No. 

In The

Supreme Court of the United States

____________

Republican Party of Louisiana,

Jefferson Parish Republican Parish Executive

Committee, and Orleans Parish Republican

Executive Committee, Appellants

v.

Federal Election Commission, Appellee

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Jurisdictional Statement

____________

January 6, 2016

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Corrine L. Purvis

THE BOPP LAW FIRM, PC

 The National Building

 1 South Sixth Street

 Terre Haute, IN 47807

 812/232-2434 telephone

 812/235-3685 facsimile

 jboppjr@aol.com

Counsel for Appellants
Questions Presented

The Bipartisan Campaign Reform Act of 2002

(“BCRA”) defines most traditional activities of state

and local political parties as “federal election activity”

(“FEA”)”1

and regulates FEA with three provisions: (1)

the Ban, requiring such political parties to use only

“federal funds,” rather than state-regulated funds, for

FEA; (2) the Fundraising Requirement, requiring that

federal funds be used to raise funds for FEA; and (3)

the Reporting Requirement, requiring monthly FEA

reporting (“FEA Restrictions”).

This Court in McConnell v. FEC upheld the FEA

Restrictions on their face, but political parties here

challenge these provisions as applied to FEA conducted

independent of any federal candidate. The court below

rejected this as-applied challenge.

1. Whether McConnell’s general language facially

upholding the FEA Restrictions, or the narrow holdings in Citizens United v. FEC and McCutcheon v.

FEC, preclude this as-applied challenge, contrary to

Wisconsin Right to Life v. FEC (“WRTL-I”).

2. Whether the FEA Restrictions violate the First

Amendment as applied to independent FEA, given

Buckley v. Valeo’s holding that independence eliminates the required potential for quid-pro-quo corruption.

3. Whether the FEA Restrictions also violate the

First Amendment facially, given the return to Buckley’s quid-pro-quo definition of corruption in Citizens

United and McCutcheon.

1 E.g., voter registration, voter identification, get-outthe-vote activity, generic campaign activity, and federal

candidate advocacy.

(i)
Parties to the Proceeding

All parties are named in the caption.

Corporate Disclosure

Republican Party of Louisiana (“LAGOP”), Jefferson Parish Republican Parish Executive Committee

(“JPGOP”), and Orleans Parish Republican Executive

Committee (“OPGOP”) are not incorporated.

(ii)
Table of Contents

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . (i)

Parties to the Proceeding. . . . . . . . . . . . . . . . . . . . (ii)

Corporate Disclosure.. . . . . . . . . . . . . . . . . . . . . . . (ii)

Appendix Table of Contents. . . . . . . . . . . . . . . . . . . (v)

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . (vi)

Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Constitution, Statutes & Regulations. . . . . . . . . . . . 5

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . 5

The Questions Presented Are Substantial.. . . . . . . 12

I. Neither McConnell’s Broad Facial-Holding

Language Nor the Narrow Holdings of Citizens United and McCutcheon Preclude this

As-Applied Challenge.. . . . . . . . . . . . . . . . . . 12

II. The FEA Requirements Are Unconstitutional as Applied to Independent FEA... . . . 18

A. This Court’s Precedents Require that

the FEA Restrictions Be Subject to

Strict Scrutiny.. . . . . . . . . . . . . . . . . . . . . 18

B. Only Narrow Quid-Pro-Quo Corruption

Is Cognizable, Regardless of Scrutiny

Level.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Historically, Quid-Pro-Quo Corruption Has Been the Only Justification

for Campaign-Finance Restrictions.. . 21

(iii)
2. Citizens United and McCutcheon Reaffirmed that a Finding of Quid-ProQuo Corruption Is the Only Justification for Campaign-Finance Restrictions.. . . . . . . . . . . . . . . . . . . . . . . 22

3. McConnell Failed to Employ the Required Narrow Definition of QuidPro-Quo Corruption to the FEA Restrictions.. . . . . . . . . . . . . . . . . . . . . . . 25

C. Independence Eliminates the Threat of

Quid-Pro-Quo Corruption.. . . . . . . . . . . . 26

D. Political Party Independent Spending Is

Also Non-Corrupting.. . . . . . . . . . . . . . . . 29

E. There Is No Record Evidence that State

or Local Political Parties’ Independent

Spending Involves Quid-Pro-Quo Corruption.. . . . . . . . . . . . . . . . . . . . . . . . . . . 32

III. The FEA Restrictions Are Also Unconstitutional Facially.. . . . . . . . . . . . . . . . . . . . . . . . 35

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

(iv)
Appendix Table of Contents

Memorandum Opinion. . . . . . . . . . . . . . . . . . . . . . . 1a

Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

Notice of Appeal to U.S. Supreme Court.. . . . . . . . 25a

U.S. Constitution, First Amendment. . . . . . . . . . . 27a

52 U.S.C. § 30101(17)-(24),

Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27a

52 U.S.C. § 30104(e)(2)-(4),

“Reporting Requirement”. . . . . . . . . . . . . . . . . 29a

52 U.S.C. § 30125(b)-(c),

“Ban” and “Fundraising Requirement”.. . . . . . 31a

BCRA § 403(a),

116 Stat. at 113-14.. . . . . . . . . . . . . . . . . . . . . . 34a

11 C.F.R. § 100.24,

Federal election activity. . . . . . . . . . . . . . . . . . 35a

(v)
Table of Authorities

Cases

Arizona Free Enterprise Club’s Freedom PAC v.

Bennett, 131 S.Ct. 2806 (2011). . . . . . . . . . . . . . 24

Brown v. Hartlage, 456 U.S. 45 (1982).. . . . . . . . . . 25

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

California Medical Association v. FEC 453 U.S.

182 (1981) (“CalMed”). . . . . . . . . . . . . . . . . . . . . 27

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981). . . . . . . . . . . . . . . . 3-4, 20, 27

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

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) (“Colorado-I”) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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

Evans v. United States, 504 U.S. 255 (1992). . . . . . 24

FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) (“Colorado-II”). 31

FEC v. Colorado Republican Federal Campaign

Committee, 839 F. Supp. 1441 (1993). . . . . . . . . 33

FEC v. Colorado Republican Federal Campaign

Committee, 41 F. Supp. 2d 1197 (D. Colo.

1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

FEC v. National Conservative PAC, 470 U.S. 480

(1985) (“NCPAC”).. . . . . . . . . . 2, 18, 22, 24, 26, 30

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

(vi)
Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979).. . . . . . . . . . . . . . 16

Mandel v. Bradley, 432 U.S. 173 (1977).. . . . . . . . . 16

Marks v. United States, 430 U.S. 188 (1977). . . . . . . 2

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

2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 34

McConnell v. FEC, 540 U.S. 93, 155 (2003). . . passim

McCormick v. United States, 500 U.S. 257 (1991)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24

McCutcheon v. FEC, 134 S.Ct. 1434 (2014). . . passim

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

(2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

North Carolina Right to Life v. Leake, 525 F.3d

274 (4th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . 28

Obergefell v. Hodges, 135 S.Ct. 2584 (2015).. . . . . . 17

Randall v. Sorrell, 548 U.S. 230 (2006). . . . . . . 18-19

Republican National Committee v. FEC, 698 F.

Supp. 2d 150 (D.D.C. 2010) (“RNC-I”). . . . passim

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.

