EN BANC ORAL ARGUMENT SCHEDULED FOR JANUARY 27, 2010 

No. 09-5342 

(Consolidated with No. 08-5223) 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

DAVID KEATING, et al.,

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

_______________________________________________ 

On Certified Constitutional Questions from the 

United States District Court for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Thomasenia P. Duncan 

General Counsel 

 

David Kolker 

Associate General Counsel 

 

Kevin Deeley 

Assistant General Counsel 

 Vivien Clair 

Attorney 

Steve Hajjar 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

December 15, 2009 (202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND 

RELATED CASES 

 Pursuant to D.C. Cir. R. 28(a)(1), the Federal Election Commission 

(“Commission”) submits its Certificate as to Parties, Rulings, and Related 

Cases. 

(A) Parties and Amici. David Keating, Fred M. Young, Edward 

H. Crane III, Brad Russo, and Scott Burkhardt were the plaintiffs in the 

district court in this suit under 2 U.S.C. § 437h, and are the plaintiffs in this 

Court. The Commission was the defendant in the district court and is the 

defendant in this Court. 

No amici or intervenors participated in the preliminary section 437h 

proceedings in the district court. In this Court, the following entities have 

filed a joint amici curiae brief: Alliance for Justice, Concerned Women for 

America Legislative Action Committee, FRC Action, The Commonwealth 

Foundation for Public Policy Alternatives, Mackinac Center for Public 

Policy, Caesar Rodney Institute, Kansas Policy Institute, Freedom Works 

Foundation, The James Madison Institute, and Public Interest Institute. Two 

other organizations have also become amici: Campaign Legal Center and 

Democracy 21. The Brennan Center for Justice at New York University 

and Professor Richard Briffault have moved to participate as amici curiae. 

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 (B) Rulings Under Review. Under 2 U.S.C. § 437h, a district court 

certifies constitutional questions and makes factual findings but does not 

rule on the merits; the appellate court answers those questions in the first 

instance. In this case, the district court issued the certified questions and 

factual findings on October 7, 2009. The document is in the Joint Appendix 

at 1260-1283. 

The Commission asks this Court to review the district court’s decision 

to limit its findings to facts about the immediate parties to the litigation. 

The addendum to this brief includes excerpts from the transcript of the 

hearing at which the district court discussed that decision. 

(C) Related Cases. The Court has consolidated this section 437h 

suit with Case No. 08-5223, the appeal by these plaintiffs and 

SpeechNow.org of the district court’s denial of their motion for a 

preliminary injunction. The section 437h suit has not previously been before 

this or any other court other than the district court for the preliminary 

proceedings described above. 

Case: 09-5342 Document: 1220957 Filed: 12/15/2009 Page: 3
TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION ....................................... 1 

COUNTERSTATEMENT OF THE ISSUES ............................................. 1 

STATUTES AND REGULATIONS .......................................................... 1 

COUNTERSTATEMENT OF THE FACTS ............................................. 2 

I. BACKGROUND .............................................................................. 2 

A. The Parties and SpeechNow.org ............................................ 2 

B. Statutory and Regulatory Background ................................... 4 

II. COURT PROCEEDINGS ................................................................ 4 

SUMMARY OF ARGUMENT .................................................................. 5 

 

ARGUMENT .............................................................................................. 9 

I. PLAINTIFFS CHALLENGE ONLY CONTRIBUTION 

RESTRICTIONS, WHICH PREVENT CORRUPTION BUT 

DO NOT LIMIT THEIR SPEECH .................................................. 9 

A. SpeechNow’s President Will Decide How to Spend the 

Other Plaintiffs’ Contributions ............................................. 11 

 

B. Unlimited Contributions to Groups Devoted to 

 Independent Candidate Expenditures Pose a Danger 

 of Corruption ........................................................................ 12 

C. Supreme Court Precedent Supports the Constitutionality 

of Limits on Contributions to Political Committees that 

Make Only Independent Expenditures ................................. 25 

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D. The Supreme Court Has Specifically Recognized the 

Potential for Corruption Posed by Tax-Exempt 

Organizations That Engage in Federal Campaign 

Activity ................................................................................. 37 

E. Organizations Like SpeechNow Are Not Constitutionally 

 Distinguishable From Political Parties for Purposes of the 

 Applicable Contribution Limits ............................................ 40 

II. THE PROVISIONS GOVERNING POLITICAL 

 COMMITTEES SERVE IMPORTANT GOVERNMENT 

INTERESTS AND ARE NOT UNDULY BURDENSOME ........ 43 

A. Political Committees Can Raise Sufficient 

Funds for Effective Advocacy Under the Existing 

Contribution Limits .............................................................. 44 

 

B. FECA’s Disclosure Requirements for Political 

Committees Are Constitutional as Applied to Keating 

as Treasurer of SpeechNow .................................................. 50 

1. Intermediate Scrutiny Applies to the Act’s 

Disclosure Requirements ........................................... 50 

2. As Applied to Keating on Behalf of SpeechNow, 

FECA’s Reporting Requirements for Political 

Committees Are Substantially Related to 

Important Governmental Interests ............................. 50 

3. The Disclosure Requirements Are Not Unduly 

Burdensome ............................................................... 55 

III. FECA’S BIENNIAL AGGREGATE CONTRIBUTION LIMIT 

 IS CONSTITUTIONAL AS APPLIED TO PLAINTIFF 

 YOUNG .......................................................................................... 57 

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IV. THE COURT’S EVALUATION OF THE DANGER OF 

CORRUPTION SHOULD GO BEYOND EVIDENCE 

REGARDING THE IMMEDIATE PARTIES ............................... 58 

 

CONCLUSION ......................................................................................... 62 

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TABLE OF AUTHORITIES 

 Page 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc), vacated 

on other grounds, 524 U.S. 11 (1998) ........................................... 36, 55 

Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151 

(D.C. Cir. 1979) ................................................................................... 62 

*Buckley v. Valeo, 424 U.S. 1 (1976) ................ 6, 9, 11-12, 15, 23, 25-26, 

29-30, 34-36, 41-46, 50-

51, 54, 57-59 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc) .................... 60

*California Medical Ass’n v. FEC, 453 U.S. 182 (1981) .............. 26-33, 59 

Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009) ............ 24 

*Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) ....................................................................... 33, 40 

Davis v. FEC, 128 S. Ct. 2759 (2008) ...................................................... 36 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ............................ 28, 31 

FEC v. Beaumont, 539 U.S. 146 (2002) ................................................... 10 

*FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) ..................................................... 21, 39-41, 59-60 

*FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ................................................................. 33-35, 51, 56 

FEC v. Nat’l Conservative PAC, 470 U.S. 480 (1985) ............................ 32 

*Cases and Authorities chiefly relied upon are marked with an asterisk. 

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

Friends of the Earth v. Reilly, 966 F.2d 690 (D.C. Cir. 1992) ................. 61 

FTC v. Standard Oil of California, 449 U.S. 232 (1980) .................... 49-50 

Gersman v. Group Health Ass’n, Inc., 975 F.2d 886 (D.C. Cir. 1992) .... 31 

Grutter v. Bollinger, 539 U.S. 306 (2003) ................................................ 27 

INS v. Miranda, 459 U.S. 14 (1982) ......................................................... 49 

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) .................................. 27-28 

Marks v. United States, 430 U.S. 188 (1977) ........................................... 26 

*McConnell v. FEC, 540 U.S. 93 (2003) .................... 10, 16, 22, 29-31, 33, 

37-40 50-51, 60 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .......................... 16 

Nichols v. United States, 511 U.S. 738 (1994) ......................................... 27 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ............ 9-10, 23 

Pullman Standard v. Swint, 456 U.S. 273 (1982) ..................................... 61 

Southern Nuclear Operating Co. v. NLRB, 524 F.3d 1350 

(D.C. Cir. 2008) ................................................................................... 34 

United States v. Armstrong, 517 U.S. 456 (1996) .................................... 49 

United States v. Bailey, 36 F.3d 106 (D.C. Cir. 1994) (en banc), 

 rev’d on other grounds, 576 U.S. 137 (1995) ..................................... 31 

United States v. Carolene Prods. Co., 304 U.S. 144 (1938) .................... 30 

United States v. Oakar, 111 F.3d 146 (D.C. Cir. 1997) ........................... 34 

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Statutes and Regulations 

Federal Election Campaign Act, 2 U.S.C. §§ 431-455 ............................... 2 

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

116 Stat. 81 (2002) ............................................................................... 29 

2 U.S.C. § 431(4)(A) ........................................................................... 34, 35 

2 U.S.C. § 434(c) .......................................................................... 52, 53, 54 

2 U.S.C. § 434(c)(2)(C) ............................................................................ 52 

2 U.S.C. § 437h ....................................................................... 1, 4, 5, 31, 59 

2 U.S.C. § 441a(a)(1)(C) ..................................................................... 10, 31 

2 U.S.C. § 441d ......................................................................................... 53 

2 U.S.C. § 441d(a) .................................................................................... 53 

2 U.S.C. § 441i(d) ............................................................................... 37, 38 

2 U.S.C. § 441i(e) ..................................................................................... 37 

26 U.S.C. § 527 ................................................................................... 35, 37 

District of Columbia Uniform Unincorporated Nonprofit 

Associations Act, D.C. Code § 29-971.01 ............................................. 3 

Miscellaneous 

Jack Cashill, Moore of the Same Old Stuff, 

 Ingrams Magazine, Nov. 1999 ............................................................. 21

Anthony Corrado, Party Finance in the Wake of BCRA: An Overview, 

in The Election After Reform, Money, Politics, and the Bipartisan 

Campaign Reform Act 28 (Michael J. Malbin ed., 2006) .................... 45 

Anthony Corrado & Katie Varney, Party Money in the 2006 Elections: 

 The Role of National Party Committees in Financing 

 Congressional Campaigns, 2007 Campaign Finance Institute ........... 46 

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vii 

Edward B. Foley, The “Major Purpose” Test: Distinguishing 

Between Election-Focused and Issue-Focused Groups, 

31 N. Ky. L. Rev. 341 (2004) ....................................................... 19, 41 

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GLOSSARY 

BCRA = Bipartisan Campaign Reform Act 

FEC = Federal Election Commission 

FECA = Federal Election Campaign Act 

GOTV = Get out the vote 

MCFL = Massachusetts Citizens for Life 

NCPAC = National Conservative Political Action 

Committee 

PAC = Political action committee 

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COUNTERSTATEMENT OF JURISDICTION 

 The district court had jurisdiction under 2 U.S.C. § 437h to certify to this 

Court constitutional questions raised by plaintiffs’ suit and to make factual 

findings. That same provision grants this Court, en banc, jurisdiction to answer 

those questions in the first instance. 

COUNTERSTATEMENT OF THE ISSUES 

The constitutional questions certified by the district court (J.A. 1262-263) 

are quoted in plaintiffs’ brief at pp. 1-2.1

 The district court’s proceedings raise 

another issue: 

Whether the district court erred in declining to make findings of 

fact “whether ... the challenged provisions are necessary to ward off 

corruption — or the appearance of corruption — in federal 

elections.” 

(J.A. 1261.) 

 

STATUTES AND REGULATIONS 

 Relevant statutory and regulatory provisions are set out in an addendum 

(“Add.”) to this brief. 

 

1

 “J.A. __” refers to the pages of the Joint Appendix plaintiffs filed with their 

opening brief in this section 437h proceeding and to the Joint Appendix they 

earlier filed in consolidated appeal No. 08-5223. 

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COUNTERSTATEMENT OF THE FACTS 

I. BACKGROUND 

 A. The Parties and SpeechNow.org2

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

independent agency of the United States with exclusive jurisdiction over the 

administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act, 2 U.S.C. §§ 431-455 (“Act” or “FECA”), and other statutes. 

 David Keating is the founder and one of five governing “members” of 

SpeechNow.org (“SpeechNow”) and serves as its president and treasurer. (J.A. 

1263-64, ¶¶2-3.) He personally recruited the other four individuals to serve as 

governing “members,” including Jon Coupal, president of the Howard Jarvis 

Taxpayers Association, to serve as the group’s vice president. Br. 7; J.A. 836; J.A. 

1264 ¶3. An experienced political fundraiser, administrator, and activist (J.A. 58-

59 ¶27), Keating is also the executive director of Club for Growth (id.), an 

advocacy group with a well-financed affiliated political committee. See

http://www.clubforgrowth.org/aboutus/?id=98 (visited Dec. 10, 2009). 

 Plaintiff Edward H. Crane III is another governing “member” of SpeechNow 

and also the founder and longtime president of the Cato Institute, a nonprofit 

 

2

 The Commission’s brief (at 1-5) in consolidated case No. 08-5223 (“FEC PI 

Br.”) contains additional background information about the Commission, the 

plaintiffs, and SpeechNow. 

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advocacy group. (J.A. 102 ¶2; J.A. 104 ¶8; J.A. 1263 ¶2.) Plaintiffs Fred M. 

Young, Jr., Brad Russo, and Scott Burkhardt are prospective contributors. 

Young, whom Keating met through the Club for Growth, wishes to donate 

$110,000. (J.A. 1156; J.A. 1268 ¶16.) Russo and Burkhardt wish to contribute 

$100 each. (J.A. 1269 ¶21.) Keating and Crane are also prospective donors to 

SpeechNow. (J.A. 1267-68, ¶¶15, 18.) 

 SpeechNow is an unincorporated nonprofit association organized under the 

District of Columbia Uniform Unincorporated Nonprofit Associations Act, D.C. 

Code § 29-971.01, and section 527 of the Internal Revenue Code, (J.A. 1263 ¶1.) 

The organization’s stated purpose is to “expressly advocat[e] the election of 

candidates who support rights to free speech and association and the defeat of 

candidates who oppose those rights, particularly by supporting campaign finance 

laws.” (J.A. 1266 ¶10.) 

 SpeechNow seeks to accept contributions from individuals in unlimited 

amounts to finance its candidate advocacy and administrative costs. (J.A. 420 ¶17; 

J.A. 433 ¶84; J.A. 1275 ¶39.) During this litigation, however, SpeechNow has 

refused to accept any contributions in legal amounts — including contributions as 

low as $100, which would reimburse plaintiff Keating for the out-of-pocket costs 

he has thus far incurred. (J.A. 900 ¶¶50, 52; J.A. 1159-60; J.A. 1277-78 ¶48.) 

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 The bylaws provide for the five governing “members” to delegate their 

powers to SpeechNow’s officers. (J.A. 79, art. III, §§ 1-2.) In practice, plaintiff 

Keating runs the organization on a day-to-day basis and makes virtually all the 

decisions. (See, e.g., J.A. 51 ¶4; J.A. 58-59 ¶27; J.A. 1267 ¶¶11-14.) 

 The bylaws do not require SpeechNow’s “members,” including president 

Keating, to consult with nonmember contributors. Although the organization will 

inform potential contributors that their contributions “may be used for political 

purposes such as supporting or opposing candidates” (J.A. 83, art. VI, § 11), the 

organization will also advise potential contributors that their contributions “will be 

spent according to the sole discretion” of SpeechNow (id.; J.A. 1270 ¶¶24-25, 

83 § 11). 

 B. Statutory and Regulatory Background 

The Commission’s brief in the consolidated case contains the statutory and 

regulatory background. See FEC PI Br. 5-8. 

II. COURT PROCEEDINGS 

On July 11, 2008, after the proceedings outlined in the Commission’s brief 

in No. 08-5223, the district court granted plaintiffs’ motion under 2 U.S.C. § 437h 

to certify constitutional questions for this Court to consider en banc. (J.A. 408, 

Item 35.) The parties conducted discovery and submitted proposed findings of fact 

and briefs on evidentiary and other issues. (J.A. 409-414.) On September 28, 

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2009, the district court issued its findings of fact (J.A. 1260-1283), and on October 

7, 2009, the court sent these findings and five certified questions of law to this 

Court. On October 26, 2009, this Court consolidated SpeechNow’s pending appeal 

of the denial of its motion for a preliminary injunction (No. 08-5223) with this 

section 437h merits proceeding. 

SUMMARY OF ARGUMENT 

Plaintiffs ask this Court to declare unconstitutional longstanding statutory 

provisions so that SpeechNow, an unincorporated nonprofit association organized 

under local law and 26 U.S.C. § 527, can finance candidate advocacy 

advertisements with massive contributions and with less public disclosure than 

political committees must provide. As applied to these plaintiffs, FECA’s limits 

on contributions by individuals to political committees are closely drawn to match 

the important interests in preventing corruption and its appearance. The public 

disclosure that plaintiffs seek to avoid also substantially relates to important 

governmental interests. 

1. FECA’s $5,000 annual limit on contributions by an individual to a 

political committee is constitutional as applied here under the less rigorous 

standard of scrutiny the Supreme Court uses in reviewing contribution limits. 

(Questions 1 and 2.) The Court has consistently viewed contribution limits 

differently from expenditure limits. Unlike an expenditure limit, a contribution 

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limit entails only a “marginal restriction” upon a contributor’s ability to engage in 

free communication. Buckley v. Valeo, 424 U.S. 1, 20 (1976). FECA places no 

cap on the independent expenditures SpeechNow may make. 

The transformation of contributions by SpeechNow’s donors into political 

debate will “involve[ ] speech by someone other than the contributor,” namely, a 

separate legal entity, SpeechNow. Buckley, 424 U.S. at 21. And in practice, 

Keating — the organization’s founder, president, and treasurer — controls every 

aspect of SpeechNow’s affairs, including what, when, and to whom the 

organization will communicate. The other four “members” and potential 

contributors, including the other individual plaintiffs, play a minimal or passive 

role. In contrast, an individual independent spender takes an active role in his 

political advocacy. 

