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REPUBLICAN NATIONAL COMMITTEE, ) Et Al., ) Plaintiffs, ) ) V Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 1 of 56 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) REPUBLICAN NATIONAL COMMITTEE, ) et al., ) Plaintiffs, ) ) v. ) Civ. No. 08-1953 (BMK, RJL, RMC) ) FEDERAL ELECTION COMMISSION, ) et al., ) MOTION FOR SUMMARY JUDGMENT ) Defendants. ) _______________________________________) DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT Defendant Federal Election Commission respectfully moves the Court for an order granting summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of Civil Procedure. A memorandum in support of this motion, a statement of material facts not in genuine dispute, and a proposed order are attached. Respectfully submitted, Thomasenia P. Duncan (D.C. Bar No. 424222) General Counsel David Kolker (D.C. Bar No. 394558) Associate General Counsel Kevin Deeley Assistant General Counsel /s/ Adav Noti Adav Noti (D.C. Bar No. 490714) Attorney COUNSEL FOR DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street NW Washington, DC 20463 Dated: April 10, 2009 (202) 694-1650 Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 2 of 56 TABLE OF CONTENTS I. SINCE BCRA’S ENACTMENT, NATIONAL POLITICAL PARTY COMMITTEES HAVE RAISED BILLIONS OF DOLLARS, AMOUNTS THAT ARE SUFFICIENT FOR EFFECTIVE ADVOCACY........................................................................................2 II. PLAINTIFFS’ RECEIPT OF CONTRIBUTIONS UNRESTRAINED BY THE ACT’S SOURCE AND AMOUNT LIMITATIONS WOULD CREATE AN APPEARANCE OF CORRUPTION AND CREATE A DANGER OF ACTUAL CORRUPTION....................................................................................................................7 III. PLAINTIFFS’ ACTIVITIES AFFECT FEDERAL ELECTIONS ...................................12 A. The RNC’s “Grassroots Lobbying” Is Sham Issue Advertising............................12 B. The RNC’s Support for State and Local Candidates, Even in Elections Where No Federal Candidates Are on the Ballot, Affects Federal Elections....................15 C. The RNC’s Litigation Affects Who Obtains Federal Office .................................16 D. Get-Out-The-Vote Activity Affects All Elections on the Ballot ...........................17 E. Plaintiffs’ Other Federal Election Activity Affects Federal Elections ..................18 IV. CONCLUSION..................................................................................................................19 i Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 3 of 56 TABLE OF AUTHORITIES Cases Buckley v. Valeo, 424 U.S. 1 (1976)......................................................................................3, 7, 14 California Med. Ass’n v. FEC, 453 U.S. 182 (1981).....................................................................12 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ................................................6 FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”)......................................14 McConnell v. FEC, 540 U.S. 93 (2003)................................................................................. passim McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003)....................................................... passim Randall v. Sorrell, 548 U.S. 230 (2006) ..........................................................................................3 Sabri v. United States, 541 U.S. 600 (2004)..................................................................................12 Statutes and Regulations 2 U.S.C. § 431(20)(A)(i)................................................................................................................18 2 U.S.C. § 431(20)(A)(ii)...............................................................................................................18 2 U.S.C. § 431(21) .........................................................................................................................18 2 U.S.C. § 441b(a) .........................................................................................................................17 2 U.S.C. § 441i(b)(2) .....................................................................................................................18 Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 .. passim BCRA Title I.............................................................................................................. passim BCRA § 101.......................................................................................................................18 BCRA § 307(a)(2)................................................................................................................4 