IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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Republican National Committee, et al., 

Plaintiffs, 

v. 

Federal Election Commission, et al., 

Defendants. 

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

THREE-JUDGE COURT 

SUPPLEMENTAL MEMORANDUM OF INTERVENOR-DEFENDANT 

CHRISTOPHER VAN HOLLEN, JR. IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Roger M. Witten (D.C. Bar No. 163261) 

Lauren E. Baer (pro hac vice) 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

399 Park Avenue 

New York, NY 10022 

Tel.: (212) 230-8800 

Fax: (212) 230-8888 

E-mail: roger.witten@wilmerhale.com 

Seth P. Waxman (D.C. Bar No. 257337) 

Randolph D. Moss (D.C. Bar No. 417749) 

Francesco Valentini (D.C. Bar No. 986769) 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

1875 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Tel.: (202) 663-6000 

Fax: (202) 663-6363 

E-mail: randolph.moss@wilmerhale.com 

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP 

1425 K Street. N.W., Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fax: (202) 682-0249 

Email: dsimon@sonosky.com 

Fred Wertheimer (D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20006 

Tel.: (202) 355-9600 

Fax: (202) 355-9606 

E-mail: fwertheimer@democracy21.org 

Scott L. Nelson (D.C. Bar No. 413548) 

Public Citizen Litigation Group 

1600 20th Street, N.W. 

Washington, D.C. 20009 

Tel.: (202) 588-1000 

Fax: (202) 588-7795 

Email: snelson@citizen.org 

Attorneys for Intervenor-Defendant 

Representative Christopher Van Hollen, Jr.

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This Court ordered supplemental briefing on “the impact on the present litigation, if any, 

of the Supreme Court’s decision in Citizens United v. Federal Election Commission, __ S.Ct. __ 

(2010).” Dkt. No. 94 (Jan. 25, 2010). The Citizens United decision has no impact on this 

Court’s consideration of the case for the following reasons: 

First, and foremost, the disposition of the present case is controlled by the part of 

McConnell v. FEC, 540 U.S. 93, 133-89 (2003), that upheld Title I of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), in general, and the limits on soft money contributions to 

political parties, in particular. Because Citizens United dealt with the distinct question whether 

Congress may regulate independent expenditures by corporations, nothing in it calls into 

question the relevant holding of McConnell. The Supreme Court has long distinguished between 

the regulation of expenditures and contributions, and nothing in Citizens United calls into 

question that fundamental distinction or Congress’s authority to regulate contributions. 

Second, plaintiffs’ contention that the combination of Citizens United and the soft money 

ban will unconstitutionally disadvantage political parties is at odds with settled precedent and 

common sense. Since Buckley v. Valeo, 424 U.S. 1 (1976), the political parties have been 

subject to contribution limits not applicable to other groups, yet the Supreme Court has never 

suggested that these restrictions must be relaxed to equalize the parties’ voice with competing 

speakers. Instead, it has considered whether the limitations are so low that they “prevent[] 

candidates and political committees from amassing the resources necessary for effective 

advocacy.” Id. at 21; McConnell, 540 U.S. at 135 (same). Here, there is no risk that the political 

parties, whose national committees raised more than a billion dollars in the aggregate in the 

2007-2008 election cycle, will be unable to engage in vigorous and extensive campaign speech. 

See Mem. in Opp’n to Pls.’ Mot. for Summ. J., Dkt. No. 41, Exhibit 3 (“Ornstein Decl.”) ¶ 25. 

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I. CITIZENS UNITED DOES NOT UNDERMINE THE REASONING OF THE 

PORTION OF MCCONNELL THAT UPHELD TITLE I OF BCRA 

McConnell’s affirmation of BCRA’s political party/soft money restrictions rests on two 

premises, neither of which is undercut by Citizens United: First, contribution limits “‘entai[l] 

only a marginal restriction upon the contributor’s ability to engage in free communication,’” 

McConnell, 540 U.S. at 134-35 (quoting Buckley, 424 U.S. at 20), and are thus subject to a “less 

rigorous standard of review” than expenditure limits, id. at 137. Second, the government has a 

sufficiently important interest in preventing “both the actual corruption threatened by large 

financial contributions and the eroding of public confidence in the electoral process through the 

appearance of corruption,” id. at 136 (quoting FEC v. National Right to Work Committee 

(“NRWC”), 459 U.S. 197, 208 (1982)), which provides ample support for contribution limits. In 

light of “the ‘unity of interest,’ ‘close relationship,’ and ‘close ties’ among candidates, 

officeholders, and political parties,” EMILY’s List v. FEC, 581 F.3d 1, 22 (D.C. Cir. 2009), the 

rationale for limits on contributions to political candidates and officeholders extends to political 

parties, McConnell, 540 U.S. at 145, 152, 154, 155, 156 n.51.

