UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SPEECHNOW.ORG, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

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 Civil Action No. 08-0248 (JR)

MEMORANDUM ORDER

In this as-applied challenge, plaintiffs assert that it

is unconstitutional to require groups making only “independent

expenditures” to observe the contribution limits applicable to 

political committees regulated by the Federal Election

Commission, 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). Plaintiffs

seek to enjoin the Commission from enforcing these contribution

limits against them. For the reasons explained below,

plaintiffs’ motion for preliminary injunction [Dkt. 2] is denied.

I. Background

A. Plaintiffs’ planned activities

SpeechNow.org is an unincorporated non-profit

association organized under the District of Columbia Uniform

Unincorporated Nonprofit Associations Act, D.C. Code § 29-971.01

et seq., and a registered “political organization” under Section

527 of the Internal Revenue Code. Compl. at ¶ 7. The following

individuals join SpeechNow in bringing this suit: David Keating,

SpeechNow’s president and treasurer; Edward H. Crane, III, a

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member of SpeechNow; and Fred M. Young, Jr., Brad Russo, and

Scott Burkhardt, three prospective donors to SpeechNow.

SpeechNow was founded for the purpose of “expressly

advocating the election of candidates who support rights to free

speech and association and the defeat of candidates who oppose

those rights, particularly by supporting campaign finance laws.”

Compl. at ¶ 8. SpeechNow’s bylaws require that it be funded

solely by donations from private individuals, and not from unions

or corporations. Under its bylaws, SpeechNow may not make

contributions or donations to FEC-regulated candidates or

political committees and may not “coordinate” its activities, as

defined in 2 U.S.C. § 441a(a)(7)(B) and 11 C.F.R. Part 109, with

candidates, or national, state, and local political parties.

Keating Decl., Ex. E. [Dkt. 2, Ex. 3].

SpeechNow says that its goal is to run political

advertisements during the 2008 election and in future election

cycles. At the time the instant motion was heard, however, all

of SpeechNow’s activities had been focused on the prosecution of

this test case. It says that it has scripts for four television

ads. Two of the ads call for the defeat of Dan Burton, a fourterm Republican Congressman from Indiana currently running for

re-election. The audio script for the first Burton ad reads, in

part, that:

[P]oliticians like Dan Burton don’t like

free speech. Burton voted for a bill to

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restrict the speech of many public interest

groups. Under this bill you could go to

jail for criticizing politicians.

Hey Dan Burton. This is America, not

Russia.

But we still have the right to vote. Say

no to Burton for Congress. Say no to

censorship.

Id., Ex. F. The second Burton ad proceeds along similar lines,

stating that “Dan Burton voted to restrict our rights. Don’t let

him do it again.” Id. The third and fourth ads target Mary

Landrieu, a Democratic Senator running for re-election in

Louisiana. One urges voters to “Say no to Landrieu for Senate.”

The other intones that “Our founding fathers made free speech the

First Amendment to the Constitution. Mary Landrieu is taking

that right away. Don’t let her do it again.” Id.

Plaintiffs submitted declarations to the effect that

David Keating would give $5,500 to SpeechNow for the production

and broadcast of these advertisements; that Edward Crane would

give $6,000; that Richard Marder would donate $5,500; and that

Fred Young would give $110,000. [Dkt. 2, Ex. 3]. None of these

donations have in fact been made, however, because, under

longstanding provisions of the Federal Election Campaign Act

(“FECA”), 2 U.S.C. §§ 431-55, donors to SpeechNow would be

subject to an annual contribution limit of $5000 per person, 2

U.S.C. § 441a(a)(1)(C), and biennial aggregate limits of $42,700

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 3 of 28
 The exact dollar amounts of the biennial limits are not 1

fixed by statute but are instead adjusted in odd-numbered years

to account for inflation. See 11 C.F.R. § 11.05(b).

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for combined contributions to political committees and political

parties and $108,200 for combined contributions to candidates,

political parties, and political committees. 2 U.S.C.

§ 441a(a)(3). Brad Russo and Scott Burkhardt say that they would 1

be willing to contribute $100 each, but they have not done so,

because, since SpeechNow.org is unable to accept donations above

$5000, “it cannot operate at all and thus cannot accept donations

even below the contribution limits.” Mot. for Prelim. Injunc. at

6.

B. Legal Framework

Plaintiffs contend that limiting the dollar amounts

that can be contributed to independent expenditure committees,

that is, to groups that fit the definition of FEC-regulated

“political committees” but make only “independent expenditures,”

violates the First Amendment.

