UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 

______________________________________

)

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

INSTABILITY CAUSED BY DEMOCRATS, )

et al., )

) Judge Anthony John Trenga

Plaintiffs, )

)

v. ) Magistrate Judge Ivan D. Davis

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

______________________________________ )

MEMORANDUM IN OPPOSITION TO FEC’S 

MOTION FOR SUMMARY JUDGMENT

/s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

 /s/ Jerad Najvar* /s/ Dan Backer

 Jerad Najvar Dan Backer, Esq. 

 NAJVAR LAW FIRM Virginia State Bar # 78256

 4151 Southwest Freeway, Suite 625 DB CAPITOL STRATEGIES PLLC

 Houston, TX 77027 203 South Union Street, Suite 300

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

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

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

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

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

 forthcoming upon joinder Leadership Fund, and ARCC

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TABLE OF CONTENTS

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

LISTING OF UNDISPUTED FACTS ....................................................................................... 1

ARGUMENT ............................................................................................................................. 2

I. STOP PAC’S CLAIMS REMAIN JUSTICIABLE........................................................ 2

A. Stop PAC Has Standing to Challenge the Six-Month 

Waiting Period and Discriminatory Contribution Limits................................... 2

B. Stop PAC’s Claim is Not Moot .......................................................................... 4

II. THE FEC IS NOT ENITTLED TO SUMMARY JUDGMENT 

ON STOP PAC’S CHALLENGE TO THE DISCRIMINATORY 

CANDIDATE CONTRIBUTION LIMITS.................................................................... 6

A. The Supreme Court Has Never Considered the 

Specific Claim that Stop PAC is Asserting Here................................................ 6

B. Stop PAC Has Established that the Six-Month Waiting 

Period on Contributing the Maximum Statutorily Authorized 

Amount to a Candidate Violates the First Amendment...................................... 8

1. The FEC Has Failed to Establish That the Six-Month Waiting 

Period Furthers a Sufficiently Important Government Interest ............. 9

2. The FEC Has Failed to Establish That the Six-Month 

Waiting Period is a Reasonably Tailored Means of

Furthering a Sufficiently Important Government Interest .................... 13

3. The FEC’s Discussion of Stop PAC Simply 

Underscores the Fact that the Six-Month Waiting 

Period is Not a Reasonably Tailored Means of Furthering 

a Sufficiently Important Government Interest .................................... 15

C. Stop PAC Has Established that the Six-Month Waiting 

Period on Contributing the Maximum Statutorily Authorized 

Amount to a Candidate Violates the Equal Protection 

Component of the Fifth Amendment ................................................................ 18

III. THE FEC IS NOT ENITTLED TO SUMMARY JUDGMENT 

ON THE FUND’S CHALLENGE TO THE DISCRIMINATORY 

POLITICAL PARTY CONTRIBUTION LIMITS .................................................... 20

CONCLUSION......................................................................................................................... 22

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TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze, 

460 U.S. 780 (1983)........................................................................................................11

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) .............................................................................19

Buckley v. Valeo, 

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

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975) (en banc)....................................................................7, 11

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)..................................................................................................18, 19

Catholic Leadership Coalition of Tex. v. Reisman, 

No. 13-50582, 2014 U.S. App. LEXIS 15558 (5th Cir. Aug. 12, 2014) ................5, 6, 12

Citizens United v. FEC, 

558 U.S. 310 (2010)....................................................................................................3, 11

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996)........................................................................................................13

Douglas v. Brownell, 

88 F.3d 1511 (8th Cir. 1996) ..........................................................................................12

Dunn v. Blumstein, 

405 U.S. 330 (1972)..........................................................................................................5

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001)..........................................................................................................8

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

470 U.S. 480 (1985)........................................................................................................15

Honig v. Doe, 

484 U.S. 305 (1988)..........................................................................................................4

Lawrence v. Blackwell, 

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

Long Beach Area Peace Network v. City of Long Beach, 

574 F.3d 1011 (9th Cir. 2009) ........................................................................................12

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McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)....................................................................................8, 13, 14, 21

Moore v. Ogilvie, 

394 U.S. 814 (1969)..........................................................................................................5

Murphy v. Hunt, 

455 U.S. 478 (1982)..........................................................................................................4

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000)..........................................................................................................8

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

408 U.S. 92 (1972)..........................................................................................................18

Reynolds v. Middleton, 

No. 3:12-CV-779-JAG, 2013 U.S. Dist. LEXIS 148353 

(E.D. Va. Oct. 15, 2013)...................................................................................................1

Rosario v. Rockefeller, 

410 U.S. 752 (1973)..........................................................................................................5

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

219 U.S. 498 (1911)..........................................................................................................4

Storer v. Brown, 

415 U.S. 724 (1974)..........................................................................................................4

United States v. Diebold, Inc., 

369 U.S. 654 (1962) (per curiam).....................................................................................1

Veney v White, 

293 F.3d 726 (4th Cir. 2002) ..........................................................................................19

Wagner v. FEC, 

854 F. Supp. 2d 83 (D.D.C. 2012)..................................................................................19

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 

536 U.S. 150 (2002)........................................................................................................12

Statutes

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

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Other Authorities

78 FED. REG. 8,530, 8,532 (Feb. 6, 2013)...............................................................................2, 12

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STATEMENT OF DISPUTED FACTS

The numbering of the following paragraphs is based on the FEC’s Brief.

5. Stop PAC contributed $2,600 to Representative Joe Heck on July 7, 2014, and an 

additional $1,800 on October 3, 2014, after acquiring multicandidate status. 

