1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF ) 

LOUISIANA, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 15-1241 (CRC-SS-TSC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

MOTION TO DISSOLVE THREE-JUDGE COURT WITH INSTRUCTIONS TO 

DISMISS OR, ALTERNATIVELY, TO DISMISS ACTION 

This Court lacks jurisdiction to hear plaintiffs’ claims. In its opening brief, the Federal 

Election Commission (“FEC” or “Commission”) demonstrated that the Republican Party of 

Louisiana (“LAGOP”), the Jefferson Parish Republican Parish Executive Committee (“JPGOP”), 

and the Orleans Parish Republican Executive Committee (“OPGOP”) lack injury. They have no 

standing to complain about not being able to use individual contributions on any “Federal 

election activity” (“FEA”) — communications and other activities affecting federal elections — 

because they have not shown that they have any such contributions that they cannot currently 

spend on FEA. Nor do they claim that they reasonably expect to receive such contributions. 

Plaintiffs do not dispute this critical point, because the record on this score is indisputable. This 

absence of injury means that the Court cannot award plaintiffs any relief as applied to their use 

of individual contributions on FEA. Thus, even if the Court were to find some sliver of 

jurisdiction with respect to plaintiffs’ other supposed sources of money for FEA, the Court must 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 1 of 23
2 

at least limit the scope of any as-applied relief to those sources of funds that plaintiffs are 

actually prevented by federal law from using on FEA. 

Instead of attempting to show injury vis-à-vis individual contributions, plaintiffs oppose 

the Commission’s motion with more new changes to their purported plans in a manner akin to a 

game of jurisdictional Whac-A-Mole. Refashioning their case on the eve of merits resolution, 

plaintiffs now identify sources of funds they would like to use on FEA that they previously 

asserted were not at issue. Plaintiffs thus attempt to take back through briefing the local 

plaintiffs’ sworn interrogatory answers and unequivocal deposition testimony disclaiming 

JPGOP’s and OPGOP’s desire to use Louisiana’s “qualifying fees” on FEA. Plaintiffs should 

plainly be held to their sworn statements saying that the case is not about qualifying fees. Even 

if qualifying fees were at issue, however, plaintiffs have not shown that these are nonfederal 

funds, and they have thereby failed to carry their burden to show standing. The local plaintiffs 

have additionally failed to allege any FEA that they wish to pay for with qualifying fees — the 

challenged provision regulates expenditures and disbursements for FEA. And plaintiffs do not 

dispute that the local plaintiffs are not subject to the regulatory reporting requirements they 

previously identified. Accordingly, the local plaintiffs have no injury and no standing. Their 

claims must be dismissed. 

Plaintiffs attempt to resuscitate LAGOP’s claims by focusing on the corporate and union 

contributions it now says it wishes to use on FEA. Although plaintiffs previously had been coy 

about whether LAGOP intended to comply with the Federal Election Campaign Act’s (“FECA”) 

ban on using corporate or union contributions in connection with federal elections, see 52 U.S.C. 

§ 30118(a), they now explicitly state that such contributions were included in the scope of relief 

sought. Even if this oblique claim would entail some constitutional injury to LAGOP, it runs 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 2 of 23
3 

headlong into a familiar redressability problem. Unlike FECA’s $10,000 base contribution limit, 

see 52 U.S.C. § 30116(a), which the single-judge Court found could be circumvented without 

being invalidated in this lawsuit, the Act’s corporate contribution ban independently bars 

plaintiffs’ desire to use corporate contributions on FEA, as plaintiffs’ own complaint and brief 

show. Because that ban must be targeted — or not complied with — in order to obtain the relief 

plaintiffs now say LAGOP wants, this Court lacks jurisdiction to hear that claim. This threejudge Court is only empowered to hear claims against provisions of, or amendments made by, 

the Bipartisan Campaign Reform Act of 2002 (“BCRA”). It does not have the power to 

invalidate other FECA provisions. For this reason, this three-judge Court cannot hear plaintiffs’ 

claims even if LAGOP could establish injury with respect to corporate or union contributions. 

Accordingly, the three-judge Court must be dissolved. 

I. THE COURT MUST HAVE JURISDICTION TO HEAR PLAINTIFFS’ CLAIMS 

Plaintiffs do not dispute that the Court’s standing analysis should be “especially rigorous 

when reaching the merits of the dispute would force [the Court] to decide whether an action 

taken by one of the other two branches of the Federal Government was unconstitutional.” Raines 

v. Byrd, 521 U.S. 811, 819-20 (1997). The Court must “put aside the natural urge to proceed 

directly to the merits of this important dispute” and instead “carefully inquire as to whether 

[plaintiffs] have met their burden of establishing that their claimed injury is personal, 

particularized, concrete, and otherwise judicially cognizable.” Id. 

Plaintiffs preliminarily contend that the FEC did not “move to dismiss under Rule 

12(b)(1) in lieu of an answer” and rely on the FEC’s recital that the merits should be decided on 

cross-motions for summary judgment. (Pls.’ Mem. Opposing FEC’s Mot. to Dissolve ThreeJudge Ct. or Dismiss at 3 (Docket No. 54) (“Opp’n”).) These arguments are meritless. The facts 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 3 of 23
4 

demonstrating an absence of subject matter jurisdiction that formed the basis for the FEC’s 

motion were uncovered primarily in discovery. The Commission filed its motion as soon as it 

could after discovery was completed. One reason that it did not move sooner was the motion 

practice necessitated by plaintiffs’ proposed burdensome deposition of the agency. (See Docket 

Nos. 30, 32, 36, 37, 39, 53.) In any event, “[i]f the court determines at any time that it lacks 

subject-matter jurisdiction,” as is the case here, the Federal Rules provide that it “must dismiss 

the action.” Fed. R. Civ. P. 12(h)(3); Opp’n at 3. 

