UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 

 v. ) 

 ) REPLY 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION TO ALTER 

OR AMEND THE JUDGMENT 

The Federal Election Commission has moved this Court to alter or amend its judgment to 

include a declaration that the provisions of the Act upheld by the Court of Appeals are 

constitutional as applied to plaintiffs, and to reflect that plaintiffs are not entitled to injunctive 

relief or relief specifically involving the Commission’s regulations. See Defendant Federal 

Election Commission’s Motion to Alter or Amend the Judgment [Doc. #79]. The Court granted 

Plaintiffs’ Motion for Entry of Judgment two days before the Commission filed a timely partial 

opposition to the plaintiffs’ motion. The Court erred by issuing an incomplete judgment. In 

their response to the Commission’s motion, plaintiffs mischaracterize the Commission’s motion 

and incorrectly argue that the Court of Appeals required this Court to enjoin the Commission 

from enforcing the provisions of the Federal Election Campaign Act, 2 U.S.C. §§ 431-455 

(“Act”), held unconstitutional. See Plaintiffs’ Response to Defendant Federal Election 

Commission’s Motion to Alter or Amend the Judgment (“Resp.”) [Doc. #81]. 

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 The Commission has moved to amend the judgment because it is incomplete. The Court 

failed to enter judgment for the Commission on the organizational, administrative, and reporting 

provisions of the Act upheld by the Court of Appeals. Plaintiffs claim (Resp. at 6) that the Court 

properly refused to enter a “redundant” declaration because the Court of Appeals “[a]lready 

[d]eclared” that those provisions could be constitutionally applied to plaintiffs. Under this 

flawed reasoning, however, because the Court of Appeals had already declared the provisions 

limiting contributions to SpeechNow unconstitutional, this Court’s entry of judgment regarding 

those provisions would be redundant as well. Plaintiffs further suggest (Resp. at 7) that courts 

need not enter “redundant” judgments in favor of parties defending existing law. Courts 

routinely, of course, enter judgment in favor of those defending the status quo, whether the 

defendant has filed a counterclaim or not. See, e.g., Hi-Tech Pharmacal Co., Inc. v. FDA, No. 

08-01495 (D.D.C. filed Aug. 28, 2008) [Doc. #42]; Electronic Frontier Foundation v. DOJ, No. 

07-0656 (D.D.C. filed Apr. 10, 2010) [Doc. #50]. This obviously includes cases where a 

defendant is defending existing law. Indeed, if plaintiffs were correct, no district court would 

ever have occasion to explicitly hold in a judgment that a party defending the law has prevailed. 

Plaintiffs rely (Resp. at 3) on the mandate rule to argue erroneously that the Court had no 

reason to allow the Commission an opportunity to be heard on the plaintiffs’ motion for entry of 

judgment. The mandate rule provides that a district court has no “power or authority to deviate” 

from a circuit court’s mandate. Role Models Am., Inc. v. Geren, 514 F.3d 1308 (D.C. Cir. 2008). 

Contrary to plaintiffs’ argument, however, the mandate rule suggests that this Court was required 

to enter judgment on behalf of the Commission on the provisions of the Act upheld by the Court 

of Appeals: The mandate of the Court of Appeals specifically decreed that “there is no 

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constitutional infirmity in the application of the organizational, administrative, and reporting 

requirements” against plaintiffs. 

The Commission also moved to alter or amend the judgment because the Court erred by 

granting Plaintiffs’ Motion to Enter Judgment before the Commission had an opportunity to 

respond. The Commission is not in its pending motion seeking to relitigate the merits of this 

case, as plaintiffs claim (Resp. at 1). Rather, the Commission seeks to be heard on the question 

of what relief is appropriate to implement the judgment of the Court of Appeals. As the 

Commission explained in its Memorandum of Points and Authorities in Partial Opposition to 

Plaintiffs’ Motion for Entry of Judgment [Doc. #77] (“Partial Opposition”), the Court should 

have granted plaintiffs’ motion only insofar as it asked for declaratory relief — a remedy 

adequate to protect plaintiffs from further litigating the issues resolved by the Court of Appeals. 

 Plaintiffs claim that receiving declaratory relief by itself will render their judgment a 

nullity by leaving the Commission free to “harangue and pursue its contributors” (Resp. at 5-7). 

