UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) Republican National Committee, ) California Republican Party, ) Republican Party of San Diego ) County, and Michael Steele, ) ) Plaintiffs, ) Civil No. 08-1953 (BMK)(RJL)(RMC) ) v. ) Three-Judge Court ) Federal Election Commission, ) ) Defendant, ) ) Democratic National Committee and ) Representative Christopher Van ) Hollen, Jr., ) ) Intervenors. ) -----------------------)
Before: KAVANAUGH, Circuit Judge; LEON, District Judge; and COLLYER, District Judge.
MEMORANDUM OPINION
KA VANAUGH, Circuit Judge:
The Supreme Court's First Amendment jurisprudence establishes several principles
regarding the regulation of campaign finance. First, 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. Second,
Congress may not limit expenditures by candidates and political parties. And third, Congress
may not limit non-connected entities - including individuals, unincorporated associations, non-
profit organizations, labor unions, and for-profit corporations - from spending or raising money
1 to support the election or defeat of candidates. See Citizens United v. FEC, 130 S. Ct. 876
(2010); Davis v. FEC, 128 S. Ct. 2759 (2008); FEC v. Wisconsin Right to Life, Inc., 551 U.S.
449 (2007); Randall v. Sorrell, 548 U.S. 230 (2006); McConnell v. FEC, 540 U.S. 93 (2003);
Buckley v. Valeo, 424 U.S. 1 (1976); EMILY's List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).1
This case involves regulation in the first category - in this instance, statutory limits on
contributions to political parties.
The Bipartisan Campaign Reform Act of 2002, known as BCRA, limits contributions to
national, state, and local political parties. With respect to national political parties, BCRA' s
limits apply regardless of how a national party might want to use the money - for example, even
if the party wishes to use the money to fund issue ads or state and local election activities.
BCRA's limits on contributions to political parties are known as the soft-money bans. In 2003,
the Supreme Court upheld those provisions against a facial First Amendment challenge. See
McConnell, 540 U.S. 93.
Here, the Republican National Committee, the California Republican Party, the
Republican Party of San Diego County, and the RNC Chairman bring a number of as-applied
challenges to BCRA's restrictions on political-party fundraising. We conclude that plaintiffs'
claims conflict with the Supreme Court's decision in McConnell. The Supreme Court's recent
decision in Citizens United did not disturb McConnell's holding with respect to the
constitutionality of BCRA's limits on contributions to political parties. See 130 S. Ct. at 910-11
("The BCRA record establishes that certain donations to political parties, called 'soft money,'
were made to gain access to elected officials. This case, however, is about independent
I Because of the potential relationship of the questions presented in the Supreme Court's Citizens United reargument order to some of the questions at issue here, we awaited the Supreme Court's decision before deciding this case. Immediately after the Supreme Court issued its Citizens United decision, we ordered and promptly received helpful supplemental briefing on the impact of Citizens United.
2 expenditures, not soft money.") (citations omitted). As a lower court, we do not possess the
authority to clarify or refine McConnell in the manner suggested by plaintiffs. We therefore
GRANT the Federal Election Commission's motion for summary judgment, DENY plaintiffs'
motion for summary judgment, and DISMISS AS MOOT the Federal Election Commission's
motion to dismiss.
LEGAL BACKGROUND
We begin by briefly summarizing the challenged provisions of BCRA, the Bipartisan
Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
Congress has long imposed source and amount limits on contributions to federal
candidates. Congress also has long limited contributions to political parties to the extent the
contributions are made for the purpose of influencing federal elections. See Federal Election
Campaign Act Amendments of 1976, Pub. L. No. 94-283, sec. 112(2), § 320(a)(I), 90 Stat. 475,
487 (codified as amended at 2 U.S.C. § 441a(a)(I»; see also Buckley v. Valeo, 424 U.S. 1, 13
n.12 (I 976) (citing pre-l 976 statutory provisions limiting contributions to candidates); id. at 38
(upholding limit on annual contributions to candidates, political committees, and political
parties).
