United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemental Reply Memorandum 

in Support of Summary Judgment

In accordance with this Court’s May 5, 2009 order, Plaintiffs Republican National

Committee et al. respectfully file this supplemental reply memorandum in support of their

Motion for Summary Judgment (Dkt. 21). In previous briefing, Plaintiffs explained that:1

(a) Campaign finance laws may only regulate speech that is unambiguously campaign

related (Pls.’ Mem. at 7-18; Pls.’ Reply Mem. at 1-10);

(b) Plaintiffs’ intended activities are not unambiguously campaign related, and furthermore,

as applied to Plaintiffs’ intended activities the Federal Funds Restriction is not narrowly

tailored or closely drawn to any compelling or important government interest in

preventing corruption or its appearance (Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 10-25;

Pls.’ Op. at 4-8);

1

Plaintiffs incorporate by reference their Memorandum in Support of Summary Judgment

(“Pls.’ Mem.”) (Dkt. 21), Reply Memorandum in Support of Summary Judgment (“Pls.’ Reply

Mem.”) (Dkt. 50), and Memorandum in Opposition to Defendant Federal Election Commission’s

Motion to Dismiss (“Pls.’ Op. to FEC Mot. to Dis.”) (Dkt. 27), Memorandum in Opposition to

Defendant FEC’s Motion for Summary Judgment (“Pls.’ Op.”) (Dkt. 61), and Supplemental

Memorandum in Opposition to Defendant FEC’s Supplemental Motion to Dismiss (“Pls.’ Supp.

Op. to FEC Mot. to Dis.”) (Dkt. 80).

Supplemental Summary

Judgment Reply 1

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 1 of 10
(c) Plaintiffs’ intended activities do not directly benefit any federal candidate or officeholder

(Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 12-18; Pls.’ Op. at 8-13);

(d) For any gratitude on the part of federal candidates or officeholders to give rise to

corruption or its appearance, the candidates or officeholders must receive a direct benefit,

which here they do not (Pls.’ Reply Mem. at 21-24; Pls.’ Mem. at 24-27);

(e) To the extent McConnell v. FEC, 540 U.S. 93 (2003), found that contributions to national

political parties were “suspect,” irrespective of their end use, it premised this conclusion

on the historical practice of national parties to provide large donors of non-federal funds

with preferential access to federal candidates and officeholders (Pls.’ Mem. at 21-24;

Pls.’ Reply Mem. at 18-21);

(f) The RNC will not provide donors of non-federal funds or state funds with preferential

access to any federal candidate or officeholder and will not involve federal candidates or

officeholders in the solicitation of such funds (Pls.’ Mem. at 21-23; Pls.’ Reply Mem. at

18-21); 

(g) Plaintiffs’ intended activities are too far removed from federal candidates and federal

elections to be regulated (Pls.’ Mem. at 30-45; Pls.’ Reply Mem. at 12-18).

Plaintiffs respond here to the issues of fact asserted in Intervenor-Defendant Van

Hollen’s Supplemental Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment

(“Van Hollen Supp. Opp.”) (Dkt. 83).

Before arguing the facts, Van Hollen argues that McConnell precludes Plaintiffs’ claims

which “therefore fail as a matter of law.” Van Hollen Supp. Opp. at 1. McConnell was, of

course, a facial analysis that did not distinguish whether various uses of non-federal funds were

Supplemental Summary

Judgment Reply 2

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 2 of 10
unambiguously campaign related. So it did not consider the as-applied question here. See also,

infra at 7. 

Van Hollen asserts that the RNC’s intended redistricting, state activities (in New Jersey

and Virginia), and grassroots lobbying will “affect” or “have an impact on future elections.” Van

Hollen Supp. Opp. at 2. But any such possible affect/impact is too remote and speculative to be

cognizable, as evidenced by the actual test for regulable activity, i.e., government may only

regulate “spending that is unambiguously related to the campaign of a particular federal

candidate,” Buckley v. Valeo, 424 U.S. 1, 80 (1976) (emphasis added). Van Hollen points to no

particular candidate whose campaign is, or will be, unambiguously affected/impacted by these

activities. In fact, Chairman Steele specifically testified that the state activities might have no

impact on RNC’s fortunes, FEC Exh. 42, Steele Dep. at 98:14-99:4, which is a far cry from the

required unambiguous relation to the campaign of a particular federal candidate.

