UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ FIRST MOTION IN LIMINE 

_______________________________________________________

For the reasons set forth in more detail in the attached memorandum of points and 

authorities, Plaintiffs respectfully move for the exclusion of the following improper 

evidence:1

A. Expert reports and declarations of expert witness that were not timely 

disclosed to Plaintiffs: 

1. Declaration of Chairman Ross Johnson (Def.’s Ex. 2); 

2. Declaration of Robert Rozen (Def.’s Ex. 3); 

3. Results of Nationwide Poll, Zogby International, Aug. 25, 2008 

(Def.’s Ex. 96); 

4. Declaration of P. Michael Calogero (Def.’s Ex. 97). 

 

1

 Because much of the FEC’s evidence is inadmissible on multiple grounds, some documents will appear in 

multiple categories. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 1 of 52
2

B. Declarations and affidavits that were prepared for other cases, not this case: 

1. Declaration of John McCain (cited in ¶ 309 but not included as an 

exhibit); 

2. Declaration of Gerald Greenwald (cited in ¶ 143 but not included as an 

exhibit); 

3. Declaration of Robert Shapiro (cited in ¶¶ 133, 339 but not included as 

an exhibit); 

4. Declaration of Jonathan Krasno & Frank Sorauf (cited in ¶¶ 365-66 

but not included as an exhibit); 

5. Declaration of Rocky Pennington (Def.’s Ex. 33); 

6. Declaration of Joe Lamson (Def.’s Ex. 34); 

7. Declaration of Terry S. Beckett (Def.’s Ex. 35); 

8. Declaration of Elaine Bloom (Def.’s Ex. 36); 

9. Declaration of Senator Dale Bumpers (Def.’s Ex. 64); 

10. Declaration of Alan K. Simpson (Def.’s Ex. 65); 

11. Declaration of Elaine Bloom (Def.’s Ex. 66);2

12. Declaration of Pat Williams (Def.’s Ex. 67); 

13. Declaration of Linda W. Chapin (Def.’s Ex. 68); 

14. Affidavit of Robert Drake and survey results, dated March 28, 2008, 

attached to Second Renewed Joint Motion for Disqualification of 

Justice Benjamin (Def.’s Ex. 95); 

15. Declaration of Robert Hickmott (Def.’s Ex. 114). 

C. Fact witnesses that were not timely disclosed to Plaintiffs: 

1. Declaration of Kevin Yowell (Def.’s Ex. 4); 

2. Declaration of Michael Bright (Def.’s Ex. 6). 

D. Documents that were not timely disclosed to Plaintiffs: 

1. Annenberg Public Policy Center, Electing the President, 2004: The 

Insiders’ View (Kathleen Hall Jamieson ed., 2005) (Def.’s Ex. 50); 

2. Center for the Study of Elections and Democracy, 527s Had a 

Substantial Impact on the Ground and Air Wars in 2004, Will Return: 

Swift Boat Veterans 527 Played Historic Role (Dec. 16, 2004) (Def.’s 

Ex. 51); 

3. Testimony of Michael J. Malbin, Executive Director of the Campaign 

Finance Institute, before the Senate Committee on Rules and 

Administration (Mar. 8, 2005) (Def.’s Ex. 116); 

4. Advisory Opinion Request 2008-10 (Def.’s Ex. 120); 

5. Comment by SaysMe.tv on AOR 2008-10 (Def.’s Ex. 121); 

6. Anthony Corrado and Katie Varney, Party Money in the 2006 

Elections (Campaign Finance Institute, 2007) (Def.’s Ex. 135). 

 

2

 Defendants have identified this declaration as both Ex. 36 and Ex. 66. Both are inadmissible. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 2 of 52
3

E. Exhibits offered for inadmissible hearsay: 

1. Declaration of Rocky Pennington (Def.’s Ex. 33); 

2. Declaration of Joe Lamson (Def.’s Ex. 34); 

3. Declaration of Terry S. Beckett (Def.’s Ex. 35); 

4. Declaration of Elaine Bloom (Def.’s Ex. 36); 

5. FPPC, Independent Expenditures: The Giant Gorilla in Campaign 

Finance, June 2008 (Def.’s Ex. 47); 

6. Michael Janofsky, Advocacy Groups Spent Record Amount of 2004 

Election, N.Y. Times, Dec. 17, 2004 (Def.’s Ex. 48); 

7. Annenberg Public Policy Center, Electing the President, 2004: The 

Insiders’ View (Kathleen Hall Jamieson ed., 2005) (Def.’s Ex. 50); 

8. Center for the Study of Elections and Democracy, 527s Had a 

Substantial Impact on the Ground and Air Wars in 2004, Will Return: 

Swift Boat Veterans 527 Played Historic Role (Dec. 16, 2004) (Def.’s 

Ex. 51); 

9. Tyler Whitley, Group Glories in Kerry’s Defeat; Swift Boat Veterans 

Pleased Ad Campaign Paid Off, Says Local Organizer of Effort, 

Richmond Times Dispatch, Nov. 8, 2004 (Def.’s Ex. 52); 

10. Documents Produced by Alex Spanos (Def.’s Ex. 53); 

11. Documents Produced by Peter B. Lewis (Def.’s Ex. 54); 

12. The Election After Reform, Money Politics and the Bipartisan 

Campaign Reform Act (Michael J. Malbin ed. 2006) (excerpts: Chapter 

5, Weissman & Hassan and Chapter 6, Boatright, Malbin, Rozell, and 

Wilcox) (Def.’s Ex. 55); 

13. Jim Rutenberg, Democrat’s Ads in Tandem Provoke G.O.P., N.Y. 

Times, Mar. 27, 2004) (Def.’s Ex. 56); 

14. David Rosenbaum, Campaign Finance: The Hearings; Oilman Says 

He Paid For Access by Giving Democrats $300,000, N.Y. Times, 

Sept. 19, 1997) (Def.’s Ex. 57); 

15. Stephen R. Weissman and Kara D. Ryan, Soft Money in the 2006 

Election and the Outlook for 2008/The Changing Nonprofits 

Landscape (Campaign Finance Institute Report 2007) (Def.’s Ex. 58) 

16. Kate Zernike and Jim Rutenberg, Friendly Fire: the Birth of an Attack 

on Kerry, N.Y. Times, Aug. 20, 2004 (Def.’s Ex. 60); 

17. Glen Justice and Eric Lichtblau, Bush Backers Donate Heavily to 

Veteran Ads, N.Y. Times, Sept. 11, 2004 (Def.’s Ex. 61); 

18. Glen Justice and Jim Rutenberg, Advocacy Groups and Campaigns: 

An Uneasy Shuttle, N.Y. Times, Sept. 8, 2004 (Def.’s Ex. 62); 

19. Peter H. Stone, Betting Man, NAT’L J., May 10, 2008 (Def.’s Ex. 63); 

20. Declaration of Senator Dale Bumpers (Def.’s Ex. 64); 

21. Declaration of Alan K. Simpson (Def.’s Ex. 65); 

22. Declaration of Elaine Bloom (Def.’s Ex. 66); 

23. Declaration of Pat Williams (Def.’s Ex. 67); 

24. Declaration of Linda W. Chapin (Def.’s Ex. 68); 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 3 of 52
4

25. Hillary Chabot, ‘I Can’t Be a Referee’: Drops 2004 crusade against 

‘527’ attack ads, Boston Herald, June 12, 2008 (Def.’s Ex. 69); 

26. Jim Rutenberg and Michael Luo, Interest Groups Step Up Efforts in a 

Tight Race, N.Y. Times, Sept. 16, 2008 (Def.’s Ex. 70); 

27. Marc Ambinder, Quietly, Obama Campaign Calls in the Cavalry, 

Sept. 8, 2008, available at http://marcambinder.theatlantic.com/ 

archives/2008/09/quietly_obama_campaign_flashes.php (Def.’s 

Ex. 71); 

28. Sam Stein, Source: Obama to Start Looking the Other Way on 527s, 

Huffington Post, Aug. 11, 2008, available at 

http://www.huffingtonpost.com/2008/08/11/sourceobama-to-startloo_n_118240.html (Def.’s Ex. 72); 

29. Greg Sargent, Top Democrats Privately Urging Major Donors to Fund 

Outside Groups to Attack McCain, Talking Points Memo, available at 

http://tpmelectioncentral.talkingpointsmemo.com/2008/09/top_democr

ats_privately_urging.php (Def.’s Ex. 73); 

30. Scott Helman, Romney Seeks to be Alternative to McCain, Boston 

Globe, Sept. 23, 2006, at A1 (Def.’s Ex. 74); 

31. Steve Weissman and Margaret Sammon, Fast Start for Soft Money 

Groups in 2008 Election[:] 527s Adapt to New Rules, 501(c)(4)s on 

the Upswing (Report from the Campaign Finance Institute, Apr. 3, 

2008), available at http://www.cfinst.org/pr/prRelease.aspx?ReleaseID 

=188 (Def.’s Ex. 75); 

32. White House News Release, Guest List for the State Dinner in Honor 

of Her Majesty Queen Elizabeth II and His Royal Highness the Price 

Philip, Duke of Edinburgh, May 7, 2007; Statement on House and 

Senate Resolutions, Aug. 2, 2005; President Bush Delivers 

Commencement Address at Oklahoma State University, May 6, 2006 

(Def.’s Ex. 77); 

33. John Fund, Energy Independent: Maverick Oilman Boone Pickens 

Talks About Fuel Prices and His Love For Philanthropy, Wall St. J., 

June 2, 2007 (Def.’s Ex. 78); 

34. Mike Allen, Clintons Join Crusaders in New York, Wash. Post, June 

27, 2005 (Def.’s Ex. 79); 

35. AP, Bush Withdraws “Swift Boat” Nominee, CBS News, March 28, 

2007 (Def.’s Ex. 81); 

36. White House Press Release, Personnel Announcement, December 4, 

2006 (Def.’s Ex. 82); 

37. AP, Bush Uses Recess Appointment Power to Install GOP Fundraiser 

Sam Fox as Ambassador, Fox News, Apr. 4, 2007; Al Kamen, Recess 

Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees, 

Wash. Post, Apr. 5, 2007; Susan Page and David Jackson, Bush 

Bypasses Senate to Appoint ‘Swift Boat’ Donor, USA Today, Apr. 5, 

2007; Mary Ann Akers, Biden Slams Sam Fox Recess Appointment, 

Wash. Post, Apr. 5, 2007 (Def.’s Ex. 84); 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 4 of 52
5

38. Glenn R. Simpson, Lender Lobbying Blitz Abetted Mortgage Mess, 

Wall Street J., Dec. 31, 2007 (Def.’s Ex. 85); 

39. White House Press Release, Personnel Announcement, July 28, 2005 

(Def.’s Ex. 86); 

40. Scott Reckard, Ambassador Nominee’s Company is Scrutinized, L.A. 

Times, Aug. 7, 2005 (Def.’s Ex. 87); 

41. Steven Nicely, Tribe Again Pushes for KCK Bingo Hall, Kansas City 

Star, Oct. 3, 1998 (Def.’s Ex. 88); 

42. Rick Alm and Jim Sullinger, Congressman Calls Lobbyist’s Tactics 

Illegal – Lobbyist Argued Monday Over Whether Papers Faxed to the 

Congressman’s Office Last Month Were A Veiled Attempt to Buy His 

Vote, Kan. City Star, Oct. 6, 1998; Tim Carpenter, Kansas Lawmaker 

Alleges Bribery Try on Gaming Issue, Journal-World (Lawrence, 

Kan.), Oct. 8, 1998 (Def.’s Ex. 89); 

43. Steven Walters and Patrick Marley, Chvala Reaches Plea Deal, 

Milwaukee J. Sentinel, Oct. 24, 2005 (Def.’s Ex. 91); 

44. Steve Schultze and Richard P. Jones, Chvala Charged With Extortion, 

Milwaukee J. Sentinel, Oct. 18, 2002 (Def.’s Ex. 92); 

45. Testimony of Derek Cressman, Government Watchdog Director of 

Common Cause, Hearing of the California Fair Political Practices 

Commission, Feb. 14, 2008 (Def.’s Ex. 93); 

46. Chris Dickerson, Company Asks Benjamin to Recuse Himself Again, 

This Time with Poll Numbers, Legal Newsline.com, Mar. 8, 2008 

(Def.’s Ex. 94); 

47. Matthew Mosk, Economic Downturn Sidelines Donors to ‘527’ 

Groups, Wash. Post, Oct. 19, 2008 (Def.’s Ex. 98); 

48. Howard Jarvis Taxpayers Association, About Us, 

http://www.hjta.org/aboutus (visited Feb. 26, 2008) (Def.’s Ex. 102); 

49. Frank Luntz, Why Bush Won the Credibility Factor, Wash. Times, 

Nov. 5, 2004 (Def.’s Ex. 106); 

50. Jane Mayer, The Money Man: Can George Soros’s Millions Insure the 

Defeat of President Bush, New Yorker, Oct. 18, 2004 (Def.’s Ex. 107); 

51. Glen Justice, Advocacy Group Reflect on Their Role in the Election, 

N.Y. Times, Nov. 5, 2004 (Def.’s Ex. 111); 

52. Jack Cashill, Moore of the Same Old Stuff, Ingram’s, Nov. 1999 

(Def.’s Ex. 112); 

53. Declaration of Robert Hickmott (Def.’s Ex. 114); 

54. Testimony of Michael J. Malbin, Executive Director of the Campaign 

Finance Institute, before the Senate Committee on Rules and 

Administration (Mar. 8, 2005) (Def.’s Ex. 116); 

55. Lisa Vorderbrueggen, Run a ‘clean’ campaign, get public funds, The 

Contra Cost Times, January 6, 2006, at F4 (Def.’s Ex. 117); 

56. Anthony Corrado and Katie Varney, Party Money in the 2006 

Elections (Campaign Finance Institute, 2007) (Def.’s Ex. 135). 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 5 of 52
6

F. Documents quoted for inadmissible hearsay but not included as exhibits 

(paragraph numbers refer to Defendant’s Proposed Findings of Fact): 

1. Richard N. Engstrom and Christopher Kenny, The Effects of 

Independent Expenditures in Senate Elections, Pol. Research Quarterly 

55 (4):885-905 at 885 (2002) (¶ 80); 

2. Gary C. Jacobson, The Effect of the AFL-CIO’s “Voter Education” 

Campaigns on the 1996 House Elections, 61 J. Pol. (1): 185-94) 

(¶ 81); 

3. Wilcox Interview with Tom Daschle (¶¶ 84, 154); 

4. David B. Magleby and Jonathan W. Tanner, Interest Group 

Electioneering in the 2002 Congressional Elections, in The Last 

Hurrah? Soft Money and Issue Advocacy in the 2002 Congressional 

Elections (David B. Magleby et al. eds., 2004)) (¶¶ 92, 128); 

5. David B. Magleby et al., The Morning After: The Lingering Effects of 

a Night Spent Dancing, in Dancing Without Partners: How 

Candidates, Parties, and Interest Groups Interact in the Presidential 

Campaign 25 (David B. Magleby et al., eds. 2007) (¶¶ 100, 102); 

6. David B. Magleby, Conclusions and Implications for Future Research, 

in The Other Campaign: Soft Money and Issue Advocacy in the 2000 

Congressional Elections (David Magleby, ed. 2003) (¶ 117); 

7. David B. Magelby and J. Quin Monson, Interest Groups in American 

Campaigns: the New Face of Electioneering, in The Last Hurrah? Soft 

Money and Issue Advocacy in the 2002 Congressional Elections 

(David B. Magleby et al. eds., 2004) (¶ 118); 

8. Center for the Study of Elections and Democracy at Brigham Young 

University, transcript, release of Dancing Without Partners, Feb. 7, 

2005 (¶¶ 119, 249); 

9. Richard Berke, Aide Says Bush Will Do More to Marshal Religious 

Base, N.Y. Times, Dec. 12, 2001 (¶ 126); 

