UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY ARGUMENTS RELATED 

TO PLAINTIFFS’ SECOND MOTION IN LIMINE 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Steve Hajjar 

Graham M. Wilson 

Seth Nesin 

Kate Tironnen 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: December 12, 2008 (202) 694-1650 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 1 of 30
TABLE OF CONTENTS 

 Page 

I. PROFESSOR WILCOX’S REPORT PLAINLY COMPORTS 

 WITH THE FEDERAL RULES OF EVIDENCE AND SHOULD 

 NOT BE STRICKEN...........................................................................................2 

 A. Professor Wilcox’s Preparation of His Report........................................2 

 B. Professor Wilcox’s Methods Readily Meet the Standards 

 of Daubert and Its Progeny.....................................................................3 

 1. The Daubert Standard Gives the Court Flexibility 

 and Discretion ............................................................................4 

2. Professor Wilcox Directed His Own Research, 

 Considered a Variety of Sources, and Drew Upon 

 His Own Significant Expertise....................................................5 

3. SpeechNow’s Other Criticisms of Professor Wilcox 

 Lack Merit.................................................................................10 

II. SPEECHNOW REPEATEDLY IGNORES AND MISCHARAC- 

 TERIZES PORTIONS OF SOURCES CITED BY PROFESSOR 

 WILCOX IN HIS EXPERT REPORT .............................................................14 

A. Michael J. Malbin, Rethinking the Campaign Finance Agenda, 

6 The Forum, Issue 1, Article 3 (2008) (Gall Decl. Exh. F).................14 

B. Richard N. Engstrom & Christopher Kenny, The Effects of 

 Independent Expenditures in Senate Elections, 55 Political 

 Research Quarterly 885 (2002) (Gall Decl. Ex. G) ..............................17 

C. Gary C. Jacobson, The Effects of the AFL-CIO’s “Voter 

 Education” Campaigns on the 1996 House Elections, 61 

 Journal of Politics 185 (1999) (Gall Decl. Exh. H) ..............................18 

III. SPEECHNOW REPEATEDLY MISCHARACTERIZES PORTIONS 

 OF PROFESSOR WILCOX’S PREVIOUS SCHOLARLY WORKS ............19 

A. Clyde Wilcox, et al., The Financiers of Congressional Elections: 

 Investors, Ideologues and Intimates (Columbia University 

 Press 2003)............................................................................................19 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 2 of 30
2

B. Clyde Wilcox, et al., Interest Groups and Advocacy Organizations 

 After BCRA, in The Election After Reform: Money, Politics, 

 and the Bipartisan Campaign Reform Act 112 (Michael Malbin 

 ed., Rowman & Littlefield Publishers 2006) (FEC Exh. 55)................21 

C. Clyde Wilcox, Designing Campaign Finance Disclosures in 

 the States: Tracing the Tributaries of Campaign Finance, 

 4 Election Law Journal 371 (2005) (Gall Decl. Exh. I).......................21 

IV. THE OPINIONS OF PLAINTIFFS’ EXPERTS ARE COMPLETELY 

UNSUPPORTED..............................................................................................23 

V. PROFESSOR WILCOX’S EXPERT REPORT IS ADMISSIBLE AS 

EVIDENTIARY SUPPORT FOR THE FEC’S PROPOSED FINDINGS 

 OF FACT ..........................................................................................................25

CONCLUSION.............................................................................................................26 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 3 of 30
GLOSSARY 

SN Facts = Plaintiffs’ Opening Brief on Proposed 

Findings of Fact for Certification Under 

2 U.S.C. § 437h, Oct. 28, 2008 (Dkt. # 44) 

FEC Facts = FEC’s Proposed Findings of Fact, Oct. 28, 

2008 (Dkt. # 45) 

FEC Resp. Mem. = FEC’s Memorandum in Support of Response 

to Plaintiffs’ Proposed Findings of Fact, Nov. 

24, 2008 (Dkt. # 57-2) 

FEC Resp. to SN Facts = FEC’s Response to Plaintiffs’ Proposed 

Findings of Fact, Nov. 21, 2008 (Dkt # 55) 

SN Resp. to FEC Facts = Plaintiffs’ Brief in Response to the FEC’s 

Proposed Findings of Fact, Nov. 21, 2008 

(Dkt. # 54) 

SN 1st Mot. = Plaintiffs’ First Motion in Limine, Nov. 21, 

2008 (Dkt. # 51) 

Reply re 1st Mot. = FEC’s Reply Arguments Related to Plaintiffs’ 

First Motion in Limine, Dec. 12, 2008 

SN 2nd Mot. = Plaintiffs’ Second Motion in Limine, Nov. 21, 

2008 (Dkt. # 52) 

Reply re 2nd Mot. = FEC’s Reply Arguments Related to Plaintiffs’ 

Second Motion in Limine, December 12, 

2008 

SN Rebuttal Facts = Plaintiffs’ Proposed Findings of Fact in 

Rebuttal, Nov. 21, 2008 (Dkt. # 53) 

 

FEC Resp. to SN 

Rebuttal Facts 

= FEC’s Response to Plaintiffs’ Proposed 

Findings of Fact in Rebuttal, Nov. 21, 2008 

(Dkt. # 55) 

FEC Reply = FEC’s Reply Regarding Proposed Findings of 

Fact, Dec. 12, 2008 

FEC Reply Mem. = FEC’s Memorandum in Support of Reply 

Regarding Proposed Findings of Fact, Dec. 

12, 2008 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 4 of 30
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) REPLY ARGUMENTS RE

FEDERAL ELECTION COMMISSION, ) SECOND MOTION IN LIMINE 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY ARGUMENTS RELATED 

TO PLAINTIFFS’ SECOND MOTION IN LIMINE 

As part of its defense of the longstanding provisions of federal law challenged by the 

plaintiffs (collectively “SpeechNow”), the Federal Election Commission (“Commission”) has 

relied on the expert report of Clyde Wilcox, a professor of Government at Georgetown 

University for 21 years and widely-published authority on campaign finance. (See Report of 

Expert Witness Professor Clyde Wilcox (“Rept.”), FEC Exh. 1 at 3, 30 ff. (summarizing and 

listing publications).) SpeechNow has moved this Court to strike his report in full. 

Significantly, SpeechNow does not dispute Professor Wilcox’s qualifications. Nor does it allege 

that his report is not relevant to the issues here. Instead, SpeechNow moves this Court to 

exclude Professor Wilcox’s report by impugning part of his methodology. To do so, SpeechNow 

repeatedly mischaracterizes — or simply ignores — portions and aspects of his methods, 

previous scholarly writings, testimony, and report itself. Professor Wilcox gathered evidence 

through routine methods of social science research, including interviews and a review of the 

relevant literature, and SpeechNow fails to establish any reason why the Court should not make 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 5 of 30
2

findings of fact consistent with each detail of Professor Wilcox’s report, let alone establish that 

his report should be entirely excluded from evidence. 

