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No. 09-1287

 

In the Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOTION OF THE FEDERAL ELECTION COMMISSION
TO DISMISS OR AFFIRM

NEAL KUMAR KATYAL
Acting Solicitor General
Counsel of Record
MALCOLM L. STEWART
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

THOMASENIA P. DUNCAN
General Counsel
DAVID KOLKER
Associate General Counsel
KEVIN DEELEY
Assistant General Counsel
ADAV NOTI
Attorney
Federal Election Commission
Washington, D.C. 20463

QUESTION PRESENTED

Whether the three-judge district court correctly held that the "soft money" provisions of Section 101 of the Bipartisan Campaign Reform Act of 2002, 116 Stat. 82, are constitutional as applied to the Republican National Committee, its Chairman, and its state and local affili ates.

 

In the Supreme Court of the United States

No. 09-1287

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOTION OF THE FEDERAL ELECTION COMMISSION
TO DISMISS OR AFFIRM

 

OPINION BELOW

The opinion of the district court (J.S. App. 1a-25a) is not yet reported, but is available at 2010 WL 1140721.

JURISDICTION

The judgment of the three-judge district court (J.S. App. 26a-27a) was entered on March 26, 2010. A notice of appeal was filed on April 2, 2010 (J.S. App. 28a-29a), and the jurisdictional statement was filed on April 23, 2010. The jurisdiction of this Court is invoked under Section 403(a)(3) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 114.

STATEMENT

For more than 30 years, Congress has sought to re duce the "opportunities for abuse inherent in a regime of large individual financial contributions," Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam), by limiting the size of contributions that may be made to candidates and political party committees. Political donations that com ply with the source-and-amount limitations imposed by the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., are known as "hard money" or "fed eral funds." Other political donations are known as "soft money" or "nonfederal funds."

Under BCRA Section 101, all contributions to na tional political parties must be made with hard money, and state and local political parties generally must use hard money to finance any "Federal election activity" they may conduct. See 2 U.S.C. 441i(a) and (b); see also 2 U.S.C. 431(20) (definition of "Federal election activ ity"). In McConnell v. FEC, 540 U.S. 93 (2003), this Court upheld those requirements against facial constitu tional challenges. The instant appeal challenges the constitutionality of BCRA's soft-money provisions as applied to appellants.

1. The Federal Election Commission (FEC or Com mission) is vested with statutory authority over the ad ministration, interpretation, and civil enforcement of FECA and other federal campaign-finance statutes. The Commission is empowered to "formulate policy" with respect to FECA, 2 U.S.C. 437c(b)(1); "to make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [FECA]," 2 U.S.C. 437d(a)(8), 438(a)(8); see 2 U.S.C. 438(d); to issue written advisory opinions concerning the application of FECA and Com mission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f; and to civilly en force FECA, 2 U.S.C. 437g (2006 & Supp. II 2008).

2. a. Since 1907, Congress has prohibited corpora tions from making a "money contribution" in connection with any federal election. Act of Jan. 26, 1907, ch. 420, 34 Stat. 864-865. Congress subsequently extended the contribution prohibition to encompass labor unions, as part of its continuing effort to address "the 'political potentialities of wealth' and their 'untoward conse quences for the democratic process.'" McConnell, 540 U.S. at 116 (quoting United States v. International Un ion UAW, 352 U.S. 567, 577-578 (1957)); see id. at 116- 117. These provisions "did not deter unseemly fundrais ing and campaign practices. Evidence of those practices persuaded Congress to enact the [FECA] Amendments of 1974." Id. at 118.

The 1974 Amendments, inter alia, limited each indi vidual to contributing $1000 per election per candidate and an aggregate total of $25,000 each year. See Buck ley, 424 U.S. at 7. This Court in Buckley upheld those limits as constitutional. See id. at 12-38. Specific limits on individual contributions to national parties and to other political committees were added to FECA shortly after the decision in Buckley. Federal Election Cam paign Act Amendments of 1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 486.

b. FECA's contribution limits applied to donations made for the purpose of influencing any federal election. "Donations made solely for the purpose of influencing state or local elections," by contrast, were "unaffected by FECA's requirements and prohibitions." McConnell, 540 U.S. at 122. The statutory scheme did not specifi cally address the proper treatment of donations to enti ties, such as national political parties, that engage in both federal and nonfederal political activity. From 1977 to 1995, the Commission promulgated a series of regulations permitting the national political parties and their state affiliates to "fund mixed-purpose activities- including get-out-the-vote [GOTV] drives and generic party advertising-in part with soft money." Id. at 123; see McConnell v. FEC, 251 F. Supp. 2d 176, 196-199 (D.D.C.) (per curiam) (discussing Commission's regula tions), aff'd in part and rev'd in part, 540 U.S. 93 (2003).

Pursuant to those "allocation" regulations, political parties accumulated and transferred hundreds of mil lions of soft-money dollars from their national organiza tions to their state and local affiliates, which could spend the parties' funds on the same mixed-purpose activities but subject to more favorable allocation rules. See McConnell, 540 U.S. at 124, 131. In addition, the na tional parties themselves spent hundreds of millions of soft-money dollars-including $498 million during the 2000 election cycle alone-on putatively mixed-purpose activities that were actually intended to support the par ties' candidates for federal office and were indistinguish able from the types of activities that parties and candi dates are required to finance with hard money. Id. at 124-125. All of the soft money used to influence federal elections was, by definition, donated by either a corpora tion, a labor union, or an individual who had exceeded his or her contribution limit. "The solicitation, transfer, and use of soft money thus enabled parties and candi dates to circumvent FECA's limitations on the source and amount of contributions in connection with federal elections." Id. at 126.

