JOSEPH E. SANDLER

NEIL P. REIFF

JOHN HARDIN YOUNG

SANDLER, REIFF & YOUNG

50 E STREET, S.E. 

SUITE 300 

WASHINGTON, D.C. 20003 

(202) 479-1111 

Counsel for California 

Democratic Party 

Appellants 

CHARLES H. BELL, JR.

BELL, MCANDREWS, 

HILTACHK & DAVIDIAN LLP 

455 Capitol Mall 

Suite 801 

Sacramento, CA 95814 

(916) 442-7757 

JAN WITOLD BARAN

THOMAS W. KIRBY

LEE E. GOODMAN

WILEY REIN & FIELDING

1776 K Street, N.W.

Washington, D.C. 20006 

(202) 719-7000 

Counsel for California 

Republican Party Appellants 

THOMAS J. JOSEFIAK

CHARLES R. SPIES

REPUBLICAN NATIONAL 

COMMITTEE

310 First Street, S.E. 

Washington, D.C. 20003 

(202) 863-8500 

BENJAMIN L. GINSBERG

ERIC A. KUWANA

PATTON BOGGS LLP 

2550 M Street, N.W.

Washington, D.C. 20037 

(202) 457-6000 

MICHAEL A. CARVIN

JONES DAY REAVIS & 

POGUE

51 Louisiana Ave., N.W. 

Washington, D.C. 20001 

(202) 879-3939 

Counsel for RNC Appellants 

JAMES BOPP, JR.

RICHARD E. COLESON

THOMAS A. MARZEN

JAMES MADISON CENTER FOR

FREE SPEECH

BOPP COLESON & BOSTROM

1 South 6th Street 

Terre Haute, IN 47807 

(812) 232-2434 

Counsel for Libertarian 

National Committee 
i 

QUESTIONS PRESENTED 

1. Do the associational and financial restrictions 

imposed upon national, state, and local political parties by 

Title I of the Bipartisan Campaign Reform Act of 2002, Pub. 

Law No. 107-155, 116 Stat. 81 (“BCRA”): 

(a) infringe the rights of speech and 

association guaranteed by the First Amendment; 

(b) exceed the powers granted Congress 

by Article I, Section 4 of the U.S. Constitution, violate 

principles of Federalism, and offend the Tenth Amendment; 

and 

(c) abrogate the right of political party 

committees to equal protection of the law as guaranteed by 

the Due Process Clause of the Fifth Amendment. 

2. Do the limitations imposed by Section 213 of 

BCRA on independent expenditures by a political party 

committee infringe the First Amendment? 

3. Does the requirement in Section 214 of BCRA that 

the Federal Election Commission promulgate a definition of 

“coordination” that does not require proof of an “agreement” 

violate the First Amendment? 
ii 

PARTIES TO THE PROCEEDING 

Appellants and Cross-Appellees joining this brief 

were plaintiffs below in three of the consolidated cases: 

Republican National Committee v. FEC, No. 02-874; 

California Democratic Party v. FEC, No. 02-875; and 

McConnell v. FEC, No. 02-582. Appellants in No. 02-1727 

(the “RNC Appellants”) are the Republican National 

Committee (“RNC”); Robert Michael Duncan, former 

Treasurer, current General Counsel, and Member of the 

RNC; the Republican Party of Colorado; the Republican 

Party of New Mexico; the Republican Party of Ohio; and the 

Dallas County (Iowa) Republican County Central 

Committee. Appellants in No. 02-1753 (the “California 

Party Appellants”) are the California Democratic Party 

(“CDP”); Art Torres, Chairman of the CDP; Yolo County 

Democratic Central Committee; California Republican Party 

(“CRP”); Shawn Steel, Chairman of the CRP; Timothy 

Morgan; Barbara Alby; Santa Cruz County Republican 

Central Committee; and Douglas Boyd, Jr. Appellant 

Libertarian National Committee, Inc. (“LNC”) is one of the 

several appellants in No. 02-1733 and was a plaintiff below 

in McConnell v. FEC, No. 02-582. Collectively, the RNC 

Appellants, the California Party Appellants, and the LNC are 

referred to herein as the “Political Party Appellants.” 

The following were also plaintiffs in the actions 

indicated, all of which were consolidated below:1 

McConnell v. FEC, No. 02-582: United States 

Senator Mitch McConnell, United States Representative 

Mike Pence and former Representative Bob Barr, Alabama 

Attorney General Bill Pryor, Alabama Republican Executive 

1

 As indicated, several plaintiffs withdrew before the three-judge court 

issued its decision. 
iii 

Committee (withdrawn), Libertarian Party of Illinois, Inc. 

(withdrawn), DuPage Political Action Council (withdrawn), 

Jefferson County Republican Executive Committee 

(withdrawn), American Civil Liberties Union, Associated 

Builders and Contractors, Inc., Associated Builders and 

Contractors Political Action Committee, Center for 

Individual Freedom, Christian Coalition of America, Inc. 

(withdrawn), Club for Growth, Indiana Family Institute, 

National Right to Life Committee, Inc., National Right to 

Life Educational Trust Fund, National Right to Life Political 

Action Committee, National Right to Work Committee, 60-

Plus Association, Inc., Southeastern Legal Foundation, Inc., 

U.S. English d/b/a/ ProENGLISH, Martin Connors 

(withdrawn), Thomas McInerney, Barrett Austin O’Brock, 

Trevor Southerland. 

National Rifle Ass’n v. FEC, No. 02-581: National 

Rifle Association of America (“NRA”), NRA Political 

Victory Fund. 

Echols v. FEC, No. 02-633: Emily Echols, Hannah 

McDow, Jessica Mitchell, Daniel Solid, Zachary White, 

Reverend Patrick Mahoney. 

Chamber of Commerce v. FEC, No. 02-751: Chamber 

of Commerce of the United States, U.S. Chamber Political 

Action Committee, National Association of Manufacturers, 

National Association of Wholesaler-Distributors 

(withdrawn). 

National Ass’n of Broadcasters v. FEC, No. 02-753: 

National Association of Broadcasters. 

AFL-CIO v. FEC, No. 02-754: AFL-CIO, AFL-CIO 

Committee on Political Education and Political 

Contributions. 
iv 

Paul v. FEC, No. 02-781: United States 

Representative Ron Paul, Gun Owners of America, Inc., Gun 

Owners of America Political Victory Fund, 

Realcampaignreform.org, Citizens United, Citizens United 

Political Victory Fund, Michael Cloud, Clara Howell. 

Adams v. FEC, No. 02-877: Victoria Jackson Gray 

Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, 

Victoria Fitzgerald, Anurada Joshi, Peter Kostmayer, Nancy 

Russell, Kate Seely-Kirk, Rose Taylor, Stephanie Wilson, 

California Public Interest Research Group (“PIRG”), 

Massachusetts PIRG, New Jersey PIRG, United States PIRG, 

The Fannie Lou Hamer Project, Association of Community 

Organizers for Reform Now. 

Thompson v. FEC, No. 02-881: United States 

Representatives Bennie Thompson and Earl Hilliard. 

Appellee Federal Election Commission (“FEC”) was 

a defendant below, together with the Federal 

Communications Commission; Attorney General of the 

United States John Ashcroft; the United States of America; 

and FEC Commissioners David Mason, Karl Sandstrom 

(since replaced by Ellen Weintraub), Danny McDonald, 

Bradley Smith, Scott Thomas, and Darryl Wold (since 

replaced by Michael Toner). Appellees United States 

Department of Justice (“DOJ”), United States Senators John 

McCain, Russell Feingold, Olympia Snowe, and James 

Jeffords, and United States Representatives Martin Meehan 

and Christopher Shays were defendant-intervenors below. 

STATEMENT PURSUANT TO RULE 29.6 

None of the appellants has a parent corporation, and 

no publicly held company owns ten percent or more of the 

stock of any of the appellants. 
v 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ...................................................i 

PARTIES TO THE PROCEEDING ......................................ii 

INTRODUCTION..................................................................1 

OPINIONS BELOW ..............................................................3 

JURISDICTION.....................................................................3 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED .............................................3 

STATEMENT OF THE CASE ..............................................4 

A. The Statute..................................................................4 

B. Proceedings Below.....................................................7 

C. The Factual Record ....................................................7 

The Importance of Political Parties in American 

Democracy..........................................................................7 

The Use of Federal and Nonfederal Money by Political 

Parties.............................................................................9 

The RNC and Its Activities. .............................................11 

RNC Fundraising Activities .........................................13 

RNC Financial Assistance to State Parties...................14 
vi 

Activities of State and Local Parties ................................14 

Collaboration by Local, State, and National Parties on 

Republican "Victory Plans" and Democratic 

"Coordinated Campaigns"............................................19 

The LNC and Its Activities. .............................................20 

The Rise of Special Interest Groups.................................23 

“Corruption” or the “Appearance of Corruption.” ...........25 

Lack of Evidence of Quid Pro Quo Corruption...........26 

Access...........................................................................26 

Public Perception..........................................................27 

Defendants' Anecdotal Evidence..................................28 

Effectiveness of BCRA in Addressing the Perceived 

Problem ............................................................................29 

D. The Decision of the District Court. ..........................30 

SUMMARY OF THE ARGUMENT...................................32 

ARGUMENT .......................................................................33 

I. BCRA'S RESTRICTIONS ON POLITICAL 

PARTIES VIOLATE THE FIRST AMENDMENT ......33 

A. The Many Restrictions on Association and Speech 

Imposed by New Section 323 Are Subject to Strict 

Scrutiny. ...................................................................35 
vii 

B. Section 323(a)’s Restrictions on National Party 

Committees Violate the First Amendment...............39 

1. Section 323(a) Impermissibly Impedes the Ability 

of National Party Committees to Associate With 

State and Local Party Committees. ......................39 

2. New Section 323(a) Unjustifiably Prohibits 

Solicitations..........................................................43 

3. New Section 323(a) Is Grossly Overbroad...........44 

4. Title I Cannot Be Re-Written to Substitute New 

Section 301(20)(A)(iii) for New Section 323(a). .49 

C. Section 323(b)’s Restrictions on State and Local 

Party Committees Violate the First Amendment. ....50 

1. New Section 323(b) Impermissibly Regulates State 

and Local Party Activities that Have No Ability To 

Corrupt Federal Candidates..................................50 

2. Section 323(b) Prevents the State and Local 

Parties from “Banding Together To Achieve a 

Common End.”.....................................................58 

3. New Section 323(b) Prevents State and Local 

Political Parties from Amassing the Resources for 

Effective Advocacy. .............................................61 

D. New Section 323(a) Undermines the Speech and 

Associational Rights of Minor Parties......................64 

E. Section 323(d)’s Prohibitions on Party Involvement 

with Other Organizations Violate the First 

Amendment. .............................................................69 
viii 

F. By Limiting the Right of Political Parties To Make 

Independent Expenditures, Section 213 Violates the 

First Amendment......................................................73 

G. By Mandating that “Coordinated Communications” 

Encompass Truly Independent Activity, Section 214 

Violates the First Amendment..................................76 

II. NEW SECTION 323'S RESTRICTIONS ON 

POLITICAL PARTIES EXCEED THE POWER OF 

CONGRESS UNDER THE FEDERAL 

ELECTIONS CLAUSE AND VIOLATE 

PRINCIPLES OF FEDERALISM..................................78 

A. Congress May Not Regulate Purely or Predominantly 

State and Local Election Activity.............................79 

1. The Federal Elections Clause Limits Congressional 

Power To Regulate Nonfederal Election Activity 

..............................................................................79 

2. Limitations on Our Federal Structure Require 

Congress To Respect the Electoral Processes of the 

States. ...................................................................83 

3. Plaintiffs Have Standing To Challenge Title I as 

Exceeding Congress’s Enumerated Powers and 

Violating Principles of Federalism.......................84 

B. New Section 323(a)’s Restrictions on National Party 

Committees Impermissibly Regulate Purely State and 

Local Activity...........................................................86 

C. New Section 323(b) Impermissibly Regulates State 

and Local Political Activity......................................87 
ix 

III. NEW SECTION 323 DISCRIMINATES AGAINST 

POLITICAL PARTIES IN RELATION TO 

SPECIAL INTEREST GROUPS ENGAGED IN

IDENTICAL ACTIVITIES............................................91 

A. Political Parties Are Guaranteed Equal Protection by 

Both the First and Fifth Amendments. .....................91 

B. Section 323 Puts Political Parties at a Distinct 

Disadvantage in Relation To Special Interest Groups. 

..................................................................................95 

CONCLUSION ....................................................................99
x 

TABLE OF AUTHORITIES 

Page 

FEDERAL CASES 

Alden v. Maine, 527 U.S. 706 (1999).................83, 84 

Anderson v. City of Bessemer City, 470 U.S. 

564 (1985) ............................................................7 

Aptheker v. Secretary of State, 378 U.S. 500 

(1964) .................................................................49 

Ashcroft v. Free Speech Coalition, 535 U.S. 

234 (2002) ..........................................................46 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990)...............................38, 39, 93 

Bates v. State Bar of Arizona, 433 U.S. 350 

(1977) .................................................................43 

Beaumont v. FEC, 539 U.S. __ (2003)...............36, 38 

Blitz v. United States, 153 U.S. 308 (1894)..............82 

Boy Scouts of America v. Dale, 530 U.S. 640 

(2000) .................................................................36 

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

California Democratic Party v. Jones, 530 

U.S. 567 (2000) ...........................................passim

California Medical Association v. FEC, 453 

U.S. 182 (1981) ............................................37, 48 

Chamber of Commerce v. FEC, 69 F.3d 600 

(D.C. Cir. 1995)..................................................42

Church of the Lukumi Babalu Aye, Inc. v. City 

of Hialeah, 508 U.S. 520 (1993)........................96 *

Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981) ....................passim 

*

 Authorities principally relied upon are denoted by an asterisk (“*”). 
xi 

City of Cincinnati v. Discovery Network, Inc., 

507 U.S. 410 (1993)...........................................92 

City of Ladue v. Gilleo, 512 U.S. 43 (1994).......92, 96 

*Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996).....passim

Elrod v. Burns, , 427 U.S. 347 (1976)......................75 

*Eu v. San Francisco County Dem. 

Central Committee, 489 U.S. 214 (1989)....passim

Ex Parte Siebold, 100 U.S. 371, 393 (1871)............81 

FEC v. Christian Coalition, 52 F. Supp. 2d 45 

(D.D.C. 1999).....................................................77 

FEC v. Colorado Republican Federal 

Campaign Committee, 533 U.S. 431 

(2001) ..........................................................passim 

*FEC v. National Conservative Pol. Action 

Comm., 470 U.S. 480 (1985)..............3, 39, 46, 48 

FEC v. National Right to Work Committee, 

459 U.S. 199 (1982)...........................................38 

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ......................................52, 53, 93 

Florida Star v. B.J.F., 491 U.S. 524 (1989).......92, 97 

Greater New Orleans Broadcasting 

Association v. United States, 527 U.S. 173 

(1999) .................................................................92 

Illinois ex. rel. Madigan v. Telemarketing 

Associates, Inc., 123 S. Ct. 1829 (2003) ............71 

Kimel v. Fla. Board of Regents, 528 U.S. 62 

(2000) .................................................................28 

Leathers v. Medlock, 499 U.S. 439 (1991)...............92 

Mills v. Alabama, 384 U.S. 214 (1966)....................44 

NAACP v. Button, 371 U.S. 415 (1963)...................48 

New York v. United States, 505 U.S. 144 

(1992) ...........................................................83, 85 

Nixon v. Shrink Missouri PAC, 528 U.S. 377, 

395 (2000) .............................................. 36, 53, 61 
xii 

*

Oregon v. Mitchell, 400 U.S. 112 

(1970) ...............................................80, 82, 84, 90 

Perry v. Sindermann, 408 U.S. 593 (1972)..............75 

Pierce County v. Guillen, 123 S. Ct. 720 

(2003) .................................................................85 

Printz v. United States, 521 U.S. 898 (1997)...........83 

Reno v. ACLU, 521 U.S. 844 (1997)........................49 

Republican Party of Minnesota v. White, 536 

U.S. 765 (2002) ..................................................96 

Riley v. National Federation of the Blind of 

North Carolina, Inc., 487 U.S. 781 

(1988) .....................................................44, 71, 72 

Rosenberger v. Rector & Visitors of 

University of Virginia, 515 U.S. 819 

(1995) .................................................................91 

*Schaumburg v. Citizens for a Better 

Environment, 444 U.S. 620 (1980).........43, 44, 58 

Secretary of State v. Joseph H. Munson Co., 

467 U.S. 947 (1984)...........................................44 

Steward Machine Co. v. Davis, 301 U.S. 548 

(1937) .................................................................86 *

Tashjian v. Republican Party of Connecticut, 

479 U.S. 208 (1986) ....................................passim 

Tennessee Electric Power v. TVA, 306 U.S. 

118 (1939) ..........................................................86

Turner Broad. System v. FCC, 512 U.S. 622 

(1994) ...........................................................45, 92 

United States v. CIO, 335 U.S. 106 (1948)..............42 

United States v. Kokinda, 497 U.S. 720 

(1990) .................................................................43 

United States v. Lopez, 514 U.S. 549 (1995) ...........79 

*

 Authorities principally relied upon are denoted by an asterisk (“*”). 
xiii 

United States v. Morrison, 529 U.S. 598 

(2000) .................................................................85 

United States v. National Treasury Employees 

Union, 513 U.S. 454 (1994) ...............................45 

United States v. Playboy Entertainment 

Group, Inc., 529 U.S. 803 (2000).......................30 

United States v. Reese, 92 U.S. 214 (1875)..............81 

United States v. Virginia, 518 U.S. 515 (1996)........79 

Wright v. Rockefeller, 376 U.S. 52 (1964).................7 

STATE CASES 

Adoption of Erica, 686 N.E.2d 967 (Mass. 

1997)...................................................................45 

DOCKETED CASES 

AFL-CIO v. FEC, No. 02-754 (D.D.C. filed 

Apr. 22, 2002) .....................................................iii 

Adams v. FEC, No. 02-877 (D.D.C. filed May 

7, 2002)................................................................iv 

California Democratic Party v. FEC, No. 02-

875 (D.D.C. filed May 7, 2002) ...........................ii 

Chamber of Commerce v. FEC, No. 02-751 

(D.D.C. filed Apr. 22, 2002) ...............................iii 

Echols v. FEC, No. 02-633 (D.D.C. filed Apr. 

4, 2002)................................................................iii 

McConnell v. FEC, No. 02-582 (D.D.C. filed 

Mar. 27, 2002)......................................................ii 

National Association of Broadcasters v. FEC, 

No. 02 753 (D.D.C. filed Apr. 22, 2002) ............iii 

National Rifle Association v. FEC, No. 02-

581 (D.D.C. filed Mar. 27, 2002)........................iii 

Paul v. FEC, No. 02-781 (D.D.C. filed Apr. 

23, 2003)..............................................................iv 
xiv 

Republican National Committee v. FEC, No. 

02-874 (D.D.C. filed May 7, 2002)......................ii 

Shays v. FEC, Civ. No. 02-CV-1984 (D.D.C. 

filed Oct. 8, 2002)...................................40, 59, 89 

Thompson v. FEC, No. 02-881 (D.D.C. filed 

May 7, 2002) .......................................................iv 

FEDERAL STATUTES AND REGULATIONS 

Federal Election Campaign Act, 2 U.S.C. 

§431 et seq...................................................passim 

Bipartisan Campaign Reform Act, Pub. Law 

No. 107-155, 116 Stat. 81 ...........................passim

2 U.S.C. § 441b(b)(2)(A) .........................................42 

2 U.S.C. §441a(d)(1) and 441a(d)(2) .......................76 

2 U.S.C. § 441a(d)(4)...............................................74 

5 U.S.C. § 702 ..........................................................78 

28 U.S.C. § 1253 ........................................................3 

28 U.S.C. § 2284 ........................................................3 

11 C.F.R. § 104.8(e) (2002) .....................................10 

11 C.F.R. § 106.5 (2002)..........................................10 

11 C.F.R. §109.32 ....................................................76 

11 C.F.R. §114.3(a)(2) .............................................42 

11 C.F.R. § 300.51 ...................................................69 

67 Fed. Reg. 49064 (July 29, 2002) ...........................4 

67 Fed. Reg. 49,083 (July 29, 2002) ........................41 

STATE STATUTES 

Cal. Elec. Code §§ 7050 et seq.................................15 

Cal. Gov. Code § 81000 et seq.................................15 

Cal. Gov. Code § 83124 et seq.................................16 

Cal. Gov. Code § 85300 et seq.................................16 

Cal. Gov. Code §§ 85301-85303..............................16 

Cal. Gov. Code § 85303(c) et seq ............................16 
xv 

328 54th Gen. Assem. (Utah 2001)..........................15 

1974 N.Y. St. Legis. Ann. 395 .................................15 

MISCELLANEOUS 

Edsall, Liberals Meeting to Set ’04 Strategy; 

Labor, Rights Groups Focus on Getting 

Out the Vote to Help Democrats, WASH. 

POST, May 25, 2003, A6.....................................25

Edsall & Von Drehle, Republicans Have 

Huge Edge in Campaign Cash, WASH. 

POST, Feb. 4, 2003, A7.......................................25 

Federalist No. 59 (C. Rossiter ed. 1961) ...........80, 81 

Joseph Story, 2 Commentaries on the 

Constitution of the United States 284-85 

(1st ed. 1833)......................................................81 

Kramer, The Appearance of Impropriety 

Under Canon 9: A Study of the Federal 

Judicial Process Applied to Lawyers, 65 

Minn. L. Rev. 243, 265 (1980)...........................45 

Meyerson, Union Dos and Don’ts For the 

Democrats, WASH. POST, May 28, 2003, 

A19 .....................................................................26

Ronald D. Rotunda & John E. Nowak, 

Treatise on Constitutional Law, §20.41, at 

523 (3d ed. 1999)................................................36 

Sorauf, Politics, Experience, and the First 

Amendment: The Case of American 

Campaign Finance, 94 Colum. L. Rev. 

1348, 1356 (1994) ..............................................26 

L. Tribe, American Constitutional Law § 12-

26, at 1016 (2d ed. 1988) ...................................35 

FEC Advisory Op. No. 1978-10.................................9 

H.R. Rep. No. 107-131(I) (2002).............................30 

145 Cong. Rec. S12586 (Oct. 14, 1999) (stmt. 

of Sen. McCain) .................................................29 
xvi 

147 Cong. Rec. S2444 (Mar. 19, 2001) (stmt. 

of Sen. Feingold)..................................................4 

148 Cong. Rec. H408 (Feb. 13, 2002) (stmt. 

of Rep. Shays) ................................................2, 34 

148 Cong. Rec. H460 (Feb. 13, 2002) .....................49 

148 Cong. Rec. H464 (Feb. 13, 2002) .....................49 

148 Cong. Rec. S2099 (Mar. 20, 2002) (stmt. 

of Sen. Dodd) .....................................................29 

S. Rep. No. 92-229 (1971) .................................80, 84 

S. Rep. No. 93-689 (1974) .......................................95 

S. Res. 2, 52nd Gen. Assem. (Utah 1998)................15 
1 

INTRODUCTION 

BCRA profoundly impairs the ability of political 

parties to participate in the electoral process at the local, 

state, and national level by, to cite just a few examples: 

• Making it a felony for the Chairman of the RNC 

(or the Democratic National Committee) to send a 

fundraising letter on behalf of his party’s 

Mississippi gubernatorial candidate in this 

November’s off-year election – even though there 

are no federal candidates on the ballot this year, 

any donation would go to the candidate (not the 

party), and the donation is fully regulated by state 

(not federal) law; 

• Prohibiting the California parties from donating 

even federally-regulated money to political action 

committees formed to support or oppose the 

current effort to recall California’s Governor; 

• Subjecting to pervasive federal regulation voter 

registration and get-out-the-vote (“GOTV”) 

efforts by state and local political parties – even 

when those efforts name only state or local 

candidates or ballot measures – just because those 

efforts occur during a federal election year; 

• Criminalizing the participation of national party 

personnel in Republican Victory Programs or 

Democratic Coordinated Campaigns – through 

which the national, state, and local parties have 

historically worked together to design, fund, and 

implement statewide voter mobilization programs 

– even during years when no federal elections are 

held. 
2 

Though touted as a statute that would “put the 

national parties entirely out of the soft money business,” 148 

Cong. Rec. H408 (2002) (stmt. of Rep. Shays), BCRA does 

more – much more – than limit the types of money local, 

state, and national parties may receive. Its numerous 

collateral restrictions fundamentally alter the way political 

parties function. The district court held, and the extensive 

record below proves, that the pervasive restrictions imposed 

by Title I of BCRA on political party speech and association 

violate the First Amendment. The court found no evidence 

of quid pro quo corruption resulting from donations of 

nonfederal funds to political parties, and insufficient 

evidence to prove that most of the activities regulated or 

prohibited by BCRA posed any threat of corruption to federal 

officeholders. Thus, BCRA’s restrictions are not necessary 

to alleviate any material risk of corruption or even the 

“appearance of corruption” of federal candidates and 

officeholders, and they are neither “narrowly tailored” nor 

even “closely drawn.” Indeed, the restrictions in BCRA’s 

centerpiece national party “soft money ban” are categorical, 

with no exceptions, reflecting no drawing or tailoring at all. 

