SET FOR EN BANC ORAL ARGUMENT ON NOVEMBER 30, 2018

NO. 18-5227

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Libertarian National Committee, Inc.,

Plaintiff-Appellant

v.

Federal Election Commission,

Defendant-Appellee

Upon Questions Certified to This Court by the

United States District Court for the District of Columbia

Pursuant to 52 U.S.C. § 30110 in Case No. 1:16-cv-00121-BAH

Hon. Beryl A. Howell

Brief Amicus Curiae of the Goldwater Institute

In Support of the Appellant

Timothy Sandefur

Aditya Dynar 

Scharf–Norton Center for Constitutional Litigation

at the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

Litigation@GoldwaterInstitute.org

ADynar@GoldwaterInstitute.org

Attorneys for Amicus Curiae

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Certificate as to Parties, Rulings, and Related Cases

Pursuant to D.C. Cir. R. 28(a)(1), Amicus certifies the following: 

Parties and Amici: Except for Amicus Goldwater Institute, all parties appearing before the district court and in this Court are as listed in the Brief for Appellant. 

Rulings Under Review: Appellant seeks review under 52 U.S.C. § 30110 upon questions certified to this Court by the district court in an order (Doc. 34) and memorandum opinion (Doc. 35) both dated June 29, 2018. References to the rulings at issue 

appear in the Brief for Appellant.

Related cases: This case has not previously come before this Court or any other 

court. Counsel for Amicus is not aware of any other related cases pending before this 

Court or any other court within the meaning of D.C. Cir. R. 28(a)(1)(C). 

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Corporate Disclosure Statement

Per Fed. R. App. P. 29(a)(4)(A) and 26.1, the Goldwater Institute certifies that 

it is a 501(c)(3) nonprofit corporation. No parent corporation or any publicly held 

corporation owns 10% or more of its stock.

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Statement Regarding Consent to File and Separate Briefing

Per Fed. R. App. P. 29 and D.C. Cir. R. 29, the Goldwater Institute respectfully files this brief amicus curiae with the consent of all parties.

The Institute certifies that a separate brief is necessary because it intends to 

address the issues of content-based speech restrictions, appropriate remedies, and 

other constitutional problems that arise out of the provisions challenged here: 

52 U.S.C. §§ 30116(a)(1)(B), (a)(9), 30125(a)(1).

No party’s counsel authored the brief in whole or in part. No party or party’s 

counsel contributed money that was intended to fund preparing or submitting the 

brief. No person other than the Amicus, its members, and counsel, contributed 

money that was intended to fund preparing or submitting this brief.

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Table of Contents

Certificate as to Parties, Rulings, and Related Cases...............................................ii

Corporate Disclosure Statement............................................................................iii

Statement Regarding Consent to File and Separate Briefing ..................................iv

Table of Authorities...............................................................................................vi

Glossary...............................................................................................................viii

Interest of the Amicus Curiae .................................................................................. 1

Statutes and Regulations.........................................................................................2

Summary of Argument............................................................................................2

Argument................................................................................................................2

I. Limiting how someone can spend money based on the message expressed 

thereby is a kind of content-based restriction on speech that disproportionately harms third parties like the LNC. ....................................................2

II. Striking down the specific-purpose component of the challenged provisions will enable contributors and political parties to speak on what matters 

most to them............................................................................................6

III. Congress’s use of content-based cy près distorts the speech and association 

of contributors and political parties..........................................................9

IV. Congress and the FEC cannot intrude on state law of wills, trusts, and 

property transfers. ................................................................................. 11

Conclusion............................................................................................................ 13

Certificate of Compliance ..................................................................................... 15

Certificate of Service............................................................................................. 16

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Table of Authorities

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983) ........................................................ 5, 6

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011)....................................................................................... 1

Califano v. Westcott, 443 U.S. 76 (1979)...................................................................8

Citizens United v. FEC, 558 U.S. 310 (2010)............................................................8

Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012).................................................. 1

Estate of French, 365 A.2d 621 (D.C. 1976)............................................................. 13

Evans v. Abney, 396 U.S. 435 (1970)............................................................11, 12, 13

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)............................................3

Janus v. American Federation of State, County, and Municipal Employees, 

Council 31, 138 S. Ct. 2448 (2018)................................................................. 1

Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018)..................................... 1

Protect My Check, Inc. v. Dilger, 176 F. Supp. 3d 685 (E.D. Ky. 2016) ...................... 1

