UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) Response to Plaintiffs’

FEDERAL ELECTION COMMISSION, ) Proposed Findings of Fact in 

 ) Rebuttal 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S RESPONSE TO PLAINTIFFS’ 

PROPOSED FINDINGS OF FACT IN REBUTTAL 

The Federal Election Commission (“Commission”) hereby submits the following 

response to the Plaintiffs’ Proposed Findings of Fact in Rebuttal to the FEC’s Proposed Findings 

of Fact filed by plaintiffs SpeechNow.org (“SpeechNow”), David Keating, Edward Crane, Fred 

Young, Brad Russo and Scott Burkhardt (collectively “plaintiffs”). 

I. Facts in Rebuttal to the Defendant’s Expert Report 

166. There are no scientific studies of the treatment effect of independent expenditures 

on either political corruption or the appearance of corruption. Decl. of Jeffrey Milyo, Ph.D., in 

Supp. of Pls.’ Resp. to Def.’s Proposed Findings of Fact ¶ 3(c) [hereinafter Milyo Rebuttal 

Decl.]. 

FEC RESPONSE: This proposed rebuttal fact is misleading and the Court should decline 

to adopt it. Professor Wilcox has explained (Wilcox Dep. at 168-70, FEC Exh. 18) that because 

unlimited contributions 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? 

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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, 

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. 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.” 

In addition, Professor Milyo admits that this fact does not mean that there is no 

relationship between independent expenditures and political corruption, just that he does not 

think it has been explored. Professor Milyo stated at his deposition that he is not aware of a 

study, one way or the other, that even “attempts to explore the relationship between independent 

expenditures and public policy, let alone any undue or corrupt influence on policy.” (Milyo Dep. 

at 274, FEC Exh. 12.) 

167. There are no scientific studies of the treatment effect of campaign contribution 

limits of any sort on either political corruption or the appearance of corruption, except for Primo 

and Milyo (2006), who examine the treatment effect of campaign finance laws on public opinion 

regarding political efficacy and find little support for the notion that contribution limits increase 

public trust in government. Milyo Rebuttal Decl. ¶¶ 3(d), 33. 

FEC RESPONSE: The Court should not adopt this proposed finding of fact as it is 

contradicted by the article Milyo cites, as discussed at his deposition. The paper, which Milyo 

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wrote with David Primo, actually found that “public disclosure and restrictions on contributions 

from organizations improve perceived political efficacy.” (Milyo Dep. at 283; Milyo Dep. Ex. 

10; David M. Primo and Jeffery Milyo, Campaign Finance Laws and Political Efficacy: 

Evidence from the States, Elec. L. J. Vol. 5:1 (2006).) Additionally, the study only involved an 

“analysis at the state level looking at state political institutions” (See Milyo Dep. at 285:1-2, FEC 

Exh. 12), and not all states have limits comparable to those at issue in this case. 

168. There exist a handful of studies that superficially examine the association between 

limits on contributions to candidates and political corruption with mixed results (e.g. Stratmann 

2003; Alt and Lassen 2003; Maxwell and Winters 2005); however, these studies do not 

convincingly identify the treatment effect of contribution limits because they do not examine 

changes in limits on changes in corruption within state/country. Milyo Rebuttal Decl. ¶ 3(d) n.1. 

FEC RESPONSE: This proposed rebuttal fact should be disregarded because it is 

misleading. It is probably true that many studies purport to examine the relationship between 

contribution limits and corruption with mixed results. But as Professor Wilcox explained, this is 

so for reasons not acknowledged in SpeechNow’s proposed rebuttal fact. First, Professor Wilcox 

explains that corruption is inherently difficult to measure. (See Wilcox Dep. at 38-40, FEC Exh. 

18) (“[W]e really don’t really have a very good measure of the dependent variable [i.e.. 

corruption].”) (“[W]e don’t have any quantitative studies of [corruption] because everyone 

understands that we can’t measure the dependent variable very well.”.) 

Second, Professor Wilcox explains (Wilcox Dep. at 168-70, FEC Exh. 18) 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. Proving corruption from 

unlimited direct contributions is indeed difficult when those very contributions are illegal. 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 

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that the PAC contributions had limited impact on roll-call 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.” 

 169. There are other political activities beside contributions to independent expenditure 

groups that have value to candidates. For example, consider a group of community organizers 

that work to get out the vote in neighborhoods that are home to citizens that disproportionately 

support the incumbent. Such activity would be valuable to the incumbent. As another example, 

consider a group of campaign volunteers that go above and beyond what is expected in providing 

services to an incumbent’s campaign (working late nights and weekends, engaging in 

enthusiastic voter outreach activities, etc.); such activities would also be valuable. Finally, an 

incumbent politician may enjoy disproportionate popularity among environmentalists, or women, 

or union members, or residents of a certain geographical area, etc.; the votes of such interest 

groups are also valuable to the incumbent. Milyo Rebuttal Decl. ¶ 7. 

FEC RESPONSE: This proposed rebuttal fact is irrelevant and the Court should decline 

to adopt it. While candidates may be grateful for many activities other than contributions to 

organizations that make independent expenditures, the constitutionality of those activities are not 

at issue in this case. Congress has not chosen to regulate these activities. Nor has Congress 

otherwise recognized that these activities pose a danger of corruption or its appearance. 

Conversely, Congress has chosen to regulate contributions to organizations that make 

independent expenditures, and the Supreme Court has specifically recognized that gratitude 

arising from political contributions is relevant to the issue of corruption. In McConnell v. FEC, 

540 U.S. 93 (2003), the Supreme Court recognized, in the context of soft money donations to 

political party committees, that “[i]t is not only plausible, but likely, that candidates would feel 

grateful for such donations and that donors would seek to exploit that gratitude.” 540 U.S. at 

145. The Supreme Court stated that “[t]he evidence in the record shows that candidates and 

donors alike have in fact exploited the soft-money loophole, the former to increase their 

prospects of election and the latter to create debt on the part of officeholders, with the national 

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parties serving as willing intermediaries.” 540 U.S. at 146 (citations omitted). Furthermore, 

“[e]ven when not participating directly in the fundraising, federal officeholders were well aware 

of the identities of the donors: National party committees would distribute lists of potential or 

actual donors, or donors themselves would report their generosity to officeholders.” 540 U.S. 

at 147. Unlike those activities, the activity referred to in this proposed rebuttal fact is irrelevant 

to the determination of the constitutionality of the statutory provision challenged by plaintiffs. 

170. The notion that non-monetary activities may have substantial value to a candidate 

is not just hypothetical. Celebrities often endorse candidates and sometimes appear or even 

perform at fundraisers. Further, recent scholarly studies quantify the effects of Oprah Winfrey’s 

endorsement of Barack Obama and the value of a candidate’s appearance on the “Colbert 

Report.” For example, the Oprah endorsement is estimated to have been worth about 1,000,000 

votes for Obama in the Democratic primary. Even ignoring this estimate, for a political 

candidate, time spent with Oprah is undoubtedly valuable. For example, in 2004 a 30 second 

national advertising spot on Oprah Winfrey’s syndicated morning television program was priced 

at $70,000; so even a few minutes on Oprah’s show can be conservatively valued at several 

hundred thousand dollars. Milyo Rebuttal Decl. ¶ 8. 

FEC RESPONSE: See Response to Proposed Rebuttal Fact ¶ 169. 

171. Studies of the electoral effects of newspaper endorsements indicate that such 

endorsements are typically worth between one and five percentage points to a candidate. Milyo 

Rebuttal Decl. ¶ 9. 