“Independent expenditures,” in FECA-speak, “expressly

advocat[e] the election or defeat of a clearly identified

candidate” but are “not made in concert or cooperation with or at

the request or suggestion of such candidate, the candidate’s

authorized political committee, or their agents, or a political

party committee or its agents.” 2 U.S.C. § 431(17). Persons

making independent expenditures have relatively limited

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 4 of 28
 FECA defines “expenditures” and “contributions” as 2

spending and fundraising “for the purpose of influencing any

election for Federal office.” 2 U.S.C. §§ 431(8)(A)(I);

431(9)(A)(I).

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disclosure obligations if they are not political committees.

Essentially, they need only give timely notice to the FEC of

expenditures that are made shortly before election day. 2 U.S.C.

§ 434(g).

More extensive reporting and disclosure obligations are

imposed on “political committees,” defined as “any committee,

club, association, or other group of persons which receives

contributions aggregating in excess of $1,000 during a calendar

year or which makes expenditures aggregating in excess of $1,000

during a calendar year.” 2 U.S.C. § 431(4)(A). In Buckley v. 2

Valeo, 424 U.S. 1 (1976), the Supreme Court construed this

definition narrowly, holding that the term “political committee”

“only encompass[es] organizations that are under the control of a

candidate or the major purpose of which is the nomination or

election of a candidate.” 424 U.S. at 79. Given that

SpeechNow’s stated purpose is to finance advertisements that call

for the election or defeat of candidates for federal office,

plaintiffs concede that if SpeechNow were to accept more than

$1000 in donations, it would become an FEC-regulated political

committee. Compl. at ¶¶ 39-40.

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Political committees are required to register with the

Federal Election Commission and file regular reports publicly

disclosing all receipts and disbursements that exceed $200 per

person per annum, as well as total operating expenses and cash on

hand. 2 U.S.C. §§ 433-434. In addition, political committees

are required to disclose, for every independent expenditure over

$200, the date, amount, and candidates supported or opposed. 2

U.S.C. §§ 434(b)(4)(H)(iii), (6)(B)(iii). In all of their public

communications, political committees must identify themselves

through specific disclaimers. 11 C.F.R. §§ 110.11(a)(1),(2).

Although plaintiffs’ complaint broadly challenges the

constitutionality of applying the registration, reporting, and 

disclosure requirements for political committees to SpeechNow,

the motion for preliminary injunction that is now before me

focuses solely on the contribution limits that would be

applicable to SpeechNow and its donors. Again, the annual limit

on contributions to a non-party, non-candidate political

committee is $5000, and biennial limits are imposed on donors’

total giving to all political committees, candidates, and

political parties. 2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(3).

There is nothing new about these requirements. Both

the general regulatory framework for political committees and the

contribution limits that they must observe have been on the books

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 6 of 28
 The registration and reporting requirements contained at 3

2 U.S.C. §§ 432, 433, and 434, and the definition of political

committees contained at 2 U.S.C. § 431(4) were passed as part of

the original Federal Election Campaign Act of 1971, Pub. L. No.

92-224, §§ 301-306, 86 Stat. 3, 11-16 (Feb. 7 1972). The

contribution limits at 2 U.S.C. §§ 441a(a)(1)(C) and

441a(a)(3)(B) were enacted as amendments to FECA in 1974 and

1976. Pub. L. No. 93-443, § 101, 88 Stat. 1263 (Oct. 15, 1974);

Pub. L. No. 94-283, § 112(2), 90 Stat. 475 (May 11, 1976).

 “Soft money” included donations to “non-federal” or mixed 4

federal-nonfederal accounts of national parties as well as

contributions to state parties to fund activities that aided

federal candidates but were deemed outside of FECA’s scope

because they did not involve coordinated expenditures or

contributions, or express advocacy on behalf of federal

candidates. See Richard Briffault, The 527 Problem . . . and the

Buckley Problem, 73 Geo. Wash. L. Rev. 949, 962 (2005). For

example, ads funded with soft money could mention the names of

federal candidates so long as they stopped short of expressly

calling for that candidate’s election or defeat. See FEC

Advisory Op. 1995-25.

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for decades. What has changed, however, is the context in which 3

these provisions operate. In 2002, Congress passed the

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, 116

Stat. 81, the chief effect of which was to prohibit national

political parties and their agents from soliciting, receiving, or

spending so-called “soft money” – contributions of unlimited size

from corporations, unions, and individuals that were not subject

to FECA’s requirements and prohibitions. In McConnell v. FEC, 4

540 U.S. 93 (2003), the Supreme Court upheld the ban on soft

money and the other major provisions of BCRA that were intended

to prevent contributors from circumventing the ban. It was after

BCRA, and after McConnell, that a number of new “Section 527

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groups” were formed and began overtly spending money to influence

federal elections, particularly the 2004 presidential campaign.

