ORAL ARGUMENT NOT YET SCHEDULED

No. 19-5072

_______________________________________________

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

_______________________________________________

FEDERAL ELECTION COMMISSION’S MOTION 

FOR SUMMARY AFFIRMANCE

_______________________________________________

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

May 10, 2019

Jacob S. Siler

Attorney

jsiler@fec.gov

Tanya Senanayake

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

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TABLE OF CONTENTS

 Page

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

LEGAL AND FACTUAL BACKGROUND...................................................... 3

I. THE COMMISSION..................................................................................3

II. THE FEDERAL ELECTION CAMPAIGN ACT AND THIS 

COURT’S DECISION IN SPEECHNOW ................................................ 3

III. FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS..................9

IV. LIEU’S ADMINISTRATIVE COMPLAINT AND 

THE ADMINISTRATIVE PROCEEDINGS.......................................... 10

V. PROCEEDINGS BEFORE THE DISTRICT COURT........................... 12

ARGUMENT..................................................................................................... 12

I. STANDARD OF REVIEW..................................................................... 13

II. THE JUDGMENT BELOW SHOULD BE SUMMARILY 

AFFIRMED BECAUSE THE COMMISSION DID NOT ACT 

CONTRARY TO LAW UNDER 52 U.S.C. § 30109(a)(8).................... 13

A. The Conduct at Issue in the Administrative Complaint

Is Governed by This Court’s SpeechNow Decision...................... 14

B. The FEC Permissibly Applied SpeechNow

in Dismissing the Administrative Complaint................................ 15

CONCLUSION.................................................................................................. 19

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TABLE OF AUTHORITIES

Cases Page

Ala. Democratic Conference v. Att’y Gen. of Ala., 838 F.3d 1057 

 (11th Cir. 2016), cert denied sub nom. Ala. Democratic 

 Conference v. Marshall, 137 S. Ct. 1837 (2017)....................................... 17

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................ 4, 6

Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012)............................................. 18

Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d 1172 (D.C. Cir. 1987).............. 13

Citizens United v. FEC, 558 U.S. 310 (2010)............................................ 5, 6, 16

Davis v. FEC, 554 U.S. 724 (2008)......................................................................5

Grant Med. Ctr. v. Hargan, 875 F.3d 701 (D.C. Cir. 2017).............................. 14

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)................................................ 15

Jenkins v. District of Columbia, 2018 WL 3726280 

 (D.C. Cir. July 20, 2018)............................................................................. 13

Long Beach Area Chamber of Commerce v. City of Long Beach,

 603 F.3d 684 (9th Cir. 2010).................................................................. 7, 17

McCutcheon v. FEC, 134 S. Ct. 1434 (2014).......................................................7

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) .................... 7, 17

N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) ....... 7, 16, 17

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)................................................. 15

Republican Party of N.M. v. King, 741 F.3d 1089 (10th Cir. 2013) ............. 7, 16

Sills v. Fed. Bureau of Prisons, 761 F.2d 792 (D.C. Cir. 1985)........................ 13

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ....................... 1, 5, 6, 16

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SpeechNow.org v. FEC, No. 08-248, ECF No. 85

 (D.D.C. Oct. 29, 2010)..................................................................................6

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987).............. 13

Texans for Free Enter. v. Tex. Ethics Comm’n, 

 732 F.3d 535 (5th Cir. 2013)....................................................... 7, 16-17, 17

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997).................................. 17

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)........................ 16

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

 136 S. Ct. 895 (2016).....................................................................................8

Wis. Right to Life State Political Action Comm. v. Barland,

 664 F.3d 139 (7th Cir. 2011).................................................................. 7, 17

Statutes and Regulations

28 U.S.C. § 2412................................................................................................ 18

52 U.S.C. § 30101(4)(A).......................................................................................3

52 U.S.C. § 30101(8)(A)(i)...................................................................................3

52 U.S.C. § 30101(9)(A)(i)............................................................................... 3-4

52 U.S.C. § 30101(17)..........................................................................................4

52 U.S.C. § 30106(b)(1) .......................................................................................3

52 U.S.C. § 30106(c) ....................................................................................... 3, 9

52 U.S.C. § 30107(a)(8)........................................................................................3

52 U.S.C. § 30108(c)(1)(B) ..................................................................................8

52 U.S.C. § 30108(c)(2)........................................................................................8

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52 U.S.C. § 30109(a)(1)................................................................................... 3, 9

