UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Republican National Committee, et al.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

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

THREE-JUDGE COURT

THE DEMOCRATIC NATIONAL COMMITTEE’S 

MEMORANDUM OF LAW IN 

OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT 

Dated: March 9, 2009. PERKINS COIE LLP

Robert F. Bauer (D.C. Bar No. 938902)

RBauer@perkinscoie.com

Brian Svoboda (D.C. Bar. No. 450081)

Kate Andrias (D.C. Bar No. 983674)

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2003

Telephone: 202.628.6600

Facsimile: 202.434.1690

Attorneys for the Democratic National Committee

Joseph E. Sandler (D.C. Bar No. 255919)

sandler@sandlerreiff.com

SANDLER REIFF & YOUNG PC

300 M Street, S.E. Suite 1102

Washington, D.C. 20003

Telephone: 202.479.1111

Facsimile: 202.479.1115

Of Counsel to the Democratic National 

Committee

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 1 of 26
TABLE OF CONTENTS

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

ARGUMENT....................................................................................................................2

I. Legal Standard ..........................................................................................................2

II. Plaintiffs Have Fabricated a Constitutional Standard Not Adopted by the

Supreme Court; Under the Controlling Standard They Are

Not Entitled to Judgment as a Matter of Law .............................................................3

A. Plaintiffs' "Unambiguously Campaign Related" Test is Simply Not the Law..........3

B. Under the Correct Standard, Plaintiffs Are Not Entitled to Judgment

as a Matter of Law. ................................................................................................7

III. Plaintiffs' Challenge is a Relitigation of their Earlier Facial Challenge and is

Foreclosed by Binding Precedent...............................................................................8

A. An As-Applied Challenge Must Raise Facts That Are Concrete, Discrete, and

Well-Defined.........................................................................................................8

B. Plaintiffs Fail to Raise Concrete, Discrete Facts or New Applications but

Rather Seek to Relitigate Issues Decided by McConnell ........................................9

1. State Accounts.................................................................................................10

2. Redistricting, Grassroots Lobbying Accounts, and Litigation and Building

Accounts..........................................................................................................12

3. Solicitation of Soft Money for State Candidates...............................................13

4. Use of Soft Money for Voter Registration, Voter Identification,

Get-Out-The-Vote, and Generic Campaign Activity, and for Communications

that Promote, Attack, Support, or Oppose Federal Candidates..........................14

C. Plaintiffs Have Not Demonstrated Any Concrete Inability to Fund Their

Activities Adequately, nor that the Holding of McConnell

Is Inapplicable .....................................................................................................17

CONCLUSION...............................................................................................................20

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 2 of 26
TABLE OF AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..........................................................2

Broward Coal. of Condos., Homeowners Ass'ns & Cmty. Orgs. Inc. v. Browning, 

No. 08cv445, 2008 WL 4791004 (N.D. Fla. Oct. 29, 2008)...............................................7

*Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................ 4, 5, 6

Center for Individual Freedom, Inc. v. Ireland, Nos. 08-190, 2008 WL 4642268, 

(S.D. W. Va. Oct. 17, 2008)..............................................................................................8

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981)............................................4

Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008)......................................9

FEC v. Am. Fed. of State, County, and Mun. Employees, 471 F. Supp. 315 (D. D.C. 

1979) ................................................................................................................................6

FEC v. California Democratic Party, 13 F. Supp. 2d 1031 (E.D. Calif. 1998).......................6

FEC v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d Cir. 

1980) ................................................................................................................................5

FEC v. Fla. for Kennedy Comm., 681 F.2d 1281 (11th Cir. 1982) .........................................5

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).....................................................................5

FEC v. Machinists Non-Partisan Pol. League, 655 F.2d 380 (D.C. Cir. 1981).......................5

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)................................................3

*FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007)...................................... passim

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..............................................3

Gonzales v. Carhart, 127 S.Ct. 1610 (2007)..........................................................................9

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...............................2

*McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ............................................. passim

*McConnell v. Federal Election Commission, 540 U.S. 93 (2003) ............................... passim

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 3 of 26
-iiiNational Right to Work Legal Defense and Education Foundation, Inc. v. Herbert, 

581 F. Supp. 2d 1132 (D. Utah 2008)................................................................................8

Niagara Mohawk Power Corp. v. U.S. Dept. of Energy, 169 F.3d 16 (D.C. Cir. 1999).... 2, 11

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) .......................................21

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008)..............................7

Pullman Co. v. Knott, 235 U.S. 23 (1914) ...........................................................................11

RNC v. FEC, 1998 WL 794896 (1998)..................................................................................7

Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001).....................................6

*Washington State Grange v. Washington State Republican Party, 128 S.Ct 1184 

(2008) ...............................................................................................................................9

Yazoo & M.V.R. Co.v. Jackson Vinegar Co., 226 U.S. 217 (1912).........................................9

Statutes

2 U.S.C. § 434.....................................................................................................................17

2 U.S.C. § 441i ............................................................................................................ passim

Regulations and Rules

Fed. R. Civ. P. 56(c)..............................................................................................................2

Other Authorities

A Cheat Sheet to Today's RNC Race, The Atlantic, Jan. 30, 2009........................................19

RNC Sinks Millions Into Campaign Arms, The Hill, Mar. 5, 2009 .......................................19

Charles A. Wright et. al., 10B Federal Practice & Procedure Civil 3d § 2738 (2008)..... 3, 11

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 4 of 26
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Republican National Committee, et al.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

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

THREE-JUDGE COURT

THE DEMOCRATIC NATIONAL COMMITTEE’S 

MEMORANDUM OF LAW IN 

OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In this motion, Plaintiffs contend that they have the constitutional right to raise and 

spend funds, without restriction, for certain activities they contend are not "unambiguously 

related to the campaign of a particular federal candidate". Notwithstanding that their position 

is irreconcilable with Supreme Court precedent, Plaintiffs ask this Court to grant them 

judgment as a matter of law. Plaintiffs’ entire argument rests on an ostensible constitutional 

standard—whether activity is "unambiguously campaign related"—that has never been 

adopted by the Supreme Court. In fact, Plaintiffs recognize the hopelessness of their cause 

under the law as it is, since they advance to this Court the erroneous proposition that the 

Supreme Court has overturned McConnell v. Federal Election Commission, 540 U.S. 93 

(2003). 