In 1998, after an extensive investigation, the Senate Committee on Governmental Affairs issued a report de tailing the influence that soft money had come to wield in the electoral process. S. Rep. No. 167, 105th Cong., 2d Sess. 105-167 (1998) (Senate Report); see McConnell, 540 U.S. at 129. The Senate Report concluded that the parties' ability to solicit and spend soft money, particu larly on "issue advertising designed to influence federal elections," had rendered FECA's source-and-amount limitations ineffective. See id. at 129-132. The Senate Report also noted that the national parties had made a practice of transferring funds to the state and local par ties to conduct putatively nonfederal activities "that in fact ultimately benefit[ed] federal candidates." Id. at 131 (brackets in original) (quoting Senate Report 4466).

3. In response to the conduct detailed in the Senate Report and similar conduct that continued during subse quent electoral cycles, Congress enacted BCRA. Title I of BCRA, entitled "Reduction of Special Interest Influ ence," was intended to prevent the use of soft money to influence federal elections. BCRA Section 101 prohibits national political parties and their officers from solicit ing, receiving, or disbursing soft money. 2 U.S.C. 441i(a). Section 101 also prohibits state and local parties from receiving soft money for "Federal election ac tivity," subject to one specific exemption.1 2 U.S.C. 441i(b); see 2 U.S.C. 431(20) (definition of "Federal elec tion activity").

All political party committees remain free to spend unlimited amounts of hard money on any activity. BCRA does not restrict how state and local parties may fund any undertakings other than "Federal election ac tivity"; to the extent applicable state or local law per mits, state and local parties can raise and spend unlim ited individual, corporate, or union contributions for those nonfederal activities. BCRA also substantially raised the limits on contributions of hard money to na tional party committees (and on aggregate contribu tions), and it indexed those limits for inflation. See BCRA § 307(a)(2), (b) and (d), 116 Stat. 102-103.2

4. Immediately after BCRA was enacted, 11 com plaints were filed in the United States District Court for the District of Columbia to challenge the constitutional ity of various provisions of the new statute. One of those suits, Republican National Committee v. FEC, Civ. No. 02-874, was brought by the RNC, an RNC officer, and several state and local party affiliates. See McConnell, 251 F. Supp. 2d at 220 n.55, 225. Another suit, Califor nia Democratic Party v. FEC, Civ. No. 02-875, was brought by the California Republican and Democratic Parties. See McConnell, 251 F. Supp. 2d at 220 n.55, 225-227. The plaintiffs in those suits argued that BCRA unconstitutionally limited the national and state parties' receipt and disbursement of soft money for putatively nonfederal activities.

Pursuant to BCRA's judicial-review provision, the district court's judgment in the consolidated cases was appealed directly to this Court. See BCRA § 403(a)(3), 116 Stat. 114. The Court upheld BCRA Title I against the plaintiffs' facial challenge. See McConnell, 540 U.S. at 122-126, 133-189.

a. The Court first reiterated the holding of Buck ley, supra, and subsequent cases that contribution lim itations such as Title I are reviewed under an intermediate-scrutiny standard. See McConnell, 540 U.S. at 134-142; see also id. at 138 n.40 (citing cases). While recognizing that "restrictions on campaign expen ditures" are subject "to closer scrutiny than limits on campaign contributions," id. at 134, the Court rejected the plaintiffs' contention that BCRA Title I imposes an expenditure limit. The Court explained that, although the statute both sets contribution limits and restrains the use of funds raised in excess of those limits, the lat ter restriction is simply a contribution regulation im posed "on the demand rather than the supply side." Id. at 138. BCRA, the Court concluded, "simply limit[s] the source and individual amount of donations"; it does not restrain political party committees from spending as much as they wish so long as they comply with those fundraising limits. Id. at 139. BCRA also leaves state and local party committees free to spend unlimited sums (however raised) on activities that are not "Federal elec tion activity." See id. at 139 n.41.

Accordingly, the Court described the question before it as whether the provisions of Title I were "closely drawn to match a sufficiently important interest." McConnell, 540 U.S. at 136 (internal quotation marks and citations omitted). The Court concluded that Con gress had validly determined that "large soft-money con tributions" to national, state, and local political parties "give rise to corruption and the appearance of corrup tion," id. at 154; see id. at 164-166, and that Title I's re strictions were appropriately tailored to prevent those harms, id. at 154-161, 166-173.

b. In concluding that prior uses of soft money had caused corruption and the appearance of corruption, the Court recounted the extensive evidence of fundraising abuses leading to BCRA. See 540 U.S. at 115-117. The Court also noted the "special relationship and unity of interest" between national parties and federal candi dates and officeholders, which "has placed national par ties in a unique position * * * to serve as 'agents for spending on behalf of those who seek to produce obli gated officeholders.'" Id. at 144-145 (quoting FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 452 (2001) (Colorado II)). The factual record re garding such "obligated officeholders" included "evi dence connect[ing] soft money to manipulations of the legislative calendar, leading to Congress' failure to en act, among other things, generic drug legislation, tort reform, and tobacco legislation." Id. at 150. The Court accordingly rejected the plaintiffs' argument that only a "direct contribution to the candidate" can "threaten to create * * * a sense of obligation" from a candidate to a donor. Id. at 144.

