UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

TEA PARTY LEADERSHIP FUND, et al. ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. 1:12-cv-01707-RWR 

) 

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________) 

_____________________________________________________ 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

 _____________________________________________________ 

Plaintiffs Tea Party Leadership Fund, Mr. John Raese, and Mr. Sean Bielat, by 

their undersigned attorney, respectfully move this Court for an order granting summary 

judgment pursuant to Fed. R. Civ. P. 56. As demonstrated in the accompanying 

Memorandum of Points and Authorities in Support thereof, “there is no genuine issue as 

to any material fact and [Plaintiffs are] entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c). 

Dated February 11, 2013 

Respectfully submitted, 

/s/ Dan Backer 

Dan Backer (D.C. Bar No. 996641) 

 DB Capitol Strategies, PLLC 

209 Pennsylvania Ave. SE, Suite 2109 

Washington, D.C. 20003 

202.210.5431 

 dbacker@dbcapitolstrategies.com 

Case 1:12-cv-01707-RWR Document 19 Filed 02/11/13 Page 1 of 1
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

TEA PARTY LEADERSHIP FUND, et. al., ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. 1:12-cv-01707-RWR 

) 

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463 ) 

 ) 

 Defendant. ) 

____________________________________) 

_____________________________________________________ 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

 _____________________________________________________ 

Dan Backer (D.C. Bar No. 996641) 

 DB Capitol Strategies, PLLC 

209 Pennsylvania Ave SE, Suite 2109 

Washington, D.C. 20003 

202.210.5431 

 dbacker@dbcapitolstrategies.com

Attorney for Plaintiffs 

Case 1:12-cv-01707-RWR Document 19-1 Filed 02/11/13 Page 1 of 28
i

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1 

STATEMENT OF FACTS 5 

STANDARD OF REVIEW 6 

ARGUMENT 7 

I. Plaintiffs Have Standing to Bring This Case 7

II. The Six-Month Waiting Period Amounts to an Unconstitutional 

Prior Restraint 9

III. The Six-Month Waiting Period Requirement is No Longer Closely 

Drawn to Preventing Actual or Potential Corruption		 	 12

IV. Buckley Does Not Foreclose a Ruling in Plaintiffs’ Favor 13 

A. Buckley Did Not Rule on the Waiting Period in the Present 

Context 13 

B. The 1976 FECA Amendments Resolved Buckley’s AntiCircumvention Concerns 15 

C. The Rationale Established in Buckley and Confirmed by its 

Progeny Supports a Ruling for Plaintiffs 16 

D. The FEC’s Argument that the Six- Month Waiting Period is Still 

Effective in Preventing Circumvention of Contribution Limits or 

Deterring Corruption is Unavailing 18 

V. The Six-Month Waiting Period is Overly Broad and Imposes an 

Unjustifiable Constitutional Burden 19

VI. Plaintiffs Brought Suit Without Delay to Protect Their Constitutional 

Rights 20

CONCLUSION 22

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ii

TABLE OF AUTHORITIES 

Cases Page(s) 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) 7 

Ariz. Right to Life PAC v. Bayless,

320 F.3d 1002 (2003) 9, 10

Bantam Books, Inc. v. Sullivan, 

372 U.S. 58 (1963) passim 

Buckley v. Valeo, 

424 U.S. 1 (1976) passim 

California Medical Association v. FEC, 

453 U.S. 182 (1981) 9, 10, 20

Citizens United v. FEC, 

558 U.S. 310, 130 S. Ct. 876 (2010) passim

Dombrowski v. Pfister, 

380 U.S. 479 (1965) 6 

Dorsey v. National Enquirer, Inc., 

973 F.2d 1431 (9th Cir. 1992) 7 

Elrod v. Burns, 

427 U.S. 347 (1976) 20

Emily’s LIST v. FEC, 

581 F.3d 1 (D.C. Cir. 2009) 7 

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985) 13

FEC v. Wisc. Right to Life, Inc., 

551 U.S. 449 (2007) 3, 13 

Hickey v. Capital Cities,

792 F. Supp. 1195 (D. Or. 1992) 6

NAACP v. Alabama ex. rel. Patterson,

Case 1:12-cv-01707-RWR Document 19-1 Filed 02/11/13 Page 3 of 28
iii

357 U.S. 449 (1958) 19

NAACP v. Button, 

371 U.S. 415 (1963) 6 

Nader 2000 Primary Comm., Inc. v. Hechler, 

112 F. Supp. 2d 575 (S.D. W. Va. 2000) 21, 22

New York Times Co. v. The United States, 

403 U.S. 713 (1971) 12 

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 

490 U.S. 477 (1989) 17

Stuart v. Gambling Times, 

380 U.S. 479 (1965) 7 

Tao v. Freeh, 

27 F.3d 635 (D.C. Cir. 1994) 7 

Thomas v. Collins, 

323 U.S. 516 (1945) 4, 10, 11

United States v. Stevens, 

130 S. Ct. 1577 (2010) 1

Wagner v. FEC, 

No. 11-1841, 2012 WL 1255145 (D.D.C. Apr. 16, 2012) 18, 20 

Watchtower Bible & Tract Soc’y of N.Y., Inc. v.Vill. of Stratton, 

536 U.S. 150 (2002) 10, 11, 12 

Weinstein v. Bradford, 

423 U.S. 147 (1975) 8 

Wilko v. Swan, 

346 U.S. 427 (1953) 17 

Codes, Rules, and Statutes 

Federal Election Campaign Act Amendments of 1974 passim

Federal Election Campaign Act Amendments of 1976 passim

Fed. R. Civ. P. 56(c) 7 

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iv

2 U.S.C. §§ 441a(a)(1) 3 

2 U.S.C. § 441a(a)(2) 1, 19 

2 U.S.C. § 441a(a)(4) 1 

2 U.S.C. § 441a(a)(5) 3, 15 

2 U.S.C. § 441a(a)(8) 19 

U.S. Constitution

U.S. Const. amend. I passim

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v

Tea Party Leadership Fund (“TPLF”), Mr. John Raese, and Mr. Sean Bielat 

(collectively “Plaintiffs”) respectfully submit this Memorandum of Points and Authorities 

