United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241 

THREE-JUDGE COURT REQUESTED

Application for Three-Judge Court

Plaintiffs apply for a three-judge court to adjudicate the challenges in the Verified Complaint

(Doc. 1), pursuant to § 403(a)(1) and (d)(2) of the Bipartisan Campaign Reform Act of 2002

(“BCRA”). Pub. L. No. 107-155 (2002), 116 Stat. 81, 113-14. See LCvR 9.1; 28 U.S.C. 2284.

BCRA § 403 provides special judicial-review rules where, as here, Plaintiffs elect them:

SEC. 403. JUDICIAL REVIEW.

(a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITUTIONAL

GROUNDS.—If any action is brought for declaratory or injunctive relief to challenge the

constitutionality of any provision of this Act or any amendment made by this Act, the following

rules shall apply:

(1) The action shall be filed in the United States District Court for the District of Columbia

and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United

States Code.

(2) A copy of the complaint shall be delivered promptly to the Clerk of the House of

Representatives and the Secretary of the Senate.

(3) A final decision in the action shall be reviewable only by appeal directly to the Supreme

Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within

10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final

decision.

(4) It shall be the duty of the United States District Court for the District of Columbia and

the Supreme Court of the United States to advance on the docket and to expedite to the greatest

possible extent the disposition of the action and appeal....

(d) APPLICABILITY.— ....

(2) SUBSEQUENT ACTIONS.—With respect to any action initially filed after December

31, 2006, the provisions of subsection (a) shall not apply to any action described in such section

unless the person filing such action elects such provisions to apply to the action.

Three-Judge Court Application 1

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 1 of 55
As set out in the accompanying Memorandum in Support of Application for Three-Judge Court, 

Plaintiffs’ action qualifies for BCRA § 403’s judicial-review rules. Wherefore, Plaintiffs request the

Court (a) to convene a three-judge court to hear this action and (b) “to advance on the docket and

to expedite to the greatest possible extent the disposition of the action,” BCRA § 403(a)(4).

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

mail@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application To Be Filed

Three-Judge Court Application 2

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 2 of 55
Certificate of Service

I hereby certify that on August 3, 2015, I electronically filed the foregoing Application for

Three-Judge Court with the Clerk of the Court using the CM/ECF system, which will then send a

notification of such filing to the following (and any other FEC counsel that will appear):

Kevin Deeley, Acting Associate General Counsel for Litigation

Federal Election Commission

999 E Street, NW

Washington, DC 20463

kdeeley@fec.gov.

In addition, a courtesy copy was sent by email to kdeeley@fec.gov on the same date.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 3 of 55
United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241 

THREE-JUDGE COURT REQUESTED

Memorandum Supporting

Application for Three-Judge Court

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

mail@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application To Be Filed

Three-Judge Court Memo 

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 4 of 55
Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Points and Authorities ..........................................................1

I. This Action Meets BCRA § 403’s Criteria. ....................................2

II. BCRA § 403’s Rules Were Employed in Similar Cases. .........................3

A. McConnell Addressed Facial Challenges to BCRA § 101, at Issue Here. .........3

B. McCutcheon Struck BCRA Contribution Limits Under § 403 Rules. .............3

III. This Action Presents Substantial, Non-Foreclosed Claims. .......................4

A. Any Criteria Beyond BCRA’s Two Criteria Must Be Narrow. ..................4

B. Controlling Holdings Prove This Action Substantial and Non-Foreclosed. . . . . . . . . 9

1. McConnell Deemed the Ban a Contribution Restriction, But the Communications at Issue Are Like those Protected in the Independent-Expenditure Cases. . . 9

2. Contribution Precedents Prove this Action Substantial and Non-Foreclosed. . . 10

3. Expenditure Precedents Prove this Action Substantial and Non-Foreclosed. . . . 12

4. No McConnell or Other Case Language Forecloses this Action. . . . . . . . . . . . . 14

5. Party-Committee Status Does Not Justify Different Treatment. . . . . . . . . . . . . . 17

a. IE-PAC Case Statements Distinguishing Party-Committees Are Dicta. . . . . 18

b. Party-Committee Coordination with Candidates May Not Be Presumed. . . 18

c. What the Colorado Cases and McConnell Really Said Supports Plaintiffs. . 23

C. Count I Presents Substantial, Non-Foreclosed Claims. . . . . . . . . . . . . . . . . . . . . . . . 27

1. Non-Individualized, Independent Communications Merely Exhorting Registering or Voting Pose No Quid-Pro-Quo-Corruption Risk. . . . . . . . . . . . . . . . . . 29

2. Such Communications, and Other Non-Individualized, Independent Communications Constituting FEA, Made by Internet Pose No Quid-Pro-Quo-Corruption Risk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Three-Judge Court Memo i

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D. Count II Presents Substantial, Non-Foreclosed Claims. . . . . . . . . . . . . . . . . . . . . . . 34

E. Count III Presents Substantial, Non-Foreclosed Claims. . . . . . . . . . . . . . . . . . . . . . 36

F. Count IV Presents Substantial, Non-Foreclosed Claims. . . . . . . . . . . . . . . . . . . . . . 38

III. This Action Is Like a Related Case Held to Present Substantial Claims. . . . . . . . . . . . . 39

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Three-Judge Court Memo ii

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 6 of 55
Table of Authorities

Cases

Agostini v. Felton, 521 U.S. 203, 238 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . . 6, 39

Buckley v. Valeo, 424 U.S. 1 (1976) .......................................... passim

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011) ............................. 13, 18, 35

Citizens United v. FEC, 558 U.S. 310 (2010) ................................... passim

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996)

(“Colorado-I”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 16, 18-25

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1488 (D. Col.

1993) ................................................................ 10, 22

FEC v. Colorado Republican Federal Campaign Committee, 41 F. Supp. 2d 1197 (D. Colo.

1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

FEC v. Colorado Republican Federal Campaign Committee, 213 F.3d 1221 (10th Cir. 2000)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001)

(“Colorado-II”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 25

FEC v. National Conservative PAC, 470 U.S. 480 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL-II”) . . . . . . . . . . . . . . . . . . 5-6, 14

Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 40

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Goldstein v. Cox, 396 U.S. 471 (1970) .............................................4

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90 (1974) .....................4

McConnell v. FEC, 540 U.S. 93 (2003) ........................................ passim

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) .................................... passim

Three-Judge Court Memo iii

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 7 of 55
MTM v. Baxley, 420 U.S. 799 (1975) ..............................................4

New York Progress and Protection PAC v. Walsh , 17 F. Supp.3d 319 (S.D.N.Y. 2014) . . . . . 43

Ognibene v. Parkes, 671 F.3d 175 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Republican National Committee et al. v. FEC (14-0853) (D.D.C. 2014) . . . . . . . 8, 39-40, 42, 44

Republican Party of Minn. v. White, 536 U.S. 765 (2002) .......................... 29, 34

RNC v. FEC, 561 U.S. 1040 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC-I”) . . . . . . . . . . . . . . . . . . . . . . . . 16, 42

Rufer v. FEC (14-0837) (D.D.C. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010)(“SpeechNow”) . . . . . 8, 13, 16-18, 22, 24

U.S. v. McDonnell, No. 15-4019, 2015 WL 4153640 (4th Cir. July 10, 2015) . . . . . . . . . . . . . . 43

Vermont Right to Life Committee v. Sorrell, 758 F.3d 118 (2d Cir. 2014) . . . . . . . . . . . . . . . . . 43

Wagner v. FEC, No. 13-5162, 2015 WL 4079575 (D.D.C. July 7, 2015) . . . . . . . . . . . . . . . . . 43

Wisconsin Right To Life v. Barland, 751 F.3d 804 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . 43

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL-I”) . . . . . . . . . . . . . . . . . . . 5-6, 14

Constitutions, Statutes & Rules

11 C.F.R. 100.24 ......................................................... passim

11 C.F.R. 100.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34

11 C.F.R. 100.25(c)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

11 C.F.R. 100.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

11 C.F.R. 109.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

11 C.F.R. 300.2(g) .............................................................2

Three-Judge Court Memo iv

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 8 of 55
11 C.F.R. 300.2(k) .............................................................2

11 C.F.R. 300.32(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

28 U.S.C. 2284 ................................................................1

28 U.S.C. 2284(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

52 U.S.C. 30101(20) ...........................................................1

52 U.S.C. 30104(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 27, 29, 34, 36, 38

52 U.S.C. 30125(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 27, 34, 36, 38

52 U.S.C. 30125(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 27, 34, 36, 38

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155 (2002), 116 Stat.

81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

LCvR 9.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. amend. I ...................................................... passim

Other Authorities

Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits (June 2,

2014), www.moresoftmoneyhardlaw.com/2014/05/circling-back-full-360-rnc-libertarianparty-lawsuits/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEC, FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees that

Maintain a Non-Contribution Account (Oct. 5, 2011),

www.fec.gov/press/press2011/20111006postcarey.shtml ........................ 13, 35

FEC, Advisory Opinion 2010-11 (Commonsense Ten) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC, Matter Under Review 3620 (DSCC), http://fec.gov/em/mur.shtml . . . . . . . . . . . . . . . . . . 20

FEC, News Release (June 4, 2014), www.fec.gov/press/press2014/news_releases/20140604release.shtml. .................................................8

FEC, “Definition of Federal Election Activity,” 71 Fed. Reg. 8926 (Feb. 22, 2006) . . . . . . . . . 31

FEC, “Definition of Federal Election Activity,” 75 Fed. Reg. 55257 (Sep. 10, 1010) . . 29, 31, 32

FEC, “Internet Communications,” 71 Fed. Reg. 18589 (April 12, 2006) ............ 28, 33, 34

FEC, “Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money,” 67 Fed.

Three-Judge Court Memo v

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Reg. 49063 (July 29, 2002) ............................................... 30, 32

Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L.

Rev. 1185 (2013) ...........................................................8

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) .........................4

Three-Judge Court Memo vi

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Points and Authorities

Plaintiffs have filed a Verified Complaint (Doc. 1) and Application for Three-Judge Court under

§ 403(a)(1) and (d)(2)1 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-

155 (2002), 116 Stat. 81, 113-14. See LCvR 9.1; 28 U.S.C. 2284. As demonstrated here, this action

(I) meets § 403’s criteria, (II) is like cases with BCRA courts, (III) presents substantial, non-foreclosed claims, and (IV) is like a related case held to present substantial claims.

Plaintiffs are state and local committees of political parties (Compl. ¶¶ 6-8) seeking to do

independent “federal election activity” (Compl. ¶¶ 16, 27 (definitions))2

 absent BCRA restrictions

on federal election activity (Compl. ¶¶ 74-116). They challenge BCRA provisions as unconstitu1

 In relevant part, BCRA § 403 provides:

SEC. 403. JUDICIAL REVIEW.

 (a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITUTIONAL GROUNDS.

—If any action is brought for declaratory or injunctive relief to challenge the constitutionality

of any provision of this Act or any amendment made by this Act, the following rules shall apply:

 (1) The action shall be filed in the United States District Court for the District of Columbia and

shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States

Code.

 (2) A copy of the complaint shall be delivered promptly to the Clerk of the House of Representatives and the Secretary of the Senate.

 (3) A final decision in the action shall be reviewable only by appeal directly to the Supreme

Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within

10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final

decision.

 (4) It shall be the duty of the United States District Court for the District of Columbia and the

Supreme Court of the United States to advance on the docket and to expedite to the greatest

possible extent the disposition of the action and appeal....

 (d) APPLICABILITY.— ....

 (2) SUBSEQUENT ACTIONS.—With respect to any action initially filed after December 31,

2006, the provisions of subsection (a) shall not apply to any action described in such section

unless the person filing such action elects such provisions to apply to the action.

2

 “Federal election activity” (“FEA”) encompasses activities of state and local committees,

including voter-registration activity (VR”), get-out-the-vote activity (“GOTV”), voter identification

(“VID”), generic campaign activity (“GCA”) (promoting political party), communications promoting, attacking, supporting, opposing candidates (“PASO”), and compensating workers with over

25% of time monthly on FEA (“25% Rule”). 52 U.S.C. 30101(20); 11 C.F.R. 100.24.

Three-Judge Court Memo 1

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 11 of 55
tional as follows: (I) as applied to (a) non-individualized, independent communications exhorting

registering/voting and (b) non-individualized, independent communications by Internet; (II) as

applied to (a) non-individualized, independent communications and (b) such communications from

an independent-communications-only account (“ICA”); (III) as applied to all independent federal

election activity; and (IV) facially. (Compl. ¶ 1.) The Complaint provides “Historical & Legal

Context” (Compl. ¶¶ 10-73) with provisions, background, and context.