Plaintiffs’ contention that the FEC made this motion in order to obtain “extra summaryjudgment briefing” (Opp’n at 3) is likewise meritless. Initially, plaintiffs plainly have not been 

prejudiced; their opposition to the Commission’s motion is roughly the same length as the 

combined number of pages of the FEC’s opening memorandum and this reply. Moreover, the 

FEC’s jurisdictional arguments (that plaintiffs are lacking injury and the Court jurisdiction) are 

distinct from its merits arguments (that the challenged provisions satisfy the requisite levels of 

constitutional scrutiny). While the FEC’s merits position is strong (contra Opp’n at 43 (absurdly 

suggesting that the FEC “recogni[zes] . . . the weakness of its defense on the merits”)), the Court 

nevertheless has serious Article III and statutory BCRA obligations to ensure that it is 

empowered to hear the controversy before it. And regardless of the outcome of the FEC’s 

motion, it has already served to clarify the nature of plaintiffs’ challenges, for example, by 

confirming that plaintiffs have no injuries relating to individual contributions and by prompting 

plaintiffs to clarify that LAGOP wants to use corporate and union contributions on FEA.1

 

 

1

 Plaintiffs’ complaints about the FEC’s supposedly “inconsistent” positions are not 

appropriately laid at the FEC’s door. (E.g., Opp’n at 12.) The Court has already identified 

plaintiffs’ desire to render meaningless FECA’s contribution limits, particularly for other parties 

capable of raising extra-limit contributions, despite plaintiffs’ claims that their goals are so 

modest that this case is about spending a single dollar on FEA. It is plaintiffs who seek to undo a 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 4 of 23
5 

II. PLAINTIFFS LACK STANDING TO OBTAIN ANY RELIEF REGARDING 

SPENDING INDIVIDUAL CONTRIBUTIONS ON FEA 

The record conclusively establishes that there are no individual contributions that 

plaintiffs have shown they cannot use on FEA. Other than $1 an individual contributed to 

JPGOP at the end of 2015, neither of the local plaintiffs has received any contributions in years. 

(Def. FEC’s Mem. in Supp. of Mot. to Dissolve Three-Judge Ct. With Instructions to Dismiss or, 

Alternatively, to Dismiss Action at 10-13 (Docket No. 40) (“Mem.”).) The $1 contributed to 

JPGOP can be used on FEA. (Id. at 10 n.1.)2 And LAGOP has represented that it is unaware of 

any individual contributor wishing to give it more than $10,000. (Id. at 15-16.) 

The apparent absence of individual contributions that plaintiffs cannot use on any FEA 

they wish — including from their funds on hand — confirms that the Court lacks the power to 

award plaintiffs any relief relating to individual contributions on their as-applied claims. 

Plaintiffs’ as-applied claims seek to show the invalidity of section 30125(b)(1) with respect to 

their particular circumstances and proposed conduct. See Citizens United v. FEC, 558 U.S. 310, 

331 (2010) (“[T]he distinction between facial and as-applied challenges . . . goes to the breadth 

of the remedy employed by the Court . . . .”). However, to the extent plaintiffs ask the Court to 

allow them to fund FEA with individual contributions, it lacks the power to do so, regardless of 

whether the funds are to be used on “independent, non-individualized communications that 

exhort registering/voting” or on other FEA “by Internet,” other “non-individualized, independent 

 

keystone legislative reform that took years for Congress to pass, conducting the litigation in a 

manner that rendered the intangibility of plaintiffs’ supposed injuries difficult to detect through 

opaque, shorthand-filled descriptions of their claims. The FEC is entitled to defend itself both on 

the thinness of plaintiffs’ supposed injuries and the vast harm their proposal would accomplish 

on the merits, especially by state parties not before the Court. 

2

 JPGOP’s annual report to the state of Louisiana in fact states that it received $0 in 

contributions in all of 2015. Louisiana Ethics Administration, Committee’s Report (JPGOP) at 

2, http://ethics.la.gov/CampaignFinanceSearch/LA-57544.pdf. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 5 of 23
6 

communications,” on FEA communications funded from “an independent-communications-only 

account,” or on generically “independent” FEA. (Verified Compl. for Declaratory and 

Injunctive Relief ¶¶ 118, 119, 131 (footnote omitted), 132, 140 (Docket No. 1) (“Compl.”).) The 

Court need not do anything in order for plaintiffs to be able to do any of this activity with any of 

the individual contributions they have or any they reasonably anticipate receiving in the future. 

Thus, for example, LAGOP’s alternative request to set up an “independent-communications 

account,” which plaintiffs say “would only receive contributions from individuals” (Opp’n at 13 

n.13), is not a claim that the Court can consider because LAGOP has failed to show that there are 

any individual contributions it cannot already use on FEA. 

Plaintiffs’ response that the FEC is making a “just-do-something-else argument” (e.g., 

Opp’n at 2) is unavailing. Contrary to plaintiffs’ notion, the FEC is not judging plaintiffs’ 

preference to use their federal funds on things other than FEA or telling them to do something 

other than what they want to do. (Id. at 22.) The point is simply that plaintiffs are restricted only 

by their preference in choosing not to spend the FECA-compliant money they have on the FEA 

they wish to do. Since money compliant with federal contribution limits is perfectly fungible, 

that is not “chill” (e.g., id. at 4) but a self-imposed choice. This is not like FEC v. Wisconsin 

Right to Life, where different means of communication, or the possibility of using entirely 

different sources of money (contributions from individuals to the corporation’s “PAC” rather 

than corporate treasury funds), were rejected by the Court as constitutionally insufficient 

alternatives. 551 U.S. 449, 477 n.9 (2007). Nor is it like McCutcheon v. FEC, where alternative 

means of expression were rejected as impractical in the particular context of the challenged 

provision. 134 S. Ct. 1434, 1449 (2014). Plaintiffs cannot escape the jurisdictionally-dispositive 

reality that they have identified no individual contributions that they are prevented from using on 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 6 of 23
7 

any FEA they wish under FECA. Accordingly, plaintiffs’ choice is unquestionably a selfinflicted injury that plaintiffs do not need a federal judgment to remedy. (Mem. at 19.) 

