Republican Party of Louisiana v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REPUBLICAN PARTY OF LOUISIANA,
et al.,
Plaintiffs,

v. Case No. 15-cv-01241 (CRC-SS-TSC)

FEDERAL ELECTION COMMISSION,

Defendant.

Before: SRINIVASAN, Circuit Judge; COOPER, District Judge; and CHUTKAN, District
Judge.

MEMORANDUM OPINION

SRINIVASAN, Circuit Judge:

This case presents the latest First Amendment challenge to campaign-finance regulations

enacted by the Bipartisan Campaign Reform Act of 2002, known as BCRA. The BCRA

provisions at issue bar state and local political parties from using contributions of so-called soft

money for activities affecting federal elections.

We are not the first court to consider First Amendment challenges to BCRA’s limits on

state and local political parties’ use of soft-money donations. The Supreme Court, in McConnell

v. FEC, 540 U.S. 93 (2003), upheld those measures against a facial challenge under the First

Amendment. A prior three-judge district court, relying on McConnell, later sustained the

provisions against an as-applied challenge, and the Supreme Court summarily affirmed that

decision. Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (RNC), aff’d,

561 U.S. 1040 (2010). We see no salient distinction between the First Amendment claims

rejected in those cases and the challenge presented here. We therefore grant summary judgment

in favor of the Federal Election Commission.
 I. Background

A. Statutory Context

The evolution of federal campaign-finance laws through BCRA has been chronicled in

detail elsewhere. See, e.g., McConnell, 540 U.S. at 115–34. Throughout, a central aim of

Congress has been to address the appearance or actuality of corruption resulting from large

campaign contributions to political parties and candidates. We briefly review the background of

the particular statutory provisions at issue here to set the context for our consideration of the

challenges presented in this case.

Congress enacted BCRA to address perceived shortcomings in the framework of

campaign-finance laws established under the Federal Election Campaign Act of 1971 (FECA).

From the time of FECA, federal law has limited the amount of funds individuals may contribute

to political parties (and candidates) in any election cycle. See 52 U.S.C. § 30116(a). Because

the statutory definition of “contribution” confines the term to elections for federal office, see id.

§ 30101(8)(A)(i), FECA’s limitations on the amount of contributions by individuals to political

parties solely concern federal elections. Currently, individuals can annually contribute up to

$33,400 to any national political party and $10,000 to any state or local political party. Id.

§ 30116(a)(1), (c); 80 Fed. Reg. 5751, 5752 (2015).

In addition to those ceilings on the amount of contributions by individuals, federal law

also has long prohibited contributions altogether (of any amount) from certain funding sources:

corporations and labor unions are barred from making any contributions from their general funds

to political parties and candidates for federal elections (although those sources can form separate

political action committees, which may make contributions). See 52 U.S.C. § 30118. Together,

the ban on contributions from certain sources and the caps on contributions from individuals are

referred to as FECA’s source and amount limitations. E.g., McConnell, 540 U.S. at 122.

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 Campaign contributions complying with FECA’s source and amount limitations—e.g.,

funding from individuals in amounts below the statutory caps—can be used by political parties in

connection with federal elections, and are known as “federal” or “hard” money. Id. at 122.

Contributions falling outside FECA’s source and amount restrictions—e.g., funding from

individuals in excess of the statutory ceilings, or funding from corporations in any amount—

cannot be used by political parties for federal elections, and are known as “nonfederal” or “soft”

money. Id. at 122–23. But what about a political party’s activities affecting state or local

elections but also inherently influencing federal elections, such as a party’s voter-registration or

get-out-the-vote efforts or its general issue advertisements? Can a party use nonfederal money

for those sorts of initiatives, despite the effect on federal elections?

Before BCRA, the Federal Election Commission (FEC) increasingly allowed the use of

soft-money donations for activities affecting both federal and state elections. Id. at 123–24. The

FEC’s blessing spurred a dramatic increase in the raising and use of soft money by national and

state political parties (and also by candidates, who urged donors to give soft money to parties

after reaching the ceilings on hard-money contributions). Id. at 124–25. Donations of soft

money often dwarfed contributions of hard money. Id. at 124. The upshot was that the

“solicitation, transfer, and use of soft money . . . enabled parties and candidates to circumvent

FECA’s limitations on the source and amount of contributions in connection with federal

elections.” Id. at 126.