in Support of their Motion for Summary Judgment pursuant to Rule 56 of the Federal 

Rules of Civil Procedure and Local Rule 7(h). 

PRELIMINARY STATEMENT 

The First Amendment to the United States Constitution protects the freedom of all 

to exercise their individual rights to free speech and association without being forced to 

first surmount unnecessary, arbitrary obstacles. Yet the Federal Election Commission 

(“FEC”) commands nascent political speakers to wait six months before speaking freely 

on issues of pressing public concern – including the election of candidates to public 

office. “But the First Amendment protects against the Government; it does not leave us at 

the mercy of noblesse oblige.” United States v. Stevens, 130 S. Ct. 1577, 1591 (2010). 

Plaintiffs bring this constitutional challenge to a statutory provision that broadly 

abridges First Amendment rights of political speech and association without furthering 

any legitimate governmental interest. As enforced by the FEC, this law is 

unconstitutional on its face and as applied to Plaintiffs. The six-month waiting period, 

codified at 2 U.S.C. § 441a(a)(4) (“the Provision”), requires political committees wait 

half a year before they may contribute to federal candidates for political office in the 

amount of $5,000—a level Congress has determined poses no threat of corruption. See 2 

U.S.C. § 441a(a)(2)(A). 

TPLF, a non-connected political action committee, and its more than 25,000 

donors, wished to contribute to political candidates in this non-corrupting amount in the 

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2

most recent federal elections. Messrs. Raese and Bielat, as federal candidates for office, 

wished to accept these contributions. Yet, because six months had not elapsed since 

TPLF’s initial registration, the Provision prohibited TPLF and Messrs. Raese and Bielat 

from engaging in their desired political speech until after the general election. Thus, the 

Provision deprived Plaintiffs and countless donors of their constitutional rights to speech 

and association at the very moment it mattered most. 

The Provision is an anachronism from a bygone era. In 1974, Congress amended 

the Federal Election Campaign Act (“the FECA”) in pointed response to the Watergate 

scandal and reports of rampant corruption and serious financial abuse in the 1972 

presidential campaign. To define and deter such illegal campaign contributions, Congress 

imposed on political action committees (“PACs”) a host of registration requirements. 

Congress defined the term “political committee” as “an organization registered as a 

political committee under section 303 of the Federal Election Campaign Act of 1971 for a 

period of not less than 6 months, which has received contributions from more than 50 

persons and [. . .] has made contributions to 5 or more candidates for Federal office.” 

Federal Election Campaign Act Amendments of 1974, § 101(b)(2), Pub. L. 93-443, 88 

Stat. 1263, 1275-76 (Oct. 15, 1974). Under the 1974 Amendments, no individual could 

contribute in excess of $1,000 to any candidate per election, and additional amendments 

two years later further imposed an aggregate contribution limit to any and all candidates 

and PACs of $25,000 per calendar year. Id. at 1276, § 101(b)(3). The 1974 Amendments 

also instituted a $5,000 contribution limit per candidate per election for PACs and party 

committees, with no aggregate limit on the amount PACs and party committees could 

contribute to all candidates. Id. at 1275; § 101(b)(2).

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In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court reviewed the multiple 

registration requirements for PACs, concluding the requirements served the general 

purpose of preventing corruption and, specifically, prevented individuals from 

circumventing base contribution limits. Id. at 35-36. Thus, Buckley determined the 

government has a valid interest in specifically preventing circumvention of contribution 

limits. See id. 

In 1976, Congress responded to the Court’s concerns, again amending the FECA 

to prohibit this very avenue of circumvention. Federal Election Campaign Act 

Amendments of 1976, Pub. L. 94-283, Title I, 90 Stat. 486 (May 11, 1976) (“the 1976 

Amendments”). The 1976 Amendments imposed additional contribution limits and 

“nonproliferation provisions”1

 directly aimed at preventing individuals from evading 

contribution limits. Id. Henceforth, PACs sponsored by the same organization or 

individual would be treated as “affiliated” and held to a single contribution limit. Id.

Thus, the 1976 Amendments conclusively prevented contributors from funneling, short of 

illegal earmarking, contributions to candidates above the base limits Congress had 

already determined pose no cognizable threat of corruption. See generally 2 U.S.C. §§ 

441a(a)(1) and (2). As a result, the six=month waiting period enacted in 1974 had 

become, by 1977, a “prophyla[ctic]-upon-prophylaxis,” see FEC v. Wisc. Rt. to Life, Inc., 

551 U.S. 449, 478-79 (2007), making it entirely ineffective and irrelevant to preventing 

circumvention of contribution limits. The 1976 Amendments legislatively nullified 

Buckley’s rationale for requiring PACs to wait six months before making non-corrupting 

																																																								

1

 The anti-proliferation rules provide: “For purposes of the limitations provided by paragraph (1) and (2) 

[the contribution limits], all contributions made by political committees established or finances or 

maintained or controlled by ... any ... person ... or group of such persons, shall be considered to have been 

made by a single political committee.” 2 U.S.C. § 441a(a)(5). 

