UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 

______________________________________

STOP RECKLESS ECONOMIC ) Civ. No. 1:14-397 (AJT-IDD)

INSTABILITY CAUSED BY DEMOCRATS, )

et al., ) Judge Anthony John Trenga

Plaintiffs, )

and ) Magistrate Judge Ivan D. Davis

)

AMERICAN FUTURE PAC, )

Intervenor- )

Plaintiff, )

v. )

)

FEDERAL ELECTION COMMISSION, )

Defendant. )

______________________________________ )

REBUTTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS’ AND AMERICAN 

FUTURE PAC’S MOTION FOR SUMMARY JUDGMENT

/s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

 /s/ Dan Backer

 Jerad Najvar* Dan Backer, Esq. 

 NAJVAR LAW FIRM Virginia State Bar # 78256

 4151 Southwest Freeway, Suite 625 DB CAPITOL STRATEGIES PLLC

 Houston, TX 77027 203 South Union Street, Suite 300

 Phone: (281) 404-4696 Alexandria, VA 22314

 E-mail: jerad@najvarlaw.com Phone: (202) 210-5431

 Attorney for Intervenor-Plaintiff Fax: (202) 478-0750

 American Future PAC E-mail: DBacker@DBCapitolStrategies.com

 *Motion for pro hac vice admission Attorneys for Plaintiffs Stop PAC, Tea Party 

 forthcoming Leadership Fund, and ARCC

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................ii

ARGUMENT.............................................................................................................................. 1

I. THE GOVERNMENT HAS FAILED TO PROVIDE A 

CONSTITUTIONALLY ADEQUATE BASIS FOR SLASHING 

THE AMOUNT THAT CERTAIN POLITICAL COMMITTEES 

MAY CONTRIBUTE TO POLITICAL PARTY COMMITTEES 

ONCE THEY ARE REGISTERED FOR SIX MONTHS ............................................. 2

II. THE SIX-MONTH WAITING PERIOD ON CANDIDATE 

CONTRIBUTIONS VIOLATES THE FIRST AND FIFTH AMENDMENTS ............ 7

III. STOP PAC’S CLAIM REMAINS JUSTICIABLE...................................................... 11

CONCLUSION......................................................................................................................... 13

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TABLE OF AUTHORITIES

Cases

Buckley v. Valeo,

424 U.S. 1 (1974).................................................................................................... passim

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975) (en banc)..........................................................................8

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)..........................................................................................................1

Catholic Leadership Coalition of Tex. v. Reisman, 

No. 13-50582, 2014 U.S. App. LEXIS 15558 (5th Cir. Aug. 12, 2014) ........................12

Davis v. FEC, 

554 U.S. 724 (2008)....................................................................................................5, 11

Dunn v. Blumstein, 

405 U.S. 330 (1972)........................................................................................................12

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001)..........................................................................................................2

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007)........................................................................................................11

Honig v. Doe, 

484 U.S. 305 (1988)........................................................................................................11

Lawrence v. Blackwell, 

430 F.3d 368 (6th Cir. 2005) ..........................................................................................13

McCutcheon v FEC, 

134 S. Ct. 1434 (2013)............................................................................................3, 4, 10

Moore v. Ogilvie, 

394 U.S. 814 (1969)........................................................................................................12

Murphy v. Hunt, 

455 U.S. 478 (1982)........................................................................................................11

Police Dep’t of the City of Chicago v. Mosley, 

408 U.S. 92 (1972)............................................................................................................1

Rosario v. Rockefeller, 

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410 U.S. 752 (1973)........................................................................................................12

S. Pac. Term. Co. v. ICC, 

219 U.S. 498 (1911)........................................................................................................11

Storer v. Brown, 

415 U.S. 724 (1974)........................................................................................................11

Williamson v. Lee Optical, 

348 U.S. 483 (1955)..........................................................................................................1

Statutes

2 U.S.C. § 441a.............................................................................................................................2