10. David D. Kirkpatrick, Bush Appeal to Churches Seeking Help Raises 

Doubts, N.Y. Times, July 2, 2004, at A15 (¶ 126); 

11. Clyde Wilcox and Carin Larson, Onward Christian Soldiers: The 

Christian Right in American Politics, 3rd ed., 2006) (¶ 126); 

12. Interview with Paul Manafort by Jules Witcover, The Buying of the 

President, Center for Public Integrity, March 20, 2007 (¶ 127); 

13. Mark E. Warren, What Does Corruption Mean in a Democracy?, 48 

Am. J. Pol. Sci. 328-43 (2004) (¶ 133); 

14. Dennis F. Thompson, Ethics in Congress: From Individual to 

Institutional Corruption (1995) (¶¶ 133, 315); 

15. Mark E. Warren, Democracy and Deceit: Regulating Appearances of 

Corruption, 50 Am. J. Pol. Sci. 160-74 (2006) (¶¶ 133, 315); 

16. Robert Y. Shapiro, Public Attitudes Toward Campaign Finance 

Practice and Reform, in Inside the Campaign Finance Battle (Anthony 

Corrado et al., eds., 2003) (Shapiro Declaration from McConnell) 

(¶¶ 133, 339); 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 6 of 52
7

17. Michael J. Malbin, Rethinking the Campaign Finance Agenda, 6 The 

Forum, Iss. 1 Art. 3, at 3 (2008) (¶ 134); 

18. Peter L. Francia et al., The Financiers of Congressional Elections: 

Investors, Ideologues, and Intimates (2003) (¶ 137); 

19. Gerald Greenwald, Corporate America Contributes Soft Money Under 

Pressure, in Inside the Campaign Finance Battle (Anthony Corrado et 

al., eds., 2003) (Greenwald Declaration from McConnell (paragraph 

9)) (¶ 143); 

20. Mark J. Rozell and Clyde Wilcox, Interest Groups in American 

Campaigns: the New Face of Electioneering (1999) (¶ 144); 

21. Wilcox Interview with David Magleby (¶ 208); 

22. Juliet Eiperin, Small Business Group Sticks to One Side of Political 

Fence, Wash. Post May 16, 2002 at A23 (¶ 218); 

23. David B. Magleby and Kelly D. Patterson, War Games: Issues and 

Resources in the Battle for Control of Congress, in Center for the 

Study of Elections and Democracy Report (2007) (¶ 219); 

24. Wilcox Interview with Michael Bailey (¶ 222); 

25. Myra MacPherson, The New Right Brigade, Wash. Post, Aug. 10, 

1980. (¶ 227); 

26. David B. Magleby and J. Quin Monson, The Consequences of 

Noncandidate Spending, and a Look to the Future, in The Last 

Hurrah? Soft Money and Issue Advocacy in the 2002 Congressional 

Elections (David B. Magleby et al. eds., 2004) (¶ 228); 

27. Press Release, FEC, 2004 Presidential Campaign Financial Activity 

Summary, Feb. 3, 2005 (¶ 247); 

28. Thomas B. Edsall, New Ways to Harness Soft Money in Works, The 

Washington Post August 25, 2002, at A1 (¶ 251); 

29. Facsimile transmission to Congressman Snowbarger (¶ 293); 

30. McCain, John, Congress is Mired in Corrupt Soft Money, in Inside the 

Campaign Finance Battle (Anthony Corrado et al., eds., 2003) 

(McCain Declaration from McConnell (paragraph 8) (¶ 309); 

31. Jonathan S. Krasno and Frank Sorauf, Issue Advocacy and the 

Integrity of the Political Process, in Inside the Campaign Finance 

Battle (Anthony Corrado et al. eds., 2003) (Krasno and Sorauf 

Declaration from McConnell) (¶¶ 365, 366). 

Because the above-cited evidence is inadmissible, Plaintiffs further move that this 

court reject the proposed findings that rely on that evidence and are contained in the 

following paragraphs of Defendant’s Proposed Findings of Fact: ¶¶ 80-81, 83-86, 88, 90-

92, 99-105, 107-10, 112-15, 117-20, 125-30, 133-34, 137, 143-44, 146-47, 154-55, 157-

59, 161, 167, 169-76, 178, 180, 182, 187-88, 192, 195, 198, 199-202, 204-19, 222, 224-

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 7 of 52
8

25, 227-28, 230-32, 234-36, 239, 243-44, 246-47, 249-51, 253, 255, 259-60, 262-63, 266, 

268, 272, 275-76, 278-81, 288-97, 299-302, 306, 309-13, 315-16, 326, 328, 333-35, 339, 

343-44, 353-57, 359, 365-66, 384, 386-90, 416, 437, and 445. 

Pursuant to Local Rule 7(m), counsel for Plaintiffs has conferred with counsel for 

the FEC concerning this motion. The FEC opposes this motion. 

Finally, Plaintiffs move that this Court reject any additional proposed findings of 

fact for which Plaintiffs have identified evidentiary problems in Plaintiffs’ Response to 

Defendant’s Proposed Findings of Fact. 

Dated: November 21, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

William H. Mellor (DC Bar No. 462072) 

Steven M. Simpson (DC Bar No. 462553) 

Robert Gall (DC Bar No. 482476) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 8 of 52
9

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on this 21st Day of November, 2008, a true and correct 

copy of PLAINTIFFS’ FIRST MOTION IN LIMINE was electronically filed using the 

court’s ECF system and sent via the ECF electronic notification system to the following 

counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson______

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 9 of 52
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF PLAINTIFFS’ FIRST MOTION IN LIMINE 

_______________________________________________________

Plaintiffs respectfully ask this Court to exclude several pieces of evidence presented by 

the FEC in its Proposed Findings of Fact. This evidence includes: (1) declarations of experts 

who did not prepare expert reports and who the FEC failed to disclose pursuant to Fed. R. Civ. P. 

26(a)(2); (2) declarations of witnesses from other cases; (3) declarations of witnesses that the 

FEC failed to disclose in a timely manner and documents that it never produced; (4) documents 

consisting of inadmissible hearsay; and (5) proposed factual findings that are inadmissible for 

various evidentiary reasons. (In a separate motion filed today, Plaintiffs ask for the exclusion of 

the unsworn expert report of Professor Clyde Wilcox.) 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 10 of 52
2

Throughout the discovery process, the FEC has simply ignored the agreed-upon 

discovery deadlines. As discussed below, even though it knew about experts and other witnesses 

on whose testimony it wished to rely well in advance of discovery deadlines—such as the 

deadline for expert disclosures—the FEC held back that information until after these deadlines 

passed. The FEC has further abused the discovery and evidentiary rules by relying on dozens of 

documents that plainly contain multiple layers of hearsay, relying on documents that it never 

produced to Plaintiffs or does not provide to this Court, asking third parties not to supply copies 

of signed declarations that were responsive to Plaintiffs’ subpoenas before those parties’ 

depositions, and failing to obtain or produce expert reports from several of its expert witnesses. 

In short, the FEC has treated the Federal Rules of Civil Procedure and Evidence as mere 

suggestions it is free to disregard. Unless the FEC is to profit by this sandbagging and flagrant 

disregard of the rules, this Court should exclude all of the evidence discussed below and decline 

to adopt the FEC’s proposed findings of fact relying on that evidence. 

I. The Declarations of P. Michael Calogero, Robert Rozen, and Ross Johnson Should 

Be Excluded Because They Are Either Improper Expert Testimony or Not Based on 

Personal Knowledge 

The FEC has attempted to introduce into evidence three separate declarations that should 

automatically be excluded under Rule 26(a)(2) of the Federal Rules of Civil Procedure. The first 

is the Declaration of P. Michael Calogero of Zogby International and a related public-opinion 

poll that the FEC commissioned. The second is the Declaration of Robert Rozen, who offers his 

expert opinion on the effect that campaign contributions have on the legislative process. The 

third is the declaration of Ross Johnson, chairman of the California Fair Political Practices 

Commission, who offers his expert opinion about the impact of independent expenditures in 

California. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 11 of 52
3

For the reasons more fully described below, all three declarations offer expert—not lay—

testimony. Thus the witnesses’ identities, along with expert reports produced by those witnesses, 

should have been provided to Plaintiffs under Rule 26(a)(2) by August 15. But none of these 

witnesses were identified by that time. Indeed, Rozen was not identified until after the close of 

discovery, and none of these witnesses were identified until well after expert rebuttal reports 

were due. Moreover, none of these witnesses provided an expert report. The Federal Rules of 

Civil Procedure require that before a party submits expert testimony into evidence, she must first 

disclose it to the opposing party according to the strictures of Rule 26(a)(2). Such disclosures 

must be complete, i.e., they must “be accompanied by a written report—prepared and signed by 

the witness”—and they must be timely. The FEC agreed that all expert disclosures would be 

made by August 15 and that all rebuttal disclosures would be made by September 15. Instead of 

following Rule 26(a)(2) and the agreed upon discovery schedule, the FEC delayed its disclosures 

until Plaintiffs were left with no time to respond. As explained below, exclusion in these 

circumstances is automatic. 

A. The FEC Identified Only One Expert Witness Before the August 15 

Deadline, and Identified No Rebuttal Witnesses. 

On June 6, 2008, and pursuant to Local Rule 16.3, the parties submitted to this court a 

Joint Scheduling Report, based on a schedule on which the parties agreed in late May. Paragraph 

nine of that report stated, in relevant part: 

Whether the requirements of exchange of expert witness reports and information pursuant 

to Rule 26(a)(2), F.R.Civ.P., should be modified, and whether and when depositions of 

experts should occur. 

The parties agree to the following schedule for expert disclosures: 

Experts identified and reports served pursuant to Rule 26(a)(2) by August 15, 2008

Rebuttal experts identified and reports served by September 15, 2008

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 12 of 52
4

Declaration of Robert Gall in Support of Plaintiffs’ First Motion in Limine (hereinafter, “Gall 

Decl.”), Ex. GG, Joint Scheduling Report at 5. 

In addition, the parties agreed that all fact discovery was to be completed by September 

26, 2008; all document requests, interrogatories, and requests for production were to be served 

by August 26, 2008. Id. at 4. While the parties subsequently agreed to modifications of the 

briefing schedule, the deadlines for both expert disclosures and discovery as a whole have 

remained unchanged. 

Operating under this schedule, Plaintiffs retained two expert witnesses to testify on their 

behalf: Jeffrey Milyo, a Professor of Economics at the University of Missouri, and Rodney 

Smith, a long-time political fundraiser and author. On August 15, 2008, Plaintiffs served the 

FEC with disclosures and expert reports for both witnesses. Gall Decl., Ex. A, Email from 

Steven M. Simpson to FEC (Aug. 15, 2008, 05:45 PM). On the same day, Plaintiffs received 

from the FEC a disclosure and expert report for Clyde Wilcox, a Professor of Political Science at 

Georgetown University. Gall Decl., Ex. B, Email from Steve Hajjar to Steven M. Simpson 

(Aug. 15, 2008, 04:58 PM), and attached Expert Witness Designation. Plaintiffs timely 

produced a rebuttal report by Professor Milyo regarding Professor Wilcox’s report on September 

15, 2008; the FEC identified no expert rebuttal witnesses and produced no rebuttal reports. Gall 

Decl., Ex. C, Email from Steven M. Simpson to FEC (Sept. 15, 2008, 08:26 PM). Thus, the FEC 

identified only one expert witness, Professor Wilcox, and produced only one expert report—his 

report of August 15, 2008. Accordingly, just as the only experts upon whose testimony Plaintiffs 

may rely for its proposed findings of fact are Professor Milyo and Rodney Smith, the only expert 

upon whose testimony the FEC may rely is Professor Wilcox. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 13 of 52
5

B. The Testimony of Calogero, Rozen, and Johnson Qualifies as Expert 

Testimony and Was Not Disclosed as Required by the Federal Rules of 

Civil Procedure 

Despite having properly identified only one expert witness, the FEC has subsequently 

relied on the expert testimony of three additional witnesses who were not timely disclosed and 

who did not submit expert reports: 

1. Expert Testimony of Calogero and the Zogby Survey 

On the evening of September 17, 2008—over one month after the expert disclosure 

deadline of August 15—the FEC sent Plaintiffs an email with an attachment entitled 

“SpeechNow—Supplement to Initial Disclosures (Calogero).” Gall Decl., Ex. D, Email from 

Steve Hajjar to Robert Gall and attached Supplement to Initial Disclosures (Sept. 17, 2008, 05:36 

PM). In that Supplement, the FEC said that it was disclosing the identity of a Mr. P. Michael 

Calogero of Zogby International (“Zogby”) along with the results of a survey that the FEC had 

commissioned from the polling firm. 

The admissibility of survey data is a question courts decide by applying the principles of 

Federal Rules of Evidence 702 and 703. See Fed. R. Evid. 703, 1972 advisory committee’s notes 

(“The rule also offers a more satisfactory basis for ruling upon the admissibility of public 

opinion poll evidence.”). Surveys, by definition, do not reflect the personal knowledge of the 

witness, and are developed using the witness’s specialized knowledge. Therefore, surveys must 

be presented through expert witnesses. Simon Prop. Group L.P. v. mySimon, Inc., 104 F. Supp. 

2d 1033, 1039 (S.D. Ind. 2000) (“Consumer survey results must be presented through expert 

witnesses.”). Accord Indianapolis Colts, Inc. v. Metro. Baltimore Football Club Ltd. P’ship, 34 

F.3d 410, 414-15 (7th Cir. 1994) (“[T]he parties to trademark disputes frequently . . . hire 

professionals in marketing or applied statistics to conduct surveys of consumers . . . [though the] 

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6

battle of the experts that ensues is frequently unedifying.”) (citations omitted); Bank of Utah v. 

Commercial Sec. Bank, 369 F.2d 19, 27 n.8 (10th Cir. 1966) ("[Survey proponents] should be 

required to show that: the persons conducting the survey were recognized experts . . . .") (quoting 

Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351, 429 

(Mar. 1960)). Courts, recognizing that survey evidence falls under the scope of Rules of 

Evidence 702 and 703, regularly perform their gatekeeper function under Daubert and Kumho to 

decide if an expert may rely on survey evidence when testifying. See, e.g., Johnson v. Big Lots 

Stores, Inc., No. 04-3201, 2008 U.S. Dist. LEXIS 35316, at *15 (E.D. La. Apr. 29, 2008) 

(“Courts have long applied the basic Daubert standard to survey evidence . . . .”); Constellation 

Brands, Inc. v. Arbor Hill Assocs., Inc., 535 F. Supp. 2d 347, 367-68 (W.D.N.Y. 2008) (“While 

 courts in the Second Circuit rely mainly on Rule 403 to exclude unreliable surveys, we note that 

Rule 702 is clearly applicable as well, because the result of a survey is essentially expert 

testimony . . . .”) (quoting Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 580-81 

(S.D.N.Y. 2007) (internal quotation marks omitted)); Avocados Plus, Inc. v. Johanns, No. 02-

1798, 2007 U.S. Dist. LEXIS 4572, at *9-*11 (D.D.C. Jan. 23, 2007) (refusing to allow an 

Internet survey to serve as the basis for an expert opinion under FRE 702). 

Mr. Calogero drafted a declaration to introduce the results of the Zogby survey, evidence 

that courts are to construe under Rules 702 and 703 of the Federal Rules of Evidence. 

Accordingly, he is an expert witness. This conclusion is further bolstered by the one expert 

witness that the Federal Election Commission did properly disclosed to Plaintiffs, Professor 

Clyde Wilcox. In his deposition, Professor Wilcox commented that one must be an expert to 

design and interpret a methodologically sound opinion survey. See FEC Ex. 18, Wilcox Dep. at 

273:10-13 (“Q. Okay. It's fair to say that just anybody couldn't conduct a survey. You actually 

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7

need expertise to do so, right? A. Yes, I would agree with that.”); see also id. at 272:8-13 (“Q. 

Okay. Zogby, though, I take it is a reputable firm, correct? A. Yes. Q. It’s fair to say they're 

experts in doing polling? A. Yes.”). 