That this unambiguously-campaign-related analysis controls, instead of some amorphous

potential “effect”, is clear from FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTLII”) (Roberts, C.J., joined by Alito, J.) (stating holding). WRTL-II noted that “[t]he FEC,

intervenors, and the dissent below contend that McConnell [v. FEC, 540 U.S. 93 (2003),] already

established the constitutional test for determining if an ad is the functional equivalent of express

advocacy: whether the ad is intended to influence elections and has that effect.” Id. at 2664.

WRTL-II observed that “Buckley had already rejected an intent-and-effect test for distinguishing

between discussions of issues and candidates” because, given “the difficulty of distinguishing

between discussion of issues on the one hand and advocacy of election or defeat of candidates on

the other, . . . analyzing the question in terms of intent and of effect would afford no security for

Supplemental Summary

Judgment Reply 3

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 3 of 10
free discussion.” Id. at 2665 (quotation marks and citations omitted). WRTL-II also rejected any

intent-and-effect test. Id. As WRTL-II was plainly applying the unambiguously-campaign-related

principle as a means of protecting issue advocacy, it rejected any intent-and-effect test as part of

it. That analysis extends to all activity to be analyzed under the unambiguously-campaign-related

principle. In fact Buckley employed the unambiguously-campaign-related analysis precisely to

narrow overbroad tests that would look at “‘any expenditure . . . relative to a clearly identified

candidate,’” 424 U.S. at 42 (citation omitted) (emphasis added), or “‘for the purpose of . . .

influencing’ the nomination or election of candidates for federal office,” id. at 77 (citation

omitted) (emphasis added). With WRTL-II’s affirmance of Buckley’s rejection of any intent-andeffect test and tests based on some vague “relati[on]” or “influenc[e],” it is too late in the day for

the FEC and intervenor to be reasserting a vague effect/impact test based on some amorphous

notion of possible, but uncertain, relation to or influence upon some potential, unparticularized

candidate’s future campaign.

WRTL-II was simply following the unambiguously-campaign-related analysis asserted

and adopted in McConnell, 540 U.S. 93. In McConnell, the campaign-finance reformers

(McCain-Feingold’s primary sponsors and supporting counsel) argued that, although the

electioneering-communication definition went beyond express advocacy, it was a constitutional

“adjustment of the definition of which advertising expenditures are campaign related.” Brief for

Intervenor-Defendants Senator John McCain et al. at 57, McConnell, 540 U.S. 93 (“Reformers’

Brief”) (available at http://supreme.lp.findlaw.com/supreme_court/briefs/02-1674/02-1674.mer.

int.cong.pdf). The reformers meant unambiguously “campaign related,” arguing that the

“[d]isclosure rules . . . ‘shed the light of publicity on spending that is unambiguously campaign

Supplemental Summary

Judgment Reply 4

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 4 of 10
related but would otherwise not be reported.’” Id. at 58 (quoting Buckley v. Valeo, 424 U.S. 1, 81

(1976).2

 They urged approval of electioneering-communication regulation based on Buckley’s

unambiguously-campaign-related analysis:

Two general concerns emerge from the Court’s discussion: Statutory requirements in this 

area should be clear rather than vague, in part so they will not ‘dissolve in practical 

application,’ 424 U.S. at 42; and they should be ‘directed precisely to that spending that is 

unambiguously related to the campaign of a particular federal candidate,’ id. at 80; see id. 

at 76-82. Those are precisely the precepts to which Congress adhered in framing Title II.

Id. at 62 (quoting Buckley) (emphasis added).

So Senators McCain and Feingold, the reform community, and Congress itself

recognized (a) the dissolving-distinction problem and (b) the unambiguously-campaign-related

analysis as identifying regulable communications. Their “precepts” are that the regulation be

neither (1) vague nor (2) overbroad (beyond unambiguously-campaign-related activity). Counsel

for the present Intervenor argued this in McConnell. See Reformers’ Brief at inside cover

(counsel list).3

That the unambiguously-campaign-related analysis was correct is confirmed by the fact

that McConnell adopted the reformers’ analysis to approve regulation of “electioneering

2

The reformers conceded the necessity of bright-line tests, arguing that their new

“standards for defining which ads will be treated as campaign-related squarely serve a

compelling interest in using clear and objective lines to frame any rule that affects speech.” Id.