Named after the section of the Internal Revenue Code

under which they are organized, 527 groups are “political

organizations” that have as their primary purpose “influencing or

attempting to influence the selection, nomination, election or

appointment of any individual” to federal, state, or local

office. 26 U.S.C. § 527(e). Section 527 groups “by definition

engage in partisan political activity.” McConnell, 540 U.S. at

177. All FECA political committees register with the IRS as 527

groups in order to establish their non-profit tax status, but not

all 527 groups are FECA political committees. For example, a 527

focusing only on state and local races would not be required to

register as a political committee with the FEC. Following the

enactment of BCRA’s ban on soft money, the gulf between 527

political organizations that are regulable as FECA political

committees and those that are not gained real significance.

Federal law places no limit on donations to the latter, while the

former are bound by FECA’s $5000 annual contribution limit.

With the passage of BCRA, the money flowing through

federal 527s rose significantly – up from $151 million in 2002 to

$424 million in 2004. Steve Weissman & Ruth Hassan, BCRA and the

527 Groups at 81, in THE ELECTION AFTER REFORM: MONEY, POLITICS, AND THE

BIPARTISAN CAMPAIGN REFORM ACT (Michael J. Malbin ed. 2005). More than

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 8 of 28
 Thomas B. Edsall, Democrats’ Financing Plan Challenged, 5

Watchdog Groups File Complaint with FEC Over Party’s ‘Soft Money’

Network, WASH. POST at A4 (Jan. 16, 2004) (“The shadow party is a

network of organizations established to fill the vacuum created

by the McCain-Feingold law's ban on party-raised "soft money," or

large contributions from corporations, unions and rich

individuals. . . . The organizations in the shadow party include

America Coming Together, run by former AFL-CIO political director

Steve Rosenthal; the Media Fund, run by former Clinton aide

Harold Ickes; and America Votes, run by Cecile Richards, former

aide to House Democratic leader Nancy Pelosi[.]”).

 Editorial, Check Writing in the Luxury Suites, N.Y. TIMES 6

at A18 (Aug. 31 2004); Lisa Getter, The Race to the White House:

Legal Roles in Campaigns Put Spotlight on Shadow Groups, L.A.

TIMES at A20 (Aug. 26, 2004).

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two-thirds of the 527 money spent in 2004 was raised by newly

created organizations. Id. at 83. These millions were generally

not being raised by political novices. Weissman and Hassan’s

detailed study concludes that “[d]uring the 2004 cycle, the two

major parties, including their leading paid consultants and

active notables, were involved, in varying degrees, in the

creation, operation, or funding of several prominent 527 groups.”

Id. at 84. Indeed, partisan operatives were so involved in the

founding and leadership of these groups that some in the popular

press referred to them as “shadow parties” or “shadow groups.” 5 6

In 2004, 24 individual donors gave a total of $142

million to 527 groups. Id. at 92. Professor Briffault notes

that this amount “is roughly equal to the aggregate of $149.2

million in public funds provided to the two presidential nominees

for the general election campaign.” Briffault, The 527 Problem,

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 9 of 28
 See, e.g., FEC Conciliation Agreement with Swift Boat 7

Veteran and POWs for Truth (MURs 5511 and 5525) (Dec. 2006); FEC

Conciliation Agreement with Progress For America Voter Fund (MUR

5487)(Feb. 2007); FEC Conciliation Agreement with The Media Fund

(MUR 5440) (Nov. 2007); FEC Conciliation Agreement with America

Coming Together (MUR 5403 and 5466) (Aug. 2007). All of these

documents are available at http://eqs.nictusa.com/eqs/searcheqs.

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73 Geo. Wash. L. Rev. at 964. In other words, two dozen

“megadonors” used 527s as a vehicle to funnel almost as much

money into the 2004 election as the entire American public

contributed via public funding. Id.

In 2004, 113 individuals contributed at least $250,000

to 527 groups. Two-thirds of this group had previously been

active soft money donors, contributing $50 million to national

parties during the 2000 and 2002 election cycles and another $4

million to 527s in 2002. Weissman & Hassan at 93. The 113

individuals who gave more than $250,000 in 2004 provided $207

million to 527 groups. Id. These figures indicate that since

BCRA shut off “soft money,” there has been a shift in individual

donations from political parties to 527s and also a “vast

escalation” in the total giving of the wealthiest donors. Id.

At least ten 527 groups have been found to have

violated FECA during the 2004 election by operating, in whole or

in part, outside of the rules applicable to political committees.7

Three of the groups fined – The Media Fund, America Coming

Together, and the Progress for America Voter Fund – are notable

both for the massive amounts of money they raised in violation of

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 10 of 28
 For example, Harold Ickes was both the founder and 8

president of The Media Fund and a member of the Democratic

National Committee’s executive committee. See Notification with

Factual and Legal Analysis to The Media Fund at 9 (MUR

5440)(Oct. 20, 2004).

