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’ BRIEF IN RESPONSE TO THE 

FEC’S PROPOSED FINDINGS OF FACT 

_______________________________________________________

Case 1:08-cv-00248-JR Document 54 Filed 11/21/2008 Page 1 of 154
TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 

I. GENERAL OBJECTIONS TO THE FEC’S PROPOSED FACTUAL 

FINDINGS.............................................................................................................10 

A. Most of the FEC’s Proposed Findings of Fact in Sections IV.A-H 

 (pp. 18-99) and IV.I.3. (pp. 108-09) Are Irrelevant Because the 

 FEC Is Attempting to Use Them to Contradict Holdings 

 and Legal Principles That Have Formed the Bedrock of Campaign 

 Finance Law for Over Thirty Years...........................................................10 

1. The Degree of Independent Expenditures’ “Effectiveness” Is 

Irrelevant........................................................................................15 

2. Whether Independent Expenditures may “Benefit” Candidates 

 and Cause them to Feel “Gratitude” is Irrelevant ..........................17 

B. Most of the FEC’s Proposed Findings of Fact Are Simply 

 Quotes, Baseless Assertions, and Broad Generalizations Dressed 

 Up As Facts................................................................................................26 

II. RESPONSES AND OBJECTIONS TO SPECIFIC FACTUAL CLAIMS IN THE 

FEC’S BRIEF ........................................................................................................34 

A. “I. The Parties” 

 (¶¶ 1-19).....................................................................................................35 

B. “II. SpeechNow.org Was Formed to Serve as a 

‘Test Case’” (¶¶ 20-40)..............................................................................35 

1. General Objections.........................................................................35 

2. Facts Plaintiffs Admit in Section II ...............................................37 

3. Specific Responses to Remaining Proposed Findings 

of Fact in Section II........................................................................37 

C. Plaintiffs’ Responses to the FEC’s Section “III. SpeechNow’s 

Advertisements Constitute the Speech of David Keating – 

Who Is Solely Responsible for Its Activities, 

and Not the Speech of Its Contributors.” (¶¶ 41-77) .................................40 

1. General Objections.........................................................................40 

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2. Facts Plaintiffs Admit in Section III ..............................................42 

3. Specific Responses to Remaining Proposed Findings of Fact in 

Section III.......................................................................................42 

D. “IV. Unlimited Contributions To an Association Devoted to 

 Independent Candidate Expenditures Pose A Danger 

 of Corruption or its Appearance”...............................................................46 

“IV.A. Independent Expenditures Are Effective in 

Determining the Outcome of Elections and Have 

Gotten More Effective Over Time, Even Though They Are Not 

Coordinated with a Campaign.” (¶¶ 78-131)............................................46

1. General Objections.........................................................................46 

2. Specific Responses to Proposed Findings of Fact in 

Section IV.A ..................................................................................47 

“1. Independent Expenditures Can Have a Significant 

Impact on Elections Generally” ....................................................47 

“2. There Are Many Specific Examples of Independent 

Expenditures Having a Significant Impact on an 

Election” (¶¶ 96-115)”...................................................................51 

“3. Independent Expenditures Have Become More Effective over 

Time” (¶¶ 116-21)..........................................................................57

“4. Technical Coordination with a Candidate Is 

Unnecessary for an Independent Expenditure to 

Effectively Supplement a Campaign” (¶¶ 122-131) ......................58 

“IV.B. Independent Expenditures Lead to Gratitude, Indebtedness, 

and Access, Pose a Danger of Quid Pro Quo Arrangements, 

and Create the Appearance of Corruption.” (¶¶ 132-184) ........................61

1. General Objections.........................................................................61 

2. Specific Responses to Proposed Findings of Fact in 

Section IV.B...................................................................................64 

“1. Large Direct Contributions Raise the Danger of 

Quid Pro Quo Arrangements, Undue Influence, and the 

Appearance of Corruption”(¶¶ 132-36) .........................................64 

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“2. Donors Are Also Willing to Make Large Indirect 

Contributions to Secure Access and Influence 

Policymaking.” (¶¶ 137-139)........................................................66 

“3. The History of Soft Money Contributions to 

Party Soft Money Committees Illustrates that 

Donors Are Willing to Invest Their Contributions 

Indirectly and Officeholders Seek Such 

Contributions.” (¶¶ 140-149) ........................................................67 

“4. Donors Seeking Access and Influence Give to Non-Party 

Organizations As Well.” (¶¶ 150-162) .........................................69 

“5. Contributions to Groups that Make Independent 

Expenditures Can Lead to Corruption in the Same 

Way as Direct and Other Kinds of Indirect 

Contributions.” (¶¶163-167) .........................................................72 

“6. Unregulated Contributions to Groups that Make 

Independent Expenditures in California Illustrate 

the Potential for Corruption and Circumvention.” 

(¶¶ 168-180)...................................................................................73 

FEC’s Reliance on the FPPC “Gorilla” Report .............................74 

“7. People Have Established Independent Groups Devoted to 

Electing or Defeating a Single Candidate.” (¶¶ 181-184) ............81 

“IV.C. Candidates Are Usually Aware of the Identity of 

Individuals Making Large Contributions to Fund Independent 

Expenditures.” (¶¶ 185-202) .....................................................................81 

 1. General Objections......................................................81 

2. Specific Responses to Proposed Findings of Fact in 

Section IV.C..............................................................82 

“IV.D. Candidates Feel Indebted, Grateful, or Are Inappropriately 

Disposed to Favor Individuals Who Paid for Such Ads or Independent 

Expenditures.” (¶¶ 203-247)...................................................85 

 1. General Objections.....................................................85 

2. Specific Responses to Proposed Findings of 

Fact in Section IV.D....................................................86 

“1. Unlimited Contributions to Independent Expenditure Groups 

Are More Likely to Lead to Corruption than Direct Candidate 

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Contributions Under the Legal Limits” (¶¶ 221-

225).......................................................................90 

“2. Ad Campaigns Run By Interest Groups Allow Candidates to 

Conserve Resources and Keep Their Hands Clean” (¶¶ 226-

240)........................................................................91 

“3. The Likelihood of Candidate Indebtedness Increases When the 

Amounts of Independent Expenditures Are High Relative to 

Candidate Spending” (¶¶ 241-247)..................................95 

“IV. E. Large Donations Are a Tool Used By Donors Seeking Access and 

Influence Over Candidates.” (¶¶ 248-266)..................................96 

1. General Objections.......................................................96 

2. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV.E..............................................................97 

“IV. F. If Contributions to Groups Making Independent Expenditures 

Were No Longer Limited, Influence-Seeking Donors Would Quickly Give 

Massive Amounts.” (¶¶ 267-274).............................................98 

1. General Objections......................................................98 

2. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV.F. ............................................................99 

“IV. G. Financers of Independent Expenditures Are 

Given Preferential Access to, and Have Undue Influence Over, 

Officeholders.” (¶¶ 275-286)...................................................100 

1. General Objections....................................................100 

2. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV.G. ..........................................................100 

“IV. H. Large Contributions for Independent Expenditures 

Can Influence Legislative Votes or Other Official 

Actions, and Thereby Pose a Danger of Actual Quid Pro Quo 

Arrangements.” (¶¶ 287-314).................................................104 

1. General Objections...................................................104 

2. Findings of Fact to Which Plaintiffs Do Not Object In Section 

IV.H.....................................................................105 

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3. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV. H.........................................................105 

“1. A Group with an Interest in Gaming Issues Attempted to Bribe 

Former Congressman Snowbarger by Signaling That They Would 

Conduct an Independent Spending Campaign on His Behalf”.... 

...........................................................................105 

“2. Former Wisconsin Senate Majority Leader Chvala Extorted 

Funds In Return For Legislative Action, Including Funds for 

Purportedly Independent Campaign Spending.” (¶¶ 298-308)...... 

...........................................................................109 

“3. Additional Incidents Further Illustrate the Danger of Large 

Contributions for Independent Spending Influencing Official 

Action or Leading to Quid Pro Quo.” (¶¶ 309-314).............113 

“IV.I. Large Contributions for Independent Expenditures Create an 

Appearance of Corruption.” (¶¶ 315-

334)..............................................................................117 

1. General Objections...................................................117 

2. Findings of Fact to Which Plaintiffs Do Not Object In 

Section IV.I............................................................120 

3. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV.I.............................................................121 

“1. A Coal Company Executive’s Contributions for Independent 

Expenditures In a 2004 West Virginia Supreme Court Race 

Illustrate the Appearance of Corruption. (¶¶ 317-332)..........122 

“2. The Public Views Large Election-Related Contributions As 

Corrupting, Regardless of the Recipient. (¶¶ 333-341).........125 

“3. Coordination is Inherently Very Difficult to Police and 

Candidate Campaigns are Often Involved With ‘Independent’ 

Spending Below the Level of Involvement That Constitutes 

“Coordination’ Within the Meaning of the Law. (¶¶ 342-

344).....................................................................128 

“IV.J. Money Raised Through Associations with Many Protections of the 

Corporate Form Pose a Danger of ‘Corrosive and Distorting Effects of 

Immense Aggregations of Wealth.’” (¶¶ 345-349).......................129 

1. General Objections.......................................................................129 

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2. Specific Responses to Remaining Proposed Findings of Fact in 

Section IV.J..................................................................................130 

“IV.K. Independent Expenditures Through Groups are Less Transparent 

to the Public than Independent Expenditures Made by Individuals.” (¶¶ 

350-360)...................................................................................................131 

“IV.L. The Disclosure of All Receipts and Expenditures 

Ensures that Vital Information About Who Is 

Supporting Candidates is Made Publicly Available.” (¶¶ 361-375)........133 

E. “V. Robust Fundraising Has Occurred Within Federal Contribution 

Limits and Large Sums Can Be Raised For Independent 

Expenditures Through the Aggregation of Money From a 

Number of Donors (¶¶ 376-437)..........................................................................137 

1. General Objections.......................................................................137 

2. Facts Plaintiffs Admit in Section V .............................................139 

3. Specific Responses to the Remaining Proposed 

Finding of Fact in Section V........................................................139 

F. “VI. Political Committee Reporting Requirements Do Not Threaten 

The Survival of SpeechNow or Other Campaign Groups.” (¶¶ 438-452) ...........144 

CONCLUSION............................................................................................................................146 

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Pursuant to the parties’ agreed schedule and this Court’s orders of July 29, 2008, and 

October 17, 2008, Plaintiffs respectfully submit this response to the FEC’s Proposed Findings of 

Fact. 

INTRODUCTION 

 This is an action that challenges the application of contribution limits and the 

administrative, organizational, and continuous reporting requirements for PACs to the Plaintiffs, 

SpeechNow.org and several of its donors. SpeechNow.org is an independent group of citizens 

who want to band together and pool their money to spend on express advocacy for and against 

candidates. Plaintiffs’ claims in this case are based on several fundamental principles in 

campaign finance law, among them that independent expenditures—that is, expenditures for 

express advocacy that are not coordinated with a candidate and are financed only by 

individuals—are core political speech that cannot be limited by the government; that individuals 

have a First Amendment right to band together and pool their money to spend on their own 

speech; and that their expenditures create no concerns about corruption as long as they are not 

coordinated with candidates and the group makes no contributions to candidates. 

In their proposed findings of fact, Plaintiffs submitted a relatively brief statement of 

proposed facts that demonstrate that SpeechNow.org operates consistently with these basic 

principles and that the campaign finance laws that apply to them do not. Plaintiffs’ facts thus 

cover what SpeechNow.org is and how it is organized and will operate, the FEC’s positions 

concerning SpeechNow.org, the impact of the campaign finance laws on SpeechNow.org, and 

the like. Plaintiffs kept their proposed findings of fact focused and narrow and stated actual 

facts, rather than legal conclusions. Wherever possible, Plaintiffs separated proposed findings as 

to which there would likely be no objection from those to which objections were more likely in 

Case 1:08-cv-00248-JR Document 54 Filed 11/21/2008 Page 8 of 154
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order to make it easier for the FEC to respond and for the Court to discern where the parties 

agreed and where they disagreed. Plaintiffs relied on admissible evidence, rather than quotes 

from articles, the internet, or testimony in other cases. Plaintiffs did not view these factual 

submissions as an opportunity to make extended arguments about the parties’ legal claims or to 

attempt to pass off legal conclusions as facts. 

The FEC has taken a radically different approach, not only in its presentation of its 

proposed facts and the evidence on which it relies, but in the alleged facts that it chose to 

include. The FEC’s brief is 136 pages long and includes 452 separate proposed findings of 

“fact” along with over 2,500 pages of exhibits. The vast majority of the FEC’s proposed 

findings of fact are baseless assertions, legal conclusions, broad statements of opinion, and 

random quotes from academic articles and the popular press. Where the FEC manages to include 

actual facts, they are generally so argumentative as to make it difficult, if not impossible, to 

separate the rhetoric from the reality. From a strict evidentiary standpoint, the FEC relies 

repeatedly on inadmissible hearsay, on assertions that lack any foundation whatsoever, on claims 

that are not supported by the evidence cited, and on claims that are entirely irrelevant to the 

issues in this case. The FEC relies for many of its proposed facts on the unsworn report of its 

expert, Clyde Wilcox, which consists primarily of unsupported assertions, half-truths, and other 

claims that conflict with Mr. Wilcox’s own academic writings or his deposition testimony. The 

FEC attempts to pass off as fact testimony the declarations of three witnesses—Ross Johnson, 

Robert Rozen, and P. Michael Calogero—who are actually providing expert opinion testimony, 

but for whom the FEC never submitted expert reports; it relies on declarations from other cases 

that involved entirely different fact patterns and legal issues from this one and are inadmissible 

in any event; and it relies on declarations from two additional witnesses—Kevin Yowell and 

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Michael Bright—that the FEC designated as witnesses after discovery in this case closed. Those 

are just a sample of the problems with the FEC’s submission. 

To make matters worse, the vast majority of the FEC’s proposed facts are irrelevant to 

this dispute, because the FEC is attempting to introduce them in the service of arguing that the 

constitutional and statutory principles on which Plaintiffs’ challenge is based are all wrong—not 

that the Plaintiffs’ reliance on them is misplaced, but that the actual holdings, statutes, and rules 

themselves are wrong. The FEC seems to realize that it cannot prevail in light of those 

principles, so it has decided to reject them and try to remake much of campaign finance law from 

the ground up. Thus, the FEC wants to introduce hundreds of factual findings purporting to 

show that independent expenditures are corrupting and can be limited, notwithstanding the 

Supreme Court’s holding to the contrary from Buckley on up through today. See FEC’s 

Proposed Findings of Fact at ¶¶ 78-375. And the FEC wants to introduce hundreds of facts 

purporting to show that independent expenditures can be treated as “indirect” contributions to 

candidates even if they are not “technically coordinated,” notwithstanding the holdings, statutes, 

and the FEC’s own rules that say otherwise. See id. at ¶¶ 122-31, 163-80. Similarly, the FEC 

wants to argue that unincorporated associations pose the same concerns about corruption that 

corporations create, notwithstanding the fact that Congress and the Supreme Court have decided 

only that corporations pose such problems. See id. at ¶¶ 345-49. Finally, the FEC seeks to 

“prove” that only David Keating’s speech is at issue in this case, despite the Supreme Court’s 

conclusion that groups embody the speech and association rights of all of their members. See id. 

at ¶¶ 41-77. 

In short, the FEC wants to use this case as an opportunity to argue that several 

fundamental principles of campaign finance law—not just Supreme Court holdings, but the 

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FEC’s own rules and the statutes on which they are based—should not be what they are. This is 

an as-applied challenge, and yet the FEC wants to introduce hundreds of alleged facts based on 

thousands of pages of exhibits that purport to demonstrate the actions of every individual and 

group who has ever made independent expenditures except the Plaintiffs. If Plaintiffs had 

requested that this Court make hundreds of factual findings that purported to show that all 

contribution limits as they apply to anyone, anywhere are unconstitutional and that the Supreme 

Court was wrong in upholding them in Buckley v. Valeo, this Court would surely deny their 

request. Yet that is analogous to what the FEC is attempting to do here. As Plaintiffs argue in 

more detail in Part I, below, the bulk of the FEC’s facts are not relevant to this case, and the 

Court should disregard them. 

The FEC’s facts demonstrate that many things have been said about campaign financing 

and independent groups and that it is relatively easy to characterize otherwise innocuous points 

(e.g., independent expenditures are intended to affect the outcome of elections; candidates are 

sometimes grateful for independent expenditures; advocacy groups are typically run by 

knowledgeable people with experience in fundraising, media, and the other things that advocacy 

groups do; wealthy people support political causes and parties; some politicians have been 

convicted of violating the law, etc.) as though they were earth-shattering revelations or evidence 

of broad and troubling trends. But simply quoting a source does not make that quote a fact, or if 

a fact, make that fact relevant; and characterizing a claim with “always,” “most,” “usually,” or 

“well-established” does not turn an assertion into a trend. Saying something is “amazing,” 

“striking,” or “massive” does not make it so. Hyperbolic terms, irrelevant claims, and 

inadmissible evidence do not become more truthful, pertinent, or admissible because they are 

offered in bulk. 

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The FEC’s strategy appears to be an attempt to overwhelm the Plaintiffs (and the Court) 

with the sheer size and breadth of its submission, presumably on the theory that if the Plaintiffs 

cannot manage to rebut every one of the FEC’s alleged facts, the FEC’s facts win by default. 

But that is not how it works. A party submitting proposed findings of fact to a court must 

actually support those proposed findings with admissible evidence. See, e.g., Evans v. Williams, 

No. 76-293 (ESH/JMF), 2006 U.S. Dist. LEXIS 61329, at *8 (D.D.C. Aug. 30, 2006) (stating, 

when considering objections to proposed findings of fact, that “[t]he crucial question is whether 

each proposed finding of fact is based on admissible evidence.”). Only then is the opposing 

party required to respond and to rebut the fact with its own admissible evidence. Cf. Fed. R. Civ. 

Proc. 56(e)(2). See also Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003) (noting 

that a district court had no duty to scour an affidavit containing inadmissible hearsay or 

references to unauthenticated documents “to glean what little admissible evidence it may have 

contained”).1

 This process is no different for cases being certified under 2 U.S.C. sec. 437h. Indeed, 

under Section 437h, the fact-finding process is even more abbreviated than in a typical case, 

because the whole point of the section is to move cases as quickly as possible to the appellate 

courts where the legal and constitutional issues can be decided. See, e.g., Mott v. FEC, 494 F. 

Supp. 131, 134 (D.D.C. 1980) (stating that Senator Buckley’s purpose in proposing Section 437h 

 

1

 Nor are the FEC’s claims appropriate for judicial notice. Under Fed. R. Evid. 201, judicial notice may be taken of 

adjudicative facts only if they are “not subject to reasonable dispute.” Courts may also take notice of “legislative 

facts,” which are facts that help courts “determine the content of law and of policy” and allow them to exercise the 

“judgment or discretion in determining what course of action to take.” Ass’n of Nat. Advertisers, Inc. v. FTC, 627 

F.2d 1151, 1161-62 (D.C. Cir. 1979). See also Fed. R. Evid. 201 cmt. (a) (Advisory Comm. Notes 1972) (stating 

that legislative facts are facts that “have relevance to legal reasoning and the lawmaking process, whether in the 

formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body”). Examples 

of legislative facts of which judicial notice has been taken are that the period of human gestation is about 280 days 

or 9 months, W.M. v. D.S.C., 591 A.2d 837 (D.C. 1991); that those who run in elections are interested to learn of the 

results, White v. District of Columbia, 537 A.2d 1133 (D.C. App. 1988); and the value of CDs, Zellers v. U.S., 682 

A.2d 1118 (D.C. 1996). 

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was “to provide[ ] for the expeditious review of the constitutional questions I have raised.”). 

Thus, while the D.C. Circuit stated in Buckley v. Valeo that district courts can base their findings 

of fact on “submissions that may suitably be handled through judicial notice,” it made clear that 

such “legislative facts” must be “supported by legislative history or works reasonably available, 

to the extent not controverted in material and substantial degree.” 519 F.2d at 818. This was not 

an invitation to toss aside the rules of evidence and attempt to litigate a case on the basis of 

competing position papers. See Mariani v. United States, 80 F. Supp. 2d 352, 356 (M.D. Pa. 

1999) (applying rules of evidence to proposed findings of fact for certification under Section 

437h). 

Indeed, as Plaintiffs demonstrate, the FEC repeatedly misstates or overstates information 

from the exhibits on which it relies. In one particularly egregious example, the FEC claims that 

Steven Moore, who formerly worked for the Club for Growth, was quoted in an article as saying 

that the Club “pour[ed] half a million of dollars” in independent ads into primary races. See

FEC’s Proposed Findings of Fact at ¶ 108. Yet it is clear from the article that Mr. Moore was 

talking about “direct contributions” to candidates, not independent expenditure ads. See infra

Part II.D.2., ¶ 108. Direct contributions are subject to contribution limits and have nothing at all 

to do with this case.2

 However, in its quote, the FEC left out “direct campaign contributions,” 

making it appear that Mr. Moore was discussing independent expenditure ads, when in fact he 

was discussing direct contributions to candidates. Id. This is not the only misquote from this 

article, as Plaintiffs demonstrate below. See infra ¶¶ 109-110, 239. 

The FEC has tried mightily to involve the Club for Growth in this case. Mr. Keating is 

the Executive Director of the Club for Growth, and the Club is a very well-known and successful 

 

2

 As Mr. Moore explained in the article, the Club raised hard dollar contributions from its members who contributed 

the money to candidates. 

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advocacy group in Washington, D.C. The FEC served discovery requests on Mr. Keating 

seeking information about Club activities, it has subpoenaed documents from the Club, and it is 

currently trying to have a confidentiality order lifted in another case that covers those documents. 

It spent over half of David Keating’s deposition in this case questioning him about the Club’s 

activities. See Keating Dep. (FEC Ex. 11). In its proposed findings of fact, the FEC refers to 

Club activities in no less than 20 paragraphs.3 It points out that Fred Young is a Club donor and 

that he has attended Club functions that involved candidates in the past—facts that are 

completely irrelevant to this case. See FEC’s Proposed Findings of Fact at ¶¶ 283-286. Most 

incredibly, it ascribes a position that the Club for Growth took in a dispute with the FEC to 

SpeechNow.org, even though David Keating testified in his deposition that “I don’t think 

SpeechNow.org has taken a position on this.”4

 FEC Ex. 11, Keating Dep. at 85:20-21. Compare

FEC’s Proposed Findings of Fact at ¶ 373 with infra at ¶ 373. 

In light of the FEC’s efforts, it is hard to conclude that its misquotes of Mr. Moore, and, 

indeed, Mr. Keating, were simple oversights or completely unbiased mistakes. Plaintiffs are not 

suggesting that the FEC has purposely fabricated quotes. But it has certainly not taken care to 

ensure that its claims about its so-called “evidence” are exactly accurate. And all of its mistakes 

seem to go in one direction. 

There are many other examples of misstatements, misquotes, things taken out of context, 

and overblown claims throughout the FEC’s Proposed Findings of Fact. See infra. This brief is 

unfortunately extremely long, and Plaintiffs certainly wish that they could have filed a shorter 

 

3 See FEC’s Proposed Findings of Fact at ¶¶ 108, 109, 110, 231, 239, 272, 273, 282, 283, 284, 285,286, 373, 375, 

411, 412, 413, 414, 415, 433. 

4

 Similarly, the FEC claims that “Mr. Keating took no position on whether SpeechNow.org would disclose its 

disbursements for expenses such as candidate research or public opinion polls.” FEC’s Proposed Findings of Fact 

¶ 374. But Mr. Keating did take a position in his deposition. He first said he wasn’t sure what SpeechNow.org 

would do, and then suggested that the FEC give him guidance and “then we can work out whatever arrangement you 

might be happy with.” See Keating Dep. at 185:18-186:8. 

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one. But if the Court will take the time to read it in its entirety, Plaintiffs are confident that it 

will view the FEC’s claims about its evidence with a healthy degree of skepticism. In fact, in 

light of the many errors, misstatements, the staggering amount of hearsay on which it relies, and 

the many, many baseless assertions, hyperbole, and outright spin contained in the FEC’s 

proposed findings of fact, Plaintiffs submit that the Court should disregard the entire thing, other 

than those facts specifically admitted. 

Unfortunately, the primary result of the FEC’s approach is to increase the girth of the 

parties’ submissions. That is true not only because Plaintiffs must address the many, many 

evidentiary and other shortcomings in the FEC’s proposed findings of fact, but because, as a 

precaution, the Plaintiffs now must submit facts to rebut the FEC’s “facts,” even those that are 

obviously irrelevant, baseless, or are simply not facts at all. 

Accordingly, to keep the size of briefs to a manageable level, Plaintiffs have divided their 

response into two briefs. The instant brief is a direct response to the FEC’s proposed findings of 

fact. Filed along with this brief is a second brief detailing the Plaintiffs’ proposed rebuttal 

findings of fact. The instant response brief is divided into two parts. Part I sets forth a number 

of general objections that address common problems and shortcomings that occur throughout the 

FEC’s proposed findings of fact. Thus, this Part addresses in more detail Plaintiffs’ contention 

that the FEC’s fundamental approach to this case is to deny basic principles of campaign-finance 

law. This Part also details the many problems with the substance of the FEC’s evidencePart II is 

Plaintiffs’ point-by-point response to the FEC’s proposed findings of fact. This section tracks 

the sections in the FEC’s brief and, for each, it includes objections as appropriate to each section 

up front; then it lists, to the extent possible, the facts that the Plaintiffs admit, and then responds 

to the remaining facts on a paragraph-by-paragraph basis. Trying to indicate agreement with the 

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FEC’s facts is unfortunately a much more difficult exercise than it should be. The reason is that, 

throughout its brief, the FEC describes facts in the most hyperbolic and argumentative terms, it 

makes sweeping and unwarranted generalizations, it buries unobjectionable facts in paragraphs 

that make multiple additional objectionable claims, and it makes claims that are based on pure 

speculation or multiple layers of hearsay. Picking through these claims to separate fact from 

fancy is virtually impossible, but Plaintiffs have made a good-faith effort to demonstrate 

agreement between the parties where possible. 

In addition to these two briefs, the Plaintiffs have also filed two separate motions 

requesting that the Court strike a number of the FEC’s exhibits on evidentiary grounds. 

Plaintiffs continue to believe, as they stated in their motion to certify and the parties’ 

Joint Scheduling Report, that this is a straightforward case that presents primarily legal issues 

that can, and should, be decided on a relatively simple statement of facts. See Declaration of 

Steven M. Simpson in Support of Plaintiffs’ Proposed Findings of Fact [hereinafter, “Simpson 

Decl.”], Ex. 38, Joint Scheduling Report at 1, 3.5

 Indeed, when the parties were discussing the 

Scheduling Report, Plaintiffs raised the possibility of stipulating to certain facts to make the 

process of certification easier and more efficient, but the FEC declined. See id. at 5. The parties 

will now have to spend an enormous amount of time briefing and arguing about the truth and 

admissibility of a huge quantity of proposed findings of fact, the vast majority of which are 

irrelevant to the issues in this case. The alternative is to certify this case on a simple statement of 

facts that sets forth the Plaintiffs’ activities and the FEC’s draft advisory opinion and its 

conclusions about those activities, along with a handful of other clearly relevant facts that are not 

 

5

 Plaintiffs’ Exhibits 1 through 34 are attached to the Declaration of Steven M. Simpson in Support of Plaintiffs’ 

Proposed Findings of Fact. Plaintiffs’ Exhibits 35 through 48 are attached to the Declaration of Steven M. Simpson 

in Support of Plaintiffs’ Response to Defendant’s Proposed Findings of Fact. For sake of uniformity, all citations to 

Plaintiffs’ Exhibits will be styled “Simpson Decl., Ex. X.” 

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substantially disputed. Indeed, in light of the many problems with the FEC’s proposed findings 

of fact, Plaintiffs believe that this is the only proper course. 

I. GENERAL OBJECTIONS TO THE FEC’S PROPOSED FACTUAL FINDINGS 

A. Most of the FEC’s Proposed Findings of Fact Are Irrelevant Because the 

FEC Is Attempting to Use Them to Contradict Holdings and Legal Principles 

That Have Formed the Bedrock of Campaign Finance Law for Over Thirty 

Years. 

The FEC contends that Plaintiffs are mounting a radical attack on statutes that have been 

on the books for over thirty years. But, in fact, it is the FEC whose position is radical and at 

odds with settled constitutional and campaign-finance principles. To defeat Plaintiffs’ 

arguments, the FEC has decided to argue, not that Plaintiffs misstate or misapply these 

principles, but that the principles, including rules that the FEC has promulgated and the statutes 

on which they are based, are wrong and should be ignored. But the FEC is not free to ignore the 

laws and constitutional principles that that it is charged with enforcing. Accordingly, as 

demonstrated below, the facts that the FEC wishes to introduce in the service of these 

arguments—which includes most of the alleged facts in Section IV.A.1. of the FEC’s Proposed 

Findings of Fact—are simply irrelevant to this case. 

Plaintiffs mount an as-applied challenge in this case, not to all contribution limits and 

disclosure laws that apply to anyone in any context, but to the application of contribution limits 

and the administrative, organizational, and continuous reporting requirements for PACs to 

SpeechNow.org and several of its donors. While it is true, as the FEC points out, that the statutes 

the Plaintiffs challenge have been in existence for over thirty years, the Supreme Court has never 

directly ruled on whether those statutes can be applied to a group like SpeechNow.org and its 

supporters, who are independent of candidates and political party committees, make no donations 

to candidates or political party committees, and do not coordinate with candidates or political 

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party committees. Many commentators have noted that fact, both in general terms and about this 

case in particular. See, e.g., Simpson Decl., Exs. 40-42. Indeed, when SpeechNow.org 

presented its advisory opinion request to the FEC last year, its then-chairman agreed with 

SpeechNow.org that the contribution limits it challenged could not be applied to it or its donors. 

See Simpson Decl., Ex. 15, Dissenting Opinion of FEC Chairman Mason to Draft Advisory 

Opinion 2007-32. Several lower courts have addressed the questions in this case as well, with 

the Fourth Circuit recently holding that contribution limits could not be constitutionally applied 

to a group that makes only independent expenditures. See N.C. Right to Life, Inc. v. Leake, 525 

F.3d 274, 293 (4th Cir. 2008). In short, the notion that Plaintiffs are making some radical 

challenge to statutes whose constitutionality has long since been settled is simply not true. 

Indeed, far from being radical, Plaintiffs’ case is based on several fundamental 

propositions of constitutional and campaign finance law that have been on the books for decades. 

The first of these is that independent expenditures are core political speech and may not be 

limited by the government. See, e.g., FEC v. Nat’l Conservative Political Action Comm., 470 

U.S. 480, 496-97 (1985) [hereinafter NCPAC] (stating that “there is a fundamental constitutional 

difference between money spent to advertise one’s views independently of the candidate’s 

campaign and money contributed to the candidate to be spent on his campaign”); FEC v. Mass. 

Citizens for Life, Inc., 479 U.S. 238, 254 (1986) (holding that “[i]ndependent expenditures 

constitute expression ‘at the core of our electoral process and of the First Amendment 

freedoms.’”); Buckley v. Valeo, 424 U.S. 1, 46-48 (1976) (same). 

The second principle is the flip side of the first: if an expenditure is not coordinated with 

a candidate or a political party committee, it is necessarily “independent” and thus, as the 

Supreme Court has held, it is core political speech and may not be limited. See NCPAC, 470 

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U.S. 496-97; Buckley, 424 U.S. at 47. Independence and coordination are objective terms with 

statutory and rule-based definitions. While the concepts are based on the Supreme Court’s 

holdings that independent expenditures may not be limited, the terms themselves have specific 

definitions that are based on specific factors. Thus, the law defines an independent expenditure 

as an expenditure “expressly advocating the election or defeat of a clearly identified candidate 

. . . that is not made in concert or cooperation with or at the request or suggestion of such 

candidate, the candidate’s authorized political committee, or their agents, or a political party 

committee or its agents.” 2 U.S.C. § 431(17). The second part of this definition embodies the 

concepts of independence versus coordination. That is, a coordinated expenditure is one that is

made “in concert, or cooperation with or at the request or suggestion of” the candidate or the 

other entities listed in the statute; an independent expenditure is one that does not meet these 

criteria. Id. The FEC’s rules go on to define the term coordination in more detail, but the basic 

concept is the same, and the factors listed in the rule that determine whether an expenditure is 

coordinated are objective. See 11 C.F.R. §§ 109.20(a) defining “coordinated”), 109.21(d) 

(listing “conduct standards” for coordinated communications). 