Moreover, their suit is presented as an "as-applied" challenge when, in fact, its 

substance and the factual record before this Court are not materially different from those at

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 5 of 26
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issue in McConnell. In that case, the Court ruled squarely on a virtually identical set of 

claims. Plaintiffs here offer nothing new: no discrete facts but, instead, only hypotheticals, 

conjecture, and the pledge that, whatever they do, they promise that they will not behave 

corruptly.

Under the governing law, Plaintiffs are not entitled to relief and their motion should 

be denied.1

ARGUMENT

I. Legal Standard

Summary judgment is proper if, based on the pleadings, depositions, and affidavits, 

"there is no genuine issue as to any material fact and . . . the moving party is entitled to a 

judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)

(quoting Fed. R. Civ. P. 56(c)). In ruling upon a motion for summary judgment, the Court 

must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Self-serving and conclusory

allegations are insufficient to create a genuine issue of material fact or to demonstrate the 

moving party's entitlement to relief, as are opinions and legal conclusions. See Niagara 

Mohawk Power Corp. v. U.S. Dept. of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999); Charles A. 

Wright et. al., 10B Federal Practice & Procedure Civil 3d § 2738 (2008).

1

Plaintiffs' choice to challenge the Court's decision in McConnell in the guise of an "as applied challenge", but 

without alleging new, concrete, material facts, means that this Court is essentially left without true factual issues 

to resolve. Plaintiffs contend, in fact, that "[t]he issues [in this case] are purely legal and Plaintiffs are entitled 

to summary judgment." Pls.' Summary J. Mem. 7. Nevertheless, to the extent that there are such genuine issues 

of material fact, these have been identified by Defendant Federal Election Commission ("FEC") and Intervenor 

DNC adopts them and incorporates them herein by reference, for purposes of Local Civil Rule 7(h). Summary 

judgment in Plaintiffs' favor is also, and as necessary, properly denied on this ground. In addition, for the 

reasons discussed in the FEC's motion to dismiss, this case is also barred by res judicata.

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 6 of 26
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II. Plaintiffs Have Fabricated a Constitutional Standard Not Adopted by the 

Supreme Court or Any Other Court; Under the Controlling Standard They Are 

Not Entitled to Judgment as a Matter of Law

A. Plaintiffs' "Unambiguously Campaign Related" Test is Simply Not the 

Law

Plaintiffs' entire argument for summary judgment is based on a misstatement of the 

legal standard for evaluating the application of the Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, to their activities. They contend that the “first 

principle of constitutional law” in the field of campaign finance is the so-called 

“unambiguously-campaign-related requirement.” See Pls.' Summ. J. Mem. 11. This, they 

say, is “the unifying constitutional principle of the governing precedents . . .”, id. at 15, a 

standard that was “applied” in FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 249 

(1986) (“MCFL”), and FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2659, 2667, 

2669 n.7 (2007) (“WRTL II”); “affirmed” in First National Bank of Boston v. Bellotti, 435 

U.S. 765, 790 (1978), and Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294 

(1981); and “recogni[zed],” “implement[ed]” and “endorsed” in McConnell 540 U.S. at 167, 

170, 190, 192, 206. Pls.' Summ. J. Mem. at 9-15.2

Plaintiffs' position is simply wrong. Not a single one of these cases even mentions an 

“unambiguously campaign-related requirement” in a majority opinion. Plaintiffs have 

manufactured this new test out of two lines of dicta in Buckley v. Valeo, 424 U.S. 1, 79-81 

(1976). In short, their basic argument—that the Constitution does not allow Congress to 

regulate national party fundraising for state candidate contributions, redistricting, issue 

advocacy, litigation and headquarters expenses—is not remotely the law.

2

Plaintiffs do not explain how it is true both that WRTL II “effectively overrules” McConnell, Pls.' Summ. J. 

Mem. 20, even while McConnell “implicitly endorsed” the supposed unambiguously-campaign-related 

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The so-called “unambiguously campaign related requirement” does not come from 

Article I of the Constitution, nor from the First Amendment. Rather, Plaintiffs have pulled it, 

out-of-context, from a discussion in Buckley of how to construe a disclosure requirement for 

non-party independent expenditures to avoid vagueness problems. See Buckley, 424 U.S. at 

76-82. Ironically, that discussion started from the premise that—unlike independent 

expenditures made by individuals— “[e]xpenditures of candidates and of ‘political 

committees’ ... can be assumed to fall within the core area sought to be addressed by 

Congress. They are, by definition, campaign related.” Id. at 79 (emphasis supplied).

In Buckley, the Court observed that “when the maker of the expenditure . . . is an 

individual other than a candidate or a group other than a ‘political committee . . . the relation 

of the information sought to the purposes of the Act may be too remote.” Id. at 80. The 

Court solved this vagueness problem by construing the term “expenditure” “to reach only 

funds used for communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Id.; see also McConnell, 540 U.S. at 191-92, 202-03 (clarifying that 

this construction did not represent a constitutional limitation on Congressional power). “This 

reading is directed precisely to that spending that is unambiguously related to the campaign 

of a particular federal candidate.” Buckley, 424 U.S. at 80.