52 U.S.C. § 30109(a)(2)................................................................................... 3, 9

52 U.S.C. § 30109(a)(3)........................................................................................9

52 U.S.C. § 30109(a)(4)(A)(i) ..............................................................................9

52 U.S.C. § 30109(a)(6)........................................................................................3

52 U.S.C. § 30109(a)(6)(A)............................................................................... 10

52 U.S.C. § 30109(a)(8)........................................................................................2

52 U.S.C. § 30109(a)(8)(A)............................................................................... 10

52 U.S.C. § 30109(a)(8)(C) ............................................................................... 10

52 U.S.C. § 30109(a)(12)......................................................................................9

52 U.S.C. § 30111(a)(8)........................................................................................3

52 U.S.C. § 30116(a) ............................................................................................4

52 U.S.C. § 30116(a)(1)(C) ..................................................................................4

52 U.S.C. § 30116(f).............................................................................................4

52 U.S.C. § 30119(a)(1)........................................................................................8

11 C.F.R. § 111.4 ..................................................................................................9

Miscellaneous

FEC Advisory Op. 2010-11, 2010 WL 3184269 (July 22, 2010)

 (Commonsense Ten) .....................................................................................7

Conciliation Agreement, FEC Matter Under Review 7099 (Suffolk Constr. 

 Co.), https://www.fec.gov/files/legal/murs/7099/17044430547.pdf............8

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U.S. Court of Appeals for the D.C. Circuit, Handbook of 

 Practice and Internal Procedures................................................................ 13

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INTRODUCTION

Appellee Federal Election Commission (“FEC” or “Commission”) 

respectfully moves for summary affirmance because the parties’ positions are so 

clear that further proceedings would offer no benefit. The decision below correctly 

held that the Commission had permissibly followed the D.C. Circuit’s opinion in 

SpeechNow.org v. FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc), in 

dismissing an administrative complaint filed with the agency by Representative 

Ted Lieu and the other appellants here (collectively “Lieu”). (Addendum (“Add.”)

22-23.) Lieu asserted below that the Commission had acted contrary to law in 

dismissing allegations that ten political committees that make only independent 

expenditures (commonly known as “super PACs”) exceeded the contribution limits 

set forth in the Federal Election Campaign Act (“FECA”). 

However, in SpeechNow, the en banc Court of Appeals had unanimously 

concluded that “the government has no anti-corruption interest in limiting 

contributions to an independent expenditure group” and so the FECA limits at 

issue are unconstitutional in that context. 599 F.3d at 695. Accordingly, the 

Commission unanimously voted to find no reason to believe the groups about 

which Lieu complained had violated the law, and so the agency dismissed the

administrative complaint. The district court determined that the Commission had 

simply followed “binding precedent of the D.C. Circuit.” (Add. 22.) The court

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thus found the agency’s decision not to pursue the administrative respondents 

lawful under the applicable standard of review. 52 U.S.C. § 30109(a)(8). 

It is undisputed that this Court’s en banc ruling in SpeechNow applies 

directly to the conduct Lieu alleged in his administrative complaint. The 

Commission also recognized in its decision that every other circuit court to decide 

this issue — courts in six other circuits — had agreed with SpeechNow. (Add. 

109.) And the Commission acknowledged that the administrative respondents’ 

conduct fell within the safe harbor of a prior advisory opinion that the Commission 

had issued following SpeechNow. (Add. 108.) Therefore, the Commission acted 

lawfully when it dismissed Lieu’s administrative complaint. 

Ultimately, this administrative review action is an attempt to challenge the

correctness of this Court’s SpeechNow decision. But in using the Commission’s 

enforcement review process to do so, Lieu is asking the Court to find that the 

Commission acted contrary to law in declining to apply statutory provisions to 

regulated political groups in a context that SpeechNow held to be unconstitutional, 

and where the groups’ conduct fell within the safe harbor of a Commission 

advisory opinion following that decision. This attempt must fail. 

