UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

THE TEA PARTY LEADERSHIP ) 

FUND, et al., ) 

 ) Civ. No. 12-1707 (RWR) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) OPPOSITION TO MOTION FOR 

FEDERAL ELECTION COMMISSION, ) PRELIMINARY INJUNCTION 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

 Anthony Herman 

 General Counsel 

 

 Lisa J. Stevenson 

 Deputy General Counsel – Law 

David Kolker 

Associate General Counsel 

 

Adav Noti 

Acting Assistant General Counsel 

Erin Chlopak 

Kevin P. Hancock 

 Attorneys 

COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

November 1, 2012 (202) 694-1650 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 1 of 41
i	

TABLE OF CONTENTS 

 

BACKGROUND .......................................................................................................................2 

I. MULTICANDIDATE PACS.........................................................................................2 

II. THE 1976 FECA AMENDMENTS ..............................................................................4 

III. THE PARTIES...............................................................................................................5 

IV. PLAINTIFFS’ ADVISORY OPINION REQUEST ......................................................7 

V. PROCEDURAL HISTORY ...........................................................................................7 

ARGUMENT .............................................................................................................................8 

I. STANDARD OF REVIEW ...........................................................................................8 

II. THE COMMISSION IS LIKELY TO PREVAIL ON THE MERITS 

BECAUSE THE SUPREME COURT HAS ALREADY DETERMINED 

THAT THE REGISTRATION REQUIREMENT FOR MULTICANDIDATE 

POLITICAL COMMITTEES IS CONSTITUTIONAL, AND NOTHING 

HAS UNDERMINED THAT HOLDING .....................................................................9 

A. Buckley Controls the Standard of Scrutiny and the Outcome of 

This Case ............................................................................................................9 

B. The Registration Requirement for Multicandidate PACs Remains 

Closely Related to the Government’s Important Interests in Preventing 

Corruption and the Appearance of Corruption ................................................13 

1. Preventing Circumvention of Contribution Limits Furthers 

the Government’s Important Anti-Corruption Interest ........................14 

2. The Registration Requirement for Multicandidate PACs 

Continues to Limit Circumvention of the Personal 

Contribution Limits ..............................................................................17 

3. The Court Should Defer to Congress’s Judgment Regarding 

the Dollar Amounts of the Contribution Limits and the Length 

of the Registration Period for Multicandidate PACs ...........................20 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 2 of 41
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C. Plaintiffs Fail to Identify Any Authority That Supersedes Buckley’s 

Direct Holding on the Sole Issue in This Case ................................................22 

III. PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO 

SUFFER IRREPARABLE HARM..............................................................................25 

IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH 

AGAINST GRANTING A PRELIMINARY INJUNCTION .....................................30 

CONCLUSION ........................................................................................................................32 

 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 3 of 41
iii	

TABLE OF AUTHORITIES 

Cases Page 

Barton v. District of Columbia, 131 F. Supp. 2d 236 (D.D.C. 2001) ......................................27 

Bowen v. Kendrick, 483 U.S. 1304 (1987) ..............................................................................31 

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

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975), aff’d in relevant part and 

 rev’d in part, 424 U.S. 1 (1976).............................................................................11, 19, 26 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ........................................................4, 14, 15, 22 

Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006) ....................31 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ..................................................................17, 20 

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) ......................................................................8 

Davis v. FEC, 554 U.S. 724 (2008) .........................................................................................20

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ..........................15, 21 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..............................................................23 

Johnson v. Robison, 415 U.S. 361 (1974)................................................................................28 

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) ...................................................................26 

Hispanic Leadership Fund, Inc. v. Walsh, No. 1:12-cv-1337, slip op. (N.D.N.Y. 

Oct. 23, 2012) ........................................................................................................ 27, 31-32 

Lair v. Bullock, --- F.3d ---, 2012 WL 4883247 (9th Cir. Oct. 16, 2012) ................................31 

McConnell v. FEC, 540 U.S. 93 (2003), rev’d in part on other grounds, 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ................................................ 10, 15-16, 18 

McCutcheon v. FEC, --- F. Supp. 2d ---, 

 2012 WL 4466482 (D.D.C. Sept. 28, 2012) .................................................... 13, 16-18, 21 

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987)..........................................................28 

Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) .................................................8 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 4 of 41
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NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991).........................................................25 

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011) ...................................................................17 

Purcell v. Gonzalez, 549 U.S. 1 (2006) .....................................................................................9 

Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75 (4th Cir. 1989) ...............32

Randall v. Sorrell, 548 U.S. 230 (2006) ............................................................................ 21-22 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010), 

 aff’d mem., 130 S. Ct. 3544 (2010) ....................................................................................13 

Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010) ....................................................27 

Robertson v. FEC, 45 F.3d 486 (D.C. Cir. 1995) ....................................................................28 

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) .............................13 

Rosario v. Rockefeller, 410 U.S. 752 (1973) .....................................................................22, 26

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ............................................................... 8-9 

Tenacre Foundation v. INS, 78 F.3d 693 (D.C. Cir. 1996) .....................................................27 

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) ............................................17 

Thomas v. Collins, 323 U.S. 516 (1945) ..................................................................................24 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) ............................................................9 

United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012) .....................................................17 

 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ......................................................................8 

Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001) ................................................................8 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987) .............................................................25, 29 

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 

536 U.S. 150 (2002) ...........................................................................................................24 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .............................................8, 25 

Wis. Gas. Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ..........................................................25 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 5 of 41
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Worley v. Roberts, 749 F. Supp. 2d 1321 (N.D. Fla. 2010) .....................................................28 

Statutes, Rules, and Regulations 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ................................................................1 

2 U.S.C. § 431(4)(A)............................................................................................................2 

2 U.S.C. § 431(8)-(9) ...........................................................................................................2 

2 U.S.C. § 431(11) ...............................................................................................................3 

2 U.S.C. § 434 ......................................................................................................................2 

2 U.S.C. § 434(a)(4)(A) .....................................................................................................19

2 U.S.C. § 437c(b)(1) ...........................................................................................................5 

2 U.S.C. § 437d(a)(7) ...........................................................................................................5 

2 U.S.C. § 437d(a)(8) ...........................................................................................................5 

2 U.S.C. § 437f ....................................................................................................................5 

2 U.S.C. § 437f(a)(1) .........................................................................................................29 

2 U.S.C. § 437g ....................................................................................................................5 

2 U.S.C. § 438(a)(8) .............................................................................................................5 

2 U.S.C. § 441a(a)(1)(A) .....................................................................................................3

2 U.S.C. § 441a(a)(1)(C)......................................................................................................5

2 U.S.C. § 441a(a)(2)(A) .....................................................................................................3

2 U.S.C. § 441a(a)(2)(B)......................................................................................................3

2 U.S.C. § 441a(a)(2)(C)......................................................................................................5

2 U.S.C. § 441a(a)(4) ...................................................................................................1, 3, 5 

2 U.S.C. § 441a(a)(5) ...........................................................................................................5 

2 U.S.C. § 441a(d) ...............................................................................................................3 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 6 of 41
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2 U.S.C. § 441a(h) ...............................................................................................................3 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(a), 

 88 Stat. 1263 ..................................................................................................................4 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 ... 4-5 

11 C.F.R. § 100.2 .......................................................................................................................3 

11 C.F.R. § 104.1(b) ............................................................................................................2, 26 

11 C.F.R. § 110.2(b)(3) ............................................................................................................30 

LCvR 65.1(d) ...........................................................................................................................27 

Miscellaneous 

Charles S. Johnson, Bullock Wants Court to Find That Hill Broke Donation Law, 

 Independent Record (Oct. 18 2012), http://helenair.com/news/ local/ 

56db04b8-1973-1e2-9cb6-001a4bcf887a.html ..................................................................31 

Club for Growth PAC Endorsed Candidates, Club for Growth, 

http://www.clubforgrowth.org/endorsedcandidates/ (last visited Nov. 1, 2012) ..............19 

FEC, Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist 

Bundling Disclosure Threshold, 76 Fed. Reg. 8368 (Feb. 14, 2011) ...........................3, 21 

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

Maintain a Non-Contribution Account (Oct. 5, 2011), http://www.fec.gov/press/Press2011/ 

20111006postcarey.shtml ....................................................................................................6 

Hill Ordered to Stop Spending $500,000, Daily Inter Lake.com (Oct. 24, 2012), 

http://www.dailyinterlake.com/news/local_montana/ 

article_6f698036-1e55-11e2-be3e-0019bb2963f4.html ....................................................31 

Naral Pro-Choice America PAC Announces New Endorsements, NARAL Pro-Choice 

America (Apr. 3, 2012), http://www.prochoiceamerica.org/elections/ 

elections-press-releases/2012/ pr04032012_pac-endorsements.html ................................19 

Raese for Senate, FEC Form 3 (Oct. 25, 2012), http://images.nictusa.com/pdf/451/ 

12021001451/12021001451.pdf ........................................................................................30 

 

Sec’y of Commonwealth of Mass., 2012 State Primary Results (Sept. 6, 2012),

http://www.sec.state.ma.us/ele/elepdf/20120906_sp_results_rep.pdf ................................6 

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TPLF, Statement of Organization (rec’d May 9, 2012), http://images.nictusa.com/ 

pdf/458/12030804458/12030804458.pdf .................................................................... 26-27 

W.V. Sec’y of State, Election Results Center (May 8, 2012), http://apps.sos.wv.gov 

/elections/results/results.aspx?year=2012&eid= 8&county=Statewide ...............................6 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 8 of 41
On the eve of the quadrennial nationwide elections, plaintiffs seek to halt enforcement of 

campaign-finance provisions that the Supreme Court has expressly upheld as constitutional 

measures that limit corruption. Plaintiffs’ inexcusably late-filed suit is meritless, and they cannot 

remotely demonstrate that any legal or equitable factors weigh in favor of enjoining the 

government from enforcing the longstanding provisions they challenge. 