9. Plaintiffs dispute that Campbell was the “policy director” for Niger Innis’ 

campaign. The record contains substantial evidence that Campbell was merely a “scribe” or a 

“writer” for the campaign. FEC Br. at 61 (citing Campbell Dep. 20:18-21:4, FEC Exh. 5; NIFC 

Dep. 31:10-21, 33:9-19, FEC Exh. 4). To the extent that conflicting evidence exists on this issue, 

all disputes must be resolved in favor of the non-movants (Plaintiffs) and against the FEC. 

Reynolds v. Middleton, No. 3:12-CV-779-JAG, 2013 U.S. Dist. LEXIS 148353, at *5 (E.D. Va. 

Oct. 15, 2013) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). 

 15. Stop PAC never claimed that “its use of ‘some of the same vendors’ would preclude

it [i.e., Stop PAC] from being deemed ‘independent’ of the Innis campaign.” Rather, as the 

discovery responses the FEC cites demonstrate, Stop PAC Disc. Resps. at 4, Interrog. 6, FEC Exh. 

2, Stop PAC’s actual assertion, which the FEC blatantly misstates in its brief, stated in relevant 

part:

Had Stop PAC desired to make independent expenditures in support, or on behalf, 

of Innis, federal law likely would have prohibited it from doing so, or imposed 

substantial burdens on its ability to do so, because Stop PAC uses some of the same 

vendors as Innis, which would preclude its communications in support, or on 

behalf, of Innis from being deemed “independent.” 

Id. (emphasis added). 

Thus, Stop PAC never questioned its own independence from the Innis campaign. Rather, 

Stop PAC opined that, under federal campaign finance law, any hypothetical “communications” it 

1 “FEC Br.” refers to Defendant Federal Election Commission’s Memorandum in Support of 

Motion for Summary Judgment,” Doc. #57-1 (Sept. 19, 2014). 

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made “in support, or on behalf, of Innis” might not be considered “independent” (meaning only 

that they would be deemed “coordinated expenditures” and count as contributions to the Innis 

campaign, subject to contribution limits, see 2 U.S.C. § 441a(a)(7)(C)). 

26. Plaintiffs do not believe that FECA permits Plaintiff Tea Party Leadership Fund 

(“the Fund”) “to give $20,000 to the NRSC right now”—a proposition for which the FEC’s brief 

does not cite any sources or authorities. It appears that the contribution limit is $15,000, and not 

indexed for inflation. See 2 U.S.C. § 441a(a)(2)(B). 

ARGUMENT

I. STOP PAC’S CLAIMS REMAIN JUSTICIABLE.

Stop PAC has challenged the six-month waiting period faced by political committees with 

more than 50 contributors, and that have contributed to five or more federal candidates, see 2 

U.S.C. § 441a(a)(4), before they are able to contribute the maximum statutory amount of $5,000 

per election to each candidate, compare 2 U.S.C. § 441a(a)(1)(A) (imposing $2,6002 per election 

limit on candidate contributions from such committees until they have been registered for six 

months), with id. § 441a(a)(2)(A) (imposing $5,000 per election limit on candidate contributions 

on such committees until they have been registered for six months). This claim remains justiciable. 

Section A demonstrates that Stop PAC has standing, while Section B shows that it has not become 

moot. 

A. Stop PAC Has Standing to Challenge the Six-Month 

Waiting Period and Discriminatory Contribution Limits

The FEC begins by asserting that Stop PAC lacks standing because “Stop PAC caused its 

own injury,” and therefore cannot trace its alleged injuries to the challenged statutes. FEC Br. at 

10. Stop PAC alleges two injuries. The first is Stop PAC’s inability to contribute the maximum 

2 Statutory figure adjusted for inflation. See 78 FED. REG. 8,530, 8,532 (Feb. 6, 2013).

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statutory amount of $5,000 per election to a candidate immediately upon obtaining 50 contributors 

and making contributions to five candidates. see 2 U.S.C. § 441a(a)(4) (requiring political 

committees that satisfy those requirements to wait six months before qualifying as “multicandidate 

PACs” and being subject to higher candidate contribution limits). 

The second injury is the disparate treatment to which Stop PAC was subjected; it was 

permitted to contribute only $2,600 per election to the candidates it supported throughout its sixmonth waiting period, but a materially identical committee that happened to be registered for more 

than six months was able to contribute $5,000 per election to the candidates it supported throughout 

that same timeframe. The fact that various primary elections occurred during that waiting period, 

in which Stop PAC was never permitted to contribute a total of $5,000 to the candidates it 

supported, merely exacerbates the consequences of the injuries. But the injuries themselves—the 

delay and the disparate treatment—are a direct result of federal law.

In any event, the FEC’s decision to effectively blame Stop PAC for failing to organize 

itself more than six months before the primaries flies in the face of its own proffered evidence. 

The FEC contends that “[o]n the dates of the last five general elections, there have been hundreds 

of active new PACs, i.e., PACs that were less than six months old,” including “464 new PACs at 

the time of the general election on November 5, 2012.” FEC Br. at 7. This data confirms the 

especially pernicious nature of the six-month waiting period. Most ordinary people are not 

especially interested in becoming involved in the political process until shortly before an election. 

See FEC Br. at 15 (“‘It is well known that the public begins to concentrate on elections only in the 

weeks immediately before they are held.’”) (quoting Citizens United v. FEC, 558 U.S. 310 (2010)). 