The single-judge Court has already implicitly recognized that plaintiffs have no injury 

resulting from section 30125. As the FEC explained in its opening memorandum, the injury the 

Court identified is “exclusively a disclosure-based injury.” (Mem. at 20 (citing Mem. Op. at 11 

(Docket No. 24)).) For all plaintiffs’ arguments about not being able to spend “funds from their 

state account, even at the level of $1, for FEA” (e.g., Opp’n at 2 (internal quotation marks 

omitted)), the Court’s opinion did not agree that plaintiffs were in fact barred from engaging in 

such spending. It found that, despite the lack of clarity in plaintiffs’ complaint, their injury, if 

any, “is being ‘forced to maintain a federal account and to comply with the regulations and 

reporting requirements that accompany such an account’” when doing such spending. (Mem. at 

20 (quoting Mem. Op. at 11).) This type of injury is not like the one pled in McCutcheon, where 

the plaintiff wanted to make contributions that were prohibited by the Act’s aggregate 

contribution limit, 134 S. Ct. at 1443, or in the portion of SpeechNow.org v. FEC, in which the 

Court of Appeals invalidated FECA’s base limits on contributions to independent-expenditureonly political committees, 599 F.3d 686, 692-96 (D.C. Cir. 2010) (en banc), cert. denied, 562 

U.S. 1003 (2010). The injury the Court identified is like the injury in the other part of 

SpeechNow.org, in which the Court rejected the committee’s request not to comply with FECA’s 

less burdensome organizational and reporting requirements for political committees. 599 F.3d at 

696-98; id. at 696 (such requirements “do not prevent anyone from speaking” (internal quotation 

marks omitted)). The notion that federal law is preventing plaintiffs from raising contributions 

above federal limits is “a specious interpretation of the facts before” the Court. Id. at 697. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 7 of 23
8 

Plaintiffs allude to Cohen’s jacket (Opp’n at 25) as if showing that Mr. Cohen’s speech 

was restricted demonstrates that plaintiffs’ apparent bank account preference constitutes the 

same type of expressive injury Mr. Cohen suffered. Cohen v. California, 403 U.S. 15, 26 (1971). 

But federal campaign finance law is not a monolith. There is a jurisdictional difference between 

not being able to spend $1 on FEA that an individual contributed because that individual already 

gave the maximum base limit contribution, on one hand, and choosing, on the other hand, not to 

spend a FECA-compliant $1 on FEA in the face of supposedly burdensome requirements about 

the account that the $1 must come from and how it must be reported. The former is generally 

barred by section 30125(b)(1) (setting aside Levin funds), but the latter has nothing to do with 

section 30125(b)(1). The Court has no jurisdiction to invalidate section 30125(b)(1) as to an 

individual’s FECA-compliant $1 contribution because section 30125(b)(1) does not bar spending 

that $1 on FEA, and plaintiffs have identified no individual contribution dollars they believe are 

so barred, either from their funds on hand or with respect to anticipated contributions. Lewis v. 

Casey, 518 U.S. 343, 358 n.6 (1996) (“If the right to complain of one administrative deficiency 

automatically conferred the right to complain of all administrative deficiencies, any citizen 

aggrieved in one respect could bring the whole structure of state administration before the courts 

for review. That is of course not the law.”). 

Plaintiffs’ goal of “effectively eviscerat[ing]” (Mem. Op. at 7) FECA’s individual 

contribution limit, 52 U.S.C. § 30116(a)(1)(D), thus fails on jurisdictional grounds because 

plaintiffs have no cognizable injury with respect to individual contributions. Based on the record 

before the Court, they are effectively seeking to litigate the rights of third parties who have 

contributors willing to give above federal limits — national and other state and local party 

committees — and a bedrock rule of standing is that they cannot do so. Warth v. Seldin, 422 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 8 of 23
9 

U.S. 490, 499 (1975) (explaining that a “plaintiff generally must assert his own legal rights and 

interests, and cannot rest his claim to relief on the legal rights or interests of third parties”). 

III. THE LOCAL PARTY PLAINTIFFS HAVE NO INJURY THAT CAN BE 

REMEDIED BY THIS COURT 

A. Plaintiffs’ Regulatory Challenge to Account Requirements May Not Be 

Pursued Here 

The Court lacks jurisdiction to consider plaintiffs’ challenge to any requirement that they 

fund their activity from a federal account — even in the absence of any federally impermissible 

funds — because that claim amounts to a challenge to the FEC’s regulatory implementation of 

the statute, rather than the statute itself. This Court lacks authority to hear challenges to anything 

but BCRA’s provisions or amendments. Mem. at 15 (citing cases); see also Davis v. FEC, 554 

U.S. 724, 734 (2008) (“[s]tanding is not dispensed in gross” (internal quotation marks omitted)). 

The D.C. Circuit just confirmed the limited nature of special judicial review procedures in the 

analogous context of a challenge pursuant to 52 U.S.C. § 30110 (providing for en banc review in 

the Court of Appeals for constitutional challenges to FECA brought by certain plaintiffs). 

