NOT YET SCHEDULED FOR ORAL ARGUMENT

____________________

No. 19-5072

____________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

REPRESENTATIVE TED LIEU, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court 

for the District of Columbia 

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

____________________

PETITION FOR INITIAL HEARING EN BANC

Ronald A. Fein

 Counsel of record

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre St #405

Newton, MA 02459

617-244-0234

June 21, 2019

Malcolm Seymour

Benjamin Lambiotte

Brad Deutsch (of counsel)

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

Albert W. Alschuler (of counsel)

Richard Painter (of counsel)

Laurence H. Tribe (of counsel)

Anne Weismann

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TABLE OF CONTENTS

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

QUESTION OF EXCEPTIONAL IMPORTANCE PRESENTED......................... 1

LEGAL AND FACTUAL BACKGROUND........................................................... 4

I. The Federal Election Campaign Act and the Buckley framework ................... 4

II. Citizens United and SpeechNow....................................................................... 5

III. This challenge to super PACs and SpeechNow................................................ 7

REASONS FOR GRANTING THE PETITION ..................................................... 8

I. SpeechNow was wrongly decided. ................................................................... 8

A. Quid pro quo corruption can occur through contributions to entities 

whose expenditures do not corrupt. ............................................................... 8

B. Contributions to super PACs are substantially different from 

independent expenditures by the contributors.............................................. 10

II. SpeechNow has been undermined by subsequent legal and factual 

developments.................................................................................................. 11

A. Two recent Supreme Court decisions are inconsistent with SpeechNow..... 11

B. New empirical evidence demonstrates that large contributions to super 

PACs create the appearance of corruption. .................................................. 13

III. The case presents a question of exceptional importance because of 

widespread concern about corruption and super PACs in federal 

elections.......................................................................................................... 14

IV. This case is an appropriate vehicle for considering whether SpeechNow

should be overruled. ....................................................................................... 15

CONCLUSION ...................................................................................................... 17

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TABLE OF AUTHORITIES

Page

Cases

Brown v. Bd. of Educ. ...................................................................................16

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

* Buckley v. Valeo ..................................................................4, 5, 10, 11, 12, 13

424 U.S. 1 (1976)

Cal. Med. Ass’n v. FEC.................................................................................11

453 U.S. 182 (1981)

* Citizens United v. FEC....................................................1, 3, 4, 5, 6, 8, 11, 12

558 U.S. 310 (2010)

Coal. for Responsible Regulation, Inc. v. EPA..............................................15

No. 09-1322, 2012 WL 6621785 (D.C. Cir. Dec. 20, 2012) 

Colo. Republican Campaign Comm. v. FEC...................................................6

518 U.S. 604 (1996)

Emily’s List v. FEC........................................................................................10

581 F.3d 1 (D.C. Cir. 2009)

Holmes v. FEC...............................................................................................15

823 F.3d 69 (D.C. Cir. 2016)

Janus v. AFSCME..........................................................................................16

138 S. Ct. 2448 (2018)

Lieu v. FEC................................................................................................7, 15

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

Libertarian Nat’l Comm. v. FEC...................................................................13

924 F.3d 533 (D.C. Cir. 2019) (en banc) 

Long Beach Area Chamber of Commerce v. City of Long Beach ...................6

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

Authorities upon which we chiefly rely are marked with asterisks.

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McConnell v. FEC...........................................................................................6

540 U.S. 93 (2003)

* McCutcheon v. FEC ........................................................................4, 5, 11, 12

572 U.S. 185 (2014) 

N.C. Right to Life, Inc. v. Leake ......................................................................6

525 F.3d 274 (4th Cir. 2008)

Nixon v. Shrink Missouri Gov’t PAC.............................................................14

528 U.S. 377 (2000)

Republican Nat’l Comm. v. FEC.....................................................................6

561 U.S. 1040 (2010) (mem.), 

aff’g 698 F. Supp. 2d 150 (D.D.C. 2010)

* Republican Party of La. v. FEC .........................................................6, 12, 13

219 F. Supp. 3d 86 (D.D.C. 2016), aff’d,

137 S. Ct. 2178 (2017) (mem.)

Republican Party of N.M. v. King ...................................................................6

741 F.3d 1089 (10th Cir. 2013)

* SpeechNow.org v. FEC..............1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16

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

Texans for Free Enter. v. Tex. Ethics Comm’n ...............................................6