Because the parties’ positions are so clear as to warrant summary action and 

no benefit would be gained from further briefing and argument, this Court should 

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summarily affirm the district court’s granting of the Commission’s motion to 

dismiss. 

LEGAL AND FACTUAL BACKGROUND

I. THE COMMISSION

The FEC is a six-member independent agency vested with statutory 

authority over the administration, interpretation, and civil enforcement of FECA, 

52 U.S.C. §§ 30101-46. Congress authorized the Commission to “administer, seek 

to obtain compliance with, and formulate policy with respect to” FECA, id.

§ 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry 

out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate 

possible violations of FECA, id. § 30109(a)(1)-(2). The FEC has “exclusive 

jurisdiction” to initiate civil enforcement actions for violations of FECA in the 

United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). Certain actions, 

including many enforcement decisions, require the affirmative vote of at least four 

Commissioners. Id. § 30106(c).

II. THE FEDERAL ELECTION CAMPAIGN ACT AND THIS COURT’S 

DECISION IN SPEECHNOW

FECA defines a “political committee” as “any committee club, association, 

or other group of persons” that receives “contributions” or makes “expenditures” 

“for the purpose of influencing any election for Federal Office” “aggregating in 

excess of $1,000 during a calendar year.” 52 U.S.C. § 30101(4)(A), (8)(A)(i), 

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(9)(A)(i).1 Once a group is designated as a political committee, FECA sets varying 

limits on political contributions it may receive, depending on the type of entity that 

makes the contribution. See id. § 30116(a). As relevant here, FECA’s text limits 

any “person” from making a contribution of more than $5,000 to a political 

committee that is not authorized by a candidate or established by a national or state 

political party (referred to in the statute as an “other political committee”). 

52 U.S.C. § 30116(a)(1)(C). Political committees similarly may not “knowingly 

accept any contribution” in excess of the applicable limits. Id. § 30116(f).

FECA distinguishes between “independent expenditures” and other types of 

expenditures that are made for the purpose of influencing federal elections. 

52 U.S.C. § 30101(17). Expenditures are “independent” when they “expressly 

advocate[] the election or defeat of a clearly identified candidate” and are “not 

made in concert or cooperation with or at the request or suggestion of such 

candidate, the candidate’s authorized political committee, or their agents, or a 

political party committee or its agents.” Id.

In its unanimous en banc decision in SpeechNow.org v. FEC, the Court of 

Appeals for the District of Columbia Circuit concluded that the $5,000 limit on 

 1 The Supreme Court has further limited FECA’s definition of “political 

committee” to “only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a 

candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976) (per curiam). 

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contributions to other political committees in 52 U.S.C. § 30116(a)(1)(C) is 

unconstitutional as applied to a political committee that makes only independent 

expenditures. 599 F.3d at 696.

2

 The court explained that, although restrictions on 

political contributions face a less-stringent standard of scrutiny than do restrictions 

on political expenditures, id. at 692, “contribution limits still do implicate 

fundamental First Amendment interests,” and therefore those “‘involving 

significant interference with associational rights must be closely drawn to serve a 

sufficiently important interest,’” id. (quoting Davis v. FEC, 554 U.S. 724, 740 n.7 

(2008)). The en banc panel noted that preventing quid pro quo corruption or its 

appearance had been held sufficient to justify the contribution limits at issue, id. at 

692, 694, but that in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme 

Court had “expressly decid[ed]” that “‘independent expenditures, including those 

made by corporations, do not give rise to corruption or the appearance of 

corruption.’” SpeechNow, 599 F.3d at 694 (quoting Citizens United, 558 U.S. at 

357). That was so, the Supreme Court held, because the “‘absence of 

prearrangement and coordination of an expenditure with the candidate or his agent 

not only undermines the value of the expenditure to the candidate, but also 

 2 In 2014, the provisions of FECA at issue in this litigation were recodified 

into Title 52 of the United States Code from their prior codification in Title 2. See 

Editorial Reclassification Table, http://uscode.house.gov/editorialreclassification/

t52/Reclassifications_Title_52.html. Cases decided prior to 2014, including 

SpeechNow, refer to the previous codification. 

