Plaintiffs' Motion for Summary Judgment

United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241-CRC-SS-TSC

THREE-JUDGE COURT

ORAL ARGUMENT REQUESTED

Plaintiffs’ Motion for Summary Judgment

Plaintiffs move for summary judgment on all counts in their Verified Complaint for Declara-

tory and Injunctive Relief (Doc. 1) and request oral argument. In support, Plaintiffs file herewith

• Plaintiffs’ Memorandum Supporting Their Motion for Summary Judgment,

• Plaintiffs’ Statement of Undisputed Facts,

• Exhibit 1, and

• Plaintiffs’ Proposed Order.

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO 0041

[email protected]

Richard E. Coleson*

[email protected]

*Corrine L. Purvis,*

[email protected]

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

Plaintiffs’ Summary-Judgment Motion

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 1 of 87

Certificate of Service

I certify that on February 11, 2016, I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system, which will notify:

Charles Kitcher, [email protected]ov

Gregory John Mueller, [email protected]ov

Harry Jacobs Summers, [email protected]

Kevin Deeley, kdeeley@fec.gov

Seth E. Nesin, [email protected]ov

Counsel for Defendant

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

202/694-1650.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 2 of 87

United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241-CRC-SS-TSC

THREE-JUDGE COURT

ORAL ARGUMENT REQUESTED

Plaintiffs’ Memorandum Supporting Their

Motion for Summary Judgment

James Bopp, Jr., Bar #CO 0041

[email protected]

Richard E. Coleson*

rcoleson@bopplaw.com

Corrine L. Purvis*

cpurvis@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 3 of 87

Table of Contents

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

I. Standard of Review & Scrutiny: FEC Must Prove a “Fit” to Quid-Pro-Quo Corruption..14

A. McConnell’s Scrutiny Analysis Neither Applies Nor Controls.. . . . . . . . . . . . . . . . . 15

B. McCutcheon Controls the Contribution Context, Requiring a “Fit” to Narrow Cor-

ruption... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. Citizens United’s Strict Scrutiny Controls the Independent-Communication

Context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. Only Narrow “Corruption” Is Cognizable; Independent Communications Pose None.. . 18

A. Challenged Provisions Burden First Amendment Rights. . . . . . . . . . . . . . . . . . . . . . 18

B. The Required Analysis Requires Careful Scrutiny of Interests and Tailoring

Based on Narrow Quid-Pro-Quo Corruption.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. Independent-Expenditure Cases Hold that Independence Removes Corruption.. . . . 26

D. Political Parties’ Independent Activities Are Also Non-Corrupting... . . . . . . . . . . . . 27

1. IE-PAC Case Statements Distinguishing Party-Committees Are Dicta.. . . . . . . . 28

2. Party-Committee Coordination with Candidates May Not Be Presumed... . . . . . 28

3. What the Colorado Cases and McConnell Really Said Supports Plaintiffs.. . . . . 33

III. The Challenged Provisions Are Unconstitutional, as Applied and Facially.. . . . . . . . . . . 36

A. The Challenged Provisions Are Unconstitutional as Applied in Count I.. . . . . . . . . . 37

B. The Challenged Provisions Are Unconstitutional as Applied in Count II.. . . . . . . . . 40

C. The Challenged Provisions Are Unconstitutional as Applied in Count III... . . . . . . . 42

D. The Challenged Provisions Are Unconstitutional Facially (Count IV).. . . . . . . . . . . 44

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 4 of 87

Table of Authorities

Cases

Ariz. Free Enter. Club’s Freedom PAC v. Bennett, 131 S.Ct. 2806 (2011). . . . . . . . . . . . . . . . . . 24

Brown v. Hartlage, 456 U.S. 45 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

*Buckley v. Valeo, 424 U.S. 1 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

*Citizens United v. FEC, 558 U.S. 310 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 24-25, 27-34

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Evans v. United States, 504 U.S. 255 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

FEC v. Colorado Republican Federal Campaign Committee, 41 F. Supp. 2d 1197 (D. Colo.

1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

FEC v. Colorado Republican Federal Campaign Committee, 213 F.3d 1221 (10th Cir. 2000)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

*FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) . . . . . passim

FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1488 (D. Col. 1993)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 32

FEC v. Nat’l Conservative PAC, 470 U.S. 480 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 29-30

*FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). . . . . . . . . . . . . . . . . . . . . . . 24, 30

Marks v. United States, 430 U.S. 188 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003). . . . . . . . . . . . . . . . . . . . . . . . 1, 25, 37, 44

*McConnell v. FEC, 540 U.S. 93 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

McCormick v. United States, 500 U.S. 257 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

*McCutcheon v. FEC, 134 S.Ct. 1434 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Republican Party of Minnesota v. White, 536 U.S. 765 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . 40

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 5 of 87

RNC v. FEC, 561 U.S. 1040 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

RNC v. FEC, No. 14-0853 (D.D.C., voluntarily dismissed 2014) . . . . . . . . . . . . . . . . . . . . . . . . 20

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 38-39

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).. . . . . . . . . . . . . . . . . 2, 20, 25-27, 31, 33

Stromberg v. California, 283 U.S. 359 (1931). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Constitutions, Statutes & Rules

11 C.F.R. 100.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

11 C.F.R. 100.24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 100.24(a)(2)(i)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11 C.F.R. 100.24(a)(3)(i)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11 C.F.R. 100.24(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

11 C.F.R. 100.24(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

11 C.F.R. 100.24(c)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

11 C.F.R. 100.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

11 C.F.R. 100.26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 39-40

11 C.F.R. 100.5(e)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

11 C.F.R. 109.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

11 C.F.R. 109.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29

11 C.F.R. 109.37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29, 31

11 C.F.R. 300.2(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 300.2(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11 C.F.R. 300.30(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21

11 C.F.R. 300.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Plaintiffs’ Summary-Judgment Memo

iii

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 6 of 87

11 C.F.R. 300.32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

11 C.F.R. 300.32(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

11 C.F.R. 300.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. 30101(15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. 30101(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

52 U.S.C. 30101(20). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

52 U.S.C. 30104(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

52 U.S.C. 30116(7)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

52 U.S.C. 30125(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

52 U.S.C. 30125(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

Fed. R. Civ. P. 56(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

*U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

Bob Bauer, Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits (June 2,

2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Brennan Center for Justice, Stronger Parties, Stronger Democracy: Rethinking Reform (2015)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Committee on Campaign Finance Reform, “Legislative Recommendations for Campaign Fi-

nance Reform” (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6, 21, 38

FEC, “Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money,” 67 Fed.

Reg. 49064 (July 29, 2002) (“2002 E&J”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEC, Advisory Opinion 2010-11 (Commonsense Ten) (July 22, 2010). . . . . . . . . . . . . . . . . . . . 27

FEC, FEC Statement on Carey v. FEC (Oct. 5, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 26, 42

FEC, Matter Under Review 3620 (DSCC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

FEC, News Release (June 4, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L.

Rev. 1185 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 7 of 87

Introduction

Plaintiffs are state and local committees of a political party. The central focus of their case is

their desire to use “nonfederal funds”

for independent communications qualifying as “federal

election activity” (“FEA”).

They cannot because of the Ban

on using nonfederal funds for FEA.

The Ban must be justified by the “only ... legitimate governmental interest for restricting cam-

paign finances: preventing corruption or the appearance of corruption.” McCutcheon v. FEC, 134

S.Ct. 1434, 1450 (2014).

Only narrowly defined “‘quid pro quo’ corruption” is cognizable, id., so

FEC must prove a proper fit between the challenged provisions and preventing that corruption.

But FEC cannot meet its burden, first, because in McConnell v. FEC, 540 U.S. 93 (2003), FEC

“identified not a single discrete instance of quid pro quo corruption attributable to the donation of

non-federal funds.” McConnell v. FEC, 251 F. Supp. 2d 176, 395 (D.D.C. 2003) (op. Henderson,

J.). Accord McCutcheon, 134 S.Ct. at 1469-70 (Breyer, J., joined by Ginsburg, Sotomayor & Kagan,

JJ., dissenting) (quoting and citing Mconnell, 251 F. Supp. 2d at 395) (op. Henderson, J.)).

And FEC cannot meets its burden, second, because central to the present challenge is independ-

“Federal funds ... comply with the limitations, prohibitions, and reporting requirements of the

[Federal Election Campaign] Act [(“FECA”)].” 11 C.F.R. 300.2(g). “Non-Federal funds ... are not

subject to” those requirements. 11 C.F.R. 300.2(k).

FEA encompasses many traditional activities of state and local committees, including voter-

registration activity (VR”), get-out-the-vote activity (“GOTV”), voter identification (“VID”), generic

campaign activity (“GCA”) (promoting political party), communications promoting, attacking,

supporting, opposing federal candidates (“PASO”), and compensating workers with over 25% of

time monthly on FEA (“25% Rule”). 52 U.S.C. 30101(20); 11 C.F.R. 100.24.

For the Court’s convenience, Plaintiffs have included relevant FEA definitions in the Complaint

(see Compl. ¶¶ 16-27), as well as legal and historical context (see id. ¶¶ 36-39 (federal-fund require-

ment), ¶¶ 40-44 (political-committee status), ¶¶ 45-51 (allocation rules), ¶ 52 (restrictions on candi-

dates/officeholders), and ¶¶ 53-68 (rulemaking and litigation on FEA)).

The texts of the challenged Ban (52 U.S.C. 30125(b)(1)), Fundraising Requirement (52 U.S.C.

30125(c)), and Reporting Requirement (52 U.S.C. 30104(e)) are set out in the Complaint at ¶¶ 32-35.

This plurality opinion (Roberts, C.J., joined by Scalia, Kennedy & Alito, JJ.) states the holding,

Marks v. United States, 430 U.S. 188, 193 (1977), so “plurality” indicators are omitted herein.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 8 of 87

ent activity, especially communications, as set out in the Complaint (¶ 1 (emphasis added)):

Plaintiffs challenge provisions of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) ...

restricting “federal election activity,” 52 U.S.C. 30101(20) (definition), as unconstitutional under

the First Amendment (I) as applied to (a) non-individualized, independent communications

exhorting registering/voting and (b) non-individualized, independent communications by

Internet; (II) as applied to (a) non-individualized, independent communications and (b) such

communications from an independent-communications-only account (“ICA”); (III) as applied to

all independent federal election activity; and (IV) facially.

Independence eliminates quid-pro-quo risk from communications. Buckley v. Valeo, 424 U.S. 1, 47

(1976). “[I]ndependent expenditures ... do not give rise to corruption or the appearance of corrup-

tion.” Citizens United v. FEC, 558 U.S. 310, 357 (2010). Thus, contributions for making independ-

ent expenditures may not be limited. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). And

political committees that make contributions may establish a “Non-Contribution Account” (“NCA”)

to receive unlimited contributions to “financ[e] independent expenditures, other advertisements that

refer to a Federal candidate, and generic voter drives.” FEC, FEC Statement on Carey v. FEC (Oct.

5, 2011), www.fec.gov/press/press2011/20111006postcarey.shtml. The same analysis applies to

political parties because (i) they are capable of making independent expenditures, Colorado Republi-

can Federal Campaign Committee v. FEC, 518 U.S. 604, 619 (1996) (“Colorado-I”) (rejecting

“Government’s conclusive presumption that all party expenditures are ‘coordinated’”),

and (ii) their

independent communications also pose no corruption risk, id. at 613-22.

Absent the anti-corruption interest, the Ban must fall (along with the derivative Fundraising

Requirement and Reporting Requirement requiring the same anti-corruption justification) as applied

to independent activity. The provisions fail facially because the access/gratitude “corruption” used

to uphold them in McConnell 540 U.S. at 168 (“officeholders are grateful for contributions to state

This plurality opinion (Breyer, J., joined by O’Connor & Souter, JJ.) states the holding, Marks,

430 U.S. at 193, so “plurality” indicators are sometimes omitted herein.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 9 of 87

and local parties”), was rejected in Citizens United, 558 U.S. at 360 (“Ingratiation and access ... are

not corruption.”), and McCutcheon, 134 S.Ct. at 1441 (same).

Facts

These facts are summarized from Plaintiffs’ Statement of Material Facts Not in Genuine Dispute

(“SMF”). The core of this case is that Plaintiffs want to use nonfederal funds for independent FEA.

• Parties (SMF ¶¶ 1-4). Republican Party of Louisiana (“LAGOP”) is a “[s]tate committee,” 52

U.S.C. 30101(15), and a “state party committee” (as a “political committee”), 11 C.F.R. 100.5(e)(4).

Its purposes are electing Republicans and supporting issues reflecting its principles. (SMF ¶ 1).

Jefferson Parish Republican Parish Executive Committee (“JPGOP”) is a “local committee,” i.e.,

“part of the official party structure[] ... at the [local] level.” 11 C.F.R. 100.14(b). It is not a federal

“political committee,” so not a “party committee.” 11 C.F.R. 100.5(e)(4). (SMF ¶ 2.) Orleans Parish

Republican Executive Committee (“OPGOP”) is also a parish executive committee and local com-

mittee. (SMF ¶ 3.) FEC has enforcement authority over challenged provisions. (SMF ¶ 4.)

• Historical Context (SMF ¶¶ 11-14). Political parties could once use nonfederal funds for

activity now called FEA under rules allowing allocation between federal and nonfederal accounts.

(SMF ¶¶ 5-9; Compl. ¶¶ 45-51 (allocation rules).) BCRA altered this by (a) banning use of

nonfederal funds (except “Levin funds,” not at issue here

) for FEA (“Ban”) (Compl. ¶¶ 32-33); (b)

“State committees” or “local committees” (a.k.a. “party organizations,” 11 C.F.R. 300.30(c))

are committees not necessarily registered as political committees so as to be “party committees.”

Levin funds may be used for some allocation but are restricted in raising and use. 11 C.F.R. 300.

31, .32, and .33(c). Plaintiffs cannot use them for some planned FEA because they may not be used

for any broadcast (or cable/satellite) communication (unless it solely references a state/local candi-

date), for paying employees devoting over 25% of their time per month on activity in connection

with federal elections, and for communications referencing federal candidates. 11 C.F.R. 300.32(c).

Moreover, Plaintiffs do not use Levin funds due to the complexity, burdens, and restrictions associ-

ated with them. (SMF ¶ 10 n.6.) Joint fundraising costs may be allocated under 11 C.F.R. 300.33,

but are not involved here and don’t allow state/local committees to use nonfederal funds for FEA.

Plaintiffs’ Summary-Judgment Memo

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requiring federal funds for fundraising for FEA (“Fundraising Requirement”) (Compl. ¶ 34); and (c)

requiring monthly FEA reporting (“Reporting Requirement”) (Compl. ¶ 35). (SMF ¶ 10.)

• FEA Periods (SMF ¶¶ 11-14). Some FEA is only such at certain times. FEC publishes periods

for (a) VR

(120 days before regular election, 52 U.S.C. 30101(20)(A)(i)) and (b) VID, GCA, and

GOTV (all three run from earliest primary filing date to the general election, 11 C.F.R. 100.24(a)(1)).

(SMF ¶¶ 11-13.) Louisiana FEA periods related to 2016 elections are VID/ GCA/GOTV = 12/02/15

–11/08/16; VR = 11/06/15–03/05/16 and 07/11/16 –11/08/16. (SMF ¶ 14.)

• FEC Rulemaking & Litigation on FEA Definitions (see SMF ¶¶ 15-30). FEC’s original

definitions of VR and GOTV required “individualized” assistance and did not include merely

“encouraging or urging” registration or voting, but FEC changed its definitions to include “encour-

aging or urging” and to drop the “individualized” requirement due to Shays v. FEC, 528 F.3d 914

(D.C. Cir. 2008) (“Shays-III”). (SMF ¶¶ 15-21.) Though FEC does not include Internet communica-

tions in the definitions of other FEA (“except for communications placed for a fee on another per-

son’s website,” 11 C.F.R. 100.26 (“public communication” definition incorporated into some FEA

definitions)), and originally did not include online communications in its VR and GOTV definitions,

after Shays-III it included online communications in its VR and GOTV definitions. (SMF ¶¶ 19-25.)

In past rulemaking, FEC has indicated that where activity on a committee’s website is defined as

FEA, the committee might have to pay all costs for the website, including costs swept in by a “ripple

effect,” because “the Commission is not convinced that the statute permits time/space allocation ....”

FEC nowhere states that a time/space allocation is permissible for any online FEA, though it later

excluded de minimis FEA on a website. (SMF ¶¶ 23-25.) That de minimis exception requires that

the communication be “both brief and incidental.” (SMF ¶¶ 26.) FEC regulations do not define

See supra note 2 (abbreviations).

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 11 of 87

“encouraging or urging” in the VR and GOTV definitions, but FEC uses those terms synonymously

with “exhorting.” (SMF ¶¶ 27-28.) At the 2009 rulemaking hearing, commenters argued against an

“encouraging” definition and for a voter-mobilization definition for VR and GOTV. (SMF ¶ 29.)

And at that hearing, one “reform”-community speaker asserted that “get out to vote for O’Malley”

or “go vote for O’Malley” would be GOTV while “vote for O’Malley” (even if accompanied by the

election date) would not be GOTV, though he did not dispute that the latter would encourage voting.

(SMF ¶ 30.) But FEC has provided no such clarification.

• FEC Political Party Forum on FEA Problems (see SMF ¶¶ 31-35). On June 4, 2014, FEC

“Chairman Lee Goodman and Vice Chair Ann M. Ravel ... hosted a public forum on the challenges

faced by political parties .....” See FEC, News Release (June 4, 2014) (available at www.fec.

gov/press/press2014/news_releases/20140604release.shtml). The audio recording is at www.fec.gov/

audio/2014/20140604_FORUM.mp3 (“Audio”). (SMF ¶ 31.) Representatives of state committees

explained problems created by provisions challenged here and the need for changes, but no regula-

tory changes resulted. (SMF ¶ 32.) For example, Minnesota Democrat Ken Martin noted that though

political parties are good and accountable, they are increasingly unable to assist their candidates vis-

a-vis independent-expenditure groups due to BCRA, and “[c]andidates and state parties are losing

control over their voice.” In December 2012, he asked the Association of State Democratic Chairs

(“ASDC”) to establish a committee to help level the playing field and help build up parties to be able

to help their candidates. ASDC established the Committee on Campaign Finance Reform (“CCFR”)

which issued “Legislative Recommendations for Campaign Finance Reform” (“Recommenda-

tions”),

which was distributed at the forum. Recommendations was approved and its proposals are

the subject of supportive resolutions by many Democratic state parties, as part of the campaign to

Available at http://images.politico.com/global/2014/02/14/asdc_recs_081213.pdf.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 12 of 87

improve their ability to do FEA. Martin declared, “It’s my sincere belief that if we do not address

the growing imbalance of political money flowing towards unregulated shadow organizations, we

may very well see the end of political parties at the state and local level.” Audio at 7:49. (SMF ¶ 33.)

The next presenter was Florida Democrat Scott Arceneaux, who explained that the vast majority

of a state party’s efforts are nonfederal, “[y]et you’re seeing this slow federalization of all the activi-

ties that we do, for no ... solid, good policy reason.” Audio at 10:55. He added, Audio at 13:36: “We

are basically becoming fifty mini federal committees because the ever-expanding definition of

federal election activity is ... slowly ... encompassing everything we do .... And what that means in

reality is that nonfederal candidates don’t want to work with us.” (SMF ¶ 34.)

In Recommendations, described above, ASDC’s CFFR recommends the following:

Repeal Levin Amendment or create reasonable definitions for “Federal election activity”

Under McCain-Feingold, how state parties pay for their activities is determined, in large part,

by the extent to which such activities are classified as “Federal election activity” under that law.

After extensive hearings and careful consideration, the FEC in 2002 issued thoughtful, practical

yet rigorous regulations defining these activities. These definitions have been challenged by so-

called “reform” organizations in a series of court cases which have forced the FEC in some cases

to modify its definitions and in other cases have left the definitions in a state of confusion and

uncertainty. Under the most recent iteration of the definition of “get-out-the-vote” almost all

campaign activity is subsumed within the definition pulling most campaign activity within the

definition even if no federal candidates are referenced in the communications. The Levin

Amendment is too complicated to administer and several state parties have decided to just

federalize their get-out-the-vote programs due to the complexity of administering and complying

with the Levin Amendment. In addition, due to the continual expansion of the definitions of “get-

out-the-vote” as well as the additional problems created by the concept of “federal election

activity,” Congress should consider repealing these provisions and allow party committees

to undertake activities in accordance with rules in place prior to ... McCain-Feingold.

Recommendations at 1-2 (underline and bold in original). CFFR adds that “House-added restrictions

have rendered the so-called ‘Levin amendment’ completely useless. The restrictions serve no dis-

cernible policy purposes and should be eliminated.” Id. at 2-3 (bold removed). CFFR recommends

thus about the 25% rule and mandatory monthly reporting:

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 13 of 87

Payment of Staff Payroll and Benefits

Under McCain-Feingold, employees who work more than 25% of their time in connection

with federal elections must be paid for exclusively with federal funds. However, the FEC has

interpreted this statute to not only include federal activity but also “federal election activities.”