Before enactment of BCRA in 2002, federal law permitted national political parties to
accept and use large, unlimited contributions - referred to as "soft-money" contributions - to
help fund issue ads, purely state and local election activities, and mixed-purpose activities (for
example, get-out-the-vote and voter registration in years when federal, state, and local candidates
are all on the ballot). Some of those activities by the national parties could simultaneously
3 influence federal elections even though they did not expressly advocate the election or defeat of
a federal candidate. See McConnell v. FEC, 540 U.S. 93, 122-24 (2003).
Congress enacted BCRA in part to plug this "soft-money loophole" that had "enabled
parties and candidates to circumvent ... limitations on the source and amount of contributions
[made] in connection with federal elections." Jd. at 126, 133. Among other changes, BCRA
added § 323(a) and (b) to the Federal Election Campaign Act of 1971.
Section 323(a) applies to national political parties, as well as to officers or agents acting
on their behalf. Under § 323(a), national parties may not solicit, receive, direct, or spend
contributions over $30,400 annually from an individual donor, regardless of whether the national
party might want to spend some of its money on non-federal-election activity such as issue ads or
state and local activities. 2 U.S.C. § 44li(a); see id. § 441a(a)(I)(B); Price Index Increases for
Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 74 Fed.
Reg. 7435, 7437 (Feb. 17,2009).
In part to prevent circumvention of the limits on contributions to national parties, §
323(b) limits contributions to state and local political parties. The goal was to prevent unlimited
donations to state and local party committees that those committees would then use to support
the election or defeat of a federal candidate. Under § 323(b), with certain exceptions not at issue
here, state, district, and local parties may not use any contributions over $10,000 received from
an individual donor in a calendar year for any "Federal election activity." 2 U.S.C. § 441i(b);
see id. § 441a(a)(l)(C). As relevant here, federal election activity under § 323(b) includes (1)
any "voter registration activity" that occurs in the 120 days before a federal election; (2) any
"voter identification, get-out-the-vote activity, or generic campaign activity" that is conducted
"in connection with" an election in which a federal candidate appears on the ballot; and (3) any
4 "public communication" that promotes, supports, attacks, or opposes a clearly identified federal
candidate. Id. § 431(20)(A)(i)-(iii). "Generic campaign activity" means activity that promotes a
political party without promoting any specific candidate. Id. § 431 (21). The provision applies to
state and local political parties, as well as to officers or agents acting on their behalf.
Shortly after BCRA took effect in March 2002, a number of groups and individuals,
including some of the parties here (the Republican National Committee and the California
Republican Party), filed suit challenging the constitutionality of § 323 and other provisions of
BCRA. The Supreme Court upheld § 323 in its entirety against a facial First Amendment
challenge. See McConnell, 540 U.S. at 133-85.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs in this suit are the Republican National Committee, a national party
committee subject to § 323(a); the California Republican Party, a state party committee subject
to § 323(b); the Republican Party of San Diego County, a local party committee subject to §
323(b); and Michael Steele, the Chairman of the RNC, who is subject in his official capacity to
the solicitation restrictions of § 323(a). See Amended CompI. for Declaratory and Injunctive
Relief,-r,-r 11-14.2 The defendant is the Federal Election Commission. Intervenors in support of
the defendant are the Democratic National Committee and Representative Christopher Van
Hollen, the Chairman of the Democratic Congressional Campaign Committee.
The RNC produced evidence that it seeks to raise and spend unlimited soft money in
order to (1) support state candidates in elections where only state candidates appear on the ballot;
(2) support state candidates in elections where both state and federal candidates appear on the
2 When this action was originally filed, then-Chairman Robert M. Duncan was a named plaintiff. Plaintiffs later amended their complaint to replace Duncan with Michael Steele, who succeeded Duncan as Chairman of the RNC. Steele's claims are identical to those previously raised by Duncan.
5 ballot; (3) support state parties' redistricting efforts following the 2010 census; (4) support
"grassroots lobbying efforts" aimed at educating and mobilizing voters around "legislation and
issues"; (5) pay the fees and expenses attributable to this case and "other litigation not involving
federal elections"; and (6) pay maintenance and upkeep expenses associated with the RNC's
headquarters. See Mem. in SUpp. of PIs.' Mot. for Summ. J. at 4_5. 3 In the RNC's view, the
First Amendment entitles it to raise and spend soft money for those activities because they lack
sufficient connection to afederal election. See Amended CompI. for Declaratory and Injunctive
Relief~~ 29-45.