Buckley did not use the phrase “unambiguously campaign related” to set the outer 

boundaries of what Congress could regulate. Instead, it used the phrase to justify expanding

the scope of regulation beyond political committees and candidates: “[The statute] goes 

beyond the general disclosure requirements to shed the light of publicity on spending that is 

unambiguously campaign related but would not otherwise be reported because it takes the 

standard. Id. at 11.

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 8 of 26
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form of independent expenditures or of contributions to an individual or group not itself 

required to report the names of its contributors.” Id. at 81.

Thus, the term "unambiguously campaign related" and its variants were never used by 

the Buckley Court to limit Congressional power or to apply to political parties. To the 

contrary, they were used to affirm the regulation of political committees, including political

parties, see id. at 79, and to expand the law’s reach beyond them. See id. at 81. Nothing in 

Buckley even remotely supports Plaintiffs’ invention of an “unambiguously-campaign-related 

requirement” that operates as “a first principle of constitutional law,” and that shields 

national party activities from BCRA’s financing restrictions. Pls.' Summ. J. Mem. 11.

Plaintiffs apparently wish to refashion their version of Buckley’s “express advocacy” 

standard—the doctrine that held that communications cannot be regulated unless they contain 

express words of advocacy urging electoral action—under a different name, asking this Court 

to enforce it in contravention of McConnell. See 540 U.S. at 191-92, 202-03 (holding that 

the Buckley “express advocacy” test was not constitutionally compelled).3 But there is no 

authority for the proposition that parties can fund without restriction any activities that do not 

include “express advocacy”. To the contrary, and as discussed below, the Court in 

McConnell looked to the character and operation of national party committees—not the 

content of their communications. In fact, even prior to the enactment of BCRA, parties 

received and expended soft money under “allocation” rules in no way grounded in the 

3 The vast majority of courts that have used the phrase “unambiguously campaign related” have treated it as part 

and parcel of the “express advocacy” test and have not applied it remotely in the way Plaintiffs urge. See 

McConnell, 540 U.S. at 279-80, 283 (Thomas, J., dissenting) (arguing that the express advocacy standard was 

constitutionally compelled); Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379, 383 (4th Cir. 2001); FEC v. 

Furgatch, 807 F.2d 857, 860 (9th Cir. 1987); FEC v. Fla. for Kennedy Comm., 681 F.2d 1281, 1287 n.10 (11th 

Cir. 1982); FEC v. Machinists Non-Partisan Pol. League, 655 F.2d 380, 391 n.23 (D.C. Cir. 1981), cert. denied, 

454 U.S. 897 (1981); FEC v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 53 (2d Cir. 

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 9 of 26
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presence or absence of express advocacy. See, e.g., RNC v. FEC, 1998 WL 794896 (1998)

(unpublished) (denying preliminary injunction against rules requiring political parties to pay 

for issue advocacy at least partly with federal funds, citing “weak evidence of irreparable 

harm”); see also FEC v. California Democratic Party, 13 F. Supp. 2d 1031 (E.D. Calif. 

1998) (holding that California state party’s First Amendment rights were not violated by 

requiring donations made to a ballot initiative committee to be paid partly with federal 

funds). Nothing in WRTL II, which was about the application of the campaign finance laws 

to grassroots lobbying by a corporation, altered this approach.

Moreover, none of the lower court cases cited by Plaintiffs supports the proposition 

that activity by political parties can be regulated only if expressly campaign related. Instead, 

they all, without exception, involve state law regulation of non-party actors. See North 

Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 281-82 (4th Cir. 2008) (invalidating use 

of contextual factors to find election advocacy); Broward Coal. of Condos., Homeowners 

Ass'ns & Cmty. Orgs. Inc. v. Browning, No. 08cv445, 2008 WL 4791004, at *7 (N.D. Fla. 

Oct. 29, 2008), clarified on other grounds, 2008 WL 4878917 (N.D. Fla. Nov. 02, 2008) 

(addressing state electioneering communications law); Center for Individual Freedom, Inc. v. 

Ireland, Nos. 08-190, 08-1133, 2008 WL 4642268, *14, *17 (S.D. W. Va. Oct. 17, 2008)

(involving state law PAC definitions); National Right to Work Legal Defense and Education 

Foundation, Inc. v. Herbert, 581 F. Supp. 2d 1132 (D. Utah 2008) (limiting scope of 

corporate disclosure in ballot initiative spending).4

1980); FEC v. Am. Fed. of State, County, and Mun. Employees, 471 F. Supp. 315 (D. D.C. 1979).

4

For example, the Herbert case cited by Plaintiffs subverts their argument. Following the Supreme Court in 

Buckley, the court in Herbert specifically affirmed that "expenditures made by organizations whose major 

purpose is the nomination or election of a candidate, are by definition unambiguously campaign related." 581 

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-7-

As for parties—which is what this case is about—Plaintiffs either misrepresent the 

controlling authority, McConnell, or even more mysteriously, they declare it to have been 

overruled. But there is a case that controls here, and plaintiffs cannot explain or wish it 

away.

B. Under the Correct Standard, Plaintiffs Are Not Entitled to Judgment as a 

Matter of Law.

In advancing their unsupported "unambiguously campaign related" test, Plaintiffs 

have not simply egregiously misread Buckley. They have failed entirely to understand the 

basis for BCRA’s regulation of the national parties, which is, in turn, the basis for the Court’s 

holding in McConnell. 

Plaintiffs assume that when a national party committee raises funds, it is the nature of 

the activities for which the party wishes to pay—and not the nature of the party itself, or the 

funds it raises—that drives the constitutional analysis. They claim that because they wish to 

pay for state election activity, redistricting, issue ads, litigation and headquarters expenses, 

and because, by their calculus, none of these activities are “unambiguously campaign 

related,” then none of the funds they raise to pay for them may be regulated by federal law. 

But McConnell, 540 U.S. at 154 considered exactly this argument and found it to be “beside 

the point.”