Other Authorities

William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 

83 NOTRE DAME L. REV. 1441 (2008) ..............................................................................1

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ARGUMENT

Many laws are, to be blunt, messy. They incorporate arbitrary cut-offs, hastily drafted or 

thoughtlessly overbroad language, provisions that lie in logical tension with each other, and 

compromises based more on expediency than political principle. Concessions that make little 

sense in light of a bill’s overarching purposes often must be made to appease certain interest 

groups, to allow it to progress through the legislative process. See William N. Eskridge, Jr., 

Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1449-50 (2008). By the time a 

bill passes through committees in both Houses of Congress, it has been debated and amended on 

the floors of two legislative chambers, and the White House has weighed in, it often becomes a 

pastiche of exemptions, exceptions, cutoffs, and other provisions that hang together 

uncomfortably, if at all. And, in general, all of that is constitutionally permissible. See Williamson 

v. Lee Optical, 348 U.S. 483 (1955). 

When a law restricts, limits, or burdens constitutional rights, however, the rules are 

different. Congress is not as free to treat similarly situated entities differently, or allow them to 

exercise their rights to different extents. Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 

92, 102 (1972); see also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (“CalMed”). Rather, 

the Government must be able to demonstrate that any distinctions the law imposes on the ability 

of similar entities to engage in constitutionally protected conduct are demonstrably tailored to 

furthering important government interests. 

It is undisputed that contribution limits burden First Amendment rights and are subject to 

such intermediate scrutiny (i.e, the “closely drawn” test). Buckley v. Valeo, 424 U.S. 20, 25, 28-

29 (1976); see also Cal. Med. Ass’n, 453 U.S. at 200. And to survive such scrutiny, the FEC must 

prove that the limits and distinctions it seeks to defend are closely drawn, Buckley, 424 U.S. at 25, 

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to preventing actual or apparent quid pro quo corruption or circumvention of otherwise permissible 

contribution limits, id. at 26; FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 

(2001) (hereafter, “Colorado II”). The FEC has failed to establish that either: (i) the six-month 

waiting period on certain political committees’ ability to contribute the maximum statutory amount 

to candidates, or (ii) the precipitous drop in limits on contributions to national, state, and local 

parties that occurs once those committees reach that six-month mark, survive such heightened 

scrutiny. 

I. THE GOVERNMENT HAS FAILED TO PROVIDE A 

CONSTITUTIONALLY ADEQUATE BASIS FOR SLASHING 

THE AMOUNT THAT CERTAIN POLITICAL COMMITTEES 

MAY CONTRIBUTE TO POLITICAL PARTY COMMITTEES 

ONCE THEY ARE REGISTERED FOR SIX MONTHS

This Court should invalidate 2 U.S.C. § 441a(a)(1)(B), (D); § 441a(a)(2)(B)-(C); and 

§ 441a(a)(4) to the extent these provisions allow certain political committees1 that have been 

registered for less than six months to contribute $32,400 to national political parties and $15,000 

to state and local political parties, while permitting such committees that have been registered for 

more than six months to contribute only $15,000 and $5,000, respectively to those recipients. 

The FEC’s Response Brief contends that the requirements for multicandidate status set 

forth in 2 U.S.C. § 441a(a)(4) are protections intended to ensure that only bona fide groups, and 

not sham entities or “‘dummy’ political committees,” are able to take advantage of multicandidate 

PAC status. See FEC Resp. Br. at 16. Under the current law, however, the following types of 

political committees are entitled to contribute the maximum statutory amount of $32,400 to a 

national political party committee and $15,000 to a state or local political party committee:

Ɣ a two-day old political committee; 

1 For brevity, the phrase “certain political committees” refers to non-candidate, non-party 

committees that have more than 50 contributors and have contributed to five or more candidates. 

2

 

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Ɣ a political committee that has received only a few contributions; 

Ɣ a political committee that has not contributed to any federal candidates, or any 

entities other than the national, state, or local party committee to which it wishes to make the large 

contribution. 