Although the district court was not required to decide 

the issue, Congress also acted beyond the scope of its 

enumerated powers in Article I, Section 4, and ignored 

principles of federalism, by overriding the authority of the 

sovereign states to regulate their own elections. 

Finally, although once more the district court did not 

decide it, Title I imposes far more draconian restrictions on 

political parties than on special interest groups, depriving 

parties of equal protection guaranteed by the First and the 

Fifth Amendments. 

Campaign finance restrictions represent a “narrow 

exception” to treasured constitutional guarantees, not – as 

reform advocates would have it – the highest good. See 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 
3 

290, 296-97 (1981). Although the Government seeks to 

justify BCRA as a broad new “prophylactic” regime 

innocently intended to plug loopholes, here “[w]e are not 

quibbling over fine-tuning of prophylactic limitations, but are 

concerned about wholesale restriction of clearly protected 

conduct.” FEC v. National Conservative Pol. Action Comm., 

470 U.S. 480, 501 (1985) (“NCPAC”). 

OPINIONS BELOW 

The opinions of the district court are reported at 251 

F.Supp.2d 176 (D.D.C. 2003), and are reprinted in the Joint 

Supplemental Appendix to Jurisdictional Statements. 

JURISDICTION 

The decision below was entered on May 2, 2003, by a 

three-judge court convened pursuant to 28 U.S.C. § 2284 and 

Section 403(a)(1) of BCRA.2 The RNC Appellants filed 

their Notice of Appeal on May 7, and their Jurisdictional 

Statement on May 27. The California Party Appellants filed 

their Notice of Appeal on May 12, and their Jurisdictional 

Statement on May 30. The LNC filed its Notice of Appeal 

on May 8, and its Jurisdictional Statement on May 28. The 

jurisdiction of this Court rests on 28 U.S.C. § 1253 and 

Section 403(a)(3) of BCRA. This Court noted probable 

jurisdiction on June 5. 

CONSTITUTIONAL AND STATUTORY PROVISIONS 

INVOLVED 

BCRA is reprinted, along with pertinent parts of 

Article I, Section 4 of the United States Constitution, and the 

2

 BCRA adds new sections to the Federal Election Campaign Act 

(“FECA”), 2 U.S.C. §431 et seq. This brief refers either to sections of 

BCRA (e.g., “Section 101(a)”) or to the new FECA provisions (e.g., 

“new Section 323(a)”). 
4 

First, Fifth, and Tenth Amendments, in the RNC Appellants’ 

Jurisdictional Statement at pp. 1-2 and App. 3a-76a. 

STATEMENT OF THE CASE 

A. The Statute. The “centerpiece” of BCRA is 

Section 101(a), which creates new Section 323 of FECA. 

147 Cong. Rec. S2444 (March 19, 2001) (stmt. of Sen. 

Feingold). New Section 323(a) categorically prohibits 

national party committees and their agents from 

“solicit[ing],” “receiv[ing],” “transfer[ring],” “direct[ing],” or 

“spend[ing]” any funds that are not subject to FECA’s 

restrictions. This is the core of the ban on so-called “soft 

money,” or more accurately “nonfederal money.”3 There are 

no exceptions to new Section 323(a)’s blanket prohibition. 

New Section 323(b) pertains to state and local 

political party committees. It subjects to full federal 

regulation all party building programs such as voter 

registration and GOTV that previously were “allocated” 

between federal and nonfederal accounts according to the 

percentage of federal and nonfederal candidates on the ballot. 

In contrast to new Section 323(a)’s flat ban on 

national party involvement with nonfederal money, new 

Section 323(b) creates a maze of regulatory complexity. In 

general, new Section 323(b)(1) prohibits state and local 

political parties from spending any state-regulated money for 

what the statute calls “Federal election activity.” Federal 

election activity, in turn, is broadly defined by the Act to 

3

 “Soft money” is an imprecise term, but in general is used to refer to 

funds that are regulated by state campaign finance statutes. “Hard 

money,” by contrast, is regulated by FECA. Because, as the FEC itself 

has recognized, the “soft money” label is inherently misleading, this brief 

follows the FEC’s and district court’s lead by referring to “federal” and 

“nonfederal” (or, alternatively, “state-regulated”) money. See 67 Fed. 

Reg. 49064, 49064-65 (July 29, 2002); Per Curiam 31sa n.9 (KollarKotelly, Leon, JJ.); Henderson 182-183sa n.30. 
5 

include: (i) all voter registration conducted within 120 days 

of a federal election, whether or not any registration activity 

refers to a federal candidate; (ii) voter identification, GOTV, 

and generic party-promotion activity conducted “in 

connection with” any election in which a federal candidate 

appears on the ballot, again whether or not the activity 

mentions a federal candidate; (iii) any “public 

communication” that “refers” to a clearly identified candidate 

for federal office and “promotes,” “supports,” “attacks,” or 

“opposes” a candidate for that office; and (iv) the full salary 

and benefits of any party employee who spends more than 25 

percent of his or her time in connection with a federal 

election. See new §301(20)(A). 

New Section 323(b)(2) – commonly referred to as the 

“Levin Amendment” – carves out an exception to new 

Section 323(b)(1)’s general rule. New Section 323(b)(2) 

creates a new category of federally-regulated nonfederal 

money called “Levin money.” State and local parties may 

use an FEC-specified percentage of Levin money mixed with 

federal money for voter registration, voter identification, and 

GOTV activities, provided that certain specified conditions 

are met: (i) the permitted activities may not refer to a clearly 

identified federal candidate; (ii) those activities may not 

involve any broadcast communication except those that refer 

solely to clearly identified state or local candidates; (iii) no 

single donor may donate more than $10,000 to a state or local 

party annually for those activities; and (iv) all money (federal 

and Levin money alike) spent on such activities must be 

“homegrown” – i.e., raised by the state or local party that 

spends it – and may not be transferred from or even raised in 

conjunction with any national party committee, federal 

officeholder or candidate, or other state or local party. See 

new §§323(b)(2)(B), 323(b)(2)(C). 
6 

New Section 323(c) requires national, state, and local 

parties to use only federally-regulated money to raise any 

money that will be used on Federal election activities. 

New Section 323(d) prohibits any political party 

committee – national, state, or local – or its agents from 

“solicit[ing]” funds for or “mak[ing] or direct[ing]” any 

donations of federal or nonfederal money to either: (i) any 

tax-exempt Internal Revenue Code Section 501(c) 

organization that spends any money “in connection with an 

election for Federal office”; or (ii) any IRC Section 527 

organization other than a party committee or a candidate 

committee. 

New Section 323(e) generally prohibits federal 

officeholders and candidates from soliciting, receiving, 

directing, or spending any nonfederal money. There are, 

however, several exceptions. These exceptions are quite 

telling. First, a federal officeholder or candidate (but not an 

agent of a national party committee) may solicit nonfederal 

money for state and local candidates from sources and in 

amounts that would be allowed by Federal law. See new 

§323(e)(1)(B). Second, a federal officeholder or candidate 

(but not an agent of a national party committee) may attend 

or speak at a fundraising event for a state or local political 

party. See new §323(e)(3). Third, a federal officeholder or 

candidate (but, again, not an agent of a national party 

committee) may solicit nonfederal funds on behalf of any 

tax-exempt Section 501 organization that spends money in 

connection with federal elections in either of two instances: 

(i) he or she may solicit unlimited funds from any source for 

a Section 501 organization (such as the NAACP or the 

National Rifle Association) whose “principal purpose” is not 

voter registration, voter identification, or GOTV activity, so 

long as the solicitation does not specify how the funds will be 

spent; and (ii) he or she may solicit up to $20,000 per 

individual per year specifically for voter registration, voter 
7 

identification, or GOTV activity, or for an organization 

whose “principal purpose” is to conduct any or all of those 

activities. See new §323(e)(4). 

Finally, new Section 323(f) generally prohibits state 

officeholders or candidates from spending nonfederal money 

on any public communication, even in the course of a state 

campaign, that “refers” to a clearly identified candidate for 

federal office and “promotes,” “supports,” “attacks,” or 

“opposes” that candidate. 

B. Proceedings Below. The day BCRA was signed, 

multiple plaintiffs filed actions in the U.S. District Court for 

the District of Columbia seeking declaratory and injunctive 

relief. A three-judge court consolidated the pending cases 

and determined that it would conduct a “paper trial,” 

foregoing live testimony. It established an expedited 

schedule for discovery, submission of written testimony, outof-court deposition-style cross-examination of witnesses, and 

expedited briefing. After two days of oral argument on 

December 5-6, the court issued its decision on May 2, 2003. 

C. The Factual Record. From the extensive 

evidentiary record below, the following facts were found by 

at least two judges (unless otherwise indicated) and thus 

constitute the district court’s findings:

 4 

The Importance of Political Parties in American 

Democracy. As this Court has recently emphasized, “[t]he 

formation of national political parties was almost concurrent 

with the formation of the Republic itself.” California 

4

 Findings of fact common to two or more judges comprise findings of 

the district court. See Wright v. Rockefeller, 376 U.S. 52, 56 (1964) 

(relying on findings of fact of majority of three-judge court, even though 

the three judges issued separate opinions). Such findings are entitled to 

deference by this Court unless deemed clearly erroneous. See Anderson 

v. City of Bessemer City, 470 U.S. 564, 573 (1985). 
8 

Democratic Party v. Jones, 530 U.S. 567, 574 (2000). 

Parties play an “important and legitimate role . . . in 

American elections.” Colorado Republican Federal 

Campaign Comm. v. FEC, 518 U.S. 604, 618 (1996) 

(“Colorado I”). “Representative democracy in any populous 

unit of governance is unimaginable without the ability of 

citizens to band together [in parties] in promoting among the 

electorate candidates who espouse their political views.” 

California Democratic Party, 530 U.S. at 574. 

As the district court found, based on the testimony of 

the RNC’s senior political science expert, Dr. Sidney Milkis 

(James Hart Professor of Politics at the University of 

Virginia), its expert historian, Dr. Morton Keller (Emeritus 

Professor of American History at Brandeis University), and 

the Government’s and Intervenors’ own experts, political 

parties have played four vital roles in maintaining a stable 

constitutional order. First, “parties have coordinated and 

reconciled various national, state, and local entities within 

our federal system of government.” Leon 1195sa; see also 

Henderson 292-93sa. 

Second, “parties [have] encourag[ed] a ‘democratic 

nationalism’ by nominating and electing candidates and by 

engaging in discussions about public policy issues of national 

importance.” Henderson 293sa; see also Leon 1195sa. 

Third, “parties act as critical agents in developing 

consensus in the United States.” Henderson 294sa (emphasis 

added); see also Leon 1196sa. Political parties are “the main 

coalition building institution[s] . . . by a good measure,” 

Henderson 294sa (quoting defense expert Green CX 84); 

Leon 1196sa (same). “No other group could come close to 

political parties” in moderating extreme views. Henderson 

294sa; see also Leon 1196sa (same). 

Finally, and relatedly, political scientists “credit 

parties with . . . diluting the influence of organized interests.” 
9 

Henderson 293sa; see also Leon 1195sa. “[P]arties have 

been the most important institutions to cultivate a sense of 

community, of collective responsibility in a political culture 

principally dedicated to individualism, privacy, and rights.” 

Henderson 294sa; see also Leon 1196sa. 

The Use of Federal and Nonfederal Money by 

Political Parties. Political parties use money regulated by 

FECA (“federal money”) to make contributions to federal 

candidates and for campaign expenditures that expressly 

advocate a particular federal candidate’s election or defeat. 

See Henderson 295sa; Leon 1198sa. Before BCRA, parties 

used state-regulated (“nonfederal”) money, inter alia, to 

make contributions to, and expenditures on behalf of, state 

and local candidates and ballot measure committees. See 

Henderson 297-99sa; Leon 1212-15sa. 

Shortly after enactment of FECA, the FEC recognized 

that our federal system of government required that parties be 

free to raise and spend nonfederal money. See FEC Advisory 

Op. No. 1978-10 (“The costs allocable to non-Federal 

elections may be paid out of Party funds raised and expended 

pursuant to applicable [state] law.”). Indeed, the FEC 

acknowledged that nonfederal, or “soft,” money is a 

byproduct of our federal system: 

The origins of “soft money” lie in the United States’ 

federal system of government. The Constitution 

grants each state the right to regulate certain 

activities within that state. In the area of campaign 

finance, each state may establish its own rules for 

financing the nonfederal elections held within its 

borders. As a result, committees that support both 

federal and nonfederal candidates frequently must 

adhere to two different sets of campaign finance 

rules – federal and state. 
10 

J.A. 1820-21, FEC, Twenty Year Report, Ch. 3, p. 4 (April 

1995). 

Certain party activities are neither exclusively federal 

nor exclusively nonfederal. In an effort to reconcile the 

competing federal and state regulatory interests, the FEC 

adopted “allocation regulations” to govern such “mixed” 

federal-state activities as full-ticket voter mobilization, 

communications with party supporters, certain advertising, 

and administrative overhead. See 11 C.F.R. § 106.5 (2002); 

Henderson 299sa; Leon 1218-19sa. Accordingly, for 

instance, FEC rules required the RNC and the DNC to fund 

these mixed activities with at least 65% federal money during 

presidential election years and 60% during other years. See 

Henderson 299-300sa; Leon 1218-19sa. Each national party 

maintained numerous nonfederal accounts tailored to these 

varying state laws. Because many states allow contributions 

from corporations and unions, and impose varying dollar 

limits (or no limits at all), the national party committees 

could accept unlimited individual, corporate, and union 

donations to certain of their nonfederal accounts. Before 

BCRA, national parties disclosed to the FEC all receipts and 

disbursements of nonfederal money. See 11 C.F.R. § 

104.8(e) (2002). New Section 323(a) now requires national 

political parties to fund all of their local, state, federal, and 

mixed activities with 100% federally-regulated money. 

There are no exceptions. 

Also before BCRA, state parties were required to 

allocate federal and nonfederal money to mixed activities, 

but did so based in part on the ratio of federal to state and 

local candidates on the ballot. See Henderson 309-10sa; 

Leon 1226sa. Because a typical ballot has many more state 

and local than federal candidates, state party allocation ratios 

frequently required a lower percentage of federal money than 

national party ratios. See Henderson 311sa; Leon 1227-28sa. 

State party activities relating to state and local candidates and 

initiatives were subject to neither the federal allocation 
11 

regulations nor the federal reporting requirements. Title I of 

BCRA now subjects all of these state party “mixed” activities 

– as well as a substantial amount of activity directed toward 

state and local elections – to the federal regime. 

The RNC and Its Activities. The RNC is governed 

by its members, who include the state party chairman, one 

committeeman, and one committeewoman drawn from each 

of the 50 states, D.C., and the territories. See Henderson 

223-24sa; J.A. 1878-1926, RNC Ex. 1 (“The Rules of the 

Republican Party”); J.A. 291-92, Josefiak Decl. ¶15. The 

RNC is not a federal party; it is a national party. It 

participates extensively in state and local, as well as federal, 

elections. See Henderson 294-95sa; Leon 1197sa. 

The RNC’s participation in state and local elections is 

perhaps most evident in odd-numbered years (e.g., 2001, 

2003), when no federal candidates appear on the ballot. Five 

states (Kentucky, Louisiana, Mississippi, New Jersey, and 

Virginia) hold all their elections for state and local office in 

odd-numbered years. Nearly every state holds at least some 

local elections in odd-numbered years,5

 including mayoral 

elections in major cities such as New York, Los Angeles, 

Houston, Minneapolis, and Indianapolis. See Henderson 

298sa; Leon 1213sa. 

As the district court unanimously found, in 2001, 

when there were no federal candidates on the ballot, the RNC 

spent more than $15.6 million of state-regulated money on 

state and local election activity, including contributions to 

state and local candidates, transfers to state parties, and direct 

spending. See Henderson 298sa; Kollar-Kotelly 536-37sa; 

Leon 1213sa. Over and above this direct spending, the RNC 

5 See U.S. Conf. Mayors, 2003 Mayoral Election Schedule, available at 

http://www.usmayors.org/uscm/elections/electioncitiesfall2003.pdf 

(visited on May 29, 2003) (46 states with mayoral elections in 2003). 
12 

also devoted considerable “in-house” efforts to the Virginia 

and New Jersey gubernatorial and state legislative races in 

2001, committing staff and other resources to those 

campaigns. See J.A. 301-04, Josefiak Decl. ¶45-55. The 

costs of these in-house resources were paid, under pre-BCRA 

law, as part of the RNC’s administrative overhead with a 

“mix” of federal and nonfederal funds. See id. ¶31, J.A. 

296.6 

Significantly, the district court found that the RNC 

engages in the same activities on behalf of state and local 

candidates even when federal candidates appear on the ballot. 

See Henderson 297sa; Leon 1212-13sa. In 2000, for 

instance, the RNC made approximately $5.6 million in direct 

contributions to state and local candidates. See Henderson 

297sa; Leon 1212sa; J.A. 305, Josefiak Decl. ¶61. In federal 

election years, the bulk of the RNC’s efforts are conducted in 

coordination with state parties and focus on full-ticket 

activities such as voter registration, voter identification, and 

GOTV efforts intended to aid all Republican candidates. 

Notably, even when federal races are not competitive in a 

state – as in Indiana in 2000 or California in 2002 – the RNC 

often devotes substantial resources to these programs. See 

Henderson 297sa; Leon 1212sa; J.A. 306, Josefiak Decl. ¶62; 

J.A. 695, Peschong Decl. ¶8. 

BCRA’s sponsors repeatedly testified that political 

party broadcast issue advertisements, which mentioned but 

did not expressly advocate the election or defeat of a federal 

candidate, and which were paid for with a mix of federal and 

nonfederal money, were the object of their concern. See, 

6

 Although there are no federal candidates on the ballot in November 

2003, three states (Kentucky, Louisiana, and Mississippi) are holding 

elections for state-wide office, and dozens of others are electing local 

officials. BCRA prohibits the RNC from raising or spending any 

nonfederal money in these state and local elections. 
13 

e.g., J.A. 944, McCain Dep. 193 (“It’s the broadcast 

television and radio ads that we believe are what is the 

problem.”); J.A. 991-93, Shays Dep. 40-43; J.A. 975-76, 

Meehan Dep. 218-19; J.A. 1025-1026, Snowe Dep. 159-60; 

J.A. 916-17, Jeffords Dep. 83-85. Significantly, however, of 

the approximately $120 million in nonfederal money raised 

by the RNC in the 2000 cycle, see J.A. 336, Knopp Decl. ¶7, 

only $43.6 million (36%) was used for such advertisements, 

either directly or through state parties. See Henderson 300sa; 

J.A. 36, Banning Decl. ¶25. The remaining 64% of the 

RNC’s nonfederal funds were used for administrative 

overhead (30%), J.A. 37, Banning Decl. ¶27, and other vital 

activities. 

RNC Fundraising Activities. Contrary to popular 

misconception, the RNC historically raised 60% of its total 

funding in the form of small donations through direct mail, 

telephone banks, and Internet solicitations. See Henderson 

307sa; Leon 1224sa; J.A. 335, 336-37, Knopp Decl. ¶¶5, 8. 

Of course, the RNC also had “major donor” programs, to 

raise both federal and nonfederal money, and both federal 

and nonfederal donors were invited to dinners and meetings 

at which federal officeholders and party officials spoke. See 

Henderson 307-08sa; Leon 1224-25sa; J.A. 753-54, Shea 

Decl. ¶14. 

Also contrary to popular misconception, the RNC 

raised the bulk of its nonfederal money from individuals, not 

corporations. See Henderson 308sa; Leon 1225sa; J.A. 337, 

Knopp Decl. ¶9 (for 2000 cycle, $65 million nonfederal from 

individuals; $51 million from corporations). Indeed, every 

year from 1997 through 2001, the average corporate 

nonfederal donation ($2,226 in 2000) was significantly lower 

than the average individual donation ($10,410 in 2000). See 

Henderson 308sa; Leon 1225sa; J.A. 337, Knopp Decl. ¶9. 

Finally, and again contrary to popular misconception, 

RNC reliance on federal officeholders for personal or 
14 

telephonic solicitation of major donors was “exceedingly 

rare.” Henderson 308sa; Leon 1245sa; J.A. 756-57, Shea 

Decl. ¶ 17. 

RNC Financial Assistance To State Parties. The 

RNC has a “brand name,” professional staff, nationwide 

presence, and economies of scale that state parties cannot 

replicate. See J.A. 765, Shea Decl. ¶41. Accordingly, the 

RNC made transfers to state and local parties of 

approximately $129 million ($35.8 million federal, $93.2 

million nonfederal) during the 2000 cycle. See Henderson 

302-03sa; Leon 1219sa. 

The RNC also provided fundraising assistance to state 

and local parties to help them raise their own funds directly. 

For example, from January to October 2002, before BCRA 

took effect, RNC Chairman Marc Racicot made 82 trips to a 

total of 67 cities in 36 states; the RNC’s Co-Chairman and 

Deputy Chairman were also well-traveled. The majority of 

these trips involved fundraising efforts on behalf of state and 

local parties and candidates. See Henderson 303-04sa; Leon 

1220sa; J.A. 309, Josefiak Decl. ¶70. The RNC also 

conducted direct mail fundraising for state and local 

candidates. See Henderson 303sa; Leon 1220sa; J.A. 1926-

28, 1929-30, RNC Exs. 232, 292 (examples of fundraising 

letters sent by RNC officers on behalf of gubernatorial and 

mayoral candidates). Since every dime raised and spent by 

state candidates is state-regulated money, these fundraising 

efforts for state and local candidates raised non-federal 

money, often in small denominations, that generally flowed 

directly to the state candidate or party, not to the RNC. See 

J.A. 300-301, Josefiak Decl. ¶44. 
15 

Activities of State and Local Parties. The CDP and 

CRP together represent over 12 million members.7 Their 

activities are governed primarily by state law, which provides 

for the state parties themselves (governed by a State Central 

Committee), along with 58 County Central Committees for 

each party and a larger number of local Assembly District 

Committees.8 See generally CAL. ELEC. CODE §§ 7050 et 

seq. Various provisions of state law as well as party bylaws 

provide for overlapping membership between the State 

Central Committees and County Central Committees, and 

these organizations also automatically include each party’s 

state and national officeholders and candidates and the 

California members of each party’s national committee (the 

DNC and RNC). See J.A. 115-16, Bowler Decl. ¶¶3-4; J.A. 

600, Morgan Decl. ¶8. 

