UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CHRIS RUFER, LIBERTARIAN PARTY OF ) Civil Action No. 14-837 (CRC)

INDIANA, and LIBERTARIAN NATIONAL )

CONGRESSIONAL COMMITTEE INC, ) THREE-JUDGE COURT REQUESTED

)

Plaintiffs, )

) ORAL ARGUMENT REQUESTED

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_______________________________________)

REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN 

SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Michael T. Morley, DC Bar #492716

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (860) 778-3883

Fax: (202) 331-3759

Michael@coolidgereagan.org

Danielle Frisa*

SHAHLA PC

708 Main Street, Suite 430

Houston, TX 77002

Phone: (713) 497-5133

Fax: (713) 904-2496

Danielle@shahlapc.com 

*Motion for admission pro hac vice

Forthcoming

Counsel for Plaintiffs Chris Rufer, 

Libertarian Party of Indiana, and 

Libertarian National Congressional ‘

Committee Inc.

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TABLE OF CONTENTS

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

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

I. PLAINTIFFS ARE LIKELY TO PREVAIL 

ON THE MERITS OF THEIR CLAIMS ....................................................................... 1

A. BCRA’s Contribution Limits Substantially 

Restrict First Amendment Associational Rights................................................. 1

B. Prohibiting Political Parties From Accepting Unlimited 

Contributions to Separate, Segregated IE-Only Accounts Does 

Not Prevent Actual or Apparent Quid Pro Quo Corruption ............................... 2

1. Political parties themselves cannot 

engage in quid pro quo corruption.......................................................... 3

2. Contributions to a political party’s IE-only account are at 

least two steps removed from the only type of corruption that 

may serve as a basis for restricting First Amendment freedoms............ 4 

3. Political parties have the same constitutional right as 

PACs to create segregated IE-only accounts that 

may accept unlimited contributions........................................................ 9

C. BCRA’s Restrictions Are Impermissibly 

Overbroad as Applied to IE-Only Accounts..................................................... 11

II. THIS COURT SHOULD REJECT THE FEC’S REMAINING ARGUMENTS ........ 14

A. The FEC Misstates the Framers’ Views Toward Political Parties.................... 14

B. This Court Should Not Decline to Grant Injunctive 

Relief Based on Winter’s “Non-Merits” Factors.............................................. 16

1. Plaintiffs are Suffering Immediate and Irreparable Injury.................... 17

2. The Balance of Harms Falls Entirely on Plaintiffs and 

the Public Interest Supports Granting an Injunction............................. 19

CONCLUSION......................................................................................................................... 19

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ii

TABLE OF AUTHORITIES

Cases

Babbitt v. Farm Workers, 

442 U.S. 289 (1979)...................................................................................................... 17

Beverly v. FEC, 

No. 1:08-CV-1538 (AWI) (GSA), 

2009 U.S. Dist. LEXIS 5699 (E.D. Cal. Jan, 28, 2009)................................................ 18

Buckley v. Valeo,

424 U.S. 1 (1976)...................................................................................................passim

Cal. Democratic Party v. Jones, 

530 U.S. 567 (2000)...................................................................................................... 15

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)...................................................................................................... 10

*Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011).......................................................................passim

Carey v. Piphus, 435 U.S. 247 (1978)...................................................................................... 18

*Citizens United v. FEC, 

558 U.S. 310 (2010)...............................................................................................passim

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

518 U.S. 604 (1996)...............................................................................................passim

*Emily’s List v. FEC,

581 F.3d 1 (D.C. Cir. 2009)................................................................................ 9, 10, 14

FDIC v. Meyer, 510 U.S. 471 (1994) ....................................................................................... 18

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985).......................................................................................... 2, 5, 6, 11

FEC v. Wisconsin Right to Life, 

551 U.S. 449 (2007).................................................................................................. 8, 19

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013)...................................................................................... 18

Case 1:14-cv-00837-CRC Document 14 Filed 06/18/14 Page 3 of 26
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Long Beach Area Chamber of Comm. v. City of Long Beach, 

603 F.3d 684 (9th Cir. 2010). ....................................................................................... 10

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003)................................................................................ 8

McConnell v. FEC, 

540 U.S. 93 (2003).................................................................................................passim

McCormick v. United States, 

500 U.S. 257 (1991)........................................................................................................ 2

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)...........................................................................................passim

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 

756 F.2d 1048 (4th Cir. 1985) ...................................................................................... 18

N.C. Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008) ........................................................................................ 10

NAACP v. Ala. ex rel. Patterson, 

357 U.S. 449 (1958)........................................................................................................ 1

Poe v. Ullman,

367 U.S. 497 (1961)...................................................................................................... 17

R.J. Reynolds Tobacco Co. v. United States FDA, 

823 F. Supp. 2d 36 (D.D.C. 2011)................................................................................ 18

Randall v. Sorrell, 

548 U.S. 230 (2006)...................................................................................................... 13

Republican Party v. King, 

741 F.3d 1089 (10th Cir. 2013) ...................................................................................... 9

RNC v. FEC, 

698 F. Supp. 2d 150 (D.D.C. 2010)...................................................................... 4, 6, 11

*SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010).................................................................................... 6, 9

Stay the Course W. Va. v. Tennant, 

No. 12-CV-01658, 2012 U.S. Dist. LEXIS 112147

(S.D. W. Va. Aug. 9, 2012) .......................................................................................... 10

Case 1:14-cv-00837-CRC Document 14 Filed 06/18/14 Page 4 of 26
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Stop This Insanity, Inc. Employee Leadership Fund v. FEC,

902 F. Supp. 2d 23 (D.D.C. 2012)................................................................................ 10

Storer v. Brown, 

415 U.S. 724 (1974)........................................................................................................ 3

Susan B. Anthony List v. Driehaus, 

No. 13-193, 2014 U.S. LEXIS 4169 (June 16, 2014)................................................... 17