In upholding the soft-money ban, McConnell relied in part on evidence showing that
federal candidates and officeholders had solicited donations to their national party committees
and that the national parties had sold access to federal officeholders and candidates in exchange
for large contributions. In support of its as-applied challenges to BCRA § 323(a) and to
surmount McConnell, the RNC produced evidence in the form of affidavits that it will no longer
"use any federal candidates or officeholders to solicit" soft-money contributions. Mem. in SUpp.
of Pis.' Mot. for Summ. J. at 6. The RNC also submitted evidence it will not "aid" soft-money
donors "in obtaining preferential access to federal candidates or officeholders." Id. at 5.
Specifically, the RNC produced evidence that it will not arrange or facilitate meetings,
conference calls, or other kinds of contact between soft-money contributors and federal
candidates and officeholders "in any manner different than or beyond that currently afforded to
contributors" of hard money. Id. at 5-6; see also Pis.' Statement of Undisputed Material Facts ~~
24, 30; Aff. of Richard Clinton Beeson ~ 19; Aff. of Robert M. "Mike" Duncan ~ 6; Aff. of
3 This list of proposed activities, which is drawn from Plaintiffs' Motion for Summary Judgment, differs slightly from the list found in Plaintiffs' Amended Complaint. See Amended CompI. for Declaratory and Injunctive Relief ~~ 16-21. None of those differences is material to the resolution of this case.
6 Michael Steele ,-r 6. As a result, a large soft-money contributor could obtain no better access to
Republican officeholders or candidates - at least not RNC-arranged access - than a max ed-out
hard-money contributor to the RNC (currently, one who gives $30,400 in a calendar year).4
For their part, the California Republican Party and the Republican Party of San Diego
County produced evidence that they seek to raise and spend unlimited soft money to (1) produce
and distribute public communications that advocate the passage or defeat of California ballot
initiatives and incidentally criticize federal candidates; and (2) engage in voter registration, voter
identification, get-out-the-vote activities, and "generic campaign activity" as defined in 2 U.S.C.
§ 431 (21) in connection with elections where both state and federal candidates appear on the
ballot, but not "targeted to" any federal race or candidate. See Amended CompI. for Declaratory
and Injunctive Relief,-r,-r 23-25, 49-54.
Finally, Steele averred that he seeks to solicit soft-money contributions to the RNC's
accounts, as well as soft-money contributions to state parties and state candidates, in his official
capacity as RNC Chairman. See id. ,-r,-r 22,29-48.
Plaintiffs and the FEC filed cross-motions for summary judgment. Intervenors
Representative Christopher Van Hollen and the Democratic National Committee filed briefs in
opposition to plaintiffs' summary judgment motion. In considering a summary judgment
motion, we "view the evidence in the light most favorable to the nonmoving party, draw all
4 The FEC raised questions about how the RNC's pledge would be enforced. The RNC responded to this enforceability issue by asserting "that if it were to provide a [soft-money] donor with preferential access to a federal candidate or officeholder ... then any contribution from such a donor would be illegal and in violation of FECA." PIs.' Reply Mem. in Supp. of Summ. J. at 20 n.24. At oral argument, counsel for the RNC reiterated that assertion. See Tr. of Oral Arg. at 48-49 (if RNC violates its no-preferential-access pledge, "then there is an illegal Federal contribution"). Counsel added that if the FEC suspected the RNC was not honoring its pledge, the FEC could initiate an investigation and require the RNC to disclose the names of invitees to its donor maintenance events. Jd. at 49-50. Counsel also acknowledged, in response to a question from the court, that the FEC presumably could adopt regulations requiring such disclosures even outside the context of an investigation. Jd. at 50. We find no reason that the RNC's pledge could not be meaningfully enforced by the FEC.
7 reasonable inferences in [its] favor, and eschew making credibility determinations or weighing
the evidence." Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). We will grant a
summary judgment motion if there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter oflaw. FED. R. CIY. P. 56(c).