I. This Action Meets BCRA § 403’s Criteria.

A three-judge court should be convened, BCRA § 403(a)(1),3 because Plaintiffs elect BCRA’s

rules, § 403(d)(2), and meet § 403(a)’s criteria, i.e., “challeng[ing] the constitutionality of any

[BCRA] provision.” This First Amendment action challenges three BCRA provisions:

(a) the Ban, 52 U.S.C. 30125(b)(1),4 banning state and local committees from using nonfederal

funds5 for federal election activity, BCRA § 101(b), 116 Stat. 82-84;

(b) the Fundraising Requirement, 52 U.S.C. 30125(c),6

 requiring federal funds to raise funds to

be used for federal election activity, BCRA § 101(c); and

(c) the Reporting Requirement, 52 U.S.C. 30104(e)(2),7

 requiring monthly reporting of receipts

and disbursements for federal election activity, BCRA § 103(a).

3

 The three-judge court is to be convened under 28 U.S.C. 2284(b)(1), which provides that

the judge to whom the request is presented shall, unless he determines that three judges are not

required, immediately notify the chief judge of the circuit, who shall designate two other judges,

at least one of whom shall be a circuit judge. The judges so designated, and the judge to whom

the request was presented, shall serve as members of the court ....

4 See Compl. Counts I-IV. See also Compl. ¶ 32 (Ban text ).

5

 “Federal funds ... comply with the limitations, prohibitions, and reporting requirements of the

Act.” 11 C.F.R. 300.2(g). “Non-Federal funds ... are not subject to the limitations and prohibitions

of the Act.” 11 C.F.R. 300.2(k). These are also called “hard money” and “soft money.”

6 See Compl. Counts I-IV. See also Compl. ¶ 34 (Fundraising Requirement text).

7 See Compl. Counts I, III, and IV. See also Compl. ¶ 35 (Reporting Requirement text ).

Three-Judge Court Memo 2

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II. BCRA § 403’s Rules Were Employed in Similar Cases.

In (A) McConnell v. FEC, 540 U.S. 93 (2003), and (B) McCutcheon v. FEC, 134 S.Ct. 1434

(2014), this Court convened three-judge courts in actions challenging provisions like those here.

A. McConnell Addressed Facial Challenges to BCRA § 101, at Issue Here.

McConnell noted: “Section 403 of BCRA provides special rules for actions challenging the

constitutionality of any of the Act’s provisions.” 540 U.S. at 132 (citation omitted). “[A]ctions were

... heard by a three-judge court. Section 403 directed the District Court to advance the cases on the

docket and to expedite their disposition ‘to the greatest possible extent.’” Id. “As authorized by

§ 403, ... losing parties filed direct appeals ... within 10 days.” Id. The Court “ordered ... an expedited briefing schedule and ... a special hearing.” Id. McConnell addressed a “facial First Amendment challenge to new FECA[8] § 323” (BCRA § 101), id. at 134, and upheld FECA § 323(b), i.e.,

the Ban, 52 U.S.C. 30125(b)(1), id. at 188-89. That Ban is challenged here as applied and facially.

The Court’s summary, id., made no mention of FECA § 323(c), the Fundraising Requirement (52

U.S.C. 30125(c)), and FECA § 304(e)(2)(B), the Reporting Requirement (52 U.S.C. 30104(e)(2)),

added by BCRA §§ 101 and 103), which are newly at issue here.

B. McCutcheon Struck BCRA Contribution Limits Under § 403 Rules.

In McCutcheon, this Court convened a three-judge court (12-1034: Docs. 10, 12) in a challenge

to BCRA § 307’s aggregate limits on individuals’ contributions, and the Supreme Court followed

BCRA § 403’s special rules, 134 S.Ct. at 1443 (plurality).9 It struck the limits, id. at 1462, holding

that “[t]his Court has identified only one legitimate governmental interest for restricting campaign

finances: preventing corruption or the appearance of corruption.” Id. at 1450 (emphasis added). This

8

 “FECA” is the Federal Election Campaign Act, codified at 52 U.S.C. 30101 et seq.

9

 This recent use of BCRA § 403 refutes any notion that § 403 was just to quickly resolve

constitutional challenges immediately after BCRA’s passage. Moreover, Congress expressly authorized use of these rules “after December 31, 2006.” BCRA § 403(d)(2).

Three-Judge Court Memo 3

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action is like McCutcheon because both involve BCRA provisions “restricting campaign finances”

(aggregate contribution limits and nonfederal-funds Ban).

III. This Action Presents Substantial, Non-Foreclosed Claims.

This action presents substantial claims that are not foreclosed by any precedent.

A. Any Criteria Beyond BCRA’s Two Criteria Must Be Narrow.

Any criteria beyond BCRA § 403’s two criteria ((1) a constitutional challenge (2) to a BCRA

provision) must be narrow. BCRA § 403 provided that the “3-judge court [be] convened pursuant

to [28 U.S.C. 2284].” BCRA § 403(a)(1). Section 2284 requires a judge receiving a three-judge

court application to convene one “unless he determines that three judges are not required.” 28 U.S.C.

2284(b)(1). For that determination, Congress specified only two criteria in 2002, fully aware of a

past problem—with many three-judge-court, mandatory-appeal acts—that Congress had fixed.

Before the fix, courts were encouraged to “minimiz[e] the mandatory docket of [the Supreme] Court

in the interests of sound judicial administration.” Gonzalez v. Automatic Employees Credit Union,

419 U.S. 90, 98 (1974); see also Goldstein v. Cox, 396 U.S. 471, 478 (1970); accord MTM v.

Baxley, 420 U.S. 799, 804 (1975) (per curiam). But that was before such acts were repealed, see

Eugene Gressman et al., Supreme Court Practice at 75 (9th ed. 2007) (“Finally, in 1988, Congress

completed the task of eliminating virtually all of the [Supreme] Court’s mandatory jurisdiction.”).

Because that mandatory docket has already been minimized, any need to further minimize it is

reduced or eliminated. Now “[o]nly a tiny fraction of such jurisdiction remains, arising out of a few

statutes where Congress continues to find it appropriate to use the three-judge district court device

to resolve important and complex statutory problems.” Id. at 75-76. So when Congress created a new

three-judge court act in BCRA, fully aware of the past problem and fix, it clearly thought BCRA

raises just such important, complex problems and established BCRA § 403’s two criteria.

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Other criteria must be narrow because (a) in BCRA Congress indicated the need for special rules

in BCRA cases and (b) the stated criteria in Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975), are

narrow. Feinberg said “[c]onstitutional claims [could] be regarded as insubstantial if ... obviously

without merit, or if their unsoundness so clearly result[ed] from the previous decisions of [the

Supreme Court] as to foreclose the subject and leave no room for the inference that the question

sought to be raised can be the subject of controversy.” Id. at 1339 (internal quotation marks omitted).

“[C]onstitutional claims [must be] so frivolous, or so foreclosed by prior decisions, as to be too

insubstantial for jurisdiction....” Id. So under Feinberg, FEC must prove claims obviously frivolous

or clearly foreclosed beyond debate, and “‘the First Amendment requires us to err on the side of

protecting political speech rather than suppressing it,’” McCutcheon, 134 S.Ct. at 1451 (quoting

FEC v. Wisconsin Right to Life, 551 U.S. 449, 457 (2007) (plurality) (“WRTL-II”)).

And such criteria must be narrow because they foreclose Congress’s special protection for

BCRA constitutional claims before the convening of a three-judge court, which has sole jurisdiction

to consider the merits. While obviously frivolous cases might properly be rejected before convening

the merits-court, this case is not frivolous. See Parts III-IV. Whether a case is clearly foreclosed

without room for debate requires careful review of complex merits arguments by the merits-court

on full merits briefing. The complexity of such determinations is evident from examples of BCRA

three-judge courts being overturned on appeal. Consider three key cases (in which Plaintiffs’ counsel

Bopp and Coleson were counsel for plaintiffs).

First, Wisconsin Right to Life’s challenge to BCRA’s corporate electioneering-communication

ban was held foreclosed by McConnell, 540 U.S. 93, but the unanimous Supreme Court held, in

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (per curiam) (“WRTL-I”), that McConnell did

not foreclose the as-applied challenge. WRTL won its challenge in WRTL-II, 551 U.S. 449. If a

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judge had deprived WRTL of a three-judge court because its claim was foreclosed, WRTL would

have been deprived of the important judicial proceedings essential to BCRA. The unanimous WRTLI established that facial holdings do not “resolve future as-applied challenges,” even if some language allegedly seems to do so, WRTL-I, 546 U.S. at 411-12:

We agree with WRTL that the District Court misinterpreted the relevance of our “uphold[ing]

all applications of the primary definition” of electioneering communications. Id., at 190, n.73.

... [T]hat ... merely notes that because we found BCRA’s primary definition of “electioneering

communication” facially valid ..., it was unnecessary to consider the constitutionality of the

backup definition Congress provided. Ibid. In upholding § 203 against a facial challenge, we did

not purport to resolve future as-applied challenges.

Second, in Citizens United, 558 U.S. 310, a BCRA court granted FEC summary judgment in a

challenge to the corporate electioneering-communications ban. So the court held as a matter of law

that Citizens United’s challenge was foreclosed by precedent. Yet the Supreme Court facially

invalidated both the corporate electioneering-communication ban and the corporate independentexpenditure ban. If a judge had deprived Citizens United of a three-judge court because precedent

foreclosed the challenge, Citizens United would also have been deprived of vital BCRA rules.

Citizens United also established that in cases such as this facial challenges to prior facial holdings

(McConnell and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)) may even be

raised on appeal, 558 U.S. at 328-36, even if plaintiffs dismissed a facial challenge below, id. at 329.

And when the court said “ it ‘would have to overrule McConnell’ for [Plaintiffs] to prevail on [their]

facial challenge and that ‘[o]nly the Supreme Court may overrule its decisions’” that simply made

review appropriate. Id. at 330 (citations omitted).

Third, in McCutcheon, 134 S.Ct. 1434, where a BCRA court was convened, the three-judge

court granted FEC’s motion to dismiss a challenge to the aggregate contribution limit supposedly

foreclosed by precedent. The Supreme Court reversed, holding the limits unconstitutional. If plaintiffs had been deprived of a three-judge court because their challenge was deemed foreclosed before

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the three-judge court was convened, they would have been deprived of the valuable judicial procedures that Congress deemed essential for BCRA challengers. McCutcheon rejected FEC’s argument

that the facial upholding of an aggregate limit in Buckley v. Valeo, 424 U.S. 1, 38 (1976), “forecloses

appellants’ challenge,” Br. for Appellee at 43, holding, 134 S.Ct. at 1446:

Although Buckley provides some guidance, we think that its ultimate conclusion about the

constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent

a total of three sentences analyzing that limit; in fact, the opinion pointed out that the constitutionality of the aggregate limit “ha[d] not been separately addressed at length by the parties.”

Ibid. We are now asked to address appellants’ direct challenge to the aggregate limits in place

under BCRA. BCRA is a different statutory regime, and the aggregate limits it imposes operate

against a distinct legal backdrop.

WRTL, Citizens United, and McCutcheon show that holdings that prior decisions foreclose legal

challenges are regularly overturned on appeal in political-speech cases—even when the legal

determinations are made after three-judge courts are convened and after merits briefing. The decisions of the three-judge courts were quickly fixed because of BCRA’s rules. The lesson of these

cases is that whether complex challenges are “foreclosed” should not be decided on three-judgecourt applications, but on full merits briefs by three-judge courts. Given this history of FEC convincing lower courts that restrictions on core political speech are foreclosed by Supreme Court precedents, only to be promptly reversed on appeal, Plaintiffs should have the speedy BCRA procedures

Congress intended, to quickly gain Supreme Court review.10

Finally, a big-picture view is important. As Joel Gora, law professor and former ACLU attorney

in Buckley, 424 U.S. at 4, explains:

There is only one severe drawback in all of this unlimited, political giving and spending, which

is, by and large, so beneficial for our democracy. That is that our two most central, important

political actors—our candidates and our parties—have to fight their political battles with one

hand tied behind their back. While their expenditures cannot be limited, contributions to them

can be. [So] candidates and parties face the prospect of being outspent by independent individu10 Appeal of a BCRA § 403-court denial would go to the D.C. Circuit because § 403(a)(3) allows

appeal of only “[a] final decision” to the Supreme Court.