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federal law, and, as discussed infra, for their close ties to

either the Democratic or Republican Party. During the 2004

election these three groups spent approximately $166 million,

accounting for over 40% of all 527 expenditures that year. Id.

at 104-05. Notwithstanding the close relationships between party

operatives and the persons running prominent 527 organizations

(who were in some instances one and the same), following the 2004 8

election, the FEC has not found that any of them violated the

letter of the law on independence and non-coordination. 

SpeechNow states that it too will operate independently of

political candidates and parties, making only independent

expenditures.

In response to an inquiry from SpeechNow, the FEC’s

Office of General Counsel issued a draft advisory opinion

confirming that, upon raising its first $1000, SpeechNow would

meet the requirements for FECA political committee status, and

would accordingly be required to abide by the applicable

contribution limits. Simpson Decl., Ex. 3. Plaintiffs assert

that these limits cannot be constitutionally applied to them

because doing so would not serve any cognizable government

interests. The real import of this case is not, however, about

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whether the FEC ought be enjoined from taking action against a

group that has raised no money and exists only on paper. In

practical terms, the remedy that plaintiffs seek is a declaration

that the First Amendment prevents Congress from imposing any

limit on contributions to the kind of nominally independent

“shadow party” groups that have gained prominence in the wake of

BCRA.

II. Analysis

To demonstrate entitlement to a preliminary injunction,

plaintiffs must show “1) a substantial likelihood of success on

the merits, 2) that [they] would suffer irreparable injury if the

injunction is not granted, 3) that an injunction would not

substantially injure other interested parties, and 4) that the

public interest would be furthered by the injunction.” CityFed

Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746

(D.C. Cir. 1995).

A. Likelihood Of Success

Plaintiffs argue that they are substantially likely to

succeed on the merits because, as applied to SpeechNow and its

supporters, the challenged contribution limits are: 1) subject to

strict scrutiny, and 2) fail to further any government interest

because independent expenditure committees, by their nature,

cannot be used as vehicles for the corruption of elected

officials and candidates. The FEC maintains that intermediate

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scrutiny is the applicable standard and argues that the

government interests promoted by the challenged limits include:

1) the prevention of corruption and its appearance, and 2) the

effective functioning of FECA’s disclaimer requirements.

For the reasons explained below, I conclude that

intermediate scrutiny is appropriate and that §§ 441a(a)(1)(C)

and 441a(a)(3) are closely drawn to match sufficiently important

government interests. McConnell, 540 U.S. at 136 (2003); FEC v.

Beaumont, 539 U.S. 146, 162 (2003).

1. Appropriate Level of Scrutiny

Although both contribution and expenditure limits

implicate First Amendment freedoms, they do not do so in the same

manner or to the same degree. Colo. Republican Fed. Campaign

Comm. v. FEC, 518 U.S. 604, 615 (1996). Since Buckley, the

Supreme Court has treated expenditure limits as direct restraints

on speech that are subject to strict scrutiny. Buckley, 424 U.S.

at 39; see Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386

(2000). In contrast, contribution limits involve “little direct

restraint on [] political communication,” because they permit

“the symbolic expression of support evidenced by a contribution”

without infringing on “the contributor’s freedom to discuss

candidates and issues.” Buckley, 424 U.S. at 22. Because of the

lesser burden imposed on speech and associational rights, the

Supreme Court has generally upheld contribution limits when they

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are “closely drawn” to a sufficiently important government

interest. Id. at 25; McConnell, 540 U.S. at 138, n.40.

Plaintiffs argue that the analytic distinction between

contributions and expenditures should be collapsed in this case

and the challenged contribution caps subjected to strict

scrutiny. They reach this conclusion first, by emphasizing that

the Supreme Court has applied strict scrutiny to limits on

independent expenditures, FEC v. Nat’l Conservative Political

Action Comm., 470 U.S. 480, 493 (1985), and second, by arguing

that limits on contributions to independent expenditure

committees automatically operate to limit their expenditures.

According to plaintiffs, because independent

expenditures “produce speech at the core of the First Amendment,”

id., contributions to independent expenditure committees must be

viewed as implicating the same First Amendment interests and

likewise be subjected to the most demanding judicial scrutiny.

Underlying plaintiffs’ argument on this point is the recognition

that the activities of independent expenditure committees blur

the conceptual distinctions that the Supreme Court has long

relied on in differentiating contributions from expenditures. 