In McConnell, the Court emphasized that "[s]ection 323(a), like the remainder of § 

323, regulates contributions, not activities." Id. “As the record demonstrates," the Court 

F. Supp. at 1142. Likewise, Ireland rejected a challenge to the facial constitutionality of West Virginia’s PAC 

and political committee definitions, finding that those definitions “were unambiguously related to the campaign 

of a particular candidate.” 2008 WL 4642268 at *17. Browning dealt with a state “electioneering 

communication” statute that was even more sweeping than the federal provision at issue in WRTL II. 2008 WL 

4791004. And Leake dealt with a vague, contextual state law definition of “expenditure” that, according to 

Plaintiffs, threatened to sweep a wide range of actors into political committee status. 525 F.3d at 281-82.

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 11 of 26
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explained, "it is the close relationship between the federal officeholders and national parties, 

as well as the means by which parties have traded on that relationship, that have made all 

large soft money contributions to national parties suspect." Id. at 154-55. Thus, McConnell

held that the critical factor was the actor, not the extent to which the activity was related to a 

specific federal campaign. 

Tellingly, Plaintiffs entirely ignore this binding holding—for it forecloses their claim. 

Instead, they argue that WRTL II "guts" and "effectively overrules" McConnell Pls.' Summ. 

J. Mem. 20-21. Yet, they point to no language in WRTL II that undermines the relevant 

holdings of McConnell—and they cannot, for the controlling opinion in WRTL II made clear 

that it was not overruling McConnell. See WRTL II, 127 S.Ct at 2664; see also id. at 2674 

(Alito, J., concurring). Moreover, WRTL II was a case about non-party, non-candidate 

entities. Nothing in the controlling opinion remotely addressed McConnell’s holdings as to 

the party-related provisions of BCRA. 

As demonstrated below, Plaintiffs simply attempt to relitigate McConnell again by 

labeling it an "as-applied" challenge. Because “the first principle of constitutional law” on 

which Plaintiffs rely in support of their motion is indeed nothing of the sort, and because 

controlling law forecloses their claim, Plaintiffs are not entitled to judgment as a matter of 

law.

III. Plaintiffs' Challenge Is a Relitigation of their Earlier Facial Challenge and Is 

Foreclosed by Binding Precedent

A. An As-Applied Challenge Must Raise Facts that Are Concrete, Discrete, 

and Well-Defined

Plaintiffs contend that they are entitled to summary judgment, and that McConnell no 

longer applies, because their case is an as-applied challenge, rather than a facial challenge. 

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 12 of 26
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Simply labeling claims "as-applied," however, does not make them so—nor does it result in 

application of a different constitutional test.

In general, an as-applied challenge should raise facts that are "discrete and welldefined." See Gonzales v. Carhart, 127 S.Ct. 1610, 1639 (2007). An evidentiary record, 

containing more than mere speculation and conclusory assertions, is necessary. For example, 

in Washington State Grange v. Washington State Republican Party, 128 S.Ct 1184, 1193-94 

(2008), the Supreme Court emphasized that a statutory provision could not be struck down 

"on the mere possibility of voter confusion." Rather, there must be an "evidentiary record 

against which to assess the[] assertions that voters will be confused." Id. (citations omitted). 

Mere speculation was insufficient. Id. at 1194. Similarly, in Crawford v. Marion County 

Election Board, 128 S.Ct. 1610, 1622 (2008), the Court cited the lack of "concrete evidence" 

in rejecting the facial challenge to Indiana's photo identification statute. 

Thus, an as-applied challenge can succeed only if it is supported by more than 

hypotheticals and imaginary cases. See Washington State Grange, 128 S.Ct. at 1193 (citing

Yazoo & M.V.R. Co.v. Jackson Vinegar Co., 226 U.S. 217, 219 (1912) ("[T]his court must 

deal with the case in hand and not with imaginary ones"); Pullman Co. v. Knott, 235 U.S. 23, 

26 (1914) ("A statute 'is not to be upset upon hypothetical and unreal possibilities, if it would 

be good upon the facts as they are.")). Moreover, as with any motion for summary judgment, 

a movant cannot prevail on the basis of self-serving and conclusory allegations. See Niagara 

Mohawk Power Corp., 169 F.3d at 18; Charles A. Wright et. al., 10B Fed. Practice & 

Procedure Civil 3d § 2738 (2008). 

B. Plaintiffs Fail to Raise Concrete, Discrete Facts or New Applications but 

Rather Seek to Relitigate Issues Decided by McConnell

The controlling opinion in WRTL II, in permitting an as-applied challenge, 

emphasized that "McConnell's analysis was grounded in the evidentiary record before the 

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Court." The WRTL II plaintiffs could prevail because they presented new discrete facts about 

specific proposed advertisements. Here, in contrast, Plaintiffs have presented no new, 

discrete facts; rather they seek to relitigate the same challenges they brought in McConnell on 

the same evidentiary record—relying wholly on their newly fabricated constitutional 

standard. Indeed, their Summary Judgment Motion openly states that they are not relying on 

specific, discrete facts. Rather, they contend, "[t]he issues are purely legal and Plaintiffs are 

entitled to summary judgment." In short, though they label the current suit an-applied 

challenge, see Complaint ¶¶ 16-25, Plaintiffs' current challenges are to generic categories of 

activities that they already litigated—and lost—in McConnell. 