The Federal Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA”), generally prohibits 

an individual or group from contributing more than $2,500 to a federal candidate. FECA 

provides, however, that certain political organizations may take advantage of a higher 

contribution ceiling of $5,000 per candidate, provided these organizations meet three specific 

statutory criteria to demonstrate that they are bona fide “multicandidate political committees” 

(“multicandidate PACs”). Those criteria are: (1) being registered with the Federal Election 

Commission for at least six months; (2) receiving contributions from more than fifty persons; 

and (3) making contributions to at least five federal candidates. 2 U.S.C. § 441a(a)(4). More 

than 35 years ago, the Supreme Court reviewed and upheld the constitutionality of these criteria 

for multicandidate-PAC status, recognizing that they serve the important governmental interest 

of limiting corruption by preventing circumvention of the limits on individual contributions to 

candidates. 

Plaintiff Tea Party Leadership Fund (“TPLF”) has contributed $2,500 each to various 

federal candidates, including plaintiffs John Raese and Sean Bielat, and it wants to contribute 

more to these candidates for the 2012 election. But TPLF currently meets only two of the three 

criteria for multicandidate PAC status. Because TPLF registered with the Commission on 

May 9, 2012, it will not fulfill the six-month registration requirement until November 9, 2012. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 9 of 41
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TPLF filed an “emergency” motion 19 days before the upcoming federal election, 

arguing that the Constitution excuses TPLF from the registration requirement. This claim is 

remarkable because the self-imposed “emergency” results solely from plaintiffs’ delay in filing 

their lawsuit more than five months after TPLF registered with the Commission and triggered the 

registration period. And even more remarkable is plaintiffs’ request that this Court overrule a 

Supreme Court holding directly applicable here. Plaintiffs’ attempts to introduce doubt about 

whether the Supreme Court’s holding remains good law in light of subsequent developments 

must fail; only the Supreme Court can overrule its own decisions. In any event, none of the 

developments on which plaintiffs rely casts any doubt on the continued constitutionality of the 

registration requirement for multicandidate PACs. 

BACKGROUND 

I. MULTICANDIDATE PACS 

 FECA requires a group to register with the FEC as a “political committee” (“PAC”) once 

the group has engaged in a certain amount of federal election campaign activity. Specifically, an 

organization must register if (1) it has received more than $1,000 in “contributions” or made 

more than $1,000 in “expenditures” during a calendar year, 2 U.S.C. § 431(4)(A); see also

2 U.S.C. § 431(8)-(9) (defining “contribution” and “expenditure”), and (2) its major purpose is 

the nomination or election of federal candidates, Buckley v. Valeo, 424 U.S. 1, 79 (1976). 

Though FECA requires a PAC to register once it meets these thresholds, an organization is also 

free to register voluntarily at any time beforehand. 11 C.F.R. § 104.1(b). Once a group becomes 

or registers as a PAC, it must disclose most of its receipts and disbursements in periodic public 

reports filed with the Commission. See generally 2 U.S.C. § 434. 

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FECA generally provides that no “person” may contribute more than $2,500 per election 

to a federal candidate.1 2 U.S.C. § 441a(a)(1)(A); FEC, Price Index Adjustments for 

Contribution and Expenditure Limits and Lobbyist Bundling Disclosure Threshold, 76 Fed. Reg. 

8368, 8369 (Feb. 14, 2011) (“Inflation Index”). A “person” subject to this limit includes any 

“individual . . . [or] organization.” 2 U.S.C. § 431(11). The only relevant exception is for 

multicandidate PACs: These organizations can contribute $5,000 per candidate per election. 2 

U.S.C. § 441a(a)(2)(A).2 But to qualify for this higher limit, an organization must demonstrate 

that it is a bona fide multicandidate PAC by (1) being registered with the Commission as a PAC 

for at least six months, (2) receiving contributions from more than fifty persons, and (3) making 

contributions to at least five federal candidates. 2 U.S.C. § 441a(a)(4). 

 In Buckley, the Supreme Court upheld the constitutionality of both the personal 

contribution limit (which was $1,000 per election at the time) and the qualification criteria for 

the higher multicandidate-PAC contribution limit. The Court first held that the personal 

contribution limit is a constitutionally valid method of preventing corruption and the appearance 

of corruption in federal elections. Buckley, 424 U.S. at 23-35. The Court explained that 

contribution limits help prevent corruption because “[t]o the extent that large contributions are 

given to secure a political quid pro quo from current and potential officeholders, the integrity of 

our system of representative democracy is undermined.” Id. at 26-27. And Buckley held that 

contribution limits also help prevent the appearance of corruption “inherent” in large 

																																																							

1

 In this context, primaries and general elections are separate “elections.” See 11 C.F.R. 

100.2. Thus, one person can contribute $2,500 to a candidate for a primary election and another 

$2,500 to the candidate for the general election, for a total contribution of $5,000 per election 

cycle. 

2

 Political committees established by national political parties are also subject to different 

contribution limits. See 2 U.S.C. §§ 441a(a)(2)(B), 441a(d), 441a(h). But these limits are 

irrelevant here. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 11 of 41
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contributions — the avoidance of which is “critical . . . if confidence in the system of 

representative Government is not to be eroded to a disastrous extent.” Id. at 27 (internal 

quotation marks omitted). 

 The Court then held that the criteria for multicandidate PAC status, including the sixmonth registration period, “serve the permissible purpose of preventing individuals from evading 

the applicable contribution limitations by labeling themselves committees.” Buckley, 424 U.S. at 

35-36.

3

 The Court rejected the argument that the requirements unconstitutionally discriminate 

against “ad hoc organizations.” Id. at 35. “Rather than undermining freedom of association,” 

the Court explained,” the higher contribution limit “enhances the opportunity of bona fide groups 

to participate in the election process,” with the qualification criteria limiting the potential for 

abuse of that opportunity. Id. 

II. THE 1976 FECA AMENDMENTS 

 Congress amended FECA shortly after Buckley. See Federal Election Campaign Act 

Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (“1976 FECA Amendments”). These 

amendments were intended, inter alia, to limit additional methods of circumventing contribution 

limits — methods that the prior version of FECA had not addressed, such as the use of PACs that 

“appear to be separate entities pursuing their own ends, but are actually a means for advancing a 

candidate’s campaign.” Cal. Med. Ass’n v. FEC, 453 U.S. 182, 198 n.18 (1981) (quoting H.R. 

Rep. No. 94-1057, at 57-58 (1976) (Conf. Rep.)). To partially address this particular form of 

circumvention, the 1976 FECA Amendments provided that no person or multicandidate PAC can 

																																																							

3

 At the time of Buckley, FECA had yet to use the term “multicandidate” to describe PACs 

that qualify for the increased $5,000 contribution limit. See Federal Election Campaign Act 

Amendments of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 1263 (then-codified as 18 U.S.C. 

§ 608(B)(2)). That term was added to FECA in 1976. See Federal Election Campaign Act 

Amendments of 1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 475 (codified at 2 U.S.C. 

§ 441a(a)(4)). 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 12 of 41
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contribute more than $5,000 per year to any one PAC. See 1976 FECA Amendments, § 112(2) 

(codified at 2 U.S.C. § 441a(a)(1)(C), (2)(C)). And the amendments provided that all PACs 

(including multicandidate PACs) that are established, financed, maintained, or controlled by the 

same individual or group are considered to be a single PAC for purposes of the limits on the 

contributions they may make. Id. (codified at 2 U.S.C. § 441a(a)(5)). 

III. THE PARTIES 

 The Commission is the independent agency of the United States government with 

statutory authority over the administration, interpretation, and civil enforcement of FECA and 

other federal campaign finance statutes. The Commission is empowered to “formulate policy” 

with respect to FECA, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such rules . . . as are 

necessary to carry out the provisions of [FECA],” id. §§ 437d(a)(8), 438(a)(8); to issue advisory 

opinions concerning the application of FECA or the Commission’s regulations to proposed 

transactions or activities, id. §§ 437d(a)(7), 437f; and to civilly enforce FECA, id. § 437g. 

 Plaintiff TPLF is a PAC that registered with the Commission on May 9, 2012. (Compl. 

