No. 19-234

In the Supreme Court of the United States

LIBERTARIAN NATIONAL COMMITTEE, INC.,

PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

JACOB S. SILER

Attorney

Federal Election Commission

Washington, D.C. 20463 

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I) 

QUESTIONS PRESENTED

1. Whether the Free Speech Clause of the First 

Amendment forbids the application of federal campaigncontribution limits to a particular bequest that has not

been shown to be part of a corrupt exchange. 

2. Whether Federal Election Campaign Act amendments enacted in 2014, which allow national party committees to accept contributions beyond the otherwise applicable limit to defray specific categories of expenses, violate

the Free Speech Clause.
(III) 

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction.................................................................................... 1

Statement ...................................................................................... 2

Argument..................................................................................... 12

Conclusion ................................................................................... 27

TABLE OF AUTHORITIES

Cases:

Bread Political Action Comm. v. FEC, 

455 U.S. 577 (1982).............................................................. 21

Buckley v. Valeo, 424 U.S. 1 (1976)............................. passim

CAO v. FEC (In re Cao), 619 F.3d 410 (5th Cir. 2010), 

cert. denied, 562 U.S. 1286 (2011) ..................................... 21

California Medical Ass’n v. FEC:

641 F.2d 619 (9th Cir. 1980), aff’d, 453 U.S. 182 

(1981)........................................................................... 21

453 U.S. 182 (1981).......................................................... 14

Citizens United v. FEC, 558 U.S. 310 (2010).......... 10, 14, 15

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986).............................................................. 14

FEC v. National Right to Work Comm., 

459 U.S. 197 (1982).............................................................. 14

Libertarian Nat’l Comm., Inc. v. FEC, 

930 F. Supp. 2d 154 (D.D.C. 2013) ................................ 7, 19

McConnell v. FEC, 540 U.S. 93 (2003) ....................... passim

McCutcheon v. FEC, 572 U.S. 185 (2014) ........... 2, 14, 15, 16

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)...... 11, 23, 24

Republican Nat’l Comm. v. FEC, 616 F.2d 1 

(2d Cir.), aff’d, 445 U.S. 955 (1980) ................................... 21

United States v. Williams, 504 U.S. 36 (1992) ................... 20
IV

Cases—Continued: Page

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), 

cert. denied, 136 S. Ct. 895 (2016)....................................... 2

Williams-Yulee v. Florida Bar, 

135 S. Ct. 1656 (2015) ......................................................... 22

Yamaha Motor Corp., U.S.A. v. Calhoun, 

516 U.S. 199 (1996).............................................................. 19

Constitution, statutes, and regulation:

U.S. Const.:

Art. III.......................................................................... 8, 13

Amend. I........................................................7, 9, 12, 16, 21

Act of July 19, 1940, ch. 640, § 13(a), 54 Stat. 770 ................ 2

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 ........................................ 4

Federal Election Campaign Act Amendments 

of 1974, Pub. L. No. 93-443, Tits. I, IV, §§ 101, 

403-408, 88 Stat. 1263-1268, 1291-1297 ............................... 3

Federal Election Campaign Act Amendments 

of 1976, Pub. L. No. 94-283, 90 Stat. 475:

sec. 102(d)(2), 90 Stat. 478 ................................................ 4

sec. 112(2), § 320(a)(1)(B), 90 Stat. 487............................ 3

Federal Election Campaign Act of 1971, 52 U.S.C. 

30101 et seq. (Supp. V 2017)................................................. 3

52 U.S.C. 30101(11) ........................................................... 6

52 U.S.C. 30110...........................................8, 19, 20, 21, 25

52 U.S.C. 30116(a)(1)......................................................... 6

52 U.S.C. 30116(a)(1)(B) (Supp. II 2014) ........................ 5

52 U.S.C. 30116(a)(1)(B) ................................................... 6

52 U.S.C. 30116(a)(9) (Supp. II 2014).............................. 5

52 U.S.C. 30116(a)(9)(A) (Supp. II 2014) ...................... 23

52 U.S.C. 30116(a)(9)(A)-(C) ............................................ 5

52 U.S.C. 30116(a)(9)(B) (Supp. II 2014) ...................... 23
V 

Statutes and regulation—Continued: Page

52 U.S.C. 30116(a)(9)(C) (Supp. II 2014) ...................... 23

52 U.S.C. 30125(a) ............................................................. 5

52 U.S.C. 30125(b)............................................................. 5

Hatch Political Activity Act, ch. 410, 53 Stat. 1147 .............. 2

2 U.S.C. 431 (e)(1)(A) (Supp. IV 1974)................................... 3

26 U.S.C. 9008(i) (Supp. II 2014)............................................ 5

28 U.S.C. 1292(b) ................................................................... 19

11 C.F.R. (2002):

Section 100.7(b)(12)........................................................... 4

Section 100.7(b)(20)........................................................... 4

Miscellaneous:

84 Fed. Reg. 2504 (Feb. 7, 2019)............................................ 6

Federal Election Comm’n:

Advisory Op. 1983-13, Fed. Election Camp. Fin. 

Guide (CCH) ¶ 5727 (Sept. 26, 1983) ......................... 6

Advisory Op. 1999-14, Fed. Election Camp. Fin. 

Guide (CCH) ¶ 6294 (July 16, 1999)........................... 6

Advisory Op. 2006-24, Fed. Election Camp. 

Fin. Guide (CCH) ¶ 6512 (Oct. 20, 2006) ................... 4

Advisory Op. 2015-05, Fed. Election Camp. Fin. 

Guide (CCH) ¶ 6715 (Aug. 11, 2015).......................... 6

Investigation of Improper Activities in Connection 

with 1996 Federal Election Campaigns, S. Rep. 

