United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 1:15-cv-1241-CRC 

THREE-JUDGE COURT REQUESTED

Reply Memorandum Supporting

Application for Three-Judge Court

James Bopp, Jr., D.C. Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

mail@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 1 of 31
Table of Contents

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. This Action Meets BCRA § 403’s Criteria... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. BCRA § 403’s Rules Were Employed in Similar Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. This Action Presents Substantial, Non-Foreclosed Claims.. . . . . . . . . . . . . . . . . . . . . . . . 7

A. Any Criteria Beyond BCRA’s Two Criteria Must Be Narrow.. . . . . . . . . . . . . . . . . . . 7

B. Controlling Holdings Prove this Action Substantial and Non-Foreclosed.. . . . . . . . . . 7

1. McConnell Deemed the Ban a Contribution Restriction, But the Communications at Issue Are Like those Protected in the Independent-Expenditure

Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Contribution Precedents Prove this Action Substantial and Non-Foreclosed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Expenditure Precedents Proves this Action Substantial and Non-Foreclosed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. No McConnell or Other Case Language Forecloses this Action.. . . . . . . . . . . . . 13

5. Party-Committee Status Does Not Justify Different Treatment.. . . . . . . . . . . . . . 16

6. This Case Is Not Insubstantial/Foreclosed Due to Justiciability Issues.. . . . . . . . 16

C. Count I Presents Substantial, Non-Foreclosed Claims.. . . . . . . . . . . . . . . . . . . . . . . . 22

D. Count II Presents Substantial, Non-Foreclosed Claims.. . . . . . . . . . . . . . . . . . . . . . . 24

E. Count III Presents Substantial, Non-Foreclosed Claims... . . . . . . . . . . . . . . . . . . . . . 24

F. Count IV Presents Substantial, Non-Foreclosed Claims.. . . . . . . . . . . . . . . . . . . . . . 25

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

i

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 2 of 31
Table of Authorities

Cases

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11-13, 15

Citizens United v. FEC, 558 U.S. 310 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) (“Colorado-I”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Davis v. FEC, 554 U.S. 724 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL-II”). . . . . . . . . . . . . . . . 1, 5, 14, 21

Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).. . . . . . . . . . . 5

McConnell v. FEC, 540 U.S. 93 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

McCutcheon v. FEC, 134 S.Ct. 1434 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Republican National Committee v. FEC (No. 14-cv-853) (D.D.C.) (“RNC-II”).. . . . . . . . . . . . . . 4

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays-III”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Wisconsin Right to Life v. Barland, 751 F.3d 804 (7th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . 13

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL-I”). . . . . . . . . . . . . . . . . . . . 1, 2, 13

Constitutions, Statutes & Rules

52 U.S.C. § 30116(a)(1)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

BCRA § 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

Robert F. Bauer, Parties and the Rethinking of Reform, More Soft Money Hard Law, Sept.

17, 2015... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Brennan Center for Justice, Stronger Parties, Stronger Democracy: Rethinking Reform (2015)

(“Stronger Parties”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ii

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 3 of 31
Thomas B. Edsall, Can Anything Be Done About All the Money in Politics?, N.Y. Times,

Sept. 16, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEC, Campaign Guide for Political Party Committees (2013).. . . . . . . . . . . . . . . . . . . . . . . 19, 21

iii

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 4 of 31
Introduction

As explained in Plaintiffs’ Three-Judge Court Memo (Doc. 3) (“Memo”), this case is

straightforwardly substantial and non-foreclosed. While McConnell v. FEC, 540 U.S. 93 (2003),

facially upheld the challenged BCRA provisions, central to this case are as-applied challenges.

So this situation is like Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL-I”)—an asapplied challenge to a BCRA provision that McConnell facially upheld—wherein the unanimous

Supreme Court held that a facial holding does not foreclose an as-applied challenge despite some

language that FEC might so interpret. In FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

(“WRTL-II”), WRTL prevailed on the merits (under BCRA § 403).

A central focus of the present case is the desire of state and local committees of a political

party to make non-individualized, independent communications that are constitutionally like the

“independent expenditures ... [that] do not give rise to corruption or ... [its] appearance.” Citizens

United v. FEC, 558 U.S. 310, 357 (2010).1 Some communications will merely exhort registering

and voting. To fund those communications, Plaintiffs want to use state-regulated contributions

that they legally have, and routinely raise, from individuals. Alternatively they want to put such

funds into an independent-communications account (“ICA”) that will report under regulations

and guidance that FEC provides (as it did with non-contribution accounts (“NCAs”)). These

plans put this case squarely in the independent-expenditure case line. But even were this a

contribution-limit case, the analysis would be essentially the same because the Supreme “Court

has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or ... [its] appearance.” McCutcheon v. FEC, 134 S.Ct. 1434, 1438 (2014)

1

 Non-individualized, independent communications are constitutionally like independent expenditures (non-corrupting due to independence). (Memo at 10 n.15, 12-13, 22-23.) FEC does

not rebut this, merely insisting these communications are not in the independent-expenditure case

line because no unlimited contributions are involved. This error is refuted in Part III.B.1.

1

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 5 of 31
(controlling plurality opinion) (emphasis added). Both Citizens United and McCutcheon hold that

preventing this narrow quid-pro-quo corruption is the only cognizable anti-corruption interest—

not preventing “access,” “gratitude,” or any other theory of “corruption.” So FEC must prove the

challenged provisions tailored to such corruption as applied. It cannot, as a matter of law.

In its opposing memorandum (Doc. 15) (“Opposition”), FEC attempts to prove this action

insubstantial/foreclosed based on two key arguments. First, it erroneously says Plaintiffs really

challenge the $10,000 contribution limit (Opposition at 1,2 24-25) and an FEC regulation (Opposition at 29-31), thereby taking the case out of BCRA § 403’s scope.3

 Second, FEC erroneously

argues that by not challenging the $10,000 contribution limit, i.e., by “no longer seeking to raise

unlimited funds for their proposed independent-expenditure-only accounts,” “Plaintiffs have navigated away from the ‘confluence’ of precedents that led the Court to find their previous challenge substantial.” (Opposition at 31.)4

 Beyond these two foundational but flawed arguments,

FEC relies on certain opinion language instead of trying to prove this case insubstantial under the

required interest-tailoring analysis based on current precedents.5

 All FEC’s arguments about

estoppel, standing, and so on rest on these flawed foundations and will be addressed after the

foundations are shown to be flawed (though the flaws are self-evident). See infra at Part III.B.6.

The big picture here is that controlling holdings prove this action substantial and non-fore2

 “”[P]laintiffs’ new complaint avoids mentioning FECA’s $10,000 base annual limit ... to

avoid admitting the obvious—that they are again challenging this limit.” (Id. (emphasis added).)

3

 Of course Plaintiffs do not challenge the base limits or the regulation, so this foundation

crumbles as further explained below. See infra at 3-4.