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)................................................3, 4, 11

Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017)..................................................8

Sosna v. Iowa, 419 U.S. 393 (1975)......................................................................... 11

Ward v. Rock Against Racism, 491 U.S. 781 (1989)...................................................4

Constitutional Provisions and Statutes

U.S. Const. amend. I .........................................................................1, 5, 6, 7, 13

52 U.S.C.

§ 30110 ......................................................................................................i, ii

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§ 30116(a)(1)(B).........................................................................iv, 6, 7, 12, 13

§ 30116(a)(9).................................................................................... iv, 2, 6, 7

§ 30125(a)(1)........................................................................................ iv, 6, 7

Uniform Trust Code

§ 413 .................................................................................................10, 11, 13

Other Authorities

Alberto B. Lopez, A Reevaluation of Cy Près Redux, 

78 U. Cin. L. Rev. 1307 (2010)............................................................... 11

Bradley A. Smith, Newsflash: First Amendment Upheld, 

Wall St. J., Jan. 22, 2010, goo.gl/QUj3aU...............................................6

Matthew Michaels, The Price of a 30-Second Super Bowl Ad Has Exploded, 

Business Insider, Jan. 25, 2018, goo.gl/tE2uo5.....................................5

Ronald Chester, Cy Près or Gift Over?: The Search for Coherence in 

Judicial Reform of Failed Charitable Trusts, 

23 Suffolk U.L. Rev. 41 (1989)............................................................ 11

The Federalist No. 33 (J. Cooke ed., 1961) (Alexander Hamilton) .............. 11

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Glossary

CM/ECF Case Management / Electronic Case Filing

Doc. xx Docket record number in the court below

ep. Electronic page number generated by the court’s CM/ECF system

FEC Federal Election Commission

LNC Libertarian National Committee

UTC Uniform Trust Code

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Interest of the Amicus Curiae

The Goldwater Institute was established in 1988 as a nonpartisan public policy 

and research foundation dedicated to advancing the principles of limited government, economic freedom, and individual responsibility through litigation, research, 

policy briefings and advocacy. Through its Scharf–Norton Center for Constitutional 

Litigation, the Institute litigates cases and files amicus briefs when its or its clients’ 

objectives are directly implicated.

The Institute devotes substantial resources to defending the vital constitutional principle of freedom of speech. The Institute has litigated and won important 

freedom-of-speech victories, such as Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 564 U.S. 721 (2011) (matching funds provision is unconstitutional); 

Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012) (tattoos are pure speech); Protect 

My Check, Inc. v. Dilger, 176 F. Supp. 3d 685 (E.D. Ky. 2016) (bans on corporate 

contributions to political candidates likely violate the Equal Protection Clause). The 

Institute has appeared as amicus curiae in First Amendment cases, such as Janus v. 

American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 

2448 (2018), and Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Amicus 

believes its litigation experience and policy expertise will aid this Court in consideration of this case. 

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Statutes and Regulations

All applicable statutes and regulations are contained in the briefs of the parties 

or addenda attached thereto.

Summary of Argument

The specific-purpose provisions of 52 U.S.C. § 30116(a)(9) are unconstitutional content-based restrictions on speech that are subject to strict scrutiny. This 

Amicus proposes that the appropriate remedy is to declare the specific-purpose provisions unconstitutional, which will have the effect of extending to third parties like 

the Appellant the ability to spend up to $339,000 in inflation-adjusted dollars on 

speech that matters to them. This remedy also allows the two major parties to spend 

up to the same limit from their general or special-purpose accounts on speech that 

matters to them. 

Argument

I. Limiting how someone can spend money based on the message expressed 

thereby is a kind of content-based restriction on speech that disproportionately harms third parties like the LNC.

The trial court voiced concerns that the special-purpose regime constitutes a 

content-based restriction on speech. Doc. 35 at eps. 22–23. Those concerns are well 

founded. Under that regime, annual expenditures of bequests above $33,900 may be 

used for only three purposes: presidential nominating conventions, party headquarters buildings, and recount expenses. 52 U.S.C. § 30116(a)(9). This is a contentbased restriction on speech because whether or not the restriction applies is determined by reference to the content of the message communicated (or sought to be 

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communicated) by the bequest. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 

(2015) (content-based speech “applies to particular speech because of the topic discussed or the idea or message expressed.”). Consequently, the rule is presumptively 

unconstitutional and subject to strict scrutiny. Id. The burden is therefore on the 

Federal Election Commission to show that the specialized-purpose regime is narrowly tailored to serve a compelling governmental interest. Id.