¶ 2 (Docket No 1).) TPLF alleges that it has satisfied two of the three criteria for multicandidate 

PAC status by receiving contributions from more than fifty people and making contributions to 

at least five candidates. (See id.) As a result, TPLF will achieve multicandidate PAC status 

when it satisfies the six-month registration requirement on November 9, 2012. 2 U.S.C. 

§ 441a(a)(4). 

TPLF describes itself as a “[h]ybrid” PAC (Compl. ¶ 2), meaning that it maintains two 

accounts: A “contribution account” that accepts contributions only from individuals in 

increments of $5,000 or less and is used to finance contributions to candidates; and a separate 

“non-contribution account” that accepts unlimited individual or corporate contributions and is 

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used to finance independent expenditures or electioneering communications. See FEC, 

Statement on Carey v. FEC: Reporting Guidance for Political Committees That Maintain a 

Non-Contribution Account (Oct. 5, 2011), http://www.fec.gov/press/Press2011/ 

20111006postcarey.shtml. According to its FEC filings, TPLF has raised a total of 

approximately $480,000 since its registration.4

 It has made contributions totaling $27,500 to 

eleven federal candidates ($2,500 per candidate), and it has spent approximately $73,500 on 

express advocacy communications for and against federal candidates. 

Plaintiff John Raese is a candidate for the United States Senate in West Virginia. 

(Compl. ¶ 3.) He was nominated as the Republican candidate for that seat on May 8, 2012.5

 

Plaintiff Sean Bielat is a candidate for the United States House of Representatives in 

Massachusetts. (Compl. ¶ 4.) He was nominated as the Republican candidate for that seat on 

September 6, 2012.6

 

TPLF’s contributions include $2,500 to Raese and $2,500 to Bielat. (Compl. ¶ 5.) TPLF 

alleges that it would like to contribute an additional $2,500 each to Raese and Bielat, plus up to 

$5,000 to other candidates before the November 6 general election. (Compl. ¶¶ 5, 60.) Plaintiffs 

Raese and Bielat each allege a desire to accept an additional $2,500 in contributions from TPLF 

“[a]s soon as possible, and certainly before the 2012 primary and general elections.” (Compl. 

¶ 61.) 

																																																							

4

 TPLF’s FEC filings can be retrieved by entering the committee’s name into the 

Commission’s search function at http://www.fec.gov/finance/disclosure/candcmte_info.shtml. 

As of the date of this brief, those filings encompass TPLF’s activity from its registration through 

October 17, 2012. 

5

 See W.V. Sec’y of State, Election Results Center (May 8, 2012), http://apps.sos.wv.gov 

/elections/results/results.aspx?year=2012&eid=8&county=Statewide. 

6

 See Sec’y of Commonwealth of Mass., 2012 State Primary Results (Sept. 6, 2012),

http://www.sec.state.ma.us/ele/elepdf/20120906_sp_results_rep.pdf. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 14 of 41
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IV. PLAINTIFFS’ ADVISORY OPINION REQUEST 

 On September 17, 2012, plaintiffs requested that the Commission issue an advisory 

opinion declaring the six-month registration period unconstitutional. (Compl. Exh. A (Docket 

No. 1-4).) On October 10, after receiving public comments and hearing argument from 

plaintiffs, all six FEC Commissioners voted unanimously to deny the request. (Compl. Exh. C 

(Docket No. 1-6).) The Commission found that 

the requestors ask the Commission to determine that TPLF may make, and 

Mr. Bielat and Mr. Raese may accept, contributions in excess of [$2,500 

per candidate] because they contend the congressionally prescribed 

definition of a multicandidate committee is unconstitutional. The 

Commission, however, lacks the power to make such a determination. . . . 

[N]o court has struck down the qualification requirements of the Act. The 

Supreme Court has ruled that this limitation does not offend the 

Constitution. 

(Compl. Exh. B. at 4 (citing Buckley, 424 U.S. at 35-36) (internal citations omitted) (Docket No. 

1-5).) 

V. PROCEDURAL HISTORY 

 On October 18, 2012, eight days after the Commission issued its advisory opinion, 

plaintiffs filed their complaint and motion for a preliminary injunction. (Docket Nos. 1-2.) 

Plaintiffs assert before this Court the same constitutional challenge to the six-month registration 

period as they raised in their advisory opinion request. Specifically, Count 1 of the complaint 

claims that the registration period is unconstitutional on its face and as applied to plaintiffs. 

(Compl. ¶¶ 1, 66-70.) Count 2 alleges that “the contribution limit[ ] [of] $2,500 per candidate 

per election” is also unconstitutional on its face and as applied to plaintiffs, i.e., that plaintiffs are 

constitutionally entitled to the $5,000 contribution limit for multicandidate PACs instead of the 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 15 of 41
8 

$2,500 limit that applies to any other person.7 (Compl. ¶ 72; see also id. ¶¶ 1, 71, 73-76.) 

Plaintiffs seek a declaratory judgment holding these provisions unconstitutional, and preliminary 

and permanent injunctions barring the Commission from enforcing them against plaintiffs and 

similarly situated political committees and candidates. (Id. ¶¶ 77-84.) 

ARGUMENT

I. STANDARD OF REVIEW 

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief. . . . [It is] never awarded as of right.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008); see Cobell v. Norton, 391 

F.3d 251, 258 (D.C. Cir. 2004). To prevail on a motion for a preliminary injunction, a plaintiff 

“must establish”: “that he is likely to succeed on the merits, that he is likely to suffer irreparable 

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 

injunction is in the public interest.” Winter, 555 U.S. at 20; Mills v. District of Columbia, 571 

F.3d 1304, 1308 (D.C. Cir. 2009). 

Plaintiffs here shoulder a particularly heavy burden because their requested relief “would 

alter, not preserve, the status quo.” Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001). The 

purpose of a preliminary injunction “is merely to preserve the relative positions of the parties 

until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); 

Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir. 2011). But plaintiffs here seek to upend the 

																																																							

7

 Plaintiffs’ complaint and motion repeatedly state that they challenge the constitutionality 

of the contribution limit of section 441a(a)(1)(C). (Compl. ¶¶ 1, 63-65, 72, 74, 76, 79-80, 82-84; 

Pls.’ Mot. for Prelim. Inj. at 1-2 (Docket No. 2).) But that provision — which imposes a $5,000 

limit on contributions to PACs — does not appear to be at issue here. Rather, it is clear that 

plaintiffs actually challenge the $2,500 limit on contributions to candidates from any person who 

is not a multicandidate PAC, 2 U.S.C. § 441a(a)(1)(A). (See, e.g., Compl. ¶ 1 (“This challenge is 

brought . . . against the $2,500 contribution limit per candidate per election . . . .”).) 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 16 of 41
9 

status quo by preventing the Commission from enforcing statutory provisions that have been in 

place for almost 40 years. Cf. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) 

(Rehnquist, C.J., in chambers) (refusing to enjoin enforcement of federal statute in First 

Amendment challenge and noting that “[b]y seeking an injunction, applicants request that I issue 

an order altering the legal status quo”) (emphasis in original). This is particularly inappropriate 

in the pre-election context, where “considerations specific to election cases” weigh even further 

against the issuance of injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4-6 (2006) (per curiam) 

(vacating lower court’s injunction against enforcement of election statute and noting potential for 

pre-election injunctions to cause confusion among voting public). 

Thus, plaintiffs can prevail on their motion only by meeting their heavy burden to make a 

clear showing in their favor on all four of the preliminary injunction factors, see Sherley, 644 

F.3d at 392-93 — a showing sufficient to halt enforcement of a longstanding federal election 

statute just days before the general election. 

II. THE COMMISSION IS LIKELY TO PREVAIL ON THE MERITS BECAUSE 

THE SUPREME COURT HAS ALREADY DETERMINED THAT THE 

REGISTRATION REQUIREMENT FOR MULTICANDIDATE POLITICAL 

COMMITTEES IS CONSTITUTIONAL, AND NOTHING HAS UNDERMINED 

THAT HOLDING 

A. Buckley Controls the Standard of Scrutiny and the Outcome of This Case 

The Supreme Court in Buckley directly affirmed of the constitutionality of the registration 

requirement (and other qualifying conditions) for groups seeking to become multicandidate 

PACs to take advantage of the higher contribution ceilings available to such groups. Buckley, 

424 U.S. at 35-36. The Court recognized that these criteria “serve the permissible purpose of 

preventing individuals from evading the applicable contribution limitations by labeling 

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10 

themselves committees.” Id. That holding remains valid today, and it controls this case in its 

entirety. 

In reaching its holding, Buckley analyzed the First Amendment implications of 

contribution limits in general, noting that they restrict “one aspect of the contributor’s freedom of 

political association” but do not prevent a contributor from speaking. 424 U.S. at 24, 28. 

Specifically, the Court held that the speech value of a contribution lies in its function as a 

“symbolic act” that provides “a general expression of support for the candidate and his views.” 

