UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) REBUTTAL IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) SUMMARY JUDGMENT MOTION 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REBUTTAL 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

Holly J. Baker* 

Esther D. Gyory (VA Bar # 76826) 

Kevin P. Hancock* 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

October 9, 2014 (202) 694-1650 

* Admitted Pro Hac Vice 

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TABLE OF CONTENTS 

ARGUMENT .............................................................................................................................2 

I. PLAINTIFFS’ RESPONSE CONFIRMS THAT THIS COURT LACKS 

JURISDICTION OVER STOP PAC’S CLAIMS .........................................................2 

A. Stop PAC Lacks Standing Because It Does Not Dispute That It 

Could Have Registered Early Enough to Make the Contributions 

It Wanted to Make .............................................................................................2 

B. Stop PAC Admits Its Claims Are Moot and It Cannot Show 

Those Claims Are Capable of Repetition Yet Evading Review ........................3 

II. PLAINTIFFS CANNOT DISTINGUISH BUCKLEY, WHICH 

FORECLOSES THEIR CLAIMS AGAINST THE SIX-MONTH 

PERIOD AND THE $2,600 CONTRIBUTION LIMIT ...............................................6 

III. PLAINTIFFS HAVE NOT SHOWN THAT THE SIX-MONTH PERIOD 

AND THE $2,600 CONTRIBUTION LIMIT VIOLATE 

THE FIRST AMENDMENT .........................................................................................7 

A. Plaintiffs Have Failed to Rebut the FEC’s Showing That the 

Six-Month Period Prevents Circumvention of the $2,600 

Contribution Limit .............................................................................................7 

B. Plaintiffs Have Failed to Rebut the FEC’s Showing That the 

Six-Month Period Furthers the Government’s Interest in 

Campaign Finance Disclosure .........................................................................11 

C Plaintiffs Have Failed to Rebut the FEC’s Showing That the 

Six-Month Period and the $2,600 Contribution Limit Are 

Closely Drawn .................................................................................................13 

IV. PLAINTIFFS HAVE FAILED TO REBUT THE FEC’S SHOWING THAT 

NEITHER THE $2,600 CONTRIBUTION LIMIT NOR THE LIMITS 

ON MULTICANDIDATE PAC CONTRIBUTIONS TO PARTIES 

VIOLATE THE FIFTH AMENDMENT ....................................................................14 

A. Plaintiffs Do Not Even Attempt to Show FECA Discriminates 

Against Them ...................................................................................................14 

B. Plaintiffs Offer No Evidence Showing New PACs and 

Multicandidate PACs Are Similarly Situated ..................................................15 

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C. Plaintiffs Identify No Authority Holding That Making 

an Increased Campaign Contribution Is a Fundamental Right and So 

Rational Basis Scrutiny Applies to Their Claims. ...........................................17 

D. Plaintiffs Have Failed to Show That There Is No Rational 

Connection Between the $2,600 Contribution Limit and Congress’s 

Important Interests in Lessening the Risk of Circumvention and 

Promoting Disclosure .......................................................................................18 

E. Plaintiffs Have Failed to Show That There Is No Rational Connection 

Between the Limits on Multicandidate PAC Contributions to 

Political Parties and Congress’s Important Interests .......................................18 

CONCLUSION ........................................................................................................................20 

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TABLE OF AUTHORITIES 

Cases Page 

Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) ....................................................17 

Barilla v. Ervin, 886 F.2d 1514 (9th Cir. 1989) overruled on other grounds 

by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) ..........................5 

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ..........................................................................18 

Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................................. 6, 11-14 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ............................................................ 6-7, 11 

Burson v. Freeman, 504 U.S. 191 (1992) ................................................................................11 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ...................................................................15, 17 

Catholic Leadership Coal. of Tex. v. Reisman, No. 13-50582, 2014 WL 3930139 

(5th Cir. Aug. 12, 2014) .......................................................................................................5 

Childress v. City of Richmond, 134 F.3d 1205 (4th Cir. 1998) .................................................3 

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................................10, 12 

Davis v. FEC, 554 U.S. 724 (2008) .......................................................................................3, 5 

Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972) ...................................................17 

Doe v. Va. Dep’t of State Police, 713 F.3d 745 (4th Cir. 2013), cert. denied, 134 S. Ct. 

 1538 (2014) .........................................................................................................................3 

Dunn v. Blumstein, 405 U.S. 330 (1972) ............................................................................... 4-5 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ..............................................................18 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) ........................................................... 3-5 

Honig v. Doe, 484 U.S. 305 (1998) ...........................................................................................4 

Incumaa v. Ozmint, 507 F.3d 281 (4th Cir. 2007) .....................................................................4 

McConnell v. FEC, 540 U.S. 93 (2003), overruled in part on other 

grounds by Citizens United v. FEC, 558 U.S. 310, 365 (2010) .............................10, 12, 19 

Case 1:14-cv-00397-AJT-IDD Document 63 Filed 10/09/14 Page 4 of 28 PageID# 936
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McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (plurality) ............................................. 10-11, 13 

McKeel v. United States, 178 F. Supp. 2d 493 (D. Md. 2001) ..................................................7 

Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236 (D. Md. 1997) ..............................................7 

Mills v. Habluetzel, 456 U.S. 91 (1982) ..................................................................................17 

Miss. Univ. for Women v. Hogan, 458 U.S. (1982) .................................................................17 

Moore v. Olgilvie, 394 U.S. 814 (1969) ....................................................................................5 

NLRB v. Maryland Ambulance Servs. Inc., 192 F.3d 430 (4th Cir. 1999) ..............................11 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) .......................................................................10 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................................................................................19 

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

130 S. Ct. 3544 (2010) .........................................................................................................6 

Rosario v. Rockefeller, 410 U.S. 752 (1973) ......................................................................... 4-5 

Sansotta v. Town of Nags Head, 724 F.3d 533, 542 (4th Cir. 2013) ......................................15 

Sosna v. Iowa, 419 U.S. 393 (1975) ..........................................................................................4 

S. Walk at Broadlands Homeowner’s Ass’n., Inc. v. OpenBand at Broadlands, LLC, 

 713 F.3d 175 (4th Cir. 2013) ..............................................................................................2 

Stop This Insanity, Inc. v. FEC, 761 F.3d 10 (D.C. Cir. 2014), petition for cert. filed, 

-- U.S.L.W. ---- (U.S. Sept. 29, 2014) (No. 14-____) .......................................................12 

Storer v. Brown, 415 U.S. 724 (1974) ................................................................................... 4-5 

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) ...........................................................4 

Van Wie v. Pataki, 267 F.3d 109 (2d Cir. 2001) ........................................................................5 

Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002) ........................................................................16 

Wagner v. FEC, 854 F. Supp. 2d 83 (D.D.C. 2012), 

vacated on jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013) ...........................11, 17 