Experience shows that the increasingly sophisticated methods used by 

groups devoted to independent candidate advocacy can help candidates win 

elections just as direct contributions to a candidate can do. As knowledgeable 

politicians and consultants attest, winning candidates feel indebted towards those 

who fund the groups’ ads that help elect them. Those candidates, but not 

necessarily the voting public, easily discover the identity of those contributors and 

are inappropriately disposed to favor their interests. Thus, unlimited contributions 

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to groups like SpeechNow pose a genuine risk of corruption and the appearance of 

corruption. 

Supreme Court precedent supports the constitutionality of limits on 

contributions to political committees even if those committees do not use their 

receipts to make contributions to candidates, but instead on noncoordinated 

expenditures. The Court has also recognized that tax-exempt organizations can be 

a source of potential corruption if they are engaged in noncoordinated federal 

campaign activity. 

The historical record of fundraising demonstrates that political committees 

can raise sufficient funds for effective advocacy under the existing contribution 

limits. Although the plaintiffs claim that SpeechNow cannot be effective unless it 

can accept unlimited individual contributions, the group’s experienced political 

leaders have made little effort to reach out to potential donors, including their 

extensive networks of like-minded individuals. This failure likely results from 

SpeechNow’s origin as a vehicle for this constitutional test case. 

2. FECA’s biennial aggregate limits on contributions by individuals are 

also constitutional. (Questions 1 and 3.) These biennial limits are a corollary to 

FECA’s other contribution limits and help prevent evasion of them. 

3. FECA’s facially valid political committee disclosure requirements, 

reviewed under an intermediate scrutiny standard, are constitutional as applied to 

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plaintiff Keating as SpeechNow’s treasurer and president. (Questions 4 and 5.) 

They serve important interests: informing voters; deterring actual corruption and 

its appearance; and gathering data to detect violations of FECA. Those 

requirements provide more information to the electorate about the financing of 

organizations like SpeechNow, whose major purpose is to elect or defeat 

candidates, than do the reporting and disclaimer requirements for independent 

expenditures made by persons other than political committees. 

Keating’s proposal to postpone registering SpeechNow as a political 

committee until it makes $1,000 in independent expenditures would make it more 

difficult for voters to monitor the role of contributors in public policy formation 

and to know the funding behind advertising campaigns when they are aired. 

FECA’s disclosure requirements are not unduly burdensome for 

nonconnected political committees. Keating is a veteran political fundraiser and 

administrator and has admitted that he “can handle” the duties of a political 

committee treasurer. 

4. The district court erred in limiting its findings to the immediate parties 

in this case and declining to make findings regarding whether the statutory 

provisions at issue serve to reduce the danger of corruption and its appearance. In 

deciding constitutional challenges to campaign finance laws, courts have 

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repeatedly relied upon information, including “legislative facts,” about the actual 

practice of fundraising and campaigning. 

ARGUMENT 

I. PLAINTIFFS CHALLENGE ONLY CONTRIBUTION 

RESTRICTIONS, WHICH PREVENT CORRUPTION BUT DO 

NOT LIMIT THEIR SPEECH 

The Supreme Court has consistently viewed contribution limits differently 

from expenditure limits. See, e.g., Buckley v. Valeo, 424 U.S. 1, 19-23 (1976); 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 386-88 (2000). 

“[E]xpenditure limitations impose far greater restraints on the freedom of speech 

and association” than contribution limits do. Buckley, 424 U.S. at 44. A 

contribution limit “entails only a marginal restriction upon the contributor’s ability 

to engage in free communication.” Buckley, 424 U.S. at 20. “While contributions 

may result in political expression if spent by a candidate or an association to 

present views to the voters, the transformation of contributions into political 

debate involves speech by someone other than the contributor.” Id. at 21. 

Contribution limits leave contributors free to participate in political associations 

and, for those people who would otherwise contribute greater amounts than the 

statutory limits, to spend those extra funds on “direct political expression.” Id.

at 21-22; see also infra pp. 25-26. 

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 Regarding independent expenditures, the Supreme Court has not found, as a 

matter of law or fact, that they lack all potential to corrupt. The Court in Buckley 

instead found that independent spending then appeared to pose less danger of 

corruption than contributions to candidates did; the reduced danger was 

insufficient to justify the severe burden on speech of a ceiling on independent 

expenditures. See FEC PI Br. 24-25. 

 Because of these differences, the Court examines expenditure restrictions 

under a “strict scrutiny” standard but contribution limits under a less rigorous 

standard. See, e.g., McConnell v. FEC, 540 U.S. 93, 134-36 (2003); FEC v. 

Beaumont, 539 U.S. 146, 161 (2002); Shrink Missouri, 528 U.S. at 387-88. A 

contribution limit is valid if it satisfies the “lesser demand” of being “closely 

drawn” to match a “sufficiently important interest.” Shrink Missouri, 528 U.S. at 

387-88. 

Plaintiffs challenge only statutory contribution limits; FECA places no cap 

on the amount of independent expenditures that SpeechNow may make. Applying 

the lesser standard of scrutiny, this Court should uphold 2 U.S.C. § 441a(a)(1)(C) 

as applied to plaintiffs. 

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A. SpeechNow’s President Will Decide How to Spend the Other 

Plaintiffs’ Contributions 

 This case presents the quintessential example of “the transformation of 

contributions into political debate involv[ing] speech by someone other than the 

contributor.” Buckley, 424 U.S. at 21. See FEC PI Br. 46-47. 

Evidence supplied by the individual plaintiffs and SpeechNow shows that 

one person decides what, when, and to whom the organization will communicate: 

Plaintiff David Keating, SpeechNow’s founder, president, and treasurer. (See, e.g.,

J.A. 898-906, ¶¶41-77; J.A. 1267 ¶¶11-14; J.A. 1273 ¶34.) The other four 

governing “members” play minimal or passive roles, and the organization’s other 

contributors will play no role whatsoever. (J.A. 895 ¶30; J.A. 898-901, 903-04, 

906; J.A. 1270 ¶¶24-25.) For example, plaintiff Young does not “expect to be 

involved other than as a donor”; besides certain tasks related to this litigation, his 

role in the organization has been “completely passive.” (J.A. 903 ¶¶63, 65.) 

Indeed, SpeechNow’s bylaws state that donors will not play a role in determining 

how their donations will be spent, and only some of the organization’s solicitations 

will even refer to particular federal candidates by name. (J.A. 1270 ¶¶23-25.) 

 Keating administers all the organization’s affairs and is solely responsible 

for its day-to-day activities. (J.A. 1264¶3; J.A. 1267 ¶11.) He created and 

controls the organization’s website, decides in which elections SpeechNow will 

run express advocacy advertisements, personally selected the candidates for 

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SpeechNow to support or oppose in 2008, and expects to pick the candidates that 

SpeechNow will support or oppose in future elections, with possible help of paid 

staff. (J.A. 899-901, ¶¶47-48, 54; J.A. 1267 ¶¶12-14; J.A. 1273 ¶34.) Keating 

personally wrote the scripts for SpeechNow’s first proposed advertisements in 

2008, and expects that he will write future SpeechNow express advocacy 

advertisements. (J.A. 901-02, ¶58; J.A. 1267 ¶13.) 

 These circumstances illustrate that “[t]he quantity of communication by the 

contributor does not increase perceptibly with the size of his contribution, since 

the expression rests solely on the undifferentiated, symbolic act of contributing.” 

Buckley, 424 U.S. at 21. Plaintiffs’ circumstances contrast sharply with those in 

which individuals make independent expenditures, help create or oversee the 

messages, and thereby speak in their own voices. 

B. Unlimited Contributions to Groups Devoted to Independent 

Candidate Expenditures Pose a Danger of Corruption 

Large contributions to groups that make independent expenditures can lead 

to corruption and its appearance. Because large contributions to those groups help 

candidates win elections as surely as direct contributions to a candidate’s campaign 

do (see J.A. 907-925, 936 ¶¶79-131, 166), candidates are inappropriately disposed 

to favor individuals who make contributions to pay for independent expenditure 

ads (see J.A. 948-52, ¶¶203-218). The Supreme Court has never doubted the 

“importance of the governmental interest in preventing” the “problem of 

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corruption of elected representatives through the creation of political debts.” First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 787 n.26 (1978). 

Candidates feel indebted towards those who fund ads that help elect them. 

(J.A. 948-52, ¶¶203-18.) As former Senator Alan Simpson explained, “Members 

realize how effective these ads are, and they may well express their gratitude to the 

individuals and groups who run them.” (J.A. 950 ¶212.) As former Montana 

Representative Pat Williams stated, party and outside interest advertisements “can 

be the functional equivalent of a campaign contribution.” (J.A. 951 ¶215.) “The 

notion that campaign funds must be given directly to candidates before they feel 

obligated to a major financial backer is, simply, not true.” (J.A. 951 ¶216 (quoting 

former California state legislator Ross Johnson).) 

 Candidates, party officials, consultants, and interest group activists almost 

universally agree that independent advertising and candidate-focused issue 

advocacy helps candidates win elections. (J.A. 908-09, ¶¶82, 87; see also J.A. 

907-25, ¶¶79-131.) “Independent advertising campaigns,” explained former 

Senate Majority Leader Tom Daschle, “can provide huge benefits to candidates.” 

(J.A. 908 ¶84.) Numerous ad campaigns are well-known for their effect on 

election results, from the Willie Horton (J.A. 912 ¶97) and Swift Boat Veterans 

and POWs for Truth (“Swift Boat”) ads (J.A. 912-15, ¶¶99-106), to Progress for 

America Voter Fund’s (“PFA”) pro-Bush “Ashley’s Story” ad campaign (J.A. 915 

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¶107). Empirical analyses confirm their effectiveness. (J.A. 907-08, 912-18, 

¶¶80-81, 96-115.) For example, the Swift Boat ads in Florida were the most 

remembered by all demographic groups, more than any ads run by the candidates 

themselves or the political parties. (J.A. 914-15, ¶¶104-105.) 

 Over the past several election cycles, the quality and impact of independent 

expenditures and candidate-focused “issue advocacy”3

 have increased — as has 

their value to candidates — as those who run them continue to learn the lessons of 

past campaigns. (J.A. 918-20, ¶¶116-21.) These ad campaigns are increasingly 

designed and pretested by professionals, including general political strategists, 

pollsters, and media consultants. (J.A. 918-19, 1001-02, ¶¶117, 362.) Groups use 

focus groups, large surveys, and tracking polls to study the impact of independent 

expenditures and improve them. For example, the AFL-CIO and the National 

Federation of Independent Businesses have used pre- and post-election polls and 

focus groups to more productively contact and mobilize voters, as has the National 

Rifle Association, whose sophisticated campaign in the 2000 presidential election 

has been credited with ensuring Bush’s victory in West Virginia. (J.A. 919-20, 

¶¶118-19.) 

 

3

 Candidate-focused “issue advocacy” does not include express words of 

candidate advocacy. Past spending on this advocacy is relevant here because it 

was often funded by organizations that received large contributions from 

individuals. (J.A. 911 ¶95.) 

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 Independent groups can effectively supplement their preferred candidates’ 

campaign efforts without directly coordinating with them. (J.A. 910-11, 920-25, 

¶¶93, 122-31.) Those who run independent groups are often campaign veterans 

who understand how to monitor candidate media buys and know how to echo and 

supplement candidate messages. (J.A. 921 ¶123.) For example, independent 

groups like MoveOn.org and The Media Fund achieved “striking synchronicity” 

with the Kerry Campaign by monitoring its media purchases. (J.A. 924 ¶129.) 

Similarly, Let Freedom Ring, a section 501(c)(4) group organized in 2004, did not 

need to consult Bush-Cheney officials to learn that evangelical voters were a key 

part of the campaign’s strategy and thus to concentrate the group’s efforts on those 

voters in swing states. (J.A. 922-23 ¶126.) As plaintiff Keating concedes, 

independent ads run by Club for Growth — where he serves as Executive Director 

— have not been counterproductive to the candidates the group supported. (J.A. 

909, 916-17, ¶¶89, 111.) 

 Independent expenditures almost always benefit a candidate, whether their 

goal is to mobilize voters on his behalf or to turn opinion against an opponent. 

(J.A. 953 ¶222.)4

 Thus, although a candidate might typically prefer to control 

campaign spending directly, he would almost always prefer a $100,000 

independent expenditure over a direct contribution of $5,000. (Id.) Indeed, a 

 

4

 While not all independent ads help candidates, Buckley, 424 U.S. at 46-47, 

even some candidates’ own advertising backfires. (J.A. 910-11 ¶93.) 

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contribution to an independent group to run ads can often be more important than a 

direct contribution in at least one crucial respect: Ad campaigns run by interest 

groups allow candidates to keep their distance from hard-hitting, negative 

campaigns that attack their opponents. (J.A. 954-59, ¶¶226-40.) The Swift Boat 

ads, for example, were more effective than a similarly-sized contribution: They 

delivered a message that would have risked a backlash if run by the campaign 

itself. (J.A. 955-56, 958, ¶¶232, 238.) Although candidates may disavow these 

ads publicly, they or party insiders will also often call for support from 

independent groups, or will otherwise give their quiet blessing to independent 

expenditure campaigns. (J.A. 955-57, ¶¶230-36.) 

Large contributions to groups that make independent expenditures lead to 

preferential access for donors and undue influence over officeholders. (J.A. 968-

73, ¶¶275-86.) “While the public may not have been fully informed about the 

sponsorship of so-called issue ads [run by the parties at that time], the record [in 

McConnell] indicate[d] that candidates and officeholders often were.” 540 U.S. at 

128-29. “Members of Congress and federal candidates [we]re very aware of who 

ran advertisements on their behalf,” and “fe[lt] indebted to those who spend money 

to help them get elected.... ‘In fact, Members w[ere] also ... favorably disposed to 

those who finance these groups when they later s[ought] access to discuss pending 

legislation.’” McConnell v. FEC, 251 F. Supp. 2d 176, 556 (D.D.C. 2003) (Kollar16 

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Kotelly, J.) (quoting former Senator Bumpers). For example, donors to Club for 

Growth have gained access to candidates and elected officials through forums 

offered by the group, including luncheons, conferences, and conference calls that 

allow contributors to communicate with them. (J.A. 972-73, ¶¶282-86.) 

According to Keating, those members who contributed the most were invited to 

participate in the conference calls. (J.A. 973 ¶286.) 

History demonstrates that influence-seeking donors will make large 

contributions to any type of group, whether formally connected to candidates or 

not, if it may incur a candidate’s indebtedness. (J.A. 927-35, ¶¶137-62.) One 

particularly well-known example involved contributions to a section 501(c) 

nonprofit organization by banker Charles Keating, who attempted to defeat 

proposed savings-and-loan legislation not only through direct contributions, but 

also through contributions to a voter mobilization organization. Charles Keating 

made his largest contribution to a nonprofit organization headed by Senator Alan 

Cranston’s son, an organization created to mobilize Democratic voters to help 

Cranston win his next election. Cranston acknowledged the connection between 

this assistance and Keating’s request for policy intervention, when he patted 

Charles Keating on the back at a dinner and said, “Ah, the mutual aid society.” 

Keating’s activities led to a broad investigation and in some cases Senate 

sanctions. (J.A. 931-32, ¶¶151-53.) 

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 Since BCRA banned the receipt of soft money by national parties, influenceseeking donors have increasingly contributed to independent groups, including 

section 501(c) and 527 organizations committed to electing or defeating 

candidates, but purporting not to be “political committees” under FECA. (J.A. 

931-35, ¶¶150-62.) Data on contributions to section 527 organizations from the 

two full election cycles since the soft money ban went into effect show that some 

donors who wish to influence election outcomes have given far more than they are 

permitted through hard money limits. (J.A. 933, ¶158.) In fact, much of the 

money raised by such 527 groups in the 2004 election cycle came from former soft 

money donors: Of the 113 individuals who contributed at least $250,000 to 527 

groups, two-thirds had previously given substantial sums of soft money to political 

parties. (J.A. 932, 934, ¶¶155, 159.) The contributors to such independent 

spending campaigns were, as former Senate Majority Leader Tom Daschle stated, 

“clearly avoiding contribution limits in order to gain access or to influence policy 

making.” (J.A. 932 ¶154.) “There is no question that people [have] use[d] them as 

a way around contribution limits,” and if unlimited contributions for independent 

spending were permitted, the Court would be making permanent “a loophole the 

size of the Washington monument.” (Id.) 

 The proliferation of independent groups devoted to electing or defeating 

single candidates further suggests that large donors give to independent groups to 

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circumvent contribution limits to candidates, and to make their identities less 

transparent to the public. (J.A. 941-42, ¶¶181-84.) Indeed, groups supporting 

fewer candidates provide a particularly troubling opportunity for corruption and 

the appearance of corruption. See Edward B. Foley, The “Major Purpose” Test: 

Distinguishing Between Election-Focused and Issue-Focused Groups, 31 N. Ky. L. 

Rev. 341, 346 (2004) (“Foley”) (“[W]hen a political committee is focused on 

electing one particular candidate (or defeating that candidate’s opponent), a largedollar gift to that political committee is almost as good as a large-dollar gift to the 

candidate’s own campaign would be as a means to secure improper favoritism 

from that candidate once in office.”). 

