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McConnell v. Federal Election Commisssion

May 1, 2003


The opinion of the court was delivered by: Colleen Kollar-kotelly, District Judge




The recent issues confronting Congress related to campaign finance are neither novel nor unfamiliar:

The idea is to prevent... the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public. It strikes at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government. And I believe that the time has come when something ought to be done to put a check to the giving of $50,000 or $100,000 by a great corporation toward political purposes upon the understanding that a debt is created from a political party to it. Elihu Root, Addresses on Government and Citizenship 143 (Bacon and Scott ed. 1916) (original statement made before the Constitutional Convention of the State of New York in 1894 ).

Many believe that when an individual or association of individuals makes large contributions for the purpose of aiding candidates of political parties in winning the elections, they expect, and sometimes demand, and occasionally, at least, receive, consideration by the beneficiaries of their contributions which not infrequently is harmful to the general public interest. 65 Cong. Rec. 9507-9508 (1924) (Statement of Sen. Joseph Robinson).

We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue. 86 Cong. Rec. 2720 (1940) (Statement of Sen. John Bankhead).

The unchecked rise in campaign expenditures coupled with the absence of limitations on contributions and expenditures, has increased the dependence of candidates on special interest groups and large contributors. H.R. Rep. No. 93-1239, at 3 ( 1974 ).

We have gone from basically a small donor system in this country where the average person believed they had a stake, believed they had a voice, to one of extremely large amounts of money, where you are not a player unless you are in the $100,000 or $200,000 range, many contributions in the $500,000 range, occasionally you get a $1 million contribution.... Many Members are tired of picking up the paper every day and reading about an important issue we are going to be considering, one in which many interests have large sums at stake and then the second part of the story reading about the large amounts of money that are being poured into Washington on one side or the other of the issue--the implication, of course being clear, that money talks and large amounts of money talk the loudest. 147 Cong. Rec. S2958 (daily ed. March 27, 2001) (statement of Senator Fred Thompson).

Although these statements each reflect discrete points in the history of campaign finance regulation in this country, they reflect the same sentiment: over the course of the last century, the political branches have endeavored to protect the integrity of federal elections with carefully tailored legislation addressing corruption or the appearance of corruption inherent in a system of donor-financed campaigns.

In the area of campaign finance regulation, congressional action has been largely incremental and responsive to the most prevalent abuses or evasions of existing law at particular points in time. For example, consistent with the Constitution, Congress has been permitted to prohibit the use of corporate treasury funds for contributions and expenditures to federal candidates and their parties, forbid the use of union dues in connection with federal elections, cap contributions by individuals to candidates and parties, offer presidential candidates the option of financing their general election campaigns with money from the public fisc, and subject coordinated expenditures to contribution limitations. This process has been evolutionary, and the deliberative nature of the legislative effort is not unexpected given the fact that campaign finance is an extraordinarily challenging area to legislate, particularly given the strong First Amendment interests at stake. On the one hand, congressional action in this area plainly implicates an individual's right to be free from government regulation, a right that is unquestionably at its apogee in the context of political speech. On the other hand, legislation in this area is designed to embolden public confidence in the political system, which thereby ultimately encourages individuals to participate and engage in the electoral process. See Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n ("Colorado I"), 518 U.S. 604, 609 (1996) (per curiam) (observing that in assessing the constitutionality of FECA's various provisions the Supreme Court "essentially weigh[s] the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a `compelling' governmental interest in assuring the electoral system's legitimacy, protecting it from the appearance and reality of corruption"); see also Burson v. Freeman, 504 U.S. 191, 198 (1992) ("Perhaps foremost among these serious issues are cases that force us to reconcile our commitment to free speech with our commitment to other constitutional rights embodied in government proceedings.").

Mindful of these competing constitutional interests, Congress has moved deliberately and often slowly to address evasion or abuse of the law. Building a consensus in an area so penetratingly close to the heart of the First Amendment requires serious consideration. In fact, in the case of the legislation presently before the Court, the legislative process took over six years of study and reflection by Congress.*fn1 This thoughtful and careful effort by our political branches, over such a lengthy course of time, deserves respect. See, e.g., Rust v. Sullivan, 500 U.S. 173, 223-224 (1991) (O'Connor, J., dissenting) ("This Court acts at the limits of its power when it invalidates a law on constitutional grounds. In recognition of our place in the constitutional scheme, we must act with great gravity and delicacy when telling a coordinate branch that its actions are absolutely prohibited absent constitutional amendment.") (internal quotation marks and citations omitted); see also FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 209 (1982) ("This careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference.") (citation and quotation marks omitted). Nevertheless, it is the province of the judiciary to intervene when Congress has struck the wrong balance and disproportionately transgressed First Amendment rights in the name of reform. While navigating this balance is undoubtedly complex, such a task is demanded by the dictates of the Constitution and the well worn path of interpretation of congressional action relating to campaign finance legislation by the Supreme Court of the United States.

It is within this historical framework that the incremental changes Congress strives to accomplish in enacting the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) ("BCRA") are properly understood. BCRA is yet another step in the careful evolution of the campaign finance laws targeted at addressing exceptions to the constitutionally permissible laws that are already in force. Indeed, BCRA was enacted in large measure to amend the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431 et seq. ("FECA"), and any constitutional interpretation of BCRA must, as its starting point, recognize the role BCRA plays within the current state of federal law. In other words, it must be remembered that the statutory provisions at issue were designed by Congress as a comprehensive approach to the abuses of FECA that legislators and candidates were acutely aware of in their capacity as political actors.*fn2 BCRA was designed to ameliorate FECA's most glaring abuses, while staying true to the constitutional boundaries set forth by the judiciary.

Presently before this three-judge District Court are eleven consolidated actions challenging much of BCRA as unconstitutional and seeking declaratory and injunctive relief to prohibit its enforcement. Plaintiffs and Defendants have filed cross motions for judgment pursuant to Rule 54 of the Federal Rules of Civil Procedure. Suffice it to say, the legal challenges raised by this litigation are complex and raise issues of fundamental importance to the conduct and financing of federal election campaigns.

In resolving these challenges, I have endeavored to adopt a cohesive constitutional framework in adjudicating Plaintiffs' claims, premised on the extensive record in this case and Supreme Court precedent. It is an approach that I believe is consistent with our common law traditions: a decision is rooted in the record of this case and guided by the constitutional boundaries established by the Supreme Court's campaign finance jurisprudence. Under this approach, I have only found three of the challenged sections unconstitutional: Sections 213, 318, and 504. The provisions I have found unconstitutional are all provisions of BCRA that are not central to its core mission and are entirely severable without doing injustice to the remainder of the law. The rest of the challenged provisions I find either constitutional or non-justiciable, with the small exception, as observed in the per curiam opinion, of one disclosure provision contained in Section 201. In the case of Section 201, Judge Leon and I have severed subsection (5) of Section 201; a relatively minor change that does not impair the remaining disclosure provisions of the Act.*fn3






National Party Nonfederal Money Fundraising and Spending

The Rise of Nonfederal Money Spending

The Rise of Nonfederal Money Is Not Related to "Party Building"

National Party "Issue Advocacy" Campaigns Funded With Nonfederal Money

Get-Out-The-Vote (GOTV)

Voter Registration


Other Activities Paid for with Nonfederal Funds

The State Parties Have Become "Branches" of the National Parties


The Role of Federal Lawmakers in Political Party Nonfederal Fundraising

Federal Lawmakers Run the Party Committees

Federal Lawmakers Solicit Nonfederal Funds for the National Party Committees

Nonfederal Funds are Given with Intent to Assist Specific Members of Congress; Political Parties Keep Track of Contributions Members of Congress Raise

Federal Lawmakers and National Party Committees Solicit Nonfederal Funds for State Parties



Vote Buying/Bribery

Donors are Pressured to Make Contributions to Political Parties

Federal Officeholders' Awareness of Who Donates to Parties

Evidence Regarding Contributions and Access to Federal Lawmakers

Empirical Evidence Linking Donations to Corruption


Public Perception of Corruption


Nonprofit Groups' Involvement in Federal Elections

The Effect of BCRA on Interest Group Activity

State Party Fundraising

Fundraising By National Party Officials & Federal Officeholders for State Parties

CDP and CRP Fundraising


The Origins of the Problem Congress Sought to Solve With Title II

The Rise of Issue Advocacy Campaigns Funded by Corporate & Labor Union General Treasuries

Express Advocacy Not Widely Used Nor An Effective Means of Campaign Advertising

Current Federal Law Does Not Distinguish Between Pure Issue Advertisements and Candidate-Centered Issue Advertisements

Candidate-Centered Issue Advocacy Has Risen Because it Permits Corporations & Labor Unions to Influence Federal Elections with General Treasury Funds While Avoiding FECA's Restrictions

Organizations' Use of Candidate-Centered Issue Advocacy

Federal Candidates and Political Parties Know and Appreciate Who Runs Candidate-Centered Issue Advertisements in Their Races

Candidate-Centered Issue Advertisements Are Empirically Distinguishable from "Pure" Issue Advertisements

BCRA's Restriction on "Electioneering Communication"

The Primary Definition of Electioneering Communication is Narrowly Tailored to Radio & Television Advertisements

The Primary Definition of Electioneering Communication is Narrowly Tailored by Broadcast Advertisements Appearing Sixty Days Before a General Election and Thirty Days Before a Primary Election, That Name a Candidate, and Are Targeted to that Candidate's Electorate

Expert Reports on BCRA's Effect on Political Advertising




Sections 201, 203 and 204: The Prohibition on Electioneering Communications


Standard of Review

Express Electoral Advocacy is Not a Constitutional Requirement

The Evisceration of Section 441b


Title II of BCRA is Narrowly Tailored to Serve a Compelling Governmental Interest

BCRA's Prohibition on Electioneering Communications; the Primary Definition Serves Compelling Governmental Interests

Sections 201, 203, and 204 of BCRA are Narrowly Tailored to Serve Compelling Governmental Interests

Plaintiffs' Underbreadth Challenge

Plaintiffs' Challenge Relating to Exemption for News Stories, Commentaries or Editorials from a Broadcast Station

Conclusion Regarding Title II

Section 213


Section 101: Soft Money of Political Parties

Background: The Rise of Nonfederal Money as a Means of Financing Federal Elections

Plaintiffs' First Amendment Challenges

Standard of Review

Title I is Constitutional Under the First Amendment

Title I Is Closely Drawn


Plaintiffs' Equal Protection and Underbreadth Claims

Plaintiffs' Federalism Challenge



Sections 304, 305, 307, 316, and 319

Section 318: Prohibition of Contributions by Minors


Section 504



Expert Reports on BCRA's Effect on Political Advertisements

The CMAG Data Set

The Annenberg Public Policy Center Reports

The Goldstein Expert Report

Buying Time Studies

AFL-CIO Advertisements Run Within 30 Days of a Primary Election

Empirical Studies on Corruption


Reviewing a record in a case involving protected First Amendment rights requires serious examination and analysis of the underlying testimony and documentary evidence. Therefore, with few exceptions, I have not relied on or cited to the Findings of Fact proposed by the litigants. To ensure accuracy and to eliminate any gloss or characterizations added by the parties, I have reviewed and cited the underlying documents, depositions, or declarations and have, in many instances, chosen to quote directly from the original sources.*fn4

I have endeavored to develop a factual record that is commensurate with my legal approach. Accordingly, even though in regard to my Conclusions of Law I am in dissent on most of Title I, as well as in dissent with regard to the primary definition of electioneering communication in Title II, I have found it appropriate to adequately set forth the bases of my Factual Findings to assist the appellate review of the three-judge District Court's decisions, and because the nature of my legal positions demand it.

Having set forth the following preliminaries, I now turn to my Findings of Fact. While the record is exhaustive–replete with multiple sources for each point–I have focused on selecting from the complete record, facts that are probative in supporting my legal conclusions, distinguishing, where appropriate, between disputed and uncontroverted evidence. In short, I have exercised my discretion to be selective without sacrificing, to the best of my ability, my due diligence.*fn5


National Party Nonfederal Money Fundraising and Spending

1. As discussed both in the per curiam opinion and my own conclusions of law, FECA was silent on how to draw lines around money raised outside of FECA's source and amount limitations for political parties to spend on activities that were expected not to be used for the purpose of influencing a federal election. The FEC's opinions and rulemakings drew that line by permitting state and national party committees to pay for the nonfederal portion of their administrative costs and voter registration and turnout programs with monies raised under relevant state laws (not FECA), even if they permitted contributions from sources such as corporations and labor unions that were prohibited under FECA. As a result, national and state parties began to raise so-called "soft money," which described these nonfederal funds–not subject to FECA limits and restrictions–to pay for a share of election-related activities.

1.2 It is undisputed that over the past two decades the parties have raised and spent an increasing amount of nonfederal funds.

1.3 In 1980 the national Republican party spent roughly $15 million in soft money, the Democrats $4 million. This constituted 9% of total spending by the two national parties. In 1984 the amount of soft money spent by the national parties increased marginally to $21.6 million but it constituted a smaller share (5%) of total national party activity. In 1988.... [p]arty soft money spending more than doubled to $45 million, which was 11% of national party totals.... By 1988, both parties had developed effective means of courting large soft money donors. After the election, Republicans revealed that they had received gifts of $100,000 each from 267 donors; Democrats counted 130 donors contributing $100,000 or more.... Mann*fn6 Report at 12-13 [DEV 1-Tab 1] (citations omitted).

1.4 The FEC began tracking nonfederal donations in the 1992 election cycle. During that cycle the Democratic and Republican parties together raised $86.1 million in nonfederal funds. During the 1994 election cycle the two major parties raised $101.6 million in nonfederal funds; during the 1996 election cycle they raised $263.5 million in nonfederal funds; during the 1998 election cycle they raised $222.5 million in nonfederal funds; during the 2000 election cycle they raised $487.5 million in nonfederal funds; and during the 2002 election cycle they raised $495.8 million in nonfederal funds. See FEC, News Release: Party Fundraising Reaches $1.1 Billion in 2002 Election Cycle (Dec. 18, 2002), available at 20021218party/20021218party. html.

1.4.1 There was a threefold increase in national party soft money activity between 1992 and 1996 -- from $80 million to $272 million. Soft money as a share of total national party spending jumped from 16% to 30%. Both parties and their elected officials worked hard to solicit soft money donations from corporations, wealthy individuals, and labor unions. During the 1996 election the national party committees received à approximately 27,000 contributions from federally prohibited sources... Less than $10 million of the $272 million was contributed directly to state and local candidates in the 1996 cycle.... The two parties transferred a total of $115 million in soft money to state party committees, which financed two-thirds of state party soft money expenditures.... State party soft money expenditures for political communication/advertising jumped from less than $2 million in 1992 to $65 million in 1996. Mann Report at 21-22 [DEV 1-Tab 1] (citation omitted).

During the 1996 election cycle, the top 50 nonfederal money donors made contributions ranging from $530,000 to $3,287,175. Id. at 22. Three of the top 50 nonfederal money donors to the national political parties in 1996 were state political parties. Mann Expert Report Tbl. 5 [DEV 1-Tab 1].

1.4.2 The total amount of soft money spent [in the 1998 midterm election cycle] -- $221 million -- was less than in 1996 but more than double the previous midterm election. And soft money as a share of total spending by the national parties jumped to 34%. The congressional party campaign committees put a premium on raising and spending soft money to advance the election prospects of their candidates.... Both national party committees had discovered they could finance campaign activity on behalf of their senatorial candidates with soft money in the form of `issue advocacy.' The same pattern, more pronounced with the Democrats than the Republicans, was evident in the House campaign committees. Mann Report at 23 [DEV 1-Tab 1] (citation omitted).

1.4.3 [S]oft money financing of party campaigning exploded in the 2000 election cycle. Soft money spending by the national parties reached $498 million, now 42% of their total spending. Raising a half billion dollars in soft money [in 2000] took a major effort by the national parties and elected officials, but they had the advantage of focusing their efforts on large donors....The top 50 soft money donors... each contributed between $955,695 and $5,949,000. Among the many soft money donors who gave generously to both parties were Global Crossing, Enron and WorldCom. Mann Report at 24-25 [DEV 1-Tab 1] (citation omitted).

"A total of $280 million in soft money -- well over half the amount raised by the six national party committees -- was transferred to state parties [in 2000], along with $135 million in hard money." Id. at 26. "By contrast, the national parties contributed... only $19 million directly to state and local candidates, less than 4% of their soft money spending and 1.6% of their total financial activity in 2000." Mann Report at 26 [DEV 1-Tab 1] (citation omitted). The table below "shows the trend in hard and soft money donations to the political parties since the 1991-1992 election cycle, when the FEC first began tracking these figures. Soft money donations rose from $86.1 million to $495.1 million between 1991-2 and 1999-2000, but hard money contributions rose markedly as well, from $445 million to $741 million." Green*fn7 Expert Report at 30 [DEV 1-Tab 3].

1991-92 1993-94 1995-96 1997-98 1999-2000

Hard Money $445.0 $384.7 $638.1 $445.0 $741.0

Soft Money $86.1 $101.6 $262.1 $224.4 $495.1

Total $531.1 $486.3 $900.2 $669.4 $1,236.1 Id. (Tbl. 1: National Party Receipts 1992-2000) (figures in millions) (based on "FEC Reports Increase in Party Fundraising for 2000" release of May 15, 2001).

Defendants' expert Donald Green points out that while the amount of money flowing into the campaign finance system has continued to grow, "the lawmakers subject to its influence remain constant in number." Green Rebuttal Report at 22 [DEV 5-Tab 1].

1.4.4 During the first 18 months of the 2001-2002 election cycle the parties reported nonfederal receipts of $308.2 million, which is a 21 percent increase over the same period during the 1999-2000 cycle. The FEC notes that this increase is "all the more significant given that typically parties raise more in Presidential campaign cycles than in non-presidential campaigns." Press Release, Federal Election Commission, Party Fundraising Growth Continues (Sept. 19, 2002) FEC141-0001 [DEV 28]. By October 16, 2002, the parties had raised over $421 million in nonfederal funds. News Release, Federal Election Commission, National Party Fundraising Strong in Pre-Election Filings, available at pre.html.

The Rise of Nonfederal Money Spending

1.5 The figures above demonstrate that although nonfederal receipts and spending began to grow in the 1980s, this trend accelerated beginning in 1996.

1.6 Experts from both parties attribute the accelerated rise in nonfederal money spending to President Bill Clinton and his political consultant Dick Morris' use of such funds during the 1996 campaign to fund television ads designed to promote Clinton's re-election. While the ads prominently featured the President, none of these costs were charged as coordinated expenditures on behalf of Clinton's campaign. Instead the party paid the entire cost, based on a legal argument never before made: that party communications which did not use explicit words advocating the election or defeat of a federal candidate could be treated like generic party advertising and financed, according to the FEC allocation rules, with a mix of soft and hard money. Mann Report at 18 [DEV 1-Tab 1].

In the words of Plaintiffs' expert Raymond La Raja, this "maneuver... catapulted soft money." La Raja Cross Exam. Ex. 3 at 45 [JDT 15] (Raymond Joseph La Raja, American Political Parties in the Era of Soft Money (2001) (unpublished Ph.D. dissertation, University of California at Berkeley).

The strategy to deploy soft money for [political advertising] is described in a series of memos from Dick Morris.... Morris says, "I met with... attorney[s]... and explained the kinds of ads I had in mind. Fortunately, they said the law permitted unlimited expenditures by a political party for such `issue-advocacy' ads. By the end of the race, we had spent almost thirty-five million dollars on issue-advocacy ads (in addition to about fifty million dollars on conventional candidate-oriented media), burying the Republican proposals and building a national consensus in support of the president on key issues." Magleby*fn8 Expert Report at 11 (quoting Dick Morris, Behind the Oval Office: Getting Reelected Against All Odds 141, 624 (1999)) [DEV 4-Tab 8]. "The national Democratic party managed to finance two-thirds of its pro-Clinton `issue ad' television blitz by taking advantage of the more favorable allocation methods available to state parties. They simply transferred the requisite mix of hard and soft dollars to party committees in the states they targeted and had the state committees place the ads." Mann Expert Report at 22 [DEV 1-Tab 1]; see also La Raja Cross Exam. Ex. 3 at 14, 37-48 [JDT 15] (discussing the emergence of "party soft money"); Finding ¶ 1.26.1 (discussing allocation regime).

1.7 Experts for both sides agree that "[i]t did not take the Republican party long to respond in kind by promoting Bob Dole and Jack Kemp." Magleby Expert Report at 11 [DEV 4-Tab 8]; see also La Raja Cross Exam. Ex. 3 at 46 [JDT Vol. 15] ("The Dole-Kemp campaign responded to the Morris plan with its own party-based media strategy.").

In May of 1996, the Republican National Committee announced a $20 million "issue advocacy" advertising campaign. Its purpose, in the words of the chairman, would be "to show the differences between Dole and Clinton and between Republicans and Democrats on the issues facing our country, so we can engage full-time in one of the most consequential elections in our history." These presidential candidate-specific ads, like the Democratic ones, were targeted on key battleground states and financed with a mix of hard and (mostly) soft money. Both parties were now financing a significant part of the campaigns of their presidential candidates outside of the strictures of the FECA and well beyond the bounds of the 1979 FEC ruling that national parties may raise corporate and union funds and solicit unlimited donations from individuals "for the exclusive and limited purpose of influencing the nomination or election of candidates for nonfederal office." Mann Expert Report at 20 (citation omitted) [DEV 1-Tab 1]; see also infra Findings ¶ 1.20.1 (Republican consultants' discussion about whether such advertisements met the "issue advocacy test").

1.8 This approach for the use of nonfederal funds spilled over into congressional races. Mann Expert Report at 20 [DEV 1-Tab 1]; see also Lamson*fn9 Decl. ¶ 9 (describing both parties' national committees' use of nonfederal money to run advertisements in a race for Congress in Montana).

1.9 By the end of the 2000 election cycle, it was clear that although "[s]cholars might differ about how best to change the campaign finance system,... they could not avoid the conclusion that party soft money and electioneering in the guise of issue advocacy had rendered the FECA regime largely ineffectual." Mann Expert Report at 26. The Rise of Nonfederal Money Is Not Related to "Party Building"

1.10 "The parties' expanding use of soft money for the promotion or attack of particular candidates.... [runs] counter to the stated purposes of soft money which were to permit parties to raise unlimited amounts of money for `party building' purposes, unlike hard money which is subject to the contribution limits given to the parties to help elect or defeat candidates." Magleby Expert Report at 11 [DEV 4-Tab 8].

Magleby notes that "[t]he content of such ads does nothing to foster party infrastructure. Those who make the ads and manage the campaigns are consultants, who often do not even reside in the state where the election is taking place." Magleby Expert Report at 49 [DEV 4-Tab 8]. Plaintiffs' expert La Raja concurs, finding that the political parties "exploit federal campaign finance laws by using soft money for candidate support even though federal laws require them to use it for generic party building." La Raja Cross Exam. Ex. 3 at 74-75; see also La Raja Cross Exam. at 67 [JDT Vol. 15] (finding that "more non-federal funds in the allocation accounts are used for media rather than what I call party building").

1.11 As former Senator Brock*fn10 attests, nonfederal money by and large is not used for `party building.' To the contrary, the parties by and large use the money to help elect federal candidates -- in the Presidential campaigns and in close Senate and House elections. Far from reinvigorating the parties, soft money has simply strengthened certain candidates and a few large donors, while distracting parties from traditional and important grassroots work. Brock Decl. ¶ 6 [DEV 6-Tab 9]; see also Boren*fn11 Decl. ¶ 4 [DEV 6-Tab 8] ("[S]oft money is not used purely for `party building' activities"); Buttenwieser*fn12 Decl. ¶ 15 [DEV 6-Tab 11] (explaining that there is little difference between federal and nonfederal money beyond the source and amount limitations on federal money, because national and state political parties use nonfederal money to influence federal elections).

National Party "Issue Advocacy" Campaigns Funded With Nonfederal Money 1.12 As the experts for both parties note, the rise in nonfederal money fundraising was spurred by the new-found ability to run "issue advertisements" designed to affect federal elections.

1.13 Witnesses involved in the political process all agree that political party "issue advocacy" includes communications, paid for in whole or part with nonfederal money, that attack or support a candidate by name while claiming to be an issue discussion outside the reach of federal election laws and do not use the Buckley express advocacy language referred to as "magic words."*fn13

Members of Congress and candidates for federal office agree that political party advertisements paid for with nonfederal funds often influence elections. See 146 Cong. Rec. H428 (Feb. 15, 2000) (Rep. Ganske) (noting that parties in the 1996 election cycle "took... [nonfederal] money and they did not use it to just go out and get a voter registration guide, they used that money for issue ads on TV that were nothing less than full campaign attack ads. Independent surveys have shown that 80 percent of those, quote, issue ads were actually attack ads."); Shays Decl. in RNC ¶¶ 7, 8 [DEV 68-Tab 40] ("The political parties... use these [nonfederal] funds not for general party-building activities, but instead on television advertisements that are designed to influence the outcome of federal elections (and are often indistinguishable from candidate-sponsored campaign ads."); Meehan Decl. in RNC ¶ 13 [DEV 68-Tab 30] ("I believe that `issue ads' by party committees are designed to and do affect the outcomes of elections, that they defeat candidates, and that they drive up the costs of elections."); Rudman*fn14 Decl. ¶ 12 [DEV 8-Tab 34] ("The parties use soft money to help federal candidates get elected by running so-called `issue ads' funded with soft money in closely contested federal races."); McCain Decl. ¶¶ 15, 17 (describing political party advertising demonstrating that political "parties circumvent federal contribution and spending limits by running candidate ads under the guise of `issue advocacy.'"); Chapin*fn15 Decl. ¶ 11 [DEV 6-Tab 12] (stating that the National Republican Campaign Committee ("NRCC") ran television advertisements during her 2000 Congressional campaign designed to influence the result of the election); Bloom Decl. ¶ 10 [DEV 6-Tab 7].

Political consultants agree as well. See Beckett*fn16 Decl. ¶ 11 ("The NRCC itself ran television ads in the 2000 Congressional campaign.... which as I recall were run in the two months prior to the general election.... [which] were clearly intended to influence the election result.") & Ex. 3 (storyboards of two of these advertisements) [DEV 6-Tab 3]; id. ¶ 9 (describing Democratic Congressional Campaign Committee ("DCCC") efforts during the same election); Lamson Decl. ¶¶ 9, 17, Ex. 2-4 [DEV 7-Tab 26] (noting that political parties ran "issue ads" designed to influence the outcome of the Montana Congressional election in both 1996 and 2000); Pennington*fn17 Decl. ¶ 10-11, 13-15 [DEV 8-Tab 31] (discussing how parties can and have used issue advocacy to affect federal elections). The DNC's political director also concurs. Stoltz*fn18 Decl. ¶ 16 [DEV 9-Tab 39] ("In my experience, issue ads affect elections.

The ads can either demoralize or confuse voters so that they do not vote, or they can energize a voter base for or against a party or its candidates. During a presidential election year, the ads definitely make a difference when a presidential candidate is featured.").

In addition, experts for both sides agree that these "issue ads" are intended to and do support the campaigns of federal candidates. See La Raja Cross Exam. Ex. 3 at 15 [JDT Vol. 15], 101-04; Magleby Expert Report at 40-42 [DEV 4-Tab 8].

Characteristics of National Party Nonfederal Campaign Advertisements 1.14 Many national political party committee "issue ads" have focused on the positions, past actions, or general character traits of federal candidates, as part of efforts to influence federal elections.

Scripts of these advertisements confirm this. See, e.g., ODP0021-01393 [DEV 70-Tab 48] (Republican National Committee's ("RNC") advertisement titled "Pledge," discussed infra Findings ¶ 1.20.2; ODP0023-02288 to 95 [DEV 70-Tab 48] (sample scripts of "Keep More" with different sponsors identified ( i.e. RNC, CRP, "[state party name]"). Some versions of the advertisement end with "[Member Name] kept his promise and voted for the middle-class tax cut. Clinton vetoed it," while others end with "Congressman [___] voted for the largest tax increase in American history... and against Republican efforts to roll it back."); ODP0023-02308 [DEV 70-Tab 48] (national political party advertisement titled "Fool Me Once," beginning with the line "Compare the Clinton rhetoric with the Clinton record," discussing statements President Clinton made and actions on the same issues, and concluding with the line "Tell President Clinton you won't be fooled again."); ODP0023-02313 [DEV 70-Tab 48] (RNC advertisement titled "Stripes," which states in part: "Bill Clinton... He's really something. He's now trying to avoid a sexual harassment lawsuit claiming he is on active military duty.... Active Duty? Bill Clinton... He's really something."); ODP0023-02314 [DEV 70-Tab 48] (script of the RNC's "The Story," discussed supra Finding ¶ 1.20.1); ODP0023-02326 (national political party advertisement titled "More," stating that "Under President Clinton, spending on illegal[] [immigrants] has gone up. While wages for the typical worker have gone down.... Tell President Clinton to stop giving benefits to illegals, and end wasteful Washington spending."); ODP0023-02389-92 [DEV 70-Tab 48] (three versions of a national political party advertisement titled "Control" stating that "Washington labor bosses and liberal special interest groups want to buy control of Congress," and explaining why these groups think a named candidate "will vote their way... to return to higher taxes and more wasteful spending"); ODP0029-00010-25 [DEV 70-Tab 48] (national political party advertisement titled "High Taxes" and related documents. "High Taxes" states that a Congressional candidate while "in the state legislature... voted to raise corporate and personal income tax rates almost 18 percent. He even supports raising social security tax limits."); ODP0029-00031 [DEV 70-Tab 48] (national political party advertisement titled "Family Budget," stating that a Congressional candidate raised taxes while in state and local government, and concluding: "If you think your family pays enough in taxes... Call [____]. Tell her to stop raising your taxes.") (emphasis in original); ODP0029-00041 [DEV 70-Tab 48] (national congressional committee advertisement supporting a candidate who "knows you have better things to do with your money than pay higher taxes"); see also ODP0029-00114 [DEV 70-Tab 48]; ODP0029-00169 [DEV 71-Tab 48]; ODP0029-00177 to 79 [DEV 71-Tab 48]; ODP0029-00235 to 37 [DEV 71-Tab 48]; ODP0029-00329 [DEV 71-Tab 48]; ODP0029-00339 [DEV 71-Tab 48]; ODP0041-00177 to 78 [DEV 71-Tab 48]; ODP0041-00202 to 06 [DEV 71-Tab 48]; ODP0041-00220 to 23 [DEV 71-Tab 48]; ODP0041-00280 to 82 [DEV 71-Tab 48]; ODP0041-00352 to 54 [DEV 71-Tab 48]; ODP0041-01261 [DEV 71-Tab 48]; ODP0041-01275 [DEV 71-Tab 48]; ODP0029-00138 to 47 [DEV 71-Tab 48]; ODP0036-01403 to 06 [DEV 71-Tab 48]; ODP0036-02931-32 [DEV 71-Tab 48]; ODP0041-00269-71 [DEV 71-Tab 48]; ODP0041-01024 to 27 [DEV 71-Tab 48]; ODP0041-01219 [DEV 71-Tab 48] (other political party advertisements that focus on the positions, past actions, or general character traits of federal candidates, and related documents).