The question for this Court is whether limiting the purposes for which money 

can be expended actually involves speech. It does, as the trial court correctly noted, 

Doc. 35 at eps. 22–23, because the LNC may only spend $33,900 of the bequest, 

annually, for unlimited purposes, which include speech, but may annually spend nine 

times that amount for the three specified limited purposes: $101,700, each, on nominating conventions, a headquarters building, and recounts, for a total of $339,000.1

That means that if the LNC wishes to purchase TV or radio advertisements, develop 

a website, develop a cadre of door-knockers, print yard signs, or do any of the numerous things that political parties do to communicate with voters—all forms of 

speech that are the lifeblood of politics—it may only spend $33,900 of the bequest, 

annually, to do so. By contrast, if the LNC wants to spend money on the three approved purposes, it may spend vastly more on those purposes. 

This is plainly a restriction on speech, since “the conduct triggering coverage 

under the statute consists of communicating a message,” Holder v. Humanitarian 

Law Project, 561 U.S. 1, 28 (2010)—and it is a content-based one, since it “target[s] 

 

1 All general- or special-purpose contributions or expenditures get reported to 

the FEC under the existing disclosure regime, which is unaffected by this lawsuit.

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speech based on its communicative content,” Reed, 135 S. Ct. at 2226. Limitations 

on purchasing advertisements or hiring door-knockers are direct limitations on the 

type and quantity of speech in which the LNC may engage.

More to the point, if the LNC does not need to hold a nominating convention, 

is not building a new headquarters, or does not need to conduct a recount, any contribution exceeding $33,900 will have no effect on that year’s election at all. And the 

reality is that these restrictions place a greater burden on smaller political parties like 

the LNC than on the Republican and Democratic parties, which are large enough 

that they hold nominating conventions and recounts in every election year. Finding 

ways to allocate restricted funds is likely no great burden to them. But in some years, 

the LNC needs to spend little to nothing on a nominating convention, and demands 

no recounts, at all.2It does not need hundreds of thousands of dollars to do these 

things. What it needs is the ability to convey its message to voters and to convince 

them to vote for a third-party candidate. By restricting this type of spending, the rule 

challenged here places a disproportionate burden on third parties like the LNC. 

This is not a content-neutral time, place, or manner restriction, where courts 

have allowed disproportionate burdens on different speakers. See, e.g., Ward v. Rock 

Against Racism, 491 U.S. 781, 791 (1989) (“A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect 

 

2 The Libertarian Party has “never spent money litigating election recounts.” 

Doc. 24-3 ¶ 57. It has a small outstanding balance on its headquarters building mortgage. Id. at ¶ 58. Its nominating conventions “are much smaller and more modest 

affairs than are the presidential nominating conventions of the two major legacy parties.” Id. at ¶ 64.

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on some speakers or messages but not others.” (emphasis added)). Rather, this regulation imposes different burdens on large and small parties due precisely to the content of the expression. 

Imagine, for instance, a regulation that only allowed political committees to 

purchase television advertising during the Super Bowl, and at no other time. A thirtysecond Super Bowl ad costs at least $5 million. Matthew Michaels, The Price of a 30-

Second Super Bowl Ad Has Exploded, Business Insider, Jan. 25, 2018.3 There is 

simply no way that third parties like the LNC could afford them, but the two major 

parties could. Such a restriction would immediately be recognized as unconstitutional due to this disproportionate impact.

In fact, the Supreme Court addressed a similar situation in Anderson v. Celebrezze, 460 U.S. 780 (1983), when it ruled that an Ohio law placing a short deadline 

on filing to run for President violated the First Amendment. The law required candidates to file by March 20 in order to appear on the ballot. Id. at 782. This, the Court 

noted, had a disproportionate impact “on independent-minded voters,” because it 

“prevent[ed] persons who wish to be independent candidates from entering the significant political arena ... and creating new political coalitions ... after mid-to-late 

March,” which was a time at which the major parties had not yet chosen their nominees. Id. at 790. As a result, third-party candidates, who often run in reaction against 

the nomination decisions of major parties, would be unable to do so, meaning that 

“[c]andidates and supporters within the major parties thus have the political advantage of continued flexibility; for independents, the inflexibility imposed by the 

 

3

goo.gl/tE2uo5.

