expenditures segregated from other activities, and they argue that these steps will ensure that 

expenditures are “sufficiently insulated” to prevent corruption and circumvention. (Pls.’ Mem. 

at 24.)15 For several reasons, these assurances fail to ameliorate the corruption concerns 

underlying the party contribution limits. As an initial matter, plaintiffs’ ad hoc assurances would 

appear to be illusory because there is no showing of how they would be enforced over time. The 

party plaintiffs in RNC made similar promises, stating that they would “not involv[e] federal 

candidates or officeholders in its soft-money solicitations” and “not grant[ ] soft-money donors 

preferential access to candidates based on their large, soft-money contributions.” RNC, 698 F. 

Supp. 2d. at 158. But the court held that those assurances were not enough, due to the 

“inherently close relationship between parties and their officeholders and candidates.” Id. at 159 

(citing McConnell). The same is true here. 

First, a wealthy donor intent on quid pro quo corruption need not be formally solicited 

                                                                                                                                                                                               

appear to benefit minor-party and independent candidates relative to their major-party opponents 

because major-party candidates receive far more money in large contributions”).

15 Both party plaintiffs submitted declarations from party officials stating how they intend 

to create a wall of separation between their independent expenditures and other activities, 

thereby allegedly diminishing the chance that unlimited contributions to the independent 

expenditure account will be used to circumvent other limits. The parties state an intention to: 1) 

maintain separate accounts solely for independent expenditures; 2) create a special committee 

chaired by a party member for a period of two years that unilaterally makes all decisions about 

the party’s independent expenditures; 3) segregate the members of the independent expenditure 

committee so that they will not interact with federal candidates and officeholders, nor participate 

in other party decisionmaking such as contributions and coordinated expenditures; 4) prohibit 

candidates from involvement in soliciting or fundraising for the independent expenditure 

accounts; and 5) assure that contributions to the accounts will not be tallied, nor will contributors 

obtain special access to candidates, nor will contributors even be identified to candidates. (Pls.’ 

Mem. at 3-4, 24.) 

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before making a large contribution and any solicitation that does occur need not come directly 

from candidates. Evidence even in the BCRA era makes clear that donors who have “maxed 

out” on candidate contributions are encouraged to contribute to the state and national parties. 

See Cao, 688 F. Supp. 2d at 526. There would be no need for federal candidates and 

officeholders to solicit specifically for their party’s independent expenditure fund, because 

maxed-out contributors could be encouraged to do so by the party itself. And contributions to 

the independent expenditure account made at the suggestion of the party would have corruptive 

potential, just as contributions to its hard money account do. Cf. RNC, 698 F. Supp. 2d at 162 

(noting in the context of BCRA’s solicitation ban that “there is no reason to think that 

contributions made to a national party and contributions made at the behest of a national party 

are any different in terms of their potential ability to produce corruption or the appearance of 

corruption.” (emphasis in original)). In addition, large donations to parties are often made not in 

response to particular solicitations, but at the suggestion of professional lobbyists. McConnell,

251 F. Supp. 2d at 495 (Kollar-Kotelly, J.). 

Second, an officeholder intent on rewarding contributors can easily determine the 

identities of those contributors from a wide variety of other sources, without any need for the 

party to share that information. Contribution patterns are commonly discussed by party officials, 

officeholders, staff, and opposing lobbyists. See McConnell, 540 U.S. at 148 n.47; see also 

McConnell, 251 F. Supp. 2d at 488 (Kollar-Kotelly, J.) (“‘[T]here is communication among 

Members about who has made soft money donations and at what level they have given, and this 

is widely known and understood by the Members and their staff.’” (quoting CEO Wade 

Randlett)); id. at 487 (Kollar-Kotelly, J.), 853-54 (Leon, J.) (“‘[Y]ou cannot be a good 

Democratic or a good Republican Member and not be aware of who gave money to the party.’” 

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35

(quoting Sen. Bumpers)); id. at 487-88 (Kollar-Kotelly, J.), 854 (Leon, J.) (“‘Legislators of both 

parties often know who the large soft money contributors to their party are.’” (quoting Sen. 

McCain)); id. at 487-88 (Kollar-Kotelly, J.), 854 (Leon, J.) (noting that a donor’s “‘lobbyist 

informs the Senator that a large donation was just made’” (quoting Sen. Boren)). 