BCRA § 307(d)....................................................................................................................4 Other Authorities FEC Advisory Op. 2006-24, http://saos.nictusa.com/aodocs/2006-24.pdf (Oct. 5, 2006)............17 Fed. R. Civ. P. 56(c) ........................................................................................................................2 ii Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 4 of 56 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) REPUBLICAN NATIONAL COMMITTEE, ) et al., ) Plaintiffs, ) ) v. ) Civ. No. 08-1953 (BMK, RJL, RMC) ) FEDERAL ELECTION COMMISSION, ) et al., ) MEMORANDUM IN SUPPORT OF ) MOTION FOR SUMMARY JUDGMENT Defendants. ) _______________________________________) DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant Federal Election Commission (“Commission”) hereby submits this memorandum in support of the Commission’s motion for summary judgment. To reduce the burden on the Court, the Commission incorporates by reference its opposition to Plaintiffs’ motion for summary judgment (Docket No. 39 (“FEC S.J. Opp.”)), rather than repeating the arguments from that memorandum in their entirety. As the Commission demonstrated in its prior brief: (a) Title I of the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, is a contribution limit and therefore subject to intermediate scrutiny (FEC S.J. Opp. at 7-10); (b) The specific activities that Plaintiffs wish to fund with soft money are irrelevant to the constitutionality of BCRA’s contribution limits (id. at 10-13); (c) The unique relationship between federal officeholders and their parties produces obligations on the part of the officeholders towards their parties’ biggest donors (id. at 13-24); Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 5 of 56 (d) BCRA provides political parties with advantages not granted to any other political organizations (id. at 24-26); (e) Plaintiffs’ claims regarding how they would go about soliciting soft money in the future are contrary to the massive factual record developed in McConnell v. FEC, 540 U.S. 93 (2003), and these claims lack any constitutional significance under the plain terms of McConnell’s holding (id. at 26-32); (f) The phrase “unambiguously campaign related” is not a constitutional test and has no bearing on this case (id. at 32-36); and (g) Even if their proposed spending were relevant, most of the activities that Plaintiffs wish to fund with soft money affect federal elections (id. at 36-44). In addition to the foregoing, summary judgment should be granted to the Commission for the reasons set forth below.1 I. SINCE BCRA’S ENACTMENT, NATIONAL POLITICAL PARTY COMMITTEES HAVE RAISED BILLIONS OF DOLLARS, AMOUNTS THAT ARE SUFFICIENT FOR EFFECTIVE ADVOCACY National party fundraising has flourished in the wake of BCRA, as the six national party committees have dramatically expanded their pool of contributors and raised more hard money 1 This memorandum and statement of material facts incorporate the “discovery and disclosure materials” obtained from Plaintiffs’ responses to the Commission’s first set of discovery requests. Fed. R. Civ. P. 56(c). Additional discovery requests were served on Plaintiff on February 23, 2009, but, on March 30, Plaintiffs stated that they would not respond to those requests — or any others — until the Court rules on the Commission’s pending motion to dismiss the complaint and on Plaintiffs’ pending motion for summary judgment. Defendant- Intervenor Van Hollen has filed a motion to compel Plaintiffs’ responses to Defendants’ outstanding discovery requests (Docket No. 54). Although that motion has not yet been resolved, the Commission is filing its motion for summary judgment at this time so as to not disrupt the Court’s scheduled hearing date of April 29, 2009. The Commission respectfully requests, however, that the Court permit the filing of supplemental memoranda and statements of fact should the Court grant the motion to compel. 2 Case 1:08-cv-01953-RJL-RMC Document 56 Filed 04/10/2009 Page 6 of 56 than they raised in hard and soft money combined before BCRA.2 The limit on contributions to national parties — presently set at $30,400 per year and indexed for inflation (see FEC S.J. Opp. at 4 n.1) — is “closely drawn” because it is not “so low as to ‘preven[t] candidates and political committees from amassing the resources necessary for effective advocacy.’” McConnell, 540 U.S. at 135 (quoting Buckley v. Valeo, 424 U.S. 1, 21 (1976)); see also Randall v. Sorrell, 548 U.S. 230, 247 (2006) (same) (Breyer, J., joined by Roberts, C.J. and Alito, J.). The hundreds of millions of dollars
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