I. PROFESSOR WILCOX’S REPORT PLAINLY COMPORTS WITH THE 

FEDERAL RULES OF EVIDENCE AND SHOULD NOT BE STRICKEN 

A. Professor Wilcox’s Preparation of His Report 

At his deposition, Professor Wilcox explained at length how he prepared his report. The 

Commission asked him to answer two major questions (Report at 4; Wilcox Deposition (“Dep.”) 

at 71, FEC Exh. 18): 

1. Do unlimited contributions to an association whose major purpose is 

candidate advocacy and which makes only independent expenditures pose 

a danger of corruption or the appearance of corruption? Would donors to 

these groups likely get preferential access to or undue influence over 

candidates? 

2. Is there an important interest in full disclosure of campaign funding that is 

endangered if there is not full disclosure of all receipts and expenditures of 

groups whose major purpose is candidate advocacy? 

To answer these questions, Professor Wilcox considered a multiplicity of sources of which he 

had become aware over many years; reviewed the portions of the campaign finance literature he 

considered most “pertinent”; conducted a few interviews; and asked questions of other scholars. 

(See Dep. at 74-77, 83-86 & Dep. Exhs. 6, 9, 12). As Professor Wilcox explained (Dep. at 74), 

his task was to consider the two questions posed to him by the Commission, gather evidence, and 

come to a conclusion. (See also id. at 71 (“What I was asked to do here was to address two 

questions to the best of my scholarly ability. . . . To . . . assess the questions, look around for 

evidence, make my conclusion, and then write a case from my conclusion.”); id. at 77 (“[M]y 

task as I understood it was to think through this particular topic, to come up with an answer, to 

then write a report . . . with the evidence for this answer.”). As would be expected from a 

“veteran scholar and researcher” (2nd Mot. at 5), Professor Wilcox has read widely. And 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 6 of 30
3

although he naturally considered much of the materials with which he is familiar from years as a 

political scientist and teacher in formulating his conclusions, he only cited sources he found most 

“relevant” to his conclusions. (See Dep. at 78.) 

 Professor Wilcox’s report reveals his thorough methods. He draws upon dozens of 

sources of varying types to provide expert testimony that is both reliable and relevant. He 

arrives at his conclusions by gathering and reviewing both systematic and anecdotal empirical 

data. Professor Wilcox’s report and conclusions rely on at least 60 separate sources including, 

inter alia, 9 fact witness declarations; at least 10 newspaper accounts; the results of 3 public 

opinion polls; the administrative reports of 2 states; statements from his interviews with another 

2 expert political scientists and a former Senate majority leader; more than 30 scholarly articles; 

and statistics regarding contributions to, and expenditures by, various political organizations. 

(Rept. at 26-30.) 

B. Professor Wilcox’s Methods Readily Meet the Standards of Daubert and 

Its Progeny 

 Federal Rule of Evidence 702 governs the admission of expert testimony in Federal 

Court. It provides: 

If scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or education, 

may testify thereto in the form of an opinion or otherwise, if (1) the testimony 

is based upon sufficient facts of date, (2) the testimony is the product of 

reliable principles and methods, and (3) the witness has applied the principles 

and methods reliable to facts of the case. 

Plaintiffs’ motion points out a handful of supposed flaws in Professor Wilcox’s expert report, 

and on that basis argues that the entire report should be excluded as unreliable under Rule 702 

and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This argument 

fundamentally misunderstands the law regarding expert testimony. Daubert and its progeny 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 7 of 30
4

were not intended to lead to exclusion of helpful evidence; rather, they were intended to enhance 

the flexibility of the court by rejecting the earlier “general acceptance test” for scientific 

evidence. See SEC v. Johnson, 525 F. Supp. 2d 70, 73 (D.D.C. 2007) (“Daubert lowered the 

threshold for admissibility of scientific evidence, envisioning a ‘limited gatekeeper role’ for trial 

judges.”). In 2000, Rule 702 was amended in response to Daubert and its progeny to give the 

court greater discretion to allow expert testimony. 

1. The Daubert Standard Gives the Court Flexibility and Discretion 

An expert may testify “to any body of known facts or to any body of ideas inferred from 

such facts or accepted as truths on good grounds.” Daubert, 509 U.S. at 590. In a frequentlycited portion of the opinion, Daubert identified four factors to consider in making a 

determination of the scientific validity of an expert’s opinion. Id. at 593-94. Those factors were 

whether the reasoning: (1) can be and has been tested, (2) has been subjected to peer review, 

(3) has a known or potential rate of error, and (4) has been generally accepted by the scientific 

community. Id. at 593-94. But Daubert stressed that “many factors will bear on the inquiry, and 

we do not presume to set out a definitive checklist or test.” Id. at 593; Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 150-51 (1999) (the four factors “may or may not be pertinent in 

assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and 

the subject of his testimony”); see also Pineda v. Ford Motor Co., 520 F.3d 237, 248 (3d Cir. 

2008) (Daubert factors are “non-exhaustive” and other factors include “relevant literature [and] 

evidence of industry practice”). 

Numerous courts have recognized that, although the general principles of Daubert apply 

to expert testimony outside the hard sciences, the four factors specifically identified in Daubert 

are not particularly useful in evaluating the validity of social science experts such as Professor 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 8 of 30
5

Wilcox. See United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (“Because there are 

areas of expertise, such as the social sciences in which the research, theories and opinions cannot 

have the exactness of hard science methodologies, trial judges are given broad discretion to 

determine whether Daubert’s specific factors are, or are not, reasonable measures of reliability in 

a particular case.” (internal quotations omitted)); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 

1297 (8th Cir. 1997) (recognizing methodological limitations in social-science research and 

holding such expert testimony admissible). In cases where the testimony of an expert is not 

generally susceptible to controlled testing, “other indicia of reliability are considered under 

Daubert, including professional experience, education, training, and observations.” United 

States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006). 

2. Professor Wilcox Directed His Own Research, Considered a 

Variety of Sources, and Drew Upon His Own Significant Expertise 

Professor Wilcox considered numerous sources, reviewed relevant campaign literature, 

conducted interviews, and questioned other scholars — a routine expert methodology. (See 

supra pp. 2-3.) Indeed, an “acceptable social science methodology” can include much less; 

a recognized expert can simply combine a review of the relevant information with his 

“knowledge of the professional research and literature in the field.” Dukes v. Wal-Mart, Inc., 

222 F.R.D. 189, 191-92 (N.D. Cal. 2004). This review of literature in the field by an expert with 

knowledge and expertise is “a conventional social science approach that courts have routinely 

admitted as methodologically reliable.” Bowers v. National Collegiate Athletic Ass’n, 564 F. 