No. 167, 105th Cong., 2d Sess. (1998) ................................. 4

Press Release, FEC, Statistical summary of 

24-month campaign activity of the 2015-2016 election cycle (Mar. 23, 2017), https://www.fec.gov/ 

updates/statistical-summary-24-month-campaignactivity-2015-2016-election-cycle/ ..................................... 18
VI

Miscellaneous—Continued: Page

The Final Report of the Select Comm. on 

Presidential Campaign Activities, 

S. Rep. No. 981, 93d Cong., 2d Sess. (1974)....................... 3

 
(1) 

In the Supreme Court of the United States

No. 19-234

LIBERTARIAN NATIONAL COMMITTEE, INC., PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App. 

1a-80a) is reported at 924 F.3d 533. The opinion of 

the district court (Pet. App. 81a-196a) is reported at 

317 F. Supp. 3d 202. The order of the district court (Pet. 

App. 197a-199a) is unreported. The opinion of the 

district court denying the Federal Election Commission’s 

motion to dismiss (Pet. App. 200a-217a) is reported at 

228 F. Supp. 3d 19.

JURISDICTION

The judgment of the court of appeals was entered on 

May 21, 2019. The petition for a writ of certiorari was filed 

on August 19, 2019. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
2 

STATEMENT

1. “For the past 40 years,” this Court’s “campaign 

finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption” while ensuring “that the Government’s efforts do 

not have the effect of restricting the First Amendment 

right of citizens to choose who shall govern them.” 

McCutcheon v. FEC, 572 U.S. 185, 227 (2014) (plurality 

opinion). One way that citizens exercise that right is to

organize political parties, which in turn nominate candidates to run for office. Congress has recognized, however, that contributions to political-party committees 

have sometimes been used to effect actual or apparent 

quid-pro-quo exchanges, and it has addressed that risk

by imposing limits on contributions to those committees.

a. In the late 1930s, representatives of the Democratic National Committee pressured government contractors to buy the party’s souvenir convention books at 

exorbitant prices in exchange for continuing government business. See Wagner v. FEC, 793 F.3d 1, 11-12 

(D.C. Cir. 2015) (en banc), cert. denied, 136 S. Ct. 895 

(2016); Pet. App. 152a-153a. Shortly thereafter, as part 

of the Hatch Political Activity Act, ch. 410, 53 Stat. 1147,

Congress imposed a limit of $5000 per year on contributions to national political parties. See Act of July 19, 

1940, ch. 640, § 13(a), 54 Stat. 770. 

b. The Watergate scandal and the election campaign

of 1972 featured several “deeply disturbing examples” 

of large campaign contributions designed “to secure a 

political quid pro quo from current and potential office 

holders.” Buckley v. Valeo, 424 U.S. 1, 26-27 & n.28 

(1976) (per curiam) (emphasis omitted). For example, 

lawmakers determined that national Republican Party 
3 

committees were involved in funneling funds from the 

dairy industry to President Nixon’s reelection campaign, after which President Nixon and his Attorney 

General took actions that favored that industry. The 

Final Report of the Select Comm. on Presidential Campaign Activities, S. Rep. No. 981, 93d Cong., 2d Sess. 

615, 738-739 (1974); see id. at 1205, 1209 (views of Sen. 

Weicker). 

In 1974, Congress responded to those and other 

practices by amending the Federal Election Campaign 

Act of 1971 (FECA), 52 U.S.C. 30101 et seq.,

1 to limit an 

individual’s contribution to a candidate to $1000 per 

election, and by amending the public-financing system 

for presidential-election campaigns to include funds for 

nominating conventions. See Federal Election Campaign Act Amendments of 1974 (1974 Amendments), 

Pub. L. No. 93-443, Tits. I, IV, §§ 101, 403-408, 88 Stat. 

1263-1268, 1291-1297. In Buckley, the Court largely upheld those provisions. See 424 U.S. at 23-35, 85-109. In 

1976, Congress imposed a limit of $20,000 per year on

an individual’s contribution to “the political committees 

established and maintained by a national political 

party.” Federal Election Campaign Act Amendments 

of 1976 (1976 Amendments), Pub. L. No. 94-283, sec.

112(2), § 320(a)(1)(B), 90 Stat. 487. 

c. Donations that fell within the original statutory

definition of a “‘contribution’”—i.e., donations “made 

for the purpose of * * * influencing the nomination for 

election, or election, of any person to Federal office,” 

2 U.S.C. 431(e)(1)(A) (Supp. IV 1974)—came to be 

known as “hard money.” See McConnell v. FEC, 540 

 

1

 Unless otherwise indicated, all references in this petition to Title 

52 of the United States Code are to Supplement V (2017) to the 2012 

edition. 
4 

U.S. 93, 122 (2003). Donations falling outside that definition, known as “soft money,” were not limited in 

amount and were left largely unregulated by FECA. 

See id. at 123. Soft money included donations “specifically designated for the purpose of defraying any cost 

incurred with respect to the construction or purchase of 

any office facility which is not acquired for the purpose 

of influencing the election of any candidate in any particular election for Federal office.” 1976 Amendments, 

sec. 102(d)(2), 90 Stat. 478; see 11 C.F.R. 100.7(b)(12) 

(2002). Soft money also included donations to pay the 

expenses of recounts. See 11 C.F.R. 100.7(b)(20) (2002); 

FEC Advisory Op. 2006-24, Fed. Election Camp. Fin. 

Guide (CCH) ¶ 6512, at 17,266-17,268 (Oct. 20, 2006) 

(National Republican Senatorial Committee). And 

FECA permitted individuals to make unlimited softmoney donations to political parties for activities intended 

to influence state or local elections. See McConnell, 

540 U.S. at 123. 

In 1998, after an extensive investigation, the Senate 

Committee on Governmental Affairs concluded that 

parties’ ability to solicit and spend soft money had 

rendered the limitations on campaign contributions 

ineffective. See Investigation of Improper Activities 

in Connection with 1996 Federal Election Campaigns, 

S. Rep. No. 167, 105th Cong., 2d Sess. 105-165 (1998); 

McConnell, 540 U.S. at 129-132. In addition, a series of 

quid-pro-quo arrangements involving former lobbyist 

Jack Abramoff and former Representative Bob Ney included substantial donations to party committees. Pet. 