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Statutes and Regulations 

52 U.S.C. § 30104(a)(4)(A) ...............................................................................................12, 14 

Miscellaneous 

FEC Press Release, Party Committees Raise More Than $1 Billion in 

 2001-2002 (Mar. 20, 2003), http://www.fec.gov/press/ 

press2003/20030320party/20030103party.html ..................................................................8 

 

Niger Innis For Congress 2014 April Quarterly Report (Apr. 15, 2014), 

http://docquery.fec.gov/pdf/568/14960792568/14960792568.pdf ......................................8 

Niger Innis for Congress 2014 Pre-Primary Report (May 21, 2014), 

http://docquery.fec.gov/pdf/384/14941274384/14941274384.pdf ...........................................8 

Niger Innis for Congress 2014 July Quarterly Report (July 14, 2014), 

http://docquery.fec.gov/pdf/152/14961564152/14961564152.pdf ......................................8 

Reid Wilson, Tea Party Attacks John Boehner at Home, Wash. Post (Apr. 22, 2014), 

http://www.washingtonpost.com/politics/tea‐party‐attacks‐boehner‐athome 

 /2014/04/22/f0724228-c96f-11e3-95f7-7ecdde72d2ea_story.html ...............................9 

Reply Brief of the Appellants, Buckley v. Valeo, Nos. 75-436, 75-437, 

1975 WL 171458 (U.S. Nov. 3, 1975) ...........................................................................6 

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Plaintiffs’ responsive brief shows that the Court should grant defendant Federal Election 

Commission’s (“FEC” or “Commission”) motion for summary judgment. Plaintiffs dispute 

virtually none of the FEC’s evidence, which amply demonstrates that the provisions of the 

Federal Election Campaign Act (“FECA”) that plaintiffs challenge are constitutional. 

 Plaintiffs fail to distinguish Buckley v. Valeo, the Supreme Court ruling that squarely 

rejected First and Fifth Amendment claims against FECA’s six-month PAC waiting period and 

$2,600 candidate contribution limit that are materially indistinguishable from plaintiffs’ claims 

here. Those claims are therefore foreclosed. Plaintiffs also do not dispute the FEC’s showing 

that the six-month period remains a vital part of FECA’s anti-circumvention safeguards. 

 Even if Buckley did not control plaintiffs’ claims against the six-month period, the 

evidence here shows that the period constitutionally furthers Congress’s important interests in 

preventing circumvention of the $2,600 limit and reinforcing FECA’s disclosure requirements. 

That evidence demonstrates that new PACs (ones less than six months old) are generally more 

likely to be “dummy”-like groups created in the midst of a campaign by a candidate’s supporters 

attempting to evade disclosure and bootstrap the $5,000 candidate contribution limit reserved for 

broad-based citizen interest groups that have achieved multicandidate PAC status. Plaintiffs 

assert, without evidence, that new PACs cease to carry these risks once they have obtained 51 

contributors. But the evidence shows that Stop PAC itself remained a two-person operation with 

very close ties to one congressional campaign after it quickly obtained 51 contributors. 

 Plaintiffs have also failed to save their equal protection claims. It is plaintiffs’ burden to 

prove that FECA discriminates against them relative to similarly situated groups, but plaintiffs 

have not done so. Indeed, their complementary claims here show that different entities have 

different advantages and disadvantages under FECA. Overall, PACs enjoy benefits others do 

not. FECA limits new PACs to $2,600 candidate contributions due to their higher circumvention 

risks. And it allows “persons” to contribute more than multicandidate PACs to political parties 

so that parties have the resources they need to play their unique role in the political system. 

 The Commission’s motion for summary judgment should be granted. 

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ARGUMENT 

I. PLAINTIFFS’ RESPONSE CONFIRMS THAT THIS COURT LACKS 

JURISDICTION OVER STOP PAC’S CLAIMS 

A. Stop PAC Lacks Standing Because It Does Not Dispute That It Could Have 

Registered Early Enough to Make the Contributions It Wanted to Make 

Plaintiffs’ response effectively confirms that plaintiff Stop Economic Instability caused 

by Democrats (“Stop PAC”) lacks standing because its injuries were self-inflicted. It does not 

deny that it could have registered with the FEC early enough to make the contributions it claims 

FECA prevented it from making. (See Mem. in Opp’n to FEC’s Mot. for Summ. J. (“Pls.’ 

Resp.”) at 2-4 (Doc. No. 61); see also FEC’s Mem. in Supp. of Mot. for Summ. J. (“FEC SJ 

Br.”) at 10-11 (Doc. No. 57-1).) In its complaint, Stop PAC alleged that it wanted to contribute 

in excess of $2,600 to Niger Innis for an election on June 10, 2014; to Dan Sullivan for an 

August 19 election; and to Representative Joe Heck for the November 6 general election. 

(Amended Complaint (“Am. Compl.”) ¶¶ 20-21, 24-25, 28-30 (Doc. No. 37).) The FEC’s 

evidence shows that Stop PAC could have registered more than six months before the first of 

those elections on June 10. Stop PAC’s founder, Greg Campbell, testified that Stop PAC was 

something that had “always” interested him, and he had discussions with Stop PAC’s future 

treasurer Dan Backer about starting Stop PAC at least as early as November 2013 — seven

months before the June 10 election. (FEC SJ Br. at 10-11; FEC’s Resp. in Opp’n to Pls.’ Mot. 

for Summ. J. (“FEC Resp.”) at 6 (Docket No. 60).) Stop PAC nevertheless waited until March 

11, 2014 to register, starting the six-month period just three months before June 10. Stop PAC 

therefore cannot meet its burden of showing that its alleged injuries are fairly traceable to FECA. 

See S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 

175, 181 (4th Cir. 2013) (“Plaintiffs bear the burden of establishing standing.”). 

Stop PAC tries unsuccessfully to escape this result by alleging for the first time that it 

wanted to contribute to other unnamed “candidates it supported throughout its six month waiting 

period” in “various primary elections.” (Pls.’ Resp. at 3.) But that claim is not in the complaint. 

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In fact, Stop PAC does not cite its own complaint once in arguing it has standing. (See id. at 2-

4.) It is a plaintiff’s alleged injury “[a]s pled” that determines whether standing exists, not a later 

“shifting characterization” of that injury in briefing or argument. Doe v. Va. Dep’t of State 

Police, 713 F.3d 745, 755 (4th Cir. 2013), cert. denied, 134 S. Ct. 1538 (2014). 

Stop PAC also wrongly asserts that it has standing because of the actions of other PACs 

that are not parties to this case. (Pls.’ Resp. at 3-4.) Stop PAC cites the FEC’s evidence showing 

that in the past hundreds of PACs have not registered until six months or less before a general 

election. (Id. at 3.) And it argues that “[m]ost ordinary people are not especially interested” in 

starting a PAC until shortly before an election. (Id.) But what third parties have done is 

irrelevant given “the general prohibition against third-party standing.” Childress v. City of 

Richmond, 134 F.3d 1205, 1208 (4th Cir. 1998). Stop PAC lacks standing because its founder 

was especially interested in starting Stop PAC more than six months before June 10, and yet 

chose not to do that. 