Since 1974, California has extensively regulated 

campaign activities, including those of candidates and 

political parties. Like most states, it has made a deliberate 

policy choice about the regulation of contributions to its 

political parties for use in connection with its state and local 

elections.9 Like federal law, California law provides for 

7

 Appellants in No. 02-1727 include the Republican Parties of Colorado, 

New Mexico, and Ohio and the Dallas County (Iowa) Republican County 

Central Committee. 

8

 Appellants Yolo County Democratic Central Committee and Santa Cruz 

County Republican Central Committee are two of the County Central 

Committees. 

9

 For example, New York chose to allow limited corporate contributions 

in connection with state elections. This and other related campaign 

finance “reforms” “represent[ed] the product of a successful, bi-partisan, 

Executive and Legislative effort to develop and distill an election law 

reform program that can and will substantially bolster voter confidence in 

the electoral process.” 1974 N.Y. ST. LEGIS. ANN. 395. Likewise, Utah 

decided not to restrict corporate contributions at all, explicitly rejecting a 

proposal to “review federal laws on the financing of election campaigns 

to determine whether any of those laws and regulations could be used in 

(continued...) 
16 

disclosure of campaign contributions and expenditures. 

Unlike federal law, California law allows contributions by 

both unions and corporations. See CAL. GOV. CODE § 81000 

et seq. 

California’s campaign finance regime was 

significantly amended in November 2000, when “Proposition 

34” was adopted by the state’s voters. The new law imposes 

limits on contributions to candidates and offers certain 

benefits to candidates in exchange for voluntarily accepting 

spending limits.10 See CAL. GOV. CODE § 85300 et seq. At 

the same time, however, the parties are allowed to raise and 

spend more money, not less, in connection with state and 

local elections. Limits for contributions to the parties for 

candidate-related expenditures are set at $26,600 per year. 

Contributions for non-candidate-specific expenditures (such 

as administrative expenses, generic party-building, voter 

registration, partisan GOTV and ballot measure activities) are 

unlimited. See CAL. GOV. CODE § 85303(c). As the district 

court found, Proposition 34 reflected a specific policy choice 

by the voters to allow unlimited contributions to the parties 

based on the view that “[p]olitical parties play an important 

role in the American political process and help insulate 

candidates from the potential corrupting influence of large 

contributions.” Henderson 310-11sa (quoting California 

Ballot Pamphlet); Leon 1227sa. 

Utah,” H.B. 328, 54th Gen. Assem. (UTAH 2001), and another “urging 

reform of Federal Campaign Finance Law” as embodied in the thenpending BCRA. See S. Res. 2, 52nd Gen. Assem. (UTAH 1998). 

10 California limits contributions by persons other than political parties 

and “small contributor committees” to $3,200 per election for state 

legislative candidates, $5,300 per election for statewide candidates, and 

$21,200 per election for gubernatorial candidates. See CAL. GOV. CODE 

§§ 85301-85303. (These numbers are slightly higher than in the briefs 

below because contribution limits are indexed for inflation. Id. § 83124.) 
17 

The district court found that while state parties play a 

role in federal elections, they do not exist primarily for that 

purpose. State and local parties exist primarily to participate 

in state and local elections, which substantially outnumber 

federal races, and state and local parties focus the majority of 

their resources on these elections. In particular, voter 

registration and GOTV activity such as direct mail, telephone 

banks, and door-to-door canvassing are all primarily directed 

at state and local elections. See Henderson 311-14sa; Leon 

1227- 31sa. 

The state and local parties currently organize and 

conduct most of the grass-roots campaign activities. 

Candidates generally have neither the money nor the 

infrastructure to conduct these activities; they typically use 

the media or mail because these methods are more 

cost-effective given the size of California’s districts.11 See 

J.A. 124-30, Bowler Decl. ¶20; J.A. 225, 234-35, Erwin 

Decl. ¶¶3, 8. State and local parties organize and support 

local party headquarters with paid staff to recruit, train, and 

coordinate volunteers during election season. 

Significantly, the district court rejected the suggestion 

that state parties received most or all of their nonfederal 

funds from national party transfers for use on issue 

advertisements. It found that a substantial majority of the 

non-federal funds of CDP and CRP are the result of their 

own direct fundraising in conjunction with state and local 

11 State Senate Districts (almost 850,000 persons) are larger than 

Congressional Districts (approximately 640,000 persons). See 

http://swdb.berkeley.edu./info/census2000/P001_by_2kDistrict.html. A 

State Assembly District contains approximately 423,000 persons. See id. 

In addition to 120 state legislators, Californians vote on eight statewide 

officers, as well as local and judicial officers and ballot measures. See 

J.A. 118, Bowler Decl. ¶8. 

. 
18 

candidates and activities. See Henderson 315-17sa; Leon 

1239-40sa. Nonfederal funds raised directly by each of the 

California state parties in the past several cycles have ranged 

from approximately $10 million per cycle to $17 million per 

cycle. See Henderson 316-17sa; Leon 1241sa. 

Moreover, although national parties have transferred 

money to state parties for use in issue advertisements, the 

evidence shows that many state parties spend the majority of 

their nonfederal money (including transfers from the national 

parties) on administrative overhead, grass-roots mobilization, 

and other party-building activities, and not on issue 

advertisements. See J.A. 1434-37, La Raja Decl. ¶22. If 

transfers are excluded, the percentage of nonfederal funds 

spent by the state and local parties on overhead and 

mobilization activities is even higher. See Leon 1121-22sa & 

n.58.12 

The district court found that the state parties, unlike 

the national parties, have raised fairly consistent amounts of 

federal funds over the past several cycles, and that they are 

not likely to raise significantly more federal funds because 

the cost of doing so is extremely high. See Henderson 315sa, 

317sa; Leon 1240-41sa. 

In addition, although the state parties have raised far 

more nonfederal funds than federal funds, the Levin 

Amendment prohibits state parties from using most of their 

state-regulated money for state and local election activities 

12 The Government and its experts have repeatedly made assertions about 

spending by state parties based on data concerning state party 

“allocation” accounts (which reflect, almost by definition, expenditures 

for largely “generic” or “mixed” activities, including issue advertising). 

These accounts do not, however, include the state parties’ disbursements 

on purely state and local activities, such as mailings for state candidates. 

The Government’s failure to include data on these purely state and local 

activities produces a distorted picture. 
19 

that fall within the definition of “Federal election activity.” 

Over the past several cycles, contributions comprising 

76%-86% of CDP’s nonfederal revenue – $10-13 million per 

cycle – exceeded the $10,000 limit imposed by the Levin 

Amendment. See Henderson 316sa; Leon 1241sa; J.A. 144-

52, Bowler Decl. Exh. A; J.A. 162-63, Bowler Reb. Decl. ¶4; 

see also J.A. 250-51, Erwin Decl. ¶15a (comparable figures 

for CRP are $12 million in Presidential cycles, and $3.5 

million in non-Presidential cycles). Since BCRA imposes its 

strictures on all voter mobilization activity during federal 

election years, the effect is severe. Voter registration, 

generic party-building, and grassroots mobilization are likely 

to be reduced. See Henderson 321sa; Leon 1242-43sa. 

Collaboration by local, state, and national parties on 

Republican “Victory Plans” and Democratic “Coordinated 

Campaigns.” Relations among local, state, and national party 

organizations have strengthened in the past three decades, 

and have never been closer. This is generally healthy for 

American democracy. See Henderson 304sa; Leon 1221-

22sa. This close working relationship is exemplified by 

Republican “Victory Plans” and Democratic “Coordinated 

Campaigns.” As Senator McCain acknowledged, these 

“grass roots activities are the fundamentals of a democratic 

process.” J.A. 943-44, McCain Dep. 192-93. 

Before BCRA, at the outset of each election year, 

each state Republican party worked with the RNC to prepare 

and implement a written “Victory Plan” containing its 

strategy for identifying, contacting, and mobilizing voters for 

that election cycle. The plan included numerous components 

such as direct mailings, telephone banks, brochures, slate 

cards, yard signs, and rallies, and was funded with a mix of 

federal and nonfederal money. See Henderson 306sa; Leon 

1223sa; J.A. 694, Peschong Decl. ¶4. The plan also set forth 

the budget for the programs, a strategy for raising the money, 

and an allocation of the financial burden among the local, 
20 

state, and national parties. It often placed its greatest 

emphasis on state and local races. See Henderson 306sa; 

Leon 1223sa. 

From the outset, RNC officials assisted the state party 

in drafting and implementing each plan. See Henderson 305-

06sa; Leon 1222sa; J.A. 694-95, Peschong Decl. ¶¶5-7. In 

addition to the technical expertise the RNC brought to the 

Victory Plan process, the RNC provided funding for these 

programs – $42 million in 2000, 60% of which was 

nonfederal – and provided fundraising assistance to the state 

parties to help them raise their share. See Henderson 306sa; 

Leon 1223sa; J.A. 296, 306, Josefiak Decl. ¶¶31, 63. None 

of this money was used for issue advertising. See Henderson 

306sa; Leon 1223sa. Similar activities were undertaken by 

local, state, and national Democratic party committees in 

their Coordinated Campaigns, see Henderson 305sa; Leon 

1222sa, through which they “register[ed], identif[ied], and 

turn[ed] out voters on behalf of the entire Democratic ticket.” 

J.A. 823-24, Stoltz Decl. ¶3. 

The LNC and Its Activities. The Libertarian 

National Committee, Inc. (“LNC”), the governing body of 

the Libertarian Party® at the national level, is incorporated 

in the District of Columbia as a nonprofit corporation 

governed by IRC § 527. It advances the principle that all 

individuals have the right to exercise sole dominion over 

their lives and have the right to live in whatever manner they 

choose, so long as they do not forcibly interfere with the 

equal right of others to live in whatever manner they choose. 

See J.A. 181-82, Decl. of Dasbach, Crickenberger, and 

Dunbar of the LNC (“LNC Decl.”) ¶4.13 

13 In addition to their specific objections to BCRA, the LNC and 

Libertarian Party oppose all federal campaign finance laws; the LNC does 

not seek, accept, or use any government funds for election campaigns. 

See LNC Decl. ¶4, J.A. 181-82. 
21 

The Libertarian Party is a membership organization 

with dues paid by all members, including minors. See id. 

¶45, J.A. 199-200. Dues often are paid to affiliated state 

Libertarian parties, with a portion distributed to the LNC, so 

that those who pay dues may be members of both the state 

and national parties. The Libertarian Party permits one 

person to pay dues on behalf of another, in which case the 

dues are placed in state affiliate nonfederal money accounts. 

See id. ¶33, J.A. 195. 

The LNC engages in a wide range of activities to 

increase acceptance of libertarian principles, many of which 

are unrelated to federal elections. It solicits, receives, and 

uses nonfederal money (as well as federal money) to 

advocate libertarian positions on public policy issues such as 

drug policy or taxation. Id. ¶¶15, 35, J.A. 187-88, 196. The 

LNC conducts issue advocacy campaigns and develops 

educational materials unrelated to election campaigns and 

without any express reference to Libertarian Party federal 

candidates. See id. ¶¶12, 35, J.A. 186, 196. The LNC also 

produces educational materials on libertarian issues for sale 

to the general public and to state and local Libertarian Parties 

and candidates. See id. ¶32, J.A. 194-95. 

The LNC stages conventions of the Libertarian Party 

every other year, with nominating conventions during 

presidential election years and educational conventions 

during other election years. See id. ¶28, J.A. 192. 

Conventions held during non-presidential election years are 

devoted solely to discussion and advocacy of issues and 

internal LNC party matters; no candidates for public office 

are nominated or selected. See id. ¶29, J.A. 192-93. The 

LNC finances the conventions through attendance fees 

(including fees from minors) and, in significant part, through 

space rentals, advertising in convention programs, and 

sponsorships of the program and various events by 

individuals and corporations. See id. ¶29. 
22 

The LNC also publishes a newspaper, the Libertarian 

Party® News, each month – regardless of whether an 

election is pending. The newspaper accepts advertising from 

for-profit and not-for-profit corporations and from state and 

local candidates. See id. ¶¶18-19, J.A. 189. As with the 

party dues structure, the newspaper accepts funds for 

subscriptions for one person on behalf of another. See id. 

¶21, J.A. 189-90. 

The LNC transfers nonfederal funds to affiliated state 

parties. See id. ¶¶15-16, J.A. 187-88. Only seven of the 51 

state affiliates of the national Libertarian Party have 

registered as political committees with the FEC and are 

subject to FECA requirements. See id. ¶9, J.A. 184. 

Even Libertarian Party federal campaigns are 

primarily focused on federal issue advocacy, because no 

Libertarian Party candidate has ever been elected to federal 

office. See id., ¶10, J.A. 185. Knowing they have little 

prospect of winning, Libertarian Party federal candidates use 

their candidacies to educate the public on libertarian 

principles. See id. ¶11, J.A. 185-86. For the same reasons, 

the LNC supports its party candidates as a means to foster 

support for libertarian principles, not to elect candidates to 

federal office. 

The LNC makes both independent and coordinated 

expenditures on behalf of candidates for state and federal 

office, and it transfers funds between national, state, and 

local party committees; it uses nonfederal money to finance 

its ballot access drives and to finance all of its national 

conventions; it solicits funds for and makes donations to IRC 

§ 527 organizations; and it solicits funds for and makes 

donations to IRC § 501(c) organizations that make 

expenditures in connection with federal elections. See id. 

¶¶16, 37, 39, J.A. 188, 196-97. 
23 

BCRA will wreak havoc on the structure and 

nonfederal political activity of the LNC and its affiliated state 

parties. BCRA prohibits the current LNC dues and 

newspaper subscription structure. Further, it requires the 

LNC to fund all activities with 100 percent federal dollars. 

At present, the LNC has three principal sources of nonfederal 

money: 1) list rental fees ($39,558 in 2001); 2) dues paid 

through state affiliates and forwarded from the state affiliates 

to the LNC ($75,239.77 in 2001); and 3) advertising in the 

Libertarian Party® News and elsewhere ($61,530.25 in 

2001). Id. ¶9, J.A. 184. In 2002, only one individual 

contribution to the LNC exceeded the $20,000 FECA limit; 

during the past six years, no more than four donors to the 

LNC have exceeded this limit in any one year. Id. 

The LNC is subject to all the same burdens imposed 

by BCRA as major parties. But the restraints that BCRA 

imposes on the far smaller LNC weigh even more heavily on 

its freedom to advocate issues and to associate with others 

toward a common purpose. The primary effect of BCRA on 

the LNC is thus to impede LNC issue advocacy and freedom 

of association with little or no potential to serve any interest 

in preventing actual or apparent corruption. 

The Rise of Special Interest Groups. Throughout 

American history, single-issue interest groups have populated 

American politics. Parties seek to induce these groups into 

broader coalitions and thereby moderate their often extreme 

views. In the words of the Government’s political science 

experts, “[p]arties with their necessary ‘big tent’ compete for 

the allegiances of multiple groups.” Leon 1196sa (quoting 

Krasno & Sorauf Expert Report at 24). 

In recent years, special interests have become 

increasingly well-funded and aggressive competitors of the 

political parties. Interest group broadcast issue advertising 

exploded, accounting for fully two-thirds of all such 

spending. See Henderson 230-31sa; Leon 1324-25sa. 
24 

Unlike political party issue advertising – which often 

responded to interest group advertising, was fully reported to 

the FEC, and was paid for with a mix of federal and 

nonfederal money – interest group issue advertising has been 

virtually unregulated. See J.A. 314, Josefiak Decl. ¶89. 

Even under BCRA, interest groups remain free to spend 

100% nonfederal funds raised in any amount from any source 

– without any public disclosure – on broadcast issue 

advocacy so long as the spots are crafted to avoid Title II’s 

definition of “electioneering communications.” 

Moreover, even before enactment of BCRA, many 

interest groups already were shifting their focus in the days 

and weeks preceding an election away from broadcast 

advertising toward “ground war” activities such as GOTV. 

See Henderson 322-23sa; Leon 1253-54sa; J.A. 697-98, 

Peschong Decl. ¶¶13-14. These activities are often subject to 

no regulation and no disclosure, even under BCRA. 

As but one example, the district court unanimously 

found that during the closing weeks of the 2000 election 

campaign, the NAACP National Voter Fund spent roughly 

$10 million – $7 million of which came from one anonymous 

donor – on election-related activities, including registering 

200,000 voters, putting 80 staff in the field, contacting 

40,000 people in each of its target cities, operating a GOTV 

hotline, running newspaper print advertisements on issues, 

making seven direct mailings, funding affiliated groups, and 

calling over one million households. See Henderson 323sa; 

Kollar-Kotelly 645sa; Leon 1253-54sa; see also Henderson 

323sa ($7.5 million GOTV efforts of NARAL); KollarKotelly 645sa (same); Leon 1253-54sa (same). Thus, interest 

groups “engage in a wide array of political activities 

paralleling the activities of political parties.” Henderson 

322sa; see also Leon 1253sa. 

The Government’s experts agreed, and the district 

court found, that BCRA will encourage more interest group 
25 

voter-mobilization activity, funded with undisclosed, 

unregulated money. See Henderson 323-24sa; Leon 1253sa; 

J.A. 861, Green CX 24; J.A. 928-29, Mann CX 164-65. 

Evidence in the record and, in Judge Henderson’s words, 

“common sense,” suggest that BCRA will merely shift 

nonfederal funds away from political parties to interest 

groups, which are free to operate below the radar of public 

scrutiny. See Henderson 415sa. NARAL president Kate 

Michelman, for instance, has said that donors seeking to 

“elect people who embody their values will be looking to 

groups like NARAL, which do serious political work and are 

seasoned operatives, to invest in. If they can’t give to the 

parties . . . they are going to find other means.” Henderson 

324sa; Kollar-Kotelly 643sa; see J.A. 279, Gallagher Decl. 

¶61; see also J.A. 1438-44, La Raja Decl. ¶24; J.A. 1601-02, 

Milkis Decl. ¶47; J.A. 928-29, Mann CX 164-65. 

Already, media reports have confirmed these 

predictions. Indeed, as the Washington Post reported, 

“[w]hat appears certain, experts said, is that special interest 

groups – such as labor unions, abortion rights groups and the 

National Rifle Association – will use the cash they once sent 

to the political parties as soft money to air ads and organize 

voters directly.”14 BCRA does not truly ban “soft money”; it 

merely pushes it under the table. 

14 See J.A. 1934-37, Thomas B. Edsall & David Von Drehle, Republicans 

Have Huge Edge in Campaign Cash, WASH. POST, Feb. 14, 2003, at A7. 

The Washington Post recently reported on a May 8, 2003, meeting of 

major interest groups planning to raise nonfederal money for use in 

funding a massive voter mobilization and issue advocacy campaign. 

“Most of the groups at the . . . meeting at Emily’s List’s offices in 

Washington have special committees . . . that are generally not restricted 

by McCain-Feingold. Most are competing for large contributions from 

many of the ‘soft money’ donors to the Democratic Party.” J.A. 1938-41, 

Thomas B. Edsall, Liberals Meeting to Set ’04 Strategy; Labor, Rights 

Groups Focus on Getting Out the Vote to Help Democrats, WASH. POST, 

May 25, 2003, at A6; see also J.A. 1942-45, Harold Meyerson, Union 

(continued...) 
26 

“Corruption” or the “Appearance of Corruption.” 

Eminent historian Dr. Morton Keller of Brandeis testified 

without contradiction that – in view of an extensive federal, 

state, and local regulatory regime governing lobbying, 

gratuities, campaign contributions, and civil service 

patronage – “‘[c]orruption or the appearance of corruption’ 

. . . is less of a problem in American politics today than at 

any time in the past.” J.A. 1261-62, 1267, Keller Decl. ¶55. 

Defense expert Dr. Frank Sorauf has observed, “the 

[campaign finance] reform agenda of the 1990s” – of which 

BCRA is a product – “is driven as much by populist 

demonologies as it is by the realities of contemporary 

political influence.” Sorauf, Politics, Experience, and the 

First Amendment: The Case of American Campaign 

Finance, 94 Colum. L. Rev. 1348, 1356 (1994). The record 

here amply bears this out. 

Lack of evidence of quid pro quo corruption. Based 

on defendants’ binding admissions, the district court found 

that there is no evidence “that any Member of Congress has 

ever changed his or her vote on any legislation in exchange 

for a donation of nonfederal funds to his or her political 

party.” Leon 1254sa; see also Henderson 325sa; J.A. 1732, 

FEC Response to Requests for Admission (“RFA”) Nos. 1, 2; 

J.A. 853-54, Feingold Dep. 132-33; J.A. 918-19, Jeffords 

Dep. 106-07. Moreover, defendants admitted that “[t]here is 

no probative evidence that national parties have attempted, 

through the use of nonfederal donations, to get federal 

officeholders to change their position on legislation.” Leon 

1261sa; see also Henderson 328sa; J.A. 1732, FEC Response 

Dos and Don’ts For the Democrats, WASH. POST, May 28, 2003, at A19 

(describing “myriad so-called 527s – the tax code designation for 

organizations that are springing up now that campaign reform has banned 

the two parties from collecting soft money to fund voter registration and 

mobilization campaigns”). 
27 

to RFA Nos. 23, 24; J.A. 1026-1030, Snowe Dep. 205-08, 

231-32; J.A. 974-75, Meehan Dep. 171-72. 

Likewise, defense statistical expert Dr. Green 

admitted there are no statistically valid studies showing a 

correlation between political donations and legislative voting 

behavior, see J.A. 861-64, Green CX 58-61, and the district 

court agreed. See Henderson 326sa, 327sa (“[n]o valid 

statistical evidence” nonfederal donations influence roll call 

votes, committee voting, amendments, or filibusters); see 

also Leon 1256sa (any statistical evidence that nonfederal 

donations resulted in quid pro quo corruption has been “so 

undermined by challenges to its validity that it has no 

probative value.”). 

“Access.” The record provides no support for the 

claim that “access” to federal officeholders is uniquely 

granted to nonfederal donors as a result of their donations to 

political parties. See Henderson 330sa; Leon 1263-64sa; J.A. 

864-67, Green CX 69-72, 95. Nor is there “probative 

evidence that federal officeholders are more likely to meet 

with nonfederal donors than with federal donors.” Leon 

1264sa; see also Henderson 330sa. As the FEC admitted, all 

six national party committees’ fundraising events are open to 

federal and nonfederal donors alike. See Henderson 329sa; 

Leon 1263sa. 

Moreover, the district court found that lobbying 

expenditures are more likely to produce “access” to a federal 

officeholder than political donations. See Henderson 331sa; 

Leon 1287sa. The amount spent on lobbying by party donors 

is often “geometrically larger” than their nonfederal 

donations to parties. Leon 1287sa; see also Henderson 

332sa. For example, as the FEC admitted, the top five 

nonfederal donors to parties in 1997-98 donated $7.8 million 

in nonfederal funds but spent $42 million on federal lobbying 

during that same period. See Leon 1287sa; Henderson 332sa. 

Reported lobbying spending in Washington in just the last six 
28 

months of 2002 was $925.8 million. See J.A. 1946-47, BNA, 

Money & Politics Report (June 24, 2003). 

Public perception. As its “principal” evidence that 

nonfederal donations to political parties create the 

“appearance of corruption,”15 the Government submitted a 

specially-commissioned but “poorly worded” public opinion 

poll by Richard Wirthlin and Mark Mellman. Henderson 

334sa. The Wirthlin/Mellman poll asked respondents for 

their views of “large” or “big” contributions to parties, 

without defining those terms. The RNC’s public opinion 

expert, Dr. Q. Whitfield Ayres, precisely replicated the 

Wirthlin/Mellman poll, substituting BCRA’s new 

contribution limits for the words “big” or “large.” Dr. Ayres’ 

results almost exactly matched the Wirthlin/Mellman results. 

As Judge Henderson found, “[e]very conclusion that the 

Wirthlin-Mellman report reached about ‘large’ or ‘big’ 

contributions and contributors applies with equal force to the 

new . . . hard money limits in BCRA.” See Henderson 336-

37sa (quoting Ayres Reb. at 4-5). 