Therefore, merely working on generic or non-federal activity has triggered federal payroll re-

quirements. For example, if a state party hires employees to go door-to-door to do a voter identi-

fication project for a state or local candidate, those employees must be paid exclusively with

federal funds. This has created a disincentive for party committees to engage in non-federal voter

id or non-federal get-out-the-vote projects, even if there are no competitive federal races on the

ballot. Congress should either repeal this provision or clarify that it did not intend for the

provision to include “federal election activities.”

Repeal mandatory monthly filing for state party committees

Under current law, state party committees must file FEC reports monthly if they spend funds

on “federal election activity.” This has imposed a huge burden on state parties. State parties

should be allowed to file quarterly; alternatively the thresholds for triggering monthly

filing should be narrowed.

Id. at 3 (underline and bold in original). (SMF ¶ 35.)

• Plaintiffs’ Intended FEA Using Nonfederal Funds

(see SMF ¶¶ 36-76). Plaintiffs intended

to do independent FEA in 2014 without complying with challenged provisions, had it been legal to

do so, and they intend to do so in 2015 and future years, when legal to do so. (SMF ¶ 36.)

LAGOP now complies with challenged provisions by using federal funds from a federal account

for FEA. But its ability to do desired FEA is burdened by its inability to use nonfederal funds. It will

not do some or all of the examples described below absent requested relief. (SMF ¶ 37.)

JPGOP and OPGOP do not currently intentionally

do FEA because of the complexity and

burden of compliance, but they want to do independent FEA without complying with the challenged

provisions, and they will not do their intended activities absent requested relief. (SMF ¶ 38.)

The examples of FEA Plaintiffs desire will be independent. All that is required for FEA inde-

pendence is compliance with statutes and regulations governing independence extant when FEA is

“[U]sing nonfederal funds” is central to each intended activity because Plaintiffs’ want to use

nonfederal funds for FEA, not just do specific acts of FEA described.

JPGOP inadvertently engaged in online FEA. (See SMF ¶ 76.)

Plaintiffs’ Summary-Judgment Memo

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done. See, e.g., 11 C.F.R. §§ 109.30, 109.37. (SMF ¶ 40.)

a. Communications Exhorting Registration (“VR”) and Voting (“GOTV”) (SMF ¶¶ 41-51).

Plaintiffs want to make non-individualized communications exhorting registration and voting that

will be VR and GOTV under the “encouraging or urging” standard of 11 C.F.R. 100.24(a)(2)(i)(A)

and (3)(i)(A). Non-individualized communications would not have been VR or GOTV under FEC’s

2002 regulations because they will be in substantially similar form to multiple persons without

“individualized contact for the specific purpose of assisting individuals with the process of register-

ing to vote [or voting].” FEC, 2002 E&J, 67 Fed. Reg. at 49067. (See Compl. ¶ 16 (quotes from 2002

E&J).) Plaintiffs provide nine examples. (SMF ¶¶ 42, 44-51.)

First, when the Complaint was filed, LAGOP had on its website (www.lagop.com) an outline

of Louisiana, across which was “click here to REGISTER TO VOTE” (linking to www.lagop.com/

get-registered) and below which was “Get Registered.” See www.lagop.com. The imperative “Get

Registered” was “[e]ncouraging or urging potential voters to register to vote,” so this communication

would have to be paid for with all federal funds starting November 6, 2015. Also on the website was

an Instagram image saying “Geaux Vote Today,” which referred to the last general election but

would become GOTV(for exhorting voting) and require all federal funds for the communication on

December 2, 2015. LAGOP had also posted on its website a nonpartisan article merely exhorting

registration and voting as follows, www.lagop.com/get-registered (“Get Registered”):

Your right to vote for public officials and representatives is valuable. It is rare in human

history. It was hard-won by America’s founders.

Before America gained independence, the colonies were ruled by Great Britain. In the Decla-

Because LAGOP is a political “party committee,” see supra at 3 & n.6, whether its communi-

cations are coordinated should be governed by 11 C.F.R. 109.37 (“What is a ‘party coordinated

communication’?”), which governs when “[a] political party communication is coordinated with a

candidate,” id. at 109.37(a). But Plaintiffs’ intended independent FEA will be independent under all

laws and regulations applicable when they are able to do FEA with nonfederal funds.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 15 of 87

ration of Independence, the founders listed many grievances against British rule, especially the

lack of representation. The Declaration said King George would not enact needed laws “unless

... people ... relinquish[ed] the right of Representation in the Legislature.” It said the British were

“suspending our own Legislatures, and declaring themselves invested with power to legislate for

us in all cases whatsoever.”

The Revolutionary War rejected British rule. America established a republic where citizens

select their representatives in government. Yet astonishingly, many people don’t register and vote.

As Americans who enjoy the benefits that a democratic society offers, it is our civil duty to

actively participate in government by voting. But more importantly, voting allows citizens the

opportunity to make direct decisions that better our communities and allows us to build a free

and prosperous society. Many people in the world live in places where their voices will not be

heard because they are unable to vote. So take a stand to let your voice be heard, and help build

a stronger America by registering to vote today!

The Louisiana Secretary of State’s website provides valuable information to help you register

and vote. For registration information and to register online, see

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/ElectionsCalendar2016.pdf.

Check out those websites today, and let your voice be heard in 2016!

“Get Registered” provided hyperlinks to state election materials, which are not FEA. 11 C.F.R.

100.24(c)(7).

Because “Get Registered” would become VR on November 6, 2015 and GOTV on

December 2, 2015, LAGOP said it would take it down absent requested relief. (SMF ¶ 42.)

On November 20, 2015, Plaintiffs filed the verified Plaintiffs’ Notice Regarding Changed Facts

(Dkt. 22), notifying the Court of changed facts as follows (SMF ¶ 43):

Plaintiffs notify the court of the following changed facts regarding

(A) the removal of voter-registration activity (“VR”) and get-out-the-vote activity (“GOTV”)

from LAGOP’s website .... This notice is verified.

A. LAGOP Removed VR and GOTV Items from Its Website.

1. Plaintiff LAGOP recently removed VR and GOTV from its website, see www.lagop.com,

because of the impending federal-election-activity periods for VR and GOTV and because it does

not want to fund such non-individualized communications exhorting registration and voting with

federal funds, see Compl. ¶¶ 74, 84-85.

The federal-election-activity definition excludes “[d]e minimis costs associated with” a party

committee providing, on its website, hyperlinks to an election-board’s site, downloadable registration

and absentee-ballot forms, and voting dates, hours, and locations. Id. “Get Registered” did more.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 16 of 87

2. The initial dates for those periods are November 6, 2015, for VR, and December 2, 2015,

for GOTV. Compare Compl. (Doc. 1) ¶ 31 (periods) with Answer (Doc. 19) ¶ 31 (admit).

3. LAGOP currently uses federal funds to pay for its website costs in federal-election years,

such as 2016, but uses nonfederal funds to pay for its website costs in non-federal-election years,

such as 2015.

4. In ¶ 85 of the Complaint, LAGOP noted that at www.lagop.com the words “Get Regis-

tered” are in the imperative and so exhort VR. Those words have now been changed to “To

5. In ¶ 85 of the Complaint, LAGOP noted that the website included Instagram images such

as “Geaux Vote Today,” which is GOTV. That and similar images have been removed from

www.lagop.com.

6. In ¶ 85 of the Complaint, LAGOP noted that at www.lagop.com/get-registered the follow-

ing nonpartisan article appeared:

[text of “Get Registered” presently omitted]

That nonpartisan article has been stripped of all exhortation to register and vote, leaving only the

following, see www.lagop.com/get-registered:

The Louisiana Secretary of State’s website provides valuable information to help you

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.so s. la.go v/ El ectionsAndVotin g/Publis hedDocumen ts/Elec-

tionsCalendar2016.pdf.

Second, LAGOP wants to email the (original) “Get Registered” to potential voters, with the same

election-information links as on the website (those excluded from FEA if done on its website, 11

C.F.R. 100.24(c)(7)), if it may do so without complying with challenged provisions. Such an email

will be VR beginning November 6, 2015, and GOTV beginning December 2, 2015. (SMF ¶ 44.)

Third, JPGOP and OPGOP want to email an article substantially similar to the (original) “Get

Registered” article, with links of the sort excluded from FEA if done on a party committee’s website,

11 C.F.R. 100.24(c)(7), if they may do so without complying with challenged provisions. The email

will be VR beginning November 6, 2015, and GOTV beginning December 2, 2015. (SMF ¶ 45.)

LAGOP verifies six more examples of VR/GOTV activities it wants to do with nonfederal funds.

(SMF ¶¶ 46-51 (with scripts “Democrat Outreach” and “Voter Drive for Presidential Primary”).)

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 17 of 87

b. Voter-Identification (“VID”) Communications. LAGOP wants to make communications that

will be VID, 11 C.F.R. 100.24(a)(4), because they will be designed to “acquire[] information about

potential voters,” including “verifying or adding information about the voters’ likelihood of voting

in an upcoming election or their likelihood of voting for specific candidates,” id., absent challenged

provisions. (SMF ¶ 52.) LAGOP describes desired activity. (SMF ¶¶ 53-54.)

c. Generic-Campaign-Activity (“GCA”) Communications. LAGOP wants to make communica-

tions that will be GCA, i.e., “public communication[s] ... promot[ing] ... a political party and ... not

promot[ing] or oppos[ing] a clearly identified ... candidate,” 11 C.F.R. 100.25, if it may do so

without complying with challenged provisions. Examples follow. (SMF ¶ 55.)

LAGOP wants to make audio recordings explaining what it stands for, to be posted on its

website, where they will not be GCA because not “public communications,” 11 C.F.R. 100.26. But

LAGOP also wants to air radio ads from these recordings during FEA periods, the next starting

December 2, 2015, when they will be public communications and so GCA. An example is “Demo-

crat Outreach” (Compl. ¶ 89), which fits both VR and GCA definitions. (SMF ¶ 56.) Another

example of a recording to be placed online, then broadcast in 2016, follows:

AFRICAN-AMERICAN OUTREACH

Republican Party of Louisiana

:60 Script

February is Black History Month.

It is a time to honor those who have fought to secure freedom and prosperity for our people.

A great distinction must be attributed to the Republican Party, which was FOUNDED in 1854

with one simple creed: that “Slavery is a violation of the rights of man.”

You see, the movement to end slavery and the creation of the Republican Party were one and

the same.

Abolitionist leaders like Harriet Tubman and Sojourner Truth were committed Republicans.

Frederick Douglass was one of the party’s early champions.

The first Republican President was Abraham Lincoln—author of the Emancipation Proclama-

tion.

Republicans voted unanimously for the 13th Amendment, which abolished slavery.

The Republican Party has never been the party of white Americans. Or Black Americans. It is

Plaintiffs’ Summary-Judgment Memo

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the party for all Americans ... promoting freedom, justice and equal opportunity for all.

FEMALE VO: This moment in black history has been brought to you by the Republican Party

of Louisiana.

(SMF ¶ 57.) Another example is “The R Word.” (SMF ¶ 58 (script).)

d. PASO Communications. LAGOP wants to make PASO communications (“public communica-

tions” that will be deemed to promote, attack, support, or oppose a federal candidate, 11 C.F.R.

100.24(b)(3)), without express advocacy, when legal to do so without complying with challenged

provisions. (SMF ¶ 59.) LAGOP provides examples. (SMF ¶¶ 60-62.) LAGOP wants to post on its

website, then broadcast on radio, in 2015 and/or 2016, “Celebrating Jindal”:

CELEBRATING JINDAL

Repubican Party of Louisiana

:30 Commercial

In 2008, Louisiana’s state government was out of control, having tripled in size in just 12

years. Then came Bobby Jindal.

And since becoming governor, Jindal has cut the state budget by more than 26%. Louisiana

now has 30,000 fewer public employees and our reputation across the country has never been

better.

Governor Jindal was one of the first governors in the United States to create a School Choice

program to help children escape failing schools.

Let’s face the facts. Bobby Jindal has been the nation’s finest example of a Republican

leader, refusing to compromise on all of the major conservative issues: taxes, spending, abortion,

guns, school choice, religious liberty, you name it.

As his tenure ends here, Louisiana’s loss is America’s gain, as Governor Jindal travels across

America spreading his message of freedom and traditional values.

Bobby Jindal. Proven leadership for America.

On LAGOP’s website, this would not be FEA because it is not a “public communication,” so it could

not be a PASO communication. When broadcast, it would be a “public communication” and the

candidate support makes it a PASO communication. (SMF ¶ 63.) On November 20, 2015, Plaintiffs

filed Plaintiffs’ Notice Regarding Changed Facts (Doc. 22), notifying the Court that Governor Jindal

had suspended his presidential campaign and so was “unlikely to become President.” (SMF ¶ 64.)

b. Employee Services (SMF ¶ 65). LAGOP wants to reimburse employees without regard to the

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 19 of 87

FEA 25% Rule. (SMF ¶ 65)

f. Independent Federal-Election-Activity Funding. In paying for independent FEA, Plaintiffs

want to use nonfederal funds, on hand or to be raised, compliant with state law and the federal law

provisions listed in SMF ¶ 66 (Compl. ¶ 107). (SMF ¶ 66.) Federal funds were not, and will not be,

used to raise nonfederal funds for intended activities, but the nonfederal funds used were (and will

be) compliant with state law and listed provisions of federal law. (SMF ¶ 67.)

In Count II, LAGOP challenges the Ban and Fundraising Requirement as applied to independent

communications from an independent-communications-only account (“ICA”). The ICA would

receive only funds (a) from individuals, (b) compliant with applicable state and listed federal restric-

tions, and (c) either (i) transferred from LAGOP (under reasonable accounting methods assuring that

subparagraph (b) is met) or (ii) fundraised in compliance with provisions governing such fundraising

when LAGOP is able to operate an ICA for such independent communications. The ICA’s receipts

would be limited to Louisiana’s contribution limit, currently $100,000 over a 4-calendar-year period

(which LAGOP and its ICA must share). (SMF ¶ 68.)

LAGOP wants to make disbursements of over $5,000 per calendar year for FEA in 2015 and

2016, which would require it to report receipts and disbursements for FEA, but LAGOP wants to

report its nonfederal funds used for such activity as it reports other nonfederal funds absent BCRA’s

Reporting Requirement (with the exception of the alternative as-applied challenge involving an ICA

in Count II, which would comply with the Reporting Requirement). The local-committee Plaintiffs

want to spend under $5,000 in 2015 and 2016 on FEA. (SMF ¶ 69.) In 2014, LAGOP wanted to use

approximately $100,000 in nonfederal funds for FEA absent challenged provisions. (SMF ¶ 70.)

• General. None of the FEA that Plaintiffs want to do herein would otherwise qualify as “contri-

butions,” or “expenditures,” or “exempt activities” and so would not trigger political-committee

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 20 of 87

status for the local-committee Plaintiffs. (SMF ¶ 71.) In the future, Plaintiffs intend materially

similar FEA. (SMF ¶ 73.) Plaintiffs face a credible threat of enforcement if they proceed without

complying with challenged provisions, absent requested relief. (SMF ¶ 74.) Absent requested relief,

Plaintiffs will be deprived of their First Amendment rights and suffer irreparable harm. There is no

adequate remedy at law. (SMF ¶ 75.)

• Brennan Center Publication. A campaign-reform group seeks revised regulation to empower

political parties. See Brennan Center for Justice, Stronger Parties, Stronger Democracy: Rethinking

Reform (2015), https://www.brennancenter.org/publication/stronger-parties-stronger-democracy-

rethinking-reforming#.Vfshsx74b-s.twitter. It seeks “to relax some of BCRA’s federalization of state

and local parties,” id. at 15, “such as voter registration and GOTV,” id. at 16. (SMF ¶ 77.)

Argument

Plaintiffs challenge (i) the Ban, 52 U.S.C. 30125(b)(1) (banning state and local committees from

using nonfederal funds for FEA); (ii) the Fundraising Requirement, 52 U.S.C. 30125(c) (requiring

federal funds to raise funds to be used for FEA); and (iii) the Reporting Requirement, 52 U.S.C.

30104(e)(2) (requiring monthly reporting of receipts and disbursements for FEA). (See Compl.

¶¶ 32-35(texts). Plaintiffs challenge these provisions (I) as applied to (a) non-individualized, inde-

pendent communications exhorting registering/voting and (b) non-individualized, independent

communications by Internet; (II) as applied to (a) non-individualized, independent communications

and (b) such communications from an independent-communications-only account (“ICA”); (III) as

applied to all independent FEA; and (IV) facially. (See Compl. ¶ 1.)

I. Standard of Review & Scrutiny: FEC Must Prove a “Fit” to Quid-Pro-Quo Corruption.

“The court shall grant summary judgment if,” as here, “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 21 of 87

Regarding scrutiny level, as shown next, (A) McConnell neither applies nor controls; (B)

McCutcheon controls the contribution-restriction context and requires a “fit” to preventing quid-pro-

quo corruption, and (C) Citizens United controls the independent-communication context (at issue

here) and requires strict scrutiny, so at a minimum FEC must prove a “fit” between the challenged

provisions and preventing narrowly defined quid-pro-quo corruption.

A. McConnell’s Scrutiny Analysis Neither Applies Nor Controls.

McConnell’s scrutiny analysis neither applies nor controls for several reasons. McConnell treated

BCRA’s nonfederal-funds provisions as contribution restrictions, 540 U.S. at 139, calling the Ban

“a straightforward contribution regulation: It prevents donors from contributing nonfederal funds to

state and local party committees to help finance ‘Federal election activity.’” Id. at 161-62. McCon-

nell also said ads using nonfederal funds were like express advocacy and coordinated:

[B]oth parties began to use ... soft money ... for issue advertising ... to influence federal elections.

The [Senate] Committee found such ads highly problematic for two reasons. Since they accom-

plished the same purposes as express advocacy (which could lawfully be funded only with hard

money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections

that FECA was intended to provide. Moreover, though ostensibly independent of the candidates,

the ads were often actually coordinated with, and controlled by, the campaigns.

540 U.S. at 131 (footnote omitted). The reliance on coordination has no application to independent

activity here. Not treating the Ban as an expenditure restriction is superseded by McCutcheon’s treat-

ment of aggregate contribution limits as “speech.” 134 S.Ct. at 1452. And Plaintiffs legally have

nonfederal funds in state accounts (unlike national committees), so the Ban prohibits using existing

funds in state accounts for independent communications, making it an independent expenditure

restriction. McConnell’s equation of issue ads and “express advocacy,” 540 U.S. at 131, also indi-

cates that Plaintiffs’ non-individualized, independent communications are constitutionally like

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 22 of 87

independent expenditures.

McConnell did not consider the Ban as applied to such communications

(governed by the independent-expenditure case line), and it upheld the provisions challenged here

based on a gratitude/access theory of corruption now rejected in both the independent-communica-

tions context (Citizens United, 558 U.S. at 360), and the contribution context (McCutcheon, 134

S.Ct. at 1441. So McConnell’s foregoing scrutiny and interest analyses do not control.

B. McCutcheon Controls the Contribution Context, Requiring a “Fit” to Narrow Corruption.

If contribution-restriction scrutiny is applied, McCutcheon now controls the nature of the right,

interest, and scrutiny. McCutcheon held that aggregate limits on contributions violate the First

Amendment for not being justified by an anti-quid-pro-quo-corruption interest, “while seriously

restricting participation in the democratic process.” 134 S.Ct. at 1442). McCutcheon made seven

holdings that control here. (i) “The right to participate in democracy through political contributions

is protected by the First Amendment.” Id. at 1441. (ii) Under “strict scrutiny or Buckley’s ‘closely

drawn’ test, we must assess the fit between the stated governmental objective and the means selected

to achieve that objective.” Id. at 1445-46 (citations omitted).

(iii) The “Court has identified only

one legitimate governmental interest for restricting campaign finances: preventing corruption or the

appearance of corruption,” id. at 1450 (emphasis added), which is “a direct exchange of an official

act for money,” id. at 1441, which entails “‘large individual financial contributions’ to particular

Buckley’s constitutionally required restriction of “expenditure” to “express advocacy,” 424

U.S. at 39-44, was incorporated in the “independent expenditure” definition, 2 U.S.C. 431(17). But

the non-corrupting nature of independent expenditures turns on independence, not express advocacy.

See Colorado-I, 518 U.S. at 613 (identifying non-express-advocacy communication as “independent

expenditure”). See also FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp.

1488, 1451 (D. Col. 1993) (applying express-advocacy construction and dismissing enforcement

proceeding because the same communication lacked express advocacy).

McCutcheon stated the “closely drawn test” thus: “[I]f a law that restricts political speech does

not ‘avoid unnecessary abridgement’ of First Amendment rights, ...it cannot survive ‘rigorous’

review,” id. at 1446 (citations omitted), and “fit matters,” so tailoring must be “reasonable” with

“‘means narrowly tailored to achieve the desired objective.’” Id. at 1456-57 (citation omitted).

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 23 of 87

candidates,” id. (citation omitted; emphasis added), i.e., “an act akin to bribery,” id. at 1466 (Breyer,

J., joined by Ginsburg, Sotomayor & Kagan, JJ., dissenting, ). (iv)

Spending large sums of money in connection with elections, but not in connection with an effort

to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo

corruption. Nor does the possibility that an individual who spends large sums may garner

“influence over or access to” elected officials or political parties.... And because the Govern-

ment’s interest in preventing the appearance of corruption is equally confined ..., the Government

may not seek to limit the appearance of mere influence or access.