1. State Accounts

Plaintiffs claim that 2 U.S.C. § 441i(a) is unconstitutional "as-applied" to their 

activity to support state candidates. Specifically, they want to create a "New Jersey Account" 

to support candidates for New Jersey office, a "Virginia Account" to support candidates for 

Virginia office, and other "State Accounts" to support state and local candidates in elections 

where only state candidates appear on the ballot and in elections where both federal and state 

candidates appear on the ballot. See Complaint ¶¶ 16, 17, 20. But Plaintiffs raised identical 

claims in McConnell, including those regarding New Jersey and Virginia: In their 

McConnell complaint, Plaintiffs (the RNC and Duncan) alleged that BCRA impermissibly 

"restrict[ed] [the] activities of national party committees in state and local elections," 

including the RNC's ability to "provid[e] support and mak[e] contributions to state and local 

candidates, pursuant to applicable state law." Def.'s Mot. to Dismiss, Ex. 1, ¶¶ 38; 47; see 

also id. ¶¶ 36-37; and in their District Court brief, they expressly argued that BCRA was 

unconstitutional in relation to the receipt of soft money for participation in state and local 

elections in odd-numbered years "when no federal candidates appear on the ballot," and that 

BCRA impacted their planned activities in New Jersey and Virginia. Def.'s Mot. to Dismiss, 

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 14 of 26
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Ex. 3, RNC 6, 25-26. All three panel judges discussed Plaintiffs' state election activity in 

their opinions. See McConnell v. FEC, 251 F. Supp. 2d 176, 336 (D.D.C. 2003) (opinion of 

Henderson, J.); id. at 464, 523 (opinion of Kollar-Kotelly, J.); id. at 830 (opinion of Leon, J.). 

Before the Supreme Court, Plaintiffs again discussed their intended state-election 

activities at length, and argued that 441i(a) would inhibit their activity supporting state 

candidates in Virginia and New Jersey specifically. Def.'s Mot. to Dismiss, Ex. 7, 11-12; see 

also McConnell, 540 U.S. at 154-55 (describing Plaintiffs' argument "that § [441i(a)] is 

impermissibly overbroad because it subjects all funds raised and spent by national parties to 

FECA's hard-money source and amount limits, including, for example, funds spent on purely 

state and local elections in which no federal office is at stake") (internal citations and 

footnote omitted)). 

The Supreme Court unequivocally rejected Plaintiffs' contentions regarding activities 

in support of state candidates, including in New Jersey and Virginia. Id. It reasoned that 

"national committees of the two major parties are both run by and largely composed of 

federal officeholders and candidates." Id. at 155. "Given this close connection and 

alignment of interests, large soft-money contributions to national parties are likely to create 

actual or apparent indebtedness on the part of federal officeholders, regardless of how those 

funds are ultimately used." Id. at 155. 

Plaintiffs now claim that their challenge to § 441i(a) is "as-applied." However, they

present no new, concrete facts that change the record in any way. They have merely 

provided an affidavit—sworn by a lone employee—indicating that the RNC plans to create 

several "State Elections Accounts," raise soft money into these accounts, and spend these 

funds to support state candidates in elections where only state candidates appear on the 

ballot, and in elections where both federal and state candidates appear on the ballot. See Pls.'

SUF ¶¶ 17-18; see also Pls.' SUF ¶¶ 8-11 (stating that the RNC plans to raise and spend soft

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 15 of 26
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money to support candidates in Virginia and New Jersey in years during which there is no 

federal election). Yet, these same facts were before the Court in McConnell. 

2. Redistricting, Grassroots Lobbying Accounts, and Litigation and 

Building Accounts

Similarly, Plaintiffs provide no new, concrete facts with respect to their proposed 

"Redistricting Account"—and this too was decided by McConnell. In that case, the RNC 

introduced evidence that it used soft money "to support redistricting efforts, including 

redistricting litigation." McConnell, 251 F. Supp. 2d at 338 (opinion of Henderson, J.); id. at

462 (opinion of Kollar-Kotelly, J.); id. at 831-32 (opinion of Leon, J.). In response, Judge 

Kollar-Kotelly concluded that state redistricting efforts have an effect on federal elections. 

See id. at 468, 687. Before the Supreme Court, Plaintiffs took issue with Judge KollarKotelly's conclusion, and asked the court to strike down 441i(a) as it restricted receipt of soft 

money in relation to redistricting activities. Def.'s Mot. to Dismiss, Ex. 5, 8 & n.3. The 

Court declined to do so.

In the instant challenge, Plaintiffs merely reassert that they plan to create an account 

to support political activity, analysis, and litigation related to redistricting. Pls.' SUF ¶ 14. 

But they have failed to introduce any concrete, discrete facts to support an as-applied 

challenge or to differentiate their claim from the one decided in McConnell. Indeed, their 

legal analysis as to why 441i(a) is unconstitutional as applied to their Restricting Account 

does not contain a single citation to the factual record. See Pls.' Summ. J. Mem. 33-34. 

Nor do Plaintiffs provide concrete facts to challenge the ordinance "as-applied" to 

their proposed Grassroots Lobbying Accounts or Litigation Accounts. The RNC states that it 

intends to use this account to pay for "radio, television, and internet grassroots lobbying 

advertisements on relevant public-policy issues." Pls.' SUF ¶ 16. Plaintiffs also vaguely 

identify a plan to create a Litigation Account and a Building Account, Pls.' SUF ¶¶ 20-22, 

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and they assert that "every dollar of federal funds used for [building maintenance] takes away 

from the RNC's ability to reach out directly to voters." Id. ¶ 22. But, beyond these 

assertions, they have not introduced any facts to support an as-applied challenge. 

And, again, their motion for summary judgment does not contain a single citation to 

the factual record, other than a vague promise that they will not aid contributors in obtaining 

preferential access to federal candidates. See Pls.' Summ. J. Mem. 39 (citing Pls.' SUF ¶ 24). 

Plaintiffs essentially dress up as fact their conclusion that their activities will cause no 

corruption. But legal conclusions cannot be the basis of a successful summary judgment 

motion, particularly when they conflict with controlling law. 

