ANH "Joseph" CAO, Republican National Committee, and Republican Party of Louisiana v. FEDERAL ELECTION COMMISSION, 688 F. Supp. 2d 498

ORDER AND REASONS HELEN G. BERRIGAN, District Judge. This action under 2 U.S.C. § 437h challenges the constitutionality of provisions of the Federal Election Campaign Act (“FECA” or “the Act”) of 1971, 2 U.S.C. § 431 et seq, as amended by the Bipartisan Campaign Reform Act (“BCRA”) of

Section 437h of the Act assigns to the en banc court of appeals the role of decision maker on constitutional challenges. The district court’s task is to determine whether the constitutional challenge is “frivolous.” If the issues are not frivolous, the district court is to make findings of fact and certify the issues to be resolved to the appellate court. Khachaturian v. Federal Election Commission, 980 F.2d 330, 332 (5th Cir.1992).

Plaintiffs Anh “Joseph” Cao (“Cao”), the Republican National Committee (“RNC”), and the Louisiana GOP (“LA-GOP”) (hereinafter referred to collectively as “the Cao plaintiffs”) bring the instant eight challenges to several provisions of the Act, contending, inter alia that the Supreme Court has left unresolved questions regarding the constitutionality of contribution and expenditures limits on political parties. (Rec.

Doc. 19). 2 U.S.C. § 437h provides: The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

The Fifth Circuit has expressly spoken on this particular statute and has required specific findings by the district court prior to certification. In Khachaturian v. Federal Election Commission, the Fifth Circuit remanded a case with certified questions because the district court had failed to develop an adequate factual record. 980 F.2d 330 (5th Cir.1992). The Fifth Circuit requires that the district court first determine whether or not the claim is frivolous, and recommends an evidentiary hearing to conduct the inquiry. Second, a district court should

a) identify the constitutional issues in the complaint;

b) take necessary evidence;

c) make findings of fact;

d) certify constitutional questions arising from the above. Id. at 332 (quoting Buckley v. Valeo, 519 F.2d 817, 818 (D.C.Cir.1975)). I. Standard of Review The most thorough discussion of a district court’s obligation to assess the contours of the plaintiffs claim before certifying under this statute was set forth by the Ninth Circuit in Goland v. United States, 903 F.2d 1247, 1257-58 (9th Cir.1990). There, a district court refused to certify questions to the Ninth Circuit on the grounds that the constitutional challenges were frivolous, and the circuit court affirmed. Id.

The court approved a “frivolousness” standard “similar to that of a single judge presented with a motion to convene a three judge court to hear constitutional challenges.” Id. Under that standard, a single judge could dismiss constitutional claims which already had been decided. We believe this is a more appropriate standard. Such a standard may more closely resemble that applied under Rule 12(b)(6) to the failure to state a claim than it does to the frivolousness standard under § 1915(d).... Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable.

On the contrary, if as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or a close but ultimately unavailing one. Id. at 1258 (citations omitted). The court also noted that “once a statute has been thoroughly reviewed by the [Supreme] Court, questions arising under ‘blessed’ provisions understandably should meet a higher threshold.” Id. at 1257.

The Cao plaintiffs argue repeatedly that the FEC has inappropriately argued the merits. (Rec. Doc. 76 at 6). Because the Court adopts a standard of review akin to that used in deciding a Rule 12(b)(6) motion, some “merits” review is appropriate; the Court could not effectively assess the “frivolousness” of the claims in the motion to certify without undertaking a thorough review of the controlling law. What is less certain is the proper role of the Court with respect to reviewing the facts.

The Khachaturian court remanded because the district court failed to determine whether the plaintiff in that as applied challenge had “demonstrate[d] that the $1,000 limit [on campaign contributions] had a serious adverse effect on the initiation and scope of his candidacy.” 980 F.2d at 331. The Fifth Circuit then laid out the steps the court should have taken, which have already been cited above. Id. In conclusion, the court advised that [T]he district court should first determine whether Khachaturian’s claim is frivolous in light of Buckley.

The district court may find it desirable to conduct an evidentiary hearing to assist it in this inquiry. Should the court find that the case is not frivolous, it should proceed to follow the four-step course of action outlined above. If no colorable constitutional claims are presented on the facts as found by the district court, it should dismiss the complaint. If it concludes that colorable constitutional issues are raised from the facts, it should certify those questions to us. Khachaturian, 980 F.2d at 331 (emphasis added).

This quote strongly supports a conclusion that a district court can engage in some amount of factual review. Further, the “four step course of action” indicates that this Court should only certify constitutional questions that arise from a combination of the constitutional issues in the complaint and the Court’s findings of fact. Id. There is little guidance beyond this in the caselaw to determine the appropriate standard of review to apply to those facts.

Nonetheless, despite the Goland court’s conclusion that the proper standard is the 12(b)(6) standard, where “no relief could be granted under any set of facts,” 903 F.2d at 1257, such a standard makes little sense in an as applied challenge, where some review of the facts is inherently necessary to determine if a colorable claim has been raised. The Court will therefore proceed using a deferential standard, akin to the 12(b)(6) standard, but per the instructions in Khachaturian will only certify those questions that arise out of the Court’s review of both the facts and the law.

In this case, both parties have submitted extensive findings of fact, and declined the opportunity to have an evidentiary hearing, preferring to proceed with the record before the Court and the briefs. Further, the FEC has filed a motion for

summary judgment. (Rec. Doc. 69). In a motion for

summary judgment, the Court goes beyond the pleadings to determine whether there is any genuine issue as to any material fact such that the movant is entitled to judgment as a matter of law. See Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.2002). Because the Court is adopting a “frivolousness” standard that is somewhere between a motion to dismiss — where no factual review is appropriate — and a motion for

summary judgment — where the Court must review for genuine issues of material fact — it follows that any question that the Court finds “frivolous” is also appropriate for

summary judgment. Finally, the Khachaturian court’s instructions suggested that the “frivolousness” determination was the first step of the district court’s review process, followed by a second step, involving the four step process from Buckley. 980 F.2d 330. Both steps, however, involve a review of the evidence, followed by a determination of whether colorable constitutional claims have been presented. Id. The Court has taken evidence, and its findings of facts are set forth below.

However, rather than engage in the analysis of those facts twice, after identifying the constitutional issues, the Court will first set forth its findings, and then certify any colorable constitutional questions that arise out of the facts and complaint as non-frivolous. II. Questions Presented for Certification to the En Banc Panel of the Fifth Circuit The Cao plaintiffs ask the Court to certify eight questions: 1. Has each of the plaintiffs alleged sufficient injury to constitutional rights enumerated in the following questions to create a constitutional “case or controversy” within the judicial power of

Article III? 2. Do the Party Expenditure Provision limits at 2 U.S.C. § 441a(d)(2)-(3) violate the First and Fifth Amendment rights of one or more plaintiffs in that they are excessively vague, overbroad, and beyond the authority of Congress to regulate elections as applied to coordinated expenditures other than (

a) communications containing express advocacy, (

b) targeted federal election activity, (

c) disbursements equivalent to paying a candidate’s bills, and (

d) distributing a candidate’s campaign literature? 3. Do the expenditure limits at 2 U.S.C. § 441a(d)(2)-(3) violate the First Amendment rights of one or more plaintiffs as applied to coordinated expenditures for (

a) communications containing express advocacy and (

b) targeted federal election activity? 4. Do the limits on coordinated expenditures 2 U.S.C. § 441a(d)(3) violate the First Amendment rights of one or more plaintiffs? (

a) Do all but the highest limits violate such rights because any lower rates are unsupported by the necessary anti-corruption interest? (

b) Is 2 U.S.C. § 441a(d)(3) facially unconstitutional because lower rates cannot be severed from higher rates and the voting-age-population formula is substantially overbroad and inherently unconstitutional? (

c) Is the highest limit for expenditures coordinated with Representatives unconstitutionally low? 5. Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(

A) and the Coordinated Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i) (treating coordinated expenditures as in-kind “contributions”) violate the First and Fifth Amendment rights of one of more plaintiffs in that they are excessively vague, overbroad, and beyond the authority of Congress to regulate elections as applied to coordinated expenditures other than (

a) communications containing express advocacy, (

b) targeted federal election activity, (

c) disbursements equivalent to paying a candidate’s bills, and (

d) distributing a candidate’s campaign literature? 6. Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(

A) and Coordinated Contribution Provision at 2 U.S.C. § 441 a(a)(7)(B)(i) (treating coordinated expenditures as “contributions”) violate the First Amendment rights of one or more plaintiffs as applied to coordinated expenditures for (

a) communications .containing express advocacy and (

b) targeted federal election activity? 7. Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(

A) violate the First Amendment rights of one or more plaintiffs as applied to a political party’s in-kind and direct contributions because it imposed the same limits on parties as on political action committees (“PACs”)? 8. Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(

A) facially violate the First Amendment rights of one or more plaintiffs? (Rec. Doc. 19). III. FACTUAL FINDINGS RULINGS ON EVIDENTIARY OBJECTIONS As a preliminary matter, the Court notes its limited role as factfinder in this matter for any questions that are not “frivolous.” The Court has opted to adopt the reasoned approach followed by Judge Vanaskie in Mariani v. United States, 80 F.Supp.2d 352, 362 (M.D.Pa.1999), and will provide the circuit court extensive findings, describing in detail the relationship between political parties, candidates, and donors under the current regulatory system.