Note that these terms have nothing to do with whether an expenditure “benefits” a 

candidate. Indeed, because independent expenditures are expenditures that “expressly advocate 

the election or defeat” of candidates, the fact that they will likely benefit candidates is implicit in 

the very concept of independent expenditure.6

 Nonetheless, if an expenditure meets the bright 

line rule established in the statute and the FEC’s rules, it is necessarily independent of candidates 

and is thus core political speech and may not be limited. See Buckley, 424 U.S. at 46-47. 

 

6

 As a result, the FEC’s effort to inject hundreds of anecdotes and quotes regarding the extent to which independent 

expenditures “benefit” candidates is pointless and those proposed findings of fact are irrelevant. See infra Part 

II.D.1. 

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The third principle on which Plaintiffs’ challenge is based is the fact that contributions do 

not pose concerns about corruption or its appearance unless they are made directly to candidates 

or to groups, such as PACs and political party committees, that either make contributions to 

candidates or work with and have access to candidates. See, e.g., McConnell v. FEC, 540 U.S. 

93, 153-55 (2003) (upholding soft money regulations on the basis of the “close connection and 

alignment of interests,” political party committees and candidates and officeholders); Buckley, 

424 U.S. at 26-27 (upholding limits on contributions to candidates in order to prevent actual or 

apparent quid quo pro corruption). See also Randall v. Sorrell, 126 S.Ct. 2479, 2488 (2006) 

(stating that the Court has “repeatedly adhered to Buckley’s constraints” in considering the 

constitutionality of campaign finance statutes over the last 30 years). 

David Keating set up SpeechNow.org against the backdrop of these basic principles. See

Keating Decl. at ¶ 6. Thus, SpeechNow.org makes only independent expenditures. Its by-laws 

ensure that it cannot coordinate its expenditures with candidates and that it and its members, 

agents and employees will comply with the FEC’s rules governing coordinated communications 

to ensure that the association does not coordinate. See Keating Decl., Ex. H, Bylaws at Art. 10. 

And SpeechNow.org will make no contributions to candidates or accept any corporate or union 

donations or funds from PACs. 

Now the FEC wants to introduce hundreds of proposed factual findings that purport to 

show that the constitutional and statutory principles on which Mr. Keating relied in creating 

SpeechNow.org and on which the Plaintiffs rely in this case are wrong. 

Thus, when Plaintiffs say SpeechNow.org will make only independent expenditures, the 

FEC responds that that does not matter, because independent expenditures in fact cause 

corruption. See FEC’s Proposed Findings of Fact, IV.B. and ¶¶ 163-314. 

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When Plaintiffs say that SpeechNow.org will not coordinate with candidates or party 

committees, the FEC contends that that does not matter, because even if a group does not engage 

in “technical coordination,” donations to it and its expenditures can still be considered “indirect 

contributions” to a candidate. See, e.g., FEC’s Proposed Findings of Fact. IV.A.4. (¶¶ 122-31), 

IV.B.4-7 (¶¶ 150-86), IV.I.3. (¶¶ 342-44), ¶¶ 164-65. The FEC’s own rules state that only a 

coordinated expenditure is considered an “in-kind” or “indirect” contribution to a candidate. Yet 

the FEC is now purporting to “prove” that its own rules, and the statute on which they are based, 

are wrong. See, e.g., ¶ 164 (stating that contributions to groups that make independent 

expenditures can be “conceived of as indirect contributions”) and ¶ 165 (stating that it does not 

matter “who cashes the check. It matters whether the money is spent to help elect the 

candidate”). 

When Plaintiffs say SpeechNow.org will make no contributions to candidates, the FEC 

responds that that does not matter, because its independent expenditures might “benefit” a 

candidate and thus contributions to it can be limited. See, e.g., id., IV.A. (¶¶ 79-131), IV.B.2 

(137-139), IV.B.4-7 (¶¶ 150-86), IV.C. (¶¶ 185-247). 

SpeechNow.org will follow the constitutional principles that the Supreme Court has said 

define the line between protected speech and potentially corrupting contributions, so the FEC 

now wants to argue that the line should be moved. Plaintiffs’ argument is that the contribution 

limits as they apply to SpeechNow.org and its supporters conflict with constitutional and 

statutory principles. The FEC wants to argue that those principles conflict with the facts. 

The FEC’s argument can be summarized as follows: Independent expenditures are 

effective at influencing the outcome of elections. See, e.g., FEC’s Proposed Findings of Fact, 

IV.A. (¶¶ 79-131). Independent expenditures therefore benefit candidates, who will, in turn, be 

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grateful to those who produced the independent expenditures and those who funded them. See, 

e.g., id., IV.B.-D.2. (¶¶ 132-240). As a result, candidates are likely to feel indebted to those who 

make or fund independent expenditures and might give them special favors or access. See, e.g., 

id., D.3.-H.3. (¶¶ 241-308). But each of these points is irrelevant because it conflicts with basic, 

settled principles of constitutional and statutory campaign finance law. 

1. The Degree of Independent Expenditures’ “Effectiveness” is 

Irrelevant. 

The FEC devotes 18 pages of its brief and 52 proposed findings of fact to the claim that 

independent expenditures are effective in influencing the outcome of elections. See id., IV.A. 

While many independent expenditures are no doubt effective at influencing the outcome of 

elections—and the Plaintiffs certainly hope that SpeechNow.org’s independent expenditures will 

be effective if it is able to make them—these facts are irrelevant to the issues in this case. 

Speech in general, and independent expenditures in particular, do not receive more or less 

protection under the First Amendment based on how effective they are. See NCPAC, 470 U.S. at 

498; First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978). 

The FEC is essentially arguing that the more effective the independent expenditures are, 

the more they pose a danger of corruption, and thus the more important it is to limit contributions 

that go to fund them. See, e.g., FEC’s Proposed Findings of Fact at ¶¶ 78-375. Of course, this 

argument would apply to all independent expenditures, not just those made by groups, and would 

justify limiting independent expenditures as such, not just contributions that fund them. See, 

e.g., id. at ¶¶ 165, 171-73, 182-88, 224, 226-40; FEC Ex. 18, Wilcox Dep. at 178:19-179:2. 

Indeed, as the FEC acknowledges, this argument applies to contributions to and expenditures 

made by issue advocacy groups as well. See, e.g., id. at ¶¶ 81-95. In any event, the FEC’s 

argument flies in the face of over thirty years of Supreme Court precedent. As the Supreme 

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Court has repeatedly stated, the whole point of speaking out about politics, and thus spending 

money on that speech, is often to influence the outcome of elections or to cause elected officials 

to change their positions, but that is not a reason to suppress such speech. See NCPAC, 470 U.S. 

at 498 (stating that “[t]he fact that candidates and elected officials may alter or reaffirm their own 

positions on issues in response to political messages . . . can hardly be called corruption”); 

Bellotti, 435 U.S. at 790 (“To be sure, corporate advertising may influence the outcome of the 

vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly 

a reason to suppress it: The Constitution ‘protects expression which is eloquent no less than that 

which is unconvincing.’”); Buckley, 424 U.S. at 48 (“Advocacy of the election or defeat of 

candidates is no less entitled to protection under the First Amendment than the discussion of 

political policy generally or advocacy of the passage or defeat of legislation.”). Accordingly, the 

FEC’s proposed findings of fact that purport to show the degree of effectiveness of independent 

expenditures are irrelevant to this case. 

2. Whether Independent Expenditures may “Benefit” Candidates and 

Cause them to feel “Gratitude” is Irrelevant. 

Perhaps the longest section in the FEC’s proposed findings of fact is devoted to the 

argument that independent expenditures are valuable to candidates and thus will cause them to 

feel gratitude to those who make and fund independent expenditures, which will lead to 

corruption or its appearance. See FEC’s Proposed Findings of Fact at ¶¶ 78-375. The FEC 

attempts to establish this point in many different ways, but they all come back to the same basic 

argument: Independent expenditures amount to indirect contributions to candidates, and thus 

those who fund them can be subject to contribution limits for the same reason that those who 

make direct contributions to candidates can be subject to contribution limits. 

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The problem with this entire line of argument is that it is an attack on the Supreme 

Court’s holding in Buckley that independent expenditures are treated differently from direct 

contributions to candidates. Indeed, it is an attack on the very principle of independence, and 

thus the corresponding principle of coordination. Neither of those principles has anything to do 

with “benefit” to candidates or “gratitude” by them. Independence and coordination are 

statutorily-defined terms with specific meanings. The principles they embody are part of the 

basic fabric of campaign finance law. David Keating is not the only one who relied on these 

principles when he created SpeechNow.org; hundreds of groups and individuals rely on them 

every elections season, from PACs to issue advocacy organizations to individuals who make 

independent expenditures. Indeed, the FEC regularly publishes information for such people that 

makes perfectly clear the difference between independent expenditures and coordinated 

communications. See, e.g., Fed. Election Comm’n, Coordinated Communications and 

Independent Expenditures 1 (Oct. 2007) (stating that the rules for independent expenditures 

versus coordinated communications differ significantly and that “[i]n general, amounts spent for 

coordinated communications are limited, but independent expenditures are unlimited”). 7 

The FEC is thus attempting to argue that, contrary to statute and its own rules, and 

contrary to holdings from Buckley on up to today, when any of these groups and individuals 

makes an independent expenditure, the question is not whether it is independent under the 

statutes and rules. The question is whether it “benefits” a candidate and may cause the candidate 

to be “grateful” in return. But this is not the law, and thus the FEC’s alleged “facts” that it 

claims support this argument are entirely irrelevant to this case. 

As stated above, FECA defines independent expenditures as expenditures for express 

advocacy that are not “made in concert or cooperation with or at the request or suggestion of” a 

 

7

 Available at http://www.fec.gov/pages/brochures/ie_brochure.pdf. 

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candidate or political party committee. 2 U.S.C. § 431(17). The FEC’s rules then go on to 

provide further guidance on the line between independent expenditures and coordinated 

expenditures in 11 C.F.R. Part 109, “Coordinated and Independent Expenditures.” See 11 C.F.R. 

§ 109.1. Those rules make clear that independent expenditures are considered the expenditures 

of the person making them and are reported as such. See id. § 109.10. Coordinated 

expenditures, by contrast, are considered in-kind or “indirect” contributions to the candidates 

they benefit and are thus subject to contribution limits. See id. § 109.20(b).8

 The rules define 

coordination consistent with 2 U.S.C. § 431(17), see id. § 109.20(a), and then go on to create a 

subcategory of coordinated expenditures known as “coordinated communication,” which are 

communications that are coordinated with a candidate or political party committee. Like 

coordinated expenditures, the payment for coordinated communications are considered in-kind 

contributions to candidates or political party committees. See id. § 109.21(b). 

The rules defining coordination elaborate on the conduct standards that the statutory 

definition of independent expenditure uses (that is, in “concert or cooperation with or at the 

request or suggestion of” a candidate or political party committee). Thus, a communication is 

coordinated if it is made at the “request or suggestion” of a candidate, id. § 109.21(d)(1); if the 

candidate is “materially involved” in the communication, id. § 109.21(d)(2); if the 

communication is made after “substantial discussion” with the candidate, id. § 109.21(d)(3); if 

the party making the communication shares a “common vendor” or “former employee or 

independent contractor” within the same election cycle with the candidate, id. § 109(d)(4) & (5); 

or if the communication “disseminates, distributes, or republishes campaign material,” id. § 

 

8 See also Fed. Election Comm’n, Campaign Guide for Nonconnected Committees 31 (May 2008) (“When a 

nonconnected committee pays for a communication that is coordinated with a candidate or party committee, the 

communication is an in-kind contribution to that candidate or party committee.”). The guide is available at 

http://www.fec.gov/pdf/nongui.pdf. 

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109.21(d)(6). As stated in Plaintiffs’ proposed findings of fact and supporting documentation, 

SpeechNow.org’s bylaws prevent it from making coordinated communications as they are 

defined in 11 C.F.R. sec. 109.21(d). See Plaintiffs’ Proposed Findings of Fact at ¶¶ 7-9. 

The Supreme Court made clear in Buckley that the principles described above are the 

framework for determining the difference between an independent expenditure—which is core 

political speech of the person or group making it and may not be limited—and a coordinated 

expenditure—which is an in-kind or indirect contribution to a candidates and may be limited for 

the same reasons that direct contributions to candidates may be limited. See 424 U.S. at 46-47. 

Indeed, in Buckley, the Supreme Court rejected precisely the argument that the FEC wants to 

make here. The defendants in Buckley argued that independent expenditures posed concerns 

about corruption because they allowed “would-be contributors [to] avoid[ ] the contribution 

limitations by the simple expedient of paying directly for media advertisements or for other 

portions of a candidate’s campaign activities.” Id. at 46. The Court rejected this argument, 

pointing out that independent expenditures were “made totally independently of the candidate 

and the candidate’s campaign” and contrasted them with coordinated communications or 

expenditures, which were treated as in-kind contributions to the candidate. Id. at 46-47. The 

Court even cited the House and Senate reports describing the difference between independent 

and coordinated expenditures: 

[A] person might purchase billboard advertisements endorsing a candidate. If he 

does so completely on his own, and not at the request or suggestion of the 

candidate or his agent’s, that would constitute an “independent” expenditure on 

behalf of a candidate . . . . However, if the advertisement was placed in 

cooperation with the candidate’s campaign organization, then the amount would 

constitute a gift by the supporter and an expenditure by the candidate just as if 

there had been a direct contribution enabling the candidate to place the 

advertisement himself. 

Id. at 46 n.53. 

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This framework has marked the difference between independent and coordinated 

expenditures for over thirty years. The distinction is rooted not just in the Supreme Court’s 

cases, but in statute and FEC rules. Thousands of individuals and groups have come to rely on 

this distinction in making independent expenditures, which are held not to pose concerns about 

corruption, and coordinated expenditures, which are held to raise the same concerns about 

corruption as direct contributions to candidates. See Buckley, 424 U.S. at 46-47. After Buckley, 

Congress did not pass a new definition of independent expenditures that jettisoned the principle 

of coordination in favor of the principles of “benefit” and “gratitude.” Yet that is what the FEC 

proposes to do in this case.9

The FEC wants to introduce hundreds of alleged “facts” to demonstrate that the definition 

of independent expenditures passed by Congress should not turn on whether the expenditures are 

coordinated with a candidate; the definition should turn on whether an expenditure “benefits” a 

candidate and causes him to feel “gratitude.” See FEC’s Proposed Findings of Fact at ¶¶ 78-314. 

Relying on its expert, Clyde Wilcox, the FEC sums up this point succinctly: “Large 

contributions to groups making independent expenditures ‘can be conceived as indirect 

contributions—instead of giving the money directly to the candidate’s campaign committee, the 

are given to an independent committee that also helps the candidate win.’” FEC’s Proposed 

Findings of Fact at ¶ 164. “‘It doesn’t matter who cashes the check. It matters whether the 

money is spent to help elect the candidate.’” Id. at ¶ 165. 

 

9

 Indeed, in subsection IV.A.4 of its proposed findings of fact, the FEC seeks to “prove” that independent 

expenditures benefit candidates even when they are not “technically coordinated.” See FEC’s Proposed Findings of 

Fact at 32. The entire section amounts to the FEC attacking its current definition of coordination on the ground that 

it does not prevent independent expenditures from benefitting candidates. The FEC tips its hand as to its true 

purpose in making this argument when it cites to testimony given in favor of a law that would have regulated 

independent expenditures of certain groups. See id. at ¶ 125. Congress did not pass that law, so apparently the FEC 

wants to try to use this case to impose a new definition of coordination on those who make independent 

expenditures. 

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But, according to Congress and the FEC’s own rules, it does matter who cashes the check 

and it does matter whether the money is spent directly by the independent committee or the 

candidate. See 2 U.S.C. § 431(17); 11 C.F.R. § 109.21(d).10 And, contrary to the FEC’s bizarre 

claim, neither independent expenditures nor the contributions to groups that make them can be 

“conceived as indirect contributions.” There is no such thing as an “indirect contribution” to a 

candidate that is not coordinated with that candidate or his agent or that does not otherwise meet 

the definition of an in-kind contribution.11 The FEC is, in essence, arguing for the enforcement 

of what it believes is the “spirit” of the law, rather than what the law actually is. But as even the 

FEC’s own Greg Scott, who heads the information division, recognized, there is no such thing as 

the “spirit” of the coordination rules. See Simpson Decl., Ex. 25, Transcript of Greg Scott 

Deposition at 169:16-170:6 (“Q. Do you or your subordinates at the information division ever 

tell persons who call in to the help line that they have to comply with the spirit of the 

coordination laws?” A. “No. We would be citing the regulations and saying this is what you 

need to comply with. We wouldn't reference the spirit.”). 

Along the same lines, the FEC proposes to introduce facts that allegedly show that it is 

“hard to police” coordination and that it does not matter if expenditures are not “technically 

coordinated” with a candidate. See, e.g., FEC’s Proposed Findings of Fact at ¶¶ 108-09. But the 

FEC is barking up the wrong tree. If the FEC thinks it is hard to police coordination, that 

“technical” independence should not matter to whether expenditures create concerns about 

 

10 The FEC makes this clear in various publications. For instance, in one it states “[w]hen financing 

communications in connection with federal elections, it is important to understand that the rules differ significantly 

depending on whether the communication is coordinated with a candidate or party committee or is produced and 

distributed independently. In general, amounts spent for coordinated communications are limited, but independent 

expenditures are unlimited.” Fed. Election Comm’n, Coordinated Communications and Independent Expenditures 1 

(Oct. 2007), available at http://www.fec.gov/pages/brochures/ie_brochure.pdf. See also Fed. Election Comm’n, 

Campaign Guide for Nonconnected Committees 35. 11 Other types of in-kind contributions not relevant to this point include direct non-monetary contributions to 

candidates of such things as below-market services, materials that help a campaign, and the like. See 11 C.F.R. 

§ 100.52(d)(1) (defining in-kind contributions). 

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corruption, and that whether independent expenditures cause concerns about corruption should 

turn on “benefit” and “gratitude” rather than coordination, the FEC should ask Congress to pass a 

new definition of independent expenditures so the FEC can start regulating independent 

expenditures on different grounds than it currently does.12 Until Congress does so, however, the 

FEC is not entitled to argue that Congress got it wrong and that the FEC proposes to “prove” that 

a new standard of independent expenditures should prevail. Cf. Colo. Republican Fed. 

Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 621-622 (1996) (“An agency's simply 

calling an independent expenditure a ‘coordinated expenditure’ cannot (for constitutional 

purposes) make it one.”); Doraiswamy v. Secretary of Labor, 555 F.2d 832, 843 (D.C. Cir. 1976) 

(stating that “[w]ithout a doubt, ‘an administrative agency is bound not only by the precepts of 

its governing statute but also by those incorporated into its own regulations’”) (citing Nader v. 

Nuclear Regulatory Com., 513 F.2d 1045, 1051 (D.C. Cir. 1975)); Thompson v. Sullivan, 980 

F.2d 280, 282 (4th Cir. 1992) (admonishing Department of Health and Human Services for 

taking a litigation position contrary to both statute and circuit law). 

The FEC’s argument is not made more viable by the fact that it is focusing on the 

contributions to SpeechNow.org and arguing that groups like SpeechNow.org can be used by 

donors as conduits to gain access and influence over candidates. See, e.g., FEC’s Proposed 

Findings of Fact at ¶¶ 137-39; 150-180. A conduit must lead somewhere that is legally relevant 

for it to be used to connect donor dollars to candidate corruption. But donations to 

SpeechNow.org lead only to independent expenditures. The only way that a group like 

SpeechNow.org can be used as a conduit to gain access to and influence over candidates is if 

independent expenditures, themselves, are held to lead to access, influence and thus corruption—

 

12 Indeed, the FEC has not even changed its own rules to try to deal with the alleged concerns with “benefit” to 

candidates and policing coordination. 

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not just independent expenditures by groups, but those by individuals as well. The FEC 

recognizes this, as does its expert. See, e.g., id. at ¶ 165 (“Because ‘[i]ndependent expenditure 

spending can help a candidate as surely as a direct contribution’ it has a similar ‘potential for 

evoking gratitude and special favors.’”); FEC Ex. 18, Wilcox Dep. at 178:19-179:2 (admitting 

that same logic applies to all independent spending). Indeed, the FEC includes pages of facts 

purporting to prove that even independent spending by issue advocacy groups poses concerns 

about corruption. See FEC’s Proposed Findings of Fact at ¶¶ 81-95. 

The FEC can no more attempt to “prove” in this case that independence and coordination 

are irrelevant to determining whether independent expenditures cause corruption than it could 

decide to start prosecuting individuals or MCFL organizations who make large independent 

expenditures on the grounds that they might use those independent expenditures to gain access to 

and influence over candidates. The answer to both is that Congress has established the definition 

of independent expenditures, and the FEC has passed rules to implement that definition. Cf. Ry. 

Labor Executives Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 659, 664-67 (D.C. Cir. 1994) (en 

banc) (holding that administrative agency’s authority begins and ends with the authority 

Congress granted it). The FEC is not permitted to ignore a statute and its own rules and try to 

prove that independence is something other than what it is. See Civil Aeronautics Bd. v. Delta 

Airlines, Inc., 367 U.S. 316, 322 (1961) (An agency “is entirely a creature of Congress and the 

determinative question is not what the [agency] thinks it should do but what Congress has said it 

can do.”); MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 n. 4 (1994) (An agency is 

“bound not only by the ultimate purposes Congress has selected but by the means it has deemed 

appropriate, and prescribed, for the pursuit of those purposes.”). 

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While it is true that the Court in Buckley and NCPAC noted that “it does not presently 

appear” that independent expenditures create concerns about corruption, that was not an 

invitation to the FEC to decide, on its own, to try to rewrite the statute that defines independent 

expenditures. Indeed, just two years ago, the Court refused to revisit Buckley and to overturn its 

framework for considering campaign finance cases. See Randall, 126 S.Ct. 2489-90 (refusing to 

overturn Buckley’s holding that expenditure cannot be limited). Thus, it is highly unlikely that 

the Court would now decide to reconsider its holding that independent expenditures are core 

political speech that do not create concerns about corruption and may not be limited. It is 

certain, however, that whether or not Congress decides one day to change the law on 

independent expenditures and replace “benefit” or “gratitude” with coordination, the power to do 

so lies with Congress, not the FEC. See Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 

361, 374 (1986) (“The statute may be imperfect, but the Board has no power to correct flaws that 

it perceives in the statute it is empowered to administer . . . If the [statute] falls short of providing 

safeguards desirable or necessary to protect the public interest, that is a problem for Congress, 

and not the Board or the courts, to address.”). 

The FEC is not simply arguing in favor of the contribution limits that apply to the 

Plaintiffs. It is trying to uphold those contribution limits as they apply to the Plaintiffs by 

destroying the principle of independence and the statutes and rules that embody that principle as 

they apply to everyone. Indeed, the FEC is asking this Court to make factual findings that 

independent expenditures made by anyone—individuals, issue advocacy groups and anyone in 

between—cause corruption and thus can be limited. In essence, the FEC is trying to force 

Plaintiffs into a facial challenge. But this is an as-applied challenge involving one group and a 

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handful of individuals. The findings that the FEC proposes are vastly beyond the scope of this 

case and should be ignored.13

For all of these reasons, the FEC should not be permitted to reargue several Supreme 

Court cases and to try to “prove” that its own rules and the statute on which they are based are 

wrong. Accordingly, the facts on which the FEC relies in Sections IV.A through IV.I are 

irrelevant and beyond the scope of this case. 

B. Most of the FEC’s Proposed Findings of Fact Are Simply Quotes, Baseless 

Assertions, and Broad Generalizations Dressed Up As Facts. 

The vast bulk of the FEC’s proposed findings of fact are not facts at all, they are simply 

quotes, baseless assertions, and broad generalizations offered as facts. See FEC’s Proposed 

Findings of Fact at ¶¶ 18-113. In effect, the FEC has dumped over 2500 pages of exhibits on the 

Court from which it has quoted liberally and selectively and asked the Court to trust that 

everything stated is accurate, that every person quoted is correct and can be relied on for the truth 

of the matter asserted, that every broad generalization the FEC makes is supported by facts, even 

when those facts are not offered. But quotes and broad generalizations are not facts. See, e.g., 

Mariani v. United States, 80 F. Supp. 2d 352, 356 (M.D. Pa. 1999) (stating in action to be 

certified under 2 U.S.C. § 437h, that proposed findings that “merely quote or restate another 

 

13 Plaintiffs recognize that they included a handful of proposed findings of fact in their opening brief to support the 

point that SpeechNow.org poses no threat of corruption. See Plaintiffs’ Proposed Findings of Fact at ¶¶ 115-30. 

The primary point of that section is to demonstrate that SpeechNow.org makes only independent expenditures with 

individual funds, which, under the law, may not be limited. See, e.g.,id. at ¶¶ 119-124, 127. However, some of the 

proposed findings of fact in that section are essentially rebuttal facts that Plaintiffs included in anticipation of the 

FEC’s arguments. Thus, Plaintiffs included facts showing that they are not seeking access to or gratitude of 

candidates, see id. at ¶¶ 115-17; that the FEC’s expert’s own research demonstrates that most donors have 

ideological motives, see id. at ¶ 118; that there is no empirical research showing a connection between independent 

expenditures and corruption, see id. at ¶ 125-27; that the presidential candidates have made comments consistent 

with the Supreme Court’s observation in Buckley that candidates do not necessarily approve independent 

expenditures on their behalf, see id. at ¶ 128; and that many individuals and groups make independent expenditures 

but not direct contributions, see id. at ¶ 130. As stated herein, Plaintiffs do not believe these issues are relevant. 

Indeed, as Plaintiffs argued in their motion to certify, they believe this case could be certified on a very simply 

statement of facts. If the Court agrees and refuses to make findings on the subjects that Plaintiffs’ contend are 

irrelevant, obviously Plaintiffs’ proposed findings of fact on those matters would not be included in the Court’s 

findings either. 

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person’s testimony or statement . . . are not appropriate as findings of fact.”). Indeed, quotes are 

merely inadmissible hearsay, and the FEC offers the vast majority of the quotes in its proposed 

findings for the truth of the matter stated.14 

The FEC attempts to avoid hearsay problems and to give its proposed findings of fact a 

gloss of reliability by relying heavily on the report of its expert, Clyde Wilcox. However, 

Wilcox’s report itself is inadmissible hearsay, and the FEC has not even bothered to offer his 

views in the form of a sworn declaration. As Plaintiffs argue in their accompanying motion to 

strike, this, among other problems with Professor Wilcox’s report, makes it unreliable and 

therefore not admissible evidence in this case.15 

But even beyond those problems, Professor Wilcox’s report suffers from the same basic 

problem as the FEC’s proposed findings of fact. The Wilcox report is simply a string of quotes, 

baseless assertions, and broad generalizations offered as expert opinions. The FEC has, in effect, 

attempted to launder hearsay and unsupported claims through its expert report, presumably on 

the theory that if an expert quotes someone else or makes a broad, unsupported claim, it must be 

admissible evidence. But expert testimony must rely on facts or data, it must be based on some 

reliable principles and methods, and the expert must reliably apply those principles and methods 

to the facts. See Fed. R. Evid. 702. Simply having an expert string together a number of quotes 

and examples does not make those examples admissible or true. See, e.g., Miller & Sons 

Drywall, Inc. v. Comm'r, 89 T.C.M. (CCH) 1279 (T.C. 2005) (“While an expert can rely on data 

that is not admissible to form his opinion, such reliance does not elevate the evidence to be 

 

14 Plaintiffs have filed separate motions in limine to strike the hearsay evidence, among other exhibits, on which the 

FEC relies for many of its proposed findings of fact. 

15 Because Plaintiffs are moving to strike Professor Wilcox’s report in its entirety, they do not in their responses to 

the FEC individual proposed findings of fact in Part II continuously object to Professor Wilcox’s report as 

inadmissible, and instead focus on other, additional objections to his report and the claims made therein. However, 

Plaintiffs’ responses to specific claims that rely on Professor Wilcox’s report should not be taken as an admission 

that Plaintiffs believe his report is admissible. It is not. 

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admissible for the truth of the matter asserted.”); United States v. Katz, 213 F.2d 799, 801 (1st 

Cir. 1954) (“But the fact that an expert may use hearsay as a ground of opinion does not make 

the hearsay admissible.”). And an expert’s broad, unsupported conclusions and baseless 

assertions are no more reliable than if the party, herself, offered them. See Freeland v. Iridium 

World Communs., Ltd., 545 F. Supp. 2d 59, 87 (D.D.C. 2008) (“Expert testimony may not be 

permitted where it is based upon speculation.”); Groobert v. President & Dirs. of Georgetown 

College, 219 F. Supp. 2d 1, 6 (D.D.C. 2002) (“Expert testimony that rests solely on ‘subjective 

belief or unsupported speculation’ is not reliable.”). 

Indeed, Professor Wilcox’s deposition revealed that his report is simply a compilation of 

quotes and specific examples organized into what amounts to a position paper. Professor Wilcox 

conducted no research or statistical analysis for his report. See Wilcox Dep. at 74:1-17. The 

FEC asked him to answer the specific questions posed and then sent him the declarations from 

the McConnell case that he cites and a number of other newspaper and academic articles. See

Wilcox Dep. at 66:6-10; 71:4-8; 73:20-74:5; 81:21-82:8; 114:9-16; 123:20-124:11; Simpson 

Decl., Ex. 39, Email from Graham Wilson to Clyde Wilcox (July 11, 2008) (5:09 p.m.). 

Professor Wilcox had his research assistant track down a number of additional newspaper and 

academic articles. See Wilcox Dep. at 100:4-11; 122:5-123:16. He then wrote a report, citing 

and quoting the examples from these articles. See Wilcox Dep. at 73:18-22-74:1-17; see also id. 

at 76:2-20. Here is Professor Wilcox’s own description of his approach: 

Q. Okay. What process or procedure did you undertake to answer those 

questions? 

A. You know, I thought about them for a while. I kind of reviewed in my mind 

various evidence that I had over the years. I reread some articles and I looked at 

the literature and I made a few interviews. You know, there really wasn't a lot of 

time, right. This was not like a scholarly, you know. They didn't ask me to go 

out and commission brand-new research. They said think about these issues, 

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gather evidence and come to a conclusion. I asked questions of a few other 

scholars in a few cases. A lot of overlap. 

Id. at 74:1-17. 

With one minor exception, Professor Wilcox did not draw on his own experiences in 

making the claims that he made in his report.16 Nor does he rely on empirical research to support 

his broad claims. See Declaration of Jeffrey Milyo in Support of Plaintiffs’ Response to 

Defendants’ Proposed Findings of Fact at ¶¶ 3(c), (d) [hereinafter “Milyo Rebuttal Decl.”]. 

When he does cite to actual empirical research, it is either for simple statistics,17 or irrelevant 

points,18 or it does not support his broad claims,19 or it actively undermines them.20 

A good example of this latter point is Wilcox’s own research. For example, Wilcox 

states in his report that many individuals who contribute to candidates “are ‘investors’ who give 

in part or primarily to protect or promote their business interests” and then goes on to argue that 

these donors will us independent groups to unduly influence politicians. FEC Ex. 1, Wilcox 

Rep. at 6. Yet his own research shows that the vast majority of donors are so-called 

“ideologues” who give, not for business reasons, but because they care about issues and want to 

elect candidates who support those issues. See Simpson Decl, Ex. 22, Financiers of 

Congressional Elections at 45 (stating that “[f]ew donors indicated that material or solidary goals 

were very important” and that “[d]onors most often cited policy-related factors or personal 

connections when asked about the factors that motivate them to make individual contributions. 

 

16 The one exception to this is where Professor Wilcox states that when he worked at the FEC in the 1980s, 

campaigns often sent interns to copy their opponents’ campaign reports. 17 For example, in the section on the History of Party Soft Money, Wilcox cites statistics concerning the amount of 

money raised in soft money donations during the 1990s and early 2000s. See FEC Ex. 1, at 7. He also cites 

statistics on the amounts that donors gave to 527s in the 2004 election, id. at 11, and the amounts that independent 

expenditure groups have spent in California. Id. at 12. 18 For example, Wilcox cites studies that purport to show that “money is important in gaining access by lobbyists 

and in influencing the congressional agenda.” FEC Ex. 1, at 22. 

19 For instance, Wilcox claims that “scholars have generally concluded that independent expenditures do help 

candidates” but cites only one study for this claim. FEC Ex. 1, at 13 (citing Engstrom & Kenny). 

20 See infra at 30. 

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Business-related reasons were acknowledged much less often.”); FEC Ex. 18, Wilcox Dep. at 

225:19-226:3. Indeed, even so-called investors often list ideological motives for their giving. 

See Simpson Decl., Ex. 22 at 49. 