732 F.3d 535 (5th Cir. 2013)

United States v. Brewster.................................................................................9

506 F.2d 62(D.C. Cir. 1974)

* United States v. Menendez.........................................................................9, 10

132 F. Supp. 3d 635 (D.N.J. 2015)

* United States v. Menendez.........................................................................9, 10

291 F. Supp. 3d 606 (D.N.J. 2018)

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* United States v. Siegelman ........................................................................9, 10

640 F.3d 1159 (11th Cir. 2011)

Vt. Right to Life Comm., Inc. v. Sorrell ...........................................................6

758 F.3d 118 (2d Cir. 2014)

Wagner v. FEC ..............................................................................................15

717 F.3d 1007 (D.C. Cir. 2013)

Wisc. Right to Life State Political Action Comm. v. Barland..........................6

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

Rules, Statutes, Treatises, Misc.

18 U.S.C. § 201(b)(2) .....................................................................................8

52 U.S.C. § 30109(a)(8)(A) ............................................................................7

52 U.S.C. § 30109(a)(8)(C) ............................................................................7

52 U.S.C. § 30110 .........................................................................................15

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

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

Fed. R. App. P. 35(a)(2) ...............................................................................14

FEC Advisory Op. 2010-11

https://www.fec.gov/files/legal/aos/76050.pdf (July 22, 2010) .....................6

Atty. Gen. Eric Holder to Sen. Harry Reid, June 16, 2010 (Holder Letter)

available at https://bit.ly/1MhojVD ................................................................1

* Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen 

& Richard W. Painter, Why Limits on Contributions to Super 

PACs Should Survive Citizens United

86 Fordham L. Rev. 2299 (2018) ................................................................3, 8

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Alex Altman, Meet the Man Who Invented the Super PAC,

Time, May 13, 2015, https://ti.me/1KJ7KvT ..................................................2

Douglas H. Ginsburg & Donald Falk,

The Court En Banc: 1981–1990,

59 Geo. Wash. L. Rev. 1008 (1991) .............................................................15

* Michael D. Gilbert & Brian Barnes, The Coordination Fallacy, 

43 Fla. St. U. L. Rev. 399 (2016) ...........................................................10, 12

Michelle Ye Hee Lee, Eleven donors have plowed $1 billion into super PACs 

since they were created,

Wash. Post, Oct. 26, 2018, https://wapo.st/2XgpZch......................................2

Richard Briffault, Super PACs, 

96 Minn. L. Rev. 1644 (2012) ........................................................................2

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QUESTION OF EXCEPTIONAL IMPORTANCE PRESENTED

Can large contributions to super PACs corrupt or create the appearance of 

corruption? This Court said “no” in SpeechNow.org v. FEC, 599 F.3d 686 (D.C. 

Cir. 2010) (en banc), the decision that Representative Ted Lieu, Senator Jeff 

Merkley, and the other appellants now ask the Court to overrule. Relying on the 

then two-month-old decision in Citizens United v. FEC, 558 U.S. 310 (2010), 

SpeechNow struck down a provision of the Federal Election Campaign Act 

(FECA) that limited contributions to independent expenditure-only political 

committees (i.e. super PACs) to $5,000 per year. 52 U.S.C. §§ 30116(a)(1)(C).

The Court could not have anticipated how SpeechNow would reshape our 

democracy. The parties briefed SpeechNow before the Supreme Court’s decision in 

Citizens United v. FEC, 558 U.S. 310 (2010), and argued the case six days after 

that decision. The government relied heavily on pre-Citizens United arguments, see 

SpeechNow, 599 F.3d at 694, and did not seek an opportunity for supplemental 

briefing. After this Court’s decision, Attorney General Holder explained that the 

government did not seek certiorari because it would affect “only a small subset of 

federally regulated contributions.”1

 1 Letter from Atty. Gen. Eric Holder to Sen. Harry Reid, June 16, 2010 (Holder 

Letter), available at https://bit.ly/1MhojVD.

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Holder’s declaration belongs on a historic list of wrong predictions. In the 

2016 election, contributions to federal super PACs substantially outstripped the 

total amount of money raised by all federal candidates combined. The $2,800 limit 

on direct contributions to candidates still stands, but SpeechNow has rendered it 

“functionally meaningless.” Richard Briffault, Super PACs, 96 Minn. L. Rev. 