The Court further notes that in the absence of a jury, it is inclined to be overinclusive rather than underinclusive when presented with close evidentiary disputes, preferring to convey as detailed a record as possible to the reviewing court. See Charles Wright and Arthur Miller, 9A Fed. Prac. & Proc. Civ. § 2411 (3d ed.) (“in a nonjury case the court should be slow to exclude evidence challenged under one of the exclusionary rules”). In their responses to each other’s proposed findings of facts, each side raised numerous objections the other side’s claims. However, the FEC’s responses centered on the proper

interpretation of the evidence, not on its admissibility. The Cao plaintiffs raised numerous substantive arguments about the facts, and also raised repeated evidentiary objections, which are addressed below. The Court’s resolution of disputes about the proper

interpretation of the facts will be evident in its findings. Some proposed findings were legal conclusions or otherwise insufficiently supported by the record, and have been omitted. A.

Relevance, Materiality, and Vagueness The Cao plaintiffs assert that many of the FEC’s proposed findings are irrelevant to the instant litigation because they: (1) address campaign contributions, whereas the parties here contest the constitutionality of limits on expenditures; (2) provide historical narrative and not factual evidence; (3) relate to entities not a party to the case; or (4) do not directly address the claims at issue. They also argue that some of the FEC’s quantitative characterizations are misleading without the proper economic context.

The Court has taken all of the above objections into consideration in reaching its Findings of Fact. To the extent proposed facts that are tangential to the instant litigation nonetheless provide useful context for overall campaign finance regulation scheme, the above objections have been overruled. However, to the extent those proposed facts obscure the most relevant issues being put before the appellate court, those objections have been sustained. B.

Professor Krasno’s Testimony Jonathan Krasno is an Associate Professor at Binghamton University who has authored an expert report in this litigation. (Jonathan Krasno, Political Party Committees and Coordinated Expenditures in Cao v. FEC (Krasno Rept.), FEC Exh. 1). Professor Krasno has published numerous works in the field of political science, many of which involve the role of campaign finance regulation and political parties in United States politics.

The Cao plaintiffs object to Professor Krasno’s expert testimony “in so far as he is testifying as to facts and not expressing an opinion as to facts already properly in the record.” (Rec. Doc. 76-2 at 2). Some of the proposed findings based on Professor Krasno’s testimony are assertions about historical trends and political motivations, and lack additional supporting evidence in the record. See, e.g., FEC Proposed Finding 28 (“The goal of the RNC [in its inception] was ‘survival’ and to ‘provide[ ] a vehicle for continuity’ ”).

Experts are, however, permitted to testify as to their opinions regarding facts not in the record. FRE 703 (“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.”). The Court will treat these statements as Krasno’s opinion, and weigh them accordingly. Some of Krasno’s statements, however, are clearly facts. The Court considers many of these to be legislative facts, of which it can take judicial notice. See 12 Fed.

Proc., L.Ed. § 33:59 (“It has been said generally that ‘adjudicative facts’ relate specifically to the activities or characteristics of the litigants, as opposed to ‘legislative facts,’ which are those a court relies upon when it purports to develop a particular law or policy and thus considers material wholly unrelated to the activities of the parties.”) Further, the Cao plaintiffs do not object to the content of many of these facts, criticizing only their means of introduction.

To the extent Cao’s objections raise doubts as to the accuracy of such statements, the Court has not adopted those statements as its findings without additional supporting evidence in the record. C. The Biersack, Meehan, and Rozen Declarations The Cao plaintiffs argue that the FEC improperly attached these declarations as exhibits to their supplemental briefing on August 31, 2009, even though the discovery cut-off was July 30, 2009. (Rec. Doc. 78-2 at 1).

They assert that they are prejudiced by the late filings because they were not afforded an opportunity to depose the declarants or respond to their claims. (Rec. Doc. 78-2 at 2). They also argue that the facts presented by the declarants are adjudicative facts, not legislative facts, and therefore the FEC cannot avoid the above mentioned discovery deadline. (Rec. Doc. 85 at 1-2).

The FEC argues that the declarations are not “discovery” as defined by the Federal Rules of Civil Procedure, and are therefore not subject to the discovery deadlines, and dispute the Cao plaintiffs’ characterization of the declaration as containing adjudicative facts. (Rec. Doc. 82 at 2, 4). They also point out that the Cao plaintiffs propounded no discovery requests, so the FEC cannot be said to have withheld requested information. (Rec. Doc. 82).

Legislative facts are typically characterized as “general facts” that “apply universally” and “do not relate specifically to the activities or characteristics of the litigants.” See 12 Fed. Proc., L.Ed. § 33:59. At issue are a statement by former congressman Martin Meehan (Rec. Doc. 66-4); a statement by Robert Biersack, Special Assistant to the Staff Director for Data Integration at the FEC in which he compiles and describes publicly available data on campaign expenditures and contributions (Rec. Doc. 66-5); and a statement by lobbyist and fundraiser Robert Rozen (Rec. Doc. 66-34).

The Court acknowledges that information in these declarations occupies a gray area in between legislative and adjudicative facts: the statements purport to represent activities of candidates and political parties in general, and not those of the litigants in the instant case. See id. However, they are certainly disputable and might not “apply universally.” Id.

At oral argument on the motion to strike these declarations, the Court indicated its inclination to convey as complete a record as possible to the circuit court, but gave the Cao plaintiffs the opportunity to depose the objected to declarants or submit counter-declarations. They declined this offer, resting on their objection that the statements in the reports were adjudicative rather than legislative facts and improperly before the Court. The Court therefore holds that admitting these declarations to the record will cause no undue prejudice to the Cao plaintiffs.

The Court DENIES the Cao plaintiffs’ motion to strike these exhibits. FINDINGS OF FACT A. Background The Litigation 1. The Cao plaintiffs filed their complaint on November 13, 2008, challenging several provisions of the FECA/BCRA in what the complaint dubbed a successor case to Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (Colorado

I) and FEC v. Colorado Republican Federal Campaign Commit tee, 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (“Colorado II ”). (Rec. Doc. 1 at 1). They filed a Motion for Certificate of Appealability on December 23, 2008 (Rec. Doc. 19). After oral argument on the motion, the Court ordered an evidentiary hearing to comply with the Fifth Circuit’s requirement in Khachaturian. (Rec. Doc. 42). 2. After the close of discovery, the parties jointly moved to convert the scheduled evidentiary hearing to a second argument on the merits of the Motion for Certificate of Appealability and the FEC’s cross motion for

summary judgment. (Rec. Docs. 69, 72). That argument was heard on November 9, 2009, and taken under submission. The Parties 3. Anh “Joseph” Cao is the United States Representative for the Second Congressional District of Louisiana. (Deposition of Anh “Joseph” Cao (Cao Dep.) at 8, FEC Exh. 4). Cao, a Republican, defeated incumbent Democrat William Jefferson in a general election on December 6, 2008. (Second Amended Verified Complaint for Declaratory and Injunctive Relief (“AVC”) ¶ 10 (Rec. Doc. 35)).

The election was held in December because primaries had been postponed due to damage from Hurricane Gustav. (Official 2008 Election Results at 113 n.*, http://www.fec.gov/pubrec/ fe2008/2008eongresults.pdf). (Rec. Doc. 88, Joint Stipulation (“J. Stip.”) of the parties at 1-2). 4. This litigation began prior to Cao’s election.

