UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

The Tea Party Leadership Fund ) 

209 Pennsylvania Ave SE, Suite 2109 ) 

Washington, DC 20003 ) 

 ) 

Mr. John Raese ) 

The Raese for Senate Committee ) 

PO BOX 262 ) 

Morgantown, WV 26507 ) 

 ) 

Mr. Sean Bielat ) 

Bielat for Congress 2012 ) 

PO BOX 1143 ) 

Brookline, MA 02446 ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. 1:12-cv-01707-RWR 

) 

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________) 

_____________________________________________________ 

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF 

MOTION FOR EMERGENCY PRELIMINARY INJUNCTION 

______________________________________________________ 

Stephen M. Hoersting* 

Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Ave. SE, Suite 2109 

Washington, DC 20003 

937.623.6102 

202.210.5431 

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Attorneys for Plaintiffs 

*Admitted Pro Hac Vice

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TABLE OF CONTENTS 

INTRODUCTION 1

ARGUMENT 3 

I. 3 

II. 4 

III. 5

IV. 7

CONCLUSION 8 

 

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TABLE OF AUTHORITIES 

Cases Page(s) 

Bantam Books, Inc. v. Sullivan, 

372 U.S. 58 (1963) 5 

Buckley v. Valeo, 

424 U.S. 1 (1976) 3 

California Medical Association v. FEC, 

453 U.S. 182 (1981) 4 

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006) 7 

Citizens Against Rent Control v. City of Berkley, 

454 U.S. 290(1981) 6 

Citizens United v. FEC, 

130 S. Ct. 878 (2010) 5, 6 

Elrod v. Burns, 

 427 U.S. 347 (1976) 7

Thomas v. Collins, 

323 U.S. 516 (1945) 5 

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

536 U.S. 150 (2002) 5 

Codes, Regulations and Rules 

2 U.S.C. § 441a(a)(1)(A) 2, 8 

2 U.S.C. § 441a(a)(2)(A) 2, 4, 6 

2 U.S.C. § 441a(a)(4) 2, 7, 8

2 U.S.C. § 441a(a)(5) 4 

Other Authorities 

Federal Election Campaign Act Amendments of 1976, Pub. L. 

 94-283, Title I, 90 Stat. 486 (May 11, 1976) 6 

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INTRODUCTION 

The Tea Party Leadership Fund PAC was awed when it received a note in shaky 

handwriting from an elderly grandmother, along with a $5 contribution, saying it was all she 

could afford to give, but also saying she believes so deeply in the fate of this country that she 

would it send it anyway. It was an awe-inspiring example of political speech and association. It 

is astounding that the Federal Election Commission (FEC) considers this grandmothers small act 

of speech and political association (and that of more than ten thousand other grandparents, 

veterans, and small business owners) to be so corrupting that it cannot permit it to occur at the 

same level as established insiders such as the Teamsters DRIVE PAC, Pharmaceutical Research 

& Manufacturers of America Better Government Committee, and BP Corporation North 

America Inc. PAC. 

 Plaintiffs acceded to the FEC’s request to file its Memorandum in Opposition to 

Plaintiffs’ Motion for Preliminary Injunction on November 1, 2012 (Docket No 3), despite the 

urgency of this matter. Plaintiffs have done everything possible to raise these issues once they 

became aware of their effect, did so through the appropriate administrative agency which chose 

to enforce an unconstitutional statute, and then sought relief as quickly as possible from this 

Court. Plaintiffs received Defendants memorandum at 6:27 p.m., yesterday evening. In the 

interest of time, and because it is important this Court have time to review and rule upon the 

preliminary injunction motion before the end of November 6, 2012, the date of the 2012 general 

election, Plaintiffs rely primarily on their Memorandum in Support of Emergency Preliminary 

Injunction and quickly submit this Reply Memorandum in Support of Emergency Preliminary 

Injunction to the Court to expedite consideration of the motion, noting here only the most glaring 

of the numerous errors in Defendants memorandum in opposition (hereinafter “Opp’n at _”). 

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This challenge is brought against the six-month waiting period of 2 U.S.C. § 441a(a)(4) 

that requires political committees to wait half a year before they may make contributions to 

candidates of up to $5,000—a level of contributions Congress has determined poses no threat of 

corruption. See 2 U.S.C. § 441a(a)(2)(A) ($5,000 contributions to candidates are noncorrupting).1

 The Tea Party Leadership Fund (“TPLF”) is a non-connected political action committee 

that easily fulfills the primary prerequisites to attaining multicandidate status – and the 

underlying intent that it be a “bona fide” committee; however, because six months have not yet 

elapsed since TPLF’s initial registration, and will not elapse until three days after the November 

6 election, TPLF cannot yet register as a multicandidate committee, a designation which allows 

political committees to contribute to candidates up to $5,000 per election. VC ¶ 4; 2 U.S.C. § 

441a(a)(2)(A). Thus, TPLF is forced to adhere to the lower contribution amount of $2,500 per 

candidate per election permitted to committees without multicandidate status. See 2 U.S.C. § 

441a(a)(1)(A). Clear precedent casts this as an unconstitutional prior restraint that cannot be 

allowed to deprive the rights of speech and association of thousands of individuals who care so 

deeply about the fate of their country that they have joined together to advocate collectively what 

they cannot achieve on their own. 