A. Citizens United Does Not Change The Level Of Scrutiny Applicable To 

Restrictions On Soft Money Donations

In upholding BCRA’s Title I, McConnell reaffirmed—and relied upon—the principle 

established “[i]n Buckley and subsequent cases” that “restrictions on campaign expenditures [are 

subject] to closer scrutiny than limits on campaign contributions.” 540 U.S. at 134. Applying 

this framework, McConnell subjected the contribution limits challenged in this action, Section 

323, to “Buckley’s ‘closely drawn’ scrutiny,” McConnell, 540 U.S. at 137, under which “a 

contribution limit . . . is . . . valid if it satisfies the ‘lesser demand’ of being ‘closely drawn’ to 

match a ‘sufficiently important interest,’” id. at 136 (quoting FEC v. Beaumont, 539 U.S. 146, 

162 (2003)); see also Buckley, 424 U.S. at 25. 

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Plaintiffs now contend that Citizens United should be construed to hold that “McConnell 

incorrectly applied intermediate scrutiny in . . . upholding” the political party/soft money 

restrictions contained in BCRA. Pls’ Supp’l Mem. at 2, 8-9. It is startling to suggest that the 

Supreme Court overruled not only the soft money holding of McConnell, but also the framework 

for evaluating constitutional challenges to contribution limits employed in over thirty years of 

precedent, without so much as mentioning that it was doing so.1

 To the contrary, Citizens United 

repeatedly distinguished between the regulation of independent expenditures, which was at issue 

there, and the regulation of contributions, which was not. Removing any possible confusion on 

this point, the Court observed that “Citizens United has not made direct contributions to 

candidates, and it has not suggested that the Court should reconsider whether contribution limits 

should be subject to rigorous First Amendment scrutiny.” __ S. Ct. __, slip op. at 43. 

Moreover, Citizens United does not alter any of the considerations underlying the “less 

rigorous standard of review” applicable to contributions. McConnnell, 540 U.S. at 137. First, 

“contribution limits, unlike limits on expenditures, ‘entai[l] only a marginal restriction upon the 

contributor’s ability to engage in free communication.’” Id. at 134-35 (quoting Buckley, 424 

U.S. at 20) (emphasis added). Second, “[u]nlike expenditure limits, . . . which ‘preclud[e] most 

associations from effectively amplifying the voice of their adherents,’ contribution limits both 

‘leave the contributor free to become a member of any political association and to assist 

personally in the association’s efforts on behalf of candidates,’ and allow associations ‘to 

aggregate large sums of money to promote effective advocacy.’” Id. at 135-36 (quoting Buckley, 

 

1

 See Randall v. Sorrell, 548 U.S. 230 (2006) (plurality opinion of Breyer, J., joined by 

Roberts, C.J. and Alito, J.) (applying “closely drawn” scrutiny to contribution limits); 

McConnell, 540 U.S. 93 (same); Beaumont, 539 U.S. 146 (same); Nixon v. Shrink Missouri 

Gov’t PAC, 528 U.S. 377 (2000) (same); California Med. Ass’n. v. FEC, 453 U.S. 182 (1981) 

(plurality opinion) (same); Buckley, 424 U.S. 1 (same). See also FEC v. Colo. Republican Fed. 

Campaign Comm. (“Colorado II”), 533 U.S. 431 (2001) (same to coordinated expenditures). 

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424 U.S. at 22) (emphasis added). Third, the more deferential treatment accorded to political 

contributions appropriately “reflects the importance of the interests that underlie contribution 

limits—interests in preventing ‘both the actual corruption threatened by large financial 

contributions and the eroding of public confidence in the electoral process through the 

appearance of corruption.’” Id. at 136 (quoting NRWC, 459 U.S. at 208). Fourth, a less 

demanding level of scrutiny shows “proper deference to Congress’ ability to weigh competing 

constitutional interests in an area in which it enjoys particular expertise.” Id. at 137. Nothing in 

Citizens United addresses, much less questions, these long-recognized considerations. 