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alleviates the danger that expenditures will be given as a quid pro quo for improper 

commitments from the candidate.’” Citizens United, 558 U.S. at 357 (quoting 

Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per curiam)).

“In light of the [Supreme] Court’s holding as a matter of law that 

independent expenditures do not corrupt or create the appearance of quid pro quo 

corruption,” the SpeechNow court concluded that “contributions to groups that 

make only independent expenditures also cannot corrupt or create the appearance 

of corruption.” 599 F.3d at 694. Because “the government has no anti-corruption 

interest in limiting contributions to an independent expenditure group,” the court 

stated, that interest cannot justify the burden contribution limits place on First 

Amendment rights, even assuming those intrusions are less extensive than an 

expenditure ban. Id. at 695. Thus, the court unanimously ruled that FECA’s 

contribution limits “violate the First Amendment by preventing plaintiffs from 

donating to SpeechNow in excess of the limits and by prohibiting SpeechNow 

from accepting donations in excess of the limits.” Id. at 696. As a result of this 

categorical holding, the district court on remand in that case permanently enjoined 

the Commission from enforcing contribution limits against the SpeechNow 

plaintiffs. SpeechNow.org v. FEC, No. 08-248, ECF No. 85 (D.D.C. Oct. 29, 

2010).

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Although the Supreme Court has not directly considered the issue in 

SpeechNow, the controlling opinion in McCutcheon v. FEC cited SpeechNow in 

explaining that FECA’s contribution “limits govern contributions to traditional 

PACs, but not to independent expenditure PACs.” 572 U.S. 185, 193 n.2 (2014) 

(plurality op.) (emphasis added). Thus, subsequent Supreme Court jurisprudence 

supports the case’s applicability, albeit in dictum. 

Moreover, in addition to the D.C. Circuit, five additional courts of appeals 

have considered the issue since Citizens United. Each court has similarly held that,

as a categorical matter, the government cannot constitutionally limit contributions 

to political committees that make only independent expenditures.3

 

In the wake of the SpeechNow decision, the Commission issued an advisory 

opinion acknowledging the ruling and its effect on limits on contributions to 

groups that make only independent expenditures. FEC Advisory Op. 2010-11 

(Commonsense Ten), 2010 WL 3184269 (July 22, 2010). As that advisory opinion 

acknowledged, it “necessarily follows” from Citizens United and SpeechNow “that 

there is no basis to limit the amount of contributions to” an independent 

 3 Republican Party of N.M. v. King, 741 F.3d 1089, 1095-97 (10th Cir. 2013); 

N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 487 (2d Cir. 2013); Texans for 

Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 538 (5th Cir. 2013); Wis. Right 

to Life State Political Action Comm. v. Barland, 664 F.3d 139, 154 (7th Cir. 2011); 

Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 

697-99 (9th Cir. 2010). The Fourth Circuit had reached the same conclusion prior 

to Citizens United. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008). 

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expenditure committee “from individuals, political committees, corporations and 

labor organizations,” which are covered by 52 U.S.C. § 30116(a)(1)(C). Id. at *2. 

Once the Commission issues an advisory opinion, FECA provides a safe harbor for 

“any person involved in any specific transaction or activity which is 

indistinguishable in all its material aspects” from the activity described in the 

opinion, and those who do so in good faith “shall not, as a result of any such act, be 

subject to any sanction provided” by FECA. 52 U.S.C. § 30108(c)(1)(B), (c)(2). 

Since issuing the Commonsense Ten advisory opinion, the Commission has 

not enforced the limits embodied in 52 U.S.C. § 30116(a)(1)(C) in the context of 

contributions to groups that make only independent expenditures. The 

Commission has, however, continued to enforce other statutory restrictions on the 

source of contributed funds, such as FECA’s ban on contributions by federal 

government contractors, even when those contributions are made to super PACs, 

because those provisions serve interests distinct from the basic anticorruption 

interest discussed in SpeechNow and have not been invalidated. See 52 U.S.C. 

