United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemental Memorandum in Opposition 

to Defendant FEC’s Motion for Summary Judgment

In accordance with this Court’s May 5, 2009 order, Plaintiffs Republican National

Committee et al. respectfully file this supplemental memorandum in opposition to Defendant

FEC’s Motion for Summary Judgment (“FEC Mem.”) (Dkt. 56) and subsequent Supplemental

Memorandum (“FEC Supp. Mem.”) (Dkt. 82). A supplemented Statement of Material Issues and

Objections to Defendant’s Statement of Undisputed Facts follows this memorandum.1

In previous briefing, Plaintiffs explained that:2

(a) Campaign finance laws may only regulate speech that is unambiguously campaign

related (Pls.’ Mem. at 7-18; Pls.’ Reply Mem. at 1-10);

1

 For the convenience of the Court, a version highlighting the supplemented material is

included as an attachment. 

2

 Plaintiffs incorporate by reference their Memorandum in Support of Summary Judgment

(“Pls.’ Mem.”) (Dkt. 21), Reply Memorandum in Support of Summary Judgment (“Pls.’ Reply

Mem.”) (Dkt. 50), and Memorandum in Opposition to Defendant Federal Election Commission’s

Motion to Dismiss (“Pls.’ Op. to FEC Mot. to Dis.”) (Dkt. 27), Memorandum in Opposition to

Defendant FEC’s Motion for Summary Judgment (“Pls.’ Op.”) (Dkt. 61), and Supplemental

Memorandum in Opposition to Defendant FEC’s Supplemental Motion to Dismiss (“Pls.’ Supp.

Op. to FEC Mot. to Dis.”) (Dkt. 80).

Supplemental Summary

Judgment Opposition 1

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(b) Plaintiffs’ intended activities are not unambiguously campaign related, and furthermore,

as applied to Plaintiffs’ intended activities the Federal Funds Restriction is not narrowly

tailored or closely drawn to any compelling or important government interest in

preventing corruption or its appearance (Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 10-25;

Pls.’ Op. at 4-8);

(c) Plaintiffs’ intended activities do not directly benefit any federal candidate or officeholder

(Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 12-18; Pls.’ Op. at 8-13);

(d) For any gratitude on the part of federal candidates or officeholders to give rise to

corruption or its appearance, the candidates or officeholders must receive a direct benefit,

which here they do not (Pls.’ Reply Mem. at 21-24; Pls.’ Mem. at 24-27);

(e) To the extent McConnell v. FEC, 540 U.S. 93 (2003), found that contributions to national

political parties were “suspect,” irrespective of their end use, it premised this conclusion

on the historical practice of national parties to provide large donors of non-federal funds

with preferential access to federal candidates and officeholders (Pls.’ Mem. at 21-24;

Pls.’ Reply Mem. at 18-21);

(f) The RNC will not provide donors of non-federal funds or state funds with preferential

access to any federal candidate or officeholder and will not involve federal candidates or

officeholders in the solicitation of such funds (Pls.’ Mem. at 21-23; Pls.’ Reply Mem. at

18-21); 

(g) Plaintiffs’ intended activities are too far removed from federal candidates and federal

elections to be regulated (Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 12-18).

Supplemental Summary

Judgment Opposition 2

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Plaintiffs respond here to the issues of fact and law asserted in the FEC’s supplemental

memorandum in support of summary judgment (“FEC Supp. Mem.”) (Dkt. 82). As shall be

shown, Plaintiffs have a concrete, consistent, well-understood policy of not giving federal-fund

contributors preferential access to federal candidates and officeholders. This concrete policy will

be extended to non-federal-fund donors, so that they will have neither preferential access nor

“greater influence,” FEC Supp. Mem. at 1. The evidence shows that Chairman Steele’s plans for

RNC activities with non-federal funds is consistent with RNC’s verified intentions.

Before arguing the facts, the FEC argues that McConnell precludes an analysis

examining how money is spent because it focused on whether a “contribution limit . . . prevents

corruption or the appearance thereof.” FEC Supp. Mem. at 2 n.2. McConnell was, of course, a

facial analysis that did not distinguish whether various uses of non-federal funds were

unambiguously campaign related. So it did not consider the as-applied question here. 

The FEC asserts that the RNC’s intended redistricting, state activities (in New Jersey and

Virginia), and grassroots lobbying will “affect” or “have an impact on future elections.” FEC

Supp. Mem. at 6-7; FEC Supp. Stmt. of Facts at ¶¶ 62-69. But any such possible affect/impact is

too remote and speculative to be cognizable, as evidenced by the actual test for regulable

activity, i.e., government may only regulate “spending that is unambiguously related to the

campaign of a particular federal candidate,” Buckley v. Valeo, 424 U.S. 1, 80 (1976) (emphasis

added). The FEC points to no particular candidate whose campaign is, or will be,

unambiguously affected/impacted by these activities. In fact, Chairman Steele specifically

testified that the state activities might have no impact on RNC’s fortunes, FEC Exh. 42, Steele

Supplemental Summary

Judgment Opposition 3

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Dep. at 98:14-99:4, which is a far cry from the required unambiguous relation to the campaign of

a particular federal candidate.

That this unambiguously-campaign-related analysis controls, instead of some amorphous

potential “effect,” is clear from FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTLII”) (Roberts, C.J., joined by Alito, J.) (stating holding). WRTL-II noted that “[t]he FEC,

intervenors, and the dissent below contend that McConnell [v. FEC, 540 U.S. 93 (2003),] already

established the constitutional test for determining if an ad is the functional equivalent of express

advocacy: whether the ad is intended to influence elections and has that effect.” Id. at 2664.

WRTL-II observed that “Buckley had already rejected an intent-and-effect test for distinguishing

between discussions of issues and candidates” because, given “the difficulty of distinguishing

between discussion of issues on the one hand and advocacy of election or defeat of candidates on

the other, . . . analyzing the question in terms of intent and of effect would afford no security for

free discussion.” Id. at 2665 (quotation marks and citations omitted). WRTL-II also rejected any

intent-and-effect test. Id. As WRTL-II was plainly applying the unambiguously-campaign-related

principle as a means of protecting issue advocacy, it rejected any intent-and-effect test as part of

it. That analysis extends to all activity to be analyzed under the unambiguously-campaign-related

principle. In fact Buckley employed the unambiguously-campaign-related analysis precisely to

narrow overbroad tests that would look at expenditures “‘any expenditure . . . relative to a

clearly identified candidate,’” 424 U.S. at 42 (citation omitted) (emphasis added), and “‘for the

purpose of . . . influencing’ the nomination or election of candidates for federal office,” id. at 77

(citation omitted) (emphasis added). With WRTL-II’s affirmance of Buckley’s rejection of any

intent-and-effect test and tests based on some vague “relati[on]” or “influenc[e],” it is too late in

Supplemental Summary

Judgment Opposition 4

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the day for the FEC and intervenor to be reasserting a vague effect/impact test based on some

amorphous notion of possible, but uncertain, relation to or influence upon some potential,

unparticularized candidate’s future campaign.

WRTL-II was simply following the unambiguously-campaign-related analysis asserted

and adopted in McConnell, 540 U.S. 93. In McConnell, the campaign-finance reformers

(McCain-Feingold’s primary sponsors and supporting counsel) argued that, although the

electioneering-communication definition went beyond express advocacy, it was a constitutional

“adjustment of the definition of which advertising expenditures are campaign related.” Brief for

Intervenor-Defendants Senator John McCain et al. at 57, McConnell, 540 U.S. 93 (“Reformers’

Brief”) (available at http://supreme.lp.findlaw.com/supreme_court/briefs/02-1674/02-1674.

mer.int.cong.pdf). The reformers meant unambiguously “campaign related,” arguing that the

“[d]isclosure rules . . . ‘shed the light of publicity on spending that is unambiguously campaign

related but would otherwise not be reported.’” Id. at 58 (quoting Buckley v. Valeo, 424 U.S. 1, 81

(1976).3 They urged approval of electioneering-communication regulation based on Buckley’s

unambiguously-campaign-related analysis:

Two general concerns emerge from the Court’s discussion: Statutory requirements in this 

area should be clear rather than vague, in part so they will not ‘dissolve in practical 

application,’ 424 U.S. at 42; and they should be ‘directed precisely to that spending that is 

unambiguously related to the campaign of a particular federal candidate,’ id. at 80; see id. 

at 76-82. Those are precisely the precepts to which Congress adhered in framing Title II.

Id. at 62 (quoting Buckley) (emphasis added).

3

The reformers conceded the necessity of bright-line tests, arguing that their new

“standards for defining which ads will be treated as campaign-related squarely serve a

compelling interest in using clear and objective lines to frame any rule that affects speech.” Id.

Supplemental Summary

Judgment Opposition 5

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So Senators McCain and Feingold, the reform community, and Congress itself

recognized (a) the dissolving-distinction problem and (b) the unambiguously-campaign-related

analysis as identifying regulable communications. Their “precepts” are that the regulation be

neither (1) vague nor (2) overbroad (beyond unambiguously-campaign-related activity). Counsel

for the Intervenor-Defendant Van Hollen argued this in McConnell. See Reformers’ Brief at

inside cover (counsel list).4

That the unambiguously-campaign-related analysis was correct is confirmed by the fact

that McConnell adopted the reformers’ analysis to approve regulation of “electioneering

communications” in addition to express advocacy. See OB–25-27. McConnell said the

constitutional analysis required “avoid[ing] . . . vagueness and overbreadth,” 540 U.S. at 192,

and this “overbreadth” precept was “‘[t]o insure that the reach’ of the disclosure requirement was

‘not impermissibly broad’”—citing the Buckley passage to which the reformers pointed for the

unambiguously-campaign-related precept, id. at 191 (citation omitted).5

4

To rely on the unambiguously-campaign-related principle then and eschew it now is the

sort of bait and switch that Chief Justice Roberts denounced in Wisconsin Right to Life v. FEC,

546 U.S. 410 (2006) (“WRTL-I”): “In McConnell against FEC, you stood there and told us that

this was a facial challenge and that as-applied challenges could be brought in the future. This is

an as-applied challenge and now you’re telling us that it’s already been decided. It’s a classic

bait and switch.” Transcript at 25 (available at http://www.supremecourtus.gov/oral_arguments/

argument_transcripts/04-1581.pdf).

5

This unambiguously-campaign-related analysis has been expressly recognized by FEC

Commissioners. In their Statement of Reasons (Dec. 16, 2003) in Matters Under Review

(“MURs”) 5024, 5154, and 5146 (available at www.fec.gov), Chair Weintraub and

Commissioners Thomas and McDonald noted that Buckley expressed concern about reporting

provisions “that might be applied broadly to communications discussing public issues which also

happened to be campaign issues,” and so imposed the express-advocacy construction. Id. at 2.

“[T]he Buckley Court explained the purpose of the express advocacy standard,” they declared,

which “was to limit application of the . . . reporting provision to ‘spending that is unambiguously

Supplemental Summary

Judgment Opposition 6

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In sum, the unambiguously-campaign-related principle controls all of campaign-finance

law.6

 And it requires the analysis to be based upon whether campaign-finance laws are restricted

to “spending that is unambiguously related to the campaign of a particular federal candidate,”

Buckley, 424 U.S. at 80 (emphasis added). The effort of the FEC and Intervenor-Defendant Van

Hollen to revert to a long-rejected amorphous analysis must be rejected.

Not only is the unambiguously-campaign-related principle a constitutional first-principle

that must be satisfied as a threshold matter in campaign-finance law (so that it overrides other

analyses), but any potential “appearance of corruption” as to activities that are not

unambiguously campaign related is entirely too remote to be cognizable for constitutional

analysis. As the opinion stating the holding in WRTL-II put it when faced with a similar

stretching of “corruption” to unrecognizable lengths, “Enough is enough,” id. at 2672 (opinion of

related to the campaign of a particular federal candidate.’” Id. (emphasis in Statement) (quoting

Buckley, 424 U.S. at 80). The Commissioners quoted 424 U.S. at 82: “[u]nder an express

advocacy standard, the reporting requirements would ‘shed the light of publicity on spending

that is unambiguously campaign related . . . .’” Statement at 2 (emphasis in Statement). A

January 22, 2009 Statement of Reasons in MUR 5541 (November Fund) by Vice Chair Petersen

and Commissioners Hunter and McGahn emphasized the need to “fully incorporate important

principles in recent judicial decisions,” including FEC v. Wisconsin Right to Life, 127 S. Ct.

2652 (2007) (“WRTL-II”), “and the Fourth Circuit’s persuasive decision in . . . [North Carolina

Right to Life v.] Leake[, 525 F.3d 274 (4th Cir. 2008)].” Id. at 2 (citations omitted).