In his Complaint, Cao indicated that he wanted to participate with RNC and LA-GOP to the maximum extent constitutionally permissible in the activities outlined in the Complaint. (AVC ¶ 10; Deposition of Anh “Joseph” Cao (Cao Dep.) at 13-15, Defendant Federal Election Commission’s Proposed Findings of Fact and Statement of Material Facts as to Which There is No Genuine Dispute (FEC Facts) Exh. 4 (Rec. Doc. 66)). (J. Stip. at 1-2). 5. Cao is “eligible to vote in any election for the office of President,” 2 U.S.C. § 437h. (AVC ¶ 10). (J. Stip. at 1).

He therefore has standing to bring the instant motion to certify under the requirements of 2 U.S.C. § 437h. (“The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act.”). 6. RNC is the national political party committee of the Republican Party. Its headquarters are in Washington, District of Columbia. (AVC ¶ 11).

It is an unincorporated association made up of 168 members representing all of the states and territories of the United States. (Federal Rule of Civil Procedure 30(b)

(6) Deposition of Republican National Committee witness Thomas J. Josefiak (Josefiak Dep.) at 12, FEC Facts Exh. 5). (J. Stip. at 2). 7. As a national party, RNC has historically participated, and participates today, in electoral and political activities at the federal, state, and local levels. (AVC ¶ 35). (J. Stip. at 2). RNC supports both federal, state, and local candidates.

RNC also seeks to advance its core principles— a smaller federal government, lower taxes at all levels of government, individual freedom, and strong national defense — by promoting an issue agenda advocating Republican positions, electing Republican candidates, and encouraging governance in accord with these Republican views. (AVC ¶ 35). 8. RNC’s core principles are more fully set out in its party platform, the 2008 Republican Platform, available at http:// www.gop.com/2008Platform/. (AVC ¶ 36). (J. Stip. at 3). 9. LA-GOP is the State committee of the Republican Party for Louisiana.

LA-GOP maintains offices in, among other places, New Orleans and Metairie, Louisiana, which offices are staffed by paid employees. (AVC ¶ 12). LA-GOP is governed by the executive committee, consisting of individuals serving on a voluntary basis. (Fed.R.Civ.P. 30(b)

(6) Deposition of Republican Party of Louisiana witness Charles Lee Buckels (Buckels Dep.) at 13-14, FEC Facts Exh. 6). (J. Stip. at 3). 10. As a state party, LA-GOP has historically participated, and participates today, in electoral political activities at the state and local levels. (AVC ¶ 38). (J. Stip. at 3). LA-GOP supports both federal and state candidates.

LA-GOP also seeks to advance its core principles — -a smaller federal government, lower taxes at all levels of government, individual freedom, and strong national defense — by electing Republican candidates, and encouraging governance in accord with their Republican views. (AVC ¶ 38). The purpose of the LA-GOP is to promote the Republican message throughout the state and elect Republican candidates. (Buckels Dep. 18:1-19:1). 11. The defendant Federal Election Commission (“Commission” or “FEC”) is the independent agency of the United States with exclusive jurisdiction over the administration,

interpretation, and civil enforcement of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-55, and other statutes. The Commission is empowered to “formulate policy” with respect to the Act, 2 U.S.C. § 437c(b)(I); “to make, amend, and repeal such rules ... as are necessary to carry out the provisions of [the] Act”, 2 U.S.C. §§ 437d(a)(8), 438(a)(8), 438(d); and to issue written advisory opinions concerning the application of the Act and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. §§ 437d(a)(7), 437f.

The Commission has exclusive jurisdiction with respect to civil enforcement of the Act. 2 U.S.C. § 437c(b)(I). (J. Stip. at 4). The Commission’s sole office is located in Washington, DC. (AVC ¶ 13). B. The Treatment of Political Parties under the BCRA/FECA 12. The national party committees for the Republican Party are the RNC, the National Republican Congressional Committee (NRCC), and the National Republican Senatorial Committee (NRSC). (Declaration of Robert W. Biersack (Biersack Decl.) at ¶ 2, FEC Exh. 3).

The national party committees for the Democratic Party are the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and the Democratic Senatorial Campaign Committee (DSCC). (Id.) 13. Jonathan Krasno is an Associate Professor at Binghamton University who has authored an expert report in this litigation. (Jonathan Krasno, Political Party Committees and Coordinated Expenditures in Cao v. FEC (Krasno Rept.), FEC Exh. 1).

Professor Krasno has published numerous works in the field of political science, many of which involve the role of campaign finance regulation and political parties in United States politics. (Id. at Curriculum Vitae 1-4). Professor Krasno also co-wrote an expert report that was explicitly relied upon by the Supreme Court in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 470, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (Colorado II) (citing Frank J. Sorauf & Jonathan S. Krasno, Political Parties and Coordinated Spending (Sorauf & Krasno Colorado II Rept.), FEC Exh. 33). 14.

According to Professor Krasno, political parties “have been strongly advantaged by the system of financing campaigns.” (Krasno Rept. at 1, FEC Exh. 1). 15. Political parties are able to raise more money, from more sources, than other entities regulated by the Act, including candidates and other political committees, such as separate segregated funds of corporations and labor organizations, commonly known as political action committees (PACs). (2 U.S.C. § 441a(a)). 16. Political parties also receive special non-monetary benefits in connection with federal elections.

Unlike interest groups, parties have their names next to those of their candidates on ballots in most states. Major-party nominees are automatically included on the general election ballot, and the names or symbols of their parties are printed near their names. States also often run parties’ primary elections. (Expert Report of Jonathan S. Krasno and Frank J. Sorauf in McConnell v. FEC, Evaluating the Bipartisan Campaign Reform Act (BCRA) (Krasno and Sorauf McConnell Report) at 25 [DEV 1-Tab 2], FEC Exh. 39; Rebuttal Expert Report of Donald P. Green in McConnell v.

FEC, The Impact of BCRA on Political Parties: A Reply to LaRaja, Lott, Keller, and Milkis (D. Green McConnell Rebuttal Report) at 7-9 [DEV 5-Tab 1], FEC Exh. 41; Responses and Objections of the Republican National Committee to Defendant Federal Election Commission’s First Requests for Admissions in McConnell v. FEC (Resps. RNC to FEC’s First McConnell RFA’s), Nos. 2, 4, 6 [DEV 12-Tab 10], FEC Exh. 42; Plaintiff Republican National Committee’s Responses and Objections to Defendant Federal Election Commission’s Second Set of Discovery Requests in RNC v.

FEC, 98-cv-1207 (D.D.C.) (RNC Resps. to FEC RFA’s in RNC), Nos. 26, 34, 35 [DEV 68-Tab 35], FEC Exh. 59). “DEV” and “Tab” citations refer to Defendants’ Exhibit Volumes from McConnell v. FEC, Civ. No 02-582 (D.D.C.). These documents, which include evidence from the McConnell case and other cases, are part of the record in this litigation pursuant to a Stipulation and Protective Order entered into by the parties and approved by the Magistrate Judge. (Rec. Doc. 49). 17. Unlike political parties, “[o]ther entities are not entitled to organize the slate of candidates presented to voters.

Other entities do not organize legislative caucuses, assign committee chairs and members, or elect legislative leadership.... Even the largest political action committees cannot begin to approach the political scope, influence, or depth of electoral support characteristic of the Republican or Democratic Parties.” (Expert Report of Donald P. Green in McConnell v. FEC, Report on the Bipartisan Campaign Reform Act (D. Green McConnell Report) at 8 [DEV 1-Tab 3], FEC Exh. 40). C. Relevant Provisions of the BRCA/ FECA and their Effects on Parties Contributions to Candidates 18.

Under the Act, individuals, political parties, and other political committees are all limited in the amounts that they can contribute to one candidate in a given election cycle. 2 U.S.C. § 441 a(a)(1). (J. Stip. at 5). 19. Under the current limits, a federal candidate is limited to $2,400 in contributions from each individual per election ($2,400 in a primary election and an additional $2,400 in the general election). 2 U.S.C. § 441a(a)(1)(A); Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 5). 20.

National, state, local and district parties are considered multicandidate political committees under the Act, and therefore each is limited to $10,000 in contributions to one candidate in a given election cycle ($5,000 in the primary and $5,000 in the general election). 2 U.S.C. §§ 441a(a)(2)(A); 2 U.S.C. §§ 431(4), 431(16), 441a(a)(4).

National parties and their Senatorial campaign committees may together contribute up to $42,600 to each Senate candidate in the 2010 election cycle. 2 U.S.C. § 441a(h); 11 C.F.R. §§ 110.2(e)(1), 110.3(b)(2); Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 5). 21. Candidates can receive contributions from each of the major parties’ three national committees, as well as state and local committees (including state committees outside the state in which the candidate is running).