1.15 Many political party committee "issue ads" have compared the positions or past actions of competing federal candidates, portraying one position negatively and the other positively, as part of efforts to influence federal elections. Scripts provided to the Court confirm this fact. See, e.g., ODP0023-02387 [DEV 70-Tab 48] (national political party advertisement comparing candidate positions on issues, stating that "Congressman [____] voted for our plan to give families a $500 per child tax credit.... [Opponent] voted for Jim Florio's $2.8 billion tax increase which increased your income, sales and gas taxes."); ODP0029-00149 [DEV 71-Tab 48] (national political party advertisement stating that one candidate "support[s] the $500 per child tax credit and ending the tax penalty on married couples," while the other "voted against" those ideas); ODP0029-00159 [DEV 71-Tab 48] (national political party advertisement stating that one candidate "wants Washington bureaucrats to decide what's right for our kids," while the other "supports local school control") (emphasis in original); ODP0041-00585-86 [DEV 71-Tab 48] (national congressional campaign committee advertisement stating that one candidate "supports a program" that "spends millions to hire more bureaucrats," while the other "supports proposals that spend less on bureaucrats and more on local schools"); ODP0041-00729-32 [DEV 71-Tab 48] (national political party advertisement stating that one candidate supports a welfare program that "is restoring responsibility, pride and self-worth," while the other "voted against moving able-bodied welfare recipients from welfare to work") (emphasis in original); ODP0041-01152 [DEV 71-Tab 48] (national political party advertisement stating that one candidate "doesn't support tax cuts for Idaho working families," while the other "has a different view"); ODP0041-01177 [DEV 71-Tab 48] (national political party advertisement stating that one candidate was "the only member of Congress who did not want to tell parents when a child molester moved into their neighborhood," while the other "supports laws that protect our children and keep violent criminals in jail for their full terms"); ODP0041-01189 [DEV 71-Tab 48] (national political party advertisement stating that one candidate voted against a measure to "abolish the tax code to force meaningful reform," while the other "wants to abolish the tax code, so we can create a tax code that is fairer and simpler for working families"); ODP0041-01198 [DEV 71-Tab 48] (national political party advertisement noting that one candidate "supports tax cuts for working families," while the other "voted against billions worth of tax cuts for working families"); ODP0041-01266 [DEV 71-Tab 48] (national political party advertisement noting that one candidate "pushed for tax increases" while the other "knows lower taxes and responsible government spending are better policies"); ODP0041-01337 [DEV 71-Tab 48] (national political party advertisement noting that one candidate "supports Senator Kennedy's ultra liberal plan to mandate spending increases of 25 billion dollars over the next five years," while the other "supports lower taxes"). 1.16 Political parties aim their nonfederal money largely at competitive races. The political party committees spend millions of nonfederal dollars in competitive U.S. Senate races and hundreds of thousands of dollars or more in competitive U.S. House races. Magleby Report at 39 [DEV 4-Tab 8]. See also McConnell Dep. at 237 [JDT Vol. 19] ("I think every Senator realizes that the resources of the National Republican Senatorial Committee ["NRSC"] are going to be deployed to the... maximum extent in places where there are competitive races"); Bumpers*fn19 Decl. ¶ 4 [DEV 6-Tab 10] ("Party committees focus their resources on competitive races."); McCain Decl. ¶ 22 [DEV 8-Tab 29] ("[P]arties generally focus their soft money spending first on taking care of the parties' current officeholders and on the candidates running for open seats and after that on the challengers running against incumbents"). 1.16.1 For example, television and radio electioneering advertising by political parties played an important role in the 2000 Congressional elections in Florida's Eighth District, "a very close open-seat race." Beckett Decl. ¶¶ 4, 9 [DEV 6-Tab 3] (noting that the winning candidate garnered 51% of the vote). Political parties on both sides of these campaigns ran so-called "issue ads" that were financed partly with nonfederal money but clearly directed at influencing the outcome of the election. The DCCC ran television advertising praising Linda Chapin, the Democratic candidate, or criticizing the Republican candidates, through the Democratic State Party in order to take advantage of the more favorable hard money-soft money allocation ratios enjoyed by state parties.*fn20 Beckett Decl. ¶ 9, Ex. 1 [DEV 6-Tab 3]; Chapin Decl. ¶ 9 [DEV 6-Tab 12]; see also Bloom Decl. ¶ 10, Ex. 1-1, 1-4, (describing a similar situation for the 2000 election campaign in Florida's 22nd Congressional District) [DEV 6-Tab 7]. The NRCC and the Florida Republican Party also ran television advertisements in the two months prior to the general election, most of which criticized Chapin's record or positions, and which witnesses testify were clearly intended to influence the election results.*fn21 Chapin Decl. ¶ 10, Ex. 2 [DEV 6-Tab 12]; Beckett Decl. ¶ 10, Ex. 2 [DEV 6-Tab 3]; Pennington Decl. ¶ 14, Ex. 3 [DEV 8-Tab 31]; see also Bloom*fn22 Decl. ¶ 11, Ex. 2 (Republican party ads in 2000 Florida 22nd District Congressional race) [DEV 6-Tab 7].

1.16.2 Most interest groups, in contrast [to political parties], seek to build relationships with officeholders as a way of improving access to the legislative process and lobbying their position. In political science, there is strong empirical support for the theory that interest groups allocate resources primarily to pursue the "access" strategy, meaning they give to candidates who are most likely to win office, which is usually the incumbents (see, for example, Herrnson 2000). Political parties, however, allocate resources for electoral strategies, meaning they contribute money to a party candidate who is in a potentially close election. La Raja Expert Report ¶ 14 [RNC Vol. VII].

1.17 "Almost 92% of party ads in the 2000 election never even identified the name of a political party, let alone encouraged voters to register with the party, to volunteer with the local party organization, or to support the party." Buying Time 2000 at 64 [DEV 46]. Defense Expert Magleby concurs, finding "only 15 percent of the ads in 1998 and 7 percent of the ads in 2000 mentioned the party by name in the ad, except in the tag line indicating which party committee paid for the ad." Magleby Expert Report at 49 [DEV 4-Tab 8].

1.18 Out of the estimated $25.6 million spent by political parties on advertisements in the 1998 election cycle, $24.6 million went to fund advertisements that referred to a federal candidate. See Krasno & Sorauf*fn23 Expert Report at Table 1. Out of 44,485 commercials, 42,599 referred to a federal candidate. Id. Viewers perceived 94 percent of these advertisements as electioneering in nature. Id. at Table 7. 1.19 Plaintiffs' own experts and witnesses testify that "[i]ssue advertising outside the context of electioneering by political parties is rare." RNC expert Nelson Polsby Dep. in RNC v. FEC, 98-CV-1207 (D.D.C) (hereinafter " RNC ") Ex. 3, at 5 [DEV 66-Tab 5]. In this case, the Plaintiffs' expert, Professor Raymond La Raja, acknowledges that "issue advertisements" are intended to and do support the campaigns of federal candidates. La Raja Cross Exam. Ex. 3 at 14-15 [JDT Vol. 15] ("[I]ssue ads, however, have been designed with the intent of boosting the campaigns of targeted candidates.... Rather than use soft money to shore up weak state and local organizations, or enforce party discipline in government, parties invest primarily in issue ads that help candidates.") [JDT Vol. 15]; La Raja Decl. ¶ 16(b) [RNC Vol. VII] ("Political parties use nonfederal money to develop and disseminate political messages."). RNC political operations director Terry Nelson*fn24 testifies that the RNC engages in "issue advocacy in order to achieve one of our primary objectives, which is to get more Republicans elected." Nelson Dep. at 191 [JDT Vol. 24]. This conclusion is echoed by Defense Expert Magleby. Magleby Expert Report at 45 [DEV 4-Tab 8] ("The content, tactics and strategy [of political party advertisements] are generally indistinguishable from the candidate campaigns, except that party campaign communications are generally more negative in tone.")

1.19.1 An RNC official provides examples of advertisement campaigns he claims the RNC ran for "the exclusive purpose of influencing the legislative and policy debate." Josefiak*fn25 Decl. ¶ 91 [RNC Vol. I]. These campaigns dealt with the issues of the balanced budget amendment, welfare reform, and education. Id.

One of these advertisements' purpose was to communicate the Republican Party's position that the federal government must control its reckless appetite for deficit spending. This particular advertisement featured President Clinton, and included numerous clips of him stating a different number of years in which he would balance the budget. The advertisement explained, "Talk is cheap. Double talk is expensive. Tell Mr. Clinton to support the Balanced Budget Amendment. Id ¶ 91(c).

Josefiak calls this advertisement "one of the most memorable and effective broadcast advertisements in [RNC] history." Id. This commercial was run in May 1996, id., the same time the RNC was running very similar so-called "issue advertisements" attacking President Clinton as part of an effort to assist the Dole presidential campaign which was low on funds, see infra Findings ¶ 1.20. RNC advertisements addressing welfare reform were also run in the summer of 1996, "comparing Clinton's rhetoric on welfare reform with his record on welfare reform." Josefiak Decl. ¶ 91(d)[RNC Vol. I]. Comparing President Clinton's statements with his record was a major theme of RNC advertisements run during this period in aid of the Dole campaign. See infra Findings ¶¶ 1.20, 1.20.2.

Another RNC advertisement ran in October 2002, the month before a federal election,"nationwide in support of the Republican Party's education agenda," and had the following script:

Male: Every child can learn...

Female:... and deserves a quality education in a safe school.

Male: But some people say some children can't learn...

Female:... so just shuffle them through.

Male: That's not fair.

Female: That's not right.

Male: Things are changing. A new federal law says every child deserves to learn.

Female: It says test every child to make sure they're learning and give them extra help if they're not.

Male: Hold schools accountable. Because no child should be in a school that will not teach and will not change.

Female: The law says every child must be taught to read by the 3rd grade. Because reading is a new civil right.

Male: President Bush's No Child Left Behind Law.

Female: The biggest education reform and biggest increase in education funding in 25 years.

Male: Republicans are working for better, safer schools...

Female:... so no child is left behind.

Male: That's right... Republicans.

Announcer: Learn how Republican education reforms can help your children. Call 1-800-843-7620. Help President Bush and leave No Child Behind.

Paid for by the Republican National Committee. Josefiak Decl. ¶ 91(e) & RNC Ex. 2428 [RNC Vol. I].

The decision by the RNC to run this advertisement, about legislation that had already passed, within one month of a federal election raises questions about whether promoting education policy was the only goal of this advertisement.

These presumably are the best examples the RNC had of its "genuine issue advocacy." I find that two of these commercials, when viewed in context, clearly had an electioneering purpose in addition to any policy goal. The third, concerning education, may also have sought to promote Republican candidates. These examples reinforce the determination of the RNC's own experts: genuine issue advocacy on the part of political parties is a rare occurrence. See supra Findings ¶ 1.19.

1.20 Political parties also engage in "issue advocacy" to help their candidates whose campaigns are low on funds. For example, the RNC spent $20 million on issue advertisements from March 18, 1996, through the Republican National Convention in August, designed to boost Senator Dole's image at a time when he had virtually run out of federal matching primary funds. The RNC paid for a portion of these issue advertisements with nonfederal funds, including the costs of creating and/or disseminating advertisements that attacked President Clinton's record on welfare reform, taxes, and budgetary policy. Thompson Comm. Report at 4014-16, 7520, 8294; Annenberg Report 1997 at 66; Huyck*fn26 Decl. in Mariani v. United States, 3: CV-1701 (M.D. Pa) (hereinafter Mariani ) ¶¶ 3, 5 [DEV 79-Tab 60]; see also Huyck Decl. in Mariani Attach. A [DEV Supp.-Tab 9] (text of advertisements paid for by the RNC and other Republican party committees in part with nonfederal money).

The RNC conducted a detailed analysis of several advertisements it was planning to run in various markets. The advertisements consisted of two themes: build up then-Senator and Republican presidential candidate Bob Dole, and attack President Bill Clinton. These advertisements were tested in focus groups to see the effect they had on undecided voters. The advertisement used to build up Senator Dole told his life story and never mentioned the words "vote for," "elect," or any of the "magic words" of express advocacy. The second set of advertisements showed President Clinton speaking on a certain issue, then publicly stating the opposite. All of the commercials were tested to see which would give help Senator Dole and hurt President Clinton in the polls. Memorandum to Haley Barbour from Charlie Nave and Joel Mincey, dated May 28, 1996, FEC MUR 4553, Fabrizio Dep. Ex. 5 [DEV 55-Tab 113] (INT011830); FEC MUR 4553, Fabrizio Dep. at 83-94 [DEV 55-Tab 113] (despite working as a consultant for Senator Dole, Fabrizio McLaughlin and Associates were sharing their data with the RNC, NRSC, and NRCC).

1.20.1 One example from this effort is "The Story": Audio of Bob Dole: We have a moral obligation to give our children an America with the opportunity and values of the nation we grew up in.

Voice Over: Bob Dole grew up in Russell, Kansas. From his parents he learned the value of hard work, honesty and responsibility. So when his country called... he answered. He was seriously wounded in combat. Paralyzed, he underwent nine operations.

Audio of Bob Dole: I went around looking for a miracle that would make me whole again.

Voice Over: The doctors said he'd never walk again. But after 39 months, he proved them wrong.

Audio of Elizabeth Dole: He persevered, he never gave up. He fought his way back from total paralysis.

Voice Over: Like many Americans, his life experience and values serve as a strong moral compass. The principle of work to replace welfare. The principle of accountability to strengthen our criminal justice system. The principle of discipline to end wasteful Washington spending.

Voice of Bob Dole: It all comes down to values. What you believe in. What you sacrifice for. And what you stand for. Fabrizio Dep. Ex. 2; McCain Decl. ¶15. The RNC paid for "The Story," in part with nonfederal money, and it was intended to help Senator Dole in the Presidential election. Huyck Decl. in Mariani ¶ 3 [DEV 79-Tab 60]; FEC MUR 4553, Fabrizio Dep. at 50 [DEV 55-113]; McCain Decl. ¶ 15 [DEV 8-Tab 29].

The RNC's Curt Anderson and Wes Anderson wrote to the RNC Chairman regarding the Dole "Story" advertisement, stating: "We could run into a real snag with the Dole Story spot. Certainly, all the quantitative and qualitative research strongly suggests that this spot needs to be run. Making this spot pass the issue advocacy test may take some doing." ODP0025-02018-20 [DEV 70-Tab 48]. Senator Levin commented: "[a]ny reasonable person looking at that ad at that particular time in the Presidential season would say: It's not an ad about welfare or wasteful spending; it is an ad about why should we elect that particular nominee." 145 Cong. Rec. S12747 (1999) (Sen. Levin). Senator Dole himself stated that "The Story" "never says I'm running for President. I hope that it's fairly obvious since I'm the only one in the picture." Center for Responsive Politics, A Bag of Tricks: Loopholes in the Campaign Finance System (1996) at 13, ODP0018-00172 [DEV 69-Tab 48].

1.20.2 Another example from the RNC's 1996 issue advocacy campaign is "Pledge" Clinton: I will not raise taxes on the middle class.

Announcer: We heard this a lot.

Clinton: We gotta give middle class tax relief, no matter what else we do.

Announcer: Six months later, he gave us the largest tax increase in history. Higher income taxes, income taxes on social security benefits, more payroll taxes. Under Clinton, the typical American family now pays over $1,500 more in federal taxes. A big price to pay for his broken promises. Tell President Clinton: You can't afford higher taxes for more wasteful spending. Annenberg Report 1997 at 66; see also Huyck Decl. in Mariani ¶¶ 3 & Attach. A [DEV 79-Tab 60].

1.21 The political parties understand that their issue advocacy campaigns affect federal elections, and they sponsor them with that purpose. This fact is evident from the 1998 "Operation Breakout" issue advocacy campaign mounted by the NRCC in cooperation with the RNC. "Operation Breakout" was touted as an effort to "ensure that the [Republican] party not only maintains, but expands our majorities in Congress." ODP0031-00299 [DEV 71-Tab 48] (September 25, 1998, letter from RNC Chair Nicholson to donor thanking him for his donation to "Operation Breakout"); see also ODP0033-00534 [DEV 71-Tab 48] (RNC Solicitation letter for "Operation Breakout," describing it as an effort to "hold onto our majority in the House"). 1.22 The nature of the political parties' issue advertisements, detailed supra, demonstrates what any observer of politics has come to know: political party "issue advocacy" campaigns are targeted at federal elections, particularly competitive races, and are intended to, and do affect the outcome of those contests.

National Parties Expend A Large Proportion of their Nonfederal Funds for "Issue Advocacy" 1.23 The national political parties spend a large proportion of their budgets on "issue advertisements" that are designed to help elect federal officeholders and candidates. In 2000, for example, the RNC spent an estimated $70-75 million dollars on the production and broadcasting of television and radio advertisements, including both issue advocacy and coordinated expenditures. Oliver*fn27 Dep. at 148-49 [DEV Supp.-Tab 1]. Id. "During the 2000 presidential election year, the largest single portion of the DNC budget was used for issue advertising." Marshall Decl. ¶ 3 [DEV 8-Tab 28].

1.24 Defense expert David Magleby's study estimates that "over half, and sometimes as much as three-quarters, of soft money expenditures go to broadcast advertising." Magleby Expert Report at 49 [DEV 4-Tab 8].

1.25 As Defendants' expert Donald Green, relying on an article by Plaintiffs' expert La Raja, observes:

[T]he original exemptions for soft-money were justified partly on the grounds that get-out-the-vote activity would help strengthen parties. As it happened, only a small fraction of the soft money (or hard money, for that matter) that flowed to state and national parties was spent on voter mobilization activity, even broadly conceived to include direct mail and commercial phone banking. According to the classification system presented by La Raja and Jarvis-Shean (2001, p.3), 8.5% of national party soft money expenditures went to `mobilization' and `grassroots.'

The figures for state and local parties are each 15%. D. Green Report at 14 n.17 [DEV 1-Tab 3] (citing Raymond La Raja and Elizabeth Jarvis-Shean, Assessing the Impact of a Ban on Soft Money: Party Soft Money Spending in the 2000 Elections. (Unpublished manuscript: Institute of Governmental Studies and Citizens' Research Foundation 2001).

National Parties Funnel Nonfederal Funds Through State Parties for the Purchase of Advertisements Designed to Affect Federal Elections

1.26 The evidence clearly demonstrates that a large proportion of nonfederal funds transferred from the national to the state parties is targeted for the purchase of specific issue advertisements designed by the national parties. These advertisements are overwhelmingly intended to affect federal elections. This is done in large part because the state parties have better federal/nonfederal allocation ratios which allows such state-bought advertisements to be purchased with a greater proportion of nonfederal funds.

1.26.1 Defense expert Magleby explains how the FEC's allocation regime makes nonfederal fund transfers to the state parties attractive to the national parties.

Parties can stretch their soft money even further by transferring soft and hard money to state parties where they can achieve a better ratio of soft to hard dollars than if they spent the money themselves. This is because the ratio of soft to hard dollars for party spending if done by the national patty committees is 35 percent soft and 65 percent hard for presidential years, and 40 percent soft and 60 percent hard for off years, but if done by state parties the ratio of soft to hard dollars is greater. The reason for this difference is state parties are allowed to calculate their soft/hard ratio based on the ratio of federal offices to all offices on the ballot in any given year. Both political parties have found spending soft money with its accompanying hard money match through their state parties to work smoothly, for the most part, and state officials readily acknowledge they are simply "pass throughs" to the vendors providing the broadcast ads or direct mail.

Magleby Expert Report at 37 [DEV 4-Tab 8]. Other witnesses and evidence support this contention, which no one disputes. See, e.g., Marshall Decl. ¶ 3 [DEV 8-Tab 28] (testifying that in 2000 the DNC transferred funds to the state parties to take advantage of their allocation rates); see also 11 C.F.R. § 106.5(b)(2)(i) (2001) (during presidential election years national party committees required to pay for their mixed activities with at least 65 percent in federal funds); id. at § 106.5(b)(2)(ii) (during nonpresidential election years national party committees required to pay for their mixed activities with at least 60 percent in federal funds).

1.26.2 The national political parties take advantage of this allocation regime when planning and executing their advertising budgets. One RNC memorandum contains a chart which clearly demonstrates what we already clearly know, that any media we place in the target presidential states should be placed through state parties. The average ballot allocation in the top 17 target states is 37% federal - 63% non-federal, this obviously contrasts very well with our 65% federal - 35% non-federal allocation.

RNC Memorandum dated March 18, 1996, titled "Ballot Allocation of Target States" ODP0025-02720 to 21 [DEV 70-Tab 48]. The memorandum concludes that by using the state political parties, rather than directly making the purchase, the RNC would save $2.8 million in federal funds on a $10 million media buy. Id. see also ODP0021-1365 to 1367 [DEV 70-Tab 48] (memorandum from Haley Barbour to the California House Republicans, discussing the need to make a media buy in California and stating that "[t]o accomplish this buy, the [RNC] would transfer funds to the California Republican Party, which would actually buy the advertising. Under FEC regulations, the California Republican Party must pay for the advertising with one-third FEC contributions and two thirds nonfederal dollars"); McConnell Dep. at 267-77 [JDT Vol. 19] (stating that the NRSC prefers to transfer funds to state parties who then purchase NRSC advertisements with a more favorable federal/nonfederal fund allocation ratio); Nelson Dep at 76-77 [JDT Vol. 24] (stating that purchasing political advertisements through state parties has two advantages: (1) better federal/nonfederal fund allocation ratios and (2) "having [a] state disclaimer [on the advertisement] is generally better than having a national disclaimer on it"); Marshall Decl. ¶ 3 [DEV 8-Tab 28] (noting that in 2000, the largest single portion of the DNC budget was used for issue advertising, but that "[t]he DNC typically did not expend money for these issue ads itself, but instead transferred both federal and non-federal money to the state parties to make these expenditures"); ODP0023-02358 to 65 [DEV 70-Tab 48] (RNC tally of "1996 Media Buys," listing advertisements purchased, price, and the amount of federal and RNSEC funds used); ODP0023-03560 to 660 [DEV 70-Tab 48] (RNC report of 1996 fund transfers to state parties used for "party building/media buy"); ODP0025-01560 [DEV 70-Tab 48] (memorandum from the Republican National Finance Committee dated May 24, 1996, titled "California T.V. Money," discussing the need to raise $4 million in nonfederal funds in two weeks which would then be transferred to the CRP in order to " get on the air and stay on the air for the next three months in CA") (emphasis in original); supra Findings ¶¶ 1.6 (in 1996 the DNC financed two-thirds of its Clinton presidential campaign issue advocacy through state party transfers), 1.4.3 (Mann) (over half of the nonfederal money raised by the national party committees was transferred to the state parties during the 2000 election cycle).

1.26.3 The national political party committees transferred $9,710,166 in federal funds to state political party committees during the 1992 election cycle, $9,577,985 during the 1994 election cycle, $49,967,893 during the 1996 election cycle, $30,475,897 during the 1998 election cycle, and $131,016,957 during the 2000 election cycle. The national political party committees transferred $18,646,162 in nonfederal funds to state political party committees during the 1992 election cycle, $18,442,749 during the 1994 election cycle, $113,738,373 during the 1996 election cycle, $69,031,644 during the 1998 election cycle, and $265,927,677 during the 2000 election cycle. Biersack*fn28 Decl. Tbls. 4, 8 [DEV 6-Tab 6].

1.26.4 State political parties use a large portion of the transferred nonfederal money to finance public communications that support or oppose a federal candidate. See Bowler*fn29 Decl. ¶ 15 (explaining that "[t]he majority of [national transfers to the CDP] were for issue advocacy"). According to Plaintiffs' expert La Raja, "[i]t appears that both parties... use soft money transfers primarily to execute national campaign strategy through state parties." La Raja Cross Exam. Ex. 3 at 103 [JDT Vol. 15]. La Raja finds that "more non-federal funds in the allocation accounts are used for media rather than what I call party building," La Raja Cross Exam. at 67 [JDT Vol. 15] (La Raja's definition of "party building" does not include administrative spending); La Raja Expert Report ¶ 22 [RNC Vol. VII] (finding that in 2000, 44 percent of transferred nonfederal funds were used for media expenditures and 30 percent for administrative overhead). La Raja concludes that "state parties invest most soft money from the national parties in federal races," but notes that "these investments have considerable effects on races further down the ticket." La Raja Cross Exam. Ex. 3 at 139 [JDT Vol. 15] (La Raja dissertation) [JDT Vol. 15]; see also La Raja Cross Exam. 17-18 (stating that he stands by the conclusions reached in his dissertation). A good example of this system comes from the Republican Party of New Mexico ("RPNM"). A 1998 financial statement from the state party shows that it received revenues of $1,524,634 in nonfederal transfers from other Republican organizations, $1,110,987 in individual contributions, and just $389,552 in federal transfers from Republican organizations. The RPNM spent over one-third of its 1998 revenues, $1,062,095, on "issue advocacy -- television, radio and mail." INT810-1605 to 12 (RNC NM0406326 - 33) [DEV 114].

1.26.5 These issue advertisements funded by nonfederal transferred funds are mainly intended to support federal candidates. Plaintiffs' expert La Raja notes that "one of the goals" of national party allocation of nonfederal funds to state parties is to help federal candidates in close elections, and that his "impression" is that it is their primary goal. La Raja Cross Exam. at 73-74 [JDT Vol. 15]; see also Magleby Expert Report at 39 ("[National party s]oft money is largely aimed at competitive [federal] races."). La Raja finds that the parties "are highly functional rather than responsible. Rather than use soft money to shore up weaker organizations, or reward state party members for moving closer to national party ideology, the national organizations use soft money like hard money – to pursue the short-term goal of winning elections." La Raja Cross Exam. Ex. 3 at 75 [JDT Vol. 15]; see also id. at 15 (stating that parties invest soft money primarily "in issue ads that help candidates"). According to La Raja, the national parties' spending of nonfederal funds is proof that "they are functional parties dedicated to winning elections." Id. at 25; see also La Raja Cross Exam. Ex. 1 (La Raja Decl.) ¶ 11(a) ("American political parties have focused primarily on winning elections....") [JDT Vol. 15].

1.26.6 Representatives of the Congressional committees acknowledge that fund transfers from their committees to state parties are used primarily for federal election advertising. See Jordan*fn30 Decl. ¶ 68 [DEV 7-Tab 21] ("In my experience, the large majority of the DSCC's nonfederal transfers to state and local party committees have been to support the nonfederal share of issue advocacy communications. Frequently, these communications refer to Democratic Senate candidates or their Republican opponents, while not expressly advocating any candidate's election or defeat."); Vogel*fn31 Decl. ¶ 63 [DEV 9-Tab 41] ("In my experience, the large majority of the NRSC's nonfederal transfers to state and local party committees have been to support the nonfederal share of issue advocacy communications. Frequently, these communications refer to Republican Senate candidates or their Democratic opponents, while not expressly advocating any candidate's election or defeat."); McGahn*fn32 Decl. ¶ 55 [DEV 8-Tab 30] ("In my experience, the large majority of the NRCC's nonfederal transfers to state and local party committees have been to support the nonfederal share of issue advocacy communications.... Frequently, these communications refer to Republican House candidates or their Democratic opponents, while not expressly advocating any candidate's election or defeat."); Wolfson*fn33 Decl. ¶ 63 [DEV 9-Tab 44] ("In my experience, the large majority of the DCCC's nonfederal transfers to state and local party committees have been to support the nonfederal share of issue advocacy communications. Frequently, these communications refer to Democratic House candidates or their Republican opponents, while not expressly advocating any candidate's election or defeat.") see also La Raja Cross Exam. Ex. 3 at 69 (La Raja dissertation) [JDT Vol. 15] ("It would be particularly surprising for congressional campaign committees to venture outside their traditional scope of helping candidates and invest in state party organizations.").