The Court in McConnell also rejected the view that the interest in preventing corruption can justify, at most, regulation of "contributions made directly to, con tributions made at the express behest of, and expendi tures made in coordination with, a federal officeholder or candidate." 540 U.S. at 152. The Court noted that persons seeking to gain influence over officeholders and candidates have frequently exploited loopholes in FECA, and that indirect attempts to use money to gain influence (such as through contributions to political par ties) can create actual or apparent corruption that can justify congressional efforts to protect the integrity of the democratic process. See id. at 143-154.

The Court further held that Congress had acted per missibly in "subject[ing] all funds raised and spent by national parties to FECA's hard-money source and amount limits." 540 U.S. at 154; see id. at 154-156. The Court acknowledged that some of the RNC's soft money had historically been spent on "purely state and local election activity." Id. at 154 n.50. The Court explained, however, that the existence of some non-federal uses for the contributions was "beside the point" because "the close relationship between federal officeholders and the national parties, as well as the means by which the par ties have traded on that relationship," had "made all large soft-money contributions to national parties sus pect." Id. at 154-155; see id. at 143-154.

c. For like reasons, the Court rejected the RNC offi cer's challenge to the prohibition on his soliciting soft money for state and local parties, 2 U.S.C. 441i(a)(2). The Court held that the prohibition on officer solicita tion "follow[ed] sensibly from the prohibition on national committees' receiving soft money." 540 U.S. at 157-158.

d. The Court also upheld the restriction (see 2 U.S.C. 441i(b)) on state and local parties' receipt of soft money for "Federal election activity" as defined in the statute. The Court explained that, "given the close ties between federal candidates and state party committees, BCRA's restrictions on national committee activity would rapidly become ineffective if state and local com mittees remained available as a conduit for soft-money donations." 540 U.S. at 161. In the Court's view, "[p]re venting corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA," as had occurred under the earlier allocation regime, "clearly qualifie[d] as an important governmental inter est." Id. at 165-166.

The Court further concluded that Section 441i(b) was appropriately tailored to that interest. The Court re jected the state and local parties' contention that the term "Federal election activity," as defined by BCRA, encompassed purely state or local functions that could not corrupt federal officeholders. See 540 U.S. at 166. The Court stated that the activities to which the soft- money restrictions applied-particularly "voter regis tration efforts, * * * voter identification, GOTV, and generic campaign activity"-"clearly capture activity that benefits federal candidates." Id. at 167. The Court accordingly accepted Congress's judgment that soft- money "funding of such activities creates a significant risk of actual and apparent corruption." Id. at 168.

Finally, the Court addressed the state and local par ties' arguments regarding the prohibition on receiv ing soft money for advertising that promotes, attacks, supports, or opposes a federal candidate. 2 U.S.C. 431(20)(A)(iii). The Court found that, with respect to the substantial influence of such advertising on federal elec tions, "[t]he record on this score could scarcely be more abundant." McConnell, 540 U.S. at 169-170. Indeed, preventing these party-run "sham issue ad[s]" from be ing financed with soft money was one of the primary motivations behind BCRA. See id. at 129-132 (noting Senate Committee's findings that "the ads enabled un ions, corporations, and wealthy contributors to circum vent protections that FECA was intended to provide"), 169-170. In light of the evidence regarding their influ ence on federal elections, the Court held that BCRA's ban on financing these communications with soft money was "closely drawn to the anticorruption interest it is intended to address," id. at 170, and did not unconstitu tionally limit state and local parties' "ability to engage in effective advocacy," id. at 173.

5. Appellant RNC is the national committee of the Republican Party. Appellant Michael Steele is the Chairman of the RNC. Appellants California Republi can Party (California Party) and Republican Party of San Diego County (San Diego Party) are state and local committees, respectively, of the Republican Party.

One week after the November 2008 general election, appellants commenced this suit, alleging that BCRA Title I unconstitutionally limited their receipt and dis bursement of soft money for certain putatively nonfed eral activities. Pursuant to BCRA's judicial-review pro vision, appellants elected to proceed before a three- judge district court. 08-1953 Docket entry No. 2 (D.D.C. Nov. 13, 2008); see BCRA § 403(a) and (d), 116 Stat. 113-114. The Democratic National Committee, the na tional committee of the Democratic Party, see 2 U.S.C. 431(14), and Representative Christopher Van Hollen intervened as defendants.

The Commission moved to dismiss the complaint. The Commission argued that appellants' claims were precluded because the RNC, an RNC officer, and the California Party had unsuccessfully asserted the same causes of action in McConnell. All parties also cross- moved for summary judgment. At the district court's direction, the parties subsequently filed supplemental briefs to address this Court's decision in Citizens United v. FEC, 130 S. Ct. 876 (2010).

6. In an opinion by Circuit Judge Kavanaugh, the three-judge district court granted summary judgment to the Commission. J.S. App. 1a-25a. In light of that disposition, the court dismissed as moot the Commis sion's motion to dismiss on preclusion grounds. Id. at 3a-4a, 24a n.7.

The district court held that the challenged BCRA provisions are subject to intermediate rather than strict scrutiny. J.S. App. 10a-11a. The court explained that "limits on contributions to candidates and political par ties are subject to 'less rigorous scrutiny'" than are "limits on campaign expenditures," and it noted this Court's holding in McConnell that BCRA's soft-money provisions are properly viewed as contribution limits. Id. at 10a (quoting McConnell, 540 U.S. at 138 n.40). The court rejected appellants' contention that the soft- money provisions "function as expenditure limits when applied to [appellants'] proposed conduct." Id. at 11a. The court explained that this "argument flies in the face of McConnell, which squarely held that the level of scru tiny for regulations of contributions to candidates and parties does not turn on how the candidate or party chooses to spend the money." Ibid.