For example, in the 2008 election cycle, one U.S. Senate candidate received $51,563 in party contributions, and one U.S. House candidate received $98,051, due to the variety of national, state, and local party committees permitted to contribute $5,000 under 2 U.S.C. § 441a(a)(2)(A). In 2008, other Senate candidates reported receiving party contributions of $46,897, $46,802, and $42,900. Other 2008 U.S. House candidates reported receiving $57,250, $38,979, and $24,640 in party contributions. (Biersack Decl. ¶ 17, Tables 24-25, FEC Exh. 3). 22.

The Act’s contribution limits apply both to direct contributions of money and in-kind contributions of goods or services. 2 U.S.C. § 431(8)(A). Expenditures made in coordination with a candidate or her campaign are considered in-kind contributions to the candidate. 2 U.S.C. § 441a(a)(7)(B). Contributions to Parties 23. Under the Act, the committees established by each national party can together receive up to $30,400 per year from each individual donor in federal contributions (money raised in accord with the restrictions of the Act, also known as “hard money”).

In each state, the state, district and local committees of a party can receive up to a combined $10,000 per year from each individual donor. By contrast, other political committees can receive only $5,000 per year from an individual donor in hard money. 2 U.S.C. § 441a(a)(1); Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). 24. Under the Act, the committees established by each national party can together receive up to $15,000 per year from other multicandidate political committees.

Multicandidate political committees can themselves receive only $5,000 per year from individuals or other multicandidate political committees. 2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(2); Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). 25. State, district and local committees of a party can also receive what are known as “Levin Funds.” 2 U.S.C. 441i(b); 11 C.F.R. §§ 300.30-32.

These are donations of up to $10,000 per year per donor, and they may come from sources ordinarily impermissible under the Act, such as corporations or labor unions. 11 C.F.R. § 300.31(c). These funds can be used in conjunction with hard money for certain activities that benefit federal candidates, such as generic party voter registration drives, voter identification programs, and get-out-the-vote efforts. 11 C.F.R. § 300.32. No other entity is permitted to receive Levin Funds under FECA. 11 C.F.R. §§ 300.10; 300.32. 26.

A national party committee can receive unlimited amounts as transfers from other national party committees (e.g., the RNC can transfer unlimited amounts to the NRCC and vice versa). 2 U.S.C. § 441a(a)(4). A National Party committee can also receive unlimited amounts of hard money as transfers from state, district, and local party committees, and vice versa. 2 U.S.C. § 441a(a)(4). State, district, and local party committees can transfer hard money to one another without limit under the Act. 2 U.S.C. § 441a(a)(4).

And candidate campaigns can transfer funds to national, state, or local committees of political parties “without limitation.” 2 U.S.C. § 439a(a)(4). This ability to freely transfer money between, among, and to political committees is available only to party committees and committees affiliated with the same corporation, union or other entity. 2 U.S.C. §§ 441a(a)(1); 441a(a)(2); 441a(a)(5). 27. In 2007 and 2008, the Republican national party committees (RNC, NRSC, and NRCC) transferred a total of $46,176,897 to Republican state committees.

In 2007 and 2008, the Democratic national party committees (DNC, DSCC, and DCCC) transferred a total of $116,020,742 to Democratic state committees. (Biersack Decl. ¶ 18, Table 26, FEC Exh. 3). 28. National party committees also receive funding from the federal government for their presidential nominating conventions. 26 U.S.C. § 9008(b).

For the 2008 conventions, the convention committees for the Democratic and Republican parties each received payments of $16,356,000 from the United States Treasury. (Both Major Parties to Receive Public Funding for 2008 Convention, http://www.fec.gov/ press/press2007/20070626conventions. shtml, FEC Exh. 17). Party Expenditures 29. Expenditures made by parties that are not coordinated with a candidate are considered independent and parties may generally engage in them without limit. Colorado II, 533 U.S. at 465, 121 S.Ct. 2351; Colorado I, 518 U.S. at 618, 116 S.Ct. 2309.

Party independent expenditures are limited only where the national committee of a political party has been designated as the authorized committee of a Presidential candidate and the campaign is subject to public financing restrictions. 11 C.F.R. §§ 109.36, 9002.1. 30. Party coordinated communications are one category of coordinated expenditures that are limited under the Act. 11 C.F.R. § 109.37. 31.

Generally, coordinated expenditures are those that are made in “cooperation, consultation or concert with, or at the request or suggestion of’ the candidate or candidate’s authorized committee. 11 C.F.R. §§ 109.20, 109.37; see also 2 U.S.C. § 431(17). 32. Party coordinated communications are, by definition, “paid for by a political party committee or its agent.” 11 C.F.R. § 109.37(a)(1). (J. Stip. at 6). 33.

However, under FEC regulations, not every communication is considered a coordinated communication even if it is made in “cooperation, consultation or concert with, or at the request or suggestion of’ the candidate or candidate’s authorized committee. Whether a particular communication is considered to be a party coordinated communication is based upon both the conduct of those involved and the content of the communication. 11 C.F.R. § 109.37.

The conduct standard is met if, &g-, “[t]he communication is created, produeed, or distributed at the request or suggestion of a candidate,” “[t]he communication is created, produced, or distributed after one or more substantial discussions about the communication between the person paying for the communication ... and the candidate who is clearly identified in the communication,” or the person paying for the communication hires a candidate’s vendor or former employee “to create, produce, or distribute” it and in doing so that vendor/employee uses “material” information about “campaign plans, projects, activities, or needs” or shares such information with the payer. (11 C.F.R. §§ 109.21(d)(1)(i)); 109.21(d)(3); 109.21(d)(4)-(5). 34.

In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.L. No. 107-155, which included a provision prohibiting the national parties from receiving or spending any “soft money” — money that was not subject to the limitation or prohibitions of FECA. 2 U.S.C. § 441i(a). (J. Stip. at 7). 35. Prior to the passage of BCRA, the RNC made only limited independent expenditures as compared to the substantial independent expenditures that it has made since the passage of BCRA. (Josefiak Dep. at 70-72, FEC Facts Exh. 5 (recalling only one instance of pre-BCRA independent expenditures)). (J.

Stip. at 7). 36. In general, the Act currently allows a national and state committee of a political party each to coordinate spending with a candidate up to $43,700 or $87,300 in races for the House of Representatives, and up to a range of $87,300 to $2,392,400 in races for Senate, and the Act also permitted the national parties to coordinate up to $19,151,200 in the most recent Presidential race. 2 U.S.C. §§ 441a(d)(2)-(3); Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed.

Reg. 7435-37 (Feb. 17, 2009); Price Index Increases for Expenditure Limitations, 73 Fed. Reg. 8698 (Feb. 14, 2008). These coordinated expenditures under the Act are in addition to the $5,000 in contributions that all multicandidate political committees can make pursuant to 2 U.S.C. § 441a(a)(2)(A). Each candidate may receive coordinated expenditures up to this limit from a national committee, and also coordinated expenditures up to this limit from the relevant state party committee. 11 C.F.R. § 109.33(b). Thus, each candidate may receive party coordinated expenditures of up to $174,600. 37.

For most candidates for the U.S. House of Representatives, the Act currently allows a national or state committee of a political party to make coordinated expenditures of up to $43,700, in addition to the contributions the party committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. § 109.33; Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6).

Each candidate may receive coordinated expenditures up to this limit from a national committee, and also receive coordinated expenditures up to this limit from the relevant state party committee. 11 C.F.R. § 109.33(b). Thus, each such candidate may receive party coordinated expenditures of up to $87,400. 38. If a candidate for the U.S.

House of Representatives is running from a state with only one Congressional district, a national or state committee of a political party can make coordinated expenditures of up to $87,300, in addition to the contributions the party committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. § 109.33; Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6).

Each candidate may receive coordinated expenditures up to this limit from a national committee, and also coordinated expenditures up to this limit from the relevant state party committee. (11 C.F.R. § 109.33(b)). Thus, each candidate may receive party coordinated expenditures of up to $174,600. 39. For U.S.

Senate campaigns, the Act currently allows national or state committees of political parties to make coordinated expenditures in amounts ranging from $87,300 to $2,392,400, depending upon the voting age population of the state, in addition to the contributions the party committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(3); 11 C.F.R. § 109.33; Price Index Increases for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed. Reg. 7435-37 (Feb. 17, 2009). (J. Stip. at 6).

Each candidate may receive coordinated expenditures up to this limit from a national committee, and also receive coordinated expenditures up to this limit from the relevant state party committee. (11 C.F.R. § 109.32(b)). Thus, Senate candidates may receive party coordinated expenditures in amounts ranging from $174,600 to $4,784,800. 40.

