                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 REPUBLICAN PARTY OF LOUISIANA,
 et al.,

                        Plaintiffs,

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

 FEDERAL ELECTION COMMISSION,

                        Defendant.

                                      MEMORANDUM OPINION

       The Federal Election Campaign Act (“FECA”) establishes dollar limits on contributions that

individuals and certain entities may make to a single federal candidate or political-party committee

in a given election cycle. In 1998, the Senate Committee on Governmental Affairs concluded that

certain corporations, labor unions, and wealthy individuals had sought to circumvent FECA’s limits

on contributions to political parties through so-called “soft money” contributions. S. Rep. No. 105-

167 (1998). In campaign-finance parlance, “soft money” refers to federally unregulated money

contributed to parties for activities intended to influence state or local elections. To prevent the use

of soft money to fund election activity that was ostensibly non-federal but in fact benefited federal

candidates, Congress, in the Bipartisan Campaign Reform Act of 2002 (“BCRA”), banned national-

and state-party committees from using funds raised in excess of the FECA contribution limits to

engage in activity affecting federal elections. This “federal election activity” includes such conduct

as voter registration, voter identification, and get-out-the-vote activities connected to elections with

federal candidates on the ballot, as well as public communications that refer to clearly identified

federal candidates.

       Soon after Congress imposed the soft-money ban, the Supreme Court rejected a facial

challenge to its constitutionality in McConnell v. FEC, 540 U.S. 93 (2003). The ban withstood an
as-applied challenge seven years later in RNC v. FEC (“RNC I”), 698 F. Supp. 2d 150 (D.D.C.

2010), aff’d, 561 U.S. 1040 (2010). And just last year, the Chief Justice stressed—in his opinion

overturning limits on the aggregate value of contributions an individual can make to multiple

candidates (or parties) in one election cycle—that “[o]ur holding about the constitutionality of the

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

v. FEC, 134 S. Ct. 1434, 1451 n.6 (2014).

       Undaunted, Plaintiffs in this case—state and local committees of the Republican Party in

Louisiana—seek yet another bite at the apple. They have sued the Federal Election Commission

(“FEC”), alleging that the soft-money ban and two related BCRA provisions unduly infringe on

their First Amendment free-speech rights. The laws do so, Plaintiffs contend, by preventing them

from funding so-called “independent” federal election activities—activities not coordinated with a

candidate or campaign—from state-party-committee accounts that are not subject to federal

contribution limitations and administrative requirements. The ultimate merits of this latest

challenge are not yet before the Court. At this stage, the Court must decide only whether Plaintiffs

are entitled to have their claims heard by a three-judge district court, whose final rulings on the

merits could be appealed directly to the Supreme Court, under BCRA’s special judicial-review

mechanism. See BCRA § 403.

       Close observers of the campaign-finance arena may be experiencing twinges of déjà vu.

Last year, these same plaintiffs, represented by the same counsel, were among those who mounted

similar challenges to the soft-money ban before this Court. See Rufer v. FEC, 64 F. Supp. 3d 195

(D.D.C. 2014); RNC v. FEC (“RNC II”), No. 14-cv-00853 (D.D.C. Aug. 19, 2014). This Court

declined to convene a three-judge court to hear those challenges. While the Court found that the

plaintiffs had presented “substantial, non-frivolous” constitutional claims, it concluded they lacked

standing to bring those claims before a three-judge court because their central alleged injury—being

                                                   2
prevented from accepting unlimited contributions to fund “independent” election activity—could

have been redressed only by invalidating the longstanding base party contribution limits in FECA.

Rufer, 64 F. Supp. 3d at 198. BCRA three-judge courts, however, are empowered to decide only

constitutional challenges to provisions of BCRA itself. Id. Having been deprived of a direct ticket

to the Supreme Court, the Rufer and RNC II plaintiffs abandoned their appeal of the Court’s ruling,

and at least some of them regrouped to fight another day.