6

The most recent decision to recognize the unambiguously-campaign-related analysis is

Broward Coalition of Condominiums v. Browning, No. 4:08-cv-445, 2009 WL 1457972 (N.D.

Fla. May 22, 2009) (order granting summary judgment to Plaintiffs). Broward—applying strict

scrutiny to an “electioneering communications” provision imposing PAC-style burdens on

groups doing ballot-initiative (and candidate) advocacy—recognized the major-purpose test, the

unambiguously-campaign-related analysis, and the fact that only two types of communications

may be regulated (express-advocacy and federally-defined “electioneering communications”). It

held that because WRTL-II said the Court had “‘never recognized a compelling interest in

regulating ads . . . that are neither express advocacy nor its functional equivalent,’” neither

would it. 2009 WL 1457972, at *5 (quoting WRTL-II, 127 S. Ct. at 2671).

Supplemental Summary

Judgment Opposition 7

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Roberts, C.J., joined by Alito, J.). And in Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

(“WRTL-I”), the Supreme Court unanimously rejected the notion that a broadly-worded

McConnell holding precluded an as-applied challenge, which is the essence of the FEC’s

recycled argument here. If there is one obvious thing that WRTL-I and WRTL-II teach, it is that a

facial McConnell holding does not preclude an as-applied holding that significantly narrows the

facial holding. And in Citizens United v. FEC (No. 08-205), the Supreme Court has just ordered

reargument as to whether the electioneering-communication prohibition as narrowed in WRTL-II

is adequately protecting issue advocacy as applied or whether McConnell’s facial upholding of

the electioneering-communication prohibition must be overruled, perhaps along with Austin v.

Mich. State Chamber of Commerce, 494 U.S. 652 (1990) (upholding corporate “expenditure”

prohibition). See http://origin.www.supremecourtus.gov/docket/08-205.htm (Supreme Court

docket with order showing topics of reargument).

I. Plaintiffs Do Not Provide Preferential Access to Any Donors.

Just as no preferential access is now provided to federal donors, the RNC will not

provide non-federal donors with preferential access to any federal candidate or officeholder.

Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 19, 30; FEC Mem. Exh. 4 at 7; FEC Mem. Exh. 1, Josefiak

Dep. at 126:20-130:3; FEC Exh. 42, Steele Dep. at 51:10-18, 55:13-22, 111:12-21. Regardless of

the amount of non-federal funds or state funds a contributor may give to any of the RNC’s

accounts, they will receive no preferential access to any federal candidate or officeholder in

return. FEC Mem. Exh. 1, Josefiak Dep. 126:20-130:3. The record from McConnell does not

support the statement that “trading of soft money for access to federal officeholders was

rampant” at the RNC prior to BCRA’s enactment. The FEC’s supplemented statement—that

Supplemental Summary

Judgment Opposition 8

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“Chairman Steele does not plan to develop such a policy until after this lawsuit is resolved, and

he does not know what the content of that policy will be”—conflates concepts and statements

that may not be conflated and creates an implication that mischaracterizes the evidence. This

may clearly be seen by what comes before and what comes after the supplemented material.

Before the supplemented material is a statement that there is “no written policy . . . against

preferential access,” and following the supplemented statement is an acknowledgment of “an

unwritten policy” against preferential access. FEC Exh. 42, Steele Dep. at 11:5-21. So there is a

policy against “providing donors with preferential access to federal candidates and

officeholders” in place, as set out in the cited evidence in this Response. Any implication that

having such a policy awaits the end of this lawsuit is erroneous. Policies arising out of the scope

of what this case may allow clearly must await instruction from the court, so such policies will of

course be formulated after final resolution of this matter. To be clear, here is what the evidence

actually shows as to RNC policies.

A. The RNC Does Not Facilitate Intimate Meetings Between Donors and

Federal Candidates and Officeholders

By “preferential access” RNC does not mean merely “an opportunity to briefly speak

with an officeholder” at an event, but rather “some secret cabal. You’re getting some special

favor . . . .” See FEC Exh. 42, Steele Dep. at 50:12-20. In Plaintiff Republican National

Committee’s Discovery Responses (“RNC Discovery Responses”), in response to Interrogatory 5,

a question about “preferential access,” the RNC said that it “does not facilitate one-on-one

meetings between federal candidates and officeholders and any contributor of federal funds. Nor

does the RNC encourage federal candidates or officeholders to meet one-on-one with or have

Supplemental Summary

Judgment Opposition 9

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other individualized contact with any RNC contributor.” FEC Exh. 4, RNC Discovery Responses

at 7; see also Plaintiffs’ Statement of Undisputed Material Facts at ¶ 24 (no “preferential access”

with examples); Pls’ Mem. Exh. 1, Beeson Affid. at ¶ 19 (same). Although the RNC does have

events to which individuals are invited because they have already contributed federal funds at

particular levels (they do not pay to attend the event and they pay their own way to get there), at

such events there is only opportunity for a brief greeting, handshake, and photo-op, but not any

more substantive one-on-one meeting. See FEC Mem. Exh. 1, Josefiak Dep. at 72:12-73:19; FEC

Exh. 42, Steele Dep. at 48:8-49:22.

In its discovery responses, the RNC has verified that the policy against granting

preferential access will continue. Specifically, “in regard to both federal and potential nonfederal contributions, the RNC would instruct its staff not to facilitate any one-on-one meetings

or other individualized contact between contributors and federal candidates and officeholders.”

FEC Exh. 4, RNC Discovery Responses at 6-7.

In its opening paragraph of Part I, the FEC reasserts the argument that it should not be

“legally possible for an unverifiable, self-imposed limitation to serve as the basis for a

constitutional exemption.” FEC Supp. Mem. at 2. But that is exactly what the Supreme Court did

in FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”), where it recognized

an exemption to the prohibition on corporate express-advocacy “independent expenditures” for

what are now called MCFL-corporation, id. at 263-64. That exemption was reasserted as to the

electioneering-communication prohibition in McConnell, 540 U.S. at 209-11. The exemption

was premised on the following self-imposed limitations that were no more “verifiable” than the

RNC’s present self-imposed policies:

Supplemental Summary

Judgment Opposition 10

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“First, it was formed for the express purpose of promoting political ideas, and cannot

engage in business activities. If political fundraising events are expressly

denominated as requests for contributions that will be used for political purposes,

including direct expenditures, these events cannot be considered business activities.

This ensures that political resources reflect political support. Second, it has no

shareholders or other persons affiliated so as to have a claim on its assets or earnings.

This ensures that persons connected with the organization will have no economic

disincentive for disassociating with it if they disagree with its political activity.

Third, MCFL was not established by a business corporation or a labor union, and it

is its policy not to accept contributions from such entities. This prevents such

corporations from serving as conduits for the type of direct spending that creates a

threat to the political marketplace.”

McConnell, 540 U.S. at 210-11 (MCFL citation omitted). Specifically, the following MCFLcorporation policies are all self-imposed: choosing to be an ideological organization, eschewing

business activities, having no economic incentives for association, and having a policy (which need

not be written) of not accepting corporate or union contributions.

As to the FEC’s notions that (1) new evidence demonstrates preferential access and (2) “the

RNC has no plans to prevent its [non-federal-funds] donors from exploiting that access,” FEC Supp.

Mem. at 2, the evidence shows that there is, and will be, no “preferential access” because the RNC

has a concrete, well-recognized, longstanding policy against allowing preferential access. Just as

the FEC here attempts again to stretch the concept of “corruption” beyond recognition by insisting

that there is a corruption potential in activity that is not unambiguously campaign related, supra, so

it attempts to stretch the concept of “preferential access” beyond recognition by making it any de

minimis contact. Putting these two stretches together exponentially increases the remoteness of any

constitutionally cognizable corruption potential. A de minimis contact between a donor and a federal

candidate or officeholder is no more constitutionally cognizable as “preferential access” than the de

minimis receipt of corporate funds or de minimis business activities is cognizable in determining

Supplemental Summary

Judgment Opposition 11

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MCFL-corporation status.7

 If a de minimis corporate contribution is non-cognizable for preventing

so-called corporate-form corruption (recognition of this “corruption” in Austin is being reconsidered,

supra), then a de minimis donor contact with a federal candidate or officeholder is non-cognizable

as “preferential access” for preventing quid-pro-quo corruption that was already stretched in

McConnell to its outer limits to encompass “gratitude,” 540 U.S. at 145, and here would have to be

stretched to unambiguously-campaign-related activity with no direct benefit for a federal candidate

or officeholder.

The FEC claims that current contributor events are more “intimate” than the FEC

previously thought. FEC Supp. Mem. at 3. But the examples cited still involve substantial

numbers of people. And regardless of the size of the event, the evidence of actual “access”

shows it to be de minimis at most. The FEC claims that the RNC’s guest lists demonstrate that

donors “who contribute the most to the party receive their reward in the form of time to interact”

with officeholders. Id. This is not supported by the record. In fact, the RNC does not provide its

federal funds contributors with individualized one-on-one contact, i.e., “preferential access,”

with federal candidates or officeholders. Plaintiffs’ Supplemented Statement of Material Issues

(“Pls.’ Supp. SMI”) ¶¶ 7-8, 11. The ability of contributors of federal funds and federal

candidates to “interact” at RNC donor events consists of the possible opportunity for a donor to

7

 This is the holding of every federal circuit court to consider the issue. See FEC v.

Survival Education Fund, 65 F.3d 285 (2d Cir. 1995); FEC v. NRA, 254 F.3d 173 (D.C. Cir.

2001); Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), cert. denied, 513 U.S. 1127 (1995)

(Minnesota’s exemption); Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir.

1997) (FEC’s exemption); North Carolina Right to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999)

(North Carolina’s exemption); cert. denied, 528 U.S. 1153 (2000); Beaumont v. FEC, 278 F.3d

261 (4th Cir. 2002) (FEC’s exemption), holding not appealed in FEC v. Beaumont, 539 U.S. 146

(2003).

Supplemental Summary

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ask a question during the question and answer session following the candidate or officeholder’s

speech. Id. at 8, 11; see also id. (citing Josefiak Dep. 77:8-11 (noting that donors who attend

such events and express their opinions often have divergent positions on the same issue)); FEC

Exh. 42, Steele Dep. 48:8-49:22 (noting that most donors only interact with officeholders for a

few seconds). The FEC’s conclusory speculation that a small number of guests invited to an

event automatically leads to meaningful interaction between donors and officeholders is not

supported by the record. 

Plaintiffs’ intended activities pose no threat of corruption or its appearance. Gratitude on

the part of candidates and officeholders, which contributors might try to exploit to gain undue

influence, can only exist where a direct benefit is conferred on the candidate or officeholder.

Absent a direct benefit, any gratitude on the part of candidates and officeholders is too attenuated

to pass constitutional muster. The FEC fails to demonstrate how contributions earmarked for and

used for activities that do not directly benefit any federal candidate or officeholder give rise to

undue influence. Pls.’ Reply Mem. at 21-24; Pls.’ Op. at 8-13. And if such attenuated levels of

gratitude may give rise to regulation, the breadth of federal campaign finance regulation would

be limitless because such a theory would justify Congress directly regulating state elections,

including contributions given directly to state candidates, state party or charitable organizations

by donors, because federal candidates might be grateful for them. Furthermore, the failure to do

so now makes the current law underinclusive. See Republican Party of Minnesota v. White, 536

U.S. 765, 780 (2002) (“As a means of pursuing the objective of open-mindedness that

respondents now articulate, the announce clause is so woefully underinclusive as to render belief

in that purpose a challenge to the credulous.”). 

Supplemental Summary

Judgment Opposition 13

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Plaintiffs have stated repeatedly that they will not provide non-federal-fund donors with

preferential access to any federal candidate or officeholder. SMF ¶ 11. The FEC relies on the fact

that RNC Chairman Steele, testifying as an RNC officer and not on behalf of the organization,

stated that he has not created a policy to prevent such access. FEC Supp. Mem. at 5. But RNC

representatives have testified that no preferential access is currently granted to any donor and no

preferential access will be granted to any donor in the future. Pls.’ SMF ¶ 11. This is a concrete,

longstanding policy to which nothing is added by putting it in writing. 

B. Only Federal Donors Will Have Access to Events with Federal Candidates

and Officeholders

As stated in its discovery responses, the “RNC does provide contributors of federal funds

with certain opportunities and invitations to certain events not offered to the public at large.”

FEC Exh. 4, RNC Discovery Responses at 7. However, access to these donor events at the

various levels is now and will continue to be based only on federal funds, not non-federal funds.