National committees and state committees of political parties can assign their authority to make coordinated party expenditures to other political party committees under 2 U.S.C. § 441a(d)(3). 11 C.F.R. § 109.33(a). (See also Nov. 12, 2008 Letter from Roger Villere, Jr., Chairman of LAGOP to Mike Duncan, Chairman of RNC (LA-GOP0001), FEC Facts Exh. 13 (authorizing RNC to make LA-GOP’s coordinated expenditures in 2008 Cao campaign); RNC Spreadsheet for 2008 Cao Campaign (RNC 0000001), FEC Facts Exh. 14 (indicating that coordinated expenditure limit for 2008 Cao campaign increased from $42,100 to $84,200 following receipt of authorization from LA-GOP)). (J.

Stip. at 6-7). This allows a candidate to receive the maximum coordinated expenditures that the state and national parties are permitted to make even though “the state parties do not have sufficient federal resources in a lot of the smaller states to be able to fully fund a coordinated expenditure program.” (Federal Rule of Civil Procedure 30(b)

(6) Deposition of Republican National Committee witness Thomas J. Josefiak (RNC 30(b)

(6) Dep.) at 63, FEC Exh. 5). 41. Due to the restrictions on coordinated expenditures, LA-GOP typically assigns its coordinated expenditure amounts to the RNC in order to increase the efficiency and effectiveness of the limited funds. (Buckels Dep. at 35-36, FEC Exh. 6). (J. Stip. at 7). 42. The party coordinated expenditure provisions are adjusted for inflation each year. 2 U.S.C. § 441a(c)(1)(B). (J. Stip. at 6). 43.

Political parties are permitted to make coordinated expenditures with their federal candidates in excess of the contribution limits that apply to all multicandidate political committees. 2 U.S.C. §§ 441a(d)(2)-(3). Neither other political committees nor individuals can engage in such coordinated expenditures in excess of their contribution limits. 44.

Prior to 90 days before a Congressional or Senate election, or 120 days before a Presidential election, a party communication is not deemed coordinated with a candidate unless it “disseminates, distributes, or republishes ... campaign materials prepared by a candidate, ...” or “expressly advocates the election or defeat of a clearly identified candidate.” 11 C.F.R. §§ 109.37(a)(2)(i)-(ii). No other party communications made prior to the 90/120 day windows count against the Act’s limits on party contributions or party coordinated expenditures. 45.

Even within the 90 or 120 days immediately before an election, a party communication is not considered a party coordinated communication subject to the Act’s limits unless it refers to a clearly identified federal candidate and is disseminated within that candidate’s jurisdiction. 11 C.F.R. § 109.37(a)(3). 46.

A party communication also is not considered coordinated unless the party and candidate have engaged in specific conduct indicating coordination, even if the communication is disseminated within 90 or 120 days before an election and refers to a clearly identified federal candidate in the appropriate jurisdiction. 11 C.F.R. §§ 109.37(a)(3), 109.21(d)(1)-(6).

The conduct standard is met if, e.g., “[t]he communication is created, produced, or distributed at the request or suggestion of a candidate,” “[t]he communication is created, produced, or distributed after one or more substantial discussions about the communication between the person paying for the communication ... and the candidate who is clearly identified in the communication,” or the person paying for the communication hires a candidate’s vendor or former employee “to create, produce, or distribute” it and in doing so that vendor/employee uses “material” information about “campaign plans, projects, activities, or needs” or shares such information with the payer. (11 C.F.R. §§ 109.21(d)(1)(i)); 109.21(d)(3); 109.21(d)(4)-(5). 47.

The Act provides special exemptions to the

definitions of contributions and expenditures for parties, which means some party activities are not subject to any contribution limit. Payment of compensation for legal or accounting services by full-time staff on behalf of any political party committee or candidate is excluded from these

definitions. 2 U.S.C. §§ 431(8)(B)(viii)(I); 431(9)(B)(vii)(I) & (II). The Act also excludes, for parties and candidates, the use of real or personal property, such as a community room, and the costs of invitations, food, and beverages voluntarily provided by an individual to any political committee, provided that the value of an individual’s activity does not exceed $2,000 in any calendar year. 2 U.S.C. § 431(8)(B)(ii).

The Act excludes from the definition of contribution for parties and candidates the payment of travel expenses incurred by any individual on behalf of the candidate or party, as long as the cumulative value of the expenses incurred by an individual does not exceed $1,000 for a candidate and $2,000 for a political party for any calendar year. 2 U.S.C. § 431(8)(B)(iv).

State and local parties may pay for the costs of some communications, such as slate cards, sample ballots, or other materials distributed by volunteers, without regard to the contribution and expenditure limits, even if those activities are coordinated with candidates. 2 U.S.C. §§ 431(8)(B)(v); 431 (9)(B)(iv); Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 449 (Jan. 3, 2003). The Act also excludes, for state and local parties, expenditures for certain campaign materials, as well as certain voter registration and get-out-the-vote activities. 2 U.S.C. §§ 431(9)(B)(viii)-(ix).

Certain transfers of payments received by political party committees as a condition of ballot access are also excluded from the definition of “expenditure.” 2 U.S.C. § 431(9)(B)(x). 48.

A party can avoid having a communication deemed a coordinated communication by setting up and distributing a written “firewall” policy that prohibits the flow of information between the individuals “providing services for the [party] paying for the communication” and the individuals who are “currently or [were] previously providing services to the candidate who is clearly identified in the communication [or his or his opponent’s committee].” 11 C.F.R. §§ 109.37(a)(3), § 109.21(h). 49.

Because the RNC has a continuous and ongoing relationship with its candidates, special measures must be taken to do independent expenditures regarding its candidates. The RNC has extensive discussions with its candidates about their needs, activities and strategy. As a result, activities by the RNC about its candidates may be deemed to be coordinated with its candidates, subjecting these activities to the FECA’s coordinated expenditure and contribution limits.

In order to engage in any independent expenditure supporting one of its candidates, the RNC may hire an outside consulting group to do the independent expenditures but neither the RNC nor any of its officers, employees or agents may have any involvement in the independent expenditure in order for it to be truly independent. (Josefiak Dep. 58:6-60:12, 70:13-17, 72:19-73:6, 153:22-155:4, 160:14-161:7). In fact, neither the chairman of the RNC nor any of the RNC’s officers, employees or agents has control over the message of an independent expenditure yet the RNC bears responsibility for that message.

The RNC makes its independent expenditures in this way out of a belief that there is no way to have a true “firewall policy.” (Josefiak Dep. 159:12-18). 50. Some party committee officials and candidates have expressed dissatisfaction with party independent expenditures due to their lack of control over the content. (RNC 30(b)

(6) Dep. at 72-73, FEC Exh. 5 (describing independent expenditure in Tennessee Senate race that “caused the chairman angst” due to media scrutiny); Cao Dep. at 34-35, FEC Exh. 4 (describing campaign’s frustration because NRCC independent expenditure robocalls were “hurting us more than [they] helped us”); Krasno Rept. at 5-6 & n. 4, FEC Exh. 1 (describing NRCC chairman’s dismay at an inability to do anything about a misleading NRCC independent expenditure alleging an opponent called a phone sex line while traveling on business)).

As a result, the RNC is reluctant to conduct independent expenditures. (Josefiak Dep. 74:16-76:11,157:9-158:20). 51. Due to the perceived administrative and content advantages of coordinated expenditures, plaintiffs generally prefer to coordinate activities between candidates and parties. (RNC 30(b)

(6) Dep. at 57, FEC Exh. 5 (“no chairman feels that independent expenditures is a preferable way to spend money.”); LA-GOP 30(b)

(6) Dep. at 79, FEC Exh. 6 (“Any coordination with our candidates is something we would like to do more of.”); Cao Dep. at 42, FEC Exh. 4 (“I would like for them to do more radio ads, do more mailing of products on my behalf. But before they do it, I would like to know the contents of those ads....”)). 52. So-called “issue advocacy” has been used extensively in connection with federal elections.

Prior to 2002, political party communications that did not contain “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” were considered “issue advocacy” and could be financed in part with soft money even if they focused on specific candidates, allowing parties to use money that was not subject to the Act’s source and amount limitations. McConnell, 540 U.S. at 126, 124 S.Ct. 619; (Krasno and Sorauf McConnell Report at 50-66 [DEV 1-Tab 2], FEC Exh. 39).

