UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION, et al., ) REPLY MEMORANDUM IN SUPPORT 

 ) OF MOTION TO DISMISS

 Defendants. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

Defendant Federal Election Commission (“Commission”) respectfully submits this reply 

memorandum in support of its motion to dismiss this action pursuant to Rule 12(b)(6) of the 

Federal Rules of Civil Procedure. Plaintiffs’ attempt to avoid dismissal as res judicata rests on 

extraneous submissions not properly before the Court and on the mistaken argument that a party 

may relitigate a case it previously lost merely by repackaging its allegations and devising new 

legal assertions. But none of the modified allegations or novel theories that Plaintiffs have 

proposed in this case change the fundamental fact that the Supreme Court unequivocally rejected 

the same claims of the same Plaintiffs in McConnell v. FEC, 540 U.S. 93 (2003). That holding 

precludes the Republican National Committee (“RNC”), Mike Duncan, and the California 

Republican Party (“CRP”) from relitigating their claim that they have a constitutional right to 

fund certain activities with donations raised from corporations and in unlimited amounts. 

I. STANDARD OF REVIEW 

Preliminarily, Plaintiffs misstate the standard of review for motions to dismiss under Fed. 

R. Civ. P. 12(b)(6). Such motions need not demonstrate “beyond doubt that the plaintiff[s] can 

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prove no set of facts . . . which would entitle [them] to relief.” (Pls.’ Mem. in Opp’n to FEC’s 

Mot. to Dismiss (“Pls.’ Opp.”) at 5 (quoting, inter alia, Conley v. Gibson, 355 U.S. 41, 45-46 

(1957)).) The Supreme Court abrogated Conley in 2007, holding that the “no set of facts” 

standard “is best forgotten.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). The 

appropriate question on a motion to dismiss is whether, if the factual allegations in the complaint 

are assumed to be true, the complaint states a claim on which relief can be granted. See id. at 

1964-65; Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. 

Pardus, 127 S. Ct. 2197, 2200 (2007)). Under this standard, the court’s inquiry is directed to the 

allegations actually set forth in the complaint, not towards a hypothetical “set of facts” outside 

the complaint. 

Relatedly, Plaintiffs’ reliance on affidavits to support their opposition to the 

Commission’s motion to dismiss (e.g., Pls.’ Opp. at 2-4, 13) is procedurally improper. The 

Commission’s motion is based on the allegations in the complaint and refers when appropriate to 

“matters about which the Court may take judicial notice,” Camp v. Kollen, 567 F. Supp. 2d 170, 

172 (D.D.C. 2008) (quotation omitted), such as Plaintiffs’ filings in McConnell. (See Def.’s 

Mem. in Support of Mot. to Dismiss (“Def.’s Mem.”) at 7 (discussing judicial notice of filings in 

prior cases).) In contrast, Plaintiffs introduce extraneous materials post-dating the complaint, 

and Plaintiffs indicate that they would not oppose the Court’s converting this motion under Fed. 

R. Civ. P. 12(d) to a motion for summary judgment. (Pls.’ Opp. 5 n.5.) But conversion would 

not be warranted or appropriate here, as the Court has already established a schedule that rejected 

Plaintiffs’ attempt to skip directly from case filing to summary judgment and to deprive the 

Commission of its right to challenge the facial sufficiency of the complaint. (See Pls.’ Mot. to 

Expedite Summ. J. Briefing Schedule (Docket No. 11) at 2.) As the Commission has noted 

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previously, Rule 12 protects defendants from having to engage in discovery and fact-intensive 

briefing regarding claims that do not state a proper cause of action, and nothing in the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, removes that 

protection. (Def.’s Resp. to Pls.’ Mot. to Expedite (Docket No. 16) at 1-2, 4-5.) Accordingly, 

the Commission’s motion to dismiss should be decided on the face of the complaint, Plaintiffs’ 

references to extraneous material should be disregarded, and Plaintiffs’ apparent request for 

conversion to a Rule 56 motion should be denied. See Herron v. Veneman, 305 F. Supp. 2d 64, 

70-71, 74 n.3 (D.D.C. 2004) (refusing to consider extrinsic material unnecessary to decision of 

12(b)(6) motion); Thomas v. District of Columbia, 887 F. Supp. 1, 5 n.1 (D.D.C. 1995) (same). 