       That day has now come, and the Court is again presented with the same two questions: Are

Plaintiffs’ constitutional claims substantial, and are their alleged injuries redressable by a BCRA

three-judge court? The Court this time answers yes to both. As in Rufer and RNC II, Plaintiffs

have presented substantial constitutional claims. While the Supreme Court has twice upheld

BCRA’s soft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon

created widespread uncertainty over the central question presented here: whether truly independent

campaign expenditures by political parties—if there can be such a thing—pose the type of

corruption risk that the Supreme Court has held is necessary to justify limiting federal election

spending. Given this uncertainty, Plaintiffs’ claims cannot be fairly characterized as “frivolous,”

“obviously without merit,” or “so foreclosed by” Supreme Court precedent that there is “no room

for the inference that the question sought to be raised can be the subject of controversy.” Feinberg

v. FDIC, 522 F.2d 1335, 1339 (D.C. Cir. 1975) (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)).

       But unlike in the prior cases, the Court concludes that Plaintiffs here have standing to

present their claims to a three-judge court. The core injury alleged by the Rufer and RNC II

plaintiffs could not have been redressed without striking down FECA’s base limits, which a BCRA

three-judge court may not do. Assiduously avoiding a frontal assault on the base limits, Plaintiffs

here re-characterize their injury as simply being prevented from spending funds from state-party-

committee accounts on federal election activity, without regard to the FECA base limits. Make no

                                                  3
mistake, a ruling for Plaintiffs on the merits would render largely meaningless FECA’s limits on

contributions to state- and local-party committees: Depending on the contribution limits in the

relevant state, if any, an individual or corporation would be able to contribute sums in excess of the

existing FECA-imposed federal limits to a state party, and the party could then deposit those funds

in a state account and use them to engage in “independent” federal election activity on a scale that

would be impossible under existing law. Plaintiffs have nevertheless established standing because,

technically speaking, the relief they seek can be achieved by invalidating BCRA’s soft-money ban

while leaving FECA’s base limits in place. Clever indeed, but not too clever by half as the FEC

suggests. The Court will, accordingly, grant Plaintiffs’ motion to convene a three-judge district

court to hear their claims as required by BCRA § 403.

        I.      Background

                A.      Statutory Scheme

        As the Court has previously explained, see Rufer, 64 F. Supp. 3d at 199–200, Congress

amended FECA in 1976 to establish monetary ceilings on contributions to political-party

committees intended to influence federal elections. Federal Election Campaign Act Amendments

of 1976, Pub. L. No. 94–283, § 112, 90 Stat. 487 (codified at 52 U.S.C. § 30116). These

amendments prohibited contributions to “political committees established and maintained by a

national political party . . . which, in the aggregate, exceed $20,000; or . . . to any other political

committee . . . which, in the aggregate, exceed $5,000.” Id. In ensuing campaign cycles, certain

corporations, labor unions, and wealthy individuals sought to bypass these contribution limits by

making so-called “soft money” contributions to political parties—contributions ostensibly

earmarked for state and local elections or “issue advertising” and thus not subject to the same legal

requirements as contributions explicitly intended to influence federal elections. McConnell, 540

U.S. at 122–26. In 2002, Congress responded to this circumvention of FECA’s contribution limits

                                                     4
by enacting BCRA, a sweeping series of amendments to FECA which, among other things, limited

soft-money contributions to political parties. Id.

       Rather than specifically defining and prohibiting soft-money contributions, BCRA imposed

a general ban on certain entities involved in federal elections from collecting funds in excess of

FECA’s base contribution ceilings. BCRA § 101, codified at 52 U.S.C § 30125, added a new

section to FECA (section 323) prohibiting national-, state-, and local-party committees from

soliciting, receiving, spending, or disbursing money not raised in compliance with the base

contribution limits. BCRA also amended the overall base limits by capping individual

contributions to state-party committees at $10,000, and by increasing FECA’s contribution limit for

national parties to $25,000 and pegging that limit to inflation. BCRA §§ 102(3), 307(a)(2).

       FECA contains a special judicial-review mechanism that requires a district court to “certify

all questions of constitutionality of the Act to the United States court of appeals for the circuit

involved, which shall hear the matter sitting en banc” if the challenge is brought by “the national

committee of any political party, or any individual eligible to vote in any election for the office of

President.” 52 U.S.C. § 30110. Rather than incorporate FECA’s preexisting judicial-review

procedure into BCRA, Congress required that constitutional challenges to any “provision of” or

“amendment made by” BCRA be heard by a three-judge district court. See BCRA § 403(a)(3). To

expedite Supreme Court review of the constitutionality of the new statute, Congress provided that

decisions of the three-judge court may be appealed directly to the Supreme Court. Id.