These “issue ads” typically avoided using “magic words” by “condemning] Jane Doe’s record on a particular issue before exhorting viewers to call Jane Doe and tell her what you think.” McConnell, 540 U.S. at 127, 124 S.Ct. 619 (internal quotation marks and footnote omitted). In fact, campaigns would rarely use such “magic words” anyway.

McConnell, 251 F.Supp.2d at 529 (Kollar-Kotelly, J.) (“The uncontroverted testimony of political consultants demonstrates that it is neither common nor effective to use the ‘magic words’ of express advocacy in campaign advertisements.”). “[T]he overwhelming majority of modern campaign advertisements do not use words of express advocacy, whether they are financed by candidates, political parties, or other organizations.” Id.

Thus, although deemed “issue ads” under the law, in practice issue ads and express advocacy for candidates were “functionally identical in important respects.” McConnell, 540 U.S. at 126, 124 S.Ct. 619 (“[b]oth were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words”). 53. Thus, prior to BCRA — when national parties were permitted to receive soft money — “genuine issue advocacy on the part of political parties [was] a rare occurrence.” McConnell, 251 F.Supp.2d at 451 (Kollar-Kotelly, J.).

Similarly, the RNC spent only “a minuscule percentage” of its soft money budget on state and local governmental affairs. Id. at 463. “What is clear from the evidence [in McConnell ], however, is that regardless of whether or not it is done to advocate the party’s principles, the Republican Party’s primary goal is the election of its candidates who will be advocates for their core principles.” Id. at 470. 54.

The “conclusion that [issue] ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.” McConnell, 540 U.S. at 127, 124 S.Ct. 619 (footnote omitted). 55.

BCRA prevented national parties from spending millions of dollars of soft money running candidate-focused “issue ads” in the days before an election] because national parties could now only receive and spend hard money and because BCRA treats coordinated electioneering communications as coordinated communications subject to contribution limits. (2 U.S.C. §§ 441a(a)(7)(C); 441i(a); 11 C.F.R. §§ 109.37(a)(3); 109.21(c)(4) (public communication in the 90-day or 120-day windows is coordinated if it, inter alia, “refers to a clearly identified ... candidate”)).

Prior to BCRA, independent expenditures, which can contain express advocacy, had “remained limited” because national parties could use so-called issue advocacy for “unlimited commercials (mostly) criticizing or (less often) praising a congressional candidate in the days before an election.” (Krasno Rept. at 10, FEC Exh. 1; Colorado II, 533 U.S. at 455, 121 S.Ct. 2351 (independent expenditures may contain express advocacy because “[a] party may spend independently every cent it can raise wherever it thinks its candidate will shine, on every subject and any viewpoint.”)).

For example, in the 2000 and 2002 election cycles, the national party committees spent less than $2 million per election cycle on independent expenditures while spending “several hundred million dollars on issue advocacy.” (Biersack Decl. at ¶ 11, Table 15, FEC Exh. 3; Krasno Rept. at 10 and n. 14, FEC Exh. 1). But after BCRA limited parties’ ability to engage in unlimited coordinated so-called issue advocacy, “the parties turned immediately back to independent expenditures.” (Krasno Rept. at 10 FEC Exh. 1; RNC 30(b)

(6) Dep. at 96, FEC Exh. 5 (“Q. Does the RNC usually make independent expenditures to support or oppose Congressional candidates? A. It has been doing so post BCRA.”)). Parties began to spend hundreds of millions of dollars per election cycle on independent expenditures. (Biersack Decl. at ¶ 11, Table 15, FEC Exh. 3; Krasno Rept. at 10, FEC Exh. 1 (“Spending on independent expenditures skyrocketed to $73 million in 2004 and $154 million in 2006 on House elections.”)). 56.

Political parties can currently use independent expenditures for any type of campaign activity, but parties use them overwhelmingly for media advertising, primarily consisting of television advertisements. (Krasno Rept. at 11 & n. 15, FEC Exh. 1). Prior to the passage of BCRA, “[estimates from party officials of the amount of money going to television went as high as 75 percent at the DCCC.” (Expert Report of David B. Magleby, Report Concerning Interest Group Election Advocacy and Party Soft Money Activity at 42 [DEV 4-Tab 8], FEC Exh. 55 (footnote omitted)). D.

Recent Fund-Raising, Contribution, and Expenditure Levels for Political Parties 57. From 1992 to 2006, political party spending “increased tenfold.” (Krasno Rept. at 20-21, FEC Exh. 1). 58. Data shows that the Democratic and Republican parties together raised more than $1.4 billion in the two-year 2004 election cycle, more than $1 billion in the 2006 cycle, and more than $1.5 billion in the 2008 cycle. (Biersack Decl. ¶ 6, Table 5, FEC Exh. 3). 59.

In the 2007-2008 election cycle, the national parties raised more money than in the election cycles prior to the effective date of the Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155, when they were also able to raise “soft” money — money that was not subject to the limitation or prohibitions of FECA. (Biersack Decl. ¶ 3, Tables 1 & 2, FEC Exh. 3). 60. In the 2008 election cycle, the major national party committees (RNC and DNC) supported their federal candidates with a total of $529,262 in contributions, $31,256,379 in coordinated expenditures, and $54,563,499 in independent expenditures.

During this same period, the national Senatorial committees (NRSC and DSCC) supported their federal candidates with a total of $648,095 in contributions, $5,353,546 in coordinated expenditures, and $112,013,708 in independent expenditures. During this same period, the national Congressional committees (NRCC and DCCC) supported their federal candidates with a total of $680,817 in contributions, $5,074,523 in coordinated expenditures, and $112,612,969 in independent expenditures. During this same period, candidates for the U.S.

House of Representatives spent a total of $949,700,00 on their candidacies, and candidates for the U.S. Senate spent a total of $444,700,000 on their candidacies. (Biersack Decl. ¶¶ 8, 12, 15, Tables 6-9, 16, FEC Exh. 3). 61. In each of the last five two-year election cycles, the Republican national party committees (the RNC, NRSC and NRCC) have raised hundreds of millions of dollars of hard money. (Biersack Decl. ¶ 3, Table 1, FEC Exh. 3).

In the 2000 election cycle, the Republican national party committees raised $361,588,430 of hard money. (Id.) In the 2002 election cycle, the Republican national party committees raised $352,876,067 of hard money. (Id.) In the 2004 election cycle, the Republican national party committees raised $657,113,369 of hard money. (Id.) In the 2006 election cycle, the Republican national party committees raised $508,120,158 of hard money. (Id.) In the 2008 election cycle, the Republican national party committees raised $640,308,267 of hard money. (Id.) (FEC Fact 34). 62.

In each of the last five two-year election cycles, the Democratic national party committees (the DNC, DSCC and DCCC) have raised hundreds of millions of dollars of hard money. (Biersack Decl. ¶ 3, Table 2, FEC Exh. 3).

In the 2000 election cycle, the Democratic national party committees raised $212,880,651 of hard money. (Id.) In the 2002 election cycle, the Democratic national party committees raised $162,325,003 of hard money. (Id.) In the 2004 election cycle, the Democratic national party committees raised $586,244,028 of hard money. (Id.) In the 2006 election cycle, the Democratic national party committees raised $392,089,836 of hard money. (Id.) In the 2008 election cycle, the Democratic national party committees raised $599,113,650 of hard money. (Id.) 63.

In each of the last five two-year election cycles, Republican state and local party committees, in the aggregate, have raised well over $100 million of hard money. (Biersack Decl. ¶ 5, Table 4, FEC Exh. 3). In each of the last five election cycles, Democratic state and local party committees, in the aggregate, have also raised well over $100 million of hard money. (Id.) 64.

In the 2008 Presidential campaign, national committees of political parties were permitted to make coordinated expenditures with their candidates of up to $19,151,200, in addition to the contributions the party committees may make under 2 U.S.C. § 441a(a)(2)(A). 2 U.S.C. § 441a(d)(2); 11 C.F.R. § 109.33; Price Index Increases for Expenditure Limitations, 73 Fed. Reg. 8698 (Feb. 14, 2008). (J. Stip. at 7). 65.

In the 2008 election cycle, Republican party committees (including national, state, and local committees) supported their federal candidates with $31,952,985 in coordinated expenditures, and Democratic party committees (including national, state, and local committees) supported their federal candidates with $37,988,558 in coordinated expenditures. In the 2006 election cycle, six candidates for U.S. Senate each received $1 million or more in coordinated expenditures from their parties. (Biersack Decl. ¶ 11, 14, Tables 14, 21, 22, FEC Exh. 3). 66.