2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 18, 28

Stromberg v. California, 283 U.S. 359 (1931). . . . . 25

Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) (“WRTL-I”). . . . . . . . . . . . . . . . . . . (i), 4, 13

Constitutions, Statutes, Regulations & Rules

11 C.F.R. 100.5(d)(4). . . . . . . . . . . . . . . . . . . . . . . . . . 8

11 C.F.R. 100.14(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11 C.F.R. 100.24. . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5

(vii)
11 C.F.R. 100.24(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 6

11 C.F.R. §§ 100.110-100.155. . . . . . . . . . . . . . . . . . 19

11 C.F.R. §§ 100.30-100.37. . . . . . . . . . . . . . . . . . . . 19

11 C.F.R. §§ 100.51-100.94. . . . . . . . . . . . . . . . . . . . 19

11 C.F.R. 300.2(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 300.2(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 300.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11 C.F.R. 300.32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11 C.F.R. 300.32(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11 C.F.R. 300.33(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26 U.S.C. 501(c)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

52 U.S.C. 30101(15). . . . . . . . . . . . . . . . . . . . . . . . . . 8

52 U.S.C. 30101(20). . . . . . . . . . . . . . . . . . . . . . . . 1, 6

52 U.S.C. 30101(20)(A)(iii)-(iv). . . . . . . . . . . . . . . . . . 6

52 U.S.C. 30101(17)-(24).. . . . . . . . . . . . . . . . . . . . . . 5

52 U.S.C. 30104(e)(2)-(4).. . . . . . . . . . . . . . . . . . . . 5, 7

52 U.S.C. 30109.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

52 U.S.C. 30125(b). . . . . . . . . . . . . . . . . . . . . . . . . 5-6

52 U.S.C. 30125(c).. . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

BCRA § 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

BCRA § 403(a)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

La. Rev. Stat. 18.1505.2.K.. . . . . . . . . . . . . . . . . . . . . 3

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

Bopp, Elf & Milanovich, Contribution Limits after

McCutcheonv.FEC, 49 Val. U.L. Rev. 361 (2015)

(viii)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bopp, The Constitutional Limits on Campaign Contribution Limits, 11 Regent U. Law Rev. 235

(1998-99).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Brennan Center for Justice, Stronger Parties,

Stronger Democracy: Rethinking Reform (2015),

https://www.brennancenter.org/publication/stronger-parties-stronger-democracy-rethinking-reforming. . . . . . . . . . . . . . . . . . . . . . . . 8

FEC, FEC Statement on Carey v. FEC” (Oct. 5,

2011), www.fec .gov/press /press2011/

20111006postcarey.shtml .. . . . . . . . . . . . . . . . . . 3

Sam Stein, Dem Megadonor Tom Steyer Gives Millions More to Bolster Ground Game, Huffington

Post, Sept. 21, 2016, http://www.huffingonpost.

com/entry/tom-steyer-ground-game_us_

57e1e38ae4b0e80b1b9f0b4d. . . . . . . . . . . . . . . . . 1

(ix)
Introduction

A grave inequity exists in American politics—at the

expense of state and local political parties. While behemoth super-PACs and 501(c)(4) nonprofit corporations

receive unlimited donations used for independent communications and voter mobilization,2

state and local

parties can do nothing similar. They must fund similar

independent FEA3communications and votermobilization efforts solely with limited, restricted federalfunds4

because the FEA Restrictions require them to use only

federalfunds for FEA, rather than non-federalfunds as

they once did.

So state and local parties—vital mediating forces—

struggle to do their traditional activities and be rele2 See, e.g., Sam Stein, Dem Megadonor Tom Steyer Gives

Millions More to Bolster Ground Game, Huffington Post,

Sept. 21, 2016, http://www.huffingtonpost.com/entry/tomsteyer-ground-game_us_57e1e38ae4b0e80b1b9f0b4d (“For

Our Future PAC, a 501c4 and super PAC organization, is

aiming to knock on 5.3 million doors between now and Election Day in a variety of battleground states....”).

3 FEA (“federal election activity”) sweeps in voter-registration activity (“VR”); voter-identification (“VID”); get-outthe-vote activity (“GOTV”); generic-campaign activity

(“GCA,” i.e., communications solely promoting a party committee); communications that “promote,” “attack,” “support,” or “oppose” federal candidates without express advocacy (“PASO Communications”), and compensation of employees spending over 25% of their time in a month “on activities in connection with a federal election” (“25% Employee Rule”). 52 U.S.C. 30101(20); 11 C.F.R. 100.24.

4

“Federal funds ... comply with the limitations, prohibitions, and reporting requirements of the [Federal Election

Campaign] Act.” 11 C.F.R. 300.2(g). Nonfederal funds comply with state law. 11 C.F.R. 300.2(k).
2

vant while the behemoths assume traditional politicalparty activities. The harms the FEA Restrictions inflict

on state and local parties may be remedied because the

FEA Restrictions violate the First Amendment as applied to non-corrupting independent FEA.

The only interest this Court recognizes to justify

restrictions on political contributions or expenditures

is preventing narrowly defined quid-pro-quo corruption. Buckley v. Valeo, 424 U.S. 1, 26 (1976); FEC v.

National Conservative PAC, 470 U.S. 480, 497 (1985)

(“NCPAC”) (“dollars for political favors”).5 So whether

the challenged provisions restrict contributions or expenditures, FEC must prove an interest in preventing

quid-pro-quo corruption.

But independence eliminates the potential for quidpro-quo corruption. Buckley, 424 U.S. at 47; Citizens

United v. FEC, 558 U.S. 310, 357 (2010); McCutcheon

v. FEC, 134 S.Ct. 1434, 1454 (2014) (Roberts, C.J.,

joined by Scalia, Kennedy & Alito, JJ. ).6 Political parties pose no inherent corruption risk and thus can engage in independent campaign activity. See Colorado

Republican Federal Campaign Committee v. FEC, 518

U.S. 604, 618 (1996) (Breyer, J., joined by O’Connor &

Souter, JJ.) (“Colorado-I”). And this Court rejected the

requirement that political parties should be banned

from doing independent expenditures if they engage in

5 See infra note 21 (cognizable corruption).

6 This plurality opinion states the opinion of the Court,

Marks v. United States, 430 U.S. 188, 193 (1977), and is

called “McCutcheon” without “plurality” indication. Justice

Thomas concurred, saying the “decision represents a faithful application of our precedents,” but would have overruled

Buckley’s lower protection for contributions. 134 S.Ct. at

1462-63.
3

coordinated expenditures with federal candidates, despite the finding that national parties are “inextricably

intertwined withfederal officeholders and candidates.”

McConnell v. FEC, 540 U.S. 93, 155, 213-19 (2003). As

with advocacy groups, the independence of the activity

breaks the link between political parties and federal

candidates that can give rise to the threat of quid-proquo corruption because political parties pose no special

risk of quid-pro-quo corruption.

Because government lacks ananti-corruption interest to restrict donations used for independent activity.

SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir.

2010), super-PACs receive unlimited contributions (including from corporations/unions) for independent activity. And PACs making candidate contributions can

nonetheless receive unlimited contributions to a separate account for independent activity. See “FEC Statement on Carey v. FEC” (Oct. 5, 2011), www.fec.gov/

press/press2011/20111006postcarey.shtml. Crucially,

this turns on the non-corrupting nature of the expenditures, which frees the contributions used therefor from

corruption risk. See Citizens Against Rent Control v.

City of Berkeley, 454 U.S. 290, 299 (1981) (“Berkeley”)

(“Placing limits on contributions, which, in turn, limits

expenditures, plainly impairs freedom of expression.”).

As the independent activities of political parties are

equally independent, no quid-pro-quo corruption interest justifies banning nonfederal funds for independent

activity.7

7

If not subject to the federal fund’s requirement, Plaintiffs’ FEA will still be subject to the requirements of Louisiana’s campaign finance law, including a shared contribution

limit of $100,000 per 4 years. La. Rev. Stat. 18.1505.2.K.
4

While McConnell upheld the FEA Restrictions on

their face, this case involves an as-applied challenge to

the application of the FEA Restrictions to independent

FEA. The court below erroneously found that there is

“no salient distinction” (App.2a) between this as-applied challenge and the upholding of FEA Restrictions

on their face in McConnell and the decision in Republican National Committee v. FEC, 698 F. Supp. 2d 150

(D.D.C. 2010) (three-judge court) (“RNC-I”), aff’d, 561

U.S. 1040 (2010). In so doing, the court below erroneously (i) relied on general statements in McConnell

rejecting an overbreadth facial challenge, contrary to

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

(“WRTL-I”) (App.16a, 17a, 21a); (ii) similarly disregarded the implications of this Court’s analysis in Citizens United and McCutcheon because those cases did

not strike the FEA restrictions in those cases (App.14a,

18a, 22a); (iii) failed to understand that federal candidates do not have a “close relationship” with political

party independent spending as held in Colorado-I

(App.18a); (iv) decoupled the validity of contribution

limits from the expenditures they fund, contrary to

Berkeley (App.13a, 21a); and (v) failed to correctly apply this Court’s quid-pro-quo corruption analysis to

political-party independent spending (App.17a-23a).