Under the statutory scheme, there is only one type of group that finds its ability to 

contribute to national, state, and local political parties hobbled: multicandidate PACs. As the FEC 

itself eloquently explains, a multicandidate PAC “is a broad-based group that has contributed to 

dozens of candidates with funds collected from [numerous] contributors.” FEC Resp. Br. at 25. 

PACs tend to be “well known” because they have “been publically scrutinized in part because 

[they have] been disclosing information” about themselves in accordance with the FEC’s reporting 

requirements. Id. Indeed, the FEC spends the overwhelming majority of its brief explaining why 

multicandidate PACs purportedly pose less of a threat of corruption and circumvention than more 

recently formed political committees that have identical numbers of contributors and supported 

candidates. Thus, the FEC cannot credibly contend that subjecting multicandidate PACs to lower 

limits on contributions to political parties than newly formed entities, entities with only a handful 

of contributors, and entities that have not made any contributions somehow furthers the 

Government’s interest in combatting quid pro quo corruption or circumvention. 

By allowing most political committees to contribute $32,400 to national political party 

committees and $15,000 to state and local party committees, Congress necessarily has determined 

that such contributions do not raise a sufficient risk of quid pro quo corruption or circumvention 

to warrant prohibiting. McCutcheon v FEC, 134 S. Ct. 1434, 1452 (2013) (“Congress’s selection 

of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a 

cognizable risk of corruption.”). To justify the imposition of lower limits on multicandidate PACs, 

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the FEC must point to some relevant distinction about them that would cause contributions in those 

same amounts to lead to a greater, intolerable risk of corruption or circumvention. The FEC has 

made no such showing. 

The FEC first contends that multicandidate PACs have alternate ways of associating with 

and expressing support for candidates, such as contributing lesser amounts, volunteering, or 

engaging in independent expenditures. FEC Resp. Br. at 28-29. The Court already took into 

account the availability of such alternative methods of association and speech in settling on an 

intermediate level of scrutiny, rather than strict scrutiny, for contribution limits. See Buckley, 424 

U.S. at 22, 25 (imposing “closely drawn” scrutiny on contribution limits because they “limit one 

important means of associating with a candidate or committee, but 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”); see also McCutcheon, 134 S. Ct. at 1449 (recognizing that the First 

Amendment burdens of contribution limits are even worse when the regulated entities lack “ready 

access to alternative avenues for supporting their preferred politicians and policies”). Such 

alternatives do nothing to show that the Government has a constitutionally valid basis for cutting 

the contribution limits for certain political committees once they happen to have been registered 

for six months. 

Second, the FEC contends that cutting the amount that multicandidate PACs may 

contribute to political party committees is constitutional because, compared to individuals, 

“multicandidate PACs contribute relatively little to political party funding and spend far more of 

their resources on supporting candidates directly.” FEC Resp. Br. at 29. In short, the FEC is 

defending imposing lower contribution limits on multicandidate PACs than on individuals because 

multicandidate PACs contribute less to political party committees than individuals. Such 

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reasoning is both tautological and irrelevant; one wonders what the statistics would be in the 

absence of disparate and discriminatory contribution limits. In any event, the aggregate amount 

that multicandidate PACs collectively contribute to national political parties overall has no bearing 

on whether limiting each individual multicandidate PAC’s ability to contribute to political parties 

is reasonably tailored to furthering the Government’s anti-corruption and anti-circumvention 

interests. 

Finally, the Government concludes by essentially arguing that Congress was justified in 

slashing the amount that certain committees may contribute to political party committees because 

there’s already enough money in politics. FEC Resp. Br. at 29-30 (“[F]urther increases in the 

limits on contributions to parties were not necessary since the parties have been more than able to 

raise needed resources . . . .”). The Government may not defend contribution limits on the 

generalized grounds that, overall, “enough” First Amendment activity is occurring already, or that 

there is “too much” money involved in politics. As Buckley itself teaches, “[T]he mere growth in 

the cost of federal election campaigns in and of itself provides no basis for governmental 

restrictions on the quantity of campaign spending and the resulting limitation on the scope of 

federal campaigns. The First Amendment denies government the power to determine that 

spending to promote one's political views is wasteful, excessive, or unwise.” Buckley, 424 U.S. at 

57; cf. Davis v. FEC, 554 U.S. 724, 741-43 (2008).