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March filing deadline is a correlative disadvantage.” Id. at 791. This “particular 

burden on an identifiable segment of Ohio’s independent-minded voters” violated 

the First Amendment because it “limit[ed] political participation by an identifiable 

political group whose members share a particular viewpoint, associational preference, or economic status.” Id. at 792–93.

The special-purpose regime at issue in this case is no more constitutional. By 

limiting annual unrestricted expenditures to one-tenth the permitted amount—and 

allowing nine-tenths of the expenditures only on matters that are of the least importance to small parties that are seeking to persuade the public—the regulations 

violate the First Amendment rights of the LNC. See Bradley A. Smith, Newsflash: 

First Amendment Upheld, Wall St. J., Jan. 22, 2010 (discussing the extent of injuries to the freedom of speech under the guise of imposing time, place, or manner 

restrictions).4

II. Striking down the specific-purpose component of the challenged provisions will enable contributors and political parties to speak on what matters most to them.

The three challenged provisions—52 U.S.C. §§ 30116(a)(1)(B), (a)(9), 

30125(a)(1)—block nine-tenths of contributors’ and political parties’ speech as established in the record. Doc. 35 ep. 10. These provisions divert a large chunk of the 

money that would otherwise be used to speak on topics that matter most to the contributors and political parties to be used instead for three specific purposes on which 

these parties and individuals may or may not want to spend any money. The 

 

4

goo.gl/QUj3aU.

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challenged provisions tell Appellant: if you speak, only ten percent of your speech 

can be devoted to what you really want to speak about; the remainder shall be on 

these three listed topics. The First Amendment forbids such a restriction. 

The issue of the appropriate remedy, however, needs close attention. There 

are two ways of striking out statutory language that this Court should reject outright: 

• If the whole contribution limit is struck down—i.e., 52 U.S.C. 

§§ 30116(a)(1)(B) and 30116(a)(9)—that will eliminate all contributions to 

“political committees established and maintained by a national political 

party,” 52 U.S.C. § 30116(a)(1)(B), which amounts to a complete speech ban. 

That is because, with such a strikethrough, there would be no statute under 

which political parties could raise and spend money.

• If the “300 percent [in three segregated accounts]” language is struck down, 

the result would be a drastic reduction of speech. Id. The total permissible 

speech under such a remedy will be reduced by ninety percent. Such a 

strikethrough would keep in place only the portion of the statute that allows 

$33,900 worth of inflation-adjusted contributions, instead of the $339,000 

currently allowed.

Both of these options5 would severely limit speech and achieve the opposite of what 

Congress established and intended. And they would go against the First Amendment’s inexorable command that “more speech, not less, is the governing rule.” 

 

5 Amicus takes no position on a third possible option: eliminating the challenged 

limits altogether, thus enabling unlimited contributions to and expenditures by political parties. 

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Citizens United v. FEC, 558 U.S. 310, 361 (2010). Congress and the FEC have already 

determined that, as relevant here, contributing up to $339,000 per year (in current 

inflation-adjusted dollars) does not raise corruption concerns. 

Therefore, striking down the specific-purpose component is the only remedy 

that comes close to keeping Congress’ design intact—and the only remedy that does 

not curtail speech. Such a declaration would enable contributors and political parties 

to speak on topics that matter most to them, and would also leave political parties 

free to spend money on presidential nominating conventions, party headquarters, 

and recounts, as and if needed. 

This Court has the option to consider all “remedies [that] are necessary to 

resolve” the content-based superstructure created by the provisions challenged 

here. Id. at 331. When faced with “two remedial alternatives,” “a court may either 

declare the statute a nullity and order that its benefits not [be] extend[ed] ... or it 

may extend the coverage of the statute to include those who are aggrieved by exclusion.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698 (2017) (cleaned up; bracketed text added). “Ordinarily ... ‘extension, rather than nullification, is the proper 

course.’” Id. at 1699 (quoting Califano v. Westcott, 443 U.S. 76, 89 (1979)). 

In choosing among several remedial options, the Court’s goal is to “measure 

the intensity of commitment to the residual policy ... and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed 

to abrogation.” Id. at 1700 (cleaned up). The relevant “residual policy” here is indicated by two considerations: first, more speech, not less, is the governing rule; and, 

second, Congress considers the $339,000 total yearly limit as not having a corrupting 

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influence on elections. Thus, eliminating the content-based restriction would cause 

no “disruption of the statutory scheme.” It would allow the two major parties to 

continue having separate segregated accounts used for the three listed purposes—or 

any other purpose they select—and would also afford parties, like the Appellant, the 

flexibility to spend money on what matters most to them—that is, speech—either 

through their general accounts or by creating separate accounts. 