While recognizing that "McConnell permits as- applied challenges to the provisions of BCRA," the dis trict court explained that a successful as-applied chal lenge to BCRA Section 101 must be based on something other than "the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision." J.S. App. 13a. The court found the RNC's claims to be factually and legally indistinguishable from the claims that the RNC had as serted and this Court had rejected in McConnell. See id. at 12a-13a. The court explained that such a challenge "is not so much an as-applied challenge as it is an argu ment for overruling a precedent." Id. at 13a.

The district court agreed with appellants that Citi zens United had undercut some arguments for uphold ing BCRA Section 101. J.S. App. 13a-14a. "But that is not enough for the RNC to prevail here," the court ex plained, because the Court in McConnell had upheld Title I based on evidence "more specific" to soft money -"evidence of the selling of preferential access * * * in exchange for soft-money contributions." Id. at 14a. The district court concluded that the subsequent ruling in Citizens United had left that independently sufficient rationale undisturbed. See ibid.

The RNC argued that McConnell did not control its as-applied challenge because the RNC has pledged to cease its participation in certain abuses (encouraging federal candidates and officeholders to become involved in the party's soft-money solicitations, and providing large soft-money donors "preferential access to candi dates or officeholders") at which BCRA's soft-money ban was directed. J.S. App. 14a-15a. The district court rejected that argument. Id. at 15a-18a. The court con cluded that, in light of "the inherently close relationship between parties and their officeholders and candidates," soft-money donations to national parties would continue to cause corruption or the appearance thereof even if the RNC discontinued those specific practices. Id. at 17a; see id. at 16a-18a.

The district court also rejected the challenges to BCRA Section 101 raised by the California and San Diego Parties. J.S. App. 19a-22a. Those Parties argued that some of their proposed activities, while falling within BCRA's definition of "Federal election activity," had an insufficient connection to federal campaigns to permit federal regulation. Id. at 19a-20a. The court concluded that those claims were foreclosed because appellants had "not distinguished their proposed activi ties from the categories of state and local party activ ities the Supreme Court considered in McConnell." Id. at 22a. The district court further held that BCRA's ban on soft-money solicitations by the RNC Chairman in his official capacity was likewise constitutional under McConnell (though the court recognized that the Chair man remains free to solicit soft money in his personal capacity). Id. at 23a-24a. Thus, while recognizing that as-applied challenges to BCRA are cognizable, the dis trict court held that the particular as-applied challenges raised in this case are not meaningfully different from the constitutional attacks that were raised and rejected in McConnell.

ARGUMENT

Based on a straightforward application of the legal principles settled by this Court in McConnell and prior cases, the district court correctly rejected appellants' constitutional challenges. Appellants do not urge this Court to overrule McConnell or any other precedent. Rather, appellants (a) suggest that their own as-applied challenges are meaningfully different from the facial challenges rejected in McConnell, and (b) argue that the recent decision in Citizens United undermines aspects of the McConnell Court's reasoning. Because those con tentions lack merit, the appeal should be dismissed for lack of a substantial federal question. In the alternative, the judgment of the district court should be affirmed.

1. a. Applying the intermediate scrutiny it has long used in examining contribution limits,3 the Court in McConnell held that BCRA's ban on soft-money dona tions to national parties was closely drawn and therefore constitutional. 540 U.S. at 154-156. The Court rejected the contention that the ban was "impermissibly over broad because it subjects all funds raised and spent by national parties to FECA's hard-money source and amount limits, including * * * funds spent on purely state and local elections in which no federal office is at stake." Id. at 154. The Court stated that "[t]his obser vation is beside the point" because the challenged prohi bition "regulates contributions, not activities." Ibid. The Court explained that "it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect." Id. at 154- 155.4

The Court in McConnell further explained that "[g]iven this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used." 540 U.S. at 155. The Court concluded that "[t]he Government's strong interests in preventing corruption, and in particular the appear ance of corruption, are thus sufficient to justify subject ing all donations to national parties to the source [and] amount * * * limitations of FECA." Id. at 156. The Court thus made clear that the constitutionality of BCRA's ban on soft-money donations to national parties does not depend on the use to which those additional funds would otherwise be put. As the district court cor rectly recognized (J.S. App. 11a-18a), the Court's analy sis in McConnell disposes of the RNC's contention (e.g., J.S. 12) that national parties have a constitutional right to receive soft money so long as it is spent on allegedly non-corruptive activities.

b. McConnell also forecloses the constitutional chal lenge brought by the California and San Diego Parties. Those appellants contended below (see J.S. App. 19a- 22a), and appear to reassert in this Court (see J.S. 18), that BCRA Section 101 is unconstitutional because it prohibits state and local parties from using soft money to fund certain undertakings that fall within BCRA's definition of "Federal election activity" but that (in ap pellants' view) cannot corrupt federal candidates.

The Court in McConnell considered and rejected a substantively identical challenge. See 540 U.S. at 166- 171. The Court explained that the relevant BCRA provi sion "is premised on Congress' judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption." Id. at 167. The Court further observed that the provision is "narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal can didates directly." Ibid. The Court then examined the various categories of conduct encompassed by the statu tory definition of "Federal election activity," and it con cluded that each of the covered activities confers suffi cient benefits on federal candidates to "create[] a signifi cant risk of actual and apparent corruption." Id. at 168; see id. at 167-171.