Third, the revolving door nature of plaintiffs’ segregated personnel guarantees that party 

leadership will continue to exert control over the expenditures. The party plaintiffs indicate that 

the chair of the independent expenditure committee will be a party member, serving a two-year 

term, who is hand-picked by the party chair to serve in that role. (Pls.’ Mem. at 3.) This means 

that a party official who regularly interacts with candidates and the party chair can be installed as 

the chair of the independent expenditure committee. Any independent expenditure committee 

leader who fails to please candidates can simply be replaced at the conclusion of his or her term, 

if not sooner. 

Finally, plaintiffs’ assurances fail to address the constitutionally significant interest in 

preventing the appearance of corruption. Large contributions to political parties will be 

perceived by the public as corrupting, even if those contributions happen to be placed in a 

separate bank account and handled by different party personnel. The risk of apparent corruption 

in these party accounts is considerably greater than it is for a nonconnected PAC like the one at 

issue in Carey, 791 F.Supp.2d at 125, 131. Officeholders are routinely identified by their 

political party. The specter of a quid pro quo arrangement would be raised any time the 

members of a party pass (or block) legislation to the benefit of one of their major contributors. 

3. The Party Contribution Limits Are Closely Drawn to Advance the 

Government’s Interests 

 To be constitutional, a contribution limit must be closely drawn to match a sufficiently 

important interest. McCutcheon, 134 S. Ct. at 1444. Unlike strict scrutiny, which requires 

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narrow tailoring, the “lesser demand” of intermediate scrutiny, id., does not require that a 

contribution limit be the least restrictive means of preventing corruption and its appearance, see, 

e.g., Buckley, 424 U.S. at 27-28 (rejecting argument that contribution limits are invalid because 

bribery laws and disclosure requirements are “less restrictive means” of addressing corruption). 

Accordingly, Buckley did not find that FECA’s contribution limits are overbroad even though 

most large contributors do not seek improper influence. Id. at 29-30. The Court explained that it 

is “difficult to isolate suspect contributions” and “the interest in safeguarding against the 

appearance of impropriety requires that the opportunity for abuse inherent in the process of 

raising large monetary contributions be eliminated.” Id. at 30; see also FEC v. Nat’l 

Conservative Pol. Action Comm., 470 U.S. 480, 500 (1985) (noting the Court’s “deference to a 

congressional determination of the need for a prophylactic rule where the evil of potential 

corruption had long been recognized”). 

 As McConnell explained, “[t]he Government’s strong interests in preventing corruption, 

and in particular the appearance of corruption, are thus sufficient to justify subjecting all

donations to national parties to the source, amount, and disclosure limitations of FECA.”

McConnell, 540 U.S. at 156 (emphasis added). For the reasons explained supra at pp. 35-39, the 

application of the limits here “focuses precisely on the problem of large campaign 

contributions,” Buckley 424 U.S. at 28, and they are thus closely drawn. In addition, the 

contribution limits to parties are closely drawn because both parties and donors continue to have 

ample opportunity to engage in political speech. 

a. Political Parties Continue to Thrive Under the Current 

Contribution Limits 

Political parties are fully capable of engaging in effective advocacy while complying with 

the current contribution limits. “From 1992 to 2006, political party spending ‘increased 

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tenfold.’” Cao, 688 F. Supp. 2d at 517 (quoting expert Jonathan Krasno). In the most recent 

election cycle, political party committees received over $1.6 billion in contributions, $1.3 billion 

of which went to the six national committees of the two major parties. FEC Summarizes 

Campaign Activity of the 2011-2012 Election Cycle (revised Mar. 27, 2014),

http://www.fec.gov/press/press2013/20130419_2012-24m-Summary.shtml. A total of $7.1 

billion was contributed to candidates, party committees, and other political committees that 

cycle. Id. National political party committees by themselves thus accounted for more than onefifth of the total funds received by the approximately 8,500 entities that were active during the 

2011-2012 cycle. Independent expenditures by party committees totaled $252.4 million. Id. 

Political parties therefore continue to play a significant role in our democratic process while 

subject to FECA contribution limits. 

b. When the Full Scope of FECA Regulation Is 

Considered, Parties Have Many Advantages Over PACs 

The fact that parties and PACs are treated differently under FECA does not make the 

regime constitutionally suspect; rather, it “reflect[s] a judgment by Congress that these entities 

have differing structures and purposes, and that they therefore may require different forms of 

regulation in order to protect the integrity of the electoral process.” Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 200-201 (1981) (rejecting argument that contribution limits to multicandidate PACs 

were unconstitutional because they treated individuals and unincorporated associations 

differently than corporations and unions, and noting that FECA as a whole imposed far fewer 

restrictions on the latter groups). 