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contributions up to $5,000 to candidates. Accordingly, these amendments fundamentally 

altered the campaign finance paradigm and rendered the Provision constitutionally 

defective. That no court has subsequently reviewed the Provision makes it no less flawed. 

After the 1976 Amendments, no compelling (or even valid) reason exists to 

enforce the Provision as an anti-corruption measure. Accordingly, the Provision currently 

serves as nothing more than an invalid prior restraint on speech. The Supreme Court has 

repeatedly and emphatically recognized that any system imposing a prior restraint on 

speech bears a heavy presumption of invalidity. Bantam Books, Inc. v. Sullivan, 372 U.S. 

58, 70 (1963). Further, the Supreme Court has taken an expansive view of prior restraints 

to encompass all statutes that have the effect of inhibiting speech before its utterance. See 

Thomas v. Collins, 323 U.S. 516, 539 (1945). Forcing a political committee to wait six 

months before enjoying the same amount of speech as other similarly situated speakers is 

just such a statute: the Provision employs an arbitrary administrative barrier to preclude 

certain speakers’ speech before its utterance. Requiring speakers to wait six months 

before speaking is entirely ineffective in satisfying the FEC’s purported goal of 

preventing corruption, as there is no corruption the Provision could possibly prevent. 

The FEC deprived Plaintiffs of their most important constitutional guarantees 

during the most critical time for political speech—before the general election—and 

continues to infringe on countless other putative political speakers’ rights. Indeed, eight 

federal elections—special primary elections and special general elections—are already 

scheduled within the next six months, and the valuable speech of countless speakers will 

be entirely foreclosed. 

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In the face of such grave First Amendment injuries, the FEC’s flawed 

justifications cannot save the Provision’s constitutionality. The FEC steadfastly continues 

to cite an anti-corruption rationale (now invalidated), and implausibly suggests the 

Provision is necessary to prevent circumvention (now impossible). Central to its defense 

is Buckley, the seminal campaign finance case that actually supports Plaintiffs’ position. 

Indeed, Buckley expressly held a six-month waiting period foreclosing political speech 

could be constitutional only if necessary to prevent circumvention of contribution limits. 

With such circumvention now impossible, Buckley directs that the Provision be found 

unconstitutional. As a matter of law, the six-month waiting period currently operates as 

an invalid prior restraint that inhibits political speech. This Court should therefore follow 

Buckley, declare the Provision unconstitutional, and grant summary judgment for 

Plaintiffs. 

STATEMENT OF FACTS 

 Plaintiff the Tea Party Leadership Fund is a non-connected PAC that registered 

with the FEC on May 9, 2012. Verified Compl. ¶ 4. TPLF quickly amassed several 

thousand donors and hundreds of thousands of dollars in small-dollar contributions from 

its grassroots donors. TPLF further contributed to a number of candidates for federal 

office in the maximum amount of $2,500 permitted by law. Among these candidates were 

Plaintiff Mr. John Raese, the 2012 Republican candidate for the United States Senate 

from West Virginia, and Plaintiff Mr. Sean Bielat, the 2012 Republican challenger for the 

House of Representatives from Massachusetts Fourth congressional district. VC ¶ 24-25. 

As TPLF continued to draw into association many thousands of like-minded contributors, 

TPLF desired to contribute an additional $2,500 of its grassroots support to Messrs. 

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Raese and Bielat. But the Provision barred TPLF from contributing to Messrs. Raese and 

Bielat until days after the November elections. VC ¶ 4. As a result, TPLF’s speech was 

preemptively foreclosed, and Plaintiffs Raese and Bielat were forever deprived of those 

funds by operation of law. VC ¶¶ 38, 50. 

Plaintiffs previously submitted an Advisory Opinion Request to the FEC that 

asked the FEC to recognize the inapplicability of this particular statute in the wake of 

overwhelming legal authority against such preemptive restraints on speech. VC ¶ 51. The 

FEC declined the opportunity to follow the Constitution, VC ¶¶ 53-55, claiming they had 

no authority to deviate from the statutory text despite having done so in the past when 

examining other now-unconstitutional provisions. See AOR 2010-09; AOR 2010-11. 

Immediately thereafter, TPLF commenced this litigation.

STANDARD OF REVIEW 

Summary judgment is the “preferred means of dealing with First Amendment 

cases due to the chilling of First Amendment rights inherent in expensive and timeconsuming litigation.” Hickey v. Capital Cities, 792 F.Supp. 1195, 1199 (D. Or. 1992) 

(citing Basilius v. Honolulu Pub. Co., Ltd., 711 F.Supp. 548, 550 (D. Hawaii 1989)). 

Accordingly, summary judgment is favored because “unnecessarily protracted litigation 

would have a chilling effect upon the exercise of First Amendment rights and because 

speedy resolution of cases involving free speech is desirable.” Dorsey v. National 

Enquirer, Inc., 973 F.2d 1431, 1435 (9th Cir. 1992). See also Dombrowski v. Pfister, 380 

U.S. 479, 486-87 (1965) (“hazard of loss or substantial impairment of [First Amendment 

rights] may be critical”); NAACP v. Button, 371 U.S. 415, 431-433 (1963); Stuart v. 