In rejecting the California and San Diego Parties' constitutional challenge, the district court correctly ex plained that appellants "do not distinguish their pro posed ads from the category of state and local party ad vertising that the Supreme Court expressly considered in McConnell." J.S. App. 21a. Because appellants make no effort to refute that conclusion, McConnell is control ling here.

c. Indeed, a particularly striking feature of appel lants' as-applied challenge is the close resemblance be tween the activities in which appellants now propose to engage and the activities that this Court previously con sidered in McConnell. For example, the RNC asserts a constitutional right to receive soft money to support state and local candidates (J.S. App. 7a), particularly those in Virginia and New Jersey (see Am. Compl. ¶¶ 16- 17). The RNC raised the same claim before this Court in McConnell, including the same arguments regarding Virginia and New Jersey. See Br. of Political Parties at 1, 9-12, 14, 19-20, 34, 40-41, 58-59, 63-64, 78-79, 86-87, McConnell, supra (No. 02-1727) (arguing for constitu tional right to receive soft money for nonfederal elec tions); id. at 11-12 (noting RNC's "considerable 'in- house' efforts [devoted] to the Virginia and New Jersey gubernatorial and state legislative races * * * with a 'mix' of federal and nonfederal funds"). The RNC also wishes to receive soft money to finance what it calls "grassroots lobbying" (J.S. 18)-a topic exhaustively litigated and reviewed in McConnell. See McConnell, 540 U.S. at 169-170 (noting that "[t]he record on this score could scarcely be more abundant"). Appellants' other claims are similarly duplicative of their claims in McConnell.5 See FEC Mem. in Supp. of Mot. to Dismiss 11-19 (showing duplication of RNC's, Chairman's, and California Party's claims). Those duplicative claims are foreclosed by this Court's rejection of the originals.6

d. Appellants contend that, to prevail in this case, "the government must demonstrate that each applica tion of BCRA's prohibition on nonfederal money targets an activity that, if funded by nonfederal money, would create an appreciable risk of actual or apparent quid pro quo corruption of federal officeholders." J.S. 10. Well before McConnell, however, this Court had made clear that the validity of contribution limits does not depend on that sort of particularized showing. In Buckley, for example, the Court "assumed" that "most large contri butors do not seek improper influence over a candidate's position or an officeholder's action." 424 U.S. at 29. The Court nevertheless held that the difficulty of identifying those contributors who will actually seek to wield such influence, and Congress's interest in guarding against the inherent appearance of abuse, justified uniform ap plication of the $1000 individual contribution limit.7 Id. at 29-30; cf. California Med. Ass'n v. FEC, 453 U.S. 182, 198-199 & n.19 (1981) (plurality opinion) (holding that contributions to political committees are subject to FECA's limitations even if contributions are to be used purely for administrative support). Far from requiring contribution-specific proof of likely corruptive effect, this Court has consistently upheld contribution restric tions so long as those limits are not so low as to "pre vent[] candidates and political committees from amass ing the resources necessary for effective advocacy." Buckley, 424 U.S. at 21; see Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 395-396 (2000).

2. Appellants' primary argument is that this Court in Citizens United repudiated the rationales on which the McConnell Court upheld BCRA's limits on contribu tions to political parties. The Court in Citizens United held that Congress may not constitutionally prohibit corporations from engaging in independent electoral advocacy. In rejecting the government's contention that the expenditure ban served a valid anti-corruption pur pose, the Court stated that

independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expen ditures even ingratiate. Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called "soft money," were made to gain access to elected officials. This case, however, is about inde pendent expenditures, not soft money.

130 S. Ct. at 910-911 (citations omitted). Contrary to appellants' contention, that analysis does not cast doubt on McConnell's holding that BCRA Title I is valid.

a. Most importantly, the Court in Citizens United emphasized that the dispute before it involved independ ent electoral advocacy rather than contributions. In the passage quoted above, the Court discussed (and largely discounted) the corruptive potential of "independent expenditures," and it distinguished McConnell's anal ysis of BCRA Title I on the ground that Citizens United was "about independent expenditures, not soft money." 130 S. Ct. at 910-911. The Court went on to explain that "[w]hen Congress finds that a problem exists, [the Court] must give that finding due deference; but Congress may not choose an unconstitutional remedy." Id. at 911. The Court concluded that "[a]n outright ban on corporate political speech during the critical preelection period is not a permissible remedy." Ibid.

That analysis does not mean either that soft-money contributions to political parties lack corruptive poten tial, or that contribution limits are an impermissible means of preventing actual or apparent corruption. Since Buckley, this Court has consistently held that Congress has greater latitude to limit contributions to candidates or political committees than to limit inde pendent expenditures, both because contributions pose a greater danger of corruption and because expenditure limits trench more severely on First Amendment free doms. See Buckley, 424 U.S. at 19-21, 45-47; McConnell, 540 U.S. at 134-137. Neither party in Citizens United questioned that basic distinction; rather, the dispute concerned whether corporations have the same First Amendment right as non-corporate entities to spend their own funds on independent electoral advocacy. The Court's holding that corporations have that right is in no way inconsistent with the McConnell Court's analysis of BCRA's limits on contributions to political parties.8