Congress enacted BCRA in large measure to “plug the soft-money loophole.” Id. at 133.

First, BCRA took “national parties out of the soft-money business” altogether, id., establishing a

wholesale bar against national political parties’ raising or using nonfederal money, 52 U.S.C.

§ 30125(a). Congress additionally understood that the soft-money ban for national parties would

have little effect if state and local parties remained free to use nonfederal money for activities

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affecting federal elections—donors would then simply route soft-money donations to state and

local parties instead of national parties. See McConnell, 540 U.S. at 133–34; RNC, 698 F. Supp.

2d at 154. Accordingly, Congress, in the provisions directly challenged in this case, restricted

the use of soft money by state and local parties.

The centerpiece of those measures is BCRA § 323(b). 52 U.S.C. § 30125(b). That

provision generally prohibits state and local political parties from using soft money to engage in

“federal election activity” (FEA). Id. The obvious effect of the general bar against using soft

money for FEA is to require the financing of FEA with federal—i.e., hard—money. (The bar is

also subject to exceptions having no bearing on our analysis.) The statute defines FEA to

include voter-registration activity that is sufficiently proximate to a federal election; voter

identification and get-out-the-vote initiatives for elections in which a federal candidate is on the

ballot; public communications referring to a clearly identified candidate for federal office, and

promoting, supporting, attacking, or opposing a candidate for that office; and services provided

by a state-party employee who spends more than twenty-five percent of her work time on

activities in connection with a federal election. Id. § 30101(20)(A).

As a corollary to § 323(b)’s general bar against using soft money for FEA, § 323(c) of

BCRA prohibits the use of soft money to raise funds for FEA. Id. § 30125(c). In addition to

those bans on devoting nonfederal funds to FEA, BCRA requires state and local political parties

to submit periodic reports documenting their receipts and disbursements of federal funds for

FEA if those amounts equal or exceed $5,000 in any year. Id. § 30104(e)(2), (e)(4).

B. Plaintiffs’ Claims

The plaintiffs in this case are various political-party organizations from the state of

Louisiana. They include a state political party (the Republican Party of Louisiana) as well as

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local party affiliates (the Jefferson Parish and Orleans Parish Republican Party Executive

Committees). Plaintiffs desire to undertake a variety of activities constituting FEA.

Plaintiffs challenge the BCRA provisions barring their use of soft money to conduct FEA

and to fundraise for FEA (§§ 323(b)–(c)), as well as BCRA’s requirement that they report their

receipts and disbursements of hard money for FEA. Plaintiffs contend that those measures

violate the First Amendment on their face and as applied to specific FEA in which they wish to

engage. The common thread linking the range of FEA implicated by plaintiffs’ as-applied

challenge is that the activity would be “independent,” in that, according to plaintiffs, they would

conduct the activity without any coordination with a federal candidate or campaign. Plaintiffs

argue that the challenged BCRA provisions unconstitutionally burden their First Amendment

rights by restricting their ability to use nonfederal money to finance independent

communications and other independent activity qualifying as FEA. They state that they have

wanted to use soft money for FEA in past and current election cycles and desire to do so in

future cycles as well. Ver. Compl. ¶¶ 77, 111–14. For instance, plaintiffs would like to use soft

money for independent voter-registration activity and for independent communications

supporting or opposing identified candidates for federal office. Id. ¶¶ 84–105.

BCRA § 323(b) bars the use of nonfederal funds for that (or any other) type of FEA.

While plaintiffs’ challenge encompasses not only § 323(b) but also § 323(c)’s associated bar

against using soft money to raise funds for FEA, as well as BCRA’s reporting requirements for

FEA, plaintiffs explain that they “primarily argue against” § 323(b), “because it is central and the

other provisions are derivative.” Pls.’ Mem. Supp. Mot. Summ. J. 37. Plaintiffs thus see the

latter provisions as rising or falling with § 323(b). Id. at 36–37 n.38.