Thus, under federal law, entrenched, longstanding institutional interests may associate themselves 

with candidates through their contributions to the maximum statutorily authorized extent (i.e., by 

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contributing $5,000 per candidate). In contrast, members of the general public—the true 

grassroots—who are galvanized to action shortly before an election are effectively crippled by 

comparison, able to associate themselves with their favored candidates through their contributions 

to a far lesser degree. 

B. Stop PAC’s Claim is Not Moot

The FEC also contends that Stop PAC’s claim has become moot, since it “is no longer 

subject to the FECA provisions it challenges.” FEC Br. at 11. Stop PAC’s claims nevertheless 

remain justiciable because they are “capable of repetition, yet evading review.”3 S. Pac. Term. 

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

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

future. Murphy v. Hunt, 455 U.S. 478, 482 (1982). As Justices Scalia and O’Connor recognized, 

however, some of the Court’s “election law decisions differ from the body of [its] mootness 

jurisprudence . . . in dispensing with the same-party requirement entirely, focusing instead upon 

the great likelihood that the issue will recur between the defendant and the other members of the 

public at large without ever reaching [the Supreme Court].” Honig v. Doe, 484 U.S. 305, 335 

(1988) (Scalia, J., dissenting). 

Indeed, the Court repeatedly has reached the merits of election-related cases despite the 

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

prospect that the plaintiffs would again be subject to the challenged legal provisions. See, e.g., 

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

former political party members to run as independent candidates remained justiciable, even though 

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

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

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

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the election had occurred, and “no effective relief can be provided to the candidates or voters,” 

since “the issues properly presented, and their effects on independent candidacies, will persist as 

the California statutes are applied in future elections”); Rosario v. Rockefeller, 410 U.S. 752, 756 

n.5 (1973) (“Although the June primary election has been completed and the petitioners will be 

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

the petitioners raise is ‘capable of repetition, yet evading review.’”); Dunn v. Blumstein, 405 U.S. 

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

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

residence requirements is “capable of repetition yet evading review”); Moore v. Ogilvie, 394 U.S. 

814, 816 (1969).

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

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

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

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

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

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

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

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

its claim. 

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

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

case[].” Id. at *29. The court “focus[ed] instead upon the great likelihood that the issue will recur 

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

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

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

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

Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005). This case also involves a waiting 

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

continued justiciability. 

II. THE FEC IS NOT ENITTLED TO SUMMARY JUDGMENT 

ON STOP PAC’S CHALLENGE TO THE DISCRIMINATORY 

CANDIDATE CONTRIBUTION LIMITS 

A. The Supreme Court Has Never Considered the 

Specific Claim that Stop PAC is Asserting Here

The FEC contends that Buckley v. Valeo, 424 U.S. 1 (1976), forecloses Stop PAC’s claims 

because “the Supreme Court directly affirmed the constitutionality of the six-month period (and 

other qualifying criteria)” for achieving multicandidate PAC status. FEC Br. at 11-12. The 

sweeping, blunderbuss facial challenge of the Buckley plaintiffs was dramatically different than 

Stop PAC’s narrow, as-applied claim here. The Buckley plaintiffs apparently sought to dismantle 

the entire multicandidate PAC system; they brought a collective challenge to all of the 

qualification requirements, including the minimum number of required contributors, minimum 

number of supported candidates, and the registration period. Buckley, 424 U.S. at 35. Moreover, 

they did not claim that the requirements were collectively causing any similarly situated or 

materially identical groups to be treated differently. Finally, they did not contend that these 

requirements were unconstitutional as applied only to particular committees or groups. Rather, 

the Buckley plaintiffs broadly contended that “these qualifications unconstitutionally discriminate 

against ad hoc organizations in favor of established interest groups.” Id. 

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Here, in contrast, Stop PAC is specifically challenging only the six-month waiting period, 

and only as it applies to non-party, non-candidate committees that satisfy 2 U.S.C. § 441a(a)(4)’s 

other requirements. Moreover, Stop PAC is bringing an “apples-to-apples” claim. It argues that 

the Equal Protection Clause prohibits the government from subjecting a political committee that 

has been registered for less than six months to a lower candidate contribution limit than another 

committee that is materially identical in every way, except for the fact that it has been registered 

for more than six months. 

The reasoning underlying the rulings of both the Supreme Court and the D.C. Circuit on 

this issue demonstrate that their holdings do not apply to Stop PAC’s claims. The Court held that 

the challenged requirements for multicandidate PAC status collectively “serve the permissible 

purpose of preventing individuals from evading the applicable contribution limits by labeling 

themselves committees,” while permitting “bona fide groups to participate in the election process.” 

Buckley, 424 U.S. at 35-36 (emphasis added). Here, in contrast, Stop PAC seeks to extend the 

heightened candidate contribution limit of $5,000 per election solely to groups that, like the 

multicandidate PACs to which that heightened limit currently applies, have received more than 50 

contributions and contributed to at least five candidates. It contends that the six-month waiting 

period is unconstitutional as applied only to such entities. Thus, the very terms of Stop PAC’s 

claim ensure that “individuals,” Buckley, 424 U.S. at 35-36, groups of “two or three persons,” and 

“dummy committees . . . of a few persons,” Buckley v. Valeo, 519 F.2d 821, 857-58 (D.C. Cir. 

1975) (en banc), aff’d in part and rev’d in part, 424 U.S. 1 (1977), would remain barred from 

attempting to masquerade as a multicandidate PAC to take advantage of higher contribution limits. 