1644, 1684 (2012). Major donors pair maximum legal contributions to candidates 

with multi-million dollar contributions to super PACs supporting the same 

candidates.2 Deep into the 2016 presidential primaries, nearly half of all super PAC 

contributions came from just 50 families.3 Since SpeechNow, the contributions of 

eleven top donors to super PACs have ranged from $38.4 million to $287 million.4

Even the president of SpeechNow.org did not anticipate its impact—he later 

observed that using an independent expenditure group to promote a particular 

candidate “just never entered my mind.”5

Do large contributions to super PACs lead to an appearance of corruption? 

SpeechNow said no, but overwhelming bipartisan majorities of the public 

consistently say yes. The rise of super PACs is regularly denounced by statesmen 

 2 Add. to FEC’s Mot. for Summ. Aff. (“FEC Add.”), ECF No. 1787446 (May 10, 

2019), at 33-44.

3 Id. at 29-30.

4 Michelle Ye Hee Lee, Eleven donors have plowed $1 billion into super PACs 

since they were created, Wash. Post, Oct. 26, 2018, https://wapo.st/2XgpZch. 5 Alex Altman, Meet the Man Who Invented the Super PAC, Time, May 13, 2015, 

https://ti.me/1KJ7KvT. 

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as diverse as Senator John McCain (“What we have done is made a contribution 

limit a joke.”) and President Jimmy Carter (describing current system as 

“unlimited political bribery”). See Albert W. Alschuler, Laurence H. Tribe, 

Norman L. Eisen & Richard W. Painter, Why Limits on Contributions to Super 

PACs Should Survive Citizens United, 86 Fordham L. Rev. 2299, 2340-42 (2018). 

In 2016, both parties’ presidential candidates decried super PACs, and the victor, 

President Trump, declared, “[T]hese super PACs are a disaster . . . Very 

corrupt. . . . There is total control of the candidates.” Id. at 2338-40. 

This Court believed its ruling was compelled by Citizens United, but, as this 

petition will show, it was not. The proposition upon which SpeechNow depends—

that if super PAC expenditures do not corrupt, contributions to super PACs cannot 

corrupt either—is factually inaccurate and contradicts decades of bribery law. 

Moreover, two recent Supreme Court decisions substantially undermine 

SpeechNow’s key premises. 

The super PACs spawned by SpeechNow have undermined faith in our 

democracy, and the question of whether six or seven-figure contributions to super 

PACs pose a risk of corruption or its appearance is ripe for reconsideration.

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LEGAL AND FACTUAL BACKGROUND

I. The Federal Election Campaign Act and the Buckley framework

Congress enacted the Federal Election Campaign Act (FECA) “to limit the 

actuality and appearance of corruption resulting from large individual financial 

contributions.” Buckley v. Valeo, 424 U.S. 1, 26 (1976). FECA presently limits 

contributions to candidates to (inflation-adjusted) $2,800 per contributor per 

election, and contributions to independent political committees (including the 

groups now known as super PACs) to $5,000 per contributor per year. See 52 

U.S.C. §§ 30116(a)(1)(A), (C). 

Under Buckley and its progeny, limits on campaign financing must advance 

the government interest in protecting against “corruption or the appearance of 

corruption.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014); Buckley, 424 U.S. at 

26-27. Different constitutional standards apply to limits on expenditures by

candidates, parties, and groups than limits on contributions to those entities. See 

Buckley, 424 U.S. at 23-35, 39-51. Expenditure limits receive strict scrutiny; they 

must serve a “compelling interest and [be] narrowly tailored to achieve that 

interest.” Citizens United v. FEC, 558 U.S. 310, 340 (2010). But limits on 

contributions are not subject to strict scrutiny. They need only be “closely drawn” 

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to promote a “sufficiently important interest.” McCutcheon, 572 U.S. at 197 

(quoting Buckley, 424 U.S. at 25).6

II. Citizens United and SpeechNow

In Citizens United, the Supreme Court invalidated FECA’s prohibition of 

independent expenditures by corporations. See 558 U.S. at 340-41. It declared, 

“The anticorruption interest is not sufficient to displace the speech here in 

question,” and added: “[W]e now conclude that independent expenditures, 

including those made by corporations, do not give rise to corruption or the 

appearance of corruption.” Id. at 357. 

Two months later, SpeechNow.org v. FEC held all limits on contributions to 

super PACs unconstitutional:

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, 

contributions to groups that make only independent 

expenditures also cannot corrupt or create the appearance 

of corruption. The Court has effectively held that there is 

no corrupting “quid” for which a candidate might in 

exchange offer a corrupt “quo.” 

