No. 09-1287

In the Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION OF THE FEDERAL ELECTION COMMISSION

TO DISMISS OR AFFIRM

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel 

KEVIN DEELEY

Assistant General Counsel 

ADAV NOTI

Attorney

Federal Election Commission

Washington, D.C. 20463

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor 

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the three-judge district court correctly held

that the “soft money” provisions of Section 101 of the

Bipartisan Campaign Reform Act of 2002, 116 Stat. 82,

are constitutional as applied to the Republican National

Committee, its Chairman, and its state and local affiliates.
(III)

TABLE OF CONTENTS

Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TABLE OF AUTHORITIES

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . 2, 3, 7, 19, 21, 28

California Med. Ass’n v. FEC, 453 U.S. 182 (1981) . . . . . 19

Citizens United v. FEC, 130 S. Ct. 876

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20, 21, 22

FEC v. Beaumont, 539 U.S. 162 (2003) . . . . . . . . . . . . . . . . 28

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) . . . . . . . . . . . . . . . . . . . . . . 8, 15, 16, 24

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.

238 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

McConnell v. FEC:

540 U.S. 93 (2003) .......................... passim

251 F. Supp. 2d 176 (D.D.C.), aff’d in part and

rev’d in part, 540 U.S. 93 (2003) . . . . . . . 4, 6, 18, 25, 27

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) . . . . 19

Randall v. Sorrell, 548 U.S. 230 (2006) . . . . . . . . . . . . . . . . 28

Taylor v. Sturgell, 128 S. Ct. 2161 (2008) . . . . . . . . . . . . . . 29

United States v. International Union UAW, 352 U.S.

567 (1957) ....................................... 3

Constitution, statutes and regulation:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV

Statutes and regulation—Continued: Page

Act of Jan. 26, 1907, ch. 420, 34 Stat. 864-865 ............ 3

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81:

Tit. I, 116 Stat. 82 ........................ passim

§ 101, 116 Stat. 82 . . . . . . . . . . . . . 2, 5, 12, 13, 14, 16

Tit. II, 116 Stat. 88:

§ 203, 116 Stat. 91 . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tit. III, 116 Stat. 95:

§ 307(a)(2), 116 Stat. 102 ...................... 6

§ 307(b), 116 Stat. 102 ........................ 6

§ 307(d), 116 Stat. 103 ........................ 6

Tit. IV, 116 Stat. 112:

§ 403(a), 116 Stat. 113 . . . . . . . . . . . . . . . . . . . . . . . 11

§ 403(a)(3), 116 Stat. 114 ...................... 6

§ 403(d), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . . . . . 11

Federal Election Campaign Act of 1971, 2 U.S.C.

431 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 U.S.C. 431(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2 U.S.C. 431(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2 U.S.C. 431(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

2 U.S.C. 431(20)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 U.S.C. 437c(b)(1) ............................. 2

2 U.S.C. 437d(a)(7) ............................. 3

2 U.S.C. 437d(a)(8) ............................. 2

2 U.S.C. 437f .................................. 3

2 U.S.C. 437g (2006 & Supp. II 2008) ............. 3

2 U.S.C. 437g(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
V

Statutes and regulation—Continued: Page

2 U.S.C. 438(a)(8) .............................. 2

2 U.S.C. 438(d) ................................ 2

2 U.S.C. 441a(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2 U.S.C. 441i(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

2 U.S.C. 441i(a)(2) ............................. 9

2 U.S.C. 441i(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 9, 10

2 U.S.C. 441i(b)(2) ............................. 5

Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283, § 112(2), 90 Stat. 486 ............. 3

11 C.F.R. 110.17(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Miscellaneous:

Price Index Adjustments for Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 75 Fed. Reg. 8355 (2010) ....................... 6

S. Rep. No. 167, 105th Cong., 2d Sess. (1998) ........... 5
(1)

In the Supreme Court of the United States

No. 09-1287

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL 

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION OF THE FEDERAL ELECTION COMMISSION

TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the district court (J.S. App. 1a-25a) is

not yet reported, but is available at 2010 WL 1140721.

JURISDICTION

The judgment of the three-judge district court (J.S.

App. 26a-27a) was entered on March 26, 2010. A notice

of appeal was filed on April 2, 2010 (J.S. App. 28a-29a),

and the jurisdictional statement was filed on April 23,

2010. The jurisdiction of this Court is invoked under

Section 403(a)(3) of the Bipartisan Campaign Reform

Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 114.
2

STATEMENT

For more than 30 years, Congress has sought to reduce the “opportunities for abuse inherent in a regime

of large individual financial contributions,” Buckley v.

Valeo, 424 U.S. 1, 27 (1976) (per curiam), by limiting the

size of contributions that may be made to candidates and

political party committees. Political donations that comply with the source-and-amount limitations imposed by

the Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431 et seq., are known as “hard money” or “federal funds.” Other political donations are known as “soft

money” or “nonfederal funds.”

Under BCRA Section 101, all contributions to national political parties must be made with hard money,

and state and local political parties generally must use

hard money to finance any “Federal election activity”

they may conduct. See 2 U.S.C. 441i(a) and (b); see also

2 U.S.C. 431(20) (definition of “Federal election activity”). In McConnell v. FEC, 540 U.S. 93 (2003), this

Court upheld those requirements against facial constitutional challenges. The instant appeal challenges the

constitutionality of BCRA’s soft-money provisions as

applied to appellants.

1. The Federal Election Commission (FEC or Commission) is vested with statutory authority over the administration, interpretation, and civil enforcement of

FECA and other federal campaign-finance statutes.

The Commission is empowered to “formulate policy”

with respect to FECA, 2 U.S.C. 437c(b)(1); “to make,

amend, and repeal such rules * * * as are necessary to

carry out the provisions of [FECA],” 2 U.S.C. 437d(a)(8),

438(a)(8); see 2 U.S.C. 438(d); to issue written advisory

opinions concerning the application of FECA and Commission regulations to any specific proposed transaction
3

or activity, 2 U.S.C. 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. 437g (2006 & Supp. II 2008).