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Gambling Times, 534 F.Supp. 170, 172 (D.N.J. 1982) (summary judgment is the 

“preferable means of dealing with First Amendment cases”). 

“A party is entitled to summary judgment if the pleadings, depositions, and 

affidavits demonstrate that there is no genuine issue of material fact in dispute and that 

the moving party is entitled to judgment as a matter of law.” EMILY's List v. FEC, 569 F. 

Supp.2d 18, 34 (D.D.C. 2008) (citing Fed. R. Civ. P. 56(c) and Tao v. Freeh, 27 F.3d 

635, 638 (D.C. Cir. 1994)). The condition that there be no “genuine issue of material 

fact” does not make summary judgment improper if there is some disagreement as to any 

fact: instead, “[b]y its very terms, this standard provides that the mere existence of some 

alleged factual dispute between the parties will not defeat an otherwise properly 

supported motion for summary judgment; the requirement is that there be no genuine 

issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). 

This case presents a plain question of constitutional law—whether requiring speakers to 

wait six months before speaking freely amounts to a prior restraint on speech—that is 

well suited for immediate resolution through summary judgment. There is no genuine 

issue of material fact, and Plaintiffs are entitled to judgment as a matter of law. 

ARGUMENT 

I. Plaintiffs Have Standing To Bring This Case 

As a preliminary matter, Plaintiffs reaffirm they have standing to bring this claim 

to protect their constitutional rights. The FEC strenuously and unconvincingly argued this 

case demanded discovery to satisfy standing concerns. The FEC suggested TPLF 

intentionally delayed registering with the FEC to create the Article III controversy 

necessary to challenge the Provision. Nonetheless, according to the FEC, this case is 

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moot because the six-month period passed for TPLF and now—well after the general 

election—TPLF is free to speak on equal terms with other PACs, and because candidates 

Raese and Bielat are no longer candidates. 

The FEC is wrong. Plaintiffs’ claims are well within the doctrine of “capable of 

repetition, yet evading review.” See Weinstein v. Bradford, 423 U.S. 147 (1975). In 

Plaintiffs’ Motion to Stay Discovery and Reply Memo in Support of this Motion, 

Plaintiffs fully articulated the reasons this doctrine applies. In short, countless PACs and 

candidates will continue to confront identical barriers to those faced by Plaintiffs. Indeed, 

Plaintiffs pointed to two special elections on the near horizon where the Provision would 

foreclose nascent PACs from full advocacy. Plaintiffs’ Motion to Stay Discovery at 6. 

Failure to recognize Plaintiffs’ standing here would permit the FEC to take advantage of 

the natural pace of litigation and potentially evade every future constitutional challenge to 

the Provision. 

Events have demonstrated the prescience of Plaintiffs’ claims. On February 8, 

2013, Plaintiff Sean Bielat formed an authorized committee and filed a Statement of 

Candidacy with the FEC as a candidate for the April 30, 2013 special primary election for 

Senate in Massachusetts. A declaration to this effect is attached to this memorandum. 

This announcement forecloses the FEC’s prior argument that Plaintiffs claims are not 

within the capable of repetition yet evading review doctrine. Indeed, Mr. Bielat currently 

wishes to solicit and accept contributions to the full extent of the law, but will be unable 

to solicit or receive this amount from any PACs registered after October 31, 2012. Every 

PAC registering less than six months before the Massachusetts special election will be 

barred from exercising the same non-corrupting speech that other PACs enjoy because of 

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9

the Provision. The continuing injury to Plaintiffs’ First Amendment rights in such close 

proximity to an election makes the resolution of this constitutional question all the more 

urgent. 

II. The Six-Month Waiting Period Amounts to an Unconstitutional Prior 

Restraint 

The First Amendment provides: “Congress shall make no law . . . abridging the 

freedom of speech.” U.S. Const. amend. I. Because prior restraints—laws requiring 

permits, licenses, waiting periods or any official permission to speak—naturally abridge 

the freedom of speech. The United States Supreme Court has repeatedly emphasized 

prior restraints are particularly suspect. “Any system of prior restraints of expression 

comes to this Court bearing a heavy presumption against its constitutional validity.” 

Bantam, 372 U.S. 58 at 70 (emphasis added). Accordingly, courts allow waiting periods 

only in the face of an acute government interest in preventing corruption, and only when 

the limitation is no broader than necessary to achieve that interest. California Medical 

Association v. FEC, 453 U.S. 182, 203 (1981) (“CalMed”). 

Here, the Provision abrogates well-established principles of constitutional law 

proscribing prior restraints. With no valid anti-corruption interest at stake, the Provision 

nonetheless broadly limits speech before its utterance, prohibiting nascent PACs from 

exercising the same right to speech enjoyed by entrenched political insiders. This 

restriction is particularly detrimental to grassroots organizations, who spontaneously 

respond to salient political events and whose unplanned speech is vital to the political 

process and deserves the greatest protection—not premature suppression at the hands of 

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an overzealous federal regulator. See Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002, 

1008 (9th Cir. Ariz. 2003). 

The Supreme Court previously permitted this waiting period only in the face of an 

acute government interest in preventing corruption—specifically, the corruption rooted in 

the circumvention of contribution limits. Buckley, 424 U.S at 35-36. But this anticircumvention rationale cannot render the Provision constitutional today. After Buckley, 

Congress addressed the very corruption problem the Court previously determined the 

government had a valid interest in rectifying. With no anti-circumvention interest at 

stake, the waiting period requirement is invalid as an unjustifiable prior restraint, and is 

unconstitutional. See CalMed, 453 U.S. at 203. 