Id. at 1450-51 (plurality; citations omitted). (v) Contribution restrictions equate with “restrict[ing]

speech” and the Government must prove a quid-pro-quo risk: “‘When the Government restricts

speech, the Government bears the burden of proving the constitutionality of its actions. Here, the

Government seeks to carry that burden by arguing that the aggregate limits further the permissible

objective of preventing quid pro quo corruption.” Id. at 1452 (citation omitted).(vi) “Buckley’s fear

that an individual might ‘contribute massive amounts of money to a particular candidate through the

use of unearmarked contributions’ to entities likely to support the candidate ... is far too speculative.”

Id. at 1452 (quoting Buckley, 424 U.S. at 38). (vii) “And—importantly—we ‘have never accepted

mere conjecture as adequate to carry a First Amendment burden.’” Id. (citation omitted).

So if this case is deemed a contribution-restriction case,

McConnell’s analysis is superseded

by McCutcheon’s, which equates campaign-finance restrictions with restricting “speech” and recog-

nizes only quid-pro-quo corruption, requiring the government to prove a fit between campaign-

finance restrictions and narrow corruption. But as discussed next, this case differs from McConnell

and McCutcheon because it also involves independent communications, which require strict scrutiny.

C. Citizens United’s Strict Scrutiny Controls the Independent-Communication Context.

Central to this case is Plaintiffs’ desire to use state accounts to pay for non-individualized, inde-

This action is like McCutcheon in that both involve BCRA provisions “restricting campaign

finances,” id. at 1450, i.e., an aggregate limit and the Ban.

Plaintiffs’ Summary-Judgment Memo

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pendent communications, (Compl. ¶ 1 (emphasis added)):

Plaintiffs challenge provisions ... as unconstitutional ... (I) as applied to (a) non-individualized,

independent communications exhorting registering/voting and (b) non-individualized, independ-

ent communications by Internet; (II) as applied to (a) non-individualized, independent communi-

cations and (b) such communications from an independent-communications-only account

(“ICA”); (III) as applied to all independent federal election activity; and (IV) facially.

So strict scrutiny applies. Citizens United, 558 U.S. at 340 (“Laws that burden political speech are

‘subject to strict scrutiny.’”). But under either scrutiny, the challenged provisions are unconstitutional

because there is no “fit” between them and quid-pro-quo corruption.

II. Only Narrow “Corruption” Is Cognizable; Independent Communications Pose None.

(A) Challenged provisions burden rights; (B) McConnell upheld them with access/gratitude

“corruption”; (C) Citizens United and McCutcheon recognize only quid-pro-quo corruption; (D)

independence removes corruption; and (E) Plaintiffs’ independent activity is non-corrupting.

A. Challenged Provisions Burden First Amendment Rights.

Before BCRA, political parties could use nonfederal funds from their state accounts for a wide

range of traditional political-party activity under FEC’s rules allowing allocation of activity between

federal and nonfederal accounts. (See SMF ¶¶ 5-9). BCRA’s Ban and Fundraising Requirement

eliminated all ability to use nonfederal funds for activity captured by the FEA definition.

As a matter of law, Plaintiffs’ First Amendment rights are burdened by challenged provisions

because they cannot speak and associate using nonfederal funds for FEA and without such regula-

tion. See, e.g., McConnell, 540 U.S. at 134 (recognizing “First Amendment challenge”); Citizens

United, 558 U.S. at 337-40 (political-committee burdens restrict speech); McCutcheon, 134 S.Ct.

Levin funds are nonfederal funds, but are not at issue because Plaintiffs cannot use them for

planned broadcast communication, paying employees devoting over 25% of their time per month on

activity in connection with federal elections, and communications referencing federal candidates.

Plaintiffs also do not use them due to complexity, burdens, and restrictions. See supra note 7.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 25 of 87

at 1441 (“ right to participate in democracy through ... contributions is protected by the First Amend-

ment”); id. at 1446 (“if a law that restricts political speech does not ‘avoid unnecessary abridgement’

of First Amendment rights, Buckley, 424 U.S., at 25 it cannot survive ‘rigorous’ review.”).

But based on FEC’s burdensome discovery,

FEC is likely to argue no First Amendment burden

because Plaintiffs could just use federal funds for what they “want to do,” by which FEC means the

examples of FEA that Plaintiffs want to do. However, what Plaintiffs “want to do” is not just those

particular examples but rather to fund FEA (including those examples) with nonfederal funds from

their state accounts. FEC made similar erroneous arguments in WRTL-II, 551 U.S. 449, saying

WRTL should just do its issue ads at other times or by other means to avoid BCRA’s “electioneering

communication” definition, but WRTL-II said the First Amendment does not permit government to

dictate different action, such as telling Cohen just to wear a less-offensive jacket. 551 U.S. at 477

n.9.

Second, FEC may argue that Plaintiffs have enough money for “effective advocacy” so they

don’t need to use state accounts for FEA. But that is an erroneous contribution-limit argument from

Buckley, 424 U.S. at 21, inapplicable here because no contribution limit is challenged.

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL-II”), declared FEC’s multiple

depositions and discovery of WRTL’s “documents related to its operations, plans, and finances ...

a severe burden on political speech.” 551 U.S. at 468 n.5.

FEC also asked Plaintiffs here to put a dollar value on examples of desired FEA they recited,

presumably so FEC could pursue the notion that Plaintiffs could just pay for that dollar value using

federal funds. Plaintiffs cited WRTL-II, 551 U.S. at 462, for the matter-of-law proposition that groups

cannot possibly know far in advance what their speech needs and plans will be, so it would be rank

speculation to provide a dollar amount, especially because they verified a desire to do similar future

activity, and Plaintiffs cannot possibly know what future needs and plans will be. See, e.g., Plaintiff

JPGOP’s Responses to FEC’s First Set of Discovery Requests at 25-26. (Exhibit 1.)

McConnell also left open the possibility of an as-applied challenge based whether contribution

restrictions are “‘so radical’” as to drive a group’s “‘voice below the level of notice.’” 540 U.S. at

173 (citation omitted). But this was premised on McConnell’s treatment of the challenged FEA

provisions as contribution restrictions, id. at 139, so it simply reiterates the Buckley contribution-

limit argument that is inapplicable here because no contribution limit is challenged. Anyway, Plain-

tiffs’ challenge is based on the lack of any quid-pro-quo risk, removing the government’s interest.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 26 of 87

FEC well knows of the actual burdens on state and local committees from the FEA restrictions

from public testimony it solicited in the 2014 public forum it hosted. See supra at 5-7. That forum

is part of the big-picture view that is important to put this case in context. As Joel Gora, law profes-

sor and former ACLU attorney in Buckley, 424 U.S. at 4, explains:

There is only one severe drawback in all of this unlimited, political giving and spending, which

is, by and large, so beneficial for our democracy. That is that our two most central, important

political actors—our candidates and our parties—have to fight their political battles with one

hand tied behind their back. While their expenditures cannot be limited, contributions to them

can be. [So] candidates and parties face the prospect of being outspent by independent individu-

als and groups who are no longer restrained in terms of what they can raise and spend. That is

a potential imbalance in our political and electoral speech system that should concern us.

Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 Seton Hall L. Rev. 1185,

1206-07 (2013). This “imbalance” with super-PACs

explains why political parties need more funds

to make independent communications. Of a related case asserting the right of state committees to

receive unlimited contributions to make independent expenditures, RNC v. FEC (14-0853 (CRC))

(voluntarily dismissed), former White House Counsel Bob Bauer opined: “the suit does not exploit

a ‘loophole’; it is not a ‘soft money’ lawsuit.” Bob Bauer, Circling Back (a Full 360°) to the RNC

and Libertarian Party Lawsuits (June 2, 2014), www.moresoftmoneyhardlaw.com/2014/05/circling-

back-full-360-rnc-libertarian-party-lawsuits/. “Political committees can spend independently without

limitation, and they can also accept contributions without limit to fund these expenditures. The

[political-party] committees are simply saying: ‘us, too.’ These party organizations, looking to regain

a measure of competitive parity with super PACs, are acting rationally ....” Id.

That need for competitive parity was echoed by a Democratic state-party chairman and a Demo-

cratic state-party executive director testifying at FEC’s forum on the problems of state political

“Super-PACs” make only independent expenditures, which “do not give rise to corruption or

the appearance of corruption,” Citizens United, 558 U.S. at 357, so “government ... ha[s] no anti-

corruption interest in limiting contributions to [them],” SpeechNow, 599 F.3d at 696.

Plaintiffs’ Summary-Judgment Memo

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parties from BCRA. (SMF ¶¶ 31-35.) The state-party chairman testified: “[c]andidates and state

parties are losing control over their voice” (SMF ¶ 33), and “if we do not address the growing

imbalance ..., we may very well see the end of political parties at the state and local level” (id.). And

as CCFR’s Recommendations states, the monthly Reporting Requirement “has imposed a huge

burden on state parties. State parties should be allowed to file quarterly; alternatively the thresholds

for triggering monthly filing should be narrowed.” (SMF ¶ 35 (bolding omitted). As the forum’s

bipartisan presenters noted, state parties need relief from onerous burdens imposed by BCRA.

A final burden is the requirement that Plaintiffs’ FEA be done with a federal account. As set out

more fully in the Complaint (¶¶ 36-39), Plaintiffs must pay for their planned FEA from a federal

account (setting aside any considerations of a Levin account or an allocation account, which are not

at issue here because Plaintiffs will not use Levin funds and no other allocation using nonfederal

funds for FEA is possible). (Compl. ¶¶ 36-37, citing 11 C.F.R. §§ 300.30(b)(3)(iii), 300.30(b)(3)(iv),

and 300.30(c)).) A state or local “committee that has receipts or makes disbursements for Federal

election activity must establish its accounts” as prescribed in 11 C.F.R. 300.30(c), with a federal

account required for the federal funds required for Plaintiffs’ planned FEA, which federal account

“must be treated as a separate political committee” 11 C.F.R. 300.30(c)(1). (Compl. ¶ 37.) So even

if Plaintiff local committees need not be political committees based on triggers at 11 C.F.R. 100.5(c),

they must establish a federal account treated and reporting (monthly under the Reporting Require-

ment) as a political committee to do its planned FEA. (Compl. ¶ 38.) FEC made numerous comments

about this in its Answer (¶¶ 36-39), but though FEC attempts to drag in inapplicable Levin funds and

allocation accounts, the federal-account requirement seems unrefuted.

FEC should show where a

For example, FEC makes three denials about Complaint ¶ 39, which asserted that local com-

mittees sending an email exhorting registering/voting during FEA periods (per SMF ¶ 45), must

establish a federal fund to pay costs. (1) FEC asserts that “‘brief exhortation[s]’ incidental to a

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 28 of 87

reasonable-accounting method is expressly allowed for the FEA at issue herein (without recourse

to using Levin funds, which are not at issue). But even absent a federal-account burden, Plaintiffs

are burdened as a matter of law by the challenged provisions as already shown above.

B. The Required Analysis Requires Careful Scrutiny of Interests and Tailoring Based on

Narrow Quid-Pro-Quo Corruption.

The required analysis in First Amendment challenges is careful scrutiny of interests and tailoring

in “each application.” WRTL-II, 551 U.S. at 448. Substituting for that analysis a reliance on some

prior language fails required scrutiny. That was the error in Wisconsin Right to Life v. FEC, 546 U.S.

410 (2006) (“WRTL-I”), where the unanimous Court, rejected FEC’s reliance on language in a

McConnell footnote, declaring that “[i]n upholding [the ban on corporate/union electioneering

communications] against a facial challenge, we did not purport to resolve future as-applied chal-

lenges, id. at 411-12. When WRTL-II did the required interests/tailoring scrutiny, it held the ban

unconstitutional as applied to corporate/union issue advocacy. 551 U.S. 449.

That controls here: scrutiny of cognizable interests and tailoring in each application is required,

not reliance on some prior language. For example, McConnell has language that FEC might cite in

lieu of the required scrutiny, such as “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

communication [are] not [FEA].” (Answer ¶ 39 (citations omitted).) But FEC ignores that FEC’s

E&J says the “exhortation to register to vote must be both brief and incidental,” 75 Fed. Reg. at

55261-62 (emphasis in original) (Compl. ¶ 64), which the email would not be. And FEC did not

deny this statement: “So emails with the topic of exhorting registration/voting will not be incidental,

and extended exhortations (beyond such one-liners) to register/vote in emails or on a website would

not be brief. (Compare Compl. ¶ 64 (emphasis in original) with Answer ¶ 64.) (2) FEC says Plain-

tiffs leave out Levin funds (Answer ¶ 39), but that fails because Plaintiffs have repeatedly explained

that Levin funds are not at issue because Plaintiffs won’t use them. (3) FEC denies that online costs

might sweep, in by a “ripple effect,” website, computer, and Internet access costs (Answer ¶ 39) but

that is exactly what FEC said in the cited E&J (Compl. ¶ 39.) And crucially, FEC does not deny the

underlying assertion that federal funds for FEA must come from a federal account. (Answer ¶ 39.)

Plaintiffs’ Summary-Judgment Memo

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funds are ultimately used.” Id. at 155. To rely on such language in lieu of the required scrutiny would

repeat the mistake rejected in WRTL-I. And McConnell pointed to “the close relationship between

federal officeholders and the national parties,” with national parties (not involved here) “inextricably

intertwined with federal officeholders and candidates,” id. at 154-55, but reliance on such language

would dodge the required interest-tailoring scrutiny (and would encounter the footnoted holding).

That scrutiny must be based on what is now cognizable corruption. McConnell repeatedly

attacked Justice Kennedy’s narrow view of “corruption,” including the following:

Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual

or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions

made at the express behest of, and expenditures made in coordination with, a federal officeholder

or candidate.... Regulation of any other donation or expenditure—regardless of its size, the

recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s

election, its value to the candidate, or its unabashed and explicit intent to purchase influ-

ence—would, according to Justice Kennedy, simply be out of bounds. This crabbed view of

corruption, and particularly of the appearance of corruption, ignores precedent, common sense,

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

Id. at 152 (citation omitted). McConnell attacked Kennedy’s narrow “appearance of corruption”:

At another point, describing our “flawed reasoning,” Justice Kennedy seems to suggest that

Congress’ interest in regulating the appearance of corruption extends only to those contributions

that actually “create ... corrupt donor favoritism among ... officeholders.” .... This latter formula-

tion would render Congress’ interest in stemming the appearance of corruption indistinguishable

from its interest in preventing actual corruption.154 n.49 (citation omitted).

In place of Justice Kennedy’s narrow “corruption,” the majority’s “corruption” swept in “actual or

apparent indebtedness” resulting from a “close relationship” between officeholders and political

parties, along with “access” and “gratitude” (including synonyms). Id. at 155-56. So the findings of

“corruption,” “benefit,” etc. from federal election activity in McConnell all turn on a rejection of

Reliance on the language in text would be particularly erroneous because McConnell held that,

despite the “close relationship” and “inexplicable intertwin[ing],”political parties cannot be required

to choose between making coordinated expenditures and independent expenditures. Id. at 213-19.

So no amount of coordination eliminates the ability to do independent expenditures.

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 30 of 87

Justice Kennedy’s narrow view of corruption.

But Justice Kennedy’s view now prevails in both the independent-communications context

(Citizens United) and the contribution-restriction context (McCutcheon). Both cases expressly

repudiate any corruption beyond narrowly defined quid-pro-quo corruption, requiring a contribution

to a candidate and being an act akin to bribery.

That excludes all else as cognizable corruption, e.g.,

access, gratitude, or “corruption” inherent in the close relationship between candidates/officeholders

and party committees. So the “corruption” foundation of McConnell is gone. And regarding inde-

pendent communications, the Court held they “do not give rise to corruption or the appearance of

As the law now stands, cognizable corruption is as follows: “Corruption” means quid-pro-quo

corruption or the appearance of quid-pro-quo corruption of a federal candidate, McCutcheon, 134

S.Ct. at 1441 (quoting Citizens United, 558 U.S. at 359), with quid-pro-quo corruption meaning only

“a direct exchange of an official act for money,” id. (citing McCormick v. United States, 500 U.S.

257, 266 (1991)). This is “an effort to control the exercise of an officeholder’s official duties,” id.

at 1450, i.e., “an act akin to bribery,” id. at 1466 (Breyer, J., dissenting). “Government’s interest in

preventing the appearance of corruption is equally confined to the appearance of quid pro quo

corruption[.]” Id. at 1451 (plurality op.). No “conjecture”— including about “recontributed funds”

or contributions “rerouted to candidates”—suffices. Id. at 1441 (citing Ariz. Free Enter. Club’s

Freedom PAC v. Bennett, 131 S.Ct. 2806, 2826-27 (2011) (“AFEC”)). Influence, access, favoritism,

and gratitude/ingratiation are not quid-pro-quo corruption or its appearance. Citizens United, 558

U.S. at 359 (citing McConnell, 540 U.S. at 296-98 (Kennedy, J., concurring/dissenting); FEC v.

Nat’l Conservative PAC, 470 U.S. 480, 497 (1985) (“NCPAC”) (“Elected officials are influenced

to act contrary to their obligations of office by the prospect of financial gain to themselves or infu-

sions of money into their campaigns. The hallmark of corruption is the financial quid pro quo:

dollars for political favors”)). For campaign expenditures to rise to the level of corruption, they must

“be given as a quid pro quo for improper commitments from the candidate.” Colorado-I, 518 U.S.

at 615(quoting Buckley, 424 U.S. at 47. Such quid-pro-quo corruption occurs when a “public official

receives a payment in return for his agreement to perform specific official acts.” Evans v. United

States, 504 U.S. 255, 268 (1992). That a candidate alters or reaffirms his positions on issues because

of a contribution or makes a promise or commitment is not, in and of itself, evidence of quid-pro-quo

corruption. NCPAC, 470 U.S. at 498; Brown v. Hartlage, 456 U.S. 45, 55-56 (1982) (“Some prom-

ises are universally acknowledged as legitimate, indeed ‘indispensable to decisionmaking in a democ-

racy,’ First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978); and the ‘maintenance of

the opportunity for free political discussion to the end that government may be responsive to the will

of the people and that changes may be obtained by lawful means ... is a fundamental principle of our

constitutional system.’ Stromberg v. California, 283 U.S. 359, 369 (1931). Candidate commitments

enhance the accountability of government officials to the people whom they represent, and assist the

voters in predicting the effect of their vote.”).

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 31 of 87

corruption.” Citizens United, 558 U.S. at 357. So “government ... ha[s] no ... interest in limiting

contributions to independent expenditure-only organizations.” SpeechNow, 599 F.3d at 696. And

political-party independent communications may not be presumed coordinated and are also non-

corrupting. Colorado-I. 518 U.S. 604. So arguing McConnell language, while ignoring the removal

of McConnell’s “corruption” foundation, fails the required interest-tailoring scrutiny.

The same applies to statements about the Ban. McConnell said Congress concluded that “state

committees function as an alternate avenue for precisely the same corrupting forces,” 540 U.S. at

164, but that is based on McConnell’s now-non-cognizable “corruption.” McConnell said “Congress

also made a prediction” that contributors would use donations to state parties to gain “influence” and

create “indebtedness,” id. at 165, but such “corruption” is now non-cognizable and such “mere

conjecture” is impermissible, McCutcheon, 134 S.Ct. at 1450, 1452. No evidence of real quid-pro-

quo corruption was shown in McConnell’s massive record.

That dooms the Ban now that quid-pro-

quo corruption is required in both expenditure and contribution contexts. And though McConnell

RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC-I”), aff’d 561 U.S. 1040 (2010), said

“McConnell ... appeared to rely ... on ‘the close relationship between federal officeholders and the

national parties,’” id. at 159 (citation omitted), and “‘[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,’” id. (citation omitted). That cannot control because (1) “indebtedness” is not quid-pro-quo

corruption; (2) the independent communications here pose no quid-pro-quo risk, Citizens United,

558 U.S. at 357; (3) Colorado-I held there is no cognizable corruption from political-party independ-

ent communications, 518 U.S. 604; (4) McCutcheon held that “large” contributions are not corrupt-

ing absent quid-pro-quo exchanges with candidates, 134 S.Ct. at 1450-51, so no corruption arises

from state-account donations used for independent communications; and (5) McConnell held that,

despite the “close relationship,” political parties cannot be required to choose between making

coordinated expenditures and independent expenditures because no amount of coordination elimi-

nates a party’s ability to do non-corrupting independent expenditures, 540 U.S. at 213-19.

McConnell facially upheld BCRA though defendants “identified not a single discrete instance

of quid pro quo corruption attributable to the donation of non-federal funds to the national party

committees.” McConnell, 251 F. Supp. 2d at 395 (op. Henderson, J.). Accord McCutcheon, 134 S.Ct.

at 1469-70 (Breyer, J., joined by Ginsburg, Sotomayor & Kagan, JJ., dissenting) (quoting

McConnell, 251 F. Supp. 2d at 395 (op. Henderson, J.)).

Plaintiffs’ Summary-Judgment Memo

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upheld banning nonfederal funds for VR, GOTV, VID, and GCA (see supra note 2 (abbreviations))

because they “can be used to benefit federal candidates directly,” 540 U.S. at 167, or “ha[ve] a direct

effect on federal elections,” id. at 168, or cause officeholders to be “grateful,” id., under current

jurisprudence “benefit,” “effect,” and “grateful[ness]” are also not corruption. And as applied to non-

individualized, independent communications at issue here, there can be no presumption that they

benefit a candidate because “an independent expenditure is political speech presented to the elector-

ate that is not coordinated with a candidate,” Citizens United, 448 U.S. at 360, and “‘[t]he absence

of prearrangement and coordination ... alleviates the danger that expenditures will be given as a quid

pro quo for improper commitments from the candidate,’” id. at 345 (quoting Buckley, 424 U.S. at

47), so “independent expenditures ... do not give rise to corruption or [its] appearance,” id. at 357.