At such a time as RNC is able to accept non-federal funds, those will not be counted toward

these major-donor, federal-fund clubs. Membership in a donor club is a perk available only to

donors of federal funds. There may be events for donors of only non-federal funds, but there will

be no federal candidates or officeholders at such events, Pls’ Reply Mem. Exh. 1, Josefiak Dep.

at 208:2-209:3; Pls’ Mem. Exh. 1, Beeson Affid. at ¶ 19, nor will federal candidates solicit nonfederal funds, since that has been made illegal by another unchallenged provision of the BCRA. 

C. Federal Candidates and Officeholders Will Not Solicit Non-Federal Funds

As stated above, federal candidates or officeholders cannot and will not solicit nonfederal funds. Pls’ Reply Mem. Exh. 1, Josefiak Dep. at 208:2-209:3 (“federal officers, office

Supplemental Summary

Judgment Opposition 14

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holders and candidates would not be involved in these fund-raising efforts, period.”); Pls’ Mem.

Exh. 1, Beeson Affid. at ¶ 19 (“the RNC will not use any federal candidates or officeholders to

solicit funds for any of the Accounts.”). Therefore, the RNC will “not include federal candidates

in the [non-federal] fund-raising event at all or officeholders.” Pls’ Reply Mem. Exh. 1, Josefiak

Dep. at 208:7-9.

II. Plaintiffs’ Planned Activities Are Supported by Facts.

The FEC argues that RNC’s intended activities “are defined so vaguely that . . . it would

retain nearly unfettered authority to decide for itself which activities constitute permissible uses

of its [non-federal funds].” FEC Supp. Mem. at 5. This is not true. First, the intended activities

are clearly described in the Amended Complaint (Dkt. 67), which language is repeated in the

Beeson Affidavit and in briefing, all of which was for RNC. Moreover, Thomas Josefiak as

RNC’s designated spokesperson for deposition, reiterated the activities in which RNC wishes to

engage. FEC Mem. Exh. 1, Josefiak Dep. at 157:11-160:20, 162:8-14. Second, the FEC’s

evidence cited does not support its assertion, as shall be discussed. Third, this Court’s opinion

will, of course, define the parameters of permissible activity, and Chairman Steele has repeatedly

said that once a decision is issued he will assure complete compliance with its parameters. FEC

Exh. 42, Steele Dep. at 59:16-19, 78:2-8, 79:9-17.

The FEC argues that Richard Beeson’s affidavit is no longer evidence because he has

been replaced as political director and Chairman Steele was unfamiliar with Beeson’s affidavit.

FEC Supp. Mem. at 6. But Beeson’s affidavit spoke to what the RNC, the lead plaintiff here,

intended to do at the timing of filing and currently intends to do if permitted by the Court. He

said “I have personal knowledge of RNC and its activities,” Beeson Affid. at ¶ 2, and he

Supplemental Summary

Judgment Opposition 15

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 15 of 41
repeatedly says “[t]he RNC intends to . . . ,” id. at ¶¶ 3, 5, 8, 10, 11, 12, 13 (“plans” instead of

“intends”), 15, 16 (emphasis added). See also id. at ¶¶ 18 (“The RNC is ready and able to do all

these activities . . . .”), 19 (“The RNC will not aid contributors . . . .”). And the language of

Beeson’s affidavit stating intended activities is drawn directly from the Amended Complaint, in

which RNC is a plaintiff, not Beeson. There is no evidence that RNC no longer wishes to do

these intended activities, so the intent still stands, along with the clear description of the

activities.

The FEC’s argument as to Chairman Steele’s deposition alters none of these verified

facts as to RNC. Nowhere does he say anything that conflicts with the established facts of RNC’s

intent. While Steele is the new chairman, Thomas Josefiak spoke for the RNC in its Rule

30(b)(6) deposition. In any event, Chairman Steele’s deposition answer addressed the problem of

not knowing whether there would be a favorable ruling and, if so, when it might be issued,

giving rise to “speculation” at the present as to further specificity. So he said that what might be

practically possible “[i]f the ruling comes next week” differs from what would be possible “two

weeks before the general election,” and “I wouldn’t speculate as to what we would do until I

know what I can do.” FEC Exh. 42, Steele Dep. at 69:22-70:9. The same is true about his

deposition statement about not having thought about how he would go about non-federal funds

fundraising, to which the FEC points, FEC Supp. Mem. at 7, i.e., the timing would affect what

one might do and there is no point to spending valuable time on further specifics until RNC

knows whether it can do its intended activities. Chairman Steele’s statements contradict nothing

previously asserted.

Supplemental Summary

Judgment Opposition 16

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 16 of 41
III. Plaintiffs’ Recent Testimony Supports Their Prior Position 

The FEC makes several points in Part III, which are essentially irrelevant to the required

constitutional analysis in this case. The FEC points to Chairman Steele’s statement that

redistricting affects federal elections, but that sort of effect has no more to do with the requisite

unambiguously-campaign-related analysis than other things that more remotely “affect”

elections. For example, RNC has a prolife plank, which if implemented as law in a particular

state might conceivably “affect” population numbers upwards and thus “affect” redistricting,

which in turn could “affect” elections in a remote sense. But if the RNC wants to run ads

promoting the prolife position, federal government may not restrict that issue advocacy since it is

not unambiguously related to a federal candidate’s campaign.

Conclusion

For the reasons stated, the FEC’s motion for summary judgment should be denied. 

Supplemental Summary

Judgment Opposition 17

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 17 of 41
Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Clayton J. Callen*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Supplemental Summary

Judgment Opposition 18

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 18 of 41
United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemented Statement of Material Issues and 

Objections to Defendant’s Statement of Undisputed Facts

Plaintiffs’ RNC et al. submit the following statement of material issues in opposition to

the Federal Election Commission’s (“FEC”) supplemented statement of undisputed material

facts. LCvR 7(h). The following numbered paragraphs correspond with the FEC’s numbered

paragraphs.1

1. Response: “The RNC is a national party, and not just a federal party.” Pls.’

Reply Mem. Exh. 1, Josefiak Dep. at 138:11-18 (emphasis added).

As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

1

 Plaintiffs’ Exhibits 1-5 were attached to Plaintiffs’ motion for summary judgment

(Dkt. 21). Plaintiffs’ Exhibits 6-7 were attached to Plaintiffs’ initial statement of material issues.

Plaintiffs’ exhibit attached to their reply memorandum in support of summary judgment (Dkt.

50) is herein referred to as Pls. Reply Mem. Exh. 1. Defendant FEC’s Exhibits 1-25 were

attached to its memorandum in opposition to Plaintiffs’ motion for summary judgment, (Dkt.

39), and Defendant FEC’s Exhibits 26-41 were attached to the FEC’s motion for summary

judgment. (Dkt. 56).

Plaintiffs’ Supplemented

Statement of Material Issues 1

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 19 of 41
McConnell, 251 F. Supp. 2d at 335 (Henderson, J.) (citations omitted). These activities in state

and local elections “are substantial both in their importance to the RNC’s mission and in their

resource commitment.” Id. “Even for elections in which there is no federal candidate on the

ballot, the RNC trains state and local candidates, donates to state and local candidate campaign

committees, funds communications calling for the election or defeat of state and local candidates

and engages in get-out-the-vote activities.” Id. at 336. Furthermore, a political “party has its own

traditions and principles that transcend the interests of individual candidates and campaigns

. . . .” See Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 629 (1996)

(“Colorado I”) (Kennedy, J., concurring in the judgment and dissenting in part). Parties have a

“unique role in serving” First Amendment principles. Id. “[P]olitical parties are unique; they are

neither super multicandidate political committees formed entirely to support candidates for

federal office nor political associations completely uninvolved in candidate advocacy.”

McConnell, 251 F. Supp. 2d at 766 (Leon, J.). “[P]arties encourage ‘democratic nationalism’ by

nominating and electing candidates and by engaging in dialogues concerning public policy issues

of national importance.” Id. at 820-21. 

2. Response: See supra Response ¶ 1.

3. Response: See supra Response ¶ 1.

4. Response: See supra Response ¶ 1.

5. Response: When the President of the United States is a Republican, he will offer

a suggestion of a chairperson to the RNC. This person must then receive an independent majority

vote of the 168 members of the RNC in order to become the chairperson. The members may

choose not to accept the President’s suggestion. FEC Exh. 1, Josefiak Dep. 193:2-194:5. When

Plaintiffs’ Supplemented

Statement of Material Issues 2

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 20 of 41
the President is a Republican, the White House cooperates with the RNC, but the President

maintains no control over the RNC and the RNC alone decides how it will spend its resources.

Id. at 194:6-12. 

6. Response: The RNC has, on occasion, entered into name-for-name list exchanges

with campaigns, which may include voter preference information and/or donor information. See

FEC Exh. 1, Josefiak Dep. 98:8-14. The FEC’s statement that RNC “assists Members of

Congress by distributing their ‘message point[s]’ to the party’s ‘base,” mischaracterizes

Chairman Steele’s statement. First, the statement omits the context, which is as to “purposes” for

“initiat[ing] contact with federal officeholders.” Second, “assists” implies a regular event, when

“they’ve been very few.” Third, he said the purpose was “to have them get us information on a

subject,” which he elaborated to be “their message point,” i.e., “the issue,” especially in the

context of legislation so as to “have the understanding of what it is they want, what they’re

trying to do.” When asked why he would “seek to gain that understanding,” he responded that

the purpose would be to “educate our base as to [cited public issues] and the solutions that

legislative leaders are looking to propose . . . .” See FEC Exh. 42, Steele Dep. at 29:5-22. So the

evidence is that there are occasional calls to federal officeholders about issues, such as

legislation, to understand what the proposed legislation is to accomplish. The FEC’s statement

implies regular contact for the purpose of obtaining and communicating an officeholder’s

undefined “message point[s],” creating the impression that these might be some sort of political

talking points under discussion, instead of a discussion about public issues. 

7. Response: The RNC provides its contributors of federal funds with certain

opportunities and invitations to events not offered to the public at large. FEC Exh. 4, RNC

Plaintiffs’ Supplemented

Statement of Material Issues 3

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 21 of 41
Discovery Responses at 7. These opportunities involve nothing more than attending events at

which federal candidates and officeholders sometimes speak, and do not involve any one-on-one

contact or other special access. FEC Exh. 1, Josefiak Dep. at 73:3-77:4 (describing RNC

fundraising events for federal funds contributors). No matter the size of the event, the RNC does

not facilitate individualized one-on-one contact between federal funds contributors and federal

officeholders or candidates. FEC Exh. 4, RNC Discovery Responses at 7; FEC Exh. 1, Josefiak

Dep. at 73:3-77:4, 126:20-130:3; FEC Exh. 42, Steele Dep. at 51:10-18. Where a contributor

attends an event at which the contributor might have opportunity to speak with a federal

officeholder or candidate, “[t]ypically these conversations are about three to seven seconds long:

Hi. How are you.” FEC Exh. 42, Steele Dep. at 48:15-17. The RNC does not encourage federal

officeholders to meet with contributors of federal funds. FEC Exh. 4, RNC Discovery Responses

at 7; FEC Exh. 42, Steele Dep. at 46:1-4. Nor does the RNC pass on to candidates or

officeholders requests from donors to meet with such candidates or officeholders. FEC Exh. 1,

Josefiak Dep. at 127:1-128:1. The RNC also does not arrange for contributors to participate in

conference calls with federal candidates or officeholders. FEC Exh. 42, Steele Dep. at 46:8-12.

8. Response: See supra Response ¶ 7. To the extent “an attending donor has an

opportunity to inform the federal candidate or officeholder about the donor’s opinion on

legislation or other issues,” it would occur by the possible opportunity to ask the candidate a

question during the question and answer session following a candidate or officeholder’s speech.

FEC Exh. 1, Josefiak Dep. 75:22-77:8-11 (noting that donors who attend such events and

express their opinions often have divergent positions on the same issue).

9. Response: No response. 

Plaintiffs’ Supplemented

Statement of Material Issues 4

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 22 of 41
10. Response: See infra Response ¶¶ 11, 16.

11. Response: See supra Response ¶ 7. Just as no preferential access is now provided

to federal donors, the RNC will not provide non-federal donors with preferential access to any

federal candidate or officeholder. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 19, 30; FEC Mem. Exh.

4 at 7; FEC Exh. 1, Josefiak Dep. 126:20-130:3; FEC Exh. 42, Steele Dep. at 46:1-19, 51:10-18,

55:13-22, 111:12-21. Regardless of the amount of non-federal funds or state funds a contributor

may give to any of the RNC’s accounts, they will receive no preferential access to any federal

candidate or officeholder in return. FEC Exh. 1, Josefiak Dep. 126:20-130:3. The record from

McConnell does not support the statement that “trading of soft money for access to federal

officeholders was rampant” at the RNC prior to BCRA’s enactment. 