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 C. Prior Decisions

Two cases in which the Supreme Court rejected First Amendment challenges to BCRA

§ 323(b) form the backdrop for our consideration of plaintiffs’ claims. First, in McConnell v.

FEC, 540 U.S. 93, the Court upheld BCRA’s restrictions on soft-money contributions to

national, state, and local political parties against a facial challenge under the First Amendment.

With regard to § 323(b)’s prohibition against state and local parties’ use of soft money for FEA,

the Court found that “the funding of such activities creates a significant risk of actual and

apparent corruption” because FEA “confer[s] substantial benefits on federal candidates.” Id. at

168. McConnell held that the ban on using nonfederal money for FEA was “a reasonable

response to that risk”—a measure “closely drawn to meet the sufficiently important

governmental interests of avoiding corruption and its appearance.” Id. at 168–69.

Following McConnell, a prior three-judge district court considered an as-applied First

Amendment challenge to BCRA’s soft-money restrictions, including § 323(b)’s limits on state

and local parties’ use of soft money for FEA. RNC, 698 F. Supp. 2d 150. The state and local

political-party plaintiffs in RNC claimed a First Amendment entitlement to use soft money to

fund activity that, while falling within the statutory definition of FEA, would primarily target

state elections and candidates and thus would have only an incidental effect on federal elections.

Id. at 161. The RNC three-judge court rejected that as-applied challenge, finding it incompatible

with McConnell. The court explained that “nothing in McConnell suggests that the question

whether a state or local party’s communication implicates the federal anti-corruption interest

depends on whether the communication is ‘targeted’ at federal elections.” Id.

The Supreme Court summarily affirmed the RNC court’s decision. 561 U.S. 1040. The

Court’s summary affirmance establishes binding precedent on the precise issues presented to the

Court and necessarily resolved by its judgment (including the validity of BCRA § 323(b) against

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the as-applied challenge presented in the case). See Anderson v. Celebrezze, 460 U.S. 780, 784

n.5 (1983). We have no occasion to scrutinize the exact extent to which aspects of the three-

judge court’s decision in RNC may have become binding upon us by virtue of the Supreme

Court’s affirmance. Because we would accept the persuasive force of the RNC court’s decision

in any event, we take up plaintiffs’ challenge on the understanding that we will adhere to the

analysis set out in RNC.

II. Analysis

A. Standing

Before addressing the merits of plaintiffs’ First Amendment claims, we first assure

ourselves of plaintiffs’ standing to bring their challenges. The FEC has moved for dissolution of

the three-judge court for lack of standing, or in the alternative, for an order dismissing the action.

Plaintiffs bear the burden to establish their standing to bring this action, including showing that

the challenged BCRA provisions cause them concrete injury and that a decision in their favor

would redress their injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

The FEC’s arguments against plaintiffs’ standing derive from the particular purposes for

which a three-judge court may be convened under BCRA. Plaintiffs applied to convene this

court pursuant to BCRA § 403(a). That provision allows for a three-judge court to address

challenges to provisions enacted by BCRA, but not measures already in place under FECA. See

McConnell, 540 U.S. at 229. That limitation on a three-judge court’s authority under BCRA

§ 403(a) has implications for a plaintiff’s standing. If a plaintiff’s injuries flow from preexisting

FECA measures lying beyond the remedial reach of a BCRA three-judge court, the court may

lack the ability to redress the plaintiff’s injuries, depriving the plaintiff of standing. See id.;

Rufer v. FEC, 64 F. Supp. 3d 194, 203–04 (D.D.C. 2014).

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 Here, there is little doubt about the existence of standing to challenge BCRA’s reporting

requirements for FEA of $5,000 or more in any calendar year, 52 U.S.C. § 30104(e)(2). The

state-party plaintiff is subject to those reporting obligations, and invalidation of the requirements

would alleviate the state party’s need to submit monthly reports. See id. § 30104(e)(4). That is

enough to establish the state party’s standing with regard to BCRA’s challenged reporting

requirements. And because the state party has standing to bring that claim, there is no need to

assess whether the local parties also have standing to challenge the same provision—we would

reach the merits of the claim regardless. See Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir.

2009).