For example, in Buckley the Court reasoned that limiting

contributions to candidates entails only a “marginal restriction”

on contributors’ speech because contributions serve “as a general

expression of support for the candidate and his views, but do[]

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not communicate the underlying basis for the support.” 424 U.S.

at 20-21. In contrast, SpeechNow’s ads convey the basis for its

opposition to particular candidates. Nevertheless, contributors

to SpeechNow are not, through their donations, engaging in direct

speech. SpeechNow, as a legally separate organization, is

speaking as their proxy. The fact that donors would not

contribute to SpeechNow unless they agreed with its views is

beside the point; “sympathy of interests alone does not convert”

SpeechNow’s speech into that of its donors. California Medical

Association v. FEC (“CalMed”), 453 U.S. 182, 196 (1981).

Plaintiffs’ second contention – that strict scrutiny

applies because § 441a(a)(1)(C) operates to limit expenditures –

has been repeatedly rejected by the Supreme Court, most recently

in McConnell, where the Court explained that BCRA’s prohibition

on the receipt or expenditure of non-federal money by national

parties did not warrant strict scrutiny because it did not “in

any way limit[] the total amount of money parties can spend” but

instead simply “limit[s] the source and individual amounts of

donations.” 540 U.S. at 139. As in Buckley, the “overall

effect” of the challenged contribution limits is “merely to

require [SpeechNow] to raise funds from a greater number of

persons and to compel people would who would otherwise contribute

amounts greater than the statutory limits to expend such funds on

direct political expression.” 424 U.S. at 22.

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Contrary to plaintiffs’ argument, the decision in

Citizens Against Rent Control v. Berkeley (“CARC”), 454 U.S. 290

(1981), does not require the application of strict scrutiny in

this case. In CARC, the Supreme Court applied “exacting judicial

scrutiny” and struck down a municipal ordinance limiting

contributions to ballot measure campaign committees to $250. 454

U.S. at 298. Although plaintiffs urge that CARC’s exacting

scrutiny is the same thing as strict scrutiny, the majority

opinion in CARC not only “avoided any direct statement regarding

the standard of review,” it also “seemed to apply the [less

demanding] level of scrutiny described in Buckley.” Citizens for

Clean Gov’t v. City of San Diego, 474 F.3d 647, 651 (9th Cir.

2007); see CARC, 454 U.S. at 299 (“It is clear, therefore, that

[the ordinance] does not advance a legitimate governmental

interest significant enough to justify its infringement of First

Amendment rights.”) (emphasis added).

Rather than the application of strict scrutiny, the

result in CARC turned on the lack of a legitimate government

interest in limiting contributions to ballot committees: “The

risk of corruption perceived in cases involving candidate

elections simply is not present in a popular vote on a public

issue.” 454 U.S. at 298 (quoting First National Bank of Boston

v. Bellotti, 435 U.S. 765, 790 (1978)). This case is critically

different from CARC precisely because it does involve candidate

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elections, and, as discussed below, an accompanying potential for

corruption.

2. Government Interests Underlying § 441a(a)(1)(C)

a. Prevention of Actual and Apparent Corruption

The prevention of actual and apparent corruption are

the chief government interests that the Commission asserts in

support of constitutionally applying FECA’s $5000 contribution

limit to independent expenditure committees. Plaintiffs do not

quarrel with the fact that the Supreme Court has repeatedly found

these interests sufficient to sustain contribution limits against

First Amendment challenge. Instead, they assert that

“independent expenditures, by definition, cannot raise any

concerns about corruption,” and, they argue, as if the second

proposition logically followed from the first, that if

independent expenditures pose no corruption problem, neither can

contributions to committees that make only independent

expenditures. Mot. for Prelim. Injunc. at 19.

Plaintiffs’ argument presents a false syllogism that

relies on a “crabbed view of corruption, and particularly of the

appearance of corruption” that is at odds with Supreme Court

precedent. McConnell, 540 U.S. at 152. First of all, the

Supreme Court has never held that, by definition, independent

expenditures pose no threat of corruption. In Buckley, the Court

explained that independent expenditures made by individuals

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“d[id] not presently appear” to pose a danger of corruption. 424

U.S. at 46. The Court “explicitly left open the possibility that

a time might come when . . . independent expenditures made by

individuals to support candidates would raise an appearance of

corruption.” McConnell v. FEC, 251 F. Supp. 2d 176, 624-25

(D.D.C. 2003)(Kollar-Kotelly, J.). Second, that SpeechNow cannot

literally funnel contributions to candidates, and therefore

cannot serve as a vehicle for the direct exchange of dollars for

political favors, is not dispositive. The Supreme Court has long

acknowledged that “corruption,” in the sense that word is used in

campaign finance law, “extends beyond explicit cash-for-votes

agreements to ‘undue influence on an officeholder’s judgment.’”

