United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendant.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemental Reply 

Regarding Citizens United v. FEC

In accordance with this Court’s January 26, 2010 order, Plaintiffs Republican National

Committee (“RNC”) et al. respectfully file this supplemental reply stating the impact of the

Supreme Court’s decision in Citizens United v. Federal Election Comm’n, ___ U.S. ___ (2010),

2010 WL 183856 (“Citizens United”) on the present litigation. Contrary to the Federal Election 1

Commission’s (“FEC”) and Intervenors’ contentions, the Federal Funds Restriction, 2 U.S.C. § 2

441i (“the Restriction”), is a prohibition; the Supreme Court’s narrow definition of corruption is

applicable to the determination of the constitutionality of all regulations, not just the regulation

of independent expenditures; and Citizens United did not reach the unambiguously-campaignrelated standard before this Court. 

 The slip opinion is available at http://www.supremecourtus.gov/opinions/09pdf/ 1

08-205.pdf

 This reply responds to Intervenor-Defendant DNC’s Supplemental Brief, Dkt. 97, 2

Defendant FEC’s Supplemental Brief, Dkt. 98 (“FEC Supp. Response”), and IntervenorDefendant Van Hollen’s Supplemental Brief, Dkt. 98 (“Van Hollen Supp. Response”). 

Supplemental Reply 

Regarding Citizens United 1

Case 1:08-cv-01953-RJL-RMC Document 100 Filed 02/12/10 Page 1 of 8
To be clear, although Citizens United dealt with a specific issue before the Supreme

Court, the reasoning used to arrive at the majority opinion has a direct bearing on this case and

overruled much of the reasoning relied upon in McConnell v. FEC, 540 U.S. 93 (2003). The

FEC and Van Hollen mischaracterize Plaintiffs’ argument as asking this Court to overturn the

relevant portion of McConnell. FEC Supp. Response at 6, Van Hollen Supp. Response at 7-8.

Unlike their cited case, Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 479,

where a Circuit Court applied a standard developed through a gradual jurisprudential shift, the

Supreme Court has spoken directly on a core issue in the present case. Plaintiffs are asking this

Court to apply the Supreme Court’s clear definition of corruption to determine the

constitutionality of the Restriction.

I. The Federal Funds Restriction, like the Corporate Expenditure Ban, is a 

Prohibition. 

The FEC and Intervenors focus on the difference between the expenditures at issue in

Citizens United and the contributions at issue here. They miss, however, the fundamental link –

both cases deal with a prohibition. The statute in question in Citizens United, 2 U.S.C. § 441b,

prohibited corporations and unions from using general treasury funds to conduct independent

expenditures. Similarly, here, 2 U.S.C. § 441i prohibits political parties from using non-federal

dollars for any activity. Although McConnell treated this prohibition as a contribution limit

instead of an expenditure limit, 540 U.S. at 138-39, such a classification does not change the fact

Supplemental Reply 

Regarding Citizens United 2

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that it is still a prohibition on the use of funds, one that is even more sweeping than the

prohibition struck down in Citizens United.

3

Under Citizens United, strict scrutiny is required for “[l]aws that burden political speech.”

Citizens United, slip op. at 23. Since the Restriction is an prohibition on Plaintiffs’ political

speech, the government must prove a substantial governmental interest in regulating Plaintiffs’

speech. But, even if intermediate scrutiny is appropriate, the government must still show an

important governmental interest in regulating Plaintiffs’ speech. In light of the RNC’s

post-McConnell policies or, further, based on the Supreme Court’s clarification of the prevention

of corruption or its appearance, see infra, the government is unable to show even an important,

let alone a substantial, government interest.

II. Regardless of Which Level of Scrutiny is Appropriate, the Prevention of

Access and Gratitude is not a Cognizable Anti-Corruption Interest. 

While the FEC and Intervenors admit that the Supreme Court has now excluded access

and gratitude from the definition of corruption, they claim that the Court limited this definition to

only the independent expenditure context. FEC Supp. Response at 4, Van Hollen Supp. Response

at 5. In so doing, the FEC and Intervenors improperly create a universe where the definition of

corruption varies depending on the regulation at issue. This cannot be so. The Supreme Court has

now clearly defined what is and what is not a legitimate governmental anti-corruption interest.

 Plaintiffs reiterate their previous argument that the removal of the corporate prohibition 3

now places political parties at a disadvantage. Supp. Mem. at 5. Van Hollen responds by pointing

to the Court’s rejection of the RNC’s equal protection claims in McConnell. Van Hollen Supp.