B. Stop PAC Admits Its Claims Are Moot and It Cannot Show Those Claims 

Are Capable of Repetition Yet Evading Review 

Even if Stop PAC did have standing, its claims are now moot. Stop PAC admits that it is 

no longer subject to the FECA provisions it challenges. (Pls.’ Resp. at 4, 17.) It attempts to save 

its moot claims by arguing that they are capable of repetition yet evading review. But Stop PAC 

quickly concedes that it cannot meet the “capable of repetition” part of that test because it will 

never be subject to the laws it challenges again. (Id. at 4.) And as the Supreme Court stated just 

six years ago in a FECA case, there must be “a reasonable expectation that the same complaining 

party will be subject to the same action again” for a case to be capable of repetition. Davis v. 

FEC, 554 U.S. 724, 735 (2008) (emphasis added; internal quotation marks omitted); see also 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). 

Stop PAC nevertheless claims that the same-party requirement does not apply here (Pls.’ 

Resp. at 4-5), but the authority it cites does not support that claim. Stop PAC first relies upon a 

dissent on behalf of two Supreme Court justices in a 1988 ruling that long pre-dates Davis and 

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Wisconsin Right to Life, and that did not involve an election or FECA. (Pls.’ Resp. at 4 (quoting 

Honig v. Doe, 484 U.S. 305, 335 (1988) (Scalia, J., dissenting)).) That dissent cites two class 

action lawsuits that Stop PAC also relies upon, and it states that in “some” election law rulings, 

the same-party requirement has not been applied. Honig, 484 U.S. at 335 (Scalia, J. dissenting) 

(citing Rosario v. Rockefeller, 410 U.S. 752, 755 n.4 (1973) and Dunn v. Blumstein, 405 U.S. 

330, 332 & 333 n.2 (1972)); see also Pls.’ Resp. at 5 (citing Rosario and Dunn). Plaintiffs fail to 

mention, however, that the Honig dissent then acknowledges that Rosario and Dunn have been 

“limited to their facts” by more recent Court rulings imposing the same-party requirement “in the 

absence of a class action.” Id. at 336 (Scalia, J. dissenting). Class actions are different because 

even if the class representative’s claim can no longer repeat, the certified class’s claims can 

repeat, and so the court retains jurisdiction. See Sosna v. Iowa, 419 U.S. 393, 399 (1975) (“If 

appellant had sued only on her own behalf . . . the fact that she now satisfies the one-year 

residency requirement . . . would make this case moot and require dismissal. But appellant 

brought this suit as a class action[.]” (citation omitted)); U.S. Parole Comm’n v. Geraghty, 445 

U.S. 388, 398 (1980) (“When . . . there is no chance that the named plaintiff’s expired claim will 

reoccur, mootness still can be avoided through certification of a class prior to expiration of the 

named plaintiff’s personal claim.”).1 This case is not a class action, of course, and so the sameparty requirement applies. 

The other cases plaintiffs rely upon (see Pls.’ Resp. at 4-5) are also distinguishable 

because they involve plaintiffs who, unlike Stop PAC, could satisfy the same-party requirement. 

Each of those cases was mooted by the passing of an election, not (as here) a plaintiff’s 

permanent change in legal status. See Storer v. Brown, 415 U.S. 724, 726-27 (1974) (plaintiffcandidates challenged state ballot-access laws that they would have been subject to again if they 

                                                           

1

 The Fourth Circuit has similarly emphasized that the capable-of-repetition-yet-evadingreview exception is rare outside the class action context. See Incumaa v. Ozmint, 507 F.3d 281, 

289 (4th Cir. 2007) (“In the absence of a class action, jurisdiction on the basis that a dispute is 

capable of repetition, yet evading review is limited to the exceptional situation.” (emphasis 

added; internal quotation marks omitted)). 

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chose to run in a future election); Moore v. Ogilvie, 394 U.S. 814, 815-16 (1969) (same); 

Rosario, 410 U.S. at 759 (plaintiff-voters challenged a requirement that they enroll in a political 

party to vote in that party’s primary election, which the plaintiffs would have been subject to 

again if they decided to switch parties before a future election); Catholic Leadership Coal. of 

Tex. v. Reisman, --- F.3d ---, 2014 WL 3930139, at *10 (5th Cir. Aug. 12, 2014) (plaintiff-PACs 

satisfied the same-party requirement because in future elections they would “again be impacted 

by [Texas’s] treasurer appointment requirement, the 60-day, 500-dollar limit, and the tencontributor requirement” that they challenged).2

 

As Stop PAC points out, the Fifth Circuit in Catholic Leadership held in the alternative 

that the same-party requirement need not apply in election law cases. 2014 WL 3930139, at *10-

11. This out-of-Circuit dictum, however, is inconsistent with the Supreme Court’s recent 

application of the same-party requirement to FECA claims in both Davis and Wisconsin Right to 

Life. And while the Fourth Circuit has never addressed the issue, other Circuits have rejected the 

Fifth Circuit’s approach. See Van Wie v. Pataki, 267 F.3d 109, 114-15 (2d Cir. 2001) (applying 

same-party requirement in an election law case and distinguishing Storer, Rosario, and Dunn); 

Barilla v. Ervin, 886 F.2d 1514, 1519 n.3 (9th Cir. 1989) (finding that an “examination of 

[Storer, Rosario, Dunn, and Moore, among others] reveals no such categorical exception to the 

usual mootness rules” in election law cases), overruled on other grounds by Simpson v. Lear 

Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). 

                                                           

2

 Plaintiffs place special emphasis on Catholic Leadership (Pls.’ Resp. at 5-6), but unlike 

here, one of the plaintiffs there was a corporation that was likely to create more new PACs and 

so would be affected by the waiting period again. 2014 WL 3930139, at *10. Also, the Texas 

law at issue, unlike FECA, imposed a “continuing limitation” on a PAC’s ability to receive 

contributions after the end of its waiting period that would continue to hinder it in future 

elections. Id. In contrast here, Stop PAC does not contend it will suffer any alleged injury due 

to the six-month period or the $2,600 limit now that it is a multicandidate PAC, nor could it. 

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II. PLAINTIFFS CANNOT DISTINGUISH BUCKLEY, WHICH FORECLOSES 

THEIR CLAIMS AGAINST THE SIX-MONTH PERIOD AND THE $2,600 

CONTRIBUTION LIMIT 

Stop PAC’s claims are precluded by Buckley v. Valeo, which squarely upheld the 

constitutionality of the six-month period and other multicandidate PAC qualifications. See 424 

U.S. 1, 35-36, 59 n.67 (1976) (per curiam). That ruling controls because Stop PAC’s as-applied 

claim is “based on the same factual and legal arguments” that Buckley “expressly considered 

when rejecting a facial challenge” to the six-month period. Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150, 157 (D.D.C.) (three-judge court), aff’d mem., 130 S. Ct. 3544 (2010). 