2. a. Since 1907, Congress has prohibited corporations from making a “money contribution” in connection

with any federal election. Act of Jan. 26, 1907, ch. 420,

34 Stat. 864-865. Congress subsequently extended the

contribution prohibition to encompass labor unions, as

part of its continuing effort to address “the ‘political

potentialities of wealth’ and their ‘untoward consequences for the democratic process.’” McConnell, 540

U.S. at 116 (quoting United States v. International Union UAW, 352 U.S. 567, 577-578 (1957)); see id. at 116-

117. These provisions “did not deter unseemly fundraising and campaign practices. Evidence of those practices

persuaded Congress to enact the [FECA] Amendments

of 1974.” Id. at 118.

The 1974 Amendments, inter alia, limited each individual to contributing $1000 per election per candidate

and an aggregate total of $25,000 each year. See Buckley, 424 U.S. at 7. This Court in Buckley upheld those

limits as constitutional. See id. at 12-38. Specific limits

on individual contributions to national parties and to

other political committees were added to FECA shortly

after the decision in Buckley. Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283,

§ 112(2), 90 Stat. 486.

b. FECA’s contribution limits applied to donations

made for the purpose of influencing any federal election.

“Donations made solely for the purpose of influencing

state or local elections,” by contrast, were “unaffected

by FECA’s requirements and prohibitions.” McConnell,

540 U.S. at 122. The statutory scheme did not specifically address the proper treatment of donations to entities, such as national political parties, that engage in
4

both federal and nonfederal political activity. From

1977 to 1995, the Commission promulgated a series of

regulations permitting the national political parties and

their state affiliates to “fund mixed-purpose activities—

including get-out-the-vote [GOTV] drives and generic

party advertising—in part with soft money.” Id. at 123;

see McConnell v. FEC, 251 F. Supp. 2d 176, 196-199

(D.D.C.) (per curiam) (discussing Commission’s regulations), aff’d in part and rev’d in part, 540 U.S. 93 (2003).

Pursuant to those “allocation” regulations, political

parties accumulated and transferred hundreds of millions of soft-money dollars from their national organizations to their state and local affiliates, which could spend

the parties’ funds on the same mixed-purpose activities

but subject to more favorable allocation rules. See

McConnell, 540 U.S. at 124, 131. In addition, the national parties themselves spent hundreds of millions of

soft-money dollars—including $498 million during the

2000 election cycle alone—on putatively mixed-purpose

activities that were actually intended to support the parties’ candidates for federal office and were indistinguishable from the types of activities that parties and candidates are required to finance with hard money. Id. at

124-125. All of the soft money used to influence federal

elections was, by definition, donated by either a corporation, a labor union, or an individual who had exceeded

his or her contribution limit. “The solicitation, transfer,

and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source

and amount of contributions in connection with federal

elections.” Id. at 126.

In 1998, after an extensive investigation, the Senate

Committee on Governmental Affairs issued a report detailing the influence that soft money had come to wield
5

1 Under the “Levin Amendment,” 2 U.S.C. 441i(b)(2), state and local

party committees may finance certain federal election activity with a

combination of hard money and “Levin funds,” which are additional donations that individuals may make to a state or local party in amounts

as high as $10,000 per year (to the extent permitted by the relevant

state law). See McConnell, 540 U.S. at 162-164.

in the electoral process. S. Rep. No. 167, 105th Cong.,

2d Sess. 105-167 (1998) (Senate Report); see McConnell,

540 U.S. at 129. The Senate Report concluded that the

parties’ ability to solicit and spend soft money, particularly on “issue advertising designed to influence federal

elections,” had rendered FECA’s source-and-amount

limitations ineffective. See id. at 129-132. The Senate

Report also noted that the national parties had made a

practice of transferring funds to the state and local parties to conduct putatively nonfederal activities “that in

fact ultimately benefit[ed] federal candidates.” Id. at

131 (brackets in original) (quoting Senate Report 4466).

3. In response to the conduct detailed in the Senate

Report and similar conduct that continued during subsequent electoral cycles, Congress enacted BCRA. Title

I of BCRA, entitled “Reduction of Special Interest Influence,” was intended to prevent the use of soft money to

influence federal elections. BCRA Section 101 prohibits

national political parties and their officers from soliciting, receiving, or disbursing soft money. 2 U.S.C.

441i(a). Section 101 also prohibits state and local parties

from receiving soft money for “Federal election activity,” subject to one specific exemption. 1

 2 U.S.C.

441i(b); see 2 U.S.C. 431(20) (definition of “Federal election activity”).

All political party committees remain free to spend

unlimited amounts of hard money on any activity.

BCRA does not restrict how state and local parties may
6

2 Currently, an individual may contribute $30,400 to each national

party per year, and $115,500 in the aggregate for the two-year cycle.

See Price Index Adjustments for Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 75 Fed. Reg. 8355 (2010).

fund any undertakings other than “Federal election activity”; to the extent applicable state or local law permits, state and local parties can raise and spend unlimited individual, corporate, or union contributions for

those nonfederal activities. BCRA also substantially

raised the limits on contributions of hard money to national party committees (and on aggregate contributions), and it indexed those limits for inflation. See

BCRA § 307(a)(2), (b) and (d), 116 Stat. 102-103.2

4. Immediately after BCRA was enacted, 11 complaints were filed in the United States District Court for

the District of Columbia to challenge the constitutionality of various provisions of the new statute. One of those

suits, Republican National Committee v. FEC, Civ. No.

02-874, was brought by the RNC, an RNC officer, and

several state and local party affiliates. See McConnell,

251 F. Supp. 2d at 220 n.55, 225. Another suit, California Democratic Party v. FEC, Civ. No. 02-875, was

brought by the California Republican and Democratic

Parties. See McConnell, 251 F. Supp. 2d at 220 n.55,

225-227. The plaintiffs in those suits argued that BCRA

unconstitutionally limited the national and state parties’

receipt and disbursement of soft money for putatively

nonfederal activities.