B. Citizens United Does Not Reject The Anti-Corruption Interest Supporting 

BCRA Title I’s Restrictions On Soft-Money Donations 

In upholding BCRA Title I, McConnell reaffirmed that “the prevention of corruption or 

its appearance constitutes a sufficiently important interest to justify political contribution limits.” 

McConnell, 540 U.S. at 143. With respect to political contributions, the relevant understanding 

of corruption has, since Buckley, included not only “actual quid pro quo arrangements,” but also 

“the appearance of corruption stemming from public awareness of the opportunities for abuse 

inherent in a regime of large individual financial contributions.” 424 U.S. at 27. Accordingly, in 

assessing the potential for corruption inherent in soft money contributions, McConnell

considered not only “‘quid pro quo arrangements,’” but also “‘improper influence’ and 

‘opportunities for abuse’” in the sense of “‘the broader threat from politicians too compliant with 

the wishes of large contributors.’” 540 U.S. at 143 (quoting Shrink Missouri, 528 U.S. at 389); 

see also Colorado II, 533 U.S. at 441 (acknowledging that corruption extends beyond explicit 

cash-for-votes agreements to “undue influence on an officeholder’s judgment”). 

Plaintiffs contend that, in holding restrictions on independent expenditures unjustified, 

Citizens United implicitly rejected the anti-corruption interest that Buckley, Shrink Missouri, 

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Colorado II and McConnell found “sufficiently important” to support contributions restrictions. 

Pl. Supp’l Mem. at 3-5. In plaintiffs’ view, after Citizens United, Congress may only limit 

contributions if they present a risk of quid pro quo corruption. Plaintiffs’ argument has no merit. 

Citizens United did not address the types of government interests that may support 

restrictions on contributions. The Court’s analysis, moreover, does not extend to contribution 

limits for several important reasons. First, unlike expenditure limits, contribution limits need 

only be “closely drawn” to serve a “sufficiently important interest.” Buckley, 424 U.S. at 25. 

Because Citizens United applies strict scrutiny, it says nothing about whether the “influence and 

access” that comes with political contributions meets the less rigorous demands of “closely 

drawn” scrutiny—and it certainly did not overrule three decades of cases holding that 

contribution limits, including limits on contributions to political parties, may be sustained based 

on Congress’ judgment that they are needed to address actual or apparent corruption and to 

prevent the circumvention of the campaign finance laws. See Buckley, 424 U.S. at 26-28. 

Second, Plaintiffs’ contention ignores the greater risk of corruption inherent in political 

contributions, as compared to independent expenditures—a distinction that Citizens United, 

McConnell, and Buckley all recognized. Plaintiffs point to language in Citizens United 

indicating that “‘[i]ngratiation and access . . . are not corruption,’” and that “‘[t]he fact that 

speakers may have influence over or access to elected officials does not mean that these officials 

are corrupt.’” Pls’ Supp’l Mem at 3, 4 (quoting Citizens United, slip op. at 43, 45). But 

McConnell itself had already observed that “mere political favoritism or opportunity for 

influence alone is insufficient to justify regulation.” 540 U.S. at 153. Citizens United simply 

confirms this observation and concludes that any “ingratiation,” “influence” or “access” that may 

result from independent expenditures is not corrupting, since “[b]y definition, an independent 

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expenditure is political speech presented to the electorate that is not coordinated with a 

candidate.” __ S. Ct. __, slip op. at 44. 

By contrast, contributions are solicited by and made to federal candidates and 

officeholders—or the political parties with whom they share a “unity of interest,” McConnell, 

540 U.S. at 145—and “it is the manner in which parties have sold access to federal candidates 

and officeholders that has given rise to the appearance of undue influence,” id. at 153-54. As 

amply documented in McConnell, this process creates not only the perception of “generic” 

influence, but an actual market where influence is bought and sold. Id. at 146-52, 153-54. It is 

this market that turns benign political favoritism and influence into “undue influence” and actual 

or apparent corruption. Id. at 153-54 (emphasis added). Nothing in Citizens United undermines 

McConnell’s conclusion that the government has a sufficiently important interest in preventing 

such a market from flourishing—whether because that market is itself corrupt or because it 

creates a fertile ground for quid pro quo arrangements. 