FEC RESPONSE: The activity referred to in this proposed rebuttal fact is irrelevant to 

the determination of the constitutionality of the statutory provision challenged by plaintiffs and 

the Court should decline to enter it. See Response to Proposed Rebuttal Fact ¶ 169. In any 

event, Professor Wilcox explains (Wilcox Dep. at 187-88, FEC Exh. 18) that whatever value a 

candidate may ascribe to a newspaper endorsement, independent expenditures are probably more 

valuable: “What we think we know about the magnitude of impact of the newspaper 

endorsement is that they are relatively small . . . I think that unlimited independent expenditures 

are certainly more valuable than . . . limited endorsements by newspapers.” According to 

Wilcox, the value of a newspaper endorsement is limited because, unlike the viewing audience 

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that might see an independent expenditures, the “[r]eadership of newspapers is self-selective.” 

Wilcox explains, “[N]o matter how many editorials . . . the same newspaper writes, it’s headed to 

the same set of readers . . . Newspapers don’t have a way to reach people who are outside the 

readership very easily.” (Wilcox Dep. at 190, FEC Exh. 18.) 

172. Political scientists and legal scholars have long recognized that the concepts of 

“corruption” and “undue influence” are ambiguous and problematic. Milyo Rebuttal Decl. ¶ 11. 

FEC RESPONSE: The Court should decline to enter this proposed finding of fact 

because Milyo is unqualified to make the statement upon which it relies. Plaintiffs rely on 

Milyo’s Rebuttal Declaration to offer a fact regarding legal terms and what “legal scholars” 

believe. However, counsel for plaintiffs stated at Milyo’s deposition that “It's been established 

that he is not an attorney, not a legal expert.” (Milyo Dep. at 101:13-13, FEC Exh. 12.) As 

Milyo also stated, “I haven't represented myself as a lawyer with expertise in constitutional 

interpretation.” (See id. at 103:1-3.) This proposed rebuttal fact is also irrelevant. As explained 

by the Commission (see FEC’s Reply re 2nd Mot.), this claim does not conflict with the wellestablished principal that unlimited direct contribution are “problematic.” Professor Wilcox 

explains that because unlimited contributions have been illegal for over thirty years, political 

scientists have been unable to systematically study their effects. Nonetheless, the dangers of 

large direct contributions is assuredly well-established: political scientists have been writing 

about the dangers of unlimited contributions since at least the early thirties and most would agree 

that “at some point really large contributions create the possibility for corruption.” (See Wilcox 

Dep. at 168-70, FEC Exh. 18.) 

173. The FEC’s own expert, Clyde Wilcox, has acknowledged in his scholarly writing 

that: “Debate persists in the United States about the meaning of ‘corruption,’ . . . (and) . . . the 

question of whether contributions lead to an ‘undue influence’ of donors on policymakers” 

(quotation marks in the original). Further, Wilcox (2005) notes: “. . . it is exceedingly difficult to 

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prove that corruption has occurred, and many observers doubt that corruption is common.” 

(emphasis in the original). Milyo Rebuttal Decl. ¶ 12. 

FEC RESPONSE: The Court should decline to adopt this proposed finding of fact 

because it takes statements attributed to Wilcox out of context, and it suggests a discrepancy 

between Professor Wilcox’s scholarship and his expert report that does not exist. (See also

Milyo Rebuttal Decl. ¶¶ 12, 22.) As the Commission detailed (Reply re 2nd Mot.), Professor 

Wilcox explains 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. Wilcox 

explained (Wilcox Dep. at 168-70, FEC Exh. 18) that the dangers of large direct contributions 

are well-established because political scientists have been writing about these dangers since at 

least the early thirties and most would agree that “at some point really large contributions create 

the possibility for corruption.” Nonetheless, he points out that because unlimited contributions 

have been illegal for over thirty years, political scientists have been unable to systematically 

study their effects. Id. 

174. “Access and influence” is a broader concept than political corruption; “access and 

influence” also describes the effect of political activities that are both legal and socially 

desirable. Milyo Rebuttal Decl. ¶ 15. 

FEC RESPONSE: The Court should decline to adopt this proposed finding of fact 

because plaintiffs refer to the legal definition of “access and influence,” but rely on the testimony 

of Milyo, who is not qualified to give an expert opinion on these terms as discussed in response 

to Paragraph 172. No matter what the terms “access” and “influence” may otherwise mean in 

Milyo’s view, the Supreme Court has explained that corruption, properly understood, includes 

undue influence on an officeholder’s judgment, and the appearance of such influence that might 

arise from contributors gaining preferential access to and influence over government officials. 

See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 388 (2000) (“In speaking of 

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‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ 

we recognized a concern not confined to bribery of public officials, but extending to the broader 

threat from politicians too compliant with the wishes of large contributors.”). In McConnell v. 

FEC, 540 U.S. 93, 146-154 (2003), the Court further explained that the appearance of such 

undue influence had arisen from large “soft money” contributors gaining preferential access and 

influence over government officials. The issue in this case involves whether unlimited 

contributions to groups that make independent expenditures might result in this type of access 

and influence. Accordingly, additional connotations of the terms are irrelevant to the 

determination of the constitutionality of the statutory provision challenged by plaintiffs. 

175. Social scientists mean something very specific by statements like “significant 

risk.” “Significant risk of corruption” implies some quantification of the probability of 

corruption. Milyo Rebuttal Decl. ¶ 16. 

FEC RESPONSE: The proposed rebuttal fact regarding the quantification of the threat of 

corruption is irrelevant, has no context, and the Court should decline to adopt it. This proposed 

rebuttal fact, like many of the others forwarded by the plaintiffs, does not contain any 

information concerning the issues presented by this case. (See also ¶¶ 176-189.) These facts 

obliquely critique Wilcox’s expert opinions, but do not provide any helpful facts for 

consideration of the constitutional issues. At his deposition, Professor Wilcox explained that 

although the threat of corruption is difficult to quantify, most political scientists would agree that 

the danger is real. (See Wilcox Dep. at 168-70, FEC Exh. 18.) Professor Wilcox explained that 

because unlimited contributions to federal candidates have been illegal for over thirty years, 

political scientists have largely been unable to systematically study their effects. Nonetheless, he 

explained (id.) that the dangers of large direct contributions are well-established; political 

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scientists have been writing about these dangers since at least the early 1930s and most would 

agree that “at some point really large contributions create the possibility for corruption.” 

176. There is no reason to assume that making a political contribution for “business 

reasons,” see Wilcox Report at 6, has anything to do with political corruption. There is nothing 

unseemly about supporting a candidate or party out of self-interest; indeed, many candidates 

make direct appeals to voters’ pocketbooks (e.g., “Are you better off now than you were four 

years ago?”). Milyo Rebuttal Decl. ¶ 20. 

FEC RESPONSE: The Court should not adopt this proposed rebuttal fact as it is legally 

inaccurate, irrelevant, and represents only Milyo’s personal opinion of what is “unseemly.” 

When upholding FECA contribution limits, the Supreme Court has referred to this type of 

access. See McConnell, 540 U.S. at 119 n.5 (upholding ban on soft money fundraising by 

national party committees) (noting that D.C. Circuit in Buckley, 519 F.2d 821, 832 (D.C. Cir. 

1975), had observed that “Congress found and the District Court confirmed that such 

contributions were often made for the purpose of furthering business or private interests by 

facilitating access to government officials of influencing government decisions.”).) 

In any event, the Supreme Court has explained that corruption, properly understood, 

includes undue influence on an officeholder’s judgment, and the appearance of such influence 

that might arise from contributors gaining preferential access to and influence over government 

officials. (See FEC Reply ¶ 174.) The Supreme Court has never suggested that any particular 

type of access that comes from spending money is benign, whether sought for business purposes 

or for any other reason. Accordingly, this proposed rebuttal fact is irrelevant and the Court 

should decline to adopt it. 