In sum, the required interest/tailoring scrutiny requires FEC to prove quid-pro-quo corruption.

C. Independent-Expenditure Cases Hold that Independence Removes Corruption.

In the expenditure context, controlling precedents hold that independent communications pose

no risk of no quid-pro-quo corruption, so nothing justifies banning the use of nonfederal funds from

a state account for them. Five matter-of-law holdings govern here: (i) “independent expenditures

... do not give rise to corruption or [its] appearance,” Citizens United, 558 U.S. at 357; (ii) “because

Citizens United holds that independent expenditures do not corrupt ..., the government ... ha[s] no

... interest in limiting contributions to independent expenditure-only organizations,” SpeechNow, 599

F.3d at 696; see also EMILY’s List v. FEC, 581 F.3d 1, 12 (D.C. Cir. 2009) (recognizing right to

have separate accounts for independent expenditures and contributions); Carey v. FEC, 791 F. Supp.

2d 121 (D.D.C. 2011) (recognizing that EMILY’s List authorizes non-contribution accounts

(“NCAs”) that may receive unlimited contributions for making independent expenditures)

; (iii)

See also FEC Statement on Carey v. FEC (political committees may have non-contribution

Plaintiffs’ Summary-Judgment Memo

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party-committee independent-expenditure activity similarly poses no cognizable risk of corruption

or its appearance, Colorado-I, 518 U.S. 604; and (iv) the fact that party-committees and candidates

are “inextricably intertwined,” McConnell, 540 U.S. at 155, does not pose a constitutionally cogniza-

ble risk of quid-pro-quo corruption or its appearance regarding political-party independent-expendi-

ture activity because McConnell held that party-committees could not be forced to choose between

coordinated expenditures and independent expenditures, id. at 213-19, (meaning that political parties

are factually capable of doing independent expenditures, as a matter of law, even if they also do

coordinated expenditures, and so have a constitutional right to do independent communications

under prevailing law); and (v) if entities can do independent expenditures separately, they must be

allowed to pool their resources for effective advocacy by doing them together. FEC, Advisory

Opinion (“AO”) 2010-11 (Commonsense Ten) at 3. Independence eliminates corruption.

D. Political Parties’ Independent Activities Are Also Non-Corrupting.

Another example of language that does not control is in statements about political parties that

do not apply the required interest/tailoring scrutiny to the claims here. Though independent-

expenditure-only political committees (“IE-PACs”) may receive unlimited contributions for making

independent communications and other independent activity, IE-PAC case opinions have distin-

guished political parties. For example, SpeechNow said “FEC ... argues that we must look to the

discussion about the potential for independent expenditures to corrupt in [Colorado-I]” then distin-

guished political-party independent expenditures and held that “a discussion in a 1996 opinion joined

by only three justices cannot control our analysis when the more recent opinion of the Court in

Citizens United clearly states as a matter of law that independent expenditures do not pose a danger

of corruption or the appearance of corruption.” 599 F.3d at 695. Such distinctions of political parties

accounts to receive unlimited contributions for making independent expenditures).

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are (a) dicta, (b) based on an impermissible presumption of coordination, and (c) inaccurate.

1. IE-PAC Case Statements Distinguishing Party-Committees Are Dicta.

Statements distinguishing political parties in cases such as SpeechNow are dicta. They were

unnecessary to the decision, and the constitutionality of the provisions challenged here as applied

to non-individualized, independent communications, including from an ICA, was not at issue.

2. Party-Committee Coordination with Candidates May Not Be Presumed.

Distinguishing of party-committees in some opinions is based on presumed coordination with

candidates. Colorado-I forbids that presumption regarding independent communications: “The

question ... is whether the [lower] Court ... erred as a legal matter in accepting the Government’s

conclusive presumption that all party expenditures are ‘coordinated.’ We believe it did.” 518 U.S.

at 619. That independent-communication case (Colorado-I) must control, not McConnell, because

“[t]his case ... is about independent expenditures,” Citizens United, 558 U.S. at 361.

Nor may the government presume that political parties pose a corruption risk per se: “[R]ather

than indicating a special fear of the corruptive influence of political parties, the legislative history

demonstrates Congress’ general desire to enhance what was seen as an important and legitimate role

for political parties in American elections.” Colorado-I, 518 U.S. at 618 (plurality). “‘[A] vigorous

party system is vital to American politics,” and “‘[p]ooling resources from many small contributors

is a legitimate function and an integral part of party politics.’” Id. (citations omitted).

“[T]he basic

nature of the party system ... [allows] party members [to] join together to further common political

beliefs, and citizens can choose to support a party because they share ... beliefs.” McCutcheon, 134

S.Ct. at 1461. So “recast[ing] such shared interest ... as an opportunity for ... corruption would

“We are not aware of any special dangers of corruption associated with political parties ....”

Id. at 616 (plurality). “What could it mean for a party to ‘corrupt’ its candidate or to exercise ‘coer-

cive’ influence over him?” Id. at 646 (Thomas, J., joined by Rehnquist, C.J., and Scalia, J.).

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dramatically expand government regulation of the political process.” Id. (citations omitted).

Regarding corruption (or circumvention by illegal conduit-contributions) from independent-

expenditure activity, no presumption is permissible because independent communications involve

no contributions to candidates. Only contributions to candidates may pose a corruption risk because,

unless a financial quid reaches a candidate, he could not provide a legislative quo.

“The hallmark

of corruption is the financial quid pro quo: dollars for political favors.” NCPAC, 470 U.S. at 497.

See also McCutcheon, 134 S.Ct. at 1441 (same). But “independent expenditures ... do not give rise

to corruption.” Citizens United, 558 U.S. at 357. “Spending large sums of money in connection with

elections, but not in connection with an effort to control the exercise of an officeholder’s official

duties, does not give rise to such quid pro quo corruption.” McCutcheon, 134 S.Ct. at 1450.

Regarding coordination of party-committee independent expenditures with candidates, no

presumption is permissible because the independent communications party-committees may make,

11 C.F.R. 109.30, may not be coordinated with a candidate, 11 C.F.R. 109.37 (“What is a ‘party

coordinated communication’?”). And Colorado-I expressly rejected FEC’s presumption that party-

“Buckley made clear that the risk of corruption arises when an individual makes large contribu-

tions to the candidate or officeholder himself.” McCutcheon, 134 S.Ct. at 1460 (citation omitted).

For the corruption risk to arise, “money [must] flow[] ... to a candidate.” Id. at 1452.

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 459 (2001)

(“Colorado-II”) cited a practice of the Democratic Senatorial Campaign Committee (“DSCC”)

whereby candidates might receive increased aid from DSCC proportional to contributions raised by

candidates for DSCC. 533 U.S. at 459. The Court considered this (legal) practice in the independent-

spending context as some indication of circumvention problems if party-committees were allowed

unlimited coordinated spending. Id. at 459 & n.22. Colorado-II is inapplicable to independent

spending, but even the tally-system argument is non-viable after FEC’s 2012 decision that the DSCC

fulfilled conciliation-agreement obligations regarding its ongoing tallying. In Matter Under Review

3620, http://fec.gov/em/mur.shtml, FEC decided that: (a) absent earmarking, party-committees may

do what they want with contributions tallied to particular candidate’s credit; (b) tallied contributions

are not implicitly earmarked; and (c) tallied contributions trigger no quid-pro-quo or conduit-contri-

bution risk. Id. Under FEC’s decision, “attribution” to a contributor occurs only when there is

earmarking, not mere tallying of credit to a candidate. Id.

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committees cannot make independent communications because (as FEC presumed) all political-party

committee communications were coordinated with a political party’s candidates. 518 U.S. at 614-22.

What the Colorado-I opinions said in rejecting presumed coordination controls here. The Colorado-I

plurality held that, in examining alleged coordination, one may not look to “general descriptions of

Party practice,” such as a “statement that it was the practice of the Party to ‘coordinat[e] with the

candidate’ campaign strategy” or a statement that a Party official is “‘as involved as [he] could be’

with the individuals seeking the Republican nomination ... by making available to them ‘all of the

assets of the party.’” Id. at 614. Rather, coordination analysis examines whether particular commu-

nications are factually coordinated, id.:

These latter statements, however, are general descriptions of Party practice. They do not refer

to the advertising campaign at issue here or to its preparation. Nor do they conflict with, or cast

significant doubt upon, the uncontroverted direct evidence that this advertising campaign was

developed by the Colorado Party independently and not pursuant to any general or particular

understanding with a candidate.... [W]e therefore treat the expenditure, for constitutional pur-

poses, as an “independent” expenditure, not an indirect campaign contribution.

Political party independent communications pose less corruption risk than those by individuals:

If anything, an independent expenditure made possible by a $20,000 donation, but controlled and

directed by a party rather than the donor, would seem less likely to corrupt than the same (or a

much larger) independent expenditure made directly by that donor. In any case, the constitution-

ally significant fact, present equally in both instances, is the lack of coordination between the

candidate and the source of the expenditure. See Buckley, [424 U.S.] at 45-46; NCPAC, [470

U.S.] at 498. This fact prevents us from assuming, absent convincing evidence to the contrary,

that a limitation on political parties’ independent expenditures is necessary to combat a substan-

tial danger of corruption of the electoral system.

Id. at 617-18. And Colorado-I rejected the notion that a party “expenditure is ‘coordinated’ because

a party and its candidate are identical, i.e., the party, in a sense, ‘is’ its candidates.” 518 U.S. at 622.

“We cannot assume ... this is so,” the plurality continued, id., and such “a metaphysical identity

... arguabl[y] ... eliminates any potential for corruption ...,” id. at 623, citing Bellotti, 435 U.S. at 790

(“where there is no risk of ‘corruption’ of a candidate, the Government may not limit even contribu-

Plaintiffs’ Summary-Judgment Memo

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tions”). So in the independent-communication context, if the government argues that political parties

and candidates have “an absolute identity of views and interests,” id., then there is no corruption

potential and, consequently, no constitutional justification for any limit even on their coordinated

expenditures. But since party-committees and their candidates are separate legal entities, as

Colorado-I and FECA treat them, parties are factually capable of making communications independ-

ent of candidates. Whether any particular communication is coordinated, depends on coordination

standards, see 11 C.F.R. 109.37 (“party coordinated communication”), as a factual question, and the

planned activities here are verified independent. So party-committee status changes no controlling

analysis here regarding cognizable corruption, circumvention, and coordination, and no cognizable

governmental interest prevents party-committees from using nonfederal funds for their independent

communications, including from an ICA.

Nonetheless, SpeechNow said that “[Colorado-I] concerned expenditures by political parties,

which are wholly distinct from ‘independent expenditures’ as defined in [52 U.S.C. 30101(17)].”

599 F.3d at 695. But this dictum states a distinction without constitutional significance. An “inde-

pendent expenditure” under 52 U.S.C. 30101(17) is “a communication expressly advocating the

election or defeat of a clearly identified candidate” that is not “a coordinated communication under

11 C.F.R. 109.21 or a party coordinated communication under 11 C.F.R. 109.37.” 11 C.F.R.

100.16.

The communication that the party-committee in Colorado-I had a First Amendment right

52 U.S.C. 30101(17) requires that communications not be coordinated with either candidates

or party-committees. Because LAGOP is a political “party committee,” see supra at 3 & n.6, whether

its communications are coordinated should be governed by 11 C.F.R. 109.37 (“What is a ‘party

coordinated communication’?”), which governs when “[a] political party communication is coordi-

nated with a candidate,” id. at 109.37(a), not proscribing coordination with party-committees. But

Plaintiffs’ intended independent FEA will be independent under all laws and regulations applicable

when they are able to do FEA with nonfederal funds. In any event, nothing prevents party-commit-

tees from running their own independent-expenditure programs, so there is no problem with an ICA.

But Buckley recognized coordination with candidates (not parties) as creating in-kind contributions.

Plaintiffs’ Summary-Judgment Memo

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to make was also non-coordinated, but it criticized a Democratic candidate on the issues without

express advocacy, see Colorado Republican Federal Campaign Committee, 839 F. Supp. at 1451,

yet Colorado-I held that “the expenditure in question is what this Court in Buckley called an ‘independ-

ent’ expenditure,” 518 U.S. at 613. Here, Plaintiffs want to use nonfederal funds for independent

communications that are constitutionally like “independent expenditures” in that they are not coordi-

nated and pose no quid-pro-quo risk. The constitutionally significant feature of “independent expendi-

ture” in 52 U.S.C. 30101(17) and Colorado-I is the independence of the public communication

naming a candidate, not the presence or absence of express advocacy. This is so because both uses

of “independent expenditure” are rooted Buckley’s holding that “[t]he absence of prearrangement

and coordination of an expenditure with the candidate or his agent not only undermines the value

of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as

a quid pro quo for improper commitments from the candidate.” 424 U.S. at 47. See Colorado-I, 518

U.S. at 615 (quoting Buckley, 424 U.S. at 47). Now, Buckley also imposed express-advocacy con-

structions on two “expenditure” definitions to avoid vagueness and overbreadth. 424 U.S. at 44 n.52,

80. That is the source of the express-advocacy independent-expenditure definition at 2

U.S.C. 431(17). But the right of party-committees to make “independent expenditures” under

Colorado-I turns on independence, not the presence or absence of express advocacy. So for constitu-

424 U.S. at 46 n.53. So the reference to party-committees in § 30101(17) resurrects the presumption

of party-candidate coordination that Colorado-I rejected, which view is supported by the fact that

expenditures coordinated with PACs (not party-committees) are not coordinated under § 30101(17)

nor in-kind contributions under 52 U.S.C. 30116(7)(B). The requirement that independent expendi-

tures be independent from party-committees is a prophylaxes atop the “base limits[, which] them-

selves are a prophylactic measure” in a “prophylaxis-on-prophylaxis approach’” to preventing any

possible corruption. McCutcheon, 134 S.Ct. at 1458 (emphasis in original) (citation omitted). Such

prophylaxes are not justified for independent communications and ICAs, where no corruption exists.

The district court applied an express-advocacy construction and dismissed FEC’s enforcement

proceeding because there was no express advocacy. Colorado-I, 518 U.S. at 612-13.

Plaintiffs’ Summary-Judgment Memo

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tional purposes, an express-advocacy communication from Buckley and a non-express-advocacy

communication from Colorado-I are both an “independent expenditure,” with the common, control-

ling factor being their independence.

3. What the Colorado Cases and McConnell Really Said Supports Plaintiffs.

Though courts may claim political-parties differ in kind from PACs based on the Colorado cases

and McConnell, what those cases actually said favors Plaintiffs here. In holding that political-party

communications lack corruption risk due to independence, the Colorado-I principal opinion said:

“We are not aware of any special dangers of corruption associated with political parties that tip the

constitutional balance in a different direction.” 518 U.S. at 616. The opinion then said what

SpeechNow noted (set out here as stated in SpeechNow):

It is true that the opinion of Justice Breyer did discuss the potential for corruption or the appear-

ance of corruption potentially arising from independent expenditures, saying that “[t]he greatest

danger of corruption ... appears to be from the ability of donors to give sums up to $20,000 to

a party which may be used for independent party expenditures for the benefit of a particular

candidate,” thus evading the limits on direct contributions to candidates. Id. at 617....

SpeechNow, 599 F.3d at 695 (citation omitted).

But as context, Colorado-I said that

[c]ontributors seeking to avoid the effect of the $1,000 contribution limit indirectly by donations

to the national party could spend that same amount of money (or more) themselves more directly

by making their own independent expenditures promoting the candidate. See Buckley, [424 U.S.]

at 44-48 (risk of corruption by individuals’ independent expenditures is insufficient to justify

limits on such spending). If anything, an independent expenditure made possible by a $20,000

donation, but controlled and directed by a party rather than the donor, would seem less likely to

corrupt than the same (or a much larger) independent expenditure made directly by that donor.

518 U.S. at 617 (citations omitted). Since contributors and political parties may each do independent

expenditures, contributors and parties have an expressive-association right to do them together,

SpeechNow quickly rejected this statement in Colorado-I as controlling: “[A] discussion in a

1996 opinion joined by only three Justices cannot control our analysis when the more recent opinion

of the Court in Citizens United clearly states as a matter of law that independent expenditures do not

pose a danger of corruption or the appearance of corruption.” 599 F.3d at 695.

Plaintiffs’ Summary-Judgment Memo

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including through an ICA.

So Colorado-I does not establish that large contributions that may be

used for independent communications create corruption, and it supports Plaintiffs’ activities here.

Colorado-I was remanded to decide whether the Party Expenditure Provision limits were uncon-

stitutional facially, i.e., whether the government could limit coordinated expenditures. Colorado-II,

533 U.S. 431, held there could be limits on coordinated expenditures. Since Plaintiffs’ intended

activities do not involve coordination, Colorado-II neither controls nor informs this case. But note

some things said in Colorado-II. The Court justified limits to prevent circumvention of contribution

limits, not quid-pro-quo corruption directly. 533 U.S. at 465.

It said that party-committees “act as

agents for spending on behalf of those who seek ... obligated officeholders.” 533 U.S. at 452. This

was about coordinated, not independent, communications. The next sentence emphasizes the con-

text: “It is this party role, which functionally unites parties with other self-interested political actors,

The Colorado-I plurality recognized the expressive-association nature of political parties’

independent expenditures for “‘core’ First Amendment activity,” id. at 615-16:

Given these established principles [concerning the high constitutional protection for, and non-

corrupting nature of, independent communications], we do not see how a provision that limits

a political party’s independent expenditures can escape their controlling effect. A political party’s

independent expression not only reflects its members’ views about the philosophical and govern-

mental matters that bind them together, it also seeks to convince others to join those members

in a practical democratic task, the task of creating a government that voters can instruct and hold

responsible for subsequent success or failure. The independent expression of a political party’s

views is “core” First Amendment activity no less than is the independent expression of individu-

als, candidates, or other political committees.

As to other alleged “corruption,” the Court found it unnecessary to reach arguments based on

“quid pro quo arrangements and similar corrupting relationships between candidates and parties,”

id. at 456 n.18, but the Tenth Circuit had rejected those arguments, FEC v. Colorado Republican

Federal Campaign Committee, 213 F.3d 1221, 1229-31 (10th Cir. 2000), as it had rejected the

circumvention argument, id. at 1231-32. And the district court found no factual evidence of quid-

pro-quo corruption between contributors, parties, and candidates. FEC v. Colorado Republican

Federal Campaign Committee, 41 F. Supp. 2d 1197, 1211-12 (D. Colo. 1999) (no corruption in the

form of contributors “forc[ing] the party committee to compel a candidate to take a particular posi-

tion”); id. at 1212-13 (no “corruption” from parties’ influence over candidates because “decision to

support a candidate who adheres to the parties’ beliefs is not corruption”); id. at 1213 (“FEC has

failed to offer relevant, admissible evidence which suggests that coordinated party expenditures must

be limited to prevent corruption or the appearance thereof.”).

Plaintiffs’ Summary-Judgment Memo

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that the Party Expenditure Provision targets,” i.e., what the Provision “targets” in Colorado-II is

solely coordinated spending, as made clear by the Court, id. at 457 (emphasis added):

Despite years of enforcement of the challenged limits, substantial evidence demonstrates how

candidates, donors, and parties test the limits of the current law, and it shows beyond serious

doubt how contribution limits would be eroded if inducement to circumvent them were enhanced

by declaring parties’ coordinated spending wide open.

McConnell justified the nonfederal-funds Ban on the idea that nonfederal funds could cause

gratitude and influence, 540 U.S. at 145, 168, or access, id. at 119 & n.5, 124-25 & n.13, 155. “[S]oft

money ... enabled parties and candidates to circumvent FECA’s limitations ....” Id. at 126. See also

id. at 145 (“widespread circumvention of FECA’s limits on contributions” due to likelihood “that

candidates would feel grateful ... and ... donors would seek to exploit that”). The Court said such

access, gratitude, and consequent “circumvention” constituted “corruption” or “the appearance of

corruption.” Id. at 119 n.5, 142, 145. Also, “[t]he national committees ... are both run by, and largely

composed of, federal officeholders and candidates,” id. at 155, and “[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.” Id. McConnell’s analysis doe not control here because “corruption” based on

anything other than narrowly defined quid-pro-quo corruption was rejected in Citizens United, 558

U.S. at 359-61 (expenditure context), and McCutcheon, 134 S.Ct. at 1441 (contribution context).

But McConnell was correct that the independent-expenditure case line controls where (as here)

independent communications are involved, 540 U.S. at 145 n.45 (citations omitted):

Justice Kennedy contends that the plurality’s observation in Colorado I that large soft-money

And reliance on such “close relationship” language would be erroneous because McConnell

held that, despite the “close relationship,” political parties cannot be required to choose between

making coordinated expenditures and independent expenditures. Id. at 213-19. So no amount of

coordination eliminates the ability to do independent expenditures.