Id. at 21. But because a contribution does not “communicate the underlying basis for the 

support[,] . . . [t]he quantity of communication by the contributor does not increase perceptibly 

with the size of his contribution.” Id. (emphasis added). Thus, contribution limits leave 

contributors free to engage in the “symbolic act of contributing,” while in no way inhibiting their 

ability to conduct other political activity, such as “discuss[ing] candidates and issues” or 

“becom[ing] a member of any political association and . . . assist[ing] personally in the 

association’s efforts on behalf of candidates.” Id. at 21-22. 

In light of this merely “marginal restriction” that contribution limits impose on 

contributors’ First Amendment rights, Buckley, 424 U.S. at 20, the Court assessed the 

constitutionality of such limits under an intermediate level of scrutiny, see id. at 25. That 

standard is satisfied “if the [government] demonstrates a sufficiently important interest and 

employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. 

This is a “‘lesser demand’” than the “strict scrutiny” under which restrictions on independent 

political spending are reviewed. McConnell v. FEC, 540 U.S. 93, 136 (2003) (quoting FEC v. 

Beaumont, 539 U.S. 146, 162 (2003)), rev’d in part on other grounds, Citizens United v. FEC, 

130 S. Ct. 876 (2010). 

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Applying intermediate scrutiny, Buckley concluded that FECA’s personal contribution 

limits are constitutional. The Court recognized that the personal limits further two important 

governmental interests: reducing the opportunity for contributors “to secure a political quid pro 

quo from current and potential office holders” in exchange for large contributions, and reducing 

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

inherent in a regime of large individual financial contributions.” Buckley, 424 U.S. at 26-27. 

“[A]voidance of the appearance of improper influence,” the Court held, is “critical . . . if 

confidence in the system of representative Government is not to be eroded to a disastrous 

extent.” Id. at 27 (internal quotation marks and alterations omitted). Buckley concluded that 

“restricting the size of financial contributions to political candidates” serves these “weighty 

interests,” which are therefore “sufficient to justify the limited effect upon First Amendment 

freedoms” imposed by the personal contribution limits. Id. at 29. 

Having upheld the basic limits on contributions to candidates, the Court then also upheld 

a number of FECA provisions designed to prevent evasion or circumvention of those limits. See 

Buckley, 424 U.S. at 38 (holding that anti-circumvention is “no more than a corollary of the basic 

individual contribution limitation that we have found to be constitutionally valid”). Regarding 

the six-month registration requirement for multicandidate PAC status, the D.C. Circuit opinion 

that the Supreme Court reviewed in Buckley had noted that it “only incidentally impedes the 

freedom of association” since it does not “prevent individuals from drawing together to act as a 

political committee at any time.” Buckley v. Valeo, 519 F.2d 821, 857-58 (D.C. Cir. 1975) (en 

banc), aff’d in relevant part and rev’d in part, 424 U.S. 1 (1976). This incidental burden is 

justified, the court of appeals had held, as 

a loophole-closing provision intended to prevent proliferation of dummy 

committees, each of a few persons, in support of federal candidacies. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 19 of 41
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Otherwise, two or three persons could acquire the $5,000 committee 

contribution authority . . . merely by organizing themselves as a political 

committee. The challenged Act limits such bootstrapping by interposing a 

six-month protective shield. 

Id. at 857-58. The Supreme Court affirmed the D.C. Circuit’s upholding of this “loopholeclosing provision.” Rejecting the argument that the multicandidate PAC criteria 

“unconstitutionally discriminate against ad hoc organizations in favor of established interest 

groups and impermissibly burden free association,” Buckley held that increasing the contribution 

limit for multicandidate PACs “enhances the opportunity of bona fide groups to participate in the 

election process.” 424 U.S. at 35 (emphasis added). And consistent with the Court’s focus on 

“bona fide groups” — and the D.C. Circuit’s similar concern about individuals “bootstrapping” 

themselves to the higher contribution limit — the Court held that the criteria for multicandidate 

PAC status “serve the permissible purpose of preventing individuals from evading the applicable 

contribution limitations by labeling themselves committees.” Id. at 35-36; cf. id. at 38 

(upholding then-$25,000 aggregate limit on individual’s contributions during election cycle to 

prevent individuals from circumventing personal contribution limit by routing contributions 

through political committees). 

The Supreme Court and D.C. Circuit opinions in Buckley thus established two 

fundamental principles that control the outcome of this case: (1) the government’s interest in 

preventing corruption and the appearance of corruption is sufficient to justify contribution limits, 

including provisions that prevent circumvention of those limits; and (2) the qualifications for 

multicandidate PAC status further the government’s anti-circumvention interest by inhibiting the 

ad hoc creation of “dummy” committees to serve as conduits for excessive individual 

contributions. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 20 of 41
13 

Plaintiffs acknowledge, as they must, that the Supreme Court reviewed and upheld the 

six-month registration requirement as a constitutional qualification for multicandidate PAC 

status. (Pls.’ Mem. of Law in Supp. Of Mot. for Prelim. Inj. (“Pls.’ Inj. Mem.”) at 2, 11-12 

(citing Buckley, 424 U.S. at 35-36).) Yet in asking this Court to excuse TPLF from that 

requirement, plaintiffs cannot identify a shred of authority that purports to supersede the 

Supreme Court’s holding on this sole issue raised in this case. For this reason alone, plaintiffs’ 

motion should be denied. As the Supreme Court has held, “[i]f 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 courts] should follow the case which directly controls, leaving to this Court 

the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, 

Inc., 490 U.S. 477, 484 (1989); see also McCutcheon v. FEC, --- F. Supp. 2d ---, 2012 WL 

4466482, at *3 (D.D.C. Sept. 28, 2012) (three-judge court) (citing Rodriguez de Quijas);

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 160 (D.D.C. 2010) (three-judge court) 

(“As a lower court . . . we do not believe we possess authority to clarify or refine [Supreme Court 

precedent] . . . or to otherwise get ahead of the Supreme Court.”), aff’d mem., 130 S. Ct. 3544 

(2010). Thus, even if plaintiffs could support their assertion that the registration requirement 

they seek to avoid has become obsolete — and, for the reasons discussed below, they cannot — 

their motion would fail because this Court does not have the authority to overrule Buckley. 

B. The Registration Requirement for Multicandidate PACs Remains Closely 

Related to the Government’s Important Interests in Preventing Corruption 

and the Appearance of Corruption 

Plaintiffs contend that Buckley’s direct holding on the constitutionality of the registration 

requirement for multicandidate PACs is irrelevant because the requirement is a “now-obsolete” 

provision. (Pls.’ Inj. Mem. at 8.) Plaintiffs are wrong. Even if this Court were to accept 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 21 of 41
14 

plaintiffs’ request to disregard Buckley, the registration requirement would still easily survive 

intermediate scrutiny because it remains closely drawn to further the government’s important 

interest in preventing corruption and the appearance of corruption. 

1. Preventing Circumvention of Contribution Limits Furthers the 

Government’s Important Anti-Corruption Interest 

There appears to be no dispute that the government’s important interest in preventing 

actual and apparent corruption justifies laws that prevent circumvention of the limits on direct 

contributions to candidates. (See, e.g., Pls.’ Inj. Mem. at 10-11 (acknowledging that registration 

requirement “was a permissible means of preventing corruption in 1974” and arguing that 

subsequent amendments to FECA “effectively addressed potential circumvention issues”).) 

Indeed, the Supreme Court has repeatedly upheld such anti-circumvention laws as a 

constitutional means of furthering the government’s anti-corruption interest. Three Supreme 

Court decisions demonstrate precisely why plaintiffs’ challenge to the registration requirement 

for multicandidate PACs cannot be sustained. 

 First, in California Medical Association, the Court rejected a challenge to the $5,000 

ceiling on contributions to multicandidate PACs. The Court noted that Congress had enacted 

this limit shortly after Buckley to “restrict the opportunity to circumvent the . . . limits on 

contributions to a candidate,” and to limit the “adverse impact” of PACs that profess to be 

independent “but are actually a means for advancing a candidate’s campaign.” 453 U.S. at 198 

n.18 (quoting H.R. Rep. No. 94-1057, at 57-58 (1976) (Conf. Rep.)). The Court recognized that 

without the added provision contributors could “easily” evade the then-$1,000 limit on 

individual contributions to candidates by giving much larger amounts to multiple PACs, each of 

which could then make contributions of up to $5,000 to the donor’s preferred candidates. Id. 

at 198. The limit on contributions to multicandidate PACs was therefore constitutional because 

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15 

it “further[ed] the governmental interest in preventing the actual or apparent corruption of the 

political process” by “prevent[ing] circumvention of the very limitations on contributions that 

this Court upheld in Buckley.” Id. at 197-98. 

The Court next assessed — and again upheld — the constitutionality of an anticircumvention provision in FEC v. Colorado Republican Federal Campaign Committee, where 

“all Members of the Court agree[d] that circumvention is a valid theory of corruption.” 533 U.S. 

