UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 

 v. ) 

 ) MOTION 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO ALTER OR AMEND THE JUDGMENT 

 Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, defendant Federal 

Election Commission (“Commission”) moves this Court to alter or amend its May 26, 2010 

Order Granting Plaintiffs’ Motion for Entry of Judgment [Doc. #78]. The Court granted 

plaintiffs’ motion two days before the Commission filed a timely partial opposition to that 

motion. The Court erred by issuing an incomplete judgment, one that did not include judgment 

in favor of the Commission regarding the provisions of the Federal Election Campaign Act, 

2 U.S.C. §§ 431-455 (“Act”), that the Court of Appeals upheld against plaintiffs’ as-applied 

challenge. The Commission therefore asks this Court to alter or amend its judgment consistent 

with the Commission’s Memorandum of Points and Authorities in Partial Opposition to 

Plaintiffs’ Motion for Entry of Judgment [Doc. #77] and its accompanying proposed order, 

wherein the Commission objected to plaintiffs’ requests for an injunction against the government 

and relief regarding unspecified regulations.

1 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 1 of 6
BACKGROUND 

Under 2 U.S.C. § 437h, a unique provision of the Federal Election Campaign Act, 

2 U.S.C. §§ 431-455 (“Act”), eligible voters and the national committees of political parties can 

bring suit to challenge the constitutionality of any provision of the Act and have certified 

questions answered in the first instance by a court of appeals sitting en banc. On February 14, 

2008, SpeechNow.org and several individual donors (“plaintiffs”) brought suit under section 

437h and moved for a preliminary injunction to prevent the Commission from enforcing the 

individual contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). On July 1, 2008, 

after a hearing, this Court denied the preliminary injunction motion [Doc. #32]. 

On July 11, 2008, the Court granted plaintiffs’ motion under 2 U.S.C. § 437h to certify 

constitutional questions for the Court of Appeals to consider en banc [Doc. #35]. On September 

28, 2009, the Court issued its findings of fact [Doc. #73] and, on October 7, 2009, sent these 

findings and five certified questions of law to the Court of Appeals. On October 26, 2009, the 

appellate court consolidated SpeechNow’s appeal of the denial of its motion for a preliminary 

injunction with the section 437h merits proceeding. 

The en banc Court of Appeals heard argument on the matter on January 27, 2010, and 

issued its opinion on March 26, 2010. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

Finding that the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), 

resolved the certified questions on appeal, the Court of Appeals held that the contribution limits 

in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to the plaintiffs. 

Nevertheless, the Court of Appeals also held in the Commission’s favor that application of the 

reporting requirements of 2 U.S.C. §§ 432, 433, and 434(a) and the organizational requirements 

2 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 2 of 6
of 2 U.S.C. §§ 431(4) and 431(8) to plaintiffs is constitutional.1

 The Court of Appeals vacated 

this Court’s denial of plaintiffs’ motion for preliminary injunction and remanded the case for 

further proceedings in accordance with its opinion.2 On April 16, 2010, plaintiffs moved in the 

Court of Appeals for immediate issuance of its mandate. The appellate court granted the motion 

on May 3, 2010, and issued its mandate to the Clerk of this Court that same day. 

Plaintiffs moved for entry of final judgment on May 14, 2010 [Doc. #76]. In accord with 

Local Civil Rule 7, the Commission’s opposition was due fourteen days later, on May 28, 2010. 

Two days prior to that deadline, on May 26, 2010, this Court signed the Order plaintiffs had 

proposed granting their Motion for Entry of Judgment. That order entered final judgment on 

behalf of plaintiffs and declared that the contribution limits set forth in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) – as well as any Commission regulations that implemented those provisions – 

could not be constitutionally applied against SpeechNow.org, the individual plaintiffs, and others 

who wish to contribute to SpeechNow.org. The Court also permanently enjoined the 

Commission from enforcing against plaintiffs the contribution limits in the Act and any 

implementing regulations. The Court did not, however, declare that the organizational, 

administrative, and reporting requirements set forth in 2 U.S.C. §§ 432, 433, 434(a), 431(4), and 

431(8) are constitutional as applied to plaintiffs. 

 

1

 The judgment of the Court of Appeals specified that “the contribution limits set forth 

in certified questions 1, 2, and 3 [2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3)] cannot be 

constitutionally applied against SpeechNow and the individual plaintiffs; and there is no 

constitutional infirmity in the application of the organizational, administrative, and reporting 

requirements set forth in certified questions 4 and 5 [2 U.S.C. §§ 432, 433, 434(a), 431(4), and 

431(8)].” 