In other words, expanding the speech restrictions at issue here in a way that 

would reduce the speech rights of major parties would not remedy the content-based 

straightjacket that the statutes put upon parties like the Appellant. But striking down 

the specific-purpose component to allow parties to spend as they see best would remedy the injury suffered by the Appellant while leaving the rights of other parties intact.

III. Congress’s use of content-based cy près distorts the speech and association of contributors and political parties.

The specific-purpose provisions are not only content-based speech restrictions. They are also a kind of Congressionally-mandated cy près that distorts the 

speech and association rights of contributors and political parties alike. The factual 

context established in this case helps highlight the issue. 

• Contributors like Joseph Shaber desire that the LNC use the bequest “outright,” and specifically place no condition or limitation on the bequest. Doc. 

35 ep. 76, ¶¶ 123–24.

• Contributors like Chris Rufer, who specifically do not want their contributions 

spent on government-imposed purposes (nominating conventions, buildings, 

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recounts) and instead want the LNC to use their contributions for general purposes that the LNC sees fit. Id. at 79–81, ¶¶ 141–47.

• Contributors like Michael Chastain, who do not want the government to impose any strings on how the LNC would spend their contribution. Id. at 82, 

¶ 154.

• Contributors like William Redpath, who have provided that a portion of their 

estates will go toward speaking about specific purposes but not toward the 

three purposes found in the challenged provisions. Id. at 85–86, ¶ 164–166.

This factual context highlights the heart of the matter: the content of each contributor’s speech and each political party’s speech can be different. In each of these examples, the contributor’s and political party’s speech is valid, lawful, and constitutionally-protected. The specific-purpose provisions, however, prevent or limit that 

speech, and divert the monies to three entirely different topics—topics on which 

neither the contributor nor the LNC wish to speak. This diversion of general-purpose funds to three specified purposes works as a sort of cy près (or diversion of funds 

specified for one purpose to another purpose) that fundamentally distorts speech. 

Even under garden-variety cy près caselaw, money cannot be legally diverted 

to another purpose when the original purpose is valid and lawful. For example, the 

Uniform Trust Code (UTC) § 413 specifies that cy près diversion can be ordered only 

if “a particular charitable purpose becomes unlawful, impracticable, impossible to 

achieve, or wasteful.” There is nothing unlawful, impracticable, or impossible in contributors’ and political parties’ speech on topics other than presidential nominating 

conventions, buildings, or recounts. (Whether speech on subjects other than these 

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three is wasteful is a content-based value judgment that shows the government’s 

“disagreement with the message ... convey[ed],” Reed, 135 S. Ct. at 2227, and would 

therefore be an improper consideration.) 

This sort of cy près diversion does not comport with the basic tenets of the 

doctrine that have existed for centuries and goes against the American rule that cy 

près should be applied rarely, with extreme caution. Cf. Ronald Chester, Cy Près or 

Gift Over?: The Search for Coherence in Judicial Reform of Failed Charitable Trusts, 23 

Suffolk U.L. Rev. 41, 44 (1989) (discussing the cy près doctrine’s historic development and the “American rule” that “precludes application of the cy près doctrine”); Alberto B. Lopez, A Revaluation of Cy Près Redux, 78 U. Cin. L. Rev.

1307 (2010) (discussing the application and differences between UTC § 413 and the 

traditional cy près doctrine). It severely distorts the speech and association rights of 

contributors and political parties. Amicus’s proposed remedy of striking down the 

specific-purpose component, which would in turn allow third parties like Appellant 

to spend up to $339,000 on speech that matters most to them, helps avoid running 

into this problem. 

IV. Congress and the FEC cannot intrude on state law of wills, trusts, and 

property transfers.

There is yet another problem that the proposed remedy avoids. The law of 

wills, trusts, and property transfers is firmly a “traditional role of the States.” Evans 

v. Abney, 396 U.S. 435, 447 (1970). Congress cannot lightly upend this “virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). See also 

The Federalist No. 33 at 206 (J. Cooke ed., 1961) (Alexander Hamilton) 

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(“Suppose by some forced constructions of its authority (which indeed cannot easily 

be imagined) the Federal Legislature should attempt to vary the law of descent [i.e., 

wills] in any State; would it not be evident that ... it had exceeded its jurisdiction and 

infringed upon that of the State?”). 