Defendants’ Anecdotal Evidence. Defendants can be 

expected to reiterate a torrent of anecdotes in an effort to 

show something so seriously flawed within the political 

system as to justify BCRA’s extreme measures. These 

anecdotes are both legally insufficient and factually 

15 Leon 1289-90sa. The record here shows that when people use the word 

“corruption,” as often as not they are referring to things that are 

unpleasant: negative campaign ads, see, e.g., J.A. 1041-45, Williams CX 

21-22, 56-59; intense fundraising efforts, see, e.g., J.A. 974, Meehan Dep. 

128; high campaign costs generally, see, e.g., J.A. 1038, Strother CX 38-

39; the lack of disclosure and accountability on the part of special interest 

groups that run issue ads, see, e.g., J.A. 1005-06, Shays CX 65; and even 

the FEC itself, see J.A. 930-32, McCain Dep. at 15-16, 89; see also 

Henderson 337sa. None of these conceptions of “corruption” is a valid 

basis for government regulation of political parties. 
29 

questionable.16 For example, hearings convened by Senator 

Fred Thompson in the summer of 1997 focused on the 

raising of nonfederal funds during the 1996 campaign 

through “White House coffees,” “Lincoln bedroom 

sleepovers,” and donations from foreign sources, as well as 

the use of such money for issue advertising. Two 

corporations and 26 individuals were indicted under existing 

law as a result of that investigation, see J.A. 872-76, Green 

CX Ex. 12, and, in provisions not challenged in this case, 

BCRA tightens the restrictions on fundraising on federal 

property and on foreign donations, see new §§ 302, 303. 

The district court’s treatment of defendants’ anecdotal 

evidence mirrored the conclusions of an “Adverse Report” on 

BCRA issued by the House Committee on Administration: 

No evidence has been produced to this Committee 

of a “corruption” problem stemming from soft 

money contributions to political parties. Even if 

there had been such a showing, H.R. 2356 does not 

even attempt to be a narrowly tailored remedy. If it 

were ever to become law, it would have precisely 

the opposite effect its proponents intend. Rather 

16 As Judge Henderson observed, the evidence of actual or apparent 

corruption is “mostly anecdotal in nature.” Henderson 409sa. 

Notwithstanding the “mountain of discovery,” defendants below 

identified “not a single discrete instance of quid pro quo corruption 

attributable to the donation of non-federal funds to the national party 

committees,” id. 409-10sa, and no empirical evidence of the alleged 

corrupting effect of non-federal funds donated to parties. Id. 410-11sa. 

The evidence before Congress was no different. See 148 Cong. Rec. 

S2099 (Mar. 20, 2002) (stmt. of Sen. Dodd) (“I have never known of a 

particular Senator whom I thought cast a ballot because of a 

contribution.”); 145 Cong. Rec. S12586 (Oct. 14, 1999) (stmt. of Sen. 

McCain) (responding to direct question, Sen. McCain fails to name any 

Senator who traded a vote for nonfederal funds). See Henderson 431sa 

(rejecting anecdotal accounts from legislative history) (relying on Kimel 

v. Fla. Bd. of Regents, 528 U.S. 62, 89 (2000)). 
30 

than diminish the power of ‘special interest’ groups, 

it would actually make those groups even more 

powerful than they are today. Independent 

advocacy groups, unions and corporations would 

see their power and influence rise, while our 

national political parties would be debilitated. The 

result would be destabilization and factionalism, 

neither of which is in the best interest of our 

country. 

H.R. Rep. No. 107-131(I), at 2 (2001); see also United States 

v. Playboy Entm’t Group, Inc., 529 U.S. 803, 822 (2000) 

(under strict scrutiny, government “must present more than 

anecdote and supposition”). 

Effectiveness of BCRA in Addressing the 

Perceived Problem. Defense public opinion expert Dr. 

Robert Shapiro candidly admitted that he is aware of no 

public opinion evidence showing that BCRA will actually 

reduce the “appearance of corruption.” Henderson 337sa; 

see J.A. 987-90, Shapiro CX 114-17. Likewise, defense 

expert Sorauf testified that “it’s speculative” whether BCRA 

would remedy any perception of corruption. See Henderson 

337-38sa (quoting Sorauf CX 191). 

D. The Decision of the District Court. The district 

court concluded that virtually all the restrictions on political 

parties offend the First Amendment guarantees of free speech 

and association. Applying strict scrutiny, Judge Henderson 

concluded that neither new Section 323(a) nor 323(b) is 

narrowly tailored to serve a compelling interest of the federal 

government. See Henderson 398sa. Likewise, she found 

invalid new Section 323(d), prohibiting political parties from 

donating funds to certain tax-exempt organizations, see id. 

449sa, and new Section 323(f), restricting state candidates’ 

use of nonfederal funds for “public communications” that 

refer to a federal candidate, see id. 460sa. She found valid 
31 

new Section 323(e), which restricts federal officeholders and 

candidates. See id. 460sa. 

Judge Leon analyzed Title I under “intermediate 

scrutiny,” but concluded that new Sections 323(a) and 323(b) 

were not “closely drawn” to achieve an important federal 

government objective. See Leon 1101-11sa, 1119-24sa. In 

an effort to salvage part of the statute, however, Judge Leon 

grafted new Section 323(b)’s definition of “federal election 

activity” onto new Section 323(a). Id. 1111-18sa. Then, he 

ruled that the definition of “federal election activity” was 

itself overbroad, but judicially limited that definition, for 

purposes of both new Sections 323(a) and 323(b), to a 

“public communication that refers to a clearly identified 

candidate for federal office and that promotes or supports . . . 

or attacks or opposes” a federal candidate. Leon 1111-18sa, 

1119-24sa. Because it invalidated less of these sections than 

Judge Henderson’s disposition, Judge Leon’s disposition of 

new Sections 323(a) and 323(b) prevailed. Like Judge 

Henderson, Judge Leon voted to strike down new Section 

323(d)’s restrictions on political party donations to taxexempt organizations. See id. 1142-44sa. Judge Leon joined 

Judge Kollar-Kotelly in upholding the restrictions on state 

candidates in new Section 323(f). See id. 1146sa. He 

dissented from the panel’s ruling to uphold the restrictions on 

federal candidates in new Section 323(e). See id. 1144-45sa. 

Judge Kollar-Kotelly would have upheld Title I in its 

entirety, joining Judge Henderson with regard to new Section 

323(e)’s restrictions on federal candidates and Judge Leon 

with regard to new Section 323(f)’s restrictions on state 

candidates. See Kollar-Kotelly 991sa, 993sa. 

The court unanimously struck down on First 

Amendment grounds Section 213, which compels political 

parties to choose between independent or coordinated 

expenditures to support their candidates. See Henderson 

384-85sa; Kollar-Kotelly 1011sa; Leon 1171-72sa. 
32 

Finally, over Judge Henderson’s dissent, see 

Henderson 384-85sa, the court rejected plaintiffs’ challenges 

to Section 214 (requiring an overbroad definition of 

“coordination”). See Per Curiam 134-57sa. The court 

unanimously held plaintiffs’ challenge to Sections 304 and 

319 (the “Millionaire’s Provisions”) to be nonjusticiable.17 

See Per Curiam 8sa; Henderson 475-76sa. 

SUMMARY OF THE ARGUMENT 

Although proponents of BCRA have described Title I 

as a simple effort to enforce longstanding prohibitions 

against the use of corporate and union money in federal 

campaigns, it is, in fact, much more than that. New Section 

323(a) completely and without exception federalizes all 

aspects of national political party operations, even when 

those activities relate exclusively to state and local elections 

in years when no federal candidates appear on the ballot. It 

also severely restricts the ability of national party committees 

to associate with their state and local counterpart committees. 

Likewise, new Section 323(b) imposes pervasive federal 

dictates on how state and local parties spend money lawfully 

raised pursuant to state law, even when the spending 

primarily or even exclusively affects state and local elections. 

New Section 323(d) prohibits all political parties from 

donating even federally-regulated money to ideologicallyaligned organizations; it even prohibits the CDP and CRP 

from supporting organizations spearheading the fight over 

recalling California’s Governor at the March 2004 election. 

New Section 323(e) restricts the ability of federal 

17 The Political Party Appellants are not pursuing a challenge to the 

Millionaire’s Provisions at this time. The Government has shown 

remarkable intellectual flexibility in defending strict contribution limits 

and limits on coordinated party expenditures as essential bulwarks against 

corruption, only to abandon those restrictions in the interest of aiding 

financially-strapped candidates facing wealthy opponents. 
33 

officeholders to work with state and local parties and 

candidates. And new Section 323(f) restricts the ability of 

state and local candidates to tout their close association with 

popular federal officeholders. This phalanx of interwoven 

restrictions is already undermining the ability of political 

parties to fulfill their pivotal role in American democracy. 

I. Far more restrictive than a mere contribution limit, 

Title I’s pervasive restraints on political party activity are 

subject to the strictest scrutiny under the First Amendment. 

The record is devoid of any evidence of actual quid pro quo 

corruption, and the poorly-worded public opinion poll 

commissioned by the Government to show an appearance of 

corruption is not probative. Even if, however, the record 

contained sufficient evidence of apparent corruption to 

justify some legislative action, Title I is not narrowly tailored 

nor even closely drawn to address those concerns. 

II. Like the statute it amends, BCRA was purportedly 

passed pursuant to the Federal Elections Clause, Article I, 

Section 4 of the Constitution. Title I exceeds this delegated 

authority by regulating activity that has no conceivable effect 

on a federal election, such as the RNC’s participation in state 

and local elections held in off-years. Moreover, Title I shows 

disdain for the states as dual sovereigns by subjecting to full 

federal regulation even activities by state and local parties 

that affect only state and local elections. 

III. In contrast to the phalanx of restrictions imposed 

on political parties, BCRA leaves special interest groups 

largely unfettered to engage in virtually all election-related 

activities. Even if BCRA’s restrictions on corporate and 

union broadcast “electioneering communications” were to 

survive constitutional challenge, interest groups (but not 

political parties) would remain free from regulation to engage 

in broadcast communications not within the definition of 

“electioneering communication,” as well as all forms of nonbroadcast communication such as telephone banks, direct 
34 

mail, and door-to-door canvassing. Interest groups have 

already begun raising the very money that national political 

parties may no longer accept, for use in the very activities 

that Title I extensively regulates when performed by political 

parties. In short, Title I’s multitude of restrictions on 

political parties places parties at a severe disadvantage in 

relation to special interest groups. 

ARGUMENT 

I. BCRA’s RESTRICTIONS ON POLITICAL 

PARTIES VIOLATE THE FIRST 

AMENDMENT. 

Though defended in the lower court as a mere 

contribution limit or device to close loopholes, BCRA is 

much more. New Section 323(a) makes it a felony for the 

RNC’s chairman to send a letter asking donors to give $25 to 

Mississippi gubernatorial candidate (and former RNC 

chairman) Haley Barbour for use in this November’s off-year 

election. New Section 323(f)(1) prohibits Mr. Barbour from 

using his state-regulated campaign funds this year to send a 

mailing advocating state tax cuts and featuring President 

Bush, a declared candidate for reelection next year. During 

any even-numbered year, new Section 323(b)(2)(B)(iv) 

restricts the Yolo County Democratic Central Committee 

from collaborating with the CDP to spend funds raised 

pursuant to the Levin Amendment on a GOTV effort in a 

mayoral election. New Section 323(a) makes it a crime for 

the CRP to donate even federal dollars to a 501(c)(4) entity 

formed to support the current gubernatorial recall initiative. 

And new Section 323(a) subjects to criminal prosecution an 

RNC field representative who participates in a meeting to 

plan the fundraising, implementation, and spending for 

Louisiana’s Victory Plan in this year’s state elections. These 

restrictions, and the many others imposed by BCRA, on core 

rights of political speech and association simply cannot and 

should not survive First Amendment scrutiny. 
35 

Despite BCRA’s severability clause, new Sections 

323(a) and (b) are so closely tied together that, if one is 

invalid, both must fall.18 Relying upon testimony by one of 

defendants’ experts, Judge Henderson was “inclined to 

agree,” Henderson 423sa (quoting Mann CX 110); she did 

not decide this question, however, because she held both new 

Sections 323(a) and (b) invalid. 

A. The Many Restrictions on Association and 

Speech Imposed by New Section 323 Are 

Subject to Strict Scrutiny. 

Unable to defend new Section 323 under strict 

scrutiny, defendants have vigorously argued for intermediate 

scrutiny under the mistaken view that BCRA falls neatly 

within the “contribution/expenditure” dichotomy set forth in 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). As shown 

above, however, new Section 323 contains a multitude of 

nonfinancial restrictions on speech and association; it directly 

“burden[s]” the most basic associational activities of political 

parties at all levels, and thus is subject to strict scrutiny. See 

Eu v. San Francisco County Democratic Central Comm., 489 

U.S. 214, 225 (1989). 

First, strict scrutiny applies because new Section 323 

severely restricts political party rights of association with 

their members and with their component parts. This Court 

has made clear that “the First Amendment protects ‘the 

freedom to join together [in parties] in furtherance of 

common political beliefs. . . .’” California Democratic 

18 The legislative history reflects the view of BCRA’s sponsors that both 

new Sections 323(a) and (b) were necessary to achieve Congress’s 

purpose. See 148 Cong. Rec. H408 Feb 13, 2002 (stmt. of Rep. Shays) 

(“The only effective way to address this problem of corruption is to ban 

entirely all raising and spending of soft money by the national parties.”); 

id. (“[a]n effective effort to address state party soft money spending” is 

“absolutely essential to . . . solving the soft money problem.”). 
36 

Party, 530 U.S. at 574 (quoting Tashjian v. Republican Party 

of Connecticut, 479 U.S. 208, 214-15 (1986)). The 

Government violates a political party’s right of association 

whenever it interferes “with an activity integral to the 

association in the sense that the association’s protected 

purposes would be significantly frustrated were the activity 

disallowed.” L. Tribe, American Constitutional Law § 12-

26, at 1016 (2d ed. 1988); see also Eu, 489 U.S. at 224 (right 

of association means more than just “that an individual voter 

has the right to associate with the political party of her 

choice”); Tashjian, 479 U.S. at 215 (same). 

Any law burdening political parties’ right of free 

association is “unconstitutional unless it is narrowly tailored 

to serve a compelling state interest.” California Democratic 

Party, 530 U.S. at 582; see Eu, 489 U.S. at 231 (“Because 

the challenged laws burden the associational rights of 

political parties and their members, the question is whether 

they serve a compelling state interest.”); Tashjian, 479 U.S. 

at 217 (rejecting state’s claim that law restricting parties’ 

associational rights “is a narrowly tailored regulation which 

advances the State’s compelling interests”).19 Like the 

burdens imposed on political parties in California 

Democratic Party, Eu, and Tashjian, those in BCRA must be 

subjected to strict scrutiny and declared invalid. 

Second, new Section 323 does not limit 

“contribut[ions] to a candidate,” where the potential for 

apparent corruption is at its zenith and which this Court has 

19 See also Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) 

(“freedom of expressive association” could be overridden only by 

“‘regulations adopted to serve compelling state interests, unrelated to the 

suppression of ideas, that cannot be achieved through means significantly 

less restrictive of associational freedoms’”) (quoting Roberts v. United 

States Jaycees, 468 U.S. 609, 623 (1984)); Ronald D. Rotunda & John E. 

Nowak, Treatise on Constitutional Law, §20.41, at 523 (3d ed. 1999). 
37 

“identified” as the “single narrow exception to the rule that 

limits on political activity [are] contrary to the First 

Amendment.” Citizens Against Rent Control, 454 U.S. at 

296-97 (emphasis in original). Accordingly, this Court’s 

decisions applying intermediate scrutiny to limits on 

contributions to candidates are not controlling.20 

Instead, as Judge Henderson observed, Title I runs 

headlong into on-point precedent applying strict scrutiny to 

invalidate (i) limits on contributions to political associations 

(like the political parties here) that fund pure issue speech 

unrelated to federal campaigns, see Citizens Against Rent 

Control, 454 U.S. at 294, and (ii) restrictions on 

noncoordinated spending by political parties, see Colorado I, 

518 U.S. at 608. It thus sweeps within its ambit a whole host 

of speech activity that the Government may not 

constitutionally restrict at all. See Henderson 419-20sa.21 

In Citizens Against Rent Control, the Court applied 

strict scrutiny and struck down under the First Amendment a 

local ordinance that limited contributions to a political 

association that, in turn, engaged in pure issue speech. 454 

20 See Buckley, 424 U.S. at 29; see also Beaumont v. FEC, 539 U.S. __, 

Slip Op. at 1 (2003) (upholding prohibition on contributions to candidates 

by non-profit advocacy organizations); FEC v. Colorado Republican Fed. 

Campaign Comm., 533 U.S. 431, 456 (2001) (“Colorado II”) (treating 

party coordinated expenditures as contributions to candidate); Nixon v. 

Shrink Missouri PAC, 528 U.S. 377, 395 (2000) (upholding Missouri 

state law contribution limits); California Medical Ass’n v. FEC, 453 U.S. 

182, 201 (1981) (plurality upholding contribution limits to political 

committees established to make contributions to candidates); id. at 203 

(Blackmun, J. concurring) (casting decisive vote and noting that “a 

different result would follow if [the limitation] were applied to 

contributions to a political committee established for the purpose of 

making independent expenditures, rather than contributions to 

candidates.”). 

21 Buckley did not address limits on contributions to political parties, 

which Congress did not impose until after Buckley was decided. 
38 

U.S. at 296-99. Political parties spend money to support or 

oppose ballot initiatives, the precise activity at issue in 

Citizens Against Rent Control. 454 U.S. at 292. And the 

district court found that the RNC has recently participated in 

important public policy debates concerning, for instance, a 

balanced budget amendment, welfare reform, and education 

policy. See Henderson 293sa; Leon 1195sa. 

Third, even if considered under the Buckley 

framework, new Section 323 would be subject to strict 

scrutiny because it directly limits spending. As this Court 

said in Beaumont, the level of scrutiny appropriate for 

“political financial restrictions” – and as shown, new Section 

323 is much more than a “financial restriction” – “is based on 

the importance of the ‘political activity at issue’ to effective 

speech or political association.” Id. Slip Op. at 14 (quoting 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 259 

(1986) (“MCFL”)). The Court noted that FEC v. National 

Right to Work Committee, 459 U.S. 199 (1982), applied 

intermediate scrutiny because that committee was “organized 

to make contributions,” whereas MCFL applied strict 

scrutiny “to invalidate the ban on an advocacy corporation’s 

expenditures.” Beaumont, Slip Op. at 15. 

By acknowledging that the source restrictions in 

Section 441b were subject to strict scrutiny in MCFL, 

Beaumont rejected the simplistic notion that contribution 

limits must always be subject to intermediate scrutiny. 

Indeed, MCFL applied the highest level of scrutiny even 

though there was no restriction on the amount that the 

corporation could spend for independent express advocacy, 

but simply a requirement that all such political spending be 

done with dollars subject to FECA’s restrictions. Although 

limiting the source of the funds was “not an absolute 

restriction on speech, it [was] a substantial one” that needed 

to be “justified by a compelling state interest” because, 

among other things, it “reduce[d] the sources of funding” 
39 

available “to engage in core political speech.” MCFL, 479 

U.S. at 252, 255. 

Similarly, Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990), applied strict scrutiny to a requirement 

that corporations do all political spending “through separate 

segregated funds” subject to FECA-like restrictions, because 

requiring corporations to spend only regulated monies on 

political activity “burden[s] expressive activity.” Id. at 657-

58. Here, requiring national political parties to engage in 

political spending exclusively with federal money is subject 

to strict scrutiny, particularly since, unlike the prohibited 

corporate funds in Austin, the money raised and spent by the 

RNC “reflects actual public support for the political ideas 

espoused by” the RNC. Austin, 494 U.S. at 660. Thus, new 

Section 323(a) is subject to strict scrutiny. 

Just as clearly, new Section 323(b) places no 

restriction on the raising of nonfederal money; a state party 

may continue to raise as much state-regulated money as state 

law allows. Rather, new Section 323(b) limits only the 

spending of such lawfully-raised money and, accordingly, 

must be viewed as a pure expenditure limit subject to strict 

scrutiny. Buckley, 424 U.S. at 44-45; see also Colorado I, 

518 U.S. at 609; NCPAC, 470 U.S. at 496. 

Finally, the Government and Intervenors concede that 

Title II’s limit on spending for “electioneering 

communications” is subject to strict scrutiny, and the district 

court unanimously agreed. See Henderson 363sa; KollarKotelly 781sa; Leon 1147sa. It would be odd to subject new 

Section 323 to lower scrutiny when it imposes far more 

pervasive restrictions, including those on both raising and 

spending money, on political parties whose sole function is 

core political speech. 
40 

B. Section 323(a)’s Restrictions on National 

Party Committees Violate the First 

Amendment. 

1. Section 323(a) Impermissibly Impedes 

the Ability of National Party 

Committees To Associate with State 

and Local Party Committees. 

As a federation of state parties, the Republican Party 

“comprises several interacting, independent entities that work 

closely together on a daily basis” to promote Republican 

ideals, elect candidates who espouse those ideals, and govern 

according to those ideals at the local, state, and national 

levels. See J.A. 298-99, Josefiak Decl. ¶11. Senator McCain 

accurately testified, however, that new Section 323 erects a 

“firewall” between national and state party committees, J.A. 

952, McCain Dep. 223, and thus strikes at the very heart of 

the parties’ associational activities.22 

A key example of the close working relationship 

among local, state, and national Republican Party committees 

and candidates is the creation, financing, and implementation 

of full-ticket “Victory Plans.” See supra at 19-20. These 

voter mobilization plans are the essence of the democratic 

process. Yet, new Section 323(a) proscribes effective RNC 

participation in Victory Plans. RNC employees have 

historically been integrally involved in deciding how 

nonfederal funds will be “solicit[ed],” “receive[d],” and 

“spen[t],” for Victory Plans, in “transfer[ring]” both federal 

and nonfederal funds to state parties for these programs, and 

in “solicit[ing]” federal and nonfederal funds for them.

23 All 

22 See J.A. 206-07, Duncan Decl. ¶7; J.A. 1410-12, La Raja Decl. ¶12. 

23 While the Government has sought refuge in the FEC’s regulatory 

definition of “direct[ing],” the Intervenors have challenged that definition 

in court. See Shays v. FEC, Civ. No. 02-CV-1984 (D.D.C., filed Oct. 8, 

(continued...) 
41 

of these activities by RNC personnel are now felonies if any 

nonfederal or Levin money is involved, even during years in 

which no federal offices appear on the ballot. See new 

§323(a). Moreover, new Section 323(b)(2)(B)(iv)’s 

“homegrown” requirement prohibits national party 

committees from providing state and local parties with even 

federal money for voter mobilization activities if those 

activities use any nonfederal or Levin money. 

In short, any RNC participation in Victory Plans – 

merely sitting down at a table and participating in collective 

decisionmaking about how money will be solicited, received, 

and spent – is covered by new Section 323(a). To avoid 

felony prosecution, the Victory Plan must proceed without 

RNC involvement, or the entire program must be paid for 

with 100% federally-regulated money. State and local 

parties and candidates are punished simply for associating 

with the RNC. See J.A. 299-311, Josefiak Decl. ¶¶40, 77. 

New Section 323(a) also forces RNC officers to 

discontinue their fundraising assistance to state and local 

parties and candidates. In the district court, the Government 

proposed two equally absurd solutions. First, the 

Government invoked FEC regulations allowing state party 

officials who are members of national party committees (but 

not national party officers or employees) to “wear multiple 

hats,” 67 Fed. Reg. 49,083 (July 29, 2002), as support for the 

remarkable suggestion that RNC officials should simply raise 

nonfederal funds for state and local parties and candidates in 

their “individual capacities.” Putting to the side whether any 

prudent person would engage in this sort of schizophrenia, it 

is not realistic to require RNC officers to pay for their 

fundraising trips with personal funds. Moreover, it is 

2002). In any event, the FEC regulations do nothing to narrow the bans 

on “solicit[ing,” “receiv[ing],” “transfer[ring],” or “spend[ing]” 

nonfederal money. 
42 

precisely the fact that the RNC chairman is acting on behalf 

of the RNC that makes those solicitations effective. 