The FEA Restrictions are also unconstitutional facially and McConnell should be overruled because only

quid-pro-quo corruption is cognizable and there is no

evidence of quid-pro-quo corruption in the record of

McConnell or any case regarding political parties, despite the contrary claim of the court below. (App.23a.)

Probable jurisdiction should be noted to fully consider these substantial issues.
5

Opinion Below

The Memorandum Opinion is at 2016 WL 6601420

and App.1a. The Order is at App.24a.

Jurisdiction

On November 7, 2016, the district court granted

FEC’s summary-judgment motion and denied Appellants’ summary-judgment motion. (App.24a.) Appellants timely noticed appeal on November 14. (App.

25a.) This Court has appellate jurisdiction under

BCRA § 403(a)(3). (App.34a.)

Constitution, Statutes & Regulations

Appended are the First Amendment; 52 U.S.C.

§§ 30101(17)-(24), 30104(e)(2)-(4), 30125(b)-(c); BCRA

§ 403(a); and 11 C.F.R. 100.24.

Statement of the Case

Since this country’s founding, the core function of

state and local political parties was twofold: nominating candidates and voter-mobilization activities, e.g.,

voter registration, voter identification, get-out-the-vote

activity, generic campaign activity, and candidate advocacy, which activities, if regulated at all, were regulated by state or local laws. Even post-Watergate

Amendments to the Federal Election Campaign Act

(“FECA”) of 1974 did not bring such traditional

political-party activities under federal regulation.8

8 FEC brought certain voter-mobilization activities under federal control by regulation—without proper statutory

authority—eventually allowing some activities to be allocated between federal and nonfederal accounts. “[A]llocation ... [was] determined by the proportion of federal offices

(continued...)
6

This was changed9by BCRA, Pub. L. No. 107-155,

116 Stat. 81 (Mar. 27, 2002), which does the following

four things to state and local parties.

First, it sweeps their traditional activities into an

FEA definition. 52 U.S.C. 30101(20).10 Some FEA is

only such for a certain time: FEC publishes such periods for (a) VR (120 days before regular election, 52

U.S.C. 30101(20)(A)(i)) and (b) VID, GCA, and GOTV

(from earliest primary filing date to the general election, id. 30101(20)(A)(ii); 11 C.F.R. 100.24(a)(1)).11

PASO-Communicationand 25%-Employee-Rule definitions apply year-round. 52 U.S.C. 30101(20)(A)(iii)-(iv).

Second, the Ban bars using any nonfederal funds12

for FEA.13

 52 U.S.C. 30125(b).

Third, the Fundraising Requirement mandates

that only federal funds be used “to raise funds ... used,

8

(...continued)

to all offices on a state’s general election ballot.” McConnell

v. FEC, 251 F. Supp. 2d 176, 196-97 (D.D.C. 2003).

9 According to the court below, “[a] primary reason for

enacting BCRA was precisely to bring an end to that acknowledged ‘soft-money loophole,’” which created “a new

constraint that did not exist under FECA.” (App.10a.)

10 See supra note 3 (FEA scope and FEA abbreviations).

11 Louisiana FEA periods related to 2016 elections were

as follows: VID/GCA/GOTV = 12/02/15 to 11/08/16; VR =

11/06/15 to 03/05/16 and 07/11/16 to 11/08/16.

12 See supra note 4 (federal/nonfederal funds defined).

13 Levin funds, 11 C.F.R. 300.31, .32, and .33(c), allow

some allocation but are not at issue here. Appellants cannot

use them, e.g., for planned broadcast communication, payments under the 25% Employee Rule, or PASO Communications. 11 C.F.R. 300.32(c). And Appellants don’t use them

generally due to their complexity, burdens, and restrictions.
7

in whole or in part, for [FEA],” 52 U.S.C. 30125(c), prohibiting nonfederal funds for such purpose.

Fourth, the Reporting Requirement imposes

monthly FEA reporting on parties that are federal “political committees,” instead of usual quarterly reporting, including identifying information on disbursements/receipts for “person[s] aggregating in excess of

$200 for any calendar year.” 52 U.S.C. 30104(e)(2)-(4).

Appellants challenge the Ban and the derivative

Fundraising and Reporting Requirements (collectively

“FEARestrictions”) as unconstitutional under theFirst

Amendment, as applied to independent FEA and facially. The Ban and Fundraising Requirements are

clearly restrictions requiring quid-pro-quo corruption

justification. The court below treated the Reporting

Requirement as a disclosure provision subject only to

minimal scrutiny. (App.15a.) But as will be argued

further in merits briefing, the provisions were considered as a unit in McConnell and so should fall as a unit

because all were justified there by a now-rejected,

broad “corruption” definition and because quid-pro-quo

corruption is absent as to the activity here.14 Here the

Appellants primarily argue against the Ban—the focus

14 McConnell mentions the Ban, see, e.g., 540 U.S. at

161-62, but not the Fundraising or Reporting Requirements, other than to indicate that “[t]he remaining provisions of [52 U.S.C. 30125] largely reinforce the restrictions

in [52 U.S.C. 30125(a)].” Id. at 133 (thereby sweeping in the

Ban and Fundraising Requirement, but not the Reporting

Requirement at BCRA § 103a). FEC acknowledges these

have been considered together. (Doc. 15 at 41 n.12 (“[O]ne

ofthe district court opinions in McConnell also reviewed the

analysis of section 30125(c) as deriving from the analysis of

section 30125(b)’s restrictions on FEA.” (citing 251 F. Supp.

2d at 412 (Henderson, J., concurring/dissenting)).)
8

of argument and opinion in McConnell—because it is

central and the other Requirements are derivative.

Harms caused by FEA Restrictions are widely recognized. For example, representatives of state parties

and a committee of the Association of State Democratic

Chairs explained harms at FEC’s political-party forum.

(See Pls.’ S.J. Mem. (Doc. 33) at 4-7.) Relief proposals

include Brennan Center for Justice’s, Stronger Parties,

StrongerDemocracy: Rethinking Reform (2015),https://

www.brennancenter.org/publication/stronger-partiesstronger-democracy-rethinking-reforming, which recommended substantialfederal deregulation of the FEA

Restrictions.

LAGOP15is a “[s]tate committee,” 52 U.S.C. 30101

(15), and “state party committee” (as a federal “political committee”). 11 C.F.R. 100.5(d)(4).

JPGOP and OPGOP are “local committees.” 11

C.F.R. 100.14(b). They are not federal political committees, so not “party committees.”

FEC enforces FECA and BCRA.

Appellants intend to do independent FEA without

complying with the FEA Restrictions if lawful, but are

currently prohibited from doing so in violation of their

First Amendment rights. Appellants verified intent to

do the full range of voter-mobilization activities and

related communications that would constitute FEA.

An example of both voter-registration activity (VR)

and get-out-the-vote activity (GOTV) is a nonpartisan

paean to patriotic participation called Get Registered

which the LAGOP had to remove from its website

when it would become VR and GOTV on FEA trigger

dates. The text follows:

15 See supra at ii (Appellants’ names and abbreviations).
9

Get Registered

Your right to vote for public officials and representatives is valuable. It is rare in human history. It was hard-won by America’s founders.

Before America gained independence, the

colonies were ruled by Great Britain. In the Declaration of Independence, the founders listed

many grievances against British rule, especially

the lack of representation. The Declaration said

King George would not enact needed laws “unless ... people ... relinquish[ed] the right of Representation in the Legislature.” It said the British were “suspending our own Legislatures, and

declaring themselves invested with power to

legislate for us in all cases whatsoever.”

The Revolutionary War rejected British rule.

America established a republic where citizens

select their representatives in government. Yet

astonishingly, many people don’t register and

vote.

As Americans who enjoy the benefits that a

democratic society offers, it is our civil duty to

actively participate in government by voting.