2

 As explained in the Commission’s partial opposition (at 3 n.2), SpeechNow.org has 

remained pending before this Court as a non-section 437h plaintiff, and this Court should 

separately grant summary judgment to it before entering judgment for all plaintiffs in the 

required “separate document.” Fed. R. Civ. P. 58(a). 

3 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 3 of 6
On May 28, 2010, the deadline for oppositions to the plaintiffs’ Motion for Entry of 

Judgment, the Commission filed a Memorandum of Points and Authorities in Partial Opposition 

to Plaintiffs’ Motion for Entry of Judgment. In this partial opposition, the Commission urged the 

Court to deny plaintiffs’ motion to the extent it asked for injunctive relief or for relief 

specifically involving the Commission’s regulations. On June 1, 2010, the Commission received 

notice via the Court’s ECF system that Judge Robertson had granted Plaintiffs’ Motion for Entry 

of Final Judgment. See Garr Decl. (attached hereto). The electronic copy of the order received 

by the Commission through ECF showed that the Court had signed the order on May 26, 2010. 

The order was date-stamped as received by the Clerk’s office on May 27, 2010. The case docket 

indicates that the order was entered on June 1, 2010. 

As of the date of this filing, this case has yet to be reassigned under Local Civil Rule 

40.6(b), which provides, inter alia, for the reassignment of cases following a judge’s retirement. 

Pursuant to Local Civil Rule 7(m), the Commission has conferred with plaintiffs’ counsel who 

have indicated that they oppose this motion.

ARGUMENT 

Among the reasons that a Court can grant a Rule 59(e) motion to alter or amend a 

judgment is to correct “clear error.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004). The 

Court clearly erred by failing to enter judgment for the Commission on the provisions of the Act 

upheld by the Court of Appeals. The judgment of the Court of Appeals specified that “the 

contribution limits set forth in certified questions 1, 2, and 3 [2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3)] cannot be constitutionally applied against SpeechNow and the individual plaintiffs; 

and there is no constitutional infirmity in the application of the organizational, administrative, 

and reporting requirements set forth in certified questions 4 and 5 [2 U.S.C. §§ 432, 433, 434(a), 

4 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 4 of 6
431(4), and 431(8)].” (emphasis added). This Court’s judgment made no mention of these 

provisions. The proposed judgment that the Commission filed with its partial opposition [Doc. 

#77-1] correctly reflected all the relief ordered by the D.C. Circuit. Accordingly, the Court 

should amend its judgment to include a declaration that these statutory provisions are 

constitutional as applied to plaintiffs. 

The Court also erred by granting Plaintiffs’ Motion for Entry of Judgment before the 

Commission could be heard on the issues raised therein. “The opportunity to present reasons, 

either in person or in writing, why proposed action should not be taken is a fundamental due 

process requirement.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). This 

Court did not, however, provide the Commission an opportunity to do so. The Court granted 

Plaintiffs’ motion on May 26, 2010, two days before the Commission’s deadline to respond. 

Due process therefore requires the Court to consider the reasons given in the Commission’s 

partial opposition to plaintiffs’ motion (to which the Court is respectfully referred). Plaintiffs are 

not entitled to injunctive relief or to relief specifically involving the Commission’s regulations. 

CONCLUSION 

 For the foregoing reasons, the Commission respectfully asks this Court to alter or amend 

its judgment by including a declaration that the organizational, administrative, and reporting 

requirements provisions of the Act are constitutional as applied to plaintiffs, and to reflect that 

the plaintiffs are not entitled to injunctive relief or relief specifically involving the Commission’s 

regulations. 

 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov 

 

5 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 5 of 6
6 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

June 11, 2010 (202) 694-1650 

Case 1:08-cv-00248-JR Document 79 Filed 06/11/10 Page 6 of 6
UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

) 

SPEECHNOW.ORG, et aI.,	 ) 

) 

Plaintiffs, ) 

) Civ. No. 08-248 

v. ) 

) DECLARATION 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant.	 ) 

) 

DECLARATION OF SHELLEY E. GARR 

1. My name is ShelleyE. Garr. I am a resident of the State of Maryland and am 

over 18 years of age. I am the Special Assistant to the Associate General Counsel for Litigation 

at the Federal Election Commission. I make this declaration based on my personal knowledge. 