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als and groups who are no longer restrained in terms of what they can raise and spend. That is

a potential imbalance in our political and electoral speech system that should concern us.11

This “imbalance” with super-PACs12 explains why political parties need more funds to make

independent communications. Of a related case asserting the right of state committees to receive

unlimited contributions to make independent expenditures, RNC v. FEC (14-0853 (CRC)) (voluntarily dismissed), former White House Counsel Bob Bauer opined: “the suit does not exploit a

‘loophole’; it is not a ‘soft money’ lawsuit; and the RNC has not previously made this claim:”

Political committees can spend independently without limitation, and they can also accept

contributions without limit to fund these expenditures. The RNC and Libertarian committees are

simply saying: “us, too.” These party organizations, looking to regain a measure of competitive

parity with super PACs, are acting rationally ....13

That need for competitive parity was echoed by a Democratic state-party chairman and a Democratic

state-party executive director testifying at FEC’s forum14 on the problems of state political parties

from BCRA. (Compl. ¶¶ 69-73.) The state-party chairman testified: “[c]andidates and state parties

are losing control over their voice” (Compl. ¶ 71), and “if we do not address the growing imbalance

..., we may very well see the end of political parties at the state and local level” (Id.). As the bipartisan presenters noted, state political parties need relief from onerous burdens imposed by BCRA

reducing their competitiveness. Fortunately, relief is available because BCRA provisions are uncon11 Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L.

Rev. 1185, 1206-07 (2013).

12 “Super-PACs” make only independent expenditures, which “do not give rise to corruption or

the appearance of corruption,” Citizens United, 558 U.S. at 357, so “government ... ha[s] no anticorruption interest in limiting contributions to independent expenditure-only organizations,”

SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc) (“SpeechNow”).

13 Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits (June 2,

2014), www.moresoftmoneyhardlaw.com/2014/05/circling-back-full-360-rnc-libertarian-partylawsuits/.

14 Commissioners Goodman and Ravel hosted the forum. FEC, News Release (June 4, 2014),

www.fec.gov/press/press2014/news_releases/20140604release.shtml) (Audio at www.fec.gov/ audio/2014/20140604_FORUM.mp3). Some testimony and materials are at Compl. ¶¶ 69-73.

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stitutional as challenged here under controlling precedent.

B. Controlling Holdings Prove This Action Substantial and Non-Foreclosed.

Contribution and expenditure precedents prove this a substantial, non-foreclosed action.

1. McConnell Deemed the Ban a Contribution Restriction, But the Communications at

Issue Are Like those Protected in the Independent-Expenditure Cases.

McConnell treated BCRA’s nonfederal-funds provisions as contribution restrictions: “That they

[restrict contributions] by prohibiting the spending of soft money does not render them expenditure

limitations.” 540 U.S. at 139. It called the Ban “a straightforward contribution regulation: It prevents

donors from contributing nonfederal funds to state and local party committees to help finance ‘Federal election activity.’” Id. at 161-62. McConnell said ads paid for with nonfederal funds were like

express advocacy and coordinated, 540 U.S. at 131 (footnote omitted):

[B]oth parties began to use ... soft money ... for issue advertising ... to influence federal elections. The [Senate] Committee found such ads highly problematic for two reasons. Since they

accomplished the same purposes as express advocacy (which could lawfully be funded only with

hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent

protections that FECA was intended to provide. Moreover, though ostensibly independent of the

candidates, the ads were often actually coordinated with, and controlled by, the campaigns.

McConnell’s reliance on coordination has no application to this action, involving independent

activity. Not treating the Ban as an expenditure restriction conflicts with McCutcheon’s treatment

of aggregate contribution limits as “speech.” 134 S.Ct. at 1452. And state committees legally have

nonfederal funds (unlike national committees), so the Ban prohibits using existing funds for independent communications, making it an independent expenditure restriction as applied. McConnell’s

acknowledgment that issue ads “accomplish[] the same purposes as express advocacy,” 540 U.S.

at 131, acknowledges the analytical equivalence of the two. So Plaintiffs’ non-individualized,

independent communications are constitutionally like and should be treated like independent expenThree-Judge Court Memo 9

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ditures.15 McConnell did not consider the Ban as applied to such communications, which are governed by the independent-expenditure line of cases, and it did not do so under the now-controlling

“corruption” analyses of Citizens United and McCutcheon. But even under a contribution-restriction

analysis, the Ban fails, as discussed next.

2. Contribution Precedents Prove this Action Substantial and Non-Foreclosed.

In the contribution-restriction context, McCutcheon controls. The Court held aggregate limits

on contributions, including to political committees, violated the First Amendment for not being

justified by an anti-quid-pro-quo-corruption interest, “while seriously restricting participation in the

democratic process.” 134 S.Ct. at 1442 (plurality). McCutcheon made seven controlling holdings.

(i) “The right to participate in democracy through political contributions is protected by the First

Amendment.” Id. at 1441 (emphasis added). (ii) Under “strict scrutiny or Buckley’s ‘closely drawn’

test,[16] we must assess the fit between the stated governmental objective and the means selected to

achieve that objective.” Id. at 1445-46 (citations omitted). (iii) The “Court has identified only one

legitimate governmental interest for restricting campaign finances: preventing corruption or the

15 The non-corrupting nature of independent expenditures turns on the independence of the

communications not whether they contain express advocacy, as is clear from Colorado Republican

Federal Campaign Committee v. FEC, 518 U.S. 604, 613 (1996) (“Colorado-I”), where the Court

identified the communication at issue as an “independent expenditure” though it lacked express

advocacy, seeFEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1488, 1451

(D. Col. 1993) (district court applied express-advocacy construction to relevant provisions and

dismissed enforcement proceeding because there was no express advocacy).

16 McCutcheon stated a strong “‘closely drawn’ test”: “[I]f a law that restricts political speech

does not ‘avoid unnecessary abridgement’ of First Amendment rights, ...it cannot survive ‘rigorous’

review,” id. at 1446 (citations omitted), and “fit matters,” so tailoring must be “reasonable” with

“‘means narrowly tailored to achieve the desired objective.’” Id. at 1456-57 (citation omitted).

Under either strict or closely drawn scrutiny, “‘the Government bears the burden of proving the

constitutionality of its actions,’” id. at 1452 (citation omitted); “‘mere conjecture ... [cannot] carry

a First Amendment burden,’” id. (citation omitted); in distinguishing “between quid pro quo corruption and general influence .... ‘the First Amendment requires us to err on the side protecting speech

rather than suppressing it,’”id. at 1451 (citation omitted); and no deference is afforded “unconstitutional remed[ies],” Citizens United, 558 U.S. at 361.

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appearance of corruption,” id. at 1450 (emphasis added), which is “a direct exchange of an official

act for money,” id. at 1441, which entails “‘large individual financial contributions’ to particular

candidates,” id. (citation omitted; emphasis added), i.e., “an act akin to bribery,” id. at 1466 (Breyer,

J., dissenting, joined by Ginsburg, Sotomayor, and Kagan, JJ.). (iv)

Spending large sums of money in connection with elections, but not in connection with an effort

to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo

corruption. Nor does the possibility that an individual who spends large sums may garner

“influence over or access to” elected officials or political parties.... And because the Government’s interest in preventing the appearance of corruption is equally confined ..., the Government may not seek to limit the appearance of mere influence or access.

Id. at 1450-51 (plurality; citations omitted). (v) “‘When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. Here, the Government seeks

to carry that burden by arguing that the aggregate limits further the permissible objective of preventing quid pro quo corruption.” Id. at 1452 (citation omitted). The Court thus equates contribution

restrictions with “restrict[ing] speech” and requires the Government to prove a quid-pro-quo risk.

(vi) “Buckley’s fear that an individual might ‘contribute massive amounts of money to a particular

candidate through the use of unearmarked contributions’ to entities likely to support the candidate

... is far too speculative.” Id. at 1452 (quoting Buckley, 424 U.S. at 38). (vii) “And—importantly—we ‘have never accepted mere conjecture as adequate to carry a First Amendment burden.’”

Id. (citation omitted).

This action is like McCutcheon in that both involve BCRA provisions “restricting campaign

finances.” And McConnell and McCutcheon may not be meaningfully distinguished because the

Supreme Court now equates campaign finance restrictions with restricting “speech” and, in the

contribution-limit context, recognizes only quid-pro-quo corruption, requiring the government to

prove a fit between a campaign-finance restriction and narrowly defined quid-pro-quo corruption.

But this case also involves independent communications, bringing it under the independent-expendiThree-Judge Court Memo 11

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ture line of cases. So as McCutcheon rejected the idea that Buckley’s facial upholding of an aggregate limit foreclosed constitutional review, 134 S.Ct. at 1452 (citing Buckley, 424 U.S. at 38),

McConnell does not foreclose review here under current jurisprudence.

This is especially true given the as-applied challenges here. Consider briefly the Ban as applied

to contributions to fund non-individualized, independent communications. A quid-pro-quo risk is

required for restricting campaign finances, but as a matter of law, there is no quid-pro-quo risk

involved in such independent communications, which are constitutionally like non-corrupting

independent expenditures. It follows that there would be no quid-pro-quo risk in contributions used

for such independent communications, as there is none for contributions to be used for independent

expenditures. See Part III.B.3. Only narrow quid-pro-quo corruption is cognizable, which involves

a contribution to a candidate, and any other theory of “corruption” is not cognizable— including

access, influence, gratitude (and synonyms such as value), benefit (unless it involves narrow quidpro-quo corruption), close connection, interest alignment, and the like. Under McCutcheon even

“large” contributions pose no problem absent a quid-pro-quo risk, and no speculation or conjecture

is permitted in trying to prove a “fit” between the restriction and preventing quid-pro-quo corruption. Thus, there is no fit between preventing quid-pro-quo corruption and the Ban as applied to such

independent communications. See infra Part III.C-D.

3. Expenditure Precedents Prove this Action Substantial and Non-Foreclosed.

In the expenditure context, controlling precedents readily demonstrate that there is no quid-proquo risk involved with independent communications, so nothing justifies restricting contributions

for them, especially from an independent-expenditure-only fund. Note the following five matter-oflaw holdings that govern here: (i) “independent expenditures . . . do not give rise to corruption or

[its] appearance,” Citizens United, 558 U.S. at 357; (ii) “because Citizens United holds that indeThree-Judge Court Memo 12

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pendent expenditures do not corrupt ..., the government ... ha[s] no ... interest in limiting contributions to independent expenditure-only organizations,” SpeechNow, 599 F.3d at 696; see also EMILY’s List v. FEC, 581 F.3d 1, 12 (D.C. Cir. 2009) (recognizing right to have separate accounts for

independent expenditures and contributions); Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011)

(recognizing that EMILY’s List authorizes non-contribution accounts (“NCAs”) that may receive

unlimited contributions for making independent expenditures)17; (iii) party-committee independentexpenditure activity similarly poses no cognizable risk of corruption or its appearance, Colorado-I,

518 U.S. 604; and (iv) the fact that party-committees and candidates are “inextricably intertwined,”

McConnell, 540 U.S. at 155, does not pose a constitutionally cognizable risk of quid-pro-quo

corruption or its appearance regarding party-committee independent-expenditure activity because

McConnell held that party-committees could not be forced to choose between coordinated expenditures and independent expenditures, id. at 213-19, (meaning that political parties are factually

capable of doing independent expenditures, as a matter of law, even if they also do coordinated

expenditures, and so have a constitutional right to do independent communications under prevailing

laws, regulations, and FEC guidelines); (v) to these matter-of-law holdings should be added FEC’s

recognition that, if entities can do independent expenditures separately, they must be allowed to pool

their resources for effective advocacy by doing them together, see FEC, Advisory Opinion (“AO”)

2010-11 (Commonsense Ten) at 3, which should be treated in the nature of a concession here.

Because non-individualized, independent communications are constitutionally like independent

expenditures, there is no fit between preventing quid-pro-quo corruption and the Ban as applied to

such independent communications, especially if funded by an ICA (see infra at 22-23, 34-35).

17 See also FEC, FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees

that Maintain a Non-Contribution Account (Oct. 5, 2011) (recognizing that some political committees may have non-contribution accounts to receive unlimited contributions for making independent

expenditures) (see www.fec.gov/press/press2011/20111006postcarey.shtml).

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4. No McConnell or Other Case Language Forecloses this Action.

The required analysis in First Amendment challenges is careful scrutiny of interests and tailoring

to see whether challenged provisions are constitutional in “each application,” WRTL-II, 551 U.S.

at 448. But substituting for that required scrutiny of interests and tailoring reliance on some prior

language fails the required scrutiny. That was the error in WRTL-I, 546 U.S. 410, where the unanimous Court rejected reliance on language in a McConnell footnote, declaring that “[i]n upholding

[the challenged provision] against a facial challenge, we did not purport to resolve future as-applied

challenges, id. at 411-12. See supra at 6. When WRTL-II did the required scrutiny of interests and

tailoring, it held the electioneering-communication ban unconstitutional as applied to corporate and

union issue advocacy. 551 U.S. 449.

That controls here: scrutiny of cognizable interests and tailoring in each application is required,

not reliance on some prior language. For example, McConnell has language that FEC might cite in

lieu of the required scrutiny, such as “large soft-money contributions to national parties are likely

to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those

funds are ultimately used.” Id. at 155. To rely on such language in lieu of the required scrutiny

would repeat the mistake rejected in WRTL-I. And McConnell pointed to “the close relationship

between federal officeholders and the national parties,” with national parties (not involved here)

“inextricably intertwined with federal officeholders and candidates,” id. at 154-55, but reliance on

such language would dodge the required interest-tailoring scrutiny.

