UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

REPUBLICAN NATIONAL COMMITTEE, )

et al., )

Plaintiffs, )

)

v. ) Civ. No. 08-1953 (BMK, RJL, RMC)

)

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL BRIEF

et al., )

)

Defendants. )

_______________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S 

SUPPLEMENTAL BRIEF REGARDING CITIZENS UNITED v. FEC

Pursuant to the Court‟s Order of January 26, 2010, Defendant Federal Election 

Commission respectfully submits this memorandum regarding the Supreme Court‟s decision in 

Citizens United v. FEC, --- S. Ct. --- (2010). Citizens United does not affect this case, for three 

reasons: The decision (1) explicitly distinguished political-party soft money from independent 

expenditures; (2) analyzed only a direct prohibition on speech, not a contribution limit; and 

(3) refused to adopt Plaintiffs‟ invented “unambiguously campaign related” test for political 

regulation. The Supreme Court thus confirmed the earlier precedents that control this case, as 

discussed in the Commission‟s prior briefs.

First, the Court in Citizens United could not have stated more clearly that its opinion was 

“about independent expenditures, not soft money.” Citizens United, slip op. at 45, available at

http://supremecourtus.gov/opinions/09pdf/08-205.pdf. Indeed, the Court noted that the extensive 

evidence from the record of McConnell v. FEC, 540 U.S. 93 (2003), had shown that soft money

led to actual and apparent corruption, but this evidence was inapposite to justifying the

prohibition on independent expenditures at issue in Citizens United. See slip op. at 45. Thus, by 

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the Court‟s own express declaration, the constitutionality of the soft-money contribution limits, 

as well as the wealth of evidence supporting that constitutionality, was outside the scope of the 

Citizens United decision.

Second, even if Citizens United had not explicitly distinguished soft-money donations 

from independent expenditures, the decision would not apply here because its constitutional 

analysis is not relevant to contribution limits. Citizens United addressed the constitutionality of 

independent expenditure limits, which are subject to strict scrutiny, slip op. at 23, and which are 

not justified by a governmental interest in preventing corruption. See id. at 40-45. Contribution 

limits, in contrast, are subject to intermediate scrutiny, McConnell, 540 U.S. at 134-37; Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-88 (2000), and the Court has upheld them repeatedly 

as valid anti-corruption measures. See McConnell, 540 U.S. at 136; Buckley v. Valeo, 424 U.S. 

1, 23-30 (1976). Thus, the fact that an expenditure limit is found to be unconstitutional simply 

has no legal or factual bearing on the constitutionality of a separate contribution limit. See, e.g.,

Buckley, 424 U.S. at 23-51 (upholding FECA‟s original contribution limits but striking down 

expenditure limits in same Act under different analysis). Because there is no law or regulation 

prohibiting Plaintiffs from financing any activity whatsoever, their attempt (Pls.‟ Supp. Mem. at 

2-3) to conflate this case with the direct speech prohibitions subjected to strict scrutiny in 

Citizens United and FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”), must 

fail. In any event, as noted above, one of the Court‟s primary reasons for striking down the 

expenditure limit in Citizens United was the dearth of evidence showing that corruption arose

from independent expenditures; there is no such dearth with regard to soft-money donations to 

political parties. See McConnell, 540 U.S. at 122-73.

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Finally, the Court declined to adopt Citizens United‟s suggestion — the same one 

Plaintiffs propose here — that it impose a new test for political regulation: an “unambiguously 

campaign related” standard. See Citizens United v. FEC, S. Ct. No. 08-205, Jurisdictional 

Statement at (i) (“Whether BCRA‟s disclosure requirements impose an unconstitutional burden 

when applied to electioneering communications . . . not „unambiguously related to the campaign 

of a particular federal candidate‟ . . . .”); id. at 16-19 (arguing for test on grounds that “the 

unambiguously-campaign-related requirement . . . confines government within the pale of its 

constitutional authority to regulate elections”); see also Citizens United v. FEC, S. Ct. No. 08-

205, Brief of Amicus Curiae Committee for Truth in Politics, Inc. at 3-17 (“Campaign-Finance 

Laws May Only Regulate Unambiguously-Campaign-Related Activity.”). The Supreme Court 

did not adopt this standard in Citizens United, and Plaintiffs do not appear to argue otherwise, as 

they identify nothing in Citizens United that supports the test they propose. (See Pls.‟ Supp. 