Pursuant to BCRA’s judicial-review provision, the

district court’s judgment in the consolidated cases was

appealed directly to this Court. See BCRA § 403(a)(3),

116 Stat. 114. The Court upheld BCRA Title I against

the plaintiffs’ facial challenge. See McConnell, 540 U.S.

at 122-126, 133-189.
7

a. The Court first reiterated the holding of Buckley, supra, and subsequent cases that contribution limitations such as Title I are reviewed under an

intermediate-scrutiny standard. See McConnell, 540

U.S. at 134-142; see also id. at 138 n.40 (citing cases).

While recognizing that “restrictions on campaign expenditures” are subject “to closer scrutiny than limits on

campaign contributions,” id. at 134, the Court rejected

the plaintiffs’ contention that BCRA Title I imposes an

expenditure limit. The Court explained that, although

the statute both sets contribution limits and restrains

the use of funds raised in excess of those limits, the latter restriction is simply a contribution regulation imposed “on the demand rather than the supply side.” Id.

at 138. BCRA, the Court concluded, “simply limit[s] the

source and individual amount of donations”; it does not

restrain political party committees from spending as

much as they wish so long as they comply with those

fundraising limits. Id. at 139. BCRA also leaves state

and local party committees free to spend unlimited sums

(however raised) on activities that are not “Federal election activity.” See id. at 139 n.41.

Accordingly, the Court described the question before

it as whether the provisions of Title I were “closely

drawn to match a sufficiently important interest.”

McConnell, 540 U.S. at 136 (internal quotation marks

and citations omitted). The Court concluded that Congress had validly determined that “large soft-money contributions” to national, state, and local political parties

“give rise to corruption and the appearance of corruption,” id. at 154; see id. at 164-166, and that Title I’s restrictions were appropriately tailored to prevent those

harms, id. at 154-161, 166-173.
8

b. In concluding that prior uses of soft money had

caused corruption and the appearance of corruption, the

Court recounted the extensive evidence of fundraising

abuses leading to BCRA. See 540 U.S. at 115-117. The

Court also noted the “special relationship and unity of

interest” between national parties and federal candidates and officeholders, which “has placed national parties in a unique position * * * to serve as ‘agents for

spending on behalf of those who seek to produce obligated officeholders.’” Id. at 144-145 (quoting FEC v.

Colorado Republican Fed. Campaign Comm., 533 U.S.

431, 452 (2001) (Colorado II)). The factual record regarding such “obligated officeholders” included “evidence connect[ing] soft money to manipulations of the

legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort

reform, and tobacco legislation.” Id. at 150. The Court

accordingly rejected the plaintiffs’ argument that only

a “direct contribution to the candidate” can “threaten to

create * * * a sense of obligation” from a candidate to

a donor. Id. at 144. 

The Court in McConnell also rejected the view that

the interest in preventing corruption can justify, at

most, regulation of “contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder

or candidate.” 540 U.S. at 152. The Court noted that

persons seeking to gain influence over officeholders and

candidates have frequently exploited loopholes in

FECA, and that indirect attempts to use money to gain

influence (such as through contributions to political parties) can create actual or apparent corruption that can

justify congressional efforts to protect the integrity of

the democratic process. See id. at 143-154. 
9

The Court further held that Congress had acted permissibly in “subject[ing] all funds raised and spent by

national parties to FECA’s hard-money source and

amount limits.” 540 U.S. at 154; see id. at 154-156. The

Court acknowledged that some of the RNC’s soft money

had historically been spent on “purely state and local

election activity.” Id. at 154 n.50. The Court explained,

however, that the existence of some non-federal uses for

the contributions was “beside the point” because “the

close relationship between federal officeholders and the

national parties, as well as the means by which the parties have traded on that relationship,” had “made all

large soft-money contributions to national parties suspect.” Id. at 154-155; see id. at 143-154.

c. For like reasons, the Court rejected the RNC officer’s challenge to the prohibition on his soliciting soft

money for state and local parties, 2 U.S.C. 441i(a)(2).

The Court held that the prohibition on officer solicitation “follow[ed] sensibly from the prohibition on national

committees’ receiving soft money.” 540 U.S. at 157-158.

d. The Court also upheld the restriction (see 2

U.S.C. 441i(b)) on state and local parties’ receipt of soft

money for “Federal election activity” as defined in the

statute. The Court explained that, “given the close ties

between federal candidates and state party committees,

BCRA’s restrictions on national committee activity

would rapidly become ineffective if state and local committees remained available as a conduit for soft-money

donations.” 540 U.S. at 161. In the Court’s view, “[p]reventing corrupting activity from shifting wholesale to

state committees and thereby eviscerating FECA,” as

had occurred under the earlier allocation regime,

“clearly qualifie[d] as an important governmental interest.” Id. at 165-166.
10

The Court further concluded that Section 441i(b) was

appropriately tailored to that interest. The Court rejected the state and local parties’ contention that the

term “Federal election activity,” as defined by BCRA,

encompassed purely state or local functions that could

not corrupt federal officeholders. See 540 U.S. at 166.

The Court stated that the activities to which the softmoney restrictions applied—particularly “voter registration efforts, * * * voter identification, GOTV, and

generic campaign activity”—“clearly capture activity

that benefits federal candidates.” Id. at 167. The Court

accordingly accepted Congress’s judgment that softmoney “funding of such activities creates a significant

risk of actual and apparent corruption.” Id. at 168.

Finally, the Court addressed the state and local parties’ arguments regarding the prohibition on receiving soft money for advertising that promotes, attacks,

supports, or opposes a federal candidate. 2 U.S.C.

431(20)(A)(iii). The Court found that, with respect to the

substantial influence of such advertising on federal elections, “[t]he record on this score could scarcely be more

abundant.” McConnell, 540 U.S. at 169-170. Indeed,

preventing these party-run “sham issue ad[s]” from being financed with soft money was one of the primary

motivations behind BCRA. See id. at 129-132 (noting

Senate Committee’s findings that “the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide”),

169-170. In light of the evidence regarding their influence on federal elections, the Court held that BCRA’s

ban on financing these communications with soft money

was “closely drawn to the anticorruption interest it is

intended to address,” id. at 170, and did not unconstitu-
11

tionally limit state and local parties’ “ability to engage

in effective advocacy,” id. at 173.