1.26.7 Representatives of the congressional campaign committees also admit that they retain control over the advertisements their nonfederal money transfers are used to purchase. Jordan Decl. ¶¶ 72-73 [DEV 7-Tab 21] ("When the DSCC transfers funds to state party committees, including nonfederal funds, for the purpose of disseminating issue advocacy communications, it first develops the communications in consultation with media consultants, who are generally retained by the state party at the request or suggestion of the DSCC, and then provides the communications to the state party, together with the necessary funds to distribute them locally. State parties may, but generally do not, reject the communications.... The DSCC does not permit issue advocacy communications it supports to be recorded or produced until they have been approved by DSCC counsel and DSCC senior employees."); Vogel Decl. ¶ 67-68 [DEV 9-Tab 41] ("When the NRSC transfers funds to state party committees, including nonfederal funds, for the purpose of disseminating issue advocacy communications, it first develops the communications in consultation with the state party and media consultants, who are generally retained by the state party at the request or suggestion of the NRSC, and then provides the communications to the state party, together with the necessary funds to distribute them locally. State parties may, but generally do not, reject the communications.... The NRSC does not permit issue advocacy communications it supports to be recorded or produced until they have been approved by NRSC counsel and NRSC senior employees."); McGahn Decl. ¶¶ 58-59 ("When the NRCC transfers funds to state party committees, including nonfederal funds, for the purpose of disseminating issue advocacy communications, it first develops the communications in consultation with the state party and media consultants, and then provides the communications to the state party, together with the necessary funds to distribute them locally. State parties may, but generally do not, reject the communications.... The NRCC does not permit issue advocacy communications it supports to be recorded or produced until they have been approved by me, as NRCC counsel, and NRCC senior employees."); Wolfson Decl. ¶¶ 66-67 ("When the DCCC transfers funds to state party committees, including nonfederal funds, for the purpose of disseminating issue advocacy communications, it first develops the communications in consultation with media consultants, who are generally retained by the state party at the request or suggestion of the DCCC, and then provides the communications to the state party together with the necessary funds to distribute them locally. State parties may, but generally do not, reject the communications.... The DCCC does not permit issue advocacy communications it supports to be recorded or produced until they have been approved by DCCC counsel and DCCC senior employees."). On September 28, 1998, NRSC Executive Director Steven Law wrote then-NRSC Chairman Senator Mitch McConnell recommending that the NRSC fund an issue ad playing off an article that appeared in Nevada's largest newspaper. Democratic Senatorial candidate Harry Reid "got bad reviews for an over-the-top, hostile performance, suggesting a line of attack that builds on our six-month-long message that Harry Reid says one thing in Nevada and does the opposite in Washington.... If we went in this direction, I would suggest running this spot for one week at 1000 [gross ratings point], to be followed with our last ad in the Nevada issue advocacy campaign, on lawyers' fees." ODP0036-02931-32 [DEV 71-Tab 48]. Law's idea was later implemented in an advertisement paid for by the Republican State Central Committee of Nevada. ODP0036-01403 to 06 [DEV 71-Tab 48]. Documents in the record also demonstrate that the state political parties are merely conduits between the national political parties and their media consultants. See, e.g., CRP 00367 [IER Tab 28] (fax from the NRCC to the CRP's Victory 2000 project proving CRP "wiring info" and informing the state party that the "[m]oney will be in your account today.... Please wire back to Strategic Media"); CDP 02095-101, 2103-04, 2106 [IER Tab 12] (wire transfer instructions from the DNC to the CDP for media buys); CDP 02984-89 [IER Tab 12] (detailing transfer of funds from DCCC to CDP for media buy). The RNC and DNC also transfer nonfederal funds to state parties to pay for advertisements over which the national party committees retain control. See Castellanos Dep. (Sept. 27, 2002) at 111-12 (stating that when working on advertisements for state parties, National Media dealt with an RNC representative, not a state party member); Marshall Decl. ¶ 4 (noting that the DNC normally approved the content of the advertisement and the amount of money to be spent before calling the state party in question "to let it know that an ad was coming"); Josefiak Dep. at 97-98 [JDT Vol. 11] (acknowledging that the RNC transfers funds to state parties to pay for RNC advertisements); Huyck Decl. in Mariani ¶4 (stating that in 1995-1996 the RNC transferred funds to state party committees to pay for issue advertisements related to the 1996 Presidential election campaign) [DEV 79-Tab 60]; Hazelwood*fn34 Dep. at 118-19 (RNC transfers funds to state parties to pay for issue advertisements).

In 2000, the RNC raised over $254 million, a majority of which was transferred to the state parties for various activities. Josefiak Dep. at 76 [JDT Vol. 11]; see also FEC, National Party Transfers to State/Local Committees: January 1, 1999 to December 31, 2000, available at 051501partyfund/tables/nat2state.html (during the 2000 election cycle the RNC made transfers of approximately $129 million -- $93.2 million in nonfederal funds and $35.8 million in federal funds -- to state and local parties). The greatest expenditures from these transfers were for political advertising and administrative expenses. Josefiak Dep. at 76-77 [JDT Vol. 11].

1.27 The evidence above clearly demonstrates that the national political parties transfer nonfederal money through their state party affiliates for the purpose of buying so-called "issue advertisements" at a better allocation ratio. These advertisements are created and controlled by the national political parties, with the state political parties merely accepting the nonfederal money transfers and passing the funds on to media consultants as directed by the national political parties. These advertisements are intended to affect federal elections without using express advocacy terminology. Get-Out-The-Vote (GOTV)

1.28 It is undisputed that GOTV efforts, paid for with nonfederal funds by national party committees and targeted at federal elections, directly assist federal candidates, as well as state and local candidates of the same party whose elections are held on the same day. Declarations from representatives of the four major congressional campaign committees attest to the fact that these committees "transfer[] federal and nonfederal funds to state and/or local party committees for... get-out-the-vote efforts. These efforts have a significant effect on the election of federal candidates." Jordan Decl. ¶ 69 [DEV 7-Tab 21]; Wolfson Decl. ¶ 64 [DEV 9-Tab 44]; Vogel Decl. ¶ 64 [DEV 9-Tab 41]; McGahn Decl. ¶ 56 [DEV 8-Tab 30] (emphasis added); see also Josefiak Decl. ¶ 26 [RNC Vol. I] (Republican Party "Victory Programs" which include GOTV components are designed to benefit candidates at the federal, state and local levels)(emphasis added); Philp*fn35 Dep. at 47, 49 (when asked "[are there a]ny other services that the party provides to federal candidates," answering that the Colorado Republican Party's GOTV "program is designed to benefit all candidates."). 1.28.1 Documentary evidence corroborates the testimony that GOTV efforts assist federal candidates. See, e.g., CDP 00859 [IER Tab 1.I] (letter thanking a CDP donor and noting that CDP's " get-out-the-vote efforts " would help "increase the number of Californian Democrats in the United States Congress, continue Democratic leadership in the State Senate, take back the State Assembly -- and deliver California's 54 electoral votes for President Bill Clinton's and Vice President Al Gore's re-election.") (emphasis added); CRP 07164 [IER Tab 1.F] (letter from the Executive Director of the Dole-Kemp campaign, stating in part: "Unfortunately, federal law prohibits the Dole/Kemp campaign from accepting any contributions after the last day of the national convention. However, you can still support the Dole/Kemp ticket by sending your contribution to the Victory `96 fund, which will support the party's ` get out the vote ' operation and help us ensure a successful campaign in California...") (emphasis added); infra Findings ¶ 1.60 (McConnell letter noting that the Kentucky Victory 2000 campaign, which included a GOTV component, "was an important part of President George W. Bush's impressive victory in Kentucky last year, and it will be critical to my race and others next year").

1.28.2 Defendants' expert Donald Green concludes that

[t]he evidence from California, as well as from numerous opinion surveys and exit polls that demonstrate the powerful correlation between voting at the state and federal levels, shows quite clearly that a campaign that mobilizes residents of a highly Republican precinct will produce a harvest of votes for Republican candidates for both state and federal offices. A campaign need not mention federal candidates to have a direct effect on voting for such a candidate. That parties recognize this fact is apparent, for example, from the emphasis that the Democrats place on mobilizing and preventing ballot roll-off among African-Americans, whose solidly Democratic voting proclivities make them reliable supporters for office-holders at all levels. As a practical matter, generic campaign activity has a direct effect on federal elections. Green Expert Report at 14 [DEV 1-Tab 3].

1.28.3 The RNC transfers nonfederal funds to state political parties to subsidize voter mobilization activities of the state parties. Banning*fn36 Decl. ¶ 31 [RNC Vol. III]; see also Duncan*fn37 Decl. ¶¶ 11-12 [RNC Vol. VI]. According to Josefiak, the RNC also helps state and local parties fundraise for these voter mobilization efforts. See Josefiak Decl. ¶¶ 63, 65-72 [RNC Vol. I]; see also Benson*fn38 Decl. ¶ 10 [RNC Vol. VIII] ("[T]he Republican national party committees also assist [the Colorado Republican Party] in raising money for these party building programs.").

1.29 The CDP and the CRP conduct GOTV door-to-door canvassing campaigns, phone banks and mailings. Since federal, state and local candidates are on the same ballot in California, these efforts affect all the candidates on the ballot. This fact explains why these efforts usually required the state parties to use a mix of federal and nonfederal money to pay for such activities. See, e.g., Bowler Decl. ¶ 20.b. (noting that CDP slate cards and door hangers often mention both federal and nonfederal candidates and thus were funded with the mix of funds); id. (50 to 60 percent of CDP's paid phone banks make reference to a federal candidate and must therefore be paid for with a mix of funds); see also Erwin Aff. ¶ 10. It is important to note, however, that under BCRA's Levin Amendment state political parties may still use a mix of nonfederal and federal funds to pay for GOTV efforts for elections that include federal candidates, as long as they use nonfederal funds raised in accordance with the provision. Of course, for elections without a federal candidate on the ballot, BCRA does not impose any restrictions.

1.30 It is clear that nonfederal funds used to finance GOTV efforts for elections with federal candidates on the ballot affect federal elections. It is clear that GOTV activities target a certain political party's likely voters and attempts to get them to the polls. Even if the intent behind such efforts were to only affect state and local contests, increasing the number of Democrats, for example, who vote in a state and local election will undoubtedly increase the number of votes for the federal Democratic candidates who share the same ballot. This fact is well-known and appreciated by the national political parties and federal candidates.

Voter Registration

1.31 It is undisputed that voter registration efforts, paid for with nonfederal funds by the national party committees in the period before federal elections, directly assist federal candidates, as well as state and local candidates from the same party whose elections are held on the same day. As Dr. Mann notes:

In a series of advisory opinions, the Commission sought to ensure that a portion of state party activities benefiting [sic] both federal and nonfederal candidates be paid for with hard money. In Advisory Opinion 1975-21, the Commission ruled that a local party committee had to use hard dollars to pay for a part of its administrative expenses and voter registration drives, on the grounds that these functions have an indirect effect on federal elections. It used this opinion in regulations it issued in 1977 governing allocation of administrative expenses between federal and nonfederal accounts. The allocation was to be made "in proportion to the amount of funds expended on federal and non-federal elections, or on another reasonable basis." (11 C.F.R. 106.1(e) 1978). Mann Expert Report at 9 [DEV 1-Tab 1] (emphasis added).

1.32 Representatives of the four major congressional campaign committees, confirm that the four committees"transfer[] federal and nonfederal funds to state and/or local party committees for... voter registration... efforts. These efforts have a significant effect on the election of federal candidates." Jordan Decl. ¶ 69 [DEV 7-Tab 21]; Wolfson Decl. ¶ 64 [DEV 9-Tab 44]; Vogel Decl. ¶ 64 [DEV 9-Tab 41]; McGahn Decl. ¶ 56 [DEV 8-Tab 30] (emphasis added); see also CDP 00859 [IER Tab 1.I] (letter thanking a CDP donor and noting that CDP's " voter registration... efforts" would help "increase the number of Californian Democrats in the United States Congress, continue Democratic leadership in the State Senate, take back the State Assembly--and deliver California's 54 electoral votes for President Bill Clinton's and Vice President Al Gore's re-election.") (emphasis added); see also Findings ¶ 1.60 (McConnell letter noting that the Victory 2000 campaign, which included a voter registration component "was an important part of President George W. Bush's impressive victory in Kentucky last year, and it will be critical to my race and others next year"); Philp Dep. at 49 (when asked "[are there a]ny other services that the party provides to federal candidates," answering that the Colorado Republican Party's GOTV "program is designed to benefit all candidates. That could include voter registration and so on and so forth.").

1.33 CRP official Erwin*fn39 testifies that "[t]he overwhelming amount of [voter registration] activity is `generic' voter registration activity urging potential registrants to `Register Republican.'" Erwin Aff. ¶ 9. Erwin testifies that the CRP has paid for voter registration -- with a mix of federal and nonfederal funds -- through its Operation Bounty program, in which Republican county central committees, Republican volunteer organizations and Republican candidates for federal and state office participate. Through its Operation Bounty drives, the CRP has typically registered over 350,000 Republican voters in each election cycle since the 1984 election cycle (except 1997-98). See Erwin Aff. ¶ 9; see also CDP App. at 1185 [PCS 4] (charting CRP's voter registration activity by election cycle since 1984 cycle).

Ms. Bowler states that the CDP's expenditures on voter registration -- consisting of a mix of federal and nonfederal funds -- were approximately $145,000 in the 1996 election cycle; $300,000 in the 1998 cycle; $100,000 in the 2000 election cycle; and $185,000 during the period from January 1, 2001 to June 30, 2002. See Bowler Decl. ¶ 20.a. Ms. Bowler notes that the CDP's expenditures for voter registration were higher in 1998 (a year with eight statewide elections) than in 2000 (a presidential election year). Id. CRP and CDP officials testify that "it is often the case that these voter registration activities are primarily driven by the desire to affect State and local races." Erwin Aff. ¶ 14a; Bowler Decl. ¶ 20.a.

Whatever their intention, the evidence supra, makes clear that these efforts affect federal elections; particularly as demonstrated by the CDP's fundraising materials. See Findings ¶ 1.32). Moreover, under the Levin Amendment state political parties may still use a mix of nonfederal and federal funds to conduct voter registration efforts for elections that include federal candidates, as long as they use nonfederal funds raised in accordance with the provision. Of course, for those elections without a federal candidate on the ballot, BCRA does not impose any restrictions.


1.34 The national parties use nonfederal funds, as well as federal funds, toward their redistricting efforts, and these efforts are of value to Members of Congress because the changes in the composition of a Member's district can mean the difference between re-election and defeat.

1.34.1 As Defendants' expert Donald Green notes:

The most important legislative activity in the electoral lives of U.S. House members takes place during redistricting, a process that is placed in the hands of state legislatures. The chances that a House incumbent will be ousted by unfavorable district boundaries are often greater than the chances of defeat at the hands of the typical challenger. Thus, federal legislators who belong to the state majority party have a tremendous incentive to be attuned to the state legislature and the state party leadership.

For example, in early 1999 the Republican National Committee, recognizing that state legislatures in Tennessee and Georgia would soon control redistricting, transferred substantial sums of money to those states' Republican parties in an effort to win the few seats necessary to gain the majority. As Edwin Bender, in a report for the National Institute on Money in State Politics explains: "In a number of states with legislatures that are controlled by narrow margins, a win or two in the state House or Senate in 2000 could mean the difference between a redistricting committee controlled by Democrats or Republicans, and districts that favor one party over the other.... As a result, national party organizations have been flooding the states with campaign donations, both soft money and hard, to influence the redistricting process. Green Expert Report at 11-12 [DEV 1-Tab 3].

1.34.2 The RNC uses a mix of federal and nonfederal funds to support redistricting efforts, including redistricting litigation. Josefiak Decl. ¶ 74 [RNC Vol. I]. In 2002, for example, the RNC budgeted approximately $4.1 million on redistricting. Seventy percent of the redistricting budget was to be funded with nonfederal money. Banning Decl. ¶ 28.i [RNC Vol. III]. The RNC spends more overall on state legislative redistricting than on congressional redistricting. Josefiak Decl. ¶ 74 [RNC Vol. I]; see also infra Findings ¶ 1.78.1 (Fortune 100 Company nonfederal money budget request noting that "because both [national] parties will be working to influence redistricting efforts during the next two years, we anticipate that we will be asked to make soft money contributions to these efforts. Redistricting is a key once-a-decade effort that both parties have very high on their priority list."). 1.34.3 Mr. Alan Philp, of the Colorado Republican Party, testifies that his party and the Colorado Democratic Party played a significant role in the state's legislative redistricting process. Philp Dep. at 65 [JDT Vol. 26]. Philp states that the results of the redistricting process "[c]an have a significant impact" on candidates for federal office. Id. at 66. He notes that the Colorado Congressional delegation discussed redistricting with the Colorado Republican Party. Id.

Other Activities Paid for with Nonfederal Funds

1.35 Administrative Expenses: The FEC allowed the RNC to pay for its administrative overhead -- including salaries, benefits, equipment, and supplies for party operations at RNC headquarters in Washington, D.C. -- with a mix of federal and nonfederal funds. See Banning Decl. ¶ 27 [RNC Vol. III]; Bowler Decl. ¶ 15. "During the 2000 election cycle, the RNC spent $35.6 million of nonfederal funds and $52.9 million of federal funds on administrative overhead." Banning Decl. ¶ 27 [RNC Vol. III]. "Administrative overhead includes the operating costs of RNC facilities, such as utility bills and maintenance, fundraising costs, and routine expenses for travel and supplies. Administrative overhead also includes the salaries of RNC employees." Id. According to Plaintiffs' expert La Raja, the RNC spent about one-quarter of their nonfederal disbursements on administration and overhead during the 2000 election cycle and transferred 67 percent to the state parties. La Raja Expert Report ¶ 14(c) [RNC Vol. VII]. State parties spent about 30 percent of their nonfederal money disbursements during the 2000 election cycle on administrative expenses and overhead. La Raja Expert Report ¶ 22 [RNC Vol. VII]; see also Bowler Decl. ¶ 15 (stating that allocation is required for administrative expenses like rent, utilities, and salaries). The fact these expenditures required a mix of federal and nonfederal funds demonstrates that these activities affect federal elections. See also supra Findings ¶ 1.26.4 (Plaintiffs expert La Raja stating administrative expenses are not "party building" activity).

1.36 Training Seminars: Banning testifies that the RNC used a mix of federal and nonfederal funds to conduct training seminars for Republican candidates, party officials, activists and campaign staff, many of whom are involved in state and local campaigns and elections. Topics included grassroots organizing, fundraising and compliance with campaign finance regulations. During the 2000 election cycle at least 10,000 people attended RNC-sponsored training sessions, including 117 "nuts and bolts" seminars on grassroots organizing and get-out-the-vote activities. During the same cycle the RNC spent $391,000 in nonfederal funds and $671,000 in federal funds on such training and support. See Banning Decl. ¶ 28(c) [RNC Vol. III]; see also La Raja Expert Report at 11 [RNC Vol. VII] (parties "help candidates by training them and their campaign staff," support which "can make an important difference in whether a candidate chooses to run for office, particularly in an era of cash-intensive campaigning that requires skillful application of advanced campaign technologies"). According to La Raja, the RNC spent $8.5 million in nonfederal funds directly on all of its grassroots and voter mobilization activities for the 2000 election cycle. La Raja Expert Report ¶ 14(c) [RNC Vol. VII]. This constitutes about one-half of one percent of all RNC nonfederal spending during the 2000 election cycle. See Biersack Decl. Table 2 [DEV 6-Tab 6] (showing the RNC spent $163,521,510 in nonfederal funds during the 2000 election cycle). Furthermore, by virtue of the fact these activities were paid for with a mix of federal and nonfederal funds demonstrates that they affect federal elections.

1.37 State and Local Governmental Affairs: The RNC provided $100,000 of seed money for the formation of a Republican state attorneys general association that focuses on state issues. RNC Ex. 978; see also Josefiak Decl. ¶¶ 82-84 [RNC Vol. I]. According to Banning, during the 2000 election cycle the RNC spent $199,000 in nonfederal funds and $333,500 in federal funds on state and local governmental affairs. See Banning Decl. ¶ 28.b [RNC Vol. III]. The nonfederal funds the RNC spent on state and local governmental affairs constituted a minuscule percentage of the RNC's $163,521,510 nonfederal budget for the 2000 election cycle. See Biersack Decl. Table 2 [DEV 6-Tab 6]. Furthermore, by virtue of the fact these activities were paid with a mix of federal and nonfederal funds demonstrates that they affect federal elections.

1.38 Minority Outreach: Banning states that the RNC used a mix of federal and nonfederal funds to support efforts to increase minority involvement and membership in the Republican Party. During the 2000 election cycle the RNC spent $1,211,000 in nonfederal funds and $2,163,000 in federal funds on support of allied groups and minority outreach. See id. ¶ 28.e. This nonfederal expenditure also constituted a minuscule percentage of the RNC's total nonfederal spending for the 2000 election cycle. See Biersack Decl. Table 2 [DEV 6-Tab 6]. Furthermore, by virtue of the fact these activities were paid for with a mix of federal and nonfederal funds demonstrates that they affect federal elections.

1.39 State and Local Elections: The RNC's Josefiak testifies that "the RNC actually focuses many of its resources on purely state and local election activity," Josefiak Decl. ¶ 19 [RNC Vol. I]; however, the figures provided to the Court do not support this contention. For example, in 1999 and 2000 the RNC donated approximately $7.3 million in nonfederal funds to state and local candidates. Josefiak Decl. ¶ 61 [RNC Vol. I]; Banning Decl. ¶ 28(a) [RNC Vol. III]. However, this amount is a small fraction of the $163,521,510 in nonfederal funds it spent during the 2000 election cycle. Biersack Decl. Table 2 [DEV 6-Tab 6]. Plaintiffs' expert La Raja finds that the Republican Party allocated just seven percent ($9.5 million) of their nonfederal funds during the 2000 election cycle for contributions to state and local candidates. La Raja Expert Report ¶ 14(b) [RNC Vol. VII]. Furthermore, according to Defense expert Mann, the two national parties donated "only $19 million directly to state and local candidates, less than 4% of their soft money spending and 1.6% of their total financial activity in 2000." Mann Report at 26 [DEV 1-Tab 1] (citation omitted). The RNC also provides testimony that it "sometimes devotes significant resources toward states with competitive gubernatorial races even though the races for federal offices are less competitive." Josefiak Decl. ¶ 62 [RNC Vol. I]. According to Josefiak, in 2000, most observers believed that Indiana was a "safe" state for George W. Bush and that it did not have a competitive Senate race. "Nevertheless, the RNC committed significant resources to the state in hopes of influencing the gubernatorial race." Josefiak Decl. ¶ 62 [RNC Vol. I].

Josefiak's declaration provides no figures to allow the Court to determine what constitutes "significant resources." Furthermore, although Indiana may have been a "safe" state for the Republican presidential candidate and the Republican candidate for U.S. Senate, the Indiana ballot provided voters with three federal races in which to vote, meaning that many expenditures, even if intended to only influence a single state race, affected federal election races. Most importantly, nothing in BCRA prevents the RNC from using unlimited amounts of federal funds to affect any state election. Five States -- Kentucky, Louisiana, Mississippi, New Jersey and Virginia -- hold elections for state and local office in odd-numbered years when there are typically no federal candidates on the ballot. See Josefiak Decl. ¶ 41 [RNC Vol. I]. Likewise, numerous cities -- including Houston, Indianapolis, Los Angeles, Minneapolis and New York City -- hold mayoral elections in oddnumbered years. See id. RNC officials state that for elections in which there is no federal candidate on the ballot, the RNC frequently trains state and local candidates, contributes to state and local candidate campaign committees, funds communications calling for election or defeat of state and local candidates, and supports get-out-the-vote activities. See Banning Decl. ¶ 28(a) [RNC Vol. III]; Josefiak Decl. ¶¶ 19, 41-59 [RNC Vol. I]. The RNC's CFO Jay Banning testifies that in 1999 and 2001, including transfers to state parties, direct contributions to local and state campaigns, and direct RNC expenditures, the RNC spent approximately $21 million in nonfederal funds in 1999 and 2001 (approximately $5.7 million in 1999, $15.7 million in 2001). Banning Decl. ¶ 28(a) [RNC Vol. III]; see also Duncan Decl. ¶¶ 14-15 [RNC Vol. VI] (discussing RNC contributions to Kentucky state and local races). Defendants' expert Mann states that donations to gubernatorial candidates in an odd numbered year is not something intended to affect a Federal election. Mann Cross Exam. at 71. Again, BCRA does not preclude the national political parties from spending unlimited federal funds on such activities. Furthermore, state political parties can spend nonfederal funds on such campaigns without limit as long as no federal election is held at the same time. See, e.g., Torres*fn40 Decl. ¶ 8 [3 PCS] (stating that the CDP has spent millions of dollars in nonfederal funds supporting candidates in Los Angeles).

1.40 With the exception of administrative expenses, the activities paid for with nonfederal funds listed supra constituted a very small portion of the political parties' nonfederal expenditures during the 2000 election cycle. Furthermore, administrative expenses, training seminars, expenditures on state and local governmental affairs, and minority outreach, were all paid for with a mixture of federal and nonfederal funds meaning that these activities have some impact on federal elections.

The State Parties Have Become "Branches" of the National Parties

1.41 The evidence supra clearly demonstrates that nonfederal money has not been used primarily for "party building" activities as the authorizing rationale envisioned; rather, the funds are being used by the national parties for electioneering activities and the state parties have been coopted as part of this effort.

1.42 The emergence of nonfederal money as a potent force in national politics has made the state political parties, according to Plaintiffs' expert La Raja, "more reliant on the national parties. They have worked more with the national parties. They have become what I term branch organizations, which to me is not a pejorative. It means they work more closely with the national organization," "they still retain autonomy. However, they're integrated more with the national party structure." La Raja Cross Exam. at 43-44, 60 [JDT Vol. 15]. This has lead to a "nationalized party system, [where] state parties use national party resources to advance national party goals." Id. at Ex. 3 at 88, 101. "The national parties employ the state parties as instruments to pursue federal electoral goals, particularly through issue ads sponsored by state organizations [paid for with nonfederal money transferred from the national political parties]." Id. at 104.

1.43 The close affiliation between the state, local and national parties is clear from their cooperation during election campaigns that include state and federal elections.

1.43.1 Ms. Bowler testifies that the CDP works closely with the DNC in planning and implementing "Coordinated Campaigns," the purpose of which is to allocate resources and coordinate plans for the benefit of Democratic candidates up and down the entire ticket. Party officials, candidates at all levels of the ticket and their agents participate in Coordinated Campaigns and collectively make decisions regarding the solicitation, receipt, directing, and spending of the CDP's funds, both federal and nonfederal. Bowler Decl. ¶¶ 5, 29 [3 PCS]. According to Bowler, the CDP is "integrally related to the [DNC]." Id. ¶ 5.

1.43.2 The RNC's "Victory Plans" are voter contact programs designed to support the entire Republican ticket at the federal, state, and local levels. The RNC works with every state party to design, fund and implement the Plans. See Benson Decl. ¶8 [RNC Vol. VIII]; Josefiak Decl. ¶26 [RNC Vol. I]; Peschong Decl. ¶¶4-5 [RNC Vol. VI]. According to RNC Chief Counsel Josefiak, Victory Plans are formulated and implemented after extensive and continuous collaboration between the RNC and the state parties; each Plan is tailored to the unique needs of each State and designed to stimulate grassroots activism and increase voter turnout in the hopes of benefitting candidates at all levels of the ticket. Josefiak Decl. ¶¶25-40 [RNC Vol. I]. According to Mr. Erwin, the CRP works closely with the RNC in planning and implementing a Victory Plan. The Victory Plan is implemented in the general election cycle with the full involvement of RNC staff, CRP staff, state legislative leadership and representatives from the top of the ticket campaigns. See Erwin Aff. ¶ 4 [3 PCS]. "By their nature, the Victory Plans and the programs specified in them span the calendar year, not just the 60 or 120 days prior to the election." Peschong Decl. ¶ 4 [RNC Vol. VI]. The Victory Plans generally incorporate rallies, direct mail, telephone banks, brochures, state cards, yard signs, bumper stickers, door hangers, and door-to-door volunteer activities. Id. According to Josefiak, in 2000 the RNC transferred approximately $42 million to state parties to use in Victory Plan programs, 60 percent (about $25 million) of which was nonfederal money, not including money spent on broadcast "issue advertising." Josefiak Decl. ¶ 31 [RNC Vol. I]; see also Peschong*fn41 Decl. ¶¶ 4, 8-9 [RNC Vol. VI] (stating that "[t]he RNC typically provides a very substantial share of the funding of state victory programs."). State Republican party officials observe that because there are often numerically more state and local races than federal races during a given election, Victory Plans "often place greater emphasis" on the non-federal races. See Benson Decl. ¶ 8 [RNC Vol. VIII]; Bennett Decl. ¶ 17.k [RNC Vol. VIII] (stating that the average ratio of state and local candidates to federal candidates in Ohio in 2002 is 18 to 1). This observation does not change the fact that Victory Plans are designed to "support the entire ticket." Benson Decl. ¶ 8 [RNC Vol. VIII] (emphasis added).