Mem. at 2-3, 8-9 (citing Plaintiffs‟ prior briefs and cases discussed therein).)

Regarding the corporate spending prohibition, the Court relied on the same strict-scrutiny 

analysis it has employed for expenditure limits since Buckley, not an all-purpose,

unambiguously-campaign-related test. See Citizens United, slip op. at 23. In the disclosure 

context, the Court affirmatively rejected Citizens United‟s argument that BCRA‟s 

electioneering-communication disclosure provisions were constitutional only with respect to 

communications that were the “functional equivalent of express advocacy” — the restriction that 

WRTL, 551 U.S. at 469-76, had imposed as to expenditure limits. Citizens United, slip op. at 53-

54. Instead, Citizens United upheld the constitutionality of BCRA‟s disclosure requirements as 

to all electioneering communications, including those reasonably interpreted as something other 

than campaign speech. See id. (“Even if [Citizens United‟s] ads only pertain to a commercial

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transaction, the public has an interest in knowing who is speaking about a candidate shortly 

before an election.”). And the Court bolstered its conclusion by noting the constitutionality of 

lobbyist disclosure requirements, which certainly would not meet Plaintiffs‟ “unambiguously 

campaign related” standard. See id. (citing United States v. Harriss, 347 U.S. 612 (1954)). This

Court should likewise reject Plaintiffs‟ attempt to create a new constitutional test by importing 

language from one campaign-finance context into another, and should instead apply the usual

intermediate scrutiny applicable to contribution limits.1

As Plaintiffs note (Pls.‟ Supp. Mem. at 3-4), there are two sentences in Citizens United

that might seem to be in tension with one of the Commission‟s arguments in this case: The 

opinion states that “[t]he appearance of influence or access . . . will not cause the electorate to 

lose faith in our democracy,” slip op. at 44, and that “[i]ngratiation and access, in any event, are 

not corruption.” Slip op. at 45. But these statements relate only to the evidence of “influence,” 

“ingratiation,” and “access” arising from independent expenditures, as the full context of the 

quotations demonstrates:

The appearance of influence or access, furthermore, will not cause the 

electorate to lose faith in our democracy. By definition, an independent 

expenditure is political speech presented to the electorate that is not 

coordinated with a candidate. The fact that a corporation, or any other 

speaker, is willing to spend money to try to persuade voters presupposes 

that the people have the ultimate influence over elected officials. 

* * *

[T]here is only scant evidence that independent expenditures even 

ingratiate. Ingratiation and access, in any event, are not corruption. The 

BCRA record establishes that certain donations to political parties, called 

 

1

In an extensive decision post-dating Citizens United, a district court held that the RNC‟s 

arguments in favor of its “unambiguously campaign related” test are “frivolous.” See Cao v. 

FEC, Civ. No. 08-4887, slip op. at 56-62, 71-78 (E.D. La. Jan. 27, 2010), available at

http://www.fec.gov/law/litigation/cao_order.pdf.

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“soft money,” were made to gain access to elected officials. This case, 

however, is about independent expenditures, not soft money.

Slip op. at 44-45 (internal citations and quotation marks omitted). Thus, each of the sentences on 

which Plaintiffs rely is followed immediately by an explanation of why independent 

expenditures do not give rise to corruption, and the opinion expressly notes that soft money —

unlike independent expenditures — was, in fact, used to “gain access to elected officials.” The 

Court then makes clear in the final sentence quoted above that this access arising from soft 

money was not relevant to the Citizens United decision, which was only “about independent 

expenditures, not soft money.” 