The FEC’s supplemented statement—that “Chairman Steele does not plan to develop

such a policy until after this lawsuit is resolved, and he does not know what the content of that

policy will be”—conflates concepts and statements that may not be conflated and creates an

implication that mischaracterizes the evidence. This may clearly be seen by what comes before

and what comes after the supplemented material. Before the supplemented material is a

statement that there is “no written policy . . . against preferential access,” and following the

supplemented statement is an acknowledgment of “an unwritten policy” against preferential

access. FEC Exh. 42, Steele Dep. at 11:5-21. So there is a policy against “providing donors with

preferential access to federal candidates and officeholders” in place, as set out in the cited

evidence in this Response. Any implication that having such a policy awaits the end of this

lawsuit is erroneous. Policies arising out the scope of what this case may allow clearly must

await instruction from the court, so such policies will of course be formulated after final

Plaintiffs’ Supplemented

Statement of Material Issues 5

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 23 of 41
resolution of this matter. To be clear, here is what the evidence actually shows as to RNC

policies.

(1) The RNC does not and will not facilitate intimate meetings between donors and

federal candidates and officeholders. By “preferential access” RNC does not mean merely “an

opportunity to briefly speak with an officeholder” at an event, but rather “some secret cabal.

You’re getting some special favor . . . .” . See FEC Exh. 42, Steele Dep. at 50:12-20. In RNC

Discovery Responses, in response to Interrogatory 5, a question about “preferential access,” the

RNC said that it “does not facilitate one-on-one meetings between federal candidates and

officeholders and any contributor of federal funds. Nor does the RNC encourage federal

candidates or officeholders to meet one-on-one with or have other individualized contact with

any RNC contributor.” FEC Exh. 4, RNC Discovery Responses at 7 at 7; see also Plaintiffs’

Statement of Undisputed Material Facts at ¶ 24 (no “preferential access” with examples); Pls’

Mem. Exh. 1, Beeson Affid. at ¶ 19 (same). Although RNC does have events to which individuals

are invited because they have already contributed federal funds at particular levels (they do not

pay to attend the event and they pay their own way to get there), at such events there is only

opportunity for a brief greeting, handshake, and photo-op, but not any more substantive one-onone meeting. See FEC Exh. 1, Josefiak Dep. at 72:12-73:19; FEC Exh. 42, Steele Dep. at 48:8-

49:22.

In its discovery responses, the RNC has verified that the policy against granting

preferential access will continue. Specifically, “in regard to both federal and potential nonfederal donations, the RNC would instruct its staff not to facilitate any one-on-one meetings or

Plaintiffs’ Supplemented

Statement of Material Issues 6

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 24 of 41
other individualized contact between contributors and federal candidates and officeholders.”

FEC Exh. 4, RNC Discovery Responses at 6-7.

(2) As stated in its discovery responses, the “RNC does provide contributors of federal

funds with certain opportunities and invitations to certain events not offered to the public at

large.” FEC Exh. 4, RNC Discovery Responses at 7. However, access to these donor events at the

various levels is now and will continue to be based only on federal funds, not non-federal funds.

At such a time as RNC is able to accept non-federal funds, those will not be counted toward

these major-donor, federal-fund clubs. Membership in a donor club is a perk available only to

donors of federal funds. There may be events for donors of only non-federal funds, but there will

be no federal candidates or officeholders at such events, and they will not solicit non-federal

funds. Pls.’ Reply Mem. Exh. 1, Josefiak Dep. at 208:2-209:3; Pls’ Mem. Exh. 1, Beeson Affid. at

¶ 19.

(3) Federal candidates or officeholders cannot and will not solicit non-federal funds. Pls’

Reply Mem. Exh. 1, Josefiak Dep. at 208:2-209:3 (“federal officers, office holders and

candidates would not be involved in these fund-raising efforts, period.”); Pls’ Mem. Exh. 1,

Beeson Affid. at ¶ 19 (“the RNC will not use any federal candidates or officeholders to solicit

funds for any of the Accounts.”). Therefore, the RNC will “not include federal candidates in the

[non-federal] fund-raising event at all or officeholders.” Pls’ Reply Mem. Exh. 1, Josefiak Dep.

at 208:7-9.

12. Response: Donors contribute to the RNC “because they want to assist the

Republican National Committee.” FEC Exh. 1, Josefiak Dep. 74:18-75:2. 

13. Response: No response.

Plaintiffs’ Supplemented

Statement of Material Issues 7

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 25 of 41
14. Response: The FEC points to no evidence that prior to the enactment of the

BCRA federal officeholders solicited funds on behalf of the RNC. As for the RNC’s intended

activities in this case, no federal candidate or officeholder will solicit funds to any of the RNC’s

intended accounts. Pls.’ Mem. Exh. 1, Beeson Aff. ¶ 19.

15. Response: The RNC does not distribute donor lists or donor information to

federal candidates or officeholders, Pls.’ Exh. 6, Josefiak Dep. 95:6-96:13, with the exception of

the exchanges referenced in Response ¶ 6.

16. Response: Gratitude on the part of candidates and officeholders, which

contributors might try to exploit to gain undue influence, can only exist where a direct benefit is

conferred on the candidate officeholder. Absent a direct benefit, any gratitude on the part of

candidates and officeholders is too attenuated to pass constitutional muster. Plaintiffs’ intended

activities do not directly benefit any federal candidate or officeholder and thereby pose no threat

of corruption or its appearance. To the extent that McConnell discussed corruption arising from

gratitude on the part of candidates, which “donors would seek to exploit,” it did so only in the

context of non-federal funds used “for the specific purpose of influencing a particular

candidates’s federal election.” McConnell, 540 U.S. at 146. After all, the Federal Funds

Restriction was enacted “to address Congress’ concerns about the increasing use of soft money

. . . to influence federal elections.” Id. at 132 (emphasis added). 

17. Response: See supra Response ¶¶ 7, 16. To the extent donors inform federal

candidates or officeholders of contributions to the RNC’s intended Accounts, it would be no

different than if they informed the officeholder of their contribution to a state candidate, state

party, or charitable organization of the officeholder’s liking. See FEC Exh. 42, Steele Dep. at

Plaintiffs’ Supplemented

Statement of Material Issues 8

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 26 of 41
61:4-62:13 (stating that the RNC does not have the right to prevent donors from independently

informing officeholders of their contributions to the intended Accounts). The FEC

mischaracterizes Chairman Steele’s testimony by the use of “would,” saying that donors “would”

attend . . . and contact officials in other ways,” when “could” would be correct. 

18. Response: See supra Response ¶¶ 7, 11-12,16.

19. Response: No response.

20. Response: No response.

21. Response: There is regular communication between the RNC and all its members

because the members “make up the Republican National Committee.” FEC Exh. 1, Josefiak Dep.

200:20-201:1. There is no “near-constant strategic communication between state parties and the

RNC.” Id. 200:13-201:16.

22. Response: A political “party has its own traditions and principles that transcend

the interests of individual candidates and campaigns . . . .” See Colorado I, 518 U.S. at 629

(Kennedy, J., concurring in the judgment and dissenting in part). Parties have a “unique role in

serving” First Amendment principles. Id. “[P]olitical parties are unique; they are neither super

multicandidate political committees formed entirely to support candidates for federal office nor

political associations completely uninvolved in candidate advocacy.” McConnell, 251 F. Supp.

2d at 766 (Leon, J.). “[P]arties encourage ‘democratic nationalism’ by nominating and electing

candidates and by engaging in dialogues concerning public policy issues of national

importance.” Id. at 820-21.

23. Response: No response.

24. Response: No response.

Plaintiffs’ Supplemented

Statement of Material Issues 9

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 27 of 41
25. Response: No response.

26. Response: See supra Response ¶ 22.

27. Response: No response.

28. Response: No response.

29. Response: In regard to state and local party committees, which are required to

use federal funds only for “federal election activity,” McConnell facially upheld the Federal

Funds Restriction because it was narrowly focused on regulating “those contributions to state

and local parties that can be used to benefit federal candidates directly.” 540 U.S. at 167

(emphasis added). To the extent the Court discussed such parties’ relationships with federal

candidates and officeholders as justifying regulation, it applied this analysis only when activities

directly benefitted federal candidates. Id. at 156 n. 51 (“Thus, in upholding § 323(b) . . . we rely

not only on the fact that [it] regulate[s] contributions used to fund activities influencing federal

elections, but also that [it] regulate[s] contributions to or at the behest of entities uniquely

positioned to serve as conduits for corruption”). Nevertheless, the FEC mischaracterizes

statements made by CRP’s representatives regarding their relationship with federal candidates as

indicative of preferential access. Because CRP’s intended activities do not directly benefit

federal candidates and because CRP does not give preferential access to any donor, evidence

regarding CRP’s relationship with federal candidates and officeholders is irrelevant.

30. Response: See supra Response ¶ 29.

31. Response: See supra Response ¶ 29.

32. Response: See supra Response ¶ 29.

33. Response: See supra Response ¶ 29.

Plaintiffs’ Supplemented

Statement of Material Issues 10

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 28 of 41
34. Response: See supra Response ¶ 29. The FEC mischaracterizes the statement of

the CRP Chairman in this letter. As stated in regards to the RNC in Response ¶11, a mere

introduction does not rise to the level of “preferential access.” The FEC fails to establish that the

CRP has a practice of providing donors with preferential access. 

35. Response: See supra Response ¶ 29.

36. Response: See supra Response ¶ 16. No federal candidates will directly benefit

from Plaintiffs’ intended activities and so this statement is irrelevant. To the extent that

McConnell discussed corruption arising from gratitude on the part of candidates, which “donors

would seek to exploit,” it did so only in the context of non-federal funds used “for the specific

purpose of influencing a particular candidates’s federal election.” McConnell, 540 U.S. at 146. 

37-45. Response: No response.

46. Response: Expenditures by committees and organizations not parties to this suit

are irrelevant.

47-50. Response: No response. 

51. Response: The Federal Funds Restriction prohibits national committees of a

political party and its officials from soliciting or using any non-federal funds,2 regardless of their

purpose. They may solicit and use only federal funds. 2 U.S.C. § 441i(a). The Federal Funds

Restriction prohibits state and local committees of a political party from using non-federal funds

2

 “Federal funds” are those complying with federal limits, bans, and reporting

requirements. 11 C.F.R. § 300.2(g). “Non-federal funds” are those that do not comply with

federal limits and bans. Id. § 300.2(k). Depending on how a state’s law compares with federal

law, money raised under state law may or may not be “non-federal.” As used in this brief,

however, the term “state funds” – which, unlike “federal funds” and “non-federal funds,” is not a

term of art – means non-federal funds that comply with the law of the state in question.

Plaintiffs’ Supplemented

Statement of Material Issues 11

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 29 of 41
for “federal election activity.” Id. § 441i(b). “Federal election activity” includes: (1) voter

registration activity in the 120 days before a federal election; (2) “voter identification, get-outthe-vote activity or generic campaign activity” in connection with elections for federal office;

and (3) public communications3

 that clearly identify and “promote,” “attack,” “support,” or

“oppose” (“PASO”) a federal candidate. Id. § 431(20). The Supreme Court has noted that

limiting the amount of contributions “in turn” limits expenditures. Citizens Against Rent Control

v. Berkeley, 454 U.S. 290 (1981) (“CARC”). In CARC, the Supreme Court employed “exacting

scrutiny,” 454 U.S. at 294, to strike down a limit on contributions to ballot-measure committees,

noting that “[a]part from the impermissible restraint on freedom of association, but virtually

inseparable from it in this context, [the limit] imposes a significant restraint on the freedom of

expression of groups and those individuals who wish to express their views through

committees.” Id. at 298. CARC noted that, as with the present case, individuals could “make

expenditures without limit” on a ballot measure “but may not contribute beyond the $250 limit

when joining with others to advocate common views.” Id. The Court concluded that “[p]lacing

limits on contributions which in turn limit expenditures plainly impairs freedom of expression.”

Id.

52. Response: Even if it were true, this statement is irrelevant because the FEC bears

the burden of demonstrating why the regulation of such activities is necessary and justified. But

moreover, because of the difficulty in raising federal funds, and the need to use federal funds for

federal purposes, the RNC has engaged in little, if any, of the activities for which it seeks relief

3 Defined in 2 U.S.C. § 431(22) and 11 C.F.R. § 100.26.

Plaintiffs’ Supplemented

Statement of Material Issues 12

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 30 of 41
in this action to use non-federal funds and state funds. FEC Exh. 4, Pls.’ Discovery Responses at

4-5; FEC Exh. 1, Josefiak Dep. 141:13-144:14, 160:12-20. And to the extent the RNC has

engaged in any of these activities, it has been forced to use federal funds, which by there very

nature are raised for federal purposes, for these non-federal activities like supporting state

candidates. Id. If it were not limited to federal funds, the RNC could engage in additional speech.

Id.