599 F.3d 686, 694-95 (D.C. Cir. 2010) (en banc). Soon thereafter, the FEC issued 

an advisory opinion allowing political committees that make only independent 

 6 This petition omits internal punctuation and citations from quotations.

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expenditures to accept unlimited contributions. See FEC Advisory Op. 2010-11, 

https://www.fec.gov/files/legal/aos/76050.pdf (July 22, 2010). 

In rapid succession the Fifth, Seventh, Ninth, and Tenth Circuits followed 

SpeechNow,

7 and the Second Circuit did so provisionally.8 The Supreme Court has 

never considered whether contributions to super PACs may be limited, but, both 

before and after Citizens United, it has held that contributions to political parties 

used to fund only independent expenditures may be limited. McConnell v. FEC, 

540 U.S. 93, 152 & n.48 (2003), overruled in part on a different issue by Citizens 

United v. FEC, 558 U.S. 310 (2010); Republican Nat’l Comm. v. FEC, 561 U.S. 

1040 (2010) (mem.), aff’g 698 F. Supp. 2d 150 (D.D.C. 2010) (Kavanaugh, J.) 

(holding that Citizens United did not disturb McConnell’s ruling that contributions 

to parties making only independent expenditures may be limited); Republican 

Party of La. v. FEC, 137 S. Ct. 2178 (2017) (mem.), aff’g 219 F. Supp. 3d 86 

(D.D.C. 2016) (Srinivasan, J.) (discussed infra at p. 12); see also Colo. Republican 

Campaign Comm. v. FEC, 518 U.S. 604, 617 (1996) (plurality opinion) 

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

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

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

Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 (9th 

Cir. 2010); accord N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) 

(similar but less categorical ruling). 

8 See Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 140 (2d Cir. 2014) 

(expressly reserving the question notwithstanding an earlier opinion that followed 

SpeechNow when approving a preliminary injunction). 

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(recognizing that contributions to a party making only independent expenditures 

enable donors to evade limits on contributions to candidates, and declaring that, 

although the party’s expenditures cannot be limited for this reason, contributions to 

the party can be).

III. This challenge to super PACs and SpeechNow

Representative Ted Lieu (D-Cal.), Representative Walter Jones (R-N.C.),9

Senator Jeff Merkley (D-Or.), and three Republican and Democratic congressional 

candidates filed an administrative complaint before the FEC against ten super 

PACs that had received contributions from single donors ranging from $300,000 to 

$5,000,000—far in excess of the statutory $5,000 limit.10

Relying on SpeechNow, the FEC dismissed the complaint. Lieu v. FEC, 370 

F. Supp. 3d 175, 181 (D.D.C. 2019). Appellants challenged the FEC’s dismissal of 

the complaint in the district court as “contrary to law.” 52 U.S.C. 

§§ 30109(a)(8)(A), (C). Although the FEC cited decisions on what this standard 

means when an agency is entitled to deference, the district court found those cases 

inapposite, noting: “This is not the typical case of administrative review: the FEC’s 

decision to dismiss the complaint was based exclusively on its interpretation of the 

D.C. Circuit’s opinion in SpeechNow.” Lieu, 370 F. Supp. 3d at 183. The court 

 9 Representative Jones died during the pendency of the litigation. 

10 FEC Add. at 25-26, 39-43, 48-82.

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concluded that it should review the FEC’s decision de novo because “courts need 

not defer to an agency’s interpretation of judicial precedent.” Id. Relying on 

SpeechNow, however, the court dismissed the complaint. Id. at 186. 

REASONS FOR GRANTING THE PETITION

I. SpeechNow was wrongly decided.

A. Quid pro quo corruption can occur through contributions to entities 

whose expenditures do not corrupt. 

SpeechNow announced that a single sentence of Citizens United compelled 

its result: “[I]ndependent expenditures . . . do not give rise to corruption or the 

appearance of corruption.” 558 U.S. at 357.11 SpeechNow reasoned that if 

independent expenditures do not corrupt, contributions to entities that make only 

such expenditures cannot corrupt either. See 599 F.3d at 694. 