Response at 9. While Plaintiffs are relying on First Amendment principles to argue the

unconstitutionality of the Restriction, McConnell’s “equal protection” holding is now called into

question by Citizens United, which may provide separate grounds for invalidating the Restriction. 

Supplemental Reply 

Regarding Citizens United 3

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Citizens United, slip op. at 44-45. 

According to Intervenor Van Hollen, “[b]ecause Citizens United applies strict scrutiny, it

says nothing about whether the ‘influence and access’ that comes with political contributions

meets the less rigorous demands of ‘closely drawn’ scrutiny.” Van Hollen Supp. Response at 5. In

this nonsensical argument, Van Hollen confuses the scrutiny analysis. Here, the “sufficiently

important interest” is the government’s desire to prevent corruption (which now, by definition,

does not include access or gratitude). This Court must determine whether the Restriction is

“closely drawn” to this interest. Van Hollen argues that the definition of corruption is relaxed

when intermediate scrutiny is used. This is simply not true. Only the government’s burden of

showing the relationship (i.e. whether it is “closely drawn”) between the regulation and the

corruption interest is lessened under intermediate scrutiny. Therefore, regardless of which level

of scrutiny is employed, the definition of corruption remains the same.

Because of Citizens United, the FEC may no longer rely upon evidence of access and

gratitude from McConnell in order to justify the Restriction. “Ingratiation and access, in any

event, are not corruption.” Citizens United, slip op. at 45 (emphasis added). The Court noted, and

Plaintiffs are fully aware, that evidence relating to the government’s anti-corruption interest in

this Restriction was not before the Court in Citizens United. However, the Supreme Court has

now stated a clear definition of corruption which undercuts the FEC’s arguments relating to even

a “sufficiently important” government interest.4

 The FEC even goes so far to say that “Plaintiffs continue to sell access to donors.” FEC 4

Supp. Response at 7. Not only does the FEC blatantly ignore Plaintiffs’ continued assertions that

no access will be provided to donors of non-federal funds, Pls.’ Exh. 1, Beeson Aff. ¶ 19, 30;

FEC Exh. 4 at 7; FEC Exh. 1, Josefiak Dep. at 126:20-130:3; FEC Exh. 42, Steele Dep. at 51:10-

Supplemental Reply 

Regarding Citizens United 4

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Here, the FEC must provide evidence of quid pro quo corruption in order to justify the

Restriction. Citizens United, slip op. at 43. Not only has the government not provided any

evidence of quid pro quo corruption in its extensive briefing in this case, it is difficult to see how

Plaintiffs’ specific activities could possibly result in such corruption since they do not provide

any direct benefit to federal officeholders or candidates. Pls.’ Reply Mem. at 21-24; Pls.’ Mem.

5

at 24-27.

III. Citizens United Did Not Foreclose the Unambiguously-Campaign-Related Standard. 

The FEC boldly states that the Supreme Court “refused to adopt Plaintiffs’ invented

‘unambiguously campaign related’ test for political regulation.” FEC Supp. Response at 1. The

FEC is mistaken for two important reasons. First, Plaintiffs cannot be credited with the

“invention” of the unambiguously-campaign-related standard. Second, the standard was not

before the Court and therefore was not reached in Citizens United.

A. The Unambiguously-Campaign-Related Standard Stems from Supreme 

Court Precedent.

The unambiguously-campaign-related standard was first recognized in Buckley v. Valeo,

424 U.S. 1 (1976), where the Supreme Court required the government to limit its election-related

laws to reach only First Amendment activities “unambiguously related to the campaign of a

18, 55:13-22, 111:12-21, but this attack shows how dependent the government is on evidence,

real or conjured, of access. 

 In regard to Plaintiffs California Republican Party and the Republican Party of San 5

Diego, the regulation of federal election activity must fall with the Restriction since the

regulation of state activity is based on the prevention of circumvention. If there is no

governmental interest in upholding the Restriction, there is nothing to circumvent. 

Supplemental Reply 

Regarding Citizens United 5

Case 1:08-cv-01953-RJL-RMC Document 100 Filed 02/12/10 Page 5 of 8
particular federal candidate,” id. at 80 (emphasis added), in short, “unambiguously campaign

related,” id. at 81. The unambiguously-campaign-related requirement was also affirmed in

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). It has since been affirmed by

various circuit and district courts.6

Even Senator McCain, one of the chief sponsors of the Bipartisan Campaign Finance

Reform Act, expressly argued Buckley’s unambiguously-campaign-related analysis in

McConnell, insisting that the electioneering communication definition was a constitutional

“adjustment of the definition of which advertising expenditures are campaign related.” Brief for

Intervenor- Defendants Senator John McCain et al. at 57, McConnell, 540 U.S. 93. He further

argued that the “[d]isclosure rules . . . ‘shed the light of publicity on spending that is

unambiguously campaign related but would otherwise not be reported.’” Id. at 58 (quoting

Buckley v. Valeo, 424 U.S. 1, 81 (1976) (emphasis added). 