3. Solicitation of Soft Money for State Candidates

Plaintiffs' argument about solicitation of soft money fares no better. Plaintiffs 

contend that 2 U.S.C. § 441i(a) is unconstitutional "as-applied" to Chairman Duncan's 

solicitation of funds for state candidates and state parties. Pls.' Summ. J. Mot. 39. Again, 

this claim is identical to the one brought—and rejected—by the Supreme Court in McConnell

and the record contains nothing that renders this a new as-applied challenge or that changes

the constitutional analysis.

In McConnell, the RNC and Duncan contended that section 441i(a) unconstitutionally 

limited Duncan's right to solicit funds on behalf of state candidates. Def.'s Mot. to Dismiss, 

Ex. 1, ¶ 37. Plaintiffs then stated that BCRA "prohibits RNC fundraising assistance to state 

and local candidates. For example, [section 441i(a)] prohibits the Chairman of the RNC . . . 

even from sending a fundraising letter on behalf of a gubernatorial candidate, since funds 

contributed in response to such a solicitation would benefit a state, not federal, candidate." 

Id. And Plaintiffs introduced substantial evidence that the RNC and Duncan—then its 

treasurer—worked to raise money for state candidates, and that the RNC raised soft money 

for state candidates through its "Victory Plans." McConnell, 251 F. Supp. 2d at 339-40 

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(opinion of Henderson, J.); id. at 522-23 (opinion of Kollar-Kotelly, J.); id. at 833-35 

(opinion of Leon, J.). Plaintiffs raised the same claim in their Supreme Court merits brief. 

Def.'s Mot. to Dismiss, Ex. 8, 1, 34, 43-44.

The Supreme Court rejected Plaintiffs' argument, specifically citing Plaintiffs' 

"Victory Plan" activity. McConnell, 540 U.S. at 160. The Court held that the provision was 

justified because "[a] national committee is likely to respond favorably to a donation made at 

its request regardless of whether the recipient is the committee itself or another entity." Id. at 

157-58. And the Court noted that the provision was not overly restrictive because the 

national parties were still free to solicit hard money on behalf of state and local candidates 

and parties, and because the provision did not restrict a party officer or agent from soliciting 

soft money in his or her personal capacity. Id. at 157, 160.

Here, Plaintiffs have not introduced any concrete facts to support an "as-applied" 

challenge or to change the McConnell Court's analysis: They merely reassert that Duncan 

intends to solicit funds for state candidates in his official capacity as Chairman of the RNC. 

Pls.' SUF ¶¶ 28-29; Pls.' Summ. J. Mem. 39-40. Indeed, their claim is even less detailed than 

the one they presented in their McConnell merits brief. Again, Plaintiffs are attempting to 

relitigate an issue controlled by McConnell, by relabeling their challenge "as-applied" and 

applying their new constitutional test. 

4. Use of Soft Money for Voter Registration, Voter Identification, Get-OutThe-Vote, and Generic Campaign Activity, and for Communications that 

Promote, Attack, Support, or Oppose Federal Candidates 

Plaintiffs' attempt to relitigate their challenge to section 441i(b)'s requirement that 

state and local party committees must pay for "Federal election activity" with federally 

permissible funds, 2 U.S.C. § 441i(b)(1),5suffers the same fatal flaw. The California 

5

Federal election activity includes, inter alia, (i) voter registration activity that occurs within 120 days before 

the date of a regularly scheduled Federal election; (ii) voter identification, "get-out-the-vote" ("GOTV") 

activity, or generic campaign activity conducted in connection with a Federal election; and (iii) communications 

that promote, support, attack, or oppose a candidate for federal office. 2 U.S.C. § 434(20)(A). An exception to 

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Republican Party ("CRP") and the San Diego Republican Party ("SDRP") contend that 

section 441i(b) is unconstitutional "as-applied" to their voter registration, voter identification, 

get-out-the-vote ("GOTV"), and generic campaign activities in elections where both state and 

federal candidates appear on the ballot and if the activities are not "targeted" to any federal 

candidate or campaign. See Complaint ¶¶ 25, 53. This is precisely the same challenge CRP

raised in McConnell. 

In McConnell, CRP claimed that section 441i(b) unconstitutionally limited its right 

engage in voter registration, voter identification, GOTV and generic campaign activity that 

did not mention the name of a federal candidate. Def.'s Mot. to Dismiss, Ex. 2, ¶¶ 3, 50-51, 

109. CRP introduced substantial evidence that it spent soft money on these types of activity.

McConnell, 251 F. Supp. 2d at 342-47 (opinion of Henderson, J.), 460-62 (opinion of KollarKotelly, J.), 836-39 (opinion of Leon, J.). CRP also introduced evidence that it focused the 

majority of its resources on state and local candidates, id., in part because there were few 

contested congressional races in the state. Id. at 838 (opinion of Leon, J.). Plaintiffs 

reiterated their argument in their brief to the Supreme Court, arguing that 441i(b) 

impermissibly "[s]ubject[ed] to pervasive federal regulation voter registration and [GOTV] 

efforts by state and local political parties—even when those efforts name only state or local 

candidates or ballot measures—just because those efforts occur during a federal election 

year." Def.'s Mot. to Dismiss, Ex. 8, 1. Specifically, CRP argued that its "voter registration 

and GOTV activity such as direct mail, telephone banks, and door-to-door canvassing are all 

primarily directed at state and local elections." Id. at 15-16. According to CRP, 441i(b) was 

unconstitutional because spending money on these activities could not lead to the corruption 

of federal candidates. Id. at 50-54. 

the rule allows state and local parties to pay for the first two types of "Federal election activity" with a mix of 

hard money and so-called "Levin funds," which may be raised within an annual limit of $10,000 per year 

person. 2 U.S.C. § 441i(b)(2). 