Stop PAC contends that its claim is distinct because it brings an equal protection claim 

that is “challenging only the six-month waiting period, and only as it applies to” new PACs that 

have already satisfied the other two multicandidate PAC requirements (Pls.’ Resp. at 7-8), but 

none of those features distinguishes Stop PAC’s claim. Like Stop PAC, the Buckley plaintiffs 

asserted a separate Fifth Amendment equal protection claim against only the six-month period. 

See 519 F.2d 821, 857-58 & n.94 (D.C. Cir. 1975) (en banc), aff’d in relevant part, 424 U.S. at 

59 n.67. 

While facially upholding the six-month period, the Buckley Court in fact had to consider 

its validity as applied to groups that had satisfied the other two multicandidate criteria, since the 

six-month period would affect only those groups. Indeed, the Buckley plaintiffs argued that the 

six-month period discriminates against not one- or two-person sham groups, but “philosophically 

motivated groups with widely dispersed members who want to respond to an issue as it arises, or 

who coalesce only near election time[.]”   Reply Brief of the Appellants, Buckley v. Valeo, Nos. 

75-436, 75-437, 1975 WL 171458, at *22 (U.S. Nov. 3, 1975). In response, Buckley rejected the 

argument that the criteria discriminates against such “ad hoc organizations.” 424 U.S. at 35. As 

a result, Buckley did not hold that the six-month period was constitutional only as applied to 

“individuals” or “groups of two or three persons,” or “dummy committees,” as plaintiffs assert. 

(Pls.’ Resp. at 7 (internal quotations and citations omitted).) It found that the risk of 

circumvention that such groups present supported the broader facial validity of the six-month 

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“protective shield” as applied even to philosophically motivated new groups with multiple 

members, as Stop PAC claims to be. Buckley, 519 F.2d at 858. 

Finally, as the FEC explained in its opening brief, the six-month period today remains a 

vital part of FECA’s legislative and regulatory anti-circumvention system. (FEC SJ Br. at 18-

19.) This is true even though since Buckley, Congress and the FEC have enacted additional anticircumvention safeguards. (Id.) Plaintiffs’ response does not dispute or otherwise address the 

FEC’s position on this point, and so they have conceded the issue. See, e.g., McKeel v. United 

States, 178 F. Supp. 2d 493, 504 (D. Md. 2001) (“Plaintiff appears to concede this point, as he 

has failed to respond to the government’s argument on this point.”); Mentch v. E. Sav. Bank, 

FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (holding that failure to address defendant’s 

arguments for summary judgment in opposition brief constituted abandonment of claim). 

III. PLAINTIFFS HAVE NOT SHOWN THAT THE SIX-MONTH PERIOD AND 

THE $2,600 CONTRIBUTION LIMIT VIOLATE THE FIRST AMENDMENT

The six-month period and the $2,600 contribution limit are constitutional because they 

are closely drawn to match Congress’s important interests. (FEC SJ Br. at 12-22; FEC Resp. at 

10-23.) Stop PAC concedes that closely drawn scrutiny, which is relatively complaisant, applies 

to its First Amendment claim. (Pls.’ Resp. at 8.) It also does not dispute the FEC’s showing that 

these provisions place “minimal burdens” on a new PAC’s ability to associate with candidates 

and no burden on its ability to speak. (FEC SJ Br. at 21-22.) Finally, Stop PAC does not deny 

that the $2,600 contribution ceiling is closely drawn to match the important government interest 

of limiting the risk and appearance of corruption. (Id. at 12-13.) 

A. Plaintiffs Have Failed to Rebut the FEC’s Showing That the Six-Month 

Period Prevents Circumvention of the $2,600 Contribution Limit 

In its response, Stop PAC either concedes or fails to dispute nearly all of the FEC’s facts 

showing that new PACs — including those with at least 51 contributors and that have made five 

contributions — carry an increased circumvention risk justifying the six-month period. 

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 Stop PAC does not deny that previous scandals involving newly-created dummy-like 

PACs motivated Congressional action to limit the risk of abuse. (FEC SJ Br. at 14.) 

 Stop PAC admits that public interest in an election intensifies as that election approaches 

(Pls.’ Resp. at 11), and it does not dispute that as a result, the likelihood increases during 

that period that a campaign’s supporters will seek all avenues to increase that candidate’s 

odds of winning (see FEC SJ Br. at 15). 

 Stop PAC does not dispute that starting a PAC is easy and that the 51-contributor and 

five-contribution requirements “can be satisfied quickly,” as Stop PAC and intervenor 

American Future PAC have demonstrated. (FEC SJ Br. at 14-15; Mem. in Supp. of Pls.’ 

Mot. for Summ. J. (“Pls.’ SJ Br.”) at 7 (Pls.’ Facts ¶¶ 33-35) (Doc. 56-1).) 

 Stop PAC concedes that the FEC’s statistical data establish that “‘[e]ven without the sixmonth period in place, PACs are often short-lived operations that proliferate just prior to 

elections and spend significant amounts of money, only to disappear before the next 

election.’” (Pls.’ Resp. at 10-11 (quoting FEC SJ Br. at 16).) 

 Finally, Stop PAC does not deny any of the FEC’s material facts regarding Stop PAC’s 

close ties with Niger Innis’s congressional campaign (see Pls.’ Resp. at 15-16), which 

illustrate how easy it would be for a candidate’s supporters to start a PAC to circumvent 

the $2,600 limit in just three weeks but for the six-month period (FEC SJ Br. at 16-18).3 

                                                           

3

 Plaintiffs’ only objection to the FEC’s evidence on this point amounts to a claim that 

Stop PAC chairman Greg Campbell incorrectly recalled the name of his official title with the 

Innis campaign. Plaintiffs assert that Campbell was “merely a ‘scribe’ or ‘writer’ for the 

campaign.” (Pls.’ Resp. at 1, ¶ 9.) However, in addition to evidence the FEC already cited 

regarding Campbell’s policy work for the campaign (FEC SJ Br. at 6, ¶ 11), Niger Innis for 

Congress (“NIFC”) reported disbursements to Campbell for “political strategy services,” 

“political consulting,” and “political strategy consulting services.” See NIFC 2014 April 

Quarterly Report at 38 (Apr. 15, 2014), http://docquery.fec.gov/pdf/568/14960792568/ 

14960792568.pdf; NIFC 2014 Pre-Primary Report at 14 (May 21, 2014), http://docquery.fec.gov 

/pdf/384/14941274384/14941274384.pdf; NIFC 2014 July Quarterly Report at 13 (July 14, 

2014), http://docquery.fec.gov/pdf/152/14961564152/14961564152.pdf. In any event, plaintiffs 

admit that Campbell was on the Innis campaign’s payroll. (Pls.’ Resp. at 16; see also id. at 1, 

¶ 9.) 