That required scrutiny must be based on what is now cognizable “corruption.” McConnell

repeatedly attacked Justice Kennedy’s narrow view of “corruption,” including the following:

Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual

or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions

made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate.... Regulation of any other donation or expenditure—regardless of its size,

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the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s

election, its value to the candidate, or its unabashed and explicit intent to purchase influence—would, according to Justice Kennedy, simply be out of bounds. This crabbed view of

corruption, and particularly of the appearance of corruption, ignores precedent, common sense,

and the realities of political fundraising exposed by the record in this litigation.

Id. at 152 (citation omitted). McConnell attacked Kennedy’s narrow “appearance of corruption”:

At another point, describing our “flawed reasoning,” Justice Kennedy seems to suggest that

Congress’ interest in regulating the appearance of corruption extends only to those contributions

that actually “create ... corrupt donor favoritism among ... officeholders.” .... This latter formulation would render Congress’ interest in stemming the appearance of corruption indistinguishable

from its interest in preventing actual corruption.154 n.49 (citation omitted).

In place of Justice Kennedy’s narrow “corruption,” the majority’s “corruption” swept in “actual or

apparent indebtedness” resulting from a “close relationship” between officeholders and political

parties, along with “access” and “gratitude” (including synonyms). Id. at 155-56. So the findings of

“corruption,” “benefit,” etc. from federal election activity in McConnell all turn on a rejection of

Justice Kennedy’s narrow view of corruption.

But Justice Kennedy’s view now prevails in both the independent-expenditure context (Citizens

United) and the contribution-to-political-parties context (McCutcheon). Both expressly repudiate

any “corruption” beyond narrowly defined quid-pro-quo corruption, requiring a contribution to a

candidate and being an act akin to bribery. See supra at 10-11. That excludes all else as cognizable

“corruption,” e.g., access, gratitude, or “corruption” inherent in the close relationship between

candidates/officeholders and party committees. So the “corruption” foundation of McConnell is

gone. And regarding independent communications, the Court held they “do not give rise to corruption or the appearance of corruption,” Citizens United, 558 U.S. at 357. So “government ... ha[s] no

... interest in limiting contributions to independent expenditure-only organizations.” SpeechNow, 599

F.3d at 696. And political-party independent communications may not be presumed coordinated and

are also non-corrupting. Colorado-I. 518 U.S. 604. So arguing McConnell language, while ignoring

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the removal of McConnell’s “corruption” foundation, fails the required interest-tailoring scrutiny

and would not prove this case insubstantial or foreclosed.18

The same applies to statements about the Ban. McConnell said Congress concluded that “state

committees function as an alternate avenue for precisely the same corrupting forces,” 540 U.S. at

164, but that is based on McConnell’s now-non-cognizable “corruption.” McConnell said “Congress

also made a prediction” that contributors would use donations to state parties to gain “influence” and

create “indebtedness,” id. at 165, but such “corruption” is now non-cognizable and such “mere

conjecture” is impermissible, McCutcheon, 134 S.Ct. at 1450, 1452. No evidence of real quid-proquo corruption was shown in McConnell’s massive record.19 That dooms it now that quid-pro-quo

corruption is required in both expenditure and contribution contexts. And though McConnell upheld

banning nonfederal funds for VR, GOTV, VID, and GCA (see supra footnote 2 (abbreviations))

because they “can be used to benefit federal candidates directly,” 540 U.S. at 167, or “ha[ve] a direct

effect on federal elections,” id. at 168, or cause officeholders to be “grateful,” id., under current

18 In RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC-I”), aff’d 561 U.S. 1040 (2010),

the three-judge court stated that “McConnell ... appeared to rely ... on ‘the close relationship between

federal officeholders and the national parties,’” id. at 159 (quoting McConnell, 540 U.S. at 154), and

“‘[g]iven this close connection and alignment of interests, large soft-money contributions to national

parties are likely to create actual or apparent indebtedness on the part of federal officeholders,

regardless of how those funds are ultimately used,’” id. (quoting McConnell, 540 U.S. at 145). That

cannot foreclose a three-judge court here because (1) “indebtedness” is not the quid-pro-quo corruption (involving acts akin to bribery to candidates) that McCutcheon holds now governs the contribution context, see supra at 11; (2) this case focuses on independent communications that pose no

quid-pro-quo corruption risk, Citizens United, 558 U.S. at 357; (3) regarding independent communications, Colorado-I held there is no cognizable corruption due to close relationships between

candidates and parties, 518 U.S. 604; and (4) McCutcheon rejected the notion that large federalfunds contributions pose any corruption absent quid-pro-quo exchanges with candidates, 134 S.Ct.

at 1450-51, so a fortiori no corruption arises from non-federal-fund contributions donated for

making independent communications.

19 McConnell facially upheld BCRA though defendants “identified not a single discrete instance

of quid pro quo corruption attributable to the donation of non-federal funds to the national party

committees.” McConnell, 251 F. Supp. 2d at 395 (opinion of Henderson, J.). Accord McCutcheon,

134 S.Ct. at 1469-70 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, dissenting) (quoting

and citing McConnell, 251 F. Supp. 2d at 395 (opinion of Henderson, J.)). 

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jurisprudence “benefit,” “effect,” and “grateful[ness]” are also not corruption. As applied to nonindividualized, independent communications at issue here, there can be no presumption that they

benefit a candidate because “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” Citizens United, 448 U.S. at 360, and “‘[t]he absence

of prearrangement and coordination ... alleviates the danger that expenditures will be given as a quid

pro quo for improper commitments from the candidate,’” id. at 345 (quoting Buckley, 424 U.S. at

47), so “independent expenditures ... do not give rise to corruption or [its] appearance,” id. at 357.

In sum, only the holdings of controlling cases establishing now-cognizable interests and tailoring

govern the present, required scrutiny. Any mere language cannot prove this action clearly foreclosed

beyond debate (and ties go to Plaintiffs) so as to deny BCRA § 403’s rules here.

5. Party-Committee Status Does Not Justify Different Treatment.

Another example of language that does not prove this case insubstantial/foreclosed involves

statements about political parties that do not apply the required interest-tailoring scrutiny to the

claims here. Plaintiffs want to make non-individualized, independent communications like the

independent expenditures that “do not give rise to corruption or [its] appearance,” Citizens United,

558 U.S. at 357, so “the government can have no anti-corruption interest in limiting contributions

to independent expenditure-only organizations,” SpeechNow, 599 F.3d at 696. In Count II, Plaintiffs

sue as applied to independent communications from an independent-communications-only account

(“ICA), funded solely by individuals’ contributions at a lawful level under state law. An ICA is

constitutionally like a non-contribution account (“NCA”)20 that political committees (if not connected to political parties) may use to receive unlimited contributions for making independent

20 “Non-contribution accounts” are independent-expenditure-only accounts that may receive

unlimited contributions. See supra footnote 16 (re FEC Statement on Carey).

Three-Judge Court Memo 17

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expenditures, as may IE-PACs,21 a.k.a. super-PACs. Under recent precedents narrowing cognizable

corruption, party-committee status does not justify treating ICAs differently from NCAs. But IEPAC cases have distinguished IE-PACs from party-committees, citing concerns discussed in

Colorado-I, 518 U.S. 604, FEC v. Colorado Republican Federal Campaign Committee, 533 U.S.

431 (2001) (“Colorado-II”), and/or McConnell, 540 U.S. 93. For example, SpeechNow noted that

“FEC also argues that we must look to the discussion about the potential for independent expenditures to corrupt in [Colorado-I],” but SpeechNow rejected FEC’s argument, distinguishing politicalparty independent expenditures and holding that “a discussion in a 1996 opinion joined by only three

justices cannot control our analysis when the more recent opinion of the Court in Citizens United

clearly states as a matter of law that independent expenditures do not pose a danger of corruption

or the appearance of corruption.” 599 F.3d at 695. Such distinctions are nonbinding and unnecessary.

a. IE-PAC Case Statements Distinguishing Party-Committees Are Dicta.

Statements distinguishing party-committees in IE-PAC cases such as SpeechNow are dicta. They

were unnecessary to the case decision, and the constitutionality of the provisions challenged here

as applied to non-individualized, independent communications, especially from an ICA, was not

before the courts. And other circuits’ opinions do not control here.

b. Party-Committee Coordination with Candidates May Not Be Presumed.

Distinction of party-committees in some opinions is based on presumed coordination with

candidates. Colorado-I forbids that presumption regarding independent communications: “The

question ...is whether the [lower] Court ... erred as a legal matter in accepting the Government’s

conclusive presumption that all party expenditures are ‘coordinated.’ We believe it did.” 518 U.S.

21 “IE-PACs” (independent-expenditure-only political committees), recognized in cases such as

SpeechNow, 599 F.3d 686, receive unlimited contributions to make independent expenditures.

Three-Judge Court Memo 18

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at 619. That independent-communication case must control, not McConnell, because “[t]his case ...

is about independent expenditures,” Citizens United, 558 U.S. at 361.

Nor may the government presume that political parties pose a corruption risk per se: “[R]ather

than indicating a special fear of the corruptive influence of political parties, the legislative history

demonstrates Congress’ general desire to enhance what was seen as an important and legitimate role

for political parties in American elections.” Colorado-I, 518 U.S. at 618 (plurality). “‘[A] vigorous

party system is vital to American politics,” and “‘[p]ooling resources from many small contributors

is a legitimate function and an integral part of party politics.’” Id. (citations omitted).22 “[T]he basic

nature of the party system ... [allows] party members [to] join together to further common political

beliefs, and citizens can choose to support a party because they share ... beliefs.” McCutcheon, 134

S.Ct. at 1461. So “recast[ing] such shared interest ... as an opportunity for ... corruption would

dramatically expand government regulation of the political process.” Id. (citations omitted).

Regarding corruption (or circumvention by illegal conduit-contributions) from independentexpenditure activity, no presumption is permissible because independent communications involve

no contributions to candidates. Only contributions to candidates may pose a corruption risk because,

unless a financial quid reaches a candidate, he could not provide a legislative quo.23 “The hallmark

of corruption is the financial quid pro quo: dollars for political favors.” FEC v. National Conservative PAC, 470 U.S. 480, 497 (1985). See also McCutcheon, 134 S.Ct. at 1441 (same). But “independent expenditures ... do not give rise to corruption.” Citizens United, 558 U.S. at 357. “Spending

large sums of money in connection with elections, but not in connection with an effort to control the

22 “We are not aware of any special dangers of corruption associated with political parties ....”

Id. at 616 (plurality). “What could it mean for a party to ‘corrupt’ its candidate or to exercise ‘coercive’ influence over him?” Id. at 646 (Thomas, J., joined by Rehnquist, C.J., and Scalia, J.).

23 “ Buckley made clear that the risk of corruption arises when an individual makes large contributions to the candidate or officeholder himself.” McCutcheon, 134 S.Ct. at 1460 (citation omitted).

For the corruption risk to arise, “money [must] flow[] ... to a candidate.” Id. at 1452.

Three-Judge Court Memo 19

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exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption.”

McCutcheon, 134 S.Ct. at 1450.24

Regarding coordination of party-committee independent expenditures with candidates, no

presumption is permissible because the independent communications party-committees may make,

11 C.F.R. 109.30, may not be coordinated with a candidate, 11 C.F.R. 109.37 (“What is a ‘party

coordinated communication’?”). And Colorado-I expressly rejected FEC’s presumption that partycommittees cannot make independent communications because (as FEC presumed) all politicalparty committee communications were coordinated with a political party’s candidates. 518 U.S. at

614-22. What the Colorado-I opinions said in rejecting presumed coordination controls here. The

Colorado-I plurality held that, in examining alleged coordination, one may not look to “general

descriptions of Party practice,” such as a “statement that it was the practice of the Party to

‘coordinat[e] with the candidate’ campaign strategy” or a statement that a Party official is “‘as

involved as [he] could be’ with the individuals seeking the Republican nomination ... by making

available to them ‘all of the asserts of the party.” Id. at 614. Rather, coordination analysis examines

whether particular communications are factually coordinated, id.:

These latter statements, however, are general descriptions of Party practice. They do not refer

to the advertising campaign at issue here or to its preparation. Nor do they conflict with, or cast

significant doubt upon, the uncontroverted direct evidence that this advertising campaign was

24 Colorado-II cited a practice of the Democratic Senatorial Campaign Committee (“DSCC”)

whereby candidates might receive increased aid from DSCC proportional to contributions raised by

candidates for DSCC. 533 U.S. at 459. The Court considered this (legal) practice in the independentspending context as some indication of circumvention problems if party-committees were allowed

unlimited coordinated spending. Id. at 459 & n.22. Colorado-II is inapplicable to independent

spending, but even the tally-system argument is non-viable after FEC’s 2012 decision that the DSCC

fulfilled conciliation-agreement obligations regarding its ongoing tallying. In Matter Under Review

3620, http://fec.gov/em/mur.shtml, FEC decided that: (a) absent earmarking, party-committees may

do what they want with contributions tallied to particular candidate’s credit; (b) tallied contributions

are not implicitly earmarked; and (c) tallied contributions trigger no quid-pro-quo or conduit-contribution risk. Id. Under FEC’s decision, “attribution” to a contributor occurs only when there is

earmarking, not mere tallying of credit to a candidate. Id.