Indeed, many of the broad claims that Wilcox makes in his report contrast markedly with 

statements he has made in his more serious writing. For instance, Wilcox claims in his report 

that “[t]he danger of large direct contributions to candidates is well established in political 

science.” Yet, in his professional writings, Wilcox has stated that “[d]ebate persists in the United 

States about the meaning of ‘corruption,’” and “the question of whether contributions lead to an 

‘undue influence’ of donors on policymakers.” Simpson Decl., Ex. 40. He has also noted that 

“it is exceedingly difficult to prove that corruption has occurred, and many observers doubt that 

corruption is common.” Id. at373 (emphasis in original). See also Rebuttal Declaration of 

Jeffrey Milyo [hereinafter Milyo Rebuttal Decl.] at ¶ 12. 

Similarly, Wilcox states that “[t]he history of contributions to party soft-money 

committees and to 527 and 501(c) groups suggests that donors will make large indirect 

contributions as a way to avoid contribution limits and to win the favor of policymakers.” FEC 

Ex. 1, at 6. Yet in an article he co-authored that actually compared soft money donations with 

527 donations, the authors state, “[t]herefore, it follows that the considerations that stimulated 

soft money giving do not automatically transfer to 527 committees.” FEC Ex. 55, Interest 

Groups and Advocacy Organizations After BCRA at 120. Indeed, the article makes clear that 

Wilcox’s claim that “[o]verall, individuals associated with the business community gave more to 

527s in 2004 than they had given in party soft money in 2000” (Wilcox Rep. at 11) is a 

misleading half-truth. As the article states, “the net affect of the abolition of soft money, 

therefore, was not to reduce the role of all individuals who had earned their wealth in a business 

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but to substantially displace the role of large, publicly owned corporations” with donors 

associated with smaller businesses who “are much freer, and more able financially, to pursue a 

personal political agenda.” FEC Ex. 55, at 120. One of the reasons for this, as the article states, 

is that “officeholders do not ask for the contributions to 527s, so the potential reward is no longer 

so direct.” Id. This is in stark contrast to Wilcox’s claim throughout his report that individuals 

who donate to independent groups will gain influence over candidates who are grateful for their 

support. Moreover, in the article, the authors express misgivings about even using terms like 

“individuals associated with the business community” as Wilcox does. They state “[w]hile we 

have significant reservations about treating an individual employee’s contributions as if they 

reflect the same concerns as an employer’s, we nevertheless find the grouping useful because of 

the question we are trying to answer.” Id. at 114. 

And despite Wilcox’s apparent antipathy toward interest group money in his report, in his 

professional writings he has stated that “[b]y providing services to help candidates develop their 

messages and by providing funds to help them articulate and deliver their messages, interest 

groups play a valuable and important role in a privately funded political system.” Clyde Wilcox 

et al., Interest Groups in American Campaigns: The New Face of Electioneering 157 (2d ed. 

2005).. Indeed, in contrast to Wilcox the expert, Wilcox the scholar celebrates the benefits of 

interest group money in elections: 

Interest group funding of candidates has important positive consequences for 

elections. For many non-incumbent candidates, interest group resources are 

essential to launching their campaigns. Running for office costs money, and 

many unknown candidates have a hard time attracting contributions. . . . interest 

groups can provide crucial resources at this stage, contributing the seed money

that helps non-incumbents get their campaigns under way.” 

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Id. (emphasis added). See also id. (stating that “by encouraging their members to give to 

political action committees and to candidates that their group supports, interest groups provide 

members with an additional avenue for political participation”). 

Wilcox the scholar is also considerably more skeptical of the common stereotypes that 

Wilcox the expert employs throughout his report: “The common stereotype of a political donor 

is a wealthy businessman or woman giving money to a congressional candidate, expecting in 

return favorable treatment for their business. . . . Yet we know little about the people who make 

contributions to congressional candidates or about why they give.” Simspon Decl., Ex. 41, 

Wilcox et al., Is This Any Way to Run a Democratic Government? at 36. 

Moreover, Wilcox’s own sources often undercut his claims. Thus, although he argues 

throughout his report that independent expenditures pose a significant threat of corruption (see, 

e.g., FEC Ex. 1, at 6, 10, 13) in two of the sources on which he relies, the authors state that the 

research does not support that claim. See Simpson Decl., Ex. 42, Michael Malbin, Rethinking 

the Campaign Finance Agenda, 6 The Forum, Issue 1, Art. 3, 2002, at 1, 3-4 (referring to the 

idea that independent spending can be equated with contributions “from the quasi-bribery 

perspective” as a “questionable empirical claim”); Simpson Decl., Ex. 43, Richard N. Engstrom 

& Christopher Kenny, The Effects of Independent Expenditures in Senate Elections, 55 Pol. Res.

Q. 885, 889 (2002) (stating that “it is rare to find independent expenditures figuring prominently 

in more rigorous examinations of the role money plays in the political process”). And despite his 

definite claims about the effect of independent spending on elections (see FEC Ex. 1, at 13), 

another study he cites notes “we also have abundant evidence that money, by itself, does not 

defeat incumbents. Only in combination with potent issues and high-quality challengers do even 

the best financed campaigns have a decent chance of succeeding.” Simpson Decl., Ex. 44, Gary 

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C. Jacobson, The Effect of the AFL-CIO's “Voter Education” Campaigns on the 1996 House 

Elections, 61 THE Journal of Politics 185 (1999)at 186. 

Beyond the few empirical studies that Wilcox cites, the rest of Wilcox’s claims rely on 

other people’s arguments, other people’s conclusions, a handful of examples that do not justify 

his broad claims, or his own baseless assertions. The fact that a number of writers have made the 

same conclusory statements, however, does not make those statements true or provide any 

independent support for Professor Wilcox’s conclusions. See Joy v. Bell Helicopter Textrom, 

Inc. 999 F.2d 549, 568 (D.C. Cir. 1993) (rejecting expert testimony that was “based solely on 

guesswork, speculation, and conjecture”). Like the FEC’s entire submission, it is simply 

repetition dressed up as evidence. 

As Plaintiffs’ expert, Jeffrey Milyo, states in his declaration in rebuttal to the Wilcox 

report, Wilcox’s argument can be summarized as follows: “Allowing unlimited contributions to 

groups that make independent expenditures may or may not lead to some instances of illegal 

activities.” Milyo Rebuttal Decl. at ¶ 17. In short, the Wilcox report demonstrates nothing 

relevant to this case at all. See generally id. 

As Professor Milyo summarizes, “[o]verall, I find the Wilcox report to be riddled with 

logical errors and factual omissions” that do “not appear to be random; in every instance, these 

errors and omissions serve to support Wilcox’s argument.” Id. at ¶ 50. Wilcox “articulates a 

grossly inaccurate and incomplete characterization of the relevant social science scholarship on 

the ‘danger’ of large contributions” that, once again, are “strongly biased in support of his 

argument.” Id. at ¶ 51. Wilcox “cites several articles published in edited volumes, but ignores 

selections from those same volumes that contradict his jaundiced view of large contributions,” 

and he “approvingly cites selected passages from an author,” but “does not refer to other relevant 

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passages from the same article that contradict his argument.” Id. at ¶ 52. Wilcox “ignores 

inconvenient evidence from a high profile article in his report, but he does include the same 

article in the required reading list” for a course he teaches at Georgetown. Id. He “recognizes 

that political corruption and undue influence are somewhat nebulous concepts and that the 

existence of corruption is nearly impossible to prove; that is, until he writes his expert report.” 

Id. at 53. Thus, as Professor Milyo concludes, “[b]ased on this pattern of errors and omissions, I 

conclude that Wilcox has not faithfully and competently utilized his expertise in producing his 

report.” Id. at 54. In light of the hurried manner in which Professor Wilcox admitted he 

prepared his report, none of this is surprising. See FEC Ex. 18, at 73:18-22-74:1-17, 76:2-20. 

As further demonstrated below, the FEC’s Proposed Findings of Fact demonstrate little 

more than that a number of people have said things that the FEC agrees with. They should be 

disregarded in their entirety. 

II. RESPONSES AND OBJECTIONS TO SPECIFIC FACTUAL CLAIMS IN THE 

FEC’S BRIEF 

As stated above, the Plaintiffs are not obliged to contest every assertion included in the 

FEC’s brief simply because the FEC has asserted it. Instead, the burden is on the FEC to 

demonstrate that its factual assertions are relevant and supported by admissible evidence. See

Evans v. Williams, No. 76-293 (ESH/JMF), 2006 U.S. Dist. LEXIS 61329, at *8 (D.D.C. Aug. 

30, 2006); Fed. R. Civ. P. 56(e)(1). As demonstrated below, the vast majority of the FEC’s 

factual assertions are based on inadmissible hearsay (usually multiple layers of hearsay), rank 

speculation, and baseless assertions. Many more are just the FEC’s hyperbolic and 

argumentative characterizations of otherwise innocuous points, its unwarranted inferences and 

suppositions about the motives of individuals who give money to groups or candidates, or just 

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plain spin. Many of the FEC’s claims are simply not supported by the evidence they cite, and 

many are irrelevant to the issues in this case. 

This part is organized according to the sections in the FEC’s brief and each section 

heading includes a reference to the relevant paragraph numbers in the FEC’s brief. Each of the 

following subsections begins with general objections to the FEC’s claims in a section, if any. 

Then it summarizes the factual claims to which Plaintiffs have no objection, if any, and it 

concludes with a point-by-point list response to those claims for which a more detailed response 

is necessary. For convenience’s sake, Plaintiffs use “admit” or “deny” where appropriate to 

indicate agreement or disagreement with particular assertions, and they explain their 

disagreement where necessary.21 

A. “I. The Parties” (¶¶ 1-19) 

Plaintiffs have no objection to the proposed findings of fact in this section. 

B. “II. SpeechNow.org Was Formed to Serve as a ‘Test Case’” (¶¶ 20-40)

1. General Objections 

While many of the facts listed in this section are true, they, and the FEC’s overall point in 

including them, are entirely irrelevant to this dispute. The FEC has not claimed that Plaintiffs 

lack standing to bring their constitutional claims, nor could it. As Plaintiffs have argued 

previously in this case, and as they demonstrated in their opening brief on proposed findings of 

fact, they face a credible threat of prosecution that is more than enough to establish standing to 

assert their constitutional challenges. See, e.g., Chamber of Commerce v. FEC, 69 F.3d 600, 

603-04 (D.C. Cir. 1995) (stating that a party raising First Amendment claims has standing to 

bring a pre-enforcement challenge “if First Amendment rights are arguably chilled, so long as 

 

21 Note that Plaintiffs respond in this section even to paragraphs that rely on evidence they are moving to strike in 

their accompanying motions. Where such evidence is cited in any particular paragraph, Plaintiffs objections are in 

addition to the objections they have made in their motions to strike. 

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there is a credible threat of prosecution”). Moreover, § 437h clearly establishes that Plaintiffs 

have standing to assert their constitutional claims. See, e.g., Buckley v. Valeo, 424 U.S. 1, 11-12 

(1976) (holding that it was “clear that Congress, in enacting 2 U.S.C. §437h . . . intended to 

provide judicial review to the extent permitted by Art. III); United States v. George Washington 

Univ., 26 F. Supp. 2d 162, 166 (D.D.C. 1998) (stating that although “Congress cannot waive the 

injury-in-fact requirement . . . it may, via statute, ‘grant an express right of action to persons who 

otherwise would be barred by prudential standing rules.’) (quoting Warth v. Seldin, 422 U.S. 

490, 501 (1975)). See also CalMed, 453 U.S. at 188 n.6 (stating that individual members and 

officers of the plaintiff political committees “have a sufficiently concrete stake in this 

controversy to establish standing to raise the constitutional claims at issue”); Athens Lumber Co., 

Inc. v. FEC, 689 F.2d 1006, 1014 (11th Cir. 1982) (President of corporation had standing to raise 

corporate claims under § 437h because he was “subject to the same threat of criminal and civil 

penalties [as the corporation] and therefore has equal incentive to litigate all the issues raised in 

the complaint.”). 

This Court has already denied the FEC’s argument that Plaintiffs Burkhardt and Russo 

lack standing to assert their constitutional claims, and it has granted Plaintiffs’ motion to certify 

the issues in this case under section 437h. See Order granting motion to certify (doc. 40). Thus, 

no purpose is served by the FEC arguing about Plaintiffs’ motives in creating SpeechNow.org or 

bringing this challenge, and the Court should refuse to certify facts that go to that argument. See 

FEC v. Wis. Right to Life, Inc. 127 S. Ct. 2652, 2665 (2007) (holding that the motives of the 

speaker are irrelevant to determining whether speech is protected). 

The Plaintiffs have explained in detail the reasons Mr. Keating created SpeechNow.org 

and the circumstances of their requesting an advisory opinion from the FEC and filing this 

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lawsuit. See, e.g., Plaintiffs’ Proposed Findings of Fact at ¶¶ 1-11; FEC Ex. 11, Keating Dep. at 

114:22-115:11. Mr. Keating explained in his deposition that he has had an interest in free speech 

issues for a very long time and has wanted to do something about regulations on speech that he 

believes violate the First Amendment. See FEC Ex. 11, at 116:15-119:12. As Mr. Keating 

stated, he created SpeechNow.org because he wanted “to have an organization that would be 

responsive to people that are concerned about the types of things that are [addressed] by 

campaign regulations but also allow people to speak. I was thinking was there some way to have 

an organization that can do that and everybody could be happy with.” Id. at 119:6-12. This 

desire led to the creation of SpeechNow.org, and Mr. Keating has done everything that one could 

do to operate SpeechNow.org short of actually becoming a political committee, accepting the 

pledged donations, and running ads in violation of the law. See Plaintiffs’ Proposed Findings of 

Fact at ¶¶ 1-11. The fact that Mr. Keating knew that requesting an advisory opinion from the 

FEC would be necessary and that the issue would likely end up in litigation should surprise no 

one. Nor should it be surprising that Mr. Keating consulted with lawyers. The campaign finance 

laws are complicated and Mr. Keating has had dealings with them before. Indeed, trying to 

create a group like SpeechNow.org without consulting with lawyers would be positively 

irrational. The FEC wants this to be “just a test case,” so it has ignored all of that. The FEC’s 

argument is pointless and irrelevant. 

2. Facts Plaintiffs Admit in Section II. 

Without admitting their relevancy or adopting the FEC’s characterizations of the facts, 

Plaintiffs admit that the facts contained in the following paragraphs are true: 21, 24, 25, 26; 28-

29, 31, 32, 35, 37-40. 

3. Specific Responses to Remaining Proposed Findings of Fact in Section 

II. 

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20. Denied. David Keating created SpeechNow.org for the reasons stated in his 

declaration in this matter. Further, the “joint project” statement was not made by David Keating 

or any of SpeechNow.org’s members. See FEC’s Proposed Findings of Fact ¶ 33. 

22. Denied. This paragraph contains legal conclusions, not facts, and it misstates the 

holdings of the cited cases. Those cases speak for themselves. 

23. This paragraph contains legal conclusions, not facts, and is irrelevant in any 

event. Moreover, the cited cases are not precedent in the D.C. Circuit. See FEC’s Response to 

Plaintiffs’ Motion to Certify at 5 n.5 (citing Alexander v. Tomlinson, 507 F. Supp. 2d 2, 14 

(D.D.C. 2007) and D.C. Cir. rule 32.1(b)(1)(A) for proposition that the D.C. Circuit’s decision in 

NCPAC has no precedential value). 

27. The facts in this paragraph are accurate except the claim that Mr. Young provided 

support for the Center for Competitive Politics since its inception. In fact, Mr. Young only 

stated that he had “offered” support to the organization when it began. His support did not begin 

until the spring of 2007. 

30. The facts in this paragraph are generally accurate, but, for reasons that are not clear, 

the FEC insists on referring to SpeechNow.org’s members as “board members.” SpeechNow.org 

has no board or board members; it has 5 governing members.22 See Plaintiffs’ Proposed 

Findings of Fact at ¶ 4. 

31. This statement is accurate, although incomplete. A fuller statement of what 

SpeechNow.org knew or contemplated about legal action when it was created can be found in 

Plaintiffs Proposed Findings of Fact and David Keating’s declaration. Moreover, Plaintiffs do 

not concede the accuracy of the other cited paragraphs. 

 

22 The FEC does this throughout its proposed findings of fact for reasons that are not clear. Plaintiffs will not take 

the time to object to every instance of this; instead, Plaintiffs make a standing objection to the FEC’s use of the term 

“board” or “board member” to describe SpeechNow.org’s members. 

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32. The FEC claims in paragraph 23 that the issues in this case have been litigated 

before in the D.C. Circuit. Thus, the FEC’s claim that this case is a “new challenge” appears to 

be wrong. Otherwise, the facts stated in this paragraph are accurate. 

33. Denied. How Mr. Keating knew Mr. Young is irrelevant to the issues in this case. 

Moreover, as the FEC recognizes, this case has nothing to do with “McCain-Feingold” so the 

FEC is simply drawing the inferences it wants from this email. When asked in his deposition 

whether he called Mr. Young “with a proposition to bring a test case,” Mr. Keating stated, “Well, 

I spoke to Fred Young because I thought he would be a potential donor to the organization.” 

Keating Dep. at 120:17-121:18. 

 34. The first sentence of this paragraph is accurate, but the second is not. First, Mr. 

Coupal did not say he was “not surprised” in the cited portion of his deposition and it is not clear 

what the FEC is even claiming in this sentence. Mr. Coupal stated in the cited portion of his 

deposition that David Keating mentioned that litigation was “a possibility” when he asked Mr. 

Coupal to become a member of SpeechNow.org. Coupal Dep. at 35. When asked what he 

thought of that, Mr. Coupal stated that “Organizations are involved in litigation all the time. The 

purpose of the organization was to freely associate, to support candidates who believed as the 

members of the organization do.” Id. at 36. When asked again whether he had any reaction to 

being told litigation might occur, Mr. Coupal stated, “Well, as an attorney, not really. You 

know, both in my experience with Pacific Legal Foundation and as the former director of legal 

affairs for Howard Jarvis Taxpayer Association, litigation is frequently used for public policy 

ends.” Id. 

 36. Denied. The email was not written by David Keating or anyone working on 

behalf of SpeechNow.org; it was written by Ed Crane. Although Mr. Crane is a member of 

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SpeechNow.org, there is no indication in the email that Mr. Crane was writing on behalf of 

SpeechNow.org. Indeed, the FEC devotes an entire section of its brief to the proposition that 

only David Keating speaks for SpeechNow.org. See FEC’s Proposed Findings of Fact at 10-18. 

Yet, here, the FEC claims with no support whatsoever that Mr. Crane was speaking for 

SpeechNow.org, rather than for himself. 

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C. “III. SpeechNow’s Advertisements Constitute the Speech of David Keating – Who Is 

Solely Responsible for Its Activities, and Not the Speech of Its Contributors.” (¶¶ 41-77) 

1. General Objections 

While many of the facts on which the FEC’s claims are based in this section are true, the 

FEC’s claim that SpeechNow.org’s advertisements are the speech of David Keating and not its 

contributors is a legal conclusion, not a factual conclusion. Moreover, the FEC is simply 

attempting to deny the Supreme Court’s holdings that individuals who pool their money and 

speak collectively are all exercising First Amendment rights both to association and speech. 

Accordingly, the alleged facts in this section are irrelevant. 

The Supreme Court has long held that the right to pool one’s money with others and thus 

to amplify one’s speech is a right fully protected under the First Amendment. See FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 496-97 (1985); Citizens Against Rent 

Control v. City of Berkeley, 454 U.S. 290, 299-300 (1981). By associating and pooling funds 

with others, “individuals can make their views known, when, individually, their voices would be 

faint or lost.” Citizens Against Rent Control, 454 U.S. at 294. Thus, any limits on the ability of 

the group to associate or to raise or spend its funds necessarily limits all of the members’ rights 

both to speech and association. See id., 454 U.S. at 299 (“Placing limits on contributions which 

in turn limit expenditures plainly impairs freedom of expression.”). As the Supreme Court stated 

in NCPAC, “[t]o say that [a groups] collective action in pooling their resources to amplify their 

voices is not entitled to full First Amendment protection would subordinate the voices of those of 

modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads 

with their own resources.” 470 U.S. at 495. See also id. at 299-300 (stating that the rights of 

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speech and association “blend and overlap” and are both implicated by contribution limits 

imposed on groups that support or oppose ballot issues). 

Indeed, in NCPAC, the Supreme Court rejected precisely the argument the FEC wishes to 

make here. See 470 U.S. at 495. That case involved a restriction on the amount of money a 

group could spend on independent expenditures, and the FEC argued that the independent 

expenditures was not the speech of the contributors, but the speech only of those who operated 

the group and actually decided what specific words it would utter. The Court rejected that 

argument, stating, “the contributors obviously like the message they are hearing from these 

organizations and want to add their voices to that message; otherwise, they would not part with 

their money.” Id. 

Thus, the Supreme Court has squarely held that by contributing to groups like 

SpeechNow.org, individuals who “like the message” are exercising not only their rights to 

association, but their rights to free speech. The FEC’s proposed finding of “fact” that the speech 

at issue in this case is only David Keating’s is thus a legal conclusion, and an incorrect legal 

conclusion at that. Moreover, most of the FEC’s claims in this section are argumentative and 

attempt to characterize otherwise entirely innocuous facts as supporting its incorrect thesis. An 

alternative description of the facts in this section is that a number of individuals who are deeply 

committed to free speech decided to join together to create and/or finance a group that would try 

to protect First Amendment rights. Several of them knew each other previously, some did not, 

but all are united by their desire to protect the First Amendment. To do so, they are attempting 

to utilize the right of association in exactly the manner it was designed to be utilized: by 

employing a division of labor that capitalizes on each others’ strengths and allows them to 

exercise their rights through collective action. Regardless of their level of support and 

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involvement in the association’s daily activities, all will keep abreast of what the association is 

doing and will continue to support it in the future. 

2. Facts Plaintiffs Admit in Section III. 

 Without admitting their relevancy or adopting the FEC’s characterizations of the 

facts, Plaintiffs admit that the facts contained in the following paragraphs are true: 42, 45, 46, 

48-51, 56, 58, 59, 65, 68, 69, 71, 72, 75, 76, 77. 

3. Specific Responses to Remaining Proposed Findings of Fact in Section 

III.

41. Denied. This is not a fact but a summary of other proposed facts, many of which 

are mischaracterized. 

44. The first sentence is true, but the second is not. Fred Young, Brad Russo, and 

Scott Burkhardt are not “merely potential contributors” to SpeechNow.org. They are individuals 

who have sworn under penalty of perjury that they will make the donations to SpeechNow.org 

that they have pledged when they are legally able to do so. 

47. It is true, as the first sentence states, that at present Mr. Keating is responsible for 

SpeechNow.org’s daily activities. But the second sentence is false. Mr. Keating did not testify 

that “at present, there is no plan for that to change.” In fact, Mr. Keating testified that he would 

like to have enough of a budget to hire a staff for SpeechNow.org to help him with its activities 

in the future. FEC Ex. 11, Keating Dep. at 150. When he said that he has no plans to change the 

way SpeechNow.org operates, he said “nothing right now.” Id. But from the context, it is 

crystal clear that Mr. Keating meant that he cannot change anything about SpeechNow.org’s 

operations until this case is resolved. See id. at 149-150. In fact, that was implicit in the 

question that prompted this discussion. See id. at 149:8 (asking “do you have a timeline in mind 

if you are granted your relief . . . ?”). 

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52. It is true that the individual plaintiffs have not made contributions to 

SpeechNow.org yet, but it is not because “SpeechNow.org has chosen not to accept donations.” 

As Plaintiffs have made clear in their proposed findings of fact, SpeechNow.org cannot accept 

donations above the contribution limits and accepting even small contributions will trigger 

political committee status. 

53. Denied. This paragraph inaccurately summarizes other facts. 

54. The first sentence is true, but the second is misleading. Mr. Keating simply 

answered a question asking whether he expected to pick candidates in whose races 

SpeechNow.org will run ads in the future. He did not say that he would be the only one doing 

so. FEC. Ex. 11, Keating Dep. at 162. As stated earlier, Mr. Keating testified that he would like 

to hire a staff to help him run all aspects of SpeechNow.org and that he cannot predict precisely 

how SpeechNow.org will operate in the future. See id. at 149-150. Indeed, the FEC recognizes 

this in its own proposed facts. See FEC’s Proposed Findings of Fact ¶ 58. 

55. It is true that at various points, Mr. Keating considered running ads for various 

candidates, including those listed in the exhibits referenced. However, the exhibits do not 

support the FEC’s claims about why Mr. Keating ultimately decided to run ads against 

Congressman Burton and Senator Landrieu. Accordingly, this paragraph is irrelevant. 

57. This paragraph is true, but the portion about Mr. Keating never checking what 

Landrieu’s opponent thought is odd and irrelevant given that at the time Mr. Keating decided to 

run ads against her, Senator Landrieu’s opponent was not known. Mr. Keating explained his 

thinking in this regard in his deposition. FEC Ex. 11, Keating Dep. at 157-58. 

60. The facts stated in this paragraph are true, but irrelevant. While Mr. Young used 

the term “the insider’s list” in his email, the information that Mr. Keating sent to 

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SpeechNow.org’s members was press reports and other publicly available information that Mr. 

Keating posts on SpeechNow.org’s website. See www.speechnow.org. Mr. Keating has sent the 

same information to all of SpeechNow.org’s supporters. See FEC Ex. 11, Keating Dep. at 

138:9-10. 

61. This paragraph is partly true, but misleading. Mr. Keating testified that all of 

SpeechNow.org’s supporters likely received the same information and said that others would 

receive the same information that the members do even if they “could not donate a lot of money 

but could be helpful to the cause in some fashion.” See FEC Ex. 11, Keating Dep. at 139:8-11. 

What this and the preceding paragraph demonstrate is that David Keating has given and is 

willing to give a lot of different people information about SpeechNow.org if they express an 

interest in the association in some fashion, or if they simply wish to view its website. 

62. Denied. This is vague and inaccurately summarizes other paragraphs. 

63. The specific facts in this paragraph are accurate, but the FEC’s characterizations 

that his role is “limited” and “passive in all other respects” than those listed are not. Indeed, the 

other paragraphs in this section demonstrate that Fred Young is very interested in keeping 

abreast of everything SpeechNow.org does and is committed to its mission. Moreover, Mr. 

Young has submitted a sworn declaration stating that he will give SpeechNow.org $110,000 if he 

is legally able to do so. Declaration of Fred Young [hereinafter Young Decl.] at ¶¶ 6, 8. 

64. Mr. Young has signed a sworn declaration stating that he will donate $110,000 to 

SpeechNow.org if he is legally able to do so. Young Decl. at ¶¶ 6, 8. The FEC’s 

characterization of this as “ostensibly desired” is meaningless and argumentative. It is true that 

he discussed the precise amount with counsel before deciding what amount to donate to 

SpeechNow.org. 

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66. The first sentence is false. Mr. Young wants to finance SpeechNow.org and has 

made clear that he wishes to finance ads that SpeechNow.org wants to produce and broadcast. 

See, e.g., FEC Ex. 19, Young Dep. at 92:11-93:4. It appears that in his deposition Mr. Young 

meant that he had not contemplated whether his name would go on ads that he could pay for; not 

that he has not contemplated financing any ads. See id. at 93:6-17. In any event, Mr. Young has 

made clear that he wants to finance ads; he just does not want to produce and broadcast them 

himself. 

67. Denied. This paragraph is argumentative and inaccurately summarizes other 

paragraphs. 

73. The alleged facts in this paragraph are confusing and irrelevant. The FEC counsel 

asked Mr. Keating during his deposition whether he understood that if counsel used the term 

“board members” during the deposition, he meant SpeechNow.org’s “members.” Mr. Keating 

said he understood. Keating Dep. at 135. But during the questioning, Mr. Keating stated that he 

did not understand what counsel was asking, and simply stated that SpeechNow.org has “five 

people that function much like what other organizations would call a board of directors.” Id. at 

136. He also referred to the terms “member” and “supporter” as “rhetorical.” Id. at 137. This 

discussion had nothing to do with the email the FEC cites. Indeed, in the cited exhibit, it appears 

that Mr. Keating is referring to the term “member” as it is used in the D.C. Unincorporated 

Nonprofit Associations Act, not SpeechNow.org’s bylaws. See FEC Ex. 20 (SNK0159). 

74. The specific facts stated in this paragraph are accurate, but the FEC’s description 

of SpeechNow.org’s members as “the five people who act as the board of directors” is 

meaningless because SpeechNow.org is not a corporation and does not have a “board of 

directors.” SpeechNow.org has “members” and the D.C. Unincorporated Nonprofits Act uses 

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the term “members.” It is not clear what the FEC means by “board of directors,” so the 

description is meaningless and irrelevant. 

D. “IV. Unlimited Contributions To an Association Devoted to Independent 

Candidate Expenditures Pose a Danger of Corruption or its Appearance. 

“IV.A. Independent Expenditures Are Effective in Determining the 

Outcome of Elections and Have Gotten More Effective Over Time, 

Even Though They Are Not Coordinated with a Campaign.” (¶¶ 78-

131) 

1. General Objections 

As Plaintiffs demonstrated in Part I, all of the facts in this section are irrelevant because 

they purport to demonstrate that decades-old precedent, statutes, and rules are wrong and should 

be ignored. They are also irrelevant because, as demonstrated in Part I, the general level of 

“effectiveness” of independent expenditure ads has nothing to do with whether they are protected 

speech under the First Amendment. The facts in this section are also cumulative and redundant 

under Federal Rule of Evidence 403. Even assuming that some evidence of the effectiveness of 

independent expenditures is relevant, the FEC’s nearly 18 pages and 52 separate proposed 

findings of fact is vast overkill and demonstrates nothing more than that the people quoted think 

that ads are effective. The FEC does not even attempt to explain what “effective” means. In 

nearly all federal and most state elections, both candidates spend large amounts of money on 

political advertisements, and yet one of the candidates always loses. To say that the ads run on 

behalf of the loser were “effective” at influencing the outcome is senseless. The most that can be 

said is that independent expenditure ads can be effective and that some candidates appreciate 

them. But the FEC has not and could not prove that all or even the majority of independent 

expenditure ads are effective at influencing the outcome of elections. Some are and some are 

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not; but saying anything more than that depends entirely on the specific ad and the specific 

circumstances in which it was used. 

All of that said, Plaintiffs are willing to stipulate that many independent expenditure ads 

are effective at influencing the views of voters, candidates, and the public in general, that many 

candidates appreciate them, and that the groups that produce and broadcast such ads think they 

are effective at influencing the outcome of elections, provided that the FEC stipulates that 

independent expenditure ads are effective at conveying the views and messages of the 

individuals and groups that produce and broadcast them. 

2. Specific Responses to Proposed Findings of Fact in Section IV.A. 

“1. Independent Expenditures Can Have a Significant Impact on Elections 

Generally” 

 78. Denied. This paragraphs merely purports to summarize proposed findings from 

other paragraphs. It does not state any facts. 

 79. This is simply a baseless statement by the FEC’s expert that lacks any support at 

all. The FEC has not demonstrated any “broad consensus” about independent expenditure ads. 

However, Plaintiffs do not dispute that independent expenditure ads are designed to get specific 

candidates elected. Nor do they dispute that those who produce and broadcast those ads believe 

them to be effective in some sense. However, “effectiveness” is an elusive concept that depends 

not only on many specific facts and circumstances, but on the ultimate goals and intentions of the 

person running the ad. See infra ¶ 81. Many people run independent expenditure ads because 

they want to affect the debate, inject particular topics and issues into a debate or election, and the 

like. See infra ¶ 109-110. Moreover, there are many examples of elections in which a large 

amount of independent spending, and spending in general, did not result in the candidate getting 

elected. See infra ¶ 81. Accordingly, there is no one definition or understanding of 

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“effectiveness” on the basis of which Plaintiffs, or anyone, could agree to the FEC’s broad 

statements in this paragraph. 

 80. Denied. One empirical analysis does not demonstrate that empirical analyses in 

general “confirm the effectiveness of independent expenditures.” Indeed, the study cited dealt 

with Senate elections only. Moreover, the quote in this paragraph is hearsay. 

 81. Plaintiffs admit that “money spent outside the regular campaigns on ‘voter 

education’ can have an impact on election results.” But the cited article dealt with issue 

campaigns, and the author even noted that the effect of independent spending in elections, and 

money in general, is far from clear: “But we also have abundant evidence that money, by itself, 

does not defeat incumbents. Only in combination with potent issues and high-quality challengers 

do even the best-financed campaigns have a decent chance of succeeding.” Jacobson at 186. 