In the 2008 cycle, the six national party committees provided significant support to their candidates in contributions. The Republican national committees contributed $1,286,809 to their federal candidates. The Democratic national committees contributed $571,365 to their federal candidates. (Biersack Decl. ¶ 12, Table 16, FEC Exh. 3). 67.

During each of the last five two-year election cycles, the Republican national party committees have made millions of dollars of expenditures in coordination with federal candidates, from a low of $13,310,534 in the 2006 cycle to a high of $29,807,792 in the 2008 cycle. (Biersack Decl. ¶ 8, Table 6, FEC Exh. 3). 68.

Over each of the last five two-year election cycles, the Democratic national party committees have made millions of dollars of expenditures in coordination with federal candidates, from a low of $2,333,942 in the 2002 cycle to a high of $22,914,903 in the 2004 cycle. (Biersack Decl. ¶ 8, Table 8, FEC Exh. 3). 69. In the 2008 cycle, parties made $280,873,688 in independent expenditures. The Democratic party committees spent $156,191,039 and the Republican party committees spent $124,682,649 in independent expenditures. (Biersack Decl. ¶ 11, Table 15, FEC Exh. 3). 70.

During the last three two-year election cycles, both major parties’ national committees have averaged well over $100 million in independent campaign expenditures. Republican national party committees made $84,906,626 of independent expenditures in 2004, $115,241,737 of independent expenditures in 2006, and $123,416,207 of independent expenditures in 2008. (Biersack Decl. ¶ 8, Table 7, FEC Exh. 3).

Democratic national party committees made $175,982,712 of independent expenditures in 2004, $106,745,614 of independent expenditures in 2006, and $155,773,969 of independent expenditures in 2008. (Biersack Deck ¶ 8, Table 9, FEC Exh. 3). During those same cycles, both major parties’ state and local committees also spent millions of dollars on independent expenditures. The Republican state and local parties spent $1,266,442 in 2008, $404,650 in 2006, and $3,125,756 in 2004.

The Democratic state and local party committees spent $417,070 in 2008, $1,354,651 in 2006, and $508,984 in 2004. (Biersack Deck ¶ 10, Table 12-13, FEC Exh. 3). E. The Relationship between National and State Parties, Candidates, and Donors The Role of Political Parties 71. National political parties are “ ‘inextricably intertwined with federal officeholders and candidates.’ ” (McConnell v. FEC,; 540 U.S. 93, 155, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (quoting 148 Cong. Rec. H409 (Feb. 13, 2002))). “Candidates are the rallying points for the party.” (Krasno Rept. at 5, FEC Exh. 1). 72.

The Supreme Court has found that “ ‘there is no meaningful separation between the national party committees and the public officials who control them.’ ” (McConnell, 540 U.S. at 155, 124 S.Ct. 619 (quoting McConnell v. FEC, 251 F.Supp.2d 176, 468-69 (D.D.C.2003) (Kollar-Kotelly, J.))). 73. The RNC has “constant contact” with candidates at the height of an election. (Josefiak Dep. at 37, FEC Facts Exh. 5). (J.

Stip. at 2). 74. “The President typically controls his party’s national committee, and once a favorite has emerged for the presidential nomination of the other party, that candidate and his party’s national committee typically work closely together.” McConnell v. FEC, 251 F.Supp.2d 176, 697 (D.D.C.2003) (Kollar-Kotelly, J.). (J. Stip. at 3). 75. Party organizations, particularly those at the national level, directly assist federal candidates by providing them with campaign contributions, coordinated expenditures, and assistance in areas of campaigning that require expertise and in-depth research.

They also help candidates raise funds and campaign support from other groups. The parties’ close involvement in political campaigns gives them a special relationship with candidates. (RNC Resps. to FEC’s First McConnell RFA’s, Nos. 17-19, 55 [DEV 12-Tab 10], FEC Exh. 42). 76. Party organizations recruit candidates and write the rules that govern nomination campaigns.

Party organizations also assist general election candidates with their campaigns, providing many with money, political expertise, media and other election services, volunteers, and some of the other resources that are needed to wage an election campaign. Parties also help candidates collect money and other campaign resources from interest groups and individuals who are active in politics. In addition, party organizations communicate messages designed to benefit a party’s entire ticket or intended to help individual candidates win their races. (D.

Green McConnell Rebuttal Report at 7-9 [DEV 5-Tab 1], FEC Exh. 41; Declaration of Rocky Pennington in McConnell v. FEC ¶ 5 [DEV 8-Tab 31], FEC Exh. 43; Declaration of Linda W. Chapin in McConnell v. FEC ¶ 5 [DEV 6-Tab 12], FEC Exh. 44; Declaration of Terry S. Beckett in McConnell v. FEC ¶ 5 [DEV 6-Tab 3], FEC Exh. 45). 77. One historic role that parties have played is to continue to operate between elections so that each new candidate campaign need not start from scratch.

Parties have historically been considered “socializing institutions that help bring citizens into the political system, serve as an outlet for their political energy by recruiting them to work in campaigns, and help mobilize voters.” (Krasno Rept. at 7, FEC Exh. 1). 78. The strength of a political party can be judged not only by its finances, but also by its “organizational presence in a locale fueled by a combination of paid employees and, more likely, activists and other party members” and the “attention and energy of party members.” (Krasno Rept. at 8, FEC Exh. 1).

Parties Direct their Resources Strategically to have Maximum Impact 79. Political parties “try to maximize their impact by working hardest in — or targeting — the races they deem closest.” (Krasno Rept. at 19, FEC Exh. 1). Parties “try to spend less on uncompetitive races in order to spend more on competitive ones.” (Id.) 80.

Political parties “allocate[ ] money based on a number of factors, including ‘the financial strength of the campaign,’ ‘what [the candidate’s] poll numbers looked like,’ and ‘who had the best chance of winning or who needed the money most.’ ” Colorado II, 533 U.S. at 478, 121 S.Ct. 2351 (quoting, inter alia, declaration of Robert Hickmott, former Democratic fundraiser and National Finance Director for Timothy Wirth’s Senate campaign, in Colorado II (Hickmott Colorado II Deck), [DEV 76-Tab 121], FEC Exh. 34). “[T]he primary consideration in allocating funds is which races are marginal — that is, which races are ones where party money could be the difference between winning and losing ... ” FEC v.

Colorado Republican Fed. Campaign Comm., 41 F.Supp.2d 1197, 1203 (1999) (Nottingham, J.). 81. The RNC decides to spend money in particular races primarily based upon “how competitive the race is and the commitment that the National Committee wants to make to making its position known in that race.” (RNC 30(b)

(6) Dep. at 55-56, FEC Exh. 5). The RNC does not spend money on states that are considered uncompetitive, for example if “there is no chance that the RNC is going to be able to win any of the races, and it’s just taking away money from one competitive state and giving it to a state that won’t have any impact on.” (Id. at 27-28). The RNC also does not spend money in races unless it is convinced that the Republican running is “a legitimate candidate.” (Id. at 78). 82.

As a result of their focus on close races, party committees like the RNC rarely reach their legal limit for coordinated expenditures in a particular House or Senate race. There are 435 seats in the U.S. House of Representatives, each of which is filled by an election during every two-year election cycle. U.S. Const. art. I, § 2; 2 U.S.C. § 2. There are 100 seats in the U.S. Senate, and one third of the total Senate membership is elected every two-year election cycle. U.S. Const. art. I, § 3.

Although there are at least 468 federal elections each cycle, Republican committees reached the maximum amount of coordinated expenditures in only seven congressional races in 2008, and in two races in 2006. (Biersack Deck at ¶ 13, Tables 17 & 18, FEC Exh. 3). Democratic committees only reached the legal limit in ten congressional races in 2008 and twelve races in 2006. (Id.) 83. Parties make no coordinated expenditures at all in many federal elections.

In 2008, only 99 Republican candidates for Congress received coordinated expenditures from political parties, and in 2006 only 88 did. (Biersack Decl. at ¶ 13, Tables 17-18, FEC Exh. 3). Democratic party committees only made coordinated expenditures for 168 of their congressional candidates in 2008 and 201 of them in 2006. (Id.). 84. In only a small fraction of races do party committees spend 95% or more of the coordinated expenditures available to them under the Act.

Republican committees only reached the 95% threshold in coordinated expenditures in 61 congressional races in 2008, and in 54 races in 2006. (Biersack Decl. at ¶ 13, Tables 17 & 18, FEC Exh. 3). Democratic committees only reached the 95% standard in 30 congressional races for each of the last two election cycles. (Id.) 85. Party committees typically reach the 95% threshold only in the most competitive races.