Id. at 143 (quoting FEC v. Colo. Republican Fed. Campaign Comm.

(“Colorado Republican II”), 533 U.S. 431, 441 (2001)).

In upholding BCRA’s major provisions, McConnell

affirmed Congress’s power to enact prophylactic measures aimed at

the “more subtle but equally dispiriting forms of corruption,”

such as the sale of access, that can occur even when

contributions are made to entities that are legally independent

of candidates’ own campaign organizations. Id. at 153; see id.

at 154-56 (upholding limits on contributions to national

political parties); id. at 161-73 (upholding limits on

contributions to state parties); id. at 174-81 (upholding ban on

party solicitations for donations to tax-exempt organizations);

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id. at 184-85 (upholding limitations on the source and amount of

contributions that can be spent by state and local candidates to

directly impact federal elections). The Court also made clear

Congress has a strong interest in preventing the circumvention of

otherwise valid contribution limits. Id. at 185-86; see also

Colorado Republican II, 533 U.S. at 456 (“[A]ll members of the

Court agree that circumvention is a valid theory of

corruption.”).

The McConnell Court addressed both of these forms of

corruption in discussing BCRA’s § 323(f), which forbids state and

local candidates and officeholders from spending soft money on

public communications. In upholding § 323(f), the Court accepted

as reasonable two predictions made by Congress: first, that with

national parties banned from taking soft money, donors seeking to

buy access would next target state and local candidates because

of their ties to federal officeholders; and second, that

political parties themselves would seek out new ways to

circumvent BCRA’s ban on soft money. McConnell, 540 U.S. at 156

n.51 & 185. Both of these predictive judgments apply with equal

force to Congress’s decision to prohibit political committees,

even those that make only independent expenditures, from

receiving annual contributions larger than $5000. “Independence”

does not prevent candidates, officeholders, and party

apparatchiks from being made aware of the identities of large

Case 1:08-cv-00248-JR Document 32 Filed 07/01/2008 Page 19 of 28
 ACT maintained both a federal account, which was 9

registered with the FEC as a non-connected political committee

under 11 C.F.R. 106.6(a), and a non-federal account, housed under

Section 527. ACT violated FECA through improperly allocating

funds between the two accounts. In other words, ACT used monies

from its 527 to fund activities that were required to have been

carried out by its political committee arm. See FEC Conciliation

Agreement with America Coming Together (MUR 5403 and 5466).

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donors, and people who operate independent expenditure committees

can have the kind of “close ties” to federal parties and

officeholders that render them “uniquely positioned to serve as

conduits for corruption,” both in terms of the sale of access and

the circumvention of the soft money ban. Id. at 156 n.51.

These propositions are demonstrated – if not exactly

establish by record evidence – by the history of 527 groups in

the 2004 presidential election. The Media Fund evolved out of

the Democratic National Committee’s Task Force on BCRA. It was

headed by Harold Ickes, who had been President Clinton’s Deputy

Chief of Staff and, who was, for a time, a paid adviser to then

DNC-chair Terry McAuliffe, who discussed Ickes’ plans for The

Media Fund at a gathering of Democratic Party donors in 2002.

Weissman & Hassan at 85. Ickes also led the 527 group Americans

Coming Together (“ACT”). Id. at 86. President Clinton was 9

involved in multiple fundraising events with major donors to ACT,

telling them, at one particular fundraising event, that “ACT met

a critical need and that if ACT had existed in 2000 the Democrats

would have won.” As one person leading a 527 group put it, “He

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koshered us. He gave the donors confidence, both the ideological

ones and the access ones.” Id. at 87.

Close ties between party officials and independent 527s

existed on the Republican side as well. Progress for America

(“PFA”), originally formed under Section 501(c)(4) and later, in

part, under Section 527, was founded in 2001 by Tony Feather, a

partner in a consulting firm that worked for the Republican

National Committee. Id. at 87. The speakers at PFA’s October

2003 conference included Republican National Committee Chairman

Ed Gillespie, Bush-Cheney 2004 Director Ken Mehlman, and Benjamin

Ginsberg, counsel to both PFA and the Bush campaign. Id. at 88.