App. 160a-164a. In the Bipartisan Campaign Reform 

Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, 

Congress prohibited national political parties and their 

officers from soliciting, receiving, or spending any 
5 

funds outside the federal contribution limitations. See 

52 U.S.C. 30125(a). As a result of those changes, national party committees may no longer use soft money 

to fund office space and recount expenses. The amounts 

that individuals may donate to state and local party 

committees continue to depend in part on the uses to 

which the donated funds will be spent. See 52 U.S.C. 

30125(b); McConnell, 540 U.S. at 161-164. 

d. In two different statutes enacted in 2014, Congress again amended the laws that govern the financing 

of national party committees. In April 2014, Congress 

terminated public financing for presidential nominating 

conventions. See 26 U.S.C. 9008(i) (Supp. II 2014). In 

December 2014, Congress amended FECA to allow individuals to give money to national party committees, 

over and above the contribution limits that would otherwise apply, so long as those funds were placed in one of 

three kinds of “segregated account[s].” 52 U.S.C. 

30116(a)(1)(B) and (9) (Supp. II 2014). 

A party committee may use those segregated accounts to pay for (1) a “presidential nominating convention,” (2) party “headquarters buildings,” and (3) “election recounts and contests and other legal proceedings.” 

52 U.S.C. 30116(a)(9)(A)-(C). The new provisions neither limit expenditures in those categories, nor prohibit

any party from spending its general funds on those 

types of expenses. The new provisions merely allow national party committees to accept additional contributions, beyond the ordinary contribution limits, for those

expenses. Today, as a result of adjustments for inflation, an individual may donate up to $35,500 into a national party committee’s general account, and up to 

$106,500 (i.e., three times the limit for donations into 
6 

the general account) into each of a national party committee’s segregated accounts. See 84 Fed. Reg. 2504, 

2506 (Feb. 7, 2019); 52 U.S.C. 30116(a)(1)(B). 

e. FECA applies to contributions from decedents 

and their estates in the same way that it does to living 

donors. The statute provides that “no person shall make 

contributions” above certain dollar thresholds to candidates or political committees. 52 U.S.C. 30116(a)(1). It 

defines “  ‘person’” to include a variety of entities, including individuals, associations, and “any other organization or group of persons.” 52 U.S.C. 30101(11). Because 

a decedent’s estate falls within the statutory definition 

of “person,” the Federal Election Commission (FEC or 

Commission) has concluded that contributions bequeathed in a will or made through a testamentary trust 

are “subject to the same limitations and prohibitions applicable to the decedent.” FEC Advisory Op. 1999-14, 

Fed. Election Camp. Fin. Guide (CCH) ¶ 6294, at 12,457 

(July 16, 1999) (Council for a Livable World); see FEC 

Advisory Op. 1983-13, Fed. Election Camp. Fin. Guide 

(CCH) ¶ 5727 (Sept. 26, 1983) (National Maritime Union 

Political and Legislative Organization on Watch). 

Where the amount to be contributed exceeds the relevant annual limit, the estate or an independent third 

party (such as a trustee or escrow agent) may retain the 

excess funds and contribute them to the designated recipient in successive years, in amounts that comply with 

the statutory limits, until the full sum is distributed. 

See FEC Advisory Op. 2015-05, Fed. Election Camp. 

Fin. Guide (CCH) ¶ 6715, at 11,977-11,978 (Aug. 11, 

2015) (Shaber). 

2. In 2014, Joseph Shaber, a longtime supporter of 

the Libertarian Party, died. See Pet. App. 180a. Shaber named petitioner Libertarian National Committee 
7 

as a beneficiary of a trust that he had created to distribute his assets upon his death. See ibid. Petitioner routinely “solicits potential contributors to include [it] as a 

beneficiary in donors’ estate planning materials,” and 

it has offered various perks to donors who do so. Id. 

at 184a. Petitioner’s share of the trust was worth 

$235,575.20. Id. at 181a. 

Once petitioner’s share of the trust became available 

in 2015 (after normal delays in administering the estate), the statute and the Commission’s guidance left 

petitioner with a choice. See Pet. App. 180a. Petitioner 

could accept the entire amount of Shaber’s gift at 

once by placing the then-applicable legal maximum of 

$33,400 in its general account, and the remaining 

$202,175.20 in some combination of segregated accounts. Alternatively, petitioner could accept $33,400 in 

its general account at once and place the remaining 

funds in escrow, to be distributed over the course of the 

next several years in accordance with the general limits 

applicable for those years. Petitioner chose the latter 

course. See id. at 182a-183a.

3. In 2016, petitioner sued the Commission, arguing 

that (1) the contribution limits violate the First Amendment as applied to Shaber’s contribution and (2) the limits violate the First Amendment on their face because 

they allow donors to increase the size of their contributions to national party committees, but only if the recipient spends the money on specified categories of expenses. See Pet. App. 2a-3a. With respect to the first 

of those arguments, petitioner acknowledged that it had 

previously litigated the constitutionality of the contribution limits as applied to bequeathed contributions 

generally, and that it had lost that challenge. Id. at 95a104a; see Libertarian Nat’l Comm., Inc. v. FEC, 
8 

930 F. Supp. 2d 154, 166-167 (D.D.C. 2013). As a result, 

petitioner “concede[d] that collateral estoppel foreclose[d]” a challenge to the constitutionality of applying

contribution limits to bequests. Pet. App. 97a n.8. Petitioner accordingly challenged only the application of 

the contribution limits to Shaber’s bequest “in particular.” Id. at 92a. 

The Commission moved to dismiss the complaint for 

lack of Article III standing, but the district court denied

that motion. See Pet. App. 200a-217a. Petitioner invoked a statutory provision that requires district courts 

to “certify all questions of constitutionality of [FECA]” 

in cases brought by certain types of parties “to the 

United States court of appeals for the circuit involved, 

which shall hear the matter sitting en banc.” 52 U.S.C. 