The Cook Political Report is a newsletter that assesses the competitiveness of various elections. (About the Cook Report, http://www.cookpolitical.com/node/ 1774, FEC Exh. 19 (“The Cook Political Report is an independent, non-partisan newsletter that analyzes elections and campaigns for the U.S. House of Representatives, U.S. Senate, Governors and President as well as American political trends.”)). Cross-referencing Republican party spending to the 95% threshold with the Cook Report analysis of 2008 House and Senate races (October 23, 2008) shows that: a.

Republican committees reached the threshold in 29 of 36 “Toss up” races (81%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; 2008 Competitive House Race Chart (Oct. 23, 2008) (Cook House Chart), FEC Exh. 20, http://www. cookpolitical.com/charts/house/competitive_ 2008-10-23_ll-33-46.php; 2008 Senate Race Ratings (Oct. 23, 2008) (Cook Senate Chart), FEC Exh. 21, http://www. cookpolitical.com/charts/senate/ raceratings_2008-10-23_ll-37-46.php). b.

Republican committees reached the threshold in 9 of 15 “Lean Democratic” races (60%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). c. Republican Committees reached the threshold in 9 of 16 “Lean Republican” races (56%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). d. Republican Committees reached the threshold in 4 of 18 “Likely Democratic” races (22%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). e.

Republican Committees reached the threshold in 3 of 21 “Likely Republican” races (14%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). f. Republican Committees reached the threshold in 7 of 364 of races judged as not competitive nor likely to become competitive (2%). (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). 86. Cross-referencing Democratic spending to the 95% threshold with the Cook Report analysis of 2008 House and Senate races (October 23, 2008) shows that: a.

Democratic committees reached the threshold in 10 of 36 “Toss up” races (28%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). b. Democratic committees reached the threshold in 1 of 15 “Lean Democratic” races (13%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). c. Democratic committees reached the threshold in 6 of 16 “Lean Republican” races (38%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). d.

Democratic committees reached the threshold in 2 of 18 “Likely Democratic” races (11%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). e. Democratic Committees reached the threshold in 4 of 21 “Likely Republican” races (14%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). f.

Democratic Committees reached the threshold in 6 of 364 of races judged as not competitive nor likely to become competitive (2%). (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Cook House Chart, FEC Exh. 20; Cook Senate Chart, FEC Exh. 21). 87. The majority of 2008 House and Senate general elections were not close, and in those races, party coordinated expenditures were rare. In 322 of the 470 general elections (69%), a candidate received over 60% of the vote. (Official Election Results for U.S. Senate/Official Election Results for U.S.

House of Representatives (Official 2008 Election Results), http://www.fec.gov/ pubrec/fe2008/2008congresults.pdf). Despite the fact that the majority of races involved a candidate receiving over 60% of the vote, such races only made up a tiny minority of races in which the Republican or Democratic parties spent 95% or more of the coordinated expenditures available to them under the Act.

Of the 61 races in which Republican party committees reached the 95% threshold, only two races (3%) featured a candidate who received over 60% of the vote. (Biersack Decl. at ¶ 14, Table 19, FEC Exh. 3; Official 2008 Election Results). Of the 30 races in which Democratic party committees reached the 95% threshold, only three races (10%) featured a candidate who received over 60% of the vote. (Biersack Decl. at ¶ 14, Table 20, FEC Exh. 3; Official 2008 Election Results). Party Committees Facilitate Their Largest Donors’ Access to Federal Candidates and Officeholders 88.

Martin Meehan was a Democratic Congressman from Massachusetts between 1993 and 2007, and he has provided a declaration in this case. (Declaration of Martin Meehan (Meehan Decl.) at ¶ 1, FEC Exh. 2). Congressman Meehan stated that “[pjarty fundraising serves as a mechanism for major donors to get special access to lawmakers.” (Id. at ¶ 8). 89. “At the request of the party, Members of Congress call prospective donors from lists provided by the party to ask them to participate in party events, such as [DCCC or DNC] dinners.” (Meehan Decl. at ¶ 9, FEC Exh. 2).

National parties’ “fundraising events often [] feature members of Congress as draws, and they explicitly offer donors the opportunity to meet and get to know various officials.” (Krasno Rept. at 5, FEC Exh. 1 (footnote omitted)). 90.

Prior to the passage of BCRA in 2002, large donations often provided access for those donors to federal officeholders. (McConnell, 540 U.S. at 150-52, 124 S.Ct. 619 (“The record in the present case[ ] is replete with ... examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations.... [T]he RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages officeholders to meet with large soft-money donors.”) (citing McConnell, 251 F.Supp.2d at 500-03 (Kollar-Kotelly, J.), 860-61 (Leon, J.))). 91.

Notably, though, the RNC does not accept earmarked contributions, as defined in 11 C.F.R. § 110.6, for any particular candidate. (Josefiak Dep. at 48, FEC Facts Exh. 5). 92. The LA-GOP has ongoing and continuous contact with the RNC as well as federal candidates in Louisiana. (Buckels Dep. at 19-21, FEC Facts Exh. 6). (J. Stip. at 3). 93. One of the purposes of state party committees like LA-GOP is to assist in the election of candidates for federal office. (Buckels Dep. at 19-20, FEC Facts Exh. 6).

In constructing a “victory plan,” Republican federal candidates have meetings with both the national parties and the state party. (Josefiak Dep. at 27, FEC Facts Exh. 5). State and local party organizations assist federal candidates with voter mobilization and grassroots activities. (D. Green McConnell Rebuttal Report at 10-15 [DEV 5-Tab 1],1 FEC Facts Exh. 41; Krasno and Sorauf McConnell Report at 44-50 [DEV 1-Tab 2], FEC Facts Exh. 39; Expert Report of Thomas E. Mann from McConnell (Mann McConnell Report) at 30 [DEV I-Tab 1], FEC Facts Exh. 53). (J. Stip. at 3-4). 94.

During an election cycle, LA-GOP also has “constant contact” with the party’s federal candidates. (LA-GOP 30(b)

(6) Dep. at 19-20, FEC Exh. 6). Republican federal officeholders from Louisiana, by virtue of their office, automatically hold the position of an “exofficio, nonvoting Member” of the State Central Committee of LA-GOP during their time in office. LA-GOP Bylaws, Art III § 2, FEC Exh. 16. Congressman Cao serves as a member of the State Central Committee for the LA-GOP and the Parish Executive Committee for the Republican party. (Cao Dep. at 10, FEC Exh. 4) 95. When federal candidates and officeholders have asked about donors to LA-GOP, the party has “shared that donor list.” (LA-GOP 30(b)

(6) Dep. at 25-26, FEC Exh. 6). The sharing of information also happens in the other direction — LA-GOP receives information from federal candidates about who has contributed to their campaigns. (Id. at 26). 96. LA-GOP encourages federal candidates to tell their donors to also contribute to LA-GOP. (LA-GOP 30(b)

(6) Dep. at 148, FEC Exh. 6). Donors who have contributed the maximum allowable contribution to an individual candidate are encouraged to contribute more to LA-GOP. (Id. at 147; see also Meehan Decl. at ¶ 10, FEC Exh. 2). Then-candidate Cao’s 2008 campaign was expected not only to raise money for his campaign, but also to raise money for LA-GOP. (Cao Dep. at 16, FEC Exh. 4 (“we had to raise some money for the state party.”)). Volunteers for the Cao campaign solicited contributions to LA-GOP. (Id. at 16-17). 97.

Even after the passage of the soft money restrictions in BCRA, large donors to political parties are able to receive access to federal officeholders unavailable to the public. To facilitate its donors’ access to federal candidates and officeholders, the RNC organizes “fulfillment” events to which individuals who have made a large contribution to the RNC of a specified amount are invited, and which officeholders such as the President, Vice-President or other prominent Republicans also attend. (RNC 30(b)

(6) Dep. at 27-30, FEC Exh. 5; Id. at 39-40 (“they will have, you know, basically fulfillment requirements where they will be at some resort, they play a little golf, hear speakers on various issues, and so that will be an ongoing process.”)). 98. These opportunities are only offered to individuals who are “fully contributing” the amount to the RNC that is required to attend the event. (RNC 30(b)

(6) Dep. at 44-45, FEC Exh. 5). The RNC has created tiers of donors with specified benefits based on levels of annual giving: For example, donors who give $15,000 receive “intimat

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