3

To rely on the unambiguously-campaign-related principle then and eschew it now is the

sort of bait and switch that Chief Justice Roberts denounced in Wisconsin Right to Life v. FEC,

546 U.S. 410 (2006) (“WRTL-I”): “In McConnell against FEC, you stood there and told us that

this was a facial challenge and that as-applied challenges could be brought in the future. This is

an as-applied challenge and now you’re telling us that it’s already been decided. It’s a classic

bait and switch.” Transcript at 25 (available at http://www.supremecourtus.gov/oral_arguments/

argument_ transcripts/04-1581.pdf).

Supplemental Summary

Judgment Reply 5

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 5 of 10
communications” in addition to express advocacy. See OB–25-27. McConnell said the

constitutional analysis required “avoid[ing] . . . vagueness and overbreadth,” 540 U.S. at 192,

and this “overbreadth” precept was “‘[t]o insure that the reach’ of the disclosure requirement was

‘not impermissibly broad’”—citing the Buckley passage to which the reformers pointed for the

unambiguously-campaign-related precept, id. at 191 (citation omitted).4

In sum, the unambiguously-campaign-related principle controls all of campaign-finance

law.5

 And it requires the analysis to be based upon whether campaign-finance laws are restricted

4

This unambiguously-campaign-related analysis has been expressly recognized by FEC

Commissioners. In their Statement of Reasons (Dec. 16, 2003) in Matters Under Review

(“MURs”) 5024, 5154, and 5146 (available at www.fec.gov), Chair Weintraub and

Commissioners Thomas and McDonald noted that Buckley expressed concern about reporting

provisions “that might be applied broadly to communications discussing public issues which also

happened to be campaign issues,” and so imposed the express-advocacy construction. Id. at 2.

“[T]he Buckley Court explained the purpose of the express advocacy standard,” they declared,

which “was to limit application of the . . . reporting provision to ‘spending that is unambiguously

related to the campaign of a particular federal candidate.’” Id. (emphasis in Statement) (quoting

Buckley, 424 U.S. at 80). The Commissioners quoted 424 U.S. at 82: “[u]nder an express

advocacy standard, the reporting requirements would ‘shed the light of publicity on spending

that is unambiguously campaign related . . . .’” Statement at 2 (emphasis in Statement). A

January 22, 2009 Statement of Reasons in MUR 5541 (November Fund) by Vice Chair Petersen

and Commissioners Hunter and McGahn emphasized the need to “fully incorporate important

principles in recent judicial decisions,” including FEC v. Wisconsin Right to Life, 127 S. Ct.

2652 (2007) (“WRTL-II”), “and the Fourth Circuit’s persuasive decision in . . . [North Carolina

Right to Life v.] Leake[, 525 F.3d 274 (4th Cir. 2008)].” Id. at 2 (citations omitted).

5

The most recent decision to recognize the unambiguously-campaign-related analysis is

Broward Coalition of Condominiums v. Browning, No. 4:08-cv-445, 2009 WL 1457972 (N.D.

Fla. May 22, 2009) (order granting summary judgment to Plaintiffs). Broward—applying strict

scrutiny to an “electioneering communications” provision imposing PAC-style burdens on

groups doing ballot-initiative (and candidate) advocacy—recognized the major-purpose test, the

unambiguously-campaign-related analysis, and the fact that only two types of communications

may be regulated (express-advocacy and federally-defined “electioneering communications”). It

held that because WRTL-II said the Court had “‘never recognized a compelling interest in

regulating ads . . . that are neither express advocacy nor its functional equivalent,’” neither

would it. 2009 WL 1457972, at *5 (quoting WRTL-II, 127 S. Ct. at 2671).

Supplemental Summary

Judgment Reply 6

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 6 of 10
to “spending that is unambiguously related to the campaign of a particular federal candidate,”

Buckley, 424 U.S. at 80 (emphasis added). The effort of the FEC and the Intervenor to revert to a

long-rejected amorphous analysis must be rejected.