It is also noteworthy that the FEC makes no serious attempt to argue that this precipitous 

drop in contribution limits is at all reasonably tailored. Cf. FEC Resp. Br. at 30. Nor can it. This 

reduction in contribution limits is the very opposite of tailored; it universally applies to all 

multicandidate PACs, regardless of their lack of prior campaign finance violations, the complete 

absence of any indication in their FEC filings that circumvention may be afoot, or their persistent, 

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bona fide participation in election after election, contributing to a wide range of candidates and 

political committees. The complete absence of any attempt to impose any limits on the scope of 

this cut in contribution limits simply underscores its unconstitutionality. 

In short, the FEC’s position is that, when an entity with 50 contributors and that has 

contributed to 5 candidates contributes $30,000 to a national political party committee, we cannot 

know whether that contribution raises enough of a risk of corruption or quid pro quo circumvention 

to warrant prohibiting unless we first ascertain whether the committee has been registered for six 

months. Only after determining that the entity is a multicandidate PAC—in the FEC’s words, that 

it is a “broad-based group” that has “collected funds from [numerous] contributors,” has 

“contributed to dozens of candidates,” is “well known,” has “been disclosing information” to the 

FEC, and has been “publically scrutinized”—can we be confident that its contribution must be 

prohibited. FEC Resp. Br. at 25. In contrast, were the $30,000 contribution to come from any 

other type of PAC—including a committee identical in every way to our hypothetical 

multicandidate PAC, but registered for less than six months—it would be permissible. Such 

arbitrary and irrational distinctions cannot survive rational basis scrutiny, must less any form of 

heightened or intermediate scrutiny. Thus, this Court should invalidate the disparate and 

discriminatory limits on contributions to national, state, and local political party committees as 

they apply to non-candidate, non-party committees with more than 50 contributors and that have 

contributed to five or more candidates. 

II. THE SIX-MONTH WAITING PERIOD ON CANDIDATE 

CONTRIBUTIONS VIOLATES THE FIRST AND FIFTH AMENDMENTS

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This case ultimately boils down to circumvention. The FEC contends that allowing certain 

political committees that have been registered for less than six months to contribute only $2,600 

per election to a candidate, while allowing materially identical committees that have been 

registered for more than six months to contribute $5,000 per election to a candidate, is a reasonably 

tailored means of combatting circumvention of other contribution limits.

2

 The FEC’s entire 

argument hinges on a faulty conception of “circumvention.” 

The FEC explains that the six-month waiting period is necessary because, otherwise, 

“supporters of a candidate could easily start a PAC, quickly satisfy the 51-contributors and fivecontributions requirements, and then use the $5,000 contribution authority reserved for broadbased groups to assist that candidate.” FEC Resp. Br. at 17. But so what? The FEC fails to explain 

why a $5,000 candidate contribution from such an entity is suspect, but would be above reproach 

if the entity happened to be formed more than six months before the election. A political 

committee that has been registered for six months and qualifies as a multicandidate PAC is free to 

support as many or as few candidates as it wishes; it even may choose to support only a single 

candidate in an election. Since the law permits multicandidate PACs to engage in such conduct, 

there is no basis for labeling another committee that meets § 441a(a)(4)’s contributor and 

contribution requirements, but has been registered for less than six months, a “sham,” “dummy,” 

or circumvention tool. 

2 The FEC also briefly argues that these disparate limits also promote its interest in ensuring 

adequate disclosure of information about political committees’ supporters. FEC Resp. Br. at 21-

22. The Supreme Court has never held, however, that the Government may impose contribution 

limits in order to obtain more information about a committee’s contributors. In any event, 

contribution limits and waiting periods on making certain contributions would be bizarre, 

hopelessly indirect, and unconstitutionally overbroad tools for seeking to obtain more information 

from political committees. A more reasonably tailored means of obtaining the information the 

FEC desires at a particular time would be to simply require the regulated entity to provide such 

information at that time. 