Donors seeking access and influence care mostly that their contributions are 

noticed and appreciated by the candidate, not that they are received directly by the 

candidate’s committee. (J.A. 927-28 ¶139.) A dense web of relations between 

outside groups, candidates, and parties typically ensures that candidates do indeed 

take notice of help provided by the groups and who donates to them. (J.A. 944, 

946-48, 960-65, ¶¶192, 198-203, 248-66.) In 2004, leaders from both major 

parties helped independent groups raise money by signaling their approval to 

potential donors. RNC Chairman Ed Gillespie and Bush-Cheney Campaign chair 

Marc Racicot both listed Progress for America as a group that could legally engage 

Democrats. (J.A. 964 ¶263.) Former Clinton Chief of Staff Harold Ickes, who ran 

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The Media Fund, as well as Ellen Malcolm, president of Americans Coming 

Together, reassured donors of their relationship to the campaigns. Their message 

was, “We don’t talk to the campaigns, are not connected to them, but they know 

and appreciate us and contributions are part of the public record and they are 

aware.” (J.A. 963, ¶259.) 

Candidates can easily learn the identity of the large contributors to 

independent candidate groups. (J.A. 942-48, ¶¶185-202.) The people who solicit 

large contributions are typically former or current party officials, former 

officeholders, or others who can keep score, and donors gladly tell candidates and 

party leaders of their contributions to groups that have helped the candidate. (J.A. 

944, 946-48, 960-65, ¶¶192-93, 198-203, 248-66.) In testimony before the Senate, 

political scientist Michael Malbin of the Campaign Finance Institute summarized 

the danger of permitting unlimited contributions to groups closely tied to parties 

and candidates: “With almost all of the 527s associating themselves with the two 

major parties and their candidates, and with the great majority of contributions 

coming from donors giving in the millions, rather than thousands or even tens of 

thousands of dollars, big 527 donors today are positioned to garner more attention 

and consideration from parties and candidates than those who give the maximum 

direct contribution of $2,000-$25,000.” (J.A. 936, ¶167.) 

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 Events at the federal and state level demonstrate that large contributions to 

groups that make independent expenditures can influence official legislative 

action, and thus pose a danger of actual quid pro quo arrangements. (J.A. 973-87, 

¶¶287-314.) According to Senator McCain, just before a key 1998 vote on tobacco 

legislation, Senator Mitch McConnell promised fellow Republican Senators that 

the tobacco industry would mount a television campaign financed with soft money 

to support senators who voted to kill the legislation. (J.A. 985, ¶309.) Also in 

1998, the Wyandotte Tribe of Oklahoma attempted to change Congressman 

Vincent Snowbarger’s position on legislation involving a casino by offering to 

make a substantial independent expenditure in support of his re-election campaign. 

(J.A. 974-78, ¶¶288-97.) Snowbarger’s campaign manager received a fax 

outlining a “win-win” scenario that linked campaign assistance — in the form of 

substantial independent spending — to the Congressman’s support for the 

Wyandotte bill. (Id.)5

 The Wyandottes’ offer unquestionably involved an attempt 

to make an independent expenditure after a “wink or nod,” which is often “as 

useful to the candidate as cash.” FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431, 442, 446 (2001) (“Colorado II”).

 

5

 The United States Attorney declined to prosecute, finding that the offer “‘did 

not establish a criminal violation.’” Jack Cashill, Moore of the Same Old Stuff, 

Ingram’s Magazine, Nov. 1999, FEC Exh. 112 at 20, Dkt. No. 45-10 at 48 (quoting 

United States Attorney) . 

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The actions of Charles Chvala, former majority leader of the Wisconsin 

State Senate, provide another example. (J.A. 978-85, ¶¶298-308.) According to 

witnesses in the resulting criminal investigation, Chvala frequently held meetings, 

called “cattle calls,” where he encouraged lobbyists who had maxed out their 

giving to other sources to make contributions to groups that made independent 

expenditures. (Id.) During these cattle calls, Chvala would discuss the legislative 

interests of the lobbyists’ clients and how each client could assist Democratic 

senatorial candidates by giving directly to the candidate or parties — or by giving 

to groups that ran independent expenditures or candidate-focused issue ads.6

 (Id.) 

According to a lobbyist at these cattle calls, Chvala would often indicate that no 

matter where the contribution went, candidates would know that a contribution was 

made and would appreciate the support. (J.A. 980, ¶301.) 

 “Congress’ legitimate interest extends beyond preventing simple cash-forvotes corruption to curbing ‘undue influence on an officeholder’s judgment, and 

the appearance of such influence.’” McConnell, 540 U.S. at 150 (quoting 

Colorado II, 533 U.S. at 441); see also id. at 152 (rejecting a “crabbed view of 

corruption” that “ignores precedent, common sense, and the realities of political 

 

6 Although some of the resulting advertisements may deserve treatment as 

coordinated expenditures, these events illustrate the value that candidates place on 

purportedly independent expenditures and their potential to corrupt; this danger 

exists whether or not the collaboration is sufficiently substantial to count as legal 

coordination. 

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fundraising”); Shrink Missouri, 528 U.S. at 389 (“[W]e recognized a concern not 

confined to bribery of public officials, but extending to the broader threat from 

politicians too compliant with the wishes of large contributors.”). The contribution 

limits at issue here are thus justified not only by the danger of quid pro quos but 

also by the distortion of the legislative process that would arise from the more 

general sense of obligation that officeholders would feel if contributors were 

permitted to make unlimited contributions to major-purpose groups to fund 

independent expenditures. 

“Of almost equal concern as the danger of actual quid pro quo arrangements 

is the impact of the appearance of corruption.” Buckley, 424 U.S. at 27. The 

public views large contributions to fund independent expenditures as potentially 

corruptive. For example, independent expenditures in a 2004 judicial election in 

West Virginia created an empirically documented appearance of corruption. (J.A. 

988-93, ¶¶317-32.) Don Blankenship, the chief executive of Massey Coal, a 

company with a high-profile case on appeal to West Virginia’s Supreme Court of 

Appeals, provided the bulk of the funding — approximately $3,000,000 — to 

“And for the Sake of the Kids,” an innocently named 527 group that ran 

independent expenditures against one of the court’s incumbent justices and helped 

defeat him. (Id.) After the justice elected with Blankenship’s help refused to 

recuse himself from Massey’s appeal, a telephone poll of West Virginians revealed 

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that more than two-thirds doubted that he could be impartial. (J.A. 991-92, ¶328.) 

West Virginia Supreme Court of Appeals Justice Larry Starcher shared that doubt 

and explained that “[m]illions of dollars in electoral support by the CEO of an 

active litigant in the court is clearly sufficient to create an appearance of 

corruption.” (J.A. 992, ¶330.)7

 

Recent polling confirms that the public views contributions to groups to run 

candidate ads are just as likely to lead to corruption as contributions made directly 

to candidates. (J.A. 993-95, ¶¶333-41.) In a nationwide poll conducted in August 

2008 by Zogby International, a significant majority of survey respondents 

indicated that large contributions to groups to spend on advertising campaigns 

supporting congressional candidates are just as likely to lead to “political favors” 

or “special consideration” as direct contributions to candidates. (J.A. 993-94, 

¶¶333-36.) The poll regarding Blankenship’s contributions in West Virginia (J.A. 

991-92, ¶328) as well as a survey conducted during the McConnell litigation (J.A. 

995 ¶340) yielded findings similar to Zogby’s. The public thus seems to agree 

with Ross Johnson, longtime Republican state legislator and current Chairman of 

the California Fair Political Practices Commission, who says, “[T]he notion that 

 

7

 In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the 

Supreme Court held that in light of the “extraordinary” amount of independent 

expenditures and contributions to fund independent expenditures by Blankenship, 

the recusal failure violated plaintiff’s due process rights. 

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the only way you can exercise undue influence over a candidate or officeholder is 

by handing them a check directly ... is absurd on its face.” (J.A. 953-54 ¶225.) 

C. Supreme Court Precedent Supports the Constitutionality of 

Limits on Contributions to Political Committees that Make Only 

Independent Expenditures 

 The $5,000 annual limit on an individual’s contributions to multi-candidate 

political committees helps prevent corruption and the appearance of corruption. In 

upholding contribution limits to candidates and political committees generally, the 

Supreme Court in Buckley explained why contribution limits are a more marginal 

restriction on speech than expenditure limitations are: They (1) “leave the 

contributor free” to participate in “any political association and to assist 

personally” in the association’s electoral efforts, 424 U.S. at 22; (2) “permit 

associations and candidates to aggregate large sums of money to promote effective 

advocacy,” id.; (3) “merely ... require candidates and political committees to raise 

funds from a greater number of persons,” id.; and (4) “compel people who would 

otherwise contribute amounts greater than the statutory limits to expend such funds 

on direct political expression,” id. The “overall effect of the Act’s contribution 

ceilings,” the Court concluded, does not “reduce the total amount of money 

potentially available to promote political expression.” Id. at 21-22; see also id.

at 29. 

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Contribution limits are thus “closely drawn to avoid unnecessary abridgment 

of associational freedoms.” Buckley, 424 U.S. at 25. Bribery laws are not by 

themselves sufficient because they “deal with only the most blatant and specific 

attempts of those with money to influence governmental action.” Id. at 28. Nor do 

disclosure laws alone suffice, for “Congress was surely entitled to conclude that 

disclosure was only a partial measure, and that contribution ceilings were a 

necessary legislative concomitant.” Id.

As the Commission has explained (FEC PI Br. 24-33), Buckley and other 

major Supreme Court decisions support the constitutionality of the limits on 

contributions to political committees that make only independent expenditures. 

Plaintiffs misread those cases. They mistakenly rely, for example, on certain 

remarks in Justice Blackmun’s solo opinion in California Medical Association v. 

FEC, 453 U.S. 182, 202-03 (1981) (“CalMed”). As the Commission has explained 

(FEC PI Br. 27), these are dicta. Indeed, plaintiffs concede (Br. 37) that Justice 

Blackmun’s concurrence “by itself” may not be “binding precedent.” See also

SpeechNow’s opening brief at 40 in No. 08-5223. 

Contrary to plaintiffs’ alternative argument in their merits brief (Br. 36), 

Justice Blackmun’s concurrence does not control the “holding” of CalMed under 

Marks v. United States, 430 U.S. 188 (1977). The Supreme Court attempted in 

Marks to give lower courts guidance on how to interpret plurality Supreme Court 

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decisions: “When ... no single rationale explaining the result enjoys the assent of 

five Justices, the holding of the Court may be viewed as that position taken by 

those Members who concurred in the judgments on the narrowest grounds.” Id.

at 193 (internal quotation marks omitted). 

The Supreme Court has since expressed doubt whether the Marks inquiry 

helps the lower courts. It “is more easily stated than applied,” the Court 

commented, and should not be “pursue[d] ... to the utmost logical possibility when 

it has so obviously baffled and divided the lower courts that have considered it.” 

Nichols v. United States, 511 U.S. 738, 745-46 (1994); Grutter v. Bollinger,

539 U.S. 306, 325 (2003) (same). In the D.C. Circuit’s view, “Marks is workable 

... only when one opinion is a logical subset of other, broader opinions.” King v. 

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991). That is, “the narrowest opinion must 

represent a common denominator of the Court’s reasoning; it must embody a 

position implicitly approved by at least five justices who support the judgment.” 

Id. 

Justice Blackmun’s concurrence in CalMed did not represent any such 

“common denominator,” however, because his remarks about groups that make 

only independent expenditures were dicta that were neither joined by any other 

Justice nor a logical subset of a position approved by five Justices. That majority 

position upheld the constitutionality of contribution limits as applied to a political 

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committee that made both contributions and independent expenditures; even 

Justice Blackmun agreed that an organization that engages in both kinds of 

spending could be required to abide by the $5,000 limit on the contributions it 

receives — even if some of that money would eventually be spent on independent 

expenditures. See 453 U.S. at 203. Thus, Justice Blackmun’s remarks about 

committees that make only independent expenditures do not “embody a position 

implicitly approved by at least five Justices who support the judgment.” King v. 

Palmer, 950 F.2d at 781. See EMILY’s List v. FEC, 581 F.3d 1, 37 n.14 (D.C. Cir. 

2009) (Brown, J., concurring in part) (“[T]he controlling part of Justice 

Blackmun’s opinion is the holding that the FEC may constitutionally regulate 

contributions to fund independent political expenditures without contravening the 

First Amendment...”). 

 Moreover, a plurality of the Court in CalMed rejected an argument similar to 

one plaintiffs raise here. The association in CalMed argued that its contributions to 

a multicandidate political committee were constitutionally equivalent to 

independent expenditures and that contributing to the committee was simply “the 

manner in which [the group] ha[d] chosen to engage in political speech.” 453 U.S. 

at 196. The Court’s plurality disagreed: The political committee annually received 

contributions from a number of persons, so the recipient committee was not simply 

the association’s “mouthpiece.” Id. The recipient political committee was 

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“a separate legal entity,” id., and, as in Buckley, “‘the transformation of 

contributions into political debate involves speech by someone other than the 

contributor.’” Id. at 197 (quoting Buckley, 424 U.S. at 21; emphasis added in 

CalMed). The plurality noted that “sympathy of interests alone does not convert 

[the political committee’s speech] into that of [the contributor association].” Id. at 

196. Plaintiffs’ case presents the same fact pattern: Rather than making 

independent expenditures as individuals, plaintiffs will make contributions to a 

separate legal entity, SpeechNow, which will pay for the group’s independent 

expenditures in its own name, as directed by one person, David Keating. 

In any event, McConnell put to rest any doubts about the meaning of 

CalMed on the dispositive issue here. As we have explained (FEC PI Br. 29-33), 

McConnell’s analysis of the underlying logic of CalMed shows that the 

constitutionality of the applicable contribution limit did not depend upon the 

recipient political committee’s using its funds to make contributions. 540 U.S. 

at 152 n.48. Plaintiffs misread (Br. 39) this explication. In upholding the soft 

money restrictions in Title I of the Bipartisan Campaign Reform Act (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81 (2002), the Court in McConnell indicated that 

contributions to political committees can be limited even if those funds are used to 

pay for noncoordinated expenditures. The Court stated that CalMed “upheld 

FECA’s $5,000 limit on contributions to multicandidate political committees.” 

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McConnell, 540 U.S. at 152 n.48. As the Court explained, in light of FECA’s 

definition of “contribution,” the $5,000 limit encompasses the source and amount 

of funds available to “political committees ... to engage in express advocacy and 

numerous other noncoordinated expenditures.” Id. That limit on contributions to 

multicandidate political committees would have been overbroad, the Court further 

explained, if Congress had the constitutional authority only to prevent individuals 

from using political committees as pass-throughs to circumvent FECA’s limit on 

the amount an individual can contribute to a candidate. Id. 

Plaintiffs belittle (Br. 39) this explanation because it appears only “in a 

single footnote.” But the Supreme Court has often used footnotes for significant 

matters, as it did, for example, in Buckley’s famous footnote using “magic words” 

in explaining express advocacy. 424 U.S. at 44 n.52. See also, e.g., United States 

v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (oft-cited footnote). 

Plaintiffs also ignore the McConnell footnote’s pointed reference to “express 

advocacy and numerous other noncoordinated expenditures” — precisely the 

activities SpeechNow proposes to undertake. And as we have explained (FEC PI 

Br. 32), McConnell’s clarification of CalMed was not dicta because Title I’s soft 

money ban was directed at incoming contributions that would not be spent on 

contributions to candidates. The McConnell plaintiffs never suggested that they 

had a right to accept unlimited soft money to make candidate contributions. Thus, 

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the Court did not uphold Title I based on its ability to prevent circumvention of the 

limits on direct contributions to candidates, but instead on its ability to prevent 

corruption connected with other forms of campaign spending, including 

independent expenditures.8

Thus, McConnell interprets CalMed as finding constitutional the 

contribution limits to political committees even if those committees ultimately 

spend the money on noncoordinated expenditures. CalMed’s discussion of 

earmarking contributions to a political committee for administrative expenses 

reveals why that reading makes sense. “If unlimited contributions for 

 

8

 In arguing for their interpretation of McConnell, plaintiffs rely in part on the 

panel majority’s opinion in EMILY’s List, which they characterize as “Circuit 

precedent,” which “should not be overturned lightly.” (Br. 22 & n.5.) A holding 

(but not dicta) of a panel binds only another three-judge panel, not this Court en 

banc. See, e.g., Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 897 (D.C. 

Cir. 1992). EMILY’s List did not involve a challenge to the contribution limits in 

2 U.S.C. § 441a(a)(1)(C); instead, it held invalid three Commission regulations not 

at issue here. But even if the holding in EMILY’s List were viewed as 

encompassing an issue common to this case, the holding would not bind this Court 

en banc. The panel majority’s opinion would effectively prejudge this case, and 

thus would undermine the authority of the en banc Court. And this result would 

also directly conflict with Congress’s directive that, in suits brought under 2 U.S.C. 

§ 437h, an appellate court en banc decide in the first instance constitutional 

challenges to FECA’s provisions. Finally, the EMILY’s List panel opinion 

possesses none of the characteristics that might warrant heightened deference on 

subsequent review. See United States v. Bailey, 36 F.3d 106, 110-11 (D.C. Cir. 

1994) (en banc) (stating that en banc court reviews longstanding statutory 

constructions, but not constitutional interpretations, “gingerly” and that “less 

weighty” concerns arise when court reviews an issue for the first time), rev’d on 

other grounds, 516 U.S. 137 (1995). 

 

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administrative support are permissible, individuals and groups like [CalMed] could 

completely dominate the operations and contribution policies of independent 

political committees.” 453 U.S. at 198 n.19. A committee’s main supporter might 

well dictate how the committee would use its contributions for election-related 

activity. Id. The supporter would then be able to “influence the electoral process 

to an extent ... far greater than the individual or group that finances the 

committee’s operations would be able to do acting alone.” Id. That person could 

thereby “corrupt the political process in a manner that Congress, through its 

contribution restrictions, has sought to prohibit.” Id. 