The Supreme Court construes prior restraints broadly to encompass any 

government restrictions having the effect of barring or discouraging speech before its 

utterance, reserving special concern for registration requirements that act to ban 

spontaneous speech. See Thomas v. Collins, 323 U.S. 516 (1945); see also Ariz. Right to 

Life PAC, 320 F.3d at 1008 (“Restricting spontaneous political expression places a severe 

burden on political speech because, as the Supreme Court has observed, ‘timing is of the 

essence in politics . . . and when an event occurs, it is often necessary to have one's voice 

heard promptly, if it is to be considered at all’”) (quoting Shuttlesworth v. City of 

Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J., concurring). 

In fact, even purely ministerial restrictions may not be imposed as a precondition 

to speech. Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 

(2002). In Watchtower Bible, the Court considered a town ordinance that required doorto-door canvassers to register and obtain a permit before calling on residents at their 

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homes. Id. at 165. Jehovah’s Witnesses challenged the law as an unconstitutional prior 

restraint. While noting the ordinance was generally applicable, the Court found its 

application to religious and political causes was unjustified. Id. at 165. The Court stated: 

“Even if the issuance of permits...is a ministerial task...a law requiring a permit to 

engage in such speech constitutes a dramatic departure from our national heritage and 

constitutional tradition.” Id. at 165-66. Together, Thomas and Watchtower Bible illustrate 

that even requiring registration with the State before making a meaningful contribution is 

an unconstitutional prior restraint, in part because it burdens “spontaneous speech.” 

Watchtower Bible, 536 U.S. at 167. 

Finally, laws that function as the equivalent of a prior restraint cannot escape First 

Amendment scrutiny. In Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme 

Court construed prior restraints to include not just a permit or license, but also FEC 

Advisory Opinions. Although the FEC regulatory scheme was “not a prior restraint in the 

strict sense of that term,” since “prospective speakers [were] not compelled by law to 

seek an advisory opinion from the FEC before the speech takes place,” the Court 

recognized it “function[ed] as the equivalent of a prior restraint” and was a 

“governmental practice[] of the sort that the First Amendment was drawn to prohibit.” Id.

at 895- 96 (emphasis added). 

In light of Supreme Court precedent, the FEC’s protestation that the Provision is 

not a prior restraint (merely because it does not take the form of a license or permit) is 

inapt. See Def.’s Opp’n at 24- 25. Indeed, the Provision is functionally and legally 

identical to the aforementioned invalidated laws that imposed a cost on the speaker 

before speaking: the waiting period similarly delays, discourages—and even prevents—

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proposed lawful speech. See, e.g., Bantam Books, 372 U.S. at 70-71. Of particular import 

is the waiting period’s impact on spontaneous political speech. Watchtower Bible, 536 

U.S. at 167. 

The FEC posits because TPLF already had some opportunity to speak and 

“already made contributions to many candidates,” the Provision cannot be a prior 

restraint that “bars” speech. Def.’s Opp’n at 24. The FEC apparently suggests if some 

speech is allowed, the fact that other desired speech is foreclosed does not amount to a 

prior restraint. See id. Yet, this skewed rationale supports government censorship. Such 

reasoning is not only anathema to the First Amendment but has also suffered clear defeat 

at the hands of the Supreme Court. See, e.g., New York Times Co. v. The United States, 

403 U.S. 713 (1971) (holding that the government’s attempt to prevent newspapers from 

publishing certain articles on matters of public interest amounted to an unconstitutional 

prior restraint). 

Given these grave constitutional concerns, this Court cannot simply defer to 

Congress’s judgment, as the FEC suggests. Def.’s Opp’n at 21. Since Near v. Minnesota, 

when the Supreme Court concluded prior restraints were repugnant to the First 

Amendment, the Court has been continually vigilant in invalidating prior restraints, in 

any form. 283 U.S. 697 (1931); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58 

(1963); Watchtower Bible, 536 U.S. 150 (1990), et al. This Court should do the same. 

III. The Six-Month Waiting Period Requirement is No Longer Closely Drawn to 

Preventing Actual or Potential Corruption 

 

In order for a speech restriction to survive to survive constitutional scrutiny, it 

must be narrowly tailored to further a compelling government interest in preventing 

corruption or its appearance. See, e.g., Citizens United, 130 S. Ct. at 908-909 (identifying 

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the sole interest sufficiently compelling to limit contributions to political organizations as 

preventing the actual or apparent quid pro quo corruption of candidates); see also FEC v. 

Nat’l Conservative Political Action Comm., 470 U.S. 480, 496-497 (1985) (“preventing 

corruption or the appearance of corruption are the only legitimate and compelling 

government interests thus far identified for restricting campaign finances”). Laws 

burdening political speech are subject to strict scrutiny, which requires the government to 

prove the law “furthers a compelling interest and is narrowly tailored to achieve that 

interest.” WRTL, 551 U.S. at 464. 

The FEC cannot demonstrate a compelling, or even valid, interest in forcing 

TPLF to wait six months before making non-corrupting contributions. The FEC attempts 

to justify enforcing this prior restraint by invoking the anti-corruption, anti-circumvention 

rationale articulated in Buckley. Def.’s Opp’n at 9-13. But Buckley explicitly held the 

only government interest sufficient to proscribe speech is preventing corruption. There, 

the government had an anti-corruption interest in preventing circumvention of base 

contribution limits. But because subsequent legislation rendered such circumvention 

impossible, the burden falls on the FEC to demonstrate how the Provision is still closely 

drawn to preventing corruption—something the FEC has failed to do. 

