NOT YET SCHEDULED FOR ORAL ARGUMENT

____________________

No. 19-5072

____________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

REPRESENTATIVE TED LIEU, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court 

for the District of Columbia 

Case No. 1:16-cv-02201-EGS 

____________________

APPELLANTS’ REPLY IN SUPPORT OF REQUEST TO HOLD 

FEDERAL ELECTION COMMISSION’S MOTION IN ABEYANCE 

Ronald A. Fein

 Counsel of record

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre St #405

Newton, MA 02459

617-244-0234

June 24, 2019

Malcolm Seymour

Benjamin Lambiotte

Brad Deutsch (of counsel)

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

Albert W. Alschuler (of counsel)

Richard Painter (of counsel)

Laurence H. Tribe (of counsel)

Anne Weismann

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 1 of 12
ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................... iii

INTRODUCTION.................................................................................................... 1

ARGUMENT ........................................................................................................... 2

I. The FEC’s belated argument for hypothetical alternative litigation 

distracts from the issues in this case................................................................. 2

II. Deferring resolution of the FEC’s motion for summary affirmance would 

conserve judicial resources............................................................................... 6

CONCLUSION ........................................................................................................ 8

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 2 of 12
iii

TABLE OF AUTHORITIES

Page

Cases

Atchison, Topeka & Santa Fe Ry. Co. v. Peña ................................................5

44 F.3d 437 (7th Cir. 1994) (en banc), aff’d sub nom. Bhd. of Locomotive 

Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 516 U.S. 152 (1996)

Brown v. Bd. of Educ. .....................................................................................4

98 F. Supp. 797 (D. Kan. 1951), rev’d, 347 U.S. 483 (1954)

Gen. Carbon Co. v. Occupational Safety & Health Review Comm’n .............2

854 F.2d 1329 (D.C. Cir. 1988)

Holland v. Nat’l Mining Ass’n.........................................................................5

309 F.3d 808 (D.C. Cir. 2002)

Impro Prods., Inc. v. Block..............................................................................3

722 F.2d 845 (D.C. Cir. 1983)

Janus v. AFSCME............................................................................................4

138 S. Ct. 2448 (2018)

Lieu v. FEC......................................................................................................4

370 F. Supp. 3d 175 (D.D.C. 2019)

SpeechNow.org v. FEC....................................................................1, 2, 3, 4, 5

599 F.3d 686 (D.C. Cir. 2010) (en banc)

Rules, Statutes, Treatises, Misc.

5 U.S.C. § 704 .................................................................................................3

28 U.S.C. § 2401(a) ........................................................................................3

52 U.S.C. § 30109(a)(8)(C).............................................................................3

Circuit Rule 27(d) ...........................................................................................2

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 3 of 12
1

INTRODUCTION

Representative Ted Lieu, Senator Jeff Merkley, and the other appellants

have petitioned for initial en banc hearing in this challenge to SpeechNow.org v. 

FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), which invalidated the Federal 

Election Campaign Act’s limits on contributions to “super PACs” (independent 

expenditure-only political committees).1 The Federal Election Commission urges 

the motions panel to bypass the Circuit’s process for considering petitions for 

hearing en banc by deciding a motion for summary affirmance before the Court has 

decided appellants’ petition.

The panel should allow the en banc process to play out. There is no need for 

speed, and the FEC’s claim that the panel’s action would conserve judicial 

resources is unfounded. 

The FEC has used its reply to advance a new argument it did not present in 

its motion for summary affirmance: that appellants should have filed an entirely 

 1 See Pet. for Init. Hearing En Banc, Doc. No. 1793993 (June 21, 2019).

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 4 of 12
2

different lawsuit (or possibly three) to raise the issues presented here.2 The Court 

should reject the FEC’s invitation to consider distracting collateral questions.

3

ARGUMENT

I. The FEC’s belated argument for hypothetical alternative litigation 

distracts from the issues in this case. 

The FEC now argues that appellants should challenge SpeechNow in a 

different lawsuit that would provide a more “appropriate vehicle” for their 

constitutional claims.

4 The Court should reject—or ignore—this argument.

First, this invitation to consider alternative litigation was not raised in the 

FEC’s motion for summary affirmance. This Court does not permit a movant “by 

way of reply, to expand its arguments.” Gen. Carbon Co. v. Occupational Safety & 

Health Review Comm’n, 854 F.2d 1329, 1330 (D.C. Cir. 1988).

Second, the FEC overstates the availability of alternative procedures. Indeed, 

its position—that, even if SpeechNow was incorrectly decided and even if this 

 2 See FEC’s Reply in Support of its Mot. for Summary Aff. and Opp. to 

Appellants’ Request to Hold the FEC’s Mot. in Abeyance (June 17, 2019) (“FEC 

Response”), Doc. No. 1793228, at 9-11.