30110; see Pet. App. 197a. The district court made findings of fact and certified three constitutional questions 

to the court of appeals. See Pet. App. 127a-199a.

4. Sitting en banc, the court of appeals held that petitioner had established Article III standing, but it rejected each of petitioner’s contentions on the merits. 

See Pet. App. 1a-80a. 

a. The court of appeals held that petitioner had Article III standing to challenge the contribution limits. 

See Pet. App. 7a-11a. The court rejected the Commission’s argument that petitioner had inflicted its own injury by choosing to place Shaber’s gift in escrow for distribution into its general account over the course of the 

next several years, rather than placing it in its general 

and segregated accounts immediately. Id. at 8a-10a. 

The court stated that petitioner’s injury “stems not 

from its inability to accept the entire bequest immediately (which it could have done), but rather from the 

committee’s ‘inability to accept immediately the entire 
9 

bequest for general expressive purposes’ (which FECA 

prohibits).” Id. at 8a (brackets and citation omitted). 

The court also rejected the Commission’s argument 

that, because petitioner sought only forward-looking relief, a favorable judicial determination would not redress petitioner’s earlier inability to place Shaber’s gift 

in its general account. Id. at 10a. The court explained 

that “much of the money remains tied up in escrow, and 

[the court] most certainly do[es] have authority to invalidate the challenged portions of FECA—which, per the 

escrow agreement, would afford [petitioner] immediate 

access to the remainder of the bequest for all purposes.” 

Ibid.

b. On the merits, the court of appeals first held that 

the application of the contribution limits “specifically to 

Shaber’s bequest” did not violate petitioner’s rights under the First Amendment. Pet. App. 11a; see id. at 11a26a. The court explained that, although this Court has 

applied “closely drawn scrutiny” to determine whether 

a statute violated a donor’s right to contribute money, 

neither this Court nor the court of appeals has determined the appropriate level of scrutiny for laws “limiting a recipient’s right to receive a donation” after the 

donor has died. Id. at 15a. The court assumed without 

deciding that the appropriate level of scrutiny is 

“closely drawn scrutiny,” rather than some more lenient

standard of review. Id. at 15a-16a.

Applying closely drawn scrutiny, the court of appeals 

rejected petitioner’s First Amendment challenge. The 

court observed that petitioner had “[d]isclaim[ed] any 

‘categorical challenge to the limitation of all bequests’”; 

had “concede[d] ‘the theoretical corruption potential of 

bequests’”; and had “decline[d] to dispute” the district 

courts’ factual findings regarding the “threat of quid 
10

pro quo corruption” posed by bequests. Pet. App. 19a20a (quoting Pet. CA. Br. 30, Pet. C.A. Reply Br. 13). It 

explained that petitioner had “instead ask[ed] [the 

court] to conduct an ‘as-applied’ inquiry ‘narrowly focused on one particular bequest’: ‘whether Shaber’s bequest, specifically, warrants government limitation.’” 

Id. at 20a (quoting Pet. C.A. Br. 30, 35). It also noted 

that the district court’s certification order was limited 

to that case-specific question. Id. at 25a. 

The court of appeals rejected petitioner’s contention 

that the government could not restrict Shaber’s bequest 

because that particular bequest “was not corrupt.” Pet. 

App. 20a. The court explained that “restrictions on direct contributions are preventative, because few if any 

contributions to candidates will involve quid pro quo arrangements.” Id. at 21a (quoting Citizens United v. 

FEC, 558 U.S. 310, 357 (2010)). It observed that this 

Court has upheld such prophylactic restrictions because 

it is “difficult to isolate suspect contributions.” Ibid.

(quoting Buckley, 424 U.S. at 30). The court of appeals 

further explained that, “even if through some omniscient power courts could separate the innocent contributions from the nefarious, an appearance of corruption 

would remain.” Id. at 22a. 

c. The court of appeals also upheld the system of 

segregated accounts that Congress had established in 

2014. See Pet. App. 26a-41a. The court rejected petitioner’s argument that the 2014 amendments were subject to strict scrutiny. Id. at 30a-34a. The court explained that this Court has applied strict scrutiny to 

limits on expenditures, but has applied closely drawn 

scrutiny to limits on contributions. Id. at 31a. It further 

explained that the system of segregated accounts “imposes no expenditure limit” but instead regulates the 
11

permissible amounts that may be contributed. Id. at 

32a. Petitioner contended that, under Reed v. Town of 

Gilbert, 135 S. Ct. 2218 (2015), the system of segregated 

accounts was subject to strict scrutiny because it imposed content-based restrictions on speech. The court

of appeals rejected that argument, explaining that nothing in Reed purported to overrule the Court’s precedents distinguishing between contribution limits and 

expenditure limits. Pet. App. 32a-33a.

Applying closely drawn scrutiny, the court of appeals 

held that the segregated-account limits were constitutional. Pet. App. 34a-41a. The court observed that 

the 2014 amendments “increased the total amount individuals may contribute to a political party,” and that 

petitioner’s argument “sounds very much like a grievance with Congress’s decision to raise contribution limits.” Id. at 35a. The court added that “legitimate interest[s]” supported Congress’s decision to “allow[] donors 

to make larger contributions into each of the new 

dedicated-purpose accounts.” Id. at 36a. The court explained that the “new, higher limit on contributions to 

pay for presidential nominating conventions” gives political parties “a tool for making up for [the] shortfall” 

created by the end of “public funding for such conventions.” Ibid. The court viewed the increased segregatedaccount limits for party headquarters and for recounts 

and other legal proceedings as “[e]qually benign.” Id. 

at 37a. The court explained that “Congress could have 

permissibly concluded that unlike contributions that 

can be used for, say, television ads, billboards, or yard 

signs, contributions that fund mortgage payments, utility bills, and lawyers’ fees have a comparatively minimal 

impact on a party’s ability to persuade voters and win 
12

elections”—and, thus, pose a reduced threat of corruption. Ibid. 

d. Three judges of the court of appeals concurred in 

part and dissented in part. Judge Griffith agreed with 

the majority that the application of the contribution limits to bequeathed contributions is constitutional, but he 

concluded that Congress had not sufficiently justified 

the scheme of segregated accounts. Pet. App. 42a-53a. 