Holmes v. FEC, ___ F.3d ___, 2016 WL 1639680, at *5-6 (D.C. Cir. Apr. 26, 2016) (finding 

that plaintiffs claiming to challenge a provision of FECA were actually challenging an FEC 

regulation, which the Court of Appeals lacks the power to hear in a section 30110 case). Section 

30125(b)(1) contains only requirements related to sources and amounts of contributions and does 

not itself require any particular kind of account. If plaintiffs want to challenge 11 C.F.R. 

§ 102.5(b)(2) or § 300.30 (discussing accounting methods and account types), or § 300.36 

(requiring recordkeeping but not reporting for local entities that are not federal committees), or 

any other regulatory nuance, they must do so in another proceeding. McConnell v. FEC, 540 

U.S. 93, 223 (2003), overruled in part by Citizens United, 558 U.S. 310; Holmes, 2016 WL 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 9 of 23
10 

1639680, at *5 (explaining that plaintiffs “miss[] the point that a regulation may be 

unconstitutional even if the statute it implements is not. . . . That one such implementing 

regulation may be unconstitutional does not render the statute itself unconstitutional”). The 

Court should refuse plaintiffs’ request to bootstrap regulatory challenges into this Court. 

B. Plaintiffs’ Contentions Regarding Qualifying Fees Fail to Show Injury 

The FEC’s opening memorandum showed why JPGOP and OPGOP have no standing 

with respect to any sources of funds. In order to be injured by not being able to spend funds in 

the requested manner, these plaintiffs need to have at least a reasonable expectation of receiving 

the funds they wish to use in the first place. The facts show that they do not have such an 

expectation. What they instead show is that the local plaintiffs’ budgets consist of qualifying 

fees that candidates pay to various Louisiana entities to get on ballots; these entities then remit a 

portion of the fees to party committees such as plaintiffs. Because plaintiffs previously made 

clear that they do not intend to use such fees on FEA, they lack standing. (Mem. at 10-13.) 

Plaintiffs now say that the local plaintiffs do wish to fund FEA using these qualifying 

fees. (Opp’n at 33.) This assertion is in conflict with the complaint, which does not discuss or 

even mention such fees — and certainly failed to put the FEC on notice that, as concerns the 

local plaintiffs, plaintiffs believe the case is exclusively about the narrow question of using 

qualifying fees on FEA. See Fed. R. Civ. P. 8(a). Plaintiffs’ new assertion is also in conflict 

with their responses to the FEC’s explicit interrogatories asking whether plaintiffs would use 

qualifying fees on FEA if they obtained the relief they request. (Exh. 2, JPGOP’s Disc. 

Responses at 18-19 (Interrogatory #7); Exh. 3, OPGOP’s Disc. Responses at 18-19 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 10 of 23
11 

(Interrogatory #7).)3

 And in depositions, plaintiffs’ representatives again confirmed that 

qualifying fees are not at issue in this case. OPGOP’s representative bluntly testified that there is 

nothing the committee would like to do but cannot. (Mem. at 11-12.) JPGOP’s representative 

similarly testified that the committee does not seek to use qualifying fees on FEA. (Id. at 12.) 

In response to these points, plaintiffs do not dispute that their verified complaint failed to 

mention qualifying fees. (Opp’n at 33.) They nevertheless contend that their references to 

“nonfederal funds” sufficed to indicate their desire to use qualifying fees. (Id.) But qualifying 

fees, as the FEC has shown and LAGOP’s actions have confirmed (Mem. at 6), are not 

necessarily nonfederal funds. See also infra pp. 12-15. As for their sworn interrogatory 

answers, plaintiffs now contend that their assertions of irrelevancy were not meant to refer to 

their wish to use “‘qualifying fees’” but to the “interrogatory” itself. (Opp’n at 33-34.) This 

contention makes no sense. The interrogatory asked plaintiffs to state whether the relief sought 

“if granted, would permit a state political party like YOU to use ‘qualifying fees’ . . . on FEA.” 

(E.g., Exh. 2, JPGOP’s Disc. Responses at 18.) If plaintiffs sought to use qualifying fees on 

FEA, surely they would have simply said that that is what they seek, instead of stating, under 

oath, that whether plaintiffs’ seek to use qualifying fees is “not relevant to any cognizable 

claim.” Id.; see Huthnance v. D.C., 255 F.R.D. 297, 300 (D.D.C. 2008) (“plaintiff is bound by 

the answers given in her responses to defendants’ interrogatories”). 

Plaintiffs do not even attempt to explain the OPGOP representative’s testimony that the 

committee is not being prevented from doing anything it desires. They do contend, however, 

that the JPGOP representative’s answer about not intending to use qualifying fees resulted from 

the FEC’s “sleight-of-hand” questioning. (Opp’n at 34.) This is untrue. Ms. Thomas’s 

 

3

 Exhibits 1-6 were attached to the FEC’s opening brief. Exhibits 7-8, containing 

additional excerpts from the depositions of JPGOP and OPGOP, are attached here. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 11 of 23
12 

testimony clearly shows that, in contrast to the technical discussion of the meaning of “support” 

in plaintiffs’ litigation brief (id.), Ms. Thomas considers FEA to be supportive of federal 

candidates, accord McConnell, 540 U.S. at 168 (explaining that FEA such as “voter registration, 

voter identification, GOTV, and generic campaign activity all confer substantial benefits on 

federal candidates”). (See Exh. 7, JPGOP 30(b)(6) Dep. at 51:11-53:22.) In the context of the 

testimony, it is clear that asking whether JPGOP intended to use the $22,000 or so it has received 

in qualifying fees to support federal candidates was keeping the record clear by reflecting the

witness’s (and the Supreme Court’s) understanding of FEA. Lest there be any doubt, when 

asked what monies JPGOP would be using in the desired way, the answer was: “Well, we don’t 

have that.” (Id. at 53:18.) Plaintiffs should be held to their repeated sworn statements, 

responding to questions squarely within the topics properly noticed under Rule 30(b)(6),4

 that 

they are not seeking to use qualifying fees on FEA. See, e.g., U.S. ex rel. Fago v. M & T Mort. 