 

 

1

 Plaintiffs and the FEC agree this case also challenges the contribution limit at 2 U.S.C. § 441a(a)(1)(A), as-applied 

to Plaintiffs, that is, the $2,500 limit (adjusted for inflation) that any person may make to a candidate per election. 

Cf. Opp’n at 8, n.7. 

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ARGUMENT 

Plaintiffs John Raese and Sean Bielat are in races to represent the citizens of their 

respective State and district, and cannot wait until after November 6 to receive additional 

assistance from the Tea Party Leadership Fund. Candidates Raese and Bielat need this court to 

recognize that the six-moth waiting period is an intolerable prior restraint that, after the postBuckley Amendments of 1976, does nothing to prevent circumvention of the base contribution 

limits to candidates or to prevent corruption. Accordingly, the six-month waiting period 

requirement directly, significantly and impermissibly infringes upon the First Amendment rights 

of TPLF, its thousands of contributors, and Messrs. Raese and Bielat, preventing them from 

exercising their speech and association rights. 

I 

 TPLF now has received contributions from well over 10,000 individuals, contributions 

averaging less than $50 to TPLF, and only a single contributor whose net contributions 

aggregated to $1,500. And yet the FEC argues that “that there are many ways contributors might 

seek to channel large contributions above the personal limits through PACs to the candidates 

they wish to support.” Opp’n at 18. The FEC cites to pre-FECA-amendment language in 

Buckley: “a person who ... contribute[s] massive amounts of money to a particular candidate 

through the use of unearmarked contributions to political committees likely to contribute to that 

candidate.” Opp’n at 18, quoting Buckley v. Valeo, 424 U.S. 1, 38 (1976). 

First, there are no individuals contributing “massive amounts” here—the average 

contribution to TPLF is less than $50—and no concern that any individual will corrupt a 

candidate by giving to TPLF. In fact, the FEC has the electronic reports filed by this Committee 

of receipts and expenditures through October 17, 2012, and could very easily compare each 

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itemized contributors name against the FEC’s own database of itemized contributions to 

candidates and determine whether any potential excessive contribution is even mathematically 

possible. It has not; a telling sign that it cannot muster any iota of evidence to support its 

speculative claims of circumvention. 

Second, the anti-earmarking provisions, in place and noted by the Buckley Court in the 

quote the FEC cites, would prevent TPLF from telling any PAC to give any of its $5,000 (to the 

subsequent PAC) to a particular candidate. Third, the post-Buckley amendments prevent any 

PAC from giving more than $5,000 to any other PAC who can in turn make contributions to a 

candidate. This $5,000 limit, condoned by Congress, curtails any possible corruption. Fourth, 

any PAC affiliated with TPLF would share the limit, so there is no PAC-proliferation risk, that 

is, no risk the TPLF can clone itself to repeat $5,000 contributions in the same election to the 

candidates it favors. 2 U.S.C. § 441a(a)(5) (affiliated PACs share contribution limits). Even if, as 

the FEC worries, TPLF can go to “the internet,” Opp’n at 19, to find PACs who like certain 

candidates, the fact remains that the most TPLF can give to any PAC is $5,000—an amount set 

by Congress to prevent corruption. 2 U.S.C. § 441a(a)(2)(A). 

 Given the anti-circumvention constructs enacted after Buckley, what does the six month 

waiting period add? Nothing. The six-month waiting period is now an unconscionable prior 

restraint this Court should lift so that candidates Raese and Bielat can receive needed support 

that cannot possibly be corrupting from TPLF and its thousands of grassroots citizen-donors on 

or before the November 6th election, as this case heads to a determination on the merits. 

II 

The FEC cites California Medical Association v. FEC, 453 U.S. 182 (1981) (CalMed), to 

demonstrate that anti-circumvention measures are valid. Opp’n at 14. But the CalMed opinion 

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helps Plaintiffs: the case upheld one of the anti-circumvention measures Congress enacted in 

1976 in light of Buckley. Specifically, it upheld one of the anti-circumvention measures on which 

Plaintiffs rely: the $5,000 contribution limit on contributions to PACs. 

The FEC suggest this Court should just defer to Congress’ judgment, Opp’n at 21, and 

uphold the six-month waiting period as an additional prophylaxis Congress needs over above the 

post-Buckley amendments. But Thomas v. Collins, 323 U.S. 516 (1945), and Watchtower Bible 

& Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002), counsel that this Court 

cannot simply defer to legislatures on prior restraints. “Any system of prior restraints of 

expression comes to this Court bearing a heavy presumption against its constitutional validity.” 

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The FEC’s protestation that a six-month 

waiting period to engage in non-corrupting speech and political association is not a restraint is 

inapt; to the contrary, the Supreme Court has construed prior restraints broadly to encompass 

registration requirements or even ministerial restrictions that have the effect of barring or 

discouraging speech before its utterance, reserving special concern for registration requirements 

that act to ban spontaneous speech. See Thomas v. Collins, 323 U.S. 516 (1945). In Thomas v. 