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Perhaps the most fundamental problem with the FEC’s reliance on an anti-circumvention 

interest is that the six-month waiting period does not further any such interest as the Supreme 

Court defined it in Buckley v. Valeo. In Buckley, the Court held that Congress may impose 

requirements for qualifying as a political committee in order to “serve the permissible purpose of 

preventing individuals from evading the applicable contribution limits by labeling themselves 

committees.” Buckley, 424 U.S. at 35-36 (emphasis added); see also Buckley v. Valeo, 519 F.2d 

821, 857-58 (D.C. Cir. 1975) (en banc), aff’d in part and rev’d in part, 424 U.S. 1 (1977) 

(upholding the six-month waiting period because it “prevent[s] proliferation of dummy 

committees, each of a few persons, in support of federal candidacies,” because “[o]therwise two 

or three persons could acquire the $5,000 [multicandidate PAC] contribution authority . . . merely 

by organizing themselves as a political committee”) (emphasis added).3 

While the six-month waiting period might complement the other requirements for 

multicandidate PAC status in general, it does not and cannot play such a legitimate circumvention 

role as applied to committees that have more than 50 contributors, and have contributed to more 

than five candidates. By definition, such entities are not “dummy” or “sham” committees that are 

comprised of a single “individual[],” Buckley, 424 U.S. at 35-36, groups of “two or three persons,” 

or “a few persons,” Buckley, 519 F.2d at 857-58. Rather, the waiting period simply requires such 

entities to wait six months before being able to exercise their constitutional rights of association 

3 This discussion also confirms that Buckley neither considered nor rejected Plaintiffs’ specific asapplied challenge to § 441a(a)(4)’s six-month waiting requirement. Cf. FEC Resp. Br. at 8-9. The 

Court held that such a requirement is facially valid as a way of preventing individuals from evading 

the applicable contribution limits by labeling themselves committees.” Buckley, 424 U.S. at 35-

36. This as-applied challenge, however, concerns the rights of political committees with more 

than 50 supporters, and that have contributed to five or more candidates. By definition, it does not 

raise the possibility of individuals or small groups of people simply “labeling themselves 

committees” to take advantage of higher contribution limits. Id. 

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and speech to the maximum statutorily authorized extent, by contributing $5,000 per election to 

the candidates they support. 

Finally, the FEC spills much ink attempting to explain how Stop PAC itself confirms the 

need for a six-month waiting period. FEC Resp. Br. at 17-18. Despite the fact that Stop PAC has 

contributed thousands of dollars to candidates Dan Sullivan and Joe Heck, and hundreds of dollars 

to other federal candidates, the FEC suggests that it is simply a “sham” committee created to 

support Innis. The FEC’s argument, however, simply underscores the fact that the six-month 

waiting period is not, in fact, an anti-circumvention tool. The FEC complains about various aspects 

of the relationship among Innis, Stop PAC, and certain other individuals, id., and suggests that the 

waiting period performed a valuable function in this case by preventing Stop PAC from 

contributing $5,000 to Innis. 

There are three major problems with this argument. First, the six month waiting period 

applies to all committees that satisfy § 441a(a)(4)’s contributor and contribution requirements, not 

just those that have certain features to which the FEC objects. If the FEC wishes to prevent PAC 

personnel from having certain relationships with federal candidates or their campaigns, the FEC 

should seek legislation or promulgate regulations to do so. The FEC’s objections to certain aspects 

of Stop PAC’s relationship with Innis are a bizarre basis for defending the constitutionality of a 

law that does not mention any such relationships, is not triggered by any such relationships, and 

does not in fact prohibit any such relationships. 