Efforts to Address the Role of Nonfederal Funds in Campaign Finance Must Limit State Party Use of Nonfederal Funds that Affect Federal Elections 1.44 It is clear that state political party electoral activities affect federal elections, especially when state and federal elections are held on the same date. The record establishes that federal officeholders value these services and that they solicit nonfederal donations for the state political parties in order to assist their own campaigns. National political parties also solicit nonfederal donations for their state counterparts and transfer nonfederal funds as part of their efforts to affect federal elections. See infra Findings ¶ 1.59. The workings of this campaign finance system demand that if one wants to address the impact of nonfederal money, one cannot ignore the state role in the system. Former Members of Congress concur. Former Senator Rudman states clearly:

To curtail soft-money fundraising and giving, it is necessary to have a comprehensive approach that addresses the use of soft money at the state and local party levels as well as at the national party level. The fact is that much of what state and local parties do helps to elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all. The same enormous incentives to raise the money will exist; the same large contributions by corporations, unions, and wealthy individuals will be made; the federal candidates who benefit from state party use of these funds will know exactly whom their benefactors are; the same degree of beholdenness and obligation will arise; the same distortions on the legislative process will occur; and the same public cynicism will erode the foundations of our democracyexcept it will all be worse in the public's mind because a perceived reform was undercut once again by a loophole that allows big money into the system. Rudman Decl. ¶ 19 [DEV 8-Tab 34].

Former Senator Brock comments:

It does no good to close the soft money loophole at the national level, but then allow state and local parties to use money from corporations, unions, and wealthy individuals in ways that affect federal elections. State and local parties use soft money to help elect federal candidates both by organizing voter registration and get-out-the-vote drives that help candidates at all levels of the ticket, and by using soft and hard money to run `issue ads' that affect federal elections. Therefore, for soft money reforms to be truly effective, it is vitally important to require the use of hard money at the state level to pay for activities that affect federal elections. Brock Decl. ¶ 8 [DEV 6-Tab 9].


1.45 The evidence supra clearly demonstrates that nonfederal money has become an increasingly important part of the national political parties' campaign efforts. The increase in nonfederal fundraising and spending, especially since 1994, has been dramatic, and is due to the advent of the so-called "issue advertisement." Political party issue advertisements do not include words of express advocacy, but are engineered to still have an impact on federal elections. Despite their effect, the fact that these advertisements do not constitute express advocacy has allowed the political parties to use nonfederal money, raised in part from the treasuries of corporations and labor unions, to fund these commercials and thereby skirt campaign finance laws. Furthermore, these advertisements make a mockery of the original justification for allowing the political parties to raise these funds, as they have nothing to do with "party building." Plaintiffs' own expert finds that these funds have been spent primarily on electioneering and not on strengthening the political parties.

The fact that the national political parties found a huge loophole through which to circumvent the federal campaign finance regime was only the first step. In order to maximize the power of this new-found political tool, the national political parties coopted their state party affiliates, or branches as Plaintiffs' expert calls them, and funneled nonfederal funds through them in order to take advantage of the state political parties' more attractive allocation ratios. By doing so, the national parties minimized the amount of federal funds needed to purchase advertisements designed to affect federal elections– advertisements that in the spirit of FECA should have been paid for completely with federal funds. As a result, the state political parties became an integral part of the national political parties' nonfederal money strategy, and therefore any effort to deal with the use of nonfederal funds in the campaign finance regime requires addressing the state political parties.

Not all nonfederal funds are spent on political advertisements, but these advertisements constitute the largest category of nonfederal spending of the national and state political parties. Furthermore, other activities, such as voter registration and GOTV, that are paid for in part with nonfederal funds clearly affect federal elections when state and local elections are held on the same day as the federal election. Redistricting efforts affect federal elections no matter when they are held. In sum, the political parties used nonfederal funds to circumvent FECA and affect federal elections.

The Role of Federal Lawmakers in Political Party Nonfederal Fundraising 1.46 Unlike other entities, political parties have uniquely close relationships with candidates they nominate and support, and who, in turn, lead the party. See D. Green Expert Report at 7-9 [DEV 1-Tab 3]; McCain Decl. ¶¶ 22-23 [DEV 8-Tab 29]. The Colorado Republican Party has stated in past litigation: "A party and its candidate are uniquely and strongly bound to one another because: [a] party recruits and nominates its candidate and is his or her first and natural source of support and guidance[;] [a] candidate is identified by party affiliation throughout the election, on the ballot, while in office, and in the history books[;] [a] successful candidate becomes a party leader, and the party continues to rely on the candidate during subsequent campaigns[;] [a] party's public image largely is defined by what its candidates say and do[;] [a] party's candidate is held accountable by voters for what his or her party says and does[;] [a] party succeeds or fails depending on whether its candidates succeed or fail. No other political actor shares comparable ties with a candidate." Brief of Colorado Republican Party in FEC v. Colorado Republican Fed. Campaign Comm. (" Colorado II "), 533 U.S. 431, 457 (2001), at 19-20; see also id. at 7-8, 26-31; Philp Dep. at 47-54 [JDT Vol. 26].

Federal Lawmakers Run the Party Committees

1.47 The national committees of the two major political parties are: the Republican National Committee ("RNC"); the National Republican Senatorial Committee ("NRSC"); the National Republican Congressional Committee ("NRCC"); the Democratic National Committee ("DNC"); the Democratic Senatorial Campaign Committee ("DSCC"); and the Democratic Congressional Campaign Committee ("DCCC"). Vogel Decl. ¶ 6 [DEV 9-Tab 41]; McGahn Decl. ¶ 6 [DEV 8-Tab 30]; Jordan Decl. ¶ 6 [DEV 7-Tab 21]; Wolfson Decl. ¶ 6 [DEV 9-Tab 44]. The primary purpose of the congressional committees is to ensure the election of candidates from their respective parties to their respective legislative body and otherwise support the goals of their party. Id.

The national party committees are dominated by elected public officials -- the president or presidential candidate in the case of the Republican and Democratic National Committees, the top House and Senate party leaders for the congressional campaign committees.... There is no meaningful separation between the national party committees and the public officials who control them.

Mann Expert Report at 29 (citations omitted) [DEV 1-Tab 1]; see also Krasno & Sorauf Expert Report at 9-10 ("Simply put, no wall between the national parties and the national government exists."), 12-13 ("Party committees are headed by or enjoy close relationships with their leading officials, individuals who by virtue of their positions, reputations, and control of the legislative machinery have special influence on their colleagues.") [DEV 1-Tab 2]; Green Expert Report at 9-10 [DEV 1-Tab 3] ("Political parties, it should be noted, are structured along very different principles from the American government. One such principle is the separation and dispersal of power, of which one finds many examples in the Constitution.... Leaders of legislative party caucuses may also serve as members or leaders of party campaign committees. Furthermore, party leaders are drawn disproportionately from the ranks of those who hold important legislative leadership posts.... [T]he internal structure of parties permits, for example, former U.S. Senator D'Amato, who chaired the [RSCC] from 1995-97, to at the same time serve as chair of the Senate Banking, Housing, and Urban Affairs Committee. Parties, in contrast to the lawmaking institutions they inhabit, are organized in ways that concentrate authority, entrusting multiple roles to particular individuals."); Rudman Decl. ¶ 6 [DEV 8-Tab 34]; Vogel Decl. ¶ 4 [DEV 9-Tab 41] (NRSC is comprised of sitting "Republican Members of the United States Senate.... The chair of the NRSC is elected by the Republican Caucus of the United States Senate."); Jordan Decl. ¶ 4 [DEV 7-Tab 21] (the DSCC "is comprised of sitting Democratic Members of the United States Senate.... The chair of the DSCC is appointed by the Democratic Leader of the United States Senate."); McGahn Decl. ¶ 4 [DEV 8-Tab 30] (the NRCC includes the "entire elected Republican leadership" and its executive committee includes "the Speaker of the House, the Majority Leader, the Republican Whip, Conference Chairman, the Conference Vice-Chairman, the Conference Secretary, the Policy Chairman and the NRCC Chairman"); Wolfson Decl. ¶¶ 4 [DEV 9-Tab 44] (the DCCC is comprised of sitting Democratic Members of (or Delegates to) the United States House of Representatives, and the Chair of the DCCC is elected by the Democratic Caucus of the United States House of Representatives).

1.48 "For at least a century [the national party committees] have been melded into their party's presidential campaign every four years, often assuming a subsidiary role to the presidential candidate's personal campaign committee. The presidential candidate has traditionally been conceded the power to shape and use the committee, at least for the campaign." Sorauf/Krasno Report in Colorado Republican at 27 [DEV 73-Tab C].

Political parties are primarily concerned with electing their candidates and the money they raise is spent assisting their candidates' campaigns. As Congressman Meehan explained:

The ultimate goal of a political party such as the Democratic Party is to get as many Party members as possible into elective office, and in doing so to increase voting and Party activity by average Party members. The Party does this by developing principles on public policy matters the Party stands for, and then by finding candidates to run for the various political offices who represent those principles for the Party. When the Party finds its candidates, it tries to raise money to help get like-minded people to participate in the elections, and to try to get the Party's candidates the resources they need to get their message out to voters. In my experience, political parties do not have economic interests apart from their ultimate goal of electing their candidates to office. Meehan Decl. in RNC ¶¶ 3-4 [DEV 68-Tab 30].

Senator Bumpers testifies that he is "not aware that the [Democratic] party has any interest in the outcome of public policy debates that is separate from its interest in supporting and electing its candidates." Bumpers Decl. ¶ 6 [DEV 6-Tab 10]. Senator McCain testifies that

"[t]he entire function and history of political parties in our system is to get their candidates elected, and that is particularly true after the primary campaign has ended and the party's candidate has been selected." McCain Decl. ¶ 23 [DEV 8-Tab 29].

1.49 In general, the RNC espouses three core principles as guiding the mission of the national Republican Party, which includes electing candidates to national, state and local offices who represent the RNC's political views. In practice, electing these candidates is the RNC's primary focus.

1.49.1 The RNC's Chief Counsel, Thomas Josefiak, attests that

[t]he Republican Party has a long and rich history advocating some core principles: a smaller federal government, lower taxes, individual freedom, and a strong national defense. The RNC achieves these principles through three primary means: (1) promoting an issue agenda advocating Republican positions on issues of local, state, regional, national and international importance; (2) electing candidates who espouse these views to local, state and national offices; and (3) governing in accord with these views. Although these efforts sometimes overlap, they also frequently occur independently of one another. Josefiak Decl. ¶ 22 [RNC Vol. I].

Other documents in the record, however, show that the RNC and Republican state parties' primary purpose is to elect Republican candidates to office. See, e.g., RNC's Resp. to FEC RFA's in RNC, No. 40 [DEV 68-Tab 35]; ODP0021-02003 [DEV 70-Tab 48] (RNC Memorandum in which Chairman Haley Barbour states: "The purpose of a political party is to elect its candidates to public office, and our first goal is to elect Bob Dole president.... Electing Dole is our highest priority, but it is not our only priority. Our goal is to increase our majorities in both houses of Congress and among governors and state legislatures."); Knopp*fn42 Cross Exam. at 10 [JDT Vol. 13] (stating that the primary purpose of the RNC is "to elect Republicans to state, local, and national office"); Brister*fn43 Decl. ¶ 4 [RNC Vol. VIII] ("The Republican Party of Louisiana's primary purpose is to help elect Republicans to office `from the courthouse to the White House'"). Whether the Republican Party's "core principles" drive its pursuit of electoral majorities, or vice versa, is a chicken-or-the-egg type quandary that I need not resolve at this juncture. What is clear from the evidence, 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. As Dr. Green observes: "In order to obtain power a party must win elections; and in order to win elections, elected officials scramble to claim credit for good legislative deeds while publicizing the misdeeds of the opposition party." Green Expert Report at [DEV 1-Tab 3].

1.50 The evidence makes clear that the national party committees are creatures of their elected federal politician members, who run them and set their priorities. It is clear that the national party committees are focused on electing their candidates to federal office, and in the case of the DNC and RNC are actually subsumed by their respective Presidential candidates' campaigns. Given these facts, it is not surprising that the national party committees use their elected officials to solicit donations. Federal Lawmakers Solicit Nonfederal Funds for the National Party Committees 1.51 It is a common practice for Members of Congress to be involved in raising both federal and nonfederal dollars for the national party committees, sometimes at the parties' request. The personal involvement of high-ranking Members of Congress is a major component of raising federal and nonfederal funds.

Current and former Members of Congress acknowledge this fact. See, e.g., Rudman Decl. ¶ 12 [DEV 8-Tab 34]; Bumpers Decl. ¶¶ 7-9 [DEV 6-Tab 10]; Simon*fn44 Decl. ¶ 7 [DEV 9-Tab 37] ("While I was in Congress, the DCCC and the DSCC would ask Members to make phone calls seeking contributions to the party. They would assign me a list of names, people I had not known previously, and I would just go down the list. I am certain they did this because they found it more effective to have Members make calls."); Simpson*fn45 Decl. ¶ 4 [DEV 9-Tab 38]; McCain Decl. ¶¶ 2, 21 [DEV 8-Tab 29] ("Soft money is often raised directly by federal candidates and officeholders, and the largest amounts are often raised by the President, Vice President and Congressional party leaders."); Feingold Dep. at 91–93 [JDT Vol. 6]; Shays Decl. ¶ 18 [DEV 8-Tab 35] ("Soft money is raised directly by federal candidates, officeholders, and national political party leaders. National party officials often raise these funds by promising donors access to elected officials. The national parties and national congressional campaign committees also request that Members of Congress make the calls to soft money donors to solicit more funds."); Meehan Decl. in RNC ¶ 6 [DEV 68-Tab 30] ("Members of Congress raise money for the national party committees, and I have been involved in such fund-raising for the Democratic Party. At the request of the Party Members of Congress go to the [DCCC] and call prospective donors from lists provided by the Party to ask them to participate in Party events, such as DCCC dinners or [DNC] dinners. These lists typically consist of persons who have contributed to the Democratic Party in the past.").

Representatives of the House and Senate congressional campaign committees testify that their committees and their leadership ask Members of Congress to raise funds in specified amounts or to devote specified periods of time to fundraising. Jordan Decl. ¶ 33 [DEV 7-Tab 21]; Vogel Decl. ¶¶ 32-33 [DEV 9-Tab 41]; McGahn Decl. ¶¶ 34-35 [DEV 8-Tab 30]; Wolfson Decl. ¶ 35 [DEV 9-44] (stating that the DSCC, NRSC, NRCC, and DCCC ask members of Congress to raise money for the committees).

Political donors also testify that Members of Congress solicit nonfederal money. See, e.g., Randlett*fn46 Decl. ¶¶ 6-9 [DEV 8-Tab 32] ("I've been involved in political fundraising long enough to remember when soft money had little value to federal candidates. Ten years ago, a Senator might call a potential donor and the donor would say something like, `I would love to write you a check; I'm a big fan of yours; but I'm federally maxed, so I can't do it. If you like, I could write a soft money check to your state party.' And the Senator might say, `Don't bother. The soft money just doesn't do me any good.' However, in recent election cycles, Members and national committees have asked soft money donors to write soft money checks to state and national parties solely in order to assist federal campaigns. Most soft money donors don't ask and don't care why the money is going to a particular state party, a party with which they may have no connection. What matters is that the donor has done what the Member asked.").

Lobbyists also find that Members of Congress are involved in fundraising for their political parties. See Rozen*fn47 Decl. ¶ 15 [DEV 8-Tab 33] ("Even though soft money contributions often go to political parties, the money is given so that the contributors can be close to, and recognized by, Members, Presidents, and Administration officials who have power. Members, not party staffers or party chairs, raise much of the large soft money contributions. Party chairs do not have that much power because the DNC and the RNC by themselves don't have power to do anything. So people are not giving to be close to the party chairs. The Members of Congress and the President are the heart of the national parties. The elected officials are the ones who are really raising the money, either directly or through their agents."); see also Murray*fn48 Dep. in Mariani at 41-42 [DEV 79-Tab 58]; Rozen Decl., Ex. A ¶ 7 [DEV 8-Tab 33].

Finally, documentary evidence corroborates this testimony. ODP0037-00062 [DEV 71-Tab 48] (Letter to NRSC Chairman's Foundation member seeking a renewal contribution signed by Senator McConnell); ODP0037-00884 [DEV 71-Tab 48] (letter from Senator McConnell thanking donor for $5,000 federal and $25,000 nonfederal donation to NRSC's issue advocacy campaign); ODP0031-00821 (letter from contributor to RNC with contribution, stating "Congressman Scott McInnis deserve [sic] most of the recruitment credit"); ODP0037-00882 (a solicitation letter from Senator McConnell to potential donor at the Microsoft Corporation, expressing the hope that this person would "take a leadership role with [McConnell] at the NRSC in support of the Committee's issue advocacy campaign. The resources we raise now will allow us to communicate our strategy through Labor Day.... Your immediate commitment to this project would mean a great deal to the entire Republican Senate and to me personally."); ODP0037-01171 to 72 [DEV 71-Tab 48] (correspondence referencing solicitations by federal officeholders and candidates); infra Finding ¶

1.74.3 (Fortune 100 company's documents stating that Members of Congress had requested nonfederal donations).

1.52 "The parties often ask Members to solicit soft money from individuals who have maxed out to the Member's campaign." Simpson Decl. ¶ 6 [DEV 9-Tab 38]; see also Meehan Decl. in RNC ¶ 6 ("Party leaders also ask a Member to call his or her own `maxed out' donors--those who have contributed to that Member the maximum amount of `hard money' allowed under the [FECA]--in order to request further donations to the Party including those which are not restricted by the Act (`soft money').") [DEV 68-Tab 30]; Billings Decl., Ex. A ¶ 12 [DEV 6-Tab 5]; Jordan Decl. ¶ 20 [DEV 7-Tab 21] ("When donors have reached their federal contribution limit, the DSCC frequently encourages them to make additional donations to the DSCC's nonfederal account."); Wolfson Decl. ¶ 21 (same for DCCC); Vogel Decl. ¶ 20 (same for NRSC); McGahn Decl. ¶ 21 (same for NRCC); Sorauf/Krasno Report in Colorado Republican, at 13-14 [DEV 68-Tab 44]; ODP0018-00620 to 21 [DEV 69-Tab 48] (federal candidate noting that he "recently sent a letter to [his] maxed out donors suggesting contributions to the NRCC"); Kirsch*fn49 Decl. ¶ 8 ("[O]nce a federal candidate understands that a donor has maxed out, there will often be a request that the donor make soft money donations to a national party committee, as has been suggested when I have been in that situation.") [DEV 7-Tab 23]; La Raja Cross Exam. Ex. 3 at 54 [JDT Vol. 15] ("[I]t is common practice for a candidate to encourage donors to give to the party when they have `maxed' their federal contributions to his or her committee").

1.53 Mr. Vogel, General Counsel of the NRSC, testifies that "[s]ometimes, the NRSC urges Republican Senators to contact particular donors because of shared public policy views, such as outreach efforts to the high-tech community by Senators with an interest in those issues." Vogel Decl. ¶ 28 [DEV 9-Tab 41]; see also id. Tab D at NRSC 066-000009 (draft letter from chairmen of the NRSC and NRCC Technology Committees inviting High Technology CEOs to the 1998 Republican House-Senate Dinner in response "to your industry's plea for a voice on the cutting edge issues so important to the future of high technology" and noting that the dinner is the "most prestigious annual event, and all Republican members of the U.S. House and Senate will be in attendance.") [DEV 9-Tab 41]. The DCCC engages in similar practices. Wolfson Decl. ¶ 31 [DEV 9-Tab 44] ("Sometimes, the DCCC urges Democratic House Members to contact particular donors because of shared public policy views. For example, the DCCC has sought and received assistance from particular Democratic House Members in fundraising from the labor community, because those Members had a strong public record of support for labor."); see also Randlett Decl. ¶ 6 [DEV 8-Tab 32] ("National party committees often feel they need to raise a certain amount of soft money for a given election cycle. To reach that overall goal, they may divide up potential donors by geography, affiliated organization, or issue interests. The party committees decide which Members of Congress should contact these potential donors, and these Members then put in a certain amount of call time at the national committee soliciting the money. A Member and a potential donor may be matched because the Member is on a legislative committee in which the donor has a particular interest, whether economic or ideological.").

1.54 Despite the foregoing evidence, the Finance Director of the RNC states that it is "exceedingly rare" for the RNC to rely on federal officeholders for personal or telephonic solicitations of major donors. See B. Shea*fn50 Decl. ¶ 17 [RNC Vol. V]. She states that by RNC policy and practice, the RNC Chairman, Co-Chairwoman, Deputy Chairman, fundraising staff or members of major donor groups -- not federal officeholders -- undertake initial contact and solicitation of major donors of both federal and nonfederal funds. Id. Whether or not initial solicitations by federal officials on behalf of the RNC are rare, the record shows that they are made. RNC0178497 (May 10, 1996, letter from RNC Chairman Haley Barbour to Senators, asking to use their name for a "membership recruitment package," which while "not directly solcit[ing] funds," "will serve as a set-up letter for the membership invitation package that will be mailed several days after this letter."). Furthermore, Members of Congress solicit funds for the RNC from those who have donated in the past. See, e.g., RNC0266088-91 (handwritten notes determining which Member of Congress would call particular potential donors); RNC0250514-15 (April 1997 solicitation letter from Speaker Gingrich asking donors "to continue [their] support [for] the President's Club"); Moreover, it is clear that Ms. Shea does not speak for the NRSC or the NRCC which clearly use Members to solicit funds. See, e.g., Findings ¶ 1.51. 1.55 Raising nonfederal funds for the political parties can be in a Member's interest. For example, the amount of money a Member of Congress raises for the national political party committees often affects the amount the committees give to assist the Member's campaign. See, e.g., Boren*fn51 Decl. ¶ 4 [DEV 6-Tab 8] ("[T]he DSCC and other national party organizations kept records, or `tallies' of how much soft money a Senator had raised for the party. The DSCC then gave little [nonfederal] money to the campaigns of those Senators who had not raised adequate [nonfederal] party funds. In my view, this practice demonstrates very clearly that soft money is not used purely for `party building' activities, but that there is at least a working understanding among the party officials and Senate candidates that the money will benefit the individual Senators' campaigns."); id. (explaining that because he "minimized" the amount of time he spent raising soft money for the DNC, he "received almost no money from the Democratic Party for my campaigns."); Bumpers Decl. ¶ 11 [DEV 6-Tab 10] ("Members who raise money for the DSCC expect some of that money to come directly back to them. Part of this unwritten but not unspoken rule is that if you do not raise a certain amount of money for the DSCC, you are not going to get any back. The DSCC does not give a candidate the maximum allowed unless he or she has raised at least a certain amount for the DSCC."); infra Findings ¶ 1.56.1 (statement of Senator Simpson).

Members also have an interest in a strong party that can assist its federal officeholders. See, e.g., Bumpers Decl. ¶ 10 [DEV 6-Tab10] ("When a Member raises money for the party, there is a sense on the part of the Member that he or she is helping his or her own campaign by virtue of raising that money. When Members raise funds for the DNC, it helps the DNC perform its function of keeping tabs on statements, policies, and votes of opposition party members and groups.").

Former DNC and DSCC official and current lobbyist Robert Hickmott*fn52 testifies that even incumbents with safe seats have incentives to raise money for the parties. He explains:

Incumbents who were not raising money for themselves because they were not up for re-election would sometimes raise money for other Senators, or for challengers. They would send $20,000 to the DSCC and ask that this be entered on another candidate's tally. They might do this, for example, if they were planning to run for a leadership position and wanted to obtain support from the Senators they assisted. This would personally benefit them, in addition to doing their part to retain Democratic control of the Senate, which would preserve the legislative power of all Democratic Senators. Hickmott Decl., Ex. A ¶ 18 [DEV 6-Tab 19]; see also id. ¶ 13 (attesting that Senators were very concerned about whether or not donors' checks were tallied to them); infra Findings ¶ 1.56.3 (describing the DSCC tallying/credit system).

Senator McCain attests that

[t]he parties encourage Members of Congress to raise large amounts of soft money to benefit their own and others' re-election. At one recent caucus meeting, a Member of Congress was praised for raising $1.3 million dollars for the party. James Greenwood, a Republican Congressman from Pennsylvania, recently told the New York Times that House leaders consider soft money fundraising prowess in assigning chairmanships and other sought-after jobs.... I share Mr. Greenwood's concerns. McCain Decl. ¶ 7 [DEV 8-Tab 29].

Finally, the political parties' power over Members of Congress provides additional incentive to fundraise for the national party committees. As Dr. Green notes: "The ubiquitous role that parties play in the lives of federal officials means that no official can ignore the fundraising ambitions of his or her party." Green Expert Report at 15 [DEV 1-Tab 3].

Nonfederal Funds are Given with Intent to Assist Specific Members of Congress; Political Parties Keep Track of Contributions Members of Congress Raise

1.56 Nonfederal money is often given to national parties with the intent that it will be used to assist the campaigns of particular federal candidates, and it is often used for that purpose.

1.56.1 Senator Simpson testifies that "[d]onors do not really differentiate between hard and soft money; they often contribute to assist or gain favor with an individual politician. When donors give soft money to the parties, there is sometimes at least an implicit understanding that the money will be used to benefit a certain candidate. Likewise, Members know that if they assist the party with fundraising, be it hard or soft money, the party will later assist their campaign." Simpson Decl. ¶ 6 [DEV 9-Tab 38]. "Although soft money cannot be given directly to federal candidates, everyone knows that it is fairly easy to push the money through our tortured system to benefit specific candidates." Id. ¶ 7. Senator Wirth*fn53 understood that when he raised funds for the DSCC, donors expected that he would receive the amount of their donations multiplied by a certain number that the DSCC had predetermined, assuming that the DSCC had raised other funds. Wirth Decl. Ex. A ¶¶ 5, 8 [DEV 9-Tab 43]; see also FEC v. Colorado Republican Fed. Campaign Comm. (" Colorado II "), 533 U.S. 431 (2001); Bumpers Decl. ¶¶ 10-12 [DEV 6-Tab 10]; Simon Decl. ¶ 10 [DEV 9-Tab 37].

1.56.2 Individual nonfederal money donors have made specific requests that the national political party apply their nonfederal money gifts to particular federal campaigns. See, e.g., RNC0035464 [DEV99], RNC0032733-34 [DEV 92] (fundraising letters requesting that nonfederal money donations be used for particular federal elections). As one experienced donor observes: "The committee receiving... a soft money donation [solicited by a Member of Congress from a `maxed out' contributor] understands that it has been raised by or for a particular federal candidate, and this affects how much the committee spends on behalf of that candidate. I have discussed with national party committees the spending of such soft money to benefit federal candidates." Kirsch Decl. ¶ 8 [DEV 7-Tab 23]; see also Hiatt*fn54 Dep. at 114-18 (explaining that anyone donating nonfederal money is indirectly giving it to the campaigns of federal candidates and officeholders, and stating that his soft money donations were earmarked for particular candidates but that he does not know if the money was actually spent on those candidates). Plaintiff Thomas McInerney, a large individual contributor to the Republican Party, states that he donated amounts in excess of $57,500 per election cycle to Republican organizations at the national, state and local levels. For example, in 2002, he donated $250,000 to the RNC, in addition to other donations to national, state and local political committees. He states that his donations were intended to support state and local candidates and political parties. McInerney Aff. ¶¶ 4, 10, 12 [9 PCS]. Mr. McInerney's affidavit does not state whether or not these funds were used in the manner he desired, only that "it is his understanding" that they were used for such activities. Id. ¶¶ 11, 13, 15. Regardless of whether his donations were used for state and local political activities, the record is clear that Mr. McInerney represents an exception to the general rule that donors give money to the national parties with the intent that they will be used to assist federal candidates. Furthermore, if Mr. McInerney wants to donate funds to state parties for activities that affect state and local elections, nothing in BCRA prevents him from doing so. See also infra Findings ¶ 1.61.

1.56.3 The DSCC maintains a "credit" program that credits nonfederal money raised by a Senator or candidate to that Senator or candidate's state party. Jordan Decl. ¶¶ 36-39 [DEV 7-Tab 21]. Amounts credited to a state party can reflect that the Senator or candidate solicited the donation, or can serve as a donor's sign of tacit support for the state party or the Senate candidate. Jordan Decl. ¶¶ 37-40, Tabs F, G [DEV 7-Tab 21]. According to former DSCC official Hickmott, Senators were very concerned about whether or not donors' checks were tallied to them. Hickmott Decl., Ex. A ¶ 13 [DEV 6-Tab 19]; see also supra Findings ¶ 1.55 (Senator Boren commenting on the tallying system and effect of a candidate's fundraising for the national political committee on the support the candidate's campaign received from the national party).

1.56.4 Both the NRCC and NRSC are aware of which Members have raised funds for their committees, and may advise Members of amounts they have raised, in order to encourage Members to aid the collective interest of preserving or obtaining a majority in the House or Senate. McGahn Decl. ¶¶ 34-35 [DEV 8-Tab 30]; Vogel Decl. ¶¶ 33, 36 [DEV 9-Tab 41]. Similarly, although the DCCC uses "no formal credit or tally program," it "advises Democratic House Members of the amounts they have raised for the DCCC, ascribing particular contributions to the fundraising efforts of the Member in question." Wolfson Dec. ¶ 36 [DEV 9-Tab 44]; Thompson Dep. at 28-29 [JDT Vol. 32] (testifying that the DCCC "provide[s] the entire Democratic Caucus with the amounts of money raised by name of every Democratic member of Congress.... [a]t the Democratic Caucus meeting.... I think it's a method used to let people know that if the DCCC is going to be successful all members should participate."). 1.57 Federal candidates also raise nonfederal money through joint fundraising committees formed with national committees. See Buttenwieser Decl. ¶¶ 8-14 [DEV 6-Tab 11]. One common method of joint fundraising is for a national congressional committee to form a separate joint fundraising committee with a federal candidate committee. A joint fundraising committee collects and deposits contributions, pays related expenses, allocates proceeds and expenses to the participants, keeps required records, and discloses overall joint fundraising activity to the FEC. Wolfson Decl. ¶ 40 [DEV 9-Tab 44]; Vogel Decl. ¶¶ 39-45 [DEV 9-Tab 41]; Jordan Decl. ¶¶ 41, 50 [DEV 7-Tab 21]; Oliver Dep. at 258 [DEV Supp.-Tab 1].