Plaintiffs’ Summary-Judgment Memo

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donations to a political party pose little threat of corruption “establish[es] that” such contribu-

tions are not corrupting.... The cited dictum has no bearing on the present case. Colorado I

addressed an entirely different question—namely, whether Congress could permissibly limit a

party’s independent expenditures—and did so on an entirely different set of facts.

Citizens United also distinguished those case lines, holding that McConnell did not control an

independent-communication case, 558 U.S. at 360-61 (citations omitted):

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 expen-

ditures, not soft money. When Congress finds that a problem exists, we must give that finding

due deference; but Congress may not choose an unconstitutional remedy. If elected officials

succumb to improper influences from independent expenditures; if they surrender their best

judgment; and if they put expediency before principle, then surely there is cause for concern. We

must give weight to attempts by Congress to seek to dispel either the appearance or the reality

of these influences. The remedies enacted by law, however, must comply with the First Amend-

ment; and, it is our law and our tradition that more speech, not less, is the governing rule.

Citizens United distinguished the case lines based on whether they involved independent communi-

cations, not on the basis that McConnell involved party committees. That distinction controls.

III. The Challenged Provisions Are Unconstitutional, as Applied and Facially.

Three analytical keys control and readily resolve this case: (i) only narrow quid-pro-quo corrup-

tion is cognizable; (ii) independence eliminates it; and (iii) political parties’ independent communi-

cations are equally non-corrupting. Plaintiffs have devoted most of their brief to establishing those

keys and answering objections. The following application of those three keys to the challenged

provisions in the four counts builds on all the foregoing and so may be brief.

Preliminarily, Plaintiffs note that the Ban, Fundraising Requirement, and Reporting Requirement

fall as a unit, as they were so considered in McConnell,

because all were there justified by a now-

Whether any “set of facts” could prove cognizable corruption from independent expenditures

was settled in Citizens United, which held, as a matter of law, that “independent expenditures ... do

not give rise to corruption or the appearance of corruption.” 558 U.S. at 357.

McConnell mentions the Ban, see, e.g., 540 U.S. at 161-62, but nowhere mentions the Fund-

raising Requirement or Reporting Requirement, other than to indicate that “[t]he remaining provi-

sions of [now 52 U.S.C. 30125] largely reinforce the restrictions in [now 52 U.S.C. 30125(a)],” id.

Plaintiffs’ Summary-Judgment Memo

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rejected, broad definition of “corruption” and because quid-pro-quo corruption is absent as to all the

activity at issue here. So Plaintiffs primarily argue against the Ban—which was the focus of argu-

ment and the opinion in McConnell—because it is central and the other provisions are derivative.

A. The Challenged Provisions Are Unconstitutional as Applied in Count I.

In Count I, Plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Requirement

“as unconstitutional under the First Amendment (I) as applied to (a) non-individualized, independent

communications exhorting registering/voting and (b) non-individualized, independent communica-

tions by Internet.” (Compl. ¶¶ 1, 118.)

Plaintiffs’ First Amendment rights are burdened as a matter of law, see supra Part II.A, so FEC

must (at minimum) prove a “fit,” see supra Part I,

between the challenged provisions and prevent-

ing cognizable corruption, see supra note 24 (“cognizable corruption”), as applied. FEC cannot

prove this fit because the independent communications at issue here pose no risk of quid-pro-quo

corruption (or its appearance), see supra Part II.C, and the same is true of independent communica-

tions by committees of political parties, see supra Part II.D.

But Count I can be decided on the narrower grounds that the Ban prohibits using federal funds

for non-individualized, independent communications (a) merely exhorting registering/voting and (b)

by Internet. Regarding Count I(a), as explained above, see supra at 4-5, FEC’s original definitions

of VR and GOTV required “individualized” assistance and did not include “encouraging or urging”

at 133 (thereby sweeping in the Ban and Fundraising Requirement, but not the Reporting Require-

ment at BCRA § 103a). Thus, as FEC has acknowledged, the provisions rise and fall together. (Dkt.

15 at 41 n.12 (“[O]ne of the district court opinions in McConnell also reviewed the analysis of

section 30125(c) as deriving from the analysis of section 30125(b)’s restrictions on FEA.” (citing

251 F. Supp. 2d at 412 (Henderson, J., concurring/dissenting)).)

Because independent communications are restricted, strict scrutiny applies, see supra Part I.C,

but even McCutcheon’s contribution-restriction test is strong, see supra Part I.B. McConnell’s defer-

ential scrutiny based on broad “corruption” is gone.

Plaintiffs’ Summary-Judgment Memo

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registration or voting.

But FEC changed its definitions to include “encouraging or urging” and

dropped the “individualized” requirement due to Shays-III, 528 F.3d 914. At the 2009 rulemaking

hearing, commenters argued against an “encouraging” definition and for a voter-mobilization

definition for VR and GOTV. (SMF ¶ 29.) But FEC decided that Shays-III, which it did not take to

the Supreme Court, required it to drop the “individualized” requirement and include mere “encourag-

ing” (as well as “urging”) in the VR and GOTV definitions.

Though Plaintiffs have not brought a vagueness challenge in this BCRA case, serious vagueness

exists in the “encouraging or urging” definitions of VR and GOTV, awaiting only a challenge for

those definitions to fall to the First Amendment and due-process protections against vagueness.

However, the vagueness adds to the chill on state and local committees and enhances the burden at

issue here. FEC regulations do not define “encouraging or urging” in the VR and GOTV definitions,

though FEC uses those terms synonymously with “exhorting.” (SMF ¶¶ 27-28.) But FEC disputes

that “encouraging or urging” means “exhorting” (Answer ¶ 66) and disputes that the constitutional

analysis requiring Buckley’s construction requiring express advocacy, 424 U.S. at 42-44, would here

require express exhorting, encouraging, or urging. (Answer ¶ 66). At the 2009 rulemaking hearing,

As noted above, see supra at 6, ASDC’s CFFR lauded FEC’s original approach and seeks a

change back to the old, pre-BCRA rules:

After extensive hearings and careful consideration, the FEC in 2002 issued thoughtful, practical

yet rigorous regulations defining these activities. These definitions have been challenged by so-

called “reform” organizations in a series of court cases which have forced the FEC in some cases

to modify its definitions and in other cases have left the definitions in a state of confusion and

uncertainty. Under the most recent iteration of the definition of “get-out-the-vote” almost all

campaign activity is subsumed within the definition pulling most campaign activity within the

definition even if no federal candidates are referenced in the communications.... [D]ue to the

continual expansion of the definitions of “get-out-the-vote” as well as the additional problems

created by the concept of “federal election activity,” Congress should consider repealing these

provisions and allow party committees to undertake activities in accordance with rules in

place prior to ... McCain-Feingold.

Recommendations at 1-2 (bold in original).

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one “reform”-community speaker asserted that “get out to vote for O’Malley” or “go vote for O’Mal-

ley” would be GOTV while “vote for O’Malley” (even if accompanied by the election date) would

not be GOTV, though he did not dispute that the latter would encourage voting. (SMF ¶ 30.) The

distinctions between those O’Malley statements are problematic at best, and FEC has provided no

such clarification. So the foregoing chill and burden are part of the present constitutional s analysis.

But the present issue is how merely exhorting (or encouraging/urging) people to register and vote

can pose any quid-pro-quo risk.

At a minimum, there must be a “fit” between such mere exhorta-

tion and cognizable corruption, see supra at note 24 (“cognizable corruption”). There is no fit. For

example, LAGOP’s nonpartisan “Get Registered,” supra at 8-9, is a paean to political participation

that results in no contribution to a candidate or anything else required for cognizable corruption. So

the challenged provisions are unconstitutional as challenged in Count I(a).

Regarding Count I(b), Plaintiffs challenge the provisions at issue as applied to non-individual-

ized, independent communications by Internet. Though FEC does not include Internet communica-

tions in the definitions of other FEA definitions (e.g., the PASO definition, 11 C.F.R. 100.24(b)(3))

that incorporate the “public communication” definition (which excludes Internet communications

unless “placed for a fee on another person’s Web site,” 11 C.F.R. 100.26 (e)) and originally did not

include online communications in its VR and GOTV definitions, FEC included online communica-

tions in its VR and GOTV definitions after Shays-III. (SMF ¶¶ 19-25.)

As part of the confusion, chill, and burden of the challenged provisions, note that in past

rulemakings, FEC has indicated that where activity on a committee’s website is defined as FEA, the

committee might have to pay all costs for the website, including costs swept in by a “ripple effect”

And note that the independent communications at issue are “non-individualized,” in the sense

that FEC intended in its original rules requiring “individualized” assistance to qualify as VR and

GOTV, so they would not have been VR or GOTV under FEC’s original analysis and rules.

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(such as costs for computers, online access, etc.) because “the Commission is not convinced that the

statute permits time/space allocation.” FEC nowhere states that a time/space allocation is permissible

for any online FEA. (SMF ¶¶ 23-25.) But FEC now disputes this. (Answer ¶ 62.)

But the present issue is how non-individualized, independent online communications can pose

any quid-pro-quo risk. At a minimum, there must be a “fit” between such communications and

cognizable corruption, see supra at note 24 (“cognizable corruption”). There is no fit. For example,

LAGOP’s original online nonpartisan “Get Registered” communication, supra at 8-9, neither con-

tributes to a candidate nor does anything else required for cognizable corruption. So the challenged

provisions are unconstitutional as challenged in Count I(b).

This conclusion is reinforced by the fact, noted above, that online activity is excluded from other

FEA definitions, but not VR and GOTV. For example, LAGOP’s “Celebrating Jindal,” see supra

at 12, would not be PASO (and thus FEA) on LAGOP’s website but would be if broadcast. This is

so because the PASO definition, 11 C.F.R. 100.24(b)(3) (see Compl. ¶ 27 (text)), requires that PASO

be a “public communication,” and the “public communication” definition, 11 C.F.R. 100.26 (see

Compl. ¶ 19 (text)), includes broadcasting but excludes Internet communication (except for “paid

communications on another’s Web site”). (SMF ¶ 63.) Now, if a PASO ad on one’s own website

cannot corrupt the named candidate, then VR and GOTV on one’s own website that names no

candidate cannot be corrupting. Or, if VR/GOTV on one’s own website is corrupting, the exclusion

from the PASO definition of a communication promoting a candidate on one’s own website is

underinclusive and the assertion of an anti-corruption interest regarding own-website VR/GOTV

cannot be taken seriously. Republican Party of Minnesota v. White, 536 U.S. 765, 780 (2002).

FEC later excluded de minimis FEA on a website (SMF ¶¶ 23-25), but that de minimis excep-

tion requires that the communication be “both brief and incidental” (SMF ¶¶ 26), so it protects none

of Plaintiffs’ described intended FEA activities.

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B. The Challenged Provisions Are Unconstitutional as Applied in Count II.

In Count II(a), Plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Require-

ment “as applied to (a) non-individualized, independent communications.” (Compl. ¶¶ 1, 131.) In

Count II(b), they challenge the Ban and Fundraising Requirement as applied to “such communica-

tions from an independent-communications-only account (“ICA”).” (Compl. ¶¶ 1, 132.)

Regarding Count II(a), Plaintiffs’ First Amendment rights are burdened as a matter of law, see

supra Part II.A, so FEC must (at minimum) prove a “fit,” see supra Part I,

between the challenged

provisions and preventing cognizable corruption, see supra note 24 (“cognizable corruption”), as

applied. FEC cannot prove this fit because the independent communications at issue here pose no

risk of quid-pro-quo corruption (or its appearance), see supra Part II.C, and the same is true of

independent communications by committees of political parties, see supra Part II.D.

So “as applied to (a) non-individualized, independent communications,” the Ban, Fundraising

Requirement, and Reporting requirement are unconstitutional because they are not justified by the

requisite anti-corruption interest because such communications pose no quid-pro-quo risk.

Regarding Count II(a), the foregoing analysis also controls, but, in the alternative, if the forego-

ing relief is not granted, Plaintiffs challenge the Ban and Fundraising Requirement, but not the

Reporting Requirement, as applied to such communications from an ICA. See supra at 13 (describ-

ing nature of ICA). (See also SMF ¶¶ 68; Compl. ¶ 109.) The ICA would receive only funds (a) from

individuals, (b) compliant with applicable state and listed federal restrictions (see SMF ¶ 66), and

graph (b) is met) or (ii) fundraised in compliance with provisions governing such fundraising when

Because independent communications are restricted, strict scrutiny applies, see supra Part I.C,

but McCutcheon’s contribution-restriction test is also rigorous, see supra Part I.B.

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LAGOP is able to operate an ICA for such independent communications. The ICA’s receipts would

be limited to Louisiana’s contribution limit, currently $100,000 over a 4-calendar-year period (which

LAGOP and its ICA must share). (SMF ¶ 68.)

The ICA is constitutionally analogous to the NCA (non-contribution account) that political

committees (but not those of political parties) who make contributions may establish for making

independent expenditures. See FEC Statement on Carey v. FEC. But an ICA does less. First, while

an NCA may do independent expenditures as well as certain other independent spending, id., the

ICA would only make non-individualized, independent communications. Second, while an NCA

may receive unlimited contributions, including from corporations and unions, id., the ICA would

only receive contributions from individuals limited by state contribution limits. Both would report

as required, including by the Reporting Requirement for the ICA. Because independent expenditures

and independent communications are constitutionally equivalent (since independence eliminates

corruption), if other political committees may have NCAs, a fortiori state and local committees are

constitutionally entitled to do the lesser thing of having ICAs.

C. The Challenged Provisions Are Unconstitutional as Applied in Count III.

Plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Requirement as applied

to all independent federal election activity. (Compl. ¶¶ 1, 140.) Plaintiffs’ First Amendment rights

are burdened as a matter of law, see supra Part II.A, so FEC must (at minimum) prove a “fit,” see

supra Part I, between the challenged provisions and preventing cognizable corruption, see supra note

24 (“cognizable corruption”), as applied.

FEC cannot prove this fit because independent FEA poses no quid-pro-quo risk, whether or not

it takes the form of a communication. Plaintiffs have already established that independent communi-

cations pose no risk of quid-pro-quo corruption (or its appearance), see supra Part II.C, and that the

Plaintiffs’ Summary-Judgment Memo

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same is true of independent communications by committees of political parties, see supra Part II.D.

But the corruption-eliminating effect of independence is not limited to communications. Buckley

held that independence alleviates quid-pro-quo risk:

independent expenditures may well provide little assistance to the candidate’s campaign and

indeed may prove counterproductive. The absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only undermines the value of the expenditure to

the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for

improper commitments from the candidate.

424 U.S. at 47. Buckley was scrutinizing the constitutionality of a $1,000 per year limit on “any

expenditure ... relative to a clearly identified candidate during a calendar year which, when added

to all other expenditures made by such person during the year advocating the election or defeat of

such candidate.” Id. at 39. The Court construed the expenditure-relative-to language as requiring

candidate advocacy, id. at 42, then applied a saving “express advocacy” construction on that to save

the definition from unconstitutional vagueness and overbreadth, id. at 43-44. See also id. at 80 (same

construction for purpose-of-influencing expenditure definition in disclosure context). So Buckley was

dealing with a context in which it was construing expenditure definitions to reach only express-

advocacy communications.

But what Buckley said in the block quote about the “absence of prearrangement and coordina-

tion” alleviating the quid-pro-quo risk is also true of non-communication expenditures. This is clear

from the full “cognizable corruption” definition, see supra note 24, which indicates, inter alia, that

“corruption” means quid-pro-quo corruption or the appearance of quid-pro-quo corruption of a

federal candidate, McCutcheon, 134 S.Ct. at 1441 (quoting Citizens United, 558 U.S. at 359), with

quid-pro-quo corruption meaning only “a direct exchange of an official act for money,” id. (citation

omitted). This is “an effort to control the exercise of an officeholder’s official duties,” id. at 1450,

i.e., “an act akin to bribery,” id. at 1466 (Breyer, J., dissenting). “Government’s interest in preventing

Plaintiffs’ Summary-Judgment Memo

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the appearance of corruption is equally confined to the appearance of quid pro quo corruption[.]” Id.

at 1451 (plurality op.).

So given the independence of an act that constitutes FEA, there can be no “direct exchange of

an official act for money” because no money flows to a candidate from independent FEA. No

gratitude/access/benefit theory of corruption survives the restriction of “corruption” to narrow quid-

pro-quo corruption. So if state and local committees do independent VR and GOTV, see, e.g., “Get

Registered,” supra at 8-9, no cognizable corruption can arise from that. Or if they promote the party

through GCA, see, e.g., “African-American Outreach,” supra at 11-12, no corruption arises there-

from. Or if they do an independent PASO ad, see, e.g., “Celebrating Jindal,” see supra at 12, no

corruption arises (which is doubly so now that he has suspended his campaign, though technically

he remains a federal candidate). But the same holds true for non-communication independent FEA,

for the same reason. So no corruption arises from independent FEA in the form of GOTV involving

taking voters to the polls, or VID that involves combing data instead of communicating with poten-

tial voters, or having an employee work more than 25% of her monthly time on such GOTV or VID.

No money flows to a candidate from such independent FEA, so no cognizable corruption arises.

D. The Challenged Provisions Are Unconstitutional Facially (Count IV).

Plaintiffs challenge the Ban, Fundraising Requirement, and Reporting Requirement facially.

(Compl. ¶¶ 1, 151.) McConnell, 540 U.S. 93, upheld the challenged provisions facially though FEC

“identified not a single discrete instance of quid pro quo corruption attributable to the donation of

non-federal funds.” McConnell, 251 F. Supp. 2d at 395 (op. Henderson, J.). Accord McCutcheon,

134 S. Ct. at 1469-70 (Breyer, J., joined by Ginsburg, Sotomayor & Kagan, JJ., dissenting) (quoting

McConnell, 251 F. Supp. 2d at 395) (op. Henderson, J.).). However the Supreme Court, held in

Citizens United, 558 U.S. at 359-60, and McCutcheon, 134 S.Ct. at 1450-51, that evidence of quid-

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pro-quo corruption is required to uphold such restrictions. As a result, McConnell was wrongly

decided and has been implicitly overruled. So the challenged provisions, which were all upheld

facially on now-rejected theories of “corruption,” are facially unconstitutional.

Conclusion

McConnell, 540 U.S. 93, facially upheld the challenged provisions based on theories of “corrup-

tion” rejected in Citizens United, 558 U.S. at 359-61 (expenditure context), and McCutcheon, 134

S.Ct. at 1441 (contribution context). See supra note 24 (cognizable corruption). And even despite

McConnell’s emphasis on the “close connection and alignment of interests” between parties and

candidates, 540 U.S. at 155, McConnell recognized and upheld political parties’ ability and right to

do independent expenditures in the face of a BCRA provision requiring them to choose between

coordination with candidates and independent expenditures, id. at 213-19. Thus, no coordination

presumption is permitted, so no amount of coordination not involving particular independent activity

strips political parties of their ability and right to do that non-corrupting independent activity. Based

on the non-corrupting nature of independent activity and the absence of quid-pro-quo corruption, the

challenged provisions are unconstitutional as applied and facially.

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO 0041

[email protected]

Richard E. Coleson,* rcoleson@bopplaw.com

Corrine L. Purvis,* cpurvis@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 phone; 812/235-3685 fax

Counsel for Plaintiffs

*Admitted Pro Hac Vice

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 52 of 87

Certificate of Service

I certify that on February 11, 2016, I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system, which will notify:

Charles Kitcher, [email protected]ov

Gregory John Mueller, [email protected]ov

Harry Jacobs Summers, [email protected]

Kevin Deeley, kdeeley@fec.gov

Seth E. Nesin, [email protected]ov

Counsel for Defendant

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

202/694-1650.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Plaintiffs’ Summary-Judgment Memo

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 53 of 87

United States District Court

District of Columbia

Republican Party of Louisiana et al.,

Plaintiffs

Federal Election Commission,

Defendant

Civil Case No. 15-cv-1241 (CRC-SS-TSC)

THREE-JUDGE COURT

Plaintiffs’ Statement of Material Facts Not in Genuine Dispute

Plaintiffs have moved for summary judgment in their favor. Fed. R. Civ. P. 56. In support of

that motion, Plaintiffs provide the following statement of material facts (“SMF”) not in genuine

dispute. LCvR 7(h)(1).

Parties

1. Republican Party of Louisiana (“LAGOP”) is a “recognized political party.” La. Rev. Stat.

18:442. It is a “[s]tate committee,” 52 U.S.C. 30101(15), and a “state party committee” (as a

“political committee”), 11 C.F.R. 100.5(e)(4).

Its purposes are: (1) electing Republicans to of-

fice and (2) supporting issues reflecting its principles. Bylaws art. I, § 3. LAGOP intends to do

Key to Evidentiary Citations: Verified Complaint for Declaratory and Injunctive Relief

(Dkt. 1) = Compl.; Answer (Dkt. 19) = Answer; Plaintiff JPGOP’s Responses to FEC’s First Set

of Discovery Requests = JPGOP Discovery Response (Exhibit 1).

The parties have agreed that the facts found in relevant cases are also admissible, e.g.,

Colorado-I, 518 U.S. 604 (1996); McConnell, 540 U.S. 93; Citizens United, 558 U.S. 310; Mc-

Cutcheon, 134 S.Ct. 1434; RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC-I”); et al.;

but those are not all provided here as they are unnecessary to decide this matter-of-law case.