Second, a universal prophylactic six-month waiting period on all political committees is a 

distinctly untailored means of attempting to achieve any legitimate anticircumvention goal the 

FEC may assert. Indeed, even with regard to Stop PAC itself, the FEC fails to explain how any 

such goal was purportedly furthered by delaying Stop PAC from contributing $5,000 to candidates 

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Sullivan or Heck—with whom Stop PAC and its agents lacked any relationship—until its sixmonth waiting period expired. 

Finally, had Innis won the primary, Stop PAC would now be permitted to contribute 

$5,000 to him in connection with the general election. All of the relationships among Innis, Stop 

PAC, and certain Stop PAC personnel remain the same, yet the risk of circumvention is not deemed 

sufficient to warrant prohibiting such a contribution. Cf. McCutcheon v FEC, 134 S. Ct. 1434, 

1452 (2013) (holding that Congress’ decision to refrain from prohibiting certain contributions 

“indicates its belief that contributions of that amount or less do not create a cognizable risk of 

corruption”). Since Stop PAC, despite its purported relationships with Innis and connections to 

him, would be able contribute $5,000 to Innis today, it is unclear why those relationships and 

connections would be sufficient to warrant prohibiting such a contribution a few weeks earlier, 

during the six-month waiting period. The FEC fails to explain how the hypothesized risk of 

corruption or circumvention between a political committee such as Stop PAC and a candidate such 

as Innis diminishes, just because the political committee’s waiting period has expired. Thus, the 

FEC cannot credibly argue that the six-month waiting period plays an important role in combatting 

corruption or circumvention. 

Thus, this Court should invalidate the disparate and discriminatory limits on contributions 

to candidates as they apply to non-candidate, non-party committees with more than 50 contributors 

and that have contributed to five or more candidates. 

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III. STOP PAC’S CLAIM REMAINS JUSTICIABLE

Although the FEC urges this Court to dismiss Stop PAC’s claims as moot, FEC Resp. Br. 

at 7-8, they remain justiciable because they are “capable of repetition, yet evading review.”4 S. 

Pac. Term. Co. v. ICC, 219 U.S. 498, 515 (1911). In general, a plaintiff cannot invoke this 

exception to the mootness doctrine unless it faces a risk of being subject to the same challenged 

provisions in the future. Murphy v. Hunt, 455 U.S. 478, 482 (1982). As Justices Scalia and 

O’Connor recognized, however, some of the Court’s “election law decisions differ from the body 

of [its] mootness jurisprudence . . . in dispensing with the same-party requirement entirely, 

focusing instead upon the great likelihood that the issue will recur between the defendant and the 

other members of the public at large without ever reaching [the Supreme Court].” Honig v. Doe, 

484 U.S. 305, 335 (1988) (Scalia, J., dissenting). 

The FEC points out that the Supreme Court did not address this point in Davis v. FEC, 554 

U.S. 724, 735-36 (2008) (cited in FEC Resp. Br. at 8), and FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 462 (2007) (cited in FEC Resp. Br. at 8). The Court’s failure to consider the 

applicability of this exception to the “same plaintiff” requirement in those cases is understandable, 

however, because the Court concluded that those plaintiffs’ claims remained justiciable under the 

traditional “capable of repetition” standard. There was therefore no need to discuss or apply this 

exception to the “same plaintiff” requirement. 

In other election-law cases, in contrast, the Court repeatedly has adjudicated their merits 

despite the fact that the plaintiffs’ claims had become moot, and there did not appear to be any 

reasonable prospect that the plaintiffs would again be subject to the challenged legal provisions. 

4 In any event, even if this Court concludes—despite binding Supreme Court precedent to the 

contrary—that Stop PAC’s claims are moot and non-justiciable, American Future PAC presently 

has a pending motion to join this case to maintain the justiciability of Stop PAC’s claims. 

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See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (holding that a challenge to a waiting 

period for former political party members to run as independent candidates remained justiciable, 

even though the election had occurred, and “no effective relief can be provided to the candidates 

or voters,” since “the issues properly presented, and their effects on independent candidacies, will 

persist as the California statutes are applied in future elections”); Rosario v. Rockefeller, 410 U.S. 