The Court thus insisted that the corrupting potential of a payment to a third 

party depends on whether the third party’s expenditures are corrupting. But federal 

prosecutions for bribery (the clearest form of quid pro quo corruption) often rest on 

payments to third parties without regard to how or whether the third party uses the 

money. See 18 U.S.C. § 201(b)(2) (defining bribery to include cases where a 

candidate or official “corruptly demands, seeks, receives, accepts, or agrees to 

receive or accept anything of value personally or for any other person or entity” in 

 11 Although SpeechNow described this statement as holding, it was actually dictum. 

See Alschuler et al., 86 Fordham L. Rev. at 2312-14.

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exchange for official action) (emphasis added); United States v. Siegelman, 640 

F.3d 1159, 1165-66, 1169 n.13 (11th Cir. 2011) (affirming a bribery conviction 

although the “quid” was a contribution to an issue-advocacy campaign that the 

court acknowledged did “not financially benefit the individual politician in the 

same way that a candidate-election campaign contribution does”); United States v. 

Brewster, 506 F.2d 62, 68 (D.C. Cir. 1974) (noting that a bribe, unlike a gratuity, 

can be paid to “any other person or entity”). Just as a contribution to a favorite 

charity can be the “quid” in a bribe even when the charity’s expenditures do not 

corrupt anyone, super PAC contributions create opportunities for corruption even 

if super PAC expenditures do not. 

United States v. Menendez illustrates the point. See 132 F. Supp. 3d 635 

(D.N.J. 2015). In Menendez, the district court upheld a grand jury indictment for a 

transaction that, according to SpeechNow, was legally impossible: a bribe in which 

the “quid” consisted of two $300,000 contributions to a super PAC. See id. at 639. 

The indictment did not suggest that the recipient super PAC had acted improperly 

or that its expenditures corrupted the official. See id; see also United States v. 

Menendez, 291 F. Supp. 3d 606, 621-22 (D.N.J. 2018) (reiterating that a super 

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PAC contribution can be a bribe while dismissing the bribery charge for factual 

insufficiency following a trial and a hung jury).12

As Siegelman and Menendez show, a donor can reach a corrupt agreement 

with a politician without involving the recipient of the contribution in the 

conversation. “The super PAC need not know about the illegal exchange; the 

parties surely would prefer that it not.” Michael D. Gilbert & Brian Barnes, The 

Coordination Fallacy, 43 Fla. St. U. L. Rev. 399, 419 (2016). If it is possible to 

bribe a politician with a contribution to a super PAC, the public has an interest in 

preventing such bribes.

B. Contributions to super PACs are substantially different from 

independent expenditures by the contributors. 

Another superficially plausible argument for SpeechNow’s result was not 

advanced in that decision: If someone can spend $1 million to place his own 

campaign advertisements, why can’t he join with others to place independent 

advertisements through a super PAC? See Emily’s List v. FEC, 581 F.3d 1, 10-11 

(D.C. Cir. 2009) (advancing this argument).

Buckley answers this question with practice more than theory. Although two 

or three people might indeed band together to buy a newspaper advertisement, 

 12 The court specifically held that the evidence was sufficient to establish that the 

super PAC contribution was “anything of value,” i.e., a quid. Id. at 621-23; cf. 

SpeechNow, 599 F.3d at 694-95 (“there is no corrupting ‘quid’”). 

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typical large-scale political campaigning requires the efforts of many people and 

the creation of a legally distinct spending organization, e.g., a super PAC. The 

funders of this organization no longer make their own expenditures; they have 

become contributors. With the creation of a distinct spending organization, “the 

transformation of contributions into political debate involves speech by someone 

other than the contributor.” Buckley, 424 U.S. at 21. Such “speech by proxy . . . is 

not the sort of political advocacy that [the] Court in Buckley found entitled to full 

First Amendment protection.” Cal. Med. Ass’n v. FEC, 453 U.S. 182, 196 (1981) 

(plurality opinion). 

II. SpeechNow has been undermined by subsequent legal and factual 

developments.

A. Two recent Supreme Court decisions are inconsistent with 

SpeechNow.

In McCutcheon v. FEC, 572 U.S. 185 (2014), the Supreme Court rejected 

SpeechNow’s interpretation of the statement upon which its decision rested—

Citizens United’s declaration that “independent expenditures . . . do not give rise to 

corruption or the appearance of corruption.” SpeechNow read this statement to say 

that expenditures have zero value to a candidate, declaring: “The Court has 

effectively held that there is no corrupting ‘quid’ for which a candidate might in 

exchange offer a corrupt ‘quo.’” 599 F.3d at 694-95. SpeechNow concluded that 

the applicable standard of review did not matter because, even under the less 

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demanding standard applicable to contribution limits, “something . . . outweighs 

nothing every time.” Id. at 695.