But more importantly, voting allows citizens the

opportunity to make direct decisions that better

our communities and allows us to build a free

and prosperous society. Many people in the

world live in places where their voices will not

be heard because they are unable to vote. So

take a stand to let your voice be heard, and help

build a stronger America by registering to vote

today!

The Louisiana Secretary of State’s website

provides valuable information to help you register and vote. For registration information and to
10

register online, see

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/P

ages/default.aspx.

The calendar of elections and deadlines for

registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/Publis

hedDocuments/ElectionsCalendar2016.pdf.

Check out those websites today, and let your

voice be heard in 2016!

An example of generic campaign activity (GCA) is

the following radio ad that LAGOP was prevented from

broadcasting in February 2016 using state funds:

AFRICAN-AMERICAN OUTREACH

Republican Party of Louisiana

:60 Script

February is Black History Month.

It is a time to honor those who have fought to

secure freedom and prosperity for our people.

A great distinction must be attributed to the

Republican Party, which was FOUNDED in

1854 with one simple creed: that “Slavery is a

violation of the rights of man.”

You see, the movement to end slavery and the

creation of the Republican Party were one and

the same.

Abolitionist leaders like Harriet Tubman and

Sojourner Truth were committed Republicans.

Frederick Douglass was one of the party’s early

champions.
11

 The first Republican President was Abraham

Lincoln—author of the Emancipation Proclamation.

Republicans voted unanimously for the 13th

Amendment, which abolished slavery.

The Republican Party has never been the

party of white Americans. Or Black Americans.

It is the party for all Americans ... promoting

freedom, justice and equal opportunity for all. 

FEMALE VO: This moment in black history

has been brought to you by the Republican

Party of Louisiana.

Appellants verified that their intended activities

would be “independent,” i.e., compliant with federal

law governing independence when the FEA is done.

Appellants intend materially similar activity in the

future, if not restricted by the challenged provisions.

On August 3, 2015, Plaintiffs-Appellants filed their

Verified Complaint (Doc.1) and three-judge-court motion under BCRA § 403 (Doc. 3), which was granted

November 25 (Doc. 23). On February 11, 2016, Plaintiffs moved for summary judgment. (Doc.33.) Discovery

and discovery disputes ensued. On March 15, FEC filed

a motion to dissolve the three-judge court or dismiss.

(Doc.40.) On March 18, FEC moved for summary judgment. (Doc.41.) On November 11, the three-judge court

issued a Memorandum Opinion (App.1a) and Order

(App.24a) denying FEC’s dissolve/dismiss motion and

Plaintiffs’ summary-judgment motion and granting

FEC’s summary-judgment motion. On November 14,

Appellants noticed appeal of these “final decision(s)” as

authorized by BCRA § 403. (App.25a.)
12

The Questions Presented

Are Substantial

The Questions Presented, supra at i, are on these

topics: (I) Whether language in prior cases decided this

as-applied challenge; (II) Whether independence eliminates quid-pro-quo corruption risk; and (III) Whether

the FEA Restrictions violate the First Amendment facially.

I.

Neither McConnell’s Broad Facial-Holding

Language Nor the Narrow Holdings of

Citizens United and McCutcheon

Preclude this As-Applied Challenge.

Appellants challenge the FEA Restrictions as applied to independent FEA, which challenge the court

below rejected in part based on some broad facial-holding language in McConnell(App.16a, 18a,18a-19a) and

narrow holdings in Citizens United and McCutcheon

(App.14a, 18a, 22a) that did not reach issues here.

The court below relied on the following language

from McConnell’s facial upholding to determine that

McConnell decided this as-applied challenge on the

merits:

• “‘Because allthose [FEA] activities “confer substantial benefits on federal candidates, the funding of

such activities creates a significant risk of actual

and apparent corruption.”’”(App.16a, quoting RNCI, 698 F. Supp. 2d at 161-62, quoting McConnell,

540 U.S. at 168.)

• “‘[I]t is the close relationship between federal officeholders and the national parties, as well as the

means by which parties have traded on that relationship, that have made all large soft-money con-
13

tributions to national parties suspect.’” (App.18a,

quoting McConnell, 540 U.S. at 154-55.)16

• “‘Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless

of how those funds are ultimately used by the parties.’” (App.18a-19a, quoting McConnell, 540 U.S. at

155 (emphasis by lower court).)

Of course, McConnell involved a facial challenge

where the question was whether the soft money ban

was substantially overboard. 540 U.S. at 166. Inherent

in that analysis is the fact that the challenged statute

may be insubstantially overboard such that, while the

statute could be upheld on its face, certain applications

would be unconstitutional. Thus, broad facial upholding language does not preclude future as-applied challenges. WRTL-I, 546 U.S. 410.

However here, the court below relied on broad

facial-upholding language, i.e., “all large soft-money

contributions,” the “regardless” language, and “all,” to

preclude this as-applied challenge. This is the sort of

mere broad language that this Court unanimously rejectedas foreclosing an as-applied challenge in WRTL-I

to distinguish “genuine” from “sham” issue ads:

We agree with WRTL that the District Court

misinterpreted the relevance of our “uphold[ing]

all applications of the primary definition” of

electioneering communications. Id., at 190, n.73.

Contrary to the understanding of the District

16 The quotes involved national parties. (App.19a-20a.)

McConnell relied on a “prediction” of “corruption”for state

and local parties. 164-65.
14

Court, that footnote merely notes that because

we found BCRA’s primary definition of “electioneering communication” facially valid when

used with regard to BCRA’s disclosure and funding requirements, it was unnecessary to consider the constitutionality of the backup definition Congress provided. Ibid. In upholding § 203

against a facial challenge, we did not purport to

resolve future as-applied challenges.

546 U.S. at 411-12 (emphasis added).

If the lower court here had engaged in the required

as-applied analysis and faithfully applied this Court’s

longstanding and consistent independence analysis, it

would have found that independence vitiates the key

aspects of McConnell’s facial analysis. First, while it is

true that coordinated FEAs “all ‘confer substantial benefits on federal candidates’” (App.16a, quoting 540 U.S.

at 168), this Court has consistently held that independent expenditures fail to provide this benefit. Buckley,

424 U.S. at 47; Citizens United, 558 U.S. at 357.

Second, while it is true that there is a “close relationship between federal officeholders and the national

parties” (App.18a-19a, citing 540 U.S. at 155) when

they coordinate their spending,17 this is not the case

17

Indeed, it is just this type of coordinated spending

that McConnell seemed to have in mind:

[B]oth parties began to use ... soft money ... for issue

advertising ... to influence federal elections. The

[Senate] Committee found such ads highly problematic for two reasons. Since they accomplished the

same purposes as express advocacy (which could

lawfully be funded only with hard money), the ads

enabled unions, corporations, and wealthy contribu-

(continued...)
15

with independent spending. Independent spending requires that the spender not coordinate its spending

with a candidate by becoming, in effect, “partners or

joint venturers” in the spending. FEC v. Christian Coalition, 52 F. Supp. 2d 45, 92 (D.D.C. 1999); see also 11

C.F.R. 109.37 (“party coordinated expenditure”). However, this close relationship is forbidden in the case of

independent spending and such a close relationship is

not inherent in the relationship between a candidate

and a political party. Colorado-I, 518 U.S. at 619 (rejecting FEC presumption that parties coordinate with

candidates).

Third, and once the link between the party spending and the candidate is broken by the independence of

the spending, this Court has consistently held that it

also breaks the connection to quid-pro-quo corruption.

See, e.g., id. at 615-16. So it does matter that the

“‘funds are ultimately used’” for independent spending.

(App.18a-19a, quoting McConnell, 540 U.S. at 155.)

Furthermore, the court below relied on narrow

holdings in Citizens United and McCutcheon to also

preclude this as-applied challenge. Regarding Citizens

United, the lower court cited this Court’s statement

that “[t]his case ... is about independent expenditures,

not soft money,” 558 U.S. at 360-61 (citations omitted),

17

(...continued)

tors to circumvent protections that FECA was intended to provide. Moreover,though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.