Third, if anything, Citizens United reaffirmed Buckley’s holding that the anti-corruption 

rationale for contribution limits extends beyond “quid pro quo” corruption. As the Court 

explained, “restrictions on direct contributions are preventative, because few if any contributions 

to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, 

sustained limits on direct contributions in order to ensure against the reality or appearance of 

corruption.” __ S. Ct. __, slip. op. at 41 (citations omitted). Citizens United did not question 

this “preventative” function of contribution limits; it simply held that Buckley “did not extend 

this rationale to independent expenditures” and that it was not prepared to do so either. Id. 

Finally, even if Citizens United did implicitly narrow the anti-corruption interest that may 

support restrictions on contributions—a question not even presented in that case—McConnell

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was premised on a record that contained abundant evidence of real or apparent quid pro quo

arrangements resulting from soft money donations to political parties: 

Plaintiffs argue that without concrete evidence of an instance in 

which a federal officeholder has actually switched a vote (or, 

presumably, evidence of a specific instance where the public 

believes a vote was switched), Congress has not shown that there 

exists real or apparent corruption. But the record is to the contrary. 

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 

legislation. See, e.g., [McConnell v. FEC,] 251 F. Supp. 2d 176, 

482 [(D.D.C. 2003) (three-judge court)] (Kollar-Kotelly, J.); id. at 

852 (Leon, J.) . . . . To claim that such actions do not change 

legislative outcomes surely misunderstands the legislative process. 

McConnell, 540 U.S. at 149-50 (record citations omitted); see also EMILY’s List, 581 F.3d at 6-7 

(“The Court has explained that contributions to a candidate or party pose a greater risk of quid 

pro quo corruption than do expenditures.”) (emphasis added). 

C. The Supreme Court’s Holding In McConnell Would Be Binding On This 

Court Even If Plaintiffs’ Reading Of Citizens United Were Correct 

 Plaintiffs’ case turns on the contention that their “intended activities pose no threat of 

gratitude that is anything more than generalized.” Pls’ Supp’l Mem. at 5 (emphasis added). 

Regardless of whether that claim is true, the Supreme Court held in McConnell that BCRA’s 

political party/soft money restrictions “regulate[] contributions, not activities,” and that “it is the 

close relationship between federal officeholders and the national parties, as well as the means by 

which parties have traded on that relationship, that have made all large soft-money contributions 

to national parties suspect.” 540 U.S. at 154-55 (emphasis in original). Plaintiffs cannot prevail 

as long as that eminently sound holding in McConnell stands. 

Even if some language in Citizens United were stretched to call this holding into 

question, it still would not permit this Court to reject McConnell’s conclusions regarding Title I 

of BCRA. Where an earlier Supreme Court decision “has direct application in a case, yet 

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appears to rest on reasons rejected in” a subsequent decision, lower courts “should follow the 

case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its 

own decisions.” Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 

(1989). Here, McConnell not only has “direct application,” but actually considered and decided 

the precise question that plaintiffs raise in this case.2 That plaintiffs here have at times 

characterized their claim as an “as applied” challenge, instead of a facial challenge, does not 

change this result. Indeed, now, plaintiffs expressly seek to invalidate the soft money ban on its 

face. Pls’ Supp’l Mem. at 9-11. 

II. THAT CORPORATIONS MAY NOW MAKE INDEPENDENT EXPENDITURES 

DOES NOT AFFECT THE CONSTITUTIONALITY OF BCRA’S TITLE I 

Plaintiffs make much of the fact that, after Citizens United, corporations may spend 

unlimited general treasury money on ads supporting or attacking specific candidates, while 

political parties may not raise soft money to spend on ads of any kind. Pls’ Supp’l Mem at 5-9. 

Plaintiffs’ argument misconceives the nature of the soft money ban and ignores the enormous 

resources the political parties have at their disposal to engage in political speech. 

As McConnell made clear, “Section 323(a), like the remainder of § 323, regulates 

contributions, not activities.” 540 U.S. at 154. As a result, the political parties are as free as 

corporations or unions to spend money, without restriction, on electoral advocacy, grassroots 

advocacy, or any other political activities. 