Four years after CalMed, the Supreme Court again recognized that when a 

groups receives small contributions, that lowers the risk of corruption from its 

independent expenditures. In FEC v. National Conservative PAC, 470 U.S. 480 

(1985) (“NCPAC”), the Court contrasted the small contributions that the two 

political committees at issue raised — averaging $25 and $75 per contributor 

respectively, from approximately 200,000 donors — and sought to use to finance 

independent expenditures, with the large amounts above the $5,000 limit that the 

entity in CalMed wished to contribute. Id. at 494-95. The Court noted that the 

contributions to the political committee in NCPAC were “predominantly small and 

thus do not raise the same concerns as the sizable contributions involved” in 

CalMed. Id. at 495. 

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Similarly, before McConnell expounded CalMed, the Supreme Court had 

explicitly acknowledged that limits on contributions to entities making independent 

expenditures permissibly function as an anti-corruption measure. In Colorado 

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

(“Colorado I”), the Court held that political parties have the same First 

Amendment right to make independent expenditures that other groups and 

individuals enjoy. The Court nevertheless recognized that “[t]he greatest danger of 

corruption ... appears to be from the ability of donors to give sums up to $20,000 to 

party which may be used for independent party expenditures for the benefit of a 

particular candidate.” Id. at 617. Addressing this concern, the Court stated that it 

“could understand” that Congress might decide, as a consequence, “to change the 

statute’s limitations on contributions to political parties” to lower the danger of 

corruption. Id. The Court then cited CalMed’s plurality opinion as support for this 

proposition. Id.

Plaintiffs also misread FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) (“MCFL”). See, e.g., Br. 34, 41, 51-54; FEC PI Br. 27-28. 

A nonprofit ideological corporation, MCFL engaged in various educational and 

legislative activities to further its agenda and accepted no donations from business 

corporations or unions. Id. at 241-42. It only occasionally engaged in electoral 

express advocacy, which it financed from its corporate treasury. The Court 

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concluded that FECA’s provision prohibiting expenditures of corporate treasury 

funds for independent express advocacy communications could not constitutionally 

apply to MCFL. But the Court warned that MCFL could still be regulated as a 

political committee if its spending changed: “[S]hould MCFL’s independent 

spending become so extensive that the organization’s major purpose may be 

regarded as campaign activity, the corporation would be classified as a political 

committee.” 479 U.S. at 262. It would then “automatically be subject to the 

obligations and restrictions applicable to those groups whose primary objective is 

to influence political campaigns.” Id.

 Contrary to Keating’s repeated assertion (e.g., Br. 20, 51, 52, 55), these 

statements are not dicta. Rather, having found that MCFL was exempt from the 

statutory corporate prohibition, the Court explained the scope of that constitutional 

exemption. The Court limited it to certain nonprofit corporations whose 

independent expenditures, unlike SpeechNow’s proposed expenditures, are not so 

extensive as to become the organization’s major purpose.9

 

 As the Commission has explained (FEC PI Br. 6), although FECA defines 

“political committee” solely in terms of $1,000 thresholds for “expenditures” or 

“contributions,” 2 U.S.C. § 431(4)(A), Buckley narrowed the reach of the statutory 

 

9

 Even if the quoted statements in MCFL are dicta, Supreme Court dicta 

“‘generally must be treated as authoritative.’” Southern Nuclear Operating Co. v. 

NLRB, 524 F.3d 1350, 1356 (D.C. Cir. 2008) (quoting United States v. Oakar,

111 F.3d 146, 153 (D.C. Cir. 1997)). 

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language. It did so out of concern that the language could encompass groups 

engaged primarily in issue advocacy, which Congress has less power to regulate. 

See 424 U.S. at 79. Under the Court’s narrowing construction, a group will not be 

considered a “political committee” under FECA unless, in addition to crossing the 

monetary threshold, it is “under the control of a candidate” or its “major purpose ... 

is the nomination or election of a candidate.” Id. The Court in MCFL repeated 

that language. 479 U.S. at 252 n.6. Thus, as glossed by the Court, the definition of 

“political committee” now includes both a monetary (statutory) threshold and the 

Court’s “major purpose” test. (Plaintiffs concede that, once they undertake the 

actions they propose, SpeechNow will satisfy the criteria for political committee 

status. (E.g., J.A. 422-23, 426 ¶¶26, 31, 48; J.A. 1274, 1279 ¶¶37, 53.) Plaintiffs’ 

attack on the major purpose test seems to ignore the fact that, without the test, 

SpeechNow would become a political committee simply by crossing the $1,000 

contribution or expenditure threshold in 2 U.S.C. § 431(4)(A).) 

The context in which the Supreme Court added the major purpose test 

proves that it applies to groups that make independent expenditures: The Court 

introduced the test in examining FECA’s disclosure requirements for those very 

expenditures. Buckley, 424 U.S. at 78-81. And the Court later reaffirmed the test 

in MCFL, which, as we have explained, concerns a nonprofit, ideological 

corporation that made occasional independent expenditures, not contributions. 

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Moreover, fourteen years ago, in a 9-2 decision, this Circuit criticized the 

Commission for applying the “major purpose” test to groups that make 

contributions, and stated that Buckley’s narrowing construction of the statutory 

definition of “political committee” applied exclusively to groups making 

independent expenditures. Akins v. FEC, 101 F.3d 731, 742 (D.C. Cir. 1996) (en 

banc), vacated on other grounds, 524 U.S. 11 (1998).10 

In sum, SpeechNow fits squarely within the definition of “political 

committee,” and no constitutional bar prevents applying FECA’s contribution 

limits to the organization’s fundraising.11 

 

10 The amici brief in support of plaintiffs — essentially an attack on any 

regulation of political communications — argues that this Court should jettison as 

“irrelevant” the Supreme Court’s “major purpose” criterion for political committee 

status if a group’s speech is “non-corrupting.” See, e.g., Amici Br. 1, 4, 5, 24, 

31-32. Of course, a lower court cannot dismiss Supreme Court precedent. 

Substantively, the major purpose test was not designed to deregulate express 

advocacy communications, as amici assumes, but instead to protect groups 

“engaged purely in issue discussion.” Buckley, 424 U.S. at 79. 

11 Plaintiffs also rely on Davis v. FEC, 128 S. Ct. 2759 (2008), to attack the 

“major purpose” test (Br. 56-58), but that case is inapposite for the reasons the 

Commission has already discussed. (FEC PI Br. 23.) Davis concerned the 

“Millionaire’s Amendment,” which under certain circumstances “impose[d] 

different campaign contribution limits on candidates competing for the same 

congressional seat.” 128 S. Ct. at 2765. The “major purpose” criterion creates no 

asymmetrical contribution limits for competing entities. 

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D. The Supreme Court Has Specifically Recognized the Potential for 

Corruption Posed by Tax-Exempt Organizations that Engage in 

Federal Campaign Activity 

McConnell also recognized that donors, political parties, and candidates are 

likely to exploit independent tax-exempt organizations for campaign purposes, 

thereby increasing the risk of corruption and the appearance of corruption 

stemming from those organizations’ participation in federal elections. Evidence of 

that exploitation led the Court to uphold BCRA’s limitations on party committees 

and their agents soliciting funds for or donating funds to section 527 organizations 

that are not political committees. See McConnell, 540 U.S. at 174-81; 2 U.S.C. 

§ 441i(d); 26 U.S.C. § 527. The same concern led the Court to uphold BCRA’s 

regulation of the raising and soliciting of soft money by federal candidates and 

officeholders. 540 U.S. at 181-84; 2 U.S.C. § 441i(e). In finding these provisions 

constitutional, the Court applied the less rigorous standard of scrutiny applicable to 

contribution limits. 540 U.S. at 178, 182. 

The Court concluded, for example, that without the solicitation restrictions, 

party committees would have “significant incentives” to mobilize their fundraising 

operations “into the service of like-minded tax-exempt organizations that conduct 

activities benefiting their candidates.” McConnell, 540 U.S. at 175. Many of the 

targeted tax-exempt organizations “engage in sophisticated and effective 

electioneering activities” to influence federal elections, including express advocacy 

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broadcasts, voter registration and GOTV drives. Id. at 175 n.68. The Court’s 

analysis rests on the premise that these tax-exempt organizations — even if they, 

like SpeechNow, have no formal affiliation with federal candidates or political 

parties — can bring significant benefits to candidates’ election prospects and thus 

raise serious concerns of corruption. And these concerns exist even if the 

organizations do not engage in express advocacy or make contributions. The 

solicitation restriction in section 441i(d), the Court held, was “closely drawn to 

prevent political parties from using tax-exempt organizations as soft-money 

surrogates.” McConnell, 540 U.S. at 177. 

Likewise, in upholding restrictions on federal candidates’ solicitation of soft 

money, the Court concluded that corruption concerns arise even though candidates 

“may not ultimately control how the funds are spent.” McConnell, 540 U.S. 

at 182. Without some restriction on solicitations, the Court explained, “federal 

candidates and officeholders could easily avoid FECA’s contribution limits by 

soliciting funds from large donors and restricted sources to like-minded 

organizations engaging in federal election activities.” Id. at 182-83. The Court 

then noted presciently that “[t]he incentives to do so, at least with respect to 

solicitations to tax-exempt organizations, will only increase” with Title I’s soft 

money restrictions on political parties. Id. at 183. 

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 Although BCRA has limited candidates’ and parties’ solicitations of soft 

money, those limitations do not help plaintiffs’ case. As the Supreme Court 

explained, “[e]ven when not participating directly in the fundraising, federal 

officeholders were well aware of the identities of the donors: National party 

committees would distribute lists of potential or actual donors, or donors 

themselves would report their generosity to officeholders.” McConnell, 540 U.S. 

at 147 (emphasis added). The record in McConnell established the myriad ways in 

which federal officials, either passively or actively, received information regarding 

the largest donors and factored it into their legislative priorities and decisions. 

“[F]or a member not to know the identities of these donors, he or she must actively 

avoid such knowledge as it is provided by the national political parties and the 

donors themselves.” Id. (quoting McConnell, 251 F. Supp. 2d at 487-88) (KollarKotelly, J.) (emphasis added); see also id. (citing McConnell, 251 F. Supp. 2d at 

853-55 (Leon, J.)). See also FEC PI Br. 39-40, 43. 

If donors and fundraisers continue to press the limits of the law — as the 

Court has presumed they will, see McConnell, 540 U.S. at 144, and Colorado II,

533 U.S. at 457 — candidates and officeholders will inevitably learn the identity of 

SpeechNow’s large contributors. The restrictions in SpeechNow’s bylaws (see

J.A. 1265-66, ¶¶6-9) would not prevent undue influence-seeking, large contributors 

to SpeechNow from alerting a winning candidate that their money financed 

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SpeechNow’s helpful advertisements or paid for the group’s administrative 

expenses. Nor can those bylaw restrictions prevent, for example, lobbyists from 

advising their clients to contribute to SpeechNow when the organization is running 

advertisements supporting an officeholder who could help the client’s business 

interests. 

In sum, seemingly independent tax-exempt organizations that engage in 

federal electoral activities are not immune from exploitation by other political 

actors. By benefiting candidates, even through noncoordinated expenditures, those 

organizations raise a risk of corruption sufficient to justify limiting the 

contributions they receive. 

E. Organizations Like SpeechNow Are Not Constitutionally 

Distinguishable from Political Parties for Purposes of the 

Applicable Contribution Limits 

Plaintiffs wrongly dismiss the lessons McConnell drew as relevant only to 

political parties. See, e.g., Br. 38. They view political speakers as falling into one 

of two rigid categories: The first consists of political parties, candidates, and their 

agents, and the second of all other groups and individuals. But this view is 

“myopi[c], a refusal to see how the power of money actually works.” Colorado II, 

533 U.S. at 450. The Supreme Court takes a nuanced, functional view; political 

parties are both like and unlike other political actors. See, e.g., Colorado I 

(holding that political parties, like nonparty political associations and individuals, 

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have a First Amendment right to make unlimited independent expenditures); 

Colorado II (holding that coordinated expenditures by political parties, like those 

by other entities, may constitutionally be treated as contributions). 

For purposes of deciding whether its contributions may be limited, a 

political organization like SpeechNow that will make only independent 

expenditures is more similar to a political party than to a purely issue-focused 

ideological group. See Foley, 31 N. Ky. L. Rev. at 345-46. Unlike issue advocacy 

groups, organizations like SpeechNow and political parties both have as their 

avowed major purpose the election (or defeat) of candidates. Indeed, some 

nonparty political players can “marshal the same power and sophistication for the 

same electoral objectives as political parties themselves.” Colorado II, 533 U.S. 

at 455. Limits on contributions to SpeechNow, like limits on contributions to party 

committees and candidates, permit “the symbolic expression of support,” Buckley,

424 U.S. at 21; “the transformation of [their] contributions into political debate 

involves speech by someone other than the contributor.” Id.; see also supra pp. 

9-12. Just as soft-money contributions to a national party committee create the risk 

that the party and its winning candidates will become improperly beholden to large 

donors, unlimited contributions by individuals to SpeechNow create the risk that 

those candidates will become improperly beholden to SpeechNow and its donors. 

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Independent expenditures by individuals differ importantly from 

independent expenditures by groups. Buckley distinguished independent speech 

from coordinated speech in large part because the Court then supposed that some 

independent spending would be less valuable to candidates because it “may well 

provide little assistance to the candidate’s campaign and indeed may prove 

counterproductive.” 424 U.S. at 47. In fact, spending by individuals is generally 

less likely than spending by groups to help a candidate’s campaign. As plaintiff 

Keating explained, “[M]ost of the people running these ads on their own, they 

don’t have a clue of what they’re doing.” (J.A. 1207.) He recalled only one 

individual doing anything “effectively” by hiring “good consultants” and running 

“very effective ads.” (Id.) In contrast, most groups nowadays design sophisticated 

advertising and provide significant assistance to their preferred candidates. (See 

supra pp. 14-15; J.A. 907-25, ¶¶79-131.) 

Plaintiffs claim they need large contributions and to act as a group for their 

advertising to have a similar impact. (J.A. 787-88.) If so, SpeechNow’s purported 

need for huge contributions is at odds with the rationale that led Buckley to 

consider coordinated spending more potentially corruptive, i.e., more likely useful 

to candidates. Thus, if SpeechNow’s planned advertisements will be more 

effective precisely because they will be funded with large contributions and run by 

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a group, rather than an individual, under Buckley they pose a greater danger of 

corruption.

In addition, some affluent individuals, although able to make large 

independent expenditures on their own, “prefer to shield their identity by creating 

groups with positive sounding names.” (J.A. 1051.) These large spenders 

obviously believe that express advocacy in their own names is less effective than 

advocacy under a group name. While candidates know who makes those 

independent expenditures, the voting public has more difficulty when the only 

information in an ad is a deceptive group name. J.A. 998-1001, ¶¶350-360. When 

ads are run under an individual’s name, voters are better able to “assess the 

reliability of the information and arguments in the advertisements, and perhaps 

discount them if they perceive a self interest on the part of the individual.” (J.A. 

998, ¶350.) Plaintiffs present no reason for this Court to reject these differences 

between individuals and sophisticated electoral groups when examining the 

contribution limits at issue here. 

II. THE PROVISIONS GOVERNING POLITICAL COMMITTEES 

SERVE IMPORTANT GOVERNMENT INTERESTS AND ARE 

NOT UNDULY BURDENSOME 

The contribution limits that apply to SpeechNow not only help prevent 

corruption, as discussed above, but are also high enough to permit such groups to 

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engage in effective advocacy. Likewise, the disclosure requirements for such 

political committees serve important government interests. 

A. Political Committees Can Raise Sufficient Funds for Effective 

Advocacy under the Existing Contribution Limits 

The historical record of fundraising within the current contribution limits 

and reporting requirements demonstrates that federal regulation has not prevented 

entities from across the political spectrum from raising large amounts of money. 

National political party committees as well as nonconnected PACs — political 

committees that have no connected organizations such as a labor union or 

corporation — have raised significant sums. (See J.A. 1007-09, ¶¶376–84.) 

From the 1990 election cycle to the 2006 election cycle, the number of 

nonconnected committees rose from 1,321 to 1,797, while during the same time 

their total receipts ballooned from $72 million to more than $350 million per 

election cycle. (See J.A. 1007-08, ¶¶376-79, 383.) Much of that fundraising 

success has come in recent election cycles: the total receipts of nonconnected 

committees doubled from the 1999-2000 presidential election cycle to the 2003-04 

cycle (from approximately $144 million to approximately $289 million) and more 

than doubled from the 2001-2002 non-presidential election cycle to the 2005-06 

cycle (from approximately $166 million to approximately $353 million). Id.

National political party fundraising illustrates that, as Buckley stated, the 

“overall effect of the Act’s contribution ceilings is merely to require candidates 

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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 (emphasis added). After BCRA prohibited the national parties from 

receiving unlimited soft money donations, the parties raised significantly more 

hard money by recruiting millions of new donors. (See Anthony Corrado, Party 

Finance in the Wake of BCRA: An Overview, FEC Exh. 151 at 28-9, Dkt. No. 55-8 

at 8.) The Democratic National Committee increased the number of its direct mail 

donors from 400,000 in 2000 to 2.7 million in the 2004 election cycle, and had 

4 million donors contribute via the Internet during the 2004 election cycle. (Id.) 

Similarly, the Republican National Committee enlisted more than 1 million new 

donors in 2003 alone. (Id.) The two parties’ congressional campaign committees 

likewise recruited hundreds of thousands of new donors in the 2004 election cycle, 

including 700,000 for the Republican committees and 230,000 for the Democratic 

Congressional Campaign Committee. (Id.) 

 Largely by recruiting new donors, the national party committees raised more 

in hard money alone in 2003-04 than they had raised in hard and soft money 

combined in the last pre-BCRA presidential election cycle (1999-2000), replacing 

nearly $500 million in soft money and nearly fifty percent of their total receipts. 