5. Appellant RNC is the national committee of the

Republican Party. Appellant Michael Steele is the

Chairman of the RNC. Appellants California Republican Party (California Party) and Republican Party of

San Diego County (San Diego Party) are state and local

committees, respectively, of the Republican Party.

One week after the November 2008 general election,

appellants commenced this suit, alleging that BCRA

Title I unconstitutionally limited their receipt and disbursement of soft money for certain putatively nonfederal activities. Pursuant to BCRA’s judicial-review provision, appellants elected to proceed before a threejudge district court. 08-1953 Docket entry No. 2 (D.D.C.

Nov. 13, 2008); see BCRA § 403(a) and (d), 116 Stat.

113-114. The Democratic National Committee, the national committee of the Democratic Party, see 2 U.S.C.

431(14), and Representative Christopher Van Hollen

intervened as defendants.

The Commission moved to dismiss the complaint.

The Commission argued that appellants’ claims were

precluded because the RNC, an RNC officer, and the

California Party had unsuccessfully asserted the same

causes of action in McConnell. All parties also crossmoved for summary judgment. At the district court’s

direction, the parties subsequently filed supplemental

briefs to address this Court’s decision in Citizens United

v. FEC, 130 S. Ct. 876 (2010).

6. In an opinion by Circuit Judge Kavanaugh, the

three-judge district court granted summary judgment

to the Commission. J.S. App. 1a-25a. In light of that

disposition, the court dismissed as moot the Commis-
12

sion’s motion to dismiss on preclusion grounds. Id. at

3a-4a, 24a n.7.

The district court held that the challenged BCRA

provisions are subject to intermediate rather than strict

scrutiny. J.S. App. 10a-11a. The court explained that

“limits on contributions to candidates and political parties are subject to ‘less rigorous scrutiny’” than are

“limits on campaign expenditures,” and it noted this

Court’s holding in McConnell that BCRA’s soft-money

provisions are properly viewed as contribution limits.

Id. at 10a (quoting McConnell, 540 U.S. at 138 n.40).

The court rejected appellants’ contention that the softmoney provisions “function as expenditure limits when

applied to [appellants’] proposed conduct.” Id. at 11a.

The court explained that this “argument flies in the face

of McConnell, which squarely held that the level of scrutiny for regulations of contributions to candidates and

parties does not turn on how the candidate or party

chooses to spend the money.” Ibid.

While recognizing that “McConnell permits asapplied challenges to the provisions of BCRA,” the district court explained that a successful as-applied challenge to BCRA Section 101 must be based on something

other than “the same factual and legal arguments the

Supreme Court expressly considered when rejecting a

facial challenge to that provision.” J.S. App. 13a. The

court found the RNC’s claims to be factually and legally

indistinguishable from the claims that the RNC had asserted and this Court had rejected in McConnell. See

id. at 12a-13a. The court explained that such a challenge

“is not so much an as-applied challenge as it is an argument for overruling a precedent.” Id. at 13a.

The district court agreed with appellants that Citizens United had undercut some arguments for uphold-
13

ing BCRA Section 101. J.S. App. 13a-14a. “But that is

not enough for the RNC to prevail here,” the court explained, because the Court in McConnell had upheld

Title I based on evidence “more specific” to soft money

—“evidence of the selling of preferential access * * *

in exchange for soft-money contributions.” Id. at 14a.

The district court concluded that the subsequent ruling

in Citizens United had left that independently sufficient

rationale undisturbed. See ibid.

The RNC argued that McConnell did not control its

as-applied challenge because the RNC has pledged to

cease its participation in certain abuses (encouraging

federal candidates and officeholders to become involved

in the party’s soft-money solicitations, and providing

large soft-money donors “preferential access to candidates or officeholders”) at which BCRA’s soft-money

ban was directed. J.S. App. 14a-15a. The district court

rejected that argument. Id. at 15a-18a. The court concluded that, in light of “the inherently close relationship

between parties and their officeholders and candidates,”

soft-money donations to national parties would continue

to cause corruption or the appearance thereof even if the

RNC discontinued those specific practices. Id. at 17a;

see id. at 16a-18a. 

The district court also rejected the challenges to

BCRA Section 101 raised by the California and San

Diego Parties. J.S. App. 19a-22a. Those Parties argued

that some of their proposed activities, while falling

within BCRA’s definition of “Federal election activity,”

had an insufficient connection to federal campaigns to

permit federal regulation. Id. at 19a-20a. The court

concluded that those claims were foreclosed because

appellants had “not distinguished their proposed activities from the categories of state and local party activ-
14

3 Appellants generally recognize (see J.S. 11) that intermediate scrutiny applies here. Their one suggestion that BCRA Title I might be an

expenditure limit subject to strict scrutiny (J.S. 12 n.2) is flatly contrary to McConnell. See 540 U.S. at 138-139 (rejecting plaintiffs’ “conten[tion] that we must apply strict scrutiny” to BCRA Section 101, and

ities the Supreme Court considered in McConnell.”

Id. at 22a. The district court further held that BCRA’s

ban on soft-money solicitations by the RNC Chairman in

his official capacity was likewise constitutional under

McConnell (though the court recognized that the Chairman remains free to solicit soft money in his personal

capacity). Id. at 23a-24a. Thus, while recognizing that

as-applied challenges to BCRA are cognizable, the district court held that the particular as-applied challenges

raised in this case are not meaningfully different from

the constitutional attacks that were raised and rejected

in McConnell.

ARGUMENT

Based on a straightforward application of the legal

principles settled by this Court in McConnell and prior

cases, the district court correctly rejected appellants’

constitutional challenges. Appellants do not urge this

Court to overrule McConnell or any other precedent.

Rather, appellants (a) suggest that their own as-applied

challenges are meaningfully different from the facial

challenges rejected in McConnell, and (b) argue that the

recent decision in Citizens United undermines aspects

of the McConnell Court’s reasoning. Because those contentions lack merit, the appeal should be dismissed for

lack of a substantial federal question. In the alternative,

the judgment of the district court should be affirmed.