431, 456 (2001). The particular provision at issue in Colorado Republican limited how much a 

political party could spend in coordination with its own candidates; such coordinated 

expenditures have long been deemed equivalent to contributions to candidates. Id. at 438 (citing 

2 U.S.C. § 441a(a)(7)(B)(i)), 464 (“There is no significant functional difference between a 

party’s coordinated expenditure and a direct party contribution to the candidate . . . .”). Because 

political parties (like multicandidate PACs) can raise funds in larger increments than candidates, 

the Court found that parties’ spending on such coordinated expenditures was “tailor-made to 

undermine contribution limits.” Id. at 464 (noting that, without limits on coordinated 

expenditures, candidates would have incentive to encourage donors to give large amounts to 

parties to be spent on candidates’ behalf, rather than to solicit smaller contributions to 

candidates’ own campaigns). Accordingly, the Court upheld the constitutionality of FECA’s 

limit on coordinated expenditures as furthering the government’s anti-corruption interest by 

“minimiz[ing] circumvention of contribution limits.” Id. at 465. 

Third, in McConnell v. FEC, the Court assessed multiple provisions in the Bipartisan 

Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”), that Congress 

enacted to close loopholes in FECA’s prior statutory regime. The Court recognized that “[t]he 

less rigorous standard of review we have applied to contribution limits . . . provides Congress 

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with sufficient room to anticipate and respond to concerns about circumvention of regulations 

designed to protect the integrity of the political process.” 540 U.S. at 137 (emphasis added); see 

also id. at 144 (quoting Colorado Republican). Applying this “less rigorous” standard, the Court 

upheld a series of statutory provisions aimed at reducing the opportunity for circumvention of 

FECA’s contribution limits. See, e.g., id. at 133-34, 184-85 (upholding limit on certain 

contributions to state and local entities as preventing circumvention of ban on equivalent 

contributions to national political parties), 165-66 (same), 171-72 (“Given the delicate and 

interconnected regulatory scheme at issue here, any associational burdens imposed by the 

[contribution] restrictions are far outweighed by the need to prevent circumvention of the entire 

scheme.”).8

Each of the FECA provisions upheld by the Supreme Court in these decisions hindered 

contributors’ ability to give money to their chosen entities in the amounts of their liking; each 

was nonetheless constitutional because it furthered the government’s important anti-corruption 

interest by preventing circumvention of the limit on how much any one entity can give to any 

one candidate. “Having been taught the hard lesson of circumvention by the entire history of 

campaign finance regulation,” Congress has the power to “[p]revent[ ] corrupting activity from 

shifting” to take advantage of gaps in the statutory regime. See McConnell, 540 U.S. at 165-66. 

Stopping financial contributors from “eviscerating FECA clearly qualifies as an important 

governmental interest.” Id.; see McCutcheon, 2012 WL 4466482, at *4-*6. 

																																																							

8 McConnell struck down one anti-circumvention statute: a provision that prohibited 

minors from making any contributions, which the government had asserted was necessary to 

prevent parents from making contributions in the names of their children. 540 U.S. at 231-32. 

The flaw that the Court found in this provision was not a limit on Congress’s power to prevent 

circumvention; rather, there simply was no evidence before the Court that the purportedly 

problematic activity had ever occurred, and the government had not explained why a complete 

ban was necessary to address such hypothetical circumvention. See id. at 232 & n.3. 

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Plaintiffs incorrectly suggest (Pls.’ Inj. Mem. at 10) that the Supreme Court’s decision in 

Citizens United v. FEC, 130 S. Ct. 876 (2010), narrowed or eliminated the government’s interest 

in preventing circumvention of limits on direct candidate contributions. But Citizens United 

concerned the separate question of whether the government has a legitimate interest in 

prohibiting certain independent expenditures on campaign advocacy. Id. at 898-99. The Court 

made clear that it was not addressing the constitutionality of, or the government interest served 

by, limits on contributions to candidates, which were not at issue in that case. Id. at 909 

(“Citizens United has not made direct contributions to candidates, and it has not suggested that 

the Court should reconsider whether contribution limits should be subjected to rigorous First 

Amendment scrutiny.”). And all three circuit courts to have considered this issue — as well as a 

three-judge court in this District — have concluded that Citizens United “preserved” the 

government’s anti-corruption and anti-circumvention interests in regulating contributions. See

United States v. Danielczyk, 683 F.3d 611, 618 (4th Cir. 2012) (citing Ognibene v. Parkes, 671 

F.3d 174, 195 n.21 (2d Cir. 2011); Thalheimer v. City of San Diego, 645 F.3d 1109, 1125 (9th 

Cir. 2011)); McCutcheon, 2012 WL 4466482, at *4 & n.3. 

2. The Registration Requirement for Multicandidate PACs Continues to 

Limit Circumvention of the Personal Contribution Limits 

Requiring groups seeking the doubled contribution limit for multicandidate PACs to meet 

each of the statutory criteria in section 441a(a)(4) — including the requirement to be registered 

with the Commission for at least six months — ensures that such groups are legitimate advocacy 

entities rather than dummy organizations created during a campaign to facilitate circumvention 

of the personal limits. The subsequent developments on which plaintiffs rely do not undermine 

Buckley’s conclusion that this is a constitutionally valid anti-circumvention mechanism. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 25 of 41
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Specifically, plaintiffs argue that Buckley’s rationale was vitiated in 1976 when Congress 

enacted (1) a $5,000 limit on contributions to a PAC, and (2) “affiliation” rules that inhibit an

individual or group from creating multiple PACs to serve as conduits for their own excessive 

contributions. (Pls.’ Inj. Mem. at 2-3, 12-13.)9

 Plaintiffs claim that these amendments 

“alleviate[d] any potential for corruption or circumvention of the base contribution limits” (id. 

at 2 (emphasis added)), by making it “impossible” for a single contributor to create several PACs 

and route contributions through them to a candidate (id. at 13).10 

Plaintiffs simply ignore the fact that there are many ways contributors might seek to 

channel large contributions, above the personal limits, through PACs to the candidates they wish 

to support. See generally McConnell, 540 U.S. at 165-66 (noting that “entire history of 

campaign finance regulation” has “taught the hard lesson of circumvention”). In focusing 

exclusively on the use of PACs under the contributor’s control, plaintiffs fail to account for 

another, equally problematic type of circumvention: “a person who . . . contribute[s] massive 

amounts of money to a particular candidate through the use of unearmarked contributions to 

political committees likely to contribute to that candidate.”11 Buckley, 424 U.S. at 38 (emphasis 

																																																							

9

 Plaintiffs misstate in a number of ways the contribution limits that were in effect before 

these amendments. (Pls.’ Inj. Mem. at 13.) Most relevant to the instant motion, the aggregate 

limit on one contributor’s total contributions to all candidates, PACs, and political parties 

combined was $25,000 per two-year election cycle, not $25,000 per year. See Buckley, 424 U.S. 

at 38 (citing FECA Amendments of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 1263, 1273 

(then-codified at 18 U.S.C. § 608(b)(3)) (providing that contribution made in non-election year 

was deemed to be made in next election year for purposes of aggregate limit). 

10 As explained infra pp. 20-21, plaintiffs’ claim that a particular contribution limit (or anticircumvention provision) eliminates, or is intended to eliminate, “any potential for corruption or 

circumvention” fundamentally misunderstands the purpose and function of such laws. 

11 As Buckley held and McCutcheon recently reaffirmed, it is irrelevant for constitutional 

purposes whether plaintiffs themselves intend to engage in such circumvention. See 

McCutcheon, 2012 WL 4466482, at *7 (“The Buckley Court rejected challenges that the 

contribution limits are overbroad because most contributors are not seeking a quo for their quid 

. . . . [W]e join the Buckley Court in rejecting [that claim] . . . .”) (citing Buckley, 424 U.S. at 30). 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 26 of 41
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added). This remains a significant concern, as the 1976 affiliation provisions did not address 

such circumvention. Indeed, the internet makes identifying multiple, unaffiliated PACs “likely 

to contribute” to a given candidate a substantially easier endeavor today than it was in 1974.12 

The registration requirement, in conjunction with the other criteria for multicandidate PAC 

status, thus serves the important function of preventing the creation of fly-by-night PACs that 

publicize the list of candidates they intend to support, receive contributions from individuals who 

have already given the maximum to each candidate directly, and channel $5,000 contributions to 

the candidates. Requiring a new PAC to wait six months for the increased $5,000 contribution 

limit restricts both the temporal opportunity for and the financial effect of such circumvention. 

See Buckley, 424 U.S. at 35-36; Buckley 519 F.2d at 857-58.13

Finally, the registration requirement also promotes the government’s informational 

interest in publicly disclosing the sources of campaign funds by ensuring that groups seeking 

multicandidate PAC status file at least one disclosure report before becoming eligible to make 

candidate contributions up to double the personal limit. See 2 U.S.C. § 434(a)(4)(A) (requiring 

all independent PACs to file disclosure reports at least every six months); Buckley, 519 F.2d at 

858 (upholding registration requirement and observing that “[d]uring the waiting period, such 

political committees would be subject to the reporting and disclosures provisions of 2 U.S.C. 