4

 Note the conflict in FEC’s arguments that Plaintiffs do and do not challenge the $10,000

limit. First, FEC argues that Plaintiffs do challenge the $10,000 limit (taking this case outside

BCRA). Second, FEC says Plaintiffs do not challenge the limit (taking this case outside the

independent-expenditure case line). This second foundation also crumbles because this case is

squarely within that independent-expenditure case line. See infra at 10-12.

5

 Reliance on language from some opinion, as in WRTL-I, see supra at 1, instead of constitutional analysis is erroneous. (Memo at 14-17.)

2

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closed (Memo at 9-27), which holdings FEC makes little effort to rebut. Under the required

interest-tailoring analysis, Citizens United and McCutcheon by themselves prove this action substantial and non-foreclosed. Those cases profoundly changed First Amendment jurisprudence in

political expenditure and contribution contexts. The risk of cognizable corruption (and its appearance) now “arises when an individual makes large contributions to the candidate or officeholder

himself.” McCutcheon, 134 S.Ct. at 1460. No contributions to candidates or officeholders are

involved here, so no anti-corruption interest arises. And the non-individualized, independent

communications central to this case are constitutionally like non-corrupting independent expenditures. So FEC has not proved this action obviously frivolous or clearly foreclosed beyond debate, as required. (Memo at 5.) Thus, BCRA § 403’s special rules apply to this case, which is the

next logical step in the WRTL–Citizens United–McCutcheon line of cases defending those engaged in core First Amendment speech and association from unconstitutional BCRA provisions.

I. This Action Meets BCRA § 403’s Criteria.

Plaintiffs proved this action meets BCRA § 403’s criteria: (i) a constitutional challenge (ii) to

a BCRA provision. (Memo at 2.) FEC does not contest that the challenges are constitutional or

that provisions actually challenged in the Complaint are BCRA provisions. But FEC, in the first

of its two key arguments, insists that Plaintiffs really challenge (1) the $10,000 base limit (see

supra at note 2 (quoting Opposition)) and (2) FEC’s regulatory voter-registration-activity (“VR”)

and get-out-the-vote-activity (“GOTV”) definitions (Opposition at 29-31), though the Complaint

does not. FEC’s arguments are designed to defeat BCRA § 403 jurisdiction, but FEC errs.6

(1) The $10,000 contribution limit, 52 U.S.C. § 30116(a)(1)(D), is absent from challenged

6

 FEC’s arguments regarding estoppel, standing, redressability, injury, and causation are rebutted at Part III.B.6. For present, note that those arguments rely primarily on the erroneous notion that Plaintiffs really challenge the $10,000 limit, so the following refocusing on what Plaintiffs actually challenge answers those FEC arguments. See Part III.B.6.

3

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provisions in the Complaint. (Compl. at 50-51.) Plaintiffs did challenge that base limit in the case

they voluntarily dismissed (without prejudice), Republican National Committee v. FEC (No. 14-

cv-853) (“RNC-II”). (See RNC-II Doc. 1 at 18.)7 But in this case, Plaintiffs (as masters of their

complaint) chose not to challenge the base limit. So they cannot seek the relief here of receiving

unlimited contributions into a federal non-contribution account (an “NCA”). Plaintiffs do challenge BCRA’s Ban on using nonfederal funds (the state-regulated funds state and local committees have and routinely raise) for federal election activity (“FEA”) as applied to certain communications and contexts (and facially).

8

 So by not challenging the base limit, Plaintiffs seek lesser

relief than they did in RNC-II but thereby qualify for BCRA § 403’s rules, which they hope will

get them the valuable relief they do seek in time to be of use in 2016. (See Motion to Expedite

and Memo, Docs. 9 and 9-1.) Thus, Plaintiffs do not challenge the base limit, and the requested

relief will redress their injury of not being able to use nonfederal funds for FEA as sought.9

(2) FEC argues that Count I really challenges FEC’s VR and GOTV definitions. (Opposition

at 2, 29-31.) FEC errs for at least four reasons. First, the Complaint does not challenge those regulations. (Compl. at 50-51.) Second, as FEC’s counsel admit (Opposition at 31), FEC was forced

7

 In RNC-II, this Court decided that a challenge to the base contribution limits (increased by

BCRA) was a challenge to FECA and certified en-banc questions for qualified plaintiffs. (RNC-II

Doc. 20 at 11-12.) For those not statutorily qualified, “the Court ... stay[ed] the claims of those

parties pending the decision of the circuit on the certified questions.” (RNC-II Doc. 26 at 2.)

8

 Plaintiffs believe that, if they receive that requested relief, FEC will reimpose the preBCRA allocation rules on their activity, so that they will have to pay for FEA with both federal

and nonfederal funds under FEC allocation formulas. FEC’s counsel argue that FEC might not

reimpose allocation formulas on FEA, but that is up to FEC’s commissioners and is not at issue

in this case. This is not a “legislative request” (Opposition at 3), only a prediction of FEC action.

If FEC does not reassert its pre-BCRA rules (which were wholly the FEC’s creation), a holding

that the Ban is unconstitutional as applied (or facially) would permit FEA to be funded with all

nonfederal funds. But the representation that FEC might not reassert its pre-BCRA allocation

rules seems unlikely. Anyway, it has nothing to do with whether the Ban is constitutional.

9

 Plaintiffs make a First Amendment claim, not a “federalism” one. (Opposition at 37 n.11.)

4

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 8 of 31
by Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays-III”), to include merely encouraging

registering/voting and Internet communications in those definitions because Shays-III held that

BCRA, the statute, required such definitions. So the challenge is properly to the statute.10 Third,

any successful challenge to a statute automatically undercuts any contrary regulation, so it is unnecessary to challenge a regulation where the statute may be attacked on constitutional grounds.

Fourth, FEC does not advise the Court of its experience in WRTL-II and Citizens United, which

bears directly on FEC’s argument. In WRTL-II, the Supreme Court held BCRA’s ban on electioneering communications unconstitutional as applied to electioneering communications that were

really issue advocacy under WRTL-II’s appeal-to-vote test. 551 U.S. at 469-70. As Citizens

United describes it, FEC’s reaction to WRTL-II’s objective appeal-to-vote test was to create “a

two-part, 11-factor balancing test to implement” it. 558 U.S. at 335. The Court responded:

This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards

“must eschew ‘the open-ended rough-and-tumble of factors,’ which ‘invit[es] complex

argument in a trial court and a virtually inevitable appeal.’” 551 U.S., at 469 (opinion of

ROBERTS, C.J.) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513

U.S. 527, 547 (1995); alteration in original). Yet, the FEC has created a regime that allows

it to select what political speech is safe for public consumption by applying ambiguous tests. 