Plaintiffs’ standing to challenge BCRA’s limitations on the use of soft money by state

and local parties, BCRA §§ 323(b) and 323(c), presents a more involved question. Plaintiffs

allege that their desire to conduct additional FEA is burdened by their inability under BCRA to

use nonfederal funds for that purpose. See Ver. Compl. ¶ 75. We accept that allegation for

purposes of determining plaintiffs’ standing, see Gladstone Realtors v. Vill. of Bellwood, 441

U.S. 91, 109 (1979); Grimes v. D.C., 794 F.3d 83, 94 n.5 (2015), and it demonstrates that

BCRA’s limits on state and local parties’ use of soft money cause plaintiffs concrete injury. The

FEC submits that plaintiffs nonetheless fail to demonstrate injury because they do not show that

they possess (or could raise) additional nonfederal money from individuals that could be devoted

to the FEA they desire to conduct. But as the FEC does not dispute, the state-party plaintiff

possesses nonfederal funding from corporations, see Decl. of Jason Doré Supp. FEC’s Mot.

Summ. J., Ex. 7, at 114, 116, 118, which presently cannot be used for FEA. The state party’s

inability to use corporate funds in its possession for additional FEA in which it would like to

engage qualifies as a concrete injury.

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 The FEC contends, however, that plaintiffs’ inability to spend those corporate

contributions on FEA is not an injury redressable by a three-judge court convened under BCRA

§ 403(a). The FEC observes that, under FECA’s preexisting source and amount limitations,

political parties could not receive contributions from corporations “in connection with” elections

for federal office. 52 U.S.C. § 30118(a). That restriction under FECA, the FEC argues,

independently bars plaintiffs’ use of corporate contributions. And because a BCRA three-judge

court has no authority to invalidate a preexisting FECA measure, the FEC contends, this court

lacks the ability to redress plaintiffs’ injuries.

The FEC’s argument is unpersuasive. It is true that § 30118(a)’s “in connection with”

phraseology could be read to encompass each type of statutorily defined FEA. But before

BCRA’s enactment, the FEC ruled that state and local political parties could use nonfederal

money—including funding from corporations—for certain activities affecting both federal and

state elections. See McConnell, 540 U.S. at 123 & n.7. A primary reason for enacting BCRA

was precisely to bring an end to that acknowledged “soft-money loophole.” Id. at 133. BCRA

did so in part by prohibiting state and local parties from using nonfederal funds for FEA, a new

constraint that did not exist under FECA. Invalidation of that prohibition would enable plaintiffs

to use the corporate funds they have on hand to engage in at least some kinds of FEA, as they

would have been able to do under FECA. Consequently, plaintiffs’ injury—i.e., their inability

under BCRA to use corporate funds in their possession for FEA—is redressable by this court. It

follows that plaintiffs have demonstrated standing to bring their First Amendment challenge to

BCRA §§ 323(b) and 323(c). We proceed, then, to address the substance of their claims.

B. The Merits

Both plaintiffs and the FEC have moved for the entry of summary judgment in their

respective favors. Summary judgment is appropriate if there are no genuine issues of material

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fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. We first consider

plaintiffs’ claim that BCRA § 323(b) and the other challenged provisions are invalid on their

face. We then turn to plaintiffs’ claim that the provisions are invalid as applied to the particular

type of FEA they wish to conduct—i.e., “independent” FEA. As to both the facial and as-

applied claims, we conclude—in line with RNC—that McConnell compels granting summary

judgment to the FEC.

1. Facial Challenge

In McConnell, the Supreme Court squarely rejected a claim that BCRA § 323(b) is

facially invalid under the First Amendment. 540 U.S. at 161–73. In doing so, the Court

invoked the longstanding distinction drawn in the Court’s decisions between contribution limits

and expenditure limits. Id. at 134–42. Those decisions “have subjected restrictions on campaign

expenditures to closer scrutiny than limits on campaign contributions.” Id. at 134.

