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Rear Admiral James Carey (Ret.), et al v. Federal Election Commission

May 22, 2012


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Rear Adm. (Ret.) James J. Carey, the National Defense Political Action Committee ("NDPAC"), and Kelly S. Eustis filed this suit together with a motion for preliminary injunction, asking the Court to enjoin the Federal Election Commission ("FEC" or "Commission") from enforcing 2 U.S.C. §§ 441a(a)(1)(C) & 441a(a)(3) as applied to contributions to NDPAC and independent expenditures by NDPAC. The Court granted the injunction. See Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). Subsequently, the parties entered into a consent judgment. As the prevailing party, Plaintiffs now move for costs and attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The motion will be granted in part and denied in part.


A. Federal Election Campaign Law

The Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431 et seq., inter alia, imposes limits on the sources and amounts of contributions*fn1 that may be made by individuals and groups to federal candidates, party committees, and political action committees. Key to assessing these limits is the identity of the receiver of those contributions and the purpose for which contributions are expended. If contributions are directed toward a federal candidate's personal coffers, a candidate's political action committee, or a committee of a political party, they are subject to statutory limits because of the "strong governmental interest in combating corruption and the appearance thereof" and because of the "close relationship between candidates and parties." EMILY's List v. FEC, 581 F.3d 1, 8-9 (D.C. Cir. 2009). Section 441a(a)(1)(C) provides that no person shall make contributions "to any other political committee . . . in any calendar year which, in the aggregate, exceed $5,000." 2 U.S.C. § 441a(a)(1)(C). Section 441a(a)(3) provides:

During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than --

(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates;

(B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to political committees which are not political committees of national political parties.

Id. § 441a(a)(3). All contributions and expenditures made subject to these source and amount limitations are referred to as "hard money." See EMILY's List, 581 F.3d at 27.

Under §§ 441a(a)(1)(C) & 441a(a)(3), there is no distinction made between political committees directly associated with parties/federal candidates and non-connected political action committees.*fn2 No distinction need be made if the non-connected political action committee is merely funneling its contributions to federal candidates, their personal political action committees, or political party committees. See EMILY's List, 581 F.3d at 24--26. However, if a non-connected political action committee is making independent expenditures*fn3 wholly separate from federal candidates or parties, the analysis is different because there is not the same governmental interest in preventingcorruption. See id. at 9--11.

Recent Supreme Court and D.C. Circuit cases have partially invalidated statutory provisions within FECA with respect to limits placed on contributions for independent expenditures in federal election campaigns. See Citizens United v. FEC, 130 S. Ct. 876 (2010); v. FEC, 599 F.3d 686 (D.C. Cir. 2010); EMILY's List, 581 F.3d 1. Contributions for independent expenditures are not limited for this purpose and may be made from a "general treasury account that is not subject to source and amount limits," otherwise known as soft money. See EMILY's List, 581 F.3d at 27. These cases held that limits on soft money contributions used for independent expenditures are unconstitutional because such a limitation violates a contributor's First Amendment right. See generally Citizens United, 130 S. Ct. 876;, 599 F.3d 686; EMILY's List, 581 F.3d 1.*fn4

B. Background

Admiral Carey is the founder and treasurer of NDPAC, a political action committee. NDPAC advocates limited government and enhanced commitment to American's veterans and soldiers. Compl. [Dkt. 1] ¶ 12. It raises and expends funds "in support of candidates for federal office who are military veterans and agree with its values." Id. NDPAC "makes contributions to candidates for federal office up to the applicable limit and makes independent expenditures in support or opposition of candidates." Id. Ms. Eustis is a potential contributor to NDPAC who would like to contribute more than the amount currently allowed toward NDPAC's independent expenditures in federal campaigns. Id. ¶ 13.

On August 11, 2010, Plaintiffs submitted a request for an advisory opinion to the Commission. See 2 U.S.C. § 437f (specifying the procedure for requesting advisory opinions). They sought permission to accept unrestricted donations for independent expenditures into one account so long as contributions to candidates were made and administered with restricted donations from a separate account. On September 17, 2010, FEC issued a draft advisory opinion, Draft A, concluding that contributions to NDPAC made to finance independent expenditures were subject to the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and related regulations. Compl., Ex. B. A few days later, on September 21, the Commission issued an alternative draft advisory opinion, Draft B, concluding that contributions to NDPAC made to finance independent ...

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