Indeed, the limited nature of the relief that appel lants seek in this case reflects appellants' implicit recog nition of the constitutional differences between contribu tion and expenditure restrictions. Appellants do not seek invalidation of all federal limits on contributions to political parties-the relief that would logically follow if contributions to political parties were constitutionally indistinguishable from independent expenditures, or if such contributions posed no danger of corrupting fed eral officeholders. Rather, appellants appear to accept Congress's basic determination that large contributions to political parties can have a corruptive effect, and that the size of such contributions can be limited to address that danger, if the contributions are eventually used by the parties for activities that influence federal elections. Appellants argue only that the BCRA limits are uncon stitutional as applied to funds ultimately spent for speci fied activities (see J.S. 18) that, in appellants' view, lack a meaningful connection to federal campaigns. Appel lants' challenge is thus limited to the details of Con gress's judgments regarding the sorts of contributions to political parties that will benefit (and thus potentially corrupt) the parties' federal candidates and officehold ers. Citizens United does not speak to the proper dispo sition of that challenge.

The Citizens United Court's statement that "[i]ngra tiation and access * * * are not corruption," 130 S. Ct. at 910, should be understood in light of that fundamental distinction between contributions and independent ex penditures. Read in the context of the Court's full opin ion, that statement simply reflects the Court's determi nation that an elected representative does not behave corruptly by feeling greater sympathy for, or giving in creased access to, persons who publicly advocate on his behalf. That determination does not imply that the pro vision of access as a reward for infusions of cash, either to the officeholder himself or to his political party, is similarly innocuous. See McConnell, 540 U.S. at 153-154 (explaining that, although "mere political favoritism or opportunity for influence alone is insufficient to justify regulation[,] * * * it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influ ence").

b. In any event, the Court in McConnell relied not just on evidence that soft-money donors received in creased access to federal officeholders, but also on "the record" of "real or apparent corruption" resulting from large donations to political parties. See 540 U.S. at 149- 150. That record included concrete examples of soft- money donations leading to "manipulations of the legis lative calendar," through which Members of Congress whose parties received soft money stopped legislation to which the parties' soft-money donors were opposed. See id. at 150. Appellants assert (J.S. 10-11; see J.S. 18-19) that there is "no evidence * * * [that] activities funded by nonfederal money * * * create a risk of actual or apparent quid pro quo corruption," and they dismiss the above-noted examples as "legislators' responsiveness to a donor's legislative priorities" (J.S. 17 n.3). That argu ment cannot be reconciled with the McConnell Court's description of these "manipulations":

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actu ally switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. * * * To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.

540 U.S. at 149-150.

3. Appellants assert that, if they win this lawsuit, (1) they will not ask federal officeholders to solicit soft money, and (2) they will not help soft-money donors gain more access to federal officeholders than the access ap pellants provide their largest hard-money donors. See J.S. 6-7, 9-10, 15. Appellants argue that these self- imposed behavioral limits would eliminate the corruptive potential of soft-money donations, thus rendering BCRA's soft-money provisions unconstitutional as ap plied to appellants. That argument lacks merit.

a. In sustaining BCRA's soft-money provisions, the Court in McConnell rejected the argument that only "contributions made at the express behest of" a federal officeholder raise corruption concerns. 540 U.S. at 152. Quite apart from candidate solicitations, the inherent "special relationship and unity of interest" between na tional parties and federal candidates and officeholders "has placed national parties in a unique position, 'wheth er they like it or not,' to serve as 'agents for spending on behalf of those who seek to produce obligated officehold ers.'" Id. at 145 (quoting Colorado II, 533 U.S. at 452). With respect to state parties, the use of soft-money do nations to finance "Federal election activity" likewise has a clear potential to produce obligated officeholders, see id. at 167, regardless of who solicits the donations.

The Court in McConnell reviewed extensive evidence demonstrating that soft money was often requested, not by officeholders themselves, but rather by professional lobbyists channeling funds to political parties in ex change for influence over the officeholders. For exam ple, when the Court discussed the "troubling * * * evidence in the record showing that national parties have actively exploited the belief that contributions pur chase influence," the Court cited a corporate soft-money donor's description of solicitations by lobbyists. McCon nell, 540 U.S. at 148 n.47. Even when soft-money dona tions were solicited by persons other than officeholders, officeholders were well aware of who the biggest soft- money donors were. See McConnell, 251 F. Supp. 2d at 853-854 (Leon, J.) ("[Y]ou cannot be a good Democratic or a good Republican Member and not be aware of who gave money to the party.") (quoting former Senator Bumpers); see also McConnell, 540 U.S. at 147 ("[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge as it is pro vided by the national political parties and the donors themselves.") (brackets in original) (quoting McConnell, 251 F. Supp. 2d at 488 (Kollar-Kotelly, J.)). The Court's analysis in McConnell does not suggest that the corrup tive potential of large soft-money donations would be eliminated or even meaningfully reduced if federal can didates and officeholders were no longer asked to solicit such contributions.

b. Appellants' offer to cease providing soft-money donors with preferential access to federal officeholders does not distinguish this case from McConnell. To the contrary, the RNC asserted in that case that it did not "arrange meetings with government officials for any of its donors-federal or non-federal." McConnell, 251 F. Supp. 2d at 351 (Henderson, J.) (citing testimony of RNC finance officer). Yet voluminous record evidence that the RNC facilitated its soft-money donors' access to federal officials is exhaustively catalogued in the McConnell district court's opinion. See id. at 481-512 (Kollar-Kotelly, J.). And the record in the instant case demonstrates that appellants still arrange frequent meetings, receptions, dinners, and other events at which their major donors discuss legislation with federal can didates and officeholders. See 08-1953 Docket entry No. 56, FEC Statement of Material Facts ¶¶ 7-11 (D.D.C. Apr. 10, 2009) (Statement of Material Facts).