In particular, when a law constrains the extent to which individuals and entities

unconnected to a federal campaign can expend funds to engage in their own political advocacy

about an election, the expenditure limit must satisfy exacting First Amendment scrutiny. But

when a law instead restricts an individual’s or entity’s contributions to a candidate or political

party, the contribution limit is subjected to a “less rigorous degree of scrutiny.” Id. at 137. That

is because “contribution limits, unlike limits on expenditures, entail only a marginal restriction

upon the contributor’s ability to engage in free communication.” Id. at 134–35 (quotation marks

and alteration omitted). A contribution limitation still “permits the symbolic expression of

support evidenced by a contribution but does not in any way infringe the contributor’s freedom

to discuss candidates and issues.” Id. at 135 (quoting Buckley v. Valeo, 424 U.S. 1, 21 (1976)

(per curiam)). In addition, the more lenient treatment afforded to contribution restrictions

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“reflects the importance of the interests that underlie contribution limits”—avoiding the

appearance or actuality of corruption. Id. at 136.

The McConnell Court examined the facial challenge to BCRA § 323(b) under the less

rigorous standard of scrutiny applicable to contribution limits. That standard calls for assessing

whether the challenged restriction is “closely drawn to match a sufficiently important interest.”

Id. (quotation marks omitted). Applying that standard, the Court upheld § 323(b)’s bar against

state and local political parties’ use of nonfederal funds for FEA. The Court held that “§ 323(b),

on its face, is closely drawn to match the important governmental interests of preventing

corruption and the appearance of corruption.” Id. at 173.

McConnell’s holding forecloses plaintiffs’ facial challenge to § 323(b). Plaintiffs

contend that § 323(b) should be examined under the exacting scrutiny applicable to expenditure

limits rather than the less rigorous standard governing contribution limits. It is not our place,

however, to second-guess the Supreme Court’s treatment of § 323(b) as a contribution restriction

instead of an expenditure restriction. The McConnell Court in fact specifically considered and

rejected the precise argument made by plaintiffs here.

The Court understood that § 323(b) is framed as a bar against state political parties’

spending soft money on FEA, not as a barrier to contributing soft money to state parties for FEA.

Id. at 138. “But for purposes of determining the level of scrutiny,” the Court explained, “it is

irrelevant that Congress chose in § 323 to regulate contributions on the demand rather than the

supply side.” Id. Section 323(b) does not “in any way limit[] the total amount of money parties

can spend”; it “simply limit[s] the source and individual amount of donations.” Id. at 139. That

it does so “by prohibiting the spending of soft money does not render [it an] expenditure

limitation[].” Id.; accord RNC, 698 F. Supp. 2d at 156. The Court accordingly described

§ 323(b) as “a straightforward contribution regulation.” McConnell, 540 U.S. at 161.

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 Plaintiffs submit that McConnell’s treatment of § 323(b) as a contribution limit has since

been “superseded” by the plurality opinion in McCutcheon v. FEC, 134 S. Ct. 1434 (2014)—in

particular, by the McCutcheon plurality’s characterization of the contribution ceiling at issue in

that case as a restriction of “speech.” See Pls.’ Mem. Supp. Mot. Summ. J. 15; McCutcheon, 134

S. Ct. at 1452. We have no warrant, however, to disregard a directly applicable holding of the

Supreme Court based on a supposition that a subsequent decision might call into question the

viability of the Court’s rationale. E.g., Bosse v. Oklahoma, No. 15-9173, slip op. at 2 (U.S. Oct.

11, 2016) (per curiam); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477,

484 (1989). We must instead leave to the Court itself “the prerogative of overruling its own

decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez, 490 U.S. at 484).

At any rate, the McCutcheon plurality’s characterization of the contribution limit at issue

there as a restriction of speech affords no basis for us to disregard McConnell’s holding about the

facial validity of § 323(b). The McCutcheon plurality expressly said so: it confirmed that, while

its decision invalidated FECA’s ceiling on the aggregate amount individuals may contribute to

candidates and party committees in an election cycle, its “holding about the constitutionality of

the aggregate limits clearly does not overrule McConnell’s holding about ‘soft money.’” 134 S.

Ct. at 1451 n.6. Moreover, the approach of the McCutcheon plurality is consistent with

McConnell’s treatment of § 323(b) as a contribution limit subject to less demanding scrutiny.

While the McCutcheon plurality struck down the aggregate contribution limits at issue as an

invalid restriction of speech, id. at 1452, the plurality found no reason to depart from the less

rigorous standard long applied to contribution restrictions, see id. at 1445–46.