§ 30119(a)(1); Conciliation Agreement, FEC Matter Under Review 7099 (Suffolk 

Construction Co.), https://www.fec.gov/files/legal/murs/7099/17044430547.pdf; 

cf. Wagner v. FEC, 793 F.3d 1, 21-22 (D.C. Cir. 2015) (en banc) (discussing the 

distinct interests supporting the ban on contributions by federal government 

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

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III. FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS 

FECA permits any person to file an administrative complaint with the FEC 

alleging a violation of FECA. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. 

§ 111.4. Upon receiving a complaint, the Commission must notify any person 

alleged in the complaint to have committed a FECA violation (i.e., the

“respondent”) and provide fifteen days for a response. 52 U.S.C. § 30109(a)(3).

After considering the complaint and any such response, the Commission must then 

determine whether there is “reason to believe” that the respondent has committed a 

violation of FECA. Id. § 30109(a)(2). If at least four FEC Commissioners vote 

affirmatively to find there is reason to believe a respondent has violated FECA, the 

Commission “shall make an investigation of such alleged violation.” Id.; see also 

id. § 30106(c). Any investigation under this provision is confidential until the 

administrative process is complete. Id. § 30109(a)(12). 

If an investigation is conducted, the agency must then determine whether 

there is “probable cause” to believe FECA has been violated. 52 U.S.C. 

§§ 30106(c); 30109(a)(4)(A)(i). If the agency makes such a determination, it must 

attempt to reach a conciliation agreement with the respondent. Id. If the FEC is 

unable to reach a conciliation agreement, FECA authorizes it to institute a de novo

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civil enforcement action in federal district court. Id. § 30109(a)(6)(A). All of 

these steps require the affirmative vote of at least four Commissioners. 

If, at any point in the process, the Commission lacks the required four 

affirmative votes to proceed on a matter, it may dismiss the administrative 

complaint. 52 U.S.C. § 30109(a)(8)(A). After such a dismissal, “[a]ny party 

aggrieved” by the dismissal may file suit against the Commission in the federal 

district court for the District of Columbia to obtain review. Id. If the court finds 

that the dismissal was “contrary to law,” it may order the Commission to conform 

to the court’s decision within 30 days. Id. § 30109(a)(8)(C).

IV. LIEU’S ADMINISTRATIVE COMPLAINT AND THE 

ADMINISTRATIVE PROCEEDINGS

In July 2016, Representative Lieu, Senator Jeff Merkley, State Senator (ret.)

John Howe, Zephyr Teachout, and Michael Wager, who are appellants here, filed 

an administrative complaint with the Commission. (Add. 44.) The administrative 

complaint alleged that ten political committees that make only independent 

expenditures “knowingly accepted multiple contributions that exceed $5,000 per 

person per year, in violation of 52 U.S.C. § 30116(a)(1)(C) and (f).” (Add. 44.)

The complaint asserted that 39 specific contributions to these super PACs from 27 

identified contributors violated FECA. (Add. 39-43, 57-62.) The administrative 

complainants admitted that SpeechNow had declared contribution limits 

unconstitutional in these circumstances, while expressing disagreement with that 

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decision, and they acknowledged that the FEC had announced its intention to 

follow SpeechNow in its Commonsense Ten advisory opinion. (Add. 44, 51.)

Nevertheless, the complainants asked “the FEC to reconsider, in light of later 

experience, its previous decision to acquiesce to SpeechNow.” (Add. 52.) 

In May 2017, the Commission unanimously voted to find no reason to 

believe that the administrative respondents had violated FECA, and accordingly it 

dismissed the administrative complaint. (Add. 21, 94-95.) The Commission also 

adopted a “Factual and Legal Analysis” explaining its decision to dismiss. (Add. 

44, 95, 96-109.) After acknowledging the complainants’ factual allegations and 

arguments about SpeechNow, the Commission observed that they “concede that 

SpeechNow and” the Commonsense Ten advisory opinion “permit the conduct 

described in the” administrative complaint. (Add. 108.) The Commission further 

noted that “every circuit court that has considered this issue has ruled that [super 

PACs] may accept unlimited contributions.” (Add. 105 & n.38 (citing cases from 

six additional circuits).) In light of the fact that “seven federal courts of appeals” 

had ruled that limits on contributions to super PACs “are unconstitutional,” the 

Commission declined “to accept [Lieu’s] invitation not to acquiesce” in those 

decisions. (Add. 108.) 