Corp., 235 F.R.D. 11, 24 (D.D.C. 2006) (“Rule 30(b)(6) testimony is a sworn corporate 

admission that is binding on the corporation.”); cf. Moore v. Volpe, ___ F. Supp. 3d. ___, 2016 

WL 1301049, at *5 (D.D.C. Apr. 1, 2016) (relying on sham affidavit rule in explaining that 

“[p]laintiff cannot create a genuine issue of material fact by changing his story in his summary 

judgment pleadings” and disregarding “new allegation” in favor of the “prior undisputed record” 

(citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999))). 

The local party plaintiffs lack standing for the additional reason that they have failed to 

show that the qualifying fees they have received cannot be used on FEA because they are, in 

fact, “nonfederal funds.” (Opp’n at 33.) This Court should decline plaintiffs’ invitation to 

 

4

 Examination Matter No. 7 of each of the FEC’s notices of deposition of JPGOP and 

OPGOP asked these plaintiffs to testify about: “YOUR claims in this case, including as set forth 

in YOUR COMPLAINT, and what YOU hope to achieve in this case.” (Def. FEC’s Mot. For 

Protective Order and to Quash Dep., Exh. 6 at ECF pp. 12, 19 (Docket No. 30-6).) 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 12 of 23
13 

determine what Louisiana state law allows. See, e.g., Harris Cty. Comm’rs Court v. Moore, 420 

U.S. 77, 83 (1975) (discussing Pullman abstention where “a federal constitutional claim is 

premised on an unsettled question of state law”); contra Opp’n at 32 (purporting to interpret state 

statute). But in any event, some qualifying fees can be used on FEA under federal law. The 

FECA provision plaintiffs challenge, 52 U.S.C. § 30125(b)(1), does not prohibit the use of 

qualifying fees for FEA. As the FEC explained in its opening brief, the Commission has 

exercised its delegated authority and concluded in an advisory opinion that ballot access fees 

established by Florida law can in certain instances be used on federal activities, and LAGOP 

itself has done just this. (Mem. at 6 (citing Advisory Op. 1988-33, 1988 WL 170426 (Oct. 11, 

1988).) The Commission has also explained that “‘[a]s a general rule, if the funds in question 

are from permissible sources (e.g., individuals) rather than from persons prohibited from making 

contributions under federal law (e.g., corporations, labor organizations, foreign nationals),’” they 

may be used on federal activity. (Id. (quoting FEC, Political Party Committees at 18 (Aug. 

2013), http://www.fec.gov/pdf/partygui.pdf).) 

The Commission has not yet determined whether qualifying fees paid for ballot access 

and remitted to party committees such as plaintiffs under Louisiana’s particular statutory regime 

may be used on federal activities such as FEA. Nevertheless, using the facts the FEC was able to 

obtain in discovery and the agency’s past approach of making the regulatory determination by 

tracing the source of the funds (consistent with the text of section 30125(b)(1)), it appears that 

federal law may not prevent some or all of the funds JPGOP and OPGOP collect as qualifying 

fees from being used on FEA. JPGOP’s representative testified that Louisiana’s scheme requires 

qualifying fees to be paid by individuals seeking to become members of a local parish executive 

committee. (Exh. 5, JPGOP 30(b)(6) Dep. at 23:15-24:4 (Docket No. 40-5) (“Q. So am I 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 13 of 23
14 

understanding correctly that if someone wanted to become a member of [JPGOP] they would 

have to pay a qualifying fee? A. That’s correct. Q. And a portion of that would be remitted to 

[JPGOP’s] funds? A. That’s correct.”).) In order to become a member of a parish executive 

committee such as JPGOP or OPGOP, Louisiana currently requires candidates to pay a $75 fee, 

in addition to which the local committees can add a fee of $37.50. Louisiana Secretary of State, 

Fees/Nominating Petitions to Qualify for Office at 18-19 (original pagination), 

http://www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/CandidateQualifyingFees.pdf. 

Thus, since each of JPGOP’s nearly three-dozen members (see Exh. 7, JPGOP 30(b)(6) Dep. at 

15:4-10 (JPGOP has 35 members)) paid these fees, at least $1,312.50 ($37.50 x 35) of the funds 

JPGOP receives per elected term appears to be from federally-permissible sources. 

Whether any portion of the fees in the local party plaintiffs’ accounts ultimately comes 

from a prohibited source such as a corporation is something plaintiffs have not even attempted to 

show. Accordingly, even if plaintiffs want to make a federal case out of whether qualifying fees 

can be used on FEA, they have failed to carry their burden of “establishing the three elements 

that make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, 

causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) 

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Where courts “lack a 

sufficiently specific record, [they] have declined to issue as-applied remedies” and have found 

jurisdiction lacking. E.g., Justice v. Hosemann, 771 F.3d 285, 294 (5th Cir. 2014), cert. denied, 

No. 15-682, 2016 WL 1278657 (2016). Had plaintiffs made clear that the local plaintiffs’ claims 

revolve entirely around such fees at an earlier point in this litigation, the Commission could have 

learned the necessary facts to determine whether such fees could qualify as federal funds. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 14 of 23
15 

The Court also lacks jurisdiction because the local parties’ claims amount to a challenge 

to the FEC’s regulatory implementation of the statute, rather than the statute itself. See supra pp. 