               B.      Plaintiffs’ Challenge

       Plaintiffs in this action are the Republican Party of Louisiana (“state-party plaintiff”) and the

Jefferson Parish and Orleans Parish Republican Party Executive Committees (“local-party

plaintiffs”). They seek to use nonfederal funds to engage in a wide variety of non-coordinated



                                                     5
“federal election activity,” 1 including conducting mass mailings exhorting voter registration and

voting; performing voter identification; undertaking other generic campaign activity; and paying

some portion of the salaries of employees who spend a significant amount of their time on federal

election activity. Verified Compl. ¶¶ 84–106. Plaintiffs ask the Court to invalidate three BCRA

provisions that they contend stand in the way.

          (1) the Ban, BCRA § 101(a), which prohibits “state, district, [and] local committees”
          from using nonfederal funds for federal election activity and is codified at 52 U.S.C.
          30125(b)(1);

          (2) the Fundraising Requirement, BCRA § 101(a), which requires state and local
          committees to pay “direct costs,” 11 C.F.R. 300.32(a)(3), of fundraising activity for
          funds used for federal election activity and is codified at 52 U.S.C. 30125(c); and

          (3) the Reporting Requirement, BCRA § 103(a), which requires monthly reporting by
          “political committees” of federal election activity, including identifying information


1
    Congress has defined “federal election activity” as

          (i) voter registration activity during the period that begins on the date that is 120
          days before the date a regularly scheduled Federal election is held and ends on the
          date of the election;

          (ii) voter identification, get-out-the-vote activity, or generic campaign activity
          conducted in connection with an election in which a candidate for Federal office
          appears on the ballot (regardless of whether a candidate for State or local office also
          appears on the ballot);

          (iii) a public communication that refers to a clearly identified candidate for Federal
          office (regardless of whether a candidate for State or local office is also mentioned
          or identified) and that promotes or supports a candidate for that office, or attacks or
          opposes a candidate for that office (regardless of whether the communication
          expressly advocates a vote for or against a candidate); or

          (iv) services provided during any month by an employee of a State, district, or local
          committee of a political party who spends more than 25 percent of that individual’s
          compensated time during that month on activities in connection with a Federal
          election.

52 U.S.C. § 30101(20)(A).



                                                     6
       on disbursements/receipts for “person[s] aggregating in excess of $200 for any
       calendar year,” 52 U.S.C. 30104(e).

Id. ¶ 32, 34, 35. They challenge these provisions as unconstitutional under the First Amendment (1)

as applied to (a) non-individualized, independent communications exhorting registering to vote and

voting and (b) non-individualized, independent communications by Internet; (2) as applied to (a)

non-individualized, independent communications and (b) such communications made from a so-

called independent-communications-only account (“ICA”); (3) as applied to all independent federal

election activity; and (4) facially. Verified Compl. ¶ 1.

       While Plaintiffs do not directly challenge the base contribution limits established by FECA,

the clear effect, if not purpose, of a successful challenge would be to enable circumvention of those

limits. Indeed, the remedy Plaintiffs seek would effectively eviscerate the limits. After all, if a

state or local party is free to spend (potentially unlimited) funds from its nonfederal account on

federal election activity, then what purpose would limits on contributions to federal accounts serve?

If the provisions of BCRA to which Plaintiffs object are struck down, Plaintiffs will be free to raise

and spend tens of thousands of dollars more through their nonfederal accounts than they would be

able to through federal accounts subject to FECA’s limits. In Louisiana, for example, a state party

may accept up to $100,000 over four years from a single individual, Verified Compl. ¶ 109, well

above the $10,000 a state party may receive annually from an individual for purposes of spending

on federal election activity. If an individual were to contribute the maximum amount allowed under

state law to the Republican Party of Louisiana over a four-year cycle, and Plaintiffs’ BCRA

challenge is successful, the state party could spend $60,000 more on federal election activity as a

result of that donor’s contributions than it could as the law stands today. And in a state with no

contribution limits whatsoever for state parties, striking down the provisions of BCRA that




                                                   7
Plaintiffs challenge would allow for unlimited contributions to a state party for the purpose of

conducting federal election activity.

       Plaintiffs request that this Court convene a three-judge court to adjudicate their challenges

pursuant to BCRA § 403. They have also filed a motion to expedite this action. The FEC seeks

discovery, to which Plaintiffs have agreed to a limited extent. The Court held a hearing on

Plaintiffs’ three-judge-court application and the motion to expedite on October 27, 2015.