IV. Buckley Does Not Foreclose a Ruling in Plaintiffs’ Favor 

A. Buckley Did Not Rule on the Waiting Period in the Present Context 

When the Supreme Court decided Buckley, the campaign finance landscape was 

vastly different. To remedy perceived abuses in the 1972 elections, Congress had passed 

legislation seeking to “limit the actuality and appearance of corruption resulting from 

large individual financial contributions.” Buckley, 424 U.S. at 26, n.28. The Provision 

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was included in this legislation, which allowed “political committees” to contribute up to 

$5,000 to any candidate with respect to any election for federal office. Federal Election 

Campaign Act Amendments of 1974, § 101(b)(2), Pub. L. 93-443, 88 Stat. 1263, 1275-76 

(Oct. 15, 1974). In order to contribute that maximum non-corrupting amount, rather than 

the much lower limit available to individuals, a group must receive contributions from 

more than 50 persons and make contributions to five or more candidates for federal 

office. Buckley, 424 U.S. at 35. The group must also register with the FEC as a political 

committee under 2 U.S.C. § 433 (1970 ed., Supp. IV) for at least six months. 

Buckley conclusively protected political speech and association while 

simultaneously recognizing some qualifications on speech might survive constitutional 

scrutiny—but only to serve the single valid government interest in eliminating corruption. 

See id. at 26-29. The Buckley Court thus determined regulations on “registration, 

contribution, and candidate conditions serve[d] the permissible purpose of preventing 

individuals from evading the applicable contribution limitations by labeling themselves 

committees.” Id. at 35-36. By affirming the D.C. Circuit Court’s holding, the Supreme 

Court clarified that without this “six-month protective shield,” individuals could evade 

the contribution limits, and “two or three persons could acquire the $5,000 committee 

contribution authority . . . merely by organizing themselves as a political committee.” 

Buckley v. Valeo, 519 F.2d 821, 857-58 (D.C. Cir. 1975) (en banc), aff’d in relevant part 

and rev’d in part, 424 U.S. 1 (1976). Accordingly, this anti-circumvention rationale 

formed the sole basis for holding the Provision constitutional. See id. The inevitable 

corollary of such reasoning is that if individuals could not evade the contribution limits 

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by organizing themselves as a PAC, the six-month protective shield would be rendered 

unnecessary—and its prior constitutional protection would disappear. 

B. The 1976 FECA Amendments Resolved Buckley’s AntiCircumvention Concerns 

In response to the Buckley Court’s circumvention concerns, Congress amended 

the FECA, enacting supplementary measures to prevent the feared evasion of 

contribution limits in the Federal Election Campaign Act Amendments of 1976. Pub. L. 

94-283, Title I, 90 Stat. 486 (May 11, 1976). As the FEC notes, the 1976 Amendments 

were intended “to limit additional methods of circumventing contribution limits—

methods that the prior version of FECA had not addressed.” Def.’s Motion in Opp’n at 6 

(emphasis added). First, Congress enacted new contribution limits that prohibited 

individuals from contributing more than $5,000 to a PAC and limited multicandidate 

committees to contributing $15,000 per year to a national party committee. Further, the 

1976 Amendments added the nonproliferation provisions—a prophylactic measure 

designed specifically to prevent circumvention of base contribution limits. Id. Finally, the 

new law provided all PACs sponsored by the same organization or individual would 

henceforth be treated as “affiliated” and held to a single contribution limit. Id.; 2 U.S.C. § 

441a(a)(5). 

Congress’s changes to the FECA meant no matter how many PACs an individual 

established subsequent to the 1976 Amendments, those PACs could not collectively give 

more than $5,000 per candidate per election. In short, the 1976 Amendments foreclosed 

the ability of those wishing to circumvent the contribution limit. The 50-person 

contributor requirement ensured PACs were not controlled by one person, and the 

requirement the PAC contribute to five or more candidates guaranteed it was not 

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established to support a single candidate. Notably, with over 20,000 donors and an 

average donation of under $50, TPLF easily fulfills these requirements, which together 

render the FEC’s notion of circumvention unworkable. 

Thus, the 1976 Amendments handily remedied the circumvention problem, which 

concerned the Buckley Court. Through this “fix,” individuals were no longer able to 

evade the contribution requirements through subterfuge. With the prior circumvention 

risk entirely rectified—and the government’s anti-corruption interest simultaneously 

dissolved—there can be no constitutionally permissible rationale to require newly formed 

PACs to wait six months to contribute to the full, non-corrupting extent of the law. In this 

manner, the 1976 Amendments transformed the Provision from a justifiable anticorruption measure into an unconstitutional restriction on political speech. 

C. The Rationale Established in Buckley and Confirmed by its Progeny 

Supports a Ruling for Plaintiffs

Undeterred by the unconstitutionality of its position, the FEC argues even if the 

six-month waiting period is now obsolete, this Court should ignore this inconvenience 

because “this Court does not have the authority to overrule Buckley.” Def.’s Motion in 

Opp’n at 13. But the FEC’s argument misses the point: this Court need not overrule 

Buckley in order to find for Plaintiffs. Succinctly put, a ruling the Provision is 

unconstitutional would not disturb Buckley. 