Supp. 2d 322 (D.N.J. 2008); see also Arnold v. Cargill, Inc., No. 01-2086, 2006 WL 1716221, at 

*6-*7 (D. Minn. June 20, 2006); EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 461-62 

(S.D.N.Y. 2004); Dukes, 222 F.R.D. at 191-92. Furthermore, when a proffered expert is highly 

credentialed and prominent in the field, such as Professor Wilcox, the court may treat that as 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 9 of 30
6

“circumstantial evidence as to whether the expert employed a scientifically valid methodology or 

mode of reasoning.” Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). 

Plaintiffs argue at length about supposed inadequacies in Professor Wilcox’s review. As 

discussed supra in Part I.A., however, Plaintiffs grossly mischaracterize the actual care and 

consideration that Professor Wilcox devoted to his report. Moreover, even if Professor Wilcox 

had failed to examine certain sources adequately, those concerns would go to the “weight and 

credibility of the evidence, to be determined by the trier of fact,” but would not be a reason to 

exclude Professor Wilcox’s report entirely. Bell v. Gonzales, No. 03-163, 2005 WL 3555490, at 

*19 (D.D.C. Dec. 23, 2005) (citing Ambrosini, 101 F.3d at 141); see also Morgan Stanley, 324 

F. Supp. 2d at 461-62 (“[The] critiques of [an expert]’s testimony, including that he does not rely 

on first-hand knowledge or studies, that his opinions are subjective, that a social framework 

methodology is not accepted, and that he omits inconsistent literature, are factors that should be 

evaluated and weighed by the trier of fact.”) 

Plaintiffs have also accused Professor Wilcox of bias in his alleged failure to review 

certain materials sufficiently. But courts in this district have rejected that argument as a reason 

to exclude an expert. 

Defendants accuse [the expert witness] of “cherry picking” evidence in favor of 

one party, rather than reliably applying an accepted methodology to all the 

evidence presented. In its review of precedent and the Federal Rules, the Court 

has encountered no authority rigidly requiring that an expert review all relevant 

information in a case in order to have his or her testimony admitted into 

evidence. . . . Failing to review all relevant evidence is not a ground for 

excluding [the expert]’s testimony; rather, it provides subject matter for crossexamination. In short, Defendants’ arguments “go to the weight of [the 

expert’s] testimony rather than the admissibility.” 

SEC v. Johnson, 525 F. Supp. 2d 70, 75-76 (D.D.C. 2007) (quoting Wechsler v. Hunt Health 

Sys., 381 F. Supp. 2d 135, 144-45. (S.D.N.Y. 2003)) (internal citations omitted); see also 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 10 of 30
7

Ambrosini, 101 F.3d at 141 (reversing district court’s exclusion of experts because “[b]y 

attempting to evaluate the credibility of opposing experts and the persuasiveness of competing 

scientific studies, the district court conflated the questions of the admissibility of expert 

testimony and the weight appropriately to be accorded such testimony by a fact finder.”)

Professor Wilcox’s opinion falls well within the bounds of acceptable expert opinion as 

explained in Daubert and later cases. 

Professor Wilcox’s review of the relevant literature included some materials provided by 

the Commission. But as he explained (Dep. at 77), the Commission in no way directed his 

research: Although the Commission shared certain relevant documents with him, “[T]hey said, 

‘You’re an expert. Go. Figure this out.’” Moreover, the considerable number of sources relied 

upon by Professor Wilcox belies SpeechNow’s allegation (2nd Mot. at 5) that the FEC directed 

his research. SpeechNow notes (id. at 8) that the Commission sent at least 17 sources to 

Professor Wilcox that appeared in his report. This ignores, however, that almost three-fourths of 

the sources he relied upon were not provided by the Commission. (See Rept. at 26-30 (citing 

approximately 64 separate sources).)1 SpeechNow makes no attempt to reconcile this fact with 

its claim (2nd Mot. at 3) that Wilcox “relie[d] wholesale on materials supplied to him by others 

rather than undertaking independent research . . .”2

 

 

1

 In addition, SpeechNow’s contention that the Commission simply directed his research is 

also belied by the fact that the Commission sent Professor Wilcox several sources that he did not

use. For example, in his report Professor Wilcox did not cite at least five documents attached to 

a July 11, 2008 email from the Commission to him. (See Gall Decl. Exh. B.) The attachments to 

this email not cited by Professor Wilcox include Billboard Bonanza Lobbyist Stands to Make 

Millions if LA Lifts Freeway Ban, Up the River: An Empirical Analysis of the Effectiveness of the 

Swift Boat Commercials, Fast Start for Soft Money Groups in 2008, Bush Backers Donate 

Heavily to Veterans Ads, and The Birth of An Attack on Kerry. 

2

 SpeechNow’s claim that Professor Wilcox did not conduct independent research is also 

refuted by its admission (2nd Mot. at 6) that he interviewed a former elected official. 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 11 of 30
8

 SpeechNow’s claim that the FEC directed Professor Wilcox’s research is also 

contradicted by portions of his testimony that SpeechNow omits from its motion. SpeechNow 

alleges (2nd Mot. at 8) that much of the evidence cited by Professor Wilcox was not the product 

of his own independent research, including, for example, the report of the California Fair 

Political Practice Commission (“CFPPC”) and the results of opinion surveys. Professor Wilcox 

testified (Dep. at 82-83), however, that he was aware of the existence of the CFPPC report prior 

to conversations with the Commission, that he was the first to suggest that the experience of 

individual states would be particularly salient because of existing federal contribution limits, and 

that he could not remember whether it was he or the Commission that first mentioned the 

relevance of the CFFPC report. He also explained (id.) that he specifically asked for the results 

of the “Mellman Wirthlin” report from the McConnell case analyzing a public opinion survey, so 

the Commission’s sending of that information at his request does not support SpeechNow’s 

claim that the Commission directed his research.3

In any event, SpeechNow cites no precedent or rule, and the Commission is aware of 

none, that suggests that an expert cannot rely on materials provided by counsel. Indeed, it is 

 

SpeechNow’s argument that he should have conducted more interviews is puzzling, given that 

neither of SpeechNow’s experts conducted any such interviews. 

3

 As part of its argument that the Commission directed his research, SpeechNow also notes 

(2nd Mot. at 8) that at the Commission’s suggestion, Professor Wilcox did not review facts 

specific to the plaintiffs. Indeed, the Commission specifically asked Professor Wilcox to answer 

two questions (see supra p. 2), which asked generally about what might ensue if the limits on 

contributions to organizations that fund independent expenditures are struck down. Such 

explanation by counsel of the topics on which an expert report is needed hardly constitutes 

improper direction of a report. The Commission’s decision to seek expert testimony on the 

“abstract question” of the dangers of permitting unlimited contributions to political committees, 

(Dep. at 78), rather than on the facts specific to the particular plaintiffs here, makes great sense. 