That contention lacks merit. The Commission has explicitly conceded that it cannot enforce the 

provisions of the Act held unconstitutional against the individual plaintiffs or SpeechNow 

(Partial Opposition at 4-8), and similarly may not enforce those provisions against those who 

wish to contribute to SpeechNow. Attempting to do so would be tantamount to enforcing the 

limits against SpeechNow itself, which is barred by collateral estoppel. See id.; cf. Utility 

Workers Union of America, Local 369 v. FEC, 691 F. Supp. 2d 101, 106 (D.D.C. 2010) 

(“Employee contributions to the PAC and PAC acceptance of those contributions are two sides 

of the same coin.”); 2 U.S.C. § 441a(f) (prohibiting political committees from knowingly 

accepting contributions in excess of the Act’s contribution limits). The Court’s declaration that 

the contribution limits cannot be enforced against SpeechNow of course means that the 

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Commission also cannot enforce the limits at issue against any of SpeechNow’s individual 

contributors.∗

 Given that the likelihood of an enforcement action against plaintiffs or 

SpeechNow’s other contributors is entirely unsupported, plaintiffs fail to present the proof of a 

threatened injury that is a prerequisite to an injunction. (Partial Opposition at 3-4, 8.) 

 Due process requires the Court to at least consider the Commission’s views, as set forth 

in its Partial Opposition, regarding what type of relief the Court should grant. Plaintiffs counter 

(Resp. at 2-4) that due process does not require the Commission to have such an opportunity to 

respond to Plaintiffs’ Motion for Entry of Judgment [Doc. #76] because entering judgment is a 

“purely ministerial act.” Plaintiffs’ only support for this proposition is, as discussed above, the 

mandate rule. The mandate issued by the Court of Appeals in this case, however, makes no 

mention of the exact form of relief the Court must provide — whether declaratory, injunctive, or 

both. Although the mandate vacates the Court’s July 2008 order denying preliminary injunctive 

relief, it provides no indication regarding whether a permanent injunction is appropriate. As the 

Commission explained in its Partial Opposition (at 8 n.8), the appellate court’s vacatur of a 

denial of preliminary relief is not dispositive as to whether plaintiffs now merit a permanent 

injunction, particularly where “a district court can ... protect the interests of a federal plaintiff by 

entering a declaratory judgment, and therefore the stronger injunctive medicine will be 

unnecessary,” Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). 

 

∗

 Plaintiffs appear to argue (Resp. at 6 n.4) that enjoining the Commission from enforcing 

its regulations that implement the provisions of the Act found unconstitutional is necessary 

because the Commission has not foresworn enforcing those statutory provisions against its nonplaintiff donors. But since the Commission will not enforce the statute against non-plaintiff 

donors, it obviously follows that the Commission similarly will not enforce implementing 

regulations against the same donors. In any event, as the Commission explained (Partial 

Opposition at 10 n.10), its regulations were not technically before the D.C. Circuit under 2 

U.S.C. § 437h, which empowers courts only to entertain actions “constru[ing] the 

constitutionality of any provision of this Act.”

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 In its Partial Opposition, the Commission explained that declaratory relief will adequately 

protect plaintiffs’ rights because of collateral estoppel, as well as the presumption that the 

government will obey a declaratory judgment. Plaintiffs mischaracterize (Resp. at 4 n.3) the 

Commission’s latter argument by claiming that the Commission contends that the government 

can always be presumed to comply with a declaratory judgment. But the Commission did not 

make this argument. Rather, the Commission explained that Supreme Court and D.C. Circuit 

precedent hold that in the absence of evidence that the government would not “acquiesce in the 

decision,” Poe v. Gerstein, 417 U.S. 281 (1974), the government can be presumed to comply. 

Plaintiffs counter (id.) by citing cases where courts entered injunctions against the government. 

But in none of those cases did the courts address the issue raised by the Commission here 

regarding unnecessary injunctions, and it does not appear that in any of them did the government 

resist injunctive relief by pointing to the authority that declaratory relief against the government 

is typically sufficient. Because there is no evidence in the instant case that the government will 

not acquiesce in the Circuit Court’s judgment granting relief to the plaintiffs, the proper course is 

to deny their request for injunctive relief. (Partial Opposition at 8-10.) 

For the foregoing reasons, as well as those in the Commission’s Motion to Alter or 

Amend, the Court should grant the relief therein requested by the Commission. 

 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

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6 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

July 2, 2010 (202) 694-1650 

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