A typical allocation formula for joint fundraising between the [congressional campaign committees] and a federal candidate will allocate the first $2,000 of every contribution from an individual to the participating candidate, with $1,000 designated to the primary election and $1,000 to the general election; and the next $20,000 to the [congressional campaign committee's] federal account. Because the [congressional campaign committee] is normally the only participant eligible to receive nonfederal funds, any remaining amounts of an individual contribution will be allocated to the [congressional campaign committee's] nonfederal account, as will the entirety of any contribution from a federally prohibited source. Wolfson Decl. ¶ 42 [DEV 9-Tab 44]; Vogel Decl. ¶ 41 [DEV 9-Tab 41]; Jordan Decl. ¶ 45 [DEV 7-Tab 21]. Two experts characterize the joint fundraising system as one "in which Senate candidates in effect raise[] soft money for use in their own races." Krasno and Sorauf Expert Report at 13 [DEV 1-Tab 2].

1.58 It is clear from the record that in practice Members of Congress actively solicit large nonfederal donations to their political parties, often at the behest and direction of the political parties. The political parties encourage Members to solicit such donations and reward those who are successful by assisting their campaigns. Furthermore, although the raising of nonfederal funds is rationalized as an effort to pay for "party building" activities, it is clear that this money is solicited by Members and given by donors with the understanding that it will be used to assist the campaigns of particular federal candidates.

Federal Lawmakers and National Party Committees Solicit Nonfederal Funds for State Parties

1.59 National party committees direct donors to give nonfederal money to state parties in order to assist the campaigns of federal candidates. See, e.g., Kirsch Decl. ¶ 9 [DEV 7-Tab 23] ("The national Democratic party played an important role in my decisions to donate soft money to state parties in [the 2000 election] cycle, recommending that I donate funds to specific state parties just before the election. They said, essentially, if you want to help us out with the Presidential election, these particular state parties are hurting, they need money for get-out-the-vote and other last minute campaign activities."). Robert Hickmott, a former DNC and DSCC official testifies:

Once you've helped a federal candidate by contributing hard money to his or her campaign, you are sometimes asked to do more for the candidate by making donations of hard and/or soft money to the national party committees, the relevant state party (assuming it can accept corporate contributions), or an outside group that is planning on doing an independent expenditure or issue advertisement to help the candidate's campaign. These types of requests typically come from staff at the national party committees, the campaign staff of the candidate, the candidate's fundraising staff, or former staff members of the candidate's congressional office, but they also sometimes come from a Member of Congress or his or her chief of staff.... Regardless of the precise person who makes the request, these solicitations almost always involve an incumbent Member of Congress rather than a challenger. As a result, there are multiple avenues for a person or group that has the financial resources to assist a federal candidate financially in her or her election effort, both with hard and soft money. Hickmott Decl. ¶ 8 [DEV 6-Tab 19]; see also Buttenwieser Decl. ¶ 16 [DEV 6-Tab 11] ("The DSCC has also requested that I provide assistance to state parties."); Hassenfeld*fn55 Decl. ¶ 9 [DEV 6-Tab 17] ("In 1992, when I told the Democratic Party that I wanted to support then-Governor Bill Clinton's presidential campaign, they suggested that I make a $20,000 hard money contribution to the DNC, which I did.

The Democratic Party then made clear to me that although there was a limit to how much hard money I could contribute, I could still help with Clinton's presidential campaign by contributing to state Democratic committees. There appeared to be little difference between contributing directly to a candidate and making a donation to the party. Accordingly, at the request of the DNC, I also made donations on my own behalf to state Democratic committees outside of my home state of Rhode Island.... Through my contributions to the political parties, I was able to give more money to further Clinton's candidacy than I was able to give directly to his campaign."); Randlett Decl. ¶ 9 [DEV 8-Tab 32] ("[N]ational committees have asked soft money donors to write soft money checks to state and national parties solely in order to assist federal campaigns."); Josefiak Decl. ¶ 68 [RNC Vol. I] ("It is... not uncommon for the RNC to put interested donors in touch with various state parties. This often occurs when a donor has reached his or her federal dollar limits to the RNC, but wishes to make additional contributions to the state party. When this happens, the RNC will often suggest that the donor make contributions to certain state parties that are most in need of funds at that time.").

1.60 Federal officeholders have directed contributors to the state parties when the contributors have "maxed out" to the candidate or when it appears that the state party can most effectively use additional money to help that officeholder or other federal candidates. As one candidate's solicitation letter stated, "you are at the limit of what you can directly contribute to my campaign," but "you can further help my campaign by assisting the Colorado Republican Party." FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 458 (2001) (quoting an August 27, 1996 fundraising letter from then-Congressman Allard); see also Philp Dep. Ex. 14 [JDT Vol. 26] (same letter); MMc0014 [DEV 117-Tab 2] (letter to a contributor stating: "Since you have contributed the legal maximum to the McConnell Senate Committee, I wanted you to know that you can still contribute to the Victory 2000 program.... This program was an important part of President George W. Bush's impressive victory in Kentucky last year, and it will be critical to my race and others next year" signed by Senator McConnell with the handwritten note: "This is important to me. Hope you can help"); Buttenwieser Decl. ¶¶ 15-16 [DEV 6-Tab 11] ("Federal candidates have often asked me to donate to state parties, rather than the joint committees, when they feel that's where they need some extra help in their campaigns. I've given significant amounts to the state parties in South Dakota and North Dakota because all the Senators representing those states are good friends, and I know that it's difficult to raise large sums in those states."); Hickmott Decl. ¶ 8 [DEV 6-Tab 19] (quoted supra Findings ¶ 1.59); Randlett Decl. ¶ 9 [DEV 8-Tab 32] ("Members [of Congress]... have asked soft money donors to write soft money checks to state and national parties solely in order to assist federal campaigns.").

1.61 Plaintiff Thomas McInerney states that he donates over $10,000 per year to state and local political party organizations to be spent on state and local organizations and elections. McInerney Aff. ¶¶ 4, 10, 12 [9 PCS]. Mr. McInerney's affidavit does not state whether or not these funds were used in the manner he desired, only that "it is his understanding" that they were used for such activities. Id. ¶¶ 11, 13, 15. Regardless, nothing in BCRA prevents Mr. McInerney from donating funds to state and local party organizations – the law only restricts the types of activities on which these nonfederal funds may be spent. However, if Mr. McInerney's purpose in donating these funds is to assist state and local parties and candidates, BCRA ensures that his funds will be spent only on activities that exclusively affect state and local parties and elections, and not on practices that constitute federal election activity.


1.62 The evidence clearly demonstrates that federal officeholders not only solicit nonfederal donations for the national political committees, but also for state political parties. The testimony and documentary evidence makes clear that candidates value such donations almost as much as donations made directly to their campaigns and that these donations assist federal candidates' campaigns. Furthermore, the evidence makes clear that the national parties also direct nonfederal donations to their state party affiliates for the purpose of affecting federal elections. This evidence also corroborates the findings that GOTV and voter registration efforts by state parties affect federal elections. See, e.g., supra Findings ¶¶ 1.28, 1.31. Most importantly, the close nexus between the national political parties and federal officeholders led BCRA's framers to conclude that:

Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the funding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties.

148 Cong. Rec. H409 (daily ed. Feb. 13, 2002) (statement of Rep. Shays).


1.63 The fact that Members of Congress are intimately involved in the raising of money for the political parties, particularly unlimited nonfederal money donations, creates opportunities for corruption. The record does not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money; however, the evidence presented in this case convincingly demonstrates that large contributions, particularly those nonfederal contributions surpassing the federal limits, provide donors access to federal lawmakers which is a critical ingredient for influencing legislation, and which the Supreme Court has determined constitutes corruption. See Buckley v. Valeo, 424 U.S. 1, 27 n.28 (1976) (citing Buckley, 519 F.2d at 839 nn.37-38).

Vote Buying/Bribery

1.64 No Member of Congress testifying in this case states that he or she has ever changed his or her vote on any legislation in exchange for a donation of nonfederal funds to his or her political party. See, e.g., Resp. of FEC to RNC's First and Second Reqs. for Admis. at 2-3 (admitting lack of evidence); McCain Dep. at 171-74 (unable to identify any federal officeholder who changed his or her vote on any legislation in exchange for a donation of non-federal money to a political party); Snowe Dep. at 15-16 (same); Jeffords Dep. at 106-07 (same); Meehan Dep. at 181-83 (same); Shays Dep. at 171 (same); see also 148 Cong. Rec. S2099 (daily ed. March 20, 2002) (statement of Sen. Dodd) ("I have never known of a particular Member whom [sic] I thought cast a ballot because of a contribution."); 147 Cong. Rec. S2936 (daily ed. March 27, 2001) (statement of Sen. Wellstone) ("I don't know of any individual wrongdoing by any Senator of either party.").

1.65 Senator Rudman notes:

I understand that those who opposed passage of the Bipartisan Campaign Reform Act, and those who now challenge its constitutionality in Court, dare elected officials to point to specific [instances of vote buying]. I think this misses the point altogether. [The access and influence accorded large donors] is inherently, endemically, and hopelessly corrupting. You can't swim in the ocean without getting wet; you can't be part of this system without getting dirty. Rudman Decl. ¶ 10 [DEV 8-Tab 34].

1.66 Consistent with Senator Rudman's testimony, the record, while not containing evidence that nonfederal funds have purchased votes, includes testimony from former and current Members of Congress describing the influence of nonfederal funds on the political system. Former Senator Simpson states:

Too often, Members' first thought is not what is right or what they believe, but how it will affect fundraising. Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about--and quite possibly votes on--an issue?... When you don't pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother's milk of politics, you never want to be in that situation. Simpson Decl. ¶ 10.

Senator Simpson also relates that

Large donors of both hard and soft money receive special treatment. No matter how busy a politician may be during the day, he or she will always make time to see donors who gave large amounts of money. Staffers who work for Members know who the big donors are, and those people always get their phone calls returned first and are allowed to see the Member when others are not. Id. ¶ 9.

Former Senator Simon testifies:

It is not unusual for large contributors to seek legislative favors in exchange for their contributions. A good example of that which stands out in my mind because it was so stark and recent occurred on the next to last day of the 1995-96 legislative session. Federal Express wanted to amend a bill being considered by a Conference Committee, to shift coverage of their truck drivers from the National Labor Relations Act to the Railway Act, which includes airlines, pilots and railroads. This was clearly of benefit to Federal Express, which according to published reports had contributed $1.4 million in the last 2-year cycle to incumbent Members of Congress and almost $1 million in soft money to the political parties. I opposed this in the Democratic Caucus, arguing that even if it was good legislation, it should not be approved without holding a hearing, we should not cave in to special interests. One of my senior colleagues got up and said, `I'm tired of Paul always talking about special interests; we've got to pay attention to who is buttering our bread.' I will never forget that. This was a clear example of donors getting their way, not on the merits of the legislation, but just because they had been big contributors. I do not think there is any question that this is the reason it passed. Simon Decl. ¶¶ 13-14 [DEV 9-Tab 37]; see also Colorado II, 533 U.S. 431, 451 n.12 (2001) (quoting Senator Simon); Feingold Dep. at 62 [JDT Vol. 6] (testifying that in the fall of 1996 a senior Senator suggested to Senator Feingold that he support the Federal Express amendment because "they just gave us $100,000").

Former Senator Boren testifies:

Donations, including soft money donations to political parties, do affect how Congress operates. It's only natural, and happens all too often, that a busy Senator with 10 minutes to spare will spend those minutes returning the call of a large soft money donor rather than the call of any other constituent....

As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise. I know from my first-hand experience and from my interactions with other Senators that they did feel beholden to large donors. Senator Boren Decl. ¶¶ 7-8 [DEV 6-Tab 8]; see also id. ¶ 9 ("Many Congressmen vie for positions on particular committees such as Finance and Ways and Means in large part because it makes it much easier for them to raise money. They then spend large amounts of their scarce time raising money for their party from businesses that have specific matters pending before their committees.").

1.67 It is clear that political parties are involved in efforts to influence federal officeholders with regard to the passage or defeat of specific legislation. The motivation behind these efforts may not be imparted to the officeholder. However, an internal document shows that on at least one occasion the motivation for doing so was associated with donors' interest in the legislation.

1.67.1 Senator Rudman testifies that while the RNC would lobby him to take a position on legislation, it never asked him to take a particular position because a donor had contributed soft money to the party. Rudman Dep. at 77-82 [JDT Vol. 27]. Senator McCain testifies that "there are many times where the Republican National Committee tried to change my votes and other votes of other Republicans... [T]he Republican National Committee constantly weighs in on legislation before the Congress of the United States," McCain Dep. at 171-72 [JDT Vol. 18], but he also states that he does not "know [if it was] in exchange for donations or not." Id. The record, however, also contains a call sheet titled "Team 100 One-On-One with [a national association]," for a call that took place on February 28, 2000, in Chairman Jim Nicholson's office. RNC0159740 [DEV 95]. Included on the sheet were instructions to thank the group for upgrading to Team 100. Id. The call sheet includes handwritten comments, including: "Gary Miller sponsoring Brownfield Legislation. Boehlert Bliley against. Working w/ Speaker. Asked JN help. JN agreed to talk to Boehlert at the possible time. When appropriate.... Call Sen. Abraham about support homebuilders - Property Rights Bill.... Lott good friend of homebuilders." Id.

1.68 Although one Defense expert believes it does not occur, two present Members of Congress testify that threats have been made by the political parties to withhold financial support due to Members' positions on issues. See Shays Dep. at 172-84 [JDT Vol. 29] (stating Republican Party never attempted to change his vote, but that "[i]t was made clear to a number of my colleagues if they voted for the campaign finance reform, they would get no campaign contributions"); McCain Decl. ¶ 7 [DEV 8-Tab 29] ("At times, when Members seek to support legislation their congressional leaders oppose, they are threatened with the prospect that their leaders will withhold soft money being spent on their behalf."); Defense Expert Mann Cross Exam. at 113-15 [JDT Vol. 17] ("I would be shocked if [the RNC] ever did such a thing.... [T]he point is to win the margin seat, to control the majority for the party, not to weaken a potentially vulnerable candidate.... It would be self-defeating. That isn't how it works."). The FEC does not investigate or make determinations of national parties using federal money to induce federal legislators to support or oppose specific legislation, and therefore has no knowledge of whether such practices occur. Vosdingh Dep. at 89 [RNC Vol. VIII].

1.69 Plaintiffs' own expert Raymond La Raja recognizes the corruption potential inherent in nonfederal donations to the political parties. In a recently published book, La Raja argues that limiting nonfederal money donations reduces "the potential for corruption by eliminating the super donors." Green Rebuttal Report at 4 [DEV 5-Tab 1] (quoting Raymond La Raja, Sources and Uses of Soft Money: What Do We Know?, in A User's Guide to Campaign Reform at 106 (Gerald C. Lubenow ed., 2001). He continues:

If only a modest portion of party soft money goes to fund issue ads, it is worth re-examining the question: how is soft money harmful? The obvious answer is that it permits candidates, contributors, and parties, to circumvent federal laws limiting campaign contributions. If party soft money can help a specific candidate, then corporations, unions, or wealthy individuals can simply funnel contributions to candidates through the parties. And the potential for quid pro quo exchange between contributor and policymaker escalates with the size of the contribution. Id. (citing same at 105).

In fact, La Raja asserts that "[t]o reduce the potential for corruption, I recommend that Congress place a cap on soft money contributions or, if soft money is banned, raise the limits on hard money contributions." Id. (citing same at 106). In his dissertation, La Raja makes a similar recommendation. La Raja Cross Exam. Ex. 3 at 147 [JDT Vol. 15]; see also id. at 105 ("In a society in which political participation is unequal among socioeconomic groups it is discomforting to think that wealthy people and organizations might have disproportionate influence on government policies simply because they can write large checks to politicians. For this reason alone, policymakers might pause before granting dispensations to political parties though these institutions may perform valuable functions in democratic politics."). La Raja concludes that

[t]here are two distinct benefits of using soft money. First, the parties can raise these funds in large increments. Although most soft money contributions are relatively small – the average per source is less than $10,000 – the parties solicit large amounts from corporations, unions and wealthy individuals....

Another important advantage of soft money is that the parties can concentrate these funds in key races. By exploiting soft money rules, the parties effectively sidestep the federal ceilings that prevent them from allocating resources efficiently in the closest contests. To navigate around the federal restrictions on soft money the parties have developed close ties with their state parties because these affiliates receive special exemptions for party building activity. Id. at 51 (emphasis added); see also id. at 74-75 (concluding that parties "exploit federal campaign finance laws by using soft money for candidate support even though federal laws require them to use it for generic party building"); La Raja Cross Exam. 17-18 [JDT Vol. 15] (stating that he stands by the conclusions reached in his dissertation).

Donors are Pressured to Make Contributions to Political Parties

1.70 Corporate donors, trade associations, and individual donors are pressured to make large contributions to the parties.

1.70.1 The Committee for Economic Development (CED)*fn56 released a "survey, which was conducted by the Tarrance Group,... drawn from telephone interviews of a random sample of 300 corporate executives employed by major U.S. corporations." Kolb*fn57 Decl. ¶ 9 [DEV 7-Tab 24]. The survey showed that "[n]early three-quarters of [senior executives of the nation's largest businesses] (74 percent) say pressure is placed on business leaders to make large political donations. The main reasons corporate America makes political contributions, the executives said is fear of retribution and to buy access to lawmakers. Seventy five percent say political donations give them an advantage in shaping legislation; and nearly four-in-five executives (78 percent) called the system `an arms race for cash that continues to get more and more out of control.'" Id. ¶ 9 & Ex. 6. Plaintiffs challenge these poll results, noting that Kolb, CED's President, could not provide details regarding how the Tarrance Group conducted the survey. See Proposed Findings of Fact of the RNC, Republican Party of Colorado, the Republican Party of Ohio, the Republican Party of New Mexico, the Dallas County (Iowa) Republican County Central Committee, and Mike Duncan ("RNC Proposed Findings") ¶ 115(b) (citing Kolb Dep. at 128, 145 [JDT Vol. 13]). They also state that many of the survey questions did not distinguish between federal and nonfederal funds. Id. (citing Kolb Dep. Ex. 5). With regard to the first criticism, the fact that a person who commissioned a study could not explain how the polling firm actually conducted the survey, without more, does not render the poll flawed. Plaintiffs have provided no information which indicates that the Court should view the Tarrance Group's work with caution. In fact, in his deposition, Kolb explained that the Tarrance Group is "a professional polling firm. They know how to do their business pretty well and they're fairly well respected from everything we could tell," Kolb Dep. at 145 [JDT Vol. 13], and the RNC did not challenge this assessment in the deposition or in their filings. In fact, the record shows that The Coalition– an organization supported by a number of Plaintiffs– used the Tarrance Group for its own polling. See infra Findings ¶ As for the second criticism, it is true that the pollsters did not ask those surveyed to distinguish between federal and nonfederal funds; however, the fact that nearly 80 percent called the campaign finance system "an arms race for cash that continues to get more and more out of control" strongly suggests that political party contribution coercion does not stop once a donor reaches the federal contribution limits.

1.70.2 Lobbyist Robert Rozen testifies that

[i]n some cases corporations and trade associations do not want to give in amounts over the hard money limits, but they feel pressured to give in greater amounts and end up making soft money donations as well. They are under pressure, sometimes subtle and sometimes direct, from Members to give at levels higher than the hard money limits. For example, some Members in a position to influence legislation important to an industry naturally wonder why a company in that industry is not participating in fundraising events. Rozen Decl. ¶ 8 [DEV 8-Tab 33]; see also Brian McGrory, Businesses Drawn to Campaign Reform, Boston Globe, February 13, 1997, ODP0018-00457-60 [DEV 69-Tab 48] (quoting Howard Marlowe, a Washington lobbyist, as saying: "We are spending tens of millions of dollars to satisfy the constant craving of congressmen or the parties for money and our own craving for access.... You don't know if you say `no'--and you may have given five times already--whether they will shut off the access you have been buying with all these other contributions. We need the access.").

1.70.3 A national survey of major congressional donors conducted in 1997 found that a majority were critical of the campaign finance system and supportive of reform. John Green, Paul Herrnson, Lynda Powell, and Clyde Wilcox, Individual Congressional Campaign Contributors: Wealthy, Conservative and Reform-Minded (1998), FEC 101-0282, 0283 [DEV 45-Tab 110]. Eighty percent of respondents agreed that "office-holders regularly pressure donors for contributions," while one-half agreed "that contributors regularly pressure office-holders for favors and seek access to government." Id. at 0290.

1.70.4 Former Senator Boren testifies that "Donors... feel victimized. Now that I've left office, I sometimes hear from large donors that they feel `shaken down.'" Boren Decl. ¶ 10.

Federal Officeholders' Awareness of Who Donates to Parties

1.71 Some present and past officeholders, corroborated by separate documentary evidence, testify that many in Congress are aware of the identities of contributors of large donations to the political parties. Some officeholders testify that they personally are unaware of who donates to the political parties, but they are mostly BCRA cosponsors, aligned against these types of large, unregulated contributions and not active participants in nonfederal fundraising, or Members who have distanced themselves from receiving this information.

1.71.1 Some Members of Congress testifying in this case state that they personally are unaware of who donates money to their parties. See Feingold Dep. at 115-16 [JDT Vol. 6] ("Q: How generally are... Senators made aware of, if at all, the amounts and identities of soft money donors to the national committees? A: I don't know exactly how that's done or how much it's done."): Snowe Dep. at 223-24 [JDT Vol. 31] (unaware of nonfederal donors to the RNC); Jeffords Dep. at 96 [JDT Vol. 11] ("somewhat" aware of nonfederal donors to the national political parties); Meehan Dep. at 179 [JDT Vol. 22] (aware of few nonfederal donors to national party committees, only because "from time to time I read who they are in the newspaper"). The record shows that when Members do not know the identity of contributors, it is sometimes because those officeholders made a conscious effort to remain unaware or that their staff handled such information. See, e.g., Senator Feingold Dep. at 115 [JDT Vol. 6] (explaining that while he does not know how Senators are made aware of the identity of donors of nonfederal money to national parties, it is because he "made a real effort to be far away from that part of the process so [he is] not privy to or aware of exactly how that's done and to what extent it's done."); Congressman Meehan Dep. at 178-79 [JDT Vol. 22] (explaining that he was unaware of the Democratic National Committee's "tallying" process, by which the amount of money the DNC spends on a particular candidate is related to the amount of nonfederal money that candidate raised for the DNC, but that he was "probably one of the last people that they would let know about the tallying process"); Rudman Dep. at 75-78 [JDT Vol. 27] (explaining that while he did not know the identity of contributors who donated "either hard or soft money" to the RNC, that the RNC "probably" provided him with that information but he "didn't have any interest in it. I was the most disinterested candidate in money of anyone you've probably ever run into.... And [if such reports] came to the office, the [administrative assistant] took them and probably read them.").

Senator McConnell has stated that during his 18 years in the United States Senate he has met thousands of Americans with whom he has shaken hands, posed for photographs, answered questions and discussed legislative issues. The overwhelming majority of these meetings were with people who do not donate funds to the Republican Party at the national, state, or local level. Senator McConnell also states that he is typically unaware of the donation history of individuals with whom he meets. McConnell Aff. ¶ 13 [2 PCS]. While Senator McConnell may generally not be aware of the donation history of each of the individuals he meets, he is aware of the donation history of some specific large donors. For example, Senator McConnell sent the following letter to a contributor which stated in part:

It was a pleasure seeing you at the Senate-House Dinner last week. The dinner was not a good time to talk, but I wanted to let you know about the August 12 fundraiser I am having at your neighbor['s]... home....

In addition to your $2,000 contribution in the last election cycle, I was proud to also receive $1,000 each from [five other donors]. Their support again would be greatly appreciated. McConnell Dep. Ex. 11 [JDT Vol. 19] (MMc0987).

The letter is signed "Mitch" and includes the following handwritten note: "As you may recall, any contributions to my `02 campaign will count against your $25,000 annual hard money limit in `02 not `99. Hope you can help." Id.

Another handwritten letter states: "Thanks so much for your continuing friendship and support. Your commitment for $2000 each from you your lady will be very helpful in my re-election next year. Thanks again I look forward to hearing from you soon. Mitch." Id. Ex. 5 (MMc0753); see also Findings ¶ 1.60 (letter to contributor noting that he had given the maximum amount of federal funds to Senator McConnell's campaign); McConnell Dep. at 38-41 [JDT Vol. 19] (explaining that a particular company collected $47,000 for his campaign because its chairman, who is a friend of Senator McConnell's, hosted a fundraiser for the McConnell campaign) 1.71.2 Many others testify that federal officeholders and candidates are typically aware of who donates to their parties.

Former and current Members of Congress state that they and their colleagues are aware of who makes large contributions to their parties. See, e.g., Bumpers Decl. ¶¶ 18, 20 [DEV 6-Tab 10] (explaining that officeholders of both parties are aware of contributors' identities, that he had "heard that some Members even keep lists of big donors in their offices," and that "you cannot be a good Democratic or a good Republican Member and not be aware of who gave money to the party. If someone in Arkansas gave $50,000 to the DNC, for example, I would certainly know that."); 148 Cong Rec. H352 (daily ed. Feb. 13, 2002) (statement of Rep. Shays) (recognizing that "it's the candidates themselves and their surrogates who solicit soft money. The candidates know who makes these huge contributions and what these donors expect. Candidates not only solicit these funds themselves, they meet with big donors who have important issues pending before the government; and sometimes, the candidates' or the party's position appear to change after such meetings."); Senator Simpson Decl. ¶ 5 [DEV 9-Tab 38] (explaining that "[p]arty leaders would inform Members at caucus meetings who the big donors were. If the leaders tell you that a certain person or group has donated a large sum to the party and will be at an event Saturday night, you'll be sure to attend and get to know the person behind the donation.... Even if some members did not attend these events, they all still knew which donors gave the large donations, as the party publicizes who gives what."); Senator Boren Decl. ¶ 6 [DEV 6-Tab 8] (testifying that "[e]ach Senator knows who the biggest donors to the party are" because "[d]onors often prefer to hand their [nonfederal money contribution] checks to the Senator personally, or their lobbyist informs the Senator that a large donation was just made."); Congressman Bennie G. Thompson Dep. at 28-29 [JDT Vol. 32] (testifying that the DCCC "provide[s] the entire Democratic Caucus with the amounts of money raised by name of every Democratic member of Congress."); McCain Decl. ¶ 6 [DEV 8-Tab 29] ("Legislators of both parties often know who the large soft money contributors to their party are, particularly those legislators who have solicited soft money," and "[d]onors or their lobbyists often inform a particular Senator that they have made a large donation."); Senator Simon Decl. ¶ 16 [DEV 9-Tab 37] (stating that he was more likely to first return the telephone call of a donor to his campaign than someone who had not donated, and that increased access for those who give large contributions to the party is not fair to those who cannot afford to give contributions at all); Wirth Decl. Ex. A ¶ 17 [DEV 9-Tab 43] ("[C]andidates were generally aware of the sources of the funds that enabled the party committee to support their campaigns.").

Party officials and a political donor state that Members of Congress are made aware of who makes large donations to their party. Vogel Decl. ¶¶ 25-28 [DEV 9-Tab 41] (explaining that the NRSC distributes lists of potential donors to incumbents so that they can solicit donations); McGahn Decl. ¶¶ 21, 34-37 [DEV 8-Tab 30] (same for NRCC); Jordan Decl. ¶¶ 20, 25-28 [DEV 7-Tab 21] (same for DSCC); Wolfson Decl. ¶¶ 21, 28-31 [DEV 9-Tab 44] (same for DCCC); Randlett Decl. ¶ 10 [DEV 8-Tab 32] ("Information about what soft money donors have given travels among the Members in different ways. Obviously the Member who solicited the money knows. Members also know who is involved with the various major donor events which they attend, such as retreats, meetings and conference calls. And there is communication among Members about who has made soft money donations and at what level they have given, and this is widely known and understood by the Members and their staff.").

1.71.3 The record also contains evidence showing that sometimes large donors make their identities known to Members of Congress. This memorandum from a large, influential interest group consisting of major corporations from a particular industry, discusses an upcoming meeting between the group's representatives and Senator McConnell, then head of the NRSC. [citation sealed]. The "objectives" of the meeting included "apprising him of [sic] industry's concern with attention on" an issue directly related to their industry and "expressing [the group's] willingness to be a resource, substantively and politically, to assist in maintaining a Republican majority in 2000." Id; see also Findings ¶¶ 1.75.1 (testimony about donors choosing to personally deliver donations to Senator Chuck Robb when he was Chairman of the DSCC), 1.75.2 (Senator McCain statement: "Donors or their lobbyists often inform a particular Senator that they have made a large donation."), 1.75.2 (statement by Sen. McCain).