SpeechNow was created to bring a test case and it has engaged in virtually no activity beyond 

this lawsuit — see FEC’s Mem. in Support of Resp. to Pls.’ Prop. Findings of Fact at 1-4, Doc. 

No. 56 — but a victory for it here would likely have huge ramifications on other organizations 

and the entire campaign finance system. 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 12 of 30
9

entirely routine for counsel to supply materials to their experts, which is precisely why the 

“privilege normally afforded attorney work product gives way to the realities of expert 

preparation in regard to materials presented to an expert for consideration in forming an opinion 

to which he will testify at trial.” In re Air Crash Disaster at Stapleton Int’l Airport, 720 F. Supp. 

1442, 1444 (D. Colo. 1988). Indeed, in some cases “[a]n expert who was not an eye witness to 

the events about which he will testify obtains the majority of the material he considers through 

the attorneys who employ him.” Id. (emphasis added). See also In re TMI Litigation, 166 F.R.D. 

8, 10 (M.D. Pa. 1996) (expert’s testimony admissible even though his knowledge of the TMI 

accident “was limited to the information provided to him by Plaintiffs’ counsel” as long as other 

evidence from plaintiff substantiates the information provided to expert). While crossexamination may be an appropriate tool for plaintiffs to question Professor Wilcox’s 

methodology — a procedure that plaintiffs have already had an opportunity to use — there is no 

basis for excluding his testimony. This case does not concern a technical dispute about 

adjudicative facts, and “[t]his is not a situation in which [the Commission’s] counsel supplied the 

expert with a skewed version of the facts without a footing in the evidence” offered to the Court. 

NN&R, Inc. v. One Beacon Ins. Group, No. 03-5011, 2006 WL 2845703, at *3 (D.N.J. 2006). 

Finally, plaintiffs “point to no misstatement that [Wilcox] relied on that may have tainted his 

understanding” of the issues in the case. Id. Thus, his “opinion and methodology are 

sufficiently reliable and relevant to meet the requirements of Fed. R. Evid. 702.” Id. 

The number of sources relied on by Professor Wilcox, almost three-quarters of which he 

independently located, belies SpeechNow’s claim (2nd Mot. at 5) that time pressures caused 

Professor Wilcox to prepare nothing more than a position paper based on sources provided by 

the FEC. The claim that Wilcox “simply cobbled together materials” is directly contradicted by 

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10

portions of his testimony omitted by SpeechNow. When asked by counsel “Was it a rush job?”, 

Professor Wilcox testified “No, but it was a priority job.” (Dep. at 75.) See also id. at 78 (“[I]t’s 

not a rush job, but time was a priority.”). He also testified that he reviewed a significant amount 

of material while preparing for his report, but only cited those sources which he found the most 

relevant.4

 (See also id. at 76 (“I didn’t list everything I read, but the parts that I ended up finding 

relevant for this report I do cite . . .”).) His considerable efforts are evident in his twenty-six 

page, single-spaced, well-documented final report.

3. SpeechNow’s Other Criticisms of Professor Wilcox Lack Merit 

SpeechNow impugns (see, e.g., 2nd Mot. at 3, 6) Professor Wilcox’s report with a variety 

of other specious criticisms. But even a cursory review of the report’s purported deficiencies 

reveals that the errors SpeechNow accuses Professor Wilcox of making are illusory, and that 

there is no basis in law or fact to strike his report. 

 First, SpeechNow argues (2nd Mot. at 19) that the report is inadmissible because 

Professor Wilcox testified that he would not submit it for publication to a political science 

journal or post it on the internet. SpeechNow ignores, however, Professor Wilcox’s explanations 

at deposition why his expert report was not a good candidate for publication in a journal. Wilcox 

explained (Dep. at 71, 74, 319) that political science journals typically publish “very short papers 

that address a narrow issue” of a “controversial nature,” with “original research,” not “broad, . . . 

synthetic reviews of the literature.” Wilcox believes that his report’s conclusions, which involve 

the well-established threat of corruption or its appearance that would arise from unlimited 

 

4

 Professor Wilcox, for example, reviewed materials provided to him by another scholar 

and by a graduate student he asked to locate materials. In both instances, Professor Wilcox 

reviewed the materials, including two conference papers and various papers on the topic of 

corruption, but found them irrelevant and did not cite them. (See Dep. at 83-86, 98-99 & Dep. 

Exh. 6.) 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 14 of 30
11

contributions to groups that fund independent expenditures, are not sufficiently controversial to 

appeal to publishers of political science journals (id. at 319): 

Here I’m just drawing on scholarship and my own expertise to answer specific 

questions. These questions turned out not to be of deep theoretical interest of 

the discipline. I think at the end of the day . . . these are not the questions the 

discipline is primarily concerned about right now, and it would be my guess that 

most people would get this and then say, yeah, well, so what? We know that. 

Professor Wilcox testified that his report could instead be revised so that it would be suitable for 

a book chapter “because book chapters are typically longer,” “have more room for . . . nuance 

and subtlety and . . . qualitative evidence.” (Id. at 320.) His reluctance to submit the report for 

publication to a political science journal thus suggests nothing about the care he took to write it 

or its capacity to assist the Court. Indeed, after the testimony quoted by SpeechNow (2nd Mot. 

at 19), Professor Wilcox then went on to say “I think I did a good job. I did my best to answer 

the questions and put together the evidence that supports it. So, as a scholar, I stand by the 

report.” (Dep. at 71.) 

 Second, SpeechNow absurdly suggests (2nd Mot. at 6) that Professor Wilcox erred 

because he did not review the “entire campaign finance literature” when preparing his report. 

The campaign finance literature is, however, remarkably broad and Professor Wilcox testified 

that such a review would take six months and would be difficult to achieve in light of new 

articles that continually come out. (Dep. at 77-78.) Professor Wilcox’s testimony was that 

during the time he was preparing the report he “read a lot of stuff,” for both the report and in 

preparation for his classes (id. at 76), that he “reviewed in [his] mind various evidence that [he] 

had over the years,” “reread some articles” and “looked at the literature” (id. at 74), and then 

cited the reports he thought were most “pertinent” (id. at 76) and “relevant” (id. at 78). Such a 

process is exactly the sort of review of the literature one would expect from an expert who was 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 15 of 30
12

already familiar it. The review of the entire campaign finance literature that SpeechNow 

contends is required would undoubtedly include a host of topics that fall under the rubric of 

campaign finance, but are scarcely germane to the issues raised in this case.5 SpeechNow cites 

nothing which suggests that an expert must become familiar with an entire literature relating to 

an entire field of academic or legal inquiry, no matter how far-flung and irrelevant its subtopics 

might be to the specific issues before the court. 