																																																							

12 Many PACs simply list the candidates on their websites. E.g., Club for Growth PAC 

Endorsed Candidates, Club for Growth, http://www.clubforgrowth.org/endorsedcandidates/ (last 

visited Nov. 1, 2012); Naral Pro-Choice America PAC Announces New Endorsements, NARAL 

Pro-Choice America (Apr. 3, 2012), http://www.prochoiceamerica.org/elections/elections-pressreleases/2012/pr04032012_ pac-endorsements.html (identifying 44 federal candidates receiving 

contributions from PAC). 

13 Plaintiffs’ overbreadth argument (Pls.’ Inj. Mem. at 14-16) is premised on the same faulty 

assumption refuted above — i.e., that the registration requirement “[is] entirely useless in 

preventing corruption or circumvention of the base contribution limits.” (Id. at 15.) This claim 

therefore fails for the same reasons. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 27 of 41
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§ 434”); cf. Citizens United, 130 S. Ct. 915-16 (affirming government’s informational interest in 

disclosure of “who is speaking about a candidate shortly before an election”).

3. The Court Should Defer to Congress’s Judgment Regarding the 

Dollar Amounts of the Contribution Limits and the Length of the 

Registration Period for Multicandidate PACs 

Plaintiffs repeatedly assert that the $2,500 contribution limit to which TPLF is currently 

subject is lower than it should be to prevent corruption. According to plaintiffs, Congress’s 

enactment of a $5,000 limit for bona fide multicandidate PACs is equivalent to a congressional 

determination that $5,000 contributions are per se “non-corrupting.” (E.g., Pls.’ Inj. Mem. at 1, 

10, 17; see also id. at 15 (arguing that TPLF should “enjoy the same contribution limits . . . 

enjoyed by [multicandidate] political committees”).) But neither Congress nor the courts have 

ever found that any contribution limit eliminates corruption — or even that it is intended to do 

so. Rather, the limits strike a balance between enabling individuals and groups to influence 

elections and reducing the opportunities for actual and apparent corruption. See, e.g., Buckley, 

424 U.S. at 26 (“[T]he Act’s primary purpose [is] to limit the actuality and appearance of 

corruption . . . .”) (emphasis added). Thus, the fact that Congress has chosen to set the 

contribution limit for multicandidate PACs at $5,000 does not mean that a $5,000 contribution is 

inherently noncorrupting.14

The $5,000 limit represents a dollar amount that Congress determined to present a 

sufficiently low risk of corruption in the specific context of contributions from bona fide 

multicandidate PACs. Congress has determined that other types contributions present greater or 

																																																							

14 In claiming that TPLF is constitutionally entitled to “the same . . . levels of political 

participation[ ] enjoyed by other political committees,” plaintiffs cite Davis v. FEC, 554 U.S. 

724, 741 (2008). (Pls.’ Inj. Mem. at 15-16.) But that case directly refutes plaintiffs’ argument: 

Davis held that the government is prohibited from using contribution limits to “equaliz[e] . . . 

financial resources” in political campaigns. 554 U.S. at 738 (internal quotation marks omitted). 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 28 of 41
21 

lesser risks of corruption and has established contribution limits accordingly. See Inflation 

Index, 76 Fed. Reg. at 8369 (noting current contribution limits ranging from $2,000 to $30,800). 

It is not the courts’ role to parse legislative judgments about the exact level of each of these 

limits: “[I]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to 

probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.” Buckley, 424 U.S. at 30 

(internal quotation marks omitted); see also Randall v. Sorrell, 548 U.S. 230, 248 (2006) 

(plurality); Colo. Republican, 533 U.S. at 446 (“[T]he dollar amount of the limit need not be 

‘fine tun[ed].’”) (quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-88 (2000)); 

McCutcheon, 2012 WL 4466482, at *6. Because there is no question — and plaintiffs do not 

disagree — that placing a limit on contributions to candidates by persons other than 

multicandidate PACs is constitutional, there is no basis in the Supreme Court’s First Amendment 

jurisprudence for challenging whether that optimal corruption-reducing amount of that limit is 

$2,500 or $5,000.15

To the extent plaintiffs challenge the length of the registration period (e.g., Pls.’ Inj. 

Mem. at 17-18), the Court should similarly defer to Congress’s judgment — which both the 

Supreme Court and D.C. Circuit have affirmed — regarding how long a PAC must exist to 

demonstrate its multicandidate bona fides. Just as courts are ill-suited to parse legislative 

judgments about the appropriate dollar amounts for contribution limits, they are likewise not in a 

position to determine “with any degree of exactitude the precise restriction necessary to carry out 

the statute’s legitimate objectives. In practice, the legislature is better equipped to make such 

																																																							

15 Plaintiffs’ conclusory assertion that the registration requirement “prevents candidates 

from gathering the resources necessary to be heard during the election cycle” (Pls.’ Inj. Mem. 

at 6) is flatly contrary to binding precedent. See Buckley, 424 U.S. at 22 (“[T]he Act’s 

contribution limitations permit associations and candidates to aggregate large sums of money to 

promote effective advocacy.”). Plaintiffs also provide no factual evidence that remotely suggests 

that the registration period renders candidates unable “to be heard.” 

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22 

empirical judgments.” Randall, 548 U.S. at 248. Because the registration period furthers the 

government’s important anti-circumvention interest, the First Amendment does not require that 

period to be six months, or twelve months, or some shorter period that plaintiffs would prefer. 

Cf. Rosario v. Rockefeller, 410 U.S. 752, 762 (1973) (upholding state law requiring voters to be 

registered as member of political party for at least 30 days to be eligible to vote in primary: 

Registration-duration requirement “did not prohibit the petitioners from voting . . . or from 

associating with the political party of their choice. It merely imposed a legitimate time limitation 

on their enrollment, which they chose to disregard.”).

C. Plaintiffs Fail to Identify Any Authority That Supersedes Buckley’s Direct 

Holding on the Sole Issue in This Case 

Lacking any legal basis for their claims, plaintiffs rely on unsupported assertions and outof-context snippets from inapposite cases. First, plaintiffs repeatedly exaggerate and 

misrepresent the nature of the statutory provision at issue here, asserting that it “prevent[s] them 

from exercising their speech and association rights” and “depriv[es plaintiffs and their 

contributors of] their right to association and speech.” (Pls.’ Inj. Mem. at 2, 7.) But the 

multicandidate PAC provision is not an expenditure limit, see supra pp. 2-4, and it does not 

“undermin[e] freedom of association.” Buckley, 424 U.S. at 35. Indeed, TPLF has already

associated itself with plaintiffs Raese and Bielat (and at least nine other federal candidates) by 

engaging in the “symbolic act” of contributing to them. See id. at 21. Although TPLF now 

seeks to increase the size of those contributions beyond the applicable limit, the size of a 

contribution is largely irrelevant for constitutional purposes. See id.; see also Cal. Med., 453 

U.S. at 196 (referring to contributions as “speech by proxy”). Moreover, TPLF remains “free[ ] 

to discuss candidates and issues” and engage in independent “efforts on behalf of candidates,” 

Buckley, 424 U.S. at 21-22, such as continuing to spend tens of thousands of dollars directly 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 30 of 41
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advocating for the election and defeat of candidates in this year’s election, see supra p. 6. There 

simply is no deprivation of speech here. 

Second, plaintiffs argue that the registration requirement is a prohibited “‘prophylaxisupon-prophylaxis.’” (Pls.’ Mem at 3, 14 (alteration omitted) (quoting FEC v. Wis. Right to Life, 

Inc. (“WRTL”), 551 U.S. 449, 479 (2007) (controlling op. of Roberts, C.J.)).) This quoted 

snippet misleadingly omits the rest of the Chief Justice’s statement, which was that a 

“prophylaxis-on-prophylaxis approach to regulating expression is not consistent with strict 

scrutiny.” WRTL, 551 U.S. at 479 (emphases added). As that full context indicates, WRTL

addressed a ban on certain independent campaign speech, not a contribution limit or a 

qualification for a contribution limit. See id. (finding that communications at issue could not be 

“equate[d] . . . with contributions”). For that reason, the controlling opinion in WRTL applied 

strict scrutiny — something the Supreme Court has never done when considering a contribution 

limit — and specifically confined its mention of a prohibited “prophylaxis” to that standard. 

Plaintiffs’ characterization of the registration requirement as a “prophylaxis-uponprophylaxis” also fails because it is premised on yet another untenable assertion: that the 

registration requirement is merely a prophylactic measure to prevent evasion of FECA’s 

contribution limits and affiliation rules, which themselves “prevent[ ] wealthy contributors from 

funneling . . . candidate contributions above the base limits.” (Pls.’ Inj. Mem. at 14.) As 

discussed supra pp. 17-19, plaintiffs ignore the fact that individuals remain free to contribute to 

various unaffiliated PACs that may then make contributions to those individuals’ chosen 

candidates. So the registration requirement is not a prophylactic rule intended to prevent 

circumvention of the affiliation provisions; the registration requirement is (with the rest of the 

multicandidate PAC criteria) a standalone anti-circumvention measure. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 31 of 41
24 

Finally, despite plaintiffs’ repeated incantation of the phrase, the registration requirement 

for multicandidate PAC status does not remotely resemble a “prior restraint” on speech. (Pls.’ 