1. a. Applying the intermediate scrutiny it has long

used in examining contribution limits,3

 the Court in
15

holding that the provision “limit[s] the source and individual amount of

donations” without “in any way limit[ing] the total amount of money

parties can spend”); J.S. App. 11a. Appellants also do not contend that

the inflation-adjusted limits at issue are so low as to prevent national or

state parties from engaging in effective campaign-related activity. See

pp. 27-28, infra.

4 In describing the practices that gave rise to BCRA, the Court

stated that the “special relationship and unity of interest” between

national parties and federal candidates and officeholders had “placed

national parties in a unique position * * * to serve as ‘agents for

spending on behalf of those who seek to produce obligated officeholders.’” McConnell, 540 U.S. at 145 (quoting Colorado II, 533 U.S. at

452). The Court further explained that the record was “replete with

* * * examples of national party committees peddling access to federal

candidates and officeholders in exchange for large soft-money donations,” id. at 150, thereby helping the donors exert “undue influence”

over legislation and creating the appearance of corruption arising from

soft-money donations, id. at 154. Appellants therefore are mistaken in

McConnell held that BCRA’s ban on soft-money donations to national parties was closely drawn and therefore

constitutional. 540 U.S. at 154-156. The Court rejected

the contention that the ban was “impermissibly overbroad because it subjects all funds raised and spent by

national parties to FECA’s hard-money source and

amount limits, including * * * funds spent on purely

state and local elections in which no federal office is at

stake.” Id. at 154. The Court stated that “[t]his observation is beside the point” because the challenged prohibition “regulates contributions, not activities.” Ibid.

The Court explained that “it is the close relationship

between federal officeholders and the 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-

155.4
16

contending (J.S. 10, 15-16) that pre-McConnell cases such as Colorado

II, supra, conclusively establish that no such relationship exists. Indeed, those cases, read in full, only undercut appellants’ argument. See,

e.g., Colorado II, 533 U.S. at 455 (recognizing that parties “function for

the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape”).

The Court in McConnell further explained that

“[g]iven 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.” 540 U.S. at 155. The Court

concluded that “[t]he Government’s strong interests

in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source [and]

amount * * * limitations of FECA.” Id. at 156. The

Court thus made clear that the constitutionality of

BCRA’s ban on soft-money donations to national parties

does not depend on the use to which those additional

funds would otherwise be put. As the district court correctly recognized (J.S. App. 11a-18a), the Court’s analysis in McConnell disposes of the RNC’s contention (e.g.,

J.S. 12) that national parties have a constitutional right

to receive soft money so long as it is spent on allegedly

non-corruptive activities.

b. McConnell also forecloses the constitutional challenge brought by the California and San Diego Parties.

Those appellants contended below (see J.S. App. 19a22a), and appear to reassert in this Court (see J.S. 18),

that BCRA Section 101 is unconstitutional because it

prohibits state and local parties from using soft money

to fund certain undertakings that fall within BCRA’s
17

definition of “Federal election activity” but that (in appellants’ view) cannot corrupt federal candidates.

The Court in McConnell considered and rejected a

substantively identical challenge. See 540 U.S. at 166-

171. The Court explained that the relevant BCRA provision “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.” Id. at 167. The Court

further observed that the provision is “narrowly focused

on regulating contributions that pose the greatest risk

of this kind of corruption: those contributions to state

and local parties that can be used to benefit federal candidates directly.” Ibid. The Court then examined the

various categories of conduct encompassed by the statutory definition of “Federal election activity,” and it concluded that each of the covered activities confers sufficient benefits on federal candidates to “create[] a significant risk of actual and apparent corruption.” Id. at 168;

see id. at 167-171.

In rejecting the California and San Diego Parties’

constitutional challenge, the district court correctly explained that appellants “do not distinguish their proposed ads from the category of state and local party advertising that the Supreme Court expressly considered

in McConnell.” J.S. App. 21a. Because appellants make

no effort to refute that conclusion, McConnell is controlling here. 

c. Indeed, a particularly striking feature of appellants’ as-applied challenge is the close resemblance between the activities in which appellants now propose to

engage and the activities that this Court previously considered in McConnell. For example, the RNC asserts a

constitutional right to receive soft money to support
18

5 Appellants refer (J.S. 6, 18) to challenging BCRA as applied to the

“maintenance and upkeep” of the RNC’s headquarters, but this challenge does not appear in the complaint. See J.S. App. 7a n.3 (noting differences between RNC’s complaint and summary-judgment motion).

In any event, the RNC raised and lost a similar building-fund claim in

McConnell. See, e.g., 251 F. Supp. 2d at 332 (Henderson, J.); id. at 462-

463 (Kollar-Kotelly, J.); id. at 819 (Leon, J.) (including building funds

in list of activities RNC financed with soft money prior to BCRA).

6 By contrast, the Court in McConnell noted certain issues that it did

reserve for decision in potential future as-applied challenges. See, e.g.,

540 U.S. at 157 n.52 (potential state-law prohibitions on soliciting hard

money); id. at 159 (solicitations by new political parties). The instant

case does not implicate any of those issues. 

state and local candidates (J.S. App. 7a), particularly

those in Virginia and New Jersey (see Am. Compl. ¶¶ 16-

17). The RNC raised the same claim before this Court

in McConnell, including the same arguments regarding

Virginia and New Jersey. See Br. of Political Parties at

1, 9-12, 14, 19-20, 34, 40-41, 58-59, 63-64, 78-79, 86-87,

McConnell, supra (No. 02-1727) (arguing for constitutional right to receive soft money for nonfederal elections); id. at 11-12 (noting RNC’s “considerable ‘inhouse’ efforts [devoted] to the Virginia and New Jersey

gubernatorial and state legislative races * * * with a

‘mix’ of federal and nonfederal funds”). The RNC also

wishes to receive soft money to finance what it calls

“grassroots lobbying” (J.S. 18)—a topic exhaustively

litigated and reviewed in McConnell. See McConnell,

540 U.S. at 169-170 (noting that “[t]he record on this

score could scarcely be more abundant”). Appellants’

other claims are similarly duplicative of their claims in

McConnell.