Because Mr. Calogero is an expert, the FEC should have disclosed his identity to the 

Plaintiffs by August 15, 2008, along with an expert report that contained “the data or other 

information considered by the witness in forming [his opinions],” i.e., the survey results. Fed. R. 

Civ. P. 26(a)(2)(B)(ii). It did not do so and, indeed, could not have done so, because the FEC did 

not even submit its draft questions to Zogby until August 18th. Gall Decl., E, Email from Steve 

Hajjar to Cheryl Korn (Aug. 18, 2008, 05:03 PM). This delay is particularly inexplicable 

because the FEC’s expert, Professor Wilcox, first suggested to the FEC’s counsel that it 

commission a survey on June 12, and provided them with sample questions; the FEC contacted 

Zogby about putting together the poll on July 29, 2008. Gall Decl., Ex. F, Email from Clyde 

Wilcox to Kevin Deeley (June 12, 2008, 05:23 PM); Ex. G, Email from Kimberly Wyborski to 

Steve Hajjar (July 30, 2008, 03:42 PM) (“Thanks for calling yesterday.”). Zogby informed the 

FEC that they could enter the questions into a national poll running on Friday, August 1, 2008, 

with results provided to the FEC by August 4. Gall Decl., Ex. U, Email from Kimberly 

Wyborski to Steve Hajjar (July 30, 2008, 04:25 PM). 

Instead, the FEC waited. Over the next several weeks, through August 20, the FEC had 

numerous communications with representatives of Zogby. Gall Decl., Ex. H, Emails between 

FEC and Zogby (Aug. 4-20, 2008). At just before 3 p.m. on August 25, Zogby sent to the FEC 

its “summary” of the survey results.1

 Gall Decl., Ex. I, Email from Cheryl Korn to Steve Hajjar 

(Aug. 25, 2008, 2:51 PM). Just after 9:30 p.m. on that same day, the FEC submitted its answers 

 

1

 This summary is not an expert report because (among other reasons) it was not prepared and signed by Mr. 

Calogero as required by Rule 26(a)(2)(B). 

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to Plaintiffs’ First Set of Discovery Requests. Gall Decl., Ex. J, Email from Robert Bonham to 

Counsel for Plaintiffs (Aug. 25, 2008, 9:41 PM). Despite the fact that the survey materials were 

responsive to those requests,2 the FEC did not supply them or identify Mr. Calogero or anyone 

else at Zogby. Instead, the FEC waited until two days after rebuttal reports were due—i.e., the 

date for Plaintiffs to produce a report rebutting the results of the survey had it been timely 

disclosed—to identify Mr. Calogero and produce the survey. Gall Decl., Ex. D. 

There is no excuse for the FEC’s failure to either properly designate Mr. Calogero (or 

someone else at Zogby) as an expert, produce a timely expert report, or turn over responsive 

documents that would have alerted Plaintiffs to the existence of this survey. If the FEC simply 

had insufficient time under the discovery schedule—a dubious proposition—they should have 

approached Plaintiffs and this Court and asked for an extension of the expert disclosure deadline. 

But the FEC failed to do this and instead sat on the survey results for almost a month, waiting 

until after the passage of the deadline for the submission of rebuttal reports. As explained more 

fully below, the mandatory remedy for the FEC’s deliberate disregard for Rule 26(a)(2) is the 

exclusion of the Calogero Declaration and the survey results. 

2. Expert Testimony of Rozen and Johnson 

On October 1, 2008, almost a week after discovery had closed in this case, Plaintiffs 

received an email from the FEC identifying Mr. Robert Rozen, a partner at the D.C. lobbying 

firm Washington Council Ernst & Young, who the FEC said had “discoverable information 

regarding campaign financing and its effects on candidates, Members of Congress, and public 

policy.” Gall Decl., Ex. K, Email from Kevin Deeley to Robert Gall and attachment, Federal 

 

2

 Plaintiffs asked for all documents concerning whether independent expenditures pose a risk of corruption and any 

documents concerning legislative facts. They also asked for the names of all individuals likely to possess legislative 

facts pertaining to the issues in this case. Gall Decl., Ex. BB, Pls.’ First Set of Disc. Reqs., Doc. Reqs. 3 & 6, 

Interrog. No. 1). 

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Election Commission’s Fifth Supplemental Disclosures (Oct. 1, 2008, 10:02 PM). The FEC did 

not provide Plaintiffs with an expert report from this new witness, nor did it disclose any other 

information about him that Rule 26(a)(2)(B) requires. In response, Plaintiffs sought to subpoena 

documents from Mr. Rozen, including “all documents concerning or referring to this lawsuit” 

and “any documents related to your possible testimony in this case,” that would let Plaintiffs 

know what opinions Mr. Rozen would offer in his testimony. Gall Decl., Ex. L, Subpoena Duces 

Tecum of Robert Rozen and attachment (Oct. 7, 2008). The FEC objected to this subpoena to 

the extent it sought any drafts of declarations that were in Mr. Rozen’s possession. Gall Decl., 

Ex. M, FEC’s Objections to Pls.’ Subpoena Duces Tecum to Robert Rozen (Oct. 14, 2008). Mr. 

Rozen subsequently claimed to have no responsive documents beyond drafts of his declaration, 

but refused to produce these, citing the FEC’s objection. Gall Decl., Ex. N, Email from Robert 

Rozen to Paul Sherman (Oct. 16, 2008, 11:13 AM) (“I have in my possession draft copies of 

declarations but I am not producing them at the FEC's request.”). As a result, Plaintiffs only 

learned the substance of Mr. Rozen’s testimony once they received the Federal Election 

Commission’s Proposed Findings of Fact on October 27, 2008.3

 See Exhibit 3 to Federal 

Election Commission Proposed Findings of Fact (hereinafter, Rozen Decl.). 

Similarly, after the close of business on the day that discovery in this case ended—

September 26, 2008—the FEC sent Plaintiffs a supplement to its initial disclosures that listed 

Ross Johnson as a potential witness regarding a report that his commission, the California Fair 

Political Practices Commission (FPPC), had published in May of 2008 called Independent 

Expenditures: The Giant Gorilla in Campaign Finance. Gall Decl., Ex. O, Email from Kevin 

Deeley to Counsel for Plaintiffs and attached Supplement to Initial Disclosures (Sept. 26, 2008, 

 

3

 Because nothing in Mr. Rozen’s declaration was offered in rebuttal to the expert reports of Plaintiffs’ witnesses, 

Mr. Rozen should have been disclosed as an expert on August 15. The same is true for Mr. Johnson. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 18 of 52
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07:32 PM). Because Plaintiffs had already scheduled a 30(b)(6) deposition of the FPPC for 

October 1, Plaintiffs deposed Mr. Johnson both as an individual and a 30(b)(6) representative. 

This deposition was hampered, however, by the FEC’s refusal to produce Mr. Johnson’s signed 

declaration in advance of the deposition, and by its request that the FPPC not turn a copy over to 

Plaintiffs even though Plaintiffs had served a subpoena calling for its production. Gall Decl., 

Ex. P, Subpoena Duces Tecum of Cal. Fair Political Practices Comm’n (Sept. 19, 2008); Ex. Q, 

FEC’s Objections to Pls’ Subpoena Duces Tecum to the Cal. Fair Political Practices Comm’n 

(Sept. 25, 2008); Ex. R, Letter from Scott Hallabrin to Steven M. Simpson (Sept. 25, 2008). The 

FEC clearly intended to use the signed declaration as evidence that it would eventually disclose 

to Plaintiffs and this Court. But whenever Plaintiffs’ counsel asked about the declaration, 

counsel for the FEC asked Mr. Johnson not to disclose its specific contents on the ground that it 

constituted the work-product of the FEC. 4 See, e.g. FEC Ex. 10, Deposition Transcript of Ross 

Johnson at 19:21-20:11, 21:8-12. Mr. Johnson’s attorney stated that he would honor the FEC’s 

objection against disclosing a copy to Plaintiffs. Id. at 36:23-37:7. Plaintiffs’ counsel could thus 

not ask Mr. Johnson questions based on their review of the declaration’s contents. Plaintiffs’ 

counsel did elicit answers from Mr. Johnson about the declaration, but his recollection of its 

contents was lacking in detail and woefully incomplete—understandable since the declaration is 

ten pages long. (Regardless, even complete recollection is not a substitute for compliance with 

the Federal Rules of Civil Procedure). Thus, Plaintiffs did not learn exactly what was in the 

declaration until the FEC filed its proposed findings of fact and exhibits on October 28.

 

4

 The FEC took the position that the signed declaration of its witnesses are its work product, even though it planned 

to use those declaration as evidence. Gall Decl., Ex. S, Email from Steve Hajjar to Steven M. Simpson (Sept. 25, 

2008, 10:21 AM). The FEC also requested that Justice Larry Starcher of the West Virginia Supreme Court not to 

provide his signed declaration before his deposition. Gall Decl., Ex. T, FEC’s Objections to Pls.’ Subpoena Duces 

Tecum of Justice Larry V. Starcher (Sept. 25, 2008); FEC Ex. 16, Deposition Testimony of Justice Larry Starcher, 

taken Sept. 26, 2008, at 55:19-56:7. 

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The opinions offered in the declarations of Messrs. Rozen and Johnson are those of 

experts. A long-time political operative, Mr. Rozen’s testimony describes in a general manner 

his belief as to why different individuals and political action committees make contributions, 

FEC Ex. 3, Rozen Decl. at ¶ 6, his belief that contributions affect the relationship between 

legislators and contributors, Id. at ¶¶ 7-8, his belief that groups and individuals gave soft money 

contributions for access purposes, Id. at ¶ 10, and his belief that allowing independentexpenditure groups like SpeechNow.org to operate would give rise to the same problems 

Congress addressed with the BCRA. Id. at ¶¶ 15-17. Much of Mr. Rozen’s declaration was 

adopted from similar testimony he provided in McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 

2003). Compare FEC Ex. 3, with Gall Decl., Ex. V, Declaration of Robert Rozen from 

McConnell v. FEC. For his own part, Mr. Johnson opines on how “powerful special interests are 

putting their money into independent expenditures because they can no longer make unlimited 

direct contributions,” FEC Ex. 2, Johnson Decl. at ¶ 6, how “[i]ndependent expenditures can also 

be very effective,” id. at ¶ 9, how a large contribution to an independent expenditure committee 

“has a much greater likelihood of creating the appearance of corruption,” id., and how “it would 

be unreasonable to conclude that direct contributions are the only way to gain undue influence or 

that only direct contributions pose a danger of corruption.” Id. at ¶ 11. 

Any fair reading of Messrs. Rozen and Johnson’s declarations forces one to conclude that 

they are both expert testimony.5

 Except for experts, who are subject to the provisions of Rule 

 

5 The Plaintiffs think the only plausible way to view the Rozen and Johnson Declarations is as expert witness 

testimony that the FEC had to disclose under Rule 26(a)(2)(B). However, Fed. R. Civ. P. 26(a)(1)(A)(i) imposed on 

the FEC a separate duty to discloses its lay witnesses in its initial disclosures, which it submitted on June 6, 2008. 

Gall Decl., Ex. W, Def. FEC’s Initial Disclosures (June 6, 2008). Furthermore, it was under a continuing duty to 

amend and update its disclosures in a timely manner if it “learns that in some material respect the disclosure or 

response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made 

known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). 

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703, a witness must have personal knowledge of the matters to which he or she testifies. Fed. R. 

Evid. 602. A lay witness may not proffer his opinion to the extent it is based on “scientific, 

technical, or specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. But the 

statements Messrs. Rozen and Johnson both put forward are not simply specific facts learned 

during their political careers. Instead, both declarations are full of generalizations, suppositions, 

and opinions that, to the extent they have any basis at all, find that basis in the specialized 

knowledge and training that Messrs. Rozen and Johnson possess. 

Were Mr. Rozen a lay witness, opinions such as “[l]oosening the federal campaign 

finance rules so that groups devoted to independent candidate advocacy could raise money in 

unlimited amounts would foster most of the pernicious effects of the soft money system,” FEC 

Ex. 3, Rozen Decl. at ¶ 16, would be inadmissible. Likewise, opinions such as “[i]ndependent 

expenditures can determine the outcome of elections and create the appearance of corruption or 

of undue influence on candidates” by Chairman Johnson, FEC Ex. 2, Johnson Decl. at ¶ 13, can 

only be proper if he is considered an expert witness. While such opinions may arguably be 

“based on the perception of the witness,” they rely on the application of “specialized 

knowledge.” They are not lay opinion, which is an opinion that could be reached by any 

ordinary person. See Fed. R. Evid. 701, 2000 advisory committee’s notes (amending Rule 701 to 

“eliminate the risk that the reliability requirements ... will be evaded ... [by] proffering an expert 

in lay witness clothing”). The FEC certainly did not procure the testimony of Messrs. Rozen and 

Johnson because they are ordinary men with ordinary knowledge; it sought them out for the 

 Here, the FEC waited until after the close of business on the day discovery ended before they chose to disclose the 

fact that they may seek the testimony of Mr. Johnson in this matter. For Mr. Rozen, disclosure did not occur until 

five days later, on October 1, 2008. But as discussed infra, the FEC had long known about both witnesses, and it 

strains credulity to suggest that it was not until these late dates that the FEC first learned that these two witnesses 

likely had discoverable information that it “may use to support its claims or defenses.” Fed. R. Civ. P. 

26(a)(1)(A)(i). Accordingly, exclusion is appropriate regardless of whether the Rozen and Johnson Declarations are 

characterized as expert or lay opinion. 

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same reason that they sought out Professor Wilcox: their specialized knowledge and experience. 

The only way that such statements can be considered by the Court (wrong though Plaintiffs think 

they are) is because both Messrs. Rozen and Johnson bring with them specialized knowledge and 

experience regarding political campaigns and fundraising that is not available to the public at 

large. Indeed, Plaintiffs would suggest that the testimony Mr. Rozen and Mr. Johnson offer is 

little different in type from that of Rodney Smith, who testified as to the difficulty of raising 

funds under the hard-money contribution limits. All three declarants discuss how changes in 

campaign-finance law have affected the nature of political giving. And all three, in making those 

statements, rely on the specialized knowledge that they gained through their employment 

experience. 

But that is where the similarities end. The Plaintiffs made a timely disclosure of Mr. 

Smith, had him draft an expert report, and made him available for a deposition. The FEC, on the 

other hand, pursued a different path that diverged sharply from Fed. R. Civ. P. 26(a)(2) and the 

agreed discovery schedule. Rather than make a timely disclosure to Plaintiffs, the FEC only 

disclosed to Plaintiffs that it may have Chairman Johnson serve as a witness after the close of 

business on September 26, 2008 (the day discovery in this case ended). With Mr. Rozen, the 

FEC’s disclosure failure was even more egregious, as it only deigned to let Plaintiffs know of his 

existence on October 1, 2008, five days after the discovery deadline had passed. And, as noted 

above, the FEC did not provide expert reports from Messrs. Johnson and Rozen and made sure 

that Plaintiffs did not get copies of their signed declarations during discovery. 

As with the Calogero declaration and Zogby survey, discussed above, there is no excuse 

for the FEC’s failure to timely identify these witnesses and produce expert reports. Mr. Rozen 

was well-known to the FEC and had submitted declarations in their support in two previous 

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Supreme Court cases. Gall Decl., Ex. V, Declaration of Robert Rozen in McConnell (and 

incorporating his testimony in FEC v. Colo. Republican Fed. Campaign Comm.). The FEC had 

also known about the FPPC report for months and, in fact, included it in its initial disclosures of 

June 6, 2008. Gall Decl., Ex. W. Furthermore, e-mails between the FEC and representatives of 

the Commission go back as far as April of this year. Gall Decl., Ex. X, Email from Graham 

Wilson to Counsel for Plaintiffs (Sept. 30, 2008, 08:24 PM), and attached emails between 

Graham Wilson and Roman Porter (Apr. 21-25, 2008).6

 The FEC clearly knew of Messrs. 