Political parties can both receive and contribute far more hard money than PACs can. 

Contributors to national parties can give $32,400 annually, while hard money contributions to 

PACs are limited to $5,000. 78 Fed. Reg. 8530-02 (Feb. 6, 2013); 2 U.S.C. § 441a(a)(1)(C). 

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Unlike PACs, see 2 U.S.C. § 441a(a)(5)(C), FECA does not group together all committees of a 

political party as if they were a single contributor, so the major parties’ three national 

committees, as well as state and local committees (including state committees outside a 

candidate’s state), may each contribute $5,000 to every federal candidate in each election 

($5,000 in the primary and $5,000 in the general election).16 Moreover, unlimited transfers of 

hard money may be made among national, state, district, and local party committees of the same 

political party, further enhancing the ability of parties to provide contributions to their 

candidates. 2 U.S.C. § 441a(a)(4). Lastly, “a party is better off [than individuals and other 

political committees], for a party has the special privilege the others do not enjoy, of making 

coordinated expenditures up to the limit of the Party Expenditure Provision.” Colorado II, 533 

U.S. at 455 (footnote omitted). As discussed supra p. 3, this provision allows parties to 

coordinate with their candidates spending of millions of dollars in some elections. 

c. Political Parties Can Continue to Make Independent 

Expenditures Without Receiving Unlimited 

Contributions for That Purpose 

There is no merit to plaintiffs’ argument that political parties must be able to receive 

unlimited contributions for independent expenditures just because they are able to make such 

expenditures. (Pls.’ Mem. at 8.) The Supreme Court’s opinion in Colorado I, which established 

that political parties were capable of making independent expenditures, never suggested that 

contributions for the purpose of funding those independent expenditures need be unlimited. To 

the contrary, the Court was explicitly mindful of the fact that “[t]he greatest danger of 

corruption” as a result of their holding “appears to be from the ability of donors to give sums up 

to $20,000 to a party which may be used for independent party expenditures for the benefit of a 

                                                           

16 In addition, national parties and their senatorial campaign committees may together 

contribute up to $42,600 to each Senate candidate. 2 U.S.C. § 441a(h). 

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particular candidate.” Colorado I, 518 U.S. at 617. The Court even went so far as to say that if 

Congress feared that this danger was too great, it “might decide to change the statute’s 

limitations on contributions to political parties” by making them even lower. Id. Ultimately, the 

Court found that the danger was insufficient to prevent parties from making independent 

expenditures, because “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.” Plaintiffs 

suggest that this means party independent expenditures are less corrupting than PAC independent 

expenditures (Pls.’ Mem. at 15), but the continued operation of the limit on contributions to 

parties was a critical part of the Court’s reasoning that party independent expenditures could not 

be limited. 

d. The Burden on Contributors Is Marginal and They 

Have Numerous Other Outlets for Political Expression 

Limits on contributions to parties represent only “a marginal restriction upon the 

contributor’s ability to engage in free communication,” Buckley, 424 U.S. at 20. Mr. Rufer has 

many other avenues to engage in unlimited political speech, either on his own or in association 

with others through a PAC. Any infringement on his speech is limited, given that he can use the 

same money to fund the same intended speech, merely by associating with a PAC rather than a 

party. Id. at 28 (holding that contribution limits “leav[e] persons free to engage in independent 

political expression, to associate actively through volunteering their services, and to assist to a 

limited but nonetheless substantial extent in supporting candidates and committees with financial 

resources”). Libertarian Party supporters can volunteer their efforts freely with Libertarian Party 

committees, contribute to every Libertarian Party candidate on the ballot, and they do not face 

what the Supreme Court found in McCutcheon to be a geographic problem in supporting a great 

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number of candidates. 134 S. Ct. at 1449. 

C. Plaintiffs Fail to Demonstrate Irreparable Harm 

Plaintiffs fail to meet their burden to show that they will suffer irreparable harm without 

the extraordinary remedy they seek. Winter, 555 U.S. at 22. “[T]he basis of injunctive relief in 

the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 

(1974) (citation and internal quotation marks omitted). But in the lone paragraph in their motion 

that plaintiffs devote to this critical element, they supply no evidence and instead rely entirely on 

their merits argument, merely asserting that their First Amendment rights have been abridged. 

(Pls.’ Mem. at 26-27.) Plaintiffs’ “mere allegations, without more, do not support a finding of 

irreparable injury,” even in the First Amendment context. Chaplaincy of Full Gospel Churches 

v. England, 454 F.3d 290, 297-99 (D.C. Cir. 2006); Am. Meat Inst. v. Dep't of Agric., 968 F. 