Tashjian v. Republican Party, 

479 U.S. 208 (1986)...................................................................................................... 16

Thalheimer v. City of San Diego, 

No. 09-CV-2862-IEG (BGS), 2012 U.S. Dist. LEXIS 6563

(S.D. Cal. Jan. 20, 2012)................................................................................................ 9

Timmons v. Twin Cities Area New Party, 

520 U.S. 351 (1996)...................................................................................................... 16

Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442 (2008)........................................................................................................ 3

Winter v. Natural Resources Defense Council, 

555 U.S. 7 (2008). ........................................................................................................ 16

Statutes and Regulations

2 U.S.C. § 437h......................................................................................................................... 16

2 U.S.C. § 441a............................................................................................................ 2, 6, 7, 11

2 U.S.C. § 441f ........................................................................................................................... 7

2 U.S.C. § 441i...................................................................................................................... 2, 11

28 U.S.C. § 2680....................................................................................................................... 18 

Other Sources

Steven G. Calabresi, Book Review, The President, the Supreme Court, and 

the Founding Fathers: A Reply to Professor Ackerman, 

73 U. CHI. L. REV. 469 (2006) .................................................................................15-16

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Donald E. Daybell, Note, Guarding the Treehouse: Are States 

“Qualified” to Restrict Ballot Access in Federal Elections? 

80 B.U. L. REV. 289 (2000)........................................................................................... 15

Michael C. Dorf, Interpretive Holism and the Structural Method, or 

How Charles Black Might Have Thought About Campaign 

Finance Reform and Congressional Timidity, 

92 GEO. L.J. 833 (2004) ................................................................................................ 15

FEC, Performance and Accountability Report, Fiscal Year (2013), 

available at http://www.fec.gov/pages/budget/fy2013/ 

FEC_Final_PAR_2013_121613.pdf............................................................................. 17

John Harrison, Originalism and Historical Truth: Forms 

of Originalism and the Study of History, 

26 HARV. J.L. & PUB. POL’Y 83 (2003)......................................................................... 15

Richard Hofstadter, The Idea of a Party System (1970)........................................................... 14

Douglas Laycock, The Death of the Irreparable Injury Rule, 

103 HARV. L. REV. 688 (1990)...................................................................................... 18

LNCC, Report of Receipts and Disbursements, Form 3X, §§ 8, 11 (Jan. 31, 2014),

available at http://docquery.fec.gov/cgi-bin/dcdev/forms/C00418103/904371........... 12

LPIN, Report of Receipts and Disbursements, Form 3X, §§ 8, 11 (Jan. 31, 2014), 

available at http://docquery.fec.gov/cgi-bin/dcdev/forms 

/C00426320/906391 ................................................................................................12-13

Dean McSweeney & John Zvesper, American Political Parties (1991) .................................. 15

Adrian Vermeule, The Constitutional Law of Congressional Procedure, 

71 U. CHI. L. REV. 361 (2004) ...................................................................................... 15

John C. Yoo, War Powers: War and the Constitutional Text, 

69 U. CHI. L. REV. 1639 (2002) .................................................................................... 16

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ARGUMENT

I. PLAINTIFFS ARE LIKELY TO PREVAIL 

ON THE MERITS OF THEIR CLAIMS

Plaintiffs are likely to succeed in demonstrating that the Government may not 

constitutionally prohibit political parties from establishing separate, segregated IE-only accounts 

that may accept unlimited contributions. 

A. BCRA’s Contribution Limits Substantially Restrict 

Plaintiffs’ First Amendment Associational Rights

The FEC begins by presenting only a partial and materially incomplete explanation of the 

burdens that contribution limits impose on fundamental First Amendment rights. It emphasizes 

that contribution limits burden contributors’ free speech rights in only minor ways, see FEC Opp. 

at 12, 39 (quoting Buckley v. Valeo, 424 U.S. 1, 20 (1976)), ignoring the Supreme Court’s 

repeated holdings that such limits substantially restrict the associational rights of both 

contributors and parties. 

“The right to join together ‘for the advancement of beliefs and ideas’ is diluted if it does 

not include the right to pool money through contributions, for funds are often essential if 

‘advocacy’ is to be truly or optimally ‘effective.’” Buckley, 424 U.S. at 65-66 (quoting NAACP 

v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958)). Moreover, “[m]aking a contribution, like 

joining a political party, serves to affiliate a person with a candidate” and “enables like-minded 

persons to pool their resources in furtherance of common political goals.” Id. at 22. And 

supporters of libertarian principles who do not live in states with Libertarian candidates for 

Congress face substantial “geographic problem[s]” in attempting to associate with the LNCC 

through alternate means. FEC Opp. at 39; cf. McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014) 

(noting that the First Amendment burdens of contribution limits are exacerbated where “personal 

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volunteering is not a realistic alternative”). Contribution limits therefore substantially burden a 

person’s right to associate with candidates and political parties of her choice. Buckley, 424 U.S. 

at 22. 

B. Prohibiting Political Parties From Accepting Unlimited 

Contributions to Separate, Segregated IE-Only Accounts Does 

Not Prevent Actual or Apparent Quid Pro Quo Corruption

BCRA’s contribution limits and other restrictions may not be constitutionally applied to 

prohibit political parties from establishing separate, segregated IE-only accounts to accept 

unlimited contributions, because such accounts do not pose a risk of actual or apparent quid pro 

quo corruption. 

Both sides agree that contribution limits are subject to “close[]” scrutiny. FEC Opp. 

at 12. The Government must demonstrate that BCRA’s contribution limits, 2 U.S.C. 

§ 441a(a)(1)(B), (D), and other applicable restrictions on political parties, id. § 441i(a)-(c), 

further “important” interests and are “closely drawn to avoid unnecessary abridgement” of First 

Amendment rights, McCutcheon, 134 S. Ct. at 1444; accord FEC Opp. at 12. The FEC contends 

that applying BCRA to Plaintiffs’ proposed IE-only accounts is necessary to prevent actual or 

apparent quid pro quo corruption. 