53. Response: See supra Response ¶ 52.

54. Response: This statement is irrelevant. The fact that CRP has used federal funds

to support federal candidates in the past has no bearing on this case. What is relevant in this case

is CRP’s intended use of state funds for ballot measure advocacy and state election activities,

which activity is prohibited by the Federal Funds Prohibition. Pls.’ Exh. 3, Christiansen Dec.

¶¶ 16, 19. 

55. Response: This statement is irrelevant. The fact that RPSD has used federal funds

to support federal candidates in the past has no bearing on this case. What is relevant in this case

is RPSD’s intended use of state funds for ballot measure advocacy and state election activities,

which activity is prohibited by the Federal Funds Prohibition. Pls.’ Exh. 5, Tetlow Dec. ¶¶ 5-6.

56. Response: If RPSD’s obtains the judicial relief sought in this action, RPSD will

undertake its intended activities using state funds. If RPSD does not obtain the requested judicial

relief, it will continue to use federal funds for its activities that qualify as “federal election

activity” to the extent federal funds are available. FEC Exh. 3, Buettner Dep. 76:2-12.

57. Response: See supra Response ¶ 52.

58. Response: See supra Response ¶ 52.

Plaintiffs’ Supplemented

Statement of Material Issues 13

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 31 of 41
59. Response: See supra Response ¶ 1.

59.1 Response: The RNC has stated its intent to fund specific types of activities in the

2009 New Jersey elections with non-federal dollars, if permitted. Pls.’ Mem. Exh. 1, Beeson Aff.

at ¶¶ 3-4. Chairman Steele’s deposition answer addressed the problem of not knowing whether

there would be a favorable ruling and, if so, when it might be issued, giving rise to “speculation”

at the present as to further specificity. So he said that what might be practically possible “[i]f the

ruling comes next week” differs from what would be possible “two weeks before the general

election,” and “I wouldn’t speculate as to what we would do until I know what I can do.” FEC

Exh. 42, Steele Dep. at 69:22-70:9. His statement contradicts nothing previously asserted. 

60. Response: The RNC’s intended activities in state and local elections where no

federal candidates appear on the ballot do not directly benefit any federal candidate. The FEC’s

own expert in McConnell noted that contributions to state candidates in odd-numbered years do

not affect federal elections. See 251 F. Supp. 2d at 830 (Leon, J.) (citing Cross Exam. of Defense

Expert Mann at 71). Nor does voter registration, voter identification, or GOTV activities in

elections where no federal candidates appear on the ballot directly benefit any federal candidate.

See McConnell, 251 F. Supp. 2d at 831 (Leon, J.). Any voter information obtained by the RNC

in these state and local elections is “worthless” for use in future federal elections absent a

continuing enhancement process on the part of the RNC. Defendant Van Hollen’s Opposition to

Plaintiffs’ Motion for Summary Judgment, Exh. 11, Josefiak Dep. 246:2-13, 19-22 (Dkt. 41).

Voter registration lists must be constantly updated as people move into and out of the relevant

jurisdiction. Pls.’ Exh. 6, Josefiak Dep. 247:10-17. And “just because you register [to vote] once

doesn’t mean you can vote in every election after that if your circumstances change.” Id. at

Plaintiffs’ Supplemented

Statement of Material Issues 14

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248:14-16. The RNC’s involvement in state and local elections is not to use those elections as a

‘practice field’ for future federal elections, or to benefit federal candidates in some other way.

The “RNC is a national party, and not just a federal party.” Pls. Reply Mem. Exh. 1, Josefiak

Dep.138:11-18 (emphasis added). 

As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

McConnell, 251 F. Supp. 2d at 335 (citations omitted) (Henderson, J.) (emphasis added). “[T]he

RNC trains state and local candidates, donates to state and local candidate campaign committees,

funds communications calling for the election or defeat of state and local candidates and engages

in get-out-the-vote activities.” Id. at 336. These activities in state and local elections “are

substantial [] in their importance . . .” to the RNC. Id. at 335. In its role as a national party, the

RNC seeks to assist state and local candidates, not just federal candidates.

61. Response: See supra Response ¶ 60. The FEC’s citations to Chairman Steele’s

deposition mischaracterize the question and answer and makes an impossible implication. The

question was about intended solicitation of “contributions on behalf of specific state candidates,”

FEC Exh. 42, Steele Dep. at 104:18-22. Such contributions would be made directly to the

candidates, not RNC, so there would be no “transfer to state candidates.” As to the implication

that fundraising for candidates would make them conduits for soft-money “sham issue

advertising,” that is impossible for two reasons. First, persons contributing to a candidate would

expect their contributions to be used to advance the candidate’s own candidacy, and candidates

need funds for their own campaigns, so candidates would be highly unlikely to use campaign

Plaintiffs’ Supplemented

Statement of Material Issues 15

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 33 of 41
contributions for non-campaign expenses (and state law might forbid it). Second, state

candidates cannot use “any funds for a communication” that promotes, attacks, supports, or

opposes a federal candidate unless the funds are federal-funds, which makes the use of nonfederal funds for “sham issue ads” impossible. See 2 U.S.C. § 441i(f). Moreover, Chairman

Steele indicated that any restrictions imposed by court opinion and order would be faithfully

implemented when such an opinion and order would be issued, which could not be done in

advance of such an opinion and order. 

62. Response: See supra Response ¶ 1.

63. Response: The RNC intends to use the Grassroots Lobbying Account to pay for

radio, television, and internet grassroots lobbying advertisements on relevant public-policy

issues. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 11. The first two issues the RNC would like to

address are issues being debated by the 111th Congress: (1) “card check” legislation, which

allows unionization without secret-ballot elections for workers; and (2) legislation to revive the

“Fairness Doctrine,” which would require radio station owners to provide equal time on matters

of public importance or risk losing their broadcast licenses. Id. The RNC has provided true and

correct copies of two ads that the RNC intends to broadcast: “Card Check” and “Freedom of

Speech.” The Supreme Court in WRTL II provided the means to distinguish alleged bogus issue

ads from genuine issue advocacy. The Court found that WRTL’s grassroots lobbying ads were

genuine issue advocacy because:

First, their content is consistent with that of a genuine issue ad: The ads focus on

a legislative issue, take a position on the issue, exhort the public to adopt that

position, and urge the public to contact public officials with respect to the matter. 

Second, their content lacks indicia of express advocacy: The ads do not mention

Plaintiffs’ Supplemented

Statement of Material Issues 16

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 34 of 41
an election, candidacy, political party, or challenger; and they do not take a

position on a candidate’s character, qualifications, or fitness for office. 

Id. at 2667. Both the “Card Check” and “Freedom of Speech” ads that the RNC intends to

broadcast with non-federal funds undisputedly contain these same characteristics. Under

WRTL II, ads such as “Card Check” and “Freedom of Speech” are genuine issue ads, not

“electioneering” advertising, “campaign speech,” or sham issue ads. See 127 S. Ct. at 2559,

2667, 2669 n. 7. And the RNC has stated its intention to broadcast materially similar

advertisements in the future. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 18. So the RNC intends to

use the Grassroots Lobbying Account to broadcast advertisements consistent with the above

characteristics of genuine grassroots lobbying ads set out by the Supreme Court. Grassroots

lobbying ads do not directly benefit any federal candidate. Such ads’ “impact on an election, if it

exists at all, will come only after the voters hear the information and choose – uninvited by the

ad – to factor it into their voting decisions.” Id. at 2667. Plaintiffs’ objected to the FEC’s

definition of grassroots lobbying because it encompassed any “radio, television, and internet. . .

advertisements on relevant public-policy issues” and was not limited to the type of grassroots

lobbying advertisements described in WRTL II that the RNC intends to engage in. Pls.’ Exh. 7,

FEC Discovery Requests at 4. Chairman Steele did not, as represented, “disavow” the ability to

identify grassroots lobbying, but rather said that the scope of what is permissible under that

category would have to await the outcome of this case. Moreover, he did not purport to speak for

what the RNC wanted to do as to grassroots lobbying, instead specifically stating that he “can’t

speak to . . . what RNC has proposed in the past as grass-roots lobbying,” indicating that he was

Plaintiffs’ Supplemented

Statement of Material Issues 17

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 35 of 41
not testifying as the RNC representative for discovery. See FEC Exh. 42, Steele Dep. at 80:18-

22, 81:10-15, 82:17-20.

64. Response: No response.

65. Response: See supra Response ¶ 63. Moreover, the “More” and “Taxed too

Much” ads previously identified by this Court as “electioneering,” fit the description of what the

Supreme Court has subsequently described as “genuine issue advocacy.” WRTL II, 127 S. Ct. at

2667. 

66. Response: This statement is irrelevant as a speakers intent has no bearing on

whether speech is regulable or not. WRTL II, 127 S. Ct. at 2665. What is relevant is the

substance of the speech. Id.

67. Response: The Democratic National Committee’s activities are not at issue in

this case and are entirely irrelevant. Notably, however, the FEC does recognize the existence of a

“genuine grassroots lobbying advertisement.” 

68. Response: Supporting redistricting does not “directly” benefit federal candidates.

See McConnell, 251 F. Supp. 2d at 831-32 (Leon, J.). Redistricting is the province of state

legislators. While this state activity involves congressional districts, any effect on federal

candidates or officeholders is far too attenuated to be deemed unambiguously-campaign-related.

McConnell stated that only those activities that “directly benefit” federal candidates pose a risk

of corruption sufficient to justify regulation. 540 U.S. at 168-70 (emphasis added). Thus, state

parties, as well as corporations and unions, remain free to use non-federal funds to support state

redistricting. The FEC points to Chairman Steele’s statement that redistricting affects federal

Plaintiffs’ Supplemented

Statement of Material Issues 18

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 36 of 41
elections, but that sort of effect does not satisfy the requisite unambiguously-campaign-related

analysis.

69. Response: See supra Response ¶ 68.

70. Response: The RNC has stated that it intends to use its Litigation Account for the

purposes of paying the fees and expenses attributable to this case and costs associated with other

litigation not involving federal elections. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 15. Such

litigation might include trademark issues, personnel issues, recount issues in state and local

candidate elections, and state legal issues regarding voter fraud or voter registration. FEC Exh. 1,

Josefiak Dep. 172:13-173:11. None of these activities directly affect federal elections. 

71. Response: See supra Response ¶¶ 60, 70. 

72. Response: Plaintiffs’ GOTV activities in elections where both state and federal

candidates are on the ballot, but which will not be targeted to any federal candidate or federal

race, Pls.’ Exh. 3, Christiansen Dec. ¶ 16, do not directly benefit federal candidates. Such

activities may take two different forms. First are GOTV efforts that are targeted to only state

candidates or to specific state races and which do not name or reference any federal candidate.

Second are GOTV efforts that are generic in nature, i.e. they do not target any state or federal 

race and do not mention any state or federal candidates, but rather target Republican voters

generally. Neither category of activities is unambiguously campaign related, Buckley, 424 U.S.

at 80, because they do not directly benefit any federal candidate. Any effect on federal

candidates and officeholders would be indirect and tangential.

73. Response: See supra Response ¶ 72. The “RNC is a national party, and not just a

federal party.” Pls. Reply Mem. Exh. 1, Josefiak Dep.138:11-18 (emphasis added).

Plaintiffs’ Supplemented

Statement of Material Issues 19

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 37 of 41
As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

McConnell, 251 F. Supp. 2d at 335 (citations omitted) (Henderson, J.) (emphasis added). “[T]he

RNC trains state and local candidates, donates to state and local candidate campaign committees,

funds communications calling for the election or defeat of state and local candidates and engages

in get-out-the-vote activities.” Id. at 336. These activities in state and local elections “are

substantial [] in their importance. . .” to the RNC. Id. at 335. In its role as a national party, the

RNC seeks assist state and local candidates, not just federal candidates. 

74. Response: See supra Response ¶¶ 72-73.

75. Response: That CRP has previously identified federal candidates in its GOTV

activities is irrelevant to this case. At issue in this case is CRP’s desire to use state funds for

GOTV activities that will not “be targeted to any federal candidate, i.e., it would not reference,

describe, or otherwise depict any federal candidate.” Pls.’ Exh. 3, Christiansen Dec. ¶¶ 16.

76. Response: RPSD’s past use of federal funds for GOTV activities referencing

federal candidates is irrelevant to this case. At issue in this case is RPSD’s desire to use state

funds for GOTV activities that will not “be targeted to any federal candidate, i.e., it would not

reference, describe, or otherwise depict any federal candidate.” Pls.’ Exh. 5, Tetlow Dec. ¶ 5.