Moreover, the distinction in treatment about which plaintiffs object “has existed to some 

extent since Buckley,” EMILY’s List, 581 F.3d at 19, which upheld the $25,000 limit on 

 

2

 Compare McConnell, 540 U.S. at 150 (“The record in the present cases is replete with . . . 

examples of national party committees peddling access to federal candidates and officeholders in 

exchange for large soft-money donations.”) with Brief of the Political Parties 26-27, McConnell, 

540 U.S. 93 (“The record provides no support for the claim that ‘access’ to federal officeholders 

is uniquely granted to nonfederal donors as a result of their donations to political parties.”). 

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aggregate yearly contributions to candidates, political committees, and parties, Buckley, 424 U.S. 

at 38. Since that time, various groups have “‘remain[ed] free to raise soft money to fund’” just 

the type of “‘voter registration, GOTV activities . . . ,’ and advertisements” that plaintiffs 

complain that they cannot fund with soft money. EMILY’s List, 581 F.3d at 19 (quoting 

McConnell, 540 U.S. at 187). Relying on this disparity, the RNC argued in McConnell that Title 

I of BCRA violated equal protection “because it discriminates against political parties in favor of 

special interest groups.” McConnell, 540 U.S. at 187; see Brief of the Political Parties at 2, 91-

99, McConnell, 540 U.S. 93. The Supreme Court, however, rejected that challenge, stressing 

that “BCRA actually favors political parties in many ways” and concluding that Congress was 

“fully entitled to consider the real-world differences between political parties and interest 

groups.” Id. at 188. As the Court wrote, “[i]nterest groups do not select slates of candidates for 

elections,” and “do not determine who will serve on legislative committees, elect congressional 

leadership, or organize legislative caucuses.” Id. 

Finally, plaintiffs cannot reasonably maintain that the combined effect of § 323 and the 

participation of corporations (and unions) in electoral advocacy is “‘so radical . . . as to . . . drive 

the sound of [the political parties’] voice below the level of notice.’” McConnell, 540 U.S. at 

173 (citation omitted). In the 2007-2008 election cycle, the Republican National Party 

committees received hard money contributions of $640,308,267, and the Democratic National 

Party committees received hard money contributions of $599,113,650. Ornstein Decl. ¶ 25. 

Funds in excess of a total of a billion dollars are certainly sufficient to raise the voices of the 

national parties above “‘the level of notice.’” McConnell, 540 U.S. at 173 (citation omitted). 

Given these numbers, it is far-fetched, to say the least, to suggest that the political parties will 

find it difficult to compete with corporate political speech. 

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CONCLUSION 

For the foregoing reasons and the reasons stated in Intervenor’s prior memoranda in this 

case (Dkt. Nos. 41, 83), plaintiffs’ Motion for Summary Judgment should be denied and the 

Federal Election Commission’s Motion for Summary Judgment should be granted. 

Dated this 9th day of February 2010. Respectfully submitted, 

 /s/ Randolph D. Moss 

Roger M. Witten (D.C. Bar No. 163261) 

Lauren E. Baer (pro hac vice) 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

399 Park Avenue 

New York, NY 10022 

Tel.: (212) 230-8800 

Fax: (212) 230-8888 

E-mail: roger.witten@wilmerhale.com 

Seth P. Waxman (D.C. Bar No. 257337) 

Randolph D. Moss (D.C. Bar No. 417749) 

Francesco Valentini (D.C. Bar No. 986769) 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

1875 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Tel.: (202) 663-6000 

Fax: (202) 663-6363 

E-mail: randolph.moss@wilmerhale.com 

Donald J. Simon (D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY LLP 

1425 K Street. N.W., Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fax: (202) 682-0249 

Email: dsimon@sonosky.com 

Fred Wertheimer (D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20006 

Tel.: (202) 355-9600 

Fax: (202) 355-9606 

E-mail: fwertheimer@democracy21.org 

Scott L. Nelson (D.C. Bar No. 413548) 

Public Citizen Litigation Group 

1600 20th Street, N.W. 

Washington, D.C. 20009 

Tel.: (202) 588-1000 

Fax: (202) 588-7795 

Email: snelson@citizen.org 

Attorneys for Intervenor-Defendant 

 Representative Christopher Van Hollen, Jr.

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