The Supreme Court’s recent ruling in McCutcheon clarifies that the definition of 

“corruption” in this context is extremely narrow. Quid pro quo corruption is “a direct exchange 

of an official act for money.” McCutcheon, 134 S. Ct. at 1441 (citing McCormick v. United 

States, 500 U.S. 257, 266 (1991)); see also FEC v. Nat’l Conservative Political Action Comm.

(“NCPAC”), 470 U.S. 480, 497 (1985) (“The hallmark of corruption is the financial quid pro 

quo: dollars for political favors.”). As demonstrated below, contributions to political parties’ IEonly accounts do not raise a specter of actual or apparent corruption under that standard. 

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1. Political parties themselves cannot engage in quid pro quo corruption

The FEC completely fails to acknowledge that a political party itself cannot engage in 

quid pro quo corruption. A political party is an association of individuals that seeks “to promote 

the election of candidates who will implement [their] views.” Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 463-64 (2008) (Scalia, J., dissenting); see also Storer v. Brown, 

415 U.S. 724, 745 (1974) (recognizing that a political party’s “goal is typically to gain control of 

the machinery of . . . government by electing its candidates to public office”). A political party 

neither occupies a public office nor exercises any official legislative, executive, or judicial 

authority under the Constitution. Thus, it is unable to corruptly perform, or even appear to 

perform, any “official act” in exchange for a contribution. McCutcheon, 134 S. Ct. at 1441.

The FEC, relying heavily on McConnell, claims that the threat of both actual and 

apparent quid pro quo corruption is heightened with respect to political parties because they are 

“inextricably intertwined” and share a “unity of interest” with their candidates. FEC Opp. at 19. 

Although some of a political party’s members may occupy public office, however, the Supreme 

Court has already recognized that a party is not an alter ego for its candidates or other members. 

It has refused to “assume” that “a party and its candidates are identical, i.e., the party, in a sense, 

‘is’ its candidates.” Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 623 (1996).

(“Colorado I”). Thus, the FEC’s reasoning fails. A contribution to a political party may not be 

deemed to be the same as a contribution to a candidate, and a political party simply cannot 

exercise its members’ official authority. 

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2. Contributions to a political party’s IE-only account are at 

least two steps removed from the only type of corruption that 

may serve as a basis for restricting First Amendment freedoms.

The FEC has failed to establish that permitting unlimited contributions to a political 

party’s IE-only account creates a risk of actual or apparent corruption. As an initial matter, the 

risk of corruption is substantially reduced because such contributions are made to political 

parties, rather than to candidates. McCutcheon rejects the notion that, when a contributor 

provides funds to a political party that supports a particular officeholder, a risk of corruption 

thereby arises between that contributor and officeholder. The McCutcheon Court explained: 

[T]here is not the same risk of quid pro quo corruption or its appearance when 

money flows through independent actors to a candidate, as when a donor 

contributes to a candidate directly. When an individual contributes to a . . . party 

committee . . . the individual must by law cede control over the funds. . . . [I]f the 

funds are subsequently rerouted to a particular candidate, such action occurs at the 

[party’s] discretion—not the donor’s. As a consequence, the chain of attribution 

grows longer, and any credit must be shared among the various actors along the 

way. For those reasons, the risk of quid pro quo corruption is generally applicable 

only to “the narrow category of money gifts that are directed, in some manner, to 

a candidate or officeholder.”

McCutcheon, 134 S. Ct. at 1452 (emphasis added and internal citations omitted; quoting

McConnell v. FEC, 540 U. S. 93, 310 (2003) (opinion of Kennedy, J)). 

In RNC v. FEC, 698 F. Supp. 2d 150, 159 (D.D.C. 2010), aff’d without opinion 130 S. Ct. 

3543 (2010), this Court—relying on McConnell—upheld BCRA’s contribution limits on the 

grounds that, due to the “close relationship” between parties and their candidates, a candidate 

“may value contributions to their national parties—regardless of how those contributions 

ultimately may be used—in much the same way they value contributions to their own 

campaigns.” See FEC Opp. at 19-21; see also McConnell, 540 U.S. at 154-55.1 McCutcheon, 

 

1 The FEC repeatedly insists that McConnell and RNC foreclose Plaintiffs’ claims, see, e.g., FEC 

Opp. at 10, 21-22. McConnell, however, expressly left the door open to as-applied challenges 

such as this, see McConnell, 540 U.S. at 157 n.52, 159, 173, and neither case purported to 

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however, reaffirms a much narrower conception of corruption, which arises only from “gifts that 

are directed, in some manner, to a candidate or officeholder,” and not contributions to 

intermediaries such as “party committees,” McCutcheon, 134 S. Ct. at 1452 (quotation marks 

omitted),” and thus rejects RNC’s (and McConnell’s) key doctrinal underpinning. 

In any event, Plaintiffs here seek to establish separate, segregated IE-only accounts that 

would be used solely to subsidize their independent expenditures. The Supreme Court has held 

that independent expenditures—including independent expenditures by political parties—do not 

give rise to the same threat of corruption as contributions to candidates, in large part because 

they do not benefit candidates to the same extent as contributions. Colorado I, 518 U.S. at 616. 

The “absence of prearrangement and coordination of an [independent] expenditure with [a] 

candidate . . . undermines the value of the expenditure to the candidate, [and] . . . alleviates the 

danger that expenditures will be given as a quid pro quo for improper commitments from the 

candidate.” Buckley, 424 U.S. at 47 (emphasis added); see also Colorado I, 518 U.S. at 616 

(“[T]he absence of prearrangement and coordination . . . help[s] to alleviate any danger that a 

candidate will understand the expenditure as an effort to obtain a quid pro quo.”); McCutcheon, 

134 S. Ct. at 1452 (“[T]here is not the same risk of quid pro quo corruption or its appearance 

when money flows through independent actors to a candidate, as when a donor contributes to a 

candidate directly.”); accord NCPAC, 470 U.S. at 498; Citizens United v. FEC, 558 U.S. 345, 

357 (2010). 