540 U.S. at 131 (footnote omitted). And if such coordinated

spending violates campaign-finance limitations, severe civil

and criminal penalties await. 52 U.S.C. 30109.
16

to draw the conclusion that—in accord with RNC-I,

which the lower court cited and found persuasive and

possibly binding (App.7a)

18—“Citizens United did not

disturb McConnell’s holding with respect to the constitutionality of BCRA’s limits on contributions to political parties.” (App.18a, citing RNC-I, 698 F. Supp. 2d at

153.)

Regarding McCutcheon, the court below cited McCutcheon’s statement that its “holding about the constitutionality of the aggregate limits clearly does not

overrule McConnell’s holding about ‘soft money’” (App.

18 The precedential effect of a summary affirmance extends no further than “the precise issues presented and

necessarily decided by those actions.” Mandel v. Bradley,

432 U.S. 173, 176 (1977). In RNC-I, Plaintiffs argued that

the soft money ban “cannot constitutionally be applied to

activities that are not ‘unambiguously related to the campaign of a particular federal candidate,’ Buckley, 424 U.S.

at 80,” such as communications regarding state ballot measures and FEA “not targeted to any federal race or candidate.” 698 F. Supp. 2d at 157, 160 (citation omitted). The

present as-applied challenge cuts this issue at a completely

different angle and involves issues not presented (precisely

or by implication) and necessarily decided in RNC-I because

here, even if FEAs are clearly “unambiguously campaign

related,” the FEA Restrictions could not constitutionally be

applied if the FEA were independent.

Anyway, in this Court, a summary affirmance has “considerably less precedential value than an opinion on the

merits.... ‘[U]pon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule

which a line of summary affirmances may appear to have

established.’” Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 180-81 (1979) (citations omitted).
17

14a, 22a, citing 134 S.Ct. at 1451 n.6) to conclude that

“the McCutcheon plurality’s [decision] affords no basis

for us to disregard McConnell’sholding about the facial

validity of § 323(b)” (App.14a) and, further, “forecloses

plaintiffs’ as-applied challenge” (App.22a).

However, these statements in Citizens United and

McCutcheon establish nothing more noteworthy than

that these decisions did not strike down the soft money

ban that was not at issue in either case. So the lower

court made too much of them. And while overruling its

own decisions is generally this Court’s prerogative, but

see Obergefell v. Hodges, 135 S.Ct. 2584, 2953, 2598,

2605 (2015) (district courts all found a federal constitutional right to same-sex marriage before this Court

overruled contrary precedent), lower courts still must

apply this Court’s current reasoning to issues properly

before them, as did the district courts in Obergefell. So

given the change in cognizable corruption between

McConnell and both Citizens United and McCutcheon,

the court below should have applied this Court’s current quid-pro-quo corruption analysis to the new issue

before it. But it erroneously used these statements in

Citizens United and McCutcheon to fail to do so.

So this as-applied challenge is not precluded by

McConnell, Citizens United, or McCutcheonand should

be decided on the merits. This is also a substantial

question that this Court should decide.
18

II.

The FEA Requirements Are Unconstitutional

as Applied to Independent FEA.

Appellants challenge the FEA Requirements as unconstitutional under the First Amendment’s “right to

participate in democracy” by free speech and association, McCutcheon, 134 S.Ct. at 1441, as applied to independent FEA.

The court belowerroneously rejected this as-applied

challenge by failing to apply correctly this Court’s

quid-pro-quo corruption analysis to political-party independent spending. In so doing, the court below erroneously failed to employ strict scrutiny (App.11a-14a),

employed an overbroad and now-repudiated concept of

“corruption” (App.16a, 18a-19a, 22a), failed to recognize that independence precludes quid-pro-quo corruption (App.16a-18a), and failed to recognize that there

is no evidence of political parties corrupting their candidates (App.23a). Under the correct analysis on any

one of these key points, the FEA Requirements are

unconstitutional as applied to independent FEA.

A. This Court’s Precedents Require that the FEA

Restrictions Be Subject to Strict Scrutiny.

While there is no dispute that this Court employs

strict scrutiny to determine the constitutionality of

expenditure limits on campaign spending, Buckley, 424

U.S. at 44-45; NCPAC, 470 U.S. at 500-01; Randall v.

Sorrell, 548 U.S. 230, 240-46 (2006); Citizens United,

558 U.S. at 340 (“Laws that burden political speech are

‘subject to strict scrutiny.’”), and that any expenditure

limit is per se unconstitutional, SpeechNow, 599 F.3d

at 694 (independent expenditures pose no corruption

risk as a matter of law), a controversy continues to

rage on this Court on whether contribution limits enjoy
19

strict scrutiny protection, see Randall, 548 U.S. at 265

(Thomas, J., concurring, joined by Scalia, J.); McCutcheon, 134 S.Ct. at 1462 (Thomas, J., concurring); see

generally Bopp, The Constitutional Limits on Campaign Contribution Limits, 11 Regent U. Law Rev. 235

(1998-99), or are subject to a reduced level of scrutiny

under which McConnell upheld the soft money ban,

540 U.S. at 134-42, i.e. whether the challenged restriction is closely drawn to match a sufficiently important

interest,” 540 U.S. at136.

However, this Court need not resolve this controversy here since McConnell committed a more fundamental error by choosing the level of scrutiny based on

an erroneous dichotomy: that there are only contribution and expenditure limits,19 and each is subject to its

own distinct level of scrutiny. 540 U.S. at 161 (Ban is

“a straight forward contribution regulation.”). In fact,

this Court has long recognized contribution limits that

function as expenditure limits, and that, as a result,

are invalid on that ground, even if they survive the

19 This Court has generally recognized two forms of campaign spending: contribution and expenditures. Contributions are donations of funds (“direct contributions”) and

donations of other things of value (“in-kind contributions”)

to influence an elections. 11 C.F.R. §§ 100.51-100.94. A contribution is usually given to a political actor, i.e., a candidate, political party or political action committee. An expenditure is the spending of money to influence an election. 11

C.F.R. §§ 100.110-100.155. To be an expenditure,the spending must be independent of a candidate; if the spending is

“coordinated” with a candidate, 11 C.F.R. §§ 100.30-100.37

(coordination for party committees), it will be considered a

contribution to the candidate (“coordinated expenditure”).

Thus, inherent in spending being an expenditure is that it

is independent of a candidate.
20

more relaxed scrutiny some courts have applied to contribution limits. Buckley, 424 U.S. at 34 (otherwise

valid candidate contribution limit may be unconstitutional if it prevents candidates from “amass[ing] the

resources necessary to reach the electorate”); Berkeley,

454 U.S. at 299 (striking a political committee contribution limit for ballot-measure advocacy because

“[p]lacing limits on contributions, which, in turn, limits

expenditures, plainly impairs freedom of expression.”);

McCutcheon, 134 S.Ct. 1434 at 1452 (the contribution

limit there was “restricting speech” and thus required

a robust “closely drawn” test20).

McConnellfailed to perform this functional analysis

because it looked only at the form of the ban, i.e., it

“simply limit[s] the source and individual amount of

the donations,” rather than “in any way limiting the

total amount of money parties can spend.” 540 U.S. at

139. Of course, the required functional analysis would

have revealed that the soft-money ban on national parties deprived the national parties in 2003 and thereafter of the millions of dollars in soft money they had

raised and spent prior to 2003. And state and local parties, which can raise nonfederal funds, cannot spend

those existing and available funds on FEA. (App.11a

(“Invalidation of [the FEA Ban] would enable plaintiffs

to use the corporate funds they have on hand to engage

20

“[I]f a law that restricts political speech does not

‘avoid unnecessary abridgement’ of First Amendment

rights, ... it cannot survive ‘rigorous’ review,” id. at 1446

(citations omitted), and “fit matters,” so tailoring must be

“reasonable” with “‘means narrowly tailored to achieve the

desired objective.’” Id. at 1456-57 (citation omitted). See

generally Bopp, Elf & Milanovich, Contribution Limits after

McCutcheon v. FEC, 49 Val. U. L. Rev. 361 (2015).
21

in at least some kinds of FEA, as they would have been

able to do under FECA.”).) 