DISCUSSION
I. Standard of Scrutiny
The initial issue concerns the proper standard of scrutiny. Under the Supreme Court's
precedents, limits on campaign expenditures are subject to strict scrutiny. But limits on
contributions to candidates and political parties are subject to "less rigorous scrutiny" and are
valid if they are "closely drawn" to meet a "sufficiently important" governmental interest.
McConnell v. FEC, 540 U.S. 93, 134-38 & n.40 (2003) (quoting FEC v. Beaumont, 539 U.S.
146, 162 (2003)); see Buckley v. Valeo, 424 U.S. 1, 25, 44-45 (1976). To be sure, every limit on
contributions logically reduces the total amount that the recipient of the contributions otherwise
could spend. But the Court has stated that this truism does not mean limits on contributions are
simultaneously considered limits on expenditures that therefore receive strict scrutiny. See
Buckley, 424 U.S. at 20-21; see also Randall v. Sorrell, 548 U.S. 230, 241-42, 246-47 (2006)
(controlling opinion of Breyer, J.).
The McConnell Court ruled that all of the provisions of § 323 were contribution limits,
and the Court thus applied "closely drawn" scrutiny rather than strict scrutiny. McConnell, 540
U.S. at 138-41. Plaintiffs in this case argue that we nonetheless must employ strict scrutiny.
Plaintiffs contend that § 323' s contribution limits will function as expenditure limits when
applied to their proposed conduct. But that argument flies in the face of McConnell, which
8 squarely held that the level of scrutiny for regulations of contributions to candidates and parties
does not tum on how the candidate or party chooses to spend the money or to structure its
finances. Moreover, Citizens United expressly left intact this portion of McConnell. See
Citizens United v. FEC, 130 S. Ct. 876, 909 (2010) ("Citizens United ... has not suggested that
the Court should reconsider whether contribution limits should be subjected to rigorous First
Amendment scrutiny.").
II. The Merits
A. The Claims ofthe RNC
The RNC raises a variety of alternative arguments against the soft-money ban.
First, the RNC asserts that § 323(a) cannot constitutionally be applied to activities that
are not "unambiguously related to the campaign of a particular federal candidate." Buckley v.
Valeo, 424 U.S. 1, 80 (1976). Plaintiffs' proposed "unambiguously campaign related" standard
is another way of describing the express advocacy test that courts used pre-McConnell for
determining, among other things, which activities a party had to fund with hard money and
which it could fund with its unlimited soft-money donations. See, e.g., McConnell v. FEC, 540
U.S. 93, 123-24 (2003) (before BCRA, political parties could "use soft money to defray the costs
of 'legislative advocacy media advertisements,' even if the ads mentioned the name of a federal
candidate, so long as they did not expressly advocate the candidate's election or defeat"); id. at
283 (opinion of Thomas, J.) ("speech that is 'unambiguously campaign related,' i.e., speech
using words of express advocacy") (citation omitted). In other words, plaintiffs want the Court
to permit large soft-money contributions so long as they are used to fund issue ads or state and
local election campaigns. McConnell rejected this approach; indeed, this was the whole point of
9 BCRA's soft-money ban and of the McConnell decision upholding it. See, e.g., id. at 131-32
(BCRA sought to curb the political parties' use of soft-money contributions to fund "issue
advertising" and state and local election activities that ultimately influenced federal elections and
benefited federal candidates). This particular argument is another way of asking us to overrule
McConnell's holding with respect to the ban on soft-money contributions to national political
parties. As a lower court, we of course have no authority to do so.
Second, the RNC relatedly argues that § 323(a) violates the First Amendment to the
extent it applies to contributions that would be used for non-federal-election activities. The
Supreme Court considered and rejected this argument in McConnell. The Court ruled that §
323(a) is not overbroad simply because it "subjects all funds raised and spent by national parties
to FECA's hard-money source and amount limits, including, for example, funds spent on purely
state and local elections in which no federal office is at stake." Id. at 154. The Court held that
"large soft-money contributions to national parties are likely to create actual or apparent
indebtedness on the part of federal officeholders, regardless of how those funds are ultimately
used." !d. at 155 (emphasis added).