McConnell, applying the same standard, upheld § 323(b)’s ban on using soft money for

FEA against a facial challenge. That holding compels rejecting plaintiffs’ facial challenge to the

same provision. And while plaintiffs’ challenge also extends to § 323(c)’s derivative prohibition

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against using nonfederal money to raise funds for FEA, they correctly concede that the validity

of that adjunct provision stands or falls with the validity of § 323(b)’s central prohibition. If

Congress can validly prohibit the use of soft money for FEA, it can also, as a corollary measure,

ban the use of soft money to raise funds for FEA.

That leaves plaintiffs’ facial challenge to BCRA’s reporting requirements for FEA, 52

U.S.C. § 30104(e)(2). Plaintiffs do not argue that the reporting requirements are facially invalid

even if §§ 323(b) and 323(c) are facially valid. Nor could plaintiffs so contend. As a general

matter, “disclosure requirements inhibit speech less than do contribution and expenditure limits.”

SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc). And the Supreme Court

has affirmed that disclosure obligations, unlike contribution and expenditure limits, can be

justified by governmental interests beyond reducing the risk of actual and apparent corruption,

see id., such as the interest in “providing the electorate with information about the sources of

election-related spending,” McCutcheon, 134 S. Ct. at 1459 (plurality opinion) (alteration,

quotation marks, and citation omitted). BCRA’s reporting requirements for FEA bear the

requisite substantial relation to that important objective, see Citizens United v. FEC, 558 U.S.

310, 366–67 (2010), and plaintiffs offer no reason to conclude otherwise.

2. As-Applied Challenge

McConnell’s rejection of a facial challenge to § 323(b) does not necessarily preclude the

possibility of a successful as-applied challenge. But “a plaintiff cannot successfully bring an as-

applied challenge to a statutory provision based on the same factual and legal arguments the

Supreme Court expressly considered when rejecting a facial challenge to that provision. Doing

so is not so much an as-applied challenge as it is an argument for overruling a precedent.” RNC,

698 F. Supp. 2d at 157.

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 Here, plaintiffs’ as-applied challenge encompasses a broad range of FEA in which they

wish to engage, all of which shares the common feature that it would be conducted

independently—i.e., without coordination with any federal candidate or campaign. In plaintiffs’

view, § 323(b)’s ban on using soft money for FEA is invalid as applied to state and local parties’

independent FEA because independent spending of that kind poses an insufficient risk of actual

or apparent corruption.

Plaintiffs’ argument is incompatible with McConnell’s approach in rejecting the facial

challenge to § 323(b). The challengers in McConnell contended that § 323(b) encompassed

“activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes

well beyond Congress’ concerns about the corruption of the federal electoral process.” 540 U.S.

at 166. The Court disagreed. It canvassed the full range of activity constituting FEA—from

voter-registration initiatives to public communications supporting or attacking federal

candidates—all of which, under § 323(b), must be financed with hard money. See 540 U.S. at

166–71. The Court “concluded that because all of those activities ‘confer substantial benefits on

federal candidates, the funding of such activities creates a significant risk of actual and apparent

corruption.’” RNC, 698 F. Supp. 2d at 161–62 (quoting McConnell, 540 U.S. at 168). That is

fully true with regard to the independent FEA sought to be conducted by plaintiffs in this case.

The RNC court’s rejection of a comparable as-applied claim is highly instructive on this

score. There, instead of wishing to engage in independent FEA, the challengers sought to

conduct FEA targeting state elections and having only an incidental effect on federal elections.

The RNC court explained that the particular category of FEA implicated by the plaintiffs’ as-

applied claim (activity targeted at state elections) had “no legal relevance under McConnell.” Id.

at 162. The “Supreme Court made clear that whether § 323(b) can be constitutionally applied to

a particular state or local party activity depends, not on whether the party’s primary ‘target’ is

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federal, but on whether the activity would provide a direct benefit to federal candidates.” Id.

Here, no less than in RNC, plaintiffs cannot “deny that their proposed activities”—independent

FEA—“would provide such a benefit.” Id.