(J.A. 1009 ¶¶387-88.) Similarly, the national party committees raised almost 

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90 percent as much in hard money alone in the 2006 election cycle as they had 

raised in both hard and soft money combined in the pre-BCRA 2002 election 

cycle. (See J.A. 1009-10, ¶¶ 387-90.) Much of the parties’ additional hard money 

receipts came from small contributions of less than $200 per calendar year from 

individuals, which approximately doubled from 2000 to 2004 (from $222 million 

to $442 million), and increased by over $100 million from 2002 to 2006, from 

$219 million to $309 million. (Corrado and Varney, Party Money in the 2006 

Elections, FEC Exh. 135 at 6-7, Dkt. No. 45-12 at 57-8.) 

FECA does not prevent SpeechNow from following the same strategy. 

SpeechNow remains free “to aggregate large sums of money to promote effective 

advocacy,” Buckley, 424 U.S. at 21, not only from the plaintiffs, but from other 

likely donors. SpeechNow could have raised $22,200 from the plaintiffs alone 

under the current limits (J.A. 1011 ¶400; J.A. 1277 ¶47) and surely much more 

from others. Having received a large amount of free publicity, SpeechNow has 

already attracted a number of supporters and potential contributors, including (by 

mid-August 2008) 75 people who specifically indicated that they would like to 

donate. (J.A. 1271 ¶27.) As leaders of prominent advocacy groups like the Club 

for Growth, the Cato Institute, and the Howard Jarvis Taxpayer Association, 

plaintiffs Keating and Crane and SpeechNow vice-president Coupal could have 

raised funds from their extensive networks of like-minded individuals. FEC PI Br. 

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at 52-53. Despite these advantages and SpeechNow’s success in creating a 

contributor list (J.A. 1010, 1019, ¶¶392, 426), SpeechNow has not made a serious 

effort to develop into a functioning organization. Instead, it has refused to accept 

any contributions in legal amounts. (J.A. 900, 1011-12, ¶¶52, 396-401.) 

David Keating’s fundraising success with other political committees 

demonstrates that SpeechNow could likely raise the funds it needs to pay for its 

ads. Keating has been Executive Director of the Club for Growth since 2000. 

Even though the statutory limit on contributions to its PAC has remained $5,000 

during his leadership, the PAC’s total receipts have increased in every election 

cycle; the PAC raises nearly $3 million per cycle. (J.A. 1015-17, ¶¶411-415.) 

Keating grew the organization from just a few dozen supporters who it solicited in 

1999 to approximately 35,000 in 2008. Id. As Keating explained, “[p]rimarily 

there were more members asked to give money. So they had more people to ask to 

give money, you wind up raising more money.” (J.A. 1016 ¶414.) Plaintiffs 

offered no explanation why Keating, assisted by SpeechNow’s four governing 

“members” and “supporters,” could not also create a large pool of donors to 

SpeechNow. 

SpeechNow’s lack of interest in raising funds stems from the organization’s 

origin in 2007 as a vehicle to challenge the constitutionality of longstanding 

contribution limits and public disclosure requirements — part of a “joint project” 

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by Keating with two legal advocacy groups. (J.A. 893-98, ¶¶21-40.) Keating 

admits he “can handle” raising money within hard money limits (J.A. 1024 ¶451), 

but created a test-case organization to allow others to take advantage of a favorable 

court ruling. He believed that “[t]here are a lot of people out there who that don’t 

understand all this stuff about PACs.” (J.A. 1209.) Thus, he “wanted to create an 

organizational structure that would be simple and easy for people to copy” (FEC 

Exh. 146, at SNK0197) — and he hopes “other groups of people will copy our 

method of operating.” (Id. at SNK0158.) Keating asked Young to help bring, in 

Young’s words, “a test case ... to try to push back some of McCain-Feingold.”12 

(J.A. 895, 896-97, ¶¶30, 33.) In another email message, one of SpeechNow’s 

governing “members” queried Young, “[should the group] prepare an actual radio 

ad to lend credence to this initiative?” (J.A. 897 ¶36.) SpeechNow’s alleged 

inability to raise sufficient funds under the Act’s contribution limits is thus suspect, 

given the “test case” nature of this suit. The hundreds of millions of dollars raised 

by the thousands of nonconnected committees more accurately reflect the ability of 

groups to raise funds for effective advocacy within the $5,000 contribution limit. 

Finally, the proliferation and fundraising success of various political 

committees also belies the claim of plaintiffs (Br. 17-18) and amici (Amici Br. 

24-32) that the threat of Commission investigations severely burdens plaintiffs’ 

 

12 Young mistakenly believed that the decades-old statutory provisions had 

been enacted as part of BCRA. 

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First Amendment rights. Plaintiffs note (Br. 17-18) that the Commission 

conducted 118 investigations of various entities — including candidate and party 

committees and unregistered persons —from October 1999 through the discovery 

period last year. Considering that there are approximately 8,000 political 

committees currently registered with the Commission — as well as thousands of 

other previously active candidate committees during that time (J.A. 1022 ¶441; 

J.A. 1204-05) — the proportion of committees that the Commission investigates is 

small. 

More important, when the Commission finds reason to conduct an 

investigation, that decision is presumed to be warranted. The Commission is 

entitled — like all government agencies — to a “presumption of regularity” that 

when the Commission exercises its enforcement powers, it does so in good faith. 

See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); INS v. Miranda, 

459 U.S. 14, 18 (1982). Indeed, the Commission’s investigations have vindicated 

important interests and revealed significant FECA violations, including, for 

example, the raising of tens of millions of dollars of illegal contributions by groups 

in 2004 that should have registered as political committees. See, e.g., supra pp. 

17-19; (J.A. 935 ¶162.) In any event, no statute is immune from violation, and a 

regulatory agency exercising its enforcement authority hardly suggests that the 

statute’s commands are unconstitutionally onerous. Cf. FTC v. Standard Oil of 

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California, 449 U.S. 232, 244 (1980) (“[T]he expense and annoyance of litigation 

is part of the social burden of living under government.”) (internal quotation marks 

omitted). 

B. FECA’s Disclosure Requirements for Political Committees Are 

Constitutional as Applied to Keating as Treasurer of SpeechNow 

1. Intermediate Scrutiny Applies to the Act’s 

Disclosure Requirements 

Because “disclosure requirements ... do not prevent anyone from speaking,” 

McConnell, 540 U.S. at 201 (citation and brackets omitted), the strict scrutiny 

standard does not apply to them. Instead, a court analyzes whether the disclosure 

requirement at issue bears a “substantial relation” to a “sufficiently important” 

governmental interest. Buckley, 424 U.S. at 64, 66, 75 (citation omitted). Accord

McConnell, 540 U.S. at 196, 231. Thus, contrary to plaintiffs’ repeated assertion 

(e.g., Br. 53), this Court should apply an intermediate standard of scrutiny. 

2. As Applied to Keating on Behalf of SpeechNow, FECA’s 

Reporting Requirements for Political Committees Are 

Substantially Related to Important Governmental Interests 

The Supreme Court long ago upheld FECA’s reporting and disclosure 

requirements. Buckley, 424 U.S. at 60-84. The Court listed three important 

interests those requirements serve. First, they inform the electorate “as to where 

political campaign money comes from,” thereby aiding voters “in evaluating those 

who seek federal office” by placing “each candidate in the political spectrum” and 

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alerting voters “to the interests to which a candidate is most likely to be 

responsive.” Id. at 66-67. Second, the requirements “deter actual corruption and 

avoid the appearance of corruption by exposing large contributions and 

expenditures to the light of publicity.” Id. at 67 (footnote omitted). Third, 

“recordkeeping, reporting, and disclosure requirements are an essential means of 

gathering the data necessary to detect violations” of the Act. Id. at 67-68. 

 Although Buckley emphasized disclosure of contributions to candidates, the 

Court did not hold that the validity of the Act’s reporting requirements depends on 

a political committee’s spending pattern. Also, as we explained, the Court later 

stated in MCFL that if the organization’s major purpose became independent 

campaign activity, political committee requirements would apply. 479 U.S. at 262. 

Those requirements include reporting obligations. 

 The governmental interests identified in Buckley support applying these 

requirements to political committees that make only independent expenditures. As 

the Court observed in upholding FECA’s independent expenditure reporting 

requirements for individuals and groups other than political committees, “the 

informational interest can be as strong as it is in coordinated spending, for 

disclosure helps voters to define more of the candidates’ constituencies.” Buckley, 

424 U.S. at 81; see also McConnell, 540 U.S. at 196-97 (upholding disclosure 

requirements for “electioneering communications” against a facial challenge 

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because, among other reasons, “citizens seeking to make informed choices in the 

political marketplace” have “First Amendment interests” in learning how electoral 

advocacy is funded). 

 Keating would prefer to substitute the reporting requirements at 2 U.S.C. 

§ 434(c) for the more extensive disclosure requirements that political committees 

must meet. But section 434(c) fails to provide voters with all the information they 

need to assess “major purpose” groups like SpeechNow and the candidates they 

support. Most important, the provision requires an independent spender to identify 

only each person who contributed more than $200 “for the purpose of furthering an 

independent expenditure.” 2 U.S.C. § 434(c)(2)(C). Thus, the provision does not 

require an independent spender to disclose contributions for its overhead and 

administrative expenses, including, for example, a million-dollar contribution for 

overhead.13 

 Overall, political committees spend about half of their funds on such costs, 

and about half on independent expenditures and contributions. Under plaintiffs’ 

proposed reporting scheme, there would be no disclosure for approximately $500 

million of the more than $1 billion that political committees — not including 

candidate campaigns and political parties — spent in the 2005-2006 election cycle. 

 

13 Some spenders may interpret the rules as not requiring disclosure of funding 

for election-related expenses such as opposition research and polling. (See, e.g., 

J.A. 1006-07 ¶375 (Club for Growth’s decision not to disclose disbursements for 

polling.)) 

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(J.A. 1003-04 ¶369.) The public would thus be unable to ascertain who provided 

much of the funding to major-purpose entities, while candidates and officeholders 

would surely be made aware. (See J.A. 1001-07, ¶¶361-375.)14 

 Keating promises (e.g., Br. 45, 56, 58) to obey FECA’s “disclaimer” 

requirements, see 2 U.S.C. § 441d. That provision requires “any person” financing 

an express advocacy public advertisement to include in the communication the 

person’s telephone number or street or website address and whether a candidate 

authorized the communication. 2 U.S.C. § 441d(a). While this disclaimer supplies 

some useful contemporaneous information, it does not make up for the differences 

between section 434(c)’s reporting requirements and those applicable to political 

committees. 

 FECA’s political committee disclosure requirements will also deter 

corruption and the appearance of corruption by large contributors to SpeechNow. 

The public and the press will know who gives large contributions to SpeechNow, 

including for its administrative expenses, and they can keep watch on candidates 

and officeholders to see if they change their policy positions or take legislative 

actions beneficial to the large contributors’ interests. 

 

14 Keating has given conflicting testimony on whether the provision requires 

independent spenders to identify a large donor who gives his contribution without 

specifying the purpose of “furthering an independent expenditure” when those 

funds are used to in fact pay for independent expenditures. (J.A. 1006-07, ¶375 

(Keating’s agreement with the Club for Growth’s decision not to disclose any 

contributions for an independent expenditure of over $150,000.)) 

53 

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 In addition, FECA’s recordkeeping, reporting, and disclosure requirements 

for political committees will help the Commission and the public “gather[ ] the 

data necessary to detect violations” of the Act. Buckley, 424 U.S. at 68. If Keating 

as treasurer does not comply with those requirements, the Commission and the 

public will be unable to check whether SpeechNow in fact rejects contributions 

from foreign nationals, corporations, unions, and other sources, as Keating and 

SpeechNow’s bylaws state the organization will do. (J.A. 1264 ¶4.) As explained 

above, section 434(c)’s requirements do not capture all the information necessary 

for that monitoring task. 

 Keating would undermine these important interests by postponing 

registering SpeechNow as a political committee and complying with FECA’s other 

requirements for political committees until SpeechNow has made more than 

$1,000 in independent expenditures. See Br. 58. Especially since Keating would 

limit reporting to the information required by section 434(c), postponing these 

duties would delay disclosure of SpeechNow’s financers. That delay would make 

it more difficult for voters to monitor the role of donors in public policy formation 

(J.A. 1002-03, ¶¶365-67) and to factor the sources into their viewing of advertising 

campaigns in the immediate pre-election period. 

54 

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3. The Disclosure Requirements Are Not Unduly Burdensome 

 As this Court commented in Akins, “an organization devoted almost entirely 

to campaign spending could not plead that the administrative burdens associated 

with such spending were unconstitutional as applied to it.” 101 F.3d at 742, 

vacated on other grounds, 524 U.S. 11 (1998). Yet that is precisely what Keating 

has pleaded here for himself and SpeechNow. 

Plaintiffs and their amici exaggerate the difficulty of operating political 

committees like SpeechNow. Generally, the reporting requirements that apply to 

nonconnected committees are not complicated. (J.A. 1023 ¶444.) Any 

organization that qualifies as a political committee must register with the 

Commission by submitting FEC Form 1, a four-page form. (J.A. 1022 ¶¶439-40.) 

Registered nonconnected political committees must then periodically file FEC 

Form 3X disclosing to the public all receipts and disbursements to or from a person 

in excess of $200 in a calendar year (and in some instances, of any amount), as 

well as total operating expenses and cash on hand. (Id. ¶¶442-43.) Nonconnected 

political committees must also disclose their independent expenditures on Form 

3X’s Schedule E. (Id. ¶443.)15

 

15 FEC Form 3X (J.A. 688-708) is a multi-purpose form filed by all political 

committees that are not the authorized committee of a candidate, which includes 

political party committees, nonconnected committees, and separate segregated 

funds. Form 3X thus includes sixteen separate schedules (Schedules A through 

L-B) that apply to the various types of activities in which these different kinds of 

55 

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It is not unduly burdensome for a group or individual to file reports of 

receipts and disbursements with the Commission. (J.A. 1022-23, ¶¶438-46.) 

Indeed, although in MCFL the Supreme Court noted the burdens of political 

committee reporting on small organizations, it nevertheless explained that if 

MCFL’s major purpose were to become campaign activity, then the group would 

have to abide by the rules applicable to political committees, which include the 

reporting requirements that plaintiffs challenge. 479 U.S. at 262. Moreover, the 

number of political committees and the magnitude of their activity demonstrate 

that the registration and reporting requirements that apply to such committees have 

hardly inhibited their formation or growth. (See J.A. 1204-05). 

 As with the contribution limits, plaintiffs are demonstrably capable of 

establishing a political committee and complying with the Act’s registration and 

 

political committees may engage. Political committees like SpeechNow that only 

make independent expenditures are not required to complete nine of the sixteen 

schedules (Schedule F through L-B), nor to provide other pieces of information 

that apply only to party committees and political committees that engage in 

allocable state and federal election activity such as voter registration drives. (J.A. 

730-40.)

Nonetheless, SpeechNow complains (Br. 49) about the length of the 

instructions for FEC Form 3X compared with the instructions for Form 5, which 

persons other than political committees use to disclose independent expenditures. 

But because SpeechNow alleges that it will not engage in much of the activity that 

must be reported on Form 3X, the length of that form and its instructions 

significantly overstate the amount of work SpeechNow would have to complete. 

In any event, as anyone knows who has attempted to assemble furniture or toys, 

fewer instructions are not necessarily better, or suggestive of a less complex task, 

than thorough instructions. 

56 

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reporting requirements. Several groups have done precisely that under Keating’s 

supervision. See supra pp. 46-47; (J.A. 1015, 1024, ¶¶410, 449). Indeed, Keating 

admits that he “can handle” the duties of a treasurer, and that he “generally” 

understands the reporting requirements of nonconnected political committees. 

(J.A. 1024 ¶¶451-52.) He does not wish to do so for SpeechNow simply because 

he prefers to spend his personal time in other ways. (J.A. 1019 ¶428.)16 This 

Court should not create an exemption from the facially valid political committee 

requirements, thereby depriving the public of congressionally mandated 

information on electoral financing, based on plaintiffs’ inadequate showing. 

III. FECA’S BIENNIAL AGGREGATE CONTRIBUTION LIMIT IS 

CONSTITUTIONAL AS APPLIED TO PLAINTIFF YOUNG 

The Supreme Court in Buckley upheld FECA’s annual limits on the total 

contributions an individual may make. 424 U.S. at 38. These limits were a “quite 

modest restraint” and a mere “corollary” of other valid contribution limits. Id. 

Most important, annual limits prevent evasion of the candidate contribution 

limitation “by a person who might otherwise contribute massive amounts of money 

 

16 Keating offers a trivial excuse for objecting to treating SpeechNow as a 

political committee: an alleged need to determine the fair-market value of the use 

of his home and report it as an in-kind contribution. (Br. 15, 48-49.) Many people 

who work at home make such a valuation to comply with the tax consequences of 

that work, and Keating presented no evidence that such a valuation is unduly 

burdensome. 

57 

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to a particular candidate through the use of unearmarked contributions to political 

committees likely to contribute to that candidate, or huge contributions to the 

candidate’s political party.” Id. 

Plaintiff Young provides no basis to disregard that reasoning here. The 

biennial limit prevents evasion of the limit on contributions to a candidate through 

a huge number of contributions to allied groups running ads favoring the donor’s 

preferred candidate. Just as the various committees of a candidate’s political party 

could have spent independently to aid the donor’s candidate if the aggregate limit 

did not prevent such circumvention, as Buckley suggested, a number of 

organizations similar to SpeechNow could spend independently to enable a donor 

to circumvent the candidate contribution limit. Even though it “does impose an 

ultimate restriction upon the number of candidates and committees with which an 

individual may associate himself by means of financial support,” the overall 

ceiling is “is thus no more than a corollary of the basic individual contribution 

limitation.” Buckley, 424 U.S. at 38. 