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The Court in McConnell rejected this argument wholesale. First, the Court rejected 

the contention that "Federal election activity" could not be regulated merely because these 

activities also impacted campaigns for nonfederal office. 540 U.S. at 166-67. Second, the 

Court reasoned that "[441i(b)] is premised on Congress' judgment that if a large donation is 

capable of putting a federal candidate in the debt of the contributor, it poses a threat of 

corruption or the appearance of corruption." The Court found that 441i(b) was "reasonably 

tailored, with various temporal and substantive limitations designed to focus the regulations 

on the types of activities that pose the greatest risk of corruption by benefiting federal 

candidates. Id. at 167. The Court cited specific record evidence that voter registration, 

GOTV, and similar activity before a Federal election "has a significant effect on the election 

of federal candidates," and that federal officeholders "are grateful for contributions to state 

and local parties that can be converted into GOTV-type efforts." Id. at 168 (quotation and 

citation omitted). Thus, the Court concluded, the prohibition on the use of soft money in 

connection with these activities was closely drawn to meet an important governmental 

interest. Id. at 169.

In the instant challenge, Plaintiffs provide no discrete and concrete facts beyond those 

considered by the Court in McConnell. Plaintiffs claim that they will not use voter 

registration, voter identification, GOTV and generic campaign activities to "target" any 

federal candidate or campaign. SUF ¶¶ 45, 62. They contend that the effect that voter 

registration, voter identification, GOTV and generic campaign activities have on federal 

elections is too attenuated to be supported by the government's interest in preventing 

corruption. Pls.' Summ. J. Mem. 45. But, again, this is the same argument made and 

rejected in McConnell. See Def.'s Mot. to Dismiss, Ex. 8, 1. 

Plaintiffs' claim regarding public communications that promote, support, attack, or 

oppose a candidate for federal office suffers from the same problem. See Complaint ¶¶ 23-

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24; SUF ¶¶ 63, 64 (arguing that section 441i(b) is unconstitutional "as-applied" to 

communications that they plan to distribute, which support a ballot measure, but which they 

believe "attack" or "oppose" federal candidates under the definition of section 

434(20)(A)(iii)). In their Supreme Court brief in McConnell, Plaintiffs challenged 441i(b), 

alleging that it would unconstitutionally regulate communications aimed at influencing a 

state election, but which also promote, attack, support, or oppose a federal candidate as well. 

See Def.'s Mot. to Dismiss, Ex. 8, 55-57. McConnell rejected the argument that such 

regulation was unconstitutional, concluding that a public communication that promotes or 

attacks a clearly identified federal candidate "directly affects the election in which he is 

participating." 540 U.S. at 170. And, as described above, the Court rejected the contention 

that "Federal election activity" could not be regulated merely because it also impacted 

campaigns for nonfederal office. 540 U.S. at 166-67.

To support their "as-applied" challenge, Plaintiffs now introduce a hypothetical 

communication that will promote, attack, support or oppose a federal candidate under BCRA. 

But the same scenario was presented, and deemed to be permissibly regulated, in McConnell. 

See Def.'s Mot. to Dismiss, Ex. 8, 55-57. If the communication promotes, supports, attacks, 

or opposes a federal candidate, the communication must be paid for with hard money. If it 

does not promote, support, attack, or oppose a federal candidate, it is not subject to this 

requirement.

C. Plaintiffs Have Not Demonstrated Any Concrete Inability to Fund Their 

Activities Adequately, nor that the Holding of McConnell Is Inapplicable

Arguably, Plaintiffs' Statement of Undisputed Facts contains several assertions, not 

cited in their Memorandum, that might bear upon their claim that 441i(b) is unconstitutional

as applied to certain Federal election activity. First, several paragraphs contain statistics on 

the CRP and SDRP's spending, indicating that most of its budget is devoted to state, not 

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federal elections. See, e.g., SUF ¶¶ 40. But the same assertions were raised, and rejected, in 

McConnell. See Def.'s Mot. to Dismiss, Ex. 8, 12. Second, CRP and SDRP claim that the 

soft money limits are preventing it from engaging in "Federal election activity" that it would 

otherwise engage in. SUF ¶¶ 51, 58. Plaintiffs in McConnell made the same assertion, see

Def.'s Mot. to Dismiss, Ex. 8, 61-64, and the Court in McConnell rejected it as "'speculative 

and not based on any analysis.'" 540 U.S. at 174 (quoting McConnell, 251 F. Supp. 2d at 524

(opinion of Kollar-Kotelly, J.)). 

It is not enough that Plaintiffs might prefer to draw all the funds they would like to 

have, from all the sources they believe to be available. The Court explained in McConnell

that "[t]he question is not whether sec. 323(b) reduces the amount of funds available over 

previous election cycles, but whether it is 'so radical in effect as to ... drive the sound of [the 

recipient's ] voice below the level of notice.' If indeed . . . parties can make such a showing, 

as-applied challenges remain available." 540 U.S. 93, 173 (2003) (citing Nixon v. Shrink 

Missouri Government PAC, 528 U.S. 377, 397 (2000)).

These Plaintiffs have made no such showing. Rather, data compiled and made public 

by the Federal Election Commission shows that the Republican National Committee raised 

close to a half of a billion dollars, 63 per cent more than the Democratic National Committee, 

for the entire 2007-2008 cycle. See FEC, National Republican Party Financial Activity 

through Twenty Days Prior to the General Election, Oct. 29, 2008, available at 

http://www.fec.gov/press/press2008/20081029party/2repsummary2008.pdf. And if it is the 

claim of the RNC that its financial position cannot keep pace with its needs after the 

enactment of the soft money provisions at issue, this, too, is belied by the FEC data. The 

Republican National Committee has achieved an 86% increase in its fundraising from the 

Presidential election year prior to the enactment of BCRA, through the first Presidential 

election held afterwards, in 2004. Id. And the RNC raised still more for the 2008 election 

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than for the previous 2004 Presidential election. The same robust increase can be shown in 

fundraising, pre-and post-BCRA, for mid-term elections, with the RNC experiencing a 38% 

increase from 2002, the year BCRA passed, through the 2006 Congressional and state 

elections. Id.