Plaintiffs contend that Citizens United overruled — in two sentences without citations —

the extensive portion of McConnell that upheld BCRA‟s soft-money limits. See 540 U.S. at 142-

54. That holding, however, relied not just on evidence of access, undue influence, and the 

appearance of such influence, but also on “the record . . . [of] real or apparent corruption,” 

namely concrete examples of soft-money donations leading to “manipulations of the legislative 

calendar.” See id. at 149-50. Members of Congress whose parties received soft money stopped

legislation to which the parties‟ soft-money donors were opposed. See id. at 150. Plaintiffs 

make no argument regarding how Citizens United calls that portion of McConnell‟s holding into 

question. McConnell also upheld the soft-money limits because of their ability to prevent 

corruption resulting from donations to political parties that provided access to elected officials 

and gave the appearance of undue influence on an officeholder‟s judgment. See id. at 150-54.

The Court cited to “deeply disturbing examples” from the records of Buckley, McConnell, and 

other cases, where access attained from soft-money donations created situations in which the 

“potential for . . . undue influence” over officeholders was “manifest.” See id. at 150-53. To 

read Citizens United‟s statements regarding influence, ingratiation, and access as universal 

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declarations of judicially-found fact, as Plaintiffs do (see Pls.‟ Supp. Mem. at 3-4, 9-11), is at 

odds with an extensive Supreme Court holding explicitly distinguished in Citizens United itself.

Suggesting that Citizens United overruled this holding is extraordinary and mistaken: 

These issues were not included in the Court‟s precise briefing order in Citizens United, 129 S. 

Ct. 2893 (2009) (directing parties to address whether Court should overrule “the part of 

McConnell . . . which addresses the facial validity of Section 203 of [BCRA]”) (emphasis 

added), they were not briefed or argued by any party, and the Court expressly disclaimed opining

on soft money. Thus, Plaintiffs‟ argument that Citizens United “implicitly” overruled the portion 

of McConnell addressing the actual and apparent corruption arising specifically from soft money 

is contrary to every indication from the Citizens United opinion and litigation.

2

 Because this 

Court cannot hold in the first instance that a Supreme Court decision has been overruled —

“implicitly” or otherwise — McConnell‟s reasoning and holdings regarding soft money remain

controlling here. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 

484 (1989) (“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 lower court] should follow the case which 

directly controls, leaving to this Court the prerogative of overruling its own decisions.”); United 

States v. Webb, 255 F.3d 890, 897-98 (D.C. Cir. 2001) (“[Defendant] asks us to disregard the 

earlier [Supreme Court] case because he counts five Justices as no longer supporting its holding. 

That, of course, we may not do.”) (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)).

In any event, the Commission has not argued that access and ingratiation standing alone

always constitute corruption per se, but they do give rise to the appearance of corruption — an 

 

2 As a statutory matter, pursuant to BCRA‟s severability provision, the invalidation of 

BCRA Section 203 does not affect the remainder of BCRA or its “application . . . to any person 

or circumstance.” BCRA § 401, 116 Stat. 112.

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appearance that severely undermines American democracy and that the government has an 

undisputed interest in minimizing. McConnell, 540 U.S. at 150; Buckley, 424 U.S. at 27 (“Of 

almost equal concern as the danger of actual quid pro quo arrangements is the impact of the 

appearance of corruption stemming from public awareness of the opportunities for abuse 

inherent in a regime of large individual financial contributions.”). Indeed, McConnell (like 

Citizens United) recognized that “mere political favoritism or opportunity for influence alone is 

insufficient to justify regulation,” 540 U.S. at 153, but the fact that the parties “sold access” to 

soft-money donors seeking “to purchase just such influence” gave rise to “the appearance of 

undue influence.” Id. at 153-54 (second emphasis added).3 Citizens United does not speak in 

any way to parties‟ selling (or donors‟ buying) access through large contributions, much less to 

the “unique” features of political parties that place them in a “position, „whether they like it or 

not,‟ to serve as „agents for spending on behalf of those who seek to produce obligated

officeholders.‟” Id. at 145 (quoting FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 

431, 452 (2001)). Instead, Citizens United found that corporate expenditure limits were not a 

proper means of combating the appearance of corruption, but the Court also reaffirmed the 

importance of this governmental interest and expressly did not foreclose other means of 

achieving it. See Citizens United, slip op. at 45 (“We must give weight to attempts by Congress 

to seek to dispel either the appearance or the reality of these influences.”). Accordingly, 

McConnell‟s extensive holding regarding the appearance of corruption arising from soft money 

donations to political parties is controlling here, and nothing in Citizens United‟s analysis of 

independent expenditures stands to the contrary.