Id. at 336. That flawed regulatory definition died (though not directly challenged) because the

Supreme Court held the underlying ban on corporate electioneering communications unconstitutional. Id. at 365-66. The same happens to implementing regulations whenever their foundational

statute is held unconstitutional. Plaintiffs here neither challenge the regulations nor need to.

II. BCRA § 403’s Rules Were Employed in Similar Cases.

Plaintiffs established that BCRA § 403’s rules were employed in McConnell, 540 U.S. 93,

10

 Plaintiffs explained the history of FEC’s own resistance to including such mere exhortation, including by Internet, to show that FEC itself believed such definitions overbroad. Nowhere

do Plaintiffs challenge the regulations as “unduly ‘broad,’” as FEC implies. (Opposition at 30.)

At the place FEC cites, Plaintiffs merely said: “That 2008 holding [Shays-III], rejecting FEC’s

individualized-assistance approach, led to the broad definitions ....” (Compl. ¶ 53.) 

5

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and McCutcheon, 134 S.Ct. 1434, with the same or similar BCRA provisions. (Memo at 3-4.)

In response—in a discussion of redressability (Opposition at 21)—FEC ignores Plaintiffs’

focus on the BCRA provisions involved (conceding that those are BCRA provisions) and tries

instead to distinguish McConnell and McCutcheon. (Opposition at 25.) While BCRA procedures

were proper in McConnell and McCutcheon, FEC argues, the present case does not qualify because Plaintiffs “seek[] to avoid FECA’s contribution limits due to the claimed ‘independence’

of the plaintiffs’ concededly federal activities.” (Id.) FEC errs for at least three reasons.

First, Plaintiffs do not concede that their planned activities are “federal”—in fact, Plaintiffs

cited FEC itself for the proposition that the overbroad VR and GOTV definitions eventually promulgated “‘would ... federalize a vast percentage of ordinary campaign activity.’” (Memo at 30

(citation omitted).) Second, Plaintiffs do not challenge the $10,000 base contribution limit. See

supra at 3-4. So FEC’s invocation of this Court’s rejection of a three-judge court in RNC-II—

which this Court did based on an actual challenge to the base contribution limits—is built on

FEC’s flawed key argument that Plaintiffs challenge what they do not challenge. (Opposition at

25.)11 Third, FEC’s next statement confuses constitutional analysis. FEC asserts that “plaintiffs’

claim similarly [to the challenge to the FECA contribution limit in RNC-II] does not ultimately

hinge on any alterations made by BCRA, but by the purported ‘absence of prearrangement and

coordination’ (citation omitted)]—the independence justification upon which Buckley invalidated

FECA’s expenditure limits.” (Id. (citing Buckley v. Valeo, 424 U.S. 1 (1976)) (emphasis in original).) That purported constitutional analysis is badly confused. The proper analysis is as follows.

Plaintiffs do challenge BCRA provisions on the First Amendment ground that no anti-corruption

11

 This flawed argument (that Plaintiffs challenge the $10,000 base limit) so permeates FEC’s

opposition that time and space do not permit Plaintiffs to systematically catalog all occurrences.

But since all Opposition arguments build on this foundation, its flaw dooms all built on it.

6

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 10 of 31
interest justifies them as applied, inter alia, to non-individualized, independent communications

(including from an ICA) that are constitutionally like independent expenditures that are non-corrupting due to their independence. That is straightforward constitutional analysis. FEC’s confused argument does not alter the qualification of this case for BCRA § 403’s rules. And FEC’s

preceding arguments do not show that this Court cannot redress Plaintiffs harms as FEC claims

(Opposition at 27.) Redressability is further addressed below. See Part III.B.6.

III. This Action Presents Substantial, Non-Foreclosed Claims.

This action presents substantial, non-foreclosed claims. (Memo at 4-39.)

A. Any Criteria Beyond BCRA’s Two Criteria Must Be Narrow.

Plaintiffs showed that any criteria beyond BCRA § 403(a)’s two stated criteria must be narrow for several reasons. (Memo at 4-9.) Particularly, the test stated in Feinberg v. FDIC, 522

F.2d 1335 (D.C. Cir. 1975), is narrow, requiring FEC to prove this action obviously frivolous or

clearly foreclosed beyond debate. (Memo at 5.) FEC does not rebut Feinberg’s requirements,

(Opposition at 19-20), so that is the issue regarding each count.

B. Controlling Holdings Prove this Action Substantial and Non-Foreclosed.

Plaintiffs established that contribution and expenditure precedents prove this a substantial,

non-foreclosed action. (Memo at 9-27.) As they explained (and will do so further in merits briefing), the Supreme Court has wrought a profound change in First Amendment jurisprudence after

McConnell in the recent decisions in Citizens United (independent-expenditure context) and

McCutcheon (contribution-to-political-party context). This profound change in constitutional

analysis includes (i) reaffirmation of the vital role of political participation in our republic and

the need to protect political speech and association, including the doctrine that all ties in judicial

scrutiny go to free speech and association; (ii) narrowing of the anti-corruption interest to pre7

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 11 of 31
venting only quid-pro-quo corruption (and thus not anything else); (iii) reinvigorated scrutiny,

including for closely drawn scrutiny; (iv) rejection of mere speculation by Government to meet

its burden of proof in First Amendment cases; (v) reaffirmation that the First Amendment trumps

deference to Congress; and (vi) the holding that independent communications pose no risk of

quid-pro-quo corruption or its appearance, as a matter of law. (Memo at 9-17.) Gone are McConnell’s broad “corruption,” deference to Congress, willingness to accept speculation in place of

evidence, and so on that led to the facial upholding of the Ban. The Supreme Court’s profound

jurisprudential change goes to the core of this case, which like Citizens United involves non-corrupting independent communications and like McCutcheon involves non-corrupting contributions to committees of political parties.

And a prominent campaign-finance-reform group has just called for rethinking campaign-finance regulation to empower political parties in view of their vital role and declining power. See

Brennan Center for Justice, Stronger Parties, Stronger Democracy: Rethinking Reform (2015)

(“Stronger Parties”).12 The Brennan Center expressly calls for “reform ... to relax some of

BCRA’s federalization of state and local parties.” Id. at 15. And it recommends higher contribution limits “for specific party activities that enhance grassroots participation, such as voter registration and GOTV.” Id. at 16. On the same day Stronger Parties was released, a prominent op-ed

called for fixing the “steady erosion of the power of political parties, as opposed to that of independent expenditure committees,” and advocated “changing the law to put political parties on the

same plane as super PACs and other independent groups.” Thomas B. Edsall, Can Anything Be

Done About All the Money in Politics?, N.Y. Times, Sept. 16, 2015.13 Former (Obama) White

12

See https://www.brennancenter.org/publication/stronger-parties-stronger-democracyrethinking-reforming#.Vfshsx74b-s.twitter (available as PDF download).