Thus, the FEA Restrictions on state and local parties function as an expenditure limit on their independent FEA and strict scrutiny should apply. And this is

a substantial question that this Court should decide.

B. Only Narrow Quid-Pro-Quo Corruption Is

Cognizable, Regardless of Scrutiny Level.

Regardless of whether the FEA Restrictions are

considered a contribution or expenditure limit (with

the resulting scrutiny), this Court has only recognized

one government interest sufficient to uphold any

campaign-finance restriction: quid-pro-quo corruption.

This has been true historically and is true now. Thus,

the application of the FEA Restrictions to the Plaintiffs’ independent FEA must be justified by quid-proquo corruption. But the independence of the Plaintiffs’

FEA precludes a legitimate threat of quid-pro-quo corruption. And in any event, there is no evidence that a

political party has ever been a party to a quid-pro-quo

exchange with its candidate, and certainly not by state

and local parties with respect to their independent

FEA. Thus, the FEA Restrictions cannot be constitutionally applied to the Plaintiffs’ independent FEA,

and this is also a substantial question that this Court

should decide.

1. Historically, Quid-Pro-QuoCorruption Has

Been the Only Justification for CampaignFinance Restrictions.

Beginning with the seminal campaign finance case

of Buckley v. Valeo, this Court has held that for a candidate contribution to be limited it must pose a risk of

“be[ing] given as a quid pro quo for improper commitments from the candidate.” Buckley, 424 U.S. at 47.
22

This was reiterated and explained in NCPAC, 470 U.S.

at 497 (“Elected officials are influenced to act contrary

to their obligations of office by the prospect of financial

gain to themselves or infusions of money into their

campaigns. The hallmark of corruption is the financial

quid pro quo: dollars for political favors.”). And in Colorado-I, this Court again reiterated Buckley’s requirement. 518 U.S. at 615 (For campaign expenditures to

rise to the level of corruption, they must “be given as a

quid pro quo for improper commitments from the candidate.” (quoting Buckley, 424 U.S. at 47)).

However, 24 years after Buckley, this Court appeared to move away from this rigorous definition of

corruption in Nixon v. Shrink Missouri PAC, 528 U.S.

377 (2000), where this Court described the corruption

interest to include the “broader threat from politicians

too compliant with the wishes of large contributors.”

Id. at 390. And McConnell made the most dramatic

break by holding that access, gratitude, and consequent “circumvention” constituted “corruption” or “the

appearance of corruption.” 540 U.S. at 119 n.5, 142,

145. But in Citizens United and McCutcheonthis Court

returned to the original understanding.

2. Citizens United and McCutcheon Reaffirmed that a Finding of Quid-Pro-Quo

Corruption Is the Only Justification for

Campaign-Finance Restrictions.

First, Citizens United held that, as related to independent expenditures, “corruption” that would justify

their restriction “means quid-pro-quo corruption or the

appearance of quid-pro-quo corruption of a federal candidate.” 558 U.S. at 359. The Citizens United Court

specifically rejected influence, access, favoritism, and

gratitude or ingratiation as quid-pro-quo corruption or
23

its appearance. Id. (citing McConnell, 540 U.S. at 296-

98 (Kennedy, J., concurring/dissenting)).

Then McCutcheon applied the same requirement to

contribution limits: the “Court has identified only one

legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption,” 134 S.Ct. at 1450 (emphasis added), which is “a direct exchange of an official act for

money,” id. at 1441, which entails “‘large individual

financial contributions’ to particular candidates,” id.

(citation omitted; emphasis added), and which is “an

act akin to bribery,” id. at 1466 (Breyer, J., joined by

Ginsburg, Sotomayor & Kagan, JJ., dissenting, ). Thus,

[s]pending large sums of money in connection

with elections, but not in connection with an

effort to control the exercise of an officeholder’s

official duties, does not give rise to such quid pro

quo corruption. Nor does the possibility that an

individual who spends large sums may garner

“influence over or access to” elected officials or

political parties.... And because the Government’s interest in preventing the appearance of

corruption is equally confined ..., the Government may not seek to limit the appearance of

mere influence or access.

Id. at 1450-51 (plurality; citations omitted). 

Cognizable “corruption” thus means “‘quid-pro-quo

corruption or the appearance of quid-pro-quo corruption of a federal candidate,’” id. at 1441 (quoting Citizens United, 558 U.S. at 359), with quid-pro-quo corruption meaning only “a direct exchange of an official

act for money.” Id. (citing McCormick v. United States,
24

500 U.S. 257, 266 (1991)).21“And—importantly—we 

21 As the law now stands, cognizable corruption is as

follows: “Corruption” means quid-pro-quo corruption or the

appearance of quid-pro-quo corruption of a federal candidate, McCutcheon, 134 S.Ct. at 1441 (quoting Citizens United, 558 U.S. at 359), with quid-pro-quo corruption meaning

only “a direct exchange of an official act for money.” Id. (citing McCormick, 500 U.S. at 266). This is “an effort to control

the exercise of an officeholder’s official duties,” id. at 1450,

i.e., “an act akin to bribery.” Id. at 1466 (Breyer, J., dissenting). “Government’s interest in preventing the appearance

of corruption is equally confined to the appearance of quid

pro quo corruption[.]” Id. at 1451 (plurality). No “conjecture”—including about “recontributed funds” or contributions “rerouted to candidates”—suffices. Id. at 1441 (citing

ArizonaFree Enterprise Club’s Freedom PAC v. Bennett, 131

S.Ct. 2806, 2826-27 (2011). Influence, access, favoritism,

and gratitude or ingratiation are not quid-pro-quo corruption or its appearance. Citizens United, 558 U.S. at 359 (citing McConnell, 540 U.S. at 296-98 (Kennedy, J., concurring/

dissenting); NCPAC, 470 U.S. at 497 (“Elected officials are

influenced to act contrary to their obligations of office by the

prospect of financial gain to themselves or infusions of

money into their campaigns. The hallmark of corruption is

the financial quid pro quo: dollars for political favors”)). For

campaign expenditures to rise to the level of corruption,they

must “be given as a quid pro quo for improper commitments

from the candidate.” Colorado-I, 518 U.S. at 615 (quoting

Buckley, 424 U.S. at 47). Such corruption occurs when a

“public official receives a payment in return for his agreement to perform specific official acts.” Evans v. United

States, 504 U.S. 255, 268 (1992). That a candidate alters or

reaffirms his positions on issues because of a contribution or

makes a promise or commitment is not, in and of itself, evidence of quid-pro-quo corruption. NCPAC, 470 U.S. at 498;

(continued...)
25

‘have never accepted mere conjecture as adequate to

carry a First Amendment burden.’” Id. at 1452 (citation omitted).

3. McConnell Failed to Employ the Required Narrow Definition of Quid-ProQuo Corruption to the FEA Restrictions.

As a result of McConnell’s general departure from

a rigorous definition of corruption, it upheld the softmoney ban because nonfederal funds might cause gratitude and influence, 540 U.S. at 145, 168, or access, id.

at 119 & n.5, 124-25 & n.13, 155. “[S]oft money ... enabled parties and candidates to circumvent FECA’s

limitations ...” Id. at 126; see also id. at 145 (“widespread circumvention of FECA’s limits on contributions” due to likelihood “that candidates would feel

grateful ... and ... donors would seek to exploit that”).

The Court said such access, gratitude, and consequent

“circumvention” constituted “corruption” or “the appearance of corruption.” Id. at 119 n.5, 142, 145.