177. But since a minority of contributors indicates that business is a primary motive, it 

must be the case that other motives, like ideology, dominate the decision to give to candidates. 

Milyo Rebuttal Decl. ¶ 21. 

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FEC RESPONSE: This proposed rebuttal fact should not be adopted as it 

mischaracterizes the results of Professor Wilcox’s research and, on its face, is nothing more than 

a syllogism. Professor Wilcox explained (Rept. at 6) that obviously people often give to 

candidates for multiple purposes, noting that contributors donate “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.) Because the motives of contributors are mixed, it is not 

necessarily the case that other motives “dominate” the decision to contribute. 

178. Professor Wilcox’s claim, Wilcox Report at 21, that it is “well-established in 

political science” that “large direct contributions to candidates” create the danger of “special 

access and particularistic policy favors to donors . . . explicit and implicit quid-pro-quo 

relationships” gives the misleading impression that there is a consensus among scholars that 

there is strong evidence that contributions cause corruption. Milyo Rebuttal Decl. ¶ 22. This is 

not the case, and Wilcox does not acknowledge that his own scholarship, e.g., Wilcox (2005), is 

inconsistent with this claim. Id. 

FEC RESPONSE: While the Commission does not contest the technical accuracy of the 

words quoted in this proposed finding of fact, which actually appear on page 5 of Wilcox’s 

report, they are taken out of context and misconstrue Wilcox’s actual expert testimony. 

Additionally, this paragraph suggests a discrepancy between Wilcox’s expert report and his 

previous scholarship that does not exist. (See supra Response to Proposed Finding of Fact in 

Rebuttal ¶ 173.) Finally, Milyo’s rebuttal opinion should be given little weight as he cites no 

contrary authority to dispute Wilcox’s description of current well-established views in the field 

of political science. (See Milyo Rebuttal Decl. ¶ 22.) 

179. Professor Wilcox admits that there is little relationship between PAC 

contributions and roll-call votes. Milyo Rebuttal Decl. ¶ 23 (citing Wilcox Report at 21). 

FEC RESPONSE: This proposed rebuttal should not be adopted because it misconstrues 

Wilcox’s expert opinion and ignores portions of Professor Wilcox’s report and testimony which 

actually explain his views on the nature of the relationship between PAC contributions and rollCase 1:08-cv-00248-JR Document 63-5 Filed 12/12/2008 Page 10 of 31
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call votes. Professor Wilcox explains that contributions are “likely to matter more at other stages 

of the legislative process.” (See Wilcox Rept. at 21-22, FEC Exh. 1.) Additionally, he explains 

that study of contributions capped by law sheds little light on the likely impact of unlimited 

contributions: “[T]he weak relationship between PAC contributions and policy making is 

precisely what contribution limits in FECA were intended to create. It is in fact reassuring that 

these smaller, regulated contributions have only a modest impact on access and policymaking.” 

(Id. at 22; see also Wilcox Dep. at 168 (“We don’t actually write about [the danger of large 

contributions] much because large direct contributions to candidates have been banned since 

1974 . . .”) 

180. It is not necessarily true, as Professor Wilcox claims, Wilcox Report at 21-22, that 

because studies of PAC contributions and roll-call votes do not include independent 

expenditures, such studies understate the effects of contributions. If groups that make PAC 

contributions also make independent expenditures, then studies of the effects of PAC 

contributions on roll-call votes would overstate the effects of PAC contributions. Milyo Rebuttal 

Decl. ¶ 24. 

FEC RESPONSE: This proposed rebuttal fact mischaracterizes Professor Wilcox’s 

report and the Court should decline to adopt it. Milyo inaccurately claims that Wilcox writes 

that “because studies of PAC contributions and roll-call votes do not include independent 

expenditures, such studies understate the effects of contributions.” Milyo claims that this 

proposition is not necessarily true. In the report, however, Professor Wilcox does not merely 

refer to the effects of contributions; Wilcox actually states that “almost none of this research 

includes contributions from group members or any form of indirect contribution, and thus it 

understates the impact of money on policymaking.” (Wilcox Rept. at 21, FEC Exh. 1.) In its 

actual form, Professor Wilcox’s conclusion is accurate and Milyo’s comments give no reason to 

question it. In any event, Professor Wilcox further explained (id. at 21-22) that studies of PAC 

contributions on roll-call votes explain little about the effect of money on policymaking because 

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“money is likely to matter more at other stages of the legislative process.” Cf McConnell v. 

FEC, 540 U.S. 93, 150 (2003) (“The evidence connects soft money to manipulations of the 

legislative calendar, leading to Congress’ failure to enact, among other things, generic drug 

legislation, tort reform, and tobacco legislations . . . To claim that such actions do not change 

legislative outcomes surely misunderstands the legislative process.”) (internal citations omitted). 

181. To the extent that access to legislators affects roll-call votes, this should also be 

manifest in the relationship between PAC contributions and roll-call votes (but it isn’t). Milyo 

Rebuttal Decl. ¶25. 

FEC RESPONSE: This proposed fact is explicitly hypothetical, and accordingly, the 

Court should decline to adopt it. In any event, the connection between contributions and roll-call 

votes does not necessarily capture all corrupt activity. As Professor Wilcox explained, studies of 

PAC contributions on roll-call votes are scarcely indicative of the effect of money on 

policymaking because “money is likely to matter more at other stages of the legislative process.” 

(Wilcox Rept. at 21-22) 

182. The study by Hall and Wayman—cited by Wilcox in support of his claim that 

PAC contributions buy access to legislators, Wilcox Report at 22—is methodologically flawed 

and hence “almost surely biased” (Snyder 2002). Contrary evidence in Wawro (2000) is more 

comprehensive and systematic than the three cases examined by Hall and Wayman. Milyo 

Rebuttal Decl. ¶ 26. 

FEC RESPONSE: Milyo’s claim that the Hall and Wayman study is flawed is supported 

solely by the Rebuttal Report of Professor James Snyder, Jr. hired by opponents of BCRA in 

McConnell v. FEC, No 02-0582 (D.D.C. 2003). SpeechNow ignores, however, that the Supreme 

Court itself found the Hall and Wayman study credible. In Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377, 395 (2000), the Court concluded that “there is little reason to 

doubt that sometimes large contributions will work actual corruption on our political system, and 

no reason to question the existence of a corresponding suspicion among voters.” In arriving at 

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this conclusion, the Court referred to Hall and Wayman and several studies invoked by the 

litigants that bore on this question. Furthermore Milyo’s casual reference to “contrary evidence” 

is so general that it should carry little weight. 

183. Professor Wilcox ignores scholars who argue that campaign contributions have a 

limited impact on policy outcomes (e.g., Ansolabehere et al. 2003, Milyo et al. 2000, Snyder 

2002); this despite the fact that he assigns such studies (e.g., Ansolabehere et al. 2003) as 

required reading in his course on “Money in American Politics” at Georgetown. Milyo Rebuttal 

Decl. ¶ 27 (citing course syllabus available at 

https://www9.georgetown.edu/faculty/wilcoxc/Government%20374.doc). 

FEC RESPONSE: This proposed rebuttal fact is inaccurate and the Court should decline 

to adopt it. Professor Wilcox does address studies which purport to show that campaign 

contributions have a limited impact on policy outcomes. He explains (Wilcox Rept. at 21-22, 

FEC Exh. 1) that these studies shed little light on the corruption that might result from unlimited 

contributions because they examine the effects of capped contributions, not unlimited 

contributions. For example, Professor Wilcox noted (id.) in his report a study of the impact of 

PAC contributions on roll-call votes. While the study showed that the PAC contributions had 

limited impact on roll-call voting by members of Congress, such research involved PAC 

contributions limited by law, as opposed to unlimited contributions. Because unlimited 

contributions have been illegal for decades it is difficult to systematically examine their effects. 