In McCutcheon, however, Chief Justice Roberts’s plurality opinion, joined 

by three other members of the Citizens United majority, explained that while 

independent expenditures may be worth less, they are not worthless. The Court 

noted Buckley’s statement that “[t]he absence of prearrangement and coordination 

of an expenditure with the candidate or his agent . . . undermines the value of the 

expenditure to the candidate,” and then it added, “But probably not by 95 percent.” 

572 U.S. at 214 (emphasis added); see also Gilbert & Barnes, 43 Fla. St. U. L. 

Rev. at 415-18 (even with strict coordination rules, value of independent 

expenditures to candidates “almost certainly exceeds zero”). McCutcheon’s

recognition that independent expenditures are of some value to a candidate cannot 

be reconciled with SpeechNow’s assertion that “there is no corrupting ‘quid.’” 

More recently, the Court affirmed a decision explicitly rejecting 

SpeechNow’s assumption that the corrupting potential of a payment to a third party 

depends on whether the third party’s expenditures are themselves corrupting. In 

Republican Party of Louisiana v. FEC, a three-judge district court in this Circuit 

held that “soft money” contributions to a political party can corrupt even when the 

party’s independent expenditures do not corrupt. As the court explained, “the 

inducement occasioning the prospect of indebtedness on the part of a federal 

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officeholder is not the [independent] spending of soft money by the political party. 

The inducement instead comes from the contribution of soft money to the party in 

the first place.” 219 F. Supp. 3d 86, 97 (D.D.C. 2016) (Srinivasan, J.), aff’d, 137 S. 

Ct. 2178 (2017) (mem.). The court distinguished SpeechNow on the ground that 

candidates purportedly have closer relationships with political parties than with 

super PACs. See 219 F. Supp. 3d at 98. But even if that proposition once was true, 

it cannot be assumed today, certainly not for the “party-linked” super PACs cited 

in the complaint here.

13 Moreover, SpeechNow did not advance that empirical 

claim; it rested on the proposition that, as a matter of law, contributions that are 

used to fund only independent expenditures cannot corrupt. The court in 

Republican Party of Louisiana expressly rejected that proposition; it is difficult to 

see how the Supreme Court could have affirmed if it disagreed.

B. New empirical evidence demonstrates that large contributions to 

super PACs create the appearance of corruption. 

The appearance of corruption poses “almost equal concern as the danger of 

actual quid pro quo arrangements.” Buckley, 424 U.S. at 27. Since voters cannot 

“examine the intentions behind suspiciously sizable contributions,” unregulated 

contributions “inflict[] almost as much harm on public faith in electoral integrity as 

corruption itself. ” Libertarian Nat’l Comm. v. FEC, 924 F.3d 533, 542 (D.C. Cir. 

 13 FEC Add. at 34-35, 40, 58-61.

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2019) (en banc). Although SpeechNow held as a matter of law that contributions to 

independent expenditure groups “cannot . . . create the appearance of corruption,” 

599 F.3d at 694, new empirical evidence demonstrates that they can and have. 

Opinion surveys consistently show a pervasive appearance of corruption 

specifically attributable to large super PAC contributions. For example, in a 2012 

survey, 69% of respondents (74% of Republicans, 73% of Democrats) agreed that 

“new rules that let corporations, unions and people give unlimited money to Super 

PACs will lead to corruption.”14 And 73% of respondents (75% of Republicans, 

78% of Democrats) agreed “there would be less corruption if there were limits on 

how much could be given to Super PACs.”15 Other national and state-specific 

surveys yield similar results.16 Cf. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 

377, 394 (2000) (finding an appearance of corruption when an “overwhelming 

74%” of voters approved an initiative limiting contributions). 

III. The case presents a question of exceptional importance because of 

widespread concern about corruption and super PACs in federal 

elections. 

This case presents “a question of exceptional importance” justifying en banc 

consideration under Fed. R. App. 35(a)(2). A case has “exceptional importance to 

the public” if it involves “a unique issue of great moment to the community.” 

 14 FEC Add. at 31-32.

15 Id. at 32.

16 Id. at 31-33.

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15

Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981–1990, 59 Geo. 