In short, Stop PAC’s narrow, as-applied challenge differs dramatically from the sweeping facial 

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challenge litigated in Buckley, and neither the reasoning nor the holdings of the D.C. Circuit or 

Supreme Court apply to Stop PAC’s claim, much less “control[]” it, FEC Br. at 12. 

B. Stop PAC Has Established that the Six-Month Waiting 

Period on Contributing the Maximum Statutorily Authorized 

Amount to a Candidate Violates the First Amendment

This Court should deny the FEC’s motion for summary judgment because Stop PAC has 

established that the First Amendment prohibits the Government from imposing a six-month 

waiting period on a political committee’s ability to exercise its fundamental First Amendment right 

to associate with the candidates it supports, to the maximum extent statutorily permitted, by 

contributing $5,000 per election to them. The FEC concedes that, because restrictions on political 

contributions burden First Amendment rights, they are subject to heightened constitutional 

scrutiny and are permissible only if “‘closely drawn’ to further an ‘important interest.’” FEC Br. 

at 12 (quoting Buckley, 424 U.S. at 25). It further acknowledges that the constitutionally valid 

interests that contribution limits may seek to promote are combatting either actual or apparent quid 

pro quo corruption, or circumvention of otherwise constitutionally valid limits. Id. (citing Buckley, 

424 U.S. at 26-27; McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014)). Finally, the FEC 

recognizes, however begrudgingly, that it must muster actual evidence to support its contention 

that the six-month waiting period both advances one of those interests, and is a reasonably tailored 

means of doing so. Id. (citing FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 

(2001) (“Colorado II”)); cf. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000) 

(holding that “mere conjecture” is inadequate to establish the constitutionality of restrictions on 

political contributions). 

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1. The FEC Has Failed to Establish That the Six-Month Waiting 

Period Furthers a Sufficiently Important Government Interest

The FEC is not entitled to summary judgment, because the six-month waiting period that 

certain committees face before being able to associate with the candidates they support by 

contributing the maximum statutorily permitted amount of $5,000 per election does not further an 

important government interest. The FEC flatly asserts that the six-month waiting period prevents 

“‘two or three persons’” from “‘acquiring’” a $5,000 candidate contribution limit “‘merely by 

organizing themselves’ as a ‘dummy’ political committee.” FEC Br. at 13-14 (quoting Buckley, 

519 F.2d at 857-58). Federal law provides, however, that a political committee must receive 

contributions from more than 50 people to qualify as a multicandidate PAC. 2 U.S.C. § 441a(a)(4). 

Thus, the FEC’s concern already is addressed by an entirely different provision of the statute—an 

independent and reasonable prophylaxis upon which the additional, unreasonable prophylaxis of 

a waiting period cannot rest. The six-month waiting period plays absolutely no role in ensuring 

that a multicandidate PAC subject to the heightened $5,000 candidate contribution limit is 

comprised of more than “two or three persons.” FEC Br. at 13-14 (quotation marks omitted). To 

the contrary, the only function of the six-month waiting period is to ensure that a political 

committee that has satisfied the other statutory requirements—that is, a committee with more than 

50 contributors (not just “two or three”), and that has contributed to five or more candidates—is 

required to wait for up to a half-year before being able to make the maximum statutorily authorized 

contributions to the candidates it supports. 

The FEC further contends that a “risk of circumvention” remains even after a political 

committee has received contributions from more than 50 people, and contributed to five or more 

candidates. FEC Br. at 14. It later reiterates that the six-month waiting period combats “the risk 

that a PAC is not a real multicandidate PAC and instead is simply a circumvention tool formed 

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by supporters of a particular candidate.” Id. at 15 (emphasis added). This sentence reveals the 

fundamental flaw at the heart of the FEC’s argument. The FEC believes that some political 

committees that have received more than 50 contributions and have contributed to at least five 

candidates are “real multicandidate PACs,” and others are mere “circumvention tools,” and the 

six-month waiting period somehow helps to distinguish or filter them. 

The FEC completely fails to explain, however, what it means when it contends that a 

political committee with more than 50 contributors, and that has contributed to at least five 

candidates, is a mere “circumvention tool.” Id. When the D.C. Circuit and Supreme Court spoke 

of the risk of circumvention, they were referring to the possibility that an “individual,” Buckley, 

424 U.S. at 35-36, group of “two or three persons,” or “dummy committee[] . . . of a few persons,” 

Buckley, 519 F.2d at 857-58, would “label themselves committees” in order to take advantage of 

the heightened contribution limits. An entity that has received contributions from 50 or more 

people, in contrast, is inherently a “bona fide group[]” comprised of over four dozen people (and, 

typically (as here), hundreds or thousands of people) who wish to collectively “participate in the 

election process,” Buckley, 424 U.S. at 35-36 (emphasis added). A person who contributes to a 

group of that nature is not improperly circumventing contribution limits, but rather furthering the 

collective mission of dozens, hundreds, or thousands of people beyond himself. Thus, it is a 

categorical error for the FEC to contend that some groups with over fifty contributors are not 

“real,” but rather fraudulent “circumvention tools.” FEC Br. at 15. The FEC’s purported desire 

to frustrate the efforts of such purported “circumvention tools” therefore is not a valid interest. 

The FEC points out that “[e]ven with the six-month period in place, PACs are often shortlived operations that proliferate just prior to elections and spend significant amounts of money, 

only to disappear before the next election.” FEC Br. at 16. It seems to be suggesting that a group 

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of 50 or more contributors that chooses to support five or more candidates in a single election is 

somehow more likely to be a “circumvention tool” than an identical group that chooses to support 

those same candidates over the course of several elections. Again, nothing in the D.C. Circuit’s 

or Supreme Court’s explanation of constitutionally legitimate circumvention concerns supports 

such an analysis. Buckley, 424 U.S. at 35-36; Buckley, 519 F.2d at 857-58. 