Rozen and Johnson’s existence and could have thus designated them as experts by August 15, 

2008. But it did not do that. Instead, the FEC waited to send Chairman Johnson a draft 

declaration until September 17, 2008, two days after the deadline for submitting rebuttal expert 

reports. Gall Decl., Ex. Y, Email from Graham Wilson to Scott Hallabrin (Sept. 17, 2008, 08:24 

PM). That declaration was returned to the FEC on September 30, one day before the 30(b)(6) 

deposition of the California Fair Political Practices Commission was scheduled. Gall Decl., Ex. 

Z, Email from Scott Hallabrin to Graham Wilson (Sept. 30, 2008, 01:23 PM). Similarly, the 

FEC did not send a draft declaration to Mr. Rozen until October 1, 2008. Gall Decl., Ex. AA, 

Email from Kevin Deeley to Robert Rozen (Oct. 1, 2008, 10:38 AM). 

The FEC’s attempt to ambush Plaintiffs with undisclosed expert witnesses is clearly 

forbidden by Fed. R. Civ. P. 26(a)(2). “By channeling testimony that is actually expert 

testimony to Rule 702, the amendment [to Rule 701] also ensures that a party will not evade the 

expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 . . . by simply calling an 

 

6

 The e-mails between the FEC and the representative of the Commission were not produced by the FEC until 6:47 

PM on the eve of the 30(b)(6) deposition of the California Fair Political Practices Commission. Those e-mails were 

clearly responsive to Plaintiffs’ Requests for Production 2, 3, and 5 and thus should have been produced by the FEC 

along with its responses to Plaintiffs’ First Set of Discovery Requests on August 25. Gall Decl., Ex. BB. At a 

minimum, Defendant’s had a duty to supplement their initial disclosures to reveal the identity of Roman Porter, the 

FPPC employee with whom they communicated, as he clearly had discoverable information relevant to the case. 

Gall Decl., Ex. X, Email from Roman Porter to Graham Wilson (Apr. 21, 2008, 6:47 PM) and attachments. 

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expert witness in the guise of a layperson.” Fed. R. Evid. 701, 2000 advisory committee’s notes; 

see also Palmer v. Rice, No. 76-1439, 2005 U.S. Dist. LEXIS 10123, at *14 (D.D.C. May 27, 

2005). As explained more fully below, the mandatory remedy for the FEC’s deliberate disregard 

for Rule 26(a)(2) is the exclusion of the Rozen and Johnson Declarations. 

C. The FEC’s Failure to Properly Disclose Either the Zogby Survey or the 

Declarations of Calogrero, Rozen, and Johnson Mandates “Automatic” 

Exclusion of This Evidence 

The FEC’s failures with regard to the Calogero Declaration, the related survey from 

Zogby International, and the Rozen and Johnson Declarations are without justification or excuse. 

It knew about all three witnesses well in advance of the disclosure deadline but chose to do 

nothing despite the prejudice it would work on the Plaintiffs. The only sanction that is sufficient 

to address the FEC’s willful and flagrant failure to act is exclusion of the offending expert 

evidence and the proffered facts that rely upon them. See, e.g., W. Union Holdings, Inc. v. E. 

Union, Inc., No. 1:06-CV-01408-RWS, 2007 U.S. Dist. LEXIS 66281, at *32-33 n.9 (N.D. Ga. 

Sept. 7, 2007) (“Defendants did retain an expert who conducted a survey, but since the 

Defendants never identified any survey expert prior to the close of discovery, any evidence 

offered through him is inadmissible.). 

Under the Federal Rules of Civil Procedure, a party’s failure to “to provide information 

or identify a witness as required by Rule 26(a) or (e)” means that “the party is not allowed to use 

that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the 

failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). D.C. District Courts 

have held that, unless the offending party can show that its failure was substantially justified or 

harmless, the Federal Rule requires “automatic” exclusion. Elion v. Jackson, 544 F. Supp. 2d 1, 

6 (D.D.C. 2008) (quoting NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 785-86 (7th Cir. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 24 of 52
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2000)); Coles v. Perry, 217 F.R.D. 1, 5 (D.D.C. 2003) (“I must invoke the automatic sanction 

required by Fed. R. Civ. P. 37(c)(1) of excluding the evidence unless defendant establishes that 

the failure to disclose the document or the witness was harmless”). Other jurisdictions have held 

likewise. See, e.g., Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 

2001) (describing exclusion as a "self-executing, automatic sanction to provide[ ]a strong 

inducement for disclosure of material”) (internal quotation marks omitted); Ciomber v. Coop. 

Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008); Lohnes v. Level 3 Communs., Inc., 272 F.3d 49, 60 

(1st Cir. 2001) (“[T]he required sanction in the ordinary case is mandatory preclusion.”) (internal 

quotation marks omitted); Cook v. Rockwell Int’l Corp., 233 F.R.D. 598, 599 (D. Colo. 2005) 

(“This sanction [under Rule 37(c)(1)] is mandatory . . .”). 

It is true that Rule 37 has “a narrow escape hatch.” Lohnes, 272 F.3d at 60, that lets a 

party escape exclusion when he can show substantial justification or harmlessness. But the 

burden is on the party facing sanctions to make that showing. Elion, 544 F. Supp. 2d at 6. It is a 

burden that the FEC simply cannot meet. 

1. The FEC’s Failures to Disclose Were Not Substantially Justified 

The FEC chose to dally in their disclosures, often updating them months after they 

learned about those witnesses whose testimony they might use to make their case. With the 

Zogby survey, the FEC waited until after the time for rebuttal reports had passed, despite the fact 

that counsel for the FEC and Clyde Wilcox had first discussed the use of a survey over three 

months earlier. Gall Decl., Ex. F, Email from Clyde Wilcox to Kevin Deeley (June 12, 2008, 

05:23 PM). And with both the Johnson and Rozen Declarations, the FEC waited until discovery 

was over before disclosure, even though it had known about these witnesses for some time. 

While a failure to disclose would be substantially justified if it was impossible for the FEC to 

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make a timely disclosure, “the interest in having meaningful deadlines should require the 

exclusion of the belated disclosure when the tardy party provides no reason whatsoever for the 

lateness of its response.” Coles, 217 F.R.D. at 5. The only plausible explanations that the 

Plaintiffs can think of for the FEC’s failures to act involve either neglect or deliberate delay. 

Neither, though, amount to the “unusual or extenuating circumstances” that would excuse the 

FEC’s discovery lapses. Elion v. Jackson, No. 05-0992 (PLF), 2006 U.S. Dist. LEXIS 63854, at 

*3 (D.D.C. Sept. 8, 2006). 

2. The FEC’s Failures to Disclose Harmed Plaintiffs 

Nor can the FEC demonstrate that its failures should be excused because Plaintiffs have 

suffered no harm as a result of its inaction. The FEC did not disclose the existence of the 

Calogero Declaration and Zogby International survey until September 17, 2008, and, even then, 

the FEC failed to file an expert report by Mr. Calogero and failed to produce the expert for 

deposition. By that time, of course, the deadline to submit a report in rebuttal had already 

passed. Even if an expert report had been produced at such a late date, finding an expert to do a 

rebuttal survey, designing that survey, putting it into the field, obtaining a rebuttal expert report, 

and defending the expert’s deposition would most likely have taken several weeks, which was 

simply not possible before briefing on the facts began. 

Likewise, the FEC’s tardy and incomplete disclosures concerning Robert Rozen and Ross 

Johnson harmed Plaintiffs. They received no expert report from Mr. Rozen, and they never, 

despite requesting it, received a copy of his declaration until the FEC filed its opening brief on 

the facts. Because Plaintiffs never received an expert report for Mr. Johnson or a copy of his 

declaration before his deposition, they were not able to depose him about all of his opinions 

contained in his declaration. 

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Ultimately, the issue of whether harm exists depends on what a reasonable attorney 

would have done had the witness or document been disclosed in a proper and timely fashion. 

One district court, in scrutinizing the failure of a party to make an expert disclosure, concluded 

that 

The testimony of a witness or the introduction of a document will be deemed 

harmful if it was likely that a reasonable attorney, learning of the witness or the 

existence of the document, would have engaged in additional discovery or sought 

to meet the probative force of the testimony or document by creating countering 

evidence. 

Coles v. Perry, 217 F.R.D. 1, 6 (D.D.C. 2003). 

Had the FEC provided proper and timely notice of the Zogby International survey and the 

fact that the FEC would seek the testimony from Messrs. Rozen and Johnson, Plaintiffs would 

have conducted additional discovery, commissioned their own experts in rebuttal, or both. The 

net effect of the FEC’s actions, therefore, harmed Plaintiffs (as more fully described above) by 

denying them the ability to challenge this evidence. Such consequences are the exact type of 

harm the rules are designed to avoid. United States ex rel. Purcell v. MWI Corp., 520 F. Supp. 

2d 158, 168 (D.D.C. 2007) (“The harm from the failure to disclose a witness flows from the 

unfair surprise hindering the prejudiced party’s ability to examine and contest that witness’ 

evidence.”). Because the FEC cannot demonstrate that its actions were without blame, or that 

they did not harm Plaintiffs, the Court should exclude the above-mentioned materials from 

evidence and strike those portions of the FEC’s Proposed Findings of Fact which rely upon them. 

D. An Additional Ground for Excluding the Rozen and Johnson Declarations 

from Evidence Is that They Lack Foundation and Reflect a Lack of Personal 

Knowledge 

Many, if not most, statements in Mr. Rozen’s declaration are only assertions that lack any 

foundation. Before a witness may comment on the purposes behind another’s action, he or she 

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must demonstrate the basis for this knowledge. Without such support, the surmise amounts to 

nothing, and the finder of fact should disregard it. But Mr. Rozen repeatedly attempts to say 

what the beliefs and motivations of others are—but without providing any concrete evidence in 

support. For instance, statements such as “some felt pressured to give above the hard money 

levels as a result of direct or indirect pressure from Members of Congress,” Rozen Decl. at ¶ 9, 

imply that Mr. Rozen has personal knowledge of others’ motivations. But, even if such personal 

knowledge does exist, he provides no foundational facts that would let a finder of fact credit his 

testimony. Unfortunately, this lack of foundation permeates almost every paragraph in Mr. 

Rozen’s declaration. See also Rozen Decl. at ¶¶ 5-14. 

But worse than the lack of foundation that haunts most of the declaration is Mr. Rozen’s 

complete lack of personal knowledge on the ultimate conclusions his declaration draws. In the 

final three substantive paragraphs of his declaration, Mr. Rozen says that allowing unlimited 

contributions to groups like SpeechNow.org would give rise to many of the problems he says 

occurred when corporations could give unlimited soft money to political parties. These 

utterances are not facts, but opinions about an event that has not yet happened; yet Mr. Rozen 

does not—and more importantly, could not—attempt to provide a basis for these views, as they 

are not based on his personal knowledge. Mr. Rozen simply has no facts at his disposal that 

would allow him to say that “[l]oosening the federal campaign finance rules so that groups 

devoted to independent candidate advocacy could raise money in unlimited amounts would 

foster most of the pernicious effects of the soft money system.” FEC Ex. 3, Rozen Decl. at ¶ 16. 

And, to the extent that Mr. Rozen would say that his opinion relies on his experience and the 

specialized knowledge he has acquired, it reveals itself as an expert opinion that should have 

been disclosed to Plaintiffs back in August under the auspices of Rule 26(a)(2)(B). 

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Unfortunately, the same lack of support pervades Ross Johnson’s declaration as well. 

While the beginning of Mr. Johnson’s declaration rests largely on his own personal knowledge, it 

soon veers into the realm of unsupported opinion. Like Mr. Rozen, Mr. Johnson often 

pontificates upon what others think without laying out any facts demonstrating how he has that 

knowledge. See, e.g., Johnson Decl. at ¶ 6 (“A handful of very powerful special interests are 

putting their money into independent expenditures because they can no longer make unlimited 

direct contributions.”); at ¶ 11 (“[C]andidates undoubtedly know who is contributing and making 

independent expenditures on their behalf; this leads to the appearance of corruption or of undue 

influence over a candidate.”). In addition, Mr. Johnson frequently posits a conclusion without 

ever providing a single substantive fact in support. For example, he concludes that “the 

emergence of independent expenditures has thwarted the will of the people . . . .” without 

offering any opinion poll regarding Californians’ opinion about independent expenditures. 

Johnson Decl. at ¶ 13; see also id. (“[I]ndependent expenditures ha[ve] . . . doubtlessly 

influenced the outcome of numerous state elections.”). As the Federal Rules of Evidence make 

clear, all opinion testimony by lay witnesses must be “rationally based on the perception of the 

witness.” Fed. R. Evid. 701. But perception implies observation of demonstrable facts, not mere 

surmise. Because Mr. Johnson’s testimony ultimately rests on nothing more than supposition, 

the Court should reject it in its entirety. 

Thus, the Court should exclude from evidence the Calogero declaration and its attached 

survey results (FEC Exs. 96 & 97), the Rozen Declaration (FEC Ex. 3), and the Johnson 

Declaration (FEC Ex. 2). Further, the Court should not adopt the Defendant’s proposed findings 

of fact that rely on these documents, which are contained in ¶¶ 86, 115, 130, 169-76, 178, 182, 

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21

187-88, 204-07, 216, 224-25, 243-44, 268, 312, 316, 333-35, 343-44, 355-56 of the FEC’s 

Proposed Findings of Fact. 

II. Witness Declarations and Affidavits from McConnell v. FEC and Massey v. Caperton

Are Not Proper Evidence in This Case and Should Be Excluded 

The Federal Election Commission, in support of its Proposed Findings of Fact in this 

case, has submitted nine different declarations that various witnesses filed on behalf of the 

Government in McConnell v. FEC. In addition, the FEC and their expert witness, Clyde Wilcox, 

quote from four other declarations from McConnell that they do not include as exhibits. Finally, 

the FEC also cites to the affidavit of an expert witness from a second case, Massey v. Caperton. 

These documents, their exhibit numbers (when applicable), and the facts for which they are cited 

are summarized below: 

Exhibit No. Fact Nos. Description 

33 

88, 213, 

230, 276 Rocky Pennington McConnell Declaration 

34 90, 210 Joe Lamson McConnell Declaration 

35 91, 209 Terry Beckett McConnell Declaration 

367 83, 214 Elaine Bloom McConnell Declaration 

64 211, 275 Dale Bumpers McConnell Declaration 

65 212 Alan Simpson McConnell Declaration 

67 215 Pat Williams McConnell Declaration 

68 217, 310 Linda Chapin McConnell Declaration 

95 328 Robert Drake Massey Affidavit 

114 445 Robert Hickmott McConnell Declaration 

None 143 Gerald Greenwald McConnell Declaration 

None 309 John McCain McConnell Declaration 

None 133, 339 Robert Shapiro McConnell Declaration 

None 365,366 Krasno and Sorauf McConnell Declaration 

The FEC offers these documents, most now more than five years old and from cases 

involving completely different issues of law and fact, for the truth of their assertions. But 

 

7

 Plaintiffs note that Elaine Bloom’s declaration is listed as both FEC Exs. 36 and 66. All arguments regarding Ex. 

36 apply equally to Ex. 66. 

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testimony from another case properly belongs to that case—not this case. Here, the declarations 

are nothing more than hearsay and could never be converted into competent evidence at trial. 

Moreover, this approach flies in the face of how civil litigation is designed to occur. For myriad 

reasons, Plaintiffs ask that the Court strike these exhibits in their entirety and decline to adopt 

those facts proposed by the FEC that rely upon them. 