II. PLAINTIFFS’ CLAIMS ARE PRECLUDED BECAUSE THEY ARE BASED ON 

THE SAME NUCLEUS OF FACTS AS THESE PLAINTIFFS’ CLAIMS IN 

MCCONNELL 

 In its motion to dismiss, the Commission demonstrated at length that Plaintiffs’ current 

claims rely on the same “nucleus of facts” as did the same Plaintiffs’ claims in McConnell.

1

 

(Def.’s Mem. at 10-19.) Plaintiffs’ response does not take issue with the Commission’s analysis 

of their McConnell claims, instead conceding that the soft-money activities Plaintiffs litigated in 

that case were “similar to the activities they intend to support [with soft money] now.” (Pls.’ 

Opp. at 15.) Plaintiffs argue, however, that the current “nucleus of facts” differs from 

McConnell because (a) the instant case challenges BCRA Title I “as applied” to certain 

activities, and (b) Plaintiffs allegedly intend not to engage in some of the practices that most 

troubled the McConnell Court. Neither of these arguments negates the res judicata prohibition 

on claim relitigation. 

 

1

 The parties appear to agree that the resolution of the Commission’s claim preclusion 

motion turns on application of the “nucleus of facts” test. (See Pls.’ Opp. at 6.) 

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A. Plaintiffs’ Request for As-Applied Relief Is a Change in Legal Theory, Not a 

Difference in the Nucleus of Facts 

 In its opening memorandum, the Commission discussed the substantial authority from 

this Circuit and District holding that a party is precluded from bringing suit based on the same 

nucleus of facts that the party raised in an earlier suit, even if the second suit propounds a 

different legal theory from the first. (Defs.’ Mem. at 10, 19-21.) Plaintiffs do not dispute this 

principle. (See Pls.’ Opp. at 6-7.) Instead, they argue primarily that the current case is an asapplied constitutional challenge to a facially valid statute, and that such challenges must be 

cognizable after the statute is upheld facially, or else the possibility of as-applied relief would be 

“illusory.” (Pls.’ Opp. at 7.) 

Plaintiffs’ assertion is relatively uncontroversial; it is also irrelevant to this motion. The 

Commission has never argued that McConnell’s facial upholding of BCRA Title I foreclosed all 

as-applied challenges to that portion of the Act. The argument raised in this motion is much 

more narrow: The same plaintiffs who claimed in McConnell that Title I was unconstitutional in 

relation to certain activities may not now re-raise claims about the unconstitutionality of Title I 

in relation to the same activities.2

 Such claims are textbook res judicata. Because there is no 

significant factual difference between Plaintiffs’ current claims and their equivalent claims 

against Title I in McConnell (see infra Part II.B), it is simply irrelevant that they have moved 

from a theory under which they can conduct their activities because Title I is unconstitutional on 

its face to a theory under which they can conduct the same activities because Title I is 

 

2

 The narrowness of this preclusive effect is demonstrated, in part, by the fact that two out 

of three Republican Party national committees, forty-six out of fifty Republican Party state 

committees, and 167 out of the 168 current members of the RNC were not plaintiffs in 

McConnell. See McConnell, 251 F. Supp. 2d at 221 (listing plaintiffs). 

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unconstitutional as applied.3

 Because the parties and activities at issue are the same, Plaintiffs 

are “simply raising a new legal theory. This is precisely what is barred by res judicata.” Apotex, 

Inc. v. FDA, 393 F.3d 210, 218 (D.C. Cir. 2004). 

In addition to arguing that McConnell did not foreclose all as-applied challenges to 

Title I, Plaintiffs assert that McConnell contemplated that such challenges might be brought by 

the McConnell plaintiffs themselves. (See Pls.’ Opp. at 8-9.) But the portions of McConnell to 

which Plaintiffs cite merely note that some of the plaintiffs’ arguments regarding hypothetical 

infirmities that might eventually develop under BCRA would more appropriately be raised as 

as-applied challenges if and when those infirmities arose. See McConnell, 540 U.S. at 157 n.52 

(potential state law prohibitions on soliciting hard money), 159 (solicitations by new political 

parties), 173 (state parties able to show that BCRA is “so radical in effect as to . . . drive the 

sound of [the recipient’s voice] below the level of notice”), 242-43 (potential FCC regulations 

and forced disclosures of strategic material).4

 Nothing in McConnell contemplates the parties 

relitigating the constitutionality of BCRA in relation to the specific, concrete activities that the 

Court actually addressed on the merits in its opinion. (See Def.’s Mem. at 17-19.) Because all 

 

3

 Plaintiffs note that facial and as-applied First Amendment challenges may be assessed 

under different standards. (Pls.’ Opp. at 7.) But the legal standard that would apply to this case 

if it were not precluded has no bearing on whether Plaintiffs’ current claims share the same 

nucleus of facts as Plaintiffs’ McConnell claims. 

