UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL REPLY IN SUPPORT 

et al., ) OF MOTION TO DISMISS

 Defendants. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL REPLY 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

Pursuant to the Court’s Order dated May 5, 2009, Defendant Federal Election 

Commission (“Commission”) respectfully submits this supplemental reply memorandum in 

support of its motion to dismiss Plaintiffs’ Amended Complaint. 

In attempting to avoid the application of res judicata to his claims, Plaintiff Michael 

Steele, Chairman of the Republican National Committee (“RNC”), asserts that he is not (1) 

the successor-in-interest to any “property right” of the RNC’s previous Chair, (2) a public 

official, or (3) “simply” an agent of the RNC. (See Pls.’ Supplemental Opp. to FEC’s Mot. to 

Dismiss at 2-4 (Docket No. 80).) The first two of these arguments are straw men, as the 

Commission has not argued that Steele has a “property” interest in this case or that he is a public 

official. Rather, the Commission has noted that the same important interests in legal finality and 

judicial economy that support the application of res judicata to property transferees and to 

successive holders of government office apply with equal or greater force to Steele. (See Def. 

FEC’s Supplemental Mem. in Supp. of Its Mot. to Dismiss at 3-4 (Docket No. 74) (citing Am. 

Forest Council v. Shea, 172 F. Supp. 2d 24, 27 (D.D.C. 2001); 18A Wright, Miller & Cooper, 

Case 1:08-cv-01953-RJL-RMC Document 81 Filed 06/08/2009 Page 1 of 4
Federal Practice & Procedure § 4458 nn. 15-16 (2d ed. 2002); Restatement (Second) of 

Judgments § 36 cmt. e (1982 & Supp. 2008)).) Steele’s response relies entirely on Taylor v. 

Sturgell, 128 S. Ct. 2161 (2008), but that case disapproved a theory of preclusion — “virtual 

representation,” see id. at 2173-74 — that the Commission has never asserted. Far from casting 

doubt on the application of res judicata to Steele, the analytical “framework” in Taylor

specifically encompasses nonparty preclusion in situations materially indistinguishable from the 

instant case. (See FEC’s Supplemental Mem. at 2-3 (discussing Taylor, 128 S. Ct. at 2172-73).) 

Steele provides no authority or reasoning to counter the Commission’s showing on those points. 

 As to Steele’s bringing suit as an agent of the RNC, his position appears to be that, 

because the RNC and Steele are putatively asserting separate claims here,1

 the Chairman is “not 

acting as a proxy of the RNC.” (See Pls.’ Supplemental Opp. at 4.) This argument fails as a 

matter of law, for Steele is subject to the fundraising restrictions he challenges only when he acts 

as an agent of the RNC. 2 U.S.C. § 441i(a)(2) (applying soft-money solicitation restriction to 

“any officer or agent acting on behalf of . . . a national committee”); McConnell v. FEC, 540 

U.S. 93, 157 (2003) (“The reach of the solicitation prohibition . . . is limited. It bars only 

solicitations of soft money by national party committees and by party officers in their official 

capacities. . . . [O]fficers of national parties are free to solicit soft money in their individual 

capacities . . . .”).2

 Thus, Steele cannot be challenging the prohibition on soft-money 

solicitations in any capacity other than as an agent of the RNC. Because “preclusion is 

appropriate when a nonparty later brings suit as an agent for a party who is bound by a 

 

1

 Counts 1-6 of the Amended Complaint are brought jointly by the RNC and Steele (Am. 

Compl. ¶¶ 29-45), Count 7 is brought by Steele alone (id. ¶¶ 46-48), and Counts 8-9 are brought 

by the other Plaintiffs (id. ¶¶ 49-54). 

2

 Because the statute applies without distinction to all party officers in their official 

capacities, it is irrelevant — contrary to Steele’s suggestion (Pls.’ Supplemental Opp. at 4) — 

that Steele’s predecessor held a different title during McConnell than Steele does now. 

2

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judgment,” Taylor, 128 S. Ct. at 2173, Steele cannot relitigate as the RNC’s agent a challenge 

that the RNC itself is precluded from relitigating. (See FEC’s Supplemental Mem. at 4.)3

 Finally, Steele appeals to Taylor’s observation that the need to apply res judicata to 

nonparties is lessened where “courts swiftly . . . dispose of repetitive suits” as a matter of stare 

decisis. See Taylor, 128 S. Ct. at 2178. On that point, we agree: Prompt dismissal of this 

lawsuit under stare decisis would promote finality and judicial economy as effectively as would 

dismissal of the claims as res judicata. (See FEC’s Supplemental Mem. at 5 (noting that Steele’s 

claims fail as a matter of law under McConnell).) 

 For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

the Amended Complaint for failure to state a claim on which relief can be granted.4

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

 /s/ Kevin Deeley 

Kevin Deeley 

Assistant General Counsel 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

 

3

 Steele states that he is not the RNC’s agent in challenging the prohibition on party

solicitation of soft money “because he is not a national party committee.” (Pls.’ Supplemental 

Opp. at 4-5.) To the extent it is possible to draw a distinction between the RNC’s solicitations 

and its officers’ official-capacity solicitations, however, Steele would have no cause of action to 

challenge the provisions governing parties, and his challenge to the provisions applicable to party 

officials would be precluded because his predecessor litigated and lost it in McConnell. 

4

 As discussed in the Commission’s prior briefs, Plaintiffs’ argument that this case presents 

a different cause of action than did McConnell fails because a mere change in legal theory cannot 

avoid the preclusive effect of a prior judgment on the same nucleus of facts. (See Def. FEC’s 

Mem. in Support of Mot. to Dismiss (Docket No. 20) at 19-20, 22-24; Def. FEC’s Reply Mem. 

in Support of Mot. to Dismiss (Docket No. 36) at 4-6.) 

3

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4

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: June 8, 2009 (202) 694-1650 

Case 1:08-cv-01953-RJL-RMC Document 81 Filed 06/08/2009 Page 4 of 4