Compelling the RNC chairman to disassociate from the RNC 

– even temporarily – is yet a further burden on First 

Amendment freedoms. 

Second, the Government and Intervenors propose that 

RNC officers simply solicit federal money for state and local 

candidates and parties. But state and local candidates 

register, raise, spend, and report their finances pursuant to 

state and local law; they do not, and cannot, even register 

with the FEC or raise federal funds. They raise and spend 

nonfederal money, which RNC officers cannot “solicit.” 

Defendants’ suggestion that state candidates accede to 

federal regulation merely confirms BCRA’s utter disdain for 

the states as dual sovereigns. See Part II below. 

New Section 323(a) also burdens the RNC’s ability to 

communicate with its members and adherents. Before 

BCRA, the RNC relied in part on nonfederal funds to 

“communicate[] directly with its own members and 

adherents, a function that is vitally important to building the 

Party.” J.A. 41-42, Banning Decl. ¶28(f); see also J.A. 1602-

03, Milkis Decl. ¶48. Yet, whereas corporations and labor 

unions have a recognized right to use nonfederal funds to 

communicate with their officers, shareholders, and members 

on any subject (even to endorse a federal candidate), new 

Section 323(a) requires national parties to use exclusively 

federally-regulated funds for all communications with their 

members.

24 

24 See 2 U.S.C. § 441b(b)(2)(A); 11 C.F.R. §114.3(a)(2); see also United 

States v. CIO, 335 U.S. 106, 120-21 (1948) (Court had “gravest doubt ... 

as to constitutionality” of statute restricting corporations and unions from 

communicating with members on matters of public importance); 

Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995) (“The 

(continued...) 
43 

2. New Section 323(a) Unjustifiably 

Prohibits Solicitations. 

New Section 323(a) also prohibits pure speech: Party 

officials are prohibited from uttering words of “solicit[ation]” 

for otherwise legal contributions. As but one example, it is 

perfectly legal for anyone else to say “contribute to the Jones 

for Governor campaign,” but it is a crime for a national party 

official merely to utter those exact words. BCRA likewise 

categorically prohibits party committees from assisting each 

other in raising lawful Levin money, see new 

§323(b)(2)(B)(iv), and prohibits all political parties from 

soliciting donations on behalf of any tax-exempt organization 

that engages in Federal election activity, see new §323(d). 

“Solicitation is a recognized form of speech protected 

by the First Amendment.” United States v. Kokinda, 497 

U.S. 720, 725 (1990). Indeed, this Court’s “cases have long 

protected speech even though it is in the form of ... a 

solicitation to pay or contribute money.” Bates v. State Bar 

of Arizona, 433 U.S. 350, 363 (1977). 

In Schaumburg v. Citizens for a Better Environment, 

444 U.S. 620, 622 (1980), the Court struck down an 

ordinance banning door-to-door or on-street solicitations by 

charitable organizations not using at least 75% of their 

receipts for “charitable purposes.” The Court accorded the 

solicitation full constitutional protection: “[C]haritable 

appeals for funds, on the street or door to door, involve a 

variety of speech interests – communication of information, 

the dissemination and propagation of views and ideas, and 

the advocacy of causes – that are within the protection of the 

First Amendment.” Id. at 632. Because there were less 

restrictive means of preventing fraud and protecting personal 

Supreme Court long ago ... recognized an organization’s ... First 

Amendment right to communicate with its ‘members.’”). 
44 

privacy, the Court invalidated the anti-solicitation ordinance 

at issue. See id. at 637-39.25 

Significantly, the Court in Schaumburg emphasized 

that solicitation “is characteristically intertwined with 

informative and perhaps persuasive speech seeking support 

for particular causes or for particular views on economic, 

political, or social issues.” Id. at 632 (emphasis added). 

“[W]ithout solicitation,” the Court said, “the flow of such 

information and advocacy would likely cease.” Id. 

As the Court observed in Schaumburg, political 

solicitation is informational and ideological. See J.A. 342-

43, Knopp Decl. ¶25. This Court has repeatedly stressed that 

“there is practically universal agreement that a major purpose 

of [the First] Amendment was to protect the free discussion 

of governmental affairs,” Mills v. Alabama, 384 U.S. 214, 

218 (1966), and “the First Amendment ‘has its fullest and 

most urgent application’ to speech uttered during a campaign 

for political office,” Eu, 489 U.S. at 223 (quoting Monitor 

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Under no 

meaningful analysis could BCRA’s solicitation restrictions 

be said to be narrowly tailored, or even closely drawn, to 

address any interest that the Government is entitled to pursue. 

3. New Section 323(a) Is Grossly 

Overbroad. 

As shown, because of the “heav[y]” and “severe” 

burdens it imposes on political party associational freedoms, 

new Section 323(a) is “unconstitutional unless it is narrowly 

25 See also Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 

967-68 (1984) (striking down Maryland ordinance similar to the one in 

Schaumburg as not “precisely tailored”); Riley v. National Federation of 

the Blind of North Carolina, Inc., 487 U.S. 781, 787, 789, 794 (1988) 

(striking down North Carolina statute prohibiting professional fundraisers 

from charging “unreasonable” fees). 
45 

tailored to serve a compelling state interest.” California 

Democratic Party, 530 U.S. at 581-82. The First 

Amendment requires that “[w]hen the Government defends a 

regulation on speech as a means to . . . prevent anticipated 

harms, it must do more than simply posit the existence of the 

disease sought to be cured.” Turner Broad. Sys. v. FCC, 512 

U.S. 622, 664 (1994) (plurality opinion by Kennedy, J.).26 It 

“must demonstrate that the recited harms are real, . . . and 

that the regulation will in fact alleviate these harms in a 

direct and material way.” United States v. National Treasury 

Employees Union, 513 U.S. 454, 475 (1995) (emphasis 

added). See also NCPAC, 470 U.S. at 498 (invalidating 

independent expenditure limit where corruption “remain[ed] 

a hypothetical possibility and nothing more”). 

Here, lacking evidence of actual quid pro quo 

corruption, see p. 26 above, the Government grasps onto the 

slippery notion of “an appearance of corruption.” Its 

“principal” evidence, Leon 1289sa, is a poorly-worded public 

opinion poll that proves only that the public views all “big” 

contributions – federal and nonfederal alike – with an equally 

jaundiced eye. Defendants’ survey merely confirms that the 

appearance of corruption, like the now largely repudiated 

“appearance of impropriety” in legal ethics,27 is far too 

26 In Colorado I, six members of the Court expressly adopted for the 

campaign finance context Justice Kennedy’s statement for the plurality in 

Turner that the government must show that speech regulations address a 

real harm. See 518 U.S. at 618 (O’Connor, Souter & Breyer, JJ.); id. at 

647 (Rehnquist, C.J., Scalia & Thomas, JJ.) (concurring in the judgment 

and dissenting in part). 

27 See, e.g., ABA Comm. on Ethics and Professional Responsibility. 

Formal Op. 342 (1975) (“too vague to be useful”); Kramer, The 

Appearance of Impropriety Under Canon 9: A Study of the Federal 

Judicial Process Applied to Lawyers, 65 Minn. L. Rev. 243, 265 (1980) 

(“simply too dangerous and vague”); Adoption of Erica, 686 N.E.2d 967, 

973 n.10 (Mass. 1997) (“standard that has been rejected by most courts”). 
46 

elastic a standard by which to regulate core political speech 

and association. 

Based on this less than persuasive record, BCRA 

presents a “wholesale restriction of clearly protected 

conduct.” NCPAC, 470 U.S. at 501. New Section 323(a)’s 

flat ban on the solicitation, receipt, transfer, and 

disbursement of nonfederal money by national political 

parties is not “narrowly tailored” because it is not “tailored” 

at all. There are no exceptions. 

It cannot be contended in good faith that every 

conceivable solicitation, receipt, transfer, or disbursement of 

nonfederal money by a national political party – even when 

the amounts are small, no federal candidate is involved, and 

no federal election is near – risks corrupting federal 

officeholders. Indeed, this Court has recognized – correctly, 

as this record shows – that the “opportunity for corruption” 

posed by “unregulated ‘soft money’ contributions to a party 

for certain activities, such as electing candidates for state 

office or for voter registration and ‘get out the vote’ drives” 

is “at best, attenuated.” Colorado I, 518 U.S. at 616 

(emphasis added). Even if some uses of nonfederal money 

carried a potential for corrupting federal officeholders, a 

statute that “indiscriminately lumps” together all uses of that 

money constitutes a “fatally overbroad response to [the 

perceived] evil.” NCPAC, 470 U.S. at 498, 500. Congress 

simply may not outlaw protected First Amendment activity 

in an effort to suppress unprotected activity. See, e.g., 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). 

BCRA itself proves that new Section 323(a) is neither 

narrowly tailored nor even closely drawn. New Section 

323(e), which regulates the very federal candidates and 

officeholders at the heart of the concern with corruption, 

contains numerous exceptions, allowing federal officeholders 

to raise nonfederal money for state parties and candidates up 

to the analogous federal limit (new Section 323(e)(1)(B)), to 
47 

speak at state and local party fundraising events (new Section 

323(e)(3)), and even to raise money for politically-active 

nonprofit groups (compare new Sections 323(e)(4) with 

323(d)).28 

These provisions subjecting political parties to flat 

bans while permitting federal candidates and officeholders to 

engage in the same activities reveal an utter lack of tailoring, 

drawing, or even rationality in the Act’s treatment of parties. 

Worse, these provisions flip the campaign-finance world on 

its head. It is, after all, the actual and perceived corruption of 

candidates and officeholders – not political parties – to 

which this Court has said campaign-finance laws may be 

properly addressed. So, why an outright ban on party 

activity and a Swiss-cheese approach to regulating the same 

activities when engaged in by candidates and officeholders? 

Asked, in effect, that very question in their depositions, 

BCRA co-sponsors Senators McCain and Feingold had no 

answer. See J.A. 944-52, McCain Dep. 205-15 (“I’ll have to 

get back to you on that.”); J.A. 854-55, Feingold Dep. 189 

(unable to explain distinction “off the top of [his] head”). 

New Section 323(a) is also facially overbroad 

because it purports to limit national party “spend[ing]” that is 

not coordinated with any candidate’s campaign. In Colorado 

I, the Court stressed that the “constitutionally significant 

fact” in assessing limits on party spending is “the lack of 

coordination between the candidate and the source of the 

expenditure,” and held that “[t]he independent expression of 

a political party’s views is ‘core’ First Amendment activity 

no less than is the independent expression of individuals, 

candidates, or other political committees.” 518 U.S. at 616-

28 Even though new Section 323(b) severely and unconstitutionally 

constrains state and local parties (see Part I.C. below), it at least 

superficially nods in the direction of tailoring by purporting to focus on 

over-broadly defined “Federal election activity.” 
48 

17; see also NCPAC, 470 U.S. at 493; California Medical 

Ass’n, 453 U.S. at 203 (Blackmun, J., concurring). Colorado 

II reaffirmed the right of a political party to “spend money in 

support of a candidate without legal limit so long as it spends 

independently” and emphasized that “[a] party may spend 

independently every cent it can raise wherever it thinks its 

candidate will shine, on every subject and any viewpoint.” 

533 U.S. at 455 (emphasis added). Because new Section 

323(a) limits the RNC’s uncoordinated as well as its 

coordinated spending, it is invalid. 

Even if new Section 323(a) were subjected to 

intermediate scrutiny, it would fail. See Leon 1111sa. The 

record shows that only a third of RNC nonfederal money was 

used for the supposed evil Congress wanted to address – 

candidate-specific issue advertisements (p. 13 above) – and 

that RNC reliance on federal officeholders to raise nonfederal 

money was “exceedingly rare” (pp. 13 above). Even 

assuming a legitimate interest in curtailing federal 

officeholder involvement in raising nonfederal money to be 

spent on candidate-specific issue advertising, Congress 

simply made no effort whatsoever to tailor, draw, or in any 

way narrow Section 323(a) to address that objective. 

As Judge Henderson noted below, the Government 

and Intervenors have never claimed that new Section 323(a) 

is narrowly tailored. Instead, they have defended its 

indiscriminate reach as a necessary prophylaxis to avoid 

circumvention of contribution limits. As she correctly 

emphasized, however, “[b]road prophylactic rules in the area 

of free expression are suspect.” Henderson at 418sa (quoting 

NAACP v. Button, 371 U.S. 415, 438 (1963)). 
49 

4. Title I Cannot Be Re-Written to 

Substitute New Section 301(20)(A)(iii) 

for New Section 323(a). 

Having concluded that new Section 323(a) is not 

closely drawn to prevent actual or apparent corruption, Judge 

Leon, joined by Judge Kollar-Kotelly, nonetheless undertook 

to do the drawing himself, by replacing it with a ban on 

national parties’ use of nonfederal funds for “a public 

communication that refers to a clearly identified candidate 

for Federal office . . . and that promotes or supports . . . or 

attacks or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a vote for or 

against a candidate).” New Section 301(20)(A)(iii). 

The district court’s approach oversteps judicial 

bounds. “The clarity and preciseness” of new Section 323(a) 

make it impossible to narrow “its indiscriminately cast and 

overly broad scope without substantial rewriting.” See 

Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964); see 

also Reno v. ACLU, 521 U.S. 844, 884 (1997) (“This Court 

will not rewrite a . . . law to conform it to constitutional 

requirements”). Indeed, Congress expressly considered and 

rejected a less restrictive alternative to the ban on national 

party use of nonfederal funds that was quite similar to the 

formulation of new Section 323(a) crafted by Judge Leon.29 

Moreover, the district court rewrote new Section 

323(a) to create a pure expenditure limit. The rewritten 

29 The so-called “Ney Amendment” would have allowed national parties 

to spend nonfederal money for any activity except “federal election 

activities,” defined to include only (i) issue advertising, using the same 

definition as new Section 301(20)(A)(iii) as enacted, and (ii) voter 

registration and GOTV, but only if they “mention[ed], depict[ed], or 

otherwise promote[d] a clearly identified Federal candidate.” 148 Cong. 

Rec. H460 (2002). The House rejected the Ney Amendment by a vote of 

248-181. See 148 Cong. Rec. H464 (2002). 
50 

provision does not prevent any raising of nonfederal money 

by national, state, or local political parties, but instead 

prohibits them from spending nonfederal money for any 

“public communication” – print, broadcast, mail, telephone 

bank, or billboard – that “refers to” a federal candidate and 

“promotes,” “supports,” “attacks,” or “opposes” that 

candidate. See new § 301(22) (defining “public 

communication”). This restriction fails strict scrutiny, 

because it is even broader than the vague and overbroad 

restrictions on special interest groups in Title II, which apply 

only to broadcast advertisements aired immediately before a 

Federal election so as to reach the relevant electorate. 

C. Section 323(b)’s Restrictions on State and 

Local Party Committees Violate the First 

Amendment. 

According to the Government, new Section 323(b) 

simply prevents state and local parties from using nonfederal 

money for activity that “affects” federal elections and thereby 

merely reaffirms the original intent of FECA. In fact, new 

Section 323(b) and, in particular, the definition of “Federal 

election activity,” deliberately discards some of the key 

limitations of FECA in order to reach activities never 

contemplated by that Act. It is also an impermissible attempt 

to restrict party campaign spending at the state and local level 

by limiting both expenditures and the parties’ ability to 

engage in collective campaign activity. 

1. New Section 323(b) Impermissibly 

Regulates State and Local Party 

Activities That Have No Ability To 

Corrupt Federal Candidates. 

As stated earlier, new Section 323(b) and the 

definition of “Federal election activity” do not impose limits 

on contributions. Rather, they operate broadly to limit 

spending unrelated to a federal candidate or, in some cases, 
51 

unrelated to any candidate at all. “Federal election activity” 

under BCRA includes virtually all political activity 

conducted by state or local parties if the state conducts its 

state or local elections at the same time as federal elections, 

since it includes most voter registration, most activities 

focused on voter identification and turn-out (for any race or 

issue), and most generic party promotional activities. 

With the exception of the “public communications” 

provision, BCRA does not require that the activity be 

directed at or even mention a federal candidate. There is no 

exemption for activities that are directly related to state or 

local candidates, or that mention only those candidates. 

Indeed, with respect to voter identification, GOTV, and 

generic activities, “Federal election activity” specifically 

includes “a public communication that refers solely to a 

clearly identified candidate for State or local office” if the 

activity is for voter registration, voter identification, or 

GOTV activity. See § 301(20)(A)(i), (ii) (emphasis added.) 

By including activities based only on their proximity 

to a federal election, Congress has significantly expanded the 

scope of federal regulation into spending that has virtually no 

connection to federal elections. These activities are now, by 

definition, “federal” and can be funded only with federal 

money or a combination of federal money and Levin funds. 

Under FECA, the touchstone for regulating either 

contributions or expenditures was that such activities were 

“for the purpose of influencing” a federal election. Although 

FECA regulated activities directed at federal candidates, 

activities directed at state and local elections were completely 

outside FECA and could be funded as permitted by state law. 

“Mixed” activities benefiting both federal and nonfederal 

candidates were “allocated” between federal and nonfederal 

funds. “Generic” activities such as issue advocacy or party 

promotional materials were also allocated. Under BCRA, all 
52 

of these activities – federal, state, mixed, and generic – are 

swept within the rubric “Federal election activity.” 

To illustrate, Judge Henderson found that the 

following were “Federal election activities” under new 

Section 323(b): 

• A generic mailer stating “Our Vote is our Voice. 

Keep Asian Pacific Families Moving Forward. 

Vote Democrat;” 

• A telephone script featuring Jesse Jackson urging 

voters to defeat a school voucher ballot initiative; 

• A mailer urging voters to vote for several state 

and local candidates. 

See Henderson 436-437sa; J.A. 157, 1717, 1721, 3 PCS 

CDP/CRP App. 51, 177, 197, 208, 209. In Colorado I, the 

Court found that the opportunity for corruption posed by 

nonfederal contributions for activities such as “electing 

candidates for state office . . . voter registration, and ‘get out 

the vote’ drives” was, “at best, attenuated.” Colorado I, 518 

U.S. at 616. The district court similarly concluded that the 

Government’s evidence failed to demonstrate any likelihood 

of corruption of federal candidates arising out of these 

activities. See Leon 1122-23sa; Henderson 438sa. 

In fact, BCRA goes beyond even the activities 

discussed in Colorado I and regulates contributions for ballot 

measure expenditures. As the Court made clear in Citizens 

Against Rent Control, the justifications for limiting 

contributions to candidates simply do not apply in the context 

of contributions for non-candidate-related disbursements 

such as ballot measure activity, since the only justification 

for such limits is the “perception of undue influence of large 

contributors to a candidate.” 454 U.S. at 297 (emphasis in 

original); see also First Nat’l Bank of Boston v. Bellotti, 435 
53 

U.S. 765 (1978). This same reasoning applies to 

disbursements for activities such as voter registration and 

generic GOTV, as well as expenditures made in support of 

state and local candidates. 

Judge Leon and Judge Henderson both correctly 

focused on the potential for corruption posed by these 

activities, as opposed to simply whether there was any 

“effect” on the federal election. Both concluded that in order 

to present a threat of corruption sufficient to justify federal 

regulation, there must be a benefit or appearance of benefit to 

a federal candidate. Judge Leon (1122-35sa) concluded that 

the evidence failed to demonstrate any such effect or any 

public perception that funds used for such activities created 

the kind of “indebtedness” necessary for the appearance of 

corruption: 

The evidence . . . fails to demonstrate either the 

degree of effect such activities have on the federal 

candidate’s re-election, or the existence of a public 

perception that donations used to fund such efforts 

create a sense of indebtedness between the federal 

candidate and those who make large donations to 

the party. . . 

Thus, in the absence of a substantial evidentiary 

showing to the contrary, it is “mere conjecture,” 

Shrink Missouri, 528 U.S. at 392, by the defendants 

that an appearance of corruption arises from 

donations to state parties, or transfers from national 

parties, that are used for these generic or 

noncandidate-specific activities set forth in Sections 

301(20)(A)(i) and (ii). 

Judge Henderson agreed, stating that “Sections 

301(20) and 323(b) . . . require state parties to spend federal 

funds on activities that will not plausibly corrupt any federal 

candidate.” Henderson 434sa. Judge Henderson specifically 
54 

discussed an advertisement against Proposition 209. The 

advertisement urged voters to reject an “anti-affirmative 

action” initiative, and included the following language (as 

part of a longer advertisement): 

...Vote No on 209. Vote No on the Republican 

scheme to turn the clock back and shut down equal 

opportunity for all. On Tuesday, vote yes for our 

future and no on Prop. 209. Don’t let the 

Republicans get away with it. Don’t stay home. 

That’s what they’re counting on. Paid for by the 

California Democratic Party.30 

Addressing Intervenors’ argument that the spot had 

an effect on the contemporaneous federal election, Judge 

Henderson’s response was clear and emphatic: “Their 

contention, even if correct, is irrelevant. The Congress 

cannot, consistent with First Amendment strict scrutiny, limit 

a political party’s pooling of individual, corporate or union 

donations to pay for an ad that so plainly has no corrupting 

effect, real or imagined, on any federal candidate or 

officeholder.” Henderson at 436sa (emphasis added).31 

Based on the broad regulation of ballot measure activity, 

purely state election activity, and generic party activity, 

Judges Henderson and Leon agreed that new Section 323(b) 

was not narrowly tailored (Henderson 433sa) or closely 

drawn (Leon 1123-24sa) to prevent corruption or the 

appearance of corruption. 

Although it is the only category of “Federal election 

activity” that actually requires the mention of a federal 

candidate, even the “public communications” section of the 

30 Henderson 435sa. 

31 Nor could Congress do so, consistent even with intermediate scrutiny, 

because, as Judge Henderson points out, the advertisement carries with it 

“no corrupting effect” whatsoever. Id. (emphasis added). 
55 

definition of “Federal election activity” is substantially 

overbroad. See new § 301(20)(A)(iii). That provision 

requires any public communication that refers to a clearly 

identified federal candidate and “promotes,” “supports,” 

“attacks” or “opposes” that candidate at any time to be paid 

with 100% federal funds, regardless of whether the 

communication “expressly advocates a vote for or against” 

that candidate. These terms are not defined either by the 

statute or the recent FEC regulations. 

The constitutional infirmities of this provision are 

similar in many respects to those before the Court in the 

context of the “electioneering communication” provisions in 

Title II, and those arguments will not be repeated here except 

to make a few points relevant to the political parties. 

First, the “public communications” provision of Title 

I applies at any time, not just in an election year, and includes 

communications in all media, including mail. If this 

provision is intended to curtail “sham issue ads” run in close 

proximity to federal elections (and, even assuming such 

advertisements constitutionally could be regulated), it is not 

at all tailored to “capture” those communications. 

Second, political parties often engage in 

communications that feature federal candidates for a host of 

reasons relating to the activities of the party itself, and not to 

a particular election. The record contains numerous 

examples: a “welcome to the party” certificate for newly 

registered voters that featured well-known state and federal 

party officeholders; an invitation to an event featuring a 

federal candidate as a sponsor; a letter from a federal 

candidate supporting a ballot initiative sent out by the party 

to all members; and an endorsement of a local candidate for 

mayor by a federal officeholder. See 3 PCS CDP/CRP App. 

319, 208, 209, 368, 369. Any of these could be said to 

“promote” the party’s federal candidates in some sense, and 

yet requiring that they be funded with federal money will 
56 

severely limit the party’s ability to communicate with its own 

members.