 

3

Plaintiffs continue to sell access to donors, with the amount of access increasing as the 

size of the donation increases. The RNC‟s claim that it has the same unwritten “policy” on 

preferential access to federal candidates that it did in the soft-money era does not provide a 

reason to overturn McConnell. (See FEC Opp. to Pls.‟ Mot. for Summ. J. at 31 (Doc. No. 39).) 

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Plaintiffs‟ final argument regarding Citizens United is that the soft-money restriction is 

unconstitutional because it advantages corporations and unions over political parties. (See Pls.‟ 

Supp. Mem. at 5-9.) Plaintiffs overlook, however, that all entities that have as their “major 

purpose” the election or defeat of candidates are subject to contribution limits: incorporated 

entities, unincorporated associations, and political parties. See Buckley, 424 U.S. at 79

(construing statutory definition of “political committee” to “encompass organizations . . . the 

major purpose of which is the nomination or election of a candidate”); FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238, 262 (1986) (noting that corporation would be subject to contribution 

limits and other regulation if its major purpose were “campaign activity”). All such entities are 

“political committees” under the Act, and the contribution limits are, in fact, more favorable to 

political party committees than to other “major purpose” entities, including incorporated political 

committees, the corporations to which political parties should be compared. The committees 

established by each national party can together receive up to $30,400 per year from each 

individual donor, and the state, district, and local committees of a party can receive up to a 

combined $10,000 per year from each individual donor. By contrast, other political committees 

can receive only $5,000 per year from an individual donor. 2 U.S.C. § 441a(a)(1); FEC, Price 

Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). 

Corporations not devoted to candidate elections may now make independent expenditures 

using their general treasury funds, but the First Amendment permits political parties to be 

regulated differently because of the “real-world differences between political parties and interest 

groups,” including the fact that “[p]olitical parties have influence and power in the Legislature 

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that vastly exceeds that of any interest group.” McConnell, 540 U.S. at 188.4 Plaintiffs contend 

in essence that all other financing restrictions must fall like dominoes because corporations may 

now be more involved in the political process, but the political party contribution limits are not

so low as to “preven[t] candidates and political committees from amassing the resources for 

effective advocacy.” Buckley, 424 U.S. at 21; see also Randall v. Sorrell, 548 U.S. 230, 247 

(2006) (same) (Breyer, J., joined by Roberts, C.J., and Alito, J.). The substantial sums that the 

national party committees have raised each election cycle since BCRA are sufficient to finance

“effective advocacy,” even if other actors may now engage in more speech regarding candidates 

than in previous election cycles. (See Def.‟s Mem. in Support of Mot. for Summ. J. at 2-7 (Doc. 

No. 56).)

5

 

For the foregoing reasons, as well as the reasons stated in the Commission‟s prior filings 

in this case, this action should be dismissed,6or summary judgment should be granted to the 

Commission.

Respectfully submitted,

Thomasenia P. Duncan (D.C. Bar No. 424222)

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

 

4

Plaintiffs inaccurately claim (Pls.‟ Supp. Mem. at 9) that unlike corporations they are 

“prohibited” from engaging in their intended activities, but the contribution limits at issue here of 

course place no restraint on Plaintiffs‟ expenditures.

5 While it is true that Justice Stevens states in dissent that Congress could theoretically 

remove BCRA‟s soft-money limits (Pls.‟ Supp. Mem. at 9), his point thus highlights that such a 

change would be a legislative prerogative, not a constitutional right.

6 Citizens United does not change the fact that this case should be dismissed as res 

judicata.

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Kevin Deeley

Assistant General Counsel

/s/ Adav Noti

Adav Noti (D.C. Bar No. 490714)

Attorney

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

Dated: February 9, 2010 (202) 694-1650

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