9-10. Plaintiffs have failed to connect the potential use or non-use of qualifying fees on FEA 

with the statutory provision they challenge, 52 U.S.C. § 30125(b)(1). Section 30125(b)(1) does 

not directly address qualifying fees, so even if plaintiffs had a ripe constitutional challenge here, 

any alleged constitutional infirmities would be found in the FEC’s implementation of section 

30125(b)(1), “rather than the statute itself.” McConnell, 540 U.S. at 223; Bluman v. FEC, 766 F. 

Supp. 2d 1, 4 (D.D.C. 2011) (“[I]ssues concerning the [FEC’s] regulations are not appropriately 

raised in [a] facial challenge to BCRA, but must be pursued in a separate proceeding . . . .” 

(internal quotation marks omitted)). 

C. The Local Plaintiffs Also Lack Standing Because They Have Failed to Show 

That They Want to Spend Money on FEA 

The local party plaintiffs’ standing arguments also fail because they have not shown that 

any of their planned activities would actually cost money or otherwise entail a real injury. Their 

claim that they have been injured because they have been barred from emailing “the nonpartisan 

‘Get Registered’” article (Opp’n at 9-11) is incorrect. Section 30125(b)(1) regulates the 

“expend[ing]” or “disburs[ing]” of “amount[s]” for FEA. 52 U.S.C. § 30125(b)(1). Plaintiffs 

euphemistically characterize the email as “inexpensive” (Opp’n at 9), but as JPGOP’s 

representative testified, the local plaintiffs would have incurred a cost of $0 in creating and 

sending the “Get Registered” email: 

Q. Are there any expenses that [JPGOP] incurs in connection with emails 

that it sends? 

A. Do you get charged for emails? 

Q. Well, I’m asking you. 

A. When I send an email it comes from my personal account. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 15 of 23
16 

Q. Maybe I can give you an example that might show you what I’m 

asking about, or might help clarify. Does [JPGOP] purchase, for instance, 

a list of email address to which it then sends email notifications? 

A. No. 

Q. Would [JPGOP] pay a vendor to send out [email]-blasts about a certain 

activity? 

A. No. 

(Exh. 7, JPGOP 30(b)(6) Dep. at 28:3-17; Exh. 8, OPGOP 30(b)(6) Dep. at 46:2-7 (testifying 

that OPGOP members also use their personal email accounts).) Because the local plaintiffs are 

volunteer organizations, any time spent deciding to send the email, navigating to LAGOP’s 

website, copying and pasting the “Get Registered” text into the email, populating the “to” field, 

clicking send, and so on, are not expenses paid by the committee in the form of salary. Exh. 7, 

JPGOP 30(b)(6) Dep. at 19:7-11 (JPGOP has no employees, only volunteers); Exh. 8, OPGOP 

30(b)(6) Dep. at 27:22-28:3 (same for OPGOP); 52 U.S.C. § 30101(8)(B)(i) (uncompensated 

services of an individual volunteer are not contributions); 11 C.F.R. § 100.94(a)-(c), 100.155(a)-

(c) (providing that certain uncompensated Internet activities by an individual are neither 

contributions nor expenditures, including sending “electronic messages”). Thus, as the 

Commission explained in its opening brief, plaintiffs’ complaint is indeed “devoid of allegations 

discussing specific FEA [the local plaintiffs] wish to spend money on.” (Mem. at 12-13 

(emphasis added); contra Opp’n at 29.) 

Nor is there any actual “screening problem” that prevents the local plaintiffs from 

receiving even a $1 individual contribution on the basis that the contributor may have already 

“given the base limit amount to LAGOP, which would preclude giving $1 . . . except as nonFECA-complaint funds that could not be used for FEA absent requested relief.” (Opp’n at 30.) 

Plaintiffs raise this supposed “screening problem” with respect to the individual who contributed 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 16 of 23
17 

$1 to JPGOP. (See id.)

5

 While the FEC has already shown through LAGOP’s own testimony 

that the screening problem is actually no problem whatsoever (Mem. at 18), plaintiffs’ 

opposition brief further confirms the point. As plaintiffs note, there is only one individual who 

has contributed the maximum of $10,000 to LAGOP in the current 2015-2016 cycle: “‘Mr. 

Dave Roberts.’” (Opp’n at 20 n.19.) Because Mr. Roberts is the only such maxed-out 

contributor plaintiffs are aware of (the next-highest contributor to LAGOP gave $5,000), the 

“screening problem” merely requires the local committees to ask: is Dave Roberts the $1 

contributor? If yes, then it is a prohibited contribution. If no, then it is not. (See also Exh. 7, 

JPGOP 30(b)(6) Dep. at 77:9-78:6 (testifying that JPGOP could simply ask LAGOP about a 

contributor if it is unsure if it may use a contribution on FEA); id. at 64:8-13 (testifying that even 

if the relevant contributor information was available on a regulator’s website it would not be 

“reasonable” to have to use that resource).) Moreover, plaintiffs’ willingness to comply with 

Louisiana’s $100,000 contribution limit confirms the pretextual nature of their screening 

contentions. The litigation-concocted fear of receiving an excess contribution applies whether 

the limit is $10,000 per year or $100,000 per every four years. Accordingly, these contentions 

are “‘[p]ure applesauce’” (Mem. at 18) and are insufficient to establish standing. 

Plaintiffs’ arguments about certain FEA JPGOP may have had on its website similarly 

fail to salvage JPGOP’s standing. (Opp’n at 36 n.31.) Plaintiffs failed to make any allegations 

concerning this supposed injury in their complaint, and this supposed injury was discovered as a 

result of the litigation (not the other way round). In any case, plaintiffs themselves admit that 

JPGOP “has no idea how to value the inadvertent FEA on its website.” (Id.) Clearly, then, 

JPGOP neither “expended [n]or disbursed” amounts for this activity. 52 U.S.C. § 30125(b)(1); 

 

5

 As noted in the FEC’s opening brief, standing must exist at the time a suit is filed. 