Plaintiffs nevertheless see significance in the category of independent FEA based on the

Supreme Court’s decision in Citizens United v. FEC, 558 U.S. 310. Citizens United invalidated

a ban on independent expenditures by corporations and labor unions. The Court reasoned that

such independent expenditures, as a matter of law, do not give rise to the appearance or reality of

quid pro quo corruption (which, according to the Court, is the sole type of corruption that can

justify a contribution or expenditure limit). Id. at 356–61; see McCutcheon, 134 S. Ct. at 1450

(plurality opinion). Plaintiffs here contend that, in light of Citizens United’s treatment of

independent expenditures, a state party’s independent spending on FEA likewise poses no risk of

quid pro quo corruption or its appearance.

Plaintiffs misperceive the reach of Citizens United. While noting that the independent

expenditures at issue there presented no risk of quid pro quo corruption, the Citizens United

Court distinguished the soft-money contributions considered in McConnell: “The BCRA record

establishes that certain donations to political parties, called ‘soft money,’ were made to gain

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

money.” Citizens United, 558 U.S. at 360–61 (citations omitted). By its own terms, then,

“Citizens United did not disturb McConnell’s holding with respect to the constitutionality of

BCRA’s limits on contributions to political parties.” RNC, 698 F. Supp. 2d at 153.

In supposing otherwise, plaintiffs misunderstand the way in which large soft-money

contributions to political parties create a risk of quid pro quo corruption. As plaintiffs conceive

of things, the potential quid for which a federal officeholder might be induced to grant a favor

comes in the form of the spending of nonfederal funds by a political party. And if the spending

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is independent of a candidate or campaign, plaintiffs posit, then it, like the independent

expenditures considered in Citizens United, cannot give rise to a threat of quid pro quo

corruption.

The flaw in that account lies in its conception of the potential quid. Under McConnell,

the inducement occasioning the prospect of indebtedness on the part of a federal officeholder is

not the spending of soft money by a political party. The inducement instead comes from the

contribution of soft money to the party in the first place. McConnell explains why: “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.” 540 U.S. at 154–55. “Given 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” by the parties. Id. at 155 (emphasis added).

That understanding about “soft-money contributions to national parties” necessarily also

extends to the state and local parties directly subject to § 323(b). After all, “BCRA’s restrictions

on national committee activity would rapidly become ineffective if state and local committees

remained available as a conduit for soft-money donations.” Id. at 161. Congress concluded that,

if it barred national parties from raising soft-money contributions but left state parties free to do

so, “political parties would react . . . by directing soft-money contributors to the state

committees, and . . . federal candidates would be just as indebted to these contributors as they

had been to those who had formerly contributed to the national parties.” Id. at 165.

The RNC court thus described its understanding of McConnell as follows: “In relying in

part on the inherently close relationship between parties and their officeholders and candidates,”

McConnell reasoned that “contributions to national [and state] parties have much the same

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tendency as contributions to federal candidates to result in quid pro quo corruption or at least the

appearance of quid pro quo corruption.” 698 F. Supp. 2d at 159 (citing McConnell, 540 U.S. at

144). In that light, Citizens United’s holding about independent expenditures did not displace

McConnell’s recognition of the inherent capacity of soft-money contributions to create a risk of

quid pro quo corruption or its appearance, regardless of whether political parties ultimately

spend those contributions independently of—or instead in coordination with—federal candidates

and campaigns.

The potential for quid pro quo corruption stemming from soft-money contributions to

political parties not only distinguishes them from spending by independent-expenditure

organizations, but it also distinguishes them from contributions to independent-expenditure

organizations. In SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), the D.C.

Circuit invalidated a bar against contributions to a nonprofit organization that solely made

independent expenditures and did not contribute to (or coordinate with) candidates and

campaigns. Cf. McCutcheon, 134 S. Ct. at 1442 n.2 (describing “independent expenditure

PACs”). The court reasoned that if, under Citizens United, independent expenditures by outside

organizations carry no risk of quid pro quo corruption, contributions to outside organizations

engaged solely in independent expenditures likewise pose no threat of quid pro quo corruption.