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9

With essentially all of the facts of the case conceded, Stop PAC’s claims amount to a 

series of scattershot legal arguments that are meritless and often undermined by those admitted 

facts. First, Stop PAC argues that a PAC with more than 50 contributors is “inherently” a bona 

fide broad-based citizen interest group because that requirement alone ensures the group could 

not have been organized by “two or three persons” looking to create a dummy PAC. (Pls.’ SJ 

Br. at 9-10 (emphasis and internal quotation marks omitted).) But this argument conflates a 

PAC’s “organizers” and its “contributors.” Stop PAC itself illustrates the point. It was 

organized by Campbell and Backer, who then solicited 51 contributors in just two weeks by 

soliciting donations with emails. (FEC SJ Br. at 15.) At that point, Stop PAC was still a twoperson operation run by workers for a single congressional campaign; that fact was not changed 

simply because Campbell and Backer were able to quickly jump through the hoop of obtaining 

51 contributors. Stop PAC does not even attempt to argue that it was at that time on par with 

broad-based groups with many involved organizers.4 

Second, Stop PAC now contends for the first time that Congress enacted the six-month 

period not to prevent circumvention, but to impermissibly “tilt the playing field” in favor of 

“incumbents” with connections to “longstanding, institutionalized power brokers deeply 

entrenched within the Beltway establishment.” (Pls.’ Resp. at 11.) Stop PAC cites no facts to 

support this parade of clichés, which cannot be reconciled with the Tea Party Fund’s own status 

as a multicandidate PAC. That group is anything but part of the “Beltway establishment,” as 

evidenced by its newsworthy support for a high school teacher who ran against Speaker of the 

House John Boehner.5

 (See FEC SJ Br. at 9, ¶ 28.) The legislative history in this case readily 

                                                           

4

 Stop PAC’s argument about the 51-contributor requirement is also incorrect as a matter 

of law. Buckley upheld the validity of the six-month provision despite also upholding the 51-

contributor requirement. 424 U.S. at 35-36. It would make no sense for the Court to have 

concluded that the six-month period helps prevent circumvention of the contribution limits if the 

Court were simultaneously upholding a provision that rendered the six-month period 

superfluous. 

5

 See Reid Wilson, Tea Party Attacks John Boehner at Home, Wash. Post (Apr. 22, 2014), 

http://www.washingtonpost.com/politics/tea-party-attacks-boehner-athome/2014/04/22 

/f0724228-c96f-11e3-95f7-7ecdde72d2ea_story.html. 

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10

demonstrates that Congress was rightfully concerned that new PACs would circumvent the 

$2,600 limit by quickly satisfying the 51-contributor and five-contribution requirements. (FEC 

Resp. at 16 (citing 120 Cong. Rec. S18527 (daily ed. Oct. 8, 1974).) Thus, the six-month period 

does not impose “delay for its own sake,” as plaintiffs claim. (Pls.’ Resp. at 12.) 

Third, the six-month period sets a temporary financial limit, but it does not ban speech. 

Therefore, it stands in stark contrast to the prior restraint laws at issue in the cases upon which 

plaintiffs again rely. (Pls.’ Resp. at 12 (citing prior restraint cases); FEC Resp. at 13-14 

(distinguishing those prior restraint cases).) 

Fourth, Stop PAC claims that the FEC’s position is “contradict[ory]” because the sixmonth period applies only to a new PAC’s candidate contributions and not its contributions to 

parties (Pls.’ Resp. at 12), but the risk of quid pro quo corruption is at its peak when a 

contribution is made directly to a candidate, see McCutcheon v. FEC, 134 S. Ct. 1434, 1452 

(2014) (plurality) (“[T]here is not the same risk of quid pro quo corruption or its appearance 

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

candidate directly.”); Preston v. Leake, 660 F.3d 726, 736 (4th Cir. 2011). To be sure, 

contributions to party committees also bear a serious risk of corruption and its appearance that 

justifies contribution limits. McConnell v. FEC, 540 U.S. 93, 144-45 (2003), overruled in part 

on other grounds by Citizens United v. FEC, 558 U.S. 310, 365 (2010). But as the Supreme 

Court has recently indicated, contributions in excess of just $2,600 per election to a candidate 

can carry a cognizable risk of corruption. (See FEC Resp. at 14-15 (citing McCutcheon, 134 S. 

Ct. at 1452).) Congress was justified, therefore, in establishing the six-month period to prevent 

circumvention of the default $2,600 candidate contribution limit. 

Fifth, although Stop PAC fails to refute the FEC’s showing that a PAC’s close ties to a 

single congressional candidate present a circumvention risk, Stop PAC faults the FEC for not 

also showing “that anyone violated any federal laws or regulations.” (Pls.’ Resp. at 16.) 

However, this case is not an FEC enforcement action, and the six-month period is designed to 

address circumvention in circumstances falling short of otherwise unlawful contributions or 

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11

coordinated expenditures. Further, as plaintiffs have acknowledged, to demonstrate that 

important government interests are served, the FEC need not show actual lawbreaking, but only 

that “experience under the present law confirms a serious threat of abuse.” (Pls.’ SJ Br. at 21 

(quoting McCutcheon, 134 S. Ct. at 1457); see also FEC SJ Br. at 13.) To the extent plaintiffs 

may be arguing that the FEC must show actual circumvention, they ask for more than is required 

by the evidentiary standard they acknowledge applies. See Wagner v. FEC, 854 F. Supp. 2d 83, 

91 (D.D.C. 2012) (“An absence of corruption does not necessarily mean, however, that [a 

FECA] ban is no longer needed. It could simply be an indication that the ban is working.” 

(citing Burson v. Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.)), vacated on 

jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013). 

Finally, Stop PAC argues that the six-month period does not work because Stop PAC 

could have contributed $5,000 to Innis for the general election, even though the “purported 

concerns about the relationship among Stop PAC, Backer, Campbell, and Innis remain.” (Pls.’ 

Br. at 17.) But Stop PAC simply assumes that those concerns would have remained had Innis 

remained a candidate; they cite no evidence at all. In the months since the June 10 primary 

election, Stop PAC could have grown into a broader-based citizen interest group. And in any 

event, the six-month period would have served its purposes for the June 10 primary, even if, like 

any bright-line objective standard, it might not reach every case of potential circumvention. See 

NLRB v. Maryland Ambulance Servs., Inc., 192 F.3d 430, 434 (4th Cir. 1999) (“While bright-line 

rules . . . may run the risk of being over or under-inclusive in their coverage, it is generally 

recognized that the certainty and stability such a rule affords outweighs any harm done when the 

rule is applied evenly.”). 