 Third, SpeechNow asserts (2nd Mot. at 6) that Professor Wilcox failed to review the 

“most pertinent academic works.” SpeechNow identifies those “most pertinent” works as those 

relied on by its expert, Professor Jeffrey Milyo. SpeechNow does not, however, explain how 

those particular works are the most pertinent of the “entire campaign finance literature” and more 

pertinent than the sources relied upon by Professor Wilcox. (Id. at 6-7.) In fact, Professor Milyo 

cites one source that is completely irrelevant. Robyn Dawes’ theoretical work “Social 

Dilemmas” makes absolutely no mention of contributions, independent expenditures, campaign 

finance, or elections. Milyo considers Dawes’ work relevant insofar as he uses it to support his 

theoretical claim that collusive behavior is generally less likely to occur when the number of 

persons involved in a potentially collusive arrangement increases. (See Robyn Dawes, Social 

Dilemmas, Ann. Rev. Psychology, Volume 31:169-93 (1980); FEC Exh. 154.) But as the 

Commission explained (FEC’s Response to Plaintiffs’ Proposed Findings of Fact [Doc. No. 55] 

at 56-58), Milyo was unable at deposition to explain how collusive behavior between an 

 

5

 Such topics include, to name just a few, the reporting requirements for candidates and 

political parties, prohibitions against contributions by foreign nationals or in the name of another, 

regulations for allocation between federal and nonfederal accounts for state and local political 

parties, the public financing system and federal matching funds, the use of campaign funds for 

non-campaign purposes, etc. SpeechNow makes no attempt to explain how all the issues that 

touch upon campaign finance are relevant to this case, or why Wilcox was obligated to 

familiarize himself with them. 

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13

officeholder and SpeechNow would fit within this system of payoffs described by Dawes. Thus, 

one of the works Milyo considers “most pertinent” to this case is not relevant at all. 

 Fourth, SpeechNow falsely claims (2nd Mot. at 16-17) that Professor Wilcox has not 

supported his conclusion that the “quality and impact of independent expenditures and candidatefocused issue advocacy has increased,” or his conclusion that “[m]ost independent expenditures 

and issue advocacy campaigns are designed by professionals, pretested by professionals, and 

their impact is studied by professionals in order to create more effective campaign for the next 

election.” Wilcox, however, provides (Rept. at 16) ample support for both conclusions, 

including an article by scholar David Magleby as well as specific facts evincing the 

professionalism of recent campaign activities undertaken by organizations like the NRA, the 

AFL-CIO, America Coming Together, and the National Federation of Independent Business. 

Similarly, SpeechNow claims that Wilcox does not provide support for his conclusion that 

“access-seeking donors will be directed to make large contributions to the most effective 

[independent expenditure] committees.” Again, however, Wilcox supports his conclusion with 

myriad examples of access-seeking donors making indirect contributions to parties, issue 

advocacy campaigns, and independent expenditure campaigns (Rept. at 6-13). He also supports 

his conclusion with Robert Hickmott’s declaration from McConnell in which Hickmott noted 

that hard money contributors are often asked to help fund independent expenditure campaigns to 

help the same candidate. Each of Professor Wilcox’s claims are supported by the political 

science literature, historical examples, and other evidence in his report. 

Finally, SpeechNow argues (2nd Mot. at 7) that Professor Wilcox fails to consider 

academic works that cast doubt on the conclusions of studies he cited. SpeechNow, however, 

identifies only one supposedly suspect study, a 1990 article authored by Thomas Hall and Frank 

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14

Wayman. SpeechNow claims that Professor Wilcox was not entitled to rely on this article 

because others have subsequently criticized its methodology. To make its point, SpeechNow 

cites only one source, the Rebuttal Report of Professor James Snyder, Jr. from McConnell v. 

FEC, No 02-0582 (D.D.C. 2003). However, the fact that a single source exists that criticizes 

another academic article is no basis for striking an expert report, and SpeechNow cites nothing 

which even remotely suggests that it is. Cf. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 

746 n.15 (3rd Cir. 1994) (“[T]here will be cases in which a party argues that an expert’s 

testimony is unreliable because the conclusions of an expert’s study are different from those of 

other experts. In such cases, there is no basis for holding the expert’s testimony inadmissible.”). 

II. SPEECHNOW REPEATEDLY IGNORES AND MISCHARACTERIZES 

PORTIONS OF SOURCES CITED BY PROFESSOR WILCOX IN HIS 

EXPERT REPORT

SpeechNow claims (2nd Mot. at 9) that Professor Wilcox ignored portions of materials 

upon which he relied that might contradict his conclusions, but SpeechNow mischaracterizes — 

or itself ignores — portions of those materials and his discussion of them. 

A. Michael J. Malbin, Rethinking the Campaign Finance Agenda, 

6 The Forum, Issue 1, Article 3 (2008) (Gall Decl. Exh. F) 

SpeechNow alleges (2nd Mot. at 9-10) that Professor Wilcox overlooks portions of 

Michael J. Malbin’s article, Rethinking the Campaign Finance Agenda, to create a false 

impression that Malbin concluded that unlimited contributions to independent expenditure 

groups create a risk of corruption. Quoting Malbin, Wilcox writes (Report at 5): 

When large contributions are permitted, policymakers have pressured potential 

donors to give large sums before their issues are addressed by government. 

Political scientist Michael Malbin notes that these efforts might be thought of as 

harassment or ‘rent seeking’ by politicians, but “whatever the language, the 

record is replete with fully documented examples from 1972 onward. This is 

not about appearances. The problem is real, it cannot possibly be rooted out 

with disclosure, and it is stimulated by unlimited contributions” (Malbin 2008). 

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15

Based on this quotation, SpeechNow alleges (2nd Mot. at 10) that Wilcox has misled the reader 

into assuming that Malbin had concluded that unlimited contributions to groups that fund 

independent expenditures create a risk of corruption. A fair reader, however, would understand 

that Malbin was discussing direct contributions to candidates, and that Wilcox was appropriately 

relying on that discussion. The Malbin quotation appears in the second of three paragraphs of 

Professor Wilcox’s report devoted specifically to a background point, i.e., the dangers of large 

direct contributions to candidates. (Rept. at 5.) The paragraphs begin: “The danger of large 

direct contributions to candidates is well established in political science.” (Id.). A few sentences 

later, Wilcox turns to discussing unlimited contributions to independent expenditure groups: 

“Large contributions to groups whose principal purpose is to make independent expenditures has 

the same potential for corruption as large direct contributions to candidates.” Only by ignoring 

the paragraphs that surround Wilcox’s quotation of Malbin can SpeechNow complain that 

Wilcox has fooled the reader. 