Inj. Mem. at 3, 8, 16-18.) As plaintiffs correctly note, prior restraints are “laws requiring 

permits, licenses, waiting periods or other official permission to speak” and “barring or 

discouraging speech before its utterance.” (Pls.’ Inj. Mem. at 16 (emphasis added).) On its face, 

a qualification for a heightened limit on contributions to candidates to whom TPLF has already 

contributed (or to whom TPLF can contribute $2,500) is not a “bar” on speech. The cases 

plaintiffs cite in support of their novel argument make this distinction clear. For example, 

plaintiffs rely (Pls.’ Inj. Mem. at 16) on Thomas v. Collins, which dealt with a provision that 

prohibited a labor-union organizer from making certain public statements without first obtaining 

a government license. 323 U.S. 516, 518-23 (1945); see also id. at 539 (“[A] requirement of 

registration in order to make a public speech would seem generally incompatible with an 

exercise of the rights of free speech and assembly.”) (emphasis added). They also cite 

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, which addressed a 

village ordinance criminalizing any door-to-door canvassing unless the canvasser first obtained a 

permit. See 536 U.S. 150, 153 (2002). In stark contrast to these provisions, neither the personal 

contribution limit nor the criteria that must be satisfied for multicandidate-PAC status bar anyone 

from the engaging in the symbolic speech-act of making a political contribution. Indeed, TPLF 

has already made contributions to many candidates, and it has spent tens of thousands of 

additional dollars financing speech to advocate on those candidates’ behalf.16 Whether TPLF is 

																																																							

16 The Court in Thomas itself distinguished the facts of that case from a hypothetical case in 

which “the speaker goes further . . . and engages in conduct which amounts to more than the 

right of free discussion comprehends, as when he undertakes the collection of funds or securing 

subscriptions.” 323 U.S. at 540 (emphasis added). In the latter circumstances, the Court 

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25 

subject to the default personal contribution limit or the heightened limit for multicandidate 

PACs, FECA imposes “little direct restraint on [the contributor’s] political communication, for it 

permits the symbolic expression of support evidenced by a contribution but does not in any way 

infringe the contributor’s freedom to discuss candidates and issues.” Buckley, 424 U.S. at 21. 

* * * 

 Plaintiffs’ constitutional arguments cannot be sustained because they are foreclosed by 

binding Supreme Court and D.C. Circuit case law. Accordingly, plaintiffs cannot meet their 

heavy burden of demonstrating that they are likely to succeed on the merits of their claims. 

III. PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO 

SUFFER IRREPARABLE HARM 

In addition to showing probable success on the merits of their case, plaintiffs must also 

demonstrate a likelihood — not merely a possibility — that they will suffer irreparable harm 

without injunctive relief. Winter, 555 U.S. at 22. “[T]he injury must be . . . actual and not 

theoretical . . . [and] of such imminence that there is a clear and present need for equitable relief. 

. . .” Wis. Gas. Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (internal citations and 

quotation marks omitted). To meet the imminent harm requirement, “[a] litigant must do more 

than merely allege the violation of First Amendment rights.” Wagner v. Taylor, 836 F.2d 566, 

576 n.76 (D.C. Cir. 1987) (emphasis in original) (discussing Elrod v. Burns, 427 U.S. 347 

(1976)). Plaintiffs must demonstrate that their “First Amendment interests are either threatened 

or in fact being impaired at the time relief is sought.” NTEU v. United States, 927 F.2d 1253, 

1254-55 (D.C. Cir. 1991) (alterations omitted) (quoting Wagner, 836 F.2d at 576 n.76). If 

plaintiffs make “no showing of irreparable injury, ‘that alone is sufficient’ for a district court to 

																																																																																																																																																																																		

explained, a speaker “enters a realm where a reasonable registration or identification requirement 

may be imposed.” Id. 

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26 

refuse to grant preliminary injunctive relief.” Hicks v. Bush, 397 F. Supp. 2d 36, 40 (D.D.C. 

2005) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 

1995)). 

 Plaintiffs claim they face irreparable First Amendment harm from complying with the 

registration period, 2 U.S.C. § 441a(a)(4), because it prevents TPLF from contributing an 

additional $2,500 each to Raese and Bielat before the November 6, 2012 general election. (Pls.’ 

Inj. Mem. at 6-7, 18-19.) But for four reasons, plaintiffs’ allegations are insufficient. 

First, plaintiffs’ alleged irreparable harm was caused not by FECA or the Commission, 

but by TPLF’s choice to register as a political committee fewer than six months before the 2012 

general election. See Rosario, 410 U.S. at 758 (holding that voters could have registered early 

enough to participate in primary election “but chose not to. Hence, . . . their plight . . . was not 

caused by [the registration requirement], but by their own failure to take timely steps to effect 

their enrollment.”). TPLF was free to register with the Commission early enough to achieve 

multicandidate PAC status prior to the election. See 11 C.F.R. § 104.1(b) (allowing committees 

to register voluntarily before reaching the $1,000 expenditure or contribution threshold). 

Nothing in the challenged provisions, or FECA generally, required TPLF to choose to register on 

May 9, 2012, a date that would cause the six-month period to expire three days after the general 

election. See Buckley, 519 F.2d at 857 (“Clearly, [the six-month period] . . . does not prevent 

individuals from drawing together to act as a political committee at any time.”). In fact, TPLF’s 

treasurer signed and dated TPLF’s registration form on May 2, 2012.17 TPLF could have 

immediately sent that form to the Commission by overnight delivery to ensure registration on 

May 3, which would have allowed TPLF to become a multicandidate PAC on November 3 — 

																																																							

17 See TPLF, Statement of Organization at 1 (rec’d May 9, 2012), http://images.nictusa.com 

/pdf/458/12030804458/12030804458.pdf. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 34 of 41
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three days before the general election. Instead, TPLF waited until May 4 to send its form to the 

Commission by first-class mail, resulting in its May 9 registration date.18 TPLF is therefore 

responsible for plaintiffs’ alleged harm, and a “preliminary injunction movant does not satisfy 

the irreparable harm criterion when the alleged harm is self-inflicted.” Barton v. District of 

Columbia, 131 F. Supp. 2d 236, 247 (D.D.C. 2001) (internal quotation marks omitted). 

Second, plaintiffs’ claimed need for “emergency” relief is undermined by their significant 

delay in bringing this lawsuit. Once TPLF registered as a political committee on May 9, 2012, it 

allowed more than five months of the six-month period to elapse before requesting a preliminary 

injunction on October 18 — just 19 days before the general election.19 Now plaintiffs claim they 

need an “immediate ruling from this court.” (Pls.’ Inj. Mem. at 7; see also Compl. ¶ 60.) But 

plaintiffs cannot use their own delay to manufacture urgency that would justify preliminary 

injunctive relief — especially just before a federal election. See Tenacre Foundation v. INS, 78 

F.3d 693, 695 n.2 (D.C. Cir. 1996) (finding that seven-month delay before filing suit 

“undermines any assertions that [plaintiff] will suffer irreparable harm if the Court does not grant 

preliminary injunctive relief”) (internal quotation marks omitted); Respect Maine PAC v. McKee, 

622 F.3d 13, 16 (1st Cir. 2010) (affirming district court’s denial of preliminary injunction where 

“appellants, well aware of the requirements of the election laws, chose not to bring this suit until 

August 5, 2010, shortly before the November 2 elections”); Hispanic Leadership Fund, Inc. v. 

Walsh, No. 1:12-cv-1337, slip op. at 27 (N.D.N.Y. Oct. 23, 2012) (“[A]lthough denying an 

injunction now may deprive Plaintiffs a remedy for the upcoming November 6, 2012 election, 

																																																							

18 See TPLF, Statement of Organization at 6. 

19 Indeed, plaintiffs delayed so long in asking for a preliminary injunction that this Court’s 

local rules would permit an expedited preliminary injunction hearing to take place two days after

the general election. See LCvR 65.1(d) (allowing 21 days for preliminary injunction hearing to 

be held when need for expedition is demonstrated). 

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Plaintiffs’ decision to wait until just two months before the election to challenge the provisions 

of the Election Law that have been in place for decades undermines the alleged seriousness of 

the harm that they purportedly stand to suffer.”); Worley v. Roberts, 749 F. Supp. 2d 1321, 1323-

24 (N.D. Fla. 2010) (denying a September 28, 2010, motion to preliminarily enjoin Florida’s 

campaign finance statutes where “there have been no changes in the relevant facts or law that 

explain the last-minute filing of this lawsuit. This is, instead, an emergency entirely of the 

plaintiffs’ own making.”). 

There is no justification for plaintiffs’ delay. And they do not even attempt to provide 

one. Under plaintiffs’ theory, the registration period has been unconstitutional since 1976, when 

Congress amended FECA with additional anti-circumvention provisions. (See, e.g., Pls.’ Inj. 