               C.      Relevant Case Law

       As the Court observed in Rufer, “this case sits at the confluence of two currents of First

Amendment jurisprudence concerning federal campaign finance.” 64 F. Supp. 3d at 200. The first

establishes that Congress may, consistent with the First Amendment, limit contributions to federal

candidates and their parties in order to curb the risk and appearance of corruption in the legislative

process. See McCutcheon, 134 S. Ct. at 1451 n.6 (noting that the “base [contribution] limits remain

the primary means of regulating campaign contributions”); McConnell, 540 U.S. at 154–55

(affirming the constitutionality of contribution limits to political parties and observing that due to

“the close relationship between federal officeholders and the national parties, . . . large soft-money

contributions are likely to create actual or apparent indebtedness on the part of federal

officeholders, regardless of how those funds are ultimately used”); Buckely v. Valeo, 424 U.S. 1, 96

(1976) (upholding the constitutionality of FECA’s base contribution limits); see also RNC I, 698 F.

Supp. 2d at 152 (“Congress may impose some limits on contributions to federal candidates and

political parties because of the quid pro quo corruption or appearance of quid pro quo corruption

that can be associated with such contributions.”). The FEC argues that this line of cases squarely

forecloses Plaintiffs’ challenge to the soft-money ban, which was meant to do precisely that: curb

the risk and appearance of corruption in the legislative process.



                                                   8
       The second jurisprudential current establishes that the risk of corruption arising from

contributions to candidates and parties dissipates when the recipient of the donation is distinct from

a candidate or party. Cases applying this principle hold that the First Amendment forbids Congress

from limiting contributions to and expenditures by political action committees and other

“independent” entities whose campaign spending is not coordinated with candidates or parties. See

Citizens United v. FEC, 558 U.S. 310, 357 (2010) (concluding that “independent expenditures . . .

do not give rise to corruption or the appearance of corruption,” and thus independent-expenditure-

only organizations cannot be subject to any contribution limits under the First Amendment); see

also Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 618 (1996) (holding that

political parties may make unlimited independent expenditures using contributions subject to

FECA’s limits); Buckley, 424 U.S. at 47 (“The absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only undermines the value of the expenditure to the

candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for

improper commitments from the candidate.”). Plaintiffs argue that these holdings should apply

equally to independent spending by party committees, notwithstanding their close relationship to

candidates. What’s sauce for the PAC geese, they submit, should be sauce for the party ganders.

       II.     Analysis

               A.      Jurisdiction

       As noted above, the Court’s role at this stage of the proceedings is to determine how and by

whom this case will be heard. Plaintiffs have applied for the appointment of a three-judge district

court to adjudicate the constitutionality of the challenged BCRA provisions. See Pls.’ Appl. for

Three-Judge Court 1 (citing BCRA § 403(a), (d)(2) (allowing plaintiffs to challenge the

constitutionality of BCRA provisions before a three-judge district court convened pursuant to 28

U.S.C. § 2284)). BCRA’s judicial-review provision appears straightforward. It states simply, in

                                                  9
mandatory language, that a constitutional challenge to BCRA “shall,” if the plaintiff so chooses, be

heard by a three-judge court in the United States District Court for the District of Columbia. Not

just any constitutional challenge needs to be heard by a three-judge court, however.

       To qualify for a three-judge court, a case must present a “‘substantial claim’ and ‘justiciable

controversy.’” Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C.2011) (quoting Feinberg, 522

F.2d at 1338). 2 Plaintiffs’ claims should not proceed to a three-judge court if they are “‘obviously

without merit,’ or if their ‘unsoundness so clearly results from the previous decisions of [the

Supreme Court] as to foreclose the subject and leave no room for the inference that the question

sought to be raised can be the subject of controversy.’” Feinberg, 522 F.2d at 1338 (quoting Ex

parte Poresky, 290 U.S. at 32). Similarly, Plaintiffs’ claims should not be heard by a three-judge

court if Plaintiffs lack standing. See Nixon v. Richey, 513 F.2d 430, 446 n.129 (D.C. Cir. 1975)

(“In Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 (1974), the [Supreme] Court

noted that a single judge could dismiss a constitutional challenge for lack of standing without

asking for a three-judge court . . . .”). With these standards in mind, the Court turns first to the

question of whether Plaintiffs have standing and whether a three-judge court in particular could

redress their alleged harm.