4

 The same holds true for the other cases that Plaintiffs cite (Pls.’ Opp. at 7) for their 

argument regarding as-applied challenges: These decisions state only that facial validation of a 

statute may leave unresolved the constitutionality of some future statutory applications, not that a 

plaintiff is free to re-file its facial challenge under the label of an as-applied challenge. See 

Gonzalez v. Carhart, 127 S. Ct. 1610, 1638-39 (2007) (noting potential as-applied challenges to 

future statutory applications not presented in facial challenge); Broadrick v. Oklahoma, 413 U.S. 

601, 615-16 (1973) (noting generally that facially valid statutes may be subject to as-applied 

challenges). 

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of the activities that Plaintiffs now claim they wish to undertake were so addressed,5

 there is no 

support in McConnell for Plaintiffs’ attempt to render the doctrine of claim preclusion 

inapplicable here. 

In any event, Plaintiffs’ assertion that the McConnell Court anticipated as-applied 

challenges from the McConnell plaintiffs is not pertinent to the claim preclusion issue raised by 

the Commission’s motion to dismiss. Plaintiffs appear to be arguing that the mere fact they were 

parties to McConnell does not permanently prevent them from challenging BCRA. The 

Commission, however, does not argue that the RNC, Duncan, and the CRP are precluded from 

bringing any as-applied challenge to Title I (or to BCRA in general), or that preclusion applies 

only because these Plaintiffs were parties to the facial challenge in McConnell.

6

 Rather, claim 

preclusion applies here because there is an identity of parties and a common nucleus of factual 

allegations between this case and McConnell. Where those two elements are present (and there 

is no dispute as to the other prongs of the claim-preclusion test), res judicata protects the FEC, 

like all other defendants, from having to defend against a claim that it has already defeated. (See

Def.’s Mem. at 8-10.) 

 

5

 The reference in Plaintiffs’ brief to a “building fund” that the RNC allegedly wishes to 

finance with soft money (Pls.’ Opp. at 3) exemplifies why affidavits should be disregarded for 

purposes of this motion: There is no mention of any “building fund” in the complaint, and 

therefore it is irrelevant to the question of whether the complaint states a claim on which relief 

can be granted. Nonetheless, the Commission notes that the RNC raised and lost the “building 

fund” claim, along with the rest of its current claims, in McConnell. See, e.g., McConnell v. 

FEC, 251 F. Supp. 2d 176, 332 (opinion of Henderson, J.), 819 (opinion of Leon, J.) (D.D.C. 

2003) (“[N]onfederal funds were used for voter registration and identification, get-out-the-vote 

activities, ‘issue advocacy,’ building funds, and national support for state and local candidates.”). 

6

 To the contrary, the Commission is presently litigating an as-applied constitutional 

challenge to BCRA Section 203 brought by an entity that challenged the same Section as a 

plaintiff in McConnell. See generally Citizens United v. FEC, Civ. No. 07-2240 (D.D.C.), 

appeal docketed, S. Ct. No. 08-205. Because the plaintiff in Citizens United is not seeking relief 

regarding the same nucleus of facts presented to the McConnell Court, the Commission has 

never argued in that case that the plaintiff’s participation in McConnell precluded the current 

litigation. 

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In addition to McConnell, Plaintiffs also seek to draw support for their argument 

regarding as-applied challenges from Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) 

(“WRTL I”). In lieu of further reply, the Commission respectfully refers the Court to the 

Commission’s opening memorandum, which explained, inter alia, that no issue of claim 

preclusion was raised or decided in WRTL I because the plaintiff in that case was not a party to 

McConnell, and the activities at issue in WRTL I had not been presented to the McConnell Court. 

(Def.’s Mem. at 22-24.) 

B. Plaintiffs’ Allegation that Federal Candidates and Officeholders Will Not 

Directly Solicit Soft Money Does Not Alter the Nucleus of Facts Underlying 

Plaintiffs’ Claims 

 Plaintiffs attempt to distinguish the factual nucleus of their current claims from their 

McConnell claims based on the allegation in the instant complaint that “no federal candidate or 

officeholder will solicit, receive, or spend funds in connection with any of the Plaintiffs’ 

activities described [in the complaint]” (Compl. ¶ 26).7 Even taking this implausible allegation 

as true for purposes of the instant motion, it does not distinguish the nucleus of facts in this case 

from McConnell.