Similarly, on page 193, Jacobson says “Labor’s ‘voter education’ drive achieved its goal only 

when the Democratic candidate conducted a vigorous local campaign, confirming the need for all 

three conditions – plenty of money, potent issues, and capable challengers – to defeat House 

incumbents.” This is a perfect example of the FEC’s—and its Professor Wilcox’s—fast and 

loose use of citations to academic studies, and, indeed, its citations to all of its evidence. What 

this paragraph demonstrates is precisely what Plaintiffs stated above: some ads help and others 

do not, but to say more than that requires an analysis of the specific circumstances of each ad and 

race in which it is run. 

82. Denied. Professor Wilcox simply cites four examples in his report. Four 

examples do not demonstrate universality. See Wilcox Rep. at 14. 

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83. Denied. This is simply a statement of opinion by Elaine Bloom about issue ads 

run in her race without any support for the claim that the ads were “deciding factors.” It is 

hearsay and simply shows that some candidates believe issue ads are useful. 

84. Denied. This is double hearsay and simply shows that Mr. Daschle apparently 

made this statement to Mr. Wilcox. 

85. Denied. This is hearsay. Professor Wilcox is simply relying on his own article 

that in turn relies on another article for this information. At best, this simply shows that Allen 

Raymond made this claim; it does not show that the claim is true. Moreover, neither the FEC 

nor Prof. Wilcox point out that Senator Feingold criticized some ads run on his behalf and asked 

that they not be run. See Clyde Wilcox, Russ Feingold’s Reform Experiment, Campaigns & 

Elections Sept. 1999 at 28. Thus, while Allen Raymond might have thought the independent 

spending benefited Senator Feingold, the Senator himself apparently disagreed. This is further 

evidence that the FEC’s own evidence does not come close to demonstrating any consensus 

about anything. 

86. Plaintiffs do not dispute that, as general matter, independent expenditures are 

produced similarly to candidate ads, but that does not prove their general level of effectiveness, 

because the effectiveness of candidate ads is far from clear and depends on many specific 

factors, as demonstrated in paragraph 81, above. 

87. Denied. This is a baseless assertion with no supporting evidence. 

88. Denied. These are unsupported hearsay statements that demonstrate only that Mr. 

Pennington argued as he did in his declaration. Moreover, they pertain to issue advertising. 

89. Admitted. 

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90. Denied. This is hearsay and shows only the general views of Mr. Lamson. 

Plaintiffs do not dispute that some ads are “important” in some elections or that some political 

consultants believe as much. 

91. Denied. This is hearsay and shows only the general views of Ms. Beckett. 

Plaintiffs do not dispute that some ads are can affect the outcome of elections. 

92. Plaintiffs agree that the amount of money groups spend on independent ads 

indicates that the groups, themselves, believe they are effective. But this also supports the 

conclusion that the groups believe that independent ads are a very important means of exercising 

First Amendment rights and attempting to convince voters to support candidates that those 

groups believe will favorably affect the direction of our government. The FEC cannot have it 

both ways. It cannot argue on the one hand that groups are willing to spend a lot of money on 

independent ads, but then contend that those independent ads are unnecessary for 

SpeechNow.org and its supporters to effectively exercise their First Amendment rights. See

FEC’s Proposed Findings of Fact at ¶¶ 376-437. 

93. Plaintiffs agree that not all independent ads help candidates, but they deny the 

remaining assertions in this paragraph, which are baseless and neither the FEC nor Professor 

Wilcox provide any evidence to support them. 

94. Plaintiffs agree that some issue advocacy campaigns have likely helped 

candidates. 

95. This paragraph is irrelevant for the reasons stated at the beginning of this section 

and for the added reason that this case has nothing to do with BCRA or the electioneering 

communications that were at issue in that case. The first sentence of this paragraph is true; the 

second is baseless and thus denied; the third is true; and the fourth is baseless and thus denied. 

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“2. There Are Many Specific Examples of Independent Expenditures Having 

a Significant Impact on an Election” (¶¶ 96-115)

96. This statement is unsupported and merely a summary. Despite the FEC’s claim 

that there are “many specific elections where such ads appeared to have a dramatic affect [sic] on 

the final result,” the FEC only cites seven specific examples of independent ads that were run in 

five elections (that is, some of the ads cited were run in the same elections, and other examples 

are just general statements about effectiveness, not specific examples of ads in specific 

elections). See ¶¶ 97-106, 107, 110, 112. Even leaving aside the fact that this subsection 

(IV.A.2.) is entirely based on hearsay, speculation, and baseless assertions, seven ads run in five 

elections does not even come close to demonstrating “many” of anything at all. The FEC tries to 

trump up this section simply by citing the same ads in the same elections repeatedly. Thus, it 

relies on statements about the Swift Boat Vet ads in nine of the nineteen paragraphs in this 

section (see ¶¶ 99-106), and it relies on other ads run in the same presidential election in another 

two paragraphs see ¶¶ 107, 112), meaning that over half of the statements in this subsection deal 

with only one election. (Another two paragraphs refer to ads run in primaries for the 2004 

presidential election. See ¶¶ 108, 109). Indeed, judged against the FEC’s claims in the previous 

subsection (IV.A.1), the dearth of examples in this one should be taken as affirmative evidence 

that the FEC’s claims about the general effectiveness of independent ads and any consensus on 

that topic are positively false. To put it mildly, the FEC’s descriptions of its alleged “facts” 

simply cannot be trusted. 

97. The claim that the ad is “widely believed” to have had an impact on this election 

is unsupported, but Plaintiffs have no reason to believe it is false. Whether the ad used “harsh 

language and imagery” is irrelevant (is the FEC contending that “harsh language and imagery” 

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means an ad is not protected speech or that the content of ads has anything to do with the 

constitutionality of contribution limits?). 

98-105. Plaintiffs admit that the Swift Boat Vet ads are a famous example of 

independent ads that likely impacted an election and that most observers agree with that basic 

point. Beyond that, the specific statements in these paragraphs are all hearsay or baseless 

assertions and are denied. These paragraphs are also cumulative, redundant, and irrelevant. 

106. Denied. This is a baseless assertion. 

107. Plaintiffs do not dispute that the ad mentioned was likely effective. The 

remaining facts stated in this paragraph are denied. They are based on inadmissible hearsay and 

are irrelevant in any event. 

108. Denied. Plaintiffs have already admitted that the ads run by the Club for Growth 

are effective, so the alleged “facts” in this and the following two paragraphs are cumulative. 

Moreover, this paragraph and the following two paragraphs are further examples of the FEC 

selectively quoting and even blatantly misquoting its own exhibits. The most egregious example 

is in this paragraph where the FEC claims that Mr. Moore was discussing Club for Growth 

expenditures on independent ads, when he was in fact discussing direct contributions to 

candidates. The FEC claims that Mr. Moore stated in FEC exhibit 50 that the Club for Growth 

“intervenes quite heavily in primary races” by running independent expenditure ads and that the 

Club has “pour[ed] half a million dollars into a primary race” through such ads. But in the 

article (which appears to be a published version of remarks made at symposium or conference) 

Mr. Moore makes clear that he was referring to direct campaign contributions to candidates, not 

independent expenditure ads. FEC Ex. 50 at 196-97. As he states, “the other thing that is a bit 

unique about the Club for Growth is that our main mission is not to run TV ads and radio ads, 

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but to actually raise hard dollar contributions for the candidates who are running for the House 

[and] Senate.” Id. at 195. He then explains that the Club has “30,000 members around the 

country” who make the direct contribution to the candidates. Id. at 195-96. He then states that 

the Club “actually intervenes quite heavily in primary races” and, in the sentence quoted by the 

FEC, states, “we were able to have great success, partly because if you put half a million dollars 

of direct campaign contributions into a primary race, you could have a very dramatic impact in 

the outcome of that election.” Id. at 196-97 (emphasis added). The FEC simply left out “direct 

campaign contributions” and thus made it appear that Mr. Moore was discussing independent 

expenditure ads, when he was not. See FEC’s Proposed Findings of Fact at ¶ 108. Direct 

contributions to candidates are subject to contribution limits and have nothing to do with this 

case, because SpeechNow.org makes no direct contributions to candidates. This is a good 

example of why courts generally do not rely on hearsay, baseless assertions, and speculation. 

109-110. Denied. Again, the FEC misstates and selectively quotes from the cited article. 

As stated above, Mr. Moore makes clear that by “effective” he was sometimes referring to the 

effectiveness of direct contributions to candidates. At other times, he was referring to issue ads 

and the fact that they are effective ways to exercise First Amendment rights and to affect the 

issues being discussed during the 2004 presidential race by the parties, the politicians, the media, 

and voters. See FEC Ex. 50 at 195-196, 197-200. Moreover, Plaintiffs have been unable to find 

the full quotes attributed to Mr. Moore by the FEC in both paragraphs. The beginning of both 

quotes appears in the articles, but Plaintiffs were unable to find a source for the last four 

sentences attributed to Mr. Moore in paragraph 109 (beginning with “When we ran this ad...”) or 

the last sentence in paragraph 110 (“And in fact, this issue was very, very damaging to 

Daschle.”). 

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111. As Plaintiffs have stated at every opportunity, they hope that SpeechNow.org’s 

ads are highly effective at influencing the outcome of elections so that they will influence the 

protections afforded First Amendment rights. However, other than as background information, 

Mr. Keating’s employment at the Club for Growth is irrelevant to this case. 

112. Plaintiffs admit that independent ads for Mr. Kerry were likely effective and 

helpful in some sense, but they deny the remainder of this paragraph on the ground that it is 

hearsay and simply an opinion by former President Clinton. 

113. This paragraph does not contain any facts other than the fact that the cited letters 

say what they say. The letters purport only to show an organization that relies on donations 

thanking a large donor by telling him that his donation was effective in doing what the 

organization does. There is nothing surprising or particularly noteworthy about this and it has no 

relevance to the issues in this case. In any event, the letters are hearsay. 

114. Denied. The FPPC report cited—Independent Expenditures: The Giant Gorilla in 

Campaign Finance (FEC Ex. 47) [the “Gorilla Report”]—nothing even close to the FEC’s 

claims. It simply demonstrates that independent expenditure groups spent a good deal of money 

in the California elections on which the report focused. In fact, in seven out of the twelve races 

featured in the section that allegedly demonstrates the impact of independent spending, the 

candidates that received the most independent spending on their behalf lost. See FEC Ex. 47 at 

23-40. Similarly, the report states that “[o]f the nearly $12 million spent on ‘independent 

expenditures’ for legislative races in the 2008 primary election, 78% was spent in just 10 

legislative races.” Again, however, in half of those contests, the candidate receiving the most 

independent expenditure support lost. See FEC Ex. 47 at 61-67. See also Deposition Transcript 

of Susie Swatt Dep. (FEC Ex. 17) at 66-69, 80-85. Susie Swatt, the person who wrote the report 

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for the FPPC, admitted that, with respect to the seven races mentioned above, “in these seven 

races, no, it does not appear that independent expenditure[s] influenced the outcome of the 

elections.” But given the fact that these were the majority of races mentioned, this proves that 

independent spending, alone, demonstrates nothing at all. 

Indeed, Ms. Swatt’s quote demonstrates her bias—and the biases of Ross Johnson and the 

FPPC—against independent expenditures. If a candidate lost after receiving more independent 

expenditures than his or her opponent, Ms. Swatt concludes that independent expenditures had 

no influence on the outcome of the election. If the candidate won, she concludes that the 

independent expenditures did have an influence. But this simplistic view focuses on amounts 

spent on independent expenditures to the exclusion of all else. For example, perhaps the winner 

simply ran a better campaign or was a better candidate. Or perhaps the independent expenditures 

that supported the winner raised issues that mattered to the voters or that caused the winner to 

change his positions in a way that benefitted his campaign. Or perhaps voters simply grew tired 

of hearing or seeing ads on behalf of the loser or became disillusioned by the fact that the loser 

was so heavily favored by outside groups. See FEC Ex. 17, Swatt Dep. at 73:14-20 (admitting 

the “possibility” that independent expenditures could have a negative impact on the candidate 

who they supported “depending upon the independent expenditure communications put out”). 

The fact is, very little is known about the impact of independent spending in campaigns, as two 

sources on which Professor Wilcox relied make clear. See Simpson Decl., Ex. 46, Richard N. 

Engstrom & Christopher Kenny, The Effects of Independent Expenditures in Senate Elections, 55 

Political Research Quarterly 885 (2002) at 889 (stating that “it is rare to find independent 

expenditures figuring prominently in more rigorous examinations of the role money plays in the 

political process”); Ex. 47, Jacobson at 186 (Only in combination with potent issues and highCase 1:08-cv-00248-JR Document 54 Filed 11/21/2008 Page 62 of 154
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quality challengers do even the best financed campaigns have a decent chance of succeeding.”). 

As Ms. Swatt admitted, the Gorilla Report considered none of these points. See FEC Ex. 17, 

Swatt Dep. at 83:20-84:6 (stating “one factor is obviously looking at the numbers, which is all 

this report sought to do. You could also look at other factors in terms of a campaign, which I 

didn’t put in here . . . This was purely a report that was done based upon the independent 

expenditure dollars that were spent”). See also id. at 73:10-75:19, 79:2-80:6 (listing other factors 

not considered in Gorilla Report that could impact a campaign). 

Moreover, all but three of the largest contributors to the 25 “largest independent 

expenditure committees” were PACs. See FEC Ex. 47 at 11-20. Similarly, out of the 25 

contributors who contributed the most money to all independent expenditure committees, all but 

two were PACs. See id. at 22. But SpeechNow.org will not receive any money from PACs; it 

will only accept individual donations. In short, the Gorilla Report is worthless propaganda. See

also infra text preceding ¶¶ 168-180. 

115. Denied. The example cited by Mr. Johnson does not demonstrate that 

independent expenditures can affect who runs. Even assuming the example is true, it only shows 

that one independent expenditure group was formed in California to support a particular 

candidate. But the example is questionable at best and it is likely based on double hearsay. The 

same example appears in the FPPC report cited in the previous paragraph as a block quote from 

Derek Cressman of Common Cause. See FEC Ex. 47 at 8. As Mr. Cressman stated in the quote, 

“[t]his does not mean that O’Connell will win, or even that he will necessarily even run, but it 

does get Mr. O’Connell over the first hurdle of fundraising credibility.” Id. It appears from Mr. 

Johnson’s deposition that he was relying on this quote from the report and there is no indication 

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in his declaration that he independently verified the information in the quote. FEC Ex. 10, 

Johnson Dep. at 22:23-24:2. 

“3. Independent Expenditures Have Become More Effective over Time” (¶¶ 

116-121) 

116. Denied. The statement in this paragraph is a baseless assertion that lacks any 

evidence at all, and the paragraphs that follow do not demonstrate that the quality of independent 

expenditures or candidate-focused issue advocacy has increased over time. Indeed, the examples 

in paragraphs 117-120 are all from the last several years, and they do not demonstrate any 

increase in quality of independent expenditures even during that time. 

117. Denied. Professor Wilcox’s report does not support the claim that “most 

independent expenditure and issue advocacy campaigns” are designed, studied, etc. by 

professionals. The cited study appears to deal only with some issue advocacy campaigns in 2000 

and the quotes are hearsay. 

118. Denied. The FEC has not demonstrated that any “recent increase in the quality of 

independent expenditures” has occurred, and the statements in this paragraph are all hearsay. 

Moreover, it is not at all clear from this paragraph that the cited examples pertain to issue 

advocacy or independent expenditures, nor is it clear whether they pertain to advertisements at 

all as opposed to voter mobilization efforts. Finally, the FEC cites a different article from the 

one that Professor Wilcox cites in his report for this claim, and the one cited in the Wilcox report 

does not appear to have anything to do with independent expenditures. See Wilcox Rep. at 16. 

119. Denied. The alleged “extensiveness of the professionalism of many of these 

campaigns” is not evidenced at all by the cited example, because it is only one example and it 

simply shows, assuming it is true, that one organization conducted polls and research, 

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presumably before running ads, although that is not even clear from the example. In any event, 

this paragraph is based on inadmissible hearsay. 

120. Denied. The relevance of this paragraph is not clear, nor even what “reached out” 

to voters “with from 8 to 12 contacts” means or has to do with independent ads. Moreover, this 

is all hearsay. 

121. Denied. This is a baseless assertion that is not supported by the paragraphs it 

cites. 

“4. Technical Coordination with a Candidate Is Unnecessary for an 

Independent Expenditure to Effectively Supplement a Campaign.” (¶¶ 122-

131)

This entire subsection (IV.A.4., ¶¶ 122-131) is irrelevant for the reasons stated in Part 

I.A., above. As stated in Part I.A., coordination is a specifically-defined term that has nothing to 

do with “benefit” or whether an independent expenditure “effectively supplements” a campaign 

as long as that expenditure does not come within the FEC’s rules governing coordination. This 

entire subsection is simply another way for the FEC to attack the idea of independence and its 

own rules governing coordination. Indeed, independent expenditures, by definition, cannot be 

coordinated, so it makes no sense to say that “technical coordination” is not necessary for an 

independent expenditure to be beneficial or useful to a candidate or campaign. If an independent 

expenditure were “technically coordinated” it would cease being an independent expenditure and 

would become a direct contribution that was subject to contribution limits. If it were not 

coordinated, then it would remain an independent expenditure. Thus, there is no middle ground 

or third category of independent expenditures that are somewhere between coordination and noncoordination with which to compare fully independent expenditures and thus to measure which 

one is more valuable to a campaign than the other. Saying that an independent expenditure is 

“still valuable to a candidate even though it is not technically coordinated” is therefore the same 

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thing as saying that something is an independent expenditure. As an independent expenditure, it 

has whatever value it has, and this subsection does not, nor could it, provide any evidence that 

independent expenditures are valuable “even without coordination.” In short, that claim amounts 

to a tautology, because all independent expenditures are, by definition, not coordinated. This 

section thus amounts to the FEC’s tacit attack on its own coordination rules and the statute on 

which they are based. 

Indeed, this entire subsection is based on the notion that there is something illicit about 

those who make independent expenditures using publicly available information to determine the 

most effective way to make independent expenditures. The FEC refers to this as 

“synchronizing” with a campaign and implies that it is improper. But the FEC’s own rules 

expressly recognize that this happens and make clear that it is entirely appropriate. The rules 

provide a “safe harbor” for communications made on the basis of “publicly available 

information” about a federal candidate’s campaign. See Fed. Election Comm’n, Campaign 

Guide for Nonconnected Committees 34 (May 2008) (“The conduct standards for substantial 

discussion, material involvement, use of a common vendor and involvement of a former 

employee/contractor are not satisfied if the information used in creating or distributing the 

communication was obtained from a publicly available source.”).

The FEC is free to rewrite its rules or to ask Congress to change the definition of 

independent expenditure, but it is not free to ignore its rules and all of the information it 

produces on which the public relies. The claims in this subsection are all based on actions that 

are entirely legal, and, as a result, they are entirely irrelevant to the issues in this case. 

122. Denied. This paragraph is merely a summary and is irrelevant for the reasons 

mentioned above. 

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123. This paragraph is irrelevant and misunderstands the concept of coordination, 

which does not depend on whether an independent expenditure helps a candidate win. Plaintiffs 

admit that many activists work for both campaigns and organizations during their careers and 

that FEC disclosure reports and the internet make it relatively easy for individuals to find out 

what campaigns are doing and on what they are spending their money, but those activities are 

entirely legal and do not make independent expenditures suspect in any way. 

124. Professor Wilcox cites only four examples in his report in support of this claim. 

Wilcox Rep. at 17-18. All of those examples relies on inadmissible hearsay evidence, and the 

FEC offers no evidence to support the claim that the alleged collaboration claimed in this 

paragraph “helps assure that groups use their money in an optimal way to help elect candidates.” 

That said, Plaintiffs admit that some groups share information with others and meet and discuss 

their strategies. Doing so is perfectly legal and is an important means of exercising both rights to 

free speech and rights to association. 

125. Denied. This paragraph is inadmissible hearsay. Moreover, the cited testimony 

was given in support of a new federal law that regulates certain 527s and independent 

expenditures differently than they are currently regulated. Once again, this demonstrates that the 

FEC wishes the law were different and wants to introduce evidence to try to achieve what 

Congress has not done. 

126. This paragraph is based largely on inadmissible hearsay. Beyond that, assuming 

the hearsay evidence on which this paragraph is based is true, it simply demonstrates that 

information about campaigns is publicly available, which Plaintiffs do not deny. The argument 

in this paragraph, and in this entire section, amounts to saying that a group made an independent 

expenditure and that it relied on publicly available information, which is entirely legal, and then 

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simply stating that it was not necessary for the group to engage in illegal coordination for its 

independent expenditure to be valuable to a candidate or campaign. This is rather like saying 

that it is not necessary for college professors to commit technical plagiarism for their articles to 

get published; or that it is not necessary for a litigant to actually make things up for its arguments 

to sound persuasive. Both of these things are true, but they prove nothing other than that 

argument by innuendo is easy. 

127. Denied. This is hearsay. 

128. Denied. This paragraph is based entirely on hearsay. 

129. Denied. This paragraph is based on hearsay. 

130. Denied. Mr. Johnson’s statement is a baseless assertion that does not demonstrate 

any “clear pattern.” It also conflicts with the FEC’s rules. 

131. Denied. This paragraph relies on baseless assertions without any evidence. 

 “IV.B. Independent Expenditures Lead to Gratitude, Indebtedness, and 

Access, Pose a Danger of Quid Pro Quo Arrangements, and Create the 

Appearance of Corruption.” (¶¶ 132-184)

1. General Objections 

As Plaintiffs demonstrated in Part I.A., all of the proposed findings of fact in this section 

are irrelevant because they purport to demonstrate that decades-old precedent, statutes, and rules 

are wrong and should be ignored. In addition, many of the proposed findings of fact in this 

section amount to legal conclusions, and incorrect legal conclusions at that, to the extent they 

argue in favor of a version of “corruption” that does not exist under current law. As stated in 

Part I.A., the possibility of “gratitude,” “indebtedness,” and “access” do not amount to corruption 

as that term has been defined by the Supreme Court. As the Court stated in NCPAC, 

Corruption is a subversion of the political process. Elected officials are 

influenced to act contrary to their obligations of office by the prospect of financial 

gain to themselves or infusions of money into their campaigns. The hallmark of 

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corruption is the financial quid pro quo: dollars for political favors. But here the 

conduct proscribed is not contributions to the candidate, but independent 

expenditures in support of the candidate.

470 U.S. at 497. While the Court has noted the hypothetical possibility that expenditures on 

behalf of a candidate could lead to gratitude and thus special favors to those who make the 

expenditures, it has held that independent expenditures raise no such concerns because of their 

“lack of prearrangement and coordination.” See id. at 498. See also Buckley, 424 U.S. at 46-47. 

As stated in Part I.A., as a matter of law, “coordination” has nothing to do with the possibility of 

“gratitude” and “access.” Moreover, contrary to the FEC’s contention in subsection IV.B.5., it is 

not legally possible for an independent expenditure to be considered an “indirect contribution” to 

a candidate, because independent expenditures are by definition not coordinated and thus not 

considered in-kind or “indirect” contributions to a candidate. See 11 C.F.R. § 109.21(b)(1), (3). 

Thus, the FEC’s proposed findings of fact in subsection IV.B.5. are irrelevant and incorrect legal 

conclusions in that they purport to “prove” the existence of something that is does not exist under 

governing law. 

Moreover, this section of the FEC’s proposed findings of fact relies heavily on the report 

of their expert, Clyde Wilcox. Yet, as Plaintiffs’ expert Jeffrey Milyo demonstrated in his 

rebuttal to Professor Wilcox’s report, Wilcox’s report is riddled with errors. See Milyo Rebuttal 

Decl. at ¶ 50. Wilcox never defines what he means by “corruption,” “undue influence,” 

“access,” or “influence, see id. at ¶¶ 11, 15;” he relies on no empirical evidence that support his 

claims that independent expenditures lead to corruption or that contribution limits would have 

any effect on corruption even if such evidence did exist, see id. at ¶¶ 14, 16, 19, 21, 22, 42-46; he 

ignores, entirely, the benefits of independent expenditures to free speech or even that there are 

any such benefits, see id. at ¶¶ 6, 15; he makes no effort to define or measure the likelihood of 

corruption or the other concerns he claims will occur if unlimited contributions are permitted for 

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groups like SpeechNow.org, see id. at ¶¶ 16, 19, 21; he ignores the fact that his arguments apply 

equally to all sorts of legal activities that benefit candidates, see id. at ¶¶ 7-10; he uses slippery 

terms throughout his report, see id. at ¶¶ 13-20; and he fails to acknowledge studies that detract 

from his broad claims, see id. at ¶¶ 11, 12, 22, 23, 26-40. 

As Professor Milyo states, “I find it disconcerting that in discussing the effects of 

campaign spending and contribution limits on the appearance of corruption, Wilcox fails to 

mention any of the studies cited in [my declaration]. Nor does Wilcox even raise a single caveat 

regarding his unsupported claim that large contributions exacerbate the appearance of 

corruption.” Id. at ¶ 41. Indeed, as Plaintiffs demonstrated in Part I.B., above, several of the 

articles on which Wilcox himself relies cut against his broad claims. And, as Professor Milyo 

pointed out, even Wilcox’s own articles are in conflict with some of his claims. See Milyo 

Rebuttal Decl. at ¶ 12. 

This section of the FEC’s Proposed Facts also relies heavily on what amounts to 

character or propensity evidence, only in this case, the FEC is relying on the alleged character of 

one group of donors to independent groups to try to prove how the entire class of donors to such 

groups will act. The FEC’s basic argument in this section, and others that follow, is that some 

donors in the past have attempted to gain access and influence to candidates by making 

contributions to various entities. As a result, donors to SpeechNow.org and other groups like it 

will do the same. As stated earlier, this claim contradicts evidence from Professor Wilcox’s own 

research. But even if it did not, the FEC’s evidence would be inadmissible to prove that some or 

all donors have a propensity to curry favors or attempt to gain influence and access to candidates 

simply because it claims others have done so. Under Federal Rule of Evidence 404, evidence of 

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a person’s character is never admissible in a civil action to prove that they have a propensity to 

act in a certain way. See F.R.E. 404; 2006 Amend. Advisory Comm. Notes. 

Under rule 404, the FEC would not even be able to use evidence of only one donor’s 

prior actions to show that he, himself, had a propensity toward corruption, access, or influence. 

Thus, even in actions against the specific individuals the FEC claims engaged in corruption or 

sought access or influence, it would not be able to admit evidence of that behavior to prove that 

they had acted or likely would act the same way again. Here, however, the FEC is taking the 

argument one step further. It is arguing that a handful of examples of alleged corruption prove 

that all donors to SpeechNow.org or other groups like it will act in the same manner. This 

evidence is not admissible, and the FEC may not claim that the actions of some prove the actions 

of all. See id. Cf. United States v. Brown, 381 U.S. 437, 455-56 (1965) (refusing to allow 

Congress to prevent communists from serving in unions unless it could show “a demonstrable 

relationship between the characteristics of the person involved and the evil Congress sought to 

eliminate;” even where some members of a class demonstrate evil behavior “it cannot 

automatically be inferred that all members shar[e] their evil purposes or participat[e] in their 

illegal conduct”). 

Finally, the facts in this section are cumulative and redundant under Federal Rule of 

Evidence 403. Even assuming that some evidence in this section is relevant, the FEC’s nearly 17 

pages and 52 separate proposed findings of fact is vast overkill. 

2. Specific Responses to Proposed Findings of Fact in Section IV.B. 

“1. Large Direct Contributions Raise the Danger of Quid Pro Quo 

Arrangements, Undue Influence, and the Appearance of Corruption”

132. Denied. This paragraph is irrelevant for the reasons stated in Part I. A. and 

because this case does not involve direct contributions to candidates. Moreover, the claims made 

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are unsupported, and, in any event, hotly debated in the political science and general academic 

community. See Milyo Rebuttal Decl. at 22-30. 

133. Denied. As Professor Milyo has demonstrated, there is a great deal of debate 

about this topic and much conflicting evidence. See Milyo Rebuttal Decl. at 22-30. Moreover, 

both Warren articles cited here are theoretical pieces, not empirical studies. And in the Warren 

2004 article, the author recognizes that there are many institutions in place, such as the 

competitive political process, that can ameliorate the corruption he claims exists, and he states, 

“in these ways, the corruption of speech that is unavoidable in politics might be limited in its 

harms to democracy.” See Simpson Decl., Ex. 45, Mark Warren, What Does Corruption Mean 

in a Democracy?, 48 American Journal of Political Science 328 (2004). at 338. The chapter in 

the 1995 book by Thompson is also theoretical and does not focus on all contributions, as this 

paragraph implies, but only on those that are ideologically incongruent with the legislators’ 

positions. See Simpson Decl., Ex. 46,Dennis Thompson, Ethics in Congress: From Individual to 

Institutional Corruption (1995) at 113. Moreover, this article does not address corruption in the 

legal sense at all, which Professor Wilcox admitted during his deposition. See FEC Ex. 18, 

Wilcox Dep. at 95:3-7 (“Q. So, as I understand it, you said that Thompson doesn’t really discuss 

corruption in the context of the legal definition, is that right? A. Yeah. He’s a political 

theorist.”). The statements in this paragraph are also hearsay. 

134. Denied. The statements in this paragraph are hearsay, and the cited work makes 

clear that direct contributions are irrelevant to independent expenditures. As Malbin states, 

Even if we grant the questionable empirical claim that equates independent 

spending with contributions from the quasi-bribery perspective, the equivalency 

idea [between independent expenditures and contributions] fails to address the 

quasi-extortion side of the issue. From this perspective, the contribution is a 

unique form of transaction because office-holders ask directly for help [and it is] 

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the office-holder’s ability to ask for help directly [that] creates the potential for 

shakedowns. 

Simpson Decl., Ex.42, Malbin (2008) at 3-4. Thus, Malbin himself recognizes that the 

extortion claim does not apply to independent expenditures. 

135. This is a legal conclusion, and thus irrelevant. But as far as it applies to 

contribution limits on direct contributions to candidates, it is an accurate statement of the law. 

136. Denied. This is a baseless and self-serving statement by Professor Wilcox that 

could not possibly be proved true in any event. As stated above, there is a great deal of debate in 

the academic community over the meaning of and extent of corruption in general, let alone as 

that concept applies to independent expenditures. Even some of the articles on which Professor 

Wilcox relies make that clear. This claim is also entirely irrelevant to this case. 

“2. Donors Are Also Willing to Make Large Indirect Contributions to Secure 

Access and Influence Policymaking.” (¶¶ 137-139) 

137. This is an accurate summary of some facts from Professor Wilcox’s own research, 

but it is a half-truth, because neither Professor Wilcox nor the FEC point out that donors who 

give for ideological reasons are the largest class of donors. Professor Wilcox admitted this in his 

deposition. See FEC Ex. 18, Wilcox Dep. at 225:19-226:3. See also Simpson Decl., Ex. 22. 

138. Denied. Much of the information in this paragraph flatly contradicts Professor 

Wilcox’s own research, which shows that even so-called “investor” donors often give for 

ideological and political reasons. See [financiers]. The rest are vague statements without any 

support. 

139. Denied. This is irrelevant and a baseless assertion. It is also a tautology, because, 

as far as Plaintiffs understand Professor Wilcox’s argument, in his view all donors who “seek to 

gain access” necessarily care, by definition, only about their contribution being noticed and 

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appreciated. (In short, the sentence in this paragraph can be roughly translated as “accessseeking donors seek access.”) 

“3. The History of Soft Money Contributions to Party Soft Money 

Committees Illustrates that Donors Are Willing to Invest Their 

Contributions Indirectly and Officeholders Seek Such Contributions.” (¶¶ 

140-149). 

The proposed findings of fact in this subsection (IV.B.3.) are entirely irrelevant because 

they deal with soft money donations to political party committees. The difference between 

outside organizations like SpeechNow.org and political party committees is a difference in kind, 

not a difference of degree. Political party committees work with and are comprised of federal 

candidates and officeholders. For instance, the current Chairman of the Democratic Senatorial 

Campaign Committee, a national political party committee, is Sen. Charles Schumer (D-N.Y); 

his counterpart at the National Republican Senatorial Committee is Sen. John Ensign (R-NV). 

The leader of the Republican National Committee is President George W. Bush, and the leader 

of the Democratic National Committee is President Elect Barack Obama. SpeechNow.org, 

however, is not comprised of officeholders, was not established by officeholders, and will not be 

financed, maintained or controlled by officeholders, candidates, or their agents. SpeechNow.org 

will have no dealings with political party committees and will not coordinate with them. See

Plaintiffs’ Proposed Findings of Fact at ¶¶ 5-7. 