Judge Griffith declined, however, to address the question whether an increase in the amounts that individuals 

can contribute for general party activities, or severance 

of the increased limits for specified party activities that 

the 2014 amendments created, was the appropriate 

remedy for any constitutional violation. See id. at 52a 

& n.2. Judge Katsas, joined by Judge Henderson, 

agreed with the majority that the scheme of segregated 

accounts is constitutional, but concluded that the contribution limits are unconstitutional as applied to “any of 

three nested categories: bequests, uncoordinated bequests, and Shaber’s bequest.” Id. at 62a.

ARGUMENT

Petitioner contends (Pet. 26-31) that the application 

of federal contribution limits to Shaber’s bequest violates the First Amendment. Petitioner argues (Pet. 31-

35) that the segregated-account provisions that Congress enacted in 2014 violate the First Amendment as 

well. The court of appeals, reflecting an accurate interpretation of this Court’s precedents, correctly rejected 

those arguments, and its decision does not conflict with 

any decision of another court of appeals. In addition, 

this case would be an unsuitable vehicle for considering 
13

the first question that petitioner presents. Further review is not warranted.2

 

1. As the court of appeals correctly held, the federal 

limits on campaign contributions are constitutional as 

applied to Shaber’s bequest. 

a. This case comes to this Court on the understanding 

—established in previous litigation between petitioner 

and the Commission, and conceded by petitioner below

—that Congress may constitutionally apply campaign 

contribution limits to bequests generally. See Pet. App. 

19a-20a, 97a n.8. The only issue before the Court is 

whether Shaber’s bequest must be exempted from 

those concededly valid limits because that particular bequest was not corrupt. As the court of appeals recognized, nothing in this Court’s precedents suggests that

a particular contribution is constitutionally exempt

from federal contribution limits simply because it has 

not been shown to involve a corrupt exchange. 

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), 

this Court accepted the premise that “most large contributors do not seek improper influence over a candidate’s position or an officeholder’s action.” Id. at 29. 

For two reasons, the Court nonetheless upheld those 

limits. First, the Court explained that, because it is 

“difficult to isolate suspect contributions,” contribution

limits are permissible preventive measures. Id. at 30. 

Second, and “more importantly,” the Court explained 

that “the interest in safeguarding against the appearance of impropriety requires that the opportunity for 

abuse inherent in the process of raising large monetary 

contributions be eliminated.” Ibid. (emphasis added). 

 

2

 The Commission argued below that petitioner lacked Article III 

standing. The court of appeals rejected that contention, see Pet. 

App. 7a-11a, and the Commission does not renew it here. 
14

In subsequent decisions, this Court has reaffirmed 

both of those rationales for contribution limits. It has repeatedly described such limits as “a prophylactic measure” against corruption—meaning that such limits will 

necessarily apply to some contributions that do not involve corrupt bargains. McCutcheon v. FEC, 572 U.S. 

185, 221 (2014) (plurality opinion); see, e.g., Citizens 

United v. FEC, 558 U.S. 310, 357 (2010) (“[R]estrictions 

on direct contributions are preventative, because few if 

any contributions to candidates will involve quid pro 

quo arrangements.”); FEC v. Massachusetts Citizens 

for Life, Inc., 479 U.S. 238, 260 (1986) (explaining that 

“a broad prophylactic rule” is justified “[i]n light of the 

historical role of contributions in the corruption of the 

electoral process”); FEC v. National Right to Work 

Comm., 459 U.S. 197, 210 (1982) (“Nor will we secondguess a legislative determination as to the need for prophylactic measures where corruption is the evil feared.”). 

The Court likewise has repeatedly reaffirmed Congress’s 

authority to use contribution limits to combat “the appearance of corruption.” Citizens United, 558 U.S. at 

359 (“Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption.”); see, e.g., California Med.

Ass’n v. FEC, 453 U.S. 182, 194-195 (1981) (opinion of 

Marshall, J.) (The Court in Buckley “reasoned that contribution restrictions * * * served the important governmental interests in preventing the * * * appearance 

of corruption.”). Petitioner’s contention—that a particular contribution, whether made in the form of a bequest or otherwise, is constitutionally entitled to an exemption from a contribution limit simply because that 

particular bequest is not corrupt—is therefore inconsistent with this Court’s decisions, including decades of 
15

precedents confirming Congress’s authority to impose 

contribution limits as prophylactic measures. 

Petitioner also does not explain how its alternative

regime would operate in practice. Petitioner appears to 

contemplate (Pet. 29) that, whenever a decedent leaves 

a political contribution in his will, the government or the 

courts would conduct a case-by-case investigation (including “adversarial and third-party discovery”) to 

determine whether that particular contribution was 

part of a corrupt bargain. This Court has cautioned, 

however, that campaign-finance restrictions should 

generally operate through clear rules, not through “intricate case-by-case determinations.” Citizens United, 

558 U.S. at 329. 

b. Petitioner’s contrary arguments reflect an erroneous understanding of this Court’s decisions. 

Petitioner faults (Pet. 26-27) the court of appeals for 

applying closely drawn scrutiny rather than strict scrutiny in reviewing its as-applied challenge. But this 

Court has consistently drawn a distinction beween limits on campaign expenditures and limits on campaign 

contributions. It has subjected expenditure limits to 

“exacting scrutiny,” explaining that such limits “‘necessarily reduce the quantity of expression by restricting 

the number of issues discussed, the depth of their exploration, and the size of the audience reached.” 