3 The FEC was permitted, but not required, to combine its reply in support of its 

motion for summary affirmance with its opposition to appellants’ cross-motion to 

hold the FEC’s request in abeyance. See Circuit Rule 27(d). It may have done so 

because the arguments raised by its reply and its opposition are deeply intertwined.

Appellants address points raised in the FEC’s reply only to the extent that they 

bear on points raised in the FEC’s opposition to appellants’ cross-motion.

4 Id. at 10-11; see also id. at 13-14 (arguing that this action is not suited to present 

the constitutional issue for review en banc).

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 5 of 12
3

Court would recognize the error, the FEC’s dismissal of appellants’ complaint is

not contrary to law because the FEC acted reasonably in relying on the erroneous 

decision—could immunize SpeechNow from reconsideration. As just one example, 

the FEC declares that appellants could challenge the FEC’s 2010 advisory opinion 

acquiescing in SpeechNow.

5 But a final agency action must be challenged within 

six years. 28 U.S.C. § 2401(a); Impro Prods., Inc. v. Block, 722 F.2d 845, 849-50 

& n.8 (D.C. Cir. 1983). The FEC has not explained how a challenger could 

overcome the hurdle posed by the statute of limitations.6 The point is not that no 

alternative form of litigation is available, but rather that addressing that question 

involves distracting issues about non-existent collateral litigation. 

Third, the FEC’s belated proposals for alternative litigation are irrelevant. 

This is not a case under the Administrative Procedure Act requiring appellants to 

demonstrate that “there is no other adequate remedy in a court.” 5 U.S.C. § 704. 

The hypothetical possibility of alternative litigation has no bearing on whether the 

Court may decide that the FEC’s dismissal of this action “is contrary to law.” 52 

U.S.C. § 30109(a)(8)(C). 

 5 FEC Response at 10.

6 Similarly, if appellants had sought a declaratory judgment to construe the 

constitutionality of FECA, the FEC probably would have argued, as it hints in its 

response, that they lacked standing. See FEC Response at 10.

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 6 of 12
4

Fourth, the FEC misstates that standard of review when it suggests that even 

if “SpeechNow was wrongly decided or at odds with Supreme Court precedent,” 

that “simply [would] not support a finding that the FEC acted contrary to law in 

dismissing Lieu’s administrative complaint.”7 As the district court held, the 

“contrary to law” standard requires de novo review in this context. See Lieu v. 

FEC, 370 F. Supp. 3d 175, 183 (D.D.C. 2019). That means that the question is not 

whether the FEC acted reasonably, but whether its decision is correct. Of course, 

as appellants have acknowledged at every stage, SpeechNow remains the law of 

this Circuit. But the “contrary to law” standard does not freeze the law forever by 

requiring an appellate court to ask only whether an administrative agency or lower 

court adhered to precedent as it stood when a case was filed.

A decision may be contrary to law because the precedent itself is contrary to 

law. And a party challenging an appellate precedent often must initiate the 

challenge in a court or agency that is bound by that precedent. The challenge does 

not fail simply because the lower court or agency must adhere to the precedent. 

See, e.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018) (reversing after the district 

court dismissed a complaint in reliance on past precedent, and the court of appeals 

affirmed, because the Supreme Court overruled the precedent); Brown v. Bd. of 

Educ., 98 F. Supp. 797, 800 (D. Kan. 1951) (following Supreme Court precedent 

 7 FEC Response at 14.

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 7 of 12
5

requiring it to uphold racial segregation in schools), rev’d, 347 U.S. 483 (1954) 

(setting aside district court’s ruling, not because the court acted improperly in 

following precedent, but because the precedent itself was contrary to law).

Even in situations where the standard of review is more generous to the 

agency than the standard here, and in which deference could be appropriate, the 

FEC’s argument—that following circuit precedent cannot be contrary to law—is 

inaccurate. In Atchison, Topeka & Santa Fe Railway Co. v. Peña, Judge 

Easterbrook explained that an agency is not entitled to special consideration or 

deference simply because it acquiesced in another circuit court’s decision: 

A party aggrieved by [an] agency’s decision to throw in 

the towel may protest and obtain an independent 

decision. Acquiescence and nonacquiescence are mirror 

images when each produces winners and losers in the 

private sector. If courts review nonacquiescence

decisions without a thumb on the scale in favor of the 

agency’s choice, they must review acquiescence 

decisions independently.

44 F.3d 437, 447 (7th Cir. 1994) (en banc) (Easterbrook, J., concurring), aff’d sub 

nom. Bhd. of Locomotive Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 516 U.S. 

152 (1996); cf. Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 817-18 (D.C. Cir. 