13

See http://www.nytimes.com/2015/09/16/opinion/can-anything-be-done-about-all-the8

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 12 of 31
House Counsel Bob Bauer took note of both publications and added that “the reevaluation is necessary and there has been significant movement in that direction, now blessed by a leading reform organization and one of the press’ more informed and experienced commentators on campaign finance.” Robert F. Bauer, Parties and the Rethinking of Reform, More Soft Money Hard

Law, Sept. 17, 2015.14

 These calls to help political parties, especially state and local committees,

echo the calls for help by these committees at FEC’s own 2014 public forum. (Compl. ¶¶ 69-73.)

So even campaign-finance reformers see little corruption risk in empowering state and local committees to do VR and GOTV without BCRA burdens, as discussed further in Part.III.C.

But FEC ignores the vital interests of state and local parties and the needs of our democratic

system. And it largely ignores the Supreme Court’s sea change on political-speech jurisprudence

that allows this Court to help those parties in this case. Instead of addressing that sea change,

FEC belittles Plaintiffs’ careful explanation of the Supreme Court’ profound change as “lengthy

and erroneous interpretive contortions.” (Opposition at 3.) And where FEC does touch on the

sea-change subject, primarily in a footnote, it mostly ignores the profound changes described

above (e.g., what is now cognizable corruption) and instead resorts to argument by such language

as “bizarrely assert,” “sophistic twist,” “deconstructs,” and “fictional holdings.” (Opposition at

35 & n.10.) Such argument-by-pejorative does not carry FEC’s burden of proving that the Supreme Court has not profoundly altered First Amendment jurisprudence since McConnell. FEC’s

limited specific argument is addressed in the following discussion of controlling precedents.

For present, note that (i) the challenged provisions have caused serious unintended consequences,15

 as the campaign-finance-reform community recognizes; (ii) the reform community

money-in-politics.html.

14

See http://www.moresoftmoneyhardlaw.com/2015/09/parties-rethinking-reform/?.

15

 This heightens scrutiny: “the strength of the governmental interest must reflect the serious9

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 13 of 31
(which promoted BCRA and helped defend it in past cases) no longer sees any sufficient corruption risk to prevent more money for the traditional activities of state and local parties, especially

for VR and GOTV; (iii) the profound change in First Amendment jurisprudence makes relief for

such parties constitutionally proper in this case; and (iv) FEC’s extensive efforts to show this

case insubstantial in such a context are misguided.

1. McConnell Deemed the Ban a Contribution Restriction, But the Communications at

Issue Are Like those Protected in the Independent-Expenditure Cases.

As Plaintiffs established, McConnell treated the nonfederal-funds Ban as a contribution restriction, but McCutcheon treated restrictions on contributions to a political party as a restriction

on “speech” (Memo at 9 (citation omitted)) without deciding whether to apply strict or closely

drawn scrutiny because, under either, a “fit” with a narrow anti-corruption interest was required

but lacking. (Memo at 10.) That is true here. Whether considered contribution or expenditure

restrictions, the challenged provisions fail because there is no fit between them and preventing

narrow quid-pro-quo corruption (or its appearance), especially as applied to independent communications, including those funded through an ICA. (Id. at 10-14, 22-23, 34-35.) Plaintiffs also

explained that, because the challenged provisions restrict independent communications that are

constitutionally like non-corrupting independent expenditures, this case is part of the independent-expenditure line of cases. (Id.)

FEC responds with its second key argument—attempting to show that such independent communications and ICA are not within the independent-expenditure case line because Plaintiffs do

not challenge the $10,000 contribution limit. “By no longer seeking to raise unlimited funds for

their proposed independent-expenditure-only accounts,” “Plaintiffs have navigated away from

the ‘confluence’ of precedents that led the Court to find their previous challenge substantial.”

ness of the actual burden on First Amendment rights.” Davis v. FEC, 554 U.S. 724, 744 (2008).

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(Opposition at 31.) FEC pronounces this “too clever by half.” (Opposition at 31.)

FEC is wrong. The independent-expenditure case line turns on the independence of communications. The line began with Buckley, 424 U.S. 1, which held that “independent advocacy,” id. at

46, poses no corruption (or its appearance) due to independence, id. at 47:

Unlike contributions, such independent expenditures maywell provide little assistance to the

candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines

the value of the expenditure to the candidate, but also alleviates the danger that expenditures

will be given as a quid pro quo for improper commitments from the candidate. Rather than

preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all

independent advocacy despite its substantially diminished potential for abuse.

Buckley’s holding had nothing to do with raising unlimited funds for an independent-expenditure-only account, so FEC must insist that Buckley is not in the independent-expenditure case

line. Likewise, Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996)

(“Colorado-I”), and Citizens United, 558 U.S. 310, reiterated Buckley’s holding that independent

communications pose no corruption risk due to their independence and therefore held that independent advocacy, by political-parties and corporations, poses no corruption risk. But Colorado-I

and Citizens United had nothing to do with unlimited funds for an independent-expenditure account so, per FEC’s argument, neither is in Buckley’s independent-advocacy case line. Of course,

those three cases are the independent-advocacy case line with which lower courts must comply

when considering whether independent advocacy poses a corruption risk. The sole constitutional

basis of Buckley’s independent-advocacy case line is that independence removes any cognizable

risk of corruption (or its appearance). Plaintiffs’ non-individualized, independent communications (including from an ICA) likewise pose no risk of corruption because of their independence.

So this case is squarely in Buckley’s independent-advocacy case line and squarely presents the

confluence between that line of cases and McConnell’s theories of “corruption” that have been

11

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expressly rejected in the McCutcheon context of contributions to political parties. If contributions

to political committees (PACs) to be used for independent expenditures pose no quid-pro-quocorruption—because of the communications’ independence—contributions to state and local

committees that are used for independent communications likewise pose no corruption.

2. Contribution Precedents Prove this Action Substantial and Non-Foreclosed.

Plaintiffs noted that in the contribution-restriction context McCutcheon controls and provides

controlling holdings. (Memo at 10-12.) FEC needed to show that McCutcheon did not say what

Plaintiffs quoted from the case’s constitutional analysis. FEC did not, could not. Rather FEC

sought to dismiss the controlling holdings as “strain[ing] credulity.” (Opposition at 35 n.10.)

FEC tried to support this solely by asserting that Plaintiffs claim “that McCutcheon altered the

‘closely drawn” standard of scrutiny that has applied since Buckley.” (Id. (emphasis added).)