A. The McConnell Declarations and the Massey Affidavit are Inadmissible 

Hearsay 

Declarations and affidavits are hearsay. Indeed, they squarely fall under the definition of 

hearsay: “a statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). As 

such, declarations and affidavits are generally not admissible evidence at trial. The Federal 

Rules of Civil Procedure do permit courts to consider affidavits and declarations by witnesses in 

a case when deciding motions for summary judgment. Fed. R. Civ. P. 56(c). However, the 

Rules allow this because, if a trial occurs, those same declarants—who are declarants in the case 

pending before the court—could come to court to testify. The touchstone ultimately is whether 

the evidence “would be admissible or usable at trial.” 10A Charles Alan Wright, Arthur R. Miller 

& Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2721. Parties may offer 

declarations at the summary judgment stage, but that “evidence still must be capable of being 

converted into admissible evidence [at trial].” Gleklen v. Democratic Cong. Campaign Comm., 

Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000). 

The McConnell declarations and the Massey affidavit submitted by the FEC could never 

be converted from inadmissible hearsay into admissible evidence in this case. Declarations from 

witnesses in this case do not face this hearsay problem because the witnesses would be available 

to testify in any hearing or trial. (That there is no trial in this proceeding is irrelevant; even 

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23

though summary judgment motions obviate the need for trial, declarations from witnesses in the 

case are admissible at summary judgment because the witnesses could be available if a trial were 

to occur.) Declarations from other cases, however, are prior “testimony given at another hearing 

of the same or in a different proceeding” and cannot be admitted because (1) the FEC has not 

shown that any of the declarants are unavailable (as defined by Fed. R. Evid. 804(a)) and 

(2) Plaintiffs were not parties in the McConnell or Massey cases and, consequently, have not had 

“an opportunity and similar motive [in those proceedings] to develop the [declarants’ and 

affiants’] testimony by direct, cross, or redirect examination.” Fed. R. Evid. 804(b)(1). 

Thus, if the FEC wanted testimony from individuals who testified in McConnell or 

Massey, it needed to obtain new declarations regarding the issues in this case. At the very least, 

it needed to make a showing that the declarations were admissible under Fed. R. Evid. 804. 

Even if the McConnell and Massey declarations could be treated as declarations in this case—

which they cannot—they would still be inadmissible. The Federal Rules of Civil Procedure are 

clear: for a witness to testify in an action, a party must disclose their identity in a timely fashion. 

Fed. R. Civ. P. 26(a)(1)(a). But in its witness disclosures, the FEC never identified any of the 

McConnell declarants as a potential witness in this case. This is an additional reason the 

declarations may not be admitted. See, e.g., Quality Built Homes, Inc. v. Village of Pinehurst, 

No. 1:06CV1028, 2008 U.S. Dist. LEXIS 61512, at *16-17 (M.D.N.C. Aug. 11, 2008) 

(excluding affidavit and accompanying exhibits of witness not disclosed to opposing party). 

Furthermore, not only does the FEC fail to put forth any evidence that the McConnell

declarants or the Massey affiant are unavailable, it also fails to attempt to show that any of the 

McConnell or Massey declarants would be either willing or able to testify in this case. After all, 

McConnell took place years ago, and the issues at play in the two cases vary greatly. The legal 

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issues concerning an independent group like SpeechNow.org were simply not at issue in 

McConnell; the same is true of the issue in the Massey case, which inquires as to whether due 

process requires the recusal of a West Virginia Supreme Court Justice. We know for instance 

that at least one former McConnell declarant refused to provide a statement in this matter due to 

the different issues involved. See Gall Decl., Ex. CC, Email from Robert Shapiro to Clyde 

Wilcox (Aug. 13, 2008, 1:15 PM). Courts have refused to allow affidavits when the proferring 

party could not demonstrate that the declarant would be willing and able to provide the same 

testimony at trial. E.g., Chamberlin v. Principi, No. 02 Civ. 8357 (NRB), 2005 U.S. Dist. 

LEXIS 17011, at *31-32 (S.D.N.Y. Aug. 16, 2005) (striking affidavit from previous proceeding 

from being considered at summary judgment when proponent did not establish that affiant was 

“prepared to testify at trial consistently with her affidavit”). 

Even beyond the evidentiary and procedural objections, however, lies a more basic point: 

under our system of adversarial litigation, it is essential that a party builds its arguments using 

facts that are pertinent to the specific case at hand. It is not a system where one can stitch 

together an evidentiary Frankenstein’s monster from a hodgepodge of prior case records 

involving different parties and legal disputes. Plaintiffs can understand why some parties might 

be tempted to take such an approach. After all, it is much easier to use an affidavit from an 

earlier case rather than talking to witnesses to see if they could provide an affidavit about the 

issues in this case. But the end product of taking the easy route is a compilation of declarations 

that contain irrelevant facts and are signed by declarants who, if approached, might be unwilling 

or unable to testify in the current matter. 

By drawing together declarations from a case long past and presenting them to the Court 

as evidence in an unrelated matter, the FEC has eschewed its obligations. Plaintiffs are sure that 

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25

submitting the McConnell and Massey testimony was much easier for the FEC than obtaining 

new declarations about the facts and issues in this case. But by relying on this evidence, the FEC 

is attempting to lighten its own load by foisting it upon Plaintiffs and the Court, requiring them 

to root through and consider each and every statement, no matter how irrelevant to the matter at 

hand. But looking for credible testimony in support of its case was the FEC’s responsibility, not 

Plaintiffs’ or the Court’s. Indeed, the FEC has recognized that obligation: when it wished to 

introduce the testimony of Robert Rozen, it did not simply recycle his earlier McConnell

declaration; instead, it contacted him and had him swear out a new declaration that discussed the 

issues at hand in this case. Accordingly, Plaintiffs ask that the Court exclude the McConnell

declarations in their entirety and refuse to consider those proposed facts from the FEC that rely 

upon them. 

B. The McConnell Declarations and the Massey Affidavit, Being Inadmissible 

Hearsay Themselves, Also Contain Statements That Lack Foundation and 

Contain Inadmissible Hearsay 

The McConnell declarations and the Massey affidavit, being drafted for another action by 

persons who are not witnesses in this case, are inadmissible for the reasons stated above. 

Beyond that bar, however, many of the statements from these documents reflect a lack of 

personal knowledge, amount to nothing more than hearsay, or go beyond the bounds of 

permissible lay-opinion. Such statements are not admissible evidence and should not be 

considered by the Court. Wells v. Jeffery, No. 03-cv-228, 2005 U.S. Dist. LEXIS 41309, at *12 

n.7 (D.D.C. Mar. 20, 2006) (“The affidavit or declaration cannot contain hearsay evidence, as 

such evidence would not be admissible at trial.”). Below, Plaintiffs discuss specific proposed 

findings of facts that are undercut by their reliance on hearsay in the McConnell declarations and 

Massey affidavit. 

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1. Beckett Declaration (FEC Ex. 35) 

In FEC’s Proposed Findings of Fact ¶ 209, the FEC quotes the Terry Beckett declaration 

for the proposition “[o]f course candidates often appreciate the help that these interest groups can 

provide, such as running attack ads for which the candidate has no responsibility.” (citing 

Declaration of Terry Beckett at ¶ 16). Such a statement lacks foundation, as Ms. Beckett’s 

declaration contains no basis for her personal knowledge as to the thoughts that candidates may 

or may not have concerning interest groups. 

2. Bumpers Declaration (FEC Ex. 64) 

In FEC’s Proposed Findings of Fact ¶ 211, the FEC quotes the declaration of former 

Senator Dale Bumpers for the proposition, “[c]andidates whose campaigns benefit from these 

ads greatly appreciate the help of these groups. In fact, Members will also be more favorably 

disposed to those who finance these groups when they later seek access to discuss pending 

legislation.” FEC Ex. 64, Declaration of Dale Bumpers at ¶ 27. See also FEC’s Proposed 

Findings of Fact at ¶ 275. As with other McConnell declarants, Senator Bumpers is offering a 

categorical opinion about what other Members of Congress may or may not feel despite not 

putting forward any evidence showing that he has personal knowledge of their inner thoughts. 

3. Simpson Declaration (FEC Ex. 65) 

In FEC’s Proposed Findings of Fact ¶ 212, the FEC quotes the declaration of former 

Senator Alan Simpson for the proposition that “[t]hese ads are very effective in influencing the 

outcome of elections, and the people who admit to running these ads will later remind Members 

of how the ads helped get them elected. Members realize how effective these ads are, and they 

may well express their gratitude to the individuals and groups who run them.” (citing Declaration 

of Alan Simpson at ¶ 13). Senator Simpson is guessing at how others may feel in response to 

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certain advertisements (“may well express”) and offering that as opinion testimony, without 

providing any evidence in support of his surmise. 

4. Pennington Declaration (FEC Ex. 33) 

In FEC’s Proposed Findings of Fact ¶ 213, the FEC quotes the Rocky Pennington 

declaration for the proposition that, “[U]sually the ads are helpful and candidates appreciate 

them.”) (citing Declaration of Rocky Pennington at ¶ 11). Like Senator Simpson and others, Mr. 

Pennington is opining on how others may feel about certain advertisements, without providing 

any evidence to support that claim. 

Similarly, in FEC’s Proposed Findings of Fact ¶ 230, the FEC quotes Mr. Pennington for 

the proposition that independent ads “allow the candidate to conserve his limited resources and 

focus them on getting out a positive message about himself. At the same time, the candidate can 

disavow the negative ads, saying—with a wink—I didn’t know anything about it and I condemn 

these things. I think this now happens in virtually every campaign.” (citing Declaration of Rocky 

Pennington at ¶ 11). Mr. Pennington does not provide any basis for his conclusion that the 

splitting of messages is a common, if not prevalent, feature of campaigns. 

Finally, in FEC’s Proposed Findings of Fact ¶ 276, Mr. Pennington is quoted for the 

proposition that “[i]n addition to trying to elect candidates, these groups are often trying to create 

appreciation or even obligation on the part of successful candidates. And candidates usually do 

appreciate this kind of help, even when they deny it publicly, which they usually do.” (citing 

Declaration of Rocky Pennington at ¶ 8). Mr. Pennington’s statement that candidates usually do 

appreciate this kind of help is a generalization that he does not support with his own personal 

knowledge. Similarly, his statement that candidates usually deny publicly that they appreciate 

the help an independent ad provides is not supported in his declaration by specific facts. 

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5. Chapin Declaration (FEC Ex. 68) 

In FEC’s Proposed Findings of Fact ¶ 217, Linda Chapin is quoted for the proposition 

that “Federal candidates appreciate interest group electioneering ads like those described above 

that benefit their campaigns, just as they appreciate large donations that help their campaigns.” 

(citing Declaration of Linda Chapin at ¶ 16). While Ms. Chapin has personal knowledge about 

her own opinions, she does not provide any support for her generalizations concerning the 

feelings of other federal candidates. 

Further, in FEC’s Proposed Findings of Fact ¶ 310 Ms. Chapin is quoted for the 

proposition that one interest group offered to provide [her] campaign support if she would agree 

to vote a certain way on their issues (citing Declaration of Linda Chapin at ¶ 6). But this 

statement was made outside of this litigation and was being offered by Ms. Chapin for its truth. 

It is therefore inadmissible hearsay and should not be considered by the Court. 

6. McCain Declaration 

The FEC’s Proposed Findings of Fact cite the McConnell Declaration of Senator John 

McCain, where McCain relates an episode where he says Sen. McConnell said that tobacco 

companies had promised an advertising campaign on behalf of those who would vote against the 

tobacco bill that was currently before the Senate. FEC’s Proposed Findings of Fact ¶ 309 

(“According to Senator McCain, the promise was used to influence votes.”) (citing Declaration 

of John McCain at ¶ 8) (“I was present at the meeting and this is an accurate report of what 

Senator McConnell said. This episode graphically demonstrates that corporate soft money is 

widely used to influence votes.”). These two sentences have to have at least two serious 

problems. The first is plainly hearsay: Senator McCain is representing, for the truth of the matter 

asserted, what Senator McConnell said the tobacco companies said. The second problem is that 

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the second sentence is based on the prior hearsay statement and puts forward opinion testimony 

that is not rationally based on the perception of the witness. While Senator McCain may have in 

fact heard Senator McConnell’s statement, that is simply an insufficient basis upon which to 

make the global conclusion the corporate soft money is widely used to influence votes. Further, 

given that SpeechNow.org is not a corporation, the statement is irrelevant. 

7. Greenwald Declaration 

In the FEC’s Proposed Findings of Fact ¶ 143, Gerald Greenwald, chairman emeritus of 

United Airlines, is cited for the proposition that corporations and unions gave soft money 

because “experience had taught that the consequences of failing to contribute (or to contribute 

enough) may be very negative.” (citing Declaration of Gerald Greenwald at ¶ 9). Such 

statements lack foundation, as Mr. Greenwald declaration does not reveal that he has personal 

knowledge as to why other corporations, let alone unions, gave soft money. 

8. Drake Affidavit (FEC Ex. 95) 

The Federal Election Commission has put forward various documents filed in connection 

with a motion for recusal of West Virginia Supreme Court Justice Benjamin from Massey v. 

Caperton. In support of Proposed Finding of Fact ¶ 325, the FEC submits an affidavit by Robert 

Drake and an attached survey he conducted that purports to gauge how the West Virginia 

populace felt about having a particular state supreme court justice hear a case. See FEC Ex. 95, 

Affidavit of Robert Drake and Attached Survey Results (Mar. 28, 2008). In so doing, Plaintiffs 

believe that the FEC is offering the exhibit as substantive evidence to demonstrate that most 

West Virginians did not think the judge could be fair and impartial in hearing the case as a result 

of the fact that one of the litigants made substantial independent expenditures in support of his 

election. 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 38 of 52
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Just as the McConnell declarations cannot be admitted from another case, the same is true 

of the declaration of Mr. Drake, who is not a witness in this case. Furthermore, the affidavit and 

poll results also cannot be admitted for the same reason that the Calogero Declaration and 

attached survey cannot be admitted—i.e., introducing the survey information requires expert 

testimony, and Drake was never designated as an expert. Also, for the reasons more fully 

described in paragraphs 317 through 332 in Plaintiffs’ Response to Defendant’s Proposed 

Findings of Fact, the incident about which the poll asked is simply irrelevant to this case. 

Accordingly, because these declarations and affidavits are not competent testimony in 

this case, the Court should exclude FEC Exhibits 33-36, 64-65, 67-68, 95, and 114. The Court 

should also exclude declarations from other cases that are cited in ¶¶ 133, 143, 309, 339, and 

365-66. Further, this Court should not adopt the FEC’s Proposed Findings of Fact that rely on 

these documents, which are contained in ¶¶ 83, 88, 90-91, 133, 143, 209-15, 217, 230, 275-76, 

309-310, 328, 339, and 365-66 of Defendant’s Proposed Findings of Fact. 

III. Additional Witness Testimony and Documents Should Be Excluded Because They 

Were Not Timely Produced and Are Cited for Inadmissible Evidence 

In addition to the evidentiary problems discussed above, Defendants failed to timely 

disclose two fact witnesses, Michael Bright and Kevin Yowell, along with a number of 

documents relied upon in Defendant’s Proposed Findings of Fact. Michael Bright was not 

disclosed to Plaintiffs until after the close of business on the final day of discovery. See Gall 

Decl., Ex. O, Email from Kevin Deeley to Counsel for Plaintiffs and attachment (Sept. 26, 2008, 

7:32 PM). Kevin Yowell was not disclosed until October 1, 2008, five days after the close of 

discovery. See Gall Decl., Ex. K, Email from Kevin Deeley to Counsel for Plaintiffs and 

attachment (Oct. 1, 2008, 10:02 PM). And the documents were not disclosed at all until 

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Plaintiffs learned about them from Defendant’s proposed Findings of Fact. Compounding these 

failures to disclose, the evidence itself is rife with hearsay and conjecture. 