(See also Wilcox Dep. at 168-70, FEC Exh. 12.) Nevertheless, as Professor Wilcox explains 

(Report at 22), “the weak relationship between PAC contributions and policymaking is precisely 

what contribution limits in FECA were intended to create.” Finally, without any context, the fact 

that a paper appears on a Professor’s syllabus says very little. 

184. Professor Wilcox ignores or is unaware of a recent study by Ansolabehere and 

Snyder (2004) that is particularly relevant to his discussion of soft money and his assertion that 

donors benefit from making contributions. The authors of this study demonstrate that the share 

prices of firms that gave large amounts of soft money pre-BCRA were not adversely affected by 

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BCRA. This strongly suggests that those firms were not receiving any important policy favors as 

a result of their soft money contributions. Milyo Rebuttal Decl. ¶ 28. 

FEC RESPONSE: This proposed rebuttal fact is inaccurate and the Court should decline 

to adopt it. SpeechNow alleges that Professor Wilcox either ignores or is unaware of a 2004 

study by Ansolabehere and Snyder. But Professor Wilcox’s deposition indicates that he was 

quite probably aware of the study, but that he nonetheless found it irrelevant, and therefore did 

not rely on it. In his deposition, Professor Wilcox explains that he is generally aware of the work 

of Ansolabehere and of Snyder (See Wilcox Dep. at 138-40, FEC Exh. 18.), but that he only 

cited those sources which he found the most relevant, (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 . . .”)). Counsel for 

SpeechNow never asked Professor Wilcox about this particular study, and thus have no basis to 

claim that he was unaware of the study or simply ignored it. 

SpeechNow also alleges that the study by Ansolabehere and Snyder is “particularly 

relevant.” But the study is hardly germane to Professor Wilcox’s various conclusions about 

large soft money donors and the access and influence they apparently sought. The study purports 

to explore whether soft money donations in the pre-BCRA era actually led to private gain. But it 

attempts to do so by examining the stock prices of corporate soft money donors and non-donors 

on one date (December 10, 2003 — the day the Supreme Court issued its McConnell opinion), 

and fails to account for other economic and political events that might have affected stock 

valuations that day. 

In any event, Wilcox’s expert report, including his discussion of soft money, is well 

supported and methodologically sound (see Reply re 2nd Mot.), and accordingly, the Court 

should give this critique little weight. 

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185. Professor Wilcox cites an opinion-laden piece by Malbin (2008) in support of the 

broad claim that campaign contributions are a corrupting influence. Wilcox Report at 5. 

However, Defendant’s expert fails to note anywhere in his report that Malbin also argues that 

independent expenditures have less potential for corruption than direct contributions to 

candidates (Defendant’s expert later takes a contrary position in his report, See Wilcox Report at 

22). Milyo Rebuttal Decl. ¶ 29. 

FEC RESPONSE: In this proposed rebuttal fact, SpeechNow nowhere identifies exactly 

where Malbin asserts that independent expenditures have less potential for corruption than direct 

contributions. In any event, this proposed rebuttal fact appears to overstate the extent to which 

Malbin might disagree with Professor Wilcox’s conclusion that large contributions, whether 

made directly to candidates or given to groups to fund independent expenditures, are more 

problematic than small, limited contributions. Accordingly, the Court should decline to adopt it. 

Malbin does indeed contrast 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 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 ability to ask does not solve all of the world’s problems.” Id. at 

3-4. Thus, SpeechNow overstates whatever difference might exist between the conclusions of 

these two scholars. 

186. Several scholars consider corruption from campaign contributions to be a “small 

societal problem” (e.g., Ansolabehere 2007; also see Ansolabehere et al. 2001 and 2003). 

Further, opinion surveys consistently reveal that respondents do not consider campaign finance 

reform to be an important issue (e.g., Mayer 2001). Milyo Rebuttal Decl. ¶ 30. 

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FEC RESPONSE: This proposed rebuttal fact is irrelevant and the Court should decline 

to adopt it. Whatever opinion surveys suggest about the importance of campaign finance reform 

relative to other public matters has no bearing on whether the statutory provisions that have been 

in place for more than thirty years, and require no reform, aid in the prevention corruption or its 

appearance. 

187. Professor Wilcox also argues that large contributions “lead to increased public 

perceptions of corruption” (Wilcox Report at 5). The only empirical study cited in support of this 

claim is Shapiro (2003); however, Shapiro merely demonstrates that survey respondents have 

cynical attitudes about elected officials and the role of money in politics. Shapiro does not 

estimate the treatment effect of either contributions or limits on contributions on public opinion. 

It is therefore inaccurate to cite Shapiro in support of the claim that large contributions increase 

public perceptions of corruption. Milyo Rebuttal Decl. ¶ 31. 

FEC RESPONSE: This proposed rebuttal fact ignores the other empirical evidence relied 

on by Professor Wilcox in his report to support his conclusion that “large contributions can also 

lead to increased public perceptions of corruption” including the results of two public opinion 

polls. (Wilcox Rep. at 5, 22, FEC Exh. 1.) Additionally, Milyo’s description of Shapiro’s study 

is incorrect. (See Robert Shapiro, “Public Attitudes Toward Campaign Finance Practice and 

Reform,” in Inside the Campaign Finance Battle: Court Testimony on the New Reforms. 

Anthony Corrado, Thomas Mann, and Trevor Potter, eds. (The Brookings Institution Press: 

Washington DC 2003), at 256-265, FEC Exh. 165. Regarding contribution limits and the 

corruption, Shapiro states, inter alia that “large majorities saw large political contributions and 

fund-raising in campaigns as a major source of corruption,” “the public has been concerned with 

contributions from special interests groups and has placed a high priority on reform that limits 

the influence they have through campaign contributions,” and “the public has connected this 

influence to political contributions: the public has seen a major problem in elected officials 

seeking and receiving such contributions while making decisions about issues of concern to 

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those given money.” (Id. at 261, 262.) Ultimately, Professor Wilcox’s report is based on his 

extensive expertise, is well-supported and is methodologically sound (see Reply re 2nd Mot.), and 

the Court should give Milyo’s critique little weight. 

188. Professor Wilcox fails to cite a number of other recent and relevant studies on 

campaign finance and the appearance of corruption, all of which would contradict his argument 

that large contributions increase public perceptions of corruption. Milyo Rebuttal Decl. ¶ 32. In 

the same edited volume as the Shapiro study, Primo (2003) presents evidence that changes in 

trust in government over time do not support the notion that either campaign spending or 

contribution limits have an important impact on citizen trust. Milyo Rebuttal Decl. ¶ 33. 

FEC RESPONSE: This proposed rebuttal fact is refuted by empirical evidence relied on 

by Professor Wilcox in his report (see Rept. at 22-23) and facts set forth in the Commission’s 

proposed facts (see FEC Facts ¶¶ 315-41) that support Professor Wilcox’s conclusion that “large 

contributions can also lead to increased public perceptions of corruption.” Wilcox’s expert 

report, including his discussion of soft-money, is well supported and methodologically sound. 

(See Reply re 2nd Mot.) As a result, the Court should give this critique little weight. Wilcox 

references several sources to support his assertions regarding public perceptions of corruption 

and neither this proposed fact in rebuttal nor Milyo’s rebuttal declaration gives any legitimate 

reason to question those sources. Moreover, the Supreme Court itself has concluded that “there 

is little reason to doubt that sometimes large contributions will work actual corruption on our 

political system, and no reason to question the existence of a corresponding suspicion among 

voters.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 395 (2000). 