But what Plaintiffs actually said was that “McCutcheon stated a strong ‘closely drawn’ test,”

followed by direct quotes from McCutcheon about what the test requires. (Memo at 10 n.16 (quotation marks omitted) (emphasis in original).) And the strength of the test is evident from McCutcheon’s language and choice of quotes to describe it, such as this: “if a law that restricts political speech does not ‘avoid unnecessary abridgement’ of First Amendment rights, Buckley, 424

U.S., at 25, it cannot survive ‘rigorous’ review[, id. at 29].” McCutcheon, 134 S.Ct. at 1446. And

McCutcheon emphasized that the test requires “‘means narrowly tailored to achieve the desired

objective.’” Id. at 1456 (citations omitted). The strength of this statement of the test—equating

contributions and speech and requiring rigorous review and narrow tailoring—is readily apparent by comparing it with FEC’s own statement of the test in McCutcheon briefing: “the government [must] ‘demonstrate[] a sufficiently important interest and employ means closely drawn to

avoid the unnecessary abridgement of association freedoms.’” Brief for the Appellee at 18, Mc12

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Cutcheon, 134 S.Ct. 1434 (No. 12-536). FEC made no mention of rigorous review or narrow

tailoring, and it did not equate contributions with speech. McConnell faulted Justice Kennedy for

wanting a more rigorous test: “Justice Kennedy has long disagreed with the basic holding of

Buckley and its progeny that less rigorous scrutiny—which shows a measure of deference to Congress in an area where it enjoys particular expertise—applies to assess limits on campaign contributions.” 540 U.S. at 185 n.72. But Justice Kennedy’s view has prevailed and McCutcheon holds

that the required closely-drawn scrutiny is more, not less, rigorous.16 So McCutcheon did state a

strong version of closely-drawn scrutiny, and its holdings control here, going to the core of the

required constitutional analysis and compelling the relief Plaintiffs seek.

3. Expenditure Precedents Proves this Action Substantial and Non-Foreclosed.

Plaintiffs provided five matter-of-law holdings from Buckley’s “independent communication”

line of cases that control this case because Plaintiffs’ non-individualized, independent communications are non-corrupting. (Memo at 12-13.) FEC’s response is to try to claim that Plaintiffs

have taken this case outside of that case line. This argument has already been refuted. See supra

at 10-12. So this case is controlled by those matter-of-law holdings, which compel the result

Plaintiffs seek. Again, FEC refuses to join issue on the controlling analysis.

4. No McConnell or Other Case Language Forecloses this Action.

Plaintiffs explained that mere language from McConnell or other case opinions cannot substitute for the required interest-tailoring constitutional analysis (under current holdings on what

constitutes corruption) that would be necessary in an attempt to prove this case foreclosed. (Memo at 14-17.) The Memo cited the example of FEC’s reliance on mere language from McConnell

instead of constitutional analysis in WRTL-I, see supra at 1, and how the unanimous Supreme

16 Cf. Wisconsin Right to Life v. Barland, 751 F.3d 804, 840-42 (7th Cir. 2014) (relying on

McCutcheon for a strong version of exacting scrutiny).

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Court held that the mere language to which FEC pointed did not foreclose an as-applied challenge. In WRTL-II plaintiffs won based on the required interest-tailoring analysis. See id. And the

Memo pointed to some specific language from McConnell on which FEC might rely (Memo at

14)—in lieu of the required interest-tailoring analysis based on what is now cognizable corruption. Plaintiffs explained how this McConnell language was based on a broad view of “corruption” that was expressly rejected in Citizens United and again in McCutcheon, in the directly applicable context of a BCRA restriction on contributions to a political party. (Memo at 14-17.)

FEC responds (Opposition at 35 n.10) that

Plaintiffs bizarrely assert that the FEC should not be able to rely on “some prior language”

from cases like McConnell [citation omitted] or others such as SpeechNow.org v. FEC, 599

F.3d 686, 696 (D.C. Cir. 2010) (en banc)[,] that “distinguished [independent-expenditureonly] PACs from party-committees” [citation omitted], as if those decisionsshould be treated

differently from “language” in court decisions generally.

Review of Plaintiffs’ actual argument shows nothing “bizarre.” FEC simply refuses to join issue

on the required interest-tailoring analysis under now-cognizable corruption. Without rebutting the

fact that Citizens United and McCutcheon rejected the “corruption” on which the McConnell

quotes were grounded, FEC continues to recite them. (See, e.g., Opposition at 32.)

FEC says McConnell “found that ‘large soft-money contributions to national parties are likely

to create actual or apparent indebtedness on the part of federal officeholders, regardless of how

those funds are ultimately used.’” (Opposition at 32 (citation omitted).) That is one of the quotes

Plaintiffs recited, along with McConnell’s “close relationship” theory of corruption, as being

founded on the old, now-rejected “corruption.” (Memo at 14.) Plaintiffs showed that such theories are not based on the now-controlling narrow quid-pro-quo (akin-to-bribery) definition of corruption, which necessarily excludes other theories of corruption such as any mere “indebtedness”

or close-relationship theories of “corruption.” (Memo at 15-17.) FEC responds by saying that

14

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Buckley rejected an overbreadth challenge based on bribery laws (Opposition at 39), but of

course being akin to bribery (showing how narrow cognizable corruption now is) differs from

actual bribery at issue in Buckley. And FEC’s argument does not solve its failure to acknowledge

the nature of the only “corruption” now cognizable. Crucially, FEC does not juxtapose McConnell’s statement about large contributions with McCutcheon’s statement about large contributions

or show how the latter does not supersede the former. Consider McCutcheon’s comparable statement in the BCRA contribution-restriction context: “Spending large amounts of money [i.e., contributing to committees of political parties] in connection with elections, but not in connection

with an effort to control the exercise of an officeholder’s official duties does not give rise to such

quid pro quo corruption.” Coupled with McCutcheon’s statement that such corruption “arises

when an individual makes large contributions to the candidate or officeholder himself,” 134 S.Ct.

at 1460, McCutcheon holds that now-cognizable corruption (for restricting campaign finances)

requires (i) a large contribution, (ii) to a candidate/officeholder, (iii) for a quid-pro-quo purpose

akin to bribery.

17

 That conflict between McConnell and McCutcheon at a minimum makes this

case substantial and non-foreclosed. (See also Memo at 16 n.18 (explaining why RNC-I does not

foreclose this case due to its reliance on close-relationship corruption, which is superseded by

McCutcheon.) FEC avoided this required constitutional analysis, relying instead on language.

This Court, in RNC-II, expressly noted FEC’s reliance on McConnell’s “regardless of how

17

 As a result of this now-controlling narrow definition of quid-pro-quo corruption, FEC is

wrong in its one attempt to show some “corruption” in the BCRA context. (Opposition at 35

n.10.) Though Justices Breyer, Ginsburg, Sotamayor, and Kagan were in dissent, they were correct that the McConnell defendants “‘identified not a single discrete instance of quid pro quo corruption attributable to the donation of non-federal funds to the national party committees.’” McCutcheon, 134 S.Ct. at 1469-70 (citation omitted). McConnell’s findings of “corruption” do not

square with McCutcheon’s requirements, inter alia, that there be a contribution to a candidate/officeholder as a result of a quid-pro-quo agreement. Crucially, no cited evidence of “corruption” resulted from the sort of independent communications at issue here.