IV. THE COURT’S EVALUATION OF THE DANGER OF 

CORRUPTION SHOULD GO BEYOND EVIDENCE REGARDING 

THE IMMEDIATE PARTIES 

 

In most constitutional challenges to campaign finance laws, courts must 

determine whether the challenged regulations serve to reduce the danger of 

corruption and its appearance. To do so, courts look beyond evidence about the 

58 

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immediate parties to ascertain how the world operates. This action under 2 U.S.C. 

§ 437h required that the district court first compile “a fully developed factual 

record.” CalMed, 453 U.S. at 192 n.14. The court, however, made findings of fact 

only about SpeechNow and expressly declined to make findings of fact on 

“whether or not the challenged provisions are necessary to ward off corruption — 

or the appearance of corruption — in federal elections.” (J.A. 1261.) The court 

erred by refusing to assist this Court with findings on the central question in this 

case. This Court may either incorporate the necessary facts into its opinion or 

remand to the district court. 

The Supreme Court has repeatedly found this kind of information 

dispositive. For example, in Buckley, the D.C. Circuit relied on sources such as 

polls and Senate reports to determine whether the challenged legislation served to 

deter corruption and its appearance, 519 F.2d 821, 837-39 (D.C. Cir. 1975) (en 

banc), and the Supreme Court explicitly relied on those “deeply disturbing 

examples.” 424 U.S. at 27 & n.28. In Colorado II, the Supreme Court relied, inter 

alia, on expert reports and books by political scientists, a statement by a former 

Senator, and FEC disclosure reports to reach general factual conclusions about 

non-litigant entities; the Court concluded that “[p]arties are ... necessarily the 

instruments of some contributors ... 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 

59 

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to the contributors.” 533 U.S. at 451-52. The Supreme Court in McConnell

similarly relied on a Senate report and declarations from CEOs, political party 

staff, consultants, and Members of Congress about evidence unrelated to the 

particular parties to the litigation to reach conclusions on corruption. See, e.g.,

540 U.S. at 145. 

The district court erred when it declined to make similar findings of fact 

here. In addition to its erroneous conclusion that such facts cannot be determined 

on a paper record, the court appeared to rely in part on the press of other business 

before it and a belief that such findings would not help this Court. (Add. 30, 

32-33.) The district court did, however, appropriately invite the parties to present 

evidence to this Court concerning the danger of corruption. (Add. 34 (suggesting 

that if the parties “want to put all that together in what will be the kind of ultimate 

Brandeis brief to the Court of Appeals, I’m sure that they would be thrilled to 

have it.”)) 

 The Commission’s proposed findings of fact (J.A. 884-1025) will be 

particularly useful to this Court because plaintiffs have brought a “carefully 

constructed test-case.” (J.A. 393.) Keating and SpeechNow’s other governing 

“members” have neither run the ads they ostensibly wish to broadcast, nor 

attempted to raise the funds that would allow them do so. The district court’s 

60 

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limited findings thus reflect little about the way the world operates.17 This Court 

can incorporate into its opinion the additional information proposed by the parties 

or it can remand to the district court to make factual findings that will allow this 

Court, and perhaps the Supreme Court, to adequately address the threat of 

corruption or its appearance arising from large contributions to fund independent 

expenditures. Cf. Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (“When an 

appellate court discerns that a district court has failed to make a finding because of 

an erroneous view of the law, the usual rule is that there should be a remand for 

further proceedings to permit the trial court to make the missing findings ...”).18

 

17 The Commission’s proposed facts draw primarily from plaintiffs’ 

depositions; declarations by campaign consultants, lobbyists, former federal 

candidates and officeholders, and state officials; an expert report by Professor 

Clyde Wilcox and studies by other scholars specializing in campaign practices; 

SpeechNow’s responses to the Commission’s interrogatories and requests for 

admission; FEC reports; and public opinion surveys. 

18 Plaintiffs made evidentiary objections to the facts proposed by the 

Commission in the district court that they may renew in their reply brief. Most of 

their objections can be overruled on the basis that the Commission’s proffered 

facts are not “adjudicative facts” about the immediate parties subject to the Federal 

Rules of Evidence, but “legislative facts,” which those Rules do not govern. See

FEC PI Br. 34 n.10; Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 

1992) (Legislative facts “help the tribunal decide questions of law and policy.”) 

(internal quotation marks and citation omitted); Dkt. Nos. 63, 63-2, 63-3, 63-4, 

63-5 (Commission briefing generally in support of its proposed facts). Parties and 

amici may present legislative facts — frequently based on a variety of materials 

such as reports, news articles, and academic studies, including political and social 

science studies — at any stage of litigation. Unlike judicially noticed matters, 

legislative facts need not be clearly indisputable. See Dkt. No. 63 at 2-13. 

“[L]egislative facts [unlike adjudicative facts] are crucial to the prediction of future 

61 

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CONCLUSION 

 For the foregoing reasons, the Court should answer all five certified 

questions in the negative, deny plaintiffs’ request for relief, and enter judgment for 

the Commission. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov 

/s/ David Kolker

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

Vivien Clair 

Attorney 

vclair@fec.gov 

 

events and to the evaluation of certain risks.” Ass’n of Nat’l Advertisers, Inc. v. 

FTC, 627 F.2d 1151, 1162 (D.C. Cir. 1979). 

 The Commission objected to much of plaintiffs’ evidence because, inter 

alia, plaintiffs filed expert reports that were untimely revised; failed to produce a 

draft expert report until the middle of an expert’s deposition; and submitted expert 

reports unsupported by the narrow data cited or, in one case, by any empirical or 

anecdotal evidence whatsoever. See Dkt. Nos. 55, 56 (Commission briefing 

generally regarding plaintiffs’ proposed facts). 

62 

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63 

Steve Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

December 15, 2009 (202) 694-1650 

Case: 09-5342 Document: 1220957 Filed: 12/15/2009 Page: 74
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 13,973 words, excluding the parts of 

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 The brief also complies with the typeface requirements of Fed. R. 

App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) 

because the brief uses the proportionally spaced typeface Microsoft Word 

14-point Times New Roman. 

/s/ Vivien Clair

Vivien Clair 

Attorney 

Federal Election Commission 

Case: 09-5342 Document: 1220957 Filed: 12/15/2009 Page: 75
Case: 09-5342 Document: 1220957 Filed: 12/15/2009 Page: 76
ADDENDUM 

TABLE OF CONTENTS 

STATUTES 

 Page 

2 U.S.C. § 431(4)(A) .................................................................................. 1 

2 U.S.C. § 431(8)(A)(i) ............................................................................... 1 

2 U.S.C. § 431(9)(A)(i) ............................................................................... 1 

2 U.S.C. § 431(11) ...................................................................................... 1 

2 U.S.C. § 431(17) ...................................................................................... 1 

2 U.S.C. § 433 ............................................................................................. 2 

2 U.S.C. § 434 ............................................................................................. 3 

2 U.S.C. § 441a(a)(1)(C) .......................................................................... 25 

2 U.S.C. § 441a(a)(3) ................................................................................ 25 

2 U.S.C. § 441d(a)(3) ................................................................................ 25 

2 U.S.C. § 441d(d)(2) ............................................................................... 26 

REGULATIONS 

11 C.F.R. § 110.1(n) ................................................................................. 27 

11 C.F.R. § 110.5(d) ................................................................................. 27 

MISCELLANEOUS

Transcript of Motions Hearing, Sept. 14, 2009 (excerpts) ....................... 28 

i

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Add. 1

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§ 433. Registration of political committees

(a) Statements of organizations. Each authorized campaign committee shall file a statement of 

organization no later than 10 days after designation pursuant to section 432(e)(1). Each separate 

segregated fund established under the provisions of section 441b(b) shall file a statement of 

organization no later than 10 days after establishment. All other committees shall file a statement 

of organization within 10 days after becoming a political committee within the meaning of 

section 431(4). 

 (b) Contents of statements. The statement of organization of a political committee shall 

 include— 

 (1) the name, address, and type of committee; 

 (2) the name, address, relationship, and type of any connected organization or 

 affiliated committee; 

 (3) the name, address, and position of the custodian of books and accounts of the 

 committee; 

 (4) the name and address of the treasurer of the committee; 

 (5) if the committee is authorized by a candidate, the name, address, office 

 sought, and party affiliation of the candidate; and 

 (6) a listing of all banks, safety deposit boxes, or other depositories used by the 

 committee. 

 (c) Change of information in statements. Any change in information previously submitted 

 in a statement of organization shall be reported in accordance with section 432(g) no later 

 than 10 days after the date of the change. 

 (d) Termination, etc., requirements and authorities. 

 (1) A political committee may terminate only when such a committee files a 

 written statement, in accordance with section 432(g), that it will no longer 

 receive any contributions or make any disbursement and that such committee has 

 no outstanding debts or obligations. 

 (2) Nothing contained in this subsection may be construed to eliminate or limit 

 the authority of the Commission to establish procedures for— 

 (A) the determination of insolvency with respect to any political 

 committee; 

 (B) the orderly liquidation of an insolvent political committee, and the 

 orderly application of its assets for the reduction of outstanding debts; 

 and 

 (C) the termination of an insolvent political committee after such 

 liquidation and application of assets.

Add. 2

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§ 434. Reporting requirements

(a) Receipts and disbursements by treasurers of political committees; 

filing requirements.

(1) Each treasurer of a political committee shall file reports 

of receipts and disbursements in accordance with the provisions of 

this subsection. The treasurer shall sign each such report.

(2) If the political committee is the principal campaign committee of a candidate for the House of Representatives or for the 

Senate—

(A) in any calendar year during which there is a regularly 

scheduled election for which such candidate is seeking election, 

or nomination for election, the treasurer shall file the following 

reports:

(i) a pre-election report, which shall be filed no later 

than the 12th day before (or posted by any of the following: registered mail, certified mail, priority mail having a 

delivery confirmation, or delivered to an overnight delivery 

service with an on-line tracking system, if posted or delivered no later than the 15th day before)1

 any election in 

which such candidate is seeking election, or nomination 

for election, and which shall be complete as of the 20th 

day before such election;

(ii) a post-general election report, which shall be 

filed no later than the 30th day after any general election 

in which such candidate has sought election, and which 

shall be complete as of the 20th day after such general 

election; and

(iii) additional quarterly reports, which shall be 

filed no later than the 15th day after the last day of each 

calendar quarter, and which shall be complete as of the 

last day of each calendar quarter: except that the report 

for the quarter ending December 31 shall be filed no later 

than January 31 of the following calendar year; and

(B)2 in any other calendar year the treasurer shall file 

quarterly reports, which shall be filed not later than the 15th 

1

Section 641 of division F, Title VI of the Consolidated Appropriations Act, 2004, Pub. 

L. No. 108-199, amended section 434(a) to permit the use of priority and express mail 

and overnight delivery services for timely filing purposes. This amendment is effective 

as of January 23, 2004.

2

Section 503(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434(a)(2)(B) to require additional reports in nonelection years 

by House and Senate campaigns. This amendment is effective as of November 6, 2002.

Add. 3

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day after the last day of each calendar quarter, and which shall 

be complete as of the last day of each calendar quarter, except 

that the report for the quarter ending December 31 shall be 

filed not later than January 31 of the following calendar year.

(3) If the committee is the principal campaign committee of 

a candidate for the office of President—

(A) in any calendar year during which a general election 

is held to fill such office—

(i) the treasurer shall file monthly reports if such 

committee has on January 1 of such year, received contributions aggregating $100,000 or made expenditures 

aggregating $100,000 or anticipates receiving contributions 

aggregating $100,000 or more or making expenditures 

aggregating $100,000 or more during such year: such 

monthly reports shall be filed no later than the 20th day 

after the last day of each month and shall be complete as 

of the last day of the month, except that, in lieu of filing 

the report otherwise due in November and December, a 

pre-general election report shall be filed in accordance 

with paragraph (2)(A)(i), a post-general election report 

shall be filed in accordance with paragraph (2)(A)(ii), and 

a year end report shall be filed no later than January 31 

of the following calendar year;

(ii) the treasurer of the other principal campaign 

committees of a candidate for the office of President shall 

file a pre-election report or reports in accordance with 

paragraph (2)(A)(i), a post-general election report in accordance with paragraph (2)(A)(ii), and quarterly reports 

in accordance with paragraph (2)(A)(iii); and

(iii) if at any time during the election year a committee filing under paragraph (3)(A)(ii) receives contributions 

in excess of $100,000 or makes expenditures in excess of 

$100,000, the treasurer shall begin filing monthly reports 

under paragraph (3)(A)(i) at the next reporting period; 

and 

(B) in any other calendar year, the treasurer shall file 

either—

(i) monthly reports, which shall be filed no later 

than the 20th day after the last day of each month and 

shall be complete as of the last day of the month; or

(ii) quarterly reports, which shall be filed no later 

than the 15th day after the last day of each calendar quarter 

Add. 4

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and which shall be complete as of the last day of each 

calendar quarter.

(4) All political committees other than authorized committees 

of a candidate shall file either—

(A) (i) quarterly reports, in a calendar year in which a 

regularly scheduled general election is held, which shall 

be filed no later than the 15th day after the last day of 

each calendar quarter: except that the report for the quarter 

ending on December 31 of such calendar year shall be 

filed no later than January 31 of the following calendar 

year;

(ii) a pre-election report, which shall be filed no 

later than the 12th day before (or posted by any of the following: registered mail, certified mail, priority mail having 

a delivery confirmation, or express mail having a delivery 

confirmation, or delivered to an overnight delivery service 

with an on-line tracking system, if posted or delivered 

no later than the 15th day before)1 any election in which 

the committee makes a contribution to or expenditure on 

behalf of a candidate in such election, and which shall 

be complete as of the 20th day before the election;

(iii) a post-general election report, which shall be 

filed no later than the 30th day after the general election 

and which shall be complete as of the 20th day after such 

general election; and

(iv) in any other calendar year, a report covering 

the period beginning January 1 and ending June 30, which 

shall be filed no later than July 31 and a report covering 

the period beginning July 1 and ending December 31, 

which shall be filed no later than January 31 of the following calendar year; or 

(B) monthly reports in all calendar years which shall be 

filed no later than the 20th day after the last day of the month 

and shall be complete as of the last day of the month, except 

that, in lieu of filing the reports otherwise due in November and 

December of any year in which a regularly scheduled general 

election is held, a pre-general election report shall be filed in 

accordance with paragraph (2)(A)(i), a post-general election 

1

Section 641 of division F, Title VI of the Consolidated Appropriations Act, 2004, Pub. 

L. No. 108-199, amended section 434(a) to permit the use of priority and express mail 

and overnight delivery services for timely filing purposes. This amendment is effective 

as of January 23, 2004.

Add. 5

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report shall be filed in accordance with paragraph (2)(A)(ii), 

and a year end report shall be filed no later than January 31 

of the following calendar year. Notwithstanding the preceding 

sentence, a national committee of a political party shall file the 

reports required under subparagraph (B).1

(5) If a designation, report, or statement filed pursuant to this 

Act (other than under paragraph (2)(A)(i) or (4)(A)(ii) or subsection (g)(1)) is sent by registered mail, certified mail, priority mail 

having a delivery confirmation, or express mail having a delivery 

confirmation, the United States postmark shall be considered the 

date of filing of the designation, report, or statement. If a designation, report or statement filed pursuant to this Act (other than under 

paragraph (2)(A)(i) or (4)(A)(ii), or subsection (g)(1)) is sent by an 

overnight delivery service with an on-line tracking system, the date 

on the proof of delivery to the delivery service shall be considered 

the date of filing of the designation, report, or statement.2

(6) (A) The principal campaign committee of a candidate 

shall notify the Secretary or the Commission, and the Secretary of State, as appropriate, in writing, of any contribution of 

$1,000 or more received by any authorized committee of such 

candidate after the 20th day, but more than 48 hours before, 

any election. This notification shall be made within 48 hours 

after the receipt of such contribution and shall include the 

name of the candidate and the office sought by the candidate, 

the identification of the contributor, and the date of receipt and 

amount of the contribution.

(B)3 Notification of expenditure from personal funds.

(i) Definition of expenditure from personal funds. 

In this subparagraph, the term ‘expenditure from personal 

funds’ means—

(I) an expenditure made by a candidate using 

personal funds; and

1

Section 503(b) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434(a)(4) to require monthly reports by national party committees. This amendment is effective as of November 6, 2002.

2

Section 641 of division F, Title VI of the Consolidated Appropriations Act, 2004, Pub. 

L. No. 108-199, amended section 434(a)(5) to permit the use of priority and express mail 

and overnight delivery services for timely filing purposes. This amendment is effective 

as of January 23, 2004.

3

Section 304(b) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434(a)(6) by redesignating subparagraph (B) as (E) and inserting 

new subparagraphs (B)-(D). This amendment is effective as of November 6, 2002.

Add. 6

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(II) a contribution or loan made by a candidate 

using personal funds or a loan secured using such 

funds to the candidate’s authorized committee.

(ii) Declaration of intent. Not later than the date that 

is 15 days after the date on which an individual becomes 

a candidate for the office of Senator, the candidate shall 

file a declaration stating the total amount of expenditures 

from personal funds that the candidate intends to make, or 

to obligate to make, with respect to the election that will 

exceed the State-by-State competitive and fair campaign 

formula with—

(I) the Commission; and

(II) each candidate in the same election.