The FEC obfuscates the issue, perhaps unwittingly, by succumbing to a classic 

legal fallacy. It conflates the Supreme Court’s final determination that a statutory 

provision was constitutional with the Court’s underlying reasoning—that the government 

can have a valid interest in limiting corruption and its appearance. Buckley, 424 U.S. at 

26-29. Indeed, Plaintiffs do not suggest this Court “disregard Buckley,” Def.’s Motion in 

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Opp’n at 14, but instead ask this Court to read Buckley for its plain conclusion: the 

Supreme Court justified the prior restraint based only on the government’s legitimate 

interest in circumvention. Absent that interest, Buckley, and a long history of Supreme 

Court First Amendment jurisprudence, mandate this prior restraint be found 

unconstitutional. 

The FEC rejoins with Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 

U.S. 477 (1989), where the Supreme Court considered whether a pre-dispute agreement 

to arbitrate securities claims was enforceable. Id. at 478. But Rodriguez is inapt, and not 

merely because it has nothing to do with the First Amendment. There, the Court of 

Appeals independently assumed the Supreme Court now favored arbitration as a means 

of dispute resolution, so it was not bound by directly controlling Supreme Court 

precedent that held just the opposite. Further, the Rodriguez court on its own volition 

overturned this precedent based on a statute Congress had never modified post-hoc. Thus, 

the Court of Appeals clearly overstepped its authority. 

Here, the Supreme Court’s holding on the Provision in Buckley does not directly 

apply, nor do Plaintiffs’ arguments rest on reasons rejected in subsequent decisions. In 

Rodriguez, the Court of Appeals considered the Securities Act of 1933, not changed or 

amended since the Supreme Court’s prior decision addressing the same exact issue in 

Wilko v. Swan, 346 U.S. 427 (1953). Therefore, Wilko directly controlled the outcome. 

Here, this Court is considering the constitutionality of a different statute; indeed, a statute 

Congress amended in direct response to Buckley’s holding. 

Plaintiffs have never challenged Buckley’s central holding: the government has an 

interest in limiting corruption or its appearance, provided the statute is “closely drawn” 

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and “avoid[s] unnecessary abridgment of associational freedoms.” Wagner v. FEC, No. 

11-1841, 2012 WL 1255145, at *6 (D.D.C. Apr. 16, 2012) (quoting Buckley, 424 U.S. at 

25). But because post-Buckley congressional modifications addressed the Court’s 

specific grounds for finding the restraint valid, the anti-circumvention interest no longer 

exists. The resulting statute is no longer closely drawn to the now-vanished interest, and 

the Provision cannot be upheld. 

D. The FEC’s Argument that the Six-Month Waiting Period is Still 

Effective in Preventing Circumvention of Contribution Limits or 

Deterring Corruption is Unavailing 

The FEC puts forth several anti-corruption interests in an attempt to save the 

Provision. First, the FEC broadly argues the “registration requirement” continues to limit 

circumvention of personal contribution limits. See Def.’s Motion in Opp’n 16-17. Yet, 

the FEC obscures the real issue, expounding upon the general virtues of requiring PACs 

to meet some registration requirements. A speech restraint is not a mere ministerial 

registration requirement. The Provision interjects time between a group’s formation and 

that group’s desire to speak freely and fully. Referring to this Provision as a “registration 

requirement” does not render it somehow constitutional. Indeed, despite the curative 

force of the 1976 Amendments, the FEC steadfastly contends the government has a valid 

interest in preventing circumvention of contribution limits—but fails to adequately 

demonstrate how this government interest is presently furthered by the Provision. 

Instead of definitive legal arguments, the FEC creatively trots out an 

unsubstantiated parade of potential horribles and attempts to create a nonexistent slippery 

slope argument. First, the FEC suggests the possibility of “massive contributions to 

candidates” through the use of “unearmarked contributions to political committees.” 

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Def.’s Opp’n at 18, quoting Buckley, 424 U.S. at 38. But the average contribution to 

TPLF is less than $50. Moreover, the 1976 Amendments prevent TPLF from contributing 

$5,000 to any particular PAC and then directing those funds to a particular candidate: that 

is an earmarked contribution which the FECA requires be reported as such, and which 

counts against TPLF’s contribution limit. 2 U.S.C. §§ 441a(a)(8). 

Thus, even if TPLF could “go to the internet” to locate these supposed overnight 

PACs, as the FEC suggests, TPLF cannot lawfully “channel” large contributions through 

these PACs, because the contribution limits still apply. Indeed, the most TPLF can give 

to any PAC is still the same non-corrupting amount of $5,000. See Def.’s Opp’n at 19; 

see 2 U.S.C. 441(a)(2)(A). The FEC, of course, has not proffered any evidence of TPLF’s 

effort to engage in such nefarious conduct. In fact, this has never occurred, precisely 

because the FECA criminalizes such conduct. The FEC’s suggestion that two separate 

organizations will criminally conspire to engage in an activity that has never occurred is 

facetiously obdurate. Indeed, a PAC that desired to support a candidate’s election could 

easily do so within the law by simply spending funds on independent expenditures. 