32 

Finally, if there is any question about the difficulty in 

interpreting the scope of this provision, it is surely answered 

by the very hypothetical used by Judge Leon: the “No Child 

Left Behind” advertisement that mentioned President George 

Bush. While appearing to Judge Leon clearly to be a 

“genuine” issue advertisement, Judge Kollar-Kotelly stated 

that it “raises questions.” Leon 1106-08sa; Kollar-Kotelly 

510sa. If the provisions prompt such disagreements within 

the judiciary, it is difficult to see how party committees can 

reasonably be expected to conform their conduct. Of course, 

this was exactly why Buckley required “express” words of 

advocacy, and this Court should require no less. 

Nor are the numerous restrictions on the rights of the 

state and local political parties justified as a means for 

limiting “circumvention,” as that concern was articulated in 

Buckley and Colorado II. As the district court properly 

found, the “circumvention” addressed in these cases was 

circumvention of the limits on contributions to candidates. If 

a contribution can be limited because it presents a threat of 

corruption to a federal candidate, but a much larger 

contribution can be made through a political party, it 

undermines the original limit. Or, as the Court held in 

Colorado II, since party coordinated spending was the 

“functional equivalent” of a direct candidate contribution, 

unlimited coordinated spending would “exacerbate the threat 

of corruption . . . that those contribution limits are aimed at 

reducing.” Colorado II, 533 U.S. at 453. 

32 This restriction is also likely to end party “slate mail,” which lists all 

the party’s candidates. Prior to BCRA, if one federal candidate and nine 

nonfederal candidates were featured equally, one-tenth of the cost of the 

piece had to be paid with federal funds. Now, the piece must be funded 

with 100% federal money, a prohibitive requirement. 
57 

With or without BCRA, the state parties cannot use 

nonfederal funds for either candidate contributions or 

coordinated party expenditures for federal candidates; in the 

absence of BCRA, those funds can be used only for generic 

or non-federal-candidate-specific expenditures. More 

precisely, they can be used only for the nonfederal portion of 

the cost of a generic activity, since all generic activities were 

allocated between federal and nonfederal accounts. Only 

expenditures for state and local election activity could be 

paid completely with nonfederal funds. Therefore, 

restrictions on those activities (or contributions to be used for 

those activities) cannot be justified by any need to avoid 

circumvention of the underlying federal contribution limits, 

because those activities are not the “functional equivalent” of 

direct contributions or coordinated expenditure. 

The flaw in BCRA is its presumption that, because 

state and local parties may support federal candidates, all of 

their activities have that purpose. Although a state party may 

make expenditures on behalf of federal candidates, it does a 

great deal more than that. Its members make donations not 

merely, or even primarily, to support federal candidates, but 

to support the parties’ state and local candidates, to 

participate (in California) in ballot measure advocacy, and to 

represent their views in the process of government. The 

federal government cannot, consistent with the First 

Amendment, limit expenditures for activities (or 

contributions to be used for those activities) other than those 

with a potential for corruption of federal candidates and 

officeholders. No decision of this Court allows the federal 

government to regulate contributions and expenditures 

unrelated to federal candidates in the way that BCRA 

attempts to do. 
58 

2. Section 323(b) Prevents the State and 

Local Parties from “Banding Together 

To Achieve a Common End.” 

The limits on spending imposed upon the state and 

local parties are exacerbated by provisions that prohibit those 

parties from “banding together to achieve a common end.” 

Citizens Against Rent Control, 454 U.S. at 294. The parties 

are essentially denied the opportunity to engage collectively 

in effective advocacy, which the Court has viewed as 

“undeniably enhanced by group association.” Id. at 295. 

New Section 323(b) prohibits a state or local party 

from engaging in “Federal election activities” with Levin 

contributions that have been solicited, received, or directed 

through joint fundraising activities, or with any funds 

transferred, contributed, or provided by any national party 

committee or any other state or local party committee if 

Levin funds are being used. See new §§ 323(b)(2)(B), 

323(b)(2)(B)(iv), 323(b)(2)(C). 

In other words, BCRA not only prohibits the transfer 

or joint fundraising of Levin funds, it also prohibits the 

transfer of federal money between political party units if that 

money is to be used for “Federal election activity” funded in 

part with Levin money. The transfer ban is not limited to 

transfers from the national party committees; it applies with 

equal force to transfers between the state and local party 

committees. The result is that, during a federal election year, 

a state party may not transfer any money – federal, 

nonfederal, or Levin – to a local party for GOTV activities in 

a state election if any Levin money is used. Similarly, the 

joint fundraising restrictions make it illegal for two local 

party committees to conduct a joint fundraiser to raise 

state-regulated money for a voter registration drive. 

Fundraising is inextricably intertwined with political 

activity. Schaumberg, 444 U.S. at 632. While there may be 
59 

“some activities, legal if engaged in by one, yet illegal if 

performed in concert with others, [] political expression is 

not one of them.” Citizens Against Rent Control, 454 U.S. at 

296. In addition, if the state or local parties collectively 

decide that a particular race has special importance and want 

to channel their collective resources to that race – resources 

raised completely in compliance with state or federal law – 

there is no lawful basis for the government to interfere with 

that internal decision. In such cases, the parties should have 

the freedom that other organizations have to make basic 

decisions about where money is best spent. These decisions 

reflect the group’s collective decision-making and priorities. 

As shown (Part I.A.), interference with this right to 

self-governance is subject to strict scrutiny. California 

Democratic Party, 530 U.S. at 582. 

As shown (Part I.B.), new Section 323(b) also 

dramatically inhibits the participation of the state and local 

political parties in the Republican Victory Plans and 

Democratic Coordinated Campaigns. Restrictions described 

in the context of national parties are, of course, equally 

applicable to the state and local parties, which provide the 

grass-roots organizational resources. 

In addition, many state and local party officers also 

serve in various capacities with their national party. See J.A. 

115-16, Bowler Decl. ¶¶3-4; J.A. 600, Morgan Decl. ¶8. 

BCRA therefore creates the risk of criminal penalties for a 

state or local party officer who is responsible for raising 

nonfederal funds for the state party and who also serves as an 

officer of the party’s national committee, because he or she 

may be accused of raising those funds as an “officer” or 

“agent” of the national committee. 33 At the least, these 

33 Although the FEC regulations give state party officers who serve on 

national party committees some comfort, the Intervenors have challenged 

those regulations. Shays v. FEC, supra. 
60 

provisions are likely to inhibit full participation in campaign 

discussions by these persons, and discourage state and local 

officers from involvement in the national parties. 

The freedom to associate entails both ability to 

affiliate and ability to pool resources with like-minded 

persons in furtherance of common goals. Under BCRA, 

party committees are precluded from both affiliating (as a 

result of the restrictions on the national parties and federal 

officeholders in state campaign activity) and from pooling 

their resources with each other (as a result of the joint 

fundraising and transfer bans). These restrictions are direct 

impediments to the state and local parties working 

collectively to “conduct[] the party’s campaigns,” as 

provided by California law. More fundamentally, if the 

parties cannot effectively organize and speak on behalf of 

their membership, they will be precluded from “effectively 

amplifying the voice of their adherents, the original basis for 

the recognition of First Amendment protection of the 

freedom of association.” Buckley, 424 at 22. 

Nor are the restrictions on association in new Section 

323(b) narrowly tailored or, in fact, tailored at all. The ban 

on transfers of both federal and nonfederal money illustrates 

this point. New § 323(b)(2)(B)(iv). Federal money is, by 

definition, money raised in compliance with all of the federal 

limitations as to both source and amount. It is money that 

has been determined by Congress to be noncorrupting if used 

directly to support a candidate. It is inexplicable how a 

transfer of such money can be corrupting even though the 

initial contribution is not. The same is true for the transfer of 

Levin funds among the state and local parties. Transferring 

money already raised within certain limits to another party 

committee, for uses not directly related to federal candidates, 

cannot be corrupting. The prohibition is absolute; it is not 

tailored to address, for example, large transfers or transfers 

shown to have a particular potential for corruption. Judge 
61 

Henderson concluded that even if the transfer provisions 

were aimed at national party funding for “issue ads” (and if 

such a problem could be constitutionally addressed, a 

question she answered in the negative), the provision was 

required to be more narrowly tailored. See Henderson 440sa. 

Similarly, a joint effort with another party committee 

to raise Levin funds, where the funds to be raised are 

statutorily limited and are legally permissible as to both 

committees, cannot lead to either corruption or the 

appearance of corruption. Neither the Government nor the 

Intervenors have explained how joint fundraising among 

state and local parties raising state-regulated money for use 

in state elections could create the potential for corruption of 

federal candidates. 

3. New Section 323(b) Prevents State and 

Local Political Parties from Amassing 

the Resources for Effective Advocacy. 

Although Buckley upheld the contribution limits at 

issue in that case, the Court acknowledged that “contribution 

restrictions could have a severe impact on political dialogue 

if the limitations prevented candidates and political 

committees from amassing the resources necessary for 

effective advocacy.” Buckley, 424 U.S. at 21. The Levin 

limits on the use of state-regulated money, coupled with the 

restrictions on normal associational activities, in fact create 

“a system of suppressed political advocacy” that offends the 

First Amendment. Nixon, 528 U.S. at 396. 

The requirement that a particular expenditure be 

funded with federally-regulated money has significant 

consequences for the state and local parties. For example, 

CDP has raised approximately $4 million in federal money 

during each of the last several cycles. See Henderson 315sa; 

Leon at 1240sa. Administrative expenses have been 

approximately $5-6 million per cycle. See J.A. 117-18, 
62 

Bowler Decl. ¶7. Pursuant to FEC regulations, a percentage 

of all administrative expenses must be paid with federal 

money.34 A large percentage of CDP’s federal money is, 

therefore, consumed by administrative expenses. This means 

that if additional state and local campaign activities are now 

deemed “federal election activity,” existing federal money 

must be divided between administrative expenses and 

programmatic expenses. 

Although both parties have made significant 

investments in federal fundraising, federal money is 

expensive to raise, the average contribution is quite low, and 

the more effective programs require a significant capital 

investment. See Henderson 315-18sa; Leon at 1240-42sa.35 

In addition, the Levin Amendment will significantly 

restrict the usable amount of nonfederal funds available to 

the parties. This is the very money previously used to fund 

the lion’s share of state parties’ ballot measure advocacy. 

The evidence below demonstrated that 76-86% of the CDP’s 

nonfederal funds raised over recent cycles would not comply 

with the Levin restrictions; for CRP, the figures are 

47-69%.36 See Henderson 316-18sa; Leon 1241-42sa. These 

findings stand in stark contrast to the finding in Buckley that 

only 5.1% of the money raised by Congressional candidates 

in that year was in amounts in excess of the $1,000 

contribution limit. Buckley, 424 U.S. at 21 n.23. 

34 The FEC regulations requiring state parties to allocate administrative 

expenses between federal and nonfederal accounts remain in effect, 

resulting in a need for federal funds beyond that required for “Federal 

election activity.” 

35 For example, in the 2000 cycle, 43% of administrative costs had to be 

paid with federal money. Bowler Dec. ¶15. 

36 These numbers do not include the loss of transfers, which would reduce 

the amounts further. 
63 

The state and local parties therefore face the prospect 

of being required to fund a significantly increased percentage 

of their traditional campaign activities – state and local as 

well as federal – with either extremely limited federal money 

or with federally-regulated Levin money. The gap in 

projected revenues and the historical cost of the state parties’ 

activities are illustrated in Bowler Decl., Ex. C, J.A. 154. See 

also Erwin Decl., Ex. 7 (CRP figures). This graph illustrates, 

based on historical revenue and expense figures, the 

projected federal and Levin revenues and CDP’s expenses. 

The gap between the two would have been approximately 

$16 million (CDP) and $10.6 million (CRP) in the 

1999-2000 election cycle. 

There is no evidence in the record that Congress gave 

any meaningful consideration to the impact of BCRA, or new 

Section 323(b) in particular, upon the state and local parties. 

The effect of the $10,000 limit on nonfederal contributions is 

particularly harsh on parties in a state such as California, 

which has a large population. A State Senate District 

contains almost 850,000 persons. Because of term limits, 

California’s state legislative and executive offices turn over 

regularly and the races are more competitive than most 

federal offices. See J.A. 116 Bowler Supp. Decl. ¶4. The 

cost of a statewide mailpiece can be approximately $260,000. 

See J.A. 132, Bowler Decl. ¶24; Henderson 313sa n.112. 

CDP’s direct mail program in support of state and local 

candidates costs approximately $7-8 million per cycle. See 

J.A. 124-30, Bowler Decl. ¶20. As the Court has observed, 

“freedom of association is diluted if it does not include the 

right to pool money through contributions, for funds are 

often essential if advocacy is to be truly or optimally 

effective,” and “[t]he value of the right to associate is 

illustrated by the cost of reaching the public.” Citizens 

Against Rent Control, 454 U.S. at 296 & n.5 (internal 

citations omitted). 
64 

There is simply no way that the California state 

parties can withstand this impact (amounting to well over 

$10 million each) without serious impairment to their 

programmatic activities and their ability to communicate 

effectively with their 12 million members. The district court 

found that the need to use federal money for an increased 

range of expenditures unrelated to federal candidates, 

including many state and local election expenditures, and the 

inability to use the nonfederal money raised by the state 

parties, is likely to result in a reduction of voter registration 

activities, generic party-building, and grassroots 

mobilization. See Henderson 320-21sa; Leon 1242-43sa; see 

also J.A. 1434-37, La Raja Decl. ¶22; J.A. 1648-49, Snyder 

Decl. at 14-15. In addition, the transfer and fundraising 

restrictions make it impossible for the state and local parties 

to channel resources to races where they are most needed 

and/or where they can be used most effectively. The 

combination of spending limits and association limits will 

most surely lead to a loss of the “resources necessary for 

effective advocacy.” Buckley, 424 U.S. at 21. 

D. New Section 323(a) Undermines the Speech 

and Associational Rights of Minor Parties. 

The significant burdens that new Section 323(a) 

places on rights of political speech and association become 

especially irrational and crushing for political parties that 

primarily engage in issue advocacy and that lack the human 

and financial resources of the major parties. The LNC is 

both an example and a particular victim of new Section 

323(a)’s effect on minor political parties. Most crucially, as 

applied to the LNC, new Section 323(a) obviously suppresses 

pure political speech and freedom of association in the name 

of suppressing campaign finance abuse. 

Several examples of LNC nonfederal activity 

illustrate how new Section 323(a) restricts protected political 

activity unrelated to federal elections. 
65 

First, using nonfederal money, the LNC conducts 

numerous issue advocacy campaigns, including, for example, 

advertising campaigns advocating adoption of libertarian 

policy positions on government spending, drug control, 

welfare, gun ownership, and taxation. See J.A. 196, LNC 

Decl. ¶35 and the exhibits cited therein. The Libertarian 

Party also raises funds and advocates for its principles 

without any express reference to any Libertarian Party 

federal candidate when major party candidates do not address 

them. Thus, using nonfederal money, the Libertarian Party 

ran anti-drug war advertisements to lampoon advertisements 

being run by the federal government linking the drug war to 

anti-terrorism efforts. Id. ¶12 & Ex. E. New Section 323(a) 

forbids the LNC from using nonfederal money for these 

entirely issue-oriented purposes. 

Second, every two years, the LNC stages conventions 

of the Libertarian Party; a nominating convention is held 

during presidential election years and a purely educational 

convention in off-presidential election years. Id. ¶¶28-31, 

J.A. 192-94. Non-presidential year election conventions are 

solely devoted to discussion and advocacy of issues and to 

internal party matters; the convention neither nominates nor 

selects candidates for public office. Id. ¶29, J.A. 192-93. 

Nevertheless new Section 323(a) effectively bans receipt of 

income from corporations for exhibit space rentals, 

advertising, and sponsorships that are used to finance these 

conventions. Id. ¶ 29. It also effectively forbids corporations 

from administering off-year conventions, since any costs of 

administration would amount to forbidden corporate in-kind 

contributions to the LNC. Id. ¶30, J.A. 193. New Section 

323(a) also increases administrative costs by creating the 

need to distinguish between various sources of contributions. 

The cumulative effect is to significantly increase the cost to 

potential attendees and perhaps to render off-year 

conventions entirely infeasible. Id. And, in contrast to the 
66 

major parties, the LNC receives no government funds for its 

conventions. Id. 

Third, the LNC produces educational materials on 

libertarian issues for sale to the general public and to state 

and local Libertarian parties and candidates. Id. ¶ 32 & Exs. 

As a the result of BCRA, however, the LNC is forbidden to 

receive funds for this service from its own state and local 

parties and candidates as nonfederal money (or even as 

federal money because such a purchase would pose the risk 

that the state or local party or candidate would have to file 

with the FEC as a political committee engaging in federal 

activity.) Id. Not only does this represent a significant loss 

of revenue to the LNC, but it means that the consistency of 

the libertarian message may be compromised because state 

and local affiliates will have to develop materials 

independently or turn to non-party independent sources for 

those materials. Id. 

Fourth, the LNC’s monthly newspaper, the 

Libertarian Party® News, engages primarily in education 

and issue advocacy. Id. ¶¶18-19 & Exs., J.A. 189. But new 

Section 323(a) effectively forbids certain receipts arising 

from the paper’s publication because they constitute 

nonfederal money. It also increases administrative costs for 

the Libertarian Party® News. 

Under new Section 323(a), the LNC would be 

required to refuse advertising or subscriptions for its 

newspaper that it presently accepts from both for-profit and 

not-for-profit corporations (including any library organized 

as a corporation). Id. ¶19, J.A. 189. Moreover, new Section 

323(a) would strongly discourage advertising by state or 

local candidates in the Libertarian Party® News since any 

such candidate would then be subject to FEC filing 

requirements, because their funds would be deemed to be 

expended for federal activities. Id. Finally, it would disrupt 

the subscription system by prohibiting one person from 
67 

paying for a subscription on behalf of another. Id. ¶21, J.A. 

189-90. 

Finally, even Libertarian Party federal campaigns are 

primarily directed toward issue advocacy, rather than toward 

election of any particular candidate. Id. ¶¶10-13, J.A. 185-

87. Libertarian Party candidates know that they have only a 

remote chance to win federal office, so they use their 

candidacies to educate the public on libertarian principles. 

Id. ¶11, J.A. 185-86.37 

Simply put, the alleged corruption or appearance of 

corruption of federal officeholders that purportedly justifies 

new Section 323(a) does not apply to the Libertarian Party. 

No Libertarian Party candidate has ever won a race for 

federal office. Id. ¶10, J.A. 185.38 Thus, no Libertarian 

Party candidate has ever been exposed to the occasion for 

actual or apparent corruption that new Section 323(a) 

allegedly protects against. Further, the supposed potential for 

widespread abuse of nonfederal money by national parties 

that motivated new Section 323(a) simply does not exist with 

regard to the LNC. The principal sources of LNC nonfederal 

money are mailing list rental fees, dues paid through state 

affiliates and forwarded to the LNC, and advertising in the 

Libertarian Party® News and elsewhere. Id. ¶9, J.A. 184. 

Very little of the nonfederal money received by LNC is from 

any corporate source (if funds from renting lists or 

37 Federal candidacies are important to the advancement of libertarian 

principles and the Libertarian Party because the issues that draw voters to 

the party are primarily federal and because federal candidates often 

achieve the crucial percentage necessary to achieve ballot status in future 

elections. LNC Decl. ¶14, J.A. 187. Ballot access is important because 

these campaigns provide an important means for the Libertarian Party to 

disseminate its views. 

38 In the 2000 general election, Libertarian Party U.S. Senate candidates 

averaged less than one percent (1%) of the vote; Libertarian Party U.S. 

House candidates averaged less than two percent (2%) of the vote. Id. 
68 

advertising in the Libertarian Party® News are excluded) or 

from large individual contributions. Id. Even so, new 

Section 323(a) would deprive the LNC of these funds, 

although they cannot reasonably be deemed a threat of actual 

or apparent corruption Libertarian Party federal candidates. 

Likewise, without reasonable (much less a 

compelling) cause, new Section 323(a) deprives the LNC of 

nonfederal money from state affiliates and imposes 

significant administrative burdens on state affiliates. Id. ¶ 9, 

J.A. 184. It requires restructuring of the manner in which the 

LNC manages its membership, significantly increasing costs 

and diminishing possible income from rental of the 

membership list. Id. ¶¶24-25, J.A. 191. It places a significant and disproportionate administrative burden on the 

limited resources of the LNC. Id. ¶¶5-7, J.A. 182-83. New 

Section 323(a) restricts, and may even destroy, state party 

campaign and educational efforts and some state parties 

themselves. Id. ¶8, J.A. 183-84. 

New Section 323(a) also effectively criminalizes the 

current structure of the national Libertarian Party as a 

membership organization that requires the regular payment 

of dues from members to the LNC. Dues are frequently paid 

to affiliated state Libertarian Parties, with a portion to be 

distributed to the national Libertarian Party, so that those 

who pay dues may be members of both the state and national 

parties. Further, dues often are paid by one person on behalf 

of another, then deposited in state affiliates’ nonfederal 

money accounts. Id. ¶33, J.A. 195. Under new Section 

323(a), however, these funds may not be transferred to the 

LNC, so that members who pay dues in such a manner must 

be denied membership in the national Libertarian Party. 

To put the LNC’s burden in perspective, the LNC is 

much smaller than the RNC or DNC. It has only eleven fulltime employees, one half-time employee and three part-time 

student employees. Id. ¶5, J.A. 182. Only ten state 
69 

Libertarian parties have any paid employees, many of them 

only part-time, and they rely heavily on volunteer staff. Id. 

Because the requirements of FECA are constant, however, 

the new BCRA restrictions create a greater proportionate 

burden on the LNC. Moreover, especially because of its ban 

on nonfederal money, the BCRA will impede LNC’s ability 

to publish its newspaper and educational materials, id. ¶¶18-

23, 32, 35, J.A. 189, severely impede its ability to stage its 

educational off-presidential-year national convention (which 

does not nominate any candidates), id. ¶¶28-31, J.A. 192-93, 

and effectively criminalize its present membership structure. 

Id. ¶¶33-34, J.A. 195. In its effect on the LNC, new Section 

323(a) is plainly not narrowly tailored to serve any 

compelling government interest. 

E. Section 323(d)’s Prohibitions on Party 

Involvement With Other Organizations 

Violate the First Amendment. 

New Section 323(d) prohibits any national, state, or 

local party committee from soliciting for, or donating to, any 

nonprofit, tax-exempt organization that makes any 

disbursements for “Federal election activity.” New § 

323(d)(1). The section also prohibits any party committee 

from contributing to any organization exempt from tax under 

IRC section 527 (other than party committees, candidate 

committees, or federally-registered political committees) 

regardless of whether that organization disburses any funds 

for “Federal election activity.” New §323(d)(2).39 These 

restrictions apply not only to the party committees at all 

39 Section 323(d) does not prohibit transfers among political party 

committees. But see new § 323(b)(2)(B)(iv). The FEC allows political 

party donations to Section 527 committees registered under state law, but 

only if those committees support only state and local candidates and do 

not engage in “Federal election activity.” 11 C.F.R. § 300.51. 
70 

levels, but also to any “officer or agent acting on behalf of” 

any party committee or entity. 

The prohibitions of new Section 323(d) outlaw a 

stunning array of normal coalition advocacy, as well as civic 

and associational activity by parties and their officers, 

employees, and volunteers. Because support for and 

opposition to ballot measures in California is conducted 

largely through ballot measure committees, which are 

organized as IRC § 501(c)(4) entities, see Henderson 444-

45sa, the ability of the California state parties to give to and 

solicit funds for ballot measure committees has been 

critically important. Through such activity, the state parties 

express support for policies that reflect the party’s values, 

positions, and common ideological goals. These activities 

are entitled to the highest degree of First Amendment 

protection. See Citizens Against Rent Control, 454 U.S. at 

299 (“It is hard to imagine speech more eligible for First 

Amendment protection” than support of ballot-measure 

organizations). Because most ballot measure groups engage 

in some of the activities within BCRA’s definition of 

“Federal election activity,” such as GOTV, new Section 

323(d) flatly bans the California state and local parties from 

contributing to or raising funds – even federally-regulated 

funds – for such groups. 