As both the Supreme Court and the FEC itself have expressly recognized, “‘It is well 

known that the public begins to concentrate on elections only in the weeks immediately before 

they are held.’” FEC Br. at 15 (quoting Citizens United v. FEC, 558 U.S. 310 (2010)). People’s 

decisions to join together in the months before an election to collectively further their shared 

political goals do not become suspect simply because the group dissipates in the two-year 

interregnum between federal elections. Under the FEC’s view, the longstanding, institutionalized 

power brokers deeply entrenched within the Beltway establishment are entitled to special 

consideration, while the upstart grassroots citizen groups that coalesce in the months leading up to 

elections to have their voices heard in response to an often unresponsive Government must be 

viewed with heightened skepticism. The Constitution does not allow Congress—which is 

comprised of incumbents with close ties to those institutionalized interests—to tilt the playing field 

in this manner. Cf. Anderson v. Celebrezze, 460 U.S. 780, 793-94 (1983) (“A burden that falls 

unequally on new or small political parties . . . impinges, by its very nature, on associational 

choices protected by the First Amendment. It discriminates against . . . those voters whose political 

preferences lie outside the existing political parties.”). 

The FEC also argues that a six-month waiting period is necessary in part because political 

committees can satisfy the other requirements for achieving multicandidate PAC status too 

“quickly.” FEC Br. at 15. It complains that, “but for the six-month period, Stop PAC would have 

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obtained the increased contribution limit in just over three weeks.” Id. It appears that the FEC is 

arguing either that the Government has an interest in promoting delay for its own sake, or that such 

delay inherently furthers the Government’s anti-corruption and anti-circumvention missions. The 

FEC completely misapprehends the nature of First Amendment rights. The Government generally 

may not force an entity to delay fully exercising its fundamental First Amendment rights of speech 

and association until the Government decides that it is permissible to do so—particularly when 

such a waiting period extends for a half-year. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., 

Inc. v. Vill. of Stratton, 536 U.S. 150, 167-68 (2002); Long Beach Area Peace Network v. City of 

Long Beach, 574 F.3d 1011, 1038 (9th Cir. 2009); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th 

Cir. 1996); see also Catholic Leadership Coalition of Tex. v. Reisman, No. 13-50582, 2014 U.S. 

App. LEXIS 15558, at *49 (5th Cir. Aug. 12, 2014). 

Additionally, the FEC has chosen to ignore the contradiction at the heart of its argument. 

It has neglected to explain why, if it has a constitutionally valid interest in limiting candidate 

contributions by certain political committees throughout the first six months of their existence, it 

simultaneously permits such entities to make increased contributions to political parties

throughout that same period. If the FEC truly fears that some of these newly registered committees 

are fraudulent “circumvention tools,” FEC Br. at 15, it completely defies logic to allow them to 

contribute roughly twice as much to national and state political party committees ($32,4004 and 

$15,000, respectively, see 2 U.S.C. § 441a(a)(1)(B), (D)), than multicandidate PACs that have 

been registered for more than six months ($15,000 and $5,000, respectively, see 2 U.S.C. §

441a(a)(2)(B), (C)). Thus, the FEC cannot credibly maintain that the six-month waiting period is 

4 Statutory amount adjusted for inflation. 78 FED. REG. 8,530, 8,532 (Feb. 6, 2013).

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a valid means of attempting to prevent circumvention, at least as applied to groups that have 

received more than 50 contributions and contributed to five or more candidates.

The FEC halfheartedly contends that the waiting period also promotes the Government’s 

interest in “campaign finance disclosure.” FEC Br. at 19-20. As the FEC’s brief itself implicitly 

recognizes, however, the Supreme Court has never held that the Government may impose a 

contribution limit, or otherwise limit First Amendment activities, to further an interest in 

promoting campaign finance disclosure. See FEC Br. at 12. To the contrary, far from being a 

basis for justifying contribution limits, the Supreme Court has held that disclosure requirements 

“often represent[] a less restrictive alternative” than direct limits on constitutionally protected 

activities the Government may use to prevent actual or apparent quid pro quo corruption and 

circumvention. McCutcheon, 134 S. Ct. at 1460. In any event, imposing upon political committees 

a six-month waiting period for making larger candidate contributions is an odd way of furthering

any governmental interest in obtaining more information from those committees.5

 

2. The FEC Has Failed to Establish That the Six-Month 

Waiting Period is a Reasonably Tailored Means of

Furthering a Sufficiently Important Government Interest 

Even if this Court accepts the FEC’s contention that, as a matter of law, the six-month 

waiting period furthers its interest in preventing circumvention of otherwise valid candidate 

5 Moreover, a six-month waiting period is a patently overbroad means of attempting to further any 

disclosure interests the FEC might have. If the FEC is concerned that a committee will be able to 

qualify for multicandidate PAC status before it has “file[d] at least one disclosure report,” FEC Br. 

at 19, the logical and much more appropriately tailored solution would be to require that an entity 

that has not previously filed any disclosure reports submit such a report along with its Form 1-M 

when applying for multicandidate PAC status. Likewise, if the FEC is concerned that “dummylike PAC[s]” might form and qualify as multicandidate PACs during the “nearly three-week preelection window,” the logical and much more appropriately tailored solution would be to require 

new multicandidate PACs to file a report at some point during that period. Imposing a blanket sixmonth waiting period is an unacceptably “attenuated” means of facilitating greater disclosure. 

Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996) (“Colorado I”).

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contribution limits, this Court still should deny the FEC’s motion for summary judgment because 

the waiting period is a grossly overbroad means of doing so. To be sufficiently “closely drawn” 

to survive heightened scrutiny, a restriction on political contributions must not “unnecessar[ily] 

abridg[e]” First Amendment rights. Buckley, 424 U.S. at 25. Because contribution limits 

“themselves are a prophylactic measure,” a court must be “particularly diligent in scrutinizing” 

other “prophylaxis-upon-prophylaxis” restrictions on political contributions. McCutcheon, 134 S. 

Ct. at 1458 (quotation marks omitted). 

The FEC speculates that some political committees with more than 50 contributors and that 

have contributed to five or more candidates, but that have been registered for less than six months, 

are not “real multicandidate PACs,”—whatever that means6

—but rather “circumvention tools.” 

FEC Br. at 15. Rather than attempting to determine which of those committees actually are mere 

“circumvention tools” based on the voluminous data all committees are legally required to report 

to the FEC, however, the FEC instead seeks to defend a blunderbuss, categorical, prophylactic sixmonth waiting period on all of them. 

This is the very opposite of a reasonable tailoring. To the contrary, the waiting period 

reflects absolutely no tailoring—it applies to all committees (including those with more than 50 

contributors, and that have contributed to five or more candidates), regardless of the actual threat 

or risk each may pose. In order to prevent some ill-defined form of “circumvention,” the waiting 

period limits the First Amendment rights of all such political committees for half a year. Thus, 

the waiting period is not a reasonably tailored means of targeting purportedly fraudulent or sham 

“circumvention tools.” Instead, the waiting period is simply a law that, because it applies to all 

committees, simply might happen to apply to purportedly sham committees. Cf. Citizens United, 

6 Neither the U.S. Code nor the FEC’s regulations presently define the term “real multicandidate 

PAC.” 

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558 U.S. at 362 (holding that the Government may not prohibit independent expenditures from all 

corporations as a means of “preventing foreign individuals or associations from influencing our 

Nation’s political process”); FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 

498 (1985) (“NCPAC”) (invalidating prohibition on independent expenditures by PACs because, 

“[e]ven were we to determine that the large pooling of financial resources [by PACs] did pose the 

potential for corruption or the appearance of corruption,” the challenged statute was “not limited 

to multimillion dollar war chests,” but rather “appl[ied] equally to informal discussion groups that 

solicit neighborhood contributions”). 

Moreover, at the end of the six-month waiting period, every non-candidate, non-party 

committee with more than 50 contributors, and that has contributed to at least five candidates is 

automatically entitled to claim multicandidate PAC status, see 2 U.S.C. § 441a(a)(4), and 

heightened candidate contribution limits, id. § 441a(a)(2)(A), regardless of how suspicious or 

concerning their conduct may be. To the extent the FEC is concerned that some entities with more 

than 50 contributors and that have contributed to at least five candidates are sham “circumvention 

tools,” FEC Br. at 15, nothing about reaching that six-month mark would affect their purportedly 

fraudulent nature. Thus, it is difficult to understand how a six-month waiting period is a reasonably 

tailored attempt to frustrate the efforts of purportedly sham or illegitimate groups—particularly as 

applied to non-candidate, non-party committees that have received contributions from more than 

50 people, and contributed to five or more candidates. 

3. The FEC’s Discussion of Stop PAC Simply Underscores the Fact that 

the Six-Month Waiting Period is Not a Reasonably Tailored Means of

Furthering a Sufficiently Important Government Interest 

The FEC argues that “[t]he Court need not look beyond the parties to this case for a 

paradigmatic example of the risks that a candidate’s supporters might establish dummy PACs to 

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bootstrap the $5,000 limit, were it not for the six-month period.” FEC Br. at 16. It points out that 

Stop PAC’s founder and chairperson, Greg Campbell, formed the committee during the 2014 

primary season, and did some paid political writing work for Niger Innis’ congressional campaign. 

See id. at 16-17; cf. supra, “Statement of Disputed Facts,” ¶ 9. 

Undersigned counsel Dan Backer encouraged Campbell to start Stop PAC. FEC Br. at 16-

17. Backer, a practicing campaign finance attorney who serves as outside counsel and treasurer 

for numerous political and candidate committees, was outside counsel and treasurer for Innis’ 

campaign at the time, and Campbell secured his volunteer services as Stop PAC’s outside counsel 

and treasurer. Id. at 17. During the campaign, Backer, Campbell, and Innis all attended the same 

fundraiser hosted by Sheldon Adelson. Id. Later, Stop PAC contributed the maximum statutory 

amount of $2,600 to Innis. Id. Having recounted these facts, the FEC triumphantly concludes, 

“This scenario illustrates precisely the risk of potential circumvention that Congress intended the 

six-month ‘protective shield’ to guard against.” Id. at 17-18. 