8

 

7

 The citation in Plaintiffs’ brief (at 13) to paragraph 19 of the complaint for this 

proposition appears to be mistaken. 

8

 Plaintiffs provide three additional “facts” that they assert distinguish this case from 

McConnell. (See Pls.’ Opp. at 13-14 (citing affidavits regarding soft-money donors receiving 

preferential access to federal candidates or officeholders, citing affidavit stating that fundraising 

has been “impaired” by such factors as “the explosion of internet fundraising,” and asserting that 

“none of Plaintiffs’ intended activities will support any federal candidate or campaign”).) None 

of these assertions appear anywhere in the complaint, and, accordingly, they are not 

appropriately considered in the context of the Commission’s motion to dismiss. See supra Part I. 

If the instant motion is not granted, the Commission will respond to these extraneous factual 

assertions where they belong, namely in the Commission’s opposition to Plaintiffs’ motion for 

summary judgment and in the Commission’s own motion for summary judgment, to be filed 

promptly after additional record development. In any event, for the same reasons stated below 

regarding candidate and officeholder involvement, consideration of these extraneous assertions 

would not change the result of this motion. 

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The Commission agrees with Plaintiffs that the McConnell Court was, in part, concerned 

with federal candidates’ and officeholders’ involvement in the soft-money process when it 

upheld the Act. (See Def.’s Mem. at 3-4, 18.) But that was only a single factor among the 

wealth of facts that were important when the Court rejected Plaintiffs’ claims and arguments in 

McConnell and upheld Title I. In its opening brief, the Commission set forth the enormous 

overlap between Plaintiffs’ current complaint and the complaint and substantive briefs in 

McConnell. (Def.’s Mem. at 11-17.) None of the common facts detailed there have anything to 

do with federal candidates or officeholders soliciting soft money. (See id.) And the Supreme 

Court made clear that the corruptive effect of soft-money donations to political parties was not 

dependent on direct participation by federal officeholders and candidates, for “even when not 

participating directly in the fundraising, federal officeholders were well aware of the identities of 

the donors.” McConnell, 540 U.S. at 147. Thus, “whether they like it or not,” a political party 

that receives massive donations becomes the de facto agent of those donors in relation to federal 

candidates and officeholders affiliated with the party. See id. at 145. The Court accordingly 

rejected Justice Kennedy’s argument in dissent that only contributions made “at the behest of” 

federal candidates should be constitutionally subject to regulation: 

This crabbed view of corruption . . . ignores precedent, common sense, 

and the realities of political fundraising exposed by the record in this 

litigation. 

Justice Kennedy’s interpretation of the First Amendment would 

render Congress powerless to address more subtle but equally dispiriting 

forms of corruption. Just as troubling to a functioning democracy as 

classic quid pro quo corruption is the danger that officeholders will decide 

issues not on the merits or the desires of their constituencies, but 

according to the wishes of those who have made large financial 

contributions valued by the officeholder. Even if it occurs only 

occasionally, the potential for such undue influence is manifest. And 

unlike straight cash-for-votes transactions, such corruption is neither 

easily detected nor practical to criminalize. The best means of prevention 

is to identify and to remove the temptation. The evidence set forth above, 

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which is but a sampling of the reams of disquieting evidence contained in 

the record, convincingly demonstrates that soft-money contributions to 

political parties carry with them just such temptation. . . . 

In sum, there is substantial evidence to support Congress’ 

determination that large soft-money contributions to national political 

parties give rise to corruption and the appearance of corruption. 

Id. at 152-54. The Court thus rejected the plaintiffs’ and the dissent’s argument that soft money 

contributions must be solicited by a federal candidate or officeholder to be corrupting. Instead, 

the key nucleus of facts in McConnell’s upholding of Title I concerned the inherent corruptive 

potential posed by political parties’ ability to accept unlimited soft-money contributions. See id.

9

 

Regardless of Plaintiffs’ allegations about who would solicit their soft money going 

forward, the entirety of their instant complaint, like McConnell, revolves around the political 

parties’ receipt and spending of soft-money contributions. At heart, Plaintiffs’ factual allegations 

are that Plaintiffs would like to receive soft money and spend it on certain activities — just as 

they claimed in McConnell — and in both cases Plaintiffs characterize the activities they wish to 

finance with their unlimited donations as involving state elections, mixed state-and-federal 

elections, redistricting activity, “issue advertising,” and “federal election activity” under 2 U.S.C. 