1.72 It is clear from the evidence supra that many Members of Congress know who donates to their political parties, and that those who do not can easily find such information. In fact the record suggests that for a Member not to know the identities of these donors, he or she must actively avoid such knowledge as it is provided by the national political parties and the donors themselves. This finding is not particularly unexpected given that many Members of Congress actively solicit federal and nonfederal contributions for their parties. See supra Findings ¶ 1.51.

The fact that some Members know who donates large amounts of money to their political parties is a necessary corollary to the next set of findings which demonstrates that many who give large donations to the political parties, particularly unrestricted nonfederal donations, are provided with access to federal lawmakers. This access provides these donors with the opportunity to influence legislation.

Evidence Regarding Contributions and Access to Federal Lawmakers

1.73 The record contains a substantial amount of evidence showing that large donations to the political parties, particularly nonfederal contributions, provide donors with special access to federal lawmakers. This access is valued by contributors because access to lawmakers is a necessary ingredient for influencing the legislative process. Contributors find that nonfederal funds are most effective at obtaining special access, and to ensure that they maintain this access donors contribute to both political parties. The political parties take advantage of contributors' desire for access by structuring their donor programs so that as donations increase, so do the number and intimacy of special opportunities to meet with Members of Congress. The facts below make clear that this effect of nonfederal donations corrupts the political system.

Donors Give Nonfederal Donations in Order to Obtain Special Access to Federal Lawmakers

1.74 Testimony in the record from lobbyists, Members of Congress, and individual and corporate donors, demonstrates that major contributors to the political parties give nonfederal donations for the purpose of obtaining increased access to, and strengthening their relationships with federal officeholders. 1.74.1 Lobbyists state that their clients make donations to political parties to achieve access. According to lobbyist, and former DNC and DSCC official, Robert Hickmott "[t]here is a very rare strata of contributors who contribute large amounts to the DSCC because they actually believe in Democratic politics.... The majority of those who contribute to political parties do so for business reasons, to gain access to influential Members of Congress and to get to know new Members." Hickmott Decl., Ex. A. ¶ 46 [DEV 6-Tab 19]; see also Rozen Decl. ¶ 10 ("[L]arge political contributions are worthwhile because of the potential benefit to the company's bottom line.") [DEV 8-Tab 33]; Andrews*fn58 Decl. ¶ 8 (stating that sophisticated political donors "typically are trying to wisely invest their resources to maximize political return.") [DEV 6-Tab 1]. Wright Andrews explains:

Sophisticated political donors - particularly lobbyists, PAC directors, and other political insiders acting on behalf of specific interest groups - are not in the business of dispensing their money purely on ideological or charitable grounds. Rather, these political donors typically are trying to wisely invest their resources to maximize political return. Sophisticated donors do not show up one day with a contribution, hoping for a favorable vote the next day. Instead, they build longer term relationships. The donor seeks to convey to the member that he or she is a friend and a supporter who can be trusted to help the federal elected official when he or she is needed. Presumably, most federal elected officials recognize that continued financial support from the donor often may be contingent upon the donor feeling that he or she has received a fair hearing and some degree of consideration or support. Andrews Decl. ¶ 8 [DEV 6-Tab 1].

Lobbyist Robert Rozen testifies that

[t]ypically, a contributor gives money to establish relationships, to be able to lobby on an issue, to get close to Members, to be able to have influence. While an elected official of course does not have to do something because somebody gave, a contribution helps establish a relationship, and the more you give the better the relationship. It is not that legislation is being written in direct response to somebody giving a lot of money. Rather, it is one step removed: relationships are established because people give a lot of money, relationships are built and are deepened because of more and more money, and that gets you across the threshold to getting the access you want, because you have established a relationship. Rozen Decl., Ex. A ¶ 12 [DEV 8-Tab 33].

1.74.2 Some former and current Members of Congress testify that donors expect to establish relationships with officeholders in return for their nonfederal donations to the national political parties. Former Senator Rudman explains:

By and large, the business world, including corporations and unions, gives money to political parties... [because] they believe that if they decline solicitations for such contributions, elected and appointed officials will ignore their views or, worse, that competing business interests who do make large contributions to the party in question will have an advantage in influencing legislation or other government decisions. The same is true in the preponderance of cases where wealthy individuals give $50,000, $100,000, $250,000, or even more to political parties in soft money donations."). Rudman Decl. ¶ 5 [DEV 8-Tab 34]; see also Bumpers Decl. ¶ 14 [DEV 6-Tab 10] ("Although some donors give to Members and parties simply because they support a particular party or Member, the lion's share of money is given because people want access. If someone gives money to a party, out of friendship with a Member, that donor may never ask for anything in return. However, although many people give money with no present intention of asking for anything in return, they know that if they ever need access they can probably get it. Donations can thus serve as a type of insurance."); id. ¶ 13 (testifying that people give money to party committees feel that they are "ingratiating themselves" with the federal officeholder who solicits the donation); Wirth Decl., Ex. A. ¶ 5 [DEV 9-Tab 43] (stating that those donors who made contributions to the state party "almost always did so because they expected that the contributions would support my campaign," and that, generally, "they expected that [the Senator] would remember their contributions."); Brock Decl. ¶ 5(a) [DEV 6-Tab 9] (testifying that large givers "for their part, feel they have a `call' on these officials. Corporations, unions, and wealthy individuals give these large amounts of money to political parties so they can improve their access to and influence over elected party members. Elected officials who raise soft money know this."); Boren Decl. ¶ 9 [DEV 6-Tab 8] ("[Members of Congress] know exactly why most soft money donors give - to get access and special influence based on their contributions.").

1.74.3 Business contributors also testify that nonfederal donations to parties are made to obtain access to federal officeholders. Roger Tamraz, an American businessman involved in investment banking and international energy projects, made donations to the DNC during the 1996 election cycle. When asked during Congressional hearings whether one of the reasons he made the contributions was because he "believed it might get [him] access?," Mr. Tamraz responded: "Senator, I'm going even farther. It's the only reason–to get access...." Thompson Comm. Report at 2913 n.46 (quoting page 63 of Mr. Tamraz's testimony before the committee). Some corporate donors view nonfederal donations as the cost of doing business. See Hassenfeld Decl. ¶ 16 ("Many in the corporate world view large soft money donations as a cost of doing business, and frankly, a good investment relative to the potential economic benefit to their business.... I remain convinced that in some of the more publicized cases, federal officeholders actually appear to have sold themselves and the party cheaply. They could have gotten even more money, because of the potential importance of their decisions to the affected businesses.") [DEV 6-Tab 17]; Randlett Decl. ¶ 5 [DEV 8-Tab 32] (stating that "many soft money donations are not given for personal or philosophical reasons. They are given by donors with a lot of money who believe they need to invest in federal officeholders who can protect or advance specific interests through policy action or inaction. Some soft money donors give $250,000, $500,000, or more, year after year, in order to achieve these goals. For most institutional donors, if you're going to put that much money in, you need to see a return, just as though you were investing in a corporation or some other economic venture."); see also Kirsch Decl. ¶ 14 (stating that "[major] donors perceive that they are getting a business benefit through their special access, and that it is a good investment for them.") [DEV 7-Tab 23].

Documents submitted show that a Fortune 100 company makes large contributions to national party committees with the expectation that its contributions will cultivate or strengthen its "relationships" with particular Members of Congress. See, e.g., Internal Fortune 100 company memorandum entitled "Justification for donation to [DSCC]" (October 25, 2000) [citation sealed] ("I am requesting a check for $50,000.00 to the Democratic Senatorial Campaign Committee (DSCC). Senator Robert Torricelli is the chairman for the DSCC and in a recent conversation with the Senator, he requested the above amount from [our company]. Senator Torricelli has been a friend to [our company] for many years and he has shown himself to be a thoughtful voice regarding issues in our industry. He currently serves on the Judiciary, Foreign Relations & Governmental Affairs and Rules and Administration Committees. I feel this would be a great opportunity to strengthen our relationship with Senator Torricelli and the DSCC."); Internal Fortune 100 company memorandum entitled "Justification for donation to [DSCC]" (December 12, 2000) [citation sealed] ("I am requesting a check in the amount of $50,000 to the Democratic Senatorial Campaign Committee (DSCC). Senator Patty Murray (D-WA) is the new chairman of the DSCC.... Senator Murray sits on the Senate Committees on Appropriations, Budget, Health, Education, Labor and Pensions, and Veterans Affairs. This donation would further enhance our ties with the DSCC and get our relationship with Senator Murray off to a good start."); Internal Fortune 100 company memorandum entitled "[DCCC]/Congressman Bill Luther" (May 7, 2001) [citation sealed] ("I am requesting a check for $25,000.00 to the [DCCC] to support party building activities in response to a request from Congressman Bill Luther. Congressman Luther has been a friend to [our company] for many years.... He currently serves on the Commerce Committee, the Subcommittees for Telecommunications, Trade & Consumer Protection as well as the Finance and Hazardous Materials. I feel this would be a great opportunity to strengthen our relationship with Congressman Luther."); Internal Fortune 100 company memorandum entitled "Georgia Senate 2002" (July 19, 2001) [citation sealed] ("I am requesting a check for $10,000.00 on behalf of Georgia Senate 2002. Senator Cleland has been reaching out to his key supporters and he has contacted [our company] for financial assistance with Georgia Senate 2002. This is very important to Senator Max Cleland and over the years, Senator Cleland has been a good friend to [our company]. I feel this would be a great opportunity to strengthen our relationship with Senator Cleland."). One legislative advocate from this company described the benefits reaped from contributing $100,000 to the NRCC: "I think we established some goodwill with [Congressman] Tauzin, both by [our company] contributing at the $100,000 level to the NRCC dinner he chaired last month and by my participation in the NRCC Finance Committee for the dinner. Tauzin understood that [our company] participated at the same level as the major... companies [in our industry] did, and he expressed genuine interest in trying to begin to reach out to the competitive industry. In sum, I think the event was a real positive for [our company]." Internal Fortune 100 company memorandum entitled"NRCC Leadership Dinner 2000," dated April 4, 2000, [citation sealed].

An internal RNC document also shows that donors often give to the national parties to achieve access to lawmakers. RNC0177216 [DEV 95] (note written on stationery of RNC's Team 100 Director, Haley Barbour, stating "they have pretty much decided to join T-100.... They want access to political players.... Their top issue is tort reform").

1.74.4 One experienced individual donor testifies that "[l]arge soft money donors give in order to obtain access and influence." Hiatt Decl. ¶ 11 [DEV 6-Tab 18].

1.74.5 Plaintiffs' expert La Raja testifies that interest groups probably pursue an access strategy when they give money to political parties. La Raja Cross Exam. at 89 [JDT Vol. 15].

Large Nonfederal Donations Provide Donors Access to Federal Lawmakers

1.75 The record demonstrates that large donations, especially nonfederal contributions, to the political parties provide donors with access to Members of Congress. The record is a treasure trove of testimony from Members of Congress, individual and corporate donors, and lobbyists, as well as documentary evidence, establishing that contributions, especially large nonfederal donations, are given with the expectation they will provide the donor with access to influence federal officials, that this expectation is fostered by the national parties, and that this expectation is often realized. As one former Member of Congress puts it: "[A]ccess is it. Access is power. Access is clout." Boren Decl. ¶ 7 [DEV 6-Tab 8] (quoting Rep. Mazzoli). 1.75.1 Testimony from lobbyists demonstrates that large donations, particularly in nonfederal form, are a necessary ingredient for a successful lobbying campaign because they provide their clients with access to federal lawmakers, which allows them to influence legislation.

Lobbyist Robert Rozen testifies that large nonfederal donations are essential for developing relationships with Members of Congress, which in turn lead to access, which in turn lead to influence over policy.

I know of organizations who believe that to be treated seriously in Washington, and by that I mean to be a player and to have access, you need to give soft money. As a result, many organizations do give soft money.... They give soft money because they believe that's what helps establish better contacts with Members of Congress and gets doors opened when they want to meet with Members. There is no question that money creates the relationships. Companies with interests before particular committees need to have access to the chairman of that committee, make donations, and go to events where the chairman will be. Even if that chairman is not the type of Member who will tie the contribution and the legislative goals together, donors can't be sure so they want to play it safe and make soft money contributions. The large contributions enable them to establish relationships, and that increases the chances they'll be successful with their public policy agenda. Compared to the amounts that companies spend as a whole, large political contributions are worthwhile because of the potential benefit to the company's bottom line. Rozen Decl. ¶ 10 [DEV 8-Tab 33]; see also id. ¶ 14 ("You are doing a favor for somebody by making a large [soft money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone--that is, write a larger check--and they feel even more compelled to reciprocate. In my experience, overt words are rarely exchanged about contributions, but people do have understandings: the Member has received a favor and feels a natural obligation to be helpful in return. This is how human relationships work. The legislative arena is the same as other areas of commerce and life. It is similar to a situation that has been in the news recently: an investment banking firm made shares of hot initial public offerings available to the officers of Worldcom Inc., while Worldcom Inc. executives were giving the firm tens of millions of dollars in investment-banking business. There doesn't have to be a specific tie-in to achieve the result.").

Lobbyist Robert Hickmott, who is a former DNC and DSCC official, testifies that he advises his clients to make contributions in order to "establish relationships. Having those relationships in many ways then helps us get meetings and continue that relationship." Hickmott Dep. at 50 [JDT Vol. 10]. Hickmott testifies that when Senator Robb was chairman of the DSCC he would go to the DSCC offices where he would "accept checks from individuals or organizations who wanted to give money to the DSCC and they wanted face time with Chairman Chuck Robb." Id. at 94-95. Donors would "use this as an opportunity not only to make a contribution to the DSCC, but also to convey to Senator Robb what their group or individual position was on an issue." Id. at 95.

Lobbyist Daniel Murray's testimony in a prior case, which has been incorporated into the record of this case, states that contribut[ing] soft money... has proven to provide excellent access to federal officials and to candidates for federal elective office. Since the amount of soft money that an individual, corporation or other entity may contribute has no limit, soft money has become the favored method of supplying political support.... [S]oft money begets both access to law-makers and membership in groups which provide ever greater access and opportunity to influence. Murray Aff. in Mariani ¶ 14 [DEV 79-Tab 59]. Although there are varying views as to whether lobbying efforts are a more effective means of achieving access to federal officeholders than large nonfederal contributions, there is no dispute that large nonfederal contributions provide an additional means of obtaining access to officeholders and are generally part of modern lobbying plans. While one lobbyist concedes that his clients hire him because he is able to provide them access to lawmakers regardless of the client's donation history, one of the ways he is able to provide this service is through nonfederal donations he and his firm arrange for Members of Congress and their political parties. Moreover, Plaintiffs have not presented the testimony of a single lobbyist who believes that nonfederal money donations do not assist clients in their efforts to gain access to influence federal lawmakers. Some testimony presents lobbying as a more effective method of obtaining access to federal lawmakers than nonfederal donations. See RNC Finance Director B. Shea Decl. ¶ 45 [RNC Vol. V] ("It is obvious why major donors to the RNC do not regularly use their donations as a means to obtain `access.' All or virtually all who have personal or organizational business with the federal government retain or employ professional lobbyists."); Former Senator Bumpers Dep. in RNC at 39 [DEV 63-Tab 1] ("[M]oney really does buy access.... [a]t some level that's true of campaign contributions, and it's almost always true in the cases of lobbying") but see infra Findings ¶ 1.75.2 (Former Senators Rudman, Boren and Simpson's views on access). Evidence was also presented that many entities that donate nonfederal funds to political parties also spend vast sums of money lobbying federal officeholders, sometimes exceeding their donations by many multiples. See Resp. of Intervenors to RNC's First and Second Reqs. for Admis. at 23-24 (admitting that top five corporate nonfederal donors during the 1996 election campaign donated $9,009,155 to national party committees and same five corporations spent $27,107,688 on lobbying during 1996 alone*fn59); id. at 24-25 (admitting that top five corporate donors of nonfederal funds during 1997 and 1998 donated $7,774,020 to national party committees and same five corporations spent $42,000,000 on lobbying during that same period*fn60); see also Primo Cross Exam. at 164 [JDT Vol. 27] (noting that nonfederal donations "is a piddling amount of money... relative to what corporations spend on lobbying and... philanthropy"); Mann Cross Exam. at 49 [JDT Vol. 17] ("It's not either or.

Is more money spent on lobbying than soft money donations? Yes. It varies tremendously. In some sectors it's 2-1, in others 4-1, 10-1. You have given an example in a particular case of 15-1, but the fact is most of the organizations and economic interests doing that lobbying, inside and outside lobbying, are also intimately involved in the political financing game and making large contributions to political parties."). One lobbyist states that his clients hire him in large part because of his contacts on Capitol Hill and because he has access to federal officeholders whether or not their clients have donated money to candidates, officeholders or parties. See Hickmott Dep. at 46-47, 50-51 [JDT Vol. 10]; but see id. at 50 (noting that his firm gives "contributions to establish relationships. Having those relationships in many ways then helps us get meetings and continue that relationship."); Andrews Cross Exam. at 19-20 [JDT Vol. 1] (acknowledging that some organizations gain access by means other than money, such as by using celebrity individuals). Lobbyists maintain that "basic" or traditional lobbying activities are "alone insufficient to be effective in many instances in lobbying endeavors. To have true political clout, the giving and raising of campaign money for candidates and political parties is often critically important." Andrews Decl. ¶ 5 [DEV 6-Tab 1]; Murray Aff. in Mariani ¶¶ 6-7 [DEV 79-Tab 4] (testifying that "[a]long with each... legislative plan [a plan to "advance the client's legislative agenda"], and essential to achieving the client's goals, I develop a parallel political financial support plan. In other words, I advise my clients as to which federal office-holders (or candidates) they should contribute and in what amounts, in order to best use the resources they are able to allocate to such efforts to advance their legislative agenda. Such plans also would include soft money contributions to political parties and interest groups associated with political issues."); see also Meehan Dep. in RNC at 40-41 [DEV 66-Tab 4] ("[P]ower and influence in Washington is not just the amount of soft money an industry contributes to the political parties. I would say that also it's the amount of PAC money that they contribute to the political candidates, it's the amount of hard money they contribute, it's the amount of lobbying money that they expend in order to influence members of Congress."). Furthermore, testimony from lobbyists shows contributions help lobbyists gain access to lawmakers. Lobbyist Wright Andrews comments:

The amount of influence that a lobbyist has is often directly correlated to the amount of money that he or she and his or her clients infuse into the political system. Some lobbyists help raise large "soft money" donations and/or host many fundraising events for key legislators. Some simply represent a single client with very deep pockets and can easily reach into large corporate or union funds for "soft money" donations or other allowable expenditures that may influence legislative actions. Those who are most heavily involved in giving and raising campaign finance money are frequently, and not surprisingly, the lobbyists with the most political clout. Andrews Decl. ¶ 12 [DEV 6-Tab 1]; see also Hickmott Dep. at 50 [JDT Vol. 10].

Andrews testifies that it has become a common practice for lobbyists to "host a number of fundraisers." Andrews Decl. ¶ 16 [DEV 6-Tab 1] He explains that "[w]hereas the political parties periodically organize `gala' events in large ballrooms filled with hundreds of donors, lobbyists now often prefer attending smaller events hosted by other lobbyists, with only ten or fifteen people participating, all sitting at a dinner or breakfast table with the invited guest elected official. This type event allows lobbyists a better opportunity to build more personal relationships and to exchange views." Id.

1.75.2 Former and current Members of Congress testify that contributions provide donors with access to influence federal lawmakers. Former Senator Rudman describes the system bluntly:

Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy. In these meetings, these special interests, often accompanied by lobbyists, press elected officials -- Senators who either raised money from the special interest in question or who benefit directly or indirectly from their contributions to the Senator's party -- to adopt their position on a matter of interest to them. Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way. No one says: `We gave money so you should do this to help us.' No one needs to say it -- it is perfectly understood by all participants in every such meeting....

Large soft money contributions in fact distort the legislative process. They affect what gets done and how it gets done. They affect whom Senators and House members see, whom they spend their time with, what input they get, and -- make no mistake about it -- this money affects outcomes as well Rudman Decl. ¶¶ 7, 9 [DEV 8-Tab 34]. Senator Simpson testifies that groups used "to give to someone who was for your philosophy," but now "[i]t's giving so you can get access." Simpson Dep. at 11-12 [JDT Vol. 30]. Senator Boren finds the "comments some of [his] colleagues have made about the system are completely consistent with [his] own experience. For example, former Rep. Romano Mazzoli (D-Kentucky) said: `People who contribute get the ear of the member and the ear of the staff. They have the access--and access is it. Access is power. Access is clout. That's how this thing works...' Similarly, Rep. Jim Bacchus (D-Fla.) has explained: "I have on many occasions sat down and listened to people solely because I know they had contributed to my campaign." Boren Decl. ¶ 7 [DEV 6-Tab 8] (citation omitted). Former Senator Simon attests:

Giving to party committees also helps you gain access to Members. While I realize some argue donors don't buy favors, they buy access. That access is the abuse and it affects all of us. If I got to a Chicago hotel at midnight, when I was in the Senate, and there were 20 phone calls waiting for me, 19 of them names I didn't recognize and the 20th someone I recognized as a $1,000 donor to my campaign, that is the one person I would call. You feel a sense of gratitude for their support. This is even more true with the prevalence of much larger donations, even if those donations go to a party committee. Because few people can afford to give over $20,000 or $25,000 to a party committee, those people who can will receive substantially better access to elected federal leaders than people who can only afford smaller contributions or can not afford to make any contributions. When you increase the amount that people are allowed to give, or let people give without limit to the parties, you increase the danger of unfair access. Simon Decl. ¶ 16 [DEV 9-Tab 37].

Senator McCain notes:

At a minimum, large soft money donations purchase an opportunity for the donors to make their case to elected officials, including the President and Congressional leaders, in a way average citizens cannot. Many legislators have been in situations where they would rather fit in an appointment with a soft money contributor than risk losing his or her donation to the party. Legislators of both parties often know who the large soft money contributors to their party are, particularly those legislators who have solicited soft money. Members of Congress interact with donors at frequent fundraising dinners, weekend retreats, cocktail parties, and briefing sessions that are held exclusively for large donors to the party. Donors or their lobbyists often inform a particular Senator that they have made a large donation. When, as a result of a Member's solicitation, someone makes a significant soft money donation, and then the donor calls the Member a month later and wants to meet, it's very difficult to say no, and few of us do say no. McCain Decl. ¶ 6 [DEV 8-Tab 29]; see also Shays Decl. ¶ 9 [DEV 8-Tab 35] ("Soft money donations, particularly corporate and union donations, buy access and thereby make it easier for large donors to get their points across to influential Members of Congress. The donors of large amounts of soft money to the national parties are well-known to the leadership and to many other Members of Congress. The access to elected officials that large donors receive goes far beyond an average citizen's opportunity to be heard."). Defendant-Intervenors who testified in this case state that they personally do not provide special access to individuals or corporations that provide large contributions to parties, regardless of whether the donation is in federal or nonfederal funds. See Feingold Dep. at 116 [JDT Vol. 6] ("I cannot imagine a situation where... I would meet with somebody because they gave soft money."); Snowe Dep. at 210-11 [JDT Vol. 31] (stating she has never given preferential access to any donor, federal or nonfederal, and that "[e]verybody has access to my office to the extent that I have time available"); Jeffords Dep. at 96-97 [JDT Vol. 11] (stating person's status as a donor to national party committee does not "affect [his] decisions as to who [he] meet[s] with or give[s] access to"); Meehan Dep. at 180 [JDT Vol. 22] (stating he provides no preferential access to nonfederal donors); Cross Exam. of Shays at 20-21 [JDT Vol. 29] (agreeing he "pretty much [has] an open door policy to meet people who want to talk to [him] about important legislative issues"). Given the efforts these Members of Congress have made over the past years to reform the political system, it is not surprising that they would have such policies. These Members, however, do not claim to speak for the rest of their colleagues.

1.75.3 Corporate donors testify that contributions provide access to influence lawmakers. Wade Randlett testifies that "many members of the business community recognize that if they want to influence what happens in Washington, they have to play the soft money game. They are caught in an arms race that is accelerating, but that many feel they cannot afford to leave or speak out against." Randlett Decl. ¶ 14 [DEV 8-Tab 32].

Chairman Gerald Greenwald*fn61 testifies that

labor and business leaders are regularly advised that -- and their experience directly confirms that -- organizations that make large soft money donations to political parties in fact do get preferred access to government officials. That access runs the gamut from attendance at events where they have opportunities to present points of view informally to lawmakers to direct, private meetings in an official's office to discuss pending legislation or a government regulation that affects the company or union.... [Some unions and corporations] give large soft money contributions to political parties – sometimes to both political parties – because they are afraid to unilaterally disarm. They do not want their competitors alone to enjoy the benefits that come with large soft money donations: namely, access and influence in Washington. Though a soft money check might be made out to a political party, labor and business leaders know that those checks open the doors to the offices of individual and important Members of Congress and the Administration, giving donors the opportunity to argue for their corporation's or union's position on a particular statute, regulation, or other governmental action. Labor and business leaders believe--based on experience and with good reason--that such access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties. Greenwald Decl. ¶¶ 10, 12 [DEV 6-Tab 16]; see also Hassenfeld Decl. ¶¶ 23-24 ("I think companies in some industries have reason to believe that because their activities are so closely linked with federal government actions, they must participate in the soft money system in order to succeed.") [DEV 6-Tab 17].

An Eli Lilly and Company memorandum states that its 1995-96 political "contributions and the related activities we have participated in have been key to our increased role and ability to get our views heard by the right policy makers on a timely basis; in other words, a smart investment." Eli Lilly and Company Memorandum (Jan. 15 1997), ODP0018-00481 to 86 [DEV 69-Tab 48].

1.75.4 The former Chairman of the DNC testifies that "[m]any contributors of large sums of money- both Republicans and Democrats - gain access to party and governmental officials that they otherwise would not have. With this access, contributors are able to make their cases to people who make public policy and take official governmental action." Fowler*fn62 Decl. ¶ 6 [DEV 6-Tab 13]

1.75.5 Individual donors testify that contributions provide access to influence federal officeholders on issues of concern to them. Steven Kirsch testifies that

[p]olicy discussion with federal officials occurs at major donor events sponsored by political parties. I have attended many such events. They typically involve speeches, question and answer sessions, and group policy discussions, but there is also time to talk to Members individually about substantive issues. For example, at a recent event. I was able to speak with a Senator representing a state other than California and we had a short conversation about how our respective staffers were working together on a particular issue. Kirsch Decl. ¶ 12 [DEV 7-23].

Similarly, Peter Buttenwieser testifies:

Events, meetings and briefings held for soft money donors provide opportunities for the donors to hear speeches and engage in policy discussions with federal office holders. There is also a certain amount of politicking and lobbying at these events. This is true particularly in the side discussions, in which donors can approach office holders and discuss their issues. Buttenwieser Decl. ¶ 25 [DEV 6-Tab 11]. He also observes that

[t]here is no question that those who, like me, make large soft money donations receive special access to powerful federal office holders on the basis of the donations. I am close to a number of Senators, I see them on a very consistent basis, and I now regard the Majority Leader as a close friend. I understand that the unusual access I have correlates to the millions of dollars I have given to political party committees, and I do not delude myself into thinking otherwise. Not many people can give soft money on that scale, and it naturally limits the number of those with that level of access. Id. ¶ 22.

Arnold Hiatt testifies that

[a]s a result of my $500,000 soft money donation to the DNC, I was offered the chance to attend events with the President, including events at the White House, a number of times. I was offered special access as a result of the contributions I had made, though I generally never took advantage of that access. One event that I did attend was a dinner at the Mayflower Hotel in Washington, D.C. in approximately March 1997 with President Clinton and Vice-President Gore. The dinner was for the largest donors to the DNC, about thirty people. I did not plan on attending but I went because several people urged me to use the occasion to speak in favor of campaign finance reform. I used the opportunity to talk to the President about how the campaign finance system in this country had become a crisis, and argued that the crisis provided an opportunity for the President to provide some leadership. I don't think that we got the leadership I was seeking on the campaign finance issue, but I did get the chance to make a personal pitch to the President as a result of my donation. Hiatt Decl. ¶ 9 [DEV 6-Tab 18].