McCutcheon, 572 U.S. at 197 (plurality opinion) (quoting Buckley, 424 U.S. at 19) (brackets omitted). In contrast, it has subjected contribution limits to “‘closely 

drawn’” scrutiny, “a lesser but still ‘rigorous standard 

of review,’” because such limits “‘permit the symbolic 

expression of support evidenced by a contribution but 

do not in any way infringe the contributor’s freedom to 
16

discuss candidates and issues.’” Ibid. (quoting Buckley, 

424 U.S. at 21, 25, 29) (brackets omitted).

To be sure, this Court has issued those decisions in 

cases that involved contributions by living people, not 

testamentary bequests. But petitioner identifies no 

sound justification for the counterintuitive theory that 

contributions by people who have died receive more

constitutional protection than contributions by people 

who are still alive. Petitioner seizes on this Court’s observation that contribution limits ordinarily “may bear 

more heavily on the associational right than on freedom 

to speak,” and it emphasizes that this associational right 

is not implicated here. Pet. 26 (quoting McConnell v. 

FEC, 540 U.S. 93, 135 (2003)). But the fact that Shaber’s death eliminates the associational interest that a 

contributor could ordinarily assert does not cause petitioner’s own interest in receiving above-limit amounts 

for general party activities to be greater than it otherwise would be.3

 

 

3 Petitioner faults the court of appeals for “assum[ing], without 

deciding, that closely drawn scrutiny applies to the imposition of 

contribution limits on Shaber’s bequest.” Pet. App. 16a; see Pet. 26. 

But the court took that approach in response to the Commission’s 

argument that a more lenient standard of review should apply because Shaber had died and therefore had no continuing First 

Amendment right of association. Pet. App. 13a-16a; see Pet. 26 (acknowledging that contribution limits “do not implicate associational 

rights at all when applied against testamentary bequests, because 

the dead do not engage in political association”). The court ultimately concluded that, because the application of FECA’s contribution limits to Shaber’s bequest would be upheld under either of the 

two potentially applicable standards of review, it was unnecessary 

for the court to choose between them. That approach was correct. 
17

Petitioner also asserts (Pet. 27) that, even under 

closely drawn scrutiny, the government lacks an interest in limiting Shaber’s bequest, because “[d]eath disrupts all individual capabilities in this world—including

the ability to corrupt a political party.” As an initial 

matter, that argument is directed to an issue that is not 

properly before this Court: the constitutionality of applying contribution limits to bequests in general, as opposed to Shaber’s bequest in particular. In any event, 

the argument is unpersuasive. As the court of appeals 

explained, the “donor’s death simply imposes a sequencing constraint on a quid pro quo exchange”; a donor can 

receive “political favors now for the promise of money 

later.” Pet. App. at 17a-18a. “And even that constraint 

evaporates in the case of corrupt donors seeking favors 

for their survivors,” because “the donor’s surviving 

friends and family remain all too capable of accepting 

political favors that their deceased benefactor may have 

pre-arranged for their benefit.” Id. at 18a. 

Petitioner likewise objects (Pet. 27-29) that the government has failed to present evidence that bequests 

can have corrupting effects. Again, that objection concerns an issue that is not properly before this Court: 

the constitutionality of limiting testamentary contributions in general. And again, that objection fails on its 

own terms. Petitioner conceded below that bequests 

“raise valid anticorruption concerns,” and the court of 

appeals accepted that concession. Pet. App. 19a (citation omitted). The district court also made factual findings that “nothing prevents a living person from informing the beneficiary of a planned bequest about that bequest”; that political committees “‘could feel pressure 

to . . . ensure that a (potential) donor is happy with the 
18

committee’s actions lest [that donor] revoke the bequest’”; and that such pressure could cause a “‘national 

party committee, its candidates, or officeholders * * * 

[to] grant that individual political favors.’” Id. at 172a, 

174a, 175a (citations omitted; first set of brackets in 

original). Petitioner “decline[d] to dispute” those findings. Id. at 19a.

c. Petitioner’s first question presented is not sufficiently important to warrant this Court’s intervention. 

The Commission’s records indicate that estates contributed $3.7 million between 1978 and August 2017. Pet. 

App. 175a. Although that figure is likely underinclusive 

due to the lack of uniformity in the reporting of bequeathed contributions, id. at 175a-176a, the true 

amount is undoubtedly a very small portion of the more 

than $4.8 billion contributed to all candidates and party 

committees during the most recent presidential election 

cycle alone, see Press Release, FEC, Statistical summary

of 24-month campaign activity of the 2015-2016 election 

cycle (Mar. 23, 2017), https://www.fec.gov/updates/

statistical-summary-24-month-campaign-activity-2015-

2016-election-cycle/. The decision below, moreover, addresses only the constitutionality of limiting Shaber’s 

contribution, not the constitutionality of limiting bequeathed contributions in general. That narrow, casespecific holding does not warrant this Court’s review. 

d. This case would also be an unsuitable vehicle for

addressing the question presented. In the course of addressing the narrow question regarding the constitutionality of applying contribution limits to Shaber’s bequest, petitioner makes a series of broader contentions 

about bequests in general—for instance, that the government lacks an interest in limiting testamentary contributions, and that the government has failed to show 
19

that such contributions pose a risk of corruption. See 

Pet. 27-29. Several obstacles stand in the way of this 

Court’s addressing those arguments.

First, the district court’s certification order is limited to the question whether “imposing annual contribution limits against the bequest of Joseph Shaber violate[d] the First Amendment.” Pet. App. 198a. Petitioner brought this case to the en banc D.C. Circuit under a special statutory provision that allows district 

courts to certify “questions of constitutionality of 

[FECA]” to the court of appeals. 52 U.S.C. 30110. Because Section 30110 by its terms authorizes the certification only of particular “questions,” it limits the court 

of appeals “to addressing only the matters * * * certified.” Pet. App. 24a-25a. The “matter * * * certified”

in this case is the constitutionality of applying the contribution limits to Shaber’s bequest, not the constitutionality of applying the limits to bequests in general.4

Second, petitioner previously litigated the constitutionality of contribution limits as applied to bequests in 

general, and it lost that challenge. See Libertarian 

Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 166-167 

(D.D.C. 2013). Petitioner “concede[d]” below that “collateral estoppel” (issue preclusion) prevented it from 

relitigating those issues. Pet. App. 97a n.8. 