189. Notably, Malbin (2008), who is cited approvingly by Wilcox in his report, 

discusses the findings in Primo and Milyo and argues in reference to BCRA: “. . . it is true that 

some of the bill’s sponsors, reformers and newspaper editorial boards talked about contribution 

limits as if they would reverse the public’s cynicism about government. But it was never 

plausible to expect changes in campaign finance law by themselves measurably to improve 

citizens’ views about government” (emphasis added). Milyo Rebuttal Decl. ¶ 35. 

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FEC RESPONSE: This proposed rebuttal fact is irrelevant and the Court should decline 

to adopt it. The Milyo and Primo study cited by Milyo (Rebuttal Decl. at ¶ 35) and Malbin 

purported to measure whether the imposition of BCRA’s prohibitions on soft money fundraising 

by political parties “would reverse the public’s cynicism about government” (Michael J. Malbin, 

Rethinking the Campaign Finance Agenda, 6 The Forum, Issue 1, Article 3 (2008) (Gall Decl. 

Exh. F at 5). It did not purport to measure the effect that lifting the contribution limits would 

have on corruption or its appearance. Furthermore, the study also found evidence that “public 

disclosure and restrictions on contributions from organizations improve perceived political 

efficacy.” (Milyo Dep. at 283; Milyo Dep. Ex. 10; David M. Primo and Jeffery Milyo, 

Campaign Finance Laws and Political Efficacy: Evidence from the States, Elec. L. J. Vol. 5:1 

(2006).) 

190. Persily and Lammie (2004) also examine perceptions of corruption; they argue 

that citizens’ general views of government, social capital and demographic attributes appear to 

drive perceptions of corruption. They do not find evidence consistent with the notion that 

campaign finance is an important determinant of perceptions of corruption. Milyo Rebuttal Decl. 

¶ 36. 

FEC RESPONSE: This proposed rebuttal fact is irrelevant, misconstrues the findings of 

Persily and Lammie, and, accordingly, the Court should decline to adopt it. It is important to 

note that the most salient issue regarding public opinion is the public’s views on corruption and 

the influence of large contributions, not their familiarity with the details of campaign finance 

regulations or the number of other factors that may determine the public’s general feelings about 

government. On this point, and in the article cited by Milyo, Persily and Lammie actually state 

that, “Although we are critical of the way public opinion polls have been deployed in 

[McConnell v. FEC], among others, we admit the obvious: the American public believes that 

contributors exert undue influence over the decisions of members of Congress. We should even 

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concede up front that we too believe that representatives have been influenced by campaign 

contributions: money buys access and in some cases, may buy votes.” (Nathaniel Persily and 

Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion 

Determines Constitutional Law, 153 U. Pa. L. Rev. 119 at 121 (2004) (emphasis added).) 

Milyo’s rebuttal testimony relied on here gives no reason to question Professor Wilcox’s 

findings. 

191. Persily and Lammie also question the extent to which public opinion about 

corruption is related to actual political corruption. They note that the public is notoriously illinformed about even very basic campaign finance facts. It is therefore no surprise that 

perceptions of corruption are not strongly related to campaign contribution limits. Milyo 

Rebuttal Decl. ¶ 37. 

FEC RESPONSE: This proposed finding of fact should not be adopted for the reasons 

stated in regards to Paragraph 190, above. 

192. One explanation for the public’s lack of knowledge about campaign finance is 

that the issue is considered unimportant by most citizens (e.g., Mayer 2001). Further, newspaper 

reporting of campaign finance stories is notoriously sensationalized (Ansolabehere et al. 2005). 

Milyo Rebuttal Decl. ¶ 38. 

FEC RESPONSE: This proposed finding of fact should not be adopted for the reasons 

stated in regards to Paragraphs 186 and 190, above. 

193. Despite the widespread and misinformed cynicism that exists about the role of 

money in politics, large numbers of survey respondents frequently support eliminating all 

contribution limits. For example, Grant and Rudolph (2004) demonstrate that a majority of 

survey respondents support removing all contribution limits. Milyo Rebuttal Decl. ¶ 39. Coleman 

and Manna (2000) also argue that there is little or no relationship between campaign spending 

and trust in government. Milyo Rebuttal Decl. ¶ 40. 

FEC RESPONSE: This proposed rebuttal fact entitled to little weight. The great weight 

of public survey information elaborately detailed by Shapiro (see supra ¶ 187) indicates broad 

support for limiting large contributions. 

194. The assertion that an independent expenditure committee like SpeechNow is 

functionally no different from a PAC that makes direct contributions is erroneous in multiple 

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respects. First, connected PACs may have their overhead costs paid for by the connected 

organization; an unconnected independent expenditure committee like SpeechNow must pay all 

its overhead costs out of limited hard-money contributions (which presumably have a higher 

opportunity cost). Milyo Rebuttal Decl. ¶ 48. Second, compliance with campaign finance 

regulations is costly and burdensome, like any other regulation, although compliance costs are 

rarely studied in the campaign finance literature. Id. ¶ 49. A connected PAC may have a 

sponsoring organization that provides sufficient funds to employ a full-time professional staff; 

while independent groups like SpeechNow may not have the same resources. Id. 

FEC RESPONSE: This proposed rebuttal fact is irrelevant and unsupported and the 

Court should decline to adopt it. The assertion that compliance with campaign finance 

regulations is costly and burdensome is unsupported and belied by the Commission’s facts, 

which demonstrate that the number of non-connected committees and their total receipts have 

risen since 1990 and increased dramatically in this decade (see FEC Facts ¶¶ 376-84), and that 

reporting is not difficult for committees like SpeechNow (see FEC Facts ¶¶ 410-11, 444, 

449-51). 

195. The Wilcox report is riddled with logical errors and factual omissions. However, 

this sloppiness does not appear to be random; in every instance, these errors and omissions serve 

to support Defendant’s expert’s argument. Milyo Rebuttal Decl. ¶ 50. 

FEC RESPONSE: The Court should disregard this proposed rebuttal fact, which 

wrongly impugns Professor Wilcox’s report and the care he took in preparing it. As explained 

by the Commission (see generally, Reply re 2nd Mot. in Limine), SpeechNow and its expert 

repeatedly mischaracterize or selectively ignore portions and aspects of Professor Wilcox’s 

methods, his previous scholarly writings, his testimony, and his report itself. 

II. Facts in Rebuttal to the FEC’s Claims Regarding the Difficulty of Raising Funds 

and Financing Independent Expenditures While Subject to Contribution Limits. 

196. The FEC admits that, if there were no contribution limits applicable to groups like 

SpeechNow.org, individuals could give more money to such groups, and the groups would 

therefore be able to spend more money. FEC’s Proposed Findings of Fact ¶ 223 (“With no limits 

on contributions to . . . groups [making independent expenditures], individuals could give them 

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far more than $100,000, allowing groups to spend very large sums.” (alterations in original)); 

Pls.’ Br. in Resp. to FEC’s Proposed Findings of Fact ¶ 223. 

FEC RESPONSE: The Commission agrees that in many cases groups would be able to 

raise more money without contribution limits, but groups can also raise more money by seeking 

new contributors or larger contributions from previous supporters who have not yet donated up 

to the contribution limit. 

197. The Howard Jarvis Taxpayers Association has never used its PACs to make 

independent expenditures on behalf of candidates. Decl. of John Coupal in Supp. of Pls.’ Resp. 

to Def.’s Proposed Findings of Fact ¶ 5. One reason is that it would be too costly to make those 

independent expenditures in support of state (or federal) candidates. Id. To reach a significant 

number of people in California in state races, the HJTA would have to engage in extensive media 

advertising costing far more than they have available for any one individual race. Of HJTA’s 

three PACs, two state PACs collect most of the funds (between $100,000 and $200,000 per 

year). Funding an independent expenditure is very expensive and would leave little funds to 

contribute to other candidates through their regular campaign committees. A relatively small 

grassroots organization like HJTA is simply not in the position to fund a meaningful independent 

expenditure campaign. Id. 