5

 See FEC Mem. in Supp. of Mot. to Dismiss

11-19 (showing duplication of RNC’s, Chairman’s, and

California Party’s claims). Those duplicative claims are

foreclosed by this Court’s rejection of the originals.6
19

7 The Court in Buckley held that the basic FECA contribution limit

was valid as applied to contributions from “immediate family members,” even though it recognized that the “risk of improper influence is

somewhat diminished” in that circumstance. 424 U.S. at 53 n.59.

d. Appellants contend that, to prevail in this case,

“the government must demonstrate that each application of BCRA’s prohibition on nonfederal money targets

an activity that, if funded by nonfederal money, would

create an appreciable risk of actual or apparent quid pro

quo corruption of federal officeholders.” J.S. 10. Well

before McConnell, however, this Court had made clear

that the validity of contribution limits does not depend

on that sort of particularized showing. In Buckley, for

example, the Court “assumed” that “most large contributors do not seek improper influence over a candidate’s

position or an officeholder’s action.” 424 U.S. at 29. The

Court nevertheless held that the difficulty of identifying

those contributors who will actually seek to wield such

influence, and Congress’s interest in guarding against

the inherent appearance of abuse, justified uniform application of the $1000 individual contribution limit.7

 Id.

at 29-30; cf. California Med. Ass’n v. FEC, 453 U.S. 182,

198-199 & n.19 (1981) (plurality opinion) (holding that

contributions to political committees are subject to

FECA’s limitations even if contributions are to be used

purely for administrative support). Far from requiring

contribution-specific proof of likely corruptive effect,

this Court has consistently upheld contribution restrictions so long as those limits are not so low as to “prevent[] candidates and political committees from amassing the resources necessary for effective advocacy.”

Buckley, 424 U.S. at 21; see Nixon v. Shrink Mo. Gov’t

PAC, 528 U.S. 377, 395-396 (2000). 
20

2. Appellants’ primary argument is that this Court

in Citizens United repudiated the rationales on which

the McConnell Court upheld BCRA’s limits on contributions to political parties. The Court in Citizens United

held that Congress may not constitutionally prohibit

corporations from engaging in independent electoral

advocacy. In rejecting the government’s contention that

the expenditure ban served a valid anti-corruption purpose, the Court stated that

independent expenditures do not lead to, or create

the appearance of, quid pro quo corruption. In fact,

there is only scant evidence that independent expenditures even ingratiate. Ingratiation and access, in

any event, are not corruption. The BCRA record

establishes that certain donations to political parties,

called “soft money,” were made to gain access to

elected officials. This case, however, is about independent expenditures, not soft money.

130 S. Ct. at 910-911 (citations omitted). Contrary to

appellants’ contention, that analysis does not cast doubt

on McConnell’s holding that BCRA Title I is valid.

a. Most importantly, the Court in Citizens United

emphasized that the dispute before it involved independent electoral advocacy rather than contributions. In the

passage quoted above, the Court discussed (and largely

discounted) the corruptive potential of “independent

expenditures,” and it distinguished McConnell’s analysis of BCRA Title I on the ground that Citizens United

was “about independent expenditures, not soft money.”

130 S. Ct. at 910-911. The Court went on to explain

that “[w]hen Congress finds that a problem exists, [the

Court] must give that finding due deference; but

Congress may not choose an unconstitutional remedy.”
21

8 The Court in Citizens United overruled “the part of McConnell

that upheld [Section 203 of BCRA],” 130 S. Ct. at 913, not the part of

McConnell that upheld Title I of BCRA.

Id. at 911. The Court concluded that “[a]n outright ban

on corporate political speech during the critical

preelection period is not a permissible remedy.” Ibid.

That analysis does not mean either that soft-money

contributions to political parties lack corruptive potential, or that contribution limits are an impermissible

means of preventing actual or apparent corruption.

Since Buckley, this Court has consistently held that

Congress has greater latitude to limit contributions to

candidates or political committees than to limit independent expenditures, both because contributions pose

a greater danger of corruption and because expenditure

limits trench more severely on First Amendment freedoms. See Buckley, 424 U.S. at 19-21, 45-47; McConnell,

540 U.S. at 134-137. Neither party in Citizens United

questioned that basic distinction; rather, the dispute

concerned whether corporations have the same First

Amendment right as non-corporate entities to spend

their own funds on independent electoral advocacy. The

Court’s holding that corporations have that right is in no

way inconsistent with the McConnell Court’s analysis of

BCRA’s limits on contributions to political parties.8

Indeed, the limited nature of the relief that appellants seek in this case reflects appellants’ implicit recognition of the constitutional differences between contribution and expenditure restrictions. Appellants do not

seek invalidation of all federal limits on contributions to

political parties—the relief that would logically follow if

contributions to political parties were constitutionally

indistinguishable from independent expenditures, or if

such contributions posed no danger of corrupting fed-
22

eral officeholders. Rather, appellants appear to accept

Congress’s basic determination that large contributions

to political parties can have a corruptive effect, and that

the size of such contributions can be limited to address

that danger, if the contributions are eventually used by

the parties for activities that influence federal elections.

Appellants argue only that the BCRA limits are unconstitutional as applied to funds ultimately spent for specified activities (see J.S. 18) that, in appellants’ view, lack

a meaningful connection to federal campaigns. Appellants’ challenge is thus limited to the details of Congress’s judgments regarding the sorts of contributions

to political parties that will benefit (and thus potentially

corrupt) the parties’ federal candidates and officeholders. Citizens United does not speak to the proper disposition of that challenge.