Third, this Court’s ordinary practice “precludes a 

grant of certiorari * * * when ‘the question presented 

 

4 In this respect, Section 30110 differs from statutes that authorize the certification for appellate review of particular orders. 

See, e.g., 28 U.S.C. 1292(b) (authorizing the certification of certain 

interlocutory “order[s]”); Yamaha Motor Corp., U.S.A. v. Calhoun, 

516 U.S. 199, 205 (1996) (explaining that, under the text of Section 

1292(b), “it is the order that is appealable, and not the controlling 

question identified by the district court”) (citation omitted). 
20

was not pressed or passed upon below.’” United States 

v. Williams, 504 U.S. 36, 41 (1992) (citation omitted). 

Petitioner did not press any broader challenge to the 

contribution limits in the court of appeals. To the contrary, petitioner “ask[ed] [the court] to conduct an ‘asapplied’ inquiry ‘narrowly focused on one particular bequest’”; framed the question before the court as “‘whether Shaber’s bequest, specifically, warrants government 

limitation’”; “[d]isclaim[ed] any ‘categorical challenge 

to the limitation of all bequests’”; and explained that its 

“‘as-applied Shaber challenge . . . does not contest any 

contribution limit’s general sweep.’” Pet. App. 20a, 24a

(quoting Pet. C.A. Br. 30, 35; Pet. C.A. Reply Br. 11). 

Relying on petitioner’s statements, the court “decline[d] 

to venture” beyond the narrow question “whether applying FECA’s annual contribution limts specifically to 

Shaber’s bequest violates [petitioner’s] First Amendment rights.” Id. at 11a, 25a. 

Fourth, petitioner conceded below that bequests in 

general “raise valid anticorruption concerns.” Pet. App. 

19a. And it “decline[d] to dispute” the district court’s 

factual findings, including findings “that amount to substantial evidence demonstrating the government’s anticorruption interest in regulating bequests.” Ibid. 

Those concessions preclude petitioner’s current argument that the government lacks the constitutional authority to limit Shaber’s testamentary contribution because “[t]he dead cannot perform the ‘winks and nods’ 

of quid pro quo policing.” Pet. 28 (citation omitted).

e. The decision below does not conflict with any decision of another court of appeals. And, contrary to petitioner’s suggestion (Pet. 36), the standard for certifying questions under Section 30110 would not prevent 

other circuits from addressing the application of FECA 
21

contribution limits to testamentary bequests. Section 

30110’s procedures fully apply outside the D.C. Circuit, 

and litigants in other circuits have frequently invoked 

the statute. See, e.g., CAO v. FEC (In re Cao), 619 F.3d 

410, 414-415 (5th Cir. 2010) (en banc), cert. denied, 

562 U.S. 1286 (2011); California Med. Ass’n v. FEC, 

641 F.2d 619, 622-623 (9th Cir. 1980) (en banc), aff’d, 

453 U.S. 182 (1981); Republican Nat’l Comm. v. FEC, 

616 F.2d 1, 1-2 (2d Cir.) (en banc), aff’d, 445 U.S. 955 

(1980). And even where the Section 30110 procedure is 

unavailable, litigants may invoke “the usual remedies”

under “the federal-question jurisdiction granted the 

federal courts.” Bread Political Action Comm. v. FEC, 

455 U.S. 577, 584-585 (1982).

2. Petitioner’s First Amendment challenge to the 

system of segregated accounts that Congress established in 2014 likewise does not warrant this Court’s review. 

a. The court of appeals correctly held that the 

segregated-account provisions are consistent with this 

Court’s precedents. In McConnell, this Court upheld a 

law that prohibited a donor from contributing more 

than $25,000 to a national political party, concluding 

that the law served the government’s interests in preventing the reality and appearance of corruption. See 

540 U.S. at 142-161. Under the segregated-account provisions, a donor may still donate that same sum (adjusted for inflation) to a national political party, and the 

party may use that money for any campaign expenses it 

chooses. The 2014 amendments at issue here simply allow a donor to give additional amounts so long as those 

additional funds are placed in special accounts dedicated to defraying the expenses of conventions, party 

headquarters, and legal expenses. See pp. 5-6, supra. 
22

This Court has held that, in general, “‘the First 

Amendment imposes no freestanding “underinclusiveness” limitation,’” and laws ordinarily do not violate 

that Amendment “by abridging too little speech.” 

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1668 

(2015) (citation omitted). As Judge Katsas explained

below, that principle means that, while Congress must 

identify an “anti-corruption justification” to limit contributions in the first place, it “d[oes] not need a further, 

corruption-related justification to restrict contributions 

for nominating conventions, headquarters, and legal expenses less severely than it restricts other contributions.” Pet. App. 77a. 

In any event, Congress did have justifications for 

loosening the restrictions on contributions that fund 

conventions, headquarters, and legal expenses, while 

maintaining restrictions on other contributions. The 

higher limit for contributions that fund nominating conventions “gives parties a tool for making up for th[e] 

shortfall” that arose when “Congress ended public 

funding for such conventions.” Pet. App. 36a. And the 

“‘dedicated-purpose accounts’” for headquarters and 

legal expenses are “[e]qually benign”: “Congress could 

have permissibly concluded that unlike contributions 

that can be used for, say, television ads, billboards, or 

yard signs, contributions that fund mortgage payments, 

utility bills, and lawyers’ fees have a comparatively minimal impact on a party’s ability to persuade voters and 

win elections.” Id. at 37a (citation omitted). Or, as 

Judge Katsas observed, “Congress could have chosen to 

restrict those contributions less severely * * * simply 

to permit more speech rather than less.” Id. at 77a.