 Moreover, SpeechNow overstates the extent to which Malbin’s observations might differ 

from Professor Wilcox’s conclusions. Malbin contrasts independent spending and contributions, 

(2nd Mot. at 10), but at that point in his article he is discussing whether independent spending

should be limited, not whether the size of contributions to groups devoted to independent 

advocacy should be limited. Gall Decl., Exh. F at 3 (discussing a debate between proponents of 

“the abolition of contribution limits” and those who “say the Constitution should be amended to 

let Congress limit spending”). Limiting spending by political committees is, of course, 

foreclosed by Supreme Court precedent and not at issue in this case. In that context, Malbin 

points out only that preventing officeholders from seeking funds deals with “quasi-extortion,” 

but he does not say that it solves the problem of “quasi-bribery,” noting that “[c]onstraining the 

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16

ability to ask does not solve all of the world’s problems.” Id. at 3-4. Thus, Wilcox did not 

inappropriately rely on the Malbin article. 

 If anything, Professor Wilcox may have underused the Malbin article in support of his 

conclusions. There are at least three places in Malbin’s article not referenced by Professor 

Wilcox at which Malbin’s conclusions support the conclusions in the expert report: 

1. Professor Wilcox notes (Rept. at 21-22) that money is more likely to matter at 

other stages of the legislative process than roll-call voting. Malbin agrees, citing 

the Hall and Wayman study for the proposition that “contributions have an 

agenda-setting effect.” Gall Decl., Exh. F at 2. 

2. Wilcox describes (Rept. at 9-11) the rise of organizations since 2002 through 

which large contributors have aided particular candidates and avoided candidate 

contribution limits. Malbin makes similar points, noting for example: “Since 

2002, individual mega-donors have been looking around for their best election 

vehicles under the new law.” Gall Decl., Exh. F at 8. 

3. Wilcox states (Report at 6) his research shows that many contributors to 

candidates “give in part or primarily to protect or promote their business 

interests.” Malbin discusses an ongoing study of the motivations of donors and 

contrasts the motivations of donors of $500 or more with donors of $100 or less. 

While both sets of donors “report being motivated by general or universalistic 

concerns,” large donors “far more often say they are motivated to give because of 

a concern for their own business interests.” (Gall Decl., Exh. F at 12.) 

It is thus clear that Professor Wilcox’s reliance on Malbin was sound and offers no support for 

SpeechNow’s motion in limine. 

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B. Richard N. Engstrom & Christopher Kenny, The Effects of Independent 

Expenditures in Senate Elections, 55 Political Research Quarterly 885 (2002) 

(Gall Decl. Ex. G) 

Professor Wilcox says that “[s]cholars have generally concluded independent 

expenditures do help candidates” and quotes a conclusion from Richard Engstrom and 

Christopher Kenny’s The Effects of Independent Expenditures in Senate Elections: “independent 

expenditures can significantly affect vote choice. . . In general, our results seem to conform to 

the conventionally accepted account of the 20-year history of independent expenditures in U.S. 

elections.” (Rept. at 13.) SpeechNow claims (2nd Mot. at 11-12) that Professor Wilcox has 

ignored the portion of Engstrom and Kenny’s article that notes that although writers have 

mentioned independent expenditures as an example of corruption, “it is rare to find independent 

expenditures figuring prominently in more rigorous examinations of the role money plays in 

politics.” (Gall Decl. Exh. G, at 889.) 

These two statements are not inconsistent. Engstrom and Kenny explain the 

“conventionally accepted account” by pointing to a number of academic articles arguing that 

independent expenditures affect elections. (See id. at 888-90, discussing works by Latus, Sabato, 

and Sorauf). Engstrom and Kenny characterize their own empirical analysis as “more rigorous” 

than the other pieces mentioned, and their findings are consistent with the “conventionally 

accepted account” they describe of independent expenditures affecting vote choice. (Id. at 885, 

888-90.) Engstrom and Kenny’s empirical study, along with earlier theoretical works, are thus 

consistent with Professor Wilcox’s statement that “[s]cholars have generally concluded 

independent expenditures do help candidates” (Rept. at 13.) In turn, their work supports 

Professor Wilcox’s statement (Rept. at 6) that there is “ample evidence that candidates appreciate 

independent expenditure campaigns, and would be likely to reward those who fund them.” 

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 Moreover, Professor Wilcox draws (Rept. at 18-22) from numerous additional resources 

in support of his conclusion that candidates appreciate independent expenditure campaigns, 

including Weissman and Hassan’s 2006 study “BCRA and 527 Groups,” 6 sworn fact witness 

declarations from the McConnell case litigated in 2002, and various events within the last few 

years in Wisconsin and West Virginia. 

C. Gary C. Jacobson, The Effects of the AFL-CIO’s “Voter Education” 

Campaigns on the 1996 House Elections, 61 Journal of Politics 185 (1999) 

(Gall Decl. Exh. H) 

SpeechNow also claims (2nd Mot. at 12-13) that Professor Wilcox selectively quotes from 

Gary Jacobson’s study of the effect of union-sponsored issue advocacy in the 1996 election to 

exaggerate the effect of independent expenditures on election results. SpeechNow’s argument is 

illogical and meritless. Wilcox writes (Rept. at 13-14): 

Political scientist Gary Jacobson, one of the leading experts on Congressional 

elections, concludes from his careful statistical analysis of the impact of the 

AFL-CIO’s issue advocacy campaigns in 1996 that “labor can plausibly claim 

responsibility for defeating a majority of first term [Republican] losers. Thus, 

money spent outside the regular campaigns on ‘voter education’ can have a 

major effect on election results.” 

SpeechNow notes (2nd Mot. at 12) that Jacobsen also concluded: “money, by itself, does not 

defeat incumbents. Only in combination with potent issues and high-quality challengers do even 

the best-financed campaigns have a decent chance of succeeding.” SpeechNow also notes (id. 

at 13) that Jacobson concluded that “Labor’s ‘voter education’ drive achieved its goal only when 

the Democratic candidate conducted a vigorous local campaign, confirming the need for all three 

conditions — plenty of money, potent issues, and capable challengers — to defeat House 

incumbents.” SpeechNow suggests (2nd Mot. at 12-13) that Professor Wilcox purposely 

overlooks the latter two conclusions because they somehow cast doubt on the conclusion he did 

quote. But Professor Jacobson’s conclusions do not conflict with each other, and SpeechNow 

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19

makes no attempt to explain how they do. Money spent outside regular campaigns can have a 

major effect on election results, even if by itself that type of spending is not sufficient to defeat 

incumbents. And even if it is true that “plenty of money, potent issues, and capable challengers” 

are all necessary conditions to defeat House incumbents, SpeechNow does not explain how this 

conflicts with the notion that money spent outside regular campaigns can have a major effect on 

election results. The proposition that money spent outside a regular campaign is neither 

necessary nor sufficient to produce a dispositive election result does not conflict with the 

proposition that this type of spending can, in fact, have a major effect. 