By diverting bequests, which are governed by the state law of wills, trusts, and 

property transfers, the provisions challenged here intrude on state prerogatives. The 

specific-purpose provisions rewrite the state law of cy près when it comes to bequests 

to “political committees established and maintained by a national political party.” 

52 U.S.C. § 30116(a)(1)(B). 

In Evans, the testator placed property (a park) in trust limiting its use to white 

persons. The state court concluded that because the park could not be operated on a 

racially discriminatory basis, the trust failed and the property reverted to the heirs of 

the testator. The Georgia Supreme Court refused to apply cy près to open the park 

for use by blacks. 396 U.S. at 436–37. Both options—reversion or cy près—were possible remedies. Given the federal mandate of no racial discrimination, and the state 

law of wills, trusts, and property transfers, the state court chose to avoid the federal 

issue and apply the relevant state law—and the U.S. Supreme Court affirmed. Id. at 

437. It concluded that “the Constitution imposes no requirement upon the Georgia 

courts to approach [the testator’s] will any differently than they would approach any 

will creating any charitable trust of any kind.” Id. at 446. The cy près remedy would 

have impinged on the “freedom of testation,” and placed federal courts in the awkward position of “legislat[ing] social policy on the basis of [the court’s] personal 

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inclinations.” Id. at 447. Even with regard to so offensive a bequest, the Court found 

that it was a state matter under the Constitution. 

The same is true here. This Congress-created cy près impinges on the freedom 

of testation—a matter that is left to the states. It also supplants the testator’s wishes 

and intent with that of Congress. What’s more, it is evidence of Congress’ disagreement with the testator’s choice to speak and with the content of the testator’s and 

political party’s speech—a disagreement that may not be given legal effect by the 

First Amendment. Indeed, if there were a state law prohibiting testators from making 

bequests to “political committees established and maintained by a national political 

party,” 52 U.S.C. § 30116(a)(1)(B), such a law would likely violate the Constitution. 

Cf. Estate of French, 365 A.2d 621, 625 (D.C. 1976) (“the ‘free exercise’ of religion 

clause of the First Amendment forbids” state laws that bar testamentary bequests 

on the basis of religion). That would be a different case. But because freedom of 

testation is fully protected under state law, cf. UTC § 413, and the speech inherent 

in a testamentary bequest to a political party is fully protected under state and federal 

constitutions, Congress cannot tread upon these individual rights with impunity.

Conclusion

Amicus’s proposed remedy of excising the specific-purpose provisions and allowing parties like the Appellant to spend up to $339,000 on speech that matters to 

them preserves the States’ prerogatives and autonomy in establishing the law of 

wills, trusts, and property transfers. It protects the testator’s freedom of testation. 

And it protects the testator’s and political parties’ freedom of speech and association. The specific-purpose provisions are unconstitutional content-based 

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restrictions on speech. That is the narrowest ground for decision available in this 

case. Concluding so also helps avoid other constitutional problems with the challenged provisions.

Respectfully submitted,

September 12, 2018 /s/ Aditya Dynar

Timothy Sandefur

Aditya Dynar 

Scharf–Norton Center for Constitutional Litigation

at the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

Litigation@GoldwaterInstitute.org

ADynar@GoldwaterInstitute.org

Attorneys for Amicus Curiae

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Certificate of Compliance

Per Fed. R. App. P. 32(a)(7)(C) and D.C. Cir. R. 32(a), I hereby certify that 

the foregoing brief complies with the applicable type-volume limitations. This brief 

was prepared in proportionally spaced serif typeface using Microsoft Word in 14-

point. The brief, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) 

and D.C. Cir. R. 32(e)(1), contains 3,491 words. This certification is made in reliance 

on the word-count function of the word processing system used to prepare the brief.

September 12, 2018 /s/ Aditya Dynar

Aditya Dynar 

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Certificate of Service

I hereby certify that I electronically filed the foregoing with the Clerk of the 

Court of the United States Court of Appeals for the District of Columbia Circuit 

using the appellate CM/ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Aditya Dynar

Aditya Dynar

USCA Case #18-5227 Document #1750170 Filed: 09/12/2018 Page 24 of 24