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V. PROCEEDINGS BEFORE THE DISTRICT COURT

In the court below, Lieu challenged the Commission’s dismissal of the

administrative complaint as “contrary to law” under 52 U.S.C. § 30109(a)(8). 

The court granted the Commission’s motion to dismiss, concluding that the 

agency’s dismissal of the administrative complaint was lawful because the 

Commission had properly applied SpeechNow. The district court considered

Lieu’s arguments that SpeechNow was wrongly decided, but the court determined 

that no subsequent ruling of the Supreme Court or the en banc D.C. Circuit 

purported to overrule SpeechNow. Therefore, the district court concluded, the FEC

had permissibly followed binding precedent in dismissing the administrative 

complaint against the super PACs identified in this matter. (Add. 22-23.)

4

ARGUMENT

This Court should summarily affirm the district court’s judgment for the 

Commission. The Commission’s dismissal of Lieu’s administrative complaint 

was, as the district court found, based upon the en banc SpeechNow decision, 

which is binding in this Circuit. Therefore, Lieu cannot show that the agency’s

dismissal was contrary to law under the standard of 52 U.S.C. § 30109(a)(8). 

 4 In light of this conclusion, the district court did not address Lieu’s arguments 

that the Commission had erroneously decided to acquiesce to SpeechNow and that 

the agency’s reliance on Advisory Opinion 2010-11 (Commonsense Ten) adopting 

the holding of SpeechNow was contrary to law. (Add. 22 n.8.)

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I. STANDARD OF REVIEW

“Summary affirmance is appropriate where the merits are so clear as to 

justify summary action.” U.S. Court of Appeals for the D.C. Circuit, Handbook of 

Practice and Internal Procedures at 35-36; see also Jenkins v. District of Columbia, 

No. 18-5021, 2018 WL 3726280, at *1 (D.C. Cir. July 20, 2018) (citing Taxpayers 

Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam)). In 

circumstances where the merits are so clear, “no benefit will be gained from 

further briefing and argument of the issues presented.” Taxpayers Watchdog, 

819 F.2d at 298; Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d 1172, 1174 

(D.C. Cir. 1987) (per curiam) (“[S]ummary disposition will be granted where the 

merits of the appeal or petition for review are so clear that ‘plenary briefing, oral 

argument, and the traditional collegiality of the decisional process would not affect 

our decision.’” (quoting Sills v. Fed. Bureau of Prisons, 761 F.2d 792, 793-94 

(D.C. Cir. 1985))).

II. THE JUDGMENT BELOW SHOULD BE SUMMARILY AFFIRMED 

BECAUSE THE COMMISSION DID NOT ACT CONTRARY TO 

LAW UNDER 52 U.S.C. § 30109(a)(8)

Summary affirmance is appropriate here because the merits are so clear that

further briefing or argument will provide no benefit: The Commission did not act 

contrary to law under the standard of section 30109(a)(8) when it followed a 

binding, en banc ruling of this Court in refusing to pursue enforcement against the 

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administrative respondents named in Lieu’s complaint. Lieu’s theory of the case is 

that the FEC’s dismissal of the administrative complaint was contrary to law 

because it followed SpeechNow, which Lieu believes was wrongly decided. 

(Add. 19.) In fact, Lieu conceded that the SpeechNow decision, if accepted as 

correct, would compel the Commission to dismiss the administrative complaint. 

(Add. 25-26.) Lieu argues in essence that the FEC, an administrative agency, was 

required to disregard a clear and binding judicial holding on a constitutional issue. 

But “[g]iven that obeying judicial decisions is usually what courts expect agencies 

to do, [Lieu] face[s] an uphill battle.” Grant Med. Ctr. v. Hargan, 875 F.3d 701, 

703 (D.C. Cir. 2017). 