This discussion of Stop PAC does nothing to demonstrate the constitutionality of the sixmonth waiting period. First, although the FEC is apparently attempting to cast aspersions on the 

allegedly “extraordinarily close ties” among Stop PAC, Campbell, Backer, and Innis, FEC Br 

at 16, it does not actually contend that anyone violated any federal laws or regulations. Instead, it 

seeks to bolster its case through insinuation, innuendo, and implications of wrongdoing. Id. at 18 

n.14 (speculating that Stop PAC “may be an authorized committee of . . . the Innis campaign”).7

7 The FEC has attempted to bolster its failing argument by misstating Stop PAC’s testimony about 

its relationship with the Innis campaign. The FEC falsely contends that “Stop PAC itself stated 

that it feared it would not be considered legally ‘independent’ of the Innis campaign” if it made 

expenditures concerning him. FEC Br. at 17 (citing FEC Facts ¶ 15). Stop PAC’s actual assertion

states in relevant part:

Had Stop PAC desired to make independent expenditures in support, or on behalf, 

of Innis, federal law likely would have prohibited it from doing so, or imposed 

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If these purportedly “close ties” violate federal law or FEC regulations, then the FEC can achieve 

its anti-circumvention interests much more directly, and in a much more tailored fashion, by 

enforcing those laws or regulations—steps it has not taken. If these purportedly “close ties” do 

not violate federal law or FEC regulations, then the FEC lacks a valid interest in attempting to 

hinder the constitutionally protected activities of these people and groups by imposing an 

artificially low contribution limit for six months. 

Second, if the FEC claims an interest in scrutinizing or regulating “close ties” between a 

political committee and a candidate, a blanket six-month waiting period that does not even attempt 

to take into account whether any concerning ties exist between a political committee and a 

candidate is a ridiculously overbroad means of doing so. Rather than being tailored in any way to 

entities that raise potential concerns, the six-month waiting period simply applies to all political 

committees; such a dragnet is the very antithesis of tailoring. 

Third, had Innis won his primary election, Stop PAC presently would be permitted to 

contribute $5,000 to him for the general election (since its waiting period has expired). All of the 

FEC’s purported concerns about the relationship among Stop PAC, Backer, Campbell, and Innis 

remain. Yet because Stop PAC satisfies the statutory requirements for qualifying as a 

multicandidate PAC (including expiration of the six-month waiting period), see 2 U.S.C. 

§ 441a(a)(4), it could now contribute the maximum statutory amount to Innis. Again, to the extent 

substantial burdens on its ability to do so, because Stop PAC uses some of the same 

vendors as Innis, which would preclude its communications in support, or on 

behalf, of Innis from being deemed “independent.” 

Stop PAC Disc. Resps. at 4, Interrog. 6, FEC Exh. 2 (emphasis added). 

 Thus, Stop PAC never questioned its own independence from the Innis campaign. Rather, it 

merely expressed concern about whether any communications it made in support of Innis would 

be deemed “independent expenditures” or coordinated expenditures under federal law. 

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the FEC contends that Stop PAC’s actions demonstrate the need for the waiting period, it is an 

exceedingly poorly crafted means of achieving the FEC’s increasingly ephemeral goals. 

C. Stop PAC Has Established that the Six-Month Waiting 

Period on Contributing the Maximum Statutorily Authorized 

Amount to a Candidate Violates the Equal Protection 

Component of the Fifth Amendment

The FEC is not entitled to summary judgment on Stop PAC’s Equal Protection claims. 

Stop PAC challenges the fact that, under federal law, a non-party, non-candidate committee with 

more than fifty contributors, and that has contributed to five or more candidates, but has been 

registered for less than six months, may contribute only $2,600 per election to a candidate, 2 U.S.C. 

§ 441(a)(1)(A), while a materially identical committee that has been registered for more than six 

months may contribute $5,000 per election to a candidate, id. § 441(a)(2)(A). The FEC begins by 

contending that this distinction is subject only to “rational basis scrutiny,” because “this case 

involves no suspect class or fundamental right.” FEC Br. at 26. 

This argument is irreconcilable with the FEC’s earlier concession that contribution limits 

are subject to “an intermediate level of scrutiny” precisely because they burden the fundamental 

First Amendment right of freedom of association (and, to a far lesser extent, freedom of speech). 

FEC Br. at 12 (citing Buckley, 424 U.S. at 20, 25). The FEC cannot disclaim these positions for 

Equal Protection purposes. Moreover, the Supreme Court has expressly held that “a selective 

restriction on expressive conduct” is unconstitutional if it is “far greater than is essential to the 

furtherance of a [substantial] interest.” Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 

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

that a contribution limit “violates the equal protection component of the Fifth Amendment,” if it 

“burdens the First Amendment rights of [some] persons . . . to a greater extent than it burdens the 

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same rights” of comparable entities, and “such differential treatment is not justified”).

8

 Because 

contribution limits burden First Amendment rights, discriminatory limits are subject to heightened 

scrutiny under the Equal Protection Clause. 

The FEC also attempts to deflect Stop PAC’s Equal Protection argument by pointing out 

that campaign finance law imposes different limits for different types of entities, such as 

individuals, political committees, corporations, and foreign nationals. FEC Br. at 23. Plaintiffs 

do not dispute the underlying point that the Equal Protection Clause permits different types of 

entities to be treated differently, as the CalMed Court properly concluded, 453 U.S. at 200. This 

does not undermine their argument, however, that the current contribution limits impermissibly 

discriminate among materially identical committees, by imposing different limits based solely on 

the length of time they have been registered with the FEC. Unless distinguishing between 

committees with fifty contributors, that have contributed to five or more candidates, and that have 

been registered for less than six months on the one hand, and such committees that have been 

registered for more than six months on the other hand, is a reasonably tailored means of furthering 

a sufficiently important interest, this Court must invalidate the discriminatory limits.