The analysis has also been recognized and used by the FEC General Counsel and by many

FEC Commissioners. See Petition for Writ of Certiorari, FEC v. Faucher (No. 90-1923) (arguing

authority to regulate an “expenditure that is unambiguously election related”) and Statement of

Reasons (Dec. 16, 2003) in Matters Under Review (“MURs”) 5024, 5154, and 5146 (available at

www.fec.gov) (“SOR”). Specifically, FEC Commissioners Weintraub, Thomas, and McDonald

noted that “the Buckley Court explained the purpose of the express advocacy standard,” which

North Carolina Right to Life v. Leake, 525 F.3d at 281 (4th Cir. 2008), Nat’l Right to

6

Work Legal Def. and Educ. Found., Inc. v. Herbert, 581 F. Supp. 2d 1132, 1146 (D. Utah 2008);

Center for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *5, *9,

*14, *17, *25 (S.D. W. Va. Oct. 17, 2008); Broward Coal. of Condos., Homeowners Ass’ns and

Cmty. Orgs. v. Browning, No. 08-445, 2008 WL 4791004, at *7 (N.D. Fla. Oct. 29, 2008)

(same), clarified on other grounds, 2008 WL 4878917 (N.D. Fla. Nov. 2, 2008).

Supplemental Reply 

Regarding Citizens United 6

Case 1:08-cv-01953-RJL-RMC Document 100 Filed 02/12/10 Page 6 of 8
“was to limit application of the . . . reporting provision to ‘spending that is unambiguously

related to the campaign of a particular federal candidate.’” Id. (quoting Buckley, 424 U.S. at 80)

(emphasis in SOR). The Commissioners, quoting Buckley, stated: “[u]nder an express advocacy

standard, the reporting requirements would ‘shed the light of publicity on spending that is

unambiguously campaign related . . . .’” SOR at 2 (quoting 424 U.S. at 82) (emphasis in SOR).

Most recently, in a January 22, 2009 SOR in MUR 5541 (“November Fund SOR”),

current FEC Commissioners Petersen, Hunter and McGahn emphasized the need to “fully

incorporate important principles in recent judicial decisions,” including . . . the Fourth Circuit’s

persuasive decision in . . . [North Carolina Right to Life v.] Leake[, 525 F.3d 274 (4th Cir.

2008)],” November Fund SOR at 2, and stated that “the Act does not reach those ‘engaged purely

in issue discussion,’ but instead can only reach ‘that spending that is unambiguously related to

the campaign of a particular federal candidate’ . . . .” Id. at 5. 

B. Citizens United Did Not Reach the Unambiguously-Campaign-Related Issue 

Because It Was Not Before the Court.

While many courts and government entities have recognized the unambiguouslycampaign-related standard, the fact that the Supreme Court did not mention it in Citizens United

does not mean that the standard is rejected. The FEC states that the Court “did not adopt this

standard” and argues that, since Plaintiffs cannot use Citizens United to bolster the

unambiguously-campaign-related argument, the argument must fail. FEC Supp. Response at 3.

Not only is this contrary to their wholesale assertions that “Citizens United does not affect this

case,” id. at 1, it also mischaracterizes the arguments that were before the Supreme Court.

The FEC cites the jurisdictional statement and an amicus brief for the contention that

Supplemental Reply 

Regarding Citizens United 7

Case 1:08-cv-01953-RJL-RMC Document 100 Filed 02/12/10 Page 7 of 8
Citizens United argued the unambiguously-campaign-related standard. Id. at 3. However, the

FEC did not and cannot point to any portion of Citizens United’s merits briefing or oral argument

to support this contention. Accordingly, nothing in Citizens United suggests that the Court

rejected the standard. 

Conclusion

For the reasons stated above, Plaintiffs’ motion for summary judgment should be granted.

Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP

455 Capitol Mall, Suite 801

Sacramento, CA 95814

Tel: (916) 442-7757

Fax: (916) 442-7759

cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Respectfully submitted,

 /s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041

Richard E. Coleson*

Kaylan L. Phillips*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for all Plaintiffs

*Pro Hac Vice

Supplemental Reply 

Regarding Citizens United 8

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