15

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those funds are ultimately used” language (RNC-II Doc. 20 at 9), but held that such language did

not foreclose a challenge (id. at 10) because of the “confluence of two currents of First Amendment jurisprudence” (id. at 5) and because the Supreme Court had not ruled on “the specific factual and legal arguments” at issue (id. at 10). Here McConnell language does not foreclose this

case because the Supreme Court has not considered the precise factual and legal arguments at

issue that involve a confluence of McConnell with both the independent-advocacy case line and

McCutcheon’s holdings in the context of contributions to political parties.

5. Party-Committee Status Does Not Justify Different Treatment.

Plaintiffs explained that party-committee status does not justify different treatment, despite

language that might be so read in certain opinions, such as SpeechNow. (Memo at 17-27.)

FEC mentions SpeechNow, see supra at 14, but fails to address Plaintiffs’ extended demonstration that SpeechNow does not control here, including because its distinction of party-committees was dicta. Dicta “language” is definitely treated differently than holdings. SpeechNow’s nondicta analysis of the logical implications of the independent-advocacy case line supports Plaintiffs’ arguments as do the holdings in relevant portions of McConnell and in Colorado-I. (Memo

at 17-27.) Moreover, in FEC’s fleeting references to cases that Plaintiffs addressed, it again fails

to join issue on the fact that McCutcheon is the latest word on constitutional analysis regarding

BCRA in the context of contributions to political parties. So having failed to show how the present challenge is not supported by McCutcheon, FEC should not be heard to claim this case is

insubstantial/foreclosed by some glancing reference to some case that does not now control.

6. This Case Is Not Insubstantial/Foreclosed Due to Justiciability Issues.

Rather than joining issue on the required interest-tailoring analysis under now-controlling

holdings on the narrow nature of cognizable corruption, FEC relies primarily on various

16

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justiciability arguments. FEC’s approach seems an acknowledgment that it loses under the

interest-tailoring analysis. But FEC’s various justiciability arguments are self-evidently erroneous

given the foregoing refutation of FEC’s flawed arguments that (i) Plaintiffs really challenge the

$10,000 base limit (they do not), (ii) Plaintiffs really challenge FEC regulations (they do not),

and (iii) some opinion language from McConnell or other cases controls in place of the required

interest-tailoring analysis (it does not). With these foundations gone, FEC’s arguments collapse.

Some specific examples illustrate this. First, FEC claims Plaintiffs “are collaterally estopped

from relitigating whether a BCRA three-judge court possess the power to invalidate FECA’s

$10,000 limit on individual contributions to state and local committees.” (Opposition at 21.)

This rests on FEC’s error that Plaintiffs challenge FECA’s $10,000 limit, which they chose

not to do here. See supra at 3-4. Since RNC-II plaintiffs challenged base limits, this Court held

that doing so took them outside of BCRA § 403 and so certified questions involving base-limit

challenges. (See RNC-II Doc. 26 at 1-2.)18 And for plaintiffs not qualifying for the certification

procedure (id. at 2), “the Court ... stay[ed] the claims of those parties pending the decision of the

circuit on the certified questions.” (RNC-II Doc. 26 at 2.) By certifying questions for eligible

plaintiffs and staying the present Plaintiffs’ claims, this Court did not decide that the present constitutional challenges to BCRA provisions are somehow foreclosed from BCRA § 403. A decision to stay is not a decision on anything else. It just puts things on hold. And in RNC-II, LAGOP

18

 This Court certified two questions relevant here (Nos. 1 & 3). The first challenged base

limits and BCRA provisions as applied to “political-party committees ... establishing accounts

that accept contributions in excess of FECA contribution limits to fund ‘independent expenditures’ ....” (RNC-II Doc. 26 at 2.) The second challenged the $10,000 limit on contributions to

state committees and BCRA provisions “as applied to independent federal election activity ....”

(id.). The Plaintiff who had standing to raise the BCRA provisions governing FEA, was Roger

Villere, Jr., LAGOP’s Chairman, who wanted to solicit the funds that LAGOP sought to receive

without the base limit and BCRA’s FEA provisions. Both certified questions have corollaries in

the present case—though without any base-limit challenge—meaning that both are substantial/

non-foreclosed (since they had to be in order to be certified).

17

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Chairman Villere had standing to raise the constitutional challenge to both the $10,000 base contribution limit and the BCRA provisions “as applied to independent federal election activity” that

was the subject of certified question 2 (RNC-II Doc. 26 at 2), so a resolution of his challenge

would have guided resolution of the state and local committees’ claims. None of that estops a

three-judge court here, where only BCRA provisions are challenged.

Second, FEC argues that Plaintiffs “remain unable to satisfy the requirement of redressability” because three-judge courts “lack[] the power to invalidate FECA’s base limit.” (Opposition

at 24.) FEC admits that Plaintiffs “reframe[] their challenge” to not challenge the base limit (id.),

which refutes FEC’s own argument. Nonetheless, FEC argues that this non-challenge to the base

limit “only underscores plaintiffs’ redressability problem, especially in light of their express concession that state contribution limits still apply,” says FEC. (Id.) “Plaintiffs fail to explain why ...

their proposed activities would remain subject to general state and federal contribution restrictions, including state laws limits on the amount of those contributions,” FEC continues, “but not

the federal limits on the amount of those contributions.” (Id.)

This argument seems based on FEC’s erroneous belief that Plaintiffs here seek the remedy of

unlimited contributions for making non-individualized, independent communications. That is not

this case, which challenges the Ban.19

 The Ban only prohibits state and local committees from

using nonfederal funds (which they lawfully have20 and routinely raise) for federal election activity. 52 U.S.C. 30125(b)(1). So if the Ban is held unconstitutional, Plaintiffs will be able to use

19

 For present purposes, Plaintiffs focus on the Ban (Compl. ¶¶ 32-33) in particular. Of course

they also challenge the Fundraising Requirement (Compl. ¶ 34) and the Reporting Requirement

(Compl. ¶ 35), but if the Ban is unconstitutional, so are the other provisions that are interrelated

and also rely on a now-rejected theory of “corruption.” (See Memo at 29; Opposition at 41 n.12.)

See infra at 23 (further discussion to same effect).

20

 So there is no merit to FEC’s argument that Plaintiffs have not pleaded that someone wants

to give them nonfederal funds. (Opposition at 27.) State and local committees have such funds.

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their nonfederal funds for federal election activity. That is all there is to it. Their nonfederal funds

remain subject to state contribution limits because, as FEC says in describing nonfederal funds,

“[t]hese funds are subject to state law ....” FEC, Campaign Guide for Political Party Committees

at 2 (2013).21

 If Louisiana had no contribution limits, there would be none. It does, so there are.

And Plaintiffs have now explained why their nonfederal funds remain subject to state contribution limits and that they don’t challenge the $10,000 base limit, so FEC is simply wrong to argue

that this “case is in essence a challenge to the federal contribution limits.” (Opposition at 24.)