Both before and after PFA moved its campaign work to its 527, one

of its leading fundraisers was Tom Synhorst, a partner in a

campaign consulting firm that received over $19 million in

business from the Bush-Cheney and RNC campaigns. Id. On May 13,

2004, Progress for America was listed by name in a joint public

statement by RNC Chairman Gillespie and Bush-Cheney Campaign

Chairman Marc Racicot. While the statement made no direct

solicitation, Racicot and Gillespie stated that the FEC’s 2004

regulatory inaction had:

given the ‘green light’ to all non-federal

‘527s’ to forge full steam ahead in their

efforts to affect the outcome of this year’s

Federal elections, and, in particular, the

presidential race. . . . The 2004 elections

will now be a free-for-all. . . . Groups

like the Leadership Forum, Progress for

America, the Republican Governors’

Association, GOPAC and others now know that

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they can legally engage in the same way

Democrat leaning groups like ACT, The Media

Fund, MoveOn, and Moving America Forward

have been engaging.

Id. at 89; full statement available at

www.gwu.edu/~action/2004/money/bushrnc051304st.html (last visited

Jun. 1, 2008).

Clearly, legally independent 527 groups can and do bear

seals of approval from political parties. SpeechNow’s carefully

constructed test-case embodiment of “independence” does not

shield it from reasonable campaign finance regulation. “[T]he

First Amendment does not require Congress to ignore the fact that

‘candidates, donors, and parties test the limits of the current

law.’” McConnell, 540 U.S. at 144 (quoting Colorado Republican

II, 533 U.S. at 457). Nor does the First Amendment require

Congress to ignore the corrosive effects that the perception of

collusion and the circumvention of contribution limits have on

public confidence in the integrity of federal elections. Shrink

Mo., 528 U.S. at 390. And finally, neither does the First

Amendment require Congress to ignore what its members surely

know – that an organization may be legally independent under FEC

rules while nonetheless functioning as a fully integrated arm of

a major political party.

In arguing that Congress does not have the power to

regulate independent expenditure committees, plaintiffs rely

heavily on a single source: Justice Blackmun’s concurrence in

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California Medical Association v. FEC, 453 U.S. 182 (1981). In

that case, the Court upheld FECA’s $5000 limit on contributions

to multicandidate political action committees, defined as

registered political committees that contribute to at least 5

federal candidates and have received contributions from 50 or

more donors. 2 U.S.C. § 441a(a)(4). Justice Blackmun provided

the fifth vote for the decision and stated in his concurrence

that he would have reached a different result if:

§ 441a(a)(1)(C) were applied to contributions to a

political committee established for the purpose of

making independent expenditures, rather than

contributions to candidates. By definition, a

multicandidate political committee like CALPAC

makes contributions to five or more candidates for

federal office. § 441a(a)(4). Multicandidate

political committees are therefore essentially

conduits for contributions to candidates, and as

such they pose a perceived threat of actual or

potential corruption. In contrast, contributions

to a committee that makes only independent

expenditures pose no such threat.

CalMed, 453 U.S. at 203 (Blackmun, J., concurring). Although

Justice Blackmun took a narrower position on the

constitutionality of § 441a(a)(1)(C) than the plurality, he did

so in regard to a then-hypothetical situation (CALPAC did not

only make independent expenditures), and, as a result, the

reservations he expressed are neither controlling nor

precedential. Most importantly, a majority of the Supreme Court

in McConnell rejected Justice Blackmun’s reasoning, and explained

that CalMed upheld § 441(a)(1)(C) on its face even though the

provision limits “not only the source and amount of funds

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available to parties and political committees to make candidate

contributions, but also the source and amount of funds available

to engage in express advocacy and numerous other noncoordinated

expenditures.” 540 U.S. at 152 n.48 (emphasis added). The Court

went on to explain that “[i]f indeed the First Amendment

prohibited Congress from regulating contributions to fund the

latter, the otherwise-easy-to-remedy exploitation of parties as

pass-throughs (e.g., a strict limit on donations that could be

used to fund candidate contributions) would have provided

insufficient justification for such overbroad legislation.” Id.

In N.C. Right to Life v. Leake, Judge Michael cogently explained

the significance of the McConnell Court’s interpretation of

CalMed:

[I]f the governmental interests only justified

regulation of coordinated expenditures -- as Justice

Blackmun argued -- the statute would have been

facially overbroad (and therefore unconstitutional)

because it imposed limits on all groups making

expenditures. But Cal-Med held that the provision

was not facially overbroad, so (according to

McConnell) the First Amendment must allow

legislatures to regulate contributions to fund

independent political expenditures.