In upholding the national political party committee soft money ban, the Supreme Court in 

McConnell noted that contributions to national party committees and “[f]ederal candidates and 

officeholders enjoy a special relationship and unity of interest. This close affiliation has placed 

national party committees in a unique position . . . to serve as ‘agents for spending on behalf of 

those who seek to produce obligated officeholders.’” McConnell v. FEC, 540 U.S. 93, 145 

(2003) (citation omitted). The record in that case was “replete” with “examples of national party 

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committees peddling access to federal candidates and officeholders in exchange for soft money 

donations” id. at 150, which led the Court to state that “it is the manner in which parties have 

sold access to federal candidates and officeholders that has given rise to the appearance of undue 

influence” that Congress sought to correct with BCRA. McConnell, supra, at 153-154 (emphasis 

in original). 

But none of these concerns apply to the activities of SpeechNow.org, nor could they 

because SpeechNow.org is independent of candidates and officeholders and cannot coordinate 

with, let alone sell access to, them. Indeed, as an article that Professor Wilcox co-authored 

concluded after an analysis of 527 giving patterns after BCRA, “[i]t follows that the 

considerations that stimulated soft money giving [to national political party committees] do not 

automatically transfer to 527 committees.” See FEC Ex. 55, Boatright, Malbin, Rozell, and 

Wilcox, Interest Groups and Advocacy Organizations After BCRA at 120. One of the reasons, 

according to the article, is that “officeholders do not ask for the contributions to 527s, so the 

potential reward is no longer so direct.” Id. Accordingly, the activities of donors in connection 

soft money donations to party committees are irrelevant to the issues in this case. 

140. Denied. The information in this paragraph is simply a string of baseless 

assertions that are not supported by any evidence cited in the Wilcox Report. 

141. Plaintiffs admit that, in general, soft money (i.e., money not subject to 

contribution limits) is easier to raise than hard money (i.e., money subject to contribution limits). 

The remaining claims in this paragraph are baseless and irrelevant for the reasons stated above. 

142. Plaintiffs do not dispute the dollar amounts stated in this paragraph, however the 

information is irrelevant. 

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143. Denied. The assertions are baseless other than the claims about Gerald 

Greenwalt, but those are hearsay. 

144. Plaintiffs do not dispute the specific dollar amounts cited, but deny the remaining 

claims as baseless. The information in this paragraph is also irrelevant. 

145. Denied. The information in this paragraph is baseless, and where Professor 

Wilcox has provided a cite in his report, he cites to a newspaper article, which is hearsay. 

146. While the information in this paragraph is general enough to not really be subject 

to a denial or admission, it is all hearsay. 

147. Denied. The information in this paragraph is all hearsay. 

148. Denied. Professor Wilcox offers no evidence to support this paragraph. 

149. Denied. Professor Wilcox offers no evidence to support this paragraph. 

“4. Donors Seeking Access and Influence Give to Non-Party Organizations 

As Well.” (¶¶ 150-162) 

150. Denied. The information in this paragraph is all hearsay and is irrelevant and 

inadmissible propensity or character evidence. 

151. Denied. The information in this paragraph is irrelevant and inadmissible for the 

reasons stated in the previous paragraph. It is also all hearsay. 

152. Denied. The information in this paragraph is irrelevant and inadmissible for the 

same reasons. It is also all hearsay. 

153. Denied. The information in this paragraph is irrelevant and inadmissible for the 

same reasons. It is also all based on hearsay. 

154. Denied. The information in this paragraph is irrelevant and inadmissible for the 

same reasons. Moreover, the first sentence is baseless and the second is hearsay. 

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155. The information in this paragraph is irrelevant and inadmissible for the same 

reasons. Plaintiffs do not dispute that these statements were made in news reports, but they are 

all hearsay. As a general matter, Plaintiffs do not deny that 527s played a significant role in the 

2004 election, that they raised a lot of money and spent it on particular races, and that they likely 

hired people to help them operate. 

156. Denied. The information in this paragraph is irrelevant and inadmissible for the 

reasons stated above. It is also baseless and not supported by any evidence in the Wilcox Report. 

157. The information in this paragraph is irrelevant and inadmissible for the same 

reasons. The first sentence is baseless and not supported by the cited works. Plaintiffs do not 

dispute the statistics and dollar amounts cited. However, neither the FEC nor Professor Wilcox 

notes that Weissman and Hassan point out the large role that ideological donors played in 

contributing to 527s. Moreover, as stated in paragraph 150, the article cited that Professor 

Wilcox co-authored contains statements that directly conflict with the claims made in this 

paragraph and this entire section. See FEC Ex. 55, Boatright, Malbin, Rozell, and Wilcox, 

Interest Groups and Advocacy Organizations After BCRA at 120. 

158. Although the data show that some donors give more to 527s than they can under 

contribution limits and it is likely that many did so to influence election outcomes, there is 

nothing improper about this. Indeed, as discussed in Weissman and Hassan, many donors to 

527s do so for ideological reasons, and, as Professor Wilcox’s own article shows, comparisons to 

soft money giving are unwarranted. 

159. Plaintiffs do not dispute the accuracy of the statistics cited in this paragraph, but 

the last sentence is a half-truth. Stating that individuals associated with the business community 

gave more to 527s than they had to soft money is seriously misleading in light of the statements 

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in the article Professor Wilcox co-authored on the subject. In fact, early in that article the 

authors state that they have misgivings about even describing donors as “individuals associated 

with the “business community”: “While we have significant reservations about treating an 

individual employee’s contributions as if they reflect the same concerns as an employer’s, we 

nevertheless find the grouping useful because of the question we are trying to answer.” FEC Ex. 

55 at 114. Moreover, as that article concluded after an analysis of 527 giving patterns after 

BCRA, “[t]herefore, it follows that the considerations that stimulated soft money giving do not 

automatically transfer to 527 committees.” Id. at 120. One of the reasons, according to the 

article, is that “officeholders do not ask for the contributions to 527s, so the potential reward is 

no longer so direct.” Id. The article also states that “the net affect of the abolition of soft money, 

therefore, was not to reduce the role of all individuals who had earned their wealth in a business 

but to substantially displace the role of large, publicly owned corporations” with donors 

associated with smaller businesses who “are much freer, and more able financially, to pursue a 

personal political agenda.” Id. 

160. Admitted. 

161. Plaintiffs do not dispute the dollar amounts and statistics stated in this paragraph, 

but they deny the claim in the last sentence that donors’ contributions to 527s “served to 

supplement hard money contributions and allowed them to contribute beyond the legal hard 

money limit.” This is an unsupported claim about the intentions of donors. It is irrelevant to this 

case and it conflicts with other evidence that demonstrates that many groups and people make 

independent expenditures but do not make direct contributions to candidates in the same election 

cycle. See, e.g., Plaintiffs Proposed Findings of Fact at ¶ 130. Moreover, this statement, and the 

other quotes in this paragraph, are hearsay. 

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162. The information in this paragraph is irrelevant for the purposes for which the FEC 

offers it in that it demonstrates nothing about any connection between independent expenditures 

and corruption. Indeed, the FEC found no evidence that these groups coordinated their 

expenditures with campaigns or candidates. These groups were found to have met the definition 

of “political committee” and to have violated laws against corporate contributions to political 

committees. That said, Plaintiffs do not dispute that the listed groups entered into conciliation 

agreements with the FEC that concluded the groups had violated the law. 

“5. Contributions to Groups that Make Independent Expenditures Can Lead 

to Corruption in the Same Way as Direct and Other Kinds of Indirect 

Contributions.” (¶¶163-167) 

163. Denied. The statement in this paragraph is a baseless assertion from the Wilcox 

Report that directly contradicts governing case law holding that independent expenditures do not 

have a “similar potential for corruption as large direct contributions to candidates.” See, e.g., 

NCPAC, 470 U.S. at 497-498; Buckley, 424 U.S. at 46-47. 

164. Denied. The statements in this paragraph are baseless and legally incorrect for the 

reasons stated in the preceding paragraph. 

165. Denied. This paragraph directly contradicts governing case law, as stated in 

¶ 163. The Supreme Court has held that it does matter “who cashes the check” for purposes of 

determining whether there are concerns about corruption or its appearance. Accordingly, this 

paragraph sets forth a legally irrelevant argument about corruption. Moreover, the statements 

made are simply baseless assertions. 

166. Denied. This is a baseless statement by Professor Wilcox with no support. It also 

contradicts Supreme Court cases holding that independent expenditures do not have the same 

potential for “evoking special favors” and “gratitude” is irrelevant to whether independent 

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expenditures can be limited. Moreover, this statement is too vague and general to constitute a 

finding of fact. 

167. Denied. The statement in this paragraph is irrelevant and it is hearsay. Congress 

did not enact the bill for which this testimony was given and the points made have nothing to do 

with the question of whether independent expenditures cause corruption or can be limited. 

Moreover, as stated above, Mr. Malbin has described the claim that independent spending are 

comparable to direct contributions as a “questionable empirical claim,” so the FEC’s use of 

another of his quotes is unreliable. See supra ¶ 134. 

“6. Unregulated Contributions to Groups that Make Independent 

Expenditures in California Illustrate the Potential for Corruption and 

Circumvention.” (¶¶ 168-180) 

The FEC’s proposed facts in this subsection (IV.B.5., ¶¶ 168-180) are largely based on 

the declaration of Ross Johnson, which Plaintiffs have moved to strike in a separate motion. The 

proposed findings of fact in this subsection are also irrelevant to the issue for which the FEC 

offers them, because the FEC’s argument is based on an incorrect and legally-irrelevant notion of 

corruption. Indeed, in this subsection the FEC is attempting to introduce facts that show that 

contribution limits should be imposed on groups that make independent expenditures because 

that will limit the amount of independent expenditures that those groups can make. This directly 

contradicts not only the Supreme Court’s holding that independent expenditures may not be 

limited, but the Court’s holding that expenditures of any type may not be limited. See Buckley, 

424 U.S. at 46-51 (stating that “[t]he First Amendment’s protection against governmental 

abridgment of free expression cannot properly be made to depend on a person’s financial ability 

to engage in public discussion.”). 

Thus, the argument and proposed facts in this section also amount to an admission of a 

point on which Plaintiffs included a number of proposed findings of fact in their opening brief—

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namely, that contribution limits imposed on groups that make only independent expenditures 

necessarily limit those expenditures and that the FEC, among others, intends them to do just that. 

See Plaintiffs’ Proposed Findings of Fact at 27-32. Plaintiffs proposed to include these findings 

so they can argue, under Citizens Against Rent Control v. City of Berkeley, that contribution 

limits imposed on a group like SpeechNow.org are unconstitutional, among other reasons, 

because they limit SpeechNow.org’s expenditures. See 454 U.S. 290, 299-300 (1981). As the 

Court explained in Citizens Against Rent Control, if a law allows an individual to make 

unlimited expenditures but prevents the same individual to “contribute beyond [that] limit when 

joining with others to advocate common views” that law “automatically affects expenditures” 

and therefore “operate[s] as a direct restraint on freedom of expression.” Id. See also id. 

(“Placing limits on contributions which in turn limit expenditures plainly impairs freedom of 

expression.”). Plaintiffs wish to argue that the contribution limits that apply to them have the 

same affect on SpeechNow.org’s ability to make expenditures and thus to show that when groups 

are free of limits, they will raise money in larger amounts. This also goes to the burden that 

contribution limits place on a group like SpeechNow.org. 

FEC’s Reliance on the FPPC “Gorilla” Report 

The paragraphs in this subsection also rely heavily on a misleading and inherently 

unreliable report by the California Fair Campaign Practices Commission—Independent 

Expenditures: The Giant Gorilla in Campaign Finance (FEC Ex. 47) [the “Gorilla Report”]. 

The FEC relies on the Gorilla Report to try to demonstrate a causal relationship between the 

imposition of limits on direct contributions to candidates and an increase in spending by 

independent expenditure committees in California. In other words, the FEC is contending that 

the money that previously went to candidates via direct contributions in California simply shifted 

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and went to independent expenditure committees after direct contribution limits were imposed. 

The FEC thus contends that the donors who gave money to the independent expenditure 

committees did so to avoid the limits on direct contributions to candidates. But the Gorilla 

Report shows nothing of the kind. Even assuming the data in the report are accurate (which is a 

generous assumption), the report shows only the amounts that some individuals and groups 

donated to independent expenditure committees, the amounts that some of them spent in certain 

elections, and the fact that candidates who were supported by large amounts of independent 

expenditures generally lost. See supra at ¶ 114. 

To demonstrate that the imposition of contribution limits on candidates caused

independent expenditures to increase thereafter would, at the least, require a comparison not only 

of independent spending before and after candidate contribution limits were imposed, but also a 

comparison of the overall spending on direct contributions both before and after candidate 

contributions were imposed. Only then could one conclude that any increase in independent 

spending might have some relationship with the amounts previously spent on direct contributions 

to candidates. In other words, without knowing that overall direct contributions to candidates 

went down after the imposition of contribution limits, one could not reasonably conclude that the 

money being spent on independent expenditures after the imposition of limits was redirected 

from direct contributions to independent expenditures. Yet the Gorilla Report does not examine 

the overall amount of money that was spent on direct contributions to candidates prior to the 

imposition of contribution limits at all. And while it purports to have looked at the amount of 

money spent on independent expenditures prior to the passage of direct contribution limits, the 

amounts it finds simply defy common sense. 

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The Gorilla Report states that “in 2000, when there were no contribution limits, 

‘independent expenditure’ spending for legislative candidates totaled $376,000.” It then states 

that that spending increased to $23.48 million for all legislative candidates by 2006, when 

contribution limits were in place. See FEC Ex. 47 at 9. It then examines statewide races and 

finds that in 2002, when there were still no limits on direct contributions to candidates, “the total 

amount of ‘independent expenditures’ benefitting all statewide candidates was $526,000.” The 

report then states that that spending increased to $29.47 million by 2006. Id.

Yet the amounts that the Gorilla Report claims were spent on all independent 

expenditures prior to the imposition of contribution limits simply cannot be true. California is 

the most populous state in the Union. It has over 17 million registered voters23 and is one of the 

most expensive media markets in the country.24 Yet the Gorilla Report claims that the total 

independent expenditures in the entire state for all legislative elections was $ 376,000 in 2000, 

and the total amount for all statewide races was $ 526,000. The report offers no context for those 

numbers—for instance, by showing the amounts spent in direct contributions to candidates in 

those years—and it provides no evidence of independent spending for other years prior to the 

imposition of contribution limits. Indeed, the report does not even list the amounts it claims 

were spent in the races in 2000 and 2002 in the tables that list the independent spending totals. 

Those amounts appear only in bullet-point summaries. See Gorilla Rep. at 9. In the chart that 

lists total independent spending—the chart on which the Report’s claims are based—the amounts 

 

23 October 20, 2008 Report of Registration, California Secretary of State, available at 

http://www.sos.ca.gov/elections/ror_102008.htm. 

24 Indeed, according to an article in the Weekly Standard “Brian Brown, executive director of the National 

Organization for Marriage, the fledgling organization leading the fight for this fall’s marriage amendment in 

California, estimates that their campaign will need at least $10 million to succeed in a state with some of the most 

expensive media markets in the country.” John McCormack, California's Gift to McCain?, THE WEEKLY 

STANDARD, May 26, 2008. 

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for legislative races in 2000 and for statewide races in 2002 are not provided. See id. at 10 

(Chart#1). 

At least a little information on independent spending is available prior to 2000, however. 

Ross Johnson, the Chairman of the FPPC and also a witness for the FEC, ran for election in 

1995. See Johnson Decl. at ¶ 3. In that race, an independent expenditure was made on his behalf 

totaling $75,000. Johnson Dep. at 88:20-22. Thus, independent expenditures in Ross Johnson’s 

one race only on his behalf amounted to roughly 1/5th of all independent spending that the 

Gorilla Report claims occurred in the entire State of California on behalf of all candidates for all 

legislative races in 2000; likewise, the independent expenditures on behalf of Johnson were 

roughly 1/8th of all independent spending in the entire State on behalf of all candidates for all 

statewide races in 2002.25 For the record, Johnson testified that he was not unduly influenced by 

that $75,000 independent expenditure. See Johnson Dep. at 93-95. 

Perhaps one explanation for the oddly low independent spending in the election cycles 

immediately preceding the imposition of candidate contribution limits is the fact that the law 

apparently was in flux at the time. According to Mr. Johnson, ballot propositions that “sought to 

limit the size of contributions to candidates” were passed in 1988 and again in 1996 and then 

were tied up in litigation for a few years thereafter. See Johnson Decl. at ¶ 4. During these court 

battles, according to Johnson, “there were several election cycles without any limits on direct 

contributions to candidates.” Id. Thus, it is not at all clear from the Johnson declaration exactly 

what limits were in place at what time and what, exactly, those limits affected. The only thing 

that is clear from this is that campaign finance laws in California changed several times and were 

tied up in litigation from 1988 until 2000. It is entirely possible that the law was simply unclear 

 

25 Similarly, $397,000 was spent in independent expenditures in the 2005-06 election for Secretary of State, and 

$460,000 in independent expenditures was spent in that same year in the Board of Equalization election. See Gorilla 

Rep. at 10. 

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while the 1996 proposition was tied up in litigation, or reporting obligations were not clear, or 

records were not being kept accurately. But whatever was happening, neither the Johnson 

declaration nor the Gorilla Report provide enough information to assess the validity of its claims 

about the alleged “explosive” growth of independent expenditures. 

Indeed, Susie Swatt, who wrote the report for the FPPC, testified that all she examined in 

producing it were “the numbers, which is all this report sought to do. You could also look at 

other factors in terms of a campaign, which I didn’t put in here . . . This was purely a report that 

was done based upon the independent expenditure dollars that were spent.” Swatt Dep. at 83-84. 

See also id. at 73-75, 79-80 (listing other factors not considered in Gorilla Report that could 

impact a campaign). As stated above, there are other problems with the Gorilla Report, not least 

that its claims about the “significant” impact of independent expenditures are contradicted by the 

report itself. See supra ¶ 114. And although Professor Wilcox relied solely on the Gorilla 

Report for an entire section of his expert report (Wilcox Rep. at 12 and n.11; Wilcox Dep. at 

240), he never saw fit to examine any of the claims that the report makes or verify any of the 

information it contains. Id. at 243. He has never studied campaign finance issues in California 

or attitudes about corruption there, and he is not aware of any studies that would shed light on 

attitudes about corruption in California. Id. at 236-37. Nor would Wilcox typically rely on 

Common Cause for information for his studies or scholarly works, unlike the author of the 

Gorilla Report. Id. at 244. See Gorilla Rep. at 5, 8 (quote of Derek Cressman of Common 

Cause). Cf. Johnson Decl. ¶ 9. 

Wilcox did agree with the Plaintiffs on one point about the Gorilla Report: “It does set 

you back a bit” that the report “depicts a giant gorilla throwing money off of the state capitol 

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building.” Wilcox Dep. at 245. “Clearly these people have an agenda that’s different than 

mine.” Id. 

168-178. Denied. As stated above, the Gorilla Report on which these paragraphs rely is 

propaganda, not evidence. In light of the many problems and overblown claims in the Gorilla 

Report, it and its data are inherently unreliable. It is also hearsay and its claims lack foundation 

and are irrelevant to the issues in this case. It and the paragraphs in this subsection are full of 

supposition and argument by innuendo. For instance, paragraph 174 simply asserts that 

individuals are “avoiding contribution limits” by legally making contributions to independent 

expenditure committees. Similarly, paragraph 175 complains that “some of the biggest 

contributions” to independent expenditure groups in California have come from individuals. In 

fact, according to the Gorilla Report, all but three of the largest contributors to the 25 “largest 

independent expenditure committees” were PACs; and out of the 25 contributors who 

contributed the most money to all independent expenditure committees, all but two were PACs. 

See FEC Ex. 47 at 11-20, 22. 

179. Denied. John Coupal has not “contended that a form of quid pro quo corruption 

has occurred as a result of individuals being able to circumvent contribution limits via 

independent expenditures in California.” The focus of the article the FEC cites is not 

independent expenditures; it is the manner in which increased spending—in the form of 

increased salaries of city workers—was harming taxpayers in Los Angeles. Mr. Coupal noted in 

the article that the reason for the increase is the symbiotic relationship between elected officials 

and unions. Mr. Coupal does not allege the independent expenditures are the source of the 

problem; rather, the problem is the symbiotic relationship that he believes wastes taxpayer 

money. As Mr. Coupal has explained: 

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In essence, the unions are using taxpayer dollars, which the government gives 

them the power to take through payroll withholdings, to obtain more taxpayer 

dollars. In California, there is a prohibition against government funds being used 

in political campaigns. I think that is good because taxpayers should not have to 

fund political speech with which they disagree. I believe that this principle should 

be extended to the use of union dues for electoral purposes. 

Decl. of Jon Coupal ¶ 7. In his article, Mr. Coupal stated that city workers engage in 

independent expenditures so they can spend money in excess of contribution limits. But he did 

not say that independent expenditures were the source of what troubled him—i.e., the symbiotic 

relationship, described above, that he believes wastes taxpayers’ money. As Mr. Coupal 

acknowledges, “that problem would exist even if there were no such thing as independent 

expenditures.” Id. at ¶ 8. Furthermore, “the idea that this specific problem has anything to do 

with whether independent expenditures, per se, cause corruption is absurd. Reaching that 

conclusion from my article requires a huge stretch that is unsupported by what is actually in the 

article.” Id. 

180. Denied. Once again, the FEC takes Mr. Coupal’s words out of context in an 

article he wrote focusing on the relationship between unions and city governments, described 

above. Mr. Coupal did not state that independent expenditures are the source of corruption or 

what the FEC calls “undue influence,” and he did not advocate that independent expenditures 

should be restricted. The FEC mischaracterizes a quote from Mr. Coupal in a newspaper article 

as showing that he has “recognized that independent expenditures would allow individuals to 

circumvent campaign finance restrictions, public financing for example.” However, what Mr. 

Coupal said was that the public financing of elections would cause more spending on 

independent expenditures; he said nothing about the circumvention of campaign finance laws 

and restrictions such as contribution limits. “Circumvention” implies that there is something 

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illegal or corrupt about making independent expenditures. While the FEC may wish that were 

so, it is not. 

“7. People Have Established Independent Groups Devoted to Electing or 

Defeating a Single Candidate.” (¶¶ 181-184) 

181. Denied. This is just an assertion in the Wilcox report with no support. It is also 

irrelevant whether or not groups have been formed for specific races. 

182. Denied. Mr. Johnson provides no support for these claims, and the Gorilla Report 

does not support them. See FEC Ex. 47. This paragraph is also irrelevant. 

183. Denied. This paragraph purports to be based on an entire section that appears 

elsewhere in the FEC’s facts. It is thus cumulative of other facts and irrelevant for the reasons 

stated above. 

184. Denied. There is no evidence that these groups existed “solely to advocate for the 

election or defeat” of Bush or Kerry. The FEC ultimately concluded that these groups had 

engaged in express advocacy and the groups chose to enter into conciliation agreements, but they 

did not admit that they were formed for the purpose of advocating for or against these 

candidates. 

 “IV.C. Candidates Are Usually Aware of the Identity of Individuals Making 

Large Contributions to Fund Independent Expenditures.” (¶¶ 185-202) 

1. General Objections 

The claims in this section are irrelevant for the reasons stated with respect to the previous 

section. It is not coordination for those who make independent expenditures to tell candidates 

about them. See 11 C.F.R. § 109.21(d). Indeed, it is not coordination to contact a candidate 

even before making an independent expenditure as long as the purpose is to inquire about 

legislative or policy issues and not to discuss campaign plans, projects, activities or needs. See 

id. § 109.21(d), (f) (safe harbor for responses to inquiries about legislative or policy issues). 

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Greg Scott, the assistant staff director of the FEC’s information division,26 made this clear in his 

deposition in this case. He was asked, “If someone were to call the help line and ask is it 

coordination if I tell a candidate about an independent expenditure ad I ran after the ad has run, 

what would you answer? What would you say to those people?” Scott Dep. at 162:5-9. Mr. 

Scott answered, “I would say that based on our reading of the regulations[,] [p]ostcommunication discussions would not jeopardize the independence of that expenditure.” Id. at 

162:20-163:2. 

2. Specific Responses to Proposed Findings of Fact in Section IV.C.

185. Denied. This is simply a baseless assertion. 

186. There is no evidence for the claim that candidates usually know who is funding 

independent expenditures. That they are able to discover such information is obvious given that 

campaign finance laws make disclosure of this information mandatory. 

187. The statement in this paragraph is a general and unsupported assertion. That 

some candidates will be aware of donors to groups that make independent expenditures is 

obvious, but irrelevant. Moreover, Plaintiffs have made a separate motion to strike the Rozen 

declaration. 

188. The statements in this paragraph are arguments, not facts. They also directly 

conflict with governing law to the extent that Mr. Johnson claims that corruption results from 

independent expenditures. Under Supreme Court precedent, statutes, and FEC rules, that is not 

so. 

189. Admitted. 

190. Denied. This is a baseless assertion from the Wilcox report. 

 

26 The information division publishes and provides information about the campaign finance laws for the public and 

answers questions. See FEC Ex. 14, Scott Dep. at 10-14. 

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191. Denied. The statements in the Wilcox report that allegedly support these claims 

are newspaper articles. Thus, this is simply an effort to launder hearsay through the Wilcox 

report. 

192. Denied. This is another example of laundered hearsay. 

193. Plaintiffs do not dispute that “donors have the capacity” to notify candidates of 

whatever they want to notify them of. The remaining claims are baseless and are denied. 

194. Denied. This is based entirely on the Gorilla Report, which is hearsay and 

inherently unreliable. 

195. Denied. The central claim in this paragraph is simply a tautology and it is 

irrelevant in any event. The FEC admits in this paragraph that BCRA prohibits candidates from 

soliciting money for outside groups, yet it then claims that donors for the groups are nonetheless 

solicited “‘by a network of partisan activists, consultants, and lobbyists’ who have ‘directed them 

to the most effective committees.’” But anyone who operates a group that wants to speak out 

about politics can be considered a “partisan activist,” and “consultants and lobbyists” is a 

description that likely covers the vast majority of people employed in Washington, D.C. and 

every state capital in the Union. As a result, this statement says nothing more than that donors 

are solicited by the groups that want them to contribute to those groups. Indeed, the admission in 

this paragraph that BCRA outlawed candidate solicitation of donations for outside groups makes 

perfectly clear that the statement by Robert Hickmott is no longer true and is thus irrelevant to 

this case. So why does the FEC include a statement about an activity that it admits is no longer 

legal and is not being done by the Plaintiffs? To argue, by innuendo, that what is perfectly 

legal—making independent expenditures that may or may not be known to a candidates—is 

somehow illicit. In any event, the statements in this paragraph are hearsay. 

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196. Denied. This is a baseless and almost meaningless statement from the Wilcox 

report. Neither the FEC nor Professor Wilcox provides evidence that “access-seeking donors” 

will donate money to independent groups. Beyond that, the statement simply states a truism. 

Obviously, someone has to solicit donors for funds to pay for the independent expenditures that 

groups make. And donors will typically want to spend their money on things that are “effective” 

rather than “ineffective.” 

197. Denied. The FEC has provided no evidence of any “dense web of relations 

between independent expenditure groups and candidates and parties.” The anecdotes it has 

provided simply show (leaving aside that they are inadmissible for a host of reasons) that groups 

that speak out about political issues tend to employ those with the knowledge and experience 

necessary to do so, and that those individuals pay attention to publicly available information and 

often conduct research in order to make their public commentary more effective in conveying the 

information they want to convey. Moreover, this paragraph simply repeats claims made 

previously that rely on the notion that even if independent expenditures are not coordinated, 

there is still something illicit about them. It is entirely irrelevant. 

198-200. Denied. These paragraphs are based on newspaper articles and are thus 

hearsay. Moreover, they directly contradict the FEC’s own conclusion in its investigation of the 

Swift Boat Vets that there was no evidence of coordination. See Simpson Dec., Ex. 10, Swift 

Boat Vet conciliation agreement (dated 12/13/06).27 Thus, not having found any coordination, 

the FEC now wants to fall back on smear tactics and innuendo based on statements made in 

newspaper articles that were published before it completed its investigation of the Swift Boat 

Vets. These paragraphs are both cumulative and irrelevant. 

 

27 See In re: Swift Boat Veterans and POWs for Truth, MURs 5511 & 5525, available at, 

http://eqs.nictusa.com/eqsdocs/000058FA.pdf. 

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201. This is a particularly outrageous example of argument by innuendo. The FEC 

found no evidence of coordination in its investigation of these groups, yet it implies that the 

violations they were found to have committed had something to do with their “close ties” with 

the parties.28 See Simpson Decl., Exs. 8, 9. It then cites a chart from an article by Weismann & 

Hassan that simply groups all of the 527s mentioned under the general descriptions “Republican 

Oriented” and “Democratic Oriented.” See FEC Ex. 55 at 104-05. 

202. Denied. This paragraph is based entirely on hearsay and innuendo, and it is 

irrelevant. 

 “IV.D. Candidates Feel Indebted, Grateful, or Are Inappropriately Disposed 

to Favor Individuals Who Paid for Such Ads or Independent Expenditures.” 

(¶¶ 203-247) 

1. General Objections 

This section is based largely on the declarations of Robert Rozen, which only makes 

broad, conclusory claims about candidates and independent groups, and several declarations 

from the McConnell case, all of which the Plaintiffs have separately moved to strike. Moreover, 

virtually every paragraph in this subsection simply duplicates claims that the FEC has already 

made previously in their proposed findings, often relying on the very same evidence. This 

section, like the previous sections, relies on a legally incorrect view of “corruption” and ignores 

the principles of independence and coordination. It relies heavily on broad claims about donor 

motives, which cannot be used to prove the conduct, much less motives, of others, and is 

irrelevant to the question of whether speech is protected in any event. See FEC v. Wis. Right to 

Life, Inc. 127 S. Ct. 2652, 2665 (2007). 

 

28 See In re: The Media Fund, MUR 5440, available at http://eqs.nictusa.com/eqsdocs/0000668B.pdf; In Re: 

Progress for America Voter Fund, MUR 5546, available at http://eqs.nictusa.com/eqsdocs/00005AC1.pdf.

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2. Specific Responses to Proposed Findings of Fact in Section IV.D. 

203. Denied. This statement from the Wilcox report is conclusory and lacks any 

evidentiary support. Mere gratitude is not evidence of corruption. 

204. Denied. This paragraph relies on the declaration of Robert Rozen which, as noted 

above, is inadmissible. Furthermore, the proposed fact mischaracterizes the relevant portion of 

the Rozen declaration, which does not contain any discussion of “similar detrimental effects.” In 

addition, Defendant’s expert Clyde Wilcox has previously said that “the considerations that 

stimulated soft money giving do not automatically transfer to” independent groups. FEC Ex. 55, 

Wilcox et al., Interest Groups and Advocacy Organizations After BCRA at 120. One reason for 

the difference, according to Wilcox, is that “officeholders do not ask for the contributions to 

527s, so the potential reward is no longer so direct.” Id. Furthermore, both the proposed fact 

and the underlying statement from the Rozen declaration are conclusions that are not supported 

by any evidence on the record. And, again, mere gratitude cannot be evidence of corruption. 

205. Denied. This paragraph, relying solely on the inadmissible Rozen declaration, is 

irrelevant. Its sole topic, the issue of soft money contributions to political parties, is not an issue 

in this litigation, which is about independent expenditures, not contributions to candidates or 

political parties. Furthermore, the quotation from Robert Rozen that the FEC puts forward 

contains only conclusions and opinions, not substantive facts. 

206. Denied. This paragraph, relying solely on the inadmissible Rozen declaration, is 

actually an expert opinion that – in addition to being inadmissible as expert testimony not 

properly disclosed – lacks any evidentiary support. Also, it is not clear what Rozen means by 

“independent group.” Is he talking about a group that makes contributions to candidates, a group 

that makes issue ads, or a group, like SpeechNow.org, that will make only independent 

expenditures? Rozen’s discussion of gratitude is irrelevant. 

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207. Denied. This paragraph is actually a smattering of opinions and assertions by Mr. 

Rozen, none of which he supports with actual evidence. Plaintiffs would furthermore note that 

almost all individuals who gave more than $250,000 to 527 committees in the 2004 election 

cycle previously made soft-money contributions to a single political party. FEC Ex. 55. Stephen 

R. Weissman & Ruth Hassan, BCRA and the 527 Groups, in The Election After Reform 79, 94-

96 (Michael J. Malbin ed., 2006), Table 5.2. Donors interested in “access” would presumably 

give to candidates in either party. In addition, Mr. Rozen’s discussion of possible donor motives, 

gratitude, and the influential nature of donor speech is irrelevant and inadmissible. 

208. Denied. This paragraph is inadmissible hearsay. Simply quoting Professor 

Magleby’s broad assertions—based on no actual facts—in Professor Wilcox’s report does not 

remove the hearsay problem or transform those opinions into facts. And, once again, evidence of 

gratitude is irrelevant. 