Thus, even assuming—contrary to McCutcheon, 134 S. Ct. at 1452—that a candidate 

might value a contribution to her party the same as a contribution to her own campaign, RNC, 

 

adjudicate BCRA’s constitutionality specifically as applied to IE-only accounts of political 

parties. To the extent the FEC instead relies on the rationales of those cases, they either have 

been repudiated by subsequent Supreme Court rulings or are inapplicable in the context of 

parties’ IE-only accounts, as discussed above. 

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698 F. Supp. 2d at 159, the “value” to a candidate of a contribution that her party may use 

exclusively to subsidize independent expenditures is “undermine[d].” Buckley, 424 U.S. at 47; 

Colorado I, 518 U.S. at 616; McCutcheon, 134 S. Ct. at 1452; NCPAC, 470 U.S. at 498. Such 

contributions do not present a cognizable risk of actual or apparent quid pro quo corruption. Cf. 

Carey v. FEC, 791 F. Supp. 2d 121, 131, 135 (D.D.C. 2011); SpeechNow.org v. FEC, 599 F.3d 

686, 695-96 (D.C. Cir. 2010) (en banc) (“[T]he government can have no anti-corruption interest 

in limiting contributions to independent expenditure-only organizations.”). RNC, in contrast, 

addresses only contributions that candidates “may value . . . in much the same way they value 

contributions to their own campaigns,” RNC, 698 F. Supp. 2d at 159, and therefore does not 

speak to contributions to an IE-only account. 

Contributions to political parties’ IE-only accounts therefore are twice removed from the 

type of quid pro quo corruption Congress may prohibit: (i) they are made to parties that cannot 

themselves engage in quid pro quo corruption, rather than officeholders; and (ii) parties may use 

such contributions exclusively to subsidize independent expenditures, which do not give rise to a 

constitutionally cognizable risk of corruption. 

The FEC’s remaining explanations for why political parties should be prohibited from 

establishing IE-only accounts are based on conduct that, while potentially distasteful, does not 

amount to actual or apparent quid pro quo corruption as defined by the Supreme Court. Citizens 

United, 558 U.S. at 359-61; McCutcheon, 134 S. Ct. at 1450-51; see also NCPAC, 470 U.S. at 

497; Buckley, 424 U.S. at 27. The FEC hypothesizes that someone other than a federal 

officeholder may encourage people to contribute to a party’s IE-only account, and then “an 

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officeholder intent on rewarding contributors can easily determine the identities of those 

contributors from a wide variety of other sources.” FEC Opp. at 34.2 

As discussed above, the risk of such corruption is attenuated by the facts that the 

contributions are made to a political party, rather than a candidate, McCutcheon, 134 S. Ct. at 

1452; McConnell, 540 U. S., at 310 (opinion of Kennedy, J), and the party may use them solely 

for independent expenditures, which may not be prearranged or coordinated with a candidate and 

therefore may not be understood “as an effort to obtain a quid pro quo,” Colorado I, 518 U.S. at 

616 (quotation marks omitted); see also Buckley, 424 U.S. at 27 (holding that independent 

expenditures do not “pose dangers of real or apparent corruption comparable to those identified 

with large campaign contributions”). 

Moreover, a candidate’s unilateral, ex post decision to act in a manner that is favorable to 

a contributor (which the FEC terms a “reward[],” FEC Opp. at 34) does not constitute actual or 

apparent quid pro quo corruption as defined by the Supreme Court: 

 

2 The FEC offers a few examples of corruption by the major political parties to bolster its claims, 

but most of them are largely irrelevant to this case. The FEC begins by explaining how, in the 

mid-1970s, certain contributors established hundreds of political committees which, along with 

political parties, were used to “funnel[]” “excessive contributions” to President Nixon’s reelection campaign. FEC Opp. at 14-15. Several other cited examples involve activity that 

similarly is now illegal under other, much more reasonably tailored laws. See, e.g., 2 U.S.C. 

§ 441a(a)(5) (anti-proliferation statute requiring all contributions made from committees formed 

by, or under the control of, the same entity must be “considered to have been made by a single 

political committee”); id. § 441a(a)(8) (anti-earmarking statute, providing that contributions 

“which are in any way earmarked or otherwise directed through an intermediary or conduit to [a] 

candidate” are “treated as contributions . . . to such candidate”); 2 U.S.C. § 441f (prohibiting 

contributors from making a contribution in the name of another person or with the funds of 

another person). See McCutcheon, 134 S. Ct. at 1446-47 (discussing post-Buckley modifications 

to federal law and new FEC regulations). Many of the FEC’s remaining examples involve large 

contributions to candidates or non-connected political action committees (“PACs”), rather than 

party committees. See FEC Opp. at 16-18. Notably, the FEC fails to cite even a single instance 

of corruption or alleged corruption by third-party candidates or officeholders, or in connection 

with political parties’ independent expenditures in the wake of Colorado I. 

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It is in the nature of an elected representative to favor certain policies, and, by 

necessary corollary, to favor the voters and contributors who support those 

policies. It is well understood that a substantial and legitimate reason, if not the 

only reason, to cast a vote for, or to make a contribution to, one candidate over 

another is that the candidate will respond by producing those political outcomes 

the supporter favors. Democracy is premised on responsiveness.

Citizens United, 558 U.S. at 359 (quoting McConnell, 540 U.S. at 297) (opinion of Kennedy, J.). 