A. The Declarations of Michael Bright and Kevin Yowell and Several of 

Defendant’s Documentary Exhibits Were Not Timely Produced 

The FEC relies on the declarations of Mr. Bright and Mr. Yowell in paragraphs 288-297, 

300-302, and 311 of their proposed findings of fact. Plaintiffs do not know when Defendants 

first became aware of Mr. Bright, but documents produced after the close of discovery indicate 

that the FEC had been in contact with Mr. Bright as early as September 4, 2008. See Gall Decl., 

Ex. DD, Excerpt from FEC Supplemental Production of Sept. 30, 2008 containing email from 

Graham Wilson to Michael Bright dated Sept. 4, 2008. Defendants therefore had more than 

three weeks in which they could have disclosed their intention to rely on testimony from Mr. 

Bright. Instead, despite making multiple supplemental productions during that period, 

Defendants said nothing about Mr. Bright. Indeed, it appears that Defendant’s simply forgot 

about Mr. Bright until he emailed them two days before the close of discovery and asked “did i 

[sic] hear back from you/miss something?” See Gall Decl., Ex. EE, Email from Michael Bright 

to Graham Wilson (Sept. 24, 2008, 05:06 PM). But if this jogged Defendant’s memory, it did 

not spur them to supplement their disclosures. Instead, Defendant waited until two hours past 

the close of business on the last day of discovery. Similarly, documents produced after the close 

of discovery indicate that by September 8, 2008, Mr. Yowell had already given the FEC “a lot of 

information and documentation . . . .” See Gall Decl., Ex. FF, Excerpts from FEC Supplemental 

Production of Oct. 8, 2008, containing email from Graham Wilson to Leon Patton (Sept. 8, 2008. 

11:19 AM). 

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While the FEC’s failure to disclose these witnesses before the close of discovery is 

inexcusable, the FEC goes further when it relies on the following documents that were never

disclosed to Plaintiffs until the FEC filed their proposed findings of fact: 

• FEC Ex. 50: Annenberg Public Policy Center, Electing the President, 2004: The 

Insiders’ View (Kathleen Hall Jamieson ed., 2005). 

• FEC Ex. 51: Center for the Study of Elections and Democracy, 527s Had a Substantial 

Impact on the Ground and Air Wars in 2004, Will Return: Swift Boat Veterans 527 Play 

Historic Role (Dec. 16, 2004). 

• FEC Ex. 116: Senate Committee on Rules and Administration, Hearing to Examine and 

Discuss S.271, a Bill Which Reforms the Regulatory and Reporting Structure of 

Organizations Registered Under Section 527 of the Internal Revenue Code, 109th Cong. 

(March 8, 2005) Written testimony of Michael J. Malbin, Executive Director of the 

Campaign Finance Institute) (available at 

http://rules.senate.gov/hearings/2005/MalbinTestimony.pdf). 

• FEC Ex. 120: Advisory Opinion Request 2008-10. 

• FEC Ex. 121: Comment by SaysMe.tv on AOR 2008-10. 

• FEC Ex. 135: Corrado and Varney, Party Money in the 2006 Elections: The Role of 

National Party Committees in Financing Congressional Campaigns, Campaign Finance 

Institute (2007). 

These undisclosed documents are relied upon in paragraphs 103-105, 107-110, 120, 125, 

167, 231-232, 239, 386-390, and 437 of Defendant’s proposed findings of fact. In all but two of 

those paragraphs—105 and 107—these undisclosed documents are the only sources cited in 

support of the paragraphs’ claims.8

 As noted earlier in the context of the FEC’s undisclosed 

experts, parties are under a continuing duty to amend and update their disclosures in a timely 

manner, Fed. R. Civ. P. 26(e)(1)(A), and a party that fails to do so “is not allowed to use that 

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the 

failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). This exclusion is 

 

8

 The remaining supporting material in paragraphs 105 and 107 is inadmissible hearsay. See infra, Section IV and 

Declaration of Robert Frommer in Support of Plaintiffs’ First Motion in Limine, Ex. 1. 

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33

“automatic” unless the party can show that its failure was substantially justified or harmless. 

Elion v. Jackson, 544 F. Supp. 2d 1, 6 (D.D.C. 2008). The FEC cannot make these showings 

with regard to Messrs. Bright and Yowell or the undisclosed documents for the same reasons it 

could not make them with regard to Messrs. Johnson and Rozen; there is simply no 

explanation—other than neglect or deliberate delay—for why the FEC sat on this information for 

weeks, releasing it only after the close of discovery while plaintiffs were preparing to brief 

proposed findings of fact. 

B. The Information Drawn from the Yowell Declaration and Undisclosed 

Documents Is Also Inadmissible Because It Contains Hearsay and 

Speculation 

Even if Mr. Yowell had been timely identified as a fact witness and even if the FEC had 

timely disclosed the documents upon which it relies, the proposed facts drawn from that 

declaration and those documents would still be inadmissible on multiple other grounds. 

With regard to the undisclosed documents, there is not a single use of those documents 

that does not constitute inadmissible hearsay, often multiple levels of hearsay.9 Much of this 

hearsay is further objectionable because the statements are not even proper facts but rather expert 

opinions in the form of survey results (¶¶ 103-105), opinion testimony by well-known campaign 

finance expert and executive director of the Campaign Finance Institute, Michael Malbin (¶¶ 

125, 167), and opinions by various policy groups and their officers about the quality and 

effectiveness of political advertising campaigns (¶¶ 108, 231-232, 239). 

Many of the proposed facts drawn from the declarations of Mr. Yowell—contained in 

paragraphs 288-297 and 311—are similarly objectionable. While portions of the declaration 

reports facts within the personal knowledge of Mr. Yowell, other portions offered by the FEC as 

 

9

 An illustrative example is paragraph 104, which quotes a report of the Annenberg Public Policy Center, which in 

turn quotes Chris LaCivita, who in turn reports the results of a survey conducted by Public Opinion Strategies. 

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fact are instead improper pure speculation. In paragraph 296, for example, Mr. Yowell offers 

conjecture about the amount of money it would take to bribe a corrupt congressman and whether 

the average amount of money spent on an independent expenditure campaign might have that 

effect. And in paragraph 297, Mr. Yowell offers opinion about the possible effects that 

additional mail and telephone advertising might have had on the reelection of his employer, 

former-Congressman Snowbarger. 

As in the other matters discussed above, the FEC has, in multiple ways, ignored both the 

Federal Rules of Civil Procedure and the Federal Rules of Evidence. It has identified witnesses 

and documents inexcusably late and then used them to introduce inadmissible hearsay and 

opinion testimony. Accordingly, the declaration of Mr. Yowell (FEC Ex. 4) and the undisclosed 

documents (FEC Exs. 50-51, 116, 120-21, 135) must be excluded. Further, this court should not 

adopt the proposed facts that rely on these exhibits, which are contained in ¶¶ 103-105, 107-110, 

120, 125, 167, 231-232, 239, 288-97, 311, 386-390, and 437 of Defendant’s Proposed Findings 

of Fact. 

IV. This Court Should Also Refuse to Consider Numerous Facts and Exhibits That Are 

Inadmissible Hearsay 

In support of its Proposed Findings of Fact, the Federal Election Commission has put 

forward almost 120 different exhibits that total almost 2,500 pages in length. In doing so, the 

FEC has violated a great number of evidentiary prohibitions, the chief among them being the use 

of hearsay. No less than 52 of the FEC’s proffered exhibits are used for hearsay purposes. On 

top of this, the FEC’s proposed findings of fact include another 37 paragraphs containing hearsay 

that is quoted but not offered in an exhibit. Because hearsay evidence would not be admissible at 

trial, the District Court should refuse to consider both the exhibits and the facts that rely upon 

those exhibits for support. 

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Before continuing, Plaintiffs would like to note a frustrating behavior by the FEC: using 

various publications as evidence while not attaching them as exhibits to their Proposed Findings 

of Fact. Although they have not have undertaken a comprehensive review, Plaintiffs have 

encountered at least five different instances where the FEC relies on a newspaper article without 

introducing that article as an exhibit. See FEC’s Proposed Findings of Fact at ¶¶ 126, 218, 227, 

and 251. Its track record is even worse for academic papers; the FEC cites to sixteen academic 

publications and discussions that it does not include as an exhibit. See FEC’s Proposed Findings 

of Fact at ¶¶ 80, 81, 92, 100, 117, 118, 119, 126, 133, 134, 137, 144, 219, 228, and 315. And in 

some instances it fails to attach to its brief even certain McConnell declarations upon which it 

relies. See FEC’s Proposed Findings of Fact at ¶¶ 133, 143, 309, and 365. By failing to 

introduce the articles and papers and exhibits, the FEC denies the Court the ability to look over 

the materials and determine their veracity and probative value for itself. It once again shirks its 

duties and forces the Court and Plaintiffs to pick up the slack. But one simply cannot rely upon 

evidence that one does not submit. The Court should refuse to consider those findings of fact 

that rely on documents that the FEC failed to introduce into the record. 

The Federal Rules of Evidence “apply generally to civil actions and proceedings,” and 

govern the admissibility of evidence in this matter. Fed. R. Evid. 1101(b). The procedures set in 

place for the Findings of Fact most resemble the filing of a motion for summary judgment. In 

deciding on a motion for summary judgment, courts may consider “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any.” 

Fed.R.Civ.P. 56(c). In addition, a court may take into account any material that would be 

admissible or usable at trial. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 

Federal Practice and Procedure: Civil 3d § 2721. While such evidence need not be produced “in 

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a form that would be admissible at trial, the evidence still must be capable of being converted 

into admissible evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 

1369 (D.C. Cir. 2000) (emphasis removed). 

The Federal Rules of Evidence strictly forbid the use of hearsay evidence at trial. Fed. R. 

Evid. 802 (“Hearsay is not admissible except as provided by these rules.”). Because hearsay 

statements are not admissible at trial, neither may courts consider them for purposes like the one 

at hand. Cf. Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay [] counts 

for nothing on summary judgment.”) (internal quotation marks omitted); Wells v. Jeffery, No. 03-

cv-228, 2005 U.S. Dist. LEXIS 41309, at *12 n.7 (D.D.C. Mar. 20, 2006) (“The affidavit or 

declaration cannot contain hearsay evidence, as such evidence would not be admissible at trial.”). 

The evidence that the FEC puts forward in its proposed findings of fact, however, is rife 

with hearsay. In some cases, the hearsay is multiple layers deep, with one out of court statement 

relaying yet another. But yet the FEC leaves it to the Court to untangle the resulting mess. The 

Court should refrain; because the Federal Rules of Evidence are clear in forbidding hearsay 

evidence, Plaintiffs suggest that the Court refuse to consider such statements and disregard those 

findings of fact that rely upon them. Below, Plaintiffs discuss various types of documents 

containing inadmissible hearsay. 

Newspaper Articles: At various points in their Proposed Findings of Fact, the FEC cites 

to numerous newspaper articles and press releases to support their claims. In nearly every case, 

though, the purpose of the quote or citation is to prove the truth of what the article or release 

contains. Accordingly, they are hearsay and are not proper evidence in this case. Hutira v. 

Islamic Republic of Iran, 211 F. Supp. 2d 115, 123 (D.D.C. 2002) (citing Eisenstadt v. Allen, 113 

F.3d 1240 (9th Cir. 1997) (finding that "newspaper articles clearly fall within the definition of 

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hearsay . . . and, thus, are inadmissible.")). Note that, in many instances, those portions of the 

newspaper articles that the FEC cites in support of its proposed findings of fact themselves refer 

to statements made by others. This compounds the problem and leaves it to the Court to unravel 

multiple levels of hearsay. See the attached list for those newspaper articles and press releases 

that the FEC submitted that contain hearsay, along with the levels of hearsay each item contains. 

Declaration of Robert Frommer in Support of Plaintiffs’ First Motion in Limine [hereinafter 

Frommer Resp. Decl.], Ex. 1.

Academic Publications: Perhaps more egregious than the FEC’s citation to newspaper 

articles is its extensive reliance on academic studies and conference transcripts. Throughout its 

Proposed Findings of Fact, the FEC cites to and quotes academic pieces that it says support its 

contentions. But, just as with the newspaper articles, the FEC’s purpose in introducing the 

academic article or conference transcript is to prove the truth of the matter asserted. The 

academic studies and conference transcripts, therefore, contain hearsay and are inadmissible 

evidence for the purposes of this proceeding. Cf. In re Universal Serv. Fund Tel. Billing 

Practices Litig., No. 02-MD-1468-JWL, 2008 U.S. Dist. LEXIS 34542, at *6 (D. Kan. Apr. 25, 

2008) (“For example, scholarly articles, standing alone, contain inadmissible hearsay and have 

limited utility under the Federal Rules of Evidence. Therefore the court will not consider 

excerpts taken from them as statements of ‘facts’ for summary judgment purposes.”).

Plaintiffs presume that the FEC will attempt to argue that their expert’s reliance on these 

academic works, just as with the newspaper articles above, somehow make them admissible. 

Such an argument though would require a fundamental misreading of the Rules of Evidence. It 

is true that in “forming opinions or inferences upon the subject,” an expert witness may consider 

inadmissible facts and data “[i]f of a type reasonably relied upon by experts in the particular 

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field.” Fed. R. Evid. 703. But this is no way lets an expert launder otherwise inadmissible 

evidence. Miller & Sons Drywall, Inc. v. Comm’r, 89 T.C.M. (CCH) 1279 (T.C. 2005) (“While 

an expert can rely on data that is not admissible to form his opinion, such reliance does not 

elevate the evidence to be admissible for the truth of the matter asserted.”); United States v. Katz, 

213 F.2d 799, 801 (1st Cir. 1954) (“But the fact that an expert may use hearsay as a ground of 

opinion does not make the hearsay admissible.”) (internal quotation marks omitted). 

And just like with the newspaper articles, many of the academic studies and conference 

transcripts that the FEC cites contain multiple layers of hearsay, complicating an already difficult 

problem. See the attached list for those academic articles and conference transcripts that the 

FEC submitted that contain hearsay, along with the number of hearsay problems each such item 

contains. See Frommer Resp. Decl., Ex. 1. 

Testimony from Previous Hearings and Cases: In another portion of this brief, 

Plaintiffs make clear that declarations from another civil action, when they are submitted for 

their truth value in this case, are hearsay. Such a basic lesson seems to have evaded the FEC, 

however, as it has submitted approximately nine such documents into evidence and refers to four 

others in their brief. None of these declarations can be considered as competent testimony in this 

matter and the Plaintiffs would respectfully request that they be struck from the record. See Wells 

v. Jeffery, 03-CV-228, 2005 U.S. Dist. LEXIS 41309, 2006 WL 696057, at *12 n.7 (D.D.C. Mar. 

20, 2006) (“The affidavit or declaration cannot contain hearsay evidence, as such evidence 

would not be admissible at trial.”).

Beyond the McConnell declarations, though, the FEC has submitted into evidence two 

different pieces of testimony. The first is testimony that Derek Cressman, the Government 

Watchdog Director of Common Cause, presented to the California Fair Political Practices 

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Commission. FEC Ex. 93. The second is from Michael Malbin, who testified in the United 

States Senate concerning a bill that dealt with the reulgatory and reporting structures for Section 

527 organizations. FEC Ex. 116. The FEC is offering both items for the truth of what they 

assert. Both items are clearly hearsay. See, e.g., Pineiro v. Pension Benefit Guar. Corp., 318 F. 

Supp. 2d 67, 91 n.19 (S.D.N.Y. 2003) (“Plaintiffs have proffered the congressional testimony of 

Bonne Ann McHenry, an employee of one of PBGC’s contractors, which supports their view of 

the deficiencies in PBGC’s handling of the Plan. The testimony is inadmissible hearsay, 

however, and cannot be relied on to support plaintiffs’ motion for summary judgment.”). See

Frommer Resp. Decl., Ex. 1. 

Correspondence, Interviews and Miscellaneous Documents: The last set of documents 

that Plaintiffs discuss largely involve out-of-court communications between two persons. In the 

correspondence subcategory, the communications are taking place between two non-parties 

while in the interview subcategory, the FEC’s expert witness was part of most of the 

communications. The Federal Election Commission is introducing the documents in these two 

subcategories to prove that the statements made in the documents are, in fact, true. They are 

paradigmatic examples of hearsay and do not fit into any recognizable exception.