Wash. L. Rev. 1008, 1025 (1991). A decision with “massive real-world 

consequences” is “plainly one of exceptional importance.” Coal. for Responsible 

Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 6621785, at *14 (D.C. Cir. Dec. 

20, 2012) (Kavanaugh, J., dissenting from the denial of rehearing en banc).

Whether Congress can limit contributions to super PACs is such a question. 

This case presents a clash between a clear statutory command of Congress and a 

constitutional decision that has fundamentally transformed U.S. elections and 

provoked public outcry. For cases arising in a different procedural context, 

Congress has determined that all questions concerning FECA’s constitutionality 

must be decided en banc. Wagner v. FEC, 717 F.3d 1007, 1008 (D.C. Cir. 2013) 

(per curiam) (construing 52 U.S.C. § 30110). Even cases in which a party argues 

“against what might be considered ‘settled’ Supreme Court constitutional law” 

must receive en banc consideration. Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 

2016). The importance of this issue (and thus this case) to the public far exceeds 

that of many of the challenges the Court has heard en banc.

IV. This case is an appropriate vehicle for considering whether SpeechNow

should be overruled. 

This appeal raises a question of law. As the district court held, the FEC’s 

decision “was based exclusively on its interpretation of the D.C. Circuit’s opinion 

in SpeechNow.” Lieu, 370 F. Supp. 3d at 183-84. The “contrary to law” standard 

USCA Case #19-5072 Document #1793993 Filed: 06/21/2019 Page 21 of 26
16

does not require deference to the FEC’s decision, and deference to an agency on an 

issue of constitutional interpretation would be inappropriate. Id. at 183-84. 

Of course, as appellants have acknowledged at every stage, SpeechNow 

remains the law of this Circuit, and neither the FEC nor the district court had 

authority to overrule it. But the “contrary to law” standard does not freeze the law 

forever by requiring an appellate court to ask only whether an administrative 

agency or lower court adhered to precedent as it stood when a case was filed. A 

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

Whenever someone challenges an appellate precedent, they almost 

invariably must initiate the challenge in a court or agency that is bound by that 

precedent. The challenge does not fail simply because the lower court or agency 

must adhere to the precedent. See, e.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018) 

(reversing after district court dismissed complaint, and court of appeals affirmed, 

in reliance on past precedent that the Court overruled); Brown v. Bd. of Educ., 98 

F. Supp. 797, 800 (D. Kans. 1951) (following Supreme Court precedent requiring 

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

district court’s ruling, not because the court acted improperly in following 

precedent, but because the precedent itself was contrary to law). This Court should 

reexamine SpeechNow to determine whether the FEC’s refusal to enforce 

Congress’s limit on contributions to super PACs was “contrary to law.”

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CONCLUSION

This Court should grant initial hearing en banc to reexamine an 

exceptionally important question: whether the public has an interest in preventing 

corruption and its appearance created by large contributions to super PACs. 

Respectfully submitted, 

/s/ Ronald A. Fein

Ronald A. Fein

John C. Bonifaz 

Ben T. Clements 

FREE SPEECH FOR PEOPLE

1320 Centre St. #405

Newton, MA 02459

(617) 244-0234

rfein@freespeechforpeople.org

Laurence H. Tribe (of counsel) 

Hauser Hall 420

Harvard University*

Cambridge, MA 02138

(617) 495-1767

Albert W. Alschuler (of counsel) 

220 Tuttle Road

Cumberland, ME 04021

(207) 829-3963

Richard Painter (of counsel)

Mondale Hall, Office 318

University of Minnesota Law School*

229 19th Avenue South 

Minneapolis, MN 55455

(612) 626-9707

Malcolm Seymour 

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

100 Wall Street, 20th Floor

New York, NY 10005

(212) 431-8700

mseymour@gsblaw.com

Benjamin Lambiotte

Brad Deutsch (of counsel)

GARVEY SCHUBERT BARER

Flour Mill Building

1000 Potomac Street NW, Suite 200

Washington, DC 20007-3501

(202) 965-7880

Anne Weismann

6117 Durbin Road 

Bethesda, MD 20817

* University affiliation noted for 

identification purposes only.

Attorneys for Appellants

Date: June 21, 2019

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CERTIFICATE OF COMPLIANCE

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

and Circuit Rule 27(c) because the brief contains 3,665 words, excluding the parts 

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

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

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

Microsoft Word