       2
         It bears mention that the Supreme Court may soon clarify the standard for “determin[ing]
that a complaint covered by 28 U.S.C. § 2284 is insubstantial[] and that three judges are therefore
not required.” See 14-990 Shapiro v. McManus, U.S. Supreme Court (June 8, 2015),
http://www.supremecourt.gov/qp/14-00990qp.pdf. Should the Supreme Court’s forthcoming ruling
in Shapiro v. McManus alter this Court’s analysis of whether Plaintiffs’ claims are constitutionally
insubstantial, the three-judge court convened to hear Plaintiffs’ challenge will retain and may
exercise the authority to dissolve itself—an order that would be appealable not directly to the
Supreme Court, but instead to the U.S. Court of Appeals for the D.C. Circuit. See Gonzalez v.
Automatic Emp. Credit Union, 419 U.S. 90, 99–101 (1974).

                                                   10
                       1.      Standing

       This Court may properly dismiss Plaintiffs’ claims without convening a three-judge court if

Plaintiffs lack standing to bring those claims. To have standing, “the plaintiff[s] must have suffered

an ‘injury in fact’—an invasion of a legally protected interest”—which is concrete and

particularized and is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

In addition, “there must be a causal connection between the injury and the conduct complained of.”

Id. (quoting Simon v. E. Ky. Rights Org., 426 U.S. 26, 41–42 (1976)). Finally, “it must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id.

(quoting Simon, 426 U.S. at 38, 43, 96).

                               a. Injury

       The Court’s analysis begins with Plaintiffs’ alleged injury. Although the allegations in

Plaintiffs’ verified complaint are far from crystal clear on this point, Plaintiffs appear to claim that

their injury derives from being forced to spend only federal funds, contained in a federal account

and subject to federal regulations, on federal election activity. Verified Compl. ¶ 75. The state-

party plaintiff explains that “its ability to do desired federal election activity is burdened by the

inability to allocate costs to nonfederal funds as allowed before BCRA, and [that] it cannot do some

desired federal election activity due to this inability.” Id. The local-party plaintiffs claim that they

are injured by “the complexity and burden of compliance, including creating a federal account to

fund [federal election] activity,” which restricts—or at least encumbers—their ability to engage in

election-related speech. Id. ¶ 76.

       Thus, for the state-party plaintiff to continue to conduct its desired federal election activity,

it is forced to maintain a federal account and to comply with the regulations and reporting

requirements that accompany such an account. Similarly, for the local-party plaintiffs to conduct

their desired federal election activity—at least the amount of activity they seek to fund—they would

                                                   11
be forced to open a federal account and to comply with the accompanying regulations and reporting

requirements. Because BCRA forces Plaintiffs to channel funding for most federal election activity

through federal accounts, which they allege to be a relatively burdensome alternative to funding

such activity through existing nonfederal accounts, Plaintiffs have identified an injury—a restriction

on their speech—that suffices to establish constitutional standing. See Citizens United, 558 U.S. at

337–38 (observing, for example, that “the option to form [federal political action committees] does

not alleviate the First Amendment problems with [a ban on corporate electoral advocacy]” because

“PACs are burdensome alternatives; they are expensive to administer and subject to extensive

regulations”).

       The FEC nonetheless contends that Plaintiffs’ injury is partly self-inflicted because they

have the option of using a special type of nonfederal funds, known as “Levin funds,” to conduct

some of their intended federal election activity. Defs.’ Opp’n 7. The Supreme Court described

“Levin funds” in McConnell:

       A refinement on the pre-BCRA regime that permitted parties to pay for certain
       activities with a mix of federal and nonfederal funds, the Levin Amendment allows
       state and local party committees to pay for certain types of federal election activity
       with an allocated ratio of hard money and “Levin funds”—that is, funds raised within
       an annual limit of $10,000 per person. 2 U.S.C. § 441i(b)(2). Except for the $10,000
       cap and certain related restrictions to prevent circumvention of that limit, § 323(b)(2)
       leaves regulation of such contributions to the States.