Petitioner suggests that the approach Congress took 

in 2014, by allowing donors to contribute greater 
23

amounts to political parties for use in specified activities, represents an abrupt departure from established 

campaign-finance norms. See Pet. 24 (“[N]ow that the 

D.C. Circuit has blessed content-based spending restrictions on speech, look out.”). In fact, differential 

contribution limits of this sort, under which the amounts 

that an individual can give to a political party committee 

depend in part on the uses to which the donated funds 

may be put, are a longstanding feature of federal 

campaign-finance law. Until BCRA was enacted, softmoney donations that were largely unregulated by federal law could be used for various national-party activities. See McConnell, 540 U.S. at 122-126; pp. 3-4, 

supra.

5

 And the federal statutory limits on contributions to state and local party committees continue to 

vary depending on the ultimate uses of the contributed 

funds. See McConnell, 540 U.S. at 161-164. The feature 

of the 2014 amendments that petitioner finds objectionable is thus consistent with longstanding congressional 

practice. See Pet. App. 32a-33a.

b. Petitioner contends (Pet. 31-32) that the 

segregated-account provisions draw “content-based” 

distinctions that trigger strict scrutiny. Petitioner relies on this Court’s statement Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015), that a law is content-based if it 

 

5 Two of the three national-party activities to which the 2014 increased contribution limits apply—i.e., “headquarters buildings” 

and “election recounts,” 52 U.S.C. 30116(a)(9)(B) and (C) (Supp. II 

2014)—could have been financed with unregulated soft money under the pre-BCRA regime. See p. 4, supra. For the third (“presidential nominating convention[s],” see 52 U.S.C. 30116(a)(9)(A)

(Supp. II 2014)), national party committees received public funding 

until 2014. See p. 4, supra. 
24

“defin[es] regulated speech by particular subject matter, * * * function[,] or purpose.” Id. at 2227. But the 

distinctions drawn by the segregated-account provisions are not based on content, as the ability to use the 

segregated accounts to defray expenses does not “depend” on the “communicative content” of any speech. 

Id. at 2224. In any event, even assuming arguendo that 

the distinctions drawn by the segregated-account provisions are properly viewed as content-based, under 

this Court’s decisions, strict scrutiny would still be unwarranted here. 

This Court has long held that restrictions on contributions warrant closely drawn scrutiny rather than

strict scrutiny. It has done so even in analyzing restrictions that defined regulated contributions by reference to the ultimate permissible uses of the contributed 

funds. In Buckley, for example, the Court applied 

closely drawn scrutiny to a law that restricted contributions “made for the purpose of influencing * * * a general election for any federal office.” 424 U.S. at 23 (emphasis added). And in McConnell, the Court upheld a 

federal statute that imposed differential limits on contributions to state and local party committees depending on the uses to which the contributed funds would be 

put. 540 U.S. at 171-173 (upholding statutory scheme 

that imposed a limit of $10,000 on funds used for general 

expenses; a separate limit of $10,000 on funds used for 

voter registration, get-out-the-vote efforts, and other 

generic campaign activities; and no federal limit on 

funds used for nonfederal expenses). 

Petitioner contends (Pet. 32) that the issue of content 

discrimination was neither brought to this Court’s attention nor ruled upon in the cases just discussed. That 
25

is incorrect. In Buckley, the Libertarian Party and others argued that limits on contributions to candidates 

were “a regulation on the content as well as the quantity 

of political communication” and therefore could be justified only by a “compelling governmental interest.” 

Appellants Reply Br. at 19, 53, Buckley, supra 

(No. 75-436). The Court rejected that argument. Buckley, 424 U.S. at 23. Petitioner likewise was a party to 

McConnell, and it argued that BCRA’s restrictions discriminated against political parties in a manner “similar 

to that from content-based regulation.” Political Parties Br. at 92, McConnell, supra (No. 02-1727) (citation 

omitted). By upholding BCRA under closely drawn 

scrutiny, the Court rejected that argument.

c. Petitioner appears to assume that, if the differential contribution limits are found to be unconstitutional, 

the proper remedy would be to increase the limits on 

individual contributions for general party activities. 

See Pet. App. 52a n.2 (Griffith, J., concurring in part 

and dissenting in part). But it is not clear why that remedy, rather than severance of the increased segregatedaccount limits that Congress enacted in 2014, would be

the appropriate response. The one judge below who 

would have held that the “two-tiered scheme” for contributions to national political parties is unconstitutional specifically declined to address that remedial 

question. See id. at 52a. The uncertainty as to whether 

petitioner would derive any tangible benefit from a favorable constitutional ruling provides a further reason 

for this Court to deny review.

d. The decision below does not conflict with any decision of another court of appeals. Although petitioner 

asserts that the standard for certification under Section 
26

30110 would prevent litigation of this issue in other circuits, that assertion is mistaken for the reasons set 

forth above. See pp. 20-21, supra. 

3. Contrary to petitioner’s request (Pet. 37), there is 

no need for the Court to hold this petition pending its 

disposition of Thompson v. Hebdon, petition for cert. 

pending, No. 19-122 (filed July 22, 2019) (Thompson 

Pet.).

The petition in Thompson seeks the Court’s review 

of the question whether Alaska’s campaign contribution 

limits are unconstitutionally low. In a footnote, the 

Thompson petitioners suggest that, if Alaska’s limits 

“really are compatible with this Court’s precedents[] 

* * * then it would be appropriate to reconsider” the 

standard of review applicable to contribution limits. 

Thompson Pet. at 8 n.1. Petitioner has not asserted any 

similar challenge to the federal contribution limits at issue here, which are “no lower than the ceilings the 

Court approved in McConnell.” Pet. App. 14a. Nor 

does petitioner urge the Court to reconsider the standard of review that applies to contribution limits generally. Rather, it argues only that strict scrutiny applies 

to limits on bequests, and to limits that are tied to the 

ultimate uses of contributed funds. There is consequently no meaningful likelihood that the Court’s disposition of Thompson will affect the outcome of this case.
27

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

JACOB S. SILER

Attorney

Federal Election Commission

NOEL J. FRANCISCO

Solicitor General

OCTOBER 2019