It is true that McConnell permits as-applied challenges to the provisions of BCRA. See
Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 412 (2006). But McConnell upheld § 323(a)
against a facial challenge based on the same applications of the statute that the RNC now raises
in its as-applied challenge. In general, a plaintiff cannot successfully bring an as-applied
challenge to a statutory provision based on the same factual and legal arguments the Supreme
Court expressly considered when rejecting a facial challenge to that provision. Doing so is not
so much an as-applied challenge as it is an argument for overruling a precedent. Therefore, to
the extent the RNC is arguing that § 323(a) is unconstitutional because it applies to contributions
10 for non-federal-election activities, that argument fails in light of McConnell. Again, Citizens
United expressly left this aspect of McConnell intact. See Citizens United v. FEC, 130 S. Ct.
876, 910-11 (2010) ("The BCRA record establishes that certain donations to political parties,
called 'soft money,' were made to gain access to elected officials. This case, however, is about
independent expenditures, not soft money.") (citations omitted).
Third, the RNC argues that no viable theory of corruption justifies these limits on
The RNC contends that Citizens United undermines any theory of limiting contributions
to political parties that might have rested on the idea that large contributions to parties create
gratitude from, facilitate access to, or generate influence over federal officeholders and
candidates. On that threshold point, we agree with the RNC's interpretation of Citizens United.
See id. at 909-10 ("When Buckley identified a sufficiently important governmental interest in
preventing corruption or the appearance of corruption, that interest was limited to quid pro quo
corruption. The fact that speakers may have influence over or access to elected officials does not
mean that these officials are corrupt. ... The appearance of influence or access, furthermore, will
not cause the electorate to lose faith in our democracy.") (citations omitted); id. at 910
("Ingratiation and access, in any event, are not corruption."). To the extent the FEC argues that
large contributions to the national parties are corrupting and can be limited because they create
gratitude, facilitate access, or generate influence, Citizens United makes clear that those theories
are not viable.
But that is not enough for the RNC to prevail here because McConnell's decision to
uphold the soft-money ban rested on something more specific: record evidence of the selling of
preferential access to federal officeholders and candidates in exchange for soft-money
11 contributions. See McConnell, 540 U.S. at 153-54 ("[I]t is the manner in which parties have sold
access to federal candidates and officeholders that has given rise to the appearance of undue
influence .... It was not unwarranted for Congress to conclude that the selling of access gives
rise to the appearance of corruption."); see also Citizens United, 130 S. Ct. at 910 ("The BCRA
record establishes that certain donations to political parties, called 'soft money,' were made to
gain access to elected officials.").
The RNC, in tum, responds that McConnell's rationale does not control this as-applied
challenge because the RNC has now pledged to end its role as an intermediary for such
transactions by (1) not involving federal candidates or officeholders in its soft-money
solicitations; and (2) not granting soft-money donors preferential access to candidates or
officeholders based on their large, soft-money contributions. See Mem. in SUpp. of PIs.' Mot.
for Summ. J. at 5-6. The RNC contends that it therefore is entitled to an as-applied exemption
from § 323(a) with respect to its use of soft money for non-federal-election activities.
The RNC's as-applied argument - advanced as a way of distinguishing McConnell -
carries considerable logic and force. After all, the RNC is right that McConnell, in upholding the
across-the-board ban on national parties' raising and spending soft money for any purpose, relied
heavily on evidence that national party committees had sold preferential access to federal
officeholders and candidates in exchange for large soft-money donations. See, e.g., McConnell,
540 U.S. at 150-52 (describing record evidence of a "pervasive" practice of "national party
committees peddling access to federal candidates and officeholders in exchange for large soft-
money donations"); id. at 153-54 ("it is the manner in which parties have sold access to federal
candidates and officeholders that has given rise to the appearance of undue influence"); id. at 156
("Congress had sufficient grounds to regulate the appearance of undue influence associated with"
12 a practice in which "large soft-money donations to national party committees are likely to buy
donors preferential access to federal officeholders"); see also EMILY's List v. FEC, 581 F.3d 1,
13 & n.l2 (D.C. Cir. 2009).