FEC’s next effort to prove non-redressability responds to Plaintiffs’ assertion that this case is

like prior BCRA cases. (Opposition at 25.) Plaintiffs refuted that argument above, addressing

FEC’s confused constitutional analysis. See supra at 5-7.

FEC next claims that LAGOP could not receive nonfederal funds into its nonfederal account

at the Louisiana contribution limit because it is a federal political committee and federal law prohibits anyone from contributing over $10,000 to a federal political committee. (Opposition at 26.)

Preliminarily, note FEC’s continued erroneous reliance on its flawed notion that Plaintiffs challenge the $10,000 base limit. Beyond that, as FEC knows, state committees (unlike national committees) may have both federal accounts (which register, act, and report as federal political committees) that contain federal funds and nonfederal accounts that contain nonfederal funds (subject

only to state law and not registered as federal political committees). Plaintiffs want to use nonfederal funds from an account that may have and receive them, i.e., its nonfederal account (or

alternatively an ICA). And the local committees do not want to have to use federal funds, in part,

because they do not want to set up such a federal account and bear the burden of federal politicalcommittee compliance. No federal law forbids a donor from contributing over $10,000 to a state

21 Available at http://fec.gov/pdf/partygui.pdf.

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and local committee’s nonfederal account. State and local committees legally have and routinely

raise nonfederal funds (given without regard to any federal $10,000 limit) that may be used for

making non-individualized, independent communications.

FEC then argues that “Plaintiffs are wrong in assuming that the campaign finance regime created by FEC’s pre-BCRA interpretations of FECA permitting soft money to be used for ‘mixed’

activities springs back into existence” if Plaintiffs’ challenge succeeds. (Opposition at 26.) Plaintiffs have already addressed this. See supra at 4 & n.8. Plaintiffs simply predict what the FEC

commissioners would do, which Plaintiffs believe would be to reimpose the allocation scheme

for federal election activity (which was wholly an FEC creation). But if FEC does not reimpose

its allocation scheme, state and local committees could pay for the activities at issue entirely with

nonfederal funds, which would be fine. But that has nothing to do with the fact that the challenged provisions are unconstitutional as challenged or with redressability.

FEC then turns to claims that plaintiffs fail to establish injury or causation. (Opposition at 27-

29.) FEC claims that Plaintiffs have failed to show that someone “wants to give them such significant sums,” and only one contributor gave more than $10,000, and the local plaintiffs raise little

money so “[a]ny failure ... to raise contributions in excess of federal limits is hardly traceable to

BCRA.” (Id. at 27-28.) FEC is wrong at multiple levels. It continues to rely on its flawed foundation that Plaintiffs challenge the $10,000 base limit. They don’t, so these arguments on that basis

are meaningless. If state and local committees want to spend $1 on federal election activity they

must open a federal account with the serious burdens of registering and reporting as a federal political committee. (Compl. ¶¶ 36-39.) FEC ignores that severe burden entirely. State and local

committees legally have, and routinely raise, nonfederal funds, which FEC acknowledges. And

Plaintiffs’ challenge is to use nonfederal funds, per se, for federal election activity. Their claim

20

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thus does not turn on whether someone wants to contribute over $10,000 (a flawed foundation in

any event). If someone has already contributed just $1 (or if a local committee has received $1 in

fees), Plaintiffs want to be able to use that $1 for federal election activity, which they cannot under the Ban. The injury is clear.

FEC argues that “plaintiffs have not shown that they need the excess individual contributions

they seek to fund their intended activities,” and suggests that some might be funded with Levin

funds. (Opposition at 28.) FEC relies on the flawed foundation that Plaintiffs challenge the

$10,000 limit. Plaintiffs need not prove their “need” for any level of funds in order to challenge

the Ban, which bans them from using any amount of nonfederal funds for federal election activity. They choose not to use Levin funds “due to complexity, burdens, and restrictions,” (Compl.

at 5 n.4 and ¶ 76) and are not required to prove that Levin funds would not suffice.22 Plaintiffs are

not required to assume the burdens of another layer of complex federal law in an effort to free

themselves from the burdens of the challenged provisions.23 And constitutionally, FEC’s suggestion is like its suggestion that the plaintiffs in WRTL-II just do something different than what they

wanted to do, which was forcefully repudiated. 551 U.S. at 447 n.9 (controlling opinion).

FEC argues that Plaintiffs’ harm is self-inflicted because they could use Levin funds for some

of their activity. (Opposition at 28.) FEC’s error was just shown in the preceding paragraph.

Plaintiffs simply add that FEC’s use-Levin-funds argument is also like its argument in Citizens

22

 Levin funds require extensive recordkeeping and are limited in how they may be raised,

how much may be raised, and how they may be used—they cannot be used, inter alia, for the sort

of broadcast activities Plaintiffs wish to do and for any FEA identifying a federal candidate. See,

e.g., Campaign Guide for Political Party Committees at 58. 

23

 State and local committees do not use Levin funds due to these problems, as FEC knows

from its 2014 forum. (Compl. ¶ 73 (“‘The Levin Amendment is too complicated to administer

and several state parties have decide to just federalize their get-out-the-vote programs due to the

complexity of administering and complying with the Levin Amendment.’” (citation omitted)).)

21

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United, where FEC argued that Citizens United didn’t have any real harm because it could do

other things, including using a PAC for its electioneering communications and independent expenditures, but the Court held that PACs impose onerous burdens and Citizens United was not

required to endure such burdens to engage in its independent speech. 558 U.S. 337. Plaintiffs

here need not endure FEC’s proposed onerous burden.24

Plaintiffs’ Memo and the foregoing prove this action self-evidently substantial/non-foreclosed. But a brief comment on each count follows, for which the criterion is whether this count

is obviously frivolous or clearly foreclosed beyond debate. (Memo at 5.) See supra at 7.

C. Count I Presents Substantial, Non-Foreclosed Claims.

Count I challenges BCRA provisions as applied to (a) non-individualized, independent communications exhorting registering/voting and (b) non-individualized, independent communications by Internet. (Memo at 27-34.) On either ground, the provisions are unconstitutional as applied to such communications, exemplified by the communication (“Register & Vote”) merely

exhorting registering/voting on LAGOP’s website. (Id. at 27-28.)25

 And this count clearly presents the confluence of McConnell with both the independent-communication case line and

McCutcheon’s constitutional analysis regarding restrictions on contributions to political parties.

24

 FEC suggests that the local committees may not be local committees of a political party.

(Opposition 16 n.4.) FEC errs. The Verified Complaint plainly states that “JPGOP is a ‘local committee,’ i.e., ‘part of the official party structure’” (Compl. ¶ 7) and that OPGOP “is also a parish

executive committee and local committee” (Compl. ¶ 8).