(iii) Initial notification. Not later than 24 hours 

after a candidate described in clause (ii) makes or obligates to make an aggregate amount of expenditures from 

personal funds in excess of 2 times the threshold amount 

in connection with any election, the candidate shall file a 

notification with—

(I) the Commission; and

(II) each candidate in the same election.

(iv) Additional notification. After a candidate files 

an initial notification under clause (iii), the candidate shall 

file an additional notification each time expenditures from 

personal funds are made or obligated to be made in an 

aggregate amount that exceed $10,000 with—

(I) the Commission; and

(II) each candidate in the same election.

Such notification shall be filed not later than 24 hours 

after the expenditure is made.

(v) Contents. A notification under clause (iii) or 

(iv) shall include—

(I) the name of the candidate and the office 

sought by the candidate;

(II) the date and amount of each expenditure; 

and

(III) the total amount of expenditures from 

personal funds that the candidate has made, or 

obligated to make, with respect to an election as of 

the date of the expenditure that is the subject of the 

notification.

Add. 7

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(C) Notification of disposal of excess contributions. In the 

next regularly scheduled report after the date of the election for 

which a candidate seeks nomination for election to, or election 

to, Federal office, the candidate or the candidate’s authorized 

committee shall submit to the Commission a report indicating the 

source and amount of any excess contributions (as determined 

under paragraph (1) of section 315(i)) (2 U.S.C. § 441a(i)) and 

the manner in which the candidate or the candidate’s authorized 

committee used such funds.

(D) Enforcement. For provisions providing for the enforcement of the reporting requirements under this paragraph, 

see section 309 (2 U.S.C. § 437g).

(E) The notification required under this paragraph shall 

be in addition to all other reporting requirements under this 

Act.

(7) The reports required to be filed by this subsection shall be 

cumulative during the calendar year to which they relate, but where 

there has been no change in an item reported in a previous report 

during such year, only the amount need be carried forward.

(8) The requirement for a political committee to file a quarterly report under paragraph (2)(A)(iii) or paragraph (4)(A)(i) shall 

be waived if such committee is required to file a pre-election report 

under paragraph (2)(A)(i), or paragraph (4)(A)(ii) during the period 

beginning on the 5th day after the close of the calendar quarter and 

ending on the 15th day after the close of the calendar quarter.

(9) The Commission shall set filing dates for reports to be 

filed by principal campaign committees of candidates seeking election, or nomination for election, in special elections and political 

committees filing under paragraph (4)(A) which make contributions 

to or expenditures on behalf of a candidate or candidates in special 

elections. The Commission shall require no more than one preelection report for each election and one postelection report for the 

election which fills the vacancy. The Commission may waive any 

reporting obligation of committees required to file for special elections if any report required by paragraph (2) or (4) is required to be 

filed within 10 days of a report required under this subsection. The 

Commission shall establish the reporting dates within 5 days of the 

setting of such election and shall publish such dates and notify the 

principal campaign committees of all candidates in such election of 

the reporting dates.

(10) The treasurer of a committee supporting a candidate for 

the office of Vice President (other than the nominee of a political 

party) shall file reports in accordance with paragraph (3).

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(11) (A) The Commission shall promulgate a regulation under 

which a person required to file a designation, statement, or 

report under this Act—

(i) is required to maintain and file a designation, 

statement, or report for any calendar year in electronic 

form accessible by computers if the person has, or has 

reason to expect to have, aggregate contributions or expenditures in excess of a threshold amount determined by 

the Commission; and

(ii) may maintain and file a designation, statement, 

or report in electronic form or an alternative form if not 

required to do so under the regulation promulgated under 

clause (i).

(B)1 The Commission shall make a designation, statement, 

report, or notification that is filed with the Commission under 

this Act available for inspection by the public in the offices of 

the Commission and accessible to the public on the Internet not 

later than 48 hours (or not later than 24 hours in the case of 

a designation, statement, report, or notification filed electronically) after receipt by the Commission.

(C) In promulgating a regulation under this paragraph, 

the Commission shall provide methods (other than requiring a 

signature on the document being filed) for verifying designations, statements, and reports covered by the regulation. Any 

document verified under any of the methods shall be treated 

for all purposes (including penalties for perjury) in the same 

manner as a document verified by signature.

(D) As used in this paragraph, the term “report” means, 

with respect to the Commission, a report, designation, or statement required by this Act to be filed with the Commission.

(12)2 Software for filing of reports.

(A) In general. The Commission shall—

(i) promulgate standards to be used by vendors to 

develop software that—

(I) permits candidates to easily record information concerning receipts and disbursements 

1

Section 501 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 

amended section 434(a)(11)(B) to address Internet access to reports. This amendment is 

effective as of November 6, 2002.

2

Section 306 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434(a) to add new paragraph (12). This amendment is effective as of November 6, 2002.

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required to be reported under this Act at the time 

of the receipt or disbursement;

(II) allows the information recorded under 

subclause (I) to be transmitted immediately to the 

Commission; and

(III) allows the Commission to post the information on the Internet immediately upon receipt; 

and

(ii) make a copy of software that meets the standards promulgated under clause (i) available to each 

person required to file a designation, statement, or report 

in electronic form under this Act.

(B) Additional information. To the extent feasible, the 

Commission shall require vendors to include in the software 

developed under the standards under subparagraph (A) the ability for any person to file any designation, statement, or report 

required under this Act in electronic form.

(C) Required use. Notwithstanding any provision of 

this Act relating to times for filing reports, each candidate for 

Federal office (or that candidate’s authorized committee) shall 

use software that meets the standards promulgated under this 

paragraph once such software is made available to such candidate.

(D) Required posting. The Commission shall, as soon 

as practicable, post on the Internet any information received 

under this paragraph.

(b) Contents of reports. Each report under this section shall 

disclose—

(1) the amount of cash on hand at the beginning of the

reporting period;

(2) for the reporting period and calendar year (or election 

cycle, in the case of an authorized committee of a candidate for 

Federal office), the total amount of all receipts, and the total amount 

of all receipts in the following categories:

(A) contributions from persons other than political 

committees;

(B) for an authorized committee, contributions from the 

candidate;

(C) contributions from political party committees;

(D) contributions from other political committees;

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(E) for an authorized committee, transfers from other 

authorized committees of the same candidate; 

(F) transfers from affiliated committees and, where the 

reporting committee is a political party committee, transfers 

from other political party committees, regardless of whether 

such committees are affiliated;

(G) for an authorized committee, loans made by or 

guaranteed by the candidate;

(H) all other loans;

(I) rebates, refunds, and other offsets to operating expenditures;

(J) dividends, interest, and other forms of receipts; 

and

(K) for an authorized committee of a candidate for the 

office of President, Federal funds received under chapter 95 

and chapter 96 of title 26;

(3) the identification of each—

(A) person (other than a political committee) who makes 

a contribution to the reporting committee during the reporting 

period, whose contribution or contributions have an aggregate 

amount or value in excess of $200 within the calendar year 

(or election cycle, in the case of an authorized committee of 

a candidate for Federal office), or in any lesser amount if the 

reporting committee should so elect, together with the date and 

amount of any such contribution;

(B) political committee which makes a contribution to 

the reporting committee during the reporting period, together 

with the date and amount of any such contribution;

(C) authorized committee which makes a transfer to the 

reporting committee;

(D) affiliated committee which makes a transfer to the 

reporting committee during the reporting period and, where the 

reporting committee is a political party committee, each transfer of funds to the reporting committee from another political 

party committee, regardless of whether such committees are 

affiliated, together with the date and amount of such transfer;

(E) person who makes a loan to the reporting committee 

during the reporting period, together with the identification of 

any endorser or guarantor of such loan, and date and amount 

or value of such loan;

(F) person who provides a rebate, refund, or other offset 

to operating expenditures to the reporting committee in an aggregate amount or value in excess of $200 within the calendar 

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receipt to the reporting committee in an aggregate value or 

amount in excess of $200 within the calendar year (or election 

cycle, in the case of an authorized committee of a candidate 

for Federal office), together with the date and amount of any 

such receipt;

(4) for the reporting period and the calendar year (or election cycle, in the case of an authorized committee of a candidate 

for Federal office), the total amount of all disbursements, and all 

disbursements in the following categories:

(A) expenditures made to meet candidate or committee 

operating expenses;

(B) for authorized committees, transfers to other committees authorized by the same candidate;

(C) transfers to affiliated committees and, where the 

reporting committee is a political party committee, transfers 

to other political party committees, regardless of whether they 

are affiliated;

(D) for an authorized committee, repayment of loans 

made by or guaranteed by the candidate;

(E) repayment of all other loans;

(F) contribution refunds and other offsets to contributions;

(G) for an authorized committee, any other disbursements;

(H) for any political committee other than an authorized 

committee—

(i) contributions made to other political 

committees;

(ii) loans made by the reporting committees;

(iii) independent expenditures;

(iv) expenditures made under section 441a(d) of 

this title; and

(v) any other disbursements; and

(I) for an authorized committee of a candidate for the 

office of President, disbursements not subject to the limitation 

of section 441a(b);

(5) the name and address of each—

(A) person to whom an expenditure in an aggregate 

amount or value in excess of $200 within the calendar year is 

year (or election cycle, in the case of an authorized committee 

of a candidate for Federal office), together with the date and 

amount of such receipt; and

(G) person who provides any dividend, interest, or other 

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made by the reporting committee to meet a candidate or committee operating expense, together with the date, amount, and 

purpose of such operating expenditure;

(B) authorized committee to which a transfer is made 

by the reporting committee;

(C) affiliated committee to which a transfer is made 

by the reporting committee during the reporting period and, 

where the reporting committee is a political party committee, 

each transfer of funds by the reporting committee to another 

political party committee, regardless of whether such committees are affiliated, together with the date and amount of such 

transfers;

(D) person who receives a loan repayment from the 

reporting committee during the reporting period, together with 

the date and amount of such loan repayment; and

(E) person who receives a contribution refund or other 

offset to contributions from the reporting committee where 

such contribution was reported under paragraph (3)(A) of this 

subsection, together with the date and amount of such disbursement;

(6) (A) for an authorized committee, the name and address 

of each person who has received any disbursement not disclosed 

under paragraph (5) in an aggregate amount or value in excess 

of $200 within the calendar year (or election cycle, in the case 

of an authorized committee of a candidate for Federal office), 

together with the date and amount of any such disbursement;

(B) for any other political committee, the name and 

address of each—

(i) political committee which has received a contribution from the reporting committee during the reporting 

period, together with the date and amount or any such 

contribution;

(ii) person who has received a loan from the reporting committee during the reporting period, together with 

the date and amount of such loan;

(iii) person who receives any disbursement during 

the reporting period in an aggregate amount or value in 

excess of $200 within the calendar year (or election cycle, 

in the case of an authorized committee of a candidate 

for Federal office) in connection with an independent 

expenditure by the reporting committee, together with 

the date, amount, and purpose of any such independent 

expenditure and a statement which indicates whether such 

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independent expenditure is in support of, or in opposition 

to, a candidate, as well as the name and office sought 

by such candidate, and a certification, under penalty of 

perjury, whether such independent expenditure is made 

in cooperation, consultation, or concert, with, or at the 

request or suggestion of, any candidate or any authorized 

committee or agent of such committee;

(iv) person who receives any expenditure from 

the reporting committee during the reporting period in 

connection with an expenditure under section 441a(d) of 

this title, together with the date, amount, and purpose of 

any such expenditure as well as the name of, and office 

sought by, the candidate on whose behalf the expenditure 

is made; and

(v) person who has received any disbursement not 

otherwise disclosed in this paragraph or paragraph (5) in 

an aggregate amount or value in excess of $200 within 

the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office) 

from the reporting committee within the reporting period, 

together with the date, amount, and purpose of any such 

disbursement;

(7) the total sum of all contributions to such political committee, together with the total contributions less offsets to contributions and the total sum of all operating expenditures made by such 

political committee, together with total operating expenditures less 

offsets to operating expenditures, for both the reporting period and 

the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office); and

(8) the amount and nature of outstanding debts and obligations 

owed by or to such political committee; and where such debts and 

obligations are settled for less than their reported amount or value, 

a statement as to the circumstances and conditions under which 

such debts or obligations were extinguished and the consideration 

therefor.

(c) Statements by other than political committees; filing; contents; 

indices of expenditures.

(1) Every person (other than a political committee) who makes 

independent expenditures in an aggregate amount or value in excess 

of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A) of this section for 

all contributions received by such person.

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(2) Statements required to be filed by this subsection shall be 

filed in accordance with subsection (a)(2) of this section, and shall 

include—

(A) the information required by subsection (b)(6)(B)(iii) 

of this section, indicating whether the independent expenditure 

is in support of, or in opposition to, the candidate involved;

(B) under penalty of perjury, a certification whether 

or not such independent expenditure is made in cooperation, 

consultation, or concert, with, or at the request or suggestion 

of, any candidate or any authorized committee or agent of such 

candidate; and

(C) the identification of each person who made a contribution in excess of $200 to the person filing such statement 

which was made for the purpose of furthering an independent 

expenditure.1

(3) The Commission shall be responsible for expeditiously 

preparing indices which set forth, on a candidate-by-candidate basis, 

all independent expenditures separately, including those reported 

under subsection (b)(6)(B)(iii) of this section, made by or for each 

candidate, as reported under this subsection, and for periodically 

publishing such indices on a timely pre-election basis.

(d) Use of facsimile machines and electronic mail to file independent 

expenditure statements.

(1) Any person who is required to file a statement under 

sub-section (c) or (g)2 of this section, except statements required to 

be filed electronically pursuant to subsection (a)(11)(A)(i) may file 

the statement by facsimile device or electronic mail, in accordance 

with such regulations as the Commission may promulgate.

(2) The Commission shall make a document which is filed 

electronically with the Commission pursuant to this paragraph accessible to the public on the internet not later than 24 hours after 

the document is received by the Commission.

1

Sections 502(a) and (c) of the Department of Transportation and Related Agencies 

Appropriations Act, 2001, Pub. L. No. 106-346, amended 2 U.S.C. § 434 by amending 

subsection (c)(2) and adding subsection (d), as well as a conforming amendment at 2 

U.S.C. § 434(a)(5). These amendments became effective with respect to elections occurring 

after January 1, 2001. Section 212(a) of the Bipartisan Campaign Reform Act of 2002 

(BCRA), Pub. L. No. 107-155, further amended section 434 by striking the undesignated 

matter after subsection (c)(2) and adding new subsection (g). This amendment is effective 

as of November 6, 2002.

2

Section 212(b) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, added a conforming amendment to section 434(d)(1). This amendment is effective as of November 6, 2002.

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(3) In promulgating a regulation under this paragraph, the 

Commission shall provide methods (other than requiring a signature 

on the document being filed) for verifying the documents covered 

by the regulation. Any document verified under any of the methods 

shall be treated for all purposes (including penalties for perjury) in 

the same manner as a document verified by signature.

(e)1 Political committee.

(1) National and congressional political committees. The 

national committee of a political party, any national congressional 

campaign committee of a political party, and any subordinate committee of either, shall report all receipts and disbursements during 

the reporting period.

(2) Other political committees to which section 323 (2 U.S.C. 

§ 441i) applies.

(A) In general. In addition to any other reporting requirements applicable under this Act, a political committee (not 

described in paragraph (1)) to which section 323(b)(1) (2 U.S.C. 

§ 441i(b)(1)) applies shall report all receipts and disbursements 

made for activities described in section 301(20)(A), (2 U.S.C. § 

431(20)(A)) unless the aggregate amount of such receipts and 

disbursements during the calendar year is less than $5,000.

(B) Specific disclosure by state and local parties of certain 

nonfederal amounts permitted to be spent on federal election 

activity. Each report by a political committee under subparagraph 

(A) of receipts and disbursements made for activities described 

in section 301(20)(A) (2 U.S.C. § 431(20)(A)) shall include a 

disclosure of all receipts and disbursements described in section 

323(b)(2)(A) and (B) (2 U.S.C. § 441i(b)(2)(A) and (B)).

(3) Itemization. If a political committee has receipts or disbursements to which this subsection applies from or to any person 

aggregating in excess of $200 for any calendar year, the political 

committee shall separately itemize its reporting for such person in 

the same manner as required in paragraphs (3)(A), (5), and (6) of 

subsection (b).

(4) Reporting periods. Reports required to be filed under 

this subsection shall be filed for the same time periods required for 

political committees under subsection (a)(4)(B).

1

Section 103 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434 to add subsection (e). This amendment is effective as of 

November 6, 2002.

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1

Section 201(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434 to add subsection (f). This amendment is effective as of 

November 6, 2002.

(f)1 Disclosure of electioneering communications.

(1) Statement required. Every person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any 

calendar year shall, within 24 hours of each disclosure date, file with 

the Commission a statement containing the information described in 

paragraph (2).

(2) Contents of statement. Each statement required to be 

filed under this subsection shall be made under penalty of perjury 

and shall contain the following information:

(A) The identification of the person making the disbursement, of any person sharing or exercising direction or control 

over the activities of such person, and of the custodian of the 

books and accounts of the person making the disbursement.

(B) The principal place of business of the person making 

the disbursement, if not an individual.

(C) The amount of each disbursement of more than $200 

during the period covered by the statement and the identification of the person to whom the disbursement was made.

(D) The elections to which the electioneering communications pertain and the names (if known) of the candidates 

identified or to be identified.

(E) If the disbursements were paid out of a segregated 

bank account which consists of funds contributed solely by 

individuals who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in section 

101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 

§ 1101(a)(20))) directly to this account for electioneering 

communications, the names and addresses of all contributors 

who contributed an aggregate amount of $1,000 or more to 

that account during the period beginning on the first day of 

the preceding calendar year and ending on the disclosure date. 