§ 431(20). (See Def.’s Mem. at 11-17.) This is the nucleus of facts in each case, and Plaintiffs’ 

allegation of future voluntary restrictions on soft-money solicitation by federal candidates and 

officeholders is merely a modification to one subsidiary factual consideration that is clearly 

insufficient from the plain language of the Court’s opinion to alter the outcome. Because 

 

9

 Even if the removal of solicitations by federal officeholders could be viewed as singlehandedly distinguishing the current claims from plaintiffs’ earlier claims, Justice Kennedy’s 

opinion, see 540 U.S. at 298-307, demonstrates beyond dispute that such a claim could have 

been brought when the same nucleus of facts were litigated in McConnell. (See Def.’s Mem. at 

10 (discussing cases holding that plaintiffs are precluded from bringing claims that that they 

could have litigated — but chose not to — in an earlier action).) 

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Plaintiffs lost the underlying argument in McConnell, they cannot force the Commission to 

litigate it again here. 

In addition to arguing that the nucleus of facts of this case differs from McConnell, 

Plaintiffs maintain that their current complaint is not barred by res judicata because it is “‘based 

on material facts that were not in existence when they brought the original suit.’” (Pls.’ Opp. at 

6 (quoting Apotex, 393 F.3d at 218), 15.)10 This argument is difficult to fathom, given that 

nearly every factual allegation (material or otherwise) in Plaintiffs’ complaint is duplicative of 

the facts Plaintiffs asserted in McConnell. Plaintiffs cite as an example of their purportedly postMcConnell activity the RNC’s plan to “solicit funds into a Virginia Account to be used 

exclusively to support candidates for state office in Virginia.” (Id. at 14.) Yet Plaintiffs asserted 

this same fact in McConnell — not merely that the RNC planned in general to spend soft money 

on state elections where no federal candidates were on the ballot, but that the RNC wished to do 

so specifically in Virginia. (FEC Exh. 3 at RNC 6, 25-26; Exh. 7 at 11-12.) This is more than a 

shared nucleus of fact; it is exactly the same fact. Plaintiffs themselves recognized such overlap 

in arguing to this Court that the Commission would not require discovery here because “prior 

activities of the Plaintiffs were fully investigated and included in the McConnell record.” (Pls.’ 

Reply in Support of Mot. to Expedite (Docket No. 18) at 2.) Thus, because all of Plaintiffs’ 

 

10 Plaintiffs also cite Stanton v. Dist. of Columbia Ct. of App., 127 F.3d 72, 79 (D.C. Cir. 

1997), but the earlier action in that case involved a retrospective adjudication of an individual’s 

earlier conduct, not a facial challenge. The Stanton court explicitly distinguished earlier facial 

challenges, noting that in constitutional litigation, “a party raising a facial challenge . . . should 

reasonably be viewed as seeking a judgment on all future applications, except as future facts may 

vary.” Id. at 79. Plaintiffs’ complaint raises no facts varying materially from those presented to 

the McConnell Court, with both cases involving challenges to prospective applications of the 

statute. See also Wise v. Glickman, 257 F. Supp. 2d 123, 130 & n.9 (D.D.C. 2003) 

(distinguishing Stanton and noting that “once a claim is brought to a final conclusion, all other 

claims arising out of the same transaction or series of transactions are barred, even . . . if seeking 

a different remedy.” (internal quotation marks omitted; emphasis added)). 

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allegedly new activities are materially identical to the activities they sought to continue by 

bringing McConnell (see Def.’s Mem. at 11-17), Plaintiffs have not put forward the type of new 

facts that would render claim preclusion inapplicable. See Apotex, 393 F.3d at 218 (holding 

claim preclusion applicable where plaintiff’s suit related to government action regarding the 

same activity). 

III. PLAINTIFFS ARE PRECLUDED FROM RELITIGATING THEIR ARGUMENT 

THAT THE CONSTITUTIONALITY OF BCRA TITLE I DEPENDS ON THE 

ACTIVITIES THAT THE PLAINTIFFS WISH TO FUND WITH SOFT MONEY 

Plaintiffs are precluded from contesting here the Supreme Court’s conclusion that “it is 

irrelevant” for purposes of determining whether BCRA Title I is constitutional how a political 

party wishes to spend its soft money. See McConnell, 540 U.S. at 138-39, 154-56. As the 

Commission discussed in its opening brief, that legal determination by the Court — made over 

fierce opposition by the current Plaintiffs — precludes the argument that underlies the entire 

instant complaint, i.e., that the contribution limit in Title I is unconstitutional in relation to 

certain spending. (Def.’s Mem. at 24-28.) 