Three-Judge Court Memo 20

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developed by the Colorado Party independently and not pursuant to any general or particular

understanding with a candidate.... [W]e therefore treat the expenditure, for constitutional purposes, as an “independent” expenditure, not an indirect campaign contribution.

Political party independent communications pose less corruption risk than those by individuals:

If anything, an independent expenditure made possible by a $20,000 donation, but controlled and

directed by a party rather than the donor, would seem less likely to corrupt than the same (or a

much larger) independent expenditure made directly by that donor. In any case, the constitutionally significant fact, present equally in both instances, is the lack of coordination between the

candidate and the source of the expenditure. See Buckley, [424 U.S.] at 45-46; NCPAC, [470

U.S.] at 498. This fact prevents us from assuming, absent convincing evidence to the contrary,

that a limitation on political parties’ independent expenditures is necessary to combat a substantial danger of corruption of the electoral system.

Id. at 617-18. And Colorado-I rejected the notion that a party “expenditure is ‘coordinated’ because

a party and its candidate are identical, i.e., the party, in a sense, ‘is’ its candidates.” 518 U.S. at 622.

“We cannot assume ... this is so,” the plurality continued, id., and such “a metaphysical identity

... arguabl[y] ... eliminates any potential for corruption ...,” id. at 623, citing First National Bank of

Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“where there is no risk of ‘corruption’ of a candidate,

the Government may not limit even contributions”). So in the independent-communication context,

if the government argues that political parties and candidates have “an absolute identity of views and

interests,” id., then there is no corruption potential and, consequently, no constitutional justification

for any limit even on their coordinated expenditures. But since party-committees and their candidates are separate legal entities, as Colorado-I and FECA treat them, parties are factually capable

of making communications independent of candidates. Whether any particular communication is

coordinated, depends on coordination standards, see 11 C.F.R. 109.21 (“coordinated communication”) and 109.37 (“party coordinated communication”), as a factual question, and the activities here

are verified independent. (Compl. ¶ 78.) So party-committee status changes no controlling analysis

here regarding cognizable corruption, circumvention, and coordination, and no cognizable governmental interest prevents party-committees from using nonfederal funds for their independent comThree-Judge Court Memo 21

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munications, especially from an ICA.

Nonetheless, SpeechNow said that “[Colorado-I] concerned expenditures by political parties,

which are wholly distinct from ‘independent expenditures’ as defined in [52 U.S.C. 30101(17)].”

599 F.3d at 695. But this dictum states a distinction without constitutional significance. An “independent expenditure” under 52 U.S.C. 30101(17) is “a communication expressly advocating the

election or defeat of a clearly identified candidate” that is not “a coordinated communication under

11 C.F.R. 109.21 or a party coordinated communication under 11 C.F.R. 109.37.” 11 C.F.R.

100.16.25 The communication that the party-committee in Colorado-I had a First Amendment right

to make was also non-coordinated, but it criticized a Democratic candidate on the issues without

express advocacy, see Colorado Republican Federal Campaign Committee, 839 F. Supp. at 1451,26

yet Colorado-I held that “the expenditure in question is what this Court in Buckley called an ‘independent’ expenditure,” 518 U.S. at 613. Here, Plaintiffs want their ICA to receive contributions from

individuals at levels subject to state law for making independent communications that are constitutionally like “independent expenditures” in that they are not coordinated and pose no quid-pro-quo

risk. The constitutionally significant feature of “independent expenditure” in 52 U.S.C. 30101(17)

and Colorado-I is the independence of the public communication naming a candidate, not the

25 52 U.S.C. 30101(17) requires that communications not be coordinated with either candidates

or party-committees. This does not prevent party-committees from running their own independentexpenditure programs, so there is no problem with an ICA. But Buckley recognized coordination

with candidates (not parties) as creating in-kind contributions. 424 U.S. at 46 n.53. So the ban on

coordination with party-committees in § 30101(17) seems to resurrect the presumption of partycandidate coordination that Colorado-I rejected, which view is supported by the fact that expenditures coordinated with PACs (not party-committees) are not coordinated under § 30101(17) nor inkind contributions under 52 U.S.C. 30116(7)(B). The requirement that independent expenditures be

independent from party-committees is a prophylaxes layered on the “base limits[, which] themselves

are a prophylactic measure” in a “prophylaxis-on-prophylaxis approach’” to preventing any possible

corruption. McCutcheon, 134 S.Ct. at 1458 (emphasis in original) (citation omitted). Such prophylaxes are not justified for independent communications and ICAs, where no corruption exists.

26 The district court applied an express-advocacy construction and dismissed FEC’s enforcement

proceeding because there was no express advocacy. Colorado-I, 518 U.S. at 612-13.

Three-Judge Court Memo 22

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presence or absence of express advocacy. This is so because both uses of “independent expenditure”

are rooted Buckley’s holding that “[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper

commitments from the candidate.” 424 U.S. at 47. See Colorado-I, 518 U.S. at 615 (quoting

Buckley, 424 U.S. at 47). Now, Buckley also imposed express-advocacy constructions on two

“expenditure” definitions to avoid vagueness and overbreadth. 424 U.S. at 44 n.52, 80. That is the

source of the express-advocacy independent-expenditure definition at 2 U.S.C. 431(17). But the

right of party-committees to make “independent expenditures” under Colorado-I turns on independence, not the presence or absence of express advocacy. So for constitutional purposes, an expressadvocacy communication from Buckley and a non-express-advocacy communication from ColoradoI are both an “independent expenditure,” with the common, controlling factor being their independence.

c. What the Colorado Cases and McConnell Really Said Supports Plaintiffs.

Though courts may claim political-parties differ in kind from PACs based on the Colorado cases

and McConnell, what those cases actually said does not preclude a three-judge court here.

In holding that political-party communications lack corruption risk due to independence, the

Colorado-I principal opinion said: “We are not aware of any special dangers of corruption associated with political parties that tip the constitutional balance in a different direction.” 518 U.S. at 616.

The opinion then said what SpeechNow noted (set out here as stated in SpeechNow):

It is true that the opinion of Justice Breyer did discuss the potential for corruption or the appearance of corruption potentially arising from independent expenditures, saying that “[t]he greatest

danger of corruption ... appears to be from the ability of donors to give sums up to $20,000 to

a party which may be used for independent party expenditures for the benefit of a particular

candidate,” thus evading the limits on direct contributions to candidates. Id. at 617....

Three-Judge Court Memo 23

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SpeechNow, 599 F.3d at 695 (citation omitted).27 But as context, Colorado-I said that

[c]ontributors seeking to avoid the effect of the $1,000 contribution limit indirectly by donations

to the national party could spend that same amount of money (or more) themselves more directly

by making their own independent expenditures promoting the candidate. See Buckley, [424 U.S.]

at 44-48 (risk of corruption by individuals’ independent expenditures is insufficient to justify

limits on such spending). If anything, an independent expenditure made possible by a $20,000

donation, but controlled and directed by a party rather than the donor, would seem less likely to

corrupt than the same (or a much larger) independent expenditure made directly by that donor.

518 U.S. at 617 (citations omitted). Since contributors and parties may each do independent expenditures, contributors and party-committees have an expressive-association right to do them together,

including through an ICA.28 So Colorado-I does not establish that large contributions that may be

used for independent communications create corruption, and it supports Plaintiffs activities here.

Colorado-I was remanded to decide whether the Party Expenditure Provision limits were unconstitutional facially, i.e., whether the government could limit coordinated expenditures. Colorado-II,

533 U.S. 431, held there could be limits on coordinated expenditures. Since Plaintiffs’ intended

activities do not involve coordination, Colorado-II neither controls nor informs this case. But note

some things said in Colorado-II. The Court justified limits to prevent circumvention of contribution

27 SpeechNow quickly rejected this statement in Colorado-I as controlling: “[A] discussion in

a 1996 opinion joined by only three Justices cannot control our analysis when the more recent

opinion of the Court in Citizens United clearly states as a matter of law that independent expenditures do not pose a danger of corruption or the appearance of corruption.” 599 F.3d at 695.

28 The Colorado-I plurality recognized the expressive-association nature of political parties’

independent expenditures for “‘core’ First Amendment activity,” id. at 615-16:

Given these established principles [concerning the high constitutional protection for, and noncorrupting nature of, independent communications], we do not see how a provision that limits

a political party’s independent expenditures can escape their controlling effect. A political

party’s independent expression not only reflects its members’ views about the philosophical and

governmental matters that bind them together, it also seeks to convince others to join those

members in a practical democratic task, the task of creating a government that voters can instruct

and hold responsible for subsequent success or failure. The independent expression of a political

party’s views is “core” First Amendment activity no less than is the independent expression of

individuals, candidates, or other political committees.

Three-Judge Court Memo 24

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limits, not quid-pro-quo corruption directly. 533 U.S. at 465.29 It said that party-committees “act as

agents for spending on behalf of those who seek ... obligated officeholders.” 533 U.S. at 452. This

was about coordinated, not independent, communications. The next sentence emphasizes the context: “It is this party role, which functionally unites parties with other self-interested political actors,

that the Party Expenditure Provision targets,” i.e., what the Provision “targets” in Colorado-II is

solely coordinated spending, as made clear by the Court, id. at 457 (emphasis added):

Despite years of enforcement of the challenged limits, substantial evidence demonstrates how

candidates, donors, and parties test the limits of the current law, and it shows beyond serious

doubt how contribution limits would be eroded if inducement to circumvent them were enhanced

by declaring parties’ coordinated spending wide open.

McConnell justified the nonfederal-funds Ban on the idea that nonfederal funds could cause

gratitude and influence, 540 U.S. at 145, 168, or access, id. at 119 & n.5, 124-25 & n.13, 155.

“[S]oft money ... enabled parties and candidates to circumvent FECA’s limitations ....” Id. at 126.

See also id. at 145 (“widespread circumvention of FECA’s limits on contributions” due to likelihood

“that candidates would feel grateful ... and ... donors would seek to exploit that”). The Court said

such access, gratitude, and consequent “circumvention” constituted “corruption” or “the appearance

of corruption.” Id. at 119 n.5, 142, 145. Also, “[t]he national committees ... are both run by, and

largely composed of, federal officeholders and candidates,” id. at 155, and “[g]iven this close

29 As to other alleged “corruption,” the Court found it unnecessary to reach arguments based on

“quid pro quo arrangements and similar corrupting relationships between candidates and parties,”

id. at 456 n.18, but the Tenth Circuit had rejected those arguments, FEC v. Colorado Republican

Federal Campaign Committee, 213 F.3d 1221, 1229-31 (10th Cir. 2000), as it had rejected the

circumvention argument, id. at 1231-32. And the district court found no factual evidence of quidpro-quo corruption between contributors, parties, and candidates. FEC v. Colorado Republican

Federal Campaign Committee, 41 F. Supp. 2d 1197, 1211-12 (D. Colo. 1999) (no corruption in the

form of contributors “forc[ing] the party committee to compel a candidate to take a particular position”); id. at 1212-13 (no “corruption” from parties’ influence over candidates because “decision to

support a candidate who adheres to the parties’ beliefs is not corruption”); id. at 1213 (“FEC has

failed to offer relevant, admissible evidence which suggests that coordinated party expenditures must

be limited to prevent corruption or the appearance thereof.”).

Three-Judge Court Memo 25

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connection and alignment of interests, large soft-money contributions to national parties are likely

to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those

funds are ultimately used.” Id. McConnell’s analysis doesn’t control here because “corruption”

based on anything other than narrowly defined quid-pro-quo corruption was rejected in Citizens

United, 558 U.S. at 359-61 (expenditure context), and McCutcheon, 134 S.Ct. at 1441 (contribution

context).

But McConnell was correct that the independent-expenditure case line controls where (as here)

independent communications are involved, 540 U.S. at 145 n.45 (citations omitted):

Justice Kennedy contends that the plurality’s observation in Colorado I that large soft-money

donations to a political party pose little threat of corruption “establish[es] that” such contributions are not corrupting.... The cited dictum has no bearing on the present case. Colorado I

addressed an entirely different question—namely, whether Congress could permissibly limit a

party’s independent expenditures—and did so on an entirely different set of facts.30

Citizens United also distinguished those case lines, holding that McConnell did not control an

independent-communication case, 558 U.S. at 360-61 (citations omitted):

The BCRA record establishes that certain donations to political parties, called “soft money,”

were made to gain access to elected officials.... This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding

due deference; but Congress may not choose an unconstitutional remedy. If elected officials

succumb to improper influences from independent expenditures; if they surrender their best

judgment; and if they put expediency before principle, then surely there is cause for concern. We

must give weight to attempts by Congress to seek to dispel either the appearance or the reality

of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule.