Thus, McConnell upheld the FEA Restrictions on a

now-rejected nature of the “corruption” interest, i.e.,

21

(...continued)

Brown v. Hartlage, 456 U.S. 45, 55-56 (1982) (“Some promises are universally acknowledged as legitimate, indeed ‘indispensable to decisionmaking in a democracy,’ First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978);

and the ‘maintenance of the opportunity for free political

discussion to the end that government may be responsive to

the will of the people and that changes may be obtained by

lawful means ... is a fundamental principle of our constitutional system.’ Stromberg v. California, 283 U.S. 359, 369

(1931). Candidate commitments enhance the accountability

of government officials to the people whom they represent,

and assist the voters in predicting the effect of their vote.”).
26

“close relationship,” “close connection and alignment of

interests,” “indebtedness,” and “benefits.” The court

below applied McConnell’s reasoning to this as-applied

challenge, holding that since McConnell had “concluded that because all of those [FEAs] confer substantial

benefits on federal candidates, the funding of such activities creates a significant risk of actual and apparent corruption,” “[t]hat is fully true with regard to the

independent FEA sought to be conducted by plaintiffs

in this case.” (App.16a (citations omitted).) This Court,

however, had already rejected McConnell’s broad definition of corruption in both the expenditure context,

Citizens United, 558 U.S. at 360, and the contribution

context, McCutcheon, 134 S.Ct. at 1441, by returning

to this Court’s long-held narrow definition of cognizable quid-pro-corruption in Buckley, 424 U.S. at 26, and

NCPAC. 470 U.S. at 497. 

So the court below erred in applying McConnell’s

finding of “corruption” to deny this as-applied challenge. And this is a substantial question that this

Court should decide.

C. Independence Eliminates the Threat of

Quid-Pro-Quo Corruption.

As noted, the court below rejected this as-applied

challenge on the erroneous basis that, since McConnell

found that FEA generally provides a benefit to federal

candidates, this also applies to independent FEA. (App.

16a.) In addition to erroneously applying McConnell’s

broad corruption interest to this as-applied challenge,

the court below also failed to recognize that the independence of the FEA eliminated the threat of corruption.

First, it does matter how the funds are being spent

and this is often a matter of constitutional significance.
27

Of course, McConnell, in its facial-upholding analysis,

said that “[g]iven this close connection and alignment

of interests, large soft-money contributions to national

parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of

how those funds are ultimately used by the parties.”

540 U.S. at 155 (emphasis added). But this was erroneous and the lower court compounded McConnell’s error

by disregarding the use of the funds in this as-applied

challenge. (App.19a-21a.)

Generally speaking, McConnell was wrong when it

said that it is irrelevant how “those funds are ultimately used by the parties.” 540 U.S. at 155. In fact, it was

criticalto McConnell’s own conclusion that federal candidates “benefit” from political party spending, because

those funds were being spent on FEA. (App.16a (“McConnell had concluded that because all of those [FEAs]

confer substantial benefits on federal candidates, the

funding of such activities creates a significant risk of

actual and apparent corruption.” (citations omitted)).)

Furthermore, this Court has always looked to the

ways that funds are spent to determine the constitutionality of campaign-finance regulations. Buckley, for

example, upheld contribution limits because the funds

were given to a candidate’s campaign. 424 U.S. at 23

(challenged provision regulated “contributions to any

candidate”). Similarly, California Medical Association

v. FEC 453 U.S. 182 (1981) (“CalMed”), upheld PAC

contribution limits because the funds were given to a

PAC that gave contributions to candidates, id. at 197-

99 (plurality).22 And Berkeley struck down contribution

22

Justice Blackmun’s concurrence in CalMed further

illustrates the point. He provided the critical fifth vote to

(continued...)
28

limits to a PAC that engaged only in independent

ballot-measure advocacy. Berkely, 454 U.S. at 297-99.

Thus, since the only cognizable government interest

is preventing quid-pro-quo corruption, only funds actually reaching candidates can pose such a risk because,

unless a financial quid reaches a candidate, he could

not provide the necessary official quo.23 As a result,

“independent expenditures ... do not give rise to corruption.” Citizens United, 558 U.S. at 357. “Spending large

sums of money in connection with elections, but not in

connection with an effort to control the exercise of an

officeholder’s official duties, does not give rise to such

quid pro quo corruption.” McCutcheon, 134 S.Ct. at

1450. As a result, “government ... ha[s] no ... interest in

limiting contributions to independent expenditure-only

organizations.” SpeechNow, 599 F.3d at 696. This doctrine is so firmly established that the lower courts have

recognized that “Citizens United clearly states as a

22

(...continued)

uphold the PAC contribution limit precisely because the

PAC was going to use the funds to contribute to candidates.

Id. at 203. He said that the result would have been different

if the PAC was going to use the funds for independent expenditures. Id. This is the reasoning that has correctly lead

to the uniform striking of PAC contribution limits to superPACs (independent-expenditure-only PACs)—see e.g., EMILY’s List v. FEC, 581 F.3d 1, 8-14 (D.C. Cir. 2009); SpeechNow, 599 F.3d 686, 696; North Carolina Right to Life v.

Leake, 525 F.3d 274, 292-93 (4th Cir. 2008)—and this reasoning is directly applicable to this as-applied challenge.

23

“Buckley also made clear that the risk of corruption

arises when an individual makes large contributions to the

candidate or officeholder himself.” McCutcheon, 134 S.Ct. at

1460 (citation omitted). For the corruption risk to arise,

“money [must] flow[] ... to a candidate.” Id. at 1452.
29

matter of law that independent expenditures do not

pose a danger of corruption or the appearance of corruption.” Id. at 695.

D. Political Party Independent Spending Is Also

Non-Corrupting.

Nor may the government presume spending by political parties, as opposed to other independent spenders, is inherently corrupting: “We are not aware of any

special dangers of corruption associated with political

parties....” Colorado-I, 518 U.S. at 616 (plurality). Indeed, “[w]hat could it mean for a party to ‘corrupt’ its

candidate or to exercise ‘coercive’ influence over him?”

Id. at 646 (Thomas, J., joined by Rehnquist, C.J., and

Scalia, J., concurring in judgment, dissenting in part).

“[R]ather than indicating a special fear of the corruptive influence of political parties, the legislative history demonstrates Congress’ general desire to enhance

what was seen as an important and legitimate role for

political parties in American elections.” Id. at 618. “‘[A]

vigorous party system is vital to American politics,”

and “‘[p]ooling resources from many small contributors

is a legitimate function and an integral part of party

politics.’” Id. (citations omitted). 

Furthermore, “the basic nature of the party system

... [allows] party members [to] join together to further

common political beliefs, and citizens can choose to

support a party because they share ... beliefs.” McCutcheon, 134 S.Ct. at 1461. “[R]ecast[ing] such shared

interest ... as an opportunity for ... corruption would

dramatically expand government regulation of the political process.” Id. (citations omitted).

In fact, this Court has viewed political parties as

posing less corruption risk than individuals:
30

If anything, an independent expenditure made

possible by a $20,000 donation, but controlled

and directed by a party rather than the donor,

would seem less likely to corrupt than the same

(or a much larger) independent expenditure

made directly by that donor. In any case, the

constitutionally significant fact, present equally

in both instances, is the lack of coordination between the candidate and the source of the expenditure. See Buckley, [424 U.S.] at 45-46;

NCPAC, [470 U.S.] at 498. This fact prevents us

from assuming, absent convincing evidence to

the contrary, that a limitation on political parties’ independent expenditures is necessary to

combat a substantial danger of corruption of the

electoral system.

Colorado I, 518 U.S. at 617-18.

McConnell, however, seems to treat political parties

as suspect, but this seems to be based on a hidden presumption of coordination of party spending. 540 U.S. at

131 (“Both parties began to use ... soft money ... for

issue advertising ... to influence federal elections. The

[Senate] Committee found such ads highly problematic

for two reasons.... [Second,] though ostensibly independent of the candidates, the ads were often actually

coordinated with, and controlled by, the campaigns.”

(footnote omitted)). But Colorado-I forbids that presumption: “The question ... is whether the [lower]

Court ... erred as a legal matter in accepting the Government’s conclusive presumption that all party expenditures are ‘coordinated.’ We believe it did.” 518 U.S. at

619. That independent-communication case (ColoradoI) must control, not McConnell, because “[t]his case ...

is about independent expenditures,” Citizens United,
31

558 U.S. at 361.

Regarding coordination of political-party expenditures with candidates, no presumption is permissible

because the independent communications party-committees may make, 11 C.F.R. 109.30, may not be coordinated with a candidate, 11 C.F.R. 109.37 (“What is a

‘party coordinated communication’?”). And Colorado-I

expressly rejected the FEC’s presumption that political

parties cannot make independent communications because (as the FEC presumed) all political-party committee communications were coordinated with a political party’s candidates. 518 U.S. at 614-22. What the

Colorado-I opinions said in rejecting presumed coordination controls here.