Citizens United rejected the notion that the Government may limit constitutionally 

protected activity simply because a federal officeholder may be “grateful” for it. “Ingratiation 

and access . . . are not corruption.” Citizens United, 558 U.S. at 360. McCutcheon elaborated 

that simply “[s]pending large sums of money in connection with elections . . . does not give rise 

to . . . quid pro quo corruption.” McCutcheon, 134 S. Ct. at 1450-51. “Nor does the possibility 

that an individual who spends large sums may garner ‘influence over or access to’ elected 

officials or political parties.” Id. (citations omitted). 

To the extent that officeholders vote for legislation out of a generalized sense of 

“gratitude” over the fact that a contributor made a large contribution to a political party’s IE-only 

account, or to attempt to encourage further such support, such actions appear to be outside the 

realm of quid pro quo corruption as defined by Citizens United, 558 U.S. at 359-61, and 

McCutcheon, 134 S. Ct. at 1450-51, and instead constitute “general influence” by the contributor 

or “responsiveness” to her, McCutcheon, 134 S. Ct. at 1451, 1462—which are constitutionally 

insufficient grounds for restricting First Amendment rights. 

As McCutcheon explained:

The line between quid pro quo corruption and general influence may seem vague 

at times, but the distinction must be respected in order to safeguard basic First 

Amendment rights. In addition, “[i]n drawing that line, the First Amendment 

requires us to err on the side of protecting political speech rather than suppressing 

it.” 

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134 S. Ct. at 1451 (quoting FEC v. Wisconsin Right to Life, 551 U.S. 449, 457 (2007) (opinion of 

Roberts, C. J.)). Thus, contributions to political parties may not be limited on the grounds that 

they purportedly allow lobbyists and others to exercise greater “‘influence,’” FEC Opp. at 17 

(quoting McConnell v. FEC, 251 F. Supp. at 869), or federal officeholder may be especially 

grateful for them.

3. Political parties have the same constitutional right as PACs to create 

segregated IE-only accounts that may accept unlimited contributions. 

Courts across the country have held that PACs which engage exclusively in independent 

expenditures (“SuperPACs”) have the fundamental First Amendment right to accept unlimited 

contributions to subsidize those expenditures, because independent expenditures do not give rise 

to a threat of actual or apparent corruption. See Memo. of Points and Authorities in Support of 

Plaintiffs’ Motion for Preliminary Injunction, D.I. #3-1, at 10 n.6-7. This jurisdiction has not 

only embraced this principle, SpeechNow.org, 599 F.3d at 689, but has gone further, holding that 

even PACs which contribute to candidates may accept unlimited contributions in segregated 

accounts that are used exclusively to fund independent expenditures, Carey, 791 F. Supp. 2d at 

126-27, 131, or other election-related activities such as get-out-the-vote drives, Emily’s List v. 

FEC, 581 F.3d 1, 12 (D.C. Cir 2009); see also Republican Party v. King, 741 F.3d 1089, 1096-

97 (10th Cir. 2013) (holding that “no anti-corruption interest is furthered” by applying 

contribution limits to PACs’ segregated IE-only accounts); Thalheimer v. City of San Diego, No. 

09-CV-2862-IEG, 2012 U.S. Dist. LEXIS 6563, at *38-49 (S.D. Cal. Jan. 20, 2012) (enjoining 

the application of contribution limits to PACs that make independent expenditures, “regardless 

of whether independent expenditures are the only expenditures that those committees make”).

The central issue of this case is whether contributions to a political party’s segregated IEonly account would raise a constitutionally cognizable risk of actual or apparent corruption that 

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is absent from contributions to a PAC’s account. As the FEC emphasizes, many courts which 

recognized the fundamental right of PAC’s IE-only accounts or SuperPACs to receive unlimited 

contributions expressly distinguished those entities from political parties. FEC Opp. at 27-29 & 

n.12. Most of the statements upon which the FEC relies, however, directly or indirectly (through 

intervening precedents) trace back to McConnell’s holding that contributions to political parties 

raise special corruption concerns because of the “close relationship” between parties and 

candidates. See id. (citing, inter alia, Emily’s List, 581 F.3d at 6, 14; Carey, 791 F. Supp. 2d at 

125, 131; N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008); Long Beach 

Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696, 698 (9th Cir. 2010); Stay 

the Course W. Va. v. Tennant, No. 12-CV-01658, 2012 U.S. Dist. LEXIS 112147, at *16-17 

(S.D. W. Va. Aug. 9, 2012)).3 

As discussed earlier, this aspect of McConnell is no longer good law in light of 

McCutcheon. McCutcheon reaffirmed the potentially corrupting nature of “‘gifts that are 

directed, in some manner, to a candidate or officeholder,’” but further held that “there is not the 

same risk of quid pro quo corruption or its appearance . . . [w]hen an individual contributes to 

a . . . party committee.” McCutcheon, 134 S. Ct. at 1452 (emphasis added and internal citations 

omitted; quoting McConnell, 540 U. S., at 310 (opinion of Kennedy, J)). Moreover, McConnell

did not purport to address whether the purported risk of corruption associated with contributions 

to political parties is less for contributions to a party’s IE-only committee, which may not 

subsequently be transferred to, or spent in coordination with, officeholders. 

 

3

The FEC also quotes Stop This Insanity, Inc. Employee Leadership Fund v. FEC, 902 F. Supp. 

2d 23, 43 (D.D.C. 2012), see FEC Opp. at 28-39, which cites Buckley, 424 U.S. at 26-27, and 

California Medical Association v. FEC, 453 U.S. 182, 183-84 (1981), for the proposition that the 

Government’s interest in fighting corruption is “at its zenith” concerning contributions to 

candidates and political parties. The plaintiffs in that case were not challenging limits on 

contributions to political parties, however, and it does not appear that the court was ruling on a 

contested point of law. 