FEC RESPONSE: The Court should not adopt this fact which is based on conclusory 

and self-serving testimony. The alleged fundraising difficulties of one state-focused organization 

in California has nothing to do with SpeechNow’s ability to operate within the contribution 

limits mandated by law or any of its constitutional claims. Furthermore, to the extent that 

plaintiffs propose this fact as evidence of the fundraising activities of federal PACs generally, it 

is controverted by the Commission’s proposed findings of fact ¶¶ 376-384 (showing the success 

of non-connected PACs since 1990). 

198. If SpeechNow.org were deemed to be a political committee, it would be classified 

as a “non-connected” committee. Declaration of Steven M. Simpson in Supp. of Pls.’ Proposed 

Findings of Fact, Ex. 25, Deposition Transcript of Gregory Scott, at 17:14-18:2. 

FEC RESPONSE: No response. 

199. Data drawn from Exhibit 99 of the FEC’s Proposed Findings of Fact indicates that 

between 1989 and 2006 non-connected PACs typically averaged higher levels of debt than 

connected PACs. Sherman Decl. in Supp. of Pls.’ Resp. to Def.’s Proposed Findings of Fact ¶ 7 

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[hereinafter Sherman Resp. Decl.]. For example, between 1989 and 2006, corporate PACs never 

averaged more than $432 in debt in any election cycle, while non-connected PACs never 

averaged less than $2,916 in debt. Id. During the same time period, non-connected PACs 

averaged thousands of dollars more debt than union PACs in all but two election cycles (2003-04 

and 2005-06). Id. These data are summarized in the chart below, taken from Sherman Resp. 

Decl. ¶ 6: 

Average debt per committee 

Election 

Cycle Corporate Union 

Trade/ 

Membership

/ Health Cooperative 

Corporation 

w/out stock 

NonConnected 

2005-2006 $96 $13,634 $1,432 $0 $3,986 $2,916 

2003-2004 $136 $9,763 $1,134 $0 $3,383 $5,454 

2001-2002 $346 $402 $1,414 $0 $3,156 $5,580 

1999-2000 $160 $396 $1,120 $0 $3,512 $9,845 

1997-98 $315 $1,121 $1,663 $0 $2,522 $7,395 

1995-96 $432 $3,126 $1,428 $0 $2,985 $7,562 

1993-94 $125 $284 $905 $0 $2,258 $7,601 

1991-92 $76 $674 $667 $788 $1,434 $7,802 

1989-90 $63 $209 $517 $598 $1,058 $7,555 

FEC RESPONSE: No response. 

200. Across all types of PACs during the entire period covered by FEC Exhibit 99, 

there are only three instances where a category of connected PAC averaged more debt in an 

election cycle than did non-connected PACs for that same cycle. Those are: PACs affiliated with 

unions in the 2003-04 and 2005-06 election cycles, and PACs affiliated with non-stock 

corporations in the 2005-06 election cycle. Sherman Resp. Decl. ¶ 8. 

FEC RESPONSE: Denied. See FEC Response to SN Facts ¶ 199. 

201. One difference between connected PACs and non-connected PACs is that 

connected PACs are permitted by FEC regulations to use “general treasury monies, including 

monies obtained in commercial transactions and dues monies or membership fees, for the 

establishment, administration, and solicitation of contributions to [their connected PACs].” 11 

C.F.R. § 114.5(b); see also Sherman Resp. Decl. ¶ 9; Milyo Rebuttal Decl. ¶ 49. 

FEC RESPONSE: Objection to the extent contains legal conclusions. 

202. The number of non-connected committees that spent funds on independent 

expenditures has remained small — relative to the total number of non-connected committees —

in each election cycle from 1995-1996 to 2005-2006 (the six election cycles for which the FEC 

appears to have made such summary data available). Compare Simpson Decl., Ex. 37, FEC 

Summaries of PAC Independent Expenditures for 1995-1996 (available at 

http://www.fec.gov/finance/pacieye.htm), 1997-1998 (available at 

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http://www.fec.gov/press/pacie98.htm), 1999- 2000 (available at 

http://www.fec.gov/press/press2001/053101pacfund/pacie00.htm), 2001-2002 

(available at www.fec.gov/press/press2003/20030327pac/indepexp.xls), 2003-2004 (available at 

http://www.fec.gov/press/press2005/20050412pac/indepexp.pdf) & 2005-2006 (available at 

www.fec.gov/press/press2007/20071009pac/indepexp2006.xls), with FEC Summary of PAC 

Activity, 1990-2006, FEC Ex. 99. 

FEC RESPONSE: Objection to the extent contains legal conclusions. 

203. In the 1995-1996 cycle, of the 1,259 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 95 (or fewer) — or 7.5 percent —reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 

1995-1996. 

FEC RESPONSE: No response. 

204. In the 1997-1998 cycle, of the 1,326 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 42 (or fewer) — or 3.2 percent — reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 1997-

1998. 

FEC RESPONSE: No response. 

205. In the 1999-2000 cycle, of the 1,362 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 81 (or fewer)—or 5.9 percent—reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 1999-

2000. 

FEC RESPONSE: Ninety-one nonconnected political committees reported making 

independent expenditures, not eighty-one as recited in plaintiffs’ paragraph. Otherwise, no 

response. 

206. In the 2001-2002 cycle, of the 1,401 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 44 (or fewer) — or 3.1 percent — reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 

2001-2002. 

FEC RESPONSE: No response. 

207. In the 2003-2004 cycle, of the 1,650 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 110 (or fewer)—or 6.7 percent—reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 2003- 

2004. 

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FEC RESPONSE: No response. 

208. In the 2005-2006 cycle, of the 1,797 non-connected committees reported by the 

FEC, See FEC Ex. 99, only 93 (or fewer)—or 5.2 percent—reported making independent 

expenditures. Simpson Decl., Ex. 37, FEC Summary of PAC Independent Expenditures, 2005-

2006. 

FEC RESPONSE: No response. 

209. Likewise, the number of “[p]ersons and entities (other than political party 

committees) that reported making independent expenditures, and reported making no 

contributions or coordinated expenditures,” has remained very small — relative to the total 

number of non-connected political committees —in each election cycle from 1997-1998 to 2005- 

2006. Compare Simpson Decl., Ex. 33, FEC’s Response to Pls.’ Interrog. No. 3, with FEC Ex. 

99, FEC Summary of PAC Activity, 1990-2006. 

FEC RESPONSE: No response. 

210. In the 1997-1998 cycle, the FEC reported that 1,326 non-connected political 

committees reported some sort of activity, see FEC Ex. 99, while only 65 “[p]ersons and entities 

(other than political party committees) . . . reported making independent expenditures . . . [but] 

reported making no contributions or coordinated expenditures.” See Simpson Decl., Ex. 33, 

FEC’s Response to Pls.’ Interrog. No. 3 (1997-1998 Election Cycle). 

FEC RESPONSE: No response. 

211. In the 1999-2000 cycle, the FEC reported that 1,362 non-connected political 

committees reported some sort of activity, see FEC Ex. 99, while only 126 “[p]ersons and 

entities (other than political party committees) . . . reported making independent expenditures . . 

.[but] reported making no contributions or coordinated expenditures.” See Simpson Decl., Ex. 

33, FEC’s Response to Pls.’ Interrog. No. 3 (1999-2000 Election Cycle). 

FEC RESPONSE: No response. 