New Section 323(d) also prohibits the parties from 

contributing to the local Democratic or Republican “Clubs.” 

These clubs are the grass-roots organizations that typically 

conduct voter registration and walk precincts on or before 

election day – activities now defined as “Federal election 

activity.” Contributions are prohibited to these organizations 

because they are organized under IRC section 527. See 

Henderson 449sa. 

The ban on contributions to 527 organizations also 

affects the ability of the parties to participate in other state 

issues. In California, petitions are currently circulating to 
71 

recall the Governor. Many of the committees formed to 

support or oppose the recall are organized under IRC Section 

527. Although the state parties are intensely interested in, 

and likely to be affected by, a potential recall election, there 

are serious questions about whether and, if so, when the state 

parties can contribute to, or solicit for, these committees. If 

the recall effort qualifies for the ballot, and a special election 

is set for March 2004 (an election which will include federal 

races), and these committees engage in GOTV activity within 

the definition of “Federal election activity,” the national, 

state and local parties, as well as their officers and agents, 

will be completely prohibited from either contributing any 

money to, or soliciting any money for, the recall committees. 

By making it a federal crime for party committees to 

donate to, or solicit for, organizations that share similar 

values and goals, new Section 323(d) severely burdens the 

freedom of association of the individual party officers, 

employees, and volunteers, and of the party committees 

themselves. As discussed above, solicitation activities by 

their very nature “‘involve a variety of speech interests— 

communication of information, the dissemination and 

propagation of views and ideas and the advocacy of causes – 

that are within the protection of the First Amendment.’” 

Illinois ex. rel. Madigan v. Telemarketing Associates, Inc., 

123 S. Ct. 1829, 1836 (2003) (quoting Riley, 487 U.S. at 788-

89). Such restrictions on solicitation of funds are 

unconstitutional when they are “not narrowly tailored to 

achieve the [government]’s asserted interest. . .” Riley, 487 

U.S. at 788. Even apart from solicitation, the ban on 

contributions prevents the political parties from “affiliating” 

and “pooling resources” with like-minded organizations to 

further shared goals. An outright ban on such a showing of 

support cannot be squeezed within Buckley’s allowance of 

contribution limits, especially since any funds that the parties 

might give have been lawfully raised. 
72 

New Section 323(d) cannot be defended as a means 

of avoiding circumvention by “satellite party organizations.” 

See Kollar-Kotelly 987sa. This provision is neither 

“narrowly tailored,” Riley, 487 U.S. at 788, nor even “closely 

drawn” to serve that purpose while avoiding “unnecessary 

abridgement” of the parties’ First Amendment rights. 

Buckley, 424 U.S. at 25. First, the provision is not in any 

way limited to party support for “sham” organizations or 

satellite party organizations disguised as tax-exempt groups. 

Rather, it prohibits any solicitation or donation of 

contributions, by any party or party official, to wellestablished, clearly independent, nonprofit organizations 

engaging in “Federal election activity” as BCRA broadly 

defines it. It also prohibits donations to legitimate 501(c)(4) 

organizations that support or oppose ballot measures. 

Moreover, new Section 323(d) prohibits all donations, not 

just those that might be large enough to exert control over the 

recipient.40 

Second, it prohibits party committees from 

contributing not only nonfederal money to nonprofit and 

nonfederal political organizations, but federally-regulated 

money as well. For example, new Section 323(d) prevents a 

local party committee from using even federal money to buy 

a table at the annual fundraising dinner of the local chapter of 

the NAACP, because the NAACP engages in nonpartisan 

voter registration (“Federal election activity”). 

Third, while new Section 323(d) prohibits donations 

to or solicitations for these tax-exempt groups by parties, new 

Section 323(e)(4)(A) allows federal candidates themselves to 

solicit contributions to nonprofit organizations, without 

40 The vast majority of CDP donations to nonprofit organizations were 

under $1,000 and were made for ideological reasons (e.g., $250 to the 

Haight Ashbury Food Program, $200 to Sojourner Women’s Center). 

See J.A. 166-67, Bowler Reb. Decl. ¶9. 
73 

limitation, from any source, as long as the “principal 

purpose” of the organization is not to conduct voter 

registration or GOTV activities and as long as the solicitation 

is not for funds earmarked for those activities. Federal 

candidates are, of course, the very individuals who would be 

directly benefited (or potentially “corrupted”) by the 

supposed circumvention of FECA’s contributions limits. 

F. By Limiting the Right of Political Parties To 

Make Independent Expenditures, Section 

213 Violates the First Amendment. 

The district court unanimously and correctly 

invalidated Section 213, which requires political parties to 

choose between making coordinated expenditures or 

independent expenditures for each of their candidates. See 

Per Curiam 7sa; Henderson 385sa, 396-97sa; Leon 1170-

76sa; Kollar-Kotelly 886sa. 

Section 213 is a bold attempt by Congress to overrule 

this Court’s decision in Colorado I, which recognized the 

First Amendment right of political parties to make unlimited 

independent expenditures. Section 213 attacks this right by 

placing three interrelated restrictions on political parties’ use 

of federal money.41 (1) The “either/or” element provides that 

on or after the date a political party nominates a candidate for 

federal office, all committees of that political party must 

choose between independent and coordinated spending with 

respect to that candidate. They may no longer do both. (2) 

The “one committee” element provides that all political party 

committees—national, state, and local—are a single 

committee for purposes of these prohibitions. (3) The “first in 

time” element provides that the first committee of a political 

party at the federal, state, or local level to exercise one form 

41 Unlike new Section 323, which concerns “non-federal” money, 

Section 213 attempts to restrict the use of federal money. 
74 

of spending controls all other party committees’ spending 

choices.42 

As a clear limit on spending, Section 213 is subject to 

strict scrutiny. Leon 1171sa. Section 213 infringes the 

political parties’ rights of speech and association in three 

significant ways. 

First, it interferes with the political parties’ right to 

make independent expenditures recognized by Colorado I, 

518 U.S. at 616, by a method different in style but not effect 

from the prohibition invalidated in that case. Specifically, 

Colorado I rejected the FEC’s conclusive presumption that a 

political party’s expenditures were always coordinated 

expenditures, not independent expenditures. Section 213 

simply recasts that conclusive presumption. If a political 

party makes any coordinated expenditure under Section 

441a(d)(4), then all party independent expenditures are 

prohibited outright. The Government has proffered no 

justifiable interest – much less a compelling one – in 

restricting independent spending by political parties, and the 

district court found no justification in the legislative record. 

See Kollar-Kotelly 886sa; Leon 1174sa. 

Defendants have asserted, as they have with respect 

to all of BCRA’s prohibitions and restrictions upon political 

parties, that this constitutionally guaranteed right to make 

independent expenditures presents the opportunity for 

circumvention of candidate contribution limits. The Supreme 

Court rejected the same argument in Colorado I, concluding 

that political party funds used to make independent 

42 Subdivision (C) of 2 U.S.C.A. § 441a(d)(4) also prohibits one party 

committee that has made “coordinated expenditures” from transferring 

federal dollars to another party committee to enable that committee to 

make independent expenditures. 
75 

expenditures raised no serious corruption or circumvention 

problems. 518 U.S. at 617. 

Second, Section 213 conditions the benefit of political 

party “coordinated expenditures” on behalf of their parties’ 

nominees upon the parties’ forbearance of their right to make 

independent expenditures. This forced choice is both a 

burden on the right to spend independently and an 

unconstitutional condition upon independent spending. See 

Perry v. Sindermann, 408 U.S. 593 (1972); Elrod v. Burns, 

427 U.S. 347 (1976). The Government invoked Buckley’s 

approval of public funding in exchange for spending limits to 

argue that forcing parties to choose between more generous 

coordinated expenditure limits available only to political 

parties and unlimited independent expenditures available to 

all political committees and individuals is permissible. 

As the district court held, however, Section 213, 

offers no public funds. Henderson 397sa ; Leon 1173sa. It 

forces a choice between two existing rights: one statutory 

and the other constitutional. Moreover, no anti-corruption 

rationale has or could be advanced here, since all money at 

issue is federally–regulated money being spent independently 

of the candidates. 

Third, Section 213 compels the forced association of 

party committees at all levels, to effect a collective speech 

restriction on independent spending by each. Such compelled 

association was rejected in California Democratic Party, 530 

U.S. at 581-82. After Colorado I, but until BCRA Section 

213, political party committees at the local, state, and federal 

levels could make unlimited independent expenditures and 

also limited “coordinated expenditures.” The record shows, 

for example, that the RNC made coordinated expenditures at 

the same time the National Republican Senatorial Committee 

and the Republican Party of Michigan were making 

independent expenditures. J.A. 324, Josefiak Reb. Decl. ¶7. 

Thus, in another way, Section 213 eviscerates Colorado I. 
76 

The harsh, aggregate effect of this “three-in-one” rule 

on forced association can be demonstrated by two examples. 

With respect to a single state, one local or state Democratic 

party committee in California could bind the DNC, the CDP, 

and all local party committees in California to its decision to 

engage in independent expenditures or coordinated 

expenditures on behalf of that state’s Senate or Congressional 

nominees. If a local party committee in Des Moines held a 

party during the Presidential Nominating Convention in 2004 

and spent $100 to produce a banner reading “Re-Elect 

President Bush,” then new Section 213 would prohibit the 

RNC from making any “coordinated expenditures” on behalf 

of President Bush in 2004.43 

Therefore, in order for state or national party 

committees to protect their preferred spending alternative, 

these committees would be required to monitor and attempt 

to control the activities of local party committees. In view of 

the restrictions on party associational rights imposed by new 

Section 323 (see Part I above), this requirement may be 

impossible to fulfill, but is unconstitutional in any event. 

G. By Mandating That “Coordinated 

Communications” Encompass Truly 

Independent Activity, Section 214 Violates 

the First Amendment. 

Section 214 broadens the definition of when an 

expenditure is deemed to be “coordinated” with a candidate 

and therefore treated as an “in-kind” contribution under 

FECA. See Section 214(a). It repealed the FEC’s existing 

regulatory definition of coordination, see Section 214(b), and 

43 National party committees, but not state and local party committees, 

may make “coordinated expenditures” on behalf of candidates for 

President. Compare 2 U.S.C.A. §441a(d)(1) and 441a(d)(2); see also 11 

CFR §109.32 (FEC Rulemaking re “Coordinated and Independent 

Expenditures,” 68 Fed. Reg. 421, 444 (January 3, 2003)). 
77 

instructed the FEC to adopt a new definition of coordination 

that “shall not require agreement or formal collaboration to 

establish coordination.” Section 214(c). 

As Judge Henderson recognized, an expansive 

definition of “coordination” will necessarily impair the 

ability of speakers, and especially political parties, to make 

“independent expenditures.” Henderson 386-87sa. In 

Colorado I, this Court refused to accept the FEC’s 

longstanding presumption that all party spending is 

coordinated, since “[a]n agency’s simply calling an 

independent expenditure a ‘coordinated expenditure’ cannot 

(for constitutional purposes) make it one.” 518 U.S. at 621-

22. Rather, the Court looked for evidence of “actual 

coordination as a matter of fact.” Id. at 619; see also FEC v. 

Christian Coalition, 52 F. Supp.2d 45, 91 (D.D.C. 1999) 

(“First Amendment clarity demands a definition of 

‘coordination’ that provides the clearest possible guidance to 

candidates and constituents”). 

Because of their relationships with candidates, the 

Political Party Appellants are most directly injured by the 

broad definition of coordination required by Section 214 

because it subjects all their expenditures in support of 

candidates to the coordinated party expenditure limit, even 

when the expenditures are truly independent “as a matter of 

fact.” It also purports to make political parties (and 

derivatively, candidates) responsible for independent 

expenditures by persons or entities with whom the parties 

have little if any relationship. 

Section 214 is just as offensive to the First 

Amendment as the “conclusive presumption” of coordination 

rejected by this Court in Colorado I, 518 U.S. at 619. With 

no express or implied “agreement,” or even “formal 

collaboration,” required to show coordination, political 

opponents are encouraged to file charges of coordination on 

the thinnest evidence. The consequences can be severe; any 
78 

corporate political activity deemed “coordinated” with the 

party immediately becomes an illegal contribution to the 

party, and perhaps to the candidate, with severe penalties. 

See Section 312(a). Fear of these penalties will stifle the 

important efforts of parties to build coalitions – to 

“associate” – with ideologically-aligned groups. 

The district court erroneously held that the RNC 

Appellants’ constitutional challenge to Sections 214(b) and 

(c) are not justiciable on standing and ripeness grounds. As 

Judge Henderson correctly noted in dissent, however, that 

challenge is ripe for review because “[Section] 214 will 

violate the First Amendment no matter what the [FEC] does, 

for no regulation it promulgates may depart . . . from the 

provision[’s] plain text.” Henderson 394-95sa. Moreover, 

because constitutional challenges to BCRA must be brought 

before a three-judge court, see § 403(a), while challenges to 

regulations are heard by a single judge,44 the court’s ruling 

may effectively preclude review of Section 214’s 

constitutionality. Thus, the Court should reach this issue, 

and declare Section 214 invalid in its entirety. 

II. NEW SECTION 323’S RESTRICTIONS ON 

POLITICAL PARTIES EXCEED THE 

POWER OF CONGRESS UNDER THE 

FEDERAL ELECTIONS CLAUSE AND 

VIOLATE PRINCIPLES OF FEDERALISM. 

It is now a federal crime for the Chairman of the RNC 

to send a fundraising letter on behalf of a state gubernatorial 

candidate or even a local mayoral candidate. The RNC is 

now precluded from raising and spending money in full 

compliance with state law even in off-year elections, unless it 

additionally complies with the extensive federal regulatory 

44 See 5 U.S.C. § 702 (providing for judicial review under Administrative 

Procedure Act). 
79 

regime. And it is a federal crime for a state political party to 

use state-regulated money to telephone voters urging support 

for a state ballot initiative if it so happens that there is a 

federal candidate on the ballot. This federalization of the 

rules for participating in state political processes is 

unprecedented and directly contravenes the compromise 

struck by the Founders in Article I, Section 4 of the 

Constitution (the “Federal Elections Clause”). 

A. Congress May Not Regulate Purely or 

Predominantly State and Local Election 

Activity. 

1. The Federal Elections Clause Limits 

Congressional Power To Regulate 

Nonfederal Election Activity. 

Even though Congress did not specify a constitutional 

basis for enacting BCRA,45 the Government has made a 

binding admission that Congress relied on no other 

enumerated constitutional power to support Title I. 46 The 

Federal Elections Clause states: 

The Times, Places, and Manner of holding Elections 

for Senators and Representatives, shall be 

prescribed in each State by the Legislature thereof; 

but the Congress may at any time by Law make or 

45 In Buckley, this Court treated FECA, which BCRA amends, as a 

product of Congress’ power under the Federal Elections Clause. 424 

U.S. at 13 & n.16. 

46 See J.A. 1800-01, United States’ Resp. to RNC’s 2d Set of Interrogs. to 

Defts. (Sept. 19, 2002) at 4 (claiming Commerce Clause basis only for 

BCRA §§305 and 504, which amend Federal Communications Act). 

This admission should end the matter. See United States v. Virginia, 518 

U.S. 515, 533 (1996) (justification for government action “must be 

genuine, not hypothesized or invented post hoc in response to litigation”); 

cf. United States v. Lopez, 514 U.S. 549, 563 & n.4 (1995) (rejecting 

Congress’ post hoc rationalization for its exercise of commerce power). 
80 

alter such Regulations, except as to the Places of 

choosing Senators. 

U.S. Const. Art. I § 4; see also S. Rep. No. 92-229, at 99 

(1971). 

The Clause “was a compromise between those 

delegates to the Constitutional Convention who wanted the 

States to have final authority over the election of all state and 

federal officers and those who wanted Congress to make 

laws governing national elections.” Oregon v. Mitchell, 400 

U.S. 112, 119 n.2 (1970) (controlling opinion of Black, J.). 

The debate thus revolved around the question whether the 

Federal Government should have any role at all in regulating 

elections – even federal elections. As the Government’s 

expert, Dr. Donald P. Green of Yale University, 

acknowledged, the allocation of control over elections was 

“maybe one of the most vigorously-debated aspects of the 

constitutional structure.” J.A. 867-68, Green CX 142. 

Even the most ardent nationalists among the Founders 

were particularly forceful in warning against federal 

encroachments into state elections. As Alexander Hamilton 

wrote in Federalist No. 59: 

Suppose an article had been introduced into the 

Constitution, empowering the United States to 

regulate the elections for the particular States, would 

any man have hesitated to condemn it, both as an 

unwarrantable transposition of power, and as a 

premeditated engine for the destruction of the State 

governments? The violation of principle in this case 

would have required no comment. 

Echoing Hamilton, Justice Joseph Story observed in 

dismissing a hypothetical federal power to regulate state 

elections that “[i]t would be deemed a most unwarrantable 

transfer of power, indicating a premeditated design to destroy 

the state governments. It would be deemed so flagrant a 
81 

violation of principle, as to require no comment.” Joseph 

Story, 2 Commentaries on the Constitution of the United 

States 284-85 (1st ed. 1833). Notably, Dr. Green has 

candidly conceded both that (i) the Hamilton view correctly 

represents the original understanding of the Federal Elections 

Clause and (ii) BCRA “goes a lot farther than Hamilton 

indicated in Federalist Number 59.” J.A. 868-69, Green CX 

148-49 (emphasis added). 

Against this background, it is not surprising that this 

Court has consistently recognized that the Clause provides no 

authority to regulate state elections. For example, in United 

States v. Reese, 92 U.S. 214 (1875), which evaluated the 

constitutionality of the Enforcement Act of 1870, the Court 

dismissed the application of the Clause to a municipal 

election, noting that in view of the local character of the 

election at issue, “[t]he effect of art. 1, sect. 4, of the 

Constitution, in respect to elections for senators and 

representatives, is not now under consideration.” Id. at 218. 

Ex parte Siebold, an Enforcement Act case involving ballotbox stuffing in connection with a federal election, similarly 

emphasized the limitation of the Clause to federal elections: 

“We do not mean to say . . . that for any acts of the officers 

of election, having exclusive reference to the election of State 

or county officers, they will be amenable to Federal 

jurisdiction.” 100 U.S. 371, 393 (1871) (emphasis added). 

To be sure, the Court has recognized that the Federal 

Elections Clause may permit some incidental regulation of 

state elections, but only as necessary effectively to regulate 

simultaneously-occurring federal elections. For example, 

Siebold noted that “[i]f for its own convenience a State sees 

fit to elect State and county officers at the same time and in 

conjunction with the election of representatives, Congress 

will not be thereby deprived of the right to make regulations 

in reference to the latter.” Id. (emphasis added). Thus, 

Congress may not regulate state elections under the Clause 
82 

simply because they happen to occur at the same time as a 

federal election; rather, the Clause is broad enough only to 

allow federal regulation carefully tailored to apply solely to 

“the latter.” 

The Court has repeatedly reiterated this principle. In 

Blitz v. United States, 153 U.S. 308 (1894), for instance, the 

Court dismissed an indictment for impersonating a voter 

because the indictment did not allege that the defendant had 

actually voted for Congress, as opposed to a state or local 

office. The Court there held that “[v]oting, in the name of 

another, for a state officer, cannot possibly affect the 

integrity of an election for Representative in Congress,” and 

that “[w]ith frauds of that character [i.e., concerning elections 

for state office] the national government has no concern.” 

Id. at 314-15 (emphasis added). 

More recently, in Oregon v. Mitchell, the Court struck 

down a provision of a federal law lowering to eighteen the 

voting age in state and local elections, while upholding a 

provision similarly lowering to eighteen the voting age in 

federal elections. In his controlling opinion, Justice Black 

emphasized that “[o]ur judgments . . . save for the States the 

power to control state and local elections which the 

Constitution originally reserved to them and which no 

subsequent amendment has taken from them.” 400 U.S. at 

135. See also Tashjian, 479 U.S. at 217 (“[T]he Constitution 

grants to the States a broad power to prescribe the ‘Times, 

Places, and Manner of holding Elections for Senators and 

Representatives,’ Art. I, §4, cl. 1, which power is matched by 

state control over the election process for state offices.” 

(emphasis added)). Not a single Justice in Oregon v. 

Mitchell argued that the Clause empowered Congress to 

lower state voting ages. Accordingly, the Federal Elections 

Clause affirmatively precludes Congress from usurping the 

states’ sovereign right to regulate their own elections. 
83 

2. Limitations on Our Federal Structure 

Require Congress To Respect the 

Electoral Processes of the States. 

Even if (contrary to the Federal Elections Clause) 

Congress had the power to enact Title I’s restrictions on state 

and local election activity, the statute’s extensive intrusion 

into an area central to state sovereignty would contravene 

principles of federalism embodied in the Constitution, as well 

as the Tenth Amendment. See, e.g., New York v. United 

States, 505 U.S. 144, 156-57 (1992). 

Under “Our Federalism,” the states retain “a large 

residuum of sovereignty.” Alden v. Maine, 527 U.S. 706, 

748 (1999). That “[r]esidual state sovereignty was ... 

implicit, of course, in the Constitution’s conferral upon 

Congress of not all governmental powers, but only discrete, 

enumerated ones, ... which implication was rendered express 

by the Tenth Amendment[].” Printz v. United States, 521 

U.S. 898, 919 (1997). In Alden, which principally addressed 

the scope of states’ sovereign immunity under the Eleventh 

Amendment, this Court warned that: 

Congress has vast power but not all power. When 

Congress legislates in matters affecting the States, it 

may not treat these sovereign entities as mere 

prefectures or corporations. Congress must accord 

States the esteem due to them as joint participants in 

a federal system, one beginning with the premise of 

sovereignty in both the central Government and the 

separate States. 

Alden, 527 U.S. at 758 (emphasis added). Importantly here, 

Alden emphasized that federal encroachment is of particular 

concern where a state’s sovereign powers of self-governance 

are at stake: “When the Federal Government asserts 

authority over a State’s most fundamental political processes, 

it strikes at the heart of the political accountability so 
84 

essential to our liberty and republican form of government. . . 

A State is entitled to order the processes of its own 

governance.” Id. at 751-52 (emphasis added). 

Similarly, in Oregon v. Mitchell, Justice Black’s 

controlling opinion emphasized that “[n]o function is more 

essential to the separate and independent existence of the 

States and their governments” than the power to determine 

the qualifications of voters for state and local offices and – 

significantly here – “the nature of their own machinery for 

filling local public offices.” 400 U.S. at 125; see also 

California Democratic Party, 530 U.S. at 590 (Stevens, J., 

joined by Ginsburg, J., dissenting) (“A state’s power to 

determine how its officials are to be elected is a 

quintessential attribute of sovereignty.”).47 

Each of the 50 states has considered and enacted 

legislation governing the financing of campaigns for state 

and local office. BCRA superimposes federal restrictions on 

local, state, and national party participation in state elections. 

At worst, it overrides those state laws; at the very least it 

shows no “esteem” for the prerogatives of the states as dual 

sovereigns. Alden, 527 U.S. at 758. 

3. Plaintiffs Have Standing To Challenge 

Title I As Exceeding Congress’s 

Enumerated Powers and Violating 

Principles of Federalism. 

The Political Party Appellants have challenged Title I 

primarily as an ultra vires regulation of state and local 

election activity with no basis in any enumerated power. The 

47 Indeed, in enacting FECA in 1971, a more prudent Congress referred to 

“the powers reserved in this field to the States” – seemingly an 

acknowledgment of the Constitution’s “reserv[ation] to the States,” U.S. 

Const. amend. X, of the power to regulate their own elections. See S. 

Rep. No. 92-229, at 100. 
85 

Government correctly conceded in Pierce County v. Guillen, 

123 S. Ct. 720 (2003), that the private party plaintiff in that 

case had standing because the plaintiff alleged “limitations 

on Congress’s delegated powers.”48 The Court did not reach 

the question of standing, however. Id. at 732 n. 10. 