Mem. at 7-8, 11-14.) Thus, plaintiffs could have sought an injunction immediately after TPLF 

registered as a political committee on May 9, 2012. (Indeed, Raese alleges that he has desired to 

accept a $5,000 contribution from TPLF since before his primary election in May 2012. (Compl. 

¶ 61.)) Instead, plaintiffs waited more than four months to file — not a lawsuit — but an 

unnecessary and futile advisory opinion request. That request asked the Commission to overrule 

Buckley and declare the six-month period unconstitutional — which the Commission clearly 

lacks the authority to do. Johnson v. Robison, 415 U.S. 361, 368 (1974) (noting that adjudication 

of constitutionality is generally outside administrative agency’s authority); Robertson v. FEC, 45 

F.3d 486, 489 (D.C. Cir. 1995) (“It was hardly open to the Commission, an administrative 

agency, to entertain a claim that the statute which created it was in some respect 

unconstitutional.”); Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 1987) (noting the 

“well known principle that regulatory agencies are not free to declare an act of Congress 

unconstitutional”). FECA empowers the Commission to respond to an advisory opinion “request 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 36 of 41
29 

concerning the application of th[e] Act,” 2 U.S.C. § 437f(a)(1) (emphasis added), but plaintiffs’ 

request did not dispute that the six-month period and $2,500 contribution limit applied to TPLF 

(see Compl. Exh. A). The Commission therefore predictably and unanimously rejected 

plaintiffs’ request by a 6-0 vote on October 10, 2012 (Compl. Exh. B). Plaintiffs filed this suit 

eight days later. Given the unwarranted detour plaintiffs took through the advisory-opinion 

process before suing, their claim to need “immediate ruling” from the Court is a purported 

problem of their own making. 

Third, plaintiffs do not face any actual irreparable harm to their First Amendment rights. 

Wagner, 836 F.2d at 576 n.76 (“[A] litigant must do more than merely allege the violation of 

First Amendment rights.”). Plaintiffs allege that the six-month period “will prevent Plaintiffs 

from exercising their rights to speech and association during the period when those rights are 

most urgently protected — the election season.” (Pls.’ Inj. Mem. at 8 (emphasis added); see 

also, e.g., id. at 4 (claiming Raese and Bielat “are prohibited from associating” (emphasis 

added)); id. at 7 (claiming plaintiffs “will be deprived of their ability to freely associate” 

(emphasis added)).) But as discussed previously, no prohibition on speech or association is at 

issue in this case. See supra pp. 22-23. And Buckley’s observation that contribution limits do 

not inhibit a contributor from conducting other political activity, such as “discuss[ing] candidates 

and issues” or engaging in independent “efforts on behalf of candidates,” 424 U.S. at 21-22, is 

particularly applicable to TPLF, which has made $73,500 in independent expenditures expressly 

advocating for or against federal candidates during this election cycle. 

Fourth, even if TPLF did have a First Amendment right to make a $5,000 contribution as 

opposed to a $2,500 contribution, plaintiffs have still failed to show they are likely to suffer 

imminent harm. TPLF may be able to make its desired additional $2,500 contributions to both 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 37 of 41
30 

Raese and Bielat for the November 6 general election when it becomes a multicandidate PAC on 

November 9. The Commission’s regulations permit a federal candidate to accept post-election 

contributions to pay down net debt the candidate’s campaign incurred during the election. See

11 C.F.R. § 110.2(b)(3). As a result, plaintiffs incorrectly assume that because “the six-month 

waiting period will run for TPLF mere days after the election,” plaintiffs will be “forever

depriv[ed] . . . [of] their rights to association and speech.” (Pls.’ Inj. Mem. at 17 (emphasis 

added).) This is not necessarily so, and the complaint contains no allegations stating that Raese 

and Bielat will be ineligible to accept post-election contributions from TPLF under 11 C.F.R. 

§ 110.2(b)(3); see also Raese for Senate, FEC Form 3 (Oct. 25, 2012), http://images.nictusa.com/ 

pdf/451/12021001451/12021001451.pdf (disclosing that Raese’s campaign has approximately 

$125,000 cash-on-hand and owes over $2.2 million in debt). 

In sum, plaintiffs have failed to demonstrate that they face any irreparable harm. 

IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH 

AGAINST GRANTING A PRELIMINARY INJUNCTION 

 The November 6 general election is just five days away. The balance of equities and the 

public interest weigh heavily in favor of this Court preserving the status quo for this short 

timeframe and denying plaintiffs’ request for extraordinary injunctive relief. 

Entering a preliminary injunction here would undermine the ability of federal candidates, 

political committees, and the voting public to rely upon the uniform application of longstanding 

and important campaign-finance provisions on the eve of the election. For 38 years, political 

committees have been required to wait six months to take advantage of an increased contribution 

limit to prevent circumvention of the law. Political actors and the public reasonably expect that 

these provisions will continue to be uniformly enforced. And “given the imminent nature of the 

election, . . . it [is] important not to disturb long-established expectations that might have 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 38 of 41
31 

unintended consequences,” especially because, “once the election is over, it cannot be reversed, 

and any consequences flowing from the disruption in equilibrium in the campaign contribution 

laws would . . . be irreversible.” Lair v. Bullock, --- F.3d ---, 2012 WL 4883247, at *13-*14 (9th 

Cir. Oct. 16, 2012) (staying district court’s permanent injunction against Montana’s contribution 

limits) (citation omitted);20 see also Hispanic Leadership Fund, slip op. at 28 (“It is clear that the 

balance of equities favors denying the preliminary injunction because it would disrupt the 

justifiable expectations of the individuals and entities that have and continue to comply with the 

challenged provisions of the Election Law.”). 

In addition, plaintiffs are asking this Court to enjoin federal statutes that the Supreme 

Court has explicitly upheld as constitutional. Thus, interference with the public interest “is 

inherent in the injunction,” since “the public interest is already established by the Court’s 

holding and by Congress’s enactment.” See Christian Civic League of Me., Inc. v. FEC, 

433 F. Supp. 2d 81, 90 (D.D.C. 2006) (internal quotation marks omitted); Bowen v. Kendrick, 

483 U.S. 1304 (1987) (Rehnquist, C.J., in chambers) (“The presumption of constitutionality 

which attaches to every Act of Congress” favors the government in the balance of the equities) 

(internal quotation marks omitted). 

																																																							

20 Indeed, the Ninth Circuit’s warning proved prophetic. Two days after the ruling, 

Democratic gubernatorial candidate Steve Bullock asked a Montana state court to order his 

opponent, Republican Rick Hill, to return a $500,000 contribution Hill received from the 

Republican Party during the six-day window in which the applicable $22,600 contribution limit 

was enjoined. See Charles S. Johnson, Bullock Wants Court to Find That Hill Broke Donation 

Law, Independent Record (Oct. 18 2012), http://helenair.com/news/local/56db04b8-1973-11e2-

9cb6-001a4bcf887a.html. On October 24, just 13 days before the election, the Montana court 

ordered Hill to stop spending the $500,000 and to cancel any advertisements that had already 

been purchased with the donation while the court reviewed the legality of that contribution — 

which was made possible by the federal district court’s injunction. See Hill Ordered to Stop 

Spending $500,000, Daily Inter Lake.com (Oct. 24, 2012), http://www.dailyinterlake.com/news/ 

local_montana/article_6f698036-1e55-11e2-be3e-0019bb2963f4.html. 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 39 of 41
32 

Finally, given plaintiffs’ more than five-month delay in bringing this case, the balance of 

equities weighs against an injunction. See Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 

872 F.2d 75, 80 (4th Cir. 1989) (“[Plaintiffs’] delay is . . . quite relevant to balancing the parties’ 

potential harms. Since an application for preliminary injunction is based upon an urgent need for 

the protection of a Plaintiff’s rights, a long delay in seeking relief indicates that speedy action is 

not required.”) (internal quotation marks and alteration omitted); Hispanic Leadership Fund, slip 

op. at 28 (“Plaintiffs waited until the eleventh hour . . . [and t]his delay, which essentially 

precludes meaningful appellate review, greatly supports Defendants[’] position that the balance 

of the equities and public interest favor denying Plaintiffs’ motion for preliminary injunctive 

relief.”). The public’s interest in the uniform application of laws that the Supreme Court has 

upheld to limit corruption far outweigh any interest arising from plaintiffs’ unexplained decision 

to bring this suit on the eve of the election. 

CONCLUSION 

For all the foregoing reasons, plaintiffs’ motion for a preliminary injunction should be 

denied. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

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

Associate General Counsel 

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

Acting Assistant General Counsel 

 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 40 of 41
33 

/s/ Kevin P. Hancock 

Erin Chlopak (D.C. Bar No. 496370) 

echlopak@fec.gov 

Kevin P. Hancock 

khancock@fec.gov 

Attorneys 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

November 1, 2012 (202) 694-1650 

Case 1:12-cv-01707-RWR Document 8 Filed 11/01/12 Page 41 of 41