2002) (citing Judge Easterbrook’s analysis favorably). If agencies are not entitled 

to deference for acquiescing in appellate precedent in situations in which deference 

could be appropriate, then the FEC’s acquiescence to SpeechNow should not 

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 8 of 12
6

prevent the Court from reaching the constitutional issue in this case, in which 

review of the FEC’s decision is de novo.

II. Deferring resolution of the FEC’s motion for summary affirmance would 

conserve judicial resources. 

The FEC argues that deciding its motion for summary disposition while a 

petition for initial en banc hearing is pending would conserve resources.8 But a 

more certain way to conserve judicial resources is for the motions panel to stay its 

hand. In due course, the judges in regular active service will resolve the appellants’ 

petition for initial en banc hearing. In the meantime, no deadlines loom, and the 

appellants are not pressing for a briefing schedule. If the active judges vote to grant 

initial en banc hearing, resolution of the FEC’s motion for summary affirmance 

will become unnecessary. The motions panel then could deny both the FEC’s 

motion and appellants’ cross-motion as moot (having expended no effort

considering the merits of the parties’ positions in the meantime). If the active 

judges do not approve initial hearing en banc, the motions panel will be able to 

resolve the FEC’s motion on the basis of the already-completed motion briefing 

(having lost nothing by waiting). 

The FEC maintains that it would be more efficient for the motions panel to 

rule on its motion for summary disposition while the en banc petition is pending.9

 8 FEC Response at 13.

9 Id. at 12.

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 9 of 12
7

But, as the FEC acknowledges, deciding its motion now could lead to a second

petition for rehearing en banc before the appellants’ petition for initial hearing en 

banc has been resolved.10 The FEC also suggests that multiple separate amici (to 

whose participation the FEC has already consented) could move for leave to file 

amicus briefs on such a petition for rehearing—motions that are unnecessary in 

support of the initial petition.11 That would not save anyone any time. 

The FEC claims that, despite all this extra effort involved in deciding its 

motion now, it would still conserve resources because the en banc Court could 

have “the benefit of the panel’s views.”12 But the argument that the Court would 

profit from the panel’s views contradicts the FEC’s claim that the case is “so clear”

that the appellants should not be allowed even to file their own brief on the 

merits.13 The most efficient use of judicial resources here is for the motions panel 

to do nothing until the en banc petition has been decided. 

 10 FEC Response at 13.

11 Id. at 13-14.

12 Id. at 13.

13 Id. at 2.

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 10 of 12
8

CONCLUSION

The motions panel should hold the FEC’s motion for summary affirmance in 

abeyance until the en banc Court has voted on appellants’ petition for initial 

hearing en banc, or the time for requesting such a vote has passed. 

Respectfully submitted, 

/s/ Ronald A. Fein

Ronald A. Fein

John C. Bonifaz 

Ben T. Clements 

FREE SPEECH FOR PEOPLE

1320 Centre St. #405

Newton, MA 02459

(617) 244-0234

rfein@freespeechforpeople.org

Laurence H. Tribe (of counsel) 

Hauser Hall 420

Harvard University*

Cambridge, MA 02138

(617) 495-1767

Albert W. Alschuler (of counsel) 

220 Tuttle Road

Cumberland, ME 04021

(207) 829-3963

Richard Painter (of counsel)

Mondale Hall, Office 318

University of Minnesota Law School*

229 19th Avenue South 

Minneapolis, MN 55455

(612) 626-9707

Malcolm Seymour 

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

100 Wall Street, 20th Floor

New York, NY 10005

(212) 431-8700

mseymour@gsblaw.com

Benjamin Lambiotte

Brad Deutsch (of counsel)

GARVEY SCHUBERT BARER

Flour Mill Building

1000 Potomac Street NW, Suite 200

Washington, DC 20007-3501

(202) 965-7880

Anne Weismann

6117 Durbin Road 

Bethesda, MD 20817

* University affiliation noted for 

identification purposes only.

Attorneys for Appellants

Date: June 24, 2019

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 11 of 12
9

CERTIFICATE OF COMPLIANCE

This response complies with the word limit of Fed. R. App. R. 27(d)(2)(A) 

and Circuit Rule 27(c) because the brief contains 1,623 words, excluding the parts 

of the brief exempted by Fed. R. App. P. 32(f). The response complies with the 

typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements 

of Fed. R. App. P. 32(a)(6) because it uses the proportionally spaced typeface 

Microsoft Word 14-point Times New Roman. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: June 24, 2019

CERTIFICATE OF SERVICE

I hereby certify that on June 24, 2019, I electronically filed the foregoing 

document with the Clerk of Court using the CM/ECF system. I certify that all 

participants in the case are registered CM/ECF users and that service to all persons 

required to be served will be accomplished by the CM/ECF system.

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: June 24, 2019

USCA Case #19-5072 Document #1794217 Filed: 06/24/2019 Page 12 of 12