77. Response: CRP’s voter registration efforts in elections where both state and

federal candidates appear on the ballot is intended “to elect more Republicans at both [the state

and federal] levels.” FEC Exh. 2, Christiansen Dep. 123:12-13. CRP intends to use state funds

for voter registration activity that will not “be targeted to any federal candidate, i.e., it would not

Plaintiffs’ Supplemented

Statement of Material Issues 20

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 38 of 41
reference, describe, or otherwise depict any federal candidate.” Pls.’ Exh. 3, Christiansen Dec.

¶ 16. These activities do not directly benefit any federal candidate. 

78. Response: To the extent this paragraph refers to voter registration efforts in

elections where no federal candidate appears on the ballot, see supra Response ¶ 60. To the

extent this paragraph refers to voter registration efforts in elections where both state and federal

candidates appear on the ballot, see supra Response ¶ 77.

79. Response: In facially upholding § 431(20)(A)(iii)’s definition of PASO

communications, McConnell stated that the “overwhelming tendency” of such ads was “to

benefit directly federal candidates. . . .” 540 U.S. at 170. However, the Court pointed to evidence

concerning “bogus issue advertising” to support that facial holding. Id. While this finding was

sufficient to uphold the law facially, it is not sufficient to uphold the law in every application, i.e.

when the activity does not directly benefit federal candidates. Simply because PASO

communications might have the “overwhelming tendency” to directly benefit federal candidates,

does not mean that every PASO communication poses a risk of corruption. Cf. WRTL I, 546 U.S.

at 412. In the wake of WRTL II, 127 S. Ct. 2652, it is apparent that CRP and RPSD’s public

communication, Pls.’ Exh. 3, Christiansen Dec. ¶ 19; Pls.’ Exh. 5, Tetlow Dec. ¶ 6, is not “bogus

issue advertising,” but is instead genuine issue advocacy. As such, it does not directly benefit

any federal candidate. Such ads’ “impact on an election, if it exists at all, will come only after

the voters hear the information and choose – uninvited by the ad – to factor it into their voting

decisions.” WRTL II, 127 S. Ct. at 2667. 

80. Response: No response. 

81. Response: See supra Response ¶¶ 72,77.

Plaintiffs’ Supplemented

Statement of Material Issues 21

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 39 of 41
82. Response: See supra Response ¶¶ 72,77.

83. Response: See supra Response ¶¶ 72-73. 

Plaintiffs’ Supplemented

Statement of Material Issues 22

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 40 of 41
Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Clayton J. Callen*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Plaintiffs’ Supplemented

Statement of Material Issues 23

Case 1:08-cv-01953-RJL-RMC Document 87 Filed 07/02/2009 Page 41 of 41
United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemented Statement of Material Issues and 

Objections to Defendant’s Statement of Undisputed Facts

Plaintiffs’ RNC et al. submit the following statement of material issues in opposition to

the Federal Election Commission’s (“FEC”) supplemented statement of undisputed material

facts. LCvR 7(h). The following numbered paragraphs correspond with the FEC’s numbered

paragraphs.1

1. Response: “The RNC is a national party, and not just a federal party.” Pls.’

Reply Mem. Exh. 1, Josefiak Dep. at 138:11-18 (emphasis added).

As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

1

 Plaintiffs’ Exhibits 1-5 were attached to Plaintiffs’ motion for summary judgment

(Dkt. 21). Plaintiffs’ Exhibits 6-7 were attached to Plaintiffs’ initial statement of material issues.

Plaintiffs’ exhibit attached to their reply memorandum in support of summary judgment (Dkt.

50) is herein referred to as Pls. Reply Mem. Exh. 1. Defendant FEC’s Exhibits 1-25 were

attached to its memorandum in opposition to Plaintiffs’ motion for summary judgment, (Dkt.

39), and Defendant FEC’s Exhibits 26-41 were attached to the FEC’s motion for summary

judgment. (Dkt. 56).

Plaintiffs’ Supplemented

Statement of Material Issues 1

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 1 of 23
McConnell, 251 F. Supp. 2d at 335 (Henderson, J.) (citations omitted). These activities in state

and local elections “are substantial both in their importance to the RNC’s mission and in their

resource commitment.” Id. “Even for elections in which there is no federal candidate on the

ballot, the RNC trains state and local candidates, donates to state and local candidate campaign

committees, funds communications calling for the election or defeat of state and local candidates

and engages in get-out-the-vote activities.” Id. at 336. Furthermore, a political “party has its own

traditions and principles that transcend the interests of individual candidates and campaigns

. . . .” See Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 629 (1996)

(“Colorado I”) (Kennedy, J., concurring in the judgment and dissenting in part). Parties have a

“unique role in serving” First Amendment principles. Id. “[P]olitical parties are unique; they are

neither super multicandidate political committees formed entirely to support candidates for

federal office nor political associations completely uninvolved in candidate advocacy.”

McConnell, 251 F. Supp. 2d at 766 (Leon, J.). “[P]arties encourage ‘democratic nationalism’ by

nominating and electing candidates and by engaging in dialogues concerning public policy issues

of national importance.” Id. at 820-21. 

2. Response: See supra Response ¶ 1.

3. Response: See supra Response ¶ 1.

4. Response: See supra Response ¶ 1.

5. Response: When the President of the United States is a Republican, he will offer

a suggestion of a chairperson to the RNC. This person must then receive an independent majority

vote of the 168 members of the RNC in order to become the chairperson. The members may

choose not to accept the President’s suggestion. FEC Exh. 1, Josefiak Dep. 193:2-194:5. When

Plaintiffs’ Supplemented

Statement of Material Issues 2

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 2 of 23
the President is a Republican, the White House cooperates with the RNC, but the President

maintains no control over the RNC and the RNC alone decides how it will spend its resources.

Id. at 194:6-12. 

6. Response: The RNC has, on occasion, entered into name-for-name list exchanges

with campaigns, which may include voter preference information and/or donor information. See

FEC Exh. 1, Josefiak Dep. 98:8-14. The FEC’s statement that RNC “assists Members of

Congress by distributing their ‘message point[s]’ to the party’s ‘base,” mischaracterizes

Chairman Steele’s statement. First, the statement omits the context, which is as to “purposes” for

“initiat[ing] contact with federal officeholders.” Second, “assists” implies a regular event, when

“they’ve been very few.” Third, he said the purpose was “to have them get us information on a

subject,” which he elaborated to be “their message point,” i.e., “the issue,” especially in the

context of legislation so as to “have the understanding of what it is they want, what they’re

trying to do.” When asked why he would “seek to gain that understanding,” he responded that

the purpose would be to “educate our base as to [cited public issues] and the solutions that

legislative leaders are looking to propose . . . .” See FEC Exh. 42, Steele Dep. at 29:5-22. So the

evidence is that there are occasional calls to federal officeholders about issues, such as

legislation, to understand what the proposed legislation is to accomplish. The FEC’s statement

implies regular contact for the purpose of obtaining and communicating an officeholder’s

undefined “message point[s],” creating the impression that these might be some sort of political

talking points under discussion, instead of a discussion about public issues. 

7. Response: The RNC provides its contributors of federal funds with certain

opportunities and invitations to events not offered to the public at large. FEC Exh. 4, RNC

Plaintiffs’ Supplemented

Statement of Material Issues 3

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 3 of 23
Discovery Responses at 7. These opportunities involve nothing more than attending events at

which federal candidates and officeholders sometimes speak, and do not involve any one-on-one

contact or other special access. FEC Exh. 1, Josefiak Dep. at 73:3-77:4 (describing RNC

fundraising events for federal funds contributors). No matter the size of the event, the RNC does

not facilitate individualized one-on-one contact between federal funds contributors and federal

officeholders or candidates. FEC Exh. 4, RNC Discovery Responses at 7; FEC Exh. 1, Josefiak

Dep. at 73:3-77:4, 126:20-130:3; FEC Exh. 42, Steele Dep. at 51:10-18. Where a contributor

attends an event at which the contributor might have opportunity to speak with a federal

officeholder or candidate, “[t]ypically these conversations are about three to seven seconds long:

Hi. How are you.” FEC Exh. 42, Steele Dep. at 48:15-17. The RNC does not encourage federal

officeholders to meet with contributors of federal funds. FEC Exh. 4, RNC Discovery Responses

at 7; FEC Exh. 42, Steele Dep. at 46:1-4. Nor does the RNC pass on to candidates or

officeholders requests from donors to meet with such candidates or officeholders. FEC Exh. 1,

Josefiak Dep. at 127:1-128:1. The RNC also does not arrange for contributors to participate in

conference calls with federal candidates or officeholders. FEC Exh. 42, Steele Dep. at 46:8-12.

8. Response: See supra Response ¶ 7. To the extent “an attending donor has an

opportunity to inform the federal candidate or officeholder about the donor’s opinion on

legislation or other issues,” it would occur by the possible opportunity to ask the candidate a

question during the question and answer session following a candidate or officeholder’s speech.

FEC Exh. 1, Josefiak Dep. 75:22-77:8-11 (noting that donors who attend such events and

express their opinions often have divergent positions on the same issue).

9. Response: No response. 

Plaintiffs’ Supplemented

Statement of Material Issues 4

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 4 of 23
10. Response: See infra Response ¶¶ 11, 16.

11. Response: See supra Response ¶ 7. Just as no preferential access is now provided

to federal donors, the RNC will not provide non-federal donors with preferential access to any

federal candidate or officeholder. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 19, 30; FEC Mem. Exh.

4 at 7; FEC Exh. 1, Josefiak Dep. 126:20-130:3; FEC Exh. 42, Steele Dep. at 46:1-19, 51:10-18,

55:13-22, 111:12-21. Regardless of the amount of non-federal funds or state funds a contributor

may give to any of the RNC’s accounts, they will receive no preferential access to any federal

candidate or officeholder in return. FEC Exh. 1, Josefiak Dep. 126:20-130:3. The record from

McConnell does not support the statement that “trading of soft money for access to federal

officeholders was rampant” at the RNC prior to BCRA’s enactment. 

The FEC’s supplemented statement—that “Chairman Steele does not plan to develop

such a policy until after this lawsuit is resolved, and he does not know what the content of that

policy will be”—conflates concepts and statements that may not be conflated and creates an

implication that mischaracterizes the evidence. This may clearly be seen by what comes before

and what comes after the supplemented material. Before the supplemented material is a

statement that there is “no written policy . . . against preferential access,” and following the

supplemented statement is an acknowledgment of “an unwritten policy” against preferential

access. FEC Exh. 42, Steele Dep. at 11:5-21. So there is a policy against “providing donors with

preferential access to federal candidates and officeholders” in place, as set out in the cited

evidence in this Response. Any implication that having such a policy awaits the end of this

lawsuit is erroneous. Policies arising out the scope of what this case may allow clearly must

await instruction from the court, so such policies will of course be formulated after final

Plaintiffs’ Supplemented

Statement of Material Issues 5

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 5 of 23
resolution of this matter. To be clear, here is what the evidence actually shows as to RNC

policies.

(1) The RNC does not and will not facilitate intimate meetings between donors and

federal candidates and officeholders. By “preferential access” RNC does not mean merely “an

opportunity to briefly speak with an officeholder” at an event, but rather “some secret cabal.

You’re getting some special favor . . . .” . See FEC Exh. 42, Steele Dep. at 50:12-20. In RNC

Discovery Responses, in response to Interrogatory 5, a question about “preferential access,” the

RNC said that it “does not facilitate one-on-one meetings between federal candidates and

officeholders and any contributor of federal funds. Nor does the RNC encourage federal

candidates or officeholders to meet one-on-one with or have other individualized contact with

any RNC contributor.” FEC Exh. 4, RNC Discovery Responses at 7 at 7; see also Plaintiffs’

Statement of Undisputed Material Facts at ¶ 24 (no “preferential access” with examples); Pls’

Mem. Exh. 1, Beeson Affid. at ¶ 19 (same). Although RNC does have events to which individuals

are invited because they have already contributed federal funds at particular levels (they do not

pay to attend the event and they pay their own way to get there), at such events there is only

opportunity for a brief greeting, handshake, and photo-op, but not any more substantive one-onone meeting. See FEC Exh. 1, Josefiak Dep. at 72:12-73:19; FEC Exh. 42, Steele Dep. at 48:8-

49:22.

In its discovery responses, the RNC has verified that the policy against granting

preferential access will continue. Specifically, “in regard to both federal and potential nonfederal donations, the RNC would instruct its staff not to facilitate any one-on-one meetings or

Plaintiffs’ Supplemented

Statement of Material Issues 6

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 6 of 23
other individualized contact between contributors and federal candidates and officeholders.”

FEC Exh. 4, RNC Discovery Responses at 6-7.

(2) As stated in its discovery responses, the “RNC does provide contributors of federal

funds with certain opportunities and invitations to certain events not offered to the public at

large.” FEC Exh. 4, RNC Discovery Responses at 7. However, access to these donor events at the

various levels is now and will continue to be based only on federal funds, not non-federal funds.