III. SPEECHNOW REPEATEDLY MISCHARACTERIZES PORTIONS OF 

PROFESSOR WILCOX’S PREVIOUS SCHOLARLY WORKS 

SpeechNow claims (2nd Mot. at 9) that Professor Wilcox ignores portions of his own 

works that might contradict his expert report’s conclusions. A closer look reveals that 

SpeechNow attempts to manufacture inconsistency between Wilcox’s report and his previous 

works by mischaracterizing those works, or by ignoring portions of his deposition testimony. 

A. Clyde Wilcox, et al., The Financiers of Congressional Elections: Investors, 

Ideologues and Intimates (Columbia University Press 2003) 

In his expert report, Professor Wilcox explains (Rept. at 6) that many contribute to 

candidates in order to promote their business interests, as indicated by a survey of congressional 

donors of $1,000 or less in 1996 that showed that “nearly three in four admit that they give for 

[those] reasons at least some of the time.” SpeechNow argues (2nd Mot. at 13-14) that this 

quotation “produces the impression that [Wilcox] believes that those seeking access are the 

largest group of donors.” This impression, SpeechNow claims (id.), conflicts with the 

conclusion drawn by Wilcox and his four co-authors in The Financiers of Congressional 

Elections that the “vast majority of donors give for ‘ideological’ reasons.” 

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20

There is, however, no conflict between Professor Wilcox’s report and his book. That 

book is the source on which Professor Wilcox relied for the very proposition at issue in his 

report. (Rept. at 6 & n.1.) Professor Wilcox’s report does not produce the impression claimed 

by SpeechNow, i.e., that the majority of donors seek access solely to promote their business 

interests. Rather, Professor Wilcox merely explains that the majority of donors contributing 

$1,000 or less in 1997 to congressional candidates admit that they give to promote their business 

interests at least some of the time. People obviously often give to candidates for multiple 

purposes and Professor Wilcox explained precisely that in his Report, noting that contributors 

make contributions “for a variety and mixture of motives” and that “many are ‘investors’ who 

give in part or primarily to protect or promote their business interests.” (Rept. at 6.) 

Regardless, the comparison SpeechNow tries to draw is inapposite. In their book, 

Professor Wilcox and his co-authors write about contributions of $1,000 or less to congressional 

candidates, and the motivations for those donations, as background. The bulk of Professor 

Wilcox’s report addresses the results likely to ensue if individuals can make large, unlimited 

contributions to independent groups. He concludes that donors making large contributions are 

more likely to get access to candidates, not that all donors — including small donors making 

contributions of $1,000 or less — are likely to get the same access, or are even seeking such 

access. In any event, there is an appearance of corruption when individuals obtain preferential 

access from their large, unlimited contributions and advance their business interests, regardless 

of whether those individuals had additional motivations. 

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B. Clyde Wilcox, et al., Interest Groups and Advocacy Organizations After BCRA, 

in The Election After Reform: Money, Politics, and the Bipartisan Campaign 

Reform Act 112 (Michael Malbin ed., Rowman & Littlefield Publishers 2006) 

(FEC Exh. 55) 

SpeechNow’s pattern of mischaracterizing Professor Wilcox’s previous scholarly works 

continues in its discussion of “Interest Groups and Advocacy Organizations After BRCA,” 

a chapter co-written with three other scholars in the book The Election After Reform. The article 

states that “officeholders do not ask for the contributions to 527s, so the potential reward is no 

longer so direct”; SpeechNow claims (2nd Mot. at 15) that Professor Wilcox’s concluded in his 

report that “individuals who donate to independent groups will gain influence over candidates 

who are grateful for their support.” But this mischaracterization, and SpeechNow’s claim that 

these statements are inconsistent, is based on a straw man of its own creation. Wilcox’s actual

conclusion is not expressed in the absolute terms SpeechNow suggests. Wilcox concludes 

(Report at 4; emphasis added) that “unlimited contributions to groups that air independent 

expenditures would frequently lead to preferential access for donors . . . .” This conclusion 

hardly conflicts with the notion that the potential reward to a candidate is less direct than 

situations where the candidate specifically asks for the contribution. In any event, whether the 

candidate has specifically asked for a contribution or not, there is a danger of corruption and its 

appearance. 

C. Clyde Wilcox, Designing Campaign Finance Disclosures in the States: 

Tracing the Tributaries of Campaign Finance, 4 Election Law Journal 

371 (2005) (Gall Decl. Exh. I) 

SpeechNow argues (2nd Mot. at 16) about additional purported inconsistencies by 

juxtaposing Professor Wilcox’s observation that “[t]he dangers of large direct contributions to 

candidates is well-established in political science,” with his past observations that debate persists 

about corruption and that it is difficult to define and prove. SpeechNow compares apples to 

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22

oranges. In his report, Professor Wilcox concludes that there is little debate among political 

scientists about the dangers of large direct contributions to candidates. Conversely, in Designing 

Campaign Finance Disclosure in the States, Wilcox clearly refers (at 373) to an ongoing 

“societal debate over what constitutes corruption” that has included broad segments of the public 

“includ[ing] academics, journalists non-profit associations, politicians, and on occasion ordinary 

citizens . . .” Notably, SpeechNow’s quotation from this paragraph of Wilcox’s article omits this 

language, which makes clear that he is referring to a broader public debate, as opposed to the 

reduced level of debate among political scientists. 

During Wilcox’s deposition, counsel for SpeechNow inquired into the subject matter of 

these purported inconsistencies, but SpeechNow now completely ignores Professor Wilcox’s 

detailed response. He explained why political scientists have generally concluded that large 

contributions pose a risk of corruption even though they have been unable to prove it to a 

certainty. Professor Wilcox explained (Dep. at 168-70) that the dangers of large direct 

contributions are well-established because political scientists have been writing about these 

dangers since at least the early 1930s and that most would agree that “at some point really large 

contributions create the possibility for corruption.” Nonetheless, he explains (id.; emphasis 

added) that because unlimited contributions to federal candidates have been illegal for over thirty 

years, political scientists have largely been unable to study their effects systematically: 

Q: “The danger of large contributions is well-established in political science.” 

Well-established. Does that mean that there are lots of — there’s lots of 

empirical research or something else? 

A: Something else. 

Q: And what is that something else? 

A: It means that it becomes an understanding that most political scientists have 

acknowledged in some form or another in their writing. We don’t actually write 

about this much because large direct contributions to candidates have been 

banned since 1974. . . . But at some point or another in most of the research, 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 26 of 30
23

plus most of the writings many, many political scientists have . . . talked about 

the fact that unlimited contributions can lead to corruption. 

Proving corruption from unlimited direct contributions is indeed difficult when those 

very contributions are illegal.6

 For example, Professor Wilcox noted (Report at 21-22) in his 

report that a systematic study of the impact of contributions on roll-call votes involved PAC 

contributions. While the study showed that the PAC contributions had limited impact on rollcall voting by members of Congress, such research involved PAC contributions limited by law, 

as opposed to unlimited contributions. As Professor Wilcox explains (id. at 22), “the weak 

relationship between PAC contributions and policymaking is precisely what contribution limits 

in FECA were intended to create.” 