Supp. 2d 38, 76 (D.D.C. 2013) (“[T]he D.C. Circuit . . . require[s] movants to do more than 

merely allege a violation of freedom of expression in order to satisfy the irreparable injury prong 

of the preliminary injunction frame-work” (citations and internal quotation marks omitted)),

aff’d, 746 F.3d 1065 (D.C. Cir. 2014). “This court has set a high standard for irreparable injury,” 

and plaintiffs must “articulate a tangible injury that is either ‘certain and great’ or irreparable.” 

Chaplaincy, 454 F.3d at 297-98. Plaintiffs have failed to do so and “‘that alone is sufficient’ for 

a district court to refuse to grant preliminary injunctive relief.” Hicks v. Bush, 397 F. Supp. 2d 

36, 40 (D.D.C. 2005) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 

747 (D.C. Cir. 1995)). 

1. Plaintiffs’ Mere Allegations of Harm are Insufficient to Show 

Irreparable Injury 

 Plaintiffs do not even attempt to show that they will be irreparably harmed without an 

injunction. Instead, they cite Elrod v. Burns, 427 U.S. 347 (1976) (plurality), but that case does 

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not support their position. Elrod held that dismissing employees based on political party 

affiliation was an unconstitutional infringement on First Amendment rights. Id. at 372. But that 

holding rested on the finding that government employees had already been “threatened with 

discharge or had agreed to provide support for the Democratic Party in order to avoid discharge,” 

and it was “clear therefore that First Amendment interests were threatened or in fact being 

impaired at the time relief was sought.” Id. at 373. Elrod did not eliminate a First Amendment 

plaintiff’s burden to show that its interests are actually threatened or being impaired. Nat'l 

Treasury Employees Union v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991) 

(“NTEU”); Am. Meat Inst., 968 F. Supp. 2d at 76; Sweis v. U.S. Foreign Claims Settlement 

Comm’n, 950 F. Supp. 2d 44, 48 (D.D.C. 2013) (“merely raising a constitutional claim is 

insufficient to warrant a presumption of irreparable injury”); Christian Knights of the Ku Klux 

Klan Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) 

(rejecting preliminary injunction sought by Ku Klux Klan to require local government to issue 

parade permit for planned march longer than one for which it had received permit, finding Elrod 

not controlling on irreparable harm because shorter parade allowed in permit was not total denial 

of First Amendment rights); Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2004 WL 

3622736, at *4 (D.D.C. Aug. 17, 2004) (rejecting that plaintiff’s reliance on Elrod). 

Here, plaintiffs have alleged no governmental action against them whatsoever. See 

NTEU, 927 F.2d at 1255 (“Nothing in the record convinces us that the appellants will cease 

speaking or writing before the district court resolves their constitutional challenges.”). The 

Commission has taken no action justifying an injunction resembling the threats that were present 

in Elrod. Since plaintiffs have not established any harm that is actual and certain, they fall short 

of meeting the “high standard” necessary for a preliminary injunction. 

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While plaintiffs make no real effort to show irreparable injury in their motion, the 

declarations they have filed suggest that such injury is entirely absent. Mr. Rufer merely states 

he “wish[es] to immediately contribute additional funds” to the parties (Decl. of Chris Rufer ¶ 6 

(Docket No. 3-3)), which hardly establishes an injury that is “certain and great.” 

Chaplaincy, 454 F.3d at 298. Likewise, the declarations from party officials merely claim they 

would like to accept additional funds to spend on independent expenditures. (See Decl. of Evan 

McMahon ¶ 16 (Docket No. 3-5) (LNCC “wishes to accept additional funds from Rufer this year 

to subsidize its independent expenditures”); Decl. of Daniel Drexler ¶ 20 (Docket No. 3-4) 

(LPIN “wishes to accept additional funds from Rufer this year to subsidize its independent 

expenditures”).) These bare allegations are insufficient to meet plaintiffs’ burden. 

2. Plaintiffs Face No Imminent Injury Requiring Expedited 

Consideration 

Plaintiffs also fail to establish that “[t]he injury complained of [is] of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas v. 