212. In the 2001-2002 cycle, the FEC reported that 1,401 non-connected political 

committees reported some sort of activity, see FEC Ex. 99, while only 93 “[p]ersons and entities 

(other than political party committees) . . . reported making independent expenditures . . . [but] 

reported making no contributions or coordinated expenditures.” See Simpson Decl., Ex. 33, 

FEC’s Response to Pls.’ Interrog. No. 3 (2001-2002 Election Cycle). 

FEC RESPONSE: No response. 

213. In the 2003-2004 cycle, the FEC reported that 1,650 non-connected political 

committees reported some sort of activity, see FEC Ex. 99, while only 169 “[p]ersons and 

entities (other than political party committees) . . . reported making independent expenditures . . 

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.[but] reported making no contributions or coordinated expenditures.” See Simpson Decl., 

Ex.33, FEC’s Response to Pls.’ Interrog. No. 3 (2003-2004 Election Cycle). 

FEC RESPONSE: No response. 

214. In the 2005-2006 cycle, the FEC reported that 1,797 non-connected political 

committees reported some sort of activity, see FEC Ex. 99, while only 127 “[p]ersons and 

entities (other than political party committees) . . . reported making independent expenditures . . 

.[but] reported making no contributions or coordinated expenditures.” See Simpson Decl., Ex. 

33, FEC’s Response to Pls.’ Interrog. No. 3 (2005-2006 Election Cycle). 

FEC RESPONSE: No response. 

215. In the most recently reported 2005-2006 cycle, the five committees, of any type, 

that spent the largest amount on independent expenditures were national political party 

committees, i.e., the National Republican Congressional Committee, the Democratic 

Congressional Campaign Committee, the Democratic Senatorial Campaign Committee, the 

National Republican Senatorial Committee, and the Republican National Committee. Simpson 

Decl., Ex. 36, FEC Total Independent Expenditures by Committee, Reports Received as of Nov. 

8, 2006, also available at 

http://www.fec.gov/press/press2006/2006indexp/iesummarycom1109.pdf. 

FEC RESPONSE: No response. 

216. The amount spent on independent expenditures in the 2005-2006 cycle by any one 

of those five national party political committees — the National Republican Congressional 

Committee ($83,585,308.49), the Democratic Congressional Campaign Committee 

($64,146,745.86), the Democratic Senatorial Campaign Committee ($41,904,370.62), the 

National Republican Senatorial Committee ($19,528,341.14), and the Republican National 

Committee ($13,937,138.19) —greatly exceeded the total amount spent on independent 

expenditures by all non-connected committees combined ($8,083,013). Compare Pls. Ex. 36, 

FEC Total Independent Expenditures by Committee, Reports Received as of Nov. 8, 2006 (Total 

Independent Expenditures of the National Republican Congressional Committee, the Democratic 

Congressional Campaign Committee, the Democratic Senatorial Campaign Committee, the 

National Republican Senatorial Committee, and the Republican National Committee), with Pls. 

Ex. 37, FEC Summary of PAC Independent Expenditures, 2005-2006 (Total Independent 

Expenditures by Committee Type, Non-connected Organization). 

FEC RESPONSE: No response. 

217. The contribution limit for national political party committees in the 2005-2006 

cycle was $26,700, an amount more than five times greater than the contribution limit for 

nonconnected committees, which was $5,000. Compare 2 U.S.C. § 441a(a)(1)(B) (showing 

political party committee contribution limit of $25,000 unadjusted for inflation) & 70 Fed. Reg. 

11658, 11660 (Mar. 9, 2005) (showing political party committee contribution limit of $26,700 

for the 2005-2006 cycle when indexed for inflation), with 2 U.S.C. § 441a(a)(1)(C) (showing 

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contribution limit of $5,000 for “any other political committee,” which is static and not adjusted 

for inflation). 

FEC RESPONSE: No response. 

219. The FEC’s expert, Clyde Wilcox, admitted that if the FEC passed a rule like 

California’s—requiring groups running independent expenditures to identify their largest donors 

in their advertising disclaimers—his concerns about the transparency of SpeechNow.org’s 

disclaimers would be “solved.” FEC Ex. 18, Wilcox Dep. 26:3-267:4. 

FEC RESPONSE: This proposed rebuttal fact poses a hypothetical that is irrelevant and 

the Court should decline to adopt it. Passing a rule that would require groups running 

independent expenditures to identify only their largest donors in advertising disclaimers is 

beyond the Commission’s authority. Such a rule mandating limited disclosure would conflict 

with the Act, which requires political committees like SpeechNow to report all receipts and 

expenditures. Thus, the rule that SpeechNow appears to be proposing would not require the 

disclosure of all receipts and expenditure. But such disclosure ensures that vital information 

about who is supporting candidates is made publicly available. (See FEC Facts ¶¶ 361-75.) 

IV. Facts in Rebuttal to the FEC’s Claims Regarding the Motives of Donors to Political 

Committees and 527 Groups. 

220. Political scientists who have studied contributions to Congressional candidates 

have categorized donors as possessing one or more motives: purposive (a desire to enact general 

public policies that apply to large classes of society), solidary (seeking the psychological benefits 

that stem from the social side of political participation), and material (seeking tangible personal 

gain as a result of contributions). Simpson Decl., Ex. 22 at 43, Wilcox et al., THE FINANCIERS OF 

CONGRESSIONAL ELECTIONS: INVESTORS, IDEOLOGUES AND INTIMATES 42 (2003). 

FEC RESPONSE: The Supreme Court has never suggested that any particular type of 

access that comes from spending money is benign, whether sought for business purposes or for 

any other reason. In any event, the Supreme Court has explained that corruption, properly 

understood, includes undue influence on an officeholder’s judgment, and the appearance of such 

influence that might arise from contributors gaining preferential access to and influence over 

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government officials. Accordingly, this proposed rebuttal fact is irrelevant and the Court should 

decline to adopt it. 

221. The single largest motivation that underlies contributions to political candidates is 

purposive or ideological; that is, trying to effect changes in public policy that will benefit all of, 

or a large portion of, society. In a survey that asked individuals why they gave to Congressional 

candidates, the most commonly expressed reason was the candidate’s ideological position, with 

69% of respondents saying that ideology was always important and another 24% saying it was 

sometimes important. Id. at 46, Table 3.1. 

FEC RESPONSE: Plaintiffs mischaracterize the cited source, conflating a chart that 

allowed donors to name multiple motives with classifications into different types of donors. 

“Ideologues” made up one-third of the donors and “investors” made up one-fourth. “Investors,” 

donors who contribute seeking this type of tangible personal gain, thus account for a significant 

percentage of those who make contributions. When upholding contribution limits, the Supreme 

Court has referred to this type of access. In McConnell, the Court referenced several statements 

from corporate executive regarding the influence business leaders sought for their contributions. 

See 540 U.S. 93 at 147-48; see also id. at 119 (upholding ban on soft money fundraising by 

national party committees) (noting that D.C. Circuit in Buckley, 519 F.2d 821, 832 (D.C. Cir. 

1975), had observed that “Congress found and the District Court confirmed that such 

contributions were often made for the purpose of furthering business of private interested by 

facilitating access to government officials of influencing government decisions.”) 

In any event, the Supreme Court has never suggested that ideological access that is 

achieved by spending money is benign, even if not sought for personal profit. Accordingly, this 

proposed rebuttal fact is irrelevant and the Court should decline to adopt it. 

222. Among donors who make contributions of $200 or more, 73% say that it is very 

important to support a candidate or cause, and 61% say it is very important to influence policies 

of government. By contrast, only eight percent of significant donors say that business or 

employment reasons were a very important reason they contributed to a Congressional candidate. 