The FEC points out that “Stop PAC” and Plaintiff Fund “are radically different,” and then 

leaps to the conclusion that “[n]ew and multicandidate PACs are therefore not similarly situated.” 

FEC Br. at 25. Plaintiffs do not contend that every single recently registered political committee 

8 The FEC cites Blount v. SEC, 61 F.3d 938, 946 n.4 (D.C. Cir. 1995), for the proposition that 

Equal Protection challenges to contribution limits are subject to only rational-basis scrutiny. The 

D.C. Circuit expressly noted, however, that the Petitioner simply “toss[ed] into his opening brief 

a footnote” raising the Equal Protection issue. In Wagner v. FEC, 854 F. Supp. 2d 83, 96 (D.D.C. 

2012), in contrast, where the plaintiff squarely and fully raised the Equal Protection issue, the court 

properly held, “[T]o survive an equal protection challenge, § 441c’s ban on contributions by 

federal contractors must be closely drawn to match a sufficiently important interest.”) (quotation 

marks omitted), vacated on jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013).

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with fifty contributors that has contributed to five or more candidates, is materially identical to 

every single multicandidate PAC. Rather, Plaintiffs challenge the distinction drawn in the law 

itself, 2 U.S.C. § 441a(a)(4). A committee that has more than fifty contributors and has contributed 

to five or more candidates, but has been registered for less than six months, is “similarly situated” 

to a committee with the same number of contributors, that supports the same number of candidates 

(indeed, perhaps the very same candidates), engages in the same activities, and has the same goals, 

but has been registered for more than six months, yet is subject to substantially different 

contribution limits. Veney v White, 293 F.3d 726, 730-31 (4th Cir. 2002) (quoted in FEC Br. at 

24). That is the impermissible discrimination, permitted by federal law, Plaintiffs challenge. 

Unlike in CalMed, it is impossible to contend that these two groups of committees “have differing 

structures and purposes” and therefore “require different forms of regulation.” 453 U.S. at 201.

As discussed earlier in this Memorandum, the distinction drawn by the six-month waiting 

period cannot survive heightened constitutional scrutiny, because it neither furthers an important 

government interest nor is closely drawn to promoting any such interest. Thus, it fails Equal 

Protection scrutiny, as well, and the FEC’s request for summary judgment should be denied. 

III. THE FEC IS NOT ENITTLED TO SUMMARY JUDGMENT 

ON THE FUND’S CHALLENGE TO THE DISCRIMINATORY 

POLITICAL PARTY CONTRIBUTION LIMITS 

The FEC is not entitled to summary judgment on the Fund’s challenge to the discriminatory 

limits on contributions to political party committees. As noted earlier, a central deficiency with 

the FEC’s argument is that it has failed to explain why, once an entity with the requisite number 

of contributors and that has made the required number of contributions reaches its six-month mark, 

the amount it may contribute to a candidate nearly doubles, while the amount it may contribute to 

a political party committee gets slashed in roughly half. Such disparate treatment cannot survive 

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any form of heightened constitutional scrutiny. Especially since the FEC spends most of its brief 

justifying the six-month waiting period on candidate contributions by explaining the risks of 

corruption and circumvention that newly formed political committees purportedly pose, the FEC 

cannot credibly contend that established entities with a track record of being bona fide “broadbased citizen interest groups” may be permitted to contribute less than such entities to political 

party committees. FEC Br. at 25. 

Finally, the FEC argues that permitting multicandidate PACS to contribute less to party 

committees than recently formed PACs is necessary to “allow[] parties to maintain their important 

role in the political system” and to recognize the “important role that individuals play in funding 

political-party activity.” Id. at 28. As an initial matter, neither of these justifications are a 

constitutionally sufficient reason for imposing contribution limits. As discussed earlier, the Court 

has held that contribution limits are permissible only if they are reasonably tailored to combatting 

actual or apparent quid pro quo corruption or circumvention of otherwise valid limits. Buckley, 

424 U.S. at 26-27; McCutcheon, 134 S. Ct. at 1441. Thus, the FEC’s rationales for upholding the 

reduction in political party contribution limits for multicandidate PACs fail as a matter of law. 

Moreover, the FEC’s explanation is tautological. The only reason that individuals play an 

“important role . . . in funding political-party activity,” FEC Br. at 28, is because the FEC allows 

them to contribute twice as much. The FEC cannot defend the constitutionality of discriminatory 

contribution limits by explaining that they are necessary to preserve the current system. Thus, the 

FEC has failed to establish that it is entitled to summary judgment on the Fund’s challenge to 

political party contribution limits. 

CONCLUSION

For these reasons, this Court should DENY the FEC’s Motion for Summary Judgment. 

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Respectfully submitted, 

October 3, 2014 /s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

/s/ Jerad Najvar* /s/ Dan Backer

Jerad Najvar Dan Backer, Esq. 

NAJVAR LAW FIRM Virginia State Bar # 78256

4151 Southwest Freeway, Suite 625 DB CAPITOL STRATEGIES PLLC

Houston, TX 77027 203 South Union Street, Suite 300

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

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

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

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

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

forthcoming upon joinder Leadership Fund, and ARCC

CERTIFICATE OF SERVICE

I, Dan Backer, hereby certify that on this 3rd day of October 2014, I did cause a true and 

complete copy of the foregoing Plaintiffs’ Memorandum in Opposition to FEC’s Motion for 

Summary Judgment to be served via electronic mail on:

/s/ Dan Backer

Dan Backer

Virginia State Bar # 78256

Attorney for Plaintiffs

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