Although the states surely are injured by Congress’s 

ultra vires exercise of control over their own electoral 

processes, Congress has restricted the ability of political 

parties to participate in state and local elections in a variety 

of ways, see infra at 86-91, and subjected them to criminal 

sanctions, without any constitutional authority for doing so. 

It could hardly be the case that a person injured by a federal 

law that Congress was not constitutionally authorized to 

enact is without standing to resist enforcement of that law. 

See, e.g., United States v. Morrison, 529 U.S. 598 (2000) 

(allowing private challenge to Violence Against Women Act 

as exceeding Congress’ authority under the Commerce 

Clause); Buckley, 424 U.S. at 117-18 (private party plaintiffs 

suffered injury and had standing to challenge FECA 

provisions on ground that they violated Appointments Clause 

and separation-of-powers principles). 

Moreover, this Court has made clear that “[t]he 

Constitution does not protect the sovereignty of the States for 

the benefit of the States or state governments as abstract 

political entities.” New York, 505 U.S. at 181. “To the 

contrary, the Constitution divides authority between federal 

and state governments for the protection of individuals.” Id. 

(emphasis added). Congress’s disruption of the federal-state 

48 Brief of the United States at 25; see also id. (observing that “[t]his 

Court has adjudicated numerous cases in which federal statutes were 

challenged as lying beyond the reach of Congress’s Commerce Clause 

power, even when the state where the regulated activity took place raised 

no objection to the statute.”) (citing United States v. Lopez, 514 U.S. 549 

(1995); Perez v. United States, 402 U.S. 146 (1971)). 
86 

balance in an area as sensitive as elections threatens the 

liberties of political parties and their supporters, not merely 

the sovereignty of the states, and both the political parties 

and the states have standing to seek redress.49 

B. New Section 323(a)’s Restrictions on 

National Party Committees Impermissibly 

Regulate Purely State and Local Activity. 

All three judges of the district court found that during 

odd-numbered years when there are no federal candidates on 

the ballot, national parties engage in activities that do not 

affect federal elections at all. During the last two off-year 

elections, when there were no federal candidates on the 

ballot, the RNC spent approximately $21 million in 

nonfederal funds on state and local candidate support, 

transfers to state parties, and direct expenditures, not 

counting its commitment of such “overhead” as staff time 

and travel. See Kollar-Kotelly 535sa, 537sa; see also 

Henderson 298sa; Leon 1214sa; J.A. 37-38, Banning Decl. 

¶28(a). Even in federal election years, the RNC also engages 

in extensive activity that affects only state and local elections, 

directly contributing, for example, $5.6 million to state and 

local candidates in 2000. See Henderson 297sa; Leon 

1212sa; J.A. 305, Josefiak Decl. ¶61. And finally, a major 

portion of the RNC’s budget during federal election years has 

historically gone toward Victory Plans, the full-ticket voter 

mobilization plans that affect far more state and local 

elections than federal elections. See pp. 19-20 above. 

49 Judge Kollar-Kotelly cited this Court’s dicta in Tennessee Electric 

Power v. TVA, 306 U.S. 118 (1939), for the proposition that only states 

have standing to bring Tenth Amendment claims, thus conflating the 

Elections Clause inquiry with the Tenth Amendment. See Kollar-Kotelly 

at 1001sa. But see Steward Mach. Co. v. Davis, 301 U.S. 548 (1937); 

Pierce County, 123 S.Ct. at 732 n.10 (private party standing under Tenth 

Amendment remains open question). 
87 

New Section 323(a) federalizes all these activities on 

pain of criminal sanctions. To participate at all in purely 

state election activity, such as this year’s off-year elections, 

the RNC must comply fully with the federal regulatory 

regime, in addition to the state regulatory regime. This Court 

has never condoned federal regulation of purely state election 

activity, especially when there is not even a federal candidate 

on the ballot. 

Moreover, new Section 323(a) totally federalizes all 

“mixed” election activities undertaken by the RNC. In 

contrast to the superseded allocation regulations, which 

required an allocation between federally-regulated and stateregulated money for such activities, new Section 323(a) 

shows no “esteem” whatsoever for the regulatory regimes of 

the dual sovereigns. It would, of course, be an affront to the 

federal government for a state to require the RNC to 

participate in a Senate election with purely state-regulated 

money simply because there are state candidates on the 

ballot. It is no less an affront to the state for new Section 

323(a) to instruct the RNC to participate in gubernatorial 

elections with purely federally-regulated money even when 

there are no federal candidates on the ballot. 

C. New Section 323(b) Impermissibly 

Regulates State and Local Political Activity. 

In new Section 323(b), Congress attempted to assert 

its power under the Federal Elections Clause to regulate the 

financing of state and local elections – even to the point of 

regulating spending that does nothing more than expressly 

advocate the election or defeat of a state or local candidate. 

Although the Government has sought to minimize the 

scope of the statute, the district court confirmed its effect on 

a broad range of state and local election activity. These 

activities include generic party appeals that mention no 

candidates, mail and doorhangers that mention only state or 
88 

local candidates, and even ballot measure activity. 

Henderson 436-437sa. BCRA reaches not only activities 

directed at federal candidates, but also generic activities that 

refer to no candidates, and even activities in support of state 

or local candidates and ballot measures. 

As the court below found, BCRA does not merely 

replace the previous administratively imposed allocation 

scheme with a new statutory allocation scheme. The 

previous allocation rules were limited to “generic” voter 

activities and allowed the costs of those activities to be 

allocated between federal and nonfederal funds. The 

allocation rules never purported to regulate pure state or local 

election activity. Those rules implicitly reflected the fact that 

the Act regulated only expenditures “for the purpose of 

influencing” a federal election, and supplied a methodology 

for apportioning expenditures that arguably had more than 

one purpose.50 In contrast, “Sections 301(20) and 323(b) . . . 

abandon the rough balance struck by the allocation 

regulations. They require state parties to spend federal funds 

on activities that will not plausibly corrupt any federal 

candidate.” Henderson 434sa. Or, as Judge Leon stated, “It 

is simply not enough to claim that just because the use of a 

donation has some effect on a federal election, it must be 

completely funded with federal funds.” Leon 1123sa. 

In fact, that is precisely what the Government and 

Intervenors have asserted. They have essentially abandoned 

the requirement that an expenditure be “for the purpose of 

influencing” a federal election or even that it be likely to 

corrupt a federal candidate, and have replaced these with a 

standard that allows federal regulation to be imposed unless 

50 The fact that the parties lived within the allocation rules does not mean 

they concede that the federal government has authority to regulate all of 

those activities, as Judge Kollar-Kotelly has suggested. See 

Kollar-Kotelly 533-37sa. They have argued just the opposite. 
89 

it can be demonstrated that the activity has no effect on a 

federal election. 

Thus, they have argued that because of voters’ 

“partisan proclivities,” activities in support of state 

candidates can be regulated; that since state redistricting 

decisions “affect” federal elections, party redistricting 

activities can be limited; that if state ballot measures have a 

“partisan” appeal, or are likely to mobilize voters along party 

lines, those activities can be federally regulated. Indeed, they 

have argued that even if a nonfederal contribution is used for 

nonfederal purposes that does not affect federal elections, it 

“frees up” federal money that might otherwise have to be 

used and thus influences federal elections. 

Using the Government’s logic, Congress could 

impose contribution limits directly upon state or local 

candidates, because their funds may be used to increase voter 

turnout, and increased turnout may “affect” a federal race.51 

California law limits contributions to the parties for 

candidate-related expenditures to $26,600. Contributions for 

non-candidate-related expenditures are not limited. The 

$10,000 Levin contribution limit is less than half the limit 

that California has declared to be appropriate (and, 

presumably, noncorrupting) for contributions to the political 

parties for candidate-related uses. In fact, the voters made a 

specific finding that contributions to the parties have an 

“insulating” effect. See Henderson 310-11sa; Leon 1227sa. 

The fact that California has decided to allow unlimited 

contributions for other purposes is in part an 

51 Intervenors have, in fact, made this argument in their lawsuit 

challenging the recently adopted FEC regulations. Shays v. FEC, supra. 

Intervenors argue that the Levin limits on nonfederal contributions should 

apply to associations of state and local candidates for communications 

mentioning only state or local candidates if those communications are 

“Federal election activity.” 
90 

acknowledgment of the constitutional limits in this area, but 

also reflects a specific policy decision that expenditures for 

those other purposes do not share the dangers associated with 

candidate-related expenditures. 

It should be undisputed that California has “control 

over the election process for [its own] offices.” Tashjian, 

479 U.S. at 217. This authority was reserved to the states in 

the Constitution and “no subsequent amendment has taken 

[it] from them.” Mitchell, supra, 400 U.S. at 135. BCRA 

deprives the states of that authority, and prohibits the parties 

from participating in state and local elections in the very 

ways authorized by the states. 

The BCRA definition of “Federal election activity” 

simply does not take into account that the parties’ activities 

may have a state or local, rather than a federal, focus. The 

court found as a matter of fact that the state parties’ voter 

registration activities, direct mail, phone bank activities, and 

grassroots mobilizing activities were all typically driven 

more by state election activity than federal. Leon 1227-31sa; 

Henderson 311-14sa. BCRA fails to accommodate the 

state’s interest in regulating its own elections or the parties’ 

interest in being able to differentiate between “federal” 

election activity and “state” activity for purposes of ordering 

their conduct.52 By imposing its own significant limitations 

on the use of funds lawfully raised under state law by state 

and local political parties for use in state and local elections, 

Congress has effectively invalidated the choices made by 

those state governments for the conduct of their own 

elections, and subjected the political parties to federal 

regulation which it has no authority to impose. 

52 The Government’s references to the possible “effects” that certain state 

and local election activities might have on a federal election is all the 

more troubling since Congress made no findings on such “effects.” See 

Henderson 431sa. 
91 

III. NEW SECTION 323 DISCRIMINATES 

AGAINST POLITICAL PARTIES IN 

RELATION TO SPECIAL INTEREST 

GROUPS ENGAGED IN IDENTICAL 

ACTIVITIES. 

BCRA will not only weaken political parties in 

absolute terms; it will weaken them relative to special 

interest groups like the NRA, the Sierra Club, and NARAL. 

See J.A. 1617-18, Milkis Reb. Decl. ¶16. Although interest 

groups engage in many of the same activities as parties, see 

supra at 23; J.A. 870, Green CX 158 (NAACP GOTV plan 

“is not very different” from Missouri Republican Party 

Victory Plan), BCRA saddles parties alone with unique 

burdens. Specifically, it imposes broad-ranging restrictions 

on political parties, but then – inexplicably – leaves narrow 

special interest groups almost wholly free to raise and spend 

nonfederal funds without disclosing the bulk of their 

activities.53 

A. Political Parties Are Guaranteed Equal 

Protection by Both the First and Fifth 

Amendments. 

BCRA’s disparate treatment of political parties is 

subject to strict constitutional scrutiny. Under the First 

Amendment, “[i]n the realm of private speech or expression, 

government regulation may not favor one speaker over 

another.” Rosenberger v. Rector & Visitors of Univ. of 

Virginia, 515 U.S. 819, 828 (1995). When the Government 

selectively imposes speech burdens – even if it does so on the 

basis of content-neutral criteria such as the size or income of 

the speaker – it poses the real danger of “distort[ing] the 

53 BCRA’s disclosure provisions apply only to broadcast advertising that 

fits the definition of “electioneering communications,” BCRA § 201(a), 

and do not apply to the GOTV activities on which interest groups spend 

much of their nonfederal money. 
92 

market for ideas” and thus runs a risk “similar to that from 

content-based regulation.” Leathers v. Medlock, 499 U.S. 

439, 448 (1991). As Justice O’Connor has emphasized, 

“[l]aws that single out particular speakers are substantially 

more dangerous, even when they do not draw explicit content 

distinctions.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 

676 (1994) (concurring and dissenting opinion). 

Even though “Congress ordinarily need not address a 

perceived problem all at once,” when regulating speech, a 

“selective ban” simply “cannot be defended on the ground 

that partial prohibitions may effect partial relief.” Florida 

Star v. B.J.F., 491 U.S. 524, 540 (1989). Even if a uniformly 

imposed speech burden would be justified by sufficiently 

weighty government interests, selective or “underinclusive” 

regulations are invalid unless the government can 

independently justify differential treatment. See City of 

Ladue v. Gilleo, 512 U.S. 43, 51-52 (1994); Greater New 

Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 

187-91 (1999); City of Cincinnati v. Discovery Network, Inc., 

507 U.S. 410, 418, 424-25 (1993). 

There can be little doubt that BCRA singles political 

parties out. New Section 323 imposes a broad array of 

restrictions on parties, including but not limited to the “soft 

money ban.” In contrast, corporations, unions, trade 

associations, and other interest groups not only avoid the 

collateral restrictions, but are largely unrestricted in raising 

and spending unlimited, unregulated, and undisclosed money 

from any source to pay for such activities as: voter 

registration; GOTV; phone banks, mail, and leafleting at any 

time; any broadcast advertising except for “electioneering 

communications;” and communications in any form on any 

subject – including endorsements of federal candidates – to 

their officers, shareholders, and members. See J.A. 697-98, 

Peschong Decl. ¶¶13-14; J.A. 1733-34, FEC Resp. to RFAs 

Nos. 101-108. Rather than using a scalpel to regulate 
93 

specific uses of nonfederal money that it found particularly 

objectionable, Congress in BCRA used a meat cleaver on 

political parties while leaving special interest groups largely 

untouched. 

Equal protection analysis under the Fifth Amendment 

leads to the same result. “Because the right to engage in 

political expression is fundamental to our constitutional 

system, statutory classifications impinging upon that right 

must be narrowly tailored to serve a compelling 

governmental interest.” Austin, 494 U.S. at 666. 

Specifically in the campaign finance context, the 

Court has held that political parties may not be singled out 

for unfavorable treatment. In Colorado I, the Court observed 

that “[w]e do not see how a Constitution that grants to 

individuals, candidates, and ordinary political committees the 

right to make unlimited independent expenditures could deny 

the same right to political parties.” 518 U.S. at 618; see also 

id. at 616 (“The independent expression of a political party’s 

views is ‘core’ First Amendment activity no less than is the 

independent expression of individuals, candidates, or other 

political committees.” (emphasis added)). See Eu, 489 U.S. 

at 217 (noting oddity of rule under which, “[a]lthough the 

official governing bodies of political parties are barred from 

issuing endorsements, other groups are not”).54 

The Court did not retreat from this principle in 

Colorado II. The only question at issue in Colorado II was 

whether “a party is . . . in a different position from other 

54 See also Citizens Against Rent Control, 454 U.S. at 296 (“any limit . . . 

on individuals wishing to band together to advance their views ... , while 

placing none on individuals acting alone, is clearly a restraint on the right 

of association.”); cf. Bellotti, 435 U.S. at 777 (“The inherent worth of the 

speech in terms of its capacity for informing the public does not depend 

upon the identity of its source, whether corporation, association, union, or 

individual.”). 
94 

political speakers,” entitling it “to demand a generally higher 

standard of scrutiny” when it comes to coordinated 

expenditures. 533 U.S. at 445 (emphasis added). Answering 

that question in the negative, the Court created the opposite 

bookend for Colorado I: Parties are perhaps entitled to no 

greater protection than other actors (Colorado II), but they 

are certainly entitled to no less (Colorado I). Referring to 

Colorado I, the Court said there was “no justification for 

subjecting party election spending across the board to the 

kinds of limits previously invalidated when applied to 

individuals and nonparty groups.” Colorado II, 533 U.S. at 

444. 

Nor can these additional restrictions on political 

parties be salvaged on the ground that nonfederal spending 

by parties – as opposed to nonfederal spending by special 

interest groups – is uniquely likely to corrupt or appear to 

corrupt public servants. The Court in Colorado I has already 

rejected this very argument, stating it was “not aware of any 

special dangers of corruption associated with political parties 

that tip the constitutional balance” away from them and 

toward other political groups; rather, it said, the logic seemed 

to cut the other way. 518 U.S. at 616-17. The Court further 

observed, in language particularly relevant here, that the 

potential of “unregulated ‘soft money’ contributions to a 

party for certain activities such as electing candidates for 

state office or for voter registration and ‘get out the vote’ 

drives” to corrupt is “at best, attenuated.” Id. (emphasis 

added). Those conclusions are amply supported by the record 

evidence introduced here. 

B. Section 323 Puts Political Parties at a 

Distinct Disadvantage in Relation to Special 

Interest Groups. 

Title I plainly “classifies”; it does so on its face (“Soft 

Money of Political Parties”). Nor is it debatable that Title I 

“impinges” on the “right to engage in political expression.” 
95 

The simple fact that political parties have preferred 

access to the ballot, or that FECA grants political parties 

certain advantages, cannot justify unique speech disabilities. 

Congress and the states have accorded parties these 

advantages because parties serve an important purpose in the 

American political system, not as an excuse to saddle them 

with other hardships. Cf. S. Rep. No. 93-689, 1974 

U.S.C.C.A.N. 5587, 5593 (“[A] vigorous party system is 

vital to American politics ....”). This Court has never 

invoked, nor even mentioned, these advantages to uphold 

unique restrictions on political parties. California 

Democratic Party, 530 U.S. 567; Eu, 489 U.S. 214; Tashjian, 

479 U.S. 208; Colorado I, 518 U.S. 604. 

Nor is avoidance of the “appearance of corruption” 

created through the “access” provided to nonfederal donors 

sufficient to justify the unique restrictions on political parties. 

First, to the extent the specter of special access is a 

problem at all as it relates to political parties, it is no more a 

problem among nonfederal-money donors (the subject of 

BCRA regulation) than among federal-money donors. 

Indeed, as the FEC has admitted, there is no evidence that 

officeholders are more likely to meet with nonfederal-money 

donors than with federal-money contributors. See Henderson 

330sa; Leon 1264sa. 

Moreover, BCRA’s restrictions on political parties do 

not materially limit interest group “access.” Apart from their 

extensive lobbying activities, it is undisputed that special 

interest groups “use federal officeholders to raise funds,” and 

“host[] fundraisers much like those that parties conduct, 

featuring opportunities for wealthy donors and corporate 

executives to meet with federal officeholders.” J.A. 1619, 

Milkis Reb. Decl. ¶19. Indeed, representatives of EMILY’s 

List, NARAL, the League of Conservation Voters, and the 

Sierra Club, among others, have all candidly acknowledged 
96 

that federal officeholders appear at group-sponsored 

fundraising events. See Henderson 335-36sa. 

Notably, the FEC has admitted that “there is a 

potential for corruption or the appearance of corruption when 

non-political party organizations” (e.g., interest groups) that 

pay for issue advocacy, voter registration, voter 

identification, and GOTV activity “with nonfederal money 

also lobby federal officeholders.” J.A. 1734-35, FEC Resp. 

to RFAs Nos. 109-113.55 

This substantial underinclusiveness indicates that “the 

interest given in justification of the restriction is not 

compelling.” Church of the Lukumi Babalu Aye, Inc. v. City 

of Hialeah, 508 U.S. 520, 546-47 (1993); see also City of 

Ladue, 512 U.S. at 52 (exemptions to an otherwise legitimate 

regulation of speech “diminish the credibility of the 

government’s rationale for restricting speech in the first 

place”); Republican Party of Minnesota v. White, 536 U.S. 

765, 779-80 (2002) (Scalia, J., concurring). 

Defendants’ effort to justify BCRA’s restrictions on 

political parties by asserting that the restrictions will prevent 

donors from using nonfederal donations to parties as 

“conduits” for circumventing direct contribution limits to 

candidates is fatally undermined by BCRA’s exclusion of 

special interest groups themselves from the ban on spending 

nonfederal money. Applying a speech restriction to a 

potential indirect conduit (the party), while carving an 

55 Defense expert Dr. Mann acknowledged that special interests engage in 

such activities as “electioneering communications” to “curry favor” with 

officeholders and gain “access.” J.A. 1561-62, Mann Decl. 33-34; J.A. 

927-28, Mann CX 148-49. Even if BCRA’s limits on electioneering 

communications were upheld, Dr. Mann concedes, special interests 

would continue to “curry favor” through election-related activities, such 

as voter mobilization, paid for with completely unregulated and 

undisclosed nonfederal money. J.A. 927-28, Mann CX 148-49. 
97 

exception for the principal actor (the donor) to take the same 

action directly, is even more “facial[ly] underinclusive” than 

the speech restrictions at issue in Florida Star that “raise[d] 

serious doubts about whether” the measure served the 

asserted purposes in that case. 491 U.S. at 540. Such an 

exemption, in fact, renders the statutory scheme wholly 

irrational as an effort to achieve its purported purpose. 

Indeed, Colorado II demonstrates the facial invalidity 

of the speaker-based distinction drawn in BCRA. Colorado 

II did not suggest political party spending per se creates 

“undue influence on an officeholder’s judgment” (let alone a 

likelihood of outright quid pro quo). Colorado II, 533 U.S. 

at 440-41; accord Buckley, 424 U.S. at 28 n.31. Rather, it 

held that a party’s expenditures, when actually coordinated 

with a candidate’s campaign, could be limited only because 

the party was potentially acting as a “conduit” for donations 

by other political actors – namely, special interests and 

PACs – who “do not pursue the same objectives in electoral 

politics that parties do” but, instead, “are most concerned 

with advancing their narrow interest[s]” and “seek to produce 

obligated office holders” through their contributions. 533 

U.S. at 451-52 (internal quotation marks omitted). Thus, the 

Court held, because coordinated expenditures are the 

functional equivalents of “direct party contribution[s]” to 

candidates and because special interests could attempt to use 

those party contributions “to place candidates under 

obligation,” Congress could limit parties’ coordinated 

expenditures as a means of preventing potentially corrupting 

effects of special interest contributions. Id. at 452, 464-65. 

BCRA, however, turns this reasoning on its head: It 

prohibits the unwitting party conduit from making 

noncorrupting disbursements of nonfederal money while 

simultaneously permitting – indeed encouraging – the special 

interests themselves to make the same disbursements (for 

GOTV, unregulated issue advocacy, and so forth). Colorado 
98 

I, 518 U.S. at 617 (“[i]f anything, an independent [party] 

expenditure made possible by a $20,000 donation, but 

controlled and directed by a party rather than the donor, 

would seem less likely to corrupt than the same (or much 

larger) independent expenditure made directly by that 

donor.”) (emphasis added). 

Defendants’ expert Dr. Paul Herrnson summed up 

well: Use by political parties of non-federal funds “does not 

create such strong policy-oriented IOU’s between 

contributors and legislators as those created by narrowlyfocused interest groups that spend soft money to help only a 

few candidates.” J.A. 877, Herrnson Dep. at 208-09 (quoted 

in Henderson 415sa). The severe differential treatment 

imposed by Title I on political parties simply cannot be 

justified by a claim that parties are more likely then special 

interest groups to corrupt federal officeholders. 
99 

CONCLUSION 

For the reasons set forth above, the Political Party 

Appellants urge the Court to hold BCRA Sections 101, 213, 

and 214 unconstitutional, invalid, and unenforceable. 

Respectfully submitted, 

LANCE H. OLSON BOBBY R. BURCHFIELD

DEBORAH B. CAPLAN Counsel of Record 

OLSON HAGEL & FISHBURN THOMAS O. BARNETT

555 Capitol Mall ROBERT K. KELNER

Suite 1425 RICHARD W. SMITH

Sacramento, CA 95814 COVINGTON & BURLING

(916) 442-2952 1201 Pennsylvania Ave., N.W.

Counsel for California Party 

Appellants 

JAMES BOPP, JR.

RICHARD E. COLESON

THOMAS A. MARZEN

JAMES MADISON CENTER 

FOR FREE SPEECH

BOPP COLESON & BOSTROM

1 South 6th Street 

Terre Haute, IN 47807 

(812) 232-2434 

Counsel for Libertarian 

National Committee 

JULY 8, 2003 

Washington, D.C. 20004 

(202) 662-6000 

Counsel for RNC Appellants