The verb tense of facts verified in the Complaint (Doc. 1) is retained as stated in the Com-

plaint, though certain referenced time frames have changed, e.g., certain federal election activity

(“FEA”) periods have now begun (in November and December 2015). Because Plaintiffs verified

their intent to do materially similar activities in the future (Compl.. ¶ 114), the tense is proper.

State or local committees (a.k.a. “party organizations,” 11 C.F.R. 300.30(c)) are entities not

necessarily registered as political committee so as to be party committees. (Compl. ¶ 6 n.1; An-

swer ¶ 6.)

Plaintiffs’ Summary-Judgment SMF

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independent federal election activity without complying with challenged provisions as lawful.

(Compl. ¶ 6.)

2. Jefferson Parish Republican Parish Executive Committee (“JPGOP”) is a “parish execu-

tive committee” controlled by elected members, not by the state political party, except the state

party may establish member qualifications and prescribe officers, La. Rev. Stat. 18:444, and if a

parish executive committee is not elected, the state central committee may convene qualified vot-

ers to elect one. Id. at 18:445. JPGOP is a “local committee,” i.e., “part of the official party struc-

ture[] and ... responsible for the day-to-day operation of the political party at the [local] level.” 11

C.F.R. 100.14(b). It is not a federal political committee, so not a “party committee.” 11 C.F.R.

100.5(e)(4). It intends to engage in independent federal election activity without complying with

the challenged provisions as lawful, but absent requested relief will not. (Compl. ¶ 7.)

3. Orleans Parish Republican Executive Committee (“OPGOP”) is also a parish executive

committee and local committee that intends to do independent federal election activity without

complying with challenged provisions as lawful, but absent requested relief will not. (Compl.

¶ 8.)

4. FEC is the government agency with civil enforcement authority over BCRA and the Fed-

eral Election Campaign Act of 1971(“FECA”), as amended, 52 U.S.C. 30101 et seq. (Compl. ¶ 9;

Answer ¶ 9.)

Historical Context

5. As explained in McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) (per curiam)

(three-judge court), before BCRA state party committees could allocate certain costs:

FEC permitted ... state party committees to solicit and accept donations outside of FECA’s

source and amount limitations (“nonfederal money”) .... [P]olitical committees were per-

mitted to establish ... federal accounts ... and ... nonfederal accounts[].... FEC[] ... permitted

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... party committees to pay for the nonfederal portion of their administrative costs and voter

registration and turnout programs with monies raised under relevant state laws ..., even if

those state laws ... permit[ted] contributions from corporate and labor union general trea-

sury funds.

Id. at 196-7(footnotes omitted).

“[T]he allocation between the federal and nonfederal accounts

for [administrative and generic voter drive expenses was] determined by the proportion of federal

offices to all offices on a state’s general election ballot.” Id. (citing 11 C.F.R. 106.5(d) (1991)).

(Compl. ¶ 10; Answer ¶ 10.)

6. FEC allowed allocation of the following, id. at 198 n.13:

The Commission permitted, inter alia, the following expenses to be allocated: administra-

tive expenses, which include rent, utilities, office supplies, and salaries, 11 C.F.R.

§ 106.5(a)(2)(i) (1991); the direct costs of a fundraising program or event, where federal

and nonfederal funds are collected by one committee. 11 C.F.R. § 106.5(a)(2)(ii) (1991);

and “generic voter drives,” which included voter registration, and get-out-the-vote

(“GOTV”) drives where a specific candidate was not mentioned. 11 C.F.R.

§ 106.5(a)(2)(iv) (1991).

(Compl. ¶ 11; Answer ¶ 11.)

7. “[FEC’s] rules ... mandated that ... national party committees disclose the details of their

nonfederal accounts, ... [including donors’] ‘name, mailing address, occupation or type of busi-

ness, and the date of [donation] receipt,’” but “[s]tate parties ... were exempted” and required

only to report information on their federal accounts. Id. at 198 (citations omitted). (Compl. ¶ 12;

Answer ¶ 12.)

8. In Advisory Opinion (“AO”) 1995-25 (RNC), FEC said non-express-advocacy “legislative

advocacy media advertisements that focus on national legislative activity and promote the Re-

publican Party should be considered as made in connection with both Federal and non-federal

elections.” Id. at 2. It said the cost of the issue ads could be allocated (as “administrative ex-

Federal funds are defined at 11 C.F.R. 300.2(g); nonfederal funds are defined at 11 C.F.R.

300.2(k); Levin funds are explained at 11 C.F.R. 300.31 and .32(b)-(c), but are not involved here.

Plaintiffs’ Summary-Judgment SMF

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penses” or “generic voter drive costs,” depending on content) with up to 35% from nonfederal

funds in presidential-election years and up to 40% from nonfederal funds in other years. Id.

(Compl. ¶ 13; Answer ¶ 13.)

9. Based on AO 1995-25, Republican and Democratic parties, at national and state levels,

ran such issue ads (some mentioning candidates) “with a mix of federal and nonfederal funds as

permitted by FEC allocation rules.” McConnell, 251 F. Supp. 2d at 199-200. (Compl. ¶ 14; An-

swer ¶ 14.)

10. In BCRA, Congress altered the foregoing practices by (a) defining “federal election activ-

ity” to sweep in voter mobilization, party promotion, and issue advocacy, see Compl. ¶¶ 16-27;

(b) banning state and local committees from using nonfederal funds (except “Levin funds,” not at

issue here) for federal election activity (the “Ban”), see Compl. ¶¶ 32-33; (c) requiring federal

funds for fundraising for federal election activity (the “Fundraising Restriction”), see Compl.

¶ 34; and (d) requiring reporting of federal election activity (the “Reporting Requirement”), see

Compl. ¶ 35, so federal election activity may no longer be allocated between federal and

nonfederal accounts under 11 C.F.R. 106.7(b).

(Compl. ¶ 15; Answer ¶ 15 .)

Applicable Federal Election Activity (“FEA”) Periods

11. FEC publishes federal-election-activity periods for (a) voter-registration activity (“VR”)

(120 days before regular election, 52 U.S.C. 30101(20)(A)(i)) and (b) voter-identification

(“VID”), generic-campaign activity” (“GCA”), and get-out-the-vote activity (“GOTV”) (all three

run from earliest primary filing date to the general election, 11 C.F.R. 100.24(a)(1)). (Compl.

Levin funds may be used for allocation but are restricted in fundraising and use. See 11

C.F.R. 300.31 and .33(c). (Compl. ¶ 15 n.4; Answer ¶ 14.) Plaintiffs do not use Levin funds due

to the complexity, burdens, and restrictions associated with them. (Compl. ¶ 15 n.4.) As FEC

notes, joint fundraising costs may be allocated under 11 C.F.R. 300.33. (Answer ¶ 15.)

Plaintiffs’ Summary-Judgment SMF

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¶ 28; Answer ¶ 28.)

12. FEC provided 2012 Louisiana periods at www.fec.gov/info/charts_fea_dates_2012.

shtmls thus: VID/GCA/GOTV = 12/09/11–11/06/12; VR = 11/25/11–03/24/[12] and

4/19/12–11/06/12. (Compl. ¶ 29; Answer ¶ 29.)

13. FEC provided 2014 Louisiana periods at www.fec.gov/info/charts_fea_dates_2014.

shtml thus: VID/GCA/GOTV = 08/22/14–12/06/14; VR = 04/24/14–12/06/14. (Compl. ¶ 30;

Answer ¶ 30.)

14. Louisiana federal-election-activity periods related to 2016 elections

follow:

VID/GCA/GOTV = 12/02/15–11/08/16; VR = 11/06/15–03/05/16 and 07/11/2016–11/08/16.

(Compl. ¶ 31; Answer ¶ 31.)

FEC Rulemaking and Litigation on Federal-Election-Activity Definitions

15. FEC’s litigation summary regarding its BCRA rulemaking and the Shays v. FEC cases is

available at http://fec.gov/law/litigation_CCA_S.shtml#shays_06. The summary explains the

holding from Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays-III”), as relevant here:

Definitions of GOTV and Voter Registration Activity. The court of appeals upheld the

district court’s decision to remand the definitions of “GOTV” and “voter registration activ-

ity.” The court held that the definitions impermissibly required “individualized” assistance

directed towards voters and thus continued to allow the use of soft money to influence

federal elections, contrary to Congress’ intent.

Id. That 2008 holding, rejecting FEC’s individualized-assistance approach, led to the broad defi-

nitions those two terms now employ, which include “[e]ncouraging or urging” registration and

voting “by any ... means,” 11 C.F.R. 100.24(a)(2)(i)(A) and (3)(i)(A). (Compl. ¶ 53; Answer

See www.sos.la.gov/electionsandvoting/publisheddocuments/electionscalendar2016.pdf

(“Presidential Preference Primary” election = 3/5/2016 with “[q]ualifying period begin[ning]

12/2/2015”; “Open Primary/Presidential/Congressional” election 11/8/2016). (Compl. ¶ 31 n.6;

Answer ¶ 31 n.6.)

Plaintiffs’ Summary-Judgment SMF

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¶ 53.)

16. In 2002, FEC “define[d] voter registration activity to encompass individualized contact

for the specific purpose of assisting individuals with the process of registering to vote.... The

Commission ... expressly rejected an approach whereby merely encouraging voter registration

would constitute Federal election activity.” FEC, “Prohibited and Excessive Contributions: Non-

Federal Funds or Soft Money,” 67 Fed. Reg. 49063, 49066 (July 29, 2002) (“2002 E&J ”) (em-

phasis added). FEC said it “must define GOTV in a manner that distinguishes ... [it] from ordi-

nary or usual campaigning that a party committee may conduct on behalf of its candidates.... [I]f

GOTV is defined too broadly, the effect of the regulations would be to federalize a vast percent-

age of ordinary campaign activity.” Id. Consequently, id. (emphasis in original):

the Commission adopt[ed] a definition of “GOTV activity” as “contacting registered voters

* * * to assist them in engaging in the act of voting.” This definition is focused on activity

that is ultimately directed to registered voters, even if the efforts also incidentally reach the

general public. Second, GOTV has a very particular purpose: assisting registered voters to

take any and all necessary steps to get to the polls and cast their ballots, or to vote by

absentee ballot or other means provided by law. The Commission understands this purpose

to be narrower and more specific than the broader purposes of generally increasing public

support for a candidate or decreasing public support for an opposing candidate.

(Compl. ¶ 54; Answer ¶ 54.)

17. In 2004, Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir.

2005), held that FEC did not provide adequate notice of its approach, remanding for rulemaking.

In 2006, FEC “retain[ed its] ... definitions of ‘voter registration activity’ and ‘GOTV activity,’

which exclude mere encouragement of registration and/or voting,” id. at 8928, explaining that

mere encouragement “would be overly broad.” “Definition of Federal Election Activity,” 71 Fed.

Reg. 8926, 8929 (Feb. 22, 2006) (“2006 E&J”). It reaffirmed “that these definitions will not lead

to circumvention of FECA because the regulations prohibit the use of non-Federal funds for dis-

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bursements ... for ... activities ... actually register[ing] individuals to vote.” Id. (Compl. ¶ 55; An-

swer ¶ 55.)

18. In 2008, Shays-III noted that FEC defended its individualized-assistance definitions on

two bases: (a) a need to avoid capturing brief, incidental exhortations appended to speeches or

events, which the court said could be dealt with by an exemption, and (b) providing a bright line,

which the court said was only an argument for bright lines. 528 F.3d at 932. Shays-III made no

mention of any First Amendment arguments against overbroad definitions. (Compl. ¶ 56; Answer

¶ 56.)

19. In 2010, noting that Shays-III rejected its individualized-assistance approach, FEC

adopted definitions sweeping in “encouraging or urging” registration or voting “by any ... means”

(except for brief and incidental exhortations). 2010 E&J, 75 Fed. Reg. at 55260-64. (Compl.

¶ 57; Answer ¶ 57.)

20. However, after explaining McConnell’s rationale for holding that restricting funding of

federal election activity is constitutional, 2010 E&J, 75 Fed. Reg. at 55258 (quoting McConnell

v. FEC, 540 U.S. 93, 163-66 (2003)), FEC reiterated its rationales for its earlier positions, see

¶¶ 54-55, and a rationale for its earlier positions based on McConnell:

In reaching its decision, the Court noted that BCRA regulated only “those contributions to

state and local parties that can be used to benefit Federal candidates directly” and therefore

posed the greatest threat of corruption. Id. at [167]. As such, the Court found BCRA’s

regulation of voter registration activities, which “directly assist the party’s candidates for

federal office,” and GOTV activities, from which Federal candidates “reap substantial

rewards,” to be permissible methods of countering both corruption and the appearance of

corruption. Id. []; see also id. [] (finding that voter registration activities and GOTV activi-

ties “confer substantial benefits on federal candidates” and “the funding of such activities

creates a significant risk of actual and apparent corruption,” which BCRA aims to mini-

mize).

2010 E&J, 75 Fed. Reg. at 55258. (Compl. ¶ 58; Answer ¶ 58.)

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21. FEC recounted that “its 2006 E&J [said] that its [original] regulations would not lead to

the circumvention of the Act precisely because they captured ‘the use of non-Federal funds ... for

those activities that actually register individuals to vote.’” Id. at 55259 (citation omitted).

(Compl. ¶ 59; Answer ¶ 59.)

22. The 2010 E&J said a “commentator argued that the Commission should exempt from the

definition of voter registration activity [and ‘GOTV activity’] all Internet communications, stat-

ing that such communications are made at ‘virtually no cost.’” Id. at 55261 and 55263. That com-

mentator was the Democratic National Committee (“DNC”), by counsel Rebecca H. Gordon, and

DNC’s arguments went beyond “virtually no cost.” DNC said FEC should “create an exception

... for voter registration and GOTV messages ... conveyed though the internet,” which FEC

“could accomplish ... very simply by limiting the covered communications to those that qualify

as ‘public communications’ under current regulations.” DNC Comments at 4.

DNC explained:

In its 2006 rulemaking on Internet Communications, the Commission explicitly acknowl-

edged that the unique features of the internet—in particular its accessibility, low cost, low

barrier to entry, and interactive features—merited regulatory restraint. See Internet Commu-

nications, 71 Fed. Reg. 18,589 ... (“[T]he Commission recognizes the Internet as a unique

and evolving mode of mass communication and political speech that is distinct from other

media in a manner that warrants a restrained regulatory approach.”). This position of

restraint led the Commission to ... exclude from the disclaimer requirements, the coordina-

tion rules, and other regulatory provisions most communications made over the internet.

DNC Comments at 3. Denying the exception “exacts too high a cost on political speech[,] ... con-

travenes the Commission’s stated views about internet communications, and fails to advance Con-

gress’s stated purpose ... to reduce the flow of so-called ‘soft money’ in federal elections.” Id.

(Compl. ¶ 60; Answer ¶ 60.)

23. In the cited “Internet Communications” E&J, 71 Fed. Reg. 18589 (April 12, 2006), FEC

Available at http://sers.fec.gov/fosers/showpdf.htm?docid=10065.

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justified its definition of “public communications,” which is incorporated into the generic-

campaign-activity and PASO-communication definitions, 11 C.F.R. 100.25 and 100.24(b)(3).

The public-communication definition excludes Internet communications, “except for communi-

cations placed for a fee on another person’s Web site.” 11 C.F.R. 100.26. So

a State party committee that pays to produce a video that PASOs a Federal candidate will

have to use Federal funds when the party committee pays to place the video on a Web site

operated by another person. This is ... consistent with how the party committee would be

required to pay for a communication that it distributes through television or any other

medium that is a form of “public communication.” In such circumstances, the party com-

mittee must pay the costs of producing and distributing the video entirely with Federal

funds. See 11 CFR 300.32(a)(2).

71 Fed. Reg. at 18597. Thus, state committees posting generic-campaign-activity or PASO com-

munications on their own website would not be doing federal election activity. (Compl. ¶ 61; An-

swer ¶ 61.)

24. The “Internet Communications” E&J (in 2006) also said, 71 Fed. Reg. at 18597,

one reason [FEC] ... excluded Internet activities from the ... ‘public communication’ [defi-

nition] ... was to permit State ... and local party committees to refer to their Federal candi-

dates on the committees’ own Web sites or post generic campaign messages without requir-

ing that the year-round costs of maintaining the Web site be paid entirely with Federal

funds.

This 2006 comment explained why FEC’s previous rule “excluded [all] Internet activities from

the ... ‘public communication’ [definition],” a policy it essentially followed with its revised rule

by still excluding online activity from “public communication,” “except for communications

placed for a fee on another person’s Web site.” 11 C.F.R. 100.26. But the last part of the quote

indicates FEC’s position that if Internet communications were not generally excluded from

“public communication,” then communications meeting the federal-election-activity definition

(in this case because of the “public communication” definition) on a state-committee website

would require the committee to pay the costs of the website with federal funds while those FEA

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communications are present on the website, including costs swept in by a “ripple effect,” be-

cause, as FEC explained, 71 Fed. Reg. at 18597 n.37,

the Commission is not convinced that the statute permits time/space allocation of any

“public communication” that features PASO information about a Federal candidate. The

existence of PASO would require the organizations to pay for the “public communica-

tions,” i.e., the Web site itself, entirely with Federal funds. Such a result is inconsistent with

the Act’s regulation of Federal, but not non-Federal activity. For example, such a determi-

nation could have a ripple effect on the payment of other costs. The acquisition of the

computers or the phone line (two costs that are generally allocated as administrative ex-

penses) arguably could become expenses that would be required to be paid for entirely with

Federal funds because one of the uses of the equipment would be to access or maintain a

Web site.

(Compl. ¶ 62; Answer ¶ 62.)

FEC nowhere states that a time/space allocation is permissible for any

federal-election-activity communications done online. See, e.g., 11 C.F.R. 100.1 et seq.

25. Despite these justifications, FEC did not exclude Internet communications from voter-

registration-activity and GOTV-activity definitions. The “[e]ncouraging or urging” portions of

the definitions, 11 C.F.R. 100.24(a)(2)(i)(A) and(3)(i)(A), are not limited to “public communica-

tions” and expressly include communications “by ... e-mail ... or by any other means.” (Compl.

¶ 63; Answer ¶ 63.)

26. The brief-and-incidental exceptions to the voter-registration-activity and GOTV-activity

definitions require a “brief exhortation ... incidental to a communication, activity, or event.” 11

C.F.R. 100.24(a)(2)(ii) and (3)(ii). “[T]he exception[s] operate[] identically,” 75 Fed. Reg.

55263, as follows, 75 Fed. Reg. at 55261-62 (emphasis in original):

To qualify for the exception, the exhortation to register to vote must be both brief and

incidental. Exhortations to register to vote that go on for many minutes of a speech, for

example, or that occupy a large amount of space in a mailer are not brief and will not

qualify .... Similarly, exhortations, however brief, must also be incidental to the communi-

cation, activity or event. For example, a one-line exhortation to “Register to vote!” appear-

A later definition would exclude de minimis federal election activity on a website. See Def-

inition of Federal Election Activity, 75 Fed. Reg. at 55265. (Answer ¶ 62.)

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ing at the end of a campaign flier would be incidental to the larger communication, whereas

a communication stating only “Register to Vote by October 1st!” and containing no other

text would not be incidental and, thus, would not come within the exception from the

definition of “voter registration activity.”

The exception applies to brief, incidental exhortations regardless of the forum or

medium in which they are made. The exception covers an exhortation offered in a speech

at a rally, for example, as well as one appearing in an e-mail.

Two examples ... that would be covered under the exception appear at new paragraphs

(a)(2)(ii)(A) and (a)(2)(ii)(B) of 11 CFR 100.24. The first example is a mailer praising the

public service record of a mayoral candidate and/or discussing the candidate’s campaign

platform. The mailer concludes by reminding recipients: “Don’t forget to register to vote

for [the mayoral candidate] by October 1st.” The second example involves a phone call for

a State party committee fundraising event. The call provides recipients with information

about the event, solicits donations, and concludes by reminding the listener: “Don’t forget

to register to vote.”

So emails with the topic of exhorting registration/voting will not be incidental, and extended ex-

hortations (beyond such one-liners) to register/vote in emails or on a website would not be brief.

(Compl. ¶ 64; Answer ¶ 64.)

27. Neither 11 C.F.R. 100.24 nor the 2010 E&J define “encouraging or urging.” The Notice

of Proposed Rulemaking (“NPRM”) had proposed definitions with “encouraging or assisting”

but not “urging.” FEC, “Definition of Federal Election Activity,” 74 Fed. Reg. 53674, 53680

(Oct. 20, 2009) (“2009 NPRM”). The 2010 E&J indicated that FEC used “encouraging” because

“the Shays III court suggested that the Commission’s regulations should reach ... efforts that ‘en-

courage people to vote or to register to vote.’” 75 Fed. Reg. at 55261 (emphasis in original). The

2010 E&J did not explain why “urging” was added nor how it differs from “encouraging.”

(Compl. ¶ 65; Answer ¶ 65.)

28. “Encouraging or urging” apparently both mean “exhorting” because the brief-and-

incidental-exhortation exceptions, 11 C.F.R. 100.24(a)(2)(ii) (“[e]ncouraging or urging” in VR

definition) and (3)(ii) (“brief exhortation to vote” excluded from VR definition), consistently use

“exhortation” and “exhorting” as synonyms for “encouraging or urging.” (Compl. ¶ 66. But see

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Answer ¶ 66 (“unsupported by the quoted language or citations.”)