Citizens United distinguished the case lines based on whether they involved independent communications, not on the basis that McConnell involved party committees. That distinction controls.

In sum, these controlling precedents show that none of the counts discussed below is clearly

30 Whether any “set of facts” could prove cognizable corruption from independent expenditures

was settled in Citizens United, which held, as a matter of law, that “independent expenditures ... do

not give rise to corruption or the appearance of corruption.” 558 U.S. at 357.

Three-Judge Court Memo 26

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foreclosed without room for debate. See supra at 5. All are substantial and non-foreclosed.

C. Count I Presents Substantial, Non-Foreclosed Claims.

Count I easily presents substantial, non-foreclosed claims because it challenges the federalprovisions at issue as applied to two kinds of activity that FEC has in the past conceded pose insufficient quid-pro-quo risk to be restricted and regulated. Plaintiffs challenge the Plaintiffs challenge

the Ban (52 U.S.C. 30125(b)(1)), Fundraising Restriction (52 U.S.C. 30125(c)), and Reporting

Requirement (52 U.S.C. 30105(e)(2)) as applied to (1) non-individualized, independent communications that exhort registering/voting and (2) such communications, and other non-individualized,

independent communications constituting federal election activity, by Internet.

31 (Compl. ¶¶ 118-

19.)

These two challenges coincide in some of Plaintiffs’ planned activities. (Compl. ¶¶ 84-87, 89-

90.) One such activity is the following article that is (1) a non-individualized, independent communication exhorting registration and voting (2) on LAGOP’s website, www.lagop.com/get-registered:

Your right to vote for public officials and representatives is valuable. It is rare in human

history. It was hard-won by America’s founders.

Before America gained independence, the colonies were ruled by Great Britain. In the Declaration of Independence, the founders listed many grievances against British rule, especially the

lack of representation. The Declaration said King George would not enact needed laws “unless

... people ... relinquish[ed] the right of Representation in the Legislature.” It said the British were

“suspending our own Legislatures, and declaring themselves invested with power to legislate for

us in all cases whatsoever.”

The Revolutionary War rejected British rule. America established a republic where citizens

select their representatives in government. Yet astonishingly, many people don’t register and

vote.

As Americans who enjoy the benefits that a democratic society offers, it is our civil duty to

actively participate in government by voting. But more importantly, voting allows citizens the

opportunity to make direct decisions that better our communities and allows us to build a free and

prosperous society. Many people in the world live in places where their voices will not be heard

because they are unable to vote. So take a stand to let your voice be heard, and help build a

stronger America by registering to vote today!

The Louisiana Secretary of State’s website provides valuable information to help you register

31 Plaintiffs intend no paid communications on another’s website, which are not at issue.

Three-Judge Court Memo 27

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and vote. For registration information and to register online, see

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/ElectionsCalendar2016.pdf.

Check out those websites today, and let your voice be heard in 2016!

(Compl. ¶ 85.) LAGOP also wants to email the article (Compl. ¶ 86), and the local-committee

plaintiffs want to email a substantially similar article (Compl. ¶ 87). 

The website article is not FEA (“federal election activity”)32 now, but will be VR (“Voter

Registration Activity”), on November 6, 2015 and GOTV (“Get-Out-the-Vote Activity”) on December 2, 1015, when the emails also would be VR and GOTV. Then, only federal funds may be

used for these communications’ costs.33 For the local-committees, sending one substantially similar email merely exhorting registering/voting requires federal funds, requiring in turn a federal

account, which is treated as and reports monthly as a political committee—with no de minimis

exception. (Compl. ¶¶ 36-39.) Political-committee burdens are “onerous,” as a matter of law.

Citizens United, 558 U.S. at 339.34

32 See supra footnote 2 (explaining FEA, VR, GOTV, VID, GCA, and PASO abbreviations).

33 Regarding what costs of a website containing federal-election-activity content must be funded

solely with federal funds, FEC has stated in rulemaking that time/space allocation may not be

permissible and “a ripple effect” might require payment of computer and online access costs.

“Internet Communications,” 71 Fed. Reg. 18589, 18597 n.37 (April 12, 2006) (“Internet Communications E&J”). So costs for computers, online access, etc. for the whole website might have to be

included, not just the cost for someone to post to the website. (Compl. ¶ 62.)

34 The article, online or emailed, is not excluded from the VR and GOTV definitions by the briefand-incidental exceptions (Compl. 64) because the exceptions exclude only a “brief exhortation ...

incidental to a communication, activity, or event,” 11 C.F.R. 100.24(a)(2)(ii) and (3)(ii). “To qualify

for the exception, the exhortation ... must be both brief and incidental. ” FEC, “Definition of Federal

Election Activity,” 75 Fed. Reg. 55257, 55261-62 (Sep. 10, 1010) (“2010 E&J”) (emphasis in

original). Examples provided in the 2010 E&J are one-line exhortations, id., as are those in the rules,

11 C.F.R. 100.24(a)(2)(ii)(A) and (a)(2)(ii)(B). So emails with the topic of exhorting registering/voting are not incidental, and extended exhortations (beyond such one-liners) to register/vote

in emails or online are not brief.

Three-Judge Court Memo 28

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The hyperlinks to state election materials in the article above would not be federal election

activity on LAGOP’s website. 11 C.F.R. 100.25(c)(7).35 But they would become so if emailed

because the cited exception does not exclude emails and because the VR and GOTV definitions

expressly include emailed communications—though FEC was urged to exclude such Internet

communications (Compl. ¶ 60)—in the “[e]ncouraging or urging” portions of the VR and GOTV

definitions, 11 C.F.R. 100.24(a)(2)(i)(A) and(3)(i)(A). (See Compl. ¶¶ 53-68 (“FEC Rulemaking

and Litigation on Federal-Election-Activity Definitions”).)36

The online and emailed article must be funded entirely with federal funds (Ban), and those

funds must be raised entirely with federal funds (Fundraising Requirement), and all such activity

must be done from a federal account that is treated as and reports monthly as a political committee ( Reporting Requirement). What is the constitutional justification for the challenged provisions? Purportedly that patriotic paean to participation poses quid-pro-quo-corruption risk. But it

does not because it (1) merely exhorts registering/voting and (2) is on LAGOP’s own website,

neither of which poses cognizable risk. FEC has conceded this in rulemakings, as discussed next.

1. Non-Individualized, Independent Communications Merely Exhorting Registering or

Voting Pose No Quid-Pro-Quo-Corruption Risk.

No quid-pro-quo risk justifies the challenged provision as applied to such independent communications. This is clear from FEC’s own comments.37 The Complaint includes a section, “FEC Rule35 The federal election activity (“FEA”) definition here excludes “[d]e minimis costs associated

with” a party committee providing, on its website, hyperlinks to an election-board’s site, downloadable registration and absentee-ballot forms, and voting dates, hours, and locations. Id.

36 If emailing the hyperlinks poses quid-pro-quo risk, excluding them online from the FEA

definition is underinclusive. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002).

37 And it is also clear because such non-individualized, independent communications are constitutionally like independent expenditures except they conceptually pose less quid-pro-quo risk than

independent expenditures because they neither expressly advocate (nor even mention) a candidate.

Of course express advocacy poses no quid-pro-quo risk. Citizens United, 558 U.S. at 357.

Three-Judge Court Memo 29

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making and Litigation on Federal-Election-Activity Definitions,” which sets out FEC’s efforts to

exclude merely exhorting registering/voting from the VR and GOTV definitions. (Compl. ¶¶ 53-68.)

In 2002, FEC did a rulemaking to implement BCRA. FEC “define[d] voter registration activity to

encompass individualized contact for the specific purpose of assisting individuals with the process

of registering to vote.... The Commission ... expressly rejected an approach whereby merely encouraging voter registration would constitute Federal election activity.” FEC, “Prohibited and Excessive

Contributions: Non-Federal Funds or Soft Money,” 67 Fed. Reg. 49063, 49066 (July 29, 2002)

(“2002 E&J ”) (emphasis added). FEC said it “must define GOTV in a manner that distinguishes ...

[it] from ordinary or usual campaigning that a party committee may conduct on behalf of its candidates.... [I]f GOTV is defined too broadly, the effect of the regulations would be to federalize a vast

percentage of ordinary campaign activity.” Id. Consequently, id. (emphasis in original),

the Commission adopt[ed] a definition of “GOTV activity” as “contacting registered voters * * *

to assist them in engaging in the act of voting.” This definition is focused on activity that is

ultimately directed to registered voters, even if the efforts also incidentally reach the general

public. Second, GOTV has a very particular purpose: assisting registered voters to take any and

all necessary steps to get to the polls and cast their ballots, or to vote by absentee ballot or other

means provided by law. The Commission understands this purpose to be narrower and more

specific than the broader purposes of generally increasing public support for a candidate or

decreasing public support for an opposing candidate.

In 2004, Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005),

held that FEC did not provide adequate notice of its approach, remanding for rulemaking.

In 2006, FEC “retain[ed its] ... definitions of ‘voter registration activity’ and ‘GOTV activity,’

which exclude mere encouragement of registration and/or voting,” id. at 8928, explaining that mere

encouragement “would be overly broad.” FEC, “Definition of Federal Election Activity,” 71 Fed.

Reg. 8926, 8929 (Feb. 22, 2006) (“2006 E&J”). It reaffirmed “that these definitions will not lead

to circumvention of FECA because the regulations prohibit the use of non-Federal funds for disbursements ... for ... activities ... actually register[ing] individuals to vote.” Id.

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In 2008, Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays-III”), said FEC defended its

individualized-assistance definitions based on (a) a need to avoid capturing brief, incidental exhortations appended to speeches or events, which the court said could be dealt with by an exemption, and

(b) providing a bright line, which the court said was an argument for bright lines. 528 F.3d at 932.

Shays-III mentioned no constitutional arguments against overbroad definitions.

In 2010, because Shays-III rejected an individualized-assistance approach, FEC made definitions

reaching “encouraging or urging” registering/voting “by any ... means” (except for brief and incidental exhortations). 2010 E&J, 75 Fed. Reg. at 55260-64. But FEC reiterated its rationales for its

earlier positions (see Compl. ¶¶ 54-55) and a rationale from McConnell, 540 U.S. 93:

In reaching its decision, the Court noted that BCRA regulated only “those contributions to state

and local parties that can be used to benefit Federal candidates directly” and therefore posed the

greatest threat of corruption. Id. at [167]. As such, the Court found BCRA’s regulation of voter

registration activities, which “directly assist the party’s candidates for federal office,” and

GOTV activities, from which Federal candidates “reap substantial rewards,” to be permissible

methods of countering both corruption and the appearance of corruption. Id. []; see also id. []

(finding that voter registration activities and GOTV activities “confer substantial benefits on

federal candidates” and “the funding of such activities creates a significant risk of actual and

apparent corruption,” which BCRA aims to minimize).

2010 E&J, 75 Fed. Reg. at 55258. So FEC acknowledged that communications merely exhorting

registering/voting do not “benefit Federal candidates” directly under McConnell, just as independent

expenditures pose no quid-pro-quo risk under Citizens United, 558 U.S. at 357. FEC also reiterated

that “its 2006 E&J [said FEC’s 2006] regulations would not lead to the circumvention of the Act

precisely because they captured ‘the use of non-Federal funds ... for those activities that actually

register individuals to vote.’” Id. at 55259 (citation omitted).

In this as-applied challenge, “non-individualized” means what FEC meant in its original rule,

i.e., “not involv[ing] contacting individuals by telephone, in person, or by other individualized

means to assist them in registering to vote” or “in engaging in the act of voting,” which quotations

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are the original language of FEC’s VR and GOTV definitions.” See 2002 E&J, 67 Fed. Reg. at

49110-11. (See Compl. ¶¶ 54-55.) The communications will be made in substantially similar form

to multiple persons and lack “individualized contact for the specific purpose of assisting individuals

with the process of registering to vote [or voting].” Id. at 49066 (language of original FEC rule).

(See Compl. ¶ 54.) So the communications simply involve activity that FEC found should not be

included in the VR and GOTV definitions, for constitutional reasons, including FEC’s statement that

even McConnell’s analysis did not require reaching such activity, see supra at 31. Yet FEC was

compelled to restrict and regulate such activity based on congressional intent in BCRA. BCRA is

unconstitutional as applied to such activity posing no quid-pro-quo risk.