c. If (as McConnell squarely holds) BCRA's limits on soft-money donations to political parties are other wise valid anti-corruption measures, nothing in this Court's decisions suggests that appellants can render those limits invalid as applied simply by pledging to im plement their own alternative anti-corruption policies. No one would suggest, for example, that the FECA lim its on individual contributions to federal candidates are unconstitutional as applied to candidates who promise not to give preferential treatment to larger donors. Any effort to enforce appellants' pledge would require the FEC to police the interactions between appellants and Republican candidates and officeholders (to determine whether appellants have urged candidates and office holders to solicit soft-money donations) and between the party and its donors (to determine whether appellants have helped soft-money donors to gain preferential ac cess). A chief virtue of contribution limits, however, is that they avoid the need for such difficult and intrusive inquiries. Cf. McConnell, 540 U.S. at 153 (explaining that, because an officeholder's decision to act "according to the wishes of those who have made large financial contributions * * * is neither easily detected nor prac tical to criminalize," the "best means of prevention is to identify and remove the temptation").9

4. Appellants have not demonstrated that BCRA's soft-money restrictions prevent them from raising suffi cient funds to engage in effective electoral activity. To the contrary, in each election cycle since BCRA, the na tional party committees raised amounts of hard money- between approximately $900 million and $1.24 billion in hard money in each election cycle-that are comparable to or greater than the amounts raised in hard and soft money combined before BCRA.10 See 08-1953 Docket entry No. 56, FEC Mem. in Supp. of Mot. for Summ. J. 2-5 (D.D.C. Apr. 10, 2009) (discussing fundraising to tals). The limit on contributions to national parties- currently set at $30,400 per year and indexed for infla tion, see p. 6 & note 2, supra-is "closely drawn" be cause it is not "so low as to 'preven[t] candidates and political committees from amassing the resources neces sary for effective advocacy.'" McConnell, 540 U.S. at 135-136 (quoting Buckley, 424 U.S. at 21; and FEC v. Beaumont, 539 U.S. 146, 162 (2003)); see also Randall v. Sorrell, 548 U.S. 230, 247 (2006) (opinion of Breyer, J., joined by Roberts, C.J. and Alito, J.) (same). The hun dreds of millions of dollars that the parties have been able to raise after BCRA are plainly sufficient for "ef fective advocacy."

Appellants also contend (see J.S. 11, 22) that BCRA unconstitutionally disadvantages political parties rel ative to other political organizations. The Court in McConnell rejected the political parties' equal- protection challenge, which was premised on the same purported differential treatment, and explained "that BCRA actually favors political parties in many ways." 540 U.S. at 187-188. The national parties can receive up to $30,400 per year from each individual donor, and the state, district, and local committees of a party can re ceive up to a combined $10,000 per year in hard money from each individual donor. By contrast, other political committees can receive only $5000 per year from an in dividual donor. See 2 U.S.C. 441a(a)(1); 11 C.F.R. 110.17(b).11

To be sure, BCRA's soft-money limits subject politi cal parties to source-and-amount restrictions that are not imposed on advocacy groups that fall outside FECA's "political committee" provisions. As the Court in McConnell explained, however, "Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a sys tem of campaign finance regulation." 540 U.S. at 188. "Political parties have influence and power in the Legis lature that vastly exceeds that of any interest group," including the power to "select slates of candidates for elections" and the power to "determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses." Ibid. The Court in McConnell concluded that "Congress' efforts at cam paign finance regulation may account for these salient differences," ibid., and appellants identify no sound rea son for the Court to revisit that holding.

5. Although the district court did not address the Commission's preclusion defense, that defense provides an independent basis for affirmance of the district court's judgment, at least with respect to appellants' challenges to BCRA's restrictions on national-party fundraising. The RNC and the California Party were plaintiffs in the McConnell litigation and are bound by the judgment entered against them. Chairman Steele is a plaintiff only by virtue of his official position as an offi cer of the RNC, and he is precluded by the judgment rejecting his predecessor RNC officer's identical argu ments. See Taylor v. Sturgell, 128 S. Ct. 2161, 2172- 2173 (2008) (discussing preclusion of nonparties based on their relationship to parties). Chairman Steele could not assert the claims of the national party in any event. And while the San Diego Party was not a plaintiff in McConnell, it is not a national political party and there fore cannot challenge those statutory restrictions that apply only to such national organizations.

CONCLUSION

The appeal should be dismissed for lack of a substan tial federal question. In the alternative, the judgment of the district court should be affirmed.

Respectfully submitted.

NEAL KUMAR KATYAL
Acting Solicitor General
MALCOLM L. STEWART
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General

THOMASENIA P. DUNCAN
General Counsel
DAVID KOLKER
Associate General Counsel
KEVIN DEELEY
Assistant General Counsel
ADAV NOTI
Attorney
Federal Election Commission

MAY 2010

1 Under the "Levin Amendment," 2 U.S.C. 441i(b)(2), state and local party committees may finance certain federal election activity with a combination of hard money and "Levin funds," which are additional do nations that individuals may make to a state or local party in amounts as high as $10,000 per year (to the extent permitted by the relevant state law). See McConnell, 540 U.S. at 162-164.