B. Plaintiffs Have Failed to Rebut the FEC’s Showing That the Six-Month 

Period Furthers the Government’s Interest in Campaign Finance Disclosure 

The D.C. Circuit expressly upheld the six-month period not only because it prevents 

circumvention but also because “[d]uring the waiting period,” new PACs “would be subject to 

the reporting and disclosure provisions” of FECA. Buckley, 519 F.2d at 858, aff’d in relevant 

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part, 424 U.S. at 59 n.67. Those provisions require PACs to file a public report detailing most of 

their receipts and expenditures at least every six months. 52 U.S.C. § 30104(a)(4)(A). The sixmonth period therefore ensures that a group seeking multicandidate PAC status files at least one 

report before becoming eligible to make candidate contributions of up to $5,000 per election. 

Stop PAC makes the vague assertion that “the Supreme Court has never held that the 

Government may . . . limit First Amendment activities, to further an interest in promoting 

campaign finance disclosure.” (Pls.’ Resp. at 13.) While disclosure requirements do not prevent 

anyone from speaking, Buckley did find that disclosure can “seriously infringe” on the First 

Amendment. 424 U.S. at 64. The Supreme Court nevertheless upheld FECA’s general 

disclosure requirements because they (1) “provide[] the electorate with information as to where 

political money comes from”; (2) deter actual and apparent corruption “by exposing large 

contributions . . . to the light of publicity”; and (3) aid law enforcement by “gathering the data 

necessary to detect violations of the contribution limitations[.]” Buckley, 424 U.S. at 66-68 

(internal quotation marks omitted); see also Citizens United, 558 U.S. at 366-67 (“Disclaimer 

and disclosure requirements may burden the ability to speak,” but they are nevertheless “justified 

based on a governmental interest in ‘provid[ing] the electorate with information’ about the 

sources of election-related spending.” (alteration in original) (quoting Buckley, 424 U.S. at 66)). 

Citing the disclosure interest, courts have upheld not only FECA’s disclosure provisions 

but also other parts of FECA — like the provisions plaintiffs challenge here — that prevent 

evasion of those requirements. See McConnell, 540 U.S. at 175 (upholding limit on parties 

soliciting donations to tax-exempt groups because otherwise “parties would avoid FECA’s 

source and amount limitations, as well as its disclosure restrictions”); Stop This Insanity, Inc. v. 

FEC, 761 F.3d 10, 15 (D.C. Cir. 2014) (upholding solicitation and expenditure limits on 

corporate connected political committees because they preserve the effectiveness of “disclosure 

requirements [that] Appellants are endeavoring to avoid”), petition for cert. filed, -- U.S.L.W. ---

- (U.S. Sept. 29, 2014) (No. 14-____). 

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13

C. Plaintiffs Have Failed to Rebut the FEC’s Showing That the Six-Month 

Period and the $2,600 Contribution Limit Are Closely Drawn 

Stop PAC admits that intermediate, closely-drawn scrutiny applies to the six-month 

period and the $2,600 contribution limit. (Pls.’ Resp. at 14.) Unlike strict scrutiny, closelydrawn scrutiny does not require Congress to use the least restrictive means to achieve its goals. 

McCutcheon, 134 S. Ct. at 1444. Yet in arguing that the six-month period is not closely drawn, 

plaintiffs repeatedly and incorrectly claim that the provision is invalid because it applies to some 

new PACs that do not present risks of circumvention. (Pls.’ Resp. at 13-15.) Plaintiffs even go 

as far as to suggest that the six-month period should apply only to a smaller set of PACs that 

present an “actual threat or risk” of circumvention. (Id. at 14.) But closely drawn scrutiny does 

not demand this level of precision. 

In Buckley, the Supreme Court held that the $2,600 contribution limit was closely drawn 

to prevent the risk and appearance of corruption even though “most large contributors do not 

seek improper influence[.]” 424 U.S. at 29. The Court explained, first, that “it is difficult to 

isolate suspect contributions” after the fact, and so a bright-line preventative rule works to limit 

the overall risk. Id. at 30. Second, limiting the appearance of corruption “requires that the 

opportunity for abuse inherent in the process of raising large monetary contributions be 

eliminated.” Id. As for the amount of those limits, the Court held that it had “no scalpel to 

probe” their ideal level under closely drawn scrutiny. Id.

Closely drawn scrutiny similarly establishes the degree of fit required between the sixmonth period and the important interests it serves. That bright-line time period is closely drawn 

to prevent circumvention of the $2,600 limit even though not every new PAC to which it applies 

presents substantial risks of circumvention. It would be difficult if not impossible to identify in 

advance which new PACs are circumvention risks and apply the six-month period only to them. 

The FEC’s evidence shows that the 51-contributor requirement is an insufficient proxy for this 

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determination given the existence of PACs like Stop PAC.6 (See FEC SJ Br. at 16-18.) The 

evidence also shows that new PACs as a whole present an increased risk of circumvention 

relative to older PACs. (Id. at 13-18; FEC Resp. at 15-21; supra Part III.A.) Because the 

circumvention risk is inherent in new PACs, the six-month period is closely drawn to prevent 

new PACs from forming on the eve of elections and almost immediately obtaining the increased 

$5,000 limit. Similarly, Buckley upheld limits on large contributions because they are 

“inherent[ly]” a corruption risk, even though “most large contributors do not seek improper 

influence.” 424 U.S. at 29-30. 

Stop PAC also inappropriately attempts to fine tune the length of the six-month period by 

proposing numerous allegedly less restrictive means that it thinks Congress should have used 

instead to promote its disclosure interest. (Pls.’ Resp. at 13 n.5.) But just as a court has no 

scalpel to probe the precise level of a contribution limit under closely drawn scrutiny, a court 

cannot micromanage the precise length of the six-month period. (FEC SJ Br. at 21.) In fact, that 

length approximates the period of time during which candidate supporters are likely to focus 

more on elections and may be motivated to form dummy-like PACs. The length of the sixmonth period is also closely drawn to prevent circumvention of FECA’s PAC-disclosure 

requirements, since six months is also the longest a PAC may go without filing a disclosure 

report. See 52 U.S.C. § 30104(a)(4)(A). 

IV. PLAINTIFFS HAVE FAILED TO REBUT THE FEC’S SHOWING THAT 

NEITHER THE $2,600 CONTRIBUTION LIMIT NOR THE LIMITS ON 

MULTICANDIDATE PAC CONTRIBUTIONS TO PARTIES VIOLATE THE 

FIFTH AMENDMENT 

A. Plaintiffs Do Not Even Attempt to Show FECA Discriminates Against Them 

Plaintiffs’ equal protection claims fail at the very outset because it is their burden to 

show that they were “treated differently from others with whom [they are] similarly situated and 

                                                           

6

 Indeed, in suggesting that the six-month period is underinclusive, plaintiffs concede that 

PACs with more than 50 contributors and which have made five contributions could display 

“suspicious or concerning . . . conduct” justifying regulation. (Pls.’ Resp. at 15.) 