Id. 

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FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 177. This proposed 

rebuttal fact mischaracterizes Professor Wilcox’s research and the Court should decline to adopt 

it as such. 

223. Even those donors who are “investors” often give for purposive reasons. For 

instance, 60% of “investors” say they contribute to a Congressional candidate “to support a 

candidate or cause” and 62% contribute based on a “candidate’s liberalism-conservatism.” Id. 

at 49. 

FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 177. 

224. Large contributors to 527s tend to support only a single political party. In the 

2004 election cycle, 113 individuals contributed more than $250,000 to 527s. Of those, only five 

made soft-money contributions to both the Democratic and Republican parties in either of the 

previous two election cycles. The remaining 108 individuals restricted their soft-money 

contributions to only a single political party. FEC Ex. 55, Stephen R. Weissman & Ruth Hassan, 

BCRA and the 527 Groups, in THE ELECTION AFTER REFORM 79, 94-96, Table 5.2 (Michael J. 

Malbin ed., 2006). 

FEC RESPONSE: This proposed rebuttal fact distorts the data to suggest a conclusion 

regarding a motive for giving that is not supported. Weissman and Hassan central claim based 

on this data is that “[c]learly what was happening was not only a shift in their soft money giving 

— from party to 527 — but also a vast escalation in their total donations.” (Stephen R. 

Weissman & Ruth Hassan, BCRA and the 527 Groups, in THE ELECTION AFTER REFORM 79, 

94-96, Table 5.2 (Michael J. Malbin ed., 2006) FEC Ex. 55) (emphasis in original). The 

Commission disputes plaintiffs’ characterization of the data to the extent it suggests the donors’ 

motives, which the authors of the book chapter do not claim these data address. In any event, the 

Supreme Court has never suggested that access purchased with money from only one political 

party is benign. 

225. These same people tended to restrict their hard-money contributions to candidates 

of the same party to which they had directed their soft-money contributions. Plaintiffs analyzed 

the hard-money candidate contributions that the 108 single-party soft-money givers had made 

through September 19, 2008. Of those people, all but nine gave at least 90% of their hard-money 

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contributions to candidates from the same party to which they had directed their soft-money 

contributions. Declaration of Robert Frommer in Supp. of Pls.’ Resp. to Def.’s Proposed 

Findings of Fact ¶ 7. 

FEC RESPONSE: This proposed rebuttal fact distorts the data to suggest a conclusion 

regarding the motive that is not supported the declaration. The FEC disputes plaintiffs’ 

characterization of the data to the extent it suggests the donors’ motives for giving, which are not 

apparent based on the data or the declaration. To the extent that this fact characterizes data from 

disclosure reports filed with the FEC, that data speaks for itself. In any event, the Supreme Court 

has never suggested that access purchased with money from only one political party is benign. 

V. Facts in Rebuttal to the FEC’s Claim That Unlimited Contributions to Groups Like 

SpeechNow.org Will Create Actual Political Corruption or the Appearance of Such 

Corruption. 

226. Political candidates and officeholders often feel gratitude toward many 

individuals and groups that provide benefits to them. For example, candidates feel gratitude 

towards nonprofit organizations that support causes or legislation of importance to the candidate 

or incumbent,. Simpson Decl., Ex. 14, FEC’s Resp. to Pls.’ First Set of Disc. Reqs., at 30; see 

also Simpson Decl., Ex. 23, FEC’s Resp. to Pls.’ Second Set of Disc. Reqs., at 8. 

FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 169. 

227. Candidates also ask citizens for votes, and show gratitude for the support of those 

citizens when support is received, as the FEC has admitted. Simpson Decl., Ex. 14, FEC’s Resp. 

to Pls.’ First Set of Disc. Reqs., at 30. 

FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 169. 

228. Candidates often feel gratitude toward celebrities or other prominent individuals 

who endorse their candidacies. Simpson Decl., Ex. 14, FEC’s Resp. to Pls.’ First Set of Disc. 

Reqs., at 30; see also Milyo Rebuttal Decl. ¶ 8. 

FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 169. 

229. Political candidates and officeholders often feel gratitude toward newspapers that 

endorse their candidacies or support legislation sponsored by the candidate or officeholder. 

Simpson Decl., Ex. 14, FEC’s Resp. to Pls.’ First Set of Disc. Reqs., at 30. 

FEC RESPONSE: See supra Response to Proposed Rebuttal Fact ¶ 169. 

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230. Political candidates and officeholders often feel gratitude toward individuals who 

make independent expenditures that support the candidacies of those candidates and 

officeholders or oppose the candidacies of their opponents. Simpson Decl., Ex. 23, FEC’s Resp. 

to Pls.’ Second Set of Disc. Reqs., at 8-9; see also FEC Ex. 18, Wilcox Dep. 178:7-179:2; FEC 

Ex. 16, Starcher Dep. 142:4-143:2. 

FEC RESPONSE: No response. 

231. California Fair Political Practices Commission Chairman Ross Johnson was not 

corrupted by a $75,000 independent expenditure campaign promoting his election to the 

California Senate in 1995. The independent expenditures did not cause him to introduce any 

legislation he would not have otherwise introduced or to meet with anyone that he would not 

have otherwise met. The independent expenditures did not cause him to do anything different 

than he would have done had the independent expenditures not been made. In sum, Senator 

Johnson states that he was not corrupted by the independent expenditures made on his behalf. 

FEC Ex. 10, Johnson Dep. 92:5-95:2 

FEC RESPONSE: While the Commission does not dispute the fact that Chairman 

Johnson was not corrupted by the independent expenditure made in support of his candidacy, as 

Chairman Johnson stated during his deposition, “It was perfectly fair for you or anybody else to 

wonder about that, and that's the point.” (See Johnson Dep. at 89:10-12, FEC Exh. 10.) 

232. No contribution to the election campaign of West Virginia Supreme Court Justice 

Larry V. Starcher, regardless of its size, could influence his vote in a case. FEC Ex. 16, Starcher 

Dep. 159:20-161:15. 

FEC RESPONSE: This proposed fact is irrelevant and the Court should decline to adopt 

it. The Commission’s proposed facts demonstrate generally that unlimited contributions to that a 

coal company executive’s contributions for independent expenditures in a 2005 West Virginia 

Supreme Court race illustrate the appearance of corruption. (See FEC Facts ¶¶ 317-32.) 

Whether any specific individual is incorruptible is not relevant to the determination of the 

constitutionality of the statutory provision challenged by plaintiffs. 

233. Evidence suggests that the public does not perceive gratitude and access to be the 

pervasive threats the FEC alleges. A telephone survey conducted by Rasmussen Reports in 2008 

“found that 55% believe media bias is more of a problem that big campaign contributions” while 

36% disagree. See Simpson Decl., Ex. 38, Rasmussen Reports, 55% Say Media Bias Bigger 

Problem than Campaign Cash, dated Aug. 11, 2008. The survey also found that “[j]ust 22% 

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believe it would be a good idea to ban all campaign commercials so that voters could receive 

information on the [2008 Presidential] campaign only from the news media and the internet. 

Sixty-six percent (66%) disagree and think that ... it’s better to put up with an election-year 

barrage of advertising rather than rely on the news media.” Id.

FEC RESPONSE: This proposed rebuttal fact is irrelevant and the Court should decline 

to adopt it. Whatever opinion surveys purport to suggest about the importance of campaign 

finance reform relative to other public matters has no bearing on whether the statutory provisions 

challenged by plaintiffs prevent corruption or its appearance. 

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 

Robert Bonham 

(D.C. Bar No. 397859) 

Senior Attorney 

_/s/ Graham M. Wilson________ 

Steve Hajjar 

Graham M. Wilson 

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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