Hiatt testifies that others in attendance also shared their views on policy matters of importance to them as the event was advertised as an opportunity to "give advice to the president." Hiatt Dep. at 119-21 [JDT Vol. 10]; see also Hassenfeld Decl. ¶ 12-13 [DEV 6-Tab 17] ("[W]hen given the opportunity, some donors try to pigeonhole or corner Members, in a less than diplomatic way, to discuss their issues at these events."); Geschke*fn63 Decl. ¶ 5 [DEV 6-Tab 14] (testifying that in connection with $50,000 in federal and nonfederal donations made to the DNC he and his wife attended a dinner of 10 to 12 people with President Clinton "last[ing] two or three hours, and consist[ing] primarily of a conversation about issues of importance to the nation and the President's program"); RNC 0026901 [IER Tab 7] (note from the director of the RNC's Team 100 program thanking a donor for "facilitating Dow [Chemical]'s generous contribution to the Republican Party. It's a timely donation as we head into the final hours of the campaign. Give me a call... and we can figure out when is a good time to bring your Dow [Chemical] leadership into town to see [RNC Chairman] Haley [Barbour], [Senate Majority Leader Robert] Dole & [Speaker of the House] Newt [Gingrich]."); RNC 00031843 [IER Tab 7] (letter from donor to RNC Chairman Jim Nicholson telling him "I do feel I have benefited [sic] from Team 100 in the audience it has afforded me with party leaders"); RNC 0194817 [IER Tab 1.E] (letter from RNC to a pharmaceutical company asking the company for its opinion and suggestions on the enclosed RNC "health care package" and a $250,000 donation to join the RNC's Season Pass program). Thomas McInerney, a large contributor to the Republican party, states that his support for the Republican Party at the national, state, and local levels is not dependent upon gaining access to federal officeholders. McInerney states that he would support the Republican Party whether or not he was solicited by a federal officeholder and whether or not his contribution resulted in attendance at an event that included federal officeholders. McInerney Aff. ¶ 17 [9 PCS]. Even so, McInerney attests that he has been offered access to federal officeholders in exchange for his donations of nonfederal funds. Id.*fn64 The Political Parties Facilitate Access to Members of Congress for Their Large Contributors 1.76 Party leaders facilitate direct communications on matters of policy between nonfederal money donors and officeholders. Several documents in the record demonstrate this fact.

For example, a handwritten note dated February 21, 1995 from RNC Chairman Haley Barbour to [a major donor] stated, in part: "Dear [____]: Thank you for your very thoughtful memo on the estate and gift tax law. I've read it and will pass it along to appropriate Senators, Representatives and staff folks when I'm on the Hill tomorrow." ODP0031-01403 to 04 [DEV 71-Tab 48]. A March 28, 1995, letter from House Ways and Means Committee Chairman Bill Archer (R-TX) to the donor thanked the donor for his "intriguing" proposal, noting Archer's personal preference that the estate and gift taxes be repealed completely. ODP0031-01412 [DEV 71-Tab 48]. A March 31, 1995 letter from the donor to Team 100 Director Timothy Barnes enclosed the donor's 1995 Team 100 membership check and requested that Barnes provide Barbour with a copy of Archer's March 28, 1995 letter. ODP0031-01406 to 11 [DEV 71-Tab 48]. Team 100 membership requires a $100,000 donation every four years, with $25,000 donations in each intervening year. Findings ¶ 1.77.1.

A handwritten note dated Oct. 27, 1995, from RNC Chairman Haley Barbour asks Senate Majority Leader Bob Dole to meet with the CEO of Pfizer, a member of the RNC's "Team 100" nonfederal money donor group, to discuss an extension of the Section 936 tax credit:

Dear Bob

[___], CEO of Pfizer, has asked to see you on Wed. 11/1. He is extremely loyal and generous. He also is not longwinded. He'll tend to his business and not eat up extra time. They have proposed a [Internal Revenue Code §] 936 solution that [Republican Senator William] Roth and [Republican Congressman Bill] Archer are considering. I'm sure that is the issue. I'd appreciate it if you'd see Bill. [signed] Haley. ODP0025-02456 to 57 [DEV 70-Tab 48].

A letter from the chairmen of the Congressional Forum of the NRCC addressed to the Association of Trial Lawyers of America discusses an upcoming Congressional Forum Chairman's Dinner, and notes: "[o]ur event will give you an excellent opportunity to meet with the Members of the [Judiciary Committee] to discuss issues relevant to your organization." ODP0042-00025 [DEV 71-Tab 48]; see also July 10, 1996 letter from John Palmer to [redacted addressee] (reminding addressee that Palmer had asked him to join the RNC's Team 100, and noting that RNC Chair Barbour escorted new Team 100 member and Energy CEO [______] on four appointments that were "very significant" in legislation affecting companies like his and made him "a hero in his industry"), ODP0023-02043 [DEV 70-Tab 48]; RNC0044465 [DEV 93] (Memorandum from Tim Barnes of the RNC to Royal Roth noting that someone from [a company] had been "trying to establish a contact in Senator Dole's office for [a company executive]. As you know, [this executive] has been very generous to the RNC. If there is any way you can assist, it would be greatly appreciated."); ODP0030-03512 to 13 [DEV 71-Tab 48] (notes of telephone call between Jim Nicholson of the RNC and a Team 100 member, which states that Nicholson will take up an issue discussed with Senator Trent Lott); [DEV 71] Letter from RNC Chairman Jim Nicholson to [a donor], August 18, 1998, copies to House Speaker Newt Gingrich, House Majority Leader Dick Armey and Congressman John Linder ODP0033-00534(stating "I appreciate your interest in helping us hold onto our majority in the House.... I can tell you every single dollar of your contribution will go directly into Operation Breakout.... If you will make your check out (which can be personal or corporate) to the Republican National Committee and annotate it for Operation Breakout I will personally show a copy of it to Newt, Dick Armey and John Linder. Please feel free to accompany it with a transmittal letter containing any other message that you choose."); ODP0042-000654 (memorandum to all Congressional Forum members from the chairmen, informing them of an upcoming dinner featuring members of the Banking Committee, noting that "[o]ur event will give you an excellent opportunity to meet with members of the committee to discuss issues relevant to your organization"); ODP0042-01111 [DEV 71-Tab 48] (letter from NRCC to the Federal Managers' Association, noting an upcoming dinner where the addressee could express "interests and concerns regarding upcoming legislation"); RNC0156717 (letter from RNC to Senator Hagel staffer, asking Senator Hagel to meet with a donor for four "key" reasons including: "[h]e runs [sic] $80,000,000 high tech business," and "[h]e just contributed $100,000 to the RNC.").

In addition to these documents, the record includes corroborating testimony like that of former Senator Wirth who states:

The Democratic national campaign committees sometimes asked me to meet with large donors to the party whom I had not met before. At the party's request, I met with the donors. I understood that the donors' goal in making the large contributions was often to occasion meeting(s) with me or other prominent Democratic congressional leaders to press their positions on legislative issues. On these occasions, sometimes all I knew about the donor would be the issue in which he was interested. Wirth Decl. Ex. A ¶ 15 [DEV 9-Tab 43]. Former DNC Chairman Donald Fowler testifies:

Party and government officials participate in raising large contributions from interests that have matters pending before Executive agencies, the Congress, and other government agencies. Party officials, who are not themselves elected officials, offer to large money donors opportunities to meet with senior government officials. Donors use these opportunities - White House and congressional meetings - to press their views on matters pending before the government. Fowler Decl. ¶ 8 [DEV 6-Tab 13].

1.76.1 The RNC's Finance Director attests that the RNC does not arrange meetings with government officials for any of its donors -- federal or nonfederal. B. Shea Decl. ¶ 44 [RNC Vol. V]. She states that the RNC Finance Division, "[a]s a matter of policy," passes along requests from donors for meetings with a federal officeholder to that officeholder's scheduling staff "without inquiring into the purpose of the proposed meeting," "neither... advocate[s] a meeting nor ascertain[s] whether a meeting has been arranged," does not provide to the officeholder's scheduler the amount of the money that donor has contributed to the party. Id. at 44, 46. When asked about this policy during her crossexamination, Ms. Shea testified that the policy is an informal, unwritten policy. B. Shea Dep. at 80 [JDT Vol. 29]. She does not say whether this policy applies only to the RNC Finance Division or to the entire committee. Furthermore, the policy is more nuanced than Ms. Shea's declaration implies. According to Ms. Shea, the RNC Finance Division's "policy" is to not "force" federal officeholders to meet with donors, but that it may pass along requests to a Member's scheduler and say "this is a Team 100 member, could you see if you could fit them in." Id. at 82. Indicating that a person is a Team 100 member, which means they give the RNC $100,000 every four years, with $25,000 donations each intervening year, while not informing the scheduler of the precise amount of money the donor gave the RNC, does give the Member's office the message that the individual interested in a meeting is a major donor. See also supra, Findings ¶ 1.76 (other instances of RNC officials setting up meetings for major donors with Members of Congress). Furthermore, as Senator Simon has stated, "Staffers who work for Members know who the big donors are, and those people always get their phone calls returned first and are allowed to see the Member when others are not." See supra Findings ¶ 1.66.

1.77 The political parties have structured their donation programs so that donors are encouraged to contribute larger amounts in order to get access to more exclusive and intimate events at which Members of Congress are present. The evidence also shows that the parties use the enticement of access to secure larger donations. For example, a letter from then-RNSC Chairman Senator McConnell explained that a $25,000 nonfederal fund donation would provide the donor membership in the NRSC's Chairman's Foundation whose benefits "include four to five small dinner meetings annually, each focused on a specific Senate Committee. The meetings consist of a briefing with the top committee staff members, followed by a reception and dinner with the staffers and Republican members of the committee to discuss the issues. Foundation members are also invited to all Senatorial Trust events which provide an additional four opportunities year to meet with our Republican Senate Majority." ODP0037-02271 [DEV 71-Tab 48].

1.77.1 RNC documents show that the RNC's donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors. ODP0018-00113 to 36 [DEV 69-Tab 48] (RNC Brochure "Donor Programs"); see also Resps. RNC to FEC's First RFA's, No. 62 [DEV 12-Tab 10]. The RNC offers its donors a range of different donor programs, for a range of different donor financial levels and interests. ODP0025-00375 to 79 [DEV 70-Tab 48] ("Summary of RNC's Donor Programs"). The RNC President's Club required a $1,000 annual contribution, or $2,000 per couple per year, and held a meeting in Washington, D.C. at least once a year which included policy briefings and discussions led by Republican political leaders. Id. at ODP0025-00375; B. Shea Decl. ¶ 14.b [RNC Vol. V]. The Chairman's Advisory Board required a $5,000 annual hard money contribution and offered a "vigorous and informal exchange of views among Board members and party leaders.... Board meetings include three or four panel discussions, each chaired by a Congressional leader or senior policy adviser with particular expertise in the area under consideration." ODP0025-00375 to 77 [DEV 70-Tab 48]. According to the document, the Chairman's Advisory Board was established "to enlist the personal energy and professional expertise of Republican leaders in business and community affairs in developing policy and campaign strategies at the highest levels for the party." ODP0025-00375 to 77 [DEV 70-Tab 48]. The Republican Eagles required an annual contribution of $15,000 (individual) or $20,000 (with spouse or nonfederal/corporate). Id. ODP0025-00377 to 0378, ODP0025-00429 [DEV 70-Tab 48]. The Eagles program offered a series of national and regional meetings with elected Republican Congressional leaders, special access to Republican events, and other benefits. ODP0025-00428 [DEV 70-Tab 48]; ODP0030-02838 to 39 [DEV 71-Tab 48]. The Team 100 program required a donation of $100,000 upon joining and every fourth year thereafter, with $25,000 donations required in each of the three intervening years. ODP0014-00983, ODP0014-01457 to 58 [DEV 69-Tab 48]. The Team 100 program offered members national and regional meetings with the Republican Party leadership throughout the year, special events, membership in the Eagles program, the opportunity to participate in international trade missions, and other benefits. ODP0025-00377, ODP0025-00424, ODP0025-01705 to 13 [DEV 70-Tab 48].

The Season Ticket program required a donation of $250,000 upon joining and renewals thereafter. ODP0022-03045 to ODP0022-3046, ODP0023-02480, ODP0025-01569 [DEV 70-Tab 48]; ODP0030-03408 [DEV 71-Tab 48]. The "Season Ticket" or "Season Pass" program offered the greatest and most exclusive range of RNC donor program benefits, including one Team 100 membership, two Eagle memberships, special access to a range of Republican Party events, and the assistance of RNC support staff. ODP0025-01569 [DEV 70-Tab 48]. The RNC also offers the Regents program designed for members who give an aggregate amount of $250,000 in nonfederal funds per two-year election cycle. B. Shea Decl. ¶ 14.g [RNC Vol. V].

1.77.2 The NRSC also offered several major donor programs. In 1995 and 1996, the NRSC offered a corporate donor program called "Group 21" or "G21," which required an annual donation of $100,000. ODP0037-02246, ODP0037-02275, ODP0037-02281 [DEV 71-Tab 48]. The "Group 21" program offered donors "small dinners with [then-NRSC Chairman] Senator D'Amato and other senators" and other "VIP benefits." ODP0037-02275 [DEV 71-Tab 48]. The Chairman's Foundation required an annual corporate (meaning nonfederal money) donation of $25,000. ODP0036-03603 [DEV 71-Tab 48]. The Senatorial Trust required an annual donation of $10,000 (personal) or $15,000 (corporate). ODP0036-03873 to 74 [DEV 71-Tab 48]. The Presidential Roundtable required an annual donation of $5,000 in personal or corporate funds. ODP0037-00315 [DEV 71-Tab 48]. See also ODP0036-03525 (letter signed by Senator McConnell to NRSC member asking him to renew his membership, noting that "[y]our non-federal contribution to the Chairman's Foundation will allow us to put our federal dollars directly towards the Senate campaigns, where they are desperately needed."); ODP0036-3562 (letter signed by Senator McConnell thanking addressee for joining the Chairman's Foundation); ODP0036-03595 (letter signed by Senator McConnell soliciting someone to join the Chairman's Foundation); ODP0037-01861 to 69 (NRSC brochure) [DEV 71-Tab 48]; Vogel Decl. ¶ 51 ("The NRSC uses a variety of donor programs to motivate persons to donate funds. These programs tend to be associations of donors and fundraisers, who are grouped by the nature and extent of the funds given or raised."), Tabs A, J [DEV 9-Tab 41] (2002 Senatorial Trust materials).

1.77.3 "The DSCC hosts several different types of events to motivate persons to donate funds. These events are often attended by Democratic Senators, Democratic Senate candidates, other Democratic holders of federal office, Democratic Cabinet officials and other celebrities who neither seek nor hold federal office." Jordan Decl. ¶ 52 [DEV 7-Tab 21]. For example, during the 1996 election cycle, the DSCC offered memberships in its "Leadership Circle." COL0002-00698 [DEV 78-Tab 152]. Membership required a $10,000 annual contribution for individual donors, and $15,000 for PACs. Id. Benefits included "special Leadership Circle weekend retreats and issue seminars with Senators and Washington officials.... Leadership Circle members also receive tickets to the annual Senate Fall Dinner, followed by a day of issue oriented meetings with Senators and political experts." Id. The DSCC also offered memberships to its "Majority Trust," "the premiere donor program of the DSCC for individuals who contribute $20,000 per calendar year." Id. "The Majority Trust offers important programs, weekends and retreats throughout the year attended by Democratic Senators." Id. The DSCC also solicits donations for special events. For example, for the DSCC's 1999 Annual Fall Dinner, a $50,000 nonfederal donation bought the donor benefits including a priority table at the dinner and one ticket to the VIP Reception. Jordan Decl. Attach. L (DSCC-L-0025).

1.77.4 The NRCC offers individuals or PACs that contribute $15,000 annually, or corporations that give $20,000 annually, membership in its Congressional Forum which "has been designed to give its members an intimate setting to develop stronger working relationships with the new Republican Congressional majority," ODP0042-01226 [DEV 71-Tab 48], and the "benefit that attracts most Forum members are the dinners with Committee Chairmen and the Republican members from each Committee," ODO0042-00028 [DEV 71-Tab 48]. These dinners "average about 75 people including Members -- that means at least two Committee Members at every table." ODP0042-00171 to 72 [DEV 71-Tab 48]. "In addition to the monthly dinners, we offer two annual meeting weekends, a golf tournament and a dinner with the Elected Leadership and all the Committee Chairs is included as a benefit of.... Forum membership." Id. Forum benefits also include all the Benefits of the NRCC's House Council program. ODP0042-01226 [DEV 71-Tab 48]; see also ATT 000018 [DEV 7-Tab 20] (invitation to 1999 Republican Senate-House Dinner, with escalating benefits including meetings, receptions and a breakfast with Congressional leaders).

1.77.5 "The DCCC uses a variety of donor programs to motivate persons to donate funds. These programs tend to be associations of donors and fundraisers, who are grouped by the nature and extent of the funds given or raised." Wolfson Decl. ¶ 53 [DEV 9-Tab 44]. For the 2002 election cycle, the DCCC's "Major Donor Programs" included the Business Forum, which required an annual contribution of $10,000. Id. at Tab J (DCCC-J-0007). Business Forum Members' benefits included "[b]i-monthly political briefings and receptions with the House Democratic Leadership and other Democratic pro-business Members in the House of Representatives[, an a]nnual retreat with Chairwoman Lowey and the House Democratic Leadership[, an] annual Democratic Congressional Dinner event package[, and a] bi-monthly conference call/briefing with Leader Gephardt and Chairwoman Lowey. Id. (capitalization altered). The Majority Council required a $50,000 annual contribution, and included the bi-monthly conference call, "complementary invitations to all DCCC fundraising events, including the Annual Democratic Congressional Dinner with private reception and political briefing[, and] complementary invitations to Premiere Retreats with Leader Gephardt, Chairwoman Lowey, House Democratic Leadership and Ranking Members. Id. (capitalization altered). Membership to the National Finance Board required a $100,000 annual contribution, and included as benefits all of the "Majority Council" benefits as well as "two private dinners with Leader Gephardt, Chairwoman Lowey, House Democratic Leadership and Ranking Members[ and] two retreats with Leader Gephardt and Chairwoman Lowey in Telluride, CO and Hyannisport, MA." Id. (capitalization altered).

1.77.6 The state parties also use the promise of access to federal lawmakers to encourage larger donations. See, e.g., CDP 0098 [DEV 106] (CDP brochure showing that those who contribute $100,000 to the CDP are classified by the party as "Trustees," and that the CDP "recognizes its extraordinary supporters with extraordinary opportunities," providing "Trustees" with "[e]xclusive briefings, receptions and meetings with officials such as U.S. Senator Dianne Feinstein, U.S. Senator Barbara Boxer, Lt. Governor Gray Davis, Controller Kathleen Connell and other national figures."); CRP-00269 (flyer titled "The California Golden Circle," noting that "[t]hrough Golden Circle contributions, California Republicans have been able to elect leaders from the White House to the State House," that Golden Circle members will assist the CRP "goal... to deliver fifty-five electoral votes for our Republican Presidential nominee in 2004, maintain a Republican majority in Congress, and elect a Republican Legislature," and including among Golden Circle "Membership Benefits" "private receptions/meetings held throughout California with local, state and national Republican leaders to discuss current political issues").

1.77.7 Contributors request to be seated with certain lawmakers at these donor events. For example, an RNC "Table Buyer's Guest List" sheet for "The Official 1995 Republican Inaugural Gala" filled out by "Am. Banker's Ass'n/Nation's Bank" contained a request to sit with certain Members of Congress and "anyone on House Banking Comm." ODP0023-3288 [DEV 70-Tab 48]; see also 2000 RNC Gala Leadership Levels, undated, RNC0022509 [DEV 92]; 2000 RNC Attendance Forms, April 20, 2000, RNC0236323 [DEV 97] (filled out by Microsoft attendee requesting to be seated with a particular Senator or "Leadership Commerce Comm. or Judiciary"); RNC0145258 [DEV 93] (filled out by Chevron corporation attendee, requesting to be seated with a Member from California, Louisiana or Texas); RNC0202199 [DEV 96] (filled out for the MBNA table, requesting to be seated with five particular Senators); RNC0202200 [DEV 96](filled out for the Reliant Resources, Inc. table, asking to be seated with one specific Representative and five named Senators); RNC 0032805 - 06, RNC 0032799 [DEV 92] (request for Burger King Chairman and Team 100 member who donated $100,000 to be seated with Senator Fred Thompson and three other Senators, and document showing Senator Thompson was placed at the Burger King table). PhRMA's Judith Bello testifies that the five Members of Congress PhRMA listed as requested "VIP" to be seated at its table at the 2000 Republican House-Senate dinner were all Members who had responsibility or oversight over issues of importance to the pharmaceutical industry. Bello Dep. at 82 [JDT Vol. 1].

1.77.8 The political parties have used such opportunities to promote their various donor clubs. For example, Senator McConnell, as head of the NRSC, wrote a solicitation letter which noted that the Republican Senate Council ($5,000 annual PAC contribution) and the Chairman's Foundation ($25,000 annual corporate gift) provide "excellent opportunities for both corporate executives and Washington representatives to meet and discuss current issues with leading Republican Senators." ODP0036-03603 [DEV 71-Tab 48]; see also RNC 0286400 [IER Tab 4] (offering $250,000 donors to the RNC Gala Co-Chairman status which included a "Breakfast and Photo Opportunity with [Senate Majority Leader] Trent Lott and [Speaker of the House] Newt Gingrich," as well as a "Luncheon with Republican House and Senate Leadership and the Republican House and Senate Committee Chairmen of your choice").

1.77.9 According to lobbyist Robert Rozen:

[S]oft money contributions built around sporting events such as the Super Bowl or the Kentucky Derby, where you might spend a week with the Member, are even more useful. At the events that contributors are entitled to attend as a result of their contributions, some contributors will subtly or not-so-subtly discuss a legislative issue that they have an interest in. Contributors also use the events to establish relationships and then take advantage of the access by later calling the Member about a legislative issue or coming back and seeing the Member in his or her office. Obviously from the Member's perspective, it is hard to turn down a request for a meeting after you just spent a weekend with a contributor whose company just gave a large contribution to your political party. Rozen Decl. ¶ 11 [DEV 8-Tab 33]; see also COL0002-00698 (flyer listing DSCC Donor Programs, and including as part of its Majority Trust 1996 program, "a weekend in Aspen, CO in January, Superbowl weekend, Mardi Gras with Senator Breaux, a Jefferson Weekend in Charlottesville, VA in June, and the annual summer retreat on Nantucket Island in July.").

1.77.10 Sometimes the link between large donations and special access to elected federal officials is even more direct. A call sheet prepared for then-DNC Chair Fowler instructs him to call a number of large contributors ask for donations, and invite them for lunch with the President of the United States ("POTUS"). DNC 113-00137 to 38 [DEV 134-Tab 7] ("Ask her to give 80k more this year for lunch with Potus on October 27th.") ("Ask him to write another 100K to become a Managing Trustee for the campaign and come to lunch with POTUS on Oct. 27."). A CDP call sheet entitled "Child Call List, 5/16/96," includes the notation that a potential donor should be asked "if they might be able to do $25,000 for a small mtg with the President, you know it's steep, but want to include them in these types of meetings." CDP 00124 [IER Tab 11].

Nonfederal Donations are More Effective than Federal Contributions at Procuring Access for Donors

1.78 Donors give nonfederal money, rather than federal money, to political parties because large nonfederal donations are more effective for obtaining access to federal officials than several small federal contributions. See, e.g., Hickmott Decl., Ex. A. ¶ 47 [DEV 6-Tab 19] (explaining that "[i]f you want to get to know Members of Congress, or new Members of Congress, it is more efficient to write a $15,000 check to the DSCC and to get the opportunity to meet them at the various events than it would be to write fifteen $1,000 checks to fifteen different Senators, or Senators and candidates."); Andrews Decl. ¶ 14 [DEV 6-Tab 1] (stating that "a properly channeled $100,000 corporate soft money donation to the national Republican or Democratic congressional campaign committees can get the corporate donor more benefit than several smaller hard dollar contributions by that corporation's PAC. Although the donations are technically being made to political party committees, savvy donors are likely to carefully choose which elected officials can take credit for their contributions. If a Committee Chairman or senior member of the House or Senate Leadership calls and asks for a large contribution to his or her party's national House or Senate campaign committee, and the lobbyist's client is able to do so, the key elected official who is credited with bringing in the contribution, and possibly the senior officials, are likely to remember the donation and to recognize that such big donors' interests merit careful consideration."); Randlett Decl. ¶ 13 [DEV 8-Tab 32] ("[Soft money donors] get a level of attention that a $1,000 hard money donor never will. Even someone who wrote 25 $1,000 hard money checks but no soft money is going to get much less attention and appreciation than someone who wrote one large soft money check."); Rozen Decl. ¶ 12-13 [DEV 8-Tab 33] ("Donors to the national parties understand that if a federal officeholder is raising soft money--supposedly `non-federal' money--they are raising it for federal uses, namely to help that Member or other federal candidates in their elections. Many donors giving $100,000, $200,000, even $1 million, are doing that because it is a bigger favor than a smaller hard money contribution would be. That donation helps you get close to the person who is making decisions that affect your company or your industry. That is the reason most economic interests give soft money, certainly not because they want to help state candidates and rarely because they want the party to succeed.... The bigger soft money contributions are more likely to get your call returned or get you into the Member's office than smaller hard money contributions."); Geschke Decl. ¶ 9 [DEV 6-Tab 14] ("Corporations and individuals can use soft money donations to get special access to federal office holders and at least the appearance of influence on issues that are important to them financially or politically. Hard money contributions do not provide the same opportunities for influence on federal policy as soft money donations do."); Simon Decl. ¶ 16 [DEV 9-Tab 37] ("Because few people can afford to give over $20,000 or $25,000 to a party committee, those people who can will receive substantially better access to elected federal leaders than people who can only afford smaller contributions or can not afford to make any contributions."); Kirsch Decl. ¶ 9 [DEV 6-Tab 14] ("Corporations and individuals can use soft money donations to get special access to federal office holders and at least the appearance of influence on issues that are important to them financially or politically. Hard money contributions do not provide the same opportunities for influence on federal policy as soft money donations do.").

1.78.1 In a memorandum to a high-level Fortune 100 company executive outlining a proposed $1.4 million nonfederal fund budget for FY1999, members of the Company's governmental affairs staff noted that

[w]ith both houses of Congress and the White House hotly contested this cycle, the importance of soft money, and consequently the efforts by the parties to raise even more soft money, is greater than ever. On the Democratic side, [our company's] advocates have already fielded soft money calls from House Democratic Leader Gephardt, House Democratic Caucus Chairman Frost, Democratic Congressional Campaign Chairman Kennedy, and Democratic Senatorial Campaign Chairman Torricelli. Similar contacts to raise soft money have been made by Republican congressional leaders.

In addition to the increased pressure from party and congressional leaders, it is clear that our direct competitors and potential competitors are weighing in with big soft money donations.

Memorandum from a Fortune 100 company's legislative advocate to a highlevel executive, dated March 4, 1999, [citation sealed]. The nonfederal budget request was justified by a number of rationales:

First, due to a significant [sic] in the number of events scheduled by the parties for their donors, the number of opportunities... to develop relationships with elected and administration officials has never been greater. As the parties compete more vigorously for soft money dollars, the number and quality of events for interacting with both the leadership and rank and file Members has been greatly increased. Between the six main committees (DNC, DSCC, DCCC. RNC, NRCC, NRSC) there are events both in and out of [Washington, D.C.] almost every day of the week.

Two,... the parties have become increasingly reliant on soft money and both feel it is critical to their success in coming elections. Not surprisingly, this has made the parties especially sensitive to which companies contribute soft money, and which don't. As noted, our traditional competitors continue to contribute large amounts of soft money and as [our company] expands its business into new areas (e.g. cable, internet, networking) it faces new types of competitors, primarily in the computer and high tech industry, that also contribute heavily.

Failure to maintain our soft money participation during this election cycle – given the heightened scrutiny those contributions will receive in the current competitive climate – may give our new and traditional competitors an advantage in Washington.

Three, the next Administration will also be determined in this election cycle. Consequently, we will be asked to use soft money contributions to support both national parties at an even greater level than during a non-Presidential year. Funding for the national conventions and next year's national party committee requests should be anticipated in this year's budget and contributed when appropriate to foster the development of relationships with the key officials of the next Administration. Finally, because both parties will be working to influence redistricting efforts during the next two years, we anticipate that we will be asked to make soft money contributions to these efforts. Redistricting is a key once-a-decade effort that both parties have very high on their priority list. Given the priority of the redistricting efforts, relatively small soft money contributions in this area could result in disproportionate benefit. Id.

Donors Often Contribute Nonfederal Funds to Both Major Political Parties in Order to Ensure Access and Prevent Retaliation

1.79 The record shows that many large contributors give to both political parties. Forty of the top 50 nonfederal money donors in 1996 donated to both political parties, as did 35 of the top nonfederal money donors in 2000. Mann Expert Report at Tbls. 5-6 [DEV 1-Tab 1]. Most of the top nonfederal contributors who gave to only one political party were either state political party committees (four in 1996) or labor unions (three in 1996, seven in 2000). Id. Those involved in political fundraising explain that this practice is a result of donors' desire to have special access to lawmakers from both parties, and also out of concern that if the contributor gives to only one political party the other will perceive an imbalance and punish the donor.

Evidence from the corporate world demonstrates that major nonfederal donors give to both political parties in order to ensure access to lawmakers from both political parties. CEO Randlett comments that "[a]s a donor with business goals, if you want to enhance your chances of getting your issues paid attention to and favorably reviewed by Members of Congress, bipartisanship is the right way to go. Giving lots of soft money to both sides is the right way to go from the most pragmatic perspective."

Internal corporate documents corroborate Mr. Randlett's testimony. An Eli Lilly and Company memorandum shows that the company was concerned about a Washington Post article listing it as a significant donor to the Republican party. The memorandum discusses contributions being made at Democratic party events occurring in the near future. The memorandum concludes with: "[___] has talked to the White House and we can get back into this by giving $50[,000] - 100,000 to the DNC– says they would be pleased with this." ODP0018-00463 [DEV 69-Tab 48]; see also id. at ODP0018-00461 (the Washington Post article), ODP0018-00462 (photocopy of part of the article with handwritten note stating "Dems are upset. Calls from employees about imbalance. White House stays Dem we are in trouble"). Similarly, an internal Fortune 100 company memorandum states the following:

Attached please find an invoice from the NRSC for [our company's] commitment of $25,000 in soft money. As you know, this request was approved during the PAC meeting this week. We recently approved a soft money donation to the New Dominion Fund, requested by Senator Chuck Robb. At the time this request was approved, the team determined that our support in this race would be equal. The request attached balances [our company's] support in this race, as a contribution to the RNSC has been requested by George Allen. Internal memorandum (Oct. 26, 2000), [citation sealed].

