UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR LEAVE 

TO FILE REPLY MEMORANDUM IN SUPPORT OF THEIR 

FIRST AND SECOND MOTIONS IN LIMINE 

_______________________________________________________

In their reply memorandum in support of their proposed findings of fact, Plaintiffs 

explained why they filed separate motions in limine attacking the admissibility of specific 

documents on which the FEC relied. See Pls.’ Reply Mem. in Supp. of Proposed Findings of 

Fact at 3 n.1. It is not uncommon for parties to file motions attacking their opponent’s evidence 

in the context of briefing on substantive motions, whether the motions are briefed according to 

pre-agreed schedules or not. Indeed, the parties in the WRTL II and McConnell cases did just 

that. See id. Plaintiffs continue to believe that their motions in limine were appropriate and that 

the Court should allow their short reply in support of those motions on that ground alone. 

Accordingly, Plaintiffs will not reply further to the FEC’s argument that their reply is foreclosed 

by the Court’s order of December 9, 2008. 

Case 1:08-cv-00248-JR Document 66 Filed 01/13/2009 Page 1 of 5
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Aside from claiming that Plaintiffs’ reply brief is foreclosed by the Court’s order of 

December 9, 2008, the FEC contends that its reliance on the concept of “legislative facts” to 

admit thousands of pages of otherwise inadmissible evidence was not new at all, because 

Plaintiffs were, in effect, “on notice” that the FEC intended to rely on the concept of legislative 

facts in this case.1

 See FEC’s Opp. to Pls.’ Mot. for Leave at 3-4. In support of this claim, the 

FEC relies on the fact that it mentioned its desire to seek evidence in support of legislative facts 

during the parties’ discussions about the schedule in this case and the fact that Plaintiffs briefly 

argued that the Court cannot take judicial notice of the evidence on which the FEC was relying 

in Plaintiffs’ memorandum in response to the FEC’s proposed findings of fact. See id. at 3, 4 n. 

3. The FEC thus claims that Plaintiffs should not have been “surprised” that the FEC has relied 

on the concept of legislative facts to support its reliance on inadmissible evidence, latedesignated witnesses, and the like. But the question is not whether Plaintiffs should have been 

surprised by the FEC’s reliance on the notion of legislative facts at all; the question is whether 

Plaintiffs should have predicted that the FEC would rely on the concept of legislative facts to 

admit thousands of pages of exhibits—the vast majority of its evidence in this case—and to 

explain virtually every evidentiary and procedural transgression it committed. Cf. Herbert v. 

Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992) (“To consider an argument discussed for 

the first time in reply would be manifestly unfair to the appellee who, under our rules, has no 

opportunity for a written response.”); Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 190 

 

1

 The FEC also claims that Plaintiffs’ submission of rebuttal facts was somehow inappropriate under the parties’ 

schedule. See FEC’s Opp. to Pls.’ Mot. for Leave at 2. This claim has nothing to do with the FEC’s opposition to 

Plaintiffs’ motion for leave, but for the record the FEC’s argument makes no sense. Plaintiffs assumed from the 

time that the parties agreed on a briefing schedule that part of the purpose of the response briefs was to submit 

rebuttal facts, if necessary, because it is the logical and accepted practice in litigation for parties to introduce facts 

and arguments in rebuttal to their opponents facts and arguments only after their opponent has actually introduced 

those facts and arguments. In any event, the parties never specifically addressed the issue of rebuttal facts when 

they discussed the proposed schedule in this case and nothing in their schedule to which they agreed prevents either 

party from submitting rebuttal facts. 

Case 1:08-cv-00248-JR Document 66 Filed 01/13/2009 Page 2 of 5
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(D.D.C. 2004) (granting motion to file a surreply when “defendants raise[d] a new argument for 

the first time in their reply brief”). 

Indeed, in light of the FEC’s statements during the parties’ discussions of the schedule in 

this case, Plaintiffs had every reason to believe that the FEC would rely on admissible evidence

and would follow the rules of civil procedure. As is reflected in the parties’ scheduling report, 

the FEC indicated to Plaintiffs that it intended to seek evidence in support of certain legislative 

facts and that it desired to take depositions for that purpose. See Scheduling Report at 4. This 

was a clear indication that the FEC intended to use accepted means to obtain admissible evidence 

on which it intended to rely in the case. Otherwise, what would be the purpose of taking 

depositions at all, when the FEC could simply introduce the evidence it wanted by means of latedesignated witness declarations, newspaper articles, and academic papers? The FEC appears to 

have decided, either because the Court did not grant its request to take more than ten depositions 

in this case or for other reasons, that raising the “legislative facts” argument was the better 

course than seeking to introduce actual admissible evidence. The FEC is free to make that 

argument, but its claim that Plaintiffs should have foreseen that it would do so, after it initially 

sought to take the generally accepted approach of following the rules of evidence and civil 

procedure, is preposterous. 

Plaintiffs’ reply brief does not rehash arguments Plaintiffs previously made. The brief 

focuses narrowly on the FEC’s argument that “legislative facts” is a broad exception to the rules 

of evidence and civil procedure in cases such as this one and on the specific cases on which the 

FEC relied in support. The FEC raised that argument and relied on those cases for the first time 

in its responses to Plaintiffs’ motions in limine, and it will not be prejudiced in the slightest if 

this Court grants Plaintiffs’ motion for leave. See, e.g., Ben-Kotel v. Howard Univ., 319 F.3d 

Case 1:08-cv-00248-JR Document 66 Filed 01/13/2009 Page 3 of 5
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532, 536 (D.C. Cir. 2003) (“The district court routinely grants such motions [for a surreply] 

when a party is ‘unable to contest matters presented to the court for the first time’ in the last 

scheduled pleading.’”) (quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)); 

Brown v. Samper, 247 F.R.D. 188, 192 n.2 (D.D.C. 2008); Alexander v. FBI, 186 F.R.D. 71, 74 

(D.D.C. 1998). 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion 

to file a reply memorandum in support of their motions in limine. 

Dated: January 13, 2009. 

Respectfully submitted, 

/s/ Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Paul M. Sherman (DC Bar No. 978663) 

Robert Frommer (DC Bar No. 497308)* 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting† 

Bradley A. Smith† 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

*Admission pending 

† Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 66 Filed 01/13/2009 Page 4 of 5
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 13th Day of January 2009, a true and correct copy of 

Plaintiffs’ REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE REPLY 

MEMORANDUM IN SUPPORT OF THEIR FIRST AND SECOND MOTIONS IN LIMINE 

was filed electronically using the court’s ECF system and sent via the ECF electronic notification 

system to the following counsel of record:

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

Case 1:08-cv-00248-JR Document 66 Filed 01/13/2009 Page 5 of 5