29. At the December 16, 2009 rulemaking hearing, commenters argued against an “encourag-

ing” definition. See Transcript, http://sers.fec.gov/fosers/showpdf.htm?docid=10056. For exam-

ple, Brian Svoboda, for the Democratic Legislative Campaign Committee, argued against “en-

couraging,” Transcript at 26-29, and for a voter-mobilization definition

to capture those spheres of activity that genuinely are intended to mobilize, not simply to

persuade people to vote for a state or local candidate, because at bottom, this whole busi-

ness is about getting people to vote on Election Day, everything they do from beginning to

end, but looking at that special subset of activity that’s actually directed toward voter

mobilization.

Transcript at 22. See also id. at 30-31 (Svoboda: same persuasion-mobilization distinction).

(Compl. ¶ 67; Answer ¶ 67.)

30. Paul S. Ryan, for Campaign Legal Center, argued: “[I]t is in fact possible and even likely

that a particular communication will fall into both categories of persuasive and get-out-the-vote

type of activity. But Congress was clear that those types of communications, if they constitute

get-out-the-vote activity, they’re covered by these provisions of BCRA.” Id. at 36. He insisted the

voter-registration-activity and get-out-the-vote definitions must include “encourage.” Id. at 24.

He said “get out to vote for O’Malley” or “go vote for O’Malley” would be federal election activ-

ity, while “vote for O’Malley” would not be. Id. at 83. This was also so if “vote for O’Malley”

were accompanied by the election date because “Congress decided to cover get-out-the-vote type

communications and ... not ... straightforward express advocacy for a single candidate,” id. at 84,

though he did not dispute that “Vote for O’Malley ... [is] encouraging you to go vote,” id.

(Compl. ¶ 68; Answer ¶ 68.)

FEC Political Party Forum on Federal-Election-Activity Problems

31. On June 4, 2014, FEC “Chairman Lee Goodman and Vice Chair Ann M. Ravel ... hosted

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a public forum on the challenges faced by political parties .....” See FEC, News Release (June 4,

2014) (available at www.fec.gov/press/ press2014/news_releases/20140604release.shtml). The

audio recording is at www.fec.gov/audio/2014/20140604_FORUM.mp3 (“Audio”). (Compl.

¶ 69; Answer ¶ 69.)

32. In the forum, lawyers for, and representatives of, state and local committees explained

problems created by federal-election-activity laws and regulations, the need for changes, and how

FEC could help, but to date no related regulatory changes have resulted. (Compl. ¶ 70; Answer

¶ 70.)

33. For example, the first extended presenter at the forum was Ken Martin, Chairman of the

Minnesota Democratic Farmer Labor Party. Audio at 4:16-8:42. He testified that he had worked

in the non-political-party, independent-expenditure world before coming to work in the political-

party context and on arrival was “shocked at how over regulated state parties are.” He noted that

though political parties are good and accountable, they are increasingly unable to assist their can-

didates vis-a-vis independent-expenditure groups due to BCRA. “Candidates and state parties are

losing control over their voice,” he testified. In December 2012, Martin asked the Association of

State Democratic Chairs to establish a committee to help level the playing field and help build up

parties to be able to help their candidates. ASDC established the Committee on Campaign Fi-

nance Reform (“CCFR”) which issued “Legislative Recommendations for Campaign Finance Re-

form,”

which document was distributed at the FEC forum. The Recommendations document

was approved and its proposals are the subject of supportive resolutions by many Democratic

state parties, as part of the campaign to improve their ability to engage in federal election activ-

ity. Martin declared, “It’s my sincere belief that if we do not address the growing imbalance of

Available at http://images.politico.com/global/2014/02/14/asdc_recs_081213.pdf.

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political money flowing towards unregulated shadow organizations, we may very well see the

end of political parties at the state and local level.” Audio at 7:49. (Compl. ¶ 71; Answer ¶ 71.)

34. The next presenter was Scott Arceneaux, Executive Director of the Florida Democratic

Party, who explained that the vast majority of a state party’s efforts are nonfederal, “[y]et you’re

seeing this slow federalization of all the activities that we do, for no ... solid, good policy rea-

son.” Audio at 10:55. He added, Audio at 13:36:

[A]ll this has created what I call the federalization of state parties. We are basically becom-

ing fifty mini federal committees because the ever-expanding definition of federal election

activity is basically slowly, slowly encompassing everything we do until we are essentially,

at some point in time—a date determined with some bit of ambiguity—a federal committee.

And what that means in reality is that nonfederal candidates don’t want to work with us.

(Compl. ¶ 72; Answer ¶ 72.)

35. CCFR’s “Legislative Recommendations for Campaign Finance Reform” (“Recommen-

dations”) makes observations and recommendations, including the following:

Repeal Levin Amendment or create reasonable definitions for “Federal election activ-

ity”

Under McCain-Feingold, how state parties pay for their activities is determined, in

large part, by the extent to which such activities are classified as “Federal election activity”

under that law. After extensive hearings and careful consideration, the FEC in 2002 issued

thoughtful, practical yet rigorous regulations defining these activities. These definitions

have been challenged by so-called “reform” organizations in a series of court cases which

have forced the FEC in some cases to modify its definitions and in other cases have left the

definitions in a state of confusion and uncertainty. Under the most recent iteration of the

definition of “get-out-the-vote” almost all campaign activity is subsumed within the defini-

tion pulling most campaign activity within the definition even if no federal candidates are

referenced in the communications. The Levin Amendment is too complicated to administer

and several state parties have decided to just federalize their get-out-the-vote programs due

to the complexity of administering and complying with the Levin Amendment. In addition,

due the continual expansion of the definitions of “get-out-the-vote” as well as the additional

problems created by the concept of “federal election activity,” Congress should consider

repealing these provisions and allow party committees to undertake activities in

accordance with rules in place prior to the passage of McCain-Feingold.

Recommendations at 1-2 (underline and bold in original). Recommendations adds that “House-

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added restrictions have rendered the so-called ‘Levin amendment’ completely useless. The re-

strictions serve no discernible policy purposes and should be eliminated.” Id. at 2-3 (bold re-

moved). And Recommendations highlights problems with the 25% employee rule and mandatory

monthly reporting thus, id. at 3 (underline and bold in original):

Payment of Staff Payroll and Benefits

Under McCain-Feingold, employees who work more than 25% of their time in connec-

tion with federal elections must be paid for exclusively with federal funds. However, the

FEC has interpreted this statute to not only include federal activity but also “federal election

activities.” Therefore, merely working on generic or non-federal activity has triggered

federal payroll requirements. For example, if a state party hires employees to go door-to-

door to do a voter identification project for a state or local candidate, those employees must

be paid exclusively with federal funds. This has created a disincentive for party committees

to engage in non-federal voter id or non-federal get-out-the-vote projects, even if there are

no competitive federal races on the ballot. Congress should either repeal this provision

or clarify that it did not intend for the provision to include “federal election activi-

ties.”

Repeal mandatory monthly filing for state party committees

Under current law, state party committees must file FEC reports monthly if they spend

funds on “federal election activity.” This has imposed a huge burden on state parties. State

parties should be allowed to file quarterly; alternatively the thresholds for triggering

monthly filing should be narrowed.

(Compl. ¶ 73; Answer ¶ 73.)

Plaintiffs’ Intended Federal Election Activity (“FEA”)

36. Plaintiffs LAGOP, JPGOP, and OPGOP intended to do independent federal election ac-

tivity in 2014 without complying with challenged provisions, had it been legal to do so, and they

intend to do so in 2015 and future years, when legal to do so. Examples are provided below.

(Compl. ¶ 74.)

37. LAGOP currently complies with the Ban, Fundraising Requirement, and Reporting Re-

quirement by using all federal funds from a federal account for federal election activity. But its

ability to do desired federal election activity is burdened by the inability to allocate costs to

nonfederal funds as allowed before BCRA, and it cannot do some desired federal election activ-

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ity due to this inability. LAGOP reasonably believes that it will have sufficient funds to pay for

some or all of the examples of federal election activity described below if it may allocate them as

possible absent the challenged provisions. But it will not do some or all of the examples de-

scribed below absent requested relief. (Compl. ¶ 75.)

38. JPGOP and OPGOP do not currently do federal election activity because of the complex-

ity and burden of compliance, including creating a federal account to fund such activity, they

want to do independent federal election activity without complying with the challenged provi-

sions, and they will not do their intended activities absent requested relief. (Compl. ¶ 76.)

39. The examples described below are planned to occur in relevant federal-election-activity

periods relating to elections in 2016 and beyond and fit federal-election-activity definitions.

(Compl. ¶ 77.)

40. The examples of federal election activity Plaintiffs want to do will be independent.

(Compl. ¶ 77.) All that is required for independence of any activity or communication is compli-

ance with the applicable statutes and regulations governing independence that are in place at the

time that the activity or communication is done. See, e.g., 11 C.F.R. §§ 109.20, 109.21, 109.30,

109.37.

a. Communications Exhorting Registration (“VR”) and Voting (“GOTV”)

41. Plaintiffs want to make non-individualized communications exhorting registration and

voting during applicable federal-election-activity periods that will be VR (voter-registration ac-

tivity) and GOTV (get-out-the-vote activity) under the “encouraging or urging” standard of 11

C.F.R. 100.24(a)(2)(i)(A) and (3)(i)(A). Non-individualized communications would not have

been VR or GOTV under FEC’s 2002 regulations because they will be in substantially similar

JPGOP inadvertently engaged in online federal election activity. See infra at ¶ 76.

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form to multiple persons without “individualized contact for the specific purpose of assisting in-

dividuals with the process of registering to vote [or voting].” FEC, 2002 E&J, 67 Fed. Reg. at

49067. See supra ¶ 16 (quotes from 2002 E&J). Nine examples follow. (Compl. ¶ 84.)

42. First, when the Complaint was filed, LAGOP had on the home page of its website a

drawn outline of Louisiana, across which are the words “click here to REGISTER TO VOTE”

(linking to www.lagop.com/get-registered) and below which were the words “Get Registered.”

See www.lagop.com.

The imperative “Get Registered” was “[e]ncouraging or urging potential

voters to register to vote,” so this communication would have to be paid for with all federal funds

starting November 6, 2015. Also on the website then were Instagram images, one of which said

“Geaux Vote Today,” which referred to the last general election but would become get-out-the-

vote activity (for exhorting voting) and require all federal funds for the communication on De-

cember 2, 2015, unless taken down.

When the Complaint was filed, LAGOP had also posted on its website a nonpartisan article

merely exhorting registration and voting without promoting any political party as follows,

www.lagop.com/get-registered:

Your right to vote for public officials and representatives is valuable. It is rare in

human history. It was hard-won by America’s founders.

Before America gained independence, the colonies were ruled by Great Britain. In the

Declaration of Independence, the founders listed many grievances against British rule,

especially the lack of representation. The Declaration said King George would not enact

needed laws “unless ... people ... relinquish[ed] the right of Representation in the Legisla-

ture.” It said the British were “suspending our own Legislatures, and declaring themselves

invested with power to legislate for us in all cases whatsoever.”

The Revolutionary War rejected British rule. America established a republic where

citizens select their representatives in government. Yet astonishingly, many people don’t

The federal-election-activity definition excludes “[d]e minimis costs associated with” a

party committee, on its website, “enabling visitors to download a voter registration form ....” 11

C.F.R. 100.24(c)(7)(ii). But the exception seems not to apply to “Get Registered.” (Compl. ¶ 85

n.14.)

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As Americans who enjoy the benefits that a democratic society offers, it is our civil

duty to actively participate in government by voting. But more importantly, voting allows

citizens the opportunity to make direct decisions that better our communities and allows

us to build a free and prosperous society. Many people in the world live in places where

their voices will not be heard because they are unable to vote. So take a stand to let your

voice be heard, and help build a stronger America by registering to vote today!

The Louisiana Secretary of State’s website provides valuable information to help you

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/ElectionsCalendar2

016.pdf.

Check out those websites today, and let your voice be heard in 2016!

The article provided hyperlinks to state election materials, which do not constitute federal elec-

tion activity at any time. 11 C.F.R. 100.25(c)(7).

And this article was not federal election activ-

ity when the Complaint was filed. But it would become voter-registration activity on November

6, 2015 and get-out-the-vote activity on December 2, 2015, if it remained on the website.

LAGOP asserted it would take it down absent requested relief. (Compl. ¶ 85.)

43. On November 20, 2015, Plaintiffs filed the Plaintiffs’ Notice Regarding Changed Facts

(Doc. 22), notifying the Court of verified changed facts regarding the foregoing as follows:

Plaintiffs notify the court of the following changed facts regarding

(A) the removal of voter-registration activity (“VR”) and get-out-the-vote activity

(“GOTV”) from LAGOP’s website .... This notice is verified.

A. LAGOP Removed VR and GOTV Items from Its Website.

1. Plaintiff LAGOP recently removed VR and GOTV from its website, see

www.lagop.com, because of the impending federal-election-activity periods for VR and

GOTV and because it does not want to fund such non-individualized communications

exhorting registration and voting with federal funds, see Compl. ¶¶ 74, 84-85.

2. The initial dates for those periods are November 6, 2015, for VR, and December 2,

The federal-election-activity definition excludes “[d]e minimis costs associated with” a

party committee providing, on its website, hyperlinks to an election-board’s site, downloadable

registration and absentee-ballot forms, and voting dates, hours, and locations. Id.

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2015, for GOTV. Compare Compl. (Doc. 1) ¶ 31 (periods) with Answer (Doc. 19) ¶ 31

(admit).

3. LAGOP currently uses federal funds to pay for its website costs in federal-election

years, such as 2016, but uses nonfederal funds to pay for its website costs in non-federal-

election years, such as 2015.

4. In ¶ 85 of the Complaint, LAGOP noted that at www.lagop.com the words “Get

Registered” are in the imperative and so exhort VR. Those words have now been changed

to “To Register.”

5. In ¶ 85 of the Complaint, LAGOP noted that the website included Instagram images

such as “Geaux Vote Today,” which is GOTV. That and similar images have been removed

from www.lagop.com.

6. In ¶ 85 of the Complaint, LAGOP noted that at www.lagop.com/get-registered the

following nonpartisan article appeared:

Your right to vote for public officials and representatives is valuable. It is rare

in human history. It was hard-won by America’s founders.

Before America gained independence, the colonies were ruled by Great Brit-

ain. In the Declaration of Independence, the founders listed many grievances

against British rule, especially the lack of representation. The Declaration said

King George would not enact needed laws “unless ... people ... relinquish[ed] the

right of Representation in the Legislature.” It said the British were “suspending

our own Legislatures, and declaring themselves invested with power to legislate

for us in all cases whatsoever.”

The Revolutionary War rejected British rule. America established a republic

where citizens select their representatives in government. Yet astonishingly, many

people don’t register and vote.

As Americans who enjoy the benefits that a democratic society offers, it is

our civil duty to actively participate in government by voting. But more impor-

tantly, voting allows citizens the opportunity to make direct decisions that better

our communities and allows us to build a free and prosperous society. Many

people in the world live in places where their voices will not be heard because

they are unable to vote. So take a stand to let your voice be heard, and help build

a stronger America by registering to vote today!

The Louisiana Secretary of State’s website provides valuable information to

help you register and vote. For registration information and to register online, see

• w w w . s o s . l a . g o v / E l e c t i o n s A n d V o t i n g / R e g i s t e r T o V o t e /

Pages/default.aspx and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistra-

tion.aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/Elections

Calendar2016.pdf.

Check out those websites today, and let your voice be heard in 2016!

That nonpartisan article has been stripped of all exhortation to register and vote, leaving

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only the following, see www.lagop.com/get-registered:

The Louisiana Secretary of State’s website provides valuable information to

help you register and vote. For registration information and to register online, see

• www.sos.la.gov/ElectionsAndVoting/RegisterToVote/Pages/default.aspx

and

• www.sos.la.gov/ElectionsAndVoting/Pages/OnlineVoterRegistration.

aspx.

For voting information, see

• www.sos.la.gov/ElectionsAndVoting/Vote/Pages/default.aspx.

The calendar of elections and deadlines for registration and voting by mail, see

• www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/Elec-

tionsCalendar2016.pdf.

(Doc. 22 at 1-3.)

44. Second, LAGOP wants to email the same nonpartisan article in the paragraph 42 to po-

tential voters, with the same election-information links as on the website (those excluded from

“federal election activity” if done on its website, 11 C.F.R. 100.24(c)(7)), if it may do so without

complying with challenged provisions. Such an email will be VR beginning November 6, 2015,

and GOTV beginning December 2, 2015. (Compl. ¶ 86.)

45. Third, JPGOP and OPGOP want to email a nonpartisan article substantially similar to

the nonpartisan article described in ¶ 85, with links of the sort excluded from “federal election

activity” if done on a party committee’s website, 11 C.F.R. 100.24(c)(7), if they may do so with-

out complying with challenged provisions. Such an email will be VR beginning November 6,

2015, and GOTV beginning December 2, 2015. (Compl. ¶ 87.)

46. Fourth, LAGOP wants to mail communications exhorting potential voters to get out and

vote Republican, without promoting, attacking, supporting, or opposing (PASOing) any clearly

identified federal candidate, if it may do so without complying with challenged provisions. Such

mail will be GOTV starting December 2, 2015. If LAGOP does a “mass mailing,” 11 C.F.R.

100.27 (over 500 “substantially similar” pieces in 30 day), the mailings will be a “public commu-

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nication,” 11 C.F.R. 100.26, and so also “generic campaign activity” (GCA) for promoting a po-

litical party, 11 C.F.R. 100.25, starting December 2, 2015. (Compl. ¶ 88.)

47. Fifth, LAGOP wants to post a recording of the following script on its website, then

broadcast it as a radio ad, if it may do so without complying with challenged provisions:

DEMOCRAT OUTREACH

Republican Party of Louisiana

:60 Commercial

Back a couple decades ago, the Republican Party didn’t much exist in Louisiana.

In fact, until Dave Treen became Governor in 1980, I can’t think of one elected repub-

lican.

But the democrat party in Louisiana used to be a lot different than it is today.

Back then we could expect certain things from any Louisiana politician—defending

our oil and gas industry, fighting for a strong military and protecting traditional marriage

and the life of the unborn.

The democrats even used to give a damn about a balanced budget and keeping taxes

as low as possible.

But let’s face it, the days of the John Breaux democrat are gone.

The National Democrat Party has moved so far to the left these days, its like they

forgot what it means to be an American.

Supporting gay marriage, and abortion—trying to tax and spend their way outta this

recession.

You may be registered a democrat ... but if you’re like me, you probably been voting

more often for Republicans than democrats over the last 10 years.

I didn’t even vote for Landrieu this last time. She had just gone too far with the liberals

and I had had it.

That’s why I switched my party registration to the Republican Party. And I don’t feel

like I left the Democrat Party. No sir, I feel like the Democrat Party left me.

On LAGOP’s website the recording will be VR starting November 6, 2015. The recording pro-

motes a political party, but the recording cannot be GCA (generic campaign activity, 11 C.F.R.

100.25) while on LAGOP’s website because it would not be a public communication, 11 C.F.R.

100.26. If broadcast, it will be a public communication and so GCA starting December 2, 2015.

(Compl. ¶ 89.)

48. Sixth, LAGOP wants to post a recording of the following script on its website, then

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broadcast it as a radio ad, if it may do so without complying with challenged provisions:

VOTER DRIVE FOR PRESIDENTIAL PRIMARY

Republican Party of Louisiana

:60 Script

As you already know, the election for President is this year.

This election is historic. Washington needs new Conservative leadership; another

Democrat president would just be more of the same.

And it’s important that Republicans pick a strong candidate who can defeat the Demo-

crat candidate.

But if you’re not currently registered as a Republican, you won’t get to participate in

the March 1st Louisiana presidential primary to help pick the Republican nominee.

That’s why the Republican Party of Louisiana is launching the greatest voter registra-

tion drive in Louisiana history.

On the weekend leading up to “President’s Day” (Feb 13-15), the LAGOP will be

dispatching to 100 locations throughout the state, creating an easy opportunity for conserva-

tive Independents and Democrats everywhere to conveniently switch their party Identifica-

tion

From Grand Isle, up to Vivian, over to Bastrop and down to Lake Calcasieu - and

everywhere in between...Representatives will be set up in a location near YOU.

Go check out SWITCH-G.O.P.-DOT-COM and just type in your zip code and find out

the registration location closest to you.

This year, don’t let the Republican nominee for president be chosen for you. Get

involved. Let your voice be heard.

That’s SWITCH-G.O.P.-DOT-COM.

On LAGOP’s website the recording will become VR starting November 6, 2015. The recording

also promotes a political party, but cannot be GCA on LAGOP’s own website because it would

not be a public communication. If broadcast, the recording would become a public communica-

tion and GCA starting December 2, 2015. (Compl. ¶ 90.)

49. Seventh, LAGOP wants to mail communications to conservative Democrats and inde-

pendents exhorting them to register as Republicans, enclosing instructions and forms for switch-

ing, if it may do so without complying with challenged provisions, This will be followed up with

phone calls for the same purpose. This will also be followed up with a door-to-door campaign for

the same purpose, if resources permit. Such mail will be VR starting November 6, 2015. If

LAGOP does a mass mailing, 11 C.F.R. 100.27, the mailings will be a public communication, 11

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C.F.R. 100.26, and so GCA, 11 C.F.R. 100.25, starting December 2, 2015. (Compl. ¶ 91.)