That battle cannot be won here. The district court correctly determined that 

“the D.C. Circuit has spoken on the issue — limits on contributions to Super PACs 

are unconstitutional — and the D.C. Circuit’s reasoning is binding.” (Add. 21.) 

And because Lieu’s “allegations about the violations of the Super PACs fall 

squarely within the holding of SpeechNow” (Add. 21), “[i]t cannot be said that the 

FEC’s determination, which was based on SpeechNow, was contrary to law” 

(Add. 21-22). 

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A. The Conduct at Issue in the Administrative Complaint Is 

Governed by This Court’s SpeechNow Decision

The allegations in Lieu’s administrative complaint plainly fall within the 

rule announced in SpeechNow. Each super PAC identified in that complaint had 

registered with the FEC as an independent expenditure-only committee, and Lieu

did not claim that any of the committees had coordinated their expenditures with a 

candidate. (Add. 26.) Furthermore, Lieu admitted in the administrative complaint 

that the SpeechNow ruling had declared contribution limits unconstitutional in the 

precise circumstances presented in the complaint. (Add. 50-51.) 

B. The FEC Permissibly Applied SpeechNow in Dismissing the 

Administrative Complaint

Under FECA’s provisions for judicial review, a court “may set aside the 

FEC’s dismissal of a complaint only if its action was ‘contrary to law.’” Hagelin v. 

FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (quoting FECA provision now codified 

at 52 U.S.C. § 30109(a)(8)(C)). A decision is “contrary to law” if “the FEC 

dismissed the complaint as a result of an impermissible interpretation of” FECA or 

“if the FEC’s dismissal of the complaint, under a permissible interpretation of the 

statute, was arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 

F.2d 156, 161 (D.C. Cir. 1986). While this standard is “[h]ighly deferential” to 

Commission enforcement decisions, Hagelin, 441 F.3d at 242 (internal quotation 

marks omitted), courts are not obligated to give binding deference to an 

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administrative agency’s interpretation of judicial precedent or of the Constitution,

see, e.g., Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002).

The Commission’s enforcement decision here reasonably adhered to 

precedent that is binding in this jurisdiction. In SpeechNow, the en banc D.C. 

Circuit unequivocally held that FECA’s limits on contributions could not be 

constitutionally applied to contributions to groups that only make independent 

expenditures. 599 F.3d at 694-96. The SpeechNow Court reasoned that the 

Supreme Court’s decision in Citizens United had established as a matter of law that 

“the government has no anti-corruption interest in limiting independent 

expenditures.” Id. at 693; see Citizens United, 558 U.S. at 357-58. “In light of” 

this holding, the D.C. Circuit concluded that “contributions to groups that make 

only independent expenditures also cannot corrupt or create the appearance of 

corruption.” SpeechNow, 599 F.3d at 694. Thus, the Court unanimously ruled that 

FECA’s contribution limits violate the First Amendment when applied in that 

situation. Id. at 696. 

In addition to SpeechNow, six other courts of appeal have likewise held that

the contribution limit at issue here cannot constitutionally be applied to super 

PACs. See supra p. 7 & n.3; Republican Party of N.M. v. King, 741 F.3d 1089, 

1095-97 (10th Cir. 2013); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 487 

(2d Cir. 2013); Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 538 

USCA Case #19-5072 Document #1787446 Filed: 05/10/2019 Page 22 of 28
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(5th Cir. 2013); Wis. Right to Life State Political Action Comm. v. Barland, 664 

F.3d 139, 154 (7th Cir. 2011); Long Beach Area Chamber of Commerce v. City of 

Long Beach, 603 F.3d 684, 697-99 (9th Cir. 2010); N.C. Right to Life, Inc. v. 

Leake, 525 F.3d 274 (4th Cir. 2008); see also Ala. Democratic Conference v. 

Attorney Gen. of Ala., 838 F.3d 1057, 1066 (11th Cir. 2016) (“Other Circuits, 

applying the logic of Citizens United, have uniformly invalidated laws limiting 

contributions to PACs that made only independent expenditures.”), cert. denied 

sub nom. Ala. Democratic Conference v. Marshall, 137 S. Ct. 1837 (2017). As 

those courts have explained, “[f]ew contested legal questions are answered so 

consistently by so many courts and judges.” N.Y. Progress & Prot. PAC, 733 F.3d 

at 488; see also Texans for Free Enter., 732 F.3d at 537 (noting that this is a “wellworn path”).