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (citation and internal quotation marks omitted). In 

this case, the limits individuals can contribute to national and state party committees have been 

in place since 1976 and plaintiffs have long been subject to those limits. Plaintiffs cannot show 

that an imminent injury to them sufficient to require preliminary relief only emerged in 2014.17 

A “period of delay may indicate an absence of the kind of irreparable harm required to support a 

preliminary injunction.” See Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258, 

                                                           

17   Carey v. FEC, relied on by plaintiffs (Pls.’ Mem. at 16), acknowledged that plaintiffs 

must make a showing of more than a mere possibility of irreparable harm. 791 F. Supp. 2d at 

128. In addition, the Court in that case found that granting a preliminary injunction would 

merely further existing Circuit authority, and that it was not at odds with multiple recent 

Supreme Court cases. Id. at 130. 

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1266 (D.C. Cir. 2012) (citations and internal quotation marks omitted); see also Charlesbank 

Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 163 (1st Cir. 2004) (plaintiff’s “cries of 

urgency are sharply undercut by its own rather leisurely approach to the question of preliminary 

injunctive relief”); Tenacre Found. v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) (finding 

preliminary injunction unwarranted when seven months elapsed in seeking the injunction). After 

all, Citizens United, 558 U.S. 310, and SpeechNow.org , 599 F.3d at 689, upon which plaintiffs 

rely heavily, were issued four years ago. 

 Even plaintiffs’ accompanying “Statement of Facts Which Make Expedition Essential” 

(Docket No. 3-2) does not actually present any additional facts, but rather attempts to justify 

expedition by relying on Elrod v. Burns and invoking BCRA Section 403. Plaintiffs do not 

explain any extraordinarily important planned expenditures that cannot be funded in the interim 

through appeals to additional donors. See Buckley, 424 U.S. at 22. The FEC has shown that 

Elrod did not eliminate a First Amendment plaintiff’s burden to show an actual injury, see supra

pp. 40-41, and entitlement to the BCRA special review procedure is irrelevant to any showing of 

irreparable harm. In any event, plaintiffs are not entitled to invoke BCRA section 403 in part 

because their claims are foreclosed by precedent. See FEC Opp’n to Pls.’ Appl. for a ThreeJudge Court at 8-10 (Docket No. 11); supra pp. 21-26.18 

D. The Relief Plaintiffs Request Would Harm the Government and Undercut 

the Public Interest 

Permitting plaintiffs to make or receive contributions in excess of the statutory limits 

would undermine the anti-corruption purpose of FECA immediately before a federal election, 

                                                           

18 Should the court agree with the Commission and deny plaintiff’s three-judge court 

application, the Court would need to decide, with respect to some plaintiffs, “whether section 

437h deprives the district court of authority to grant such relief based on a constitutional 

challenge to FECA,” a question left open in Wagner v. FEC, 717 F.3d 1007, 1017 n.9 (D.C. Cir. 

2013) (per curiam), before issuing a preliminary injunction. 

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harming the public interest and the government. To prevail on their motion for a preliminary 

injunction, plaintiffs must establish precisely the opposite. CityFed. Fin. Corp., 58 F.3d at 746. 

But they offer only a few conclusory statements about unconstitutional laws. (Pls.’ Mem. at 27.) 

Thus, the balance of hardships is strongly in the Commission’s favor. 

The statutory provisions plaintiffs challenge have been on the books for forty years. 

“The public has a strong interest in the enforcement of laws passed by Congress and signed by 

the President.” Wis. Right to Life, Inc. v. FEC, No. 04-1260 DBS RWR RJL (D.D.C. Sept. 14, 

2006), 2006 WL 2666017, at *5. There is a “presumption of constitutionality which attaches to 

every Act of Congress,” and that presumption is “an equity to be considered in favor of [the 

government] in balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 

1323, 1324 (1984). As Chief Justice Rehnquist stated in the similar context of a requested 

injunction pending appeal, “barring the enforcement of an Act of Congress would be an 

extraordinary remedy.” Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305, 1305 (2004) (Rehnquist, 

C.J., in chambers). 

Granting plaintiffs’ motion for preliminary injunction would “substantially injure” the 

government and the public. CityFed Fin., 58 F.3d at 746. Indeed, “any time a State is enjoined 

by a court from effectuating statutes enacted by representatives of its people, it suffers . . . 

injury.” New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) 

(Rehnquist, J., in chambers). The government and the public are similarly harmed when a court 

proscribes enforcement of a federal statute. “[E]njoining the FEC from performing its statutory 

duty constitutes a substantial injury to the FEC.” Wis. Right to Life, 2006 WL 2666017, at *5; 

see also Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006). 

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CONCLUSION 

For the foregoing reasons, the Court should deny plaintiffs’ motion for preliminary 

injunction. 

 Respectfully submitted, 

Lisa Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 snesin@fec.gov 

gmueller@fec.gov 

 ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 11, 2014 (202) 694-1650 

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