(Mem. at 8, 19.) The alleged $1 contribution was given after the suit was filed. 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 17 of 23
18 

accord Louisiana Ethics Administration, Committee’s Report (JPGOP) at 4, 

http://ethics.la.gov/CampaignFinanceSearch/LA-57544.pdf (reporting no expenditures in 

connection with JPGOP’s website in all of 2015)6

; 11 C.F.R. § 100.94(a)-(c), 100.155(a)-(c) 

(providing that certain uncompensated Internet activities by an individual are neither 

contributions nor expenditures, including creating, maintaining, “or hosting a website”). 

In sum, despite plaintiffs’ shifting intentions and attempts to obscure the facts on the 

ground, it is clear that JPGOP and OPGOP do not have standing. They disclaimed their desire to 

use qualifying fees on FEA. They have failed to establish the facts necessary to show that using 

qualifying fees would be prohibited under section 30125(b)(1), as opposed to a regulatory 

implementation of that provision, even if qualifying fees were at issue. They have also failed to 

identify any FEA that they actually want to spend money on. And they have incorrectly 

represented the supposed burdens stemming from reporting obligations that would apply to such 

hypothetical activity, as they do not dispute. (Mem. at 14 (correcting plaintiffs’ erroneous 

contention that the local plaintiffs must comply with reporting requirements).) The Court should 

look past the counterfactual representations in plaintiffs’ briefs and conclude, in accordance with 

the credible and spontaneous testimony of OPGOP’s representative, that there is in fact nothing 

these committees would like to do but cannot — indeed, they have not “actually sat down and 

thought about what those things might be.” (Exh. 6, OPGOP 30(b)(6) Dep. at 37:19-38:10, 39:4-

23.) Because even the single-judge district court would lack jurisdiction over these plaintiffs’ 

claims, they must be dismissed. Shapiro v. McManus, 136 S. Ct. 450, 455 (2015). 

 

6

 The itemized “telephone line” expenditure is apparently a line JPGOP pays for “[i]n the 

home of a longtime republican activist.” (Exh. 5, JPGOP 30(b)(6) Dep. at 24:5-13.) 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 18 of 23
19 

IV. LAGOP ALSO LACKS STANDING IN THIS COURT 

The FEC’s opening brief and the foregoing analysis explain why LAGOP does not have 

any Article III injury with respect to the individual contributions it is not being prevented from 

using on FEA, see supra pp. 5-9, or with respect to the qualifying fees it previously said were 

irrelevant, see supra pp. 10-15. LAGOP also does not dispute that transfers it receives from the 

Republican National Committee can be used on FEA. (Mem. at 5, 7.) As for data fees, plaintiffs 

now state that “data fees have been placed in the LAGOP state account that it wants to use for 

independent-communication FEA.” (Opp’n at 19.) Plaintiffs rely on the LAGOP 

representative’s testimony that LAGOP has placed FECA-compliant data fees that an individual 

“running for state office . . . paid for with [her or her] personal [credit] card” into LAGOP’s 

nonfederal account. (Exh. 4, LAGOP 30(b)(6) Dep. at 110:1-17; Opp’n at 19 n.18.) But this 

testimony does not establish an injury. It establishes that LAGOP chose not to make these funds 

available for use on FEA. Plaintiffs have failed to show any injury with respect to these sources 

of funds, and any injury they might be imagined to have in not being able to transfer funds from 

a nonfederal to federal account is a regulatory injury having nothing to do with section 

30125(b)(1), which on its face permits the use of FECA-compliant funds. See supra pp. 9-10. 

The jurisdictional issue with respect to corporate and union contributions is different. 

Having stated in their complaint that they intend to comply with at least some of FECA’s ban on 

using corporate contributions, specifically citing 52 U.S.C. § 30118(a) as a “provision” of 

“applicable federal law” they would comply with (Compl. ¶ 107), plaintiffs now make clear that 

LAGOP in fact does not intend to comply with section 30118(a) in its entirety (Opp’n at 17-18). 

Plaintiffs now say directly that “LAGOP wants to use corporate/union donations.” (Id. at 16; 

compare id. (“FEC’s foundation — that LAGOP wants to use donations from only individuals

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 19 of 23
20 

for intended FEA — is erroneous. Nowhere has any Plaintiff said that, and FEC cites no such 

statement.”), with Mem. at 16 (quoting plaintiffs’ unqualified statement that what is at issue in 

this case — not just LAGOP’s alternative claim in Count II — is “the right of state and local 

committees to make independent communications . . . with . . . contributions, from individuals, 

that they have and routinely raise” (internal quotation marks omitted)). It now appears that 

plaintiffs’ vague references to nonfederal funds have been a stalking horse for an attempt to 

obtain a ruling from the Court that would allow corporations and unions to make large 

contributions to political parties for use on activities affecting federal elections. 

Plaintiffs agree that it is “true” that this three-judge BCRA Court lacks jurisdiction to 

invalidate FECA’s ban on corporate contributions in section 30118(a). (Opp’n at 18.) They 

nevertheless cast this jurisdictional impediment as a “red herring” by analogizing to the singlejudge Court’s jurisdictional determination that granting plaintiffs the relief they seek could 

redress their purported injuries without formally invalidating FECA’s base contribution limits. 