6

Similarly, they cannot obtain judgment as a matter of law on their own self-serving 

assertions that they will not be corrupted by soft money donations. See, e.g., Pls.' SUF ¶ 24, 

30. These conclusory statements are both improper as the basis for summary judgment and 

are not discrete, new facts that can serve as the basis for Plaintiffs' as-applied challenge. See 

supra, at 8-9. 

Furthermore, these statements encapsulate the Plaintiffs' confused position on the

controlling law. The affidavits from party officials, pledging that they will behave 

appropriately in avoiding corruption, miss fundamentally the Court’s reasoning in 

McConnell. The Court there was concerned with the close relationship of parties to federal 

candidates and officeholders; it related the money that parties raised to its effect on elected 

officials, not party officials. 

So the professed good faith of a party official is wholly immaterial to this case in two 

ways. First, for purposes of a summary judgment motion and an “as applied” challenge, 

generalized commitments that the affiants will behave properly in the future and conclusions 

6 Nor can Plaintiffs' case rest, as a constitutional matter, on their perspective on their inter-party competitive 

position at any given time. News reports around the time of this action and since have underscored Plaintiffs' 

immediate objective of improving their competitive position following disappointment at the polls. One 

prominent commentator summed up the challenge that the RNC posed for itself when electing a new leader: 

“The RNC chair has two main duties over the next several years. He... has to harness the technological 

advances of the [opposition Presidential candidate] to increase the efficiency of Republican fundraising and 

outreach.” Marc Ambinder, A Cheat Sheet to Today's RNC Race, The Atlantic, Jan. 30, 2009, available at

http://politics.theatlantic.com/2009/01/a_cheat_sheet_to_todays_rnc_race.php (last visited Mar. 9, 2009); see 

also Reid Wilson, RNC sinks millions into campaign arms, The Hill, Mar. 5, 2009, available at 

http://thehill.com/leading-the-news/rnc-sinks-millions-into-campaign-arms-2009-03-05.html (party leader 

commends newly elected RNC Chair for his commitment to "strengthening and modernizing our fundraising 

operations") (last visited Mar. 9, 2009). Political competition, however—not a specious constitutional claim—

is the answer to whatever competitive difficulties Plaintiffs may be currently experiencing or perceiving. 

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 23 of 26
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about the effect of the affiants' own behavior can be given little if any weight. Second, under 

McConnell, these commitments fail utterly to answer the Court’s core concern about the 

relationship between donors and candidates or officeholders. It is perhaps with the 

understanding that their position is at odds with the law that the Plaintiffs suggest to this 

Court that the controlling law—the McConnell case—exists no more, and that a new legal 

standard, never before adopted by the Supreme Court, should be imposed.

CONCLUSION

Plaintiffs have failed to demonstrate that they are entitled to judgment as a matter of 

law. The DNC respectfully requests that the Court deny their motion.

Dated: March 9, 2009. Respectfully submitted,

PERKINS COIE LLP

By: /s/ Robert F. Bauer

Robert F. Bauer (D.C. Bar No. 938902)

RBauer@perkinscoie.com

Brian Svoboda (D.C. Bar. No. 450081)

Kate Andrias (D.C. Bar No. 983674)

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2003

Telephone: 202.628.6600

Facsimile: 202.434.1690

Attorneys for the Democratic National Committee

Joseph E. Sandler (D.C. Bar No. 255919)

sandler@sandlerreiff.com

SANDLER REIFF & YOUNG PC

300 M Street, S.E. Suite 1102

Washington, D.C. 20003

Telephone: 202.479.1111

Facsimile: 202.479.1115

Of Counsel to the Democratic National 

Committee

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 24 of 26
CERTIFICATE OF SERVICE

I, Robert F. Bauer, a member of the bar of this Court, hereby certify that on March 9, 

2009, I served a true and correct copy of the Democratic National Committee’s Opposition to 

Plaintiffs' Motion for Summary Judgment by means of electronic service on:

James Bopp, Jr. (D.C. Bar No. CO0041)

Richard E. Coleson (pro hac vice)

Clayton J. Callen (pro hac vice)

Kaylan L. Phillips (pro hac vice)

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807

Telephone: (812) 232-2434

Facsimile: (812) 235-3685

Email: jboppjr@aol.com

Counsel for Plaintiffs

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

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

Kevin Deeley

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

Telephone: (202) 694-1650

Facsimile: (202) 219-0260

Email: dkolker@fec.gov

Counsel for Defendant 

Charles H. Bell, Jr. (pro hac vice)

BELL, MCANDREWS & HILTACHK, L.L.P.

455 Capitol Mall, Suite 801

Sacramento, CA 95815

Telephone: (916) 442-7757

Facsimile: (916) 442-7759

Email: cbell@bmhlaw.com

Counsel for California Republican Party

and Republican Party of San Diego County

Seth P. Waxman

Randy Moss

WILMER, CUTLER PICKERING HALE & 

DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, DC 20006

Telephone: (202) 663-6000

Facsimile: (202) 663-6363

Email: seth.waxman@wilmerhale.com

Counsel for Proposed Intervening Defendant

Representative Christopher Van Hollen, Jr.

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 25 of 26
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Dated: March 9, 2009. Respectfully submitted,

PERKINS COIE LLP

By: /s/ Robert F. Bauer

Robert F. Bauer (D.C. Bar No. 938902)

RBauer@perkinscoie.com

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2003

Telephone: 202.628.6600

Facsimile: 202.434.1690

Attorneys for the Democratic National Committee

Case 1:08-cv-01953-RJL-RMC Document 42 Filed 03/09/2009 Page 26 of 26