At such a time as RNC is able to accept non-federal funds, those will not be counted toward

these major-donor, federal-fund clubs. Membership in a donor club is a perk available only to

donors of federal funds. There may be events for donors of only non-federal funds, but there will

be no federal candidates or officeholders at such events, and they will not solicit non-federal

funds. Pls.’ Reply Mem. Exh. 1, Josefiak Dep. at 208:2-209:3; Pls’ Mem. Exh. 1, Beeson Affid. at

¶ 19.

(3) Federal candidates or officeholders cannot and will not solicit non-federal funds. Pls’

Reply Mem. Exh. 1, Josefiak Dep. at 208:2-209:3 (“federal officers, office holders and

candidates would not be involved in these fund-raising efforts, period.”); Pls’ Mem. Exh. 1,

Beeson Affid. at ¶ 19 (“the RNC will not use any federal candidates or officeholders to solicit

funds for any of the Accounts.”). Therefore, the RNC will “not include federal candidates in the

[non-federal] fund-raising event at all or officeholders.” Pls’ Reply Mem. Exh. 1, Josefiak Dep.

at 208:7-9.

12. Response: Donors contribute to the RNC “because they want to assist the

Republican National Committee.” FEC Exh. 1, Josefiak Dep. 74:18-75:2. 

13. Response: No response.

Plaintiffs’ Supplemented

Statement of Material Issues 7

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 7 of 23
14. Response: The FEC points to no evidence that prior to the enactment of the

BCRA federal officeholders solicited funds on behalf of the RNC. As for the RNC’s intended

activities in this case, no federal candidate or officeholder will solicit funds to any of the RNC’s

intended accounts. Pls.’ Mem. Exh. 1, Beeson Aff. ¶ 19.

15. Response: The RNC does not distribute donor lists or donor information to

federal candidates or officeholders, Pls.’ Exh. 6, Josefiak Dep. 95:6-96:13, with the exception of

the exchanges referenced in Response ¶ 6.

16. Response: Gratitude on the part of candidates and officeholders, which

contributors might try to exploit to gain undue influence, can only exist where a direct benefit is

conferred on the candidate officeholder. Absent a direct benefit, any gratitude on the part of

candidates and officeholders is too attenuated to pass constitutional muster. Plaintiffs’ intended

activities do not directly benefit any federal candidate or officeholder and thereby pose no threat

of corruption or its appearance. To the extent that McConnell discussed corruption arising from

gratitude on the part of candidates, which “donors would seek to exploit,” it did so only in the

context of non-federal funds used “for the specific purpose of influencing a particular

candidates’s federal election.” McConnell, 540 U.S. at 146. After all, the Federal Funds

Restriction was enacted “to address Congress’ concerns about the increasing use of soft money

. . . to influence federal elections.” Id. at 132 (emphasis added). 

17. Response: See supra Response ¶¶ 7, 16. To the extent donors inform federal

candidates or officeholders of contributions to the RNC’s intended Accounts, it would be no

different than if they informed the officeholder of their contribution to a state candidate, state

party, or charitable organization of the officeholder’s liking. See FEC Exh. 42, Steele Dep. at

Plaintiffs’ Supplemented

Statement of Material Issues 8

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 8 of 23
61:4-62:13 (stating that the RNC does not have the right to prevent donors from independently

informing officeholders of their contributions to the intended Accounts). The FEC

mischaracterizes Chairman Steele’s testimony by the use of “would,” saying that donors “would”

attend . . . and contact officials in other ways,” when “could” would be correct. 

18. Response: See supra Response ¶¶ 7, 11-12,16.

19. Response: No response.

20. Response: No response.

21. Response: There is regular communication between the RNC and all its members

because the members “make up the Republican National Committee.” FEC Exh. 1, Josefiak Dep.

200:20-201:1. There is no “near-constant strategic communication between state parties and the

RNC.” Id. 200:13-201:16.

22. Response: A political “party has its own traditions and principles that transcend

the interests of individual candidates and campaigns . . . .” See Colorado I, 518 U.S. at 629

(Kennedy, J., concurring in the judgment and dissenting in part). Parties have a “unique role in

serving” First Amendment principles. Id. “[P]olitical parties are unique; they are neither super

multicandidate political committees formed entirely to support candidates for federal office nor

political associations completely uninvolved in candidate advocacy.” McConnell, 251 F. Supp.

2d at 766 (Leon, J.). “[P]arties encourage ‘democratic nationalism’ by nominating and electing

candidates and by engaging in dialogues concerning public policy issues of national

importance.” Id. at 820-21.

23. Response: No response.

24. Response: No response.

Plaintiffs’ Supplemented

Statement of Material Issues 9

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 9 of 23
25. Response: No response.

26. Response: See supra Response ¶ 22.

27. Response: No response.

28. Response: No response.

29. Response: In regard to state and local party committees, which are required to

use federal funds only for “federal election activity,” McConnell facially upheld the Federal

Funds Restriction because it was narrowly focused on regulating “those contributions to state

and local parties that can be used to benefit federal candidates directly.” 540 U.S. at 167

(emphasis added). To the extent the Court discussed such parties’ relationships with federal

candidates and officeholders as justifying regulation, it applied this analysis only when activities

directly benefitted federal candidates. Id. at 156 n. 51 (“Thus, in upholding § 323(b) . . . we rely

not only on the fact that [it] regulate[s] contributions used to fund activities influencing federal

elections, but also that [it] regulate[s] contributions to or at the behest of entities uniquely

positioned to serve as conduits for corruption”). Nevertheless, the FEC mischaracterizes

statements made by CRP’s representatives regarding their relationship with federal candidates as

indicative of preferential access. Because CRP’s intended activities do not directly benefit

federal candidates and because CRP does not give preferential access to any donor, evidence

regarding CRP’s relationship with federal candidates and officeholders is irrelevant.

30. Response: See supra Response ¶ 29.

31. Response: See supra Response ¶ 29.

32. Response: See supra Response ¶ 29.

33. Response: See supra Response ¶ 29.

Plaintiffs’ Supplemented

Statement of Material Issues 10

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 10 of 23
34. Response: See supra Response ¶ 29. The FEC mischaracterizes the statement of

the CRP Chairman in this letter. As stated in regards to the RNC in Response ¶11, a mere

introduction does not rise to the level of “preferential access.” The FEC fails to establish that the

CRP has a practice of providing donors with preferential access.

35. Response: See supra Response ¶ 29.

36. Response: See supra Response ¶ 16. No federal candidates will directly benefit

from Plaintiffs’ intended activities and so this statement is irrelevant. To the extent that

McConnell discussed corruption arising from gratitude on the part of candidates, which “donors

would seek to exploit,” it did so only in the context of non-federal funds used “for the specific

purpose of influencing a particular candidates’s federal election.” McConnell, 540 U.S. at 146. 

37-45. Response: No response.

46. Response: Expenditures by committees and organizations not parties to this suit

are irrelevant.

47-50. Response: No response. 

51. Response: The Federal Funds Restriction prohibits national committees of a

political party and its officials from soliciting or using any non-federal funds,2 regardless of their

purpose. They may solicit and use only federal funds. 2 U.S.C. § 441i(a). The Federal Funds

Restriction prohibits state and local committees of a political party from using non-federal funds

2

 “Federal funds” are those complying with federal limits, bans, and reporting

requirements. 11 C.F.R. § 300.2(g). “Non-federal funds” are those that do not comply with

federal limits and bans. Id. § 300.2(k). Depending on how a state’s law compares with federal

law, money raised under state law may or may not be “non-federal.” As used in this brief,

however, the term “state funds” – which, unlike “federal funds” and “non-federal funds,” is not a

term of art – means non-federal funds that comply with the law of the state in question.

Plaintiffs’ Supplemented

Statement of Material Issues 11

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 11 of 23
for “federal election activity.” Id. § 441i(b). “Federal election activity” includes: (1) voter

registration activity in the 120 days before a federal election; (2) “voter identification, get-outthe-vote activity or generic campaign activity” in connection with elections for federal office;

and (3) public communications3

 that clearly identify and “promote,” “attack,” “support,” or

“oppose” (“PASO”) a federal candidate. Id. § 431(20). The Supreme Court has noted that

limiting the amount of contributions “in turn” limits expenditures. Citizens Against Rent Control

v. Berkeley, 454 U.S. 290 (1981) (“CARC”). In CARC, the Supreme Court employed “exacting

scrutiny,” 454 U.S. at 294, to strike down a limit on contributions to ballot-measure committees,

noting that “[a]part from the impermissible restraint on freedom of association, but virtually

inseparable from it in this context, [the limit] imposes a significant restraint on the freedom of

expression of groups and those individuals who wish to express their views through

committees.” Id. at 298. CARC noted that, as with the present case, individuals could “make

expenditures without limit” on a ballot measure “but may not contribute beyond the $250 limit

when joining with others to advocate common views.” Id. The Court concluded that “[p]lacing

limits on contributions which in turn limit expenditures plainly impairs freedom of expression.”

Id.

52. Response: Even if it were true, this statement is irrelevant because the FEC bears

the burden of demonstrating why the regulation of such activities is necessary and justified. But

moreover, because of the difficulty in raising federal funds, and the need to use federal funds for

federal purposes, the RNC has engaged in little, if any, of the activities for which it seeks relief

3 Defined in 2 U.S.C. § 431(22) and 11 C.F.R. § 100.26.

Plaintiffs’ Supplemented

Statement of Material Issues 12

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 12 of 23
in this action to use non-federal funds and state funds. FEC Exh. 4, Pls.’ Discovery Responses at

4-5; FEC Exh. 1, Josefiak Dep. 141:13-144:14, 160:12-20. And to the extent the RNC has

engaged in any of these activities, it has been forced to use federal funds, which by there very

nature are raised for federal purposes, for these non-federal activities like supporting state

candidates. Id. If it were not limited to federal funds, the RNC could engage in additional speech.

Id.

53. Response: See supra Response ¶ 52.

54. Response: This statement is irrelevant. The fact that CRP has used federal funds

to support federal candidates in the past has no bearing on this case. What is relevant in this case

is CRP’s intended use of state funds for ballot measure advocacy and state election activities,

which activity is prohibited by the Federal Funds Prohibition. Pls.’ Exh. 3, Christiansen Dec.

¶¶ 16, 19. 

55. Response: This statement is irrelevant. The fact that RPSD has used federal funds

to support federal candidates in the past has no bearing on this case. What is relevant in this case

is RPSD’s intended use of state funds for ballot measure advocacy and state election activities,

which activity is prohibited by the Federal Funds Prohibition. Pls.’ Exh. 5, Tetlow Dec. ¶¶ 5-6.

56. Response: If RPSD’s obtains the judicial relief sought in this action, RPSD will

undertake its intended activities using state funds. If RPSD does not obtain the requested judicial

relief, it will continue to use federal funds for its activities that qualify as “federal election

activity” to the extent federal funds are available. FEC Exh. 3, Buettner Dep. 76:2-12.

57. Response: See supra Response ¶ 52.

58. Response: See supra Response ¶ 52.

Plaintiffs’ Supplemented

Statement of Material Issues 13

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 13 of 23
59. Response: See supra Response ¶ 1.

59.1 Response: The RNC has stated its intent to fund specific types of activities in the

2009 New Jersey elections with non-federal dollars, if permitted. Pls.’ Mem. Exh. 1, Beeson Aff.

at ¶¶ 3-4. Chairman Steele’s deposition answer addressed the problem of not knowing whether

there would be a favorable ruling and, if so, when it might be issued, giving rise to “speculation”

at the present as to further specificity. So he said that what might be practically possible “[i]f the

ruling comes next week” differs from what would be possible “two weeks before the general

election,” and “I wouldn’t speculate as to what we would do until I know what I can do.” FEC

Exh. 42, Steele Dep. at 69:22-70:9. His statement contradicts nothing previously asserted. 

60. Response: The RNC’s intended activities in state and local elections where no

federal candidates appear on the ballot do not directly benefit any federal candidate. The FEC’s

own expert in McConnell noted that contributions to state candidates in odd-numbered years do

not affect federal elections. See 251 F. Supp. 2d at 830 (Leon, J.) (citing Cross Exam. of Defense

Expert Mann at 71). Nor does voter registration, voter identification, or GOTV activities in

elections where no federal candidates appear on the ballot directly benefit any federal candidate.

See McConnell, 251 F. Supp. 2d at 831 (Leon, J.). Any voter information obtained by the RNC

in these state and local elections is “worthless” for use in future federal elections absent a

continuing enhancement process on the part of the RNC. Defendant Van Hollen’s Opposition to

Plaintiffs’ Motion for Summary Judgment, Exh. 11, Josefiak Dep. 246:2-13, 19-22 (Dkt. 41).