V. The Six-Month Waiting Period is Overly Broad and Imposes an 

Unjustifiable Constitutional Burden 

The FECA’s contribution limits “operate in an area of the most fundamental First 

Amendment activities,” and the protections provided by that “‘constitutional guarantee 

ha[ve their] fullest and most urgent application precisely to the conduct of campaigns for 

political office.’” Buckley, 424 U.S. at 14-15 (internal citations omitted). The First 

Amendment also vigorously protects political association: “[g]overnmental action which 

may have the effect of curtailing the freedom to associate is subject to the closest 

scrutiny.” NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 461-62 (1958). Due to the 

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recognized importance of First Amendment rights in our nation’s tradition, which are 

unquestionably paramount during the conduct of campaigns and elections, the Supreme 

Court has repeatedly subjected laws that burden political speech and association to 

exacting scrutiny. See, e.g., Citizens United, 130 S. Ct. at 908-909. 

In line with this tradition, contribution limits to campaigns are constitutionally 

permissible only when two requirements are simultaneously present: the government 

must have a valid interest in preventing corruption, and the law cannot unnecessarily 

burden First Amendment rights in achieving this interest. See CalMed, 452 U.S. at 203. 

The controlling opinion in CalMed mandates “contributions to political committees can 

only be limited if those contributions implicate the governmental interest in preventing 

actual or potential corruption [of candidates], and if the limitation is no broader than 

necessary to achieve that interest.” Id. (Blackmun, J., concurring in part and in the 

judgment). This reaffirms Buckley’s requirement that “[a] restriction that is closely drawn 

must nonetheless ‘avoid unnecessary abridgement of associational freedoms.’” Wagner,

No. 11-1841 at *6 (quoting Buckley, 424 U.S. at 25). 

Taking account of this settled law, and that the 1976 Amendments rendered the 

Provision entirely useless in preventing corruption or the circumvention of contribution 

limits, the six-month waiting period is not closely drawn to avoiding corruption, and 

unnecessarily abridges speech and associational freedoms. 

VI. Plaintiffs Brought Suit Without Delay to Protect Their Constitutional Rights 

“The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). 

Courts have recognized individuals cannot be tasked with somehow anticipating such 

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constitutional injury. “Ordinary citizens should not be forced to anticipate and predict 

possible constitutional violations and be burdened with protecting against them, on pain 

of losing their rights.” Nader 2000 Primary Comm., Inc. v. Hechler, 112 F. Supp. 2d 575, 

579, n.2 (S.D. W. Va. 2000). As the Supreme Court has conclusively determined, “The 

First Amendment does not permit laws that force speakers to retain a campaign finance 

attorney . . . before discussing the most salient political issues of our day.” Citizens 

United, 130 S. Ct. at 889. 

Plaintiffs wished to exercise their First Amendment freedoms and the Provision 

barred them from doing so, unquestionably causing an irreparable injury: Plaintiffs lost 

their right to speak. To escape this reality, the FEC does not contend Plaintiffs suffered 

no actual harm, but instead suggests their constitutional injury was somehow selfinflicted. Def.’s Opp’n at 26-29. 

First, the FEC posits TPLF erred in “choosing” to register too late as a PAC. 

Def.’s Opp’n at 26-27. The FEC complains TPLF sent its paperwork by registered mail 

rather than immediately sending its form “by overnight delivery to ensure registration by 

May 3.” The overnight delivery method, as the FEC contends, would have allowed TPLF 

to qualify for the higher contribution limits three days prior to the general election. Id. 

But surely First Amendment rights cannot be so tenuous as to hinge upon the vagaries of 

postal delivery service. 

The FEC fails to account for the fact that, as a grassroots organization which 

relies almost entirely on contributions from mostly small dollar donors, TPLF is not an 

expert in campaign finance law—nor is such required. See Citizens United, 130 S. Ct. at 

889. Despite Supreme Court admonition to the contrary, the FEC seemingly expects 

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every PAC comprised of ordinary, like-minded individuals to anticipate a constitutional 

injury and protect against it, on consequence of losing their rights. See Nader, 112 F. 

Supp. 2d 575 at 579. But “[t]he First Amendment does not permit laws that force 

speakers to retain a campaign finance attorney . . . before discussing the most salient 

political issues of our day.” Citizens United, 130 S. Ct. at 889. The penalty for not being 

sufficiently “lawyered up”? The loss of Plaintiffs’ rights to free speech when they 

mattered most—before the general election. 

The FEC continues undeterred in blaming Plaintiffs, characterizing the instant 

case as an “inexcusably late-filed suit” and accusing Plaintiffs of employing dilatory 

tactics. Def.’s Opp’n at 1, 27. The FEC argues Plaintiffs should have filed a lawsuit 

immediately, Def.’s Opp’n. at 28, but cites no authority for its proposition an 

unconstitutional law is rendered constitutional because a plaintiff brought suit later than 

the government might prefer. 

Indeed, Plaintiffs requested an Advisory Opinion from the FEC, then filed suit 

immediately after the FEC denied the request. But even if Plaintiffs had failed to act as 

quickly as technically possible, such a lapse would not result in the loss of Plaintiffs’ 

constitutional rights. “[E]ven when such individuals [...] have failed to act with dispatch 

to challenge the law,” they “should not have to sacrifice First Amendment rights because 

[the government] imposed unconstitutional requirements.” Nader, 112 F. Supp. 2d at 579, 

n.2. 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully ask this Court to GRANT their 

Motion for Summary Judgment. 

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Dated February 11, 2013 

Respectfully submitted, 

/s/ Dan Backer 

Dan Backer (D.C. Bar No. 996641) 

 DB Capitol Strategies, PLLC 

209 Pennsylvania Ave. SE, Suite 2109 

Washington, D.C. 20003 

202.210.5431 

 dbacker@dbcapitolstrategies.com 

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