Collins, the Supreme Court stated that “[a]s a matter of principle a requirement of registration in 

order to make a public speech would seem generally incompatible with an exercise of the rights 

of free speech and assembly.” Id. at 539. This Court cannot simply defer, nor accede to the 

FECs argument that a restriction that only limits speech based on the identity of the speaker is 

somehow permissible.

III 

The FEC also argues that Plaintiffs overly rely on Citizens United v. FEC, 130 S. Ct. 878 

(2010). Opp’n at 17. Not at all. Plaintiffs cite and repeatedly explain the anti-circumvention 

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interest discussed in Buckley and show that it is cured by the post-Buckley amendments to 

FECA. Federal Election Campaign Act Amendments of 1976, Pub. L. 94-283, Title I, 90 

Stat. 486 (May 11, 1976). Plaintiffs are correct to note that the Supreme Court in Citizens 

United again identified the sole interest sufficiently compelling to limit contributions to 

political organizations: that of preventing the actual or apparent quid pro quo corruption of 

candidates. Citizens United v. FEC, 130 S. Ct. 876, 908-909 (2010); see also Citizens 

Against Rent Control v. City of Berkley, 434 U.S.290, 437-38 (1981) (“Buckley identified 

only a single narrow exception to the rule that limits on political activity were contrary to 

the First Amendment. The exception relates to the perception of undue influence of large 

contributors to a candidate.”) (emphasis in original). For years now, Congress has approved 

$5,000 contributions as non-corrupting. 2 U.S.C. § 441a(a)(2)(A). TPLF wants nothing 

more than to make contributions at the level made by every other PAC. The FEC fails to 

notice that there is no valid government interest in limiting corruption, circumvention or its 

appearance that will justify imposing a six-month waiting period before TPLF is permitted 

to contribute to candidates of its choosing to the full extent of the law. The 1976 

Congressional Amendments already effectively addressed potential circumvention issues by 

enacting prophylactic measures to prevent individuals from evading contribution limits. 

Federal Election Campaign Act Amendments of 1976, Pub. L. 94-283, Title I, 90 Stat. 486 

(May 11, 1976). As such, the six-month waiting period does nothing to prevent corruption. 

The FEC has no compelling—or even legitimate—interest in forcing TPLF to wait six 

months before making its permitted maximum contributions. Circumvention in this situation 

is no more likely than with any long-existing political committee; thus, the waiting period is 

unconstitutional as applied. 

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IV 

As soon as possible, and certainly before the 2012 general election, TPLF would like to 

contribute up to $5,000 per election to candidates without being forced to first endure a sixthmonth waiting period. Correspondingly, Messrs. Raese and Bielat wish to be permitted to each 

accept TPLF’s additional contributions totaling up to $5,000 before this case goes to the merits. 

To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood 

of success on the merits, (2) that it would suffer irreparable injury if the injunction were not 

granted, (3) that an injunction would not substantially injure other interested parties, and (4) that 

the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. 

England, 454 F.3d 290, 297 (D.C. Cir. 2006). As demonstrated above, and in more detail in 

Plaintiffs’ Memorandum in Support of Preliminary Injunction, each of these factors weighs in 

Plaintiffs’ favor. 

“The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable harm.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Under 

the mandatory waiting period required by 2 U.S.C. § 441a(a)(4), TPLF and its thousands of 

donors cannot make the $2,500 additional contributions ($5,000 per candidate per election in 

total) to candidates permitted to multicandidate political committees. Further, Messrs. Raese and 

Bielat cannot accept the additional contributions, totaling $5,000 each. TPLF is ready, willing, 

and able to contribute the funds, and Mr. Rease and Mr. Bielat will readily accept these 

contributions, if permitted. The only thing standing between TPLF and its ability to speak is the 

six-month waiting period imposed by 2 U.S.C. § 441a(a)(4). Plaintiffs’ rights are in fact being 

impaired right now; there is nothing speculative about their claims. See Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) (stating that “[w]here a 

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plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature 

of the harm may be presumed”). 

Without an immediate ruling from this court, TPLF will be prevented from making these 

contributions before the general election, depriving the requestors and those who contribute to 

the TPLF of their right to association and speech at the time when speech is most necessary and 

protected – before the election when such speech maters. Likewise, Messrs. Raese and Bielat—

and countless other candidates—will be deprived of their ability to freely associate with their 

own contributors during election season, when First Amendment rights are of paramount 

importance. 

CONCLUSION 

For the foregoing reasons, the Court should grant Plaintiffs’ motion for preliminary 

injunction and enjoin the six-month waiting period requirement contained in 2 U.S.C § 

441a(a)(4) and application of the $2,500 (inflation-adjusted) contribution limit from TPLF to 

candidates at 2 U.S.C. § 441a(a)(1)(A). 

 Dated: 2 November, 2012 

Stephen M. Hoersting* 

 /s/ 

Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Ave. SE, Suite 2109 

Washington, DC 20003 

937.623.6102 

202.210.5431 

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Attorneys for Plaintiffs 

*Admitted Pro Hac Vice. 

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