As the district court concluded, recognizing the authority of SpeechNow is 

all that is needed to resolve this case. Add. 21-22; see United States v. Torres, 115 

F.3d 1033, 1036 (D.C. Cir. 1997) (“panels of [the Court of Appeals are] obligated 

to follow controlling circuit precedent until either [the Court of Appeals], sitting en 

banc, or the Supreme Court, overrule it.”). It is common ground among the parties 

that the Commission’s dismissal decision adhered to SpeechNow. In fact, Lieu did 

not argue in the district court that the Commission misapplied SpeechNow, that the 

decision is compatible with his claims, or that the respondents named in his 

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administrative complaint could be distinguished from the organization at issue in 

SpeechNow. Rather, Lieu argued that SpeechNow was wrongly decided. 

(Add. 19.) The real goal of this litigation is to overturn that decision. (Add. 24-

27.)

But the Commission’s enforcement process does not present the appropriate 

vehicle by which to pursue Lieu’s goal. If the Commission had pursued 

enforcement action against the numerous respondents named in Lieu’s 

administrative complaint, those respondents would have had to defend their 

conduct in further administrative proceedings — and potential enforcement 

litigation — even though the D.C. Circuit and other jurisdictions have held that 

such conduct cannot be limited consistent with the First Amendment. Pursuing 

enforcement under these particular circumstances was so unwarranted that, had the 

Commission attempted it, it might have been exposed to an award of legal fees for 

pursuing a litigation position that was not “substantially justified.” 28 U.S.C. 

§ 2412.5

 In Lieu’s view, the Commission should have pursued enforcement in the 

face of clear contrary circuit precedent, and any other course was contrary to law. 

 5 One court in this circuit ordered the Commission to pay nearly $125,000 in 

legal fees for arguing that it could restrict political committees that make direct 

contributions to candidates from also raising unlimited contributions for 

independent expenditures. See Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012). 

That court criticized the FEC for “failing to appreciate binding precedent,” 

including Citizens United and SpeechNow. Id. at 61.

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Yet it was clearly lawful for the Commission to elect not to defy binding precedent 

in this Court and the consistent rulings of six other courts of appeals to pursue 

enforcement against the named administrative respondents, particularly where the 

conduct at issue fell within the safe harbor of an FEC advisory opinion. 

In any event, summary affirmance would not insulate the legal issues in 

SpeechNow from potential Supreme Court review. But today, SpeechNow is 

binding precedent that the Commission permissibly applied in deciding not to 

pursue further administrative proceedings. Ultimately, as the district court 

correctly held, because “[t]he FEC followed [the SpeechNow] opinion in deciding 

to dismiss the administrative complaint against the Super PACs in this case,” “the 

FEC did not act contrary to law.” (Add. 22-23.)

Accordingly, the Commission’s dismissal of the administrative complaint 

was clearly permissible.

CONCLUSION

Because the parties’ positions are so clear as to warrant summary action and 

no benefit would be gained from further briefing and argument, this Court should

summarily affirm the district court’s decision in favor of the Commission.

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Respectfully submitted,

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

May 10, 2019

Jacob S. Siler

Attorney

jsiler@fec.gov

/s/ Tanya Senanayake

Tanya Senanayake

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

USCA Case #19-5072 Document #1787446 Filed: 05/10/2019 Page 26 of 28
CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. R. 27(d)(1)(E)(2) 

because the brief contains 4,248 words, excluding the parts of the brief exempted 

by Fed. R. App. P. 32(f).

The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

USCA Case #19-5072 Document #1787446 Filed: 05/10/2019 Page 27 of 28
CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of May, 2019, I electronically filed the 

Federal Election Commission’s Motion for Summary Affirmance with the Clerk of 

the United States Court of Appeals for the D.C. Circuit by using the Court’s 

CM/ECF system, which will serve all counsel of record. 

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

the brief to be filed with the Clerk.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

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