209. Denied. This paragraph, based on a declaration from Democratic consultant 

Terry Beckett in the McConnell case, is inadmissible hearsay, irrelevant, and lacking foundation. 

Furthermore, the proposed fact mischaracterizes Ms. Beckett’s testimony, which discusses issue 

advocacy rather than independent expenditures. There is no foundation for the broad assertion 

Ms. Beckett makes about candidates “often” appreciating help from interest groups: her 

declaration includes only one specific example of a single race for a Congressional seat in 2000. 

210. Denied. This paragraph, based on a declaration from Democratic consultant Joe 

Lamson in the McConnell case, is inadmissible hearsay, irrelevant, and an opinion lacking 

evidentiary foundation. The discussion of sham issue ads and gratitude is irrelevant. 

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211. Denied. This paragraph, based on a declaration from former Senator Dale 

Bumpers in the McConnell case, is inadmissible hearsay, irrelevant, and an opinion lacking 

foundation. The discussion of sham issue ads and gratitude is irrelevant. 

212. Denied. This paragraph, based on a declaration from Senator Alan Simpson in 

the McConnell case, is inadmissible hearsay, irrelevant, and an opinion lacking foundation. The 

discussion of sham issue ads and gratitude is irrelevant. Senator Simpson also predicts possible 

future actions by others without any evidentiary support. Testimony of this sort is inadmissible 

under Federal Rule of Evidence 404. 

213. Denied. Like the quotes from the other McConnell declarations, the quote from 

Republican consultant Rocky Pennington—about issue ads and gratitude—is inadmissible 

hearsay, irrelevant, and opinion lacking foundation. Also, the FEC does not quote the 

immediately preceding statement by Mr. Pennington, which is that “[o]f course, occasionally the 

approach these groups take is off base, and in those cases the ads may not be that helpful.” FEC 

Ex. 33, Pennington Decl. at ¶ 11. 

214. Denied. This is yet more testimony from McConnell that is inadmissible hearsay, 

irrelevant, and lacking foundation. The Congresswoman’s “appreciat[ion]” of the issue ads is 

irrelevant. Notably, the Congresswoman does not state that she did anything improper as a result 

of her appreciation. 

215. Denied. The quote from the McConnell declaration of former Representative Pat 

Williams is inadmissible hearsay, irrelevant, and lacking foundation. Further, there is no such 

thing as the “functional equivalent of a campaign contribution” under the law. Professor Wilcox, 

in the first sentence of the proposed fact, asserts that “candidates see these independent ads as 

equivalent of contributions – very large contributions.” His sole support for that statement is 

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Representative Williams’ statement. Notably, although Representative Williams is talking about 

issue ads, Professor Wilcox’s use of “these” in the report of the page cited by the FEC actually 

refers to independent expenditures. 

216. Denied. The statements that Mr. Johnson puts forward in this proposed fact are 

solely assertions that he supports with no evidence. Not only does it lack foundation, but Mr. 

Johnson is clearly offering expert testimony even though the FEC failed to designate him as an 

expert witness and obtain from him an expert report. Thus, his testimony must be disregarded. 

217. Denied. This paragraph mostly consists of two quotes from Congresswoman 

Linda Chapin’s declaration in McConnell; her testimony is inadmissible hearsay, irrelevant, and 

lacking foundation. The Congresswoman’s appreciation of issue ads has nothing to do with the 

independent expenditures SpeechNow.org wishes to make. Moreover, it is notable that the 

Congresswoman does not say that her appreciation of the ads in her race changed her behavior in 

any way. 

218. Denied. This paragraph is inadmissible hearsay; it is also irrelevant and lacks 

foundation. Professor Wilcox is relating, for the truth of the matter asserted, a report from a 

newspaper article. Furthermore, in the cited portion of his report, Professor Wilcox qualifies his 

statement in his report by saying that the NFIB “reportedly” spent $100,000 and that Forbes 

“reportedly” called Jack Farris; the FEC removes that qualification. It is not clear whether the 

NFIB spent its money in the form of an issue ad, express advocacy, or through some other 

means, such as a get-out-the-vote effort. Whether Congressman Forbes felt gratitude for the 

NFIB’s assistance is irrelevant. 

219. The proposed fact, which relays statements made in an academic article by 

persons not testifying in this litigation, amounts to hearsay. In addition, the proposed fact fails to 

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mention how some regarded Democracy Alliance as a failure that acted as an impediment to 

fundraising. Simpson Decl. Ex. 47, David Magleby and Kelly D. Patterson, War Games: Issues 

and Resources in the Battle for Control of Congress, in Center for the Study of Elections and 

Democracy Report 22-23 (2007). Finally, it is not corrupt, as a matter of law, for donors to 

receive information about the effectiveness of a group from activists. If there is no coordination, 

there can be no corruption. 

220. Denied. This proposed fact is simply speculation with no factual support. As 

noted earlier, donors who give for ideological reasons are the largest class of donors. And 

“gratitude” and “obligation” are not, as a matter of law, sufficient to cause corruption. If they 

were, then every politician who appreciated the support he receives—i.e., all politicians—would 

be corrupt. If value to a candidate – rather than coordination and independence – opens the door 

to corruption, then things like favorable media coverage, editorial endorsements, and celebrity 

endorsements become corrupting. 

“1. Unlimited Contributions to Independent Expenditure Groups Are More 

Likely to Lead to Corruption than Direct Candidate Contributions Under 

the Legal Limits” (¶¶ 221-225)

221. Denied. The statement put forward by the FEC is not a fact in any sense, but just 

a summary of other proposed facts that the FEC later puts forward. Even this summary, though, 

mischaracterizes the nature of the proposed facts that follow. 

222. Denied. Both of the statements in this paragraph are conclusory. Both make 

assertions about what “always” or “almost always” is the case, but neither is supported with any 

evidence whatsoever. In addition, the second sentence of the proposed fact consists solely of a 

hearsay statement. 

223. Plaintiffs admit that, if there were no contribution limits applicable to groups like 

SpeechNow.org, individuals could give more money to such groups, and the groups would 

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therefore be able to spend more money. This paragraph constitutes an admission of a point that 

Plaintiffs made in their proposed findings of fact. 

224. Denied. All of the statements by Mr. Johnson in this paragraph are conclusory 

opinions and assertions without support. Only the last sentence in the quote from Mr. Johnson is 

about independent expenditures, and in that sentence, Mr. Johnson seems to be asserting that 

there is no such thing as independence, which simply denies a legal reality. 

225. Denied. This paragraph simply repeats a proposed fact already stated in 

paragraph 176. This proposed fact is nothing more than the conclusory opinion of Mr. Johnson. 

Again, because the FEC has not put forward Mr. Johnson as an expert, his testimony should be 

disregarded. 

“2. Ad Campaigns Run By Interest Groups Allow Candidates to Conserve 

Resources and Keep Their Hands Clean” (¶¶ 226-240)

226. This proposed finding is merely an assertion by Professor Wilcox. On the cited 

page of his report, Professor Wilcox actually makes two separate assertions that the FEC 

combines into one. The first assertion is that ads run by interest groups are generally more 

valuable than direct contributions to a campaign. For this assertion, he offers no support other 

than the second assertion, which is that “independent groups can make attacks on opposing 

candidates that would backfire if directly associated with the candidate.” Professor Wilcox says 

that this assertion, stated as fact, is “widely understood.” However, he cites only to two sources 

for his claim. The FEC quotes from those sources. One is a quote from Terry Dolan, who was 

the director of the National Conservative Political Action Committee (NCPAC) in 1980. The 

other is a quote from a book about issue—not express—advocacy in the 2002 election. 

227. Denied. Professor Wilcox cites to a 1980 quote from Terry Dolan that a group 

like NCPAC “could lie through its teeth, and the candidate it helps stays clean.” This is another 

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example of argument by innuendo. The FEC simply states a truism and then claims that it must 

have happened. The statements is also inadmissible hearsay—actually double hearsay, as it 

appears that Professor Wilcox obtained the quote from a source he did not cite. Of course, 

because independent expenditures are not controlled by candidates, all candidates are “clean” by 

virtue of the fact they had nothing to do with the expenditure. Thus, the quote is meaningless. 

228. Denied. This proposed finding is a quote from Professor Wilcox’s report, which 

is taken directly from a book that, as noted above, is about issue advocacy. Thus, it is 

inadmissible hearsay and irrelevant. Even more importantly, the quote is an opinion supported 

by no facts. (Neither the book nor an excerpt is included by the FEC as an exhibit.) Simply 

quoting that opinion in an expert’s report does not transform it into a fact. 

229. Denied. This paragraph is not a fact, but rather a summary of the paragraphs that 

follow. The FEC’s argument in this and the next several paragraphs is that a candidate’s silence 

or discouragement of independent expenditures is always evidence that she tacitly approves 

them, which makes no sense. 

230. Denied. The proposed finding is a quote from Rocky Pennington’s declaration 

from the McConnell case; it is inadmissible hearsay, irrelevant, and lacks foundation. (Although 

Professor Wilcox’s report is cited, it just cites to the declaration.) The FEC says that Mr. 

Pennington is talking about “independent ads.” The effect of this characterization is to make it 

seem that Mr. Pennington is talking about ads run by independent expenditure groups like 

SpeechNow.org. But the FEC omits the beginning of the quote, in which Mr. Pennington makes 

clear he is talking about “party and interest group attack ads.” Further, he is clearly talking 

about issue advocacy by corporations that was banned by Congress, not independent 

expenditures. Also, Mr. Pennington says that he thinks that “in virtually every campaign,” 

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candidates disavow negative ads, but secretly like them. In support of this sweeping statement, 

he offers no factual support. Lastly, the FEC does not mention that in this same paragraph Mr. 

Pennington states “[o]f course, occasionally the approach these groups take is off base, and in 

those cases the ads may not be that helpful.” FEC Ex. 33, Pennington Decl. at ¶ 11. 

231. This paragraph is based on hearsay and it is irrelevant. Even if the quote were not 

hearsay, it would not show that candidates give a “wink and a nod.” 

232. Denied. This paragraph is based on double hearsay; it is a quote of an article’s 

quote of Professor David Magleby. It is also simply a baseless assertion. 

233. Denied. This paragraph is not a statement of fact, but rather a summary of the 

following paragraphs that mischaracterizes those paragraphs. 

234. Denied. The newspaper articles that the FEC seeks to introduce are hearsay. The 

FEC further mischaracterizes the contents of the articles, both in this particular proposed fact and 

in their summary. The Chabot article states that McCain dropped his opposition not because he 

grew in favor of the independent ads, but due to the difficulty and time it took to denounce them. 

FEC Ex. 69 at 1-2. Likewise, the Rutenburg and Luo article contains no statement saying that 

McCain stopped opposing the advertisements out of a desire that the number of ads increase, 

which the FEC implies in Proposed Fact 233. FEC Ex. 70 at 1. 

235. Denied. Again, the FEC attempts to put forward a proposed finding supported 

solely by two pieces of hearsay evidence. And, as before, the FEC further mischaracterizes its 

evidence to support their contentions. Despite the FEC’s claims, there is nothing in either article 

that implies the Obama campaign sent “encouraging signals” to independent groups (unless one 

denotes silence alone as an encouraging signal). And neither does either article discuss how 

Democrat-leaning independent groups were “flush with new donations.” 

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236. Denied. This paragraph consists of three separate quotes from three different 

articles. All of the articles are inadmissible hearsay – two levels at least, and in some places 

three. Speculation that candidates may “privately hope” that groups run ads is not evidence of 

corruption; neither is hope, standing alone, coordination, which is needed for there to be a 

possibility of corruption. 

237. Denied. The FEC’s statement puts forward contains one unsupported fact and 

one bare assertion, also unsupported by any facts. The FEC says that there was but a day’s delay 

between the Willie Horton and Bush-Quayle ads, but does not provide any evidentiary support 

for the assertion. In addition, Professor Wilcox’s opinion about how one ad was able to play off 

the other’s imagery is conclusory and without support in the record. Furthermore, the fact that 

an ad by a candidate’s campaign on a topic runs after an ad by an independent group on a topic is 

simply irrelevant. 

238. Denied. The statement by Professor Wilcox is a conclusion for which he provides 

no evidentiary support. 

239. Denied. This paragraph is hearsay. Moreover, Plaintiffs’ counsel have been 

unable to find most of the quotation attributed to Mr. Moore in the cited exhibit. Beginning with 

“The rule of thumb,” it appears, as far as Plaintiffs’ counsel can tell, that the last five sentences 

are not in the exhibit. Thus, despite brackets that indicate this statement is a quotation, it is 

completely unreliable. Furthermore, Defendant quotes Mr. Moore as saying, “It’s much better to 

allow the candidates themselves to do positive ads about themselves and an outside group to do a 

negative ad.” (emphasis added). But the actual quotation in the proffered evidence said “issue 

ads that attack the congressman’s voting record,” not “negative ad.” 

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240. Denied. This paragraph repeats previous proposed findings, and the statement by 

Professor Wilcox is a series of surmises. In discussing the value of various contributions, 

Wilcox provides absolutely no evidence or standard by which one could independently verify 

that the value of a contribution to an independent group is less than an equivalently size 

contribution to a candidate, or that it is more valuable than a direct contribution that is at or 

below the contribution limits. In any event, whether an independent expenditure is more or less 

valuable to a candidate than a direct contribution is irrelevant, under the law, to the issue of 

corruption. 

“3. The Likelihood of Candidate Indebtedness Increases When the Amounts 

of Independent Expenditures Are High Relative to Candidate Spending” 

(¶¶ 241-247)

241. Denied. This paragraph is not a fact; it is a summary of the paragraphs that 

follow, and it draws a conclusion that is both nonsensical and that the paragraphs simply cannot 

support. 

242. Denied. The paragraph consists of nothing but the opinion of Professor Wilcox, 

with no supporting evidence. Furthermore, in reaching his opinion, Professor Wilcox makes 

numerous assumptions, both about the marginal value of additional spending in a political 

campaign and the relative productivity of various types of spending in a political campaign, to 

the point that all that is left is a generalized irrelevancy. Lastly, Professor Wilcox did not 

disclose this opinion, or the factual bases that underlie it, in his report. Instead, it was the 

product of questioning by Counsel for Defendants and clearly amounted to rebuttal expert 

testimony by an expert who provided no rebuttal report. Because the opinion is beyond the 

scope of Professor Wilcox’s report, it should not be considered by the Court. 

243. The paragraph is simply an assertion about the quality of the evidence in the 

paragraphs that follow it. But the Defendant’s attempt to cherry-pick various races to bolster its 

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opinion does not make that opinion true. In any event, as Plaintiffs discuss below, the 

Defendant’s evidence does not amount to proof sufficient to support this conclusion. 

244. Defendant’s proposed finding of fact is most interesting for what it fails to note. 

On the face of the report, it does indicate that seven candidates in 2006 had individuals and 

groups spend more than $ 1,000,000 in independent expenditures on their behalf. But those 

candidates, far from crushing their electoral opponents, won in barely over half of their races 

(four out of seven general elections). And the total amounts spent in the various races cited 

varied greatly, so focusing on $ 1,000,000 is completely arbitrary. This proposed finding of fact 

proves nothing more than that seven candidates in 2006 had individuals and groups spend more 

than $ 1,000,000 in independent expenditures on their behalf. 

245-46. Denied. This is nothing more than a conclusion by Clyde Wilcox that is based 

solely on the California FPPC “Gorilla” Report and is as unreliable as the report itself. See 

supra text preceding ¶ 168. Moreover, even assuming the data are reliable, the report itself only 

shows that there were “12 legislative and statewide races from January 1, 2001 through 

December 31, 2006, in which ‘independent expenditures’ accounted for more than 50% of the 

total campaign spending.” See FEC Ex. 47 at 23-24. This does not amount to “many” as 

Professor Wilcox claims. 

 “IV.E. Large Donations Are a Tool Used By Donors Seeking Access and 

Influence Over Candidates.” (¶¶ 248-266) 

1. General Objections

This section is largely a rehash of claims that the FEC has already made earlier in its 

proposed findings of fact and evidence on which it has already relied. As a result, this section is 

cumulative and irrelevant. It is also irrelevant because it ignores holdings, statutes, and rules that 

make clear that independent expenditures do not cause corruption and may not be limited. 

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2. Specific Responses to Remaining Proposed Findings of Fact in Section 

IV.E. 

248. Denied. This paragraph is a series of baseless assertions by Professor Wilcox, 

and it does not consist of facts, but merely summarizes other paragraphs in the FEC’s proposed 

findings. 

249. Denied. The first sentence of this paragraph is a baseless assertion by Professor 

Wilcox; the second is inadmissible hearsay. The last sentence is true but irrelevant. 

250. Denied. This paragraph is a baseless assertion and laundered hearsay. 

251. Denied. This paragraph is hearsay and it is irrelevant to the issues in this case. 

The fact that groups may or may not work with and communicate with each other has nothing to 

do with whether a group like SpeechNow.org raises concerns about corruption. 

252. Denied. This paragraph consist of baseless assertions by Professor Wilcox, all of 

which are irrelevant. 

253. Denied. This paragraph is simply hearsay and is irrelevant. 

254. Denied. This paragraph is baseless, repetitive, and irrelevant. 

255. Denied. This paragraph relies on hearsay and is irrelevant. 

256. Denied. This paragraph relies on hearsay and is irrelevant. 

257. Denied. This paragraph is simply a set of baseless assertions by Professor 

Wilcox, and it is hearsay. 

258. Denied. This paragraph is hearsay both because the FEC is directly quoting 

Professor Wilcox’s unsworn report, and because Professor Wilcox is simply summarizing an 

article written by Weissman and Hassan. 

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259. Denied. This paragraph is hearsay both because the FEC is directly quoting 

Professor Wilcox’s unsworn report, and because Professor Wilcox is directly quoting an article 

written by Weissman and Hassan. 

260. Denied. This paragraph is based on hearsay 

261. Denied. This paragraph is hearsay and it is baseless. 

262. Denied. This paragraph is hearsay, it is irrelevant, and the source does not 

support the FEC’s claims. Attempting to exert influence over American policy is not corruption, 

it is the essence of democracy. See NCPAC, 470 U.S. at 498. 

263. Denied. This paragraph consists entirely of hearsay. 

264. Denied. This paragraph is a baseless assertion from the Wilcox Report. 

265. Denied. This is a baseless assertion from the Wilcox Report. 

266. Denied. This paragraph consists of hearsay and is irrelevant in any event. This is 

another example of argument by innuendo. The FEC simply cites something that a donor did—

gave a check destined for a political party to someone who later became a candidate—and claims 

that it is evidence of corruption as applied to an entirely different context—that is, to individuals 

who make donations only to independent groups. 

 “IV.F. If Contributions to Groups Making Independent Expenditures Were 

No Longer Limited, Influence-Seeking Donors Would Quickly Give Massive 

Amounts.” (¶¶ 267-274) 

1. General Objections

This section is largely a rehash of claims that the FEC has already made earlier in its 

proposed findings of fact and evidence on which it has already relied. As a result, this section is 

cumulative and irrelevant. It is also irrelevant because it ignores holdings, statutes, and rules that 

make clear that independent expenditures do not cause corruption and may not be limited. 

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2. Specific Responses to Remaining Proposed Findings of Fact in Section 

IV.F. 

267. Denied. This is a baseless assertion and merely a summary of other paragraphs in 

the FEC’s proposed findings of fact. 

 268. This paragraph is based on the Rozen declaration, which Plaintiffs have moved to 

strike. Moreover, it is simply a broad statement that, because it has been stated broadly enough, 

is almost impossible to deny. It is therefore completely meaningless and irrelevant. 

 269. Admitted. But this paragraph is irrelevant. 

 270. Admit that the basic statement of facts, without the hyperbole, is true. But this 

paragraph is irrelevant. 

 271. Denied. This is a baseless assertion from the Wilcox report. 

 272. The first sentence is based on hearsay and is denied. It is true that David Keating 

has many responsibilities within the Club for Growth. The remaining sentences in this paragraph 

are hearsay. 

 273. Denied. “Adapting to changes in the regulatory environment” could mean 

anything from committing crimes to taking sensible steps to comply with new regulations. It is 

therefore a meaningless statement and is denied. David Keating’s testimony in his deposition 

speaks for itself. The FEC has repeatedly mischaracterized his testimony in this case and simply 

cannot be relied upon to quote accurately. 

 274. Many donors currently prefer to give to groups that expressly advocate the 

election or defeat of candidates, and the FEC has not offered any evidence to determine what 

donors have what preferences. This is therefore a broad and vague statement that might or might 

not be true. It is also baseless. 

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 “IV.G. Financers of Independent Expenditures Are Given Preferential 

Access to, and Have Undue Influence Over, Officeholders.” (¶¶ 275-286) 

1. General Objections

This section is largely a rehash of claims that the FEC has already made earlier in its 

proposed findings of fact and evidence on which it has already relied. As a result, this section is 

cumulative and irrelevant. It is also irrelevant because it ignores holdings, statutes, and rules that 

make clear that independent expenditures do not cause corruption and may not be limited. 

2. Specific Responses to Remaining Proposed Findings of Fact in Section 

IV.G. 

 275. Denied. Senator Bumpers’ statement is from his McConnell declaration which, 

for the reasons described in Plaintiffs’ memorandum of law in support of Plaintiffs’ First Motion 

in Limine, is inadmissible hearsay. Furthermore, Senator Bumpers is referring to issue 

advocacy, not independent expenditures, and is thus irrelevant. Further, he is merely speculating 

about how Members of Congress will behave. Notably, Senator Bumpers’ declaration does not 

contain a statement that he was “favorably disposed” to donors to a group that ran issue ads. 

 276. Denied. Mr. Pennington’s statement is from his McConnell declaration which, 

for the reasons described in Plaintiffs’ memorandum of law in support of Plaintiffs’ First Motion 

in Limine, is inadmissible hearsay. Second, the “these groups” Mr. Pennington is talking about 

in the cited paragraph of his declaration are “interest groups” that can, in addition to running ads, 

“can raise funds from their members, and in federal races this may take the form of raising 

federal funds (“hard money”) and bundling the checks, then delivering them all together.” 

SpeechNow.org will not give any money to candidates, so this paragraph is irrelevant. 

 277. Denied. No fact in this paragraph provides an example of how people who gave 

money to the Swift Boat Vets “apparently received favors from or access to the President.” 

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Also, the word “apparently” renders meaningless the assertion in the last sentence; it signals that 

the FEC has no evidence upon which to base that assertion. Finally, having a “significant 

impact” on elections is not corruption; rather, it is the essence of what political speech is 

supposed to do. 

 278. Denied. This paragraph is built upon two things: inadmissible hearsay from a 

sampling of newspaper articles and press releases and argument by innuendo. The FEC is 

suggesting that Mr. Pickens had dinner with Queen Elizabeth II ,got a post office named after 

him in his hometown and got the President to deliver the commencement speech at Oklahoma 

State University because he gave money to the Swift Boat Veterans. Of course, suggest is all it 

can do because it has no evidence—just its post hoc ergo propter hoc reasoning. Of course, one 

could just as easily suggest, without evidence, that he had dinner with the Queen because he is 

regularly invited to state dinners, that the post office was named after him because he is 

hometown’s most famous person, and that George Bush gave the speech at Oklahoma State 

because he wanted to go somewhere close to Texas. But innuendo is not evidence; neither is this 

paragraph. Finally, the cited newspaper article is not in the table of contents of the FEC’s 

exhibits. 

 279. Denied, again the FEC resorts to argument by innuendo. According to the FEC, 

Mr. Fox was nominated to an ambassadorship, so that must have been because of the money he 

gave to the Swift Boat Vets because, well, that just has to be the case. The FEC cites a White 

House press release as evidence that Mr. Fox had no foreign policy experience, but the release 

does not establish that; it does not purport to provide extensive biographies of any of the 

nominees it lists. The newspaper article cited at the end of the paragraph is inadmissible 

hearsay; furthermore, the reason the story gives for the withdrawal of Mr. Fox’s nomination is 

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because Senate Democrats, particularly Senator Kerry, resented his contribution to the Swift 

Boat Vets—not because he was unqualified for the post. The quote in the last sentence about 

“big-money contributors” being rewarded with ambassadorships highlights that Mr. Fox was a 

fundraiser who contributed money to the Republican Party and President Bush’s campaign. Of 

course, SpeechNow.org will not give money to parties or candidates. 

 280. Denied. This paragraph relies wholly on inadmissible hearsay from a series of 

newspaper articles. All of those articles make clear, by the way, that the reason Senator Kerry 

and other Democrats opposed the nomination was because they resented his role as a donor to 

the Swift Boat Veterans. The fact that Senator Kerry—the target of the Swift Boat Veterans’ ads 

–condemned the recess appointment is unsurprising. Even if this paragraph were not 

inadmissible hearsay, the fact that Senator Kerry alleged that Mr. Fox was being rewarded would 

not be evidence of anything other than that he made an allegation. The same is true in regard to 

Senator Edwards. 

 281. Denied. The first sentence implies, without evidence, that the only reason Mr. 

Fox was appointed was because of his donation to the Swift Boat Veterans. The rest of the 

paragraph is, again, argument by innuendo. The FEC says the quote in the last sentence is from 

“one observer” instead of simply disclosing that the quote is from a representative of a group 

called the Center for Governmental Studies, a group that, according to its website 

(www.cgs.org), favors the public financing of campaigns. In any event, his quote is double, and 

inadmissible, hearsay. 

 282. The first sentence is another example of argument by innuendo. The Club for 

Growth has run independent expenditure ads in the past and it sometimes holds conferences in 

which its members can meet with candidates. Put them both together in one sentence, add the 

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word “access”, and the FEC has an instant argument. But the FEC’s suggestion that the Club’s 

independent expenditures had anything to do with the conferences it describes in this paragraph 

is a baseless assertion. Moreover, the fact that Club for Growth hosts conference at which 

Members of Congress brief Club members about events in Congress is not evidence of 

corruption. Nor is it evidence of “access” to that are attended by its members and Members of 

Congress is irrelevant. This paragraph is irrelevant to the issues in this case. 

 283. This paragraph uses the term “support” in a way that could mean either financial 

support or political support. It is not clear from Mr. Young’s testimony whether he meant the 

candidates asked for financial support or just for votes. That said, Plaintiffs admit the facts in 

this paragraph. 

284. Admitted. 

285. Admitted. 

286. Most of the facts in this paragraph are true, but one is not. Stating that David Keating 

“believed that the persons who donated the most to Club for Growth received an invitation” 

implies that only those donors who gave the most receive an invitation. But here is what Mr. 

Keating said: 

Q. What's the range of people that the conference calls -- the smallest to the 

largest? 

A I'm not sure what the smallest, because I haven't done the data selections lately. 

It may go down to as low as $100. I wouldn't want to be quoted on the amount, 

because I don't know the exact amount. And the largest -- I would imagine the 

person, whoever that is, that's given the most amount of money got an invitation. 

Whether they joined the call, I wouldn't be able to recall that. 

Keating Dep. at 106:14-107:1. 

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 “IV. H. Large Contributions for Independent Expenditures Can Influence 

Legislative Votes or Other Official Actions, and Thereby Pose a Danger of 

Actual Quid Pro Quo Arrangements.” (¶¶ 287-314) 

1. General Objections. 

This section is based on the false premise that if independent expenditures influence 

legislative votes, that is quid pro quo corruption. But the Supreme Court has made clear the fact 

that legislators may alter or reaffirm their positions as a result of independent expenditures “can 

hardly be called corruption, for one of the essential features of democracy is the presentation to 

the electorate of varying points of view.” NCPAC, 470 U.S. at 498. Furthermore, as the 

Supreme Court held in both NCPAC and Buckley, there is no quid pro quo corruption unless 

there is coordination; thus, as a matter of law, the independence of an expenditure prevents it 

from being corrupting. See NCPAC, 470 U.S. at 498 (“[T]he absence of prearrangement and 

coordination undermines the value of the expenditure to the candidate, and thereby alleviates the 

danger that expenditures will be given as a quid pro quo for improper commitments from the 

candidate.”); Buckley, 424 U.S. at 46 (same). 

Moreover, the FEC’s alleged “evidence” of corruption involves examples, not of 

independent expenditures, but of coordinated expenditures and related illegal activity. 

Conveniently, it often omits facts that demonstrate the existence of coordination or simply fails 

to note that the events it describes plainly amount to coordination. Demonstrating that some 

people have violated the coordination rules does not demonstrate that others who make 

independent expenditures will engage in coordination. There is legal conduct and there is illegal 

conduct. We do not ban the former because the latter exists. If we did, jaywalking would be a 

justification for not allowing anyone to cross the street. And the fact that some have used speech 

to incite violence would justify banning all public demonstrations. Here again, the FEC is 

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simply blurring the distinction between independence and coordination, and engaging in more 

argument by innuendo. This section, like many of the previous sections, amounts to 

inadmissible character or propensity evidence and should be disregarded. See supra § E.1. 

Finally, Plaintiffs have moved to strike the declaration of Kevin Yowell, and if the Court 

grants that motion, the proposed facts that are based on that declaration should be disregarded as 

well. 

2. Findings of Fact to Which Plaintiffs Do Not Object In Section IV. H. 

Without admitting to their relevancy or adopting the FEC’s characterizations of the facts, 

Plaintiffs admit that the facts contained in the following paragraphs are true: 304 and 305. 

3. Specific Responses to Remaining Proposed Findings of Fact in Section 

IV. H. 

“1. A Group with an Interest in Gaming Issues Attempted to Bribe 

Former Congressman Snowbarger by Signaling That They Would 

Conduct an Independent Spending Campaign on His Behalf” (¶¶ 287-

297) 

287. Denied. This paragraph is not a statement of facts, nor even a summary of the 

facts that appear in the subsequent paragraphs in this section. Instead, it is merely an 

unsupported inference that the FEC draws from its descriptions of situations that have nothing to 

do with the lawful independent expenditures that Plaintiffs wish to make. As such, it is not a 

fact, it lacks foundation, and (like all the paragraphs below) is irrelevant. 

288. Denied. This paragraph is based on a declaration from Kevin Yowell and a news 

article from Ingrams Magazine. The latter is clearly inadmissible hearsay. Yowell’s assertions 

about the statements made by representatives of the tribe are also inadmissible hearsay. Further, 

while Plaintiffs do not dispute that the Wyandotte Tribe tried to get Congressman Snowbarger to 

change his vote, there is no foundation for the claim that this attempt is an “example of 

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independent expenditures providing a vehicle for groups to try to make quid pro quo

arrangements with elected officials.” Any expenditure made by the Tribe would have been a 

coordinated, not independent, expenditure pursuant to 2 U.S.C. § 441(a)(7)(B) and 11 C.F.R. 

§ 109.21. Furthermore, the Wyandotte Tribe’s offer to buy the Congressman’s vote was 

certainly illegal. See 18 U.S.C. § 203 (“Whoever . . . knowingly gives, promises, or offers any 

compensation for any . . . representational services rendered or to be rendered at a time when the 

person to whom the compensation is given, promised, or offered, is or was . . . a Member [of 

Congress] . . . shall be subject to the penalties set forth in section 216 of this title.”). Had the 

Congressman accepted the offer, he would have been in violation of 2 U.S.C. § 441i(3), which 

prohibits a federal candidate’s direction of funds unless those funds (treated as contributions 

because they are coordinated) are subject to contribution limits. This case is not about 

coordinated expenditures; nor is it about breaking criminal law. If SpeechNow.org coordinates 

its expenditures with a candidate, it will have to abide by the contribution limits. If it attempts to 

bribe a Member of Congress, it will be breaking the law. But SpeechNow.org proposes to do 

neither of these things, nor does the FEC even allege that it will. Thus, all of the paragraphs 

regarding the Snowbarger incident (paragraphs 288-297) are irrelevant. 

289. Denied. This paragraph relies on the Yowell declaration and inadmissible 

hearsay. 

290. Denied. This paragraph relies on the Yowell declaration and inadmissible hearsay 

evidence regarding the truth of matters set forth in a newspaper article in the Kansas City Star. 

291. Denied. This paragraph relies on the Yowell declaration and inadmissible hearsay 

contained in the Ingrams Magazine article. Moreover, the Yowell declaration states that 

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Congressman Snowbarger opposed the bill in question for specific reasons, but the stated reasons 

are hearsay. 