50. Eighth, LAGOP wants to mail communications exhorting individuals to register as Re-

publicans, targeted to new state residents identified as Republicans in their former state of resi-

dence and high school and college students eligible to register, and providing instructions and

forms for registering, if it may do so without complying with challenged provisions. Such mail

will be VR starting November 6, 2015. If LAGOP does a mass mailing, 11 C.F.R. 100.27, it will

be a public communication, 11 C.F.R. 100.26, and so GCA, 11 C.F.R. 100.25, starting December

2, 2015. (Compl. ¶ 92.)

51. Ninth, Louisiana has a program for those 65 or older, or with a disability, to vote absen-

tee and automatically receive absentee ballots. See www.sos.la.gov/ElectionsAndVot-

ing/Pages/DisabledElderlyCitizens.aspx. LAGOP wants to mail communications exhorting Re-

publicans and conservative voters fitting the criteria to sign up for this program, if it may do so

without complying with challenged provisions. Such mail will be GOTV starting December 2,

2015. If LAGOP does a mass mailing, 11 C.F.R. 100.27, it will be a public communication, 11

C.F.R. 100.26, and so also GCA, 11 C.F.R. 100.25, starting December 2, 2015. (Compl. ¶ 93.)

b. Voter-Identification (“VID”) Communications

52. LAGOP wants to make communications that will be VID (voter identification), 11

C.F.R. 100.24(a)(4), because they will be designed to “acquire[] information about potential vot-

ers,” including “verifying or adding information about the voters’ likelihood of voting in an up-

coming election or their likelihood of voting for specific candidates,” id., if it may do so without

complying with challenged provisions. (Compl. ¶ 94.)

53. For example, LAGOP wants to communicate with potential voters asking them to pro-

vide information about their generic identification (conservative, liberal, libertarian, etc.), their

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likelihood of voting in coming elections, and their likelihood of voting for certain candidates.

These communications will include non-individualized mail requests for such information, i.e.,

multiple pieces with substantially similar language but variation in nonmaterial details, such as

recipient name and address. (Communications need not be “public communications” to be VID.)

(Compl. ¶ 95.)

54. LAGOP plans, in the fall of 2015, to use nonfederal funds to engage in VID related to

state legislative and gubernatorial candidates, which in itself would not be federal election activ-

ity. LAGOP wants to use that VID information in 2016. But if LAGOP uses that VID informa-

tion “in a subsequent election in which a Federal candidate appears on the ballot,” the 2015 VID

would retroactively become federal election activity. See 11 C.F.R. 100.24(a)(4) and (c)(5).

LAGOP must either sideline the 2015 VID information for 2016 (when federal candidates will be

on the ballot) or comply with federal-election-activity requirements for its 2015 VID. LAGOP

asserts that there is no constitutional justification for foreclosing its use of 2015 VID in 2016.

(Compl. ¶ 96.)

c. Generic-Campaign-Activity (“GCA”) Communications

55. LAGOP wants to make public communications that will be GCA, i.e., “public commu-

nication[s] ... promot[ing] ... a political party and ... not promot[ing] or oppos[ing] a clearly iden-

tified ... candidate,” 11 C.F.R. 100.25, if it may do so without complying with challenged provi-

sions. Examples follow. (Compl. ¶ 97.)

56. LAGOP wants to make audio recordings explaining what it stands for, to be posted on

LAGOP’s website, where they will not be GCA because not public communications, 11 C.F.R.

100.26. But LAGOP also wants, if it may do so without complying with challenged provisions,

to air radio ads from these recordings during coming federal-election-activity periods, the next

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starting December 2, 2015, when they will be public communications and so GCA. An example

of such ads is “Democrat Outreach,” supra ¶ 89, which fits both VR and GCA definitions.

(Compl. ¶ 98.)

57. Another example of a recording to be placed online, then broadcast in 2016, follows:

AFRICAN-AMERICAN OUTREACH

Republican Party of Louisiana

:60 Script

February is Black History Month.

It is a time to honor those who have fought to secure freedom and prosperity for our

people.

A great distinction must be attributed to the Republican Party, which was FOUNDED in

1854 with one simple creed: that “Slavery is a violation of the rights of man.”

You see, the movement to end slavery and the creation of the Republican Party were one

and the same.

Abolitionist leaders like Harriet Tubman and Sojourner Truth were committed Republi-

cans. Frederick Douglass was one of the party’s early champions.

The first Republican President was Abraham Lincoln—author of the Emancipation

Proclamation.

Republicans voted unanimously for the 13th Amendment, which abolished slavery.

The Republican Party has never been the party of white Americans. Or Black Americans.

It is the party for all Americans ... promoting freedom, justice and equal opportunity for all.

FEMALE VO: This moment in black history has been brought to you by the Republican

Party of Louisiana.

(Compl. ¶ 99.)

58. Another example of a recording to be placed online, then broadcast in 2016, follows:

YOUTH OUTREACH SCRIPT - “The R Word”

Republican Party of Louisiana

:60 Script

In 2008, I eagerly voted for Barack Obama. I was 19 and it was my first time to ever

vote. I liked his message of “Hope & Change” and he seemed a lot different than George

Bush.

And even though I felt a little let down by the first 4 years, I hesitantly voted for him

again in 2012.

But now that I’m older, I’ve really started to learn a little more about the two parties.

I realize now that democrats like Barack Obama want to solve every problem by just creat-

ing some new government agency.

Y’know ... because when I think of “cool,” I think of “bureaucracy.”

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Also, the economy still seems really bad. Tons of my friends are having trouble finding

real jobs and a lot of them still live at home.

Obama also promised peace throughout the world, but I realize now that I was a little

naive to believe him. The world is a bigger mess than I can ever remember.

The democrats always talk about “freedom,” but ironically it’s really the Republicans

who are the ones whose policies really create liberty.

The democrats are always screaming for more government to fix everything, but the

Republicans are the only ones ever talking about “less government.”

That includes Less Taxes—so that people who own businesses have more money to

hire people. That makes sense to me now.

I don’t know why I ever associated more government, higher taxes and more bureau-

cracy with the word “cool.”

So this election, I’m keeping an open mind. And I’m not ready to call myself the

“R-word” ... but I gotta admit, when I listen to the debates ... I find myself identifying more

with the R-candidates than the Democrats—who just sound like more “hope & change.”

(Compl. ¶ 100.)

d. PASO Communications

59. LAGOP wants to make PASO communications (“public communications” that will be

deemed to promote, attack, support, or oppose a federal candidate, 11 C.F.R. 100.24(b)(3)), with-

out express advocacy, when legal to do so without complying with challenged provisions. Exam-

ples follow. (Compl. ¶ 101.)

60. LAGOP wanted in 2014 to make public communications that would have criticized U.S.

Senator Mary Landrieu, then a federal candidate, for her support of government policies, such as

Obamacare, without expressly advocating her defeat. (Compl. ¶ 102.)

61. LAGOP wants to put on its website, then broadcast, in early 2016, “Voter Drive for Pres-

idential Primary,” see ¶ 48, but with the first three paragraphs edited to read thus:

As you already know, the election for President is this year.

This election is historic. Washington needs new Conservative leadership; another

Democrat president Hillary Clinton would just be more of the same.

And it’s important that Republicans pick a strong candidate who can defeat the Demo-

crat candidate Clinton Machine....

On LAGOP’s website, this would be VR starting November 6, 2015, but it would not be a PASO

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communication because it would not a public communication. If broadcast, it would become a

public communication and a PASO communication. (Compl. ¶ 103.)

62. LAGOP wants to put on its website, then broadcast, in 2015 and/or 2016, “Youth Out-

reach Script,” see ¶ 58, but edited with the last paragraph thus:

So this election, I’m keeping an open mind. And I’m not ready to call myself the “R-word”

... but I gotta admit, when I listen to the debates ... I find myself identifying more with the

R-candidates than the Democrats Hillary—who just sounds like more “hope & change.”

On the website, this would not be a public communication, so neither GCA nor PASO. If broad-

cast, it might be deemed PASO, making it not GCA. The equation of “Hillary” to “more ‘hope &

change’” is descriptive, with hearers viewing her favorably or unfavorably depending on their

opinion of “hope & change.” FEC would likely deem this a PASO communication. (Compl.

¶ 104.)

63. LAGOP wants to post on its website, then broadcast on radio, in 2015 and/or 2016,

“Celebrating Jindal,” following this script:

CELEBRATING JINDAL

Repubican Party of Louisiana

:30 Commercial

In 2008, Louisiana’s state government was out of control, having tripled in size in just

12 years. Then came Bobby Jindal.

And since becoming governor, Jindal has cut the state budget by more than 26%

Louisiana now has 30,000 fewer public employees and our reputation across the country

has never been better.

Governor Jindal was one of the first governors in the United States to create a School

Choice program to help children escape failing schools.

Let’s face the facts. Bobby Jindal has been the nation’s finest example of a Republican

leader, refusing to compromise on all of the major conservative issues: taxes, spending,

abortion, guns, school choice, religious liberty, you name it.

As his tenure ends here, Louisiana’s loss is America’s gain, as Governor Jindal travels

across America spreading his message of freedom and traditional values.

Bobby Jindal. Proven leadership for America.

On LAGOP’s website, this would not be a public communication, so it could not be a PASO

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communication. When broadcast, the support for a clearly identified federal candidate would

make this a PASO communication. (Compl. ¶ 105.)

64. On November 20, 2015, Plaintiffs filed the Plaintiffs’ Notice Regarding Changed Facts

(Doc. 22), notifying the Court of verified changed facts regarding the foregoing as follows:

Plaintiffs notify the court of the following changed facts regarding ...

(B) the suspension of Gov. Bobby Jindal’s presidential campaign. This no-

tice is verified....

B. Gov. Bobby Jindal Suspended His Presidential Campaign.

7. In ¶ 105 of the Complaint, LAGOP provided the script of a commercial

titled “Celebrating Jindal,” which it wants, inter alia, to broadcast on radio in 2015

and/or 2016. Because Governor Jindal is a federal presidential candidate, the ad

would constitute federal election activity (as a public communication that pro-

motes, attacks, supports, or opposes (“PASOs”) a federal candidate.

8. On November 17, 2015, Governor Jindal suspended his campaign for

President. See http://www.foxnews.com/politics/2015/11/17/bobby-jindal-sus-

pends-2016-presidential-campaign.html (reporting on-air announcement). Though

he technically remains a federal candidate with an open candidate committee, see

www.fec.gov/fecviewer/CandidateCommitteeDetail.do?candidateCommit-

teeId=C00580159&tabIndex=1 (Jindal for President filings with FEC), Governor

Jindal is not actively campaigning and is highly unlikely to become President in

2016.

(Doc. 22 at 1, 3.)

e. Employee Services

65. LAGOP wants, when legal without complying with challenged provisions, to make fed-

eral/nonfederal allocation of “[s]alaries, wages, and fringe benefits paid for employees who

spend more than 25% of their compensated time in a given month on [independent] Federal elec-

tion activities or on [independent] activities in connection with a Federal election,” 11 C.F.R.

106.7(d)(1)(i)-(ii), as allowed for spending 25% or less on such activities, 11 C.F.R. 106.7(1)(d).

(Compl. ¶ 106.)

f. Independent Federal-Election-Activity Funding

66. In paying for intended independent federal election activities, Plaintiffs want to use

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nonfederal funds, on hand or to be raised, compliant with state law and applicable federal law,

other than challenged provisions, including:

• BCRA’s ban on nonfederal funds for national-party committees, 52 U.S.C. 30125(a),

which bans them and their officers from directing, transferring, etc. such funds to all;

• BCRA’s ban on federal candidates or officeholders from soliciting nonfederal funds for,

or directing them to, anyone “in connection with an election for Federal office, includ-

ing funds for any Federal election activity, unless the funds are subject to the limita-

tions, prohibitions, and reporting requirements of [FECA],” 52 U.S.C. 30125(e)(1);

• BCRA’s ban on state and local candidates and officeholders “spending any funds for a

[PASO] communication” with nonfederal funds.” 52 U.S.C. 30125(f)(1);

• FECA’s ban on any contributions by national banks and congressionally authorized cor-

porations “in connection with any election,” 52 U.S.C. 30118(a); 11 C.F.R. 114.2(a);

• FECA’s ban on federal government contractors making “contribution[s] to any po-

litical party, committee, or ... or any political purpose or use.” 52 U.S.C. 30119(a);

and

• FECA’s ban on contributions or donations from foreign nationals “in connection

with a Federal, State, or local election,” 52 U.S.C. 30121; accord 11 C.F.R.

110.20(b)-(c).

(Compl. ¶ 107.)

67. Federal funds were not, and will not be, used to raise nonfederal funds for intended ac-

tivities, but the nonfederal funds used were (and will be) compliant with state law and non-chal-

lenged, applicable provisions of federal law as set out in the preceding paragraph. (Compl.

¶ 108.)

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68. In Count II, LAGOP challenges the Ban and Fundraising Requirement as applied to inde-

pendent communications from an independent-communications-only account (“ICA”). This ICA

would receive only funds (a) from individuals, (b) compliant with state law and the federal re-

strictions in ¶ 107, and (c) either (i) transferred from LAGOP (under reasonable accounting

methods assuring that subparagraph (b) is met) or (ii) fundraised in compliance with provisions

governing such fundraising when LAGOP is able to operate an ICA for such independent com-

munications. The ICA’s receipts would be limited to Louisiana’s contribution limit, currently

$100,000 over a 4-calendar-year period (which LAGOP and its ICA must share). (Compl. ¶ 109.)

69. LAGOP wants to make disbursements of over $5,000 per calendar year for federal elec-

tion activity in 2015 and 2016, which would require it to report receipts and disbursements for

federal election activity, but LAGOP wants to report its nonfederal funds used for such activity

as it reports other nonfederal funds absent BCRA’s Reporting Requirement (with the exception

of the alternative, ICA, as-applied challenge in Count II, which would comply with the Reporting

Requirement). The local-committee Plaintiffs want to spend under $5,000 in 2015 and 2016 on

federal election activity, so they would not be subject to the Reporting Requirement. (Compl.

¶ 110.)

70. In 2014, LAGOP wanted to use approximately $100,000 in nonfederal funds for federal

election activity, but could not because it did not want to do so under the challenged provisions.

(Compl. ¶ 111.)

General

71. None of the federal election activities that Plaintiffs want to do herein would otherwise

qualify as “contributions,” or “expenditures,” or “exempt activities” and so would not trigger

political-committee status for the local-committee Plaintiffs. (Compl. ¶ 112.)

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72. Plaintiffs seek requested relief as soon as possible, given that PASO communications

become such immediately; voter-registration activity becomes federal election activity starting

November 6, 2015; and voter-identification, voter-registration activity, and get-out-the-vote ac-

tivity become such starting December 2, 2015. Absent requested relief, Plaintiffs are chilled from

exercising First Amendment rights. (Compl. ¶ 113.)

73. In the future, Plaintiffs intend federal election activities materially similar to those they

verify plans to do herein, as legal to do so. Given recurring elections, the time required to resolve

such litigation, and the ongoing restrictions, it is likely that situations similar to those described

here will recur without opportunity for full litigation. So if this litigation is not concluded before

federal-election-activity periods related to 2016 elections end, this case will not be moot because

it will be capable of repetition yet evading review. See, e.g., FEC v. Wisconsin Right to Life, 551

U.S. 449, 461-63 (2007) (“WRTL-II”) (Roberts, C.J., joined by Alito, J.) (stating the holding,

Marks v. United States, 430 U.S. 188, 193 (1977)). (Compl. ¶ 114.)

74. Plaintiffs face a credible threat of civil enforcement and prosecution if they proceed with

planned activities without complying with challenged provisions, absent requested relief.

(Compl. ¶ 115.)

75. Absent requested relief, Plaintiffs will be deprived of their First Amendment rights and

suffer irreparable harm. There is no adequate remedy at law. (Compl. ¶ 116.)

76. In JPGOP’s December 20, 2015 response to FEC’s Interrogatory 13 (“State in dollars the

total amount of funds YOU have spent on FEA singe January 1, 2013”), JPGOP explained that it

had just discovered that it had inadvertently engaged in VR and GOTV in the following verified

statement, which Plaintiffs reiterate here both as to an Interrogatory thus answered and for the

truth of the following verified facts:

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Plaintiff states it has just discovered that it has spent something on FEA, though it is at a

loss as to how to calculate its value (and thus to keep any record of an expenditure for it).

The activity involved some minor voter-registration activity (“VR”) and get-out-the-vote

activity (“GOTV”) on its website and on Facebook. Plaintiff did not realize until December

18, 2015 that this type of VR and GOTV, done online, could be FEA, and it immediately

altered some material and took down other material so as not to be FEA, or to possibly be

deemed FEA under the broad definition of VR and GOTV as mere exhortation (including

“encouraging or urging”) to register or vote. (Of course, most online activity is excluded

from FEA definitions.) But since the material had been up online since the start of the

current FEA period for VR (11/6/2015) and GOTV (12/2/2015), it was (or some of it may

have been) FEA for that brief time. The activity was as follows.

First, under a “Links” tab, Plaintiff had a link titled “Register to Vote Republican

Today,” with the link leading to the Secretary of State’s website allowing for online regis-

tration. Of courses there is an exception to FEA for mere links to such governmental

websites, but the invitation not just to register but to register as a Republican seems likely

to take the link title out of that exception, so “Republican” was removed and the title now

reads “Register to Vote Today.” Now whether the use of imperative language, instead of

saying something like “To Register to Vote Today,” takes the current title out of the excep-

tion is a question on which the FEC is welcome to provide guidance in its briefing. For

now, Plaintiff has the current title.

Second, Plaintiff has an “Endorsed Candidate” tab that leads to a list of endorsed

candidates, which lists endorsed state candidates, and until it was taken down, had a section

simply listing federal candidates (without endorsements as to any particular one). Though

the list of federal candidates does not exhort people to register or expressly exhort people

to vote for one of these Republican federal candidates, Plaintiff has taken down the list of

federal candidates just to be certain it isn’t inadvertently doing FEA by indirectly exhorting

people to vote for these Republican candidates by listing them on the endorsed-candidates

page.

Third, Plaintiff has a “Press Release” tab that links to press releases that announced

endorsements of both state and federal candidates in 2014 and urged voters to vote for

them, so it exhorted people to vote when it was first posted and, because it was still on the

website in the current FEA period, it is an exhortation to vote in a current FEA period. This

problem of old material remaining on websites into FEA periods arising later is a dangerous

and burdensome trap for all those burdened by challenged FEA provisions, because it

requires one to search online postings to assure that VR and GOTV is purged before each

new FEA period engages. Those press releases have all been removed (or will be shortly).

Fourth, on its Facebook page, Plaintiff had two posts that exhorted voting. One was

posted “November 9” and had a graphic saying “Vote Early” with text with a heading of

“Early Voting” and text providing early voting dates, “Nov 9 - Nov. 14,” with location

information. The other was posted “November 18” and said, “Please exercise your precious

right to vote on Saturday, November 21!” When posted, Plaintiff believes neither was in

an FEA period for GOTV, but they remained online into the current FEA period for GOTV

and each exhorts voting. So Plaintiff believes it has fallen into the trap for online material

not deleted before a new FEA period engages. But how does one state a dollar value for this

activity? Plaintiff did pay Facebook to “boost” the message to “[p]lease exercise your

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precious right to vote,” so the message would appear to certain Facebook users, but that

was done before the current FEA period for GOTV engaged on December 2, 2015, so

neither that expense nor any resulting Facebook messages count as GOTV expenses for the

current messages left online. There is no way to break out the value of posting and main-

taining these online messages, especially since, as FEC well knows, FEC commissioners

have stated that valuing material on a website may not be subject to some sort of valuation

based on a time/space allocation because a “ripple effect” might require including the costs

of computers, online access, etc. (Doc. 1, ¶ 62 (citation omitted).).

JPGOP Discovery Response at 22-25 (Exhibit 1).

Brennan Center Publication

77. A prominent campaign-finance-reform group recently called for rethinking campaign-

finance regulation to empower political parties in view of their vital role and declining power.

See Brennan Center for Justice, Stronger Parties, Stronger Democracy: Rethinking Reform

(2015).

The Center calls for “reform ... to relax some of BCRA’s federalization of state and lo-

cal parties.” Id. at 15. And it recommends higher contribution limits “for specific party activities

that enhance grassroots participation, such as voter registration and GOTV.” Id. at 16.

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., Bar #CO 0041

[email protected]

Richard E. Coleson*

[email protected]

Corrine L. Purvis,*

[email protected]

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Admitted Pro Hac Vice

See https://www.brennancenter.org/publication/stronger-parties-stronger-democracy-

rethinking-reforming#.Vfshsx74b-s.twitter (available as PDF download).

Plaintiffs’ Summary-Judgment SMF

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 86 of 87

Certificate of Service

I certify that on February 11, 2016, I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system, which will notify:

Charles Kitcher, [email protected]ov

Gregory John Mueller, [email protected]ov

Harry Jacobs Summers, [email protected]

Kevin Deeley, kdeeley@fec.gov

Seth E. Nesin, [email protected]ov

Counsel for Defendant

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

202/694-1650.

/s/ James Bopp, Jr.

James Bopp, Jr., DC Bar #CO 0041

Case 1:15-cv-01241-CRC-SS-TSC Document 33 Filed 02/11/16 Page 87 of 87