Colorado-I was remanded to decide whether the

Party Expenditure Provision limits were unconstitutional facially, i.e., whether the government could limit

coordinated expenditures. FEC v. Colorado Republican

Federal Campaign Committee, 533 U.S. 431 (2001)

(“Colorado-II”), held there could be limits on coordinated expenditures. As Plaintiffs’ activities do not involve coordination, Colorado-II does not control.

24

So the independence of the spending on FEA is a

decisive and constitutionally significant fact, that

breaks the tie between the donor and the party, and

the candidate. As a result, the independence of Appellants’ proposed spending on FEA precludes a finding of

quid-pro-quo corruption and requires the sustaining of

this as-applied challenge. This is also a substantial

question that this Court should decide.

24 McConnell recognized that Colorado-II involved coordinated expenditures, with independent expenditures being

another kettle of fish. 540 U.S. at 145 n.45 (citations omitted).
32

E. There Is No Record Evidence that State or

Local Political Parties’ IndependentSpending

Involves Quid-Pro-Quo Corruption.

The court below claimed that, if a quid-pro-quo corruption interest is necessary to uphold the FEA Restrictions, the court in RNC-I accomplished that task.

(App.22a-23a.) This is erroneous.

Rather than finding that there was evidence of

quid-pro-quo corruption in the relationship between

donors, political parties, and their candidates, RNC-I

principally relied on McConnell’s ambiguity: whether

McConnell’s finding, that there is a “‘close relationship

between federal officeholders and the national parties,’” and its conclusion, that “‘[g]iven this close connection and alignment of interests, large soft-money

contributions to national parties are likely to create

actual or apparent indebtedness on the part of federal

officeholders, regardless of how those funds are ultimately used,’” gave rise to an “independently sufficient

rationale for the Court to uphold the blanket ban on

soft-money.” 698 F. Supp. 2d at 159-160 (citation omitted; emphasis added).

This is clearly erroneous. First, McConnell’s indebtedness finding applied only to national parties, not

state parties, and the FEA Restrictions were upheld

against the latter by a “prediction” of “corruption.”

(App.19a-20a, quoting McConnell, 540 U.S. at 161, 165

(emphasis added).) Second, McConnell was clear that

the indebtedness it saw as created by the donor’s contribution to a national party was a corrupt relationship, not an independent government interest. 540

U.S. at 155. Third, this Court has clearly and repeatedly established that only the actuality and appearance of quid-pro-quo corruption can justify campaign
33

finance restrictions. See, e.g., Citizens United, 558 U.S.

at 359; McCutcheon, 134 S.Ct. at 1441. And fourth, this

Court in Colorado-I rejected this theory as nonsensical.

25

So as to the FEA Restrictions on state and local

political parties, the government must establish a bona

fide threat of actual or apparent quid-pro-quo corruption to justify them. Despite over 27 years of trying

(since FEC’s 1989 “probable cause” finding leading to

FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1441, 1451 (1993)), it has failed to

do so.

In the present case, Appellants stipulated with FEC

that the records in the major, relevant campaign-finance cases may be considered part of the record in

this case. These included Buckley, 424 U.S. 1; Colorado-I, 533 U.S. 431, Colorado-II, 533 U.S. 431, McConnell, 540 U.S. 93, and RNC-I, 698 F. Supp. 2d 150.

(Joint Scheduling Report (Doc. 20) at 4-5.) There is no

evidence in the record of these or any other FEC cases

that national, state, or local party independent spending involved now-cognizable quid-pro-quo corruption,

and especially related to spending for independent

FEA.

For example, McConnell was the landmark FEA

case with the mammoth record, yet FEC “identified not

a single discrete instance of quid pro quo corruption

25 Colorado-I rejected the notion that a party “expenditure is ‘coordinated’ because a party and its candidate are

identical, i.e., the party, in a sense, ‘is’ its candidates.” 518

U.S. at 622. “We cannot assume ... this is so,” the plurality

continued, and such “a metaphysical identity ... arguabl[y]

... eliminates any potential for corruption ....” Id. at 623

(citation omitted).
34

attributable to the donation of non-federal funds.”

McConnell, 251 F. Supp. 2d at 395 (op. Henderson, J.).

The McCutcheon dissent recognized that though the

McConnell record showed “access” and “influence,” 134

S.Ct. at 1469, it did not show narrow quid-pro-quo corruption:

The District Judges in McConnell made clear

that the record did “not contain any evidence of

bribery or vote buying in exchange for donations

of nonfederal money.” 251 F. Supp. 2d, at 481

(opinion of Kollar-Kotelly, J.) (emphasis added).

Indeed, no one had identified a “single discrete

instance of quid pro quo corruption” due to soft

money. Id., at 395 (opinion of Henderson, J.).

134 S.Ct. at 1469-70 (Breyer, J., joined by Ginsburg,

Sotomayor & Kagan, JJ., dissenting) (quoting McConnell, 251 F. Supp. 2d at 395) (op. Henderson, J.).).

In Colorado-I there was no evidence of quid-pro-quo

corruption from the state party’s independent communication related to a federal candidate. 518 U.S. at 618

(“The Government does not point to record evidence or

legislative findings suggesting any special corruption

problem in respect to independent party expenditures.”).

In Colorado-II, this Court found it unnecessary to

determine if there were “quid pro quo arrangements

and similar corrupting relationships between candidates and parties.” 533 U.S. at 456 n.18. The district

court, however, did and found no factual evidence of

quid-pro-quo corruption between contributors, parties,

and candidates. FEC v. Colorado Republican Federal

Campaign Committee, 41 F. Supp. 2d 1197, 1211-12 (D.

Colo. 1999) (no corruption in the form of contributors

“forc[ing] the party committee to compel a candidate to
35

take a particular position”); id. at 1212-13 (no “corruption” from parties’ influence over candidates because

“decision to support a candidate who adheres to the

parties’ beliefs is not corruption”); id. at 1213 (“FEC

has failed to offer relevant, admissible evidence which

suggests that coordinated party expenditures must be

limited to prevent corruption or the appearance thereof.”).

And FEC proved no narrow quid-pro-quo corruption

by political parties in McCutcheon. See, e.g., 134 S.Ct.

1450-51 (rejecting dissent’s broad “corruption” on

which FEC relied).

In this case, the court below made no quid-pro-quo

corruption finding, instead relying on language in

McConnell and RNC-I, which did not find quid-pro-quo

corruption, as already discussed.

So despite nearly three decades of trying, FEC has

shown no cognizable quid-pro-quo justification for the

FEA Restrictions. Thus, whether the FEA Restrictions

are unconstitutional as applied to independent FEA is

a substantial question that this Court should decide.

III.

The FEA Restrictions Are Also

Unconstitutional Facially.

Appellants also challenge the FEA Restrictions

facially. McConnell upheld the challenged provisions

facially, 540 U.S. 93, though there was no evidence of

quid pro quo corruption attributable to the donation of

non-federal funds to any national, state or local political party. See Part II(E). However as this Court held in

Citizens United, 558 U.S. at 359-60, and McCutcheon,

134 S.Ct. at 1450-51, it has returned to Buckley’s requirement that evidence of quid-pro-quo corruption is

required to uphold such restrictions. So McConnellwas
36

wrongly decided. The challenged provisions, all upheld

facially on now-rejected broad “corruption,” are facially

unconstitutional.

This is also a substantial question that this Court

should decide.26

Conclusion

For the foregoing reasons, this Court should note

probable jurisdiction.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Corrine L. Purvis

THE BOPP LAW FIRM, PC

 The National Building

 1 South Sixth Street

 Terre Haute, IN 47807

 812/232-2434 telephone

 812/235-3685 facsimile

 jboppjr@aol.com

 Counsel for Appellants

26 The court below said it must leave to this Court the

overruling of McConnell’s facial upholding of the FEA Restrictions. (App.14a.)