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Finally, it is critical to recall that McConnell’s characterization of the purported risk of 

corruption associated with political parties was based on an extremely broad definition of 

corruption that the Supreme Court subsequently has rejected. See Citizens United, 558 U.S. at 

360; McCutcheon, 134 S. Ct. at 1450-51. McConnell held that the Government may seek to 

eliminate not only “cash-for-votes exchanges,” but also other types of “improper influence and 

opportunities for abuse in addition to quid pro quo arrangements.” McConnell, 540 U.S. at 143 

(emphasis added and quotation marks omitted); see also id. (holding that the Government has a 

valid interest in preventing both “bribery of public officials,” as well as “the broader threat from 

politicians too compliant with the wishes of large contributors”) (quotation marks omitted). 

McConnell concluded that the need to prevent contributors from “gaining influence,” and 

candidates from becoming “indebted,” warranted restrictions on contributions to both national 

and state parties. Id. at 165. As this Court recognized in RNC, McConnell’s holding that “large 

contributions to the national parties are corrupting and can be limited because they create 

gratitude, facilitate access, or generate influence” no longer remains “viable” under Citizens 

United. RNC, 698 F. Supp. 2d at 158. 

For the foregoing reasons, the FEC has failed to establish that prohibiting political parties 

from establishing segregated IE-only accounts that may accept unlimited contributions will 

further the Government’s interest in preventing actual or apparent quid pro quo corruption. 

C. BCRA’s Restrictions Are Impermissibly 

Overbroad as Applied to IE-Only Accounts

The FEC also fails to offer a persuasive basis for concluding that BCRA’s contribution 

limits and other restrictions on political parties’ fundraising and spending, 2 U.S.C. 

§§ 441a(a)(1)(B), (D), 441i(a)-(c), as applied to Plaintiffs’ proposed IE-only accounts, are 

reasonably tailored. This lawsuit focuses specifically on contributions to political parties, which 

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McCutcheon, 134 S. Ct. at 1452, held do not raise the same threat of corruption as contributions 

directly to candidates. And within that universe of contributions, this lawsuit exclusively 

concerns contributions made for the sole purpose of funding independent expenditures, which 

the Supreme Court categorically has held do not give rise to a risk of corruption. See 

McCutcheon, 134 S. Ct. at 1452; Colorado I, 518 U.S. at 616; NCPAC, 470 U.S. at 498; Buckley, 

424 U.S. at 47. The FEC provides no basis for concluding that BCRA’s general limits should be 

applied to contributions to political parties IE-only accounts, which are twice removed from the 

type of quid pro quo corruption Congress may prohibit. 

In determining whether BCRA’s restrictions are sufficiently tailored, the court must 

consider whether they “avoid unnecessary abridgement of associational freedoms.” 

McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at 21). The only issue is whether a 

“substantial mismatch” exists between “the Government’s stated objective and the means 

selected to achieve it.” Id. The facts that the major political parties may be “thriv[ing]” under 

the current system, Fec. Opp. at 36-37, parties enjoy certain advantages over PACs, id. at 37-38, 

and that alternative means often exist of associating with parties, id. at 39, are of limited (if any) 

relevance in determining whether prohibiting parties from forming segregated IE-only accounts 

to accept unlimited contributions is a sufficiently tailored means of attempting to prevent actual 

or apparent quid pro quo corruption. See Carey, 791 F. Supp. 2d at 132 (“The fact that Plaintiffs 

may have another outlet to exercise their First Amendment rights to free speech . . . as suggested 

by the Commission in its opposition does not answer this constitutional challenge”). 

Moreover, while the major parties may be awash in billions of dollars, id. at 37, the 

opposite is true of political party committees such as Plaintiffs. In 2013, for example, the LNCC 

received only $45,160 in federal contributions; at the end of the year, it had only $6,348.49 cash 

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on hand in its federal account. See LNCC, Report of Receipts and Disbursements, Form 3X, 

§§ 8, 11 (Jan. 31, 2014), available at http://docquery.fec.gov/cgi-bin/dcdev/forms/ 

C00418103/904371/. The LPIN receives $37,331 in federal contributions, and ended the year 

with $15,422.26 in its federal account. See LPIN, Report of Receipts and Disbursements, Form 

3X, §§ 8, 11 (Jan. 31, 2014), available at http://docquery.fec.gov/cgibin/dcdev/forms/C00426320/906391/. These figures belie the FEC’s contention that the LNCC 

and LPIN are not “‘struggling minor part[ies],’” McConnell, 540 U.S. at 158-59 (quoted in FEC 

Opp. at 31), or that these Plaintiffs are currently able to amass the funds for “‘effective 

advocacy,’” Randall v. Sorrell, 548 U.S. 230, 247 (2006) (quoted in FEC Opp. at 31).4 

Thus, regardless of whether the current system is serving the major parties well, it is 

exacerbating the challenges that most third parties face in attempting to raise their profiles, 

spread their message, and generate awareness of their federal candidates. To the extent that 

supporters such as Plaintiff Rufer wish to make contributions to a third party’s proposed IE-only 

account in excess of BCRA’s limits, that third party cannot realistically replace those foregone 

funds from other sources. Cf. FEC Opp. at 38-39. 

In short, BCRA’s restrictions are overbroad as applied to third parties’ proposed IE-only 

accounts, because the Court’s rationale for upholding contribution limits does not extend to 

contributions: (i) to political parties (rather than candidates), McCutcheon, 134 S. Ct. at 1452, 

(ii) which may be used exclusively to fund independent expenditures, Buckley, 424 U.S. at 47; 

Colorado I, 518 U.S. at 616. There is even less constitutional justification for applying the law 

 

4 McConnell held contributions to political parties raise special concerns because political parties 

“determine who will serve on legislative committees, elect congressional leadership, . . . organize 

legislative caucuses[,] . . . have influence and power in the legislature,” and “have special access 

to and relationships with federal officeholders.” McConnell, 540 U.S. at 188. None of those 

things are true about Plaintiffs LPIN or LNCC, or most other third-party political party 

committees. 