2. Such Communications, and Other Non-Individualized, Independent Communications

Constituting FEA, Made by Internet Pose No Quid-Pro-Quo-Corruption Risk.

The governmental interest in preventing narrowly defined quid-pro-quo corruption (and its

appearance) does not justify the challenged provisions as applied to such communications (as just

addressed, Part III.C.1), and other non-individualized, independent communications constituting

federal election activity, by Internet. FEC E&Js make this clear. (See Compl. ¶¶ 60-63.)

The 2010 E&J said a “commentator argued that the Commission should exempt from the [VR

and GOTV] definition[s] ... all Internet communications, stating that such communications are made

at ‘virtually no cost.’” 75 Fed. Reg. at 55261 and 55263. That commentator was the Democratic

National Committee (“DNC”), by counsel Rebecca H. Gordon, and DNC’s arguments went beyond

“virtually no cost.” DNC said FEC should “create an exception ... for voter registration and GOTV

messages ... conveyed though the internet,” which FEC “could accomplish ... very simply by limiting the covered communications to those that qualify as ‘public communications’ under current

regulations.” DNC Comments at 4.38 DNC explained:

38 Available at http://sers.fec.gov/fosers/showpdf.htm?docid=10065.

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In its 2006 rulemaking on Internet Communications, the Commission explicitly acknowledged

that the unique features of the internet—in particular its accessibility, low cost, low barrier to

entry, and interactive features—merited regulatory restraint. See Internet Communications, 71

Fed. Reg. 18,589 ... (“[T]he Commission recognizes the Internet as a unique and evolving mode

of mass communication and political speech that is distinct from other media in a manner that

warrants a restrained regulatory approach.”). This position of restraint led the Commission to

... exclude from the disclaimer requirements, the coordination rules, and other regulatory provisions most communications made over the internet.

DNC Comments at 3. Denying the exception “exacts too high a cost on political speech[,] ... contravenes the Commission’s stated views about internet communications, and fails to advance Congress’s stated purpose ... to reduce the flow of so-called ‘soft money’ in federal elections.” Id.

In the cited “Internet Communications E&J,” 71 Fed. Reg. 18589 (April 12, 2006), FEC justified

its definition of “public communications,” which is incorporated into the generic-campaign-activity

and PASO-communication definitions, 11 C.F.R. 100.25 and 100.24(b)(3). The public-communication definition excludes Internet communications, “except for communications placed for a fee on

another person’s Web site.” 11 C.F.R. 100.26. So

a State party committee that pays to produce a video that PASOs a Federal candidate will have

to use Federal funds when the party committee pays to place the video on a Web site operated

by another person. This is ... consistent with how the party committee would be required to pay

for a communication that it distributes through television or any other medium that is a form of

“public communication.” In such circumstances, the party committee must pay the costs of

producing and distributing the video entirely with Federal funds. See 11 C.F.R. § 300.32(a)(2).

71 Fed. Reg. at 18597. So state committees posting GCA or PASO communications on their own

website would not be doing federal election activity (unlike with VR and GOTV). The “Internet

Communications E&J” also said, 71 Fed. Reg. at 18597,

one reason [FEC] ... excluded Internet activities from the ... ‘public communication’ [definition]

... was to permit State ... and local party committees to refer to their Federal candidates on the

committees’ own Web sites or post generic campaign messages without requiring that the

year-round costs of maintaining the Web site be paid entirely with Federal funds.

Despite these justifications for not including Internet communications, the “[e]ncouraging or

urging” portions of the VR and GOTV definitions, 11 C.F.R. 100.24(a)(2)(i)(A) and(3)(i)(A), are

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not limited to “public communications” and expressly include communications “by ... e-mail ... or

by any other means.” If Internet communications pose a cognizable quid-pro-quo risk in VR and

GOTV contexts, failure to regulate Internet GCA and PASO communications is underinclusive,

making any asserted interest non-credible. White, 536 U.S. at 780. But FEC was right that such

activity poses insufficient quid-pro-quo risk for restriction and regulation.

While the foregoing will be expanded in full merits briefing (cf. Compl. ¶¶ 117-29), what is

provided shows that the Count I challenges are substantial and non-foreclosed.

D. Count II Presents Substantial, Non-Foreclosed Claims.

Count II presents substantial, non-foreclosed claims because it challenges the Ban (52 U.S.C.

30125(b)(1)) and Fundraising Restriction (52 U.S.C. 30125(c)) as applied to (a) non-individualized,

independent communications39 and (b) such communications funded from an independent-communications-only account (“ICA”). Plaintiffs believe the challenged provisions are unconstitutional as

applied to such communications and doubly so as applied to such communications made from an

ICA. The ICA at issue here would contain only contributions from individuals that are legal under

state law and applicable federal law (other than the challenged provisions), and would be used only

for making the independent communications described above. (See Compl. ¶ 131.) Because LAGOP

does not challenge the Reporting Requirement under Count II, LAGOP would report the ICA’s

activity under requirements applicable when LAGOP is able to do the intended activity.

The only cognizable interest that might justify such restrictions on core political speech and

association is preventing quid-pro-quo corruption or its appearance. Citizens United, 558 U.S. at

359. See also McCutcheon, 134 S.Ct. at 1450. Such corruption/appearance requires “a direct ex39 These may occur under 11 C.F.R. 100.24(a)(2)(i)(A)-(C) (VRA), 100.24(a)(3)(i)(A)-(B)

(GOTV), and 11 C.F.R. 100.24(a)(4) (VID), as well as those definitions requiring “public communications” (100.25), namely, 11 C.F.R. 100.24(b)(2)(ii) (GCA) and 100.24(b)(3) (PASO). (See Compl.

¶¶ 84-95, 97-100, 103-05 (examples).)

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change of an official act for money,” id. at 1441, “an act akin to bribery,” id. at 1460 (Breyer, J.,

joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting), and only “arises when an individual

makes large contributions to the candidate or officeholder himself,” id. at 1460 (plurality).

As applied to the non-individualized, independent communications at issue, there is no such risk.

Such independent communications pose neither “corruption [n]or the appearance of corruption,”

Citizens United, 558 U.S. at 357, because “‘[t]he absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only undermines the value of the expenditure to the

candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’” Id. (quoting Buckley, 424 U.S. at 47).

As applied to such communications funded from the ICA, there is no such risk. The ICA is

constitutionally like the NCAs of nonconnected committees.40 Because independent communications

pose no quid-pro-quo risk, NCAs may solicit unlimited nonfederal funds, including from corporations and unions, for making such communications funded entirely with nonfederal funds. In contrast, the ICA will contain only contributions allowed by state law (and unchallenged FECA provisions) from individuals (no corporate/union contributions) at the level allowed by state law (currently $100,000 over a 4-calendar-year period) (Compl. ¶ 109), and Plaintiffs will only be able to

use nonfederal funds in allocated percentages with federal funds under existing rules. (Compl.

¶¶ 45-51.)

While the foregoing will be expanded in full merits briefing (Cf. Compl. ¶¶ 130-38), what is

provided shows that the Count II challenges are substantial and non-foreclosed.

E. Count III Presents Substantial, Non-Foreclosed Claims.

40 See FEC, FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees that

Maintain a Non-Contribution Account, www.fec.gov/press/press2011/20111006postcarey.shtml.

When party ICAs are approved, FEC will give similar guidance, which Plaintiffs will follow.

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In Count III, Plaintiffs challenge the Ban (52 U.S.C. 30125(b)(1)), Fundraising Restriction (52

U.S.C. 30125(c)), and Reporting Requirement (52 U.S.C. 30105(e)(2)) as unconstitutional as applied

to all independent federal election activities. “Federal election activity” sweeps in independent

activity. See 11 C.F.R. 100.24.

Because the challenged provisions burden core political speech and association (by both contribution and pooling resources for effective advocacy), highly protected by the First Amendment, FEC

at a minimum must prove a close “fit” to cognizable governmental interest to justify the requirement

under the appropriate level of scrutiny. See McCutcheon, 134 S.Ct. at 1445 (controlling plurality

opinion). There is no “fit” as applied. The only cognizable interest that might justify such restrictions on core political speech and association is preventing quid-pro-quo corruption or its appearance. Citizens United, 558 U.S. at 359. See also McCutcheon, 134 S.Ct. at 1450 (controlling opinion). Quid-pro-quo corruption (or its appearance) requires “a direct exchange of an official act for

money,” id. at 1441, “an act akin to bribery,” id. at 1460 (Breyer, J., joined by Ginsburg, Sotomayor,

and Kagan, JJ., dissenting), and only “arises when an individual makes large contributions to the

candidate or officeholder himself,” id. at 1460 (plurality). Gratitude, access, influence, and leveling

playing fields are not corruption or its appearance. Citizens United, 558 U.S. at 359-61. “Spending

large sums of money in connection with elections, but not in connection with an effort to control the

exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption.”

McCutcheon, 134 S.Ct. at 1450.

The Ban, Fundraising Requirement, and Reporting Requirement must be justified as to each of

the different types of federal election activity by a cognizable interest. There is no quid-pro-quo risk

due to the independence of the activities. For example, if the independent federal election activity

involves communications, such communications are like the independent expenditures that “do not

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give rise to corruption or the appearance of corruption,” Citizens United, 558 U.S. at 357, because

“‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent

not only undermines the value of the expenditure to the candidate, but also alleviates the danger that

expenditures will be given as a quid pro quo for improper commitments from the candidate.’” Id.

(quoting Buckley, 424 U.S. at 47). 

For another example, if a state-committee employee works 26% of her salaried time in a month

on federal election activities, then the state committee must pay 100% of her salary from federal

funds (instead of the usual allocation between federal and nonfederal funds). But federal election

activity encompasses merely soliciting or encouraging registration or voting by Internet communications for which there is no cognizable quid-pro-quo risk. So triggering the 100% federal-funds

mandate based on 26% of such activity is unjustified. Nor would there be any such risk in other

independent federal election activity, including other aspects of voter-registration and get-out-thevote activity, or voter-identification, or generic campaign activity, or PASO communications. Only

if these activities fit within a coordination definition might they arguably pose quid-pro-quo risk,

but their independence removes such risk.

An informational interest is inadequate to support the Reporting Requirement, because the

foundational justification for regulating federal election activity was a theory of corruption (or its

appearance), based on gratitude and access, which was rejected in Citizens United and McCutcheon

(in both expenditure and contribution contexts), so such regulation is now unfounded for that reason

and because the independence of the activities at issue means that they may not benefit a candidate

and may actually be counterproductive.

While the foregoing will be expanded in full merits briefing, what is provided shows that the

Count III challenge is substantial and non-foreclosed because no interest justifies the challenged

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provisions as applied.

F. Count IV Presents Substantial, Non-Foreclosed Claims.

Plaintiffs challenge the Ban (52 U.S.C. 30125(b)(1)), Fundraising Restriction (52 U.S.C.

30125(c)), and Reporting Requirement (52 U.S.C. 30105(e)(2)) as unconstitutional facially. This

count is not clearly foreclosed beyond debate (with doubts resolved in Plaintiffs’ favor) as would

be required to deny a three-judge court for this claim (assuming arguendo that criteria in addition

to BCRA’s are applicable). See supra at 4-9. Rather, it is substantial and non-foreclosed for three

reasons.

First, Citizens United, 558 U.S. 310, and McCutcheon, 134 S.Ct. 1434, have held, in the expenditure and contribution contexts respectively, that BCRA provisions—like all provisions that burden

“speech,” id. at 1452—must be justified, by the government, with non-speculative evidence of

narrowly defined quid-pro-quo corruption, id. at 1450-52. Quid-pro-quo corruption (or its appearance) requires “a direct exchange of an official act for money,” id. at 1441, “an act akin to bribery,”

id. at 1460 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting), and only “arises

when an individual makes large contributions to the candidate or officeholder himself,” id. at 1460

(plurality). Gratitude, access, influence, and leveling playing fields are not corruption or its appearance. Citizens United, 558 U.S. at 359-61. “Spending large sums of money in connection with

elections, but not in connection with an effort to control the exercise of an officeholder’s official

duties, does not give rise to such quid pro quo corruption.” McCutcheon, 134 S.Ct. at 1450. Because

the facial upholding of the challenged provisions in McConnell was built on a now-rejected, broadly

defined “corruption,” it is without a foundation and therefore the superstructure must collapse.

Second, there was never any proven quid-pro-quo corruption (or its appearance) supporting the

regulation of federal election activity in the record of McConnell, 540 U.S. 93. McConnell upheld

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these provisions on their face though McConnell defendants “identified not a single discrete instance

of quid pro quo corruption attributable to the donation of non-federal funds to the national party

committees.” McConnell, 251 F. Supp. 2d at 395 (opinion of Henderson, J.). Accord McCutcheon,

134 S.Ct. at 1469-70 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, dissenting) (quoting

and citing McConnell, 251 F. Supp. 2d at 395 (opinion of Henderson, J.)). But the Supreme Court

requires evidence of quid-pro-quo corruption (or its appearance) to uphold such restrictions. Citizens

United, 558 U.S. at 359-60; McCutcheon, 134 S.Ct. at 1450-51 (controlling plurality opinion). So

no cognizable interest justifies the challenged provisions.