According to the RNC, removing that factual element from the equation would largely
eliminate the problem the McConnell Court cited in finding § 323(a) constitutional. The RNC
argues that if the soft-money contributions are not used for federal-election activities, if federal
officeholders and candidates are not involved in solicitation of the contributions, and if the
contributions facilitate no greater RNC-arranged access to federal candidates or officeholders
than a maxed-out hard-money contributor receives, there can be no corruption or appearance of
corruption from the soft-money contributions.
The problem for the RNC - at least at this District Court level - is that the McConnell
Court, in upholding § 323(a), appeared to rely not only on the selling of access in exchange for
soft-money contributions, which is arguably resolved by the RNC's pledge to no longer grant
soft-money contributors preferential access, but also on "the close relationship between federal
officeholders and the national parties." 540 U.S. at 154; see also id. at 152 (describing "the close
ties that candidates and officeholders have with their parties"). The Court observed, for
example, that there was "no meaningful separation between the national party committees and
the public officials who control them," because the national committees were "run by, and
largely composed of, federal officeholders and candidates." Id. at 155 (internal quotation
omitted). The Court also noted that because the national parties were "inextricably intertwined
with federal officeholders and candidates, ... there is a close connection between the funding of
the national parties and the corrupting dangers of soft money on the federal political process."
Id. (internal quotation omitted). The Court stated that "[g]iven this close connection and
13 alignment of interests, large soft-money contributions to national parties are likely to create
actual or apparent indebtedness on the part of federal officeholders, regardless of how those
funds are ultimately used." Id.; see also id. at 145 ("federal candidates and officeholders enjoy a
special relationship and unity of interest" with national political parties, and this "close affiliation
has placed national parties in a unique position, whether they like it or not, to serve as agents for
spending on behalf of those who seek to produce obligated officeholders") (quoting FEC v.
Colorado Republican Fed. Campaign Comm., 533 U.S. 431,452 (2001)) (internal quotation
marks omitted). The Court summarized the point as follows: "[I]t is the close relationship
between federal officeholders and the national parties, as well as the means by which parties
have traded on that relationship, that have made all large soft-money contributions to national
parties suspect." Id. at 154-55.
In relying in part on the inherently close relationship between parties and their
officeholders and candidates, the Court suggested that federal officeholders and candidates may
value contributions to their national parties - regardless of how those contributions ultimately
may be used - in much the same way they value contributions to their own campaigns. As a
result, the reasoning goes, contributions to national parties have much the same tendency as
contributions to federal candidates to result in quid pro quo corruption or at least the appearance
of quid pro quo corruption. See id. at 144 ("contributions to a federal candidate's party in aid of
that candidate's campaign threaten to create - no less than would a direct contribution to the
candidate - a sense of obligation"); cf Buckley, 424 U.S. at 23-29 (upholding FECA's limits on
direct contributions to candidates and their campaign committees); EMILY's List, 581 F.3d at 14
("non-profit groups do not have the same inherent relationship with federal candidates and
14 officeholders that political parties do"). And the McConnell Court appears to have upheld §
323(a) at least in part for that reason. See McConnell, 540 U.S. at 154-55.
We acknowledge that the McConnell opinion is ambiguous on the question whether the
"unity of interest" between national parties and their candidates and officeholders was an
independently sufficient rationale for the Court to uphold the blanket ban on soft-money
contributions to national parties. In due course, the Supreme Court will have the opportunity to
clarify or refine this aspect of McConnell as the Court sees fit, and to consider the RNC's
challenge to § 323(a) in light of the RNC's pledge to no longer grant preferential access to soft-
money contributors. As a lower court, however, we do not believe we possess authority to
clarify or refine McConnell in the fashion advocated by the RNC, or to otherwise get ahead of
the Supreme Court. Cf Agostini v. Felton, 521 U.S. 203, 237 (1997); Rodriguez de Quijas v.
ShearsonlAmerican Express, Inc., 490 U.S. 477, 484 (1989).
