Carey v. FEC (New 2011)

On January 31, 2011, Retired Rear Admiral James Carey, Kelly Eustis and the National Defense Political Action Committee (collectively, “the Plaintiffs”) filed suit against the FEC. The lawsuit seeks a declaratory judgment that the contribution limits in 2 U.S.C. §§ 441a (a)(1)(C) and 441a(a)(3) violate the First Amendment to the extent such laws prohibit a nonconnected political committee from soliciting and accepting unlimited contributions to one bank account designated for independent expenditures, while maintaining a second, separate bank account designated for source- and amount-limited contributions to candidates and their authorized political committees. Plaintiffs also seek injunctive relief enjoining the Commission from enforcing the above-mentioned provisions as applied to Plaintiffs, and concurrently filed a Motion for Preliminary Injunction.

Background

Plaintiff Admiral Carey is the founder and treasurer of National Defense PAC (“NDPAC”). Kelly Eustis is a registered voter who resides in Sacramento, California. NDPAC is a nonconnected political committee registered with the FEC that raises and spends funds to support candidates for federal office who are military veterans and who agree with NDPAC’s goals.

On August 11, 2010, NDPAC submitted an advisory opinion (AO) request to the FEC asking whether, based on court decisions in Citizens United and SpeechNow [FN1], and the Commission’s conclusions in AOs 2010-09 (Club for Growth) and 2010-11 (Commonsense Ten), it could raise unlimited contributions from individuals, political committees, corporations and unions for the express purpose of making independent expenditures. Simultaneously, NDPAC would raise additional contributions from individuals and political committees subject to the $5,000 per calendar year contribution limit under 2 U.S.C. § 441a(a) in order to make contributions to federal candidates. NDPAC proposed recording and segregating its contributions by type into separate bank accounts. The Commission considered draft responses to the request, but was unable to approve an AO by the required four affirmative votes.

As a result, NDPAC claims that it curtailed its activities during the 2010 election cycle. The committee states that it planned to make independent expenditures targeting several opponents of its endorsed candidates, but the constraints of the $5,000 per year contribution limit prevented it from gathering the necessary resources. NDPAC says it plans to make similar independent expenditures during the 2012 primary and general election periods and claims to have a donor (Mr. Eustis) willing to give $1,300 above the $5,000 statutory limit to fund those expenditures. NDPAC asserts that without the legal authority to solicit unlimited contributions, its speech will be abridged. In addition, the Plaintiffs maintain that NDPAC and Admiral Carey will face a threat of prosecution if they solicit or accept contributions to fund NDPAC’s independent expenditures, and that Mr. Eustis will face a threat of prosecution if he makes contributions above the $5,000 limit to fund NDPAC’s independent expenditures.

Complaint

The Plaintiffs seek a declaratory judgment from the court that the contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to them and to any other supporters who wish to make contributions to NDPAC for its independent expenditures. The Plaintiffs also seek preliminary and permanent injunctions enjoining the FEC from enforcing those provisions against them and against any supporters who wish to make contributions to NDPAC for its independent expenditures. The full text of the complaint is available at http://www.fec.gov/law/litigation/carey_carey_complaint.pdf.

U.S. District Court for the District of Columbia: 1:11-cv-00259-RMC (D.D.C. filed Jan. 31, 2010).

1 Citizens United v. FEC, 130 S.Ct. 876 (2010) and SpeechNow.org v. FEC, 599 F3d 686 (D.C. Cir. 2010).