IV. THE OPINIONS OF PLAINTIFFS’ EXPERTS ARE COMPLETELY 

UNSUPPORTED 

Federal Rule of Evidence 702 provides that expert testimony must be based on “sufficient 

facts or data.” As explained above, Professor Wilcox’s report relies on actual systematic and 

anecdotal empirical data drawn from over 60 separate sources, including witness declarations, 

public opinion polls, personal interviews, newspaper accounts, state administrative reports, 

scholarly articles and statistics regarding federal and state contributions and expenditures. 

Nonetheless, SpeechNow repeatedly asserts that Professor Wilcox’s report lacks evidentiary 

support. (See, e.g., 2nd Mot. at 3, 9, 16.) 

These accusations are surprising, considering that conclusions drawn by each of 

SpeechNow’s experts, Rodney Smith and Professor Jeffrey Milyo, are completely unsupported. 

 

6

 See FEC v. Colorado Republican Fed. Campaign Comm. (“Colorado II”), 533 U.S. 431, 

457 (2001) (“Since there is no recent experience with unlimited coordinated spending, the 

question is whether experience under the present law confirms a serious threat of abuse from the 

unlimited coordinated party spending as the Government contends. Cf. Burson v. Freeman, 

504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) (noting difficulty of mustering evidence to 

support long-enforced statutes).”) 

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Smith, for example, opines that “(b)ecause the cost of acquiring new donors is often greater than 

the amount received from a new donor, small groups usually start at a loss and remain there until 

they go into debt and/or cease to exist.” (SN Facts ¶ 82.) Smith’s opinion, however, is entirely 

unsupported. As the Commission explained (FEC’s Memorandum in Support of Response to 

Plaintiffs’ Proposed Findings of Fact (“FEC Resp. Mem.”) [Doc. No. 56] at 9-10), the two 

matrices in Smith’s report that purport to illustrate the costs of fundraising were invented by him 

and not intended to actually mirror reality. Neither matrix is based on historical data. Smith also 

opines that “raising money via the Internet” is “out of reach for the vast majority of non-wealthy 

candidates and start-up organizations.” (SN Facts ¶ 81.) Smith’s report does not, however, 

include any specific fundraising cost ratios, or any other data which contradicts the common 

understanding that fundraising is now cheaper than it has ever been due primarily to the effects 

of the Internet on fundraising costs.7

 (See FEC Resp. Mem. at 12-13.) 

Similarly, Professor Milyo opines about the significance of large contributions as seed 

funding and a signaling tool without evidentiary support. (See SN Facts ¶¶ 79, 90; Milyo Decl. 

¶¶ 54, 93.) As explained by the Commission (FEC Resp. Mem. at 18), Milyo’s assertions are 

pure conjecture: he relies exclusively on contributions to 527s in 2003 and 2004, he conducted 

no interviews with operators of political groups or their donors, he omits discussing or citing any 

scholarly articles or studies on the subject of large contributions as a signaling tool, and he fails 

to consider the various circumstances that might affect whether a political organization in any 

particular election cycle successfully raises funds. Seen in this light, if Professor Wilcox’s report 

 

7

 As the Commission explains (FEC Resp. Mem. at 12-13), Rodney Smith’s report not 

only lacks evidentiary support regarding the effect of the Internet on political fundraising, but he 

is also not qualified to speak as an expert on the subject. His last foray into Internet political 

fundraising was with the National Republican Senatorial Committee more than ten years ago, 

and he admits that he “would not purport to be an expert in internet fundraising.” (See Smith 

Dep. at 19, 24, FEC Exh. 15.) 

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25

— based on actual systematic and anecdotal empirical data — were to be found inadmissible, 

then so must the plaintiffs’ expert reports. 

V. PROFESSOR WILCOX’S EXPERT REPORT IS ADMISSIBLE AS 

EVIDENTIARY SUPPORT FOR THE FEC’S PROPOSED FINDINGS OF FACT 

Plaintiffs also ask (at 2-3) the Court to exclude Professor Wilcox’s report because it does 

not meet the requirements of Rule 56(e), but the parties have not filed summary judgment 

motions and Professor Wilcox has, in any event, verified his report in sworn deposition 

testimony. Rule 26(a)(2)(B) requires only that expert reports be “signed by the witness,” Fed. R. 

Civ. P. 26(a)(2)(B), as Professor Wilcox did on the cover (see Rept.). 

Even if the Court were to consider each of the technical requirements of Rule 56 as 

applicable to the fact-finding in this case, Professor Wilcox’s expert report is admissible for 

summary judgment purposes because he identified and endorsed it in deposition testimony, and 

he has subsequently affirmed the report’s contents in a sworn declaration. Where an expert has 

verified or reaffirmed his or her report in deposition testimony, the unsworn report may be 

considered at summary judgment. See Maytag Corp. v. Electrolux Home Prods., Inc., 448 

F. Supp. 2d 1034, 1064 (N.D. Iowa 2006); Medtronic Xomed, Inc. v. Gyrus ENT LLC, 440 

F. Supp. 2d 1300, 1310 n.6 (M.D. Fla. 2006). Alternatively, a party may cure the deficiency of 

an unsworn expert report by filing a subsequent declaration or affidavit by the expert verifying 

the report’s contents. E.g., Straus v. DVC Worldwide, Inc., 484 F. Supp. 2d 620, 634 (S.D. Tex. 

2007); Brenord v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 133 F. Supp. 2d 179, 183 n.1 

(E.D.N.Y. 2001); Microbix Biosystems, Inc. v. Biowhittaker, Inc., 172 F. Supp. 2d 665, 675 n.20 

(D. Md. 2000). 

In this case, plaintiffs deposed Professor Wilcox, and during that deposition his report 

was marked as an exhibit and he identified the report and stated that he stood by the report. 

Case 1:08-cv-00248-JR Document 63-3 Filed 12/12/2008 Page 29 of 30
26

(Dep. at 68-69, 73). To remove any doubt, Professor Wilcox has also verified the contents of his 

report in a sworn declaration. Wilcox Decl., FEC Exh. 166. Plaintiffs had a full opportunity to 

address the basis of Professor Wilcox’s report during his deposition, and the authenticity of the 

report has been confirmed. There is thus no basis for exclusion of Professor Wilcox’s report 

under Rule 56 or for the factual record being developed pursuant to 2 U.S.C. § 437h. 

CONCLUSION 

For the foregoing reasons, Professor Wilcox’s report should be admitted as an expert 

report and relied upon by the Court. 

Respectfully submitted, 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

_/s/ Graham M. Wilson________ 

Steve Hajjar 

Graham M. Wilson 

Seth Nesin 

Kate Tironnen 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: December 12, 2008 (202) 694-1650 

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