2. On June 1,2010, I received via email a Notice of Electronic Filing message from 

the Court's CM/ECF system (attached hereto) indicated that the Court had granted the plaintiffs' 

Motion for Entry of Final Judgment. The Notice specified that the Order was entered on June I, 

2010, and that Judge Robertson had signed it on May 27,2010. The Order indicated that Judge 

Robertson had signed it on May 26,2010, and it was then date-stamped May 27, 2010. 

3. The attached Notice of Electronic Filing was the first and only notification I 

received from the CM/ECF system indicating that the Court entered final judgment in this case. 

Case 1:08-cv-00248-JR Document 79-1 Filed 06/11/10 Page 1 of 4
Pursuant to 28 U.S.C. § 1746, I declare under penalty ofperjury that the foregoing is true 

and correct and that this declaration was executed in Washington, D.C. on the lff!!of June, 2010. 

~{~~ She1le~. Garr' 

Case 1:08-cv-00248-JR Document 79-1 Filed 06/11/10 Page 2 of 4
• 

DCD_ECFNotice@dcd.uscou To DCD_ECFNotice@dcd.uscourts.gov 

l15.gov cc
 

0610112010 02:36 PM
 

bcc
 

SUbject Activity in Case 1:OB-cv-0024B-JR SPEECHNOW.ORG et al 

v. FEDERAL ELECTION COMMISSION Order on Motion for 

Entry of Final Judgment 

This is an automatic e-mail message generated h~ Ihe C'VECF system. Please DO NOT 

RESPOND to this e-mail hecause the mail ho~ is unattended. 

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States 

policy permits attorneys of record and parties in a case (including pro se litigants) to 

receive one free electronic copy of all documents filed electronically, if receipt is required 

by law Or directed by the filer. PACER access fees apply to all other users. To avoid later 

charges, download a copy of each document during this first viewing. However, if the 

referenced document is a transcript, the free copy and 30 page limit do not apply. 

U.S. District Court 

District of Columbia 

Notice of Electronic Filing 

The following transaction was entered on 6/112010 at 2:36 PM and filed on 5/27/2010
 

SPEECHNOW.ORG et al v. FEDERAL ELECTION
 Case Name: COMMISSION
 

Case Number: I:08-cv-00248-JR
 

Filer:
 

Document
 

Number:
 

Docket Text: 

ORDER granting [76] Motion for Entry of Final Judgment. Signed by Judge James 

Robertson on 5/27/10. (cp, ) 

1:08-cv-00248-JR Notice has been electronically mailed to: 

Joseph Gerald Hebert JGHEBERT@COMCAST.NET, ghebert@campaignlegalcenter.org,
 

hebert@voterlaw.com
 

Steve Nicholas Hajjar shajjar@fec.gov, dkolker@fec.gov, sgarr@fec.gov 

Robert William Bonham, III rbonham@fec.gov, dkolker@fec.gov, hsummers@fec.gov,
 

kdeeley@fec.gov, litigation@fec.gov, sgarr@fec.gov, vgraham@fec.gov
 

Case 1:08-cv-00248-JR Document 79-1 Filed 06/11/10 Page 3 of 4
David Brett Kolker dkolker@fec.gov, sgarr@fec.gov, vgraham@fec.gov 

Kevin Deeley kdeeley@fec.gov, dkolker@fec.gov, sgarr@fec.gov, vgraham@fec.gov 

Steven Simpson ssimpson@ij.org, BSmith@law.capital.edu, bgall@ij.org, paralegal@ij.org, 

psherrnan@ij.org, rfrese@ij.org, rfrommer@ij.org, shoersting@campaignfreedom.org 

Graham Mead Wilson gwilson@fec.gov 

1:08-cv-00248-JR Notice will be delivered by other means to:: 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

Stephen M. Hoersting 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

The following document(s) are associated with this transaction: 

Document description:Main Document 

Original filename:suppressed 

Electronic document Stamp: 

[STAMP dcecfStamp_ID=973800458 [Date=6/1/201O] [FileNumber=2566029-0] 

[labOf56fOdl b170048b34706017387fd943d5eOb65038efbdOI 0f96el da57d65b642 

b 

33e3f096ed5448615f3cedd5e255e20 17fecc41d Id972b79ge5c2fac65e]:l 

Case 1:08-cv-00248-JR Document 79-1 Filed 06/11/10 Page 4 of 4