SpeechNow.org, 599 F.3d at 694–95. But even if contributions to independent-expenditure

organizations present no potential for quid pro quo corruption, contributions to political parties,

for the reasons described in McConnell, have that potential. See id. at 695. As the D.C. Circuit

has explained elsewhere, “McConnell affirmed BCRA’s limits on contributions to political

parties because of the close ties between candidates and parties,” but “McConnell views political

parties as different in kind than independent expenditure committees.” Emily’s List v. FEC, 581

F.3d 1, 13, 22 (D.C. Cir. 2008) (citation and quotation marks omitted).

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 None of this is to say that a political party necessarily is incapable of making

independent expenditures. In a pre-McConnell decision, Colorado Republican Federal

Campaign Committee v. FEC, 518 U.S. 604 (1996), the Supreme Court struck down a law that

operated to impose a cap on independent expenditures by a party. But the plurality opinion drew

a distinction, with regard to the “danger of corruption” presented, between a “statute’s

limitations on expenditures” by political parties and a “statute’s limitations on contributions to

political parties.” Id. at 617 (second emphasis added). The Court in that case considered the

former type of statute, which the plurality invalidated in part because the circumstances

addressed by the statute involved an inadequate “risk of corruption.” Id. In McConnell, by

contrast, the Court considered the latter type of statute—i.e., § 323(b)’s “straightforward

contribution regulation.” 540 U.S. at 161. The McConnell Court thus explained that Colorado

Republican had “addressed an entirely different question—namely, whether Congress could

permissibly limit a party’s independent expenditures.” Id. at 145–46 n.45. And even as to that

separate question, Colorado Republican had been based “on an entirely different set of facts”—

namely, “an evidentiary record frozen in 1990—well before the soft-money explosion of the

1990’s.” Id.

McConnell, in short, upheld § 323(b)’s contribution limit based on the threat of quid pro

quo corruption posed by soft-money contributions to parties, regardless of how they ultimately

spend the funds. And plaintiffs’ effort to avoid McConnell based on the independent nature of

their planned spending misconceives of the relevant quid as the spending by the party rather than

the contribution to the party.

Plaintiffs also make a distinct argument to avoid McConnell that is focused on the nature

of the quo. In particular, they contend that the plurality opinion in McCutcheon cabins the kind

of actions by federal officeholders that can make out the requisite quid pro quo corruption.

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According to plaintiffs, whereas McConnell generally assumed that the existence of influence or

access would suffice, the McCutcheon plurality clarifies that something more—akin to the taking

of an official action—is required. See 134 S. Ct. at 1450–51.

Plaintiffs’ argument about the quo gets them no further than their argument about the

quid. Whatever may be the implications of the McCutcheon plurality’s opinion for the kind of

officeholder actions evidencing the requisite degree of quid pro quo corruption, that opinion, as

noted, specifically left intact “McConnell’s holding about ‘soft money.’” Id. at 1451 n.6. The

plurality denied the suggestion that it had “silently overruled” McConnell’s holding sustaining

the validity of BCRA’s restrictions on soft-money contributions. Id. In describing McConnell’s

soft-money holding, the McCutcheon plurality referred specifically to BCRA’s blanket ban on

national parties’ raising and using soft money. If the soft-money ban for national parties remains

untouched, so too must § 323(b)’s restriction on the use of soft money by state and local

parties—the latter measure is less restrictive in allowing the use of nonfederal funds for at least

some purposes (i.e., non-FEA). And McConnell’s holding sustaining the facial validity of

§ 323(b), as we have explained, forecloses plaintiffs’ as-applied challenge.

In addition, in describing what qualifies as quid pro quo corruption, the McCutcheon

plurality relied entirely on—and quoted from—the understanding set out in Citizens United. See

McCutcheon, 134 S. Ct. at 1450–51. And the RNC court explained in detail why the showing of

quid pro quo corruption in McConnell meets the standard set forth in Citizens United. RNC, 698

F. Supp. 2d at 158–60. For our purposes, consequently, McConnell’s treatment of § 323(b)

survives both Citizens United and McCutcheon.

Because McConnell’s approach in sustaining the facial validity of § 323(b) is

incompatible with plaintiffs’ as-applied challenge to the same provision, we reject that challenge.

As is the case with their facial challenge, moreover, plaintiffs give no reason to reach any

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