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to a third party that has not yet “manage[d] to elect . . . one of its members to federal office” who 

might be tempted to engage in quid pro quo corruption. McConnell, 540 U.S. at 159. 

BCRA’s overbreadth is the same for political parties as it is for PACs. In both cases, the 

Government has a valid anti-circumvention interest in limiting contributions, because the 

recipient may choose to contribute those funds to a federal candidate. In the context of PACs, 

however, this Court has recognized that contributions to a segregated IE-only account which the 

PAC may not use to directly or indirectly fund contributions to candidates do not raise the same 

concerns, and therefore may not be limited. In Carey, 791 F. Supp. 2d at 131, this Court held 

that “maintaining two separate accounts is a perfectly legitimate and narrowly tailored means to 

ensure no cross-over” between the PAC’s IE-only funds and its funds for campaign 

contributions.” It concluded, “As long as Plaintiff[] strictly segregate[s] these funds and 

maintain[s] the statutory limits on soliciting and spending hard money, [it is] free to seek and 

expend unlimited . . . funds geared toward independent expenditures.” Id. at 135; see also 

Emily’s List, 581 F.3d at 12 (holding that a “non-profit” that contributes to candidates 

nevertheless may accept unlimited funds to subsidize its independent expenditures so long as, “to 

avoid circumvention of individual contribution limits by its donors . . . its contributions to parties 

or candidates come from a hard-money account”). Thus, BCRA is not sufficiently tailored to 

furthering the Government’s important interests, and should be held unconstitutional as applied 

to IE-only accounts of either political parties in general, or third parties in particular. 

II. THIS COURT SHOULD REJECT THE FEC’S REMAINING ARGUMENTS

A. The FEC Misstates the Framers’ Views Toward Political Parties

The FEC opens its brief with an unwarranted broadside against political parties, bizarrely 

contending that, the Framers designed the Constitution “to restrain the power of political parties 

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because they viewed parties as a potential threat to representative governance” and a “special” 

source of “corruption.” FEC Opp. at 4. The FEC contends that the Framers agreed “about the 

baneful effects of the spirit of party,” id. (quoting Richard Hofstadter, The Idea of a Party System

3 (1970)). “When the Framers expressed hostility to political parties,” however, “they were 

voicing opposition to factionalism along the lines of quasi-permanent interest groups such as 

religions, classes, and states. They did not anticipate the ideological umbrella parties that would 

eventually come into being . . . .” Michael C. Dorf, Interpretive Holism and the Structural 

Method, or How Charles Black Might Have Thought About Campaign Finance Reform and 

Congressional Timidity, 92 GEO. L.J. 833, 848 (2004); John Harrison, Originalism and 

Historical Truth: Forms of Originalism and the Study of History, 26 HARV. J.L. & PUB. POL’Y 

83, 88 (2003) (“The framers knew nothing of parties as we know them and mainly disliked the 

proto-parties with which they were familiar.”). 

The FEC also discusses Alexander Hamilton’s opposition to “factions.” FEC Opp. at 4. 

“Although the framers thought deeply about the vices of ‘faction,’ the modern political party so 

greatly increases the formality and operative power of the eighteenth century faction as to 

amount to a different kind of institution.” Adrian Vermeule, The Constitutional Law of 

Congressional Procedure, 71 U. CHI. L. REV. 361, 384 (2004); see also Dean McSweeney & 

John Zvesper, American Political Parties 7 (1991) (recognizing that modern political parties are 

“parties of principle,” while Hamiltonian “factions” are “parties of interest”); Donald E. Daybell, 

Note, Guarding the Treehouse: Are States “Qualified” to Restrict Ballot Access in Federal 

Elections? 80 B.U. L. REV. 289, 321 (2000) (“The Founding Fathers were greatly concerned 

about the dangers of unrestrained factionalism. The factions they envisioned, however, bear 

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little resemblance to current political parties.”). Thus, the FEC’s arguments are based largely on 

anachronism, and do not suggest any constitutional hostility to political parties or their influence. 

“The formation of national political parties was almost concurrent with the formation of 

the Republic itself.” Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000). George 

Washington—who the FEC cites as an ardent opponent of political parties—was a Federalist. 

Steven G. Calabresi, Book Review, The President, the Supreme Court, and the Founding 

Fathers: A Reply to Professor Ackerman, 73 U. CHI. L. REV. 469, 477 (2006) (discussing 

“Federalist President[] George Washington”); John C. Yoo, War Powers: War and the 

Constitutional Text, 69 U. CHI. L. REV. 1639, 1657 (2002). And the very composition of the 

FEC itself is expressly based on political party. 2 U.S.C. § 437c(a)(1).

In any event, the Supreme Court has broadly recognized that people have the 

fundamental First Amendment right “to associate and to form political parties for the 

advancement of common political goals and ideas.” Timmons v. Twin Cities Area New Party, 

520 U.S. 351, 357 (1996); see also Tashjian v. Republican Party, 479 U.S. 208, 215 (1986) 

(affirming “the rights of the Party’s members under the First Amendment to organize with likeminded citizens in support of common political goals.”). And political parties themselves have a 

“core” First Amendment right to engage in independent expression in connection with federal 

elections. Colorado I, 518 U.S. at 616. Thus, the FEC’s hostility toward political parties is not a 

basis for rejecting Plaintiff’s claims, but rather precisely the type of anti-associational spirit from 

which this Court must protect Plaintiffs’ rights. 

B. This Court Should Not Decline to Grant Injunctive 

Relief Based on Winter’s “Non-Merits” Factors 

The FEC concludes its brief by suggesting that, even if this Court concludes that BCRA’s 

restrictions are unconstitutional (or likely unconstitutional) as applied to Plaintiffs’ IE-only 

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accounts, it nevertheless should be permitted to continue enforcing those unconstitutional 

requirements based on the “non-merits” requirements for injunctive relief set forth in Winter v. 