Therefore, we reject the RNC's challenges to § 323(a) as a matter of law and grant the
FEC's motion for summary judgment with respect to those claims. s
B. The Claims of the California Republican Party and the Republican Party of San Diego County
Next, we consider the claims of the state and local party plaintiffs, the California
Republican Party and the Republican Party of San Diego County. They target § 323(b), which
5 The current mix of statutes, regulations, and court decisions has left a campaign finance system that reduces the power of political parties as compared to outside groups. See Citizens United, 130 S. Ct. 876; EMILY's List, 581 F.3d at 19. Under current law, outside groups - unlike candidates and political parties - may receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads. We recognize the RNC's concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates. But that is an argument for the Supreme Court or Congress. As a lower court, it is not our place to reassess the constitutionality of limits on contributions to political parties that the Supreme Court has upheld. And it is not our role to question Congress's policy choice to limit contributions to political parties.
15 prohibits them from using soft-money contributions for any "Federal election activity." They
contend that § 323(b) is unconstitutional as applied to their proposed activities, which they
concede fall within the statutory definition of federal election activity. Specifically, they assert
that the First Amendment entitles them to receive and spend soft-money contributions (that is,
contributions above the current $10,000 annual limit) on (l) public communications that promote
the California Republican Party's position on California ballot initiatives and incidentally
criticize or oppose federal candidates; and (2) 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, but not "targeted to" any federal race or candidate. 6
In McConnell, the Supreme Court squarely rejected those claims. There, the Court
upheld § 323(b) against a facial First Amendment challenge. In so doing, the Court considered
the argument that § 323(b) was overbroad because it applied to expenditures by state and local
parties that allegedly "pose no conceivable risk of corrupting or appearing to corrupt federal
officeholders." McConnell, 540 U.S. at 166. The Court rejected that argument on the ground
that the statute "is narrowly focused on regulating contributions that pose the greatest risk" of
corrupting federal candidates by placing them "in the debt of the contributor" - namely,
contributions that state and local parties could use "to benefit federal candidates directly." Id. at
167. The Court examined each of the categories of activity that § 323(b) requires state and local
parties to pay for with hard money, and it found that expenditures in each category had a
significant potential to "directly assist" federal candidates. See id. at 167-71.
6 Like the RNC, the California Republican Party and the Republican Party of San Diego County argue that the soft-money ban cannot constitutionally be applied to activities that are not "unambiguously related to the campaign of a particular federal candidate." As we explained above, that argument falters under McConnell.
16 As we explained in the previous section, we of course understand that the Supreme
Court's analysis of § 323(b) permits as-applied challenges based on the kind of expenditure at
issue. Cf Wisconsin Right to Life, 546 U.S. at 412. But as with § 323(a), the as-applied
arguments raised against § 323(b) are essentially the same arguments considered and rejected in
McConnell. There is nothing substantially new presented in plaintiffs' as-applied challenge to §
323(b).
With respect to advertisements paid for by state and local parties, for example, the
McConnell Court stated that '" [p ]ublic communications' that promote or attack a candidate for
federal office ... undoubtedly have a dramatic effect on federal elections." 540 U.S. at 169.
Noting that such ads "were a prime motivating force behind BCRA's passage," the Court
concluded that "any public communication that promotes or attacks a clearly identified federal
candidate directly affects the election in which he is participating." Id. at 169-70. Therefore, the
Court found § 323(b) closely drawn to the Government's anti-corruption interest. Id. at 170.
Plaintiffs do not distinguish their proposed ads from the category of state and local party
advertising that the Supreme Court expressly considered in McConnell. They allege only that
their ads will be "targeted" primarily at state ballot initiatives and that their attacks on federal
candidates will be incidental to that purpose. But nothing in McConnell suggests that the
question whether a state or local party's communication implicates the federal anti-corruption
interest depends on whether the communication is "targeted" at federal elections. Indeed,
McConnell stated that "any public communication" by a state or local party that "attacks a
clearly identified federal candidate" implicates the federal anti-corruption interest. Id. (emphasis
added). Under McConnell, Congress can require that such party communications be funded with
17 the party's hard money (that is, with contributions to the party that are subject to source and
amount limits). ld.