540 U.S. 93, 162–63 (2003). In addition, “corporations and unions that are restricted from

contributing under federal law can provide Levin funds.” Defs.’ Opp’n 7. As the FEC

acknowledges, however, Plaintiffs could use Levin funds to conduct only “some of their desired

activities,” because those “funds may only be used to fund certain activities falling within the first

two categories of federal election activity: (1) voter registration activity in the run up to a federal

election, and (2) voter identification, get-out-the-vote, and certain generic campaign activity.” Id. at

7–8, 18–19 (citing 52 U.S.C. § 30125(b)(2)(A)). Plaintiffs seek to engage in additional federal

                                                    12
election activity, including paying a portion of the salaries of employees who spend more than 25%

of their compensated time in a given month on federal election activities, Verified Compl. ¶ 106,

payments which the FEC appears to agree Plaintiffs could not make using Levin funds, Defs.’

Opp’n 8 (citing 52 U.S.C. § 30125(b)(2)(B)(i)).

       The FEC’s argument also misses a broader point: At least part of Plaintiffs’ alleged injury

stems not from an inability to raise enough federal funds to conduct their desired level of federal

election activity, but from being forced—in order to conduct that amount of activity—to maintain

or establish federal accounts and to comply with a host of federal regulations governing the use of

federal funds. Plaintiffs claim they do not use Levin funds for the same reason they seek to avoid

conducting federal election activity through funds raised and spent from federal accounts: the

accompanying “complexity, burdens, and restrictions.” Verified Compl. 5 n.4; see also Pls.’ Reply

21 n.22 (“Levin funds require extensive recordkeeping and are limited in how they may be raised,

how much may be raised, and how they may be used—they cannot be used, inter alia, for the sort of

broadcast activities Plaintiffs wish to do and for any [federal election activity] identifying a federal

candidate.”). The theoretical availability of Levin funds, therefore, does not ameliorate this aspect

of Plaintiffs’ claimed injury.

                                 b. Causation

       Plaintiffs have also established causation. Although the FEC contended at oral argument

that FECA, not BCRA, imposes the regulations and reporting requirements of which Plaintiffs

complain, it is BCRA that requires state and local parties that wish to conduct federal election

activity to do so only with “funds subject to the limitations, prohibitions, and reporting

requirements of th[e] Act.” 52 U.S.C. § 30125. BCRA is the reason why Plaintiffs may not expend

their nonfederal funds, in nonfederal accounts and not subject to federal regulation, on their desired



                                                   13
federal election activity. Thus, the challenged provisions of BCRA here are the cause of Plaintiffs’

purported injury.

                               c. Redressability

       The FEC does not contest that Plaintiffs’ alleged injuries could be redressed by a favorable

decision in an appropriate judicial forum. Rather, as in Rufer and RNC II, the FEC contends that a

three-judge court could not redress Plaintiffs’ alleged injuries. The Court agrees that a three-judge

court would be unable to provide Plaintiffs the relief they seek if what they sought was to invalidate

the base contribution limits put in place by FECA. See Rufer, 64 F. Supp. 3d at 204 (“A three-

judge BCRA court ‘has no power to adjudicate a challenge to the [base] FECA limits.’” (quoting

McConnell, 540 U.S. at 229)). But in contrast to the challenge brought in Rufer and RNC II,

Plaintiffs here do not seek, directly at least, the invalidation of FECA’s base contribution limits.

Plaintiffs instead challenge the provisions of BCRA that stand in the way of their using nonfederal

funds, contained in nonfederal accounts, to fund significant amounts of federal election activity.

They want to be able to spend freely from those nonfederal funds on that federal election activity.

And a three-judge BCRA court could indeed allow Plaintiffs to do just that without having to

invalidate FECA’s base contribution limits.

       Issuing a ruling that has the effect of rendering FECA’s base contribution limits meaningless

is not the same thing as issuing one that strikes down those limits. While a three-judge court is

powerless to do the latter, nothing prevents it from doing the former. Therefore, there is no

redressability bar to Plaintiffs’ attempt to have their case heard before a three-judge court convened

pursuant to BCRA’s judicial-review provision.

                       2.      Substantiality

       Plaintiffs’ constitutional claims need not proceed to a three-judge court if they are

insubstantial. A constitutional claim is insubstantial if it is obviously devoid of merit or if

                                                   14
precedent unquestionably forecloses the subject of the claim and leaves no room for suggesting that

the question raised can be the subject of controversy. Feinberg, 522 F.2d at 1338; see also Goosby

v. Osser, 409 U.S. 512, 518 (1973) (“‘Constitutional insubstantiality’ for this purpose has been

equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. at 33, ‘wholly

insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288

(1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 (1933).”). While this

standard may sound simple to apply, the “determination of substantiality is rarely mechanical,” and

“[i]n many cases . . . , there may be considerable room for argument over whether particular

constitutional claims are so frivolous, or so foreclosed by prior decisions, as to be too insubstantial

for jurisdiction.” Feinberg, 522 F.2d at 1339. This is indeed such a case.