2 Currently, an individual may contribute $30,400 to each national party per year, and $115,500 in the aggregate for the two-year cycle. See Price Index Adjustments for Expenditure Limitations and Lob byist Bundling Disclosure Threshold, 75 Fed. Reg. 8355 (2010).

3 Appellants generally recognize (see J.S. 11) that intermediate scru tiny applies here. Their one suggestion that BCRA Title I might be an expenditure limit subject to strict scrutiny (J.S. 12 n.2) is flatly con trary to McConnell. See 540 U.S. at 138-139 (rejecting plaintiffs' "con ten[tion] that we must apply strict scrutiny" to BCRA Section 101, and holding that the provision "limit[s] the source and individual amount of donations" without "in any way limit[ing] the total amount of money parties can spend"); J.S. App. 11a. Appellants also do not contend that the inflation-adjusted limits at issue are so low as to prevent national or state parties from engaging in effective campaign-related activity. See pp. 27-28, infra.

4 In describing the practices that gave rise to BCRA, the Court stated that the "special relationship and unity of interest" between national parties and federal candidates and officeholders had "placed national parties in a unique position * * * to serve as 'agents for spending on behalf of those who seek to produce obligated officehold ers.'" McConnell, 540 U.S. at 145 (quoting Colorado II, 533 U.S. at 452). The Court further explained that the record was "replete with * * * examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money dona tions," id. at 150, thereby helping the donors exert "undue influence" over legislation and creating the appearance of corruption arising from soft-money donations, id. at 154. Appellants therefore are mistaken in contending (J.S. 10, 15-16) that pre-McConnell cases such as Colorado II, supra, conclusively establish that no such relationship exists. In deed, those cases, read in full, only undercut appellants' argument. See, e.g., Colorado II, 533 U.S. at 455 (recognizing that parties "function for the benefit of donors whose object is to place candidates under obliga tion, a fact that parties cannot escape").

5 Appellants refer (J.S. 6, 18) to challenging BCRA as applied to the "maintenance and upkeep" of the RNC's headquarters, but this chal lenge does not appear in the complaint. See J.S. App. 7a n.3 (noting dif ferences between RNC's complaint and summary-judgment motion). In any event, the RNC raised and lost a similar building-fund claim in McConnell. See, e.g., 251 F. Supp. 2d at 332 (Henderson, J.); id. at 462- 463 (Kollar-Kotelly, J.); id. at 819 (Leon, J.) (including building funds in list of activities RNC financed with soft money prior to BCRA).

6 By contrast, the Court in McConnell noted certain issues that it did reserve for decision in potential future as-applied challenges. See, e.g., 540 U.S. at 157 n.52 (potential state-law prohibitions on soliciting hard money); id. at 159 (solicitations by new political parties). The instant case does not implicate any of those issues.

7 The Court in Buckley held that the basic FECA contribution limit was valid as applied to contributions from "immediate family mem bers," even though it recognized that the "risk of improper influence is somewhat diminished" in that circumstance. 424 U.S. at 53 n.59.

8 The Court in Citizens United overruled "the part of McConnell that upheld [Section 203 of BCRA]," 130 S. Ct. at 913, not the part of McConnell that upheld Title I of BCRA.

9 The district court's confidence (J.S. App. 8a n.4) that appellants' pledge could be enforced was misplaced. The Commission's investiga tive authority, 2 U.S.C. 437g(a)(2), requires a complaint, or information regarding a violation of law, in order to initiate an investigation. It is unlikely that the RNC's facilitation of a private meeting between a wealthy donor and a Member of Congress, or a party official's commu nication encouraging a Republican officeholder to solicit soft-money donations, would come to light under either of those statutory condi tions. Nor did the district court identify any statutory authority for the

 

Commission to "adopt regulations requiring * * * disclosures" of donors invited by the party to meet with officeholders, J.S. App. 9a n.4.

10 These factual developments run counter to the projections that the RNC made in McConnell. Despite the fact that BCRA raised and in dexed for inflation the hard-money limits on contributions to political parties, see p. 6, supra, the RNC predicted in that case that it would "not be able to recoup these lost non-federal revenues" because "it is unlikely that the RNC will be able to raise more federal money from lower-dollar contributors than it currently does." 08-1953 Docket entry No. 56, FEC Mem. in Supp. of Mot. for Summ. J. 4 (D.D.C. Apr. 10, 2009) (FEC Summary Judgment Memorandum) (quoting RNC testi mony). The RNC further predicted that "[t]he net effects of BCRA [would] be massive layoffs and severe reduction of * * * speech at the RNC, and reduction of many state parties to a 'nominal' existence." McConnell, 251 F. Supp. 2d at 698 (Kollar-Kotelly, J.) (quoting RNC brief).

In McConnell, however, this Court found that the plaintiff political parties had failed to establish that they would be unable to engage in effective advocacy after BCRA. 540 U.S. at 173. The Court observed that, "[i]f the history of campaign finance regulation * * * proves anything, it is that political parties are extraordinarily flexible in adapt ing to new restrictions on their fundraising abilities." Ibid. This Court was prescient: The national parties massively expanded their low-dol lar contributor base, and the RNC's dire predictions about a "severe re duction" of the RNC's "speech" and marginalization of state parties have been shown to be unfounded. See FEC Summary Judgment Memorandum 3-5.

11 The term "political committee" encompasses any entity, whether a corporation, union, or otherwise, that has as its "major purpose" the election or defeat of candidates, see FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 262 (1986), and meets certain statutory criteria, see 2 U.S.C. 431(4).