The McConnell Court also held that "voter registration efforts and voter identification,
GOTV [get-out-the-voteJ, and generic campaign activities conducted in connection with a
federal election clearly capture activity that benefits federal candidates" because "federal
candidates reap substantial rewards from any efforts that increase the number of like-minded
registered voters who actually go to the polls." ld. at 167-68 (citations omitted). The Court
concluded that because all of those activities "confer substantial benefits on federal candidates,
the funding of such activities creates a significant risk of actual and apparent corruption," and
therefore Congress could require that such activities be funded with hard money. Jd. at 168.
Again, plaintiffs have not distinguished their proposed activities from the categories of
state and local party activities the Supreme Court considered in McConnell. They simply assert
that their voter drives and generic campaign activities will not be "targeted" at any federal
election. Even taking that assertion as true, it has no legal relevance under McConnell. The
Supreme Court made clear that whether § 323(b) can be constitutionally applied to a particular
state or local party activity depends, not on whether the party's primary "target" is federal, but on
whether the activity would provide a direct benefit to federal candidates. Plaintiffs do not deny
that their proposed activities would provide such a benefit. Therefore, we reject plaintiffs' as-
applied challenges to § 323(b) as a matter oflaw.
C. The Claims of the RNC Chairman
Finally, we consider the RNC Chairman's as-applied challenges. Under the Supreme
Court's precedent, the RNC is not entitled to raise, receive, or spend soft money for any purpose.
18 It necessarily follows that the Chainnan cannot solicit soft-money contributions to the RNC's
accounts. See id. at 157-58.
The Chainnan also wants to solicit soft-money contributions to state parties and
candidates, and he contends that § 323(a) is unconstitutional as applied to such solicitations.
That claim is also foreclosed by McConnell. There, the Supreme Court upheld § 323(a) insofar
as it prohibits national party committees, and party officers in their official capacities, from
soliciting or directing soft-money contributions on behalf of state committees and state and local
candidates. Id. The Court reasoned that the restriction on solicitation "follows sensibly from the
prohibition on national committees' receiving soft money," because a "national committee is
likely to respond favorably to a donation made at its request regardless of whether the recipient is
the committee itself or another entity." Id.
In other words, the Court's rationale for upholding the solicitation restriction was the
same as its rationale for holding that all soft-money contributions to national parties can be
regulated, regardless of how they are used. If Congress can prohibit a national party from
spending soft money from its own accounts to support state parties and candidates, it follows that
Congress can also prohibit the national party from raising soft money on beha(f of state parties
and candidates. Under McConnell, there is no reason to think that contributions made to a
national party and contributions made at the behest of a national party are any different in tenns
of their potential ability to produce corruption or the appearance of corruption.
In discussing § 323(a)'s restriction on solicitation, the Court did observe that under the
statute, "officers of national parties are free to solicit soft money in their individual capacities."
Id. at 157. Thus, under McConnell, the Chainnan may solicit soft-money donations on behalf of
state and local parties and candidates, so long as he does so in his individual capacity and does
19 not use RNC resources or his title as Chainnan of the RNC to further his fundraising efforts.
Plaintiffs' amended complaint, however, specifically asserts that the Chainnan "intends to make
the described solicitations in his official capacity as RNC Chainnan on behalf of RNC."
Amended CompI. for Declaratory and Injunctive Relief~ 22. Thus, we reject the Chainnan's as-
applied challenges to § 323(a) as a matter oflaw. 7
CONCLUSION
The FEC's motion for summary judgment is GRANTED, plaintiffs' motion for summary
judgment is DENIED, and the FEC's motion to dismiss is DISMISSED AS MOOT.
This the 26 th day of March, 2010.
R0tM,lL~ BRETTM. KAVANAUGH United States Circuit Judge
~
~ United States District Judge
United States District Judge
7 Because we find that all of plaintiffs' claims are foreclosed on their merits, we need not consider the FEC's argument that some of the claims are also barred by res judicata. See In re Franklin Sav. Corp., 385 F.3d 1279, 1286 (lOth Cir. 2004) (resjudicata not a jurisdictional issue).