Third, Citizens United established that, in First Amendment cases such as this, facial challenges

to prior facial holdings (in that case it was McConnell and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)), are substantial, non-foreclosed, and may even be raised on appeal, 558

U.S. at 328-36, even if plaintiffs dismissed a facial challenge below, id. at 329. So a facial challenge

here cannot be foreclosed for purposes of a three-judge court because it is substantial, non-foreclosed, and could be raised even on appeal if required.

While the foregoing will be expanded in full merits briefing, what is provided shows that the

Count IV challenge is substantial and non-foreclosed.

III. This Action Is Like a Related Case Held to Present Substantial Claims.

Finally, this action is substantial and non-foreclosed because it is like a related case in which

similar claims were held substantial and non-foreclosed. That related case is Republican National

Committee et al. v. FEC (14-0853) (“RNC-II”) (consolidated with Rufer v. FEC (14-0837)). LAGOP

and the local-committee plaintiffs here were also plaintiffs in RNC-II, which they and RNC voluntarily dismissed. (Rufer was also voluntarily dismissed.)

In Count II, Plaintiffs here challenge the Ban and Fundraising requirement as applied to nonThree-Judge Court Memo 39

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individualized, independent communications from an ICA (independent-communications-only

account for making such independent communications). The ICA is constitutionally like an NCA

(a non-contribution account, which is an independent-expenditures-only account for making independent expenditures, i.e., independent communications). But an ICA is more limited in the funds

it may receive. Plaintiffs do not seek for the ICA to receive unlimited contributions, only contributions from individuals at the level at which state law permits. Plaintiffs also challenge those provisions as applied to funding such independent expenditures with such non-federal funds from individuals without an ICA.

In RNC-II, RNC and LAGOP made a similar constitutional challenge as applied to a partycommittee having an NCA like other political committees, so they could receive unlimited contributions from individuals to make independent expenditures and other independent communications.

In its Memorandum Opinion of August 19, 2014 (14-0853: Doc. 33), this Court held that circuit

caselaw requires the district court to determine—for either a BCRA § 403 court or en-banc certification under old 2 U.S.C. 437h (now 52 U.S.C. 30110)—whether actions are “obviously without

merit” or so clearly foreclosed by precedent as to “leave no room for the inference that the question

sought to be raised cannot be the subject of controversy.” Id. at 8 (quoting Feinberg, 522 F.2d at

1338 (quotation marks omitted)). And regarding the claim that party-committees should be able to

have NCAs like other political committees, this Court held that plaintiffs raised “substantial, nonfrivolous constitutional claims that are not foreclosed.” Id. at 2. It noted the “confluence” of case

lines also present here:

This case sits at the confluence of two currents of First Amendment jurisprudence concerning

federal campaign finance: the constitutional permissibility of limiting contributions to federal

candidates and political parties, and the constitutional impermissibility of limiting contributions

to independent entities whose campaign expenditures are not coordinated with candidates or

parties. Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.” Id.

at 5-6. This present case sits at the same confluence and is likewise substantial and non-foreThree-Judge Court Memo 40

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closed.

Id. at 5-6. This Court further noted that

the Supreme Court in McConnell upheld the portions of BCRA that cabined contributions to

political parties in connection with federal elections, “regardless of how th[e] funds are ultimately used.” 540 U.S. at 155 (upholding 2 U.S.C. §§ 441i(a) & (b)). This portion of McConnell

was untouched by the Court’s later ruling in Citizens United, which overturned the ban on

unlimited expenditures by private and public corporate entities. 558 U.S. at 360–61 (“The BCRA

record establishes that certain donations to political parties, called ‘soft money,’ were made to

gain access to elected officials . . . . This case, however, is about independent expenditures, not

soft money.” (internal citations omitted)).

Id. at 9. This Court concluded that the challenges involving a party-committee NCA were substantial

because the Supreme Court has not “expressly considered,” RNC[-I]], 698 F. Supp. 2d at 157,

the specific factual and legal arguments advanced by Plaintiffs in this as-applied challenge:

whether the threat of quid pro quo corruption or its appearance inherent in donations to political

parties may be sufficiently reduced by segregating contributions to independent expenditure

accounts so as to defeat the government’s ability to cap such contributions consistent with the

First Amendment. Because the Supreme Court has not squarely confronted this issue, the constitutional questions raised by Plaintiffs meet the threshold level of substantiality required for

adjudication by a three-judge court or certification to the en banc D.C. Circuit.

Id. at 10. Because the claims in Count II here have likewise not been expressly considered, they are

also substantial, non-foreclosed, and suitable for a three-judge court. Because they challenge only

BCRA provisions, en-banc certification under old 2 U.S.C. 437h (now 52 U.S.C. 30110) is not an

option, and in any event no plaintiff qualifies as a plaintiff under old-437h.

In Count I, Plaintiffs here challenge the Ban, Fundraising Requirement, and Reporting Requirement as applied to (1) non-individualized, independent communications that exhort registering/voting and (2) such communications, and other non-individualized, independent communications

constituting federal election activity, by Internet. This too has never been expressly considered and

is similarly substantial and non-foreclosed.

In Count III, plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Requirement

as applied to all independent federal election activity. In its RNC-II Memorandum Opinion, this

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Court noted that RNC-I had decided that such a claim, “‘based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision,’”

was “‘not so much an as-applied challenge as it is an argument for overruling a precedent.’” (14-

0853: Doc. 33 at 9 (quoting RNC-I, 698 F. Supp. 2d at 157)). But McConnell expressly relied on the

idea that the sort of communications at issue here were like express advocacy and coordinated:

[B]oth parties began to use ... soft money ... for issue advertising ... to influence federal elections. The [Senate] Committee found such ads highly problematic for two reasons. Since they

accomplished the same purposes as express advocacy (which could lawfully be funded only with

hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent

protections that FECA was intended to provide. Moreover, though ostensibly independent of the

candidates, the ads were often actually coordinated with, and controlled by, the campaigns.

540 U.S. at 131 (footnote omitted). Not only are the communications at issue here independent,

which is a constitutionally vital distinction, but the independent-expenditure case line, which should

govern here, has developed since McConnell. That case line recognizes that independent communications pose no cognizable quid-pro-quo corruption risk, which is now the only cognizable interest

for restricting campaign contributions. So the confluence of that independent-expenditure case line

with McConnell has developed since McConnell was decided, making this claim substantial. Moreover, McCutcheon has held, in the contribution context, that the only cognizable interest for restricting campaign contributions is the same narrow quid-pro-quo corruption. That undercuts the very

foundation of McConnell.

41 And McCutcheon stated a strengthened version of the “closely drawn

41 The United States Supreme Court has stated that “if a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 238 (1997) (citation omitted).

So courts must follow the most recent case in the case line that directly controls. Here, as

McCutcheon demonstrates, it is Citizens United. Other courts have recognized the broad application

and relevance of Citizens United’s narrow corruption definition. A unanimous en-banc D.C. Circuit

reviewed a contractor contribution ban and followed McCutcheon’s lead in applying Citizens

United’s corruption definition. Wagner v. FEC, No. 13-5162, 2015 WL 4079575, *5 (D.D.C. July

7, 2015); id at *5 n. 7 (“[W]hen we use the term ‘corruption’ or its ‘appearance,’ we refer to the quid

pro quo variety.”). U.S. v. McDonnell, No. 15-4019, 2015 WL 4153640, *27 (4th Cir. July 10,

Three-Judge Court Memo 42

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test.” See supra at footnote 16. These make this case substantial. To the extent Count III might be

deemed a request for overturning McConnell, despite these vital distinctions, a request for overturning a facial holding is neither insubstantial nor foreclosed in light of the developments in the

independent-expenditure case line and McCutcheon’s holding in the contribution-restriction case

line. So this claim is substantial and non-foreclosed for purposes of a three-judge court.

In Count IV, Plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Requirement

facially, because only narrow quid-pro-quo corruption is now cognizable for campaign-contribution

restrictions. No such quid-pro-quo corruption was shown in McConnell’s record. And as just shown

in discussing Count III, McCutcheon held, in the contribution context, that only narrow quid-proquo corruption could justify such restrictions. That fundamentally undercuts McConnell. Moreover,

Citizens United established that, in First Amendment cases, facial challenges to prior facial holdings

are certainly not foreclosed because they may even be raised on appeal in a BCRA case, 558 U.S.

at 328-36. So this facial challenge, for purposes of a three-judge court, is substantial and nonforeclosed.

Finally, this Court’s disposition of RNC-II in its Memorandum Opinion should guide it as to

discovery and expedition here. This Court rejected FEC’s motion for discovery, especially rejecting

2015), found jury instructions adequate for including Citizens United’s definition. See also Yamada

v. Snipes, 786 F.3d 1182, 1205 (9th Cir. 2015) (citing “McCutcheon (reaffirming that a legislature

may limit contributions to prevent actual quid pro quo corruptions or its appearance”); Vermont

Right to Life Committee v. Sorrell, 758 F.3d 118, 139-40 (2d Cir. 2014) (“campaign finance restrictions must target quid pro quo corruption or its appearance ... to survive First Amendment scrutiny.

McCutcheon ....”); Wisconsin Right To Life v. Barland, 751 F.3d 804, 823-24 (7th Cir. 2014) (“only

public interest strong enough to justify restricting election-related speech is the interest in preventing

quid pro quo corruption or the appearance of corruption”). The district court judge who authored a

Second Circuit contribution-limits decision pre-McCutcheon, Ognibene v. Parkes, 671 F.3d 175 (2d

Cir. 2011), acknowledges post-McCutcheon that the narrow corruption definition applies. New York

Progress and Protection PAC v. Walsh , 17 F. Supp.3d 319, 321-22 (S.D.N.Y. 2014) (Crotty, J.)

(agreeing with Justice Breyer that McCutcheon’s corruption definition differs from prior Supreme

Court jurisprudence but holding that McCutcheon controls and striking down contribution limits to

independent-expenditure groups).

Three-Judge Court Memo 43

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 53 of 55
the need for “legislative” facts, and ordered the parties to promptly propose facts, on the basis of

which this Court would make findings of fact. (14-0853: Doc. 33 at 13.) And though it denied

plaintiffs’ expedition motion (id. at 15), this Court in fact promptly certified the case.

Conclusion

For the foregoing reasons, this action and each claim is substantial and non-foreclosed, and all

requirements for a three-judge court are met. So such a court should be convened and this case

advanced on the docket and expedited under BCRA § 403.

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Randy Elf*

mail@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application To Be Filed

Three-Judge Court Memo 44

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 54 of 55
Certificate of Service

I hereby certify that on August 3, 2015, I electronically filed the foregoing Application for

Three-Judge Court with the Clerk of the Court using the CM/ECF system, which will then send a

notification of such filing to the following (and any other FEC counsel that will appear):

Kevin Deeley, Acting Associate General Counsel for Litigation

Federal Election Commission

999 E Street, NW

Washington, DC 20463

kdeeley@fec.gov.

In addition, a courtesy copy was sent by email to kdeeley@fec.gov on the same date.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Case 1:15-cv-01241 Document 3 Filed 08/03/15 Page 55 of 55
United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241 

THREE-JUDGE COURT REQUESTED

Notification of Application for a Three-Judge Court

Plaintiffs bring claims challenging the constitutionality of provisions of the Bipartisan

Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. An action that is “brought for

declaratory or injunctive relief to challenge the constitutionality of any provision” of the BCRA

“shall be filed in the United States District Court for the District of Columbia and shall be heard

by a 3-judge court convened pursuant to [28 U.S.C. § 2284]” if the plaintiffs request a 3-judge

court. Pub. L. No. 107-155, 116 Stat. 113-14. Plaintiffs have filed an application for a 3- judge

court. Accordingly, the Court notifies Chief Judge Garland of this request so that he may

designate two additional judges to participate in hearing and determining Plaintiffs’ claims. The

Clerk is directed to transmit a copy of this request forthwith to the Clerk of the United States

Court of Appeals for the District of Columbia Circuit.

________________________________________

Date: ___________ United States District Judge

Case 1:15-cv-01241 Document 3-1 Filed 08/03/15 Page 1 of 2
Distribution:

James Bopp, Jr., DC Bar #CO 0041, jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Randy Elf,* relf@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

Counsel for Plaintiffs

Kevin Deeley, Acting Associate General Counsel for Litigation

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

kdeeley@fec.gov.

Counsel for Defendant FEC

*Pro Hac Vice Application Pending

Case 1:15-cv-01241 Document 3-1 Filed 08/03/15 Page 2 of 2