(Id.; see also Mem. Op. at 14.) Not so fast. The Court’s determination that issuing a ruling 

invalidating section 30125(b)(1) would render the limits of 52 U.S.C. § 30116(a)(1)(D) 

meaningless “without having to invalidate [those] base contribution limits” (Mem. Op. at 14) 

does not apply to the corporate contribution prohibition in section 30118(a). Plaintiffs are 

challenging section 30118(a)’s corporate contribution prohibition because plaintiffs have now 

explicitly clarified that what they pled in paragraph 107 of the complaint is that they do not wish 

to comply with that element of section 30118(a). (Opp’n at 17-18; Compl. ¶ 107 (listing 

provisions plaintiffs “want” to comply with).) If plaintiffs are requesting to be permitted to use 

corporate and union contributions, and they themselves acknowledge that the relief they seek 

will be consistent with some — but not all — of section 30118(a), that position cannot be 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 20 of 23
21 

construed as anything but a challenge to the portion of section 30118(a) that plaintiffs do not 

wish to comply with. Put another way, if plaintiffs could obtain the relief of using corporate and 

union contributions without invalidating a portion of section 30118(a), they could have stated in 

their complaint that they would comply with all of section 30118(a). They did not. This Court 

does not have the power to grant plaintiffs’ wish not to comply with section 30118(a). Plaintiffs’ 

complaint and opposition brief necessarily reveal what plaintiffs have attempted to obfuscate: if 

corporate or union funds are at issue, this case necessarily challenges section 30118(a). 

Moreover, section 30118(a) is distinct from section 30116(a)(1)(D) for jurisdictional 

purposes because the corporate contribution ban on federal activity is directly implicated in 

plaintiffs’ challenge to section 30118(a). For one thing, the restrictions of section 30118(a) 

apply even to the first dollar plaintiffs wish to spend on FEA. Plaintiffs cannot avoid that 

limitation provision in the same way they have sought to avoid section 30116(a)(1)(D)’s — by 

alleging that the case is about a potentially compliant $1 contribution. There is also a textual 

difference between section 30116(a)(1)(D) and section 30118(a). Section 30118(a) provides in 

part that “[i]t is unlawful . . . for any corporation whatever, or any labor organization, to make a 

contribution . . . in connection with any election at which presidential and vice presidential 

electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress 

are to be voted for.” 52 U.S.C. § 30118(a) (emphasis added). Far from being a new provision or 

amendment of BCRA, as is required for jurisdiction in this Court, this was substantially the text 

Congress first passed in the Tillman Act of 1907. Tillman Act, Chap. 420, 34 Stat. 864-65. 

Plaintiffs themselves contend that section 30118(a)’s “in connection with” language 

encompasses “payments for [FEA]” (Opp’n at 18 n.16 (internal quotation marks omitted)). It is 

thus undisputed here that section 30118(a) itself prohibits plaintiffs’ proposed conduct as to 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 21 of 23
22 

corporate and union contributions. Unlike in McConnell and Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150 (D.D.C. 2010), aff’d, 561 U.S. 1040 (2010), where the state plaintiffs’ 

BCRA claims asserted in part that the definition of FEA itself improperly reached purportedly 

non-federal activities, plaintiffs in this case concede the federal nature of their desired FEA, and 

they place an increased focus on independence as the reason they should not have to comply with 

Congress’s regulation of soft money.7

 The animating theory behind plaintiffs’ lawsuit is that 

“[i]ndependence eliminates corruption,” e.g., Pls.’ Mem. Supporting Their Mot. for Summ. J. at 

27 (Docket No. 33), not that the FEA they wish to do is not actually “federal” activity. So even 

if plaintiffs were to prevail on their challenge to section 30125(b)(1), their proposed conduct 

would still be prohibited by section 30118(a). 

Plaintiffs’ wistful notion that striking section 30125(b)(1) as requested “should return 

[the law] to the way [things] were before BCRA’s FEA provisions” (Opp’n at 42 n.33) is wrong 

on its face. In this challenge, the federal nature of FEA is conceded and plaintiffs therefore 

cannot escape section 30118(a)’s more-than-century-old text because neither this Court nor the 

FEC is free to interpret section 30118(a) as inapplicable to plaintiffs’ FEA on the basis that 

contributions for FEA — Federal election activity — are not “in connection with any election at 

which presidential and vice presidential electors or a Senator or Representative in, or a Delegate 

or Resident Commissioner to, Congress are to be voted for.” 52 U.S.C. § 30118(a).

Accordingly, while LAGOP may actually receive contributions covered by section 

30125(b)(1)’s and 30118(a)’s regulation of corporate and union contributions for FEA, plaintiffs 

cannot proceed on a challenge to those provisions in this Court because this Court is “unable to 

 

7

 Indeed, they even cancelled plans to air advertisements supporting Governor Bobby 

Jindal without expressly advocating his election because he was no longer a candidate for federal 

office. (Opp’n at 6-7.) 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 22 of 23
23 

provide Plaintiffs the relief” of invalidating the portion of section 30118(a) they challenge (Mem. 

Op. at 14), which independently bars plaintiffs’ claims. Rufer v. FEC, 64 F. Supp. 3d 195, 203-

04 (D.D.C. 2014); McConnell, 540 U.S. at 229 (explaining that striking BCRA’s increases and 

indexes of FECA’s base contribution limits would not redress certain plaintiffs’ claimed injuries 

because such action would not invalidate the FECA base limits themselves). 

CONCLUSION 

For the foregoing reasons, and for those set out in the FEC’s opening memorandum, the 

Court should dissolve this three-judge Court with instructions to the single-judge Court to 

dismiss or, alternatively, dismiss the case for lack of jurisdiction. If the Court concludes that 

LAGOP has a cognizable challenge with respect to its desired use of corporate and union 

contributions on FEA, despite the absence of such pleading in plaintiffs’ complaint, this Court 

should be dissolved and LAGOP’s claim remanded for determination by the single-judge Court. 

Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

April 29, 2016 

Seth Nesin 

Attorney 

snesin@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:15-cv-01241-CRC-SS-TSC Document 56 Filed 04/29/16 Page 23 of 23