In addition, the FEC offers into evidence a webpage from the Harold Jarvis Taxpayers’ 

Foundation. This document, which is being offered for its truth value as well, is hearsay and 

should be stricken from the record. See Frommer Resp. Decl., Ex. 1. 

Thus, the Court should exclude Defendant’s Exhibits 33-36, 47-48, 50-58, 60-65, 67-75, 

77-79, 81-82, 84-89, 91-94, 98, 102, 106, 107, 111-12, 114, 116-17, and 135. Further, this Court 

should not adopt the proposed findings of fact that rely on these exhibits, contained in ¶¶ 83, 88, 

90-91, 99, 101, 103-05, 107-10, 112-14, 120, 125, 129, 147, 155, 157-59, 161, 167, 169-175, 

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 48 of 52
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180, 182, 192, 198-202, 209-13, 214-15, 217, 230-32, 234-36, 239, 243-44, 246, 250, 253, 255, 

259-60, 262-63, 266, 272, 275-76, 278-81, 288-91, 294-95, 299-300, 302, 306, 310, 313, 326, 

328, 353-54, 357, 384, 386-390, 416 and 445 of Defendant’s Proposed Findings of Fact. 

The Court should also exclude hearsay statements in Defendant’s Proposed Findings of 

Fact that were not submitted as exhibits—and refuse to adopt the associated proposed facts—

contained in ¶¶ 80-81, 84, 92, 100, 102, 117-19, 126-28, 133-34, 137, 143-44, 154, 208, 218-19, 

222, 227-28, 247, 249, 251, 293, 309, 315, 339, 359, and 365-66. 

V. This Court Should Also Exclude from Evidence All Statements of Facts in the 

FEC’s Submission That Are Plagued with Evidentiary Problems 

 Plaintiffs have identified several significant evidentiary problems with the FEC’s 

proposed findings of facts in both this motion and their motion to exclude the expert report of 

Clyde Wilcox. Where those evidentiary problems can be linked to improper exhibits, they may 

be solved by simply excluding those exhibits from the record and declining to adopt as “facts” 

the statements that rely on them. The FEC’s submission, however, is so rife with other 

evidentiary problems barring admissibility—but not necessarily having at their root a document 

or witness that should be excluded—that they defy enumeration within this motion. For 

example, many statements of “fact” lack any foundation, are really conclusory statements of 

opinion dressed up as facts, or are improper characterizations of evidence. In the Plaintiffs’ 

Response to Defendant’s Proposed Findings of Fact, Plaintiffs have attempted to identify all of 

these evidentiary problems in regard to each proposed finding, as well as to identify the handful 

of actual facts that can be culled from the FEC’s submission. Plaintiffs ask that this Court 

exclude or strike from evidence all the Defendant’s proposed findings for which Plaintiffs have 

identified problems as to admissibility. 

VI. Conclusion 

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41

For all the foregoing reasons, Plaintiffs respectfully request the following relief: 

1. That this Court grant Plaintiffs’ First Motion in Limine and exclude the following 

exhibits: Exs. 2-4, 6, 33-36, 47-48, 50-58, 60-75, 77-79, 81-82, 84-89, 91-98, 102, 106-107, 111-

112, 114, 116-117, 120, 121, and 135. 

2. That this Court decline to adopt the proposed facts that rely on these excluded 

documents, contained in the following paragraphs of Defendant’s Proposed Findings of Fact: ¶¶ 

83, 85, 86, 88, 90-91, 99, 101, 103-105, 107-110, 112-115, 120, 125, 129-30, 133, 143, 146-47, 

155, 157-59, 161, 167, 169-76, 178, 180, 182, 187-88, 192, 195, 198, 199-202, 204-07, 209-17, 

224-25, 230-32, 234-36, 239, 243-44, 246, 250, 253, 255, 259-60, 262-63, 266, 268, 272, 275-

76, 278-81, 288-97, 299-302, 306, 309-13, 316, 326, 328, 333-335, 339, 343-344, 353-357, 365-

366, 384, 386-390, 416, 437, and 445. 

3. That this Court exclude inadmissible evidence, and decline to adopt proposed 

findings relying on that evidence, contained in the following paragraphs of Defendant’s 

Proposed Findings of Fact: ¶¶ 80-81, 84, 92, 100, 102, 117-119, 126-128, 133-134, 137, 143-

144, 154, 208, 218-219, 222, 227-228, 247, 249, 251, 293, 309, 315, 339, at 365-366. 

4. Finally, that this Court decline to adopt any of Defendant’s proposed findings of fact 

for which Plaintiffs have identified evidentiary problems in Plaintiffs’ Response to Defendant’s 

Proposed Findings of Fact. 

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42

Dated: November 21, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

Robert Gall (DC Bar No. 482476) 

William H. Mellor (DC Bar No. 462072) 

Steven M. Simpson (DC Bar No. 462553) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs 

*Admitted Pro Hac Vice 

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43

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on this 21st Day of November, 2008, a true and correct copy 

of MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ 

FIRST MOTION IN LIMINE and ACCOMPANYING DECLARATIONS AND EXHIBITS

was electronically filed using the court’s ECF system and sent via the ECF electronic notification 

system to the following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

Case 1:08-cv-00248-JR Document 51 Filed 11/21/2008 Page 52 of 52
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

DECLARATION OF ROBERT GALL 

IN SUPPORT OF PLAINTIFFS’ FIRST MOTION IN LIMINE 

_______________________________________________________

1. I am an attorney representing the Plaintiffs in the above-captioned matter. I am a 

member in good standing of the Bar of the District of Columbia and have been admitted to the 

United States District Court for the District of Columbia. I make this declaration in support of 

Plaintiffs’ First Motion in Limine. 

2. Attached to this declaration are true and correct copies of the following documents: 

a. Exhibit A: Email from Steven M. Simpson to Kevin Deeley (Aug. 15, 2008, 

05:45 PM); 

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2

b. Exhibit B: Email from Steven Hajjar to Steven M. Simpson (Aug. 15, 2008, 

04:58 PM); 

c. Exhibit C: Email from Steven M. Simpson to FEC (Sept. 15, 2008, 08:26 PM); 

d. Exhibit D: Email from Steven Hajjar to Robert Gall (Sept. 17, 2008, 05:36 PM); 

e. Exhibit E: Email from Steven Hajjar to Cheryl Korn (Aug. 18, 2008, 05:03 PM); 

f. Exhibit F: Email from Clyde Wilcox to Kevin Deeley (June 12, 2008, 05:23 PM); 

g. Exhibit G: Email from Kimberly Wyborski to Steven Hajjar (July 30, 2008, 

03:42 PM); 

h. Exhibit H: Emails between the FEC and Zogby International (August 4, 2008 

through Aug. 20, 2008); 

i. Exhibit I: Email from Cheryl Korn to Steven Hajjar (Aug. 25, 2008, 02:51 PM); 

j. Exhibit J: Email from Robert Bonham to Steven M. Simpson (Aug. 25, 2008, 

09:41 PM); 

k. Exhibit K: Email from Kevin Deeley to Robert Gall (Oct. 1, 2008, 10:02 PM); 

l. Exhibit L: Plaintiffs’ Subpoena Duces Tecum of Robert Rozen (Oct. 14, 2008); 

m. Exhibit M: FEC’s Objections to Plaintiffs’ Subpoena Duces Tecum to Robert 

Rozen (Oct. 14, 2008); 

n. Exhibit N: Email from Robert Rozen to Paul Sherman (Oct. 16, 2008, 

11:13 AM); 

o. Exhibit O: Email from Kevin Deeley to Robert Gall (Sept. 26, 2008, 07:32 PM); 

p. Exhibit P: Plaintiffs’ Subpoena of California Fair Political Practices Commission 

(Sept. 19, 2008); 

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3

q. Exhibit Q: FEC’s Objections to Plaintiffs’ Subpoena to California Fair Political 

Practices Commission; 

r. Exhibit R: Letter from Scott Hallabrin to Steven M. Simpson (Sept. 25, 2008); 

s. Exhibit S: Email from Steven Hajjar to Steven M. Simpson (Sept. 25, 2008, 

10:21 AM); 

t. Exhibit T: FEC’s objections to Plaintiffs’ Subpoena Duces Tecum of Justice 

Larry V. Starcher (Sept. 25, 2008); 

u. Exhibit U: Email from Kimberly Wyborski to Steven Hajjar (July 30, 2008, 

04:25 PM); 

v. Exhibit V: Declaration of Robert Rozen from McConnell, v. FEC, 540 U.S. 93 

(2003); 

w. Exhibit W: FEC’s Initial Disclosures (June 6, 2008); 

x. Exhibit X: Email from Graham Wilson to Robert Gall (Sept. 30, 2008, 

06:47 PM); 

y. Exhibit Y: Email from Graham Wilson to Scott Hallabrin (Sept. 17, 2008, 

08:24 PM); 

z. Exhibit Z: Email from Scott Hallabrin to Graham Wilson (Sept. 30, 2008, 

01:23 PM); 

aa. Exhibit AA: Email from Kevin Deeley to Robert Rozen (Oct. 1, 2008, 

10:38 AM); 

bb. Exhibit BB: Plaintiffs’ First Set of Discovery Requests (July 22, 2008); 

cc. Exhibit CC: Email from Robert Shapiro to Clyde Wilcox (Aug. 13, 2008, 

01:15 PM); 

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dd. Exhibit DD: Email from Graham Wilson to Michael Bright (Sept. 4, 2008, 

05:06 PM); 

ee. Exhibit EE: Email from Michael Bright to Graham Wilson (Sept. 24, 2008, 

05:06 PM); 

ff. Exhibit FF: Email from Graham Wilson to Leon Patton (Sept. 8, 2008 

11:19 AM); 

gg. Exhibit GG: Joint Scheduling Report (June 6, 2008). 

3. I certify and declare under penalty of perjury under the laws of the United States of 

America that the foregoing is true and correct to the best of my knowledge and belief. 

Executed: November 21st, 2008. 

 /s/ Robert Gall

 Robert Gall 

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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

DECLARATION OF ROBERT FROMMER 

IN SUPPORT OF PLAINTIFFS’ FIRST MOTION IN LIMINE 

_______________________________________________________

1. I am an attorney representing the plaintiffs in the above-captioned matter. I 

am a member in good standing of the Bar of the District of Columbia and have applied 

for admission to the United States District Court for the District of Columbia. I make this 

declaration in support of Plaintiffs’ First Motion in Limine. 

2. Attached to this Declaration, as Exhibit 1, is a true and correct copy of a 

summary I created that details the hearsay present in the FEC Proposed Findings of Fact. 

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 1 of 8
Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 2 of 8
Frommer Declaration in Support of 

Motion in Limine 

Exhibit 1 

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 3 of 8
Hearsay Summary

FEC Ex. 

No.

Finding of 

Fact Description 

Levels of Hearsay in Cited 

Material

Newspaper Articles

84 99 AP, Bush Uses Recess Appointment Power to Install GOP Fundraiser Sam Fox as 

Ambassador , FoxNews.com, Apr. 4, 2007

1

106 99 Frank Luntz, Why Bush Won the Credibility Factor , Wash. Times, Nov. 5, 2004, at 

A21

1

52 101 Tyler Whitley, Group Glories in Kerry’s Defeat; Swift Boat Veterans Pleased Ad 

Campaign Paid Off, Says A Local Organizer of Effort , Richmond Times Dispatch, 

Nov. 8, 2004, at B1

2 

(cited portion of article quotes 

Swift Boat Vet founder)

126 Richard Berke, Aide Says Bush Will Do More to Marshal Religious Base , N.Y. 

Times, Dec. 12, 2001

1

126 David D. Kirkpatrick, Bush Appeal to Churches Seeking Help Raises Doubts , N.Y. 

Times, July 2, 2004, at A15

1

56 129 Jim Rutenberg, Democrats' Ads in Tandem Provoke G.O.P. , N.Y. Times, Mar. 27, 

2004

2 

(article relaying statements by 

Media Fund 

and MoveOn.org officials)

57 147 David E. Rosenbaum, Campaign Finance: The Hearing; Oilman Says He Paid For 

Access by Giving Democrats $300,000 , N.Y. Times, Sept. 19, 1997

2

(cited portion of article quotes 

Roger Tamraz)

111 155 Glen Justice, Advocacy Groups Reflect on Their Role in the Election , N.Y. Times, 

Nov. 5, 2004

1

117 180 Lisa Vorderbrueggen, Run a ‘clean’ campaign, get public funds , The Contra Costa 

Times, January 7, 2006, at F4

2 

(cited portion of article quotes Jon 

Coupal)

61 199 Glen Justice and Eric Lichtblau, Bush's Backers Donate Heavily to Veteran Ads , 

N.Y. Times, Sept. 11, 2004

1

62 200 Glen Justice and Jim Rutenberg, The 2004 Campaign: The Advisors; Advocacy 

Groups and Campaigns: An Uneasy Shuttle , N.Y. Times, Sept. 8, 2004

1

63 202 Peter H. Stone, Betting Man , Nat’l J., May 10, 2008 2 

(cited portion of article 

quoting unnamed consultant)

218 Juliet Eiperin, Small Business Group Sticks to One Side of Political Fence , Wash. 

Post May 16, 2002 at A23

2 

(cited portion of article quotes 

Congressman Randy Forbes)

227 Myra MacPherson, The New Right Brigade , Wash. Post, Aug. 10, 1980. 2 

(cited portion of articles quotes 

Terry Dolan)

69 234 Hillary Chabot, ‘I Can’t Be a Referee’: Drops 2004 crusade against ‘527’ attack ads , 

Boston Herald, June 12, 2008, at 5

1

72 236 Sam Stein, Source: Obama to Start Looking the Other Way on 527s , Huffington 

Post, Aug. 11, 2008

2 

(cited portion of article quoting an 

unnamed Obama source)

73 236 Greg Sargent, Top Democrats Privately Urging Major Donors to Fund Outside 

Groups to Attack McCain , Talking Points Memo, Sept. 15, 2008

1

251 Thomas B. Edsall, New Ways to Harness Soft Money in Works , The Washignton 

Post August 25, 2002, at A1

1

107 262 Jane Mayer, The Money Man: Can George Soros’s Millions Insure the Defeat of 

President Bush? , New Yorker, Oct. 18, 2004

2

 (cited portion of article quoting 

George Soros)

74 266 Scott Helman, Romney Seeks to Be Alternative to McCain , Boston Globe, 

September 23, 2006, at A1

1

78 278 John Fund, Energy Independent: Maverick Oilman Boone Pickens Talks About Fuel 

Prices And His Love For Philanthropy , Wall Street J., June 2, 2007, at 2

2

 (cited portion of article quoting 

Pickens)

79 278 Mike Allen, Swift Rewards for Pickens , Wash. Post, June 27, 2005, at A04 1

81 279 AP, Bush Withdraws “Swift Boat” Nominee , CBS News, March 28, 2007 1

84 280 Newspaper Articles concerning Sam Fox Ambassadorship 2

 (cited portion of Akers article 

quoting John Edwards for truth of 

matter asserted)

1

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 4 of 8
FEC Ex. Hearsay Summary

No.

Finding of 

Fact Description 

Levels of Hearsay in Cited 

Material

85 281 Glenn R. Simpson, Lender Lobbying Blitz Abetted Mortgage Mess , Wall Street J., 

Dec. 31, 2007

1

87 281 E. Scott Reckard, Ambassador Nominee’s Company is Scrutinized , L.A. Times, 

Aug. 7, 2005, at A-1

2 (cited portion of article quotes 

Robert Stern)

88 290 Steven Nicely, Tribe Again Pushes for KCK Bingo Hall , Kansas City Star, Oct. 3, 

1998

1

98 384 Matthew Mosk, Economic Downturn Sidelines Donors to ‘527’ Groups , Wash. Post, 

Oct. 19, 2008, A09

2 

(cited portion of article quotes Tom 

Matzzie)

60 198, 200 Kate Zernike and Jim Rutenberg, The 2004 Campaign: Advertising; Friendly Fire: 

the Birth of an Attack on Kerry , N.Y. Times, Aug. 20, 2004

1 in Fact 198, 1 in Fact 200

70 234, 235 Jim Rutenberg and Michael Luo, Interest Groups Step Up Efforts in a Tight Race , 

N.Y. Times, Sept. 16, 2008

1 in Fact 234, 2 in Fact 235 (cited 

portion of article referring to 

accusations by campaign officials)

71 235, 236 Marc Ambinder, Quietly, Obama Campaign Calls in the Cavalry , The Atlantic, Sept. 