2008 U.S. App. LEXIS at *168 (4th Cir. May 1, 2008) (Michael, J.,

dissenting) (internal citation omitted). In other words,

McConnell and CalMed together provide still more support for the

conclusion that Congress may regulate independent expenditure

committees because the government interest in preventing

corruption is not limited to policing organizations that serve as

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 The Commission also argues that avoidance of the 10

“corrosive and distorting effects of immense aggregations of

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“pass-throughs” for candidate contributions. 540 U.S. at 152

n.48.

b. Effective Functioning of FECA’s Disclaimer

Provisions

Section 441a(a)(1)(C) also promotes the important

government interests underlying the Act’s disclaimer

requirements. See Buckley, 424 U.S. at 66-68. All independent

expenditure communications must include a disclaimer explaining

what group is responsible for the advertisement and stating that

the ad is not authorized by a candidate or candidate’s authorized

committee. 2 U.S.C. § 441d(a). Of course, political committees

are not required to individually list all of their donors in the

disclaimers included in their ads. At present, however, no one

person could have contributed more than $5000 to the group

running the ad. Were plaintiffs to prevail, ads by organizations

such as SpeechNow could be funded entirely by one or more large

donors. While candidates and officeholders would likely know the

identity of the persons funding such ads, the public would not

receive this information from the advertisement itself. As

applied to independent expenditure committees, § 441a(a)(1)(C)

thus functions to prevent a handful of wealthy donors from hiding

behind “dubious and misleading names” and evading the Act’s

disclaimer requirements. See McConnell, 540 U.S. at 197.10

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wealth” is an important government interest supporting the

constitutionality of § 441a(a)(1)(C). See Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 660 (1990). The Supreme Court

relied on this rationale in upholding limits on corporate

campaign expenditures, and it is best understood to be limited to

that context. The Austin Court reasoned that the corporate form

allowed for “immense aggregations of wealth that . . . that have

little or no correlation to the public’s support for the

corporation’s political ideas.” Id. This concern is inapposite

to an unincorporated, political organization such as SpeechNow.

Moreover, the Supreme Court has long held that “the concept that

government may restrict the speech of some elements of our

society in order to enhance the relative voice of others is

wholly foreign to the First Amendment.” Davis v. FEC, No. 07-

320, slip op. at 15-16, 554 U.S. __ (2008)(quoting Buckley, 424

U.S. at 48-49).

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3. Tailoring of § 441a(a)(1)(C) 

Finally, the Act’s $5000 annual contribution limit is a

proportional response to the government interests at stake. The

limit is quite accommodating; a $5000 contribution to a political

organization is substantial. The contribution cap places no

ceiling on the total amount of funds that groups such as

SpeechNow can amass and expend. It does not limit the number of

persons from whom funds can be solicited. It functions in a

manner that is consonant with First Amendment values by requiring

political committees to “increase the dissemination of

information by forcing [them] to solicit from a wider array of

potential donors.” McConnell, 540 U.S. at 140.

In sum, because § 441a(a)(1)(C) is closely drawn to

match the government interests in preventing corruption and the

circumvention of the Act’s disclaimer requirements, plaintiffs

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have failed to demonstrate a likelihood of success on their claim

that FECA’s $5000 contribution limit is unconstitutional as

applied to independent expenditure committees.

4. Challenge to Biennial Aggregate Limits

Plaintiffs have not separately addressed the

constitutionality of the biennial aggregate limits set out at 2

U.S.C. § 441a(a)(3) at any length. The Court in Buckley upheld a

similar aggregate ceiling notwithstanding the fact that it

imposed a restriction on the number of “candidates and committees

with which an individual may associate himself by means of

financial support.” 424 U.S. at 38. As in Buckley, the

aggregate limits challenged here prevent the evasion of

constitutionally valid limits on contributions to candidates, id.

at 23-25, party committees, McConnell, 540 U.S. 142-189, and

political committees, supra. Plaintiffs have not demonstrated a

likelihood of success in their challenge to § 441a(a)(3).

III. Conclusion

The motion for injunctive relief is denied. Plaintiffs

cannot show that they are so irreparably harmed as to justify

setting aside these duly enacted provisions of FECA. Even with

these contribution caps in place, the individual plaintiffs

retain the ability to associate with and contribute to

SpeechNow – each must simply limit his contribution to $5000 per

year. “The presumption of constitutionality which attaches to

every Act of Congress is not merely a factor to be considered in

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evaluating success on the merits, but an equity to be considered

in favor of [the government] in balancing hardships.” Walters v.

Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984)

(Rehnquist, J., in chambers).

As this memorandum was in the process of being filed,

plaintiffs’ motion to certify questions under 2 U.S.C. § 437h

came to the Court’s attention. Because the denial of a

preliminary injunction is appealable as of right under 28 U.S.C.

§ 1292(a)(1), Belbacha v. Bush, 520 F.3d 452, 454 (D.C. Cir.

2008), plaintiffs’ certification motion [Dkt. 31] will also be

denied. Plaintiffs should take up their request for en banc

hearing directly with the Court of Appeals.

 JAMES ROBERTSON

United States District Judge

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