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15

that the unequal treatment was the result of intentional or purposeful [government decision],” but 

they cannot meet that burden. Sansotta v. Town of Nags Head, 724 F.3d 533, 542 (4th Cir. 2013) 

(second alternation in original). Plaintiffs do not deny that this is the relevant standard. They do 

not dispute that to determine whether FECA has discriminated against new PACs or 

multicandidate PACs, this Court must look to the effect of the statute as a whole on plaintiffs. 

(FEC SJ Br. at 23 (citing Cal. Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981).) Plaintiffs do not 

contest that when considered as a whole, FECA bestows many advantages on all PACs that other 

contributors do not share. (Id. at 23-24.) And finally, plaintiffs do not deny that Stop PAC 

(when it was a new PAC) and the Tea Party Fund each enjoy benefits that the other wants — a 

fact that undermines both entities’ claims that they suffer as a result of discriminatory animus. 

(Id.) 

Plaintiffs’ only response to the FEC’s argument that FECA does not discriminate against 

new PACs or multicandidate PACs appears to be their repeated assertions (often in point 

headings) that FECA is discriminatory. (Pls.’ Resp. at 2, 6, 11, 19-20, 21.) This is clearly not 

enough for plaintiffs to demonstrate that they were discriminated against and thus their claims 

fail on this ground alone. See Cal. Med. Ass’n, 453 U.S. at 200.7

B. Plaintiffs Offer No Evidence Showing New PACs and Multicandidate PACs 

Are Similarly Situated 

Without citing a single piece of evidence, plaintiffs assert no less than seven times in 

their response that new PACs and multicandidate PACs are “materially identical” and “similarly 

situated,” as if through repetition this ipse dixit will become true. (Pls.’ Resp. at 3, 6-7, 10-11, 

18-20.) Plaintiffs had the same opportunity as the FEC to take discovery. And yet all they offer 

are their assertions, which cannot carry their burden to prove that they were “treated differently 

from others with whom [they are] similarly situated.” Sansotta, 724 F.3d at 542. 

                                                           

7

 Plaintiffs also do not deny that the Alexandria Republican City Committee’s claim should 

be dismissed, since it has admitted in discovery that FECA does not treat it differently from any 

other local party committee. (See FEC SJ Br. at 24 n.17 (citing FEC Facts ¶ 13).) 

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Despite plaintiffs’ apparent view that this Court should simply accept that new PACs and 

multicandidate PACs are “identical in every way” (Pls.’ Resp. at 7), plaintiffs themselves 

concede that new PACs and multicandidate PACs can differ greatly. Plaintiffs admit that they 

“do not contend that every single recently registered political committee with 50 contributors that 

has contributed to five or more candidates is materially identical to every single multicandidate 

PAC.” (Id. at 19-20.) In fact, Stop PAC and the Tea Party Fund count themselves among those 

materially differing PACs, as they do not appear to dispute the FEC’s showing that they are 

“‘radically different.’” (Id. at 19 (quoting FEC SJ Br. at 25).) 

Furthermore, plaintiffs describe new PACs and multicandidate PACs in radically 

different terms when it suits their purposes elsewhere in their response. In their standing 

argument, plaintiffs paint new PACs as sympathetic “members of the general public — the true 

grassroots,” while at the same time branding multicandidate PACs as “entrenched, longstanding 

institutional interests.” (Pls.’ Resp. at 3-4; see also id. at 11 (describing multicandidate PACs as 

“power brokers deeply entrenched within the Beltway establishment”).) Plaintiffs likewise 

describe new PACs and multicandidate PACs in starkly different terms in their complaint. (Am. 

Compl. at 1 (describing new PACs as “grassroots organizations that have spontaneously 

mobilized” and multicandidate PACs as “entrenched institutions”).) 

 These statements demonstrate why new PACs and multicandidate PACs are not “in all 

relevant respects alike.” Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (internal 

quotation marks omitted). And the FEC’s evidence, which plaintiffs do not materially dispute, 

shows that new PACs are often unknown commodities that are more likely than established 

multicandidate PACs to be tools for circumvention created to assist a particular candidate. (FEC 

SJ Br. at 13-20; FEC Resp. at 15-22; supra Part III.A-B.) These differences justify different 

contribution limits. 

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C. Plaintiffs Identify No Authority Holding That Making an Increased 

Campaign Contribution Is a Fundamental Right and So Rational Basis 

Scrutiny Applies to Their Claims 

If the Court finds it necessary to apply any level of constitutional scrutiny to plaintiffs’ 

equal protection claims, rational basis scrutiny is the proper standard. The FEC’s opening brief 

stated that “we are aware of no court that has ever held that making a contribution is a 

‘fundamental right’ for equal protection purposes.” (FEC SJ Br. at 26.) In response, plaintiffs 

have also not identified any such case; yet they still claim that closely drawn scrutiny should 

apply. (Pls.’ Resp. at 18-19.) In support of that contention, they rely on one case involving a 

content-discriminatory law banning pickets, not contribution limits. (Id. at 18 (citing Police 

Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 102 (1972).) They also cite a FECA case 

where the Supreme Court did what this Court should do: decline to apply any scrutiny since the 

plaintiffs failed to carry their burden of proving that the FECA contribution limits they challenge 

discriminate against them in the first place. Cal. Med. Ass’n, 453 U.S. at 200.8

 

 The fact that courts apply intermediate scrutiny to First Amendment claims against 

contribution limits does not require that the same level of scrutiny apply in the equal protection 

context. The Supreme Court has only applied intermediate scrutiny in equal protection cases 

involving “quasi-suspect” classes. See, e.g., Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 

219 (2000) (noting the existence of intermediate scrutiny for “cases involving classifications on a 

basis other than race”); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (gender); 

Mills v. Habluetzel, 456 U.S. 91, 98 (1982) (illegitimate children). We are aware of no Supreme 

Court case that has applied intermediate scrutiny to protect something akin to a quasifundamental right, and plaintiffs do not assert — and they cannot show — that new PACs or 

multicandidate PACs are a “suspect” or “quasi-suspect” class. In the absence of such a right or 

class, the Supreme Court has applied rational basis review. 

                                                           

8

 Plaintiffs also rely upon a vacated D.C. district court case that applied intermediate 

scrutiny to an equal protection challenge to FECA’s ban on contributions by federal contractors. 

(Pls.’ Resp. at 19 n.8 (citing Wagner, 854 F. Supp. 2d at 96, vacated on jurisdictional grounds, 

717 F.3d at 1017).) 

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In the only appellate decision of which we are aware in which a court expressly applied a 

particular level of scrutiny to an equal protection challenge to a contribution limit, that court 

applied rational basis scrutiny. See Blount v. SEC, 61 F.3d 938, 946 n.4 (D.C. Cir. 1995). 