Not only is the unambiguously-campaign-related principle a constitutional first-principle

that must be satisfied as a threshold matter in campaign-finance law (so that it overrides other

analyses), but any potential “appearance of corruption” as to activities that are not

unambiguously campaign related is entirely too remote to be cognizable for constitutional

analysis. As the opinion stating the holding in WRTL-II put it when faced with a similar

stretching of “corruption” to unrecognizable lengths, “Enough is enough,” id. at 2672 (opinion of

Roberts, C.J., joined by Alito, J.). And in Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

(“WRTL-I”), the Supreme Court unanimously rejected the notion that a broadly-worded

McConnell holding precluded an as-applied challenge, which is the essence of the FEC’s

recycled argument here. If there is one obvious thing that WRTL-I and WRTL-II teach, it is that a

facial McConnell holding does not preclude an as-applied holding that significantly narrows the

facial holding. And in Citizens United v. FEC (No. 08-205), the Supreme Court has just ordered

reargument as to whether the electioneering-communication prohibition as narrowed in WRTL-II

is adequately protecting issue advocacy as applied or whether McConnell’s facial upholding of

the electioneering-communication prohibition must be overruled, perhaps along with Austin v.

Mich. State Chamber of Commerce, 494 U.S. 652 (1990) (upholding corporate “expenditure”

prohibition). See http://origin.www.supremecourtus.gov/docket/08-205.htm (Supreme Court

docket with order showing topics of reargument).

Supplemental Summary

Judgment Reply 7

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 7 of 10
Van Hollen also asserts that the new evidence supports his initial summary judgment

opposition (Dkt. 41). However, the new evidence does not contradict Plaintiffs’ original position.

Van Hollen points to Chairman Steele’s statement that Plaintiffs’ intended activities regarding

redistricting, state elections and grassroots lobbying affect federal elections, but that sort of

effect has no more to do with the requisite unambiguously-campaign-related analysis than other

things that might remotely “affect” elections. For example, RNC has a prolife plank, which if

implemented as law in a particular state might conceivably “affect” population numbers upwards

and so “affect” redistricting, which in turn could “affect” elections in a remote sense. But if the

RNC wants to run ads promoting the prolife position, government may not restrict that issue

advocacy on the basis that it is unambiguously campaign related. Similarly, the RNC could run

issue ads opposing legislation that, say, imposes disproportionate energy costs on the heartland

states, thereby wrecking their economy and encouraging citizen migration and discouraging

people from having children, thereby depressing population numbers and thus remotely affecting

redistricting, but it would not be a constitutionally cognizable effect for the unambiguously

campaign related analysis.

In addition to arguing that Plaintiffs’ intended activities would directly impact federal

elections, Van Hollen asserts that, because money is fungible, any contribution to the RNC for

its intended activities would in turn free up other money that the RNC could use to directly

benefit federal candidates. Van Hollen Supp. Opp. at 2. Van Hollen’s attempted scare tactic fails

for a number of reasons. First, the reach of Van Hollen’s argument is stunning. Such an

expansive justification would allow federal regulation of nearly all state and local election

activities, including contributions to the campaigns of state and local candidates.

Supplemental Summary

Judgment Reply 8

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 8 of 10
Second, the “other money” would be federal money, which the RNC may use for federal

activities, see 2 U.S.C. § 441i(a), and government may not limit spending for political speech

here. See Randall v. Sorrell, 548 U.S. 230, 240-46 (2006); Buckley, 424 U.S. at 54-58. Third,

Van Hollen ignores the fact that the RNC is not doing many of the activities for which it would

use state and non-federal money, because (1) the RNC may raise only federal money, 2 U.S.C. 

§ 441i(a), (2) federal money is harder to raise than other money, and (3) federal money is needed

in other areas. See FEC Mem. Exh. 1, Josefiak Dep. at 141:13-144:14; see also FEC Mem. Exh.

4. Therefore, the RNC’s receiving and spending of non-federal money will hardly result in any

more federal money for the RNC to spend on activities directly benefitting federal candidates.

Instead, it will enable the RNC to engage in additional non-federal activities. More

fundamentally, the fungibility argument is clever, but it has no stopping point. Cf. United States

v. Lopez, 514 U.S. 549, 600 (1995) (Thomas, J., concurring). Under this argument, no

organization with an account for federal money could establish a non-federal account, because

that would allow the organization to spend more of its federal money on federal activities. But

the law already contemplates organizations other than national party committees having federal

and non-federal accounts for federal and non-federal activities. See 11 C.F.R. § 102.5.

Conclusion

For the reasons stated, Plaintiffs’ motion for summary judgment should be granted. 

Supplemental Summary

Judgment Reply 9

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 9 of 10
Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Clayton J. Callen*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Supplemental Summary

Judgment Reply 10

Case 1:08-cv-01953-RJL-RMC Document 86 Filed 07/02/2009 Page 10 of 10