Plaintiffs devote only one sentence of their response to the particular legal determination 

in question (see Pls.’ Opp. at 20), and they make no attempt to refute the Commission’s showing 

that Plaintiffs litigated and lost this issue in McConnell. Instead, as they do with motions to 

dismiss in general, Plaintiffs misstate the relevant standard. Contrary to Plaintiffs’ assertion, the 

Commission need not show that the issue presented here is “‘identical in all respects with that 

decided in the first proceeding.’” (Id. at 16 (quoting C.I.R. v. Sunnen, 333 U.S. 591, 600 (1948).) 

As the D.C. Circuit noted almost three decades ago, this “aspect of Sunnen is no longer good 

law,” Am. Med. Int’l, Inc. v. Sec’y of Health, Educ. and Welfare, 677 F.2d 118, 120 (D.C. Cir. 

1981) (per curiam), having been superseded by Montana v. United States, 440 U.S. 147 (1979), 

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and its progeny. Under the proper standard, minor differences between a first and second case 

do not defeat an issue preclusion defense. (See Def.’s Mem. at 27-28 (citing, inter alia, Stonehill 

v. IRS, 534 F. Supp. 2d 1, 6-8 (D.D.C. 2008), and Newdow v. Bush, 355 F. Supp. 2d 265, 275 

(D.D.C. 2005)).) Thus, because the question of whether Title I might be unconstitutional in 

relation to Plaintiffs’ spending is the same issue presented by Plaintiffs’ current complaint, 

Plaintiffs’ presentation of it here in an as-applied challenge does not avoid the application of 

issue preclusion. 

Plaintiffs’ other counterarguments (Pls.’ Opp. at 16-20) rely on the same faulty reasoning 

discussed previously regarding purported factual differences between this case and McConnell, 

and the same mischaracterization of WRTL I. See supra Part II. The only new argument 

Plaintiffs assert in relation to issue preclusion is that the true “issue” in this case is whether 

Title I is consistent with a statement in Buckley v. Valeo, 424 U.S. 1, 80 (1976). (See Pls.’ Opp. 

at 19-20.) Given that Buckley was decided twenty-seven years before McConnell — which 

upheld Title I and cited Buckley literally hundreds of times — this is, to say the least, a novel 

argument. But if raising a novel argument, no matter how tenuous, were sufficient to defeat 

issue preclusion, almost any new legal assertion could render the doctrine a nullity. The 

protections of res judicata are not so easily dismissed. As the Commission discussed in its 

opening brief, the test for issue preclusion is satisfied here because Plaintiffs’ complaint is 

premised on a legal argument that Plaintiffs actually litigated and lost in McConnell, and their 

allegations regarding their desire to fund activities with soft money therefore fail to state a claim 

on which relief can be granted. 

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IV. PLAINTIFFS’ CLAIMS FAIL AS A MATTER OF LAW 

Although Plaintiff Republican Party of San Diego County (“RPSD”) was not a party to 

McConnell, its claims, like those of the other Plaintiffs, rely on the assumption that allegations 

regarding Title I’s effects on particular categories of spending state a viable claim. Because that 

assumption is untenable, for the reasons discussed supra Part III, the RPSD’s claims are subject 

to dismissal as a matter of law along with those of the other Plaintiffs.

V. CONCLUSION 

 Underlying Plaintiffs’ response is a suggestion that because they have raised 

constitutional issues that they consider important, the standard protections against burdensome 

and duplicative litigation afforded to defendants should not apply here. Nothing could be further 

from the truth. In cases such as this, where a decision on the merits might have an enormous 

effect on the entire American political system, it is particularly important that the action be 

properly bought and otherwise adhere to the rules that courts have developed to ensure equitable 

and consistent adjudication. The doctrine of res judicata is at the core of such jurisprudence, and 

it applies no less to this case than to any other action. 

For all of the foregoing reasons, the Commission respectfully requests that the Court 

dismiss this action. 

Respectfully submitted, 

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

General Counsel 

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

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

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 /s/ Adav Noti 

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

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: March 4, 2009 (202) 694-1650 

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