292. Denied. Defendants’ reliance on several newspaper articles—all of which 

constitute inadmissible hearsay—should be disallowed. Plaintiffs object to the characterization 

of the direct mail and phone campaign the tribe proposed to conduct in support of Congressman 

Snowbarger’s reelection as “independent” spending. Although the Yowell declaration 

characterizes the fax sent by the tribe as proposing an “independent spending” campaign, the fax 

itself (which is attached to the Yowell declaration as an exhibit) does not characterize the 

campaign as independent. Indeed, the fact that the fax was directed to a Congressman supports 

the opposite inference: that the proposed spending would be coordinated. Moreover, had the 

Congressman assented to the campaign, both FECA and the FEC’s regulations make clear that 

any expenditures would have been coordinated as a matter of law. Accordingly, expenditures by 

the tribe would have been in-kind contributions to the Congressman’s campaign and thus subject 

to contribution limits. Indeed, Counsel for Congressman Snowbarger’s election committee, in a 

letter to the FEC attached to Yowell’s declaration, clearly recognized that the expenditures 

proposed by the tribe would not be independent. See Exhibit 6 of Yowell Declaration (“This 

proposed ‘independent expenditure’ cannot reasonably be seen to be independent of the 

Committee, where both the Committee and the candidate know of its purported existence prior to 

its initiation.”) (emphasis added). And he was clearly concerned that the tribe’s polling expenses 

would be treated as a contribution to the Congressman. See id. 

Furthermore, the Yowell declaration summarizes the contents of the poll and memo put 

together by a pollster, but does not include either. In any event, Yowell’s representation of the 

contents of the poll, the memo, and the letter from C.J. Zane are inadmissible hearsay. The only 

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takeaway from this paragraph is that the tribe proposed a coordinated direct mail and phone 

campaign if the Congressman supported a bill that would get the tribe a casino, and that the 

proposal, if executed, would have been coordination. 

293. Denied. Mr. Yowell’s declaration quotes two statements from documents that 

were included within the fax sent to the campaign, but it does not actually include those 

documents as exhibits to Mr. Yowell’s declaration. Those statements are also inadmissible 

hearsay. Furthermore, the first quote makes it clear that the tribe was proposing a coordinated 

expenditure campaign, not an independent one: “Should the Congressman end up supporting 

this proposal . . . .” (emphasis added by FEC). Although Mr. Yowell characterizes the proposed 

spending by the tribe as independent, he is not a lawyer, he obviously knows nothing about 

independent expenditures, and he offers nothing to support that characterization. In any event, as 

noted above, whether an expenditure is independent or coordinated is determined as a matter of 

law, not by the unsupported characterization of a witness who may not understand what he is 

talking about. 

294. Denied. This paragraph is based on the Yowell declaration, and the FEC relies on 

newspaper articles that contain inadmissible hearsay. Mr. Yowell’s summary of Congressman 

Snowbarger’s remarks is also inadmissible hearsay. 

295. Denied. This paragraph is based on the Yowell declaration, and the FEC once 

again relies on the Ingrams Magazine article, the contents of which are inadmissible hearsay. 

296. Denied. Mr. Yowell’s characterization of the tribe’s offer as one to make an 

independent expenditure is, for the reasons stated above, without foundation and is contradicted 

by the statement of the counsel for Congressman Snowbarger’s reelection committee (an actual 

lawyer). Mr. Yowell’s assertion that a corrupt Congressman would not risk accepting a bribe of 

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only $5,000 or $6,000 is pure speculation and not grounded in personal experience. It is also 

irrelevant. Also irrelevant is the fact that independent expenditures can be greater than $5,000 or 

$6,000. 

297. Denied. Mr. Yowell’s opinion that Congressman Snowbarger’s public rejection 

of the tribe’s illegal offer cost him reelection is just that—an opinion, not a fact supported by any 

evidence. Furthermore, it is irrelevant. Mr. Yowell’s statement that the campaign proposed by 

the tribe “might have made the difference in the race had it gone forward” is also an opinion (and 

a qualified one, at that) based on pure speculation. Furthermore, that a coordinated expenditure 

campaign could have helped Congressman Snowbarger is irrelevant to the issue of whether 

unlimited contributions to groups that only make independent expenditures cause quid pro quo

corruption. Bribing voters would no doubt have helped the Congressman get elected as well, but 

that would be just as irrelevant to this case as the information in Mr. Yowell’s declaration. 

“2. Former Wisconsin Senate Majority Leader Chvala Extorted Funds In 

Return For Legislative Action, Including Funds for Purportedly Independent 

Campaign Spending.” (¶¶ 298-308). 

In this subsection, the FEC continues its pattern of characterizing as a fact a conclusion 

that it wishes to draw from those facts, and it continues its pattern of using the actions of those 

who have done something wrong to smear the intentions of those who have not. It is the FEC’s 

opinion, not a fact, that the actions of former Wisconsin State Senator Charles Chvala—an 

admitted criminal—demonstrate that large contributions to groups doing purportedly 

independent campaign work pose a danger of quid pro quo arrangements for legislative actions.” 

In fact, as demonstrated below, the alleged “independent” expenditures that Chvala made were 

actually coordinated and thus violated the law. The FEC obviously recognizes this, which is the 

reason it uses the word “purportedly” to describe those “independent” expenditures. This makes 

the FEC’s reliance on the Chvala example not only irrelevant, but comical. Who “purported” 

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that the expenditures were “independent”? Chvala, of course. The FEC thus hopes to use as 

evidence the fact that a criminal described his expenditures as “independent” when they were not 

independent, to prove that those who are not criminals are only describing their expenditures as 

“independent” when, in fact, they are not independent. From this, the FEC concludes that 

independent expenditures might cause corruption. The FEC’s position is like saying that because 

President Nixon famously proclaimed, “I am not a crook” we should be concerned that all 

Presidents might commit crimes. 

In any event, as described below, the FEC conveniently omits facts that conclusively 

demonstrate that the expenditures were coordinated, and that Chvala’s actions were illegal. 

Chvala was charged with “extortion, misconduct in office and violations of various campaign 

finance laws.” State v. Chvala, 2004 WI App. 53, P5 (Wis. Ct. App. 2004). Accordingly, the 

actions of Chvala are irrelevant to this case because they do not demonstrate that large 

contributions to independent expenditure groups that do nothing wrong pose a danger of quid pro 

quo corruption. Indeed, if Chvala, himself, were brought up on new charges of extortion 

tomorrow, the prosecution in the case could not introduce evidence of his past crimes in order to 

prove that his actions conform to his alleged “character” as an extortionist. See Fed. R. Evid. 

404(b). Yet the FEC wants to use Chvala’s example to prove that other individuals who have 

done nothing wrong have the “character” of lawbreakers and will likely act consistently with an 

alleged propensity toward corruption. The information in the paragraphs below concerning 

Chvala (paragraphs 298 through 308) is entirely irrelevant to this case. In addition, these 

paragraphs rely on the declaration of Michael Bright, which Plaintiffs have separately moved to 

strike. 

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298. Denied. This paragraph contains no facts; it only summarizes other irrelevant 

paragraphs. 

299. The information in this paragraph is irrelevant and relies on newspaper accounts, 

which are hearsay. However, Plaintiffs do not dispute the statements about Chvala’s career and 

the corruption charges filed against him that are not hearsay. 

300. Denied. Plaintiffs object to the language in this paragraph that refers to the 

groups to which Chvala encouraged people to give money as “independent” or making 

“independent” expenditures. As the criminal complaint filed against Chvala makes clear, Chvala 

controlled groups such as Independent Citizens for Democracy (PAC) (“ICD-PAC”) and 

Independent Citizens for Democracy-Issues (“ICD-Issues”). See, e.g., FEC Ex. 90, Criminal 

Complaint, ¶¶ 130-132, 137, 141-81, 210, 238. The complaint also makes clear that Chavala 

coordinated the activities of those (and other) groups with the campaigns of his legislative allies. 

See, e.g., id. at ¶¶ 130-40, 237, 241. But strangely, in this and other paragraphs where it 

summarizes portions of the criminal complaint, the FEC never mentions either of these crucial 

facts, which demonstrate unequivocally that there was absolutely nothing independent about the 

groups to which Chvala steered money or their expenditures. 

At best, these omissions are oversights; at worst, they are a disingenuous attempt by the 

FEC to brush away facts that clearly demonstrate the irrelevance of Chvala’s situation to this 

case. The notion that SpeechNow.org must not be allowed to accept unlimited contributions to 

make independent expenditures because others, acting criminally, have made coordinated 

expenditures and engaged in quid pro quo corruption is absurd. One might as well argue that no 

one should be allowed to become Majority Leader because some majority leaders might, like 

Chvala, abuse their power. 

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Plaintiffs do not object to the description of Senator Chvala’s criminal activity in the 

complaint filed against him. However, they do object to characterizations, contradicted by facts, 

about the “independence” of groups he controlled and their spending. 

301. Denied. This paragraph contains inadmissible hearsay about statements made by 

Chvala, and it relies on the declaration of Michael Bright. 

302. Denied. The FEC’s use of inadmissible hearsay in the form of newspaper articles 

continues in this paragraph, as does its incorrect assertion that the groups to which Chvala 

directed funds were “independent.” The only actual fact is that Chvala wielded tremendous 

power in the Wisconsin State Legislature and that that power allowed him to extort money from 

individuals with interest in legislation pending before that body. 

303. Denied. The FEC’s omissions of significant facts continue in this paragraph. 

First, as noted above, it is clear that ICD-PAC was controlled by Chvala and thus not an 

independent group. Second, it is clear that Chvala coordinated the activities of that group with 

the reelection campaign of Senator Meyer. FEC Ex. 90, Criminal Complaint at ¶¶ 130-140. 

Thus, as a matter of both fact and law, the expenditures that it made were not independent. The 

FEC, citing the criminal complaint filed against Chvala, states that a notarized oath by the 

treasurer of the group stated that the group would not act in concert, cooperation, or consultation 

with candidates. It appears that the FEC, based on that sentence, wants to create an inference 

that the group was actually independent. Any such inference is false: the FEC neglects to cite 

the portion of the complaint stating that the oath was false, and that ICD-PAC did indeed act in 

concert, coordination, or consultation with Senator Meyer’s campaign. See id. at ¶ 149. The 

only fact to be derived from this paragraph is that ICD-PAC spent more than $100,000 in 

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coordinated expenditures and that it received the funding to do so from Chvala’s illegal extortion 

scheme. 

306. Plaintiffs do not object to the statement of facts in this paragraph (despite the use 

of inadmissible hearsay from a newspaper article), except that the expenditures at issue were not 

“independent.” They were clearly coordinated. 

307. Denied. Independent Citizens for Democracy-Issues, Inc. (“ICD-Issues”) was, as 

the title suggests, a group that purportedly made issues advertisements, not advertisements with 

express advocacy. Thus, the discussion of the group is even more irrelevant than the rest of the 

Chvala saga to the issue of whether independent expenditures can cause corruption. Further, any 

“appearance of corruption and quid pro quo arrangements” was not the result of independent 

expenditures. (As noted above in the general objections, the FEC’s use of the concepts of 

corruption and its appearance is untethered from their actual legal meanings.) Plaintiffs admit to 

the truth of the remaining facts, minus the FEC’s characterization of them. 

308. The FEC leads off this paragraph with a statement that lobbyists whose clients 

made contributions offered testimony illustrating the potential for quid pro quo arrangements via 

an independent expenditure group. Once again, the FEC mischaracterizes the facts. The 

criminal complaint upon which it relies clearly recognizes that ICD-Issues was not independent. 

See, e.g., FEC Ex. 90, Criminal Complaint at ¶ 181. 

“3. Additional Incidents Further Illustrate the Danger of Large 

Contributions for Independent Spending Influencing Official Action or 

Leading to Quid Pro Quo.” (¶¶ 309-314) 

309. As an initial matter, this paragraph contains five levels of inadmissible hearsay: 

Professor Wilcox uses, for its truth, a statement allegedly made by Senator Mitch McConnell, in 

which he allegedly related about what tobacco industry leaders had said about mounting a 

television campaign. Senator John McCain purportedly heard this statement at a meeting; his 

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repetition of that statement was reported in a book; and the article’s repetition of McCain’s 

repetition of that statement is found in Professor Wilcox’s unsworn report. Even if the statement 

was not inadmissible hearsay, the FEC still does not explain its relevance. Putting aside the fact 

that the tobacco industry is composed of corporations, which SpeechNow.org is not, the FEC 

cites no facts about whether the ads actually were independent expenditures, whether they were 

made by independent expenditure groups and, if so, whether the groups accepted contributions 

over the relevant contribution limits. There are no facts at all about quid pro quo corruption. 

The quote from the Wilcox report, which is a quote from a Wall Street Journal article that the 

FEC does not include in its exhibits, is not only inadmissible hearsay by a reporter, but it states 

nothing about whether there was actually quid pro quo corruption. 

310. This paragraph is based on a declaration from the McConnell case that, for the 

reasons more fully described in the accompanying First Motion in Limine (primarily that they 

are inadmissible hearsay), simply cannot be admitted in this case. The statement about what the 

unnamed interest group offered would be inadmissible hearsay even if the full declaration was 

admissible. Furthermore, although it is not clear, it appears from the full context of the cited 

paragraph from the Chapin declaration—omitted by the FEC from its proposed finding—that the 

support being offered by the unnamed interest group, was actually an offered monetary 

contribution to a campaign being run by the Florida State Democratic Party—not support in the 

form of independent expenditures. See FEC Ex. 68, Chapin McConnell Decl. at ¶ 6, (“The 

Florida Women’s Vote Project of Emily’s List provided significant funding for the Democratic 

coordinated campaign [run by the Florida State Democratic Party] described above. At least one 

other interest group offered to provide campaign support if I would agree to vote a certain way 

on their issues.”). 

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311. Denied. This paragraph, based on the declaration of Mr. Yowell about another 

situation involving Congressman Snowbarger, is no more relevant than the other paragraphs 

concerning the Congressman. First, Mr. Yowell’s statement about what the interest group told 

him in regard to a change in Congressman Snowbarger’s position on term limits is inadmissible 

hearsay. Congressman Snowbarger’s statement about the interest group’s offer—that he 

expressed it would be wrong to accept the group’s help—is also inadmissible hearsay. Also, had 

Mr. Snowbarger assented to an expenditure campaign by the interest group by changing his 

position, the expenditures would, for the reasons described above, have been coordinated—not 

independent. Finally, for the same reasons that the offer by the Wyandottes was illegal and that 

the Congressman would have broken the law had he accepted it, the same is true of the offer by 

the unnamed interest group. SpeechNow.org will not engage in coordinated expenditures and 

has no intention of breaking the law, so this paragraph is irrelevant. 

312. Denied. This paragraph lacks foundation. In it, the FEC quotes from the 

declaration of the Chairman of the California Fair Political Practices Commission, Ross Johnson. 

Mr. Johnson states that California legislator Bonnie Garcia benefitted from a large independent 

expenditure from the California Peace Officers Association and that, afterwards, she tried to get 

a bill enacted that would have helped those officers obtain a raise. When asked at his deposition 

to provide evidence in support of his claim that Ms. Garcia’s actions resulted from the 

independent expenditure made on her behalf, Chairman Johnson conceded that he had none. 

FEC Ex. 10, Johnson Dep. at 79:1-4 (“Can I unscrew the top off [Garcia’s] head and know why 

she did what she did? No. Can I prove, therefore, that [Garcia] was unduly influenced by a huge 

independent expenditure? No, I cannot.”). Thus, his opinion is based not on facts, but solely 

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upon speculation based on the logical fallacy of post hoc ergo propter hoc. Accordingly, the 

Chairman’s opinion cannot be the foundation of actual evidence in this case. 

313. This paragraph, which quotes the opinion of Derek Cressman, the Government 

Watchdog Director of Common Cause about the effect of “big money independent 

expenditures,” is nothing but inadmissible hearsay. Mr. Cressman is not a witness in this case; 

he has not supplied a declaration in order to provide testimony under oath. Instead of seeking a 

declaration from him, the FEC just pulled a quote from a copy of testimony that Mr. Cressman 

offered at a hearing of the California Fair Political Practices Commission. Furthermore, even if 

Mr. Cressman’s words were not inadmissible hearsay, he appears to be offering an expert 

opinion based on specialized knowledge rather than a lay opinion. Thus, if the FEC wanted to 

use his testimony, it should have timely designated him as an expert in this case. Even if the 

testimony were lay testimony, Mr. Cressman’s participation as a witness in this case was not 

disclosed in the FEC’s initial or supplemental disclosures. And even if he were a properly 

designated expert or lay witness, the FEC offers no factual findings to serve as the basis of Mr. 

Cressman’s statements of opinion. Finally, because he was not designated as a witness, 

Plaintiffs never had the chance to obtain from him a specific definition of “undue influence” or 

to ask him about this specific case. 

314. This paragraph extensively quotes from the report of Professor Wilcox, which 

simply offers up conclusory opinions based on situations that, as described above, have nothing 

to do with independent expenditures or groups that make them. Accordingly, his opinions 

simply lack foundation and are irrelevant. 

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 “IV.I. Large Contributions for Independent Expenditures Create an 

Appearance of Corruption.” (¶¶ 315-334) 

1. General Objections. 

The FEC leads off this section with two conclusory opinions about the “appearance of 

corruption” that have no foundation in actual facts. The FEC then tries unsuccessfully to bolster 

these opinions with three things: (a) a tale of lapsed judicial ethics in West Virginia; (b) an 

inadmissible opinion poll; and (c) an argument that current law does not contain an expansive 

enough definition of coordination. For the reasons discussed below, that attempt is unsuccessful 

and provides no relevant evidence for this Court. 

a. Lapsed judicial ethics in West Virginia: The FEC first argues that independent 

expenditures made in a 2004 judicial election in West Virginia created an appearance of 

corruption; the paragraphs in the section are mostly based on a declaration by Justice Larry 

Starcher of the West Virginia Supreme Court—a declaration that both the Justice and the FEC 

refused to provide to Plaintiffs until after he had been deposed, despite the fact that the 

declaration was finalized before that deposition. FEC Ex. 16, Starcher Dep. at 40-44, 60. 

According to Justice Starcher, independent expenditures funded by the head of Massey Energy 

Co., which had a case pending before the West Virginia Supreme Court, resulted in the election 

of Justice Brent Benjamin and resulted in the “appearance of corruption.” But, as explained 

below, the saga Justice Starcher describes is not about campaign finance law; it is instead about 

how a judge—who, unlike a legislator or governor, is supposed to a neutral arbiter—failed to act 

ethically by recusing himself from a case. 

The FEC and Justice Starcher’s declaration use the term “appearance of corruption” in 

reference to Justice Benjamin, but, in his deposition, Justice Starcher does not use that term. 

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When he uses the term “corrupt” in reference to Justice Benjamin, he makes it is clear that he is 

not referring to quid pro quo corruption, but rather Justice Benjamin’s negative impact on the 

confidence of people in the justice system—specifically a decline in the belief of the judiciary’s 

fairness and impartiality. FEC Ex. 16, Starcher Dep. at 163:23-164:16. This is significant 

because Justice Starcher is not talking about the “appearance of corruption” as defined in 

Buckley—i.e., the appearance of quid pro quo corruption. Instead, he is talking about a “higher” 

ethical standard that no legislator or executive branch official has to meet when running for 

office—the appearance that, on all issues, he will be fair and impartial. FEC Ex. 16, Starcher 

Dep. at 106:10-17. Legislators and governors, on the other hand, are free to take positions on 

controversial issues before deciding them. Indeed, they are supposed to do so. See NCPAC, 470 

U.S. at 498. As Justice Starcher recognized, nothing prevents these officials from being 

advocates for a position when they are running for office; judges, on the other hand, are not 

supposed to do so. FEC Ex. 16, Starcher Dep. at 104:1-106:17. As Justice Starcher notes, that is 

forbidden by a judicial canon that finds no equivalent in the other branches. Id. 

Furthermore, as Justice Starcher recognizes, the issue of whether Justice Benjamin’s 

failure to recuse himself violates due process is currently before the U.S. Supreme Court. 

Caperton v. A.T. Massey Coal Co., No. 33350, 2008 W. Va. LEXIS 22 (W. Va. Apr. 3, 2008), 

cert. granted, __ U.S.L.W. __ (U.S. Nov. 14, 2008) (No. 08-22). Indeed, the motion for recusal 

of Justice Benjamin that the FEC includes as an exhibit argues that an “appearance of 

unfairness” constitutes a lack of due process. FEC Ex. 104, Motion of Respondent Corporations 

for Disqualification of Justice Benjamin at 5. 

Justice Starcher is absolutely correct that when it comes to fairness and impartiality, 

judges are held to a “higher” standard than a legislator or governor. (The standard is higher 

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because it is possible to not have appeared to receive a quid pro quo but to still appear to be 

unfair or partial.). It is this higher standard, and not “the appearance of corruption” to which 

Justice Starcher is referring when he is speaking for himself, outside the construct of a 

declaration prepared for him by the FEC that (1) was not prepared on the basis of an interview 

with him, FEC Ex. 16, Starcher Dep. at 31:6-32:16, and (2) that he hurriedly reviewed and 

signed, Id. at 36: 7-8 (“I said to [my senior law clerk], I said, oh, we don’t have time to change 

[the declaration prepared by the FEC’s counsel].”). Comparing the appearance of a judge’s 

ability to be fair and impartial to a politician’s avoidance of the appearance of corruption is, as 

established by Justice Starcher’s testimony, an apples-oranges comparison. Given that fact, this 

section of the FEC’s proposed facts is simply irrelevant. It is further rendered irrelevant by the 

fact that, as Justice Starcher conceded at his deposition, had Justice Benjamin simply recused 

himself from the Massey matter, that would have “absolutely” removed the appearance of 

impropriety. FEC Ex. 16, Starcher Dep. at 144:9-20. Thus, according to Justice Starcher, the 

but-for cause of any appearance of impropriety was not Mr. Blankenship’s independent 

expenditures, but Justice Benjamin’s failure to recuse himself from the Massey case in light of 

those expenditures. This conclusion is reinforced by the fact that, as Justice Starcher noted, 

Justice Benjamin has voted against Mr. Blankenship’s company in other cases. FEC Ex. 16, 

Starcher Dep. at 164:6-7. Justice Starcher makes no allegation that Mr. Blankenship’s 

independent expenditures caused an appearance of impropriety in those cases. The FEC fails to 

mention any of this in its proposed facts. 

 Finally, the proposed statement of facts regarding Justice Benjamin relies on a poll that, 

for the reasons more fully described in the memorandum of law in support of Plaintiffs’ First 

Motion in Limine, is inadmissible hearsay. Even if it were not, as more fully described below, it 

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is clear that the poll was asking about the appearance of lack of fairness and impartiality, not the 

appearance of corruption. For these and the other specific objections noted below—e.g., 

statements based on inadmissible hearsay and lacking foundation—the Court should not adopt 

this section of the FEC’s proposed statement of facts, all of which are irrelevant. 

b. Inadmissible poll results: Second, in paragraphs 333 through 336, the FEC relies 

on a 2008 Zogby poll it paid for to try to demonstrate that independent expenditures create the 

appearance of corruption. But, for the reasons noted in the Memorandum of Points and 

Authorities in Support of Plaintiffs’ First Motion in Limine, that poll and the declaration through 

which it is introduced are inadmissible. The remaining statements in the paragraphs about other 

polls are likewise both inadmissible and irrelevant, as they discuss topics that are simply not at 

issue in this case. 

c. An argument that the definition of “coordination” is not broad enough: In 

paragraphs 342 through 344, the FEC tries to demonstrate the need for contribution limits 

“because coordination is inherently very difficult to police and candidate campaigns are often 

involved with ‘independent’ spending below the level of involvement that coordinates 

‘coordination’ within the meaning of the law.” The FEC continues to try to marshal facts against 

the concepts of coordination and independence, and to argue that, because some people may 

illegally coordinate their expenditures, contribution limits must be placed on everyone. 

2. Findings of Fact to Which Plaintiffs Do Not Object In Section IV.I. 

Without admitting to their relevancy or adopting the FEC’s characterizations of the facts, 

Plaintiffs admit the facts contained in the following paragraphs are true: ¶¶ 318-322, and 324. 

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3. Specific Responses to Remaining Proposed Findings of Fact in Section IV.I. 

315. Denied. This paragraph is based on two quotes from the Wilcox report. For the 

reasons explained in Plaintiffs’ Second Motion in Limine, that report is inadmissible. 

Furthermore, the first quote is an opinion by Wilcox that “[i]f the public believes that politicians 

give favors to large donors, then trust in the political system is undermined. The appearance of 

corruption has a corrosive effect on the public’s ability to judge whether their trust in 

government is warranted.” Cited for this statement are an article and a book by philosophers 

who (1) are not relying on actual data and (2) are not using the legal definition of corruption. See

FEC Ex. 18, Wilcox Dep. at 95:11-96:21. This conclusory statement is not a fact; it is simply 

lacking any foundation. The second statement is that allowing unlimited contributions to entities 

making independent expenditures “will likely contribute to the perception of corruption by the 

public” is based on two inadmissible opinion polls. Both of them are discussed below. See infra

¶¶ 328-341. 

316. Denied. This paragraph simply quotes from the deposition of Ross Johnson, 

Chairman of the California Fair Political Practices Commission. (The paragraph erroneously 

cites to Mr. Johnson’s declaration as the source of the quote.) The quotation is a sweeping 

opinion that Chairman Johnson offered with absolutely no factual foundation. This opinion is 

not a fact, or even an opinion that is based on personal experience. As the surrounding context 

makes clear, the opinion is based on Mr. Johnson’s personal belief as to what constitutes “undue 

influence” and how, as a matter of theory, that relates to contributions to candidates and 

independent expenditures. This opinion is clearly offered as the opinion of an expert, not an 

actual fact that is being reported by a lay witness. As discussed more fully in Plaintiffs’ First 

Motion in Limine, Chairman Johnson is an expert witness, but, because the FEC failed to 

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designate him as one in this matter, his testimony must be excluded. Regardless of whether the 

opinion is lay or expert, the statement is not rooted in facts or data. Indeed, if this statement is 

admissible, then Plaintiffs should be allowed to offer as fact the opinion of anyone who wants to 

make an argument that independent expenditures do not cause the appearance of corruption, 

regardless of whether any support for that opinion is offered. 

“1. A Coal Company Executive’s Contributions for Independent 

Expenditures In a 2004 West Virginia Supreme Court Race Illustrate the 

Appearance of Corruption. (¶¶ 317-332) 

317. Denied. The statement that “independent expenditures in a 2004 judicial election 

in West Virginia created an appearance of corruption” lacks foundation. Although independent 

expenditures played a role in the election of Justice Benjamin, the facts, as shown above, 

demonstrate that Justice Benjamin’s refusal to recuse himself from a case was the source of 

public concern about impropriety. Furthermore, this and the following paragraphs are irrelevant 

because, as the witness upon whose testimony they are based—West Virginia Supreme Court 

Justice Larry Starcher—noted, judges have a much different role than members of the other two 

branches of government, and judicial elections are different than legislative or executive branch 

elections. 

323. Plaintiffs do not object to this statement of fact, except that statements that an ad 

was “notorious” and that all of the ads that were run were misleading and untruthful lack 

foundation. These statements are based solely on the opinion of Justice Starcher, who does not 

offer a factual basis for that opinion. (The pages of the Mot. Of Resp’t Corporations for 

Disqualification of Justice Benjamin, which the FEC cites as additional source material for the 

paragraph, also does not speak to these statements.) 

325. Denied. Plaintiffs agree that Justice Benjamin defeated Justice McGraw in the 

general election. There is no evidence offered in the form of opinion or exit polls, as to whether 

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that result was “largely due” – to say the least, an imprecise term – to independent expenditures 

funded by Mr. Blankenship. Justice Starcher’s statements are quite colorful—e.g., “I said 

publicly that seeing a seat bought makes me want to puke . . . .”—but they are not facts, just his 

characterization of the outcome of the election. In any event, Plaintiffs are willing to stipulate 

that the independent expenditures funded by Mr. Blankenship played a role in Justice Benjamin’s 

victory. 

326. Plaintiffs agree with the summary of events, although they note that it is partially 

based on inadmissible hearsay found within a newspaper article on LegalNewsline.com. 

327. Denied. This is a summary and mischaracterization of the proposed findings that 

follow. 

328. Denied. The poll results are clearly inadmissible hearsay evidence. In order to 

submit this or any poll into evidence, the FEC must, as explained in Plaintiffs’ First Motion in 

Limine, do so through an expert witness in this case. But instead of doing that, it simply relies 

on—in addition to newspaper articles that are clearly inadmissible hearsay—an affidavit by the 

pollster from another case that was attached to a motion—specifically Caperton v. A.T. Massey 

Coal Co., No. 33350, 2008 W. Va. LEXIS 22 (W. Va. Apr. 3, 2008). For the reasons discussed 

in Plaintiffs’ First Motion in Limine, affidavits from other cases are plainly inadmissible hearsay. 

Further, the poll does not ask about “corruption,” but rather about fairness and impartiality. As 

noted above, corruption and impartiality, as well as the appearance of each, are completely 

different things. For that reason, Professor Wilcox’s assertion (relying solely on an affidavit by 

the pollster) that the poll results are “a clear sign of corruption” lacks foundation and is 

irrelevant. 

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329. Denied. Plaintiffs agree that people have expressed doubts about Justice 

Benjamin’s ability to be impartial in the Massey case. Also, Mr. Blankenship made independent 

expenditures supporting Justice Benjamin’s election. Justice Starcher says that “[t]he pernicious 

effect of Mr. Blankenship’s bestowal of his personal wealth has created a cancer in the affairs of 

the Supreme Court.” If Justice Starcher is attempting, in colorful terms, to say that the public has 

no confidence in the West Virginia Supreme Court, he offers no evidence to support that 

assertion. Furthermore, as noted above, Justice Starcher conceded at his deposition that any 

appearance of impropriety would have “absolutely” been removed by Justice Benjamin’s recusal 

from the case. Thus, any “cancer” on the affairs of the court – whatever that means – was caused 

by Justice Benjamin’s failure to recuse himself. 

330. Denied. To the extent the FEC is trying to characterize independent expenditures 

as contributions to candidates, it is wrong as a matter of law, for the reasons discussed above. 

See supra Part I.A. For the reasons stated in the general objections for paragraphs 317 through 

332, there was not an “appearance of corruption” because of unlimited contributions; rather, 

there was an appearance of impropriety because of Justice Benjamin’s failure to recuse himself. 

Justice Starcher’s opinion on this topic is thus lacking in foundation and contradicted by his 

deposition testimony. Justice Starcher’s use of the phrase “getting away with it scot-free” 

suggests, incorrectly, that Mr. Blankenship’s funding of independent expenditures was a criminal 

activity. 

331. The quote that the FEC obtained from former West Virginia Supreme Court 

Justice Richard Neely is double hearsay, and therefore inadmissible. The FEC obtains the quote 

from the motion for disqualification against Justice Benjamin in the Massey case; the motion 

obtains the quote from a newspaper article. Also, in the statement, Justice Neely says that 

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“[w]hen someone like Don Blankenship offers you $3 million, you can’t turn it down.” If Don 

Blankenship had offered $3 million dollars to Justice Benjamin’s campaign, that would have 

constituted a coordinated, not independent, expenditure. 

332. Denied. The first sentence is not a fact, but rather an opinion lacking in any 

foundation. The quoted text in the second sentence demonstrates again the difference between 

the declaration prepared for Justice Starcher by the FEC and Justice Starcher’s own testimony. 

Although the quote from the declaration says, in part, “I do not see why elections for legislative 

office are any different [than judicial elections],” FEC Ex. 5, Starcher Decl. at ¶ 15, Justice 

Starcher, as noted above, spoke at length at his deposition about the significant difference 

between judicial candidates and candidates for offices in the other branches of government, as 

well as the different fundraising rules that apply to judges. FEC Ex. 16, Starcher Dep. at 100:19-

108:9. Justice Starcher’s opinion that there should be limits on contributions given to 

independent expenditure committees is offered in the form a legal, and thus, expert, opinion, but 

Justice Starcher has not been designated as an expert in this case. (At his deposition, he stated 

that had not been retained as an expert. FEC Ex. 16, Starcher Dep. at 100:4-6.). Moreover, 

given that the saga of the lapsed judicial ethics of Justice Benjamin is simply irrelevant to this 

case, it is lacking in foundation. 

“2. The Public Views Large Election-Related Contributions As Corrupting, 

Regardless of the Recipient. (¶¶ 333-341) 

333. For the reasons more fully described in the memorandum of law attached to 

Plaintiffs’ First Motion in Limine, the referenced poll is inadmissible pursuant to the FEC’s 

disregard of Fed.R.Civ.P. 26(a)(2). It was not introduced through expert testimony, just through 

a declaration from an individual who was not designated as an expert and did not provide an 

expert report. 

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334. Denied because of the poll’s inadmissibility as described in the above paragraph. 

Plaintiffs also note that the survey did not ask respondents about independent expenditures made 

by lone individuals, only those made by groups receiving contributions from individuals. This 

means that there is no baseline from which to compare public perception about the independent 

expenditures of individuals, which cannot be limited, and those of groups, which the FEC says 

must be limited by contribution limits. 