752, 756 n.5 (1973) (“Although the June primary election has been completed and the petitioners 

will be eligible to vote in the next scheduled New York primary, this case is not moot, since the 

question the petitioners raise is ‘capable of repetition, yet evading review.’”); Dunn v. Blumstein, 

405 U.S. 330, 333 n.2 (1972) (adjudicating challenge to “three-month residency requirement” for 

voting, even though “appellee can now vote,” because “the problems to voters posed by the 

Tennessee residence requirements is “capable of repetition yet evading review”); Moore v. Ogilvie, 

394 U.S. 814, 816 (1969).

Numerous circuits have recognized that plaintiffs in cases pertaining to some aspect of the 

electoral process may continue to litigate a lawsuit that has become moot, even if they do not 

contend that they will be subject to the challenged provisions again. Perhaps the most striking 

example is Catholic Leadership Coalition of Tex. v. Reisman, No. 13-50582, 2014 U.S. App. 

LEXIS 15558, at *49 (5th Cir. Aug. 12, 2014), in which the plaintiffs challenged a state law 

imposing waiting periods on certain political committees that wished to make political 

contributions and expenditures. Despite the fact that the plaintiff’s waiting period had elapsed, 

and it would never again be subject to the waiting period, the Fifth Circuit reached the merits of

its claim. 

Following Supreme Court precedent, the Fifth Circuit “dispense[d] with the same party 

requirement” because Reisman, although pertaining to campaign finance, was deemed an “election 

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!"#$%&'&()*+),,-./)012)344%%%45*67$89%:(%%%;<=$>%&,?,.?&(%%%@"A$%&:%5B%&.%@"A$34C%./:
case[].” Id. at *29. The court “focus[ed] instead upon the great likelihood that the issue will recur 

between the defendant and the other members of the public at large.” Id. (quotation marks 

omitted). The court explained, “[I]n election law cases such as this one, where (1) the state plans 

on continuing to enforce the challenged provision, and (2) that provision will affect other members 

of the public, the exception [to the same-party requirement] is met.” Id. at *29-30; see also 

Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005). Stop PAC’s claim also arises from a 

waiting period in campaign finance law, and this Court should follow Reisman’s lead and 

recognize its continued justiciability. 

CONCLUSION

For these reasons, this Court should GRANT the Motion of Plaintiffs and PlaintiffIntervenor American Future PAC for Summary Judgment. 

Respectfully submitted, 

October 9, 2014 /s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

/s/ Dan Backer

Jerad Najvar Dan Backer, Esq. 

NAJVAR LAW FIRM Virginia State Bar # 78256

4151 Southwest Freeway, Suite 625 DB CAPITOL STRATEGIES PLLC

Houston, TX 77027 203 South Union Street, Suite 300

Phone: (281) 404-4696 Alexandria, VA 22314

E-mail: jerad@najvarlaw.com Phone: (202) 210-5431

Attorney for Putative Plaintiff-Intervenor Fax: (202) 478-0750

American Future PAC E-mail: DBacker@DBCapitolStrategies.com

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*Motion for pro hac vice admission Attorneys for Plaintiffs Stop PAC, Tea Party 

forthcoming upon joinder Leadership Fund, and ARCC

14

!"#$%&'&()*+),,-./)012)344%%%45*67$89%:(%%%;<=$>%&,?,.?&(%%%@"A$%&F%5B%&.%@"A$34C%./F
CERTIFICATE OF SERVICE

I, Dan Backer, hereby certify that on this 9th day of October 2014, I did cause a true and

complete copy of the foregoing Plaintiffs’ Rebuttal Memorandum in Support of Plaintiffs and

American Future PAC’s Motion for Summary Judgment to be filed via the court’s CM/ECF 

system, which effected service upon:

Kevin Deeley

Harry J. Summers

Holly J. Baker

Kevin P. Hancock

Esther D. Gyory

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

/s/ Dan Backer

Dan Backer

Virginia State Bar # 78256

Attorney for Plaintiffs

15

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