The Citizens United Court’s statement that “[i]ngratiation and access * * * are not corruption,” 130 S. Ct.

at 910, should be understood in light of that fundamental

distinction between contributions and independent expenditures. Read in the context of the Court’s full opinion, that statement simply reflects the Court’s determination that an elected representative does not behave

corruptly by feeling greater sympathy for, or giving increased access to, persons who publicly advocate on his

behalf. That determination does not imply that the provision of access as a reward for infusions of cash, either

to the officeholder himself or to his political party, is

similarly innocuous. See McConnell, 540 U.S. at 153-154

(explaining that, although “mere political favoritism or

opportunity for influence alone is insufficient to justify

regulation[,] * * * it is the manner in which parties

have sold access to federal candidates and officeholders
23

that has given rise to the appearance of undue influence”).

b. In any event, the Court in McConnell relied not

just on evidence that soft-money donors received increased access to federal officeholders, but also on “the

record” of “real or apparent corruption” resulting from

large donations to political parties. See 540 U.S. at 149-

150. That record included concrete examples of softmoney donations leading to “manipulations of the legislative calendar,” through which Members of Congress

whose parties received soft money stopped legislation to

which the parties’ soft-money donors were opposed. See

id. at 150. Appellants assert (J.S. 10-11; see J.S. 18-19)

that there is “no evidence * * * [that] activities funded

by nonfederal money * * * create a risk of actual or

apparent quid pro quo corruption,” and they dismiss the

above-noted examples as “legislators’ responsiveness to

a donor’s legislative priorities” (J.S. 17 n.3). That argument cannot be reconciled with the McConnell Court’s

description of these “manipulations”:

Plaintiffs argue that without concrete evidence of

an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a

specific instance where the public believes a vote was

switched), Congress has not shown that there exists

real or apparent corruption. But the record is to the

contrary. * * * To claim that such actions do not

change legislative outcomes surely misunderstands

the legislative process.

540 U.S. at 149-150.

3. Appellants assert that, if they win this lawsuit, (1)

they will not ask federal officeholders to solicit soft

money, and (2) they will not help soft-money donors gain
24

more access to federal officeholders than the access appellants provide their largest hard-money donors. See

J.S. 6-7, 9-10, 15. Appellants argue that these selfimposed behavioral limits would eliminate the corruptive

potential of soft-money donations, thus rendering

BCRA’s soft-money provisions unconstitutional as applied to appellants. That argument lacks merit.

a. In sustaining BCRA’s soft-money provisions, the

Court in McConnell rejected the argument that only

“contributions made at the express behest of” a federal

officeholder raise corruption concerns. 540 U.S. at 152.

Quite apart from candidate solicitations, the inherent

“special relationship and unity of interest” between national parties and federal candidates and officeholders

“has placed national parties in a unique position, ‘whether they like it or not,’ to serve as ‘agents for spending on

behalf of those who seek to produce obligated officeholders.’” Id. at 145 (quoting Colorado II, 533 U.S. at 452).

With respect to state parties, the use of soft-money donations to finance “Federal election activity” likewise

has a clear potential to produce obligated officeholders,

see id. at 167, regardless of who solicits the donations.

The Court in McConnell reviewed extensive evidence

demonstrating that soft money was often requested, not

by officeholders themselves, but rather by professional

lobbyists channeling funds to political parties in exchange for influence over the officeholders. For example, when the Court discussed the “troubling * * *

evidence in the record showing that national parties

have actively exploited the belief that contributions purchase influence,” the Court cited a corporate soft-money

donor’s description of solicitations by lobbyists. McConnell, 540 U.S. at 148 n.47. Even when soft-money donations were solicited by persons other than officeholders,
25

officeholders were well aware of who the biggest softmoney donors were. See McConnell, 251 F. Supp. 2d at

853-854 (Leon, J.) (“[Y]ou cannot be a good Democratic

or a good Republican Member and not be aware of who

gave money to the party.”) (quoting former Senator

Bumpers); see also McConnell, 540 U.S. at 147 (“[F]or

a Member not to know the identities of these donors, he

or she must actively avoid such knowledge as it is provided by the national political parties and the donors

themselves.”) (brackets in original) (quoting McConnell,

251 F. Supp. 2d at 488 (Kollar-Kotelly, J.)). The Court’s

analysis in McConnell does not suggest that the corruptive potential of large soft-money donations would be

eliminated or even meaningfully reduced if federal candidates and officeholders were no longer asked to solicit

such contributions.

b. Appellants’ offer to cease providing soft-money

donors with preferential access to federal officeholders

does not distinguish this case from McConnell. To the

contrary, the RNC asserted in that case that it did not

“arrange meetings with government officials for any of

its donors—federal or non-federal.” McConnell, 251

F. Supp. 2d at 351 (Henderson, J.) (citing testimony of

RNC finance officer). Yet voluminous record evidence

that the RNC facilitated its soft-money donors’ access to

federal officials is exhaustively catalogued in the

McConnell district court’s opinion. See id. at 481-512

(Kollar-Kotelly, J.). And the record in the instant case

demonstrates that appellants still arrange frequent

meetings, receptions, dinners, and other events at which

their major donors discuss legislation with federal candidates and officeholders. See 08-1953 Docket entry No.

56, FEC Statement of Material Facts ¶¶ 7-11 (D.D.C.

Apr. 10, 2009) (Statement of Material Facts).
26

9 The district court’s confidence (J.S. App. 8a n.4) that appellants’

pledge could be enforced was misplaced. The Commission’s investigative authority, 2 U.S.C. 437g(a)(2), requires a complaint, or information

regarding a violation of law, in order to initiate an investigation. It is

unlikely that the RNC’s facilitation of a private meeting between a

wealthy donor and a Member of Congress, or a party official’s communication encouraging a Republican officeholder to solicit soft-money

donations, would come to light under either of those statutory conditions. Nor did the district court identify any statutory authority for the

c. If (as McConnell squarely holds) BCRA’s limits

on soft-money donations to political parties are otherwise valid anti-corruption measures, nothing in this

Court’s decisions suggests that appellants can render

those limits invalid as applied simply by pledging to implement their own alternative anti-corruption policies.

No one would suggest, for example, that the FECA limits on individual contributions to federal candidates are

unconstitutional as applied to candidates who promise

not to give preferential treatment to larger donors. Any

effort to enforce appellants’ pledge would require the

FEC to police the interactions between appellants and

Republican candidates and officeholders (to determine

whether appellants have urged candidates and officeholders to solicit soft-money donations) and between the

party and its donors (to determine whether appellants

have helped soft-money donors to gain preferential access). A chief virtue of contribution limits, however, is

that they avoid the need for such difficult and intrusive

inquiries. Cf. McConnell, 540 U.S. at 153 (explaining

that, because an officeholder’s decision to act “according

to the wishes of those who have made large financial

contributions * * * is neither easily detected nor practical to criminalize,” the “best means of prevention is to

identify and remove the temptation”).9
27

Commission to “adopt regulations requiring * * * disclosures” of

donors invited by the party to meet with officeholders, J.S. App. 9a n.4.