9, 2008

1 in Fact 235, 2 in Fact 236 (cited 

portion of article quoting Obama 

advisor)

112 288, 289, 

291, 294, 

295

Jack Cashill, Moore of the Same Old Stuff , Ingram's Magazine, November 1999, at 

19-20

1 in Fact 288, 1 in Fact 289, 1 in 

Fact 291, 1 in Fact 294, 2 in Fact 

295

89 292, 294 Rick Alm and Jim Sullinger, Congressman Calls Lobbyist’s Tactics Illegal – Lobbyist 

Argued Monday Over Whether Papers Faxed to the Congressman’s Office Last 

Month Were A Veiled Attempt to Buy His Vote , Kan. City Star, Oct. 6, 1998; Tim 

Carpenter, Kansas Lawmaker Alleges Bribery Try on Gaming Issue, Journal-World 

(Lawrence, Kan.), Oct. 8, 1998

1 in Fact 292, 2 in Fact 294 (cited 

portion of article quotes 

Congressman Snowbarger)

91 299, 300, 

302

Steven Walters and Patrick Marley, Chvala Reaches Plea Deal , Milwaukee J. 

Sentinel, Oct. 24, 2005, at 2

1 in Fact 299, 1 in Fact 300, 1 in 

Fact 302

92 300, 306 Steve Schultze and Richard P. Jones, Chvala Charged With Extortion , Milwaukee J. 

Sentinel, Oct. 18, 2002, at 2

1 in Fact 300, 1 in Fact 306

94 326, 328 Chris Dickerson, Company Asks Benjamin to Recuse Himself Again, This Time with 

Poll Numbers , Legal Newsline.com, Mar. 8, 2008

1 in Fact 326, 1 in Fact 328

48 99, 105* Michael Janofsky, Advocacy Groups Spent Record Amount of 2004 Election , N.Y. 

Times, Dec. 17, 2004

* This article does not support proposition ¶ 105 for which it is offered; but if it did, it 

would be 2 levels of hearsay

2 in Fact 99 (quoting Charles 

Lewis); 2 in Fact 105 (citing 

statement by Republican polling 

company)*

Press Releases 

51 103, 120, 

232

Center for the Study of Elections and Democracy, 527s Had a Substantial Impact on 

the Ground and Air Wars in 2004, Will Return /Swift Boat Veterans 527 Played 

Historic Role (Dec. 16, 2004)

1 for Fact 103, 1 for Fact 120, 2 for 

Fact 232 (quoting in part statement 

by Professor David Magleby)

86 281 White House Press Release, Personnel Announcement , July 28, 2005 1

82 279 White House Press Release, Personnel Announcement , December 4, 2006 1

77 278 White House News Releases re: T. Boone Pickens 1

247 Press Release, FEC, 2004 Presidential Campaign Financial Activity Summary , Feb. 

3, 2005

1

Academic Papers

80 Richard N. Engstrom and Christopher Kenny, The Effects of Independent 

Expenditures in Senate Elections , Pol. Research Quarterly 55 (4):885-905 at 885, 

(2002)

1

81 Gary C. Jacobson, The Effect of the AFL-CIO’s “Voter Education” Campaigns on the 

1996 House Elections , 61 J. Pol. (1): 185-94)

1

117 David B. Magleby, Conclusions and Implications for Future Research, in The Other 

Campaign: Soft Money and Issue Advocacy in the 2000 Congressional Elections , 

(David Magleby, ed. 2003)

1

118 David B. Magelby and J. Quin Monson, Interest Groups in American Campaigns: 

the New Face of Electioneering, in The Last Hurrah? Soft Money and Issue 

Advocacy in the 2002 Congressional Elections (David B. Magleby et al. eds., 2004)

1

126 Clyde Wilcox and Carin Larson, Onward Christian Soldiers: The Christian Right in 

American Politics , 3rd ed., 2006

1

2

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 5 of 8
FEC Ex. Hearsay Summary

No.

Finding of 

Fact Description 

Levels of Hearsay in Cited 

Material

133 Mark E. Warren, What Does Corruption Mean in a Democracy? , 48 Am. J. Pol. Sci. 

328-43 (2004)

1

134 Michael J. Malbin, Rethinking the Campaign Finance Agenda , 6 The Forum, Iss. 1 

Art. 3, at 3 (2008)

1

137 Peter L. Francia et al., The Financiers of Congressional Elections: Investors, 

Ideologues, and Intimates (2003)

1

144 Mark J. Rozell and Clyde Wilcox, Interest Groups in American Campaigns: the New 

Face of Electioneering (1999)

1

58 161 Stephen R. Weissman and Kara D. Ryan, Soft Money in the 2006 Election and the 

Outlook for 2008/The Changing Nonprofits Landscape , at 22-23 (Campaign Finance 

Institute Report 2007)

1

219 David B. Magleby and Kelly D. Patterson, War Games: Issues and Resources in the 

Battle for Control of Congress , in Center for the Study of Elections and Democracy 

Report (2007)

1

228 David B. Magleby and J. Quin Monson, The Consequences of Noncandidate 

Spending, and a Look to the Future in The Last Hurrah? Soft Money and Issue 

Advocacy in the 2002 Congressional Elections (David B. Magleby et al. eds., 2004)

1

75 272* Steve Weissman and Margaret Sammon, Fast Start for Soft Money Groups in 2008 

Election[:] 527s Adapt to New Rules, 501(c)(4)s on the Upswing (Campaign Finance 

Institute, Apr. 3, 2008)

* Misquotes the exhibit; it should be "organizational"

1

100, 102 David B. Magleby et al., The Morning After: The Lingering Effects of a Night Spent 

Dancing, in Dancing Without Partners: How Candidates, Parties, and Interest 

Groups Interact in the Presidential Campaign , 25 (David B. Magleby et al., eds. 

2007)

1 for Fact 100, 1 for Fact 102

50 104, 105, 

107*, 108, 

109*, 110*, 

231*, 239*

Annenberg Public Policy Center, Electing the President, 2004: The Insiders’ View 

(Kathleen Hall Jamieson ed., 2005), at 194*

* 107: $18.8M comprehensive campaign

* 109: Improperly quoted

* 110: Improperly quoted

* 231: Improperly quoted

* 239: Improperly quoted

1 for Fact 104 (interview w/ Chris 

LaCivita), 1 for Fact 105, 1 for Fact 

107, 1 for Fact 108 (interview w/ 

Stephen Moore), 1 for Fact 109 

(interview w/ Stephen Moore), 1 for 

Fact 110 (interview w/ Stephen 

Moore), 1 for Fact 231 (interview w/ 

Stephen Moore), 1 for Fact 239 

(interview w/ Stephen Moore)

55 112, 157, 

158, 159, 

192, 201, 

250, 253, 

255, 259, 

260, 263

The Election After Reform, Money Politics and the Bipartisan Campaign Reform Act 

(Michael J. Malbin ed. 2006) (excerpts, Chapter 5, Weissman & Hassan and Ch. 6, 

Boatright, Malbin, Rozell, and Wilcox), at 87, FEC Exh. 55

2 for Fact 112 (cited portion of 

document quoting President 

Clinton), 1 for Fact 157, 1 for Fact 

158, 1 for Fact 159, 2 for Fact 192 

(cited portion of document quoting 

Ellen Malcolm and Harold Ickes), 1 

for Fact 201, 1 for Fact 250, 1 for 

Fact 253, 1 for Fact 255, 2 for Fact 

259 (cited portion of document 

quoting Ellen Malcolm and Harold 

Ickes), 2 for Fact 260 (cited portion 

of document quoting an unnamed 

527 group leader), 1 for Fact 263

47 114, 169, 

170, 171, 

172, 173, 

174, 175, 

182, 243, 

244, 246, 

353, 354, 

357

Independent Expenditures: The Giant Gorilla in Campaign Finance , June 2008 1 for Fact 114, 1 each for Facts 

169-175, 1 for Fact 182, 1 for Fact 

243, 1 for Fact 244, 1 for Fact 246, 

1 for Fact 353, 1 for Fact 354, 1 for 

Fact 357

3

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 6 of 8
FEC Ex. Hearsay Summary

No.

Finding of 

Fact Description 

Levels of Hearsay in Cited 

Material

119, 249 Center for the Study of Elections and Democracy at Brigham Young University, 

transcript, release of Dancing Without Partners, Feb. 7, 2005

2 for Fact 119 (cited portion of 

document quoting Steve 

Rosenthal), 2 for Fact 249 (cited 

portion of document quoting Harold 

Ickes)

133, 315 Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption 

(1995)

1 for Fact 133, 1 for Fact 315

133, 315 Mark E. Warren, Democracy and Deceit: Regulating Appearances of Corruption , 50 

Am. J. Pol. Sci. 160-74 (2006)

1 for Fact 133, 1 for Fact 315

135 386, 387, 

388, 389, 

390

Corrado and Varney, Party Money in the 2006 Elections: The Role of National Party 

Committees in Financing Congressional Campaigns , Campaign Finance Institute 

(2007) at 2

1 each for Facts 386-390

92, 128 David B. Magleby and Jonathan W. Tanner, Interest Group Electioneering in the 

2002 Congressional Elections, in The Last Hurrah? Soft Money and Issue Advocacy 

in the 2002 Congressional Elections (David B. Magleby et al. eds., 2004))

1 for Fact 92, 2 for Fact 128 (cited 

portion of document quoting 

Seniors Coalition flyer) 

Testimony

143 Gerald Greenwald, Corporate America Contributes Soft Money Under Pressure, in 

Inside the Campaign Finance Battle (Anthony Corrado et al., eds., 2003) 

(Greenwald Declaration from McConnell (paragraph 9))

1

309 McCain, John, Congress is Mired in Corrupt Soft Money, in Inside the Campaign 

Finance Battle (Anthony Corrado et al., eds., 2003) (McCain Declaration from 

McConnell (paragraph 8)

2 (cited portion of document 

referring to statements from Sen. 

McConnell and tobacco executives)

133, 339 Robert Y. Shapiro, Public Attitudes Toward Campaign Finance Practice and Reform 

in Inside the Campaign Finance Battle (Anthony Corrado et al., eds., 2003) (Shapiro 

Declaration from McConnell)

1 for Fact 133, 1 for Fact 339

365, 366 Jonathan S. Krasno and Frank Sorauf, Issue Advocacy and the Integrity of the 

Political Process in Inside the Campaign Finance Battle (Anthony Corrado et al. 

eds., 2003) (Krasno and Sorauf Declaration from McConnell)

1 for Fact 365, 1 for Fact 366

114 445 Hickmott Declaration from McConnell (paragraph 12) 1

35 91*, 209 Beckett Declaration from McConnell (paragraphs 12 & 16)

* Not supported by exhibit

1 for Fact 91, 1 for Fact 209

34 90, 210 Lamson Declaration from McConnell (paragraphs 11 & 19) 1 for Fact 90, 1 for Fact 210

64 211, 275 Bumpers Declaration from McConnell (paragraph 27) 1 for Fact 211, 1 for Fact 275

65 212 Simpson Declaration from McConnell (paragraph 13) 1

33 88, 213, 230, 

276

Pennington Declaration from McConnell (paragraphs 8, 11, 15, 16) 1 for Fact 88, 1 for Fact 213, 1 for 

Fact 230, 1 for Fact 276

36 83, 214 Bloom Declaration from McConnell (paragraphs 6 &17) 1 for Fact 83, 1 for Fact 214

67 215 Williams Declaration from McConnell (paragraph 8) 1

68 217, 310 Chapin Declaration from McConnell (paragraphs 6, 13, 16) 1 for Fact 217, 2 for Fact 310 

(portion of cited document 

discusses statement made by 

outside interest group)

93 313 Testimony of Derek Cressman, Government Watchdog Director of Common Cause, 

Hearing of the California Fair Political Practices Commission , Feb. 14, 2008, at 2

1

116 125, 167 Senate Committee on Rules and Administration, Hearing to Examine and Discuss 

S.271, a Bill Which Reforms the Regulatory and Reporting Structure of 

Organizations Registered Under Section 527 of the Internal Revenue Code, 109th 

Cong. (March 8, 2005) (written testimony of Michael J. Malbin, Executive Director of 

the Campaign Finance Institute) 

1 for Fact 125, 1 for Fact 167

Miscellaneous

293 Facsimile transmission to Congressman Snowbarger 1

102 416 Howard Jarvis Taxpayers Association, About Us, http://www.hjta.org/aboutus (visited 

Feb. 26, 2008)

1

Correspondence

53 107 Memorandum from McCabe to Spanos, (undated),Email from McKenna to Orfanos 

and attachments, Oct. 21, 2004

1

54 113 Letter from Wolf to Lewis, Sept. 17, 2004, Peter B. Lewis 00002, 10 1

Interviews 4

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 7 of 8
FEC Ex. Hearsay Summary

No.

Finding of 

Fact Description 

Levels of Hearsay in Cited 

Material

127 Interview with Paul Manafort by Jules Witcover, The Buying of the President, Center 

for Public Integrity, March 20, 2007

1

84, 154, 359 Wilcox Interview with Tom Daschle 1

208 Wilcox Interview with David Magleby 1

222 Wilcox Interview with Michael Bailey 1

5

Case 1:08-cv-00248-JR Document 51-36 Filed 11/21/2008 Page 8 of 8
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

ORDER GRANTING PLAINTIFFS’ FIRST MOTION IN LIMINE

_______________________________________________________

 For good cause shown, Plaintiffs’ First Motion in Limine is GRANTED. 

Accordingly, Defendant’s Exhibits 2-4, 6, 33-36, 47-48, 50-58, 60-75, 77-79, 81-82, 84-

89, 91-98, 102, 106-107, 111-112, 114, 116-117, 120, 121, and 135 shall be struck. 

Defendant’s proposed findings of fact relying on these excluded exhibits and contained in 

¶¶ 83, 85, 86, 88, 90-91, 99, 101, 103-105, 107-110, 112-115, 120, 125, 129-30, 133, 

143, 146-47, 155, 157-59, 161, 167, 169-76, 178, 180, 182, 187-88, 192, 195, 198, 199-

202, 204-07, 209-17, 224-25, 230-32, 234-36, 239, 243-44, 246, 250, 253, 255, 259-60, 

262-63, 266, 268, 272, 275-76, 278-81, 288-97, 299-302, 306, 309-13, 316, 326, 328, 

333-335, 339, 343-344, 353-357, 365-366, 384, 386-390, 416, 437, and 445 shall not be 

adopted. 

Case 1:08-cv-00248-JR Document 51-37 Filed 11/21/2008 Page 1 of 2
2

Further, Defendant’s proposed findings of fact and contained in ¶¶ 80-81, 84, 92, 

100, 102, 117-119, 126-128, 133-134, 137, 143-144, 154, 208, 218-219, 222, 227-228, 

247, 249, 251, 293, 309, 315, 339, 359, and 365-366 rely on inadmissible hearsay 

statements and shall not be adopted. 

Additionally, this Court declines to adopt any of Defendant’s proposed findings of 

fact for which Plaintiffs have identified evidentiary problems in Plaintiffs’ Response to 

Defendant’s Proposed Findings of Fact. 

SO ORDERED this ____ day of ________________, 2008. 

 _____________________________________ 

 James Robertson, United States District Judge 

Case 1:08-cv-00248-JR Document 51-37 Filed 11/21/2008 Page 2 of 2