Natural Resources Defense Council, 555 U.S. 7 (2008). See FEC Opp. at 40-44. The FEC fails 

to cite even a single case to support the disquieting proposition that a federal agency may 

continue to enforce a statute against certain plaintiffs even if it is unconstitutional as applied to 

them.

1. Plaintiffs are Suffering Immediate and Irreparable Injury

In any event, Plaintiffs are suffering imminent injury because BCRA is preventing 

Plaintiffs LNCC and LPIN from establishing separate, segregated IE-only accounts, and Plaintiff 

Rufer from being able to make contributions to any such accounts (as he already has contributed 

the maximum legal amount to LNCC and LPIN for 2014). The Supreme Court has held that a 

plaintiff suffers constitutionally cognizable injury when he has the “intention to engage in a 

course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and 

there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 

298 (1979). 

The FEC points out that it has graciously refrained from threatening Plaintiffs in any 

way, FEC Opp. at 41, yet the lack of such threats is irrelevant. BCRA is not a desuetudinal law 

that has long gone unenforced. Cf. Poe v. Ullman, 367 U.S. 497, 501 (1961) (dismissing 

challenge to state law where, “[d]uring the more than three-quarters of a century since its 

enactment, a prosecution for its violation seems never to have been initiated”). To the contrary, 

the FEC vigorously enforces federal election laws, including BCRA. In 2013 alone, it closed 

134 enforcement cases and collected $730,390 in civil penalties. FEC, Performance and 

Accountability Report, Fiscal Year 23 (2013), available at

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http://www.fec.gov/pages/budget/fy2013/FEC_Final_PAR_2013_121613.pdf. The FEC does 

not claim that, should Rufer make such a statutorily prohibited contribution in excess of BCRA’s 

limits to a political party’s IE-only account, it would refrain from enforcing the statute against 

him or the party that established it. This threat of enforcement “amounts to an Article III injury 

in fact.” Susan B. Anthony List v. Driehaus, No. 13-193, 2014 U.S. LEXIS 4169, at *20 (June 

16, 2014). 

This injury literally is irreparable because Plaintiffs cannot sue the FEC for damages due 

to sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); see, e.g., Beverly v. FEC, 

No. 1:08-CV-1538 (AWI) (GSA), 2009 U.S. Dist. LEXIS 5699, at *2-3 (E.D. Cal. Jan, 28, 2009) 

(dismissing damages claims against FEC due to sovereign immunity). The Federal Tort Claims 

Act does not waive sovereign immunity for acts performed “in the execution of a statute . . . 

whether or not such statute . . . is valid.” 28 U.S.C. § 2680(a). When sovereign immunity 

prevents a plaintiff from recovering damages against an agency, even otherwise compensable 

harms are deemed irreparable. R.J. Reynolds Tobacco Co. v. United States FDA, 823 F. Supp. 

2d 36, 38 (D.D.C. 2011). Furthermore, it would be difficult to assign a monetary value to the 

harm Plaintiffs suffered from having to wait to engage in constitutionally protected conduct, see 

Carey v. Piphus, 435 U.S. 247, 264 (1978) (holding that plaintiffs must present proof of damages 

to recover compensatory damages for Due Process violations). Violations of such intangible 

rights therefore also give rise to irreparable harm. Douglas Laycock, The Death of the 

Irreparable Injury Rule, 103 HARV. L. REV. 688, 707-10 (1990); cf. Merrill Lynch, Pierce, 

Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1055 (4th Cir. 1985) (holding that harm can be 

irreparable due to “the impossibility of ascertaining with any accuracy the extent of the loss”). 

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2. The Balance of Harms Falls Entirely on Plaintiffs and 

the Public Interest Supports Granting an Injunction 

Turning to the remaining Winter factors, because BCRA’s restrictions are 

unconstitutional as applied to Plaintiffs, the balance of harms falls solely on them. See Carey, 

791 F. Supp.2d at 135. The FEC cannot suffer hardship from being enjoined from applying the 

law in an unconstitutional manner. Cf. id. (“The ‘First Amendment requires [courts] to err on the 

side of protecting political speech rather than suppressing it’”) (quoting Wisc. Right to Life, 551 

U.S. at 357). 

Additionally, granting the injunction is in the public interest. The D.C. Circuit has held

that “enforcement of an unconstitutional law is always contrary to the public interest.” Gordon 

v. Holder, 721 F.3d 638, 652 (D.C. Cir. 2013). Indeed, the public interest requires the 

enforcement of constitutional rights. See, e.g., Carey, 791 F. Supp. 2d at 136 (“The public 

interest is supported by protecting the right to speak, both individually and collectively. Here, to 

protect Plaintiffs’ right to engage in political speech through independent expenditure 

campaigning is fully in accord with the public’s interest in free speech and association.”). Thus, 

if this Court holds that BCRA is unconstitutional (or likely unconstitutional) as applied to 

Plaintiffs, it should grant Plaintiffs’ requested injunction. 

CONCLUSION

For these reasons, Plaintiffs respectfully request that this Court grant their motion for a 

preliminary injunction. 

Respectfully submitted, 

/s/ Michael T. Morley

Michael T. Morley, DC Bar #492716

COOLIDGE-REAGAN FOUNDATION

Case 1:14-cv-00837-CRC Document 14 Filed 06/18/14 Page 25 of 26
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1629 K Street, Suite 300

Washington, DC 20006

Phone: (860) 778-3883

Fax: (202) 331-3759

Michael@coolidgereagan.org

Danielle Frisa*

SHAHLA PC

708 Main Street, Suite 430

Houston, TX 77002

Phone: (713) 497-5133

Fax: (713) 904-2496

Danielle@shahlapc.com 

*Motion for admission pro hac vice

Forthcoming

Counsel for Plaintiffs Chris Rufer, Libertarian 

Party of Indiana, and Libertarian National 

Congressional Committee Inc.

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