10 These factual developments run counter to the projections that the

RNC made in McConnell. Despite the fact that BCRA raised and indexed for inflation the hard-money limits on contributions to political

parties, see p. 6, supra, the RNC predicted in that case that it would

“not be able to recoup these lost non-federal revenues” because “it is

unlikely that the RNC will be able to raise more federal money from

lower-dollar contributors than it currently does.” 08-1953 Docket entry

No. 56, FEC Mem. in Supp. of Mot. for Summ. J. 4 (D.D.C. Apr. 10,

2009) (FEC Summary Judgment Memorandum) (quoting RNC testimony). The RNC further predicted that “[t]he net effects of BCRA

[would] be massive layoffs and severe reduction of * * * speech at the

RNC, and reduction of many state parties to a ‘nominal’ existence.”

McConnell, 251 F. Supp. 2d at 698 (Kollar-Kotelly, J.) (quoting RNC

brief).

In McConnell, however, this Court found that the plaintiff political

parties had failed to establish that they would be unable to engage in

effective advocacy after BCRA. 540 U.S. at 173. The Court observed

that, “[i]f the history of campaign finance regulation * * * proves

anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities.” Ibid. This Court

was prescient: The national parties massively expanded their low-dollar contributor base, and the RNC’s dire predictions about a “severe reduction” of the RNC’s “speech” and marginalization of state parties

have been shown to be unfounded. See FEC Summary Judgment

Memorandum 3-5.

4. Appellants have not demonstrated that BCRA’s

soft-money restrictions prevent them from raising sufficient funds to engage in effective electoral activity. To

the contrary, in each election cycle since BCRA, the national party committees raised amounts of hard money—

between approximately $900 million and $1.24 billion in

hard money in each election cycle—that are comparable

to or greater than the amounts raised in hard and soft

money combined before BCRA.10 See 08-1953 Docket

entry No. 56, FEC Mem. in Supp. of Mot. for Summ. J.
28

11 The term “political committee” encompasses any entity, whether

a corporation, union, or otherwise, that has as its “major purpose” the

election or defeat of candidates, see FEC v. Massachusetts Citizens for

Life, Inc., 479 U.S. 238, 262 (1986), and meets certain statutory criteria,

see 2 U.S.C. 431(4).

2-5 (D.D.C. Apr. 10, 2009) (discussing fundraising totals). The limit on contributions to national parties—

currently set at $30,400 per year and indexed for inflation, see p. 6 & note 2, supra—is “closely drawn” because it is not “so low as to ‘preven[t] candidates and

political committees from amassing the resources necessary for effective advocacy.’” McConnell, 540 U.S. at

135-136 (quoting Buckley, 424 U.S. at 21; and FEC v.

Beaumont, 539 U.S. 146, 162 (2003)); see also Randall v.

Sorrell, 548 U.S. 230, 247 (2006) (opinion of Breyer, J.,

joined by Roberts, C.J. and Alito, J.) (same). The hundreds of millions of dollars that the parties have been

able to raise after BCRA are plainly sufficient for “effective advocacy.” 

Appellants also contend (see J.S. 11, 22) that BCRA

unconstitutionally disadvantages political parties relative to other political organizations. The Court

in McConnell rejected the political parties’ equalprotection challenge, which was premised on the same

purported differential treatment, and explained “that

BCRA actually favors political parties in many ways.”

540 U.S. at 187-188. The national parties can receive up

to $30,400 per year from each individual donor, and the

state, district, and local committees of a party can receive up to a combined $10,000 per year in hard money

from each individual donor. By contrast, other political

committees can receive only $5000 per year from an individual donor. See 2 U.S.C. 441a(a)(1); 11 C.F.R.

110.17(b).11
29

To be sure, BCRA’s soft-money limits subject political parties to source-and-amount restrictions that are

not imposed on advocacy groups that fall outside

FECA’s “political committee” provisions. As the Court

in McConnell explained, however, “Congress is fully

entitled to consider the real-world differences between

political parties and interest groups when crafting a system of campaign finance regulation.” 540 U.S. at 188.

“Political parties have influence and power in the Legislature that vastly exceeds that of any interest group,”

including the power to “select slates of candidates for

elections” and the power to “determine who will serve on

legislative committees, elect congressional leadership,

or organize legislative caucuses.” Ibid. The Court in

McConnell concluded that “Congress’ efforts at campaign finance regulation may account for these salient

differences,” ibid., and appellants identify no sound reason for the Court to revisit that holding.

5. Although the district court did not address the

Commission’s preclusion defense, that defense provides

an independent basis for affirmance of the district

court’s judgment, at least with respect to appellants’

challenges to BCRA’s restrictions on national-party

fundraising. The RNC and the California Party were

plaintiffs in the McConnell litigation and are bound by

the judgment entered against them. Chairman Steele is

a plaintiff only by virtue of his official position as an officer of the RNC, and he is precluded by the judgment

rejecting his predecessor RNC officer’s identical arguments. See Taylor v. Sturgell, 128 S. Ct. 2161, 2172-

2173 (2008) (discussing preclusion of nonparties based

on their relationship to parties). Chairman Steele could

not assert the claims of the national party in any event.

And while the San Diego Party was not a plaintiff in
30

McConnell, it is not a national political party and therefore cannot challenge those statutory restrictions that

apply only to such national organizations. 

CONCLUSION

The appeal should be dismissed for lack of a substantial federal question. In the alternative, the judgment of

the district court should be affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel 

KEVIN DEELEY

Assistant General Counsel 

ADAV NOTI

Attorney

Federal Election Commission

NEAL KUMAR KATYAL

Acting Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor 

General

MAY 2010