Plaintiffs here fault the way the plaintiff in Blount raised its equal protection claim (Pls.’ Resp. at 

19 n.8), but plaintiffs do not dispute that the claim was in fact raised, and that the D.C. Circuit 

did in fact apply rational basis scrutiny. This Court should do the same. 

D. Plaintiffs Have Failed to Show That There Is No Rational Connection 

Between the $2,600 Contribution Limit and Congress’s Important Interests 

in Lessening the Risk of Circumvention and Promoting Disclosure 

On rational basis review, it is plaintiffs’ burden “to negative every conceivable basis 

which might support” the laws they claim are unconstitutional. FCC v. Beach Commc’ns, Inc., 

508 U.S. 307, 315 (1993) (internal quotation marks omitted). Plaintiffs’ response does not 

contest that it was at the very least rational for Congress to require new PACs to comply 

temporarily with the $2,600 contribution limit to lessen the risks of circumvention and nondisclosure. As the FEC’s undisputed evidence shows, this limit is not only rationally related but 

closely drawn to promoting those important government interests. 

E. Plaintiffs Have Failed to Show That There Is No Rational Connection 

Between the Limits on Multicandidate PAC Contributions to Political Parties 

and Congress’s Important Interests 

The Tea Party Fund puts forth very little opposition (see Pls.’ Resp. at 20-21) to the 

FEC’s showing that the limits on contributions from multicandidate PACs to political parties 

serve two important government interests (see FEC SJ Br. at 27-30). At the outset, the Tea Party 

Fund does not deny that that those limits “impose minimal burdens on PACs,” as the FEC 

demonstrated in its opening brief. (FEC SJ Br. at 29-30; see also FEC Resp. Br. at 27-29.) 

Plaintiffs also do not argue that there is no rational connection between the 

multicandidate-PAC-to-party limits and the government’s important interests in lessening the 

risk and appearance of corruption and ensuring parties have sufficient funds. Congress limited 

all contributions to political parties to limit the risk and appearance of corruption that the 

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19

Supreme Court has recognized may otherwise result. (See FEC SJ Br. at 28 (citing McConnell, 

540 U.S. at 144-45).) Congress then set the particular limit on contributions from “persons” 

(including individuals and new PACs) to political parties at a higher level to help the parties 

maintain sufficient funding to continue to fulfill their unique role in the political process.9 (Id. at 

28-29.) Plaintiffs do not dispute that the Constitution required Congress to set contribution 

limits at levels that would permit the parties to continue to amass the resources necessary for 

effective advocacy. (Id. at 29 (citing Randall v. Sorrell, 548 U.S. 230, 247 (2006)).) And 

plaintiffs do not dispute the FEC’s showing that increasing the limit on contributions from 

persons to parties has in fact worked to provide the parties with needed resources. (Id.) Nor do 

plaintiffs deny that as a result, Congress was justified in concluding that increases to other limits 

on contributions to political parties have been unnecessary for candidates and parties to advocate 

effectively. (Id.) When determining how to enhance party funding in light of 2002’s soft-money 

ban, Congress rationally decided to increase the limits on contributions from individuals to 

parties. (Id. at 29.) Plaintiffs do not dispute the FEC data demonstrating that multicandidate 

PACs have generally focused their efforts on directly supporting candidates, not parties. (Id. At 

30 (citing FEC Facts ¶¶ 32-33).) Nor do plaintiffs dispute the FEC’s showing that 

multicandidate PACs have historically provided parties with relatively little funding as compared 

to individuals. (Id. at 29 & n.22.) Plaintiffs even concede that “individuals play an ‘important 

role . . . in funding political-party activity.’” (Pls.’ Resp. at 21 (quoting FEC SJ Br. at 28).) 

The only objection plaintiffs raise to the FEC’s showing is that plaintiffs claim the reason 

that individuals have played an important role in party funding is “because the FEC allows them 

to contribute twice as much.” (Pls.’ Br. at 21.) But the data the FEC relies upon is from the 

2001-2002 period when individuals and PACs could make unlimited soft-money donations to the 

                                                           

9

 The FEC never argued that Congress imposed limits on contributions to parties in the 

first place to allow parties to maintain their important role in the political system, as plaintiffs 

seem to suggest. (Pls.’ Resp. at 21.) Preventing the risk and appearance of corruption, of course, 

is a constitutionally sufficient reason for imposing contribution limits, as plaintiffs recognize. 

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20

parties. (See FEC SJ Br. at 29 & nn.22, 24 (citing FEC Press Release, Party Committees Raise 

More Than $1 Billion in 2001-2002 (Mar. 20, 2003).) Even at that time, individuals contributed 

far more to parties than multicandidate PACs did.10 Accordingly, Congress was justified in 

setting increased limits on contributions from persons to political parties but declining to do the 

same for other entities including multicandidate PACs. The party limits are thus constitutional 

under either rational basis or intermediate scrutiny. 

CONCLUSION 

 For the foregoing reasons, the FEC’s motion for summary judgment should be granted. 

Respectfully submitted, 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

* Admitted pro hac vice

October 9, 2014 

Holly J. Baker* 

Kevin P. Hancock* 

/s/ 

Esther D. Gyory (VA Bar #76826) 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

                                                           

10 See http://www.fec.gov/press/press2003/20030320party/20030103party.html. For 

example, the third table featured in this press release, called “Democratic Nonfederal Accounts,” 

indicates that in 2001 and 2002 the Democratic National Committee raised in excess of $32 

million from individuals but just over $500,000 from multicandidate PACs. Id. 

Case 1:14-cv-00397-AJT-IDD Document 63 Filed 10/09/14 Page 26 of 28 PageID# 958
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

CERTIFICATE OF SERVICE 

I hereby certify that on October 9, 2014, I will electronically file the foregoing with the 

Clerk of Court using the CM/ECF system, which will then send a notification of such filing to 

the following counsel: 

Dan Backer, Esq. 

DB Capitol Strategies PLLC 

717 King Street, Suite 300 

Alexandria, VA 22314 

DBacker@DBCapitolStrategies.com 

Michael Thomas Morley, Esq. 

Coolidge-Reagan Foundation 

1629 K Street, Suite 300 

Washington, D.C. 20006 

morley@coolidgereagan.org 

Jerad Najvar 

Najvar Law Firm 

4151 Southwest Freeway, Suite 625 

Houston, TX 77027 

jerad@najvarlaw.com 

Case 1:14-cv-00397-AJT-IDD Document 63 Filed 10/09/14 Page 27 of 28 PageID# 959
2

 /s/ 

Esther D. Gyory (VA Bar # 76826) 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

EGyory@fec.gov 

Case 1:14-cv-00397-AJT-IDD Document 63 Filed 10/09/14 Page 28 of 28 PageID# 960