       As noted previously, both McConnell and RNC I upheld the constitutionality of the same

provisions of BCRA that Plaintiffs challenge here, which are now codified at 52 U.S.C. § 30125.

McConnell upheld these provisions against a facial challenge, 540 U.S. at 161–73, and RNC I

upheld them against an as-applied challenge, 698 F. Supp. 2d at 160–62. Plaintiffs contend that

their argument—that the First Amendment allows for unlimited state-party spending on

independent federal election activity—is distinguishable from the argument advanced by the

plaintiffs in RNC I—that state-party spending cannot be limited as to election activity that is not

sufficiently federal in nature. The state-party plaintiffs in RNC I, however, sought to conduct

activity very similar to that which plaintiffs wish to conduct here. Compare 698 F. Supp. 2d at 156

(noting that plaintiffs wished to “engage in voter registration, voter identification, get-out-the-vote

activities, and ‘generic campaign activity’ . . . in connection with elections where both state and

federal candidates appear on the ballot”), with Verified Compl. ¶¶ 74–111. Given the similarities,

the FEC urges that Plaintiffs’ case is plainly foreclosed by the two prior cases, rendering their

claims constitutionally insubstantial. Defs.’ Opp’n 32. The Court is inclined to agree with the FEC

                                                   15
that McConnell and RNC I appear to control any district court’s resolution of this case.

Nevertheless, given subsequent statements by the Supreme Court and the relatively low bar that

Plaintiffs must clear to demonstrate that their claims are substantial, the Court finds, as it did in

Rufer and RNC II, that Plaintiffs have met their burden.

       The crucial development since the Supreme Court upheld the soft-money ban in RNC I is its

decision in McCutcheon, in particular its discussion of the type of corruption risk that is necessary

to justify limiting political contributions. A plurality of the Court held in McCutcheon “that

government regulation may not target the general gratitude a candidate may feel toward those who

support him or his allies, or the political access such support may afford. ‘Ingratiation and

access . . . are not corruption.’” McCutcheon, 134 S. Ct. at 1441 (plurality opinion) (ellipses in

original) (quoting Citizens United, 558 U.S. at 360). Rather, “[a]ny regulation must instead target

what we have called ‘quid pro quo’ corruption or its appearance.” Id. The Court explained:

               Of course a candidate would be pleased with a donor who contributed not only
       to the candidate himself, but also to other candidates from the same party, to party
       committees, and to PACs supporting the party. But there is a clear, administrable line
       between money beyond the base limits funneled in an identifiable way to a
       candidate—for which the candidate feels obligated—and money within the base limits
       given widely to a candidate’s party—for which the candidate, like all other members
       of the party, feels grateful.

                When donors furnish widely distributed support within all applicable base
       limits, all members of the party or supporters of the cause may benefit, and the leaders
       of the party or cause may feel particular gratitude. That gratitude stems from the basic
       nature of the party system, in which party members join together to further common
       political beliefs, and citizens can choose to support a party because they share some,
       most, or all of those beliefs. See Tashjian v. Republican Party of Conn., 479 U.S. 208,
       214–216 (1986). To recast such shared interest, standing alone, as an opportunity for
       quid pro quo corruption would dramatically expand government regulation of the
       political process.

Id. at 1461.

       To be sure, the Chief Justice’s opinion in McCutcheon was careful “not [to] address the base

limits” so as not to “silently overrule[] the Court’s holding in McConnell,” and to emphasize that its

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“holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s

holding about ‘soft money.’” Id. at 1451 n.6 (plurality opinion). Yet one cannot help but question

how the Court’s definition of corruption in McCutcheon squares with its holding on the soft-money

ban in McConnell.