Nothing in this subparagraph is to be construed as a prohibition 

on the use of funds in such a segregated account for a purpose 

other than electioneering communications.

(F) If the disbursements were paid out of funds not 

described in subparagraph (E), the names and addresses of all 

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contributors who contributed an aggregate amount of $1,000 or 

more to the person making the disbursement during the period 

beginning on the first day of the preceding calendar year and 

ending on the disclosure date.

(3) Electioneering communication. For purposes of this 

subsection—

(A) In general. 

(i) The term ‘electioneering communication’ 

means any broadcast, cable, or satellite communication 

which—

(I) refers to a clearly identified candidate for 

Federal office;

(II) is made within—

(aa) 60 days before a general, special, 

or runoff election for the office sought by the 

candidate; or

(bb) 30 days before a primary or preference election, or a convention or caucus of 

a political party that has authority to nominate 

a candidate, for the office sought by the candidate; and

(III) in the case of a communication which 

refers to a candidate for an office other than President or Vice President, is targeted to the relevant 

electorate.

(ii) If clause (i) is held to be constitutionally 

insufficient by final judicial decision to support the regulation provided herein, then the term ‘electioneering 

communication’ means any broadcast, cable, or satellite 

communication which promotes or supports a candidate 

for that office, or attacks or opposes a candidate for that 

office (regardless of whether the communication expressly 

advocates a vote for or against a candidate) and which 

also is suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific candidate. 

Nothing in this subparagraph shall be construed to affect 

the interpretation or application of section 100.22(b) of 

title 11, Code of Federal Regulations.

(B) Exceptions. The term ‘electioneering communication’ 

does not include—

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(i) a communication appearing in a news story, 

commentary, or editorial distributed through the facilities of 

any broadcasting station, unless such facilities are owned 

or controlled by any political party, political committee, 

or candidate;

(ii) a communication which constitutes an expenditure or an independent expenditure under this Act;

(iii) a communication which constitutes a candidate debate or forum conducted pursuant to regulations 

adopted by the Commission, or which solely promotes 

such a debate or forum and is made by or on behalf of 

the person sponsoring the debate or forum; or

(iv) any other communication exempted under 

such regulations as the Commission may promulgate 

(consistent with the requirements of this paragraph) to 

ensure the appropriate implementation of this paragraph, 

except that under any such regulation a communication 

may not be exempted if it meets the requirements of this 

paragraph and is described in section 301(20)(A)(iii) (2 U.

S.C. § 431(20)(A)(iii)).

(C) Targeting to relevant electorate. For purposes of this 

paragraph, a communication which refers to a clearly identified 

candidate for Federal office is ‘targeted to the relevant electorate’ if the communication can be received by 50,000 or more 

persons—

(i) in the district the candidate seeks to represent, in 

the case of a candidate for Representative in, or Delegate 

or Resident Commissioner to, the Congress; or

(ii) in the State the candidate seeks to represent, 

in the case of a candidate for Senator.

(4) Disclosure date. For purposes of this subsection, the term 

‘disclosure date’ means—

(A) the first date during any calendar year by which a 

person has made disbursements for the direct costs of producing 

or airing electioneering communications aggregating in excess 

of $10,000; and

(B) any other date during such calendar year by which 

a person has made disbursements for the direct costs of producing or airing electioneering communications aggregating 

in excess of $10,000 since the most recent disclosure date for 

such calendar year.

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(5) Contracts to disburse. For purposes of this subsection, a 

person shall be treated as having made a disbursement if the person 

has executed a contract to make the disbursement.

(6) Coordination with other requirements. Any requirement to 

report under this subsection shall be in addition to any other reporting requirement under this Act.

(7) Coordination with Internal Revenue Code. Nothing in 

this subsection may be construed to establish, modify, or otherwise 

affect the definition of political activities or electioneering activities 

(including the definition of participating in, intervening in, or influencing or attempting to influence a political campaign on behalf of 

or in opposition to any candidate for public office) for purposes of 

the Internal Revenue Code of 1986.

(g)1 Time for reporting certain expenditures.

(1) Expenditures aggregating $1,000.

(A) Initial report. A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more 

than 24 hours, before the date of an election shall file a report 

describing the expenditures within 24 hours.

(B) Additional reports. After a person files a report under subparagraph (A), the person shall file an additional report 

within 24 hours after each time the person makes or contracts 

to make independent expenditures aggregating an additional 

$1,000 with respect to the same election as that to which the 

initial report relates.

(2) Expenditures aggregating $10,000.

(A) Initial report. A person (including a political committee) that makes or contracts to make independent expenditures 

aggregating $10,000 or more at any time up to and including 

the 20th day before the date of an election shall file a report 

describing the expenditures within 48 hours.

(B) Additional reports. After a person files a report under subparagraph (A), the person shall file an additional report 

within 48 hours after each time the person makes or contracts 

to make independent expenditures aggregating an additional 

1

Section 212(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434 by striking the undesignated matter after subsection (c)(2) 

and adding new subsection (g). This amendment is effective as of November 6, 2002.

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$10,000 with respect to the same election as that to which the 

initial report relates.

(3) Place of filing; Contents. A report under this subsection—

(A) shall be filed with the Commission; and 

(B) shall contain the information required by subsection 

(b)(6)(B)(iii), including the name of each candidate whom an 

expenditure is intended to support or oppose.

(4) Time of filing for expenditures aggregating $1,000. Notwithstanding subsection (a)(5), the time at which the statement under 

paragraph (1) is received by the Commission or any other recipient 

to whom the notification is required to be sent shall be considered 

the time of filing of the statement with the recipient.

(h)1 Reports from Inaugural Committees. The Federal Election 

Commission shall make any report filed by an Inaugural Committee 

under section 510 of title 36, United States Code, accessible to the public 

at the offices of the Commission and on the Internet not later than 48 

hours after the report is received by the Commission.

(i)2 Disclosure of bundled contributions.

(1) Required disclosure. Each committee described in paragraph (6) shall include in the first report required to be filed under 

this section after each covered period (as defined in paragraph (2)) a 

separate schedule setting forth the name, address and employer of each 

person reasonably known by the committee to be a person described 

in paragraph (7) who provided 2 or more bundled contributions to 

the committee in an aggregate amount greater than the applicable 

threshold (as defined in paragraph (3)) during the covered period, 

and the aggregate amount of the bundled contributions provided by 

each such person during the covered period.

(2) Covered period. In this subsection, a “covered period” 

means, with respect to a committee—

(A) the period beginning January 1 and ending June 30 

of each year;

(B) the period beginning July 1 and ending December 

31 of each year; and

1

Section 308(b) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, amended section 434 by adding subsection (h). This amendment is effective as 

of November 6, 2002.

2

Section 204(a) of the Honest Leadership and Open Government Act of 2007, Pub. L. 

No. 110-81, amended section 434 by adding subsection (i). This amendment applies to 

reports filed after a period that begins three months after the accompanying regulations 

promulgated by the FEC become final.

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(C) any reporting period applicable to the committee under this section during which any person described in paragraph 

(7) provided 2 or more bundled contributions to the committee 

in an aggregate amount greater than the applicable threshold.

(3) Applicable threshold.

(A) In general. In this subsection, the ‘applicable threshold’ is $15,000, except that in determining whether the amount 

of bundled contributions provided to a committee by a person 

described in paragraph (7) exceeds the applicable threshold, 

there shall be excluded any contribution made to the committee 

by the person or the person’s spouse.

(B) Indexing. In any calendar year after 2007, section 

315(c)(1)(B) (2 U.S.C. §441a(c)(1)(B)) shall apply to the amount 

applicable under subparagraph (A) in the same manner as such 

section applies to the limitations established under subsections 

(a)(1)(A), (a)(1)(B), (a)(3), and (h) of such section, except that 

for purposes of applying such section to the amount applicable 

under subparagraph (A), the ‘base period’ shall be 2006.

(4) Public availability. The Commission shall ensure that, to 

the greatest extent practicable—

(A) information required to be disclosed under this subsection is publicly available through the Commission website in 

a manner that is searchable, sortable, and downloadable; and

(B) the Commission’s public database containing information disclosed under this subsection is linked electronically 

to the websites maintained by the Secretary of the Senate and 

the Clerk of the House of Representatives containing information filed pursuant to the Lobbying Disclosure Act of 1995.

(5) Regulations. Not later than 6 months after the date of 

enactment of the Honest Leadership and Open Government Act 

of 2007 [September 14, 2007], the Commission shall promulgate 

regulations to implement this subsection. Under such regulations, 

the Commission—

(A) may, notwithstanding paragraphs (1) and (2), provide 

for quarterly filing of the schedule described in paragraph (1) 

by a committee which files reports under this section more 

frequently than on a quarterly basis;

(B) shall provide guidance to committees with respect 

to whether a person is reasonably known by a committee to 

be a person described in paragraph (7), which shall include a 

requirement that committees consult the websites maintained 

by the Secretary of the Senate and the Clerk of the House of 

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Representatives containing information filed pursuant to the 

Lobbying Disclosure Act of 1995;

(C) may not exempt the activity of a person described 

in paragraph (7) from disclosure under this subsection on the 

grounds that the person is authorized to engage in fundraising 

for the committee or any other similar grounds; and

(D) shall provide for the broadest possible disclosure of 

activities described in this subsection by persons described in 

paragraph (7) that is consistent with this subsection.

(6) Committees described. A committee described in this 

paragraph is an authorized committee of a candidate, a leadership 

PAC, or a political party committee.

(7) Persons described. A person described in this paragraph 

is any person, who, at the time a contribution is forwarded to a 

committee as described in paragraph (8)(A)(i) or is received by a 

committee as described in paragraph (8)(A)(ii), is—

(A) a current registrant under section 4(a) of the Lobbying Disclosure Act of 1995 (2 U.S.C. § 1603(a));

(B) an individual who is listed on a current registration 

filed under section 4(b)(6) of such Act (2 U.S.C. § 1603(b)

(6)) or a current report under section 5(b)(2)(C) of such Act 

(2 U.S.C. § 1604(b)(2)(C)); or

(C) a political committee established or controlled by 

such a registrant or individual.

(8) Definitions. For purposes of this subsection, the following 

definitions apply:

(A) Bundled contribution. The term “bundled contribution” means, with respect to a committee described in paragraph 

(6) and a person described in paragraph (7), a contribution 

(subject to the applicable threshold) which is—

(i) forwarded from the contributor or contributors 

to the committee by the person; or

(ii) received by the committee from a contributor 

or contributors, but credited by the committee or candidate involved (or, in the case of a leadership PAC, by the 

individual referred to in subparagraph (B) involved) to 

the person through records, designations, or other means 

of recognizing that a certain amount of money has been 

raised by the person.

(B) Leadership PAC. The term “leadership PAC” means, 

with respect to a candidate for election to Federal office or an 

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individual holding Federal office, a political committee that is 

directly or indirectly established, financed, maintained or controlled by the candidate or the individual but which is not an 

authorized committee of the candidate or individual and which 

is not affiliated with an authorized committee of the candidate

or individual, except that such term does not include a political 

committee of a political party.

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 (3) if not authorized by a candidate, an authorized political committee of a 

 candidate, or its agents, shall clearly state the name and permanent street 

 address, telephone number or World Wide Web address of the person who 

 paid for the communication and state that the communication is not 

 authorized by any candidate or candidate’s committee. 

(d) Additional requirements. 

**** 

(2) Communications by others. Any communication described in 

paragraph (3) of subsection (a) which is transmitted through radio or 

television shall include, in addition to the requirements of that paragraph, 

in a clearly spoken manner, the following audio statement: ‘_____ is 

responsible for the content of this advertising.’ (with the blank to be filled 

in with the name of the political committee or other person paying for the 

communication and the name of any connected organization of the payor). 

If transmitted through television, the statement shall be conveyed by an 

unobscured, full-screen view of a representative of the political committee 

or other person making the statement, or by a representative of such 

political committee or other person in voice-over, and shall also appear in 

a clearly readable manner with a reasonable degree of color contrast 

between the background and the printed statement, for a period of at least 

4 seconds.

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Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SPEECHNOW.ORG, et al.,

Plaintiffs

v.

FEDERAL ELECTION COMMISSION,

et al.,

Defendants

. . . . . . . . . . . . . . . .

:

:

:

:

:

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:

:

:

Civil Action No. 08-248

September 14, 2009

2:00 p.m.

. . . . . . . . . . . .

TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE JAMES ROBERTSON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiffs: STEVEN SIMPSON

INSTITUTE FOR JUSTICE

901 North Glebe Road

Suite 900

Arlington , VA 22203

(703) 682-9320

STEPHEN M. HOERSTING

CENTER FOR COMPETITIVE POLITICS

124 S. West Street

Suite 201

Alexandria , VA 22314

(703) 894-6800

For the Defendants: KEVIN DEELEY

ROBERT W. BONHAM, III

STEVE N. HAJAR

DAVID B. KOLKER

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington , DC 20463-0002

(202) 694-1556

Court Reporter: REBECCA STONESTREET, RPR,CRR

Official Court Reporter

Room 6511, U.S. Courthouse

Washington, D.C. 20001

(202) 354-3249

Proceedings reported by machine shorthand, transcript produced

by computer-aided transcription.

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. . . . 

[Pages 2-10 omitted.] 

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Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net

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evidence is a congeries of reports, opinions, scholarly papers,

quotations, the kind of stuff that none of it would be received

as evidence in a trial of any case. I mean, how am I supposed

to make findings of fact on those propositions? Do you want to

have a trial and bring all the experts in and let me decide

who's right?

MR. DEELEY: I think Your Honor can do it just the way

the McConnell court did it, just by reviewing the papers. I

mean, courts have engaged in this repeatedly; the McConnell

case, the Colorado Republican cases.

I think Your Honor can look at the evidence that's

submitted by both sides, and where one side clearly has the

upper hand on how the world has worked and how the world will

work in the future, make findings of fact. Indeed, Your Honor's

very preliminary injunction decision relied upon the fact

that -- the importance of the soft money ban, and how that was a

motivating factor that was leading people down the path that the

plaintiffs are setting upon. And that's exactly the kind of

thing that will be relevant to the DC Circuit as well as

Your Honor's preliminary injunction decision.

THE COURT: I'll let you in on a little secret,

counsel. The DC Circuit doesn't really care what I think about

these things.

MR. DEELEY: Well, I'm not sure that's right,

Your Honor. In other cases like this, the Mariani case, the

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Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net

13

would be used effectively and are appreciated by officeholders."

How do you expect me to make that finding of fact, and on the

basis of what evidence? In the first place, it's speculative.

MR. DEELEY: Your Honor, we've submitted evidence of a

history of campaign financing that shows that exactly that type

of thing occurs, through an expert witness, through people who

have been involved in the system for decades, lobbyists,

legislators. It's exactly the kind of evidence that the

McConnell court found determinative; what was the record on how

people had behaved in the past, was there a danger.

Your Honor also cited in your preamble a statement from

the McConnell court about how people test the limits of the law.

Well, how did the Supreme Court come to that decision? Evidence

that was put into the record by the defendants, exactly the same

type of thing; indeed, some of the very same declarations that

we've put before Your Honor. And that's how the Supreme Court

came to that decision.

THE COURT: Evidence put in by the defendants? Did the

District Court make findings of fact on that evidence?

MR. DEELEY: Absolutely, Your Honor. It's almost a

full volume of the F.Supp 2d. There are three different

findings of fact by Judge Leon, Judge Kollar-Kotelly, and

Judge Henderson.

THE COURT: Oh, yeah. But come on. That's three

judges who took a year to do it. Are you kidding me? You think

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Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net

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I've got a year to do this?

MR. DEELEY: You have the luxury of doing it on your

own, so you don't have to respond to anybody else's arguments.

And yeah, I think this type of case, where the way that

federal elections could finance -- I mean, our position is that

if plaintiffs prevail, there will be a new danger of corruption

that Congress only recently tried to prevent, through unlimited

contributions being used to fund federal election advertising.

Absolutely that's the kind of case that demands Your Honor's

attention, and dealing with what we admit are broad questions.

And even the special provision sort of contemplates

that. I mean, a constitutional question gets certified straight

to the DC Circuit. I mean, that doesn't indicate a sort of

narrow focus on the plaintiffs; that provision in itself shows,

and the Supreme Court, by having -- you know, despite no

provision for fact finding in the statute, but by the

Supreme Court mandating that the District Court do fact finding,

that shows that this type of -- despite it being a broad

question, that there really is supposed to be some sorting

through of the record.

So that's our position. I think it really would be

helpful to the DC Circuit. I understand Your Honor has

reservations about wading through it all, and maybe a half

measure is really just to try and isolate some of the broader

questions where you really think one side or the other has

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Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net

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really made a strong showing. If you're worried about volume,

our facts do have summary facts at the beginning of each

section, so those could be done in a more concise way.

So that's our position on the scope of Your Honor's

fact finding.

THE COURT: Okay. Well, I will tell you right now that

I'm sticking with the scope that I announced at the opening of

this. I do not conceive it to be either necessary to the

decision, nor the proper province of a District Court, to make

essentially legislative findings of fact on the basis of

reports, scholarly articles, uncross-examined expert opinions,

newspaper articles, and all the other material that has been

cited in what's presented to me. And if the Court of Appeals --

if you want to put all that together in what will be the kind of

ultimate Brandeis brief to the Court of Appeals, I'm sure that

they would be thrilled to have it.

But what they're going to get from me is findings of

fact that are, I won't call them bare bones, because even the

scope of what I've indicated I will find is going to be 20,

25 pages. And believe me, I have my own view of the McConnell

case. I'm not going to go farther than that. I do know that it

took three judges the better part of a year to put those

findings together; to what end remains to be seen, or remains on

the scrap pile of history to be seen, I suppose.

And let's turn to the question of how we're going to

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