335. Denied because of the reasons stated in the previous two paragraphs. 

336. Denied because of the reasons stated in the previous three paragraphs. 

Furthermore, Professor Wilcox is simply offering his opinion about an inadmissible survey that 

he did not conduct. In addition, Professor Wilcox did not put forward any opinions concerning 

the Zogby survey in his report; as such, his deposition testimony on the matter is inadmissible. 

337. Denied because of the reasons stated in the previous four paragraphs. 

Furthermore, as he conceded at this deposition, the public does not have an idea of what 

constitutes corruption in the legal sense—which is the only sense that matters in this case. FEC 

Ex. 18, Wilcox Dep. at 46:21-47:3. This undermines any conclusions from the survey regarding 

the public’s perception of actual corruption. 

338. Denied because of the reasons stated in the previous five paragraphs. This 

paragraph is not a fact, but rather a summary of other proposed facts. 

339. Denied. This paragraph is irrelevant because this is not a case about “direct 

contributions to candidates” or “indirect contributions to party soft money committees.” It is 

about independent groups making independent expenditures. In his report, Professor Wilcox 

uses the language quoted here to contend that “the public is unlikely to believe . . . that large 

indirect contributions made through interest groups are not corrupting.” FEC Ex. 1, Wilcox 

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Rept. at 23. But notably, when Professor Wilcox asked Robert Shapiro if he would make a 

statement about “whether unlimited contributions by individuals to independent expenditure 

groups might be seen as corrupting by the public,” Professor Shapiro refused, saying “I would 

not want to conclude anything about the independent expenditur[e] groups from the data I looked 

at.” Simpson Decl., ’ Ex. 48, Email from Clyde Wilcox to Robert Shapiro (Aug. 13, 2008), at 1-

2. 

340. Denied. As explained more fully in Plaintiffs’ First Motion in Limine, this survey 

testimony from another case, not introduced by the expert who conducted the survey, is not 

admissible in this case. All that is provided from the survey – which is inadmissible hearsay – 

are the questions that Professor Wilcox chose to provide in his report; there is no full copy of the 

survey in the FEC’s exhibits, so its credibility cannot be fully evaluated. Furthermore, according 

to the survey questions from which Professor Wilcox quotes, the survey asked respondents about 

donors who were “individual[s], issue group[s], corporation[s], or labor union[s].” It is possible, 

if not likely, that a question focusing solely on a group like SpeechNow.org would have elicited 

different results. 

341. Denied. This statement of opinion, not fact, lacks foundation. In Professor 

Wilcox’s report, the quoted sentence is followed by the following sentence: “Because individuals 

are not currently allowed to make unlimited contributions to groups to fund explicit candidate 

advocacy, there is little direct polling on the topic, but existing research is confirmatory.” FEC 

Ex. 1, Wilcox Rept. at 23. But the “research” he cites are two opinion polls, neither of which 

compared unlimited independent expenditures by individuals to unlimited expenditures by 

groups, and all of whose defects (admissibility and otherwise) are discussed in Plaintiffs’ 

response to the paragraphs the FEC devotes to each of them. (Another common problem with the 

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polls is that, as explained above, Professor Wilcox concedes that the public is not aware of the 

legal definition of corruption.). Furthermore, even though Professor Wilcox cites to Richard N. 

Engstrom & Christopher Kenny, The Effects of Independent Expenditures in Senate Elections, 55 

Political Research Quarterly 885 (2002) in support of another one of his points, he ignores its 

statement, on page 889 that “it is rare to find independent expenditures figuring prominently in 

more rigorous examinations of the role money plays in the political process.” 

“3. Coordination is Inherently Verty Difficult to Police and Candidate 

Campaigns are Often Involved With ‘Independent’ Spending Below the 

Level of Involvement That Constitutes “Coordination’ Within the Meaning 

of the Law.” (¶¶ 342-344) 

342. Denied. This is not a statement of fact, but rather a summary of the proposed 

facts that follow. Furthermore, it is utterly lacking in foundation. 

343. Denied. Chairman Johnson talks about what an anonymous candidate told him; 

that is inadmissible hearsay. Again, under the law, there can be no corruption without 

coordination. The FEC cannot change the law just because it asserts that the law is difficult to 

enforce. Furthermore, it makes no sense to say that cooperation between a candidate and a group 

can occur without coordination. Plaintiffs note that politicians regularly cite the endorsement of 

certain groups who support them in their campaigns; if that causes corruption—which it does 

not—then all politicians are corrupt. If the professional association coordinated with the 

candidate, then its expenditure would not have been independent; thus, the statement would be 

irrelevant. Finally, given that the anonymous candidate openly spoke to Chairman Johnson, this 

is not an example of how coordination is “very difficult” to police. 

344. Denied. This statement is just a conclusory assertion with no evidence. 

Chairman Johnson suggests that the mailing patterns obviously signaled coordination. (The FEC 

quotes him as saying, “[i]f there was no coordination, it was an unbelievable coincidence.”). If 

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that is so, then this is an example of coordination that is very easy to detect. If the FPPC had 

investigated, then Chairman Johnson might actually have some facts on which to base his 

conclusory claims and the parties in this case could actually assess his view that coordination is 

hard to police. 

 “IV.J. Money Raised Through Associations with Many Protections of the 

Corporate Form Pose a Danger of ‘Corrosive and Distorting Effects of 

Immense Aggregations of Wealth.’” (¶¶ 345-349) 

1. General Objections 

This Court has already ruled that the so-called corporate form corruption rationale “is 

best understood to be limited to th[e] context” of “corporate campaign expenditures”—and thus 

“inapposite to an unincorporated, political organization such as SpeechNow.” SpeechNow.org v. 

Fed. Election Comm’n, 567 F. Supp. 2d 70, 81 n.10 (D.D.C. July 9, 2008) (Docket No. 32, Mem. 

Order, slip op. at 25-26 n.10) (emphasis added). As a result, this section is irrelevant and 

amounts to another attempt, like most of the FEC’s proposed findings of fact, to redraft 

provisions of law that the FEC would prefer be different. The FEC’s argument about the 

“distorting effects of immense aggregations of wealth” completely ignores the fact that the 

Supreme Court relied on that justification in cases involving statutes that singled out 

corporations for special limitations. See Austin v. Michigan Chamber of Commerce, 494 U.S. 

652, 658-60 (1990); FEC v. Beaumont, 539 U.S. 146, 152-56 (2003). But Congress has not seen 

fit to single out unincorporated associations for special treatment under the campaign finance 

laws, so there is no occasion for this Court to consider whether such treatment might be 

constitutional on the same basis on which the Supreme Court has upheld limitations on 

corporations. The FEC is, in essence, asking this Court to pass judgment on a statutory provision 

that does not exist. Moreover, with the exception of a single sentence in which the FEC 

accurately quotes an e-mail message from David Keating, see id. ¶ 349 (2d sentence), all of the 

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proposed findings of fact alleged by the FEC are not facts at all, but rather legal conclusions, 

mischaracterizations, or utter speculation. This Court properly rebuffed the FEC’s earlier efforts 

to inject this irrelevant issue into this case. It should do so again now. 

2. Specific Responses to Proposed Findings of Fact in Section IV.J. 

 345. This is not a fact but a legal conclusion. The District of Columbia Uniform 

Unincorporated Nonprofit Associations Act, D.C. Code §§ 29-971.01 et seq., speaks for itself. 

 346. This statement is unsupported and merely a summary of other proposed facts, 

which themselves are irrelevant to the issues raised in this case. Additionally, the FEC’s 

assertion is vague and mischaracterizes those other proposed facts since the FEC only points to 

“[o]ne such example.” See FEC’s Proposed Findings of Fact ¶ 347, see also id. ¶ 348. 

 347. This is not a fact but the FEC’s characterization of the issues and ruling in a case 

decided by the Colorado Court of Appeals. Moreover, not only is the cited decision not binding 

precedent in the D.C. Circuit, it is also wholly irrelevant to the instant action since the cited 

decision solely resolves wage claims brought by campaign workers. Indeed, the cited decision 

does not consider or even discuss the applicability of federal campaign finance laws to 

unincorporated associations. 

 348. This is a legal conclusion, not a fact, reached by a state appellate court in the 

context of a dispute over back wages, thus making it also irrelevant here. Indeed, nowhere in the 

cited decision did the Colorado Court of Appeals discuss the applicability or constitutionality of 

federal campaign finance laws to the speech and association of an unincorporated association, 

which are the issues raised in this case. As a result, the FEC mischaracterizes the legal 

conclusion it states as a fact here. 

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349. Denied. The second sentence of this paragraph accurately quotes the contents of 

an e-mail from David Keating, but the FEC draws the unwarranted assumption that Mr. Keating 

was using the statement in the email as “an inducement to potential members.” Furthermore, 

whether the District of Columbia Uniform Unincorporated Nonprofit Associations Act, D.C. 

Code § 29-971.01 et seq., limits liability to members of SpeechNow.org, and, if so, the level of 

limited liability it provides, is a legal conclusion, not a fact.

 “IV.K. Independent Expenditures Through Groups are Less Transparent to 

the Public than Independent Expenditures Made by Individuals.” (¶¶ 350-

360) 

350. Admitted. 

351. Denied. This is a baseless assertion from Professor Wilcox that is a conclusion, 

not a fact. Moreover, this simply ignores the right of association, and it indicates that the FEC’s 

position in this case is nonsensical. The FEC apparently has no problem with individuals hiring 

consultants to do precisely what SpeechNow.org does, but if they wish, as Fred Young stated in 

his deposition, to “quote/unquote hire SpeechNow.org to do that sort of thing” that apparently 

creates concerns about corruption. See FEC Ex. 19, Young Dep. at 92:11-93:4. 

352. Denied. The statements here are baseless assertions and opinions, not facts. First, 

Plaintiffs note that if the organization were truly comprised of the CEO and other executives, the 

organization would have to call itself something, and this name is the one that would be used in 

the disclaimer. Under federal law, however, the CEO’s funding for the ad would have been fully 

disclosed. See 2 U.S.C 434(c). Plaintiffs note that there are many organizations, such as 

qualified non-profit corporations under 11 CFR 114.10, that do not list the names of the donors 

in the disclaimer, and yet, are not required to register as political committees. See Massachusetts 

Citizens for Life, Inc v. FEC, 479 U.S. 238 (1986). 

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353. Denied. These are baseless claims from an unreliable report produced by the 

California FPPC. They are also hearsay, and they conflict with federal law. Currently, any 

group that makes independent expenditures only discloses its name on its disclaimers and the 

public must track down contributor information by examining campaign finance reports. All 

contributions of $200 or more to such groups for independent expenditures are disclosed, see 2 

U.S.C. § 434(c), and because SpeechNow.org is organized under section 527 of the Internal 

Revenue Code, all of its receipts will be made publicly available according to 26 U.S.C. § 527j. 

Keating Decl. ¶¶ 35-36. 

354. This statement is true but irrelevant. SpeechNow.org cannot accept donations 

from groups such as these. 

355. Denied. This is a string of baseless assertions, opinion, and hyperbole. 

356. This statement is a tautology and therefore meaningless and irrelevant. 

357. Denied. These statements are baseless assertions from an unreliable report 

produced by the California FPPC and they are hearsay. 

358. Denied. As stated above, federal law does not permit people “to make statements 

[independent expenditures] without taking responsibility for them.” Even if Republicans for 

Clean Air—an organization of two brothers that ran advertising attacking 2000 Presidential 

primary candidate John McCain—were operating today, it would have to disclose all funds paid 

for independent expenditures to the FEC, and have to disclose its receipts to the Internal Revenue 

Service. See 2 U.S.C. § 434(c); 26 U.S.C. § 527j. No one would be wondering how much the 

Wyly brothers would be spending for its advertising, just as no one wondered who the Wyly 

brothers were in 2000 when the press reported thoroughly on their activities. Moreover, the 

statements in this paragraph are hearsay. 

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359. Denied. These are baseless statements from the Wilcox Report, and the second is 

double hearsay. 

360. These are statements from a Supreme Court case that involved “sham” issue ads, 

and thus have no relevance to this case. 

O. “IV.L. The Disclosure of All Receipts and Expenditures Ensures that Vital 

Information About Who is Supporting Candidates is Made Publicly 

Available.” (¶¶ 361-375) 

361. Denied. This is a baseless and broad statement by Professor Wilcox. First, the 

reporting obligations for organizations other than political committees apply to any 

communication in any medium that expressly advocate the election or defeat of a federal 

candidate, including communications made over broadcast, cable or satellite; via phone; direct 

mail; newspaper or magazine; over the internet or in e-mail, and in any fundraising appeal that 

contains express advocacy. Simpson Decl., Ex. 25, Scott Depo. 103:21. Second, all costs 

associated with each communication must be disclosed. Id. at 101:15. This would include: the 

cost of airtime, Id. at 102:10; the cost of postage for written communications distributed through 

mail, id at 102:20; the cost of research used to determine the most optimal form of 

communication, id. at 103:3; production costs for radio and television advertising, id at 103:7; 

printing costs for written materials used in communications, id at 103:10; fees for the media 

buyer, id. at104: 11; fees for the direct mail vendor, id. at 104:13; the cost of internet banner ads, 

id. at 104:15; costs of newspaper ad space for independent expenditures, id. at 104: 20; and, 

production costs and creative fees for the newspaper advertising itself. Id. at 105:1. 

 362. Denied. These are broad, baseless statements by Professor Wilcox that do not 

apply to SpeechNow.org, which will spend the majority of its funds on express advocacy. 

Keating Decl. ¶ 2. 

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 363. Denied. These are broad, baseless statements that do not apply to 

SpeechNow.org. SpeechNow.org will disclose its independent expenditures and all of its donors 

over the disclosure limits ($200) regardless of what they fund, and SpeechNow.org will accept 

no earmarked funds. See Plaintiffs’ Proposed Findings of Fact at ¶ 27; Keating Decl. ¶¶ 35-36. 

 364. Denied. This is a baseless assertion by Professor Wilcox. Moreover, voters “will 

be able to see” who is paying for SpeechNow.org’s communications. See 2 U.S.C. § 434(c); 

Keating Decl., ¶¶ 35-36. 

365. This is hearsay and it is irrelevant to the issues in this case. SpeechNow.org will 

disclose all of its donors. See Plaintiffs’ Proposed Findings of Fact ¶ 27. 

 366. Denied. These are general statements that have no relevance to this case and they 

are hearsay. SpeechNow.org will disclose the costs of its independent expenditures under 

Federal law. Keating Decl. ¶ 2. Moreover, the public’s interest also lies in having available the 

maximum amount of information about politics, which groups like SpeechNow.org will help 

provide, and having the First Amendment rights of all vigorously protected. The disclosure rules 

for independent expenditures adequately protect the public’s right to information. Indeed, David 

Keating made clear in his deposition that he is interested in the FEC’s guidance on particular 

disclosure measures he can take in order to ensure appropriate disclosure for SpeechNow.org. 

See Keating Decl. at 184-86. The FEC has not only refused to provide such guidance, it has 

mischaracterized his statements to make it appear that he is not interested in full disclosure, when 

he quite clearly is. See FEC’s Proposed Findings of Fact ¶¶ 373-376; see also infra at ¶¶ 373-

376. 

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 367. Denied. This is a broad and baseless statement by Professor Wilcox. The 

“voters, the media, and civil society groups,” if they are at all interested, will each know who is 

paying for SpeechNow.org’s communications by checking FEC disclosure reports. 

368. This is a broad statement that is just a summary of other proposed facts. 

369. These statistics are likely true but irrelevant. They are aggregate numbers that say 

nothing about what a group like SpeechNow.org will spend on costs and expenses. 

370. These statistics are likely true but irrelevant. They are aggregate numbers, all of 

which apply to groups that are nothing like SpeechNow.org. 

371. This is a legal conclusion. What is stated appears to be true but is not complete. 

372. These statements are true but not complete. The forms and instructions speak for 

themselves. 

373. Part of this paragraph makes true statements but the last three sentences are 

brazen misrepresentations of Mr. Keating’s testimony. It is simply false to say that 

“SpeechNow.org has taken different positions regarding whether it would disclose all of its 

donors.” In fact, Mr. Keating stated in his declaration that SpeechNow.org would disclose all of 

its donors who contributed above the disclosure threshold. Keating Decl. at ¶ 36. Mr. Keating 

did not testify to the contrary. Keating Dep. at 184. (FEC Ex. 11). The FEC is ascribing to Mr. 

Keating a position that the Club for Growth, Mr. Keating’s employer, took in a dispute with the 

FEC last February. The FEC claims in this paragraph that Mr. Keating “agreed with the position 

taken in a letter to the Commission from the Club for Growth, insisting that disclosure was 

limited to contributors who had specified that that contribution was for the purpose of furthering 

an independent expenditure.” But there are two things wrong with this. First, even if Mr. 

Keating had agreed with the Club’s position, that position could not be ascribed to 

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SpeechNow.org, which is a separate organization with no connection to the Club. Second, Mr. 

Keating clearly stated that SpeechNow.org did not have a position on that issue: 

BY MR. DEELEY: 

Q Does SpeechNow also hold these opinions? 

MR. SIMPSON: Objection. I think that’s vague and -- that's good enough. 

THE WITNESS: I -- you know, your question could be interpreted many different 

ways. I don't know what you're asking. 

BY MR. DEELEY: 

Q Does SpeechNow disagree in any way with the statements that are made in 

this letter? 

MR. SIMPSON: I’m going to object on the grounds that statements made in this 

letter involve all sorts of legal conclusions and appears to have had the input of 

lawyers. I'm not sure that this witness can answer a question that would 

necessarily require him to consult with lawyers. But if he has a view of it, he can 

answer. 

THE WITNESS: Well, you're going to have to repeat the question for me. Sorry. 

(The record was read by the reporter.) 

MR. SIMPSON: Same objection. 

THE WITNESS: I don’t think SpeechNow has taken a position on this. If you 

want me to take a position -- we don't go reading every organization's 

responses to requests and take a position on them.

BY MR. DEELEY: 

Q Right. I understand. 

FEC Ex. 11, Keating Dep. at 84:21-86:3 (emphasis added). Apparently, the FEC did not like Mr. 

Keating’s answer, so it made one up. 

 374. Denied. This paragraph, too, is based on a brazen misrepresentation of Mr. 

Keating’s testimony. In fact, the position Mr. Keating took at his deposition on whether 

SpeechNow.org will report receipts and disbursements for expenses such as opposition research 

and polling was, in essence, tell me what to do and I will do it. This, again, is crystal clear from 

his deposition: 

Q If SpeechNow pays for candidate research or public-opinion polling, will it 

disclose those disbursement on its reports if it's successful in the litigation? 

A Well, which reports are you talking about? 

Q The independent expenditure reports. 

MR. SIMPSON: Objection. 

THE WITNESS: I don't know whether – I don't know what would be 

required, and maybe the commission would provide additional guidance, 

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either if it decides to drop -- just to concede and write an opinion or 

something, and then we can work out whatever arrangement you might be 

happy with. 

FEC Ex. 11, Keating Dep. at 185:18-186:8 (emphasis added). This came on the heels of 

testimony in which Mr. Keating made clear that he was happy to disclose all donors, whether he 

has to or not, and that that is what he will do absent further direction from the FEC: 

I don't know if we have to do it that way, but that's how we've decided that we 

would do it if we're allowed to do this. I was hoping the commission, in the 

advisory opinion request, would give some clarity about that. But if I don't get 

clarity from the commission, that's how I plan to do it. Clarity about what the 

commission would want me to do, or SpeechNow to do, that's how I would plan 

to do it, because I think that's the -- I think that's a way to disclose all this 

information to the public. We don't have a problem with that and putting that on 

our independent expenditure reports. And then you have all the information, and 

there's no argument about which donors are on there and which ones aren't on 

there. They're just all on there over the threshold. So there's no argument. 

Id. at 185:1-17. 

 375. Deny. This paragraph is entirely irrelevant because SpeechNow.org is not the 

Club for Growth. It also capitalizes on the same misrepresentation of Mr. Keating’s testimony 

based on the same Club for Growth dispute with the FEC as paragraph 373. 

E. “V. Robust Fundraising Has Occurred Within Federal Contribution Limits 

and Large Sums Can Be Raised For Independent Expenditures Through the 

Aggregation of Money From a Number of Donors.” (¶¶ 376-437) 

1. General Objections 

 While many of the facts on which the FEC’s claims are based in this section are true, this 

section is irrelevant because the FEC’s argument is based on a false premise—that the allegedly 

“robust fundraising” that has occurred under contribution limits means that the contribution 

limits do not violate the Plaintiffs’ First Amendment rights. But this is an incorrect view of 

constitutional law. The only legally relevant question is whether contribution limits burden their 

ability to speak to the extent and in the manner that they wish to speak. See FEC v. Wisc. Right 

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to Life, Inc., 127 S.Ct. 2652, 2664 (2007) (“Because [the statute] burdens political speech, it is 

subject to strict scrutiny”) [hereinafter WRTL II]; Citizens Against Rent Control, 454 U.S. at 298 

(“As we have noted, regulation of First Amendment rights is always subject to exacting judicial 

scrutiny.”) 

See also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for 

even minimal periods of time, unquestionably constitutes irreparable injury.”); Chaplaincy of 

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

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

of the harm may be presumed[.]”). 

Thus it is irrelevant that other groups may have raised significant funds under 

contribution limits, whether that fundraising is described as “robust” or not. As the Supreme 

Court made clear in WRTL II, the option to become a PAC and raise money under contribution 

limits, among the other burdens that apply to PACs, is not a viable constitutional alternative for 

independent groups who wish to speak out about political matters free of those limits. See 127 S. 

Ct. 2679 n. 9. Moreover, as the Court held in Citizens Against Rent Control, any limits on the 

ability of the group to raise or spend its funds necessarily limits its rights both to speech and 

association. See 454 U.S. at 299 (“Placing limits on contributions which in turn limit 

expenditures plainly impairs freedom of expression.”). 

It is no answer for the FEC to contend that Plaintiffs have other alternatives to producing 

and broadcasting the ads they desire. As the Supreme Court made clear in WRTL II, cheaper 

alternatives to broadcast advertising are not reasonable alternatives in terms of “impact and 

effectiveness.” 127 S. Ct. at 2671 n.9. See also id. (stating that a “speaker has the autonomy to 

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choose the content of his own message.’” Id. (citation omitted). In short, SpeechNow.org and 

its supporters have the right to choose their media and their message. 

Moreover, SpeechNow.org is unlike the non-connected committees to which the FEC 

refers in its proposed findings of fact. As a result, the evidence on which the FEC proposes to 

rely is inapposite. As the FEC recognized, unlike other non-connected committees, 

SpeechNow.org can accept funds only from individuals, and it will make only independent 

expenditures. However, the FEC proposes to rely on data that apply to all non-connected 

committees, which can accept contributions from groups and make direct contributions to 

candidates. Independent expenditures are very expensive, as contrasted with direct 

contributions, which can be made to candidates in any amount below the contribution limit. 

 2. Facts Plaintiffs Admit in Section V. 

 Without admitting their relevancy or adopting the FEC’s characterizations of the facts, 

Plaintiffs admit that the facts contained paragraphs 376-83 are true. 

3. Specific Response to the Remaining Proposed Finding of Fact in 

Section V. 

 384. The first sentence of this paragraph is a vague and unsupported statement that 

cites no evidence, while the second sentence is inadmissible double hearsay since it quotes a New 

York Times article authored by Matthew Mosk that quotes Tom Matzzie. Moreover, 

“successfully raised funds” has no meaning and appears to be a tautology. That is, it appears 

simply to mean that groups have raised money. 

385. This paragraph states legal conclusions, not facts. The cited Supreme Court 

decision and federal statutes and regulation speak for themselves. 

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 386. Denied. This paragraph is an unsupported opinion and it is hearsay. It is also 

irrelevant what amounts political party committees are able to raise. Party committees typically 

have vast fundraising staffs, donor lists, and they raise funds over the course of many years. 

 387. Denied. This paragraph is either an unsupported assertion or hearsay since the 

only evidence cited is the same article published by the Campaign Finance Institute, which itself 

does not cite the source of the data presented. This paragraph is also irrelevant for the reasons 

stated above. 

 388. Plaintiffs cannot verify the statistics cited, but have no reason to dispute them. 

However, they are aggregate amounts raised by all political party committees and thus irrelevant. 

This paragraph is either an unsupported assertion or hearsay since the only evidence is the same 

article published by the Campaign Finance Institute, which itself does not cite the source of the 

data presented. 

 389. The information in this paragraph is irrelevant. It is also an unsupported assertion 

and hearsay. However, Plaintiffs have no reason to doubt the amounts stated. 

 390. The information in this paragraph is irrelevant. It is also an unsupported assertion 

and hearsay. However, Plaintiffs have no reason to doubt the amounts stated. 

 391. This paragraph does not state a fact but merely purports to summarize proposed 

findings from other paragraphs. 

 392. This is a legal conclusion. 

 393. This paragraph states legal conclusions. The statutes and cases speak for 

themselves. 

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394. This paragraph states legal conclusions and simply recites irrelevant truisms. 

Similarly, a speaker who is told he may not speak about a particular topic “remains free” to talk 

about something else. 

395. Denied. This paragraph states no facts but merely summarizes other paragraphs 

and is argumentative. 

396. Admitted. 

397. This paragraph is true but irrelevant. 

398. Denied. SpeechNow.org has declined to become a PAC, which the Supreme 

Court has held is a choice protected under the First Amendment for groups that present no 

concerns about corruption. See WRTL II, 127 S. Ct. at 2671 n.9. 

399. This is true, but irrelevant. SpeechNow.org has spent less than $1000 to date 

because if it spends more than that, it will automatically become a PAC. This claim is rather like 

saying that someone threatened with jail for speaking does not really want to exercise his rights 

to free speech because he has not spoken yet. All of these points could equally be said about the 

plaintiff in WRTL II. 

400. This fact is true, but irrelevant. $22,200 is not nearly enough to finance the 

production and broadcast of even one advertisement. Yet raising that amount would require 

SpeechNow.org to register as a PAC, meaning the only actions it could take would be to comply 

with the regulations for PACs without actually running, or knowing whether it would ever be 

able to run, any ads. 

401. This paragraph is speculative, and highly unlikely in any event. As Plaintiffs’ 

expert Rodney Smith has stated (and as Professor Wilcox’s research has shown), most political 

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donors contribute small amounts of money. Thus, the likelihood of raising enough money from 

those who have signed up on SpeechNow.org’s website is extremely small. 

402. This is true, but irrelevant. SpeechNow.org has received that “free publicity” 

only because it has sued the FEC in this case. 

403. These facts are generally true, but irrelevant. Americans’ free speech rights do 

not depend on whether they know some journalists. 

404. This is true, but merely a restatement of paragraph 402 and thus cumulative. It is 

also irrelevant. This point is probably also true of every person who has ever sued to vindicate 

his or her First Amendment rights, yet the Supreme Court has never held that First Amendment 

rights expire upon filing a lawsuit to vindicate First Amendment rights. 

405-409. The facts in these paragraphs are true, but irrelevant for all of the reasons 

already stated. 

410-412. The facts stated in these paragraphs are generally true, but irrelevant. As a 

matter of law, contribution limits do not become less burdensome or less a violation of rights 

because any particular individual may have some experience in complying with them or in 

fundraising in general. 

413-415. The facts stated in these paragraphs appear to be true, but they are irrelevant. 

The Club is not a party to this case. 

416-420. The facts stated in these paragraphs appear to be true, but they are irrelevant. 

HJTA is not a party to this case. 

421. This fact is true but irrelevant. Cato is not a party to this case. 

422. Denied. The FEC has mixed up the chronology of these emails. They should be 

read from the bottom up (the time stamps appear inconsistent with this because Mr. Young lives 

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in a different time zone (Wisconsin) and it appears that the recipient’s time zone appears on each 

email). Moreover, the facts stated in this paragraph conflict with the fact stated in paragraph 36, 

in which the FEC described these emails as coming from SpeechNow.org. 

423-424. These facts appear true, but they are irrelevant. 

425. This is not a fact, it is a summary and a conclusion. 

426. Denied. This paragraph does not support the stated claim, it is irrelevant, and it is 

not a fact, it is a conclusion. 

427-428. Denied. David Keating described in his declaration in this case the reasons he 

did not register SpeechNow.org as a PAC. These paragraphs do not state facts, they state 

conclusions, and the are irrelevant. 

429. Denied. The claim that the “potential donors already identified” could have 

financed SpeechNow.org’s is simply a baseless assertion dressed up with some rudimentary 

mathematics. Indeed, SpeechNow.org could also finance ads at a cost of $120,000 using 

donations from 120,000 people giving $1 each, but stating that proves nothing. 

430. This paragraph is simply a summary of other paragraphs. 

431. This is true, but irrelevant. SpeechNow.org’s donors are also able to express 

themselves by writing letters to the editor or publishing their own newspaper and everything in 

between. As stated above, the fact that, in America, people have options is not generally used as 

evidence to restrict their rights. 

432. Denied. This simply states a legal conclusion. While it is true that the Supreme 

Court has held that limits on contributions to candidates do not limit the amount that those 

candidates can spend. The Supreme Court has also held, however, that placing limits on groups 

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like SpeechNow.org do limit the amounts they can spend. See Citizens Against Rent Control, 

454 U.S. at 299. 

433. Plaintiffs admit that there are many ways in which individuals can express 

themselves in this country. None of that is relevant to this case, however. 

434. For the reasons already stated, this fact is irrelevant. 

435. This is true but irrelevant. The Supreme Court has clearly held repeatedly that 

individuals have a right to choose their message and the means through which to express it. 

436. True but irrelevant. 

437. Plaintiffs admit that this is a great country that has spawned a wonderful array of 

private businesses that are designed to keep speech alive despite the best efforts of the FEC. 

F. “VI. Political Committee Reporting Requirements Do Not Threaten The 

Survival of SpeechNow or Other Campaign Groups.” 

438. Denied. This is in part a matter of opinion and in part a legal conclusion. 

439. Admit. 

440. Plaintiffs admit that registration is accomplished by filing FEC Form 1. 

441-443. Admit 

444. Denied. This is a statement of opinion by Greg Scott, a long-time employee of 

the FEC whose job is to explain to members of the public how to comply with FEC regulations. 

In any event, the opinions of any one person as to how burdensome PAC requirements are is 

irrelevant. 

445. Denied. Mr. Hickmott’s opinions about the burden of the laws that apply to PACs 

is irrelevant as well. 

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446. Denied. Even if the claim about the increase of nonconnected committees is true, 

it would not “confirm” that reporting requirements have not inhibited anyone from starting a non 

connected committee. 

447. This is simply a conclusory statement, not a fact. It is also vague. 

448. Mr. Keating would be the primary person responsible for complying with the 

reporting and other requirements, but he has stated that he would like to involve others in that if 

he can. 

449. Mr. Keating did not testify that he “developed a successful PAC” and NTU. He 

testified that he thought it was accurate to say, as an old bio of Mr. Keating’s stated, that 

“[u]nder his guidance, NTU developed a political action committee that had much success in the 

1994 elections.” FEC Ex. 11, Keating Dep. at 13:8-17. Otherwise, this paragraph is true. 

450. Denied. Mr. Keating did not testify that he “directed” the Club’s PAC; he 

testified that he “supervised mailings” and “helped design the website” of the Club’s PAC (FEC 

Ex. 11, Keating Dep. at 49:19-20) and that he did membership recruiting, analysis of legislation, 

and a number of other things for the current Club for Growth. See id. at 20-21. But he did not 

say, at least in the cited portions of his deposition, that he “directed” the Club’s PAC. 

451. Mr. Keating qualified his answers considerably more than the FEC lets on. For 

instance, when asked if he understood how to do PAC reporting, “Generally, I guess. I don't 

think I've ever prepared a report all by myself, but I may have.” Keating Dep. at 180:8-10. 

When asked if he remembered saying at a Cato forum that he understood how to report as a 

PAC, Mr. Keating responded “I don't recall that, but if I said it, I said it. I'm sure I could do it. 

But you know, would I want to do it versus other ways that would be simpler? No, I wouldn't 

want to.” Id. at 180:20-181:1. 

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CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court certify a short and 

simple set of facts consisting of only those facts that are admissible and are not substantially 

disputed. 

Dated: November 21, 2008. 

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) 

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

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 54 Filed 11/21/2008 Page 153 of 154
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CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on this 21st Day of November, 2008, a true and correct copy 

of the PLAINTIFFS’ BRIEF IN RESPONSE TO THE FEC’S PROPOSED FINDINGS OF 

FACT were electronically filed 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 54 Filed 11/21/2008 Page 154 of 154