One lobbyist explains that many "companies and associations that do give soft money typically contribute to both parties... because they want access to Members on both sides of the aisle." Rozen Decl. ¶ 7 [DEV 8-Tab 33]. Members of Congress are also cognizant that donors give nonfederal funds to both parties. As former Senator Bumpers observes: "Giving soft money to both parties, the Republicans and the Democrats, makes no sense at all unless the donor feels that he or she is buying access." Bumpers Decl. ¶ 15; see also id. (noting that the "business community makes such donations quite often").

Individual donors also acknowledge that nonfederal money donors give to both parties in order to ensure special access to federal lawmakers on both sides of the aisle. Hiatt Decl. ¶ 12 [DEV 6-Tab 18] (testifying "[p]eople give soft money donations to both parties because they want to make sure they have access regardless of who's in the White House, filling the Senate seat, or representing the Congressional district."); Buttenwieser Decl. ¶ 23 [DEV 6-Tab 11] ("I am aware that some soft money donors, such as some corporations, give substantial amounts to both major political parties. Based on my observations, they typically do this because they have a business agenda and they want to hedge their bets, to ensure they get access to office holders on the issues that are important to them. This occurs at the national and state levels."); Geschke Decl. ¶ 10 [DEV 6-Tab 14] ("In my view, donors who give large amounts of soft money to both major parties are probably hedging their bets in trying to get influence. They may feel that influence with one party is not sufficient to achieve their financial or policy goals, especially now that power in Congress is pretty evenly balanced.").

1.80 The political parties are aware of this practice, as evidenced by an Ohio Republican Party document titled "Why People Give," which lists "so that they will have access to whoever is the winner" as one reason behind contributions. RNC OH 0418778 [IER Tab 1.H]. The record demonstrates that they have parlayed this knowledge into leverage which they use to pressure donors who have given to the other party to give to theirs as well. CEO Randlett explains how the political parties take advantage of this situation:

[I]f you're giving a lot of soft money to one side, the other side knows. For many economically-oriented donors, there is a risk in giving to only one side, because the other side may read through FEC reports and have staff or a friendly lobbyist call and indicate that someone with interests before a certain committee has had their contributions to the other side noticed. They'll get a message that basically asks: "Are you sure you want to be giving only to one side? Don't you want to have friends on both sides of the aisle?" If your interests are subject to anger from the other side of the aisle, you need to fear that you may suffer a penalty if you don't give. First of all, it's hard to get attention for your issue if you're not giving. Then, once you've decided to play the money game, you have to worry about being imbalanced, especially if there's bipartisan control or influence in Washington, which there usually is. In fact, during the 1990's, it became more and more acceptable to call someone, saying you saw he gave to this person, so he should also give to you or the person's opponent. Referring to someone's financial activity in the political arena used to be clearly off limits, and now it's increasingly common. Randlett Decl. ¶ 12 [DEV 8-Tab 32].

1.80.1 Plaintiffs maintain that the record "establishes that organizations and individuals may give to both parties because they desire to be actively involved in the political process." RNC Proposed Findings of Fact ¶ 119 (citing Bello Dep. at 39 [stating that it is "traditional" for PhRMA to "support the convention activities for both Republicans and the Democrats" because "we are good civic participants"] and Herrnson*fn65 Dep. at 495 [DEV 65] [acknowledging "it is possible" that "donors of soft money provide money to political parties because they support some members of... one party, and some members of another party"]). This self-serving statement of a PhRMA representative and Dr. Herrnson's acknowledgment that a hypothetical scenario was possible, support the RNC's contention that "organizations and individuals may give to both parties because they desire to be actively involved in the political process." The extensive testimony and documentary evidence discussed supra, however, shows that the primary reason why entities and individuals do give to both parties is to ensure access to federal lawmakers. Moreover, interests in participating in the political process and an interest in obtaining access to legislators to influence them are neither incompatible nor mutually exclusive.

Empirical Evidence Linking Donations to Corruption

1.81 Experts testifying in this case agree that no study attempting to statistically or empirically link donations to corruption by federal officials is without flaws. However, even if these studies were universally accepted, it is clear that they would be of limited utility for the purposes of this case. As Defendants' expert Thomas Mann notes, "[m]ost of this research has examined the connections between PAC contributions (a surrogate for interested money) and votes in the House and Senate." Mann Expert Report at 32 [DEV 1-Tab 1]. However, as Mann observes, there are a myriad of ways in which groups receive or are denied favors beyond roll-call votes. Members can express public support or opposition in various legislative venues, offer amendments, mobilize support, help place items on or off the agenda, speed or delay action, and provide special access to lobbyists. They can also decline each of these requests. Id. at 33 (citations omitted).

In addition, Mann notes that the currency of campaign contributions extends well beyond PAC contributions to members' campaign committees. These include brokered if not bundled individual contributions, contributions to leadership PACs controlled by members, contributions to parties and candidates in targeted races and informally credited to members, soft-money contributions to parties and section 527 committees connected to members, and direct expenditures on `issue ad' campaigns. Id. at 34.

Mann concludes that the "ways and means of potential influence (and corruption) are much more diverse than those investigated in the early scholarly research." Id. at 34.*fn66 Many of these studies also suffer from the fact that the interactions between donations and legislative action are difficult to observe. See, e.g., Sorauf Cross Exam. at 132 [JDT Vol. 31]; see also Appendix ¶ III (for more analysis of these studies).


1.82 The immense quantity of testimonial and documentary evidence in the record demonstrates that large nonfederal contributions provide donors special access to influence federal lawmakers. This access is shown to be coveted by these donors because it provides them the opportunity to have their voices heard and to influence legislation on policy matters of concern to them. Testimony from lobbyists, major donors, federal lawmakers and political party officials, as well as internal political party and corporate documents, shows that donors expect to receive this access, that this expectation is fostered by the political parties and federal lawmakers, and that special access is in fact provided to major donors. Corroborating this evidence is the fact that nonfederal money donors often give to both political parties, which demonstrates that in many cases, large nonfederal donations have less to do with political philosophy than with obtaining access to power. The record also makes clear that the best method of obtaining special access to federal lawmakers is through large nonfederal donations, rather than smaller donations under the federal campaign finance regime.

The political parties have taken advantage of the desire of donors for special access by structuring their entire fundraising programs to entice larger donations with the promise of increased and more intimate access to federal officials. The political parties have also pressured donors to give donations, playing off donors' fears of denial of access or political retribution. From this record it is clear that large donations, particularly unlimited nonfederal contributions, have corrupted the political system. This fact has not been lost on the general public, as is explored infra.

Public Perception of Corruption

1.83 The record demonstrates that the public believes there is a direct correlation between the size of a donor's contribution to a political party and the amount of access to, and influence on, the officeholders of that political party that the donor enjoys thereafter.

1.83.1 A research poll of 1,300 adult Americans conducted by two prominent political pollsters, Mark Mellman*fn67 and Richard Wirthlin,*fn68 finds that the public perceives that large donations as having a corrupting influence on federal officeholders.*fn69 See Mellman and Wirthlin Report [DEV 2-Tab 5].

Mellman and Wirthlin conclude that "[a] significant majority of Americans believe that those who make large contributions to political parties have a major impact on the decisions made by federally elected officials." In addition, Mellman and Wirthlin find that many Americans believe that the "views of these big contributors sometimes carry more weight than do the views of constituents or the best interests of the country." Id. at 6 [DEV 2-Tab 5].

The major findings of their poll include:

ù Seventy-seven percent of Americans believe that big contributions to political parties have at least some impact on decisions made by the federal government. Fifty-five percent thought big contributions had a great deal of impact; 23 percent thought such donations had some impact. Id.

ù Seventy-one percent of Americans "think that members of Congress sometimes decide how to vote on an issue based on what big contributors to their political party want, even if it's not what most people in their district want, or even if it's not what they think is best for the country." Id. at 7.

ù A "large majority (84%) think that members of Congress will be more likely to listen to those who give money to their political party in response to their solicitation for large donations." Id. at 8.

ù "Over two-thirds of Americans (68%)... think that big contributors to political parties sometimes block decisions by the federal government that could improve people's everyday lives." Id. at 8.

ù "[A]bout four in five Americans think a Member of Congress would be likely to give special consideration to the opinion of an individual, issue group, corporation, or labor union who donated $50,000 or more to their political party (81%) or who paid for $50,000 or more worth of political ads on the radio or TV (80%). By contrast, only one in four Americans (24%) think that a member of Congress is likely to give the opinion of someone like them special consideration." Id. at 9. The Mellman and Wirthlin Report did not measure the public's understanding of the campaign finance system, and did not ask if the respondents understood the difference between nonfederal and federal donations. See Cross Exam. of Mellman at 31-35 [JDT Vol. 22]. Mellman testifies that the purpose of the poll was to measure the public's perceptions. Id. at 31. According to Plaintiffs' expert, Q. Whitfield Ayres, the public does not understand the distinction between federal and nonfederal donations and is not aware of campaign finance regulations. See Ayres Expert Report ¶ 8(a). Dr. Shapiro, an expert for Defendants, responds that

[t]he public does not need detailed knowledge about... the nuances of existing campaign finance regulations, and the extent to which these regulations are enforced in order to form strong opinions toward campaign finance. The public can easily understand how political donations can lead to political access and influence--how political parties and politicians will pay attention to those who give money to the parties. The public has long questioned the motivations of, and responded with distrust toward labor unions, corporations, special interests more generally, and the government itself. The public is especially troubled and animated by these problems when they become blatantly visible in widely publicized incidents and scandals such as those involving Enron and the large soft money donations to the Democratic Party and the roles played by the Clinton Administration, President Bill Clinton, and Vice President Al Gore. Shapiro Rebuttal Report at 9 [DEV 5-Tab 2] (citations omitted).

Mr. Ayers also comments that his research finds that "every conclusion that the Wirthlin-Mellman report reached about `large' or `big' contributions and contributors applies with equal force to the new, hard money limits in the BCRA." Ayers Rebuttal Report at 4 [RNC Vol. VIII]. Mr. Wirthlin notes that what Mr. Ayers' research demonstrates is that "in the eyes of most Americans... $50,000 is considered [a] large" contribution, but comments that if that is the case then the nonfederal donations given in the past which far exceed $50,000 would be viewed as even larger. Wirthlin Cross Exam. at 148, 155 [JDT Vol. 32].

And, "as you move up the scale, there's going to be pretty close to unanimity on what constitutes big in the form of campaign contributions." Mellman Cross Exam. at 69 [JDT Vol. 22].

1.83.2 The results of the Mellman-Wirthlin study are confirmed by the research of Robert Shapiro, a professor at Columbia University, who analyzed public perception of nonfederal money contributions to political parties by reviewing all publicly available opinion survey data sources. Shapiro Expert Report at 7-8. [DEV 2-Tab 6]. The survey data Shapiro examined was comprised mostly of telephonic opinion polls. Id. at 8. Specifically, Shapiro focused on "public opinion data based on responses to surveys that were fielded since 1990" to determine the public's answers to several questions, including two questions which read: "To what degree has the public perceived corruption in politics connected to the influence of money and large campaign donations?" and "What have been the public's perceptions and opinions toward the substantial political donations in the form of soft money contributions to political parties?" Id. at 3, 8. According to Shapiro, poll results show that the "public has opposed large unregulated soft money contributions to political parties [and] that the public has been troubled by large soft money donations." Id. at 13. In addition, Shapiro concluded that the poll data showed "that a substantial proportion of the public has perceived corruption in the political system, and that we have been losing ground." Id. at 11.

1.83.3 Former and current Members of Congress testify that their constituents believe that these large contributions to parties present an appearance of corruption. See Simpson Decl. ¶ 14 DEV 9-Tab 38] (testifying that "[b]oth during and after my service in the Senate, I have seen that citizens of both parties are as cynical about government as they have ever been because of the corrupting effects of unlimited soft money donations."); 144 S. Cong. Rec. S1041 (Feb. 26, 1998) (statement of Sen. Baucus) (stating that "[p]eople tell me they think that Congress cares more about `fat cat special interests in Washington' than the concerns of middle class families like theirs. Or they tell me they think the political system is corrupt."); 146 Cong Rec. S4262 (May 23, 2000) (statement of Sen. Feingold) (stating that "[t]he appearance of corruption.... We all know it's there. We hear it from our constituents regularly. We see it in the press, we hear about it on the news."); Letter from Representative Asa Hutchinson to RNC Chairman Nicholson dated July 9, 1997, ODP0014-00003-4 (declining to support Nicholson's proposed campaign finance legislation because Hutchinson had to balance Nicholson's concerns "with a concern of my constituents which is that their influence in politics is being diminished by the abuses of soft money.... If our party is unable to enact meaningful campaign finance reform while we're in control of Congress, then I believe this failure to act will result in more cynicism and create a growing lack of confidence in our efforts."); Congressman Meehan Decl. in RNC ¶¶ 15-17 [DEV 66-Tab 4] (stating that "there is a strong feeling in my [Congressional] district that soft money is corrupting the political process and influencing elections. My constituents feel that very large donations to the party committees, on the order of twenty-five, fifty or one hundred thousand dollars from one company or individual, have a corrupting influence."); Rudman Decl. ¶ 13 [DEV 8-Tab 34] ("The soft money system not only distorts the legislative process, it breeds deep cynicism in the minds of the public. I know this from my own experience in talking to citizens and voters over the years.").

1.83.4 Large donations made by groups or persons with an interest in pending legislative activity, even if not corrupting, create an appearance of corruption, especially when the donations are given in close proximity to legislative action on bills of interest to the donors. Senator McCain states:

While the [generic drug] bill was pending [in 2002], the NRSC and NRCC held a large gala fundraiser to raise almost $30 million in largely soft money contributions, a substantial portion from pharmaceutical companies. According to newspaper reports, among the largest contributors to the gala were GlaxoSmithKline PLC ($250,000), PhRMA ($250,000), Pfizer ($100,000), Eli Lilly & Co. ($50,000), Bayer AG ($50,000) and Merck & Co. ($50,000). McCain Decl. ¶ 11 [DEV 8-Tab 29].

[T]here's an appearance [of corruption] when there's a million dollar contribution from Merck and millions of dollars to your last fundraiser that you held, and then there is no progress on a prescription drug program. There's a terrible appearance there. There's a terrible appearance when the Generic Drug Bill, which passes by 78 votes through the Senate, is not allowed to be brought up in the House shortly after a huge fundraiser with multimillion dollar contributions from the pharmaceutical drug companies who are opposed to the legislation. McCain Dep. [JDT Vol. 18] at 174-175.

Senator Feingold commented that

members of the National Consumer Bankruptcy Coalition, an industry lobbying group made up of the major credit card companies such as Visa and Mastercard and associations representing the Nation's big banks and retailers, gave nearly $4.5 million in contributions to parties and candidates.... Some of the campaign contributions from these companies seem to be carefully timed to have a maximum effect. It is very hard to argue that the financial largess of this industry has nothing to do with its interest in our consideration of bankruptcy legislation. For example, on the very day [in 1998] that the House passed the conference report last year and sent it to the Senate, MBNA Corporation gave a $200,000 soft money contribution to the National Republican Senatorial Committee. 145 Cong. Rec. S14067-68 (Nov. 5, 1999); see also Feingold Dep. at 67 [JDT Vol. 6].

"[A] $200,000 contribution [was] given 2 days after the House marked up a bankruptcy bill by MBNA. OK, it is not illegal. Conceded. Maybe it is not even corrupt, but it certainly has the appearance of corruption to me and I think to many people." 145 Cong. Rec. S12593 (Oct. 14, 1999) (statement of Sen. Feingold). Senator Feingold has also stated that "[t]he appearance of corruption is rampant in our system, and it touches every issue that comes before us." 147 Cong. Rec. S2446 (Mar. 19, 2001) (statement of Sen. Feingold); see also 147 Cong. Rec. S3248-49 (April 2, 2001) (statement of Sen. Levin) ("[P]ermitting the appearance of corruption undermines the very foundation of our democracy -- the trust of people in the system.").

1.83.5 The Defendants have also submitted a substantial number of press reports which suggest that large soft money donations present the appearance of corruption. See, e.g., Jackie Koszczuk, Soft Money Speaks Loudly on Capitol Hill This Season, Cong. Q., June 27, 1998, at 1736; Jill Abramson, Money Buys A Lot More Than Access, N.Y. Times, Nov. 9, 1997, at 4; Jane Mayer, Inside the Money Machine, The New Yorker, Feb. 3, 1997, at 32; Don Van Atta, Jr. and Jane Fritsch, $25,000 Buys Donors `Best Access to Congress', N.Y. Times, Jan. 27, 1997, at A1; see also Krasno and Sorauf Report at 19-20 DEV 1-Tab 2]; Primo Rebuttal ¶ 7 [2 PCS] (stating that "[t]he news media reinforces this view [that money distorts the political process] by portraying the political process as being driven by campaign contributions...."). Senator Rudman states

Almost every day, the press reports on important public issues that are being considered in Congress. Inevitably, the press draws a connection between an outcome and the amount that interested companies have given in soft money.... Even if a Senator is supporting a position that helps an industry for reasons other than that the industry gave millions to his party, it does not appear that way in the public eye. Rudman Decl. ¶ 11 [DEV 8-Tab 34].

1.83.6 High-level political contributors testify that large nonfederal donations corrupt the political system or present an appearance of corruption. See, e.g., Hassenfeld Decl. ¶ 19 [DEV 6-Tab 17] ("It is obvious to me that large soft money donations do buy access, that they can influence federal policy, and that they are corrupting to federal officeholders and to donors. Additionally, these unlimited donations to political parties pose a far greater risk than do hard money contributions to candidates of at least the appearance, if not the reality, of special interest influence on federal policy."); Kirsch Decl. ¶ 15 [DEV 7-Tab 23] ("[T]he current system of financing federal elections permits corruption to flourish."); Buttenwieser Decl. ¶ 30 [DEV 6-Tab 11] ("Large soft money donations can create at least the appearance of influence on federal policy making... ").

A national survey of major congressional donors conducted in 1997 found that a majority were critical of the campaign finance system and supportive of reform. John Green, Paul Herrnson, Lynda Powell, and Clyde Wilcox, Individual Congressional Campaign Contributors: Wealthy, Conservative and Reform-Minded (1998), FEC 101-0282, 0283[DEV 45-Tab 110]. Seventy-six percent of those surveyed believed the campaign finance system is either "broken and needs to be replaced," or "has problems and needs to be changed." Id. Three-quarters of those surveyed supported a "ban on large `soft money' donations." Id. at 0291.

1.83.7 Plaintiff's expert La Raja notes that

[O]ne cannot ignore the central claim of reformers that the cashbased electoral environment fosters mistrust of the political system. Observing the amounts of money raised and spent in campaigns makes the average American skeptical that the political process is fair. Such doubts raise questions about political legitimacy. Even if politicians are not corrupt – and there has been minimal evidence to prove this claim – there is certainly the appearance of corruption....

It does not help matters that parties contribute to the arms race in campaigns. By using soft money parties raise the ante in elections. Candidates feel vulnerable to parties and interest groups that sponsor issue ads so they raise more money than ever. Campaign costs increase as each side fights to a draw.... Thus, the foraging for campaign money contributes to the perspective that money corrupts the system. La Raja Cross Exam. Ex. 3 at 144-45 [JDT Vol. 25].


1.84 It is clear that the effect of large contributions on the political process has not been lost on the public. The polling surveys entered into the record provide powerful proof that the presence of large donations create the appearance of corruption in the eyes of the majority of Americans. Although Plaintiffs point out that BCRA's new federal limits are considered by Americans to constitute large contributions, the fact remains that nonfederal donations made under FECA were often much larger and therefore would be seen by Americans as more corrupting. Major donors who participate and witness nonfederal fundraising believe that these donations present at the very least an appearance of corruption. Members of Congress have seen first-hand the cynicism these large, unregulated donations have bred in the minds of their constituents, and acknowledge the appearance of corruption inherent in large contributions made by those interested in legislation as the legislation is being considered by federal lawmakers. While it is not clear whether or not the public understands the exact contours of the campaign finance system and the nonfederal/federal money distinction, it is clear they view large contributions as corrupting.

Nonprofit Groups' Involvement in Federal Elections

1.85 Political parties and federal candidates work with nonprofit groups on campaign activities, and they have raised nonfederal money for, and directed and transferred nonfederal money to nonprofit groups for use in activities that affect federal elections.

1.85.1 The national party committees direct donors to donate nonfederal money to certain interest groups that then use such funds for broadcast issue advertisements and other activities that influence federal elections. For example, Steve Kirsch testifies that the national Democratic Party played an important role in his decision to donate soft money to "certain interest groups that were running effective ads in the effort to elect Vice-President Gore, such as NARAL. The assumption was that the funds would be used for television ads or some other activity that would make a difference in the Presidential election." Kirsch Decl. ¶ 10 [DEV 7-Tab 23]; see also Buttenwieser Decl. ¶ 18 [DEV 6-Tab 11] ("I estimate that, over the last decade, I have given roughly $2 million to interest groups engaged in political activity, including non-profit corporations.... [because I believe the field work they do] can have important effects on political campaigns. I decide which of these groups to give to primarily on my own, though I have also discussed with DSCC personnel which groups are effective at these grassroots activities.").

1.85.2 The RNC, NRSC, and NRCC have all made nonfederal donations to the National Right to Life Committee, an independent group that assists Republican candidates through "issue advocacy" activities. Resps. Nat'l Right to Life Pls. To Defs.' First Interrogs., No. 3 [DEV 10-Tab 5]; see also RNC0065691A, RNC0065691 [DEV Supp.-Tab 3] (October 18, 1996, letter from the Republican National State Elections Committee to National Right to Life with enclosed $500,000 donation, stating in part "[y]our continued efforts to educate and inform the American public deserves recognition"). After the NRSC's 1994 donation, then-NRSC Chairman Senator Phil Gramm told the Washington Post that the party made this donation because it knew the funds would be used on behalf of several specific Republican candidates for the Senate, saying he had "made a decisionàto provide some money to help activate pro-life voters in some key states where they would be pivotal to the election." Id. at 5975; see also RNC 0373365 [IER Tab 31] (letter from the Republican National State Elections Committee to the American Defense Institute notifying the group of a $300,000 donation from the RNSEC's "nonfederal component" to assist the group's "efforts to educate and inform Americans living overseas of their civic responsibilities."); RNC 0373370, 0373376, 0373381 (three letters to Americans for Tax Reform all dated in October 1996, providing the group $1,000,000, $2,000,000, and $600,000 donations in recognition of the group's "efforts to educate and inform the American public); Thompson Comm. Report at 4013 (majority report) ("In addition to direct contributions from the RNC to nonprofit groups, the senior leadership of the RNC helped to raise funds for many of the coalition's nonprofit organizations."); id. at 5934 (minority report) ("[T]he Committee received evidence indicating that both political parties suggested to supporters that they make contributions to sympathetic groups), 5983 ("Tax-exempt `issue advocacy' groups and other conduits were systematically used to circumvent federal campaign finance laws".)

1.85.3 The DNC has also made contributions to nonprofit groups to be used on activities that affect federal elections. Marshall Decl. ¶ 9 [DEV 8-Tab 28] (DNC official attesting that "[i]nfrequently, the DNC also makes small contributions to outside groups such as non-profit voter registration and get out the vote organizations focusing their efforts on minority and low-income communities, to assist with these groups' important work in empowering minority and low-income citizens.").

1.85.4 The National Right to Work Committee "pays for its advertising from its treasury, [and] admits that certain Members of Congress or Executive Branch Officials have generally encouraged financial support for the Right to Work cause and, specifically, for the support of NRTWC in advocating for these issues, through lobbying as well as issue advertising." Resp. Nat'l Rt. Work Comm. to Defs. First RFAs, No. 17 [DEV 12-Tab 2].

1.85.5 Members of Congress assist nonprofit groups raise funds for the purpose of affecting national elections. Congressman Ric Keller signed a Club for Growth fundraising letter dated July 20, 2001 which credited the Club for his own 2000 electoral success and assured potential donors that their money would be used to "help Republicans keep control of Congress." CFG00208-10 [DEV 130-Tab 5]; see also NRW-2812 [DEV 129-Tab 2] (letter from Congressman Pete Sessions asking the recipient to meet with National Right to Work Committee personnel regarding the Committee's effort to "stop Big Labor from seizing control of Congress in November"). Nonprofit groups have influenced the outcome of federal elections. See Pennington Decl. ¶¶ 15, 19 [DEV 8-Tab 31] (discussing the Club for Growth's impact on the 2000 Congressional election in Florida's Eighth District); see also infra Findings ¶ ? (Bumpers) ("Members or parties sometimes suggest that corporations or individuals make donations to interest groups that run "issue ads." Candidates whose campaigns benefit from these ads greatly appreciate the help of these groups.").

1.85.6 Ms. Bowler testifies that most committees that are organized to support or oppose ballot measures in California are organized as 501(c)(4) committees. She states that virtually all of the ballot measure committees in California engage in activity that can be characterized as get-out-the-vote activity under BCRA. Bowler Decl. ¶ 30 [3 PCS]. This fact is undoubtedly known to the CDP as summary judgment was entered against the state political party for its nonfederal contribution to a ballot measure committee which was not reported to the FEC and spent almost entirely on voter registration activities. See FEC v. CDP, No. S-97-0891 (E.D. Cal. Oct. 14, 1999) (order granting summary judgment). Judge Garland E. Burrell, Jr. of the Eastern District of California found that on the basis of this conduct the CDP had "violated the FECA and the allocation rules by funding a generic voter drive that targeted Democrats." Id. at 15. This example shows that ballot measure committees engage in voter mobilization efforts that affect federal elections, see also Findings ¶¶ 1.28, 1.32, and that permitting nonfederal donations and solicitations to such groups would allow political parties to circumvent BCRA.

1.85.7 "Virtually every member of Congress in a formal leadership position has his or her own 527 group.... In all, Public Citizen found 63 current members of Congress who have their own 527s. Another 38 members of Congress have a stake in the Congressional Black Caucus [] 527. 527 groups are also popular with influential congressional committee chairmen.... And 527s are increasingly popular with other members of Congress, who want to be more influential...." Public Citizen Congress Watch, Congressional Leaders' Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, at 6 [DEV 29-Tab 3]. "For congressional leaders, 527 groups appear to collect about as much money as their campaign committees and often as much as their leadership PACs." Id. at 9. "There are basically two kinds of 527s active in federal politics: those that exist to promote certain politicians (which Public Citizen calls `politician 527s') and those that exist to promote certain ideas, interests and partisan orientations in election campaigns.... Politician 527s generally serve as soft money arms of `leadership PACs,' which incumbents use to aid other candidates and otherwise further their own careers. Like the campaign committees of members of Congress, leadership PACs can receive only `hard money' contributions, which are limited in amounts and may not come directly from corporations or unions. Politician 527s use their soft money mainly to sponsor events that promote their own careers, help create a `farm team' of successful state and local candidates, and spur partisan `get-out-the-vote (GOTV)' efforts." Id. at 6. Many donors to Member 527 organizations donate with the intent of influencing federal elections. For example, Peter Buttenwieser testified that in early 2002 he donated $50,000 to a 527 organization, Daschle Democrats, which ran broadcast ads in South Dakota supporting Senator Tom Daschle in response to the attacks that had been made against him. Mr. Buttenwieser stated: "I was willing to do this because I felt that the attacks were hurting Senator Daschle and Senator Tim Johnson's re-election campaign as well." Buttenwieser Decl. ¶ 20 [DEV 6-Tab 11]. Twenty-seven industries (including individuals, such as executives, associated with the industries) contributed $100,000 or more in just a single year to the top 25 politician 527 groups. These industries accounted for 52 percent of all contributions to the top 25 politician 527s. The top 10 industries contributing were: computers/Internet, securities & investments, lawyers/law firms, telephone utilities, real estate, TV/movies/music, air transport, tobacco, oil & gas, and building materials and equipment. Top corporate contributors included AT&T, SBC Communications, Philip Morris, Mortgage Insurance Companies of America, Clifford Law Offices, U.S. Tobacco and American Airlines. Overall, only 15 percent of total contributions to the top 25 politician 527's came in amounts of less than $5,000. Democratic party committees and unions also contributed over $100,000 to the top politician 527s. In fact, Democratic party committees (mainly the DNC) were the single largest contributor to politician 527s. Almost all of this money (81 percent) went to the Congressional Black Caucus 527. Public Citizen Congress Watch, Congressional Leaders' Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, at 10–11 [DEV 29-Tab 3].

1.85.8 According to Kathleen Bowler of the CDP, Section 527 organizations include political clubs. The CDP has contributed to these groups "to assist [them] with very basic administrative and organizational costs, as well as for voter registration activities." Bowler Decl. ¶ 31. Bowler attests that these groups "traditionally engaged in grass-roots GOTV activity, they are not engaged in direct activities in connection with federal elections." Id. Similarly,

CRP for many election cycles has provided and paid for partisan voter registration, through its Operation Bounty program in which Republican County Central Committees, Republican volunteer organizations and Republican candidates for state and federal office may participate, and through supplementary paid voter registration drives. Most of these participating ...

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