Voter registration lists must be constantly updated as people move into and out of the relevant

jurisdiction. Pls.’ Exh. 6, Josefiak Dep. 247:10-17. And “just because you register [to vote] once

doesn’t mean you can vote in every election after that if your circumstances change.” Id. at

Plaintiffs’ Supplemented

Statement of Material Issues 14

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 14 of 23
248:14-16. The RNC’s involvement in state and local elections is not to use those elections as a

‘practice field’ for future federal elections, or to benefit federal candidates in some other way.

The “RNC is a national party, and not just a federal party.” Pls. Reply Mem. Exh. 1, Josefiak

Dep.138:11-18 (emphasis added). 

As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

McConnell, 251 F. Supp. 2d at 335 (citations omitted) (Henderson, J.) (emphasis added). “[T]he

RNC trains state and local candidates, donates to state and local candidate campaign committees,

funds communications calling for the election or defeat of state and local candidates and engages

in get-out-the-vote activities.” Id. at 336. These activities in state and local elections “are

substantial [] in their importance . . .” to the RNC. Id. at 335. In its role as a national party, the

RNC seeks to assist state and local candidates, not just federal candidates.

61. Response: See supra Response ¶ 60. The FEC’s citations to Chairman Steele’s

deposition mischaracterize the question and answer and makes an impossible implication. The

question was about intended solicitation of “contributions on behalf of specific state candidates,”

FEC Exh. 42, Steele Dep. at 104:18-22. Such contributions would be made directly to the

candidates, not RNC, so there would be no “transfer to state candidates.” As to the implication

that fundraising for candidates would make them conduits for soft-money “sham issue

advertising,” that is impossible for two reasons. First, persons contributing to a candidate would

expect their contributions to be used to advance the candidate’s own candidacy, and candidates

need funds for their own campaigns, so candidates would be highly unlikely to use campaign

Plaintiffs’ Supplemented

Statement of Material Issues 15

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 15 of 23
contributions for non-campaign expenses (and state law might forbid it). Second, state

candidates cannot use “any funds for a communication” that promotes, attacks, supports, or

opposes a federal candidate unless the funds are federal-funds, which makes the use of nonfederal funds for “sham issue ads” impossible. See 2 U.S.C. § 441i(f). Moreover, Chairman

Steele indicated that any restrictions imposed by court opinion and order would be faithfully

implemented when such an opinion and order would be issued, which could not be done in

advance of such an opinion and order. 

62. Response: See supra Response ¶ 1.

63. Response: The RNC intends to use the Grassroots Lobbying Account to pay for

radio, television, and internet grassroots lobbying advertisements on relevant public-policy

issues. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 11. The first two issues the RNC would like to

address are issues being debated by the 111th Congress: (1) “card check” legislation, which

allows unionization without secret-ballot elections for workers; and (2) legislation to revive the

“Fairness Doctrine,” which would require radio station owners to provide equal time on matters

of public importance or risk losing their broadcast licenses. Id. The RNC has provided true and

correct copies of two ads that the RNC intends to broadcast: “Card Check” and “Freedom of

Speech.” The Supreme Court in WRTL II provided the means to distinguish alleged bogus issue

ads from genuine issue advocacy. The Court found that WRTL’s grassroots lobbying ads were

genuine issue advocacy because:

First, their content is consistent with that of a genuine issue ad: The ads focus on

a legislative issue, take a position on the issue, exhort the public to adopt that

position, and urge the public to contact public officials with respect to the matter. 

Second, their content lacks indicia of express advocacy: The ads do not mention

Plaintiffs’ Supplemented

Statement of Material Issues 16

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 16 of 23
an election, candidacy, political party, or challenger; and they do not take a

position on a candidate’s character, qualifications, or fitness for office. 

Id. at 2667. Both the “Card Check” and “Freedom of Speech” ads that the RNC intends to

broadcast with non-federal funds undisputedly contain these same characteristics. Under

WRTL II, ads such as “Card Check” and “Freedom of Speech” are genuine issue ads, not

“electioneering” advertising, “campaign speech,” or sham issue ads. See 127 S. Ct. at 2559,

2667, 2669 n. 7. And the RNC has stated its intention to broadcast materially similar

advertisements in the future. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 18. So the RNC intends to

use the Grassroots Lobbying Account to broadcast advertisements consistent with the above

characteristics of genuine grassroots lobbying ads set out by the Supreme Court. Grassroots

lobbying ads do not directly benefit any federal candidate. Such ads’ “impact on an election, if it

exists at all, will come only after the voters hear the information and choose – uninvited by the

ad – to factor it into their voting decisions.” Id. at 2667. Plaintiffs’ objected to the FEC’s

definition of grassroots lobbying because it encompassed any “radio, television, and internet. . .

advertisements on relevant public-policy issues” and was not limited to the type of grassroots

lobbying advertisements described in WRTL II that the RNC intends to engage in. Pls.’ Exh. 7,

FEC Discovery Requests at 4. Chairman Steele did not, as represented, “disavow” the ability to

identify grassroots lobbying, but rather said that the scope of what is permissible under that

category would have to await the outcome of this case. Moreover, he did not purport to speak for

what the RNC wanted to do as to grassroots lobbying, instead specifically stating that he “can’t

speak to . . . what RNC has proposed in the past as grass-roots lobbying,” indicating that he was

Plaintiffs’ Supplemented

Statement of Material Issues 17

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 17 of 23
not testifying as the RNC representative for discovery. See FEC Exh. 42, Steele Dep. at 80:18-

22, 81:10-15, 82:17-20.

64. Response: No response.

65. Response: See supra Response ¶ 63. Moreover, the “More” and “Taxed too

Much” ads previously identified by this Court as “electioneering,” fit the description of what the

Supreme Court has subsequently described as “genuine issue advocacy.” WRTL II, 127 S. Ct. at

2667. 

66. Response: This statement is irrelevant as a speakers intent has no bearing on

whether speech is regulable or not. WRTL II, 127 S. Ct. at 2665. What is relevant is the

substance of the speech. Id.

67. Response: The Democratic National Committee’s activities are not at issue in

this case and are entirely irrelevant. Notably, however, the FEC does recognize the existence of a

“genuine grassroots lobbying advertisement.” 

68. Response: Supporting redistricting does not “directly” benefit federal candidates.

See McConnell, 251 F. Supp. 2d at 831-32 (Leon, J.). Redistricting is the province of state

legislators. While this state activity involves congressional districts, any effect on federal

candidates or officeholders is far too attenuated to be deemed unambiguously-campaign-related.

McConnell stated that only those activities that “directly benefit” federal candidates pose a risk

of corruption sufficient to justify regulation. 540 U.S. at 168-70 (emphasis added). Thus, state

parties, as well as corporations and unions, remain free to use non-federal funds to support state

redistricting. The FEC points to Chairman Steele’s statement that redistricting affects federal

Plaintiffs’ Supplemented

Statement of Material Issues 18

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 18 of 23
elections, but that sort of effect does not satisfy the requisite unambiguously-campaign-related

analysis.

69. Response: See supra Response ¶ 68.

70. Response: The RNC has stated that it intends to use its Litigation Account for the

purposes of paying the fees and expenses attributable to this case and costs associated with other

litigation not involving federal elections. Pls.’ Mem. Exh. 1, Beeson Affidavit ¶ 15. Such

litigation might include trademark issues, personnel issues, recount issues in state and local

candidate elections, and state legal issues regarding voter fraud or voter registration. FEC Exh. 1,

Josefiak Dep. 172:13-173:11. None of these activities directly affect federal elections. 

71. Response: See supra Response ¶¶ 60, 70. 

72. Response: Plaintiffs’ GOTV activities in elections where both state and federal

candidates are on the ballot, but which will not be targeted to any federal candidate or federal

race, Pls.’ Exh. 3, Christiansen Dec. ¶ 16, do not directly benefit federal candidates. Such

activities may take two different forms. First are GOTV efforts that are targeted to only state

candidates or to specific state races and which do not name or reference any federal candidate.

Second are GOTV efforts that are generic in nature, i.e. they do not target any state or federal 

race and do not mention any state or federal candidates, but rather target Republican voters

generally. Neither category of activities is unambiguously campaign related, Buckley, 424 U.S.

at 80, because they do not directly benefit any federal candidate. Any effect on federal

candidates and officeholders would be indirect and tangential.

73. Response: See supra Response ¶ 72. The “RNC is a national party, and not just a

federal party.” Pls. Reply Mem. Exh. 1, Josefiak Dep.138:11-18 (emphasis added).

Plaintiffs’ Supplemented

Statement of Material Issues 19

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 19 of 23
As a national political party committee, the RNC has historically participated and

participates today in electoral and political activities at the federal, state and local

levels. The RNC seeks to advance its core principles by advocating Republican

positions, electing Republican candidates and encouraging governance in accord

with Republican views at the federal, state and local levels.

McConnell, 251 F. Supp. 2d at 335 (citations omitted) (Henderson, J.) (emphasis added). “[T]he

RNC trains state and local candidates, donates to state and local candidate campaign committees,

funds communications calling for the election or defeat of state and local candidates and engages

in get-out-the-vote activities.” Id. at 336. These activities in state and local elections “are

substantial [] in their importance. . .” to the RNC. Id. at 335. In its role as a national party, the

RNC seeks assist state and local candidates, not just federal candidates. 

74. Response: See supra Response ¶¶ 72-73.

75. Response: That CRP has previously identified federal candidates in its GOTV

activities is irrelevant to this case. At issue in this case is CRP’s desire to use state funds for

GOTV activities that will not “be targeted to any federal candidate, i.e., it would not reference,

describe, or otherwise depict any federal candidate.” Pls.’ Exh. 3, Christiansen Dec. ¶¶ 16.

76. Response: RPSD’s past use of federal funds for GOTV activities referencing

federal candidates is irrelevant to this case. At issue in this case is RPSD’s desire to use state

funds for GOTV activities that will not “be targeted to any federal candidate, i.e., it would not

reference, describe, or otherwise depict any federal candidate.” Pls.’ Exh. 5, Tetlow Dec. ¶ 5.

77. Response: CRP’s voter registration efforts in elections where both state and

federal candidates appear on the ballot is intended “to elect more Republicans at both [the state

and federal] levels.” FEC Exh. 2, Christiansen Dep. 123:12-13. CRP intends to use state funds

for voter registration activity that will not “be targeted to any federal candidate, i.e., it would not

Plaintiffs’ Supplemented

Statement of Material Issues 20

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 20 of 23
reference, describe, or otherwise depict any federal candidate.” Pls.’ Exh. 3, Christiansen Dec.

¶ 16. These activities do not directly benefit any federal candidate. 

78. Response: To the extent this paragraph refers to voter registration efforts in

elections where no federal candidate appears on the ballot, see supra Response ¶ 60. To the

extent this paragraph refers to voter registration efforts in elections where both state and federal

candidates appear on the ballot, see supra Response ¶ 77.

79. Response: In facially upholding § 431(20)(A)(iii)’s definition of PASO

communications, McConnell stated that the “overwhelming tendency” of such ads was “to

benefit directly federal candidates. . . .” 540 U.S. at 170. However, the Court pointed to evidence

concerning “bogus issue advertising” to support that facial holding. Id. While this finding was

sufficient to uphold the law facially, it is not sufficient to uphold the law in every application, i.e.

when the activity does not directly benefit federal candidates. Simply because PASO

communications might have the “overwhelming tendency” to directly benefit federal candidates,

does not mean that every PASO communication poses a risk of corruption. Cf. WRTL I, 546 U.S.

at 412. In the wake of WRTL II, 127 S. Ct. 2652, it is apparent that CRP and RPSD’s public

communication, Pls.’ Exh. 3, Christiansen Dec. ¶ 19; Pls.’ Exh. 5, Tetlow Dec. ¶ 6, is not “bogus

issue advertising,” but is instead genuine issue advocacy. As such, it does not directly benefit

any federal candidate. Such ads’ “impact on an election, if it exists at all, will come only after

the voters hear the information and choose – uninvited by the ad – to factor it into their voting

decisions.” WRTL II, 127 S. Ct. at 2667. 

80. Response: No response. 

81. Response: See supra Response ¶¶ 72,77.

Plaintiffs’ Supplemented

Statement of Material Issues 21

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 21 of 23
82. Response: See supra Response ¶¶ 72,77.

83. Response: See supra Response ¶¶ 72-73. 

Plaintiffs’ Supplemented

Statement of Material Issues 22

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 22 of 23
Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Clayton J. Callen*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Plaintiffs’ Supplemented

Statement of Material Issues 23

Case 1:08-cv-01953-RJL-RMC Document 87-2 Filed 07/02/2009 Page 23 of 23