       Indeed, Justice Breyer voiced this uncertainty in his dissent for four Justices, arguing that

the Court’s definition of ‘corruption’ in McCutcheon, which was central to its holding in that case,

is “virtually impossible to reconcile with [the] Court’s decision in McConnell, upholding the

Bipartisan Campaign Reform Act.” Id. at 1466 (Breyer, J., dissenting). The dissent further

explained that McCutcheon may have changed the law in a way that the Supreme Court’s earlier

decision in Citizens United, which predated the Court’s affirmance of the soft-money ban in RNC I,

did not:

       The plurality’s use of Citizens United’s narrow definition of corruption here, however,
       is a different matter. That use does not come accompanied with a limiting context
       (independent expenditures by corporations and unions) or limiting language [as it did
       in Citizens United]. It applies to the whole of campaign finance regulation. And, as
       I have pointed out, it is flatly inconsistent with the broader definition of corruption
       upon which McConnell’s holding depends.

Id.; see also id. (“Does the Court intend today to overrule McConnell? Or does it intend to leave

McConnell and BCRA in place? The plurality says the latter. . . . But how does the plurality explain

its rejection of the broader definition of corruption, upon which McConnell’s holding depends?”).

       The McCutcheon dissenters are not alone in questioning whether the Court’s decision

seriously undermines McConnell’s soft-money holding. Election-law scholars and practitioners

have also opined that the BCRA provisions challenged here may find themselves on shaky

constitutional ground after McCutcheon. See, e.g., Richard L. Hasen, Op-Ed: The McCain-

Feingold Act May Doom Itself, Nat’l L.J. (Aug. 17, 2015), http://www.nationallawjournal.com/

id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself?slreturn=20150928113613


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(noting, following McCutcheon, the “good chance the [Supreme Court] . . . will strike down what

remains of McCain-Feingold”); Kimberly Robinson, After ‘McCutcheon,’ Soft Money Next on

Chopping Block?, Bloomberg BNA (Apr. 22, 2014), http://www.bna.com/mccutcheon-soft-money-

n17179889763/ (“[A]lthough it is ‘technically true’ that McCutcheon didn’t invalidate restrictions

on soft money, the decision ‘makes it more likely that the soft money ban will be struck down in a

future case.’” (quoting Professor Daniel Tokaji)); Did McCutcheon Save Democracy Or Destroy

It?, Politico Magazine (Apr. 2, 2014), http://www.politico.com/magazine/story/2014/04/

mccutcheon-save-democracy-or-destroy-it-105327 (“McCutcheon borrows the narrow reading of

the government’s interest in Citizens United and applies it to enhance the position of political

parties in the campaign finance regulatory scheme, contrary to the direction set by McConnell. . . .

[T]he doctrine developed in Citizens United for ‘independent expenditures’ on behalf of candidates

has moved the constitutional law as it affects ‘contributions’ to political parties. The reach of

Citizens United has been extended, and that of McConnell cut back.” (quoting former White House

Counsel Robert Bauer)). The zeitgeist in the campaign-finance community thus reflects significant

uncertainty as to the state of Section 13205’s constitutionality and the continued vitality and scope

of McConnell’s soft-money holding. In light of this uncertainty, it would be somewhat odd to view

this new constitutional challenge to BCRA’s soft-money provisions as being frivolous, clearly

foreclosed, or obviously devoid of merit.

       In sum, Plaintiffs’ claims raise questions that, while seemingly settled following McConnell

and RNC I, may no longer be so settled. And intervening changes in the law or the legal landscape

are properly considered as part of the Court’s substantiality inquiry. See Feinberg, 522 F.2d at

1339. Given developments since the Supreme Court again upheld the soft-money ban in RNC I,

which it decided after Citizens United but before McCutcheon, Plaintiffs’ claim—which presents an

argument for reconsidering certain holdings in McConnell in light of McCutcheon—does not

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appear to be frivolous or to involve a question that has been so settled by precedent as to be beyond

controversy. As a result, the Court finds Plaintiffs’ claims to be constitutionally substantial for

purposes of convening a three-judge district court.

        III.   Conclusion

        Because the Court finds that Plaintiffs have advanced substantial constitutional claims and

have standing to pursue those claims, it will grant Plaintiffs’ motion to convene a three-judge court,

request that the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit convene a three-judge

court, and adopt the discovery and summary-judgment briefing schedule that the parties propose in

their Meet and Confer Statement [Dkt. No. 20]. It will therefore also deny Plaintiffs’ motion to

expedite as moot. An Order accompanies this Memorandum Opinion.




                                                              CHRISTOPHER R. COOPER
                                                              United States District Judge

Date:   November 25, 2015




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