25

 As Plaintiffs argued in their Memorandum Supporting Motion to Expedite (Doc. 9-1),

some non-individualized, independent communications that LAGOP wants to make (without

complying with challenged provisions) so readily qualify for BCRA § 403’s special rules that

this whole action should be expedited now. (Doc. 9-1 at 1-8.) The challenges as applied to “Register & Vote,” “African-American Outreach,” and “Celebrating Jindal” are plainly substantial,

non-foreclosed, constitutional challenges to BCRA provisions that present factual and legal arguments not decided by McConnell, 540 U.S. 93. (Doc. 9-1 at 1-8.) FEC responds here that PASO

ads such as “Celebrating Jindal” motivated BCRA (Opposition at 43-44), but that does not alter

the controlling fact that independent communications are non-corrupting.

22

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FEC responds that Plaintiffs really challenge regulatory definitions. This has been refuted.

See supra at 4-5. FEC does not show that either such exhorting registering/voting or independent

Internet communications are corrupting or that any court has ruled on these facts and constitutional arguments. Nor does FEC refute that this count presents the cited confluences. So FEC

does not show that Count I is obviously frivolous or clearly foreclosed beyond debate. 

Absent any cognizable risk of narrow quid-pro-quo corruption, Count I is substantial, nonforeclosed as to each challenged provision as applied. The Ban and Fundraising Requirement

require an anti-corruption interest to justify them, but there is none. Absent a cognizable anti-corruption risk, there is no constitutional justification for the Reporting Requirement, requiring that

such activity be done from a federal account that is treated, and reports monthly, as a federal political committee. And the local committees should be able, for example, to email “Register &

Vote” without having to comply with a Reporting Requirement built on now-non-cognizable

“corruption.” FEC says “Plaintiffs make no independent showing that their challenge to [the Reporting Requirement] is substantial.” But Plaintiffs argued that the Reporting Requirement was

based on a now-rejected theory of “corruption.” (Memo at 29.) FEC agrees that the constitutionality of the Reporting Requirement derives from, and depends on, the constitutionality of the

Ban, which turns on the presence of an anti-corruption interest. (Opposition at 41 n.12.) Because

Citizens United and McCutcheon rejected McConnell’s broad “corruption,” in both expenditure

and contribution contexts, McConnell’s justification for the Reporting Requirement is also gone.

Anyway, there is no narrow, quid-pro-quo corruption to justify the Reporting Requirement (or

the Ban or Fundraising Requirement) as applied here.26 More can be said in merits briefing, but

26

 FEC’s notion that the Reporting Requirement is constitutional because “Plaintiffs offer no

reason to suggest that they cannot comply with such reporting resulting” (Memo at 45) is erroneous because a requirement’s constitutionality turns on the interest-tailoring analysis, not whether

plaintiffs can do the required activity, such as reporting.

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this suffices to show that challenges to the Reporting Requirement are substantial.

D. Count II Presents Substantial, Non-Foreclosed Claims.

Count II challenges the Ban and Fundraising Restriction as applied to (a) non-individualized,

independent communications and (b) such communications from an ICA. (Memo at 34.) On either ground, the provisions are unconstitutional as applied because no cognizable anti-corruption

interest justifies them. This is so because such independent communications pose no quid-proquo corruption risk and so neither do independent-communication-only accounts. This count

presents the confluence of McConnell with both the independent-communication case line and

McCutcheon’s constitutional analysis regarding restrictions on contributions to political parties.

FEC’s primary response is to argue that, by not challenging the $10,000 base limit so as to

receive unlimited contributions to an independent-expenditure-only account, Plaintiffs have been

“too clever by half” because they “have navigated away from the ‘confluence’ ... [making] their

previous challenge substantial.” (Opposition at 31.) That has already been refuted. See supra at

10-12. That argument failing, FEC has not shown how any cognizable anti-corruption interest

justifies the challenged provisions as applied to such independent communications, including

from an ICA. And FEC has not shown why a case challenging BCRA’s provisions as applied to

non-individualized, independent communications from an ICA is not as easily substantial (if not

more so because of the lesser remedy sought) as the RNC-II challenge to BCRA’s provisions

(and the base limit) as applied to independent expenditures from an NCA that this Court has already held substantial. (RNC-II Doc. 26 at 2.)

E. Count III Presents Substantial, Non-Foreclosed Claims.

Count III argues that the Ban, Fundraising Requirement, and Reporting Requirement are unconstitutional as applied to all independent federal election activity because the independence of

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Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 28 of 31
the activities eliminates the potential for cognizable corruption, which now requires, inter alia, a

contribution to an officeholder/candidate. (Memo at 35-38.) In RNC-II, this Court held this issue

substantial, and certified a question thereon. (RNC-II Doc. 26 at 2). The absence of a base-limit

challenge here does not constitutionally alter the issue so at to make it any less substantial.

F. Count IV Presents Substantial, Non-Foreclosed Claims.

Count IV argues that the Ban, Fundraising Requirement, and Reporting Requirement are unconstitutional facially because the now-required anti-quid-pro-quo-corruption interest under Citizens United and McCutcheon was not present in McConnell and is not present now. (Memo at

38-39.) As Plaintiffs noted, for purposes of a three-judge court application, this count is substantial and non-foreclosed (Memo at 43), which is true whether or not this Court feels it may grant

requested relief on the merits. And as Plaintiffs noted, Citizens United established, that in First

Amendment cases such as this, facial challenges to prior holdings may even be raised on appeal.

(Memo at 39 (citation omitted).) FEC responds that “Plaintiffs bizarrely assert that ... ‘facial

challenges ... may even be raised’ for the first time ‘on appeal.’” (Opposition at 35 n.10 (citations

omitted).) But calling Plaintiffs’ statement of what actually happened in Citizens United “bizarre[]” does not alter the fact that Citizens United allowed just that. 558 U.S. at 328-36. So FEC

has failed to show that this is obviously frivolous or clearly foreclosed beyond debate.

Conclusion

Plaintiffs showed this action substantial and non-foreclosed, FEC has failed to show that any

count is obviously frivolous or clearly foreclosed beyond debate. So the Application for ThreeJudge Court (Doc. 3) should be granted and this action should proceed under BCRA § 403.

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., D.C. Bar #CO 0041

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Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 29 of 31
jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Randy Elf,* mail@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 phone; 812/235-3685 fax

Counsel for Plaintiffs

*Admitted Pro Hac Vice

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Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 30 of 31
Certificate of Service

I certify that on September 23, 2015, I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system, which will notify:

Charles Kitcher, ckitcher@fec.gov

Gregory John Mueller, gmueller@fec.gov

Harry Jacobs Summers, hsummers@fec.gov

Kevin Deeley, kdeeley@fec.gov

Seth E. Nesin, snesin@fec.gov

Counsel for Defendant

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

202/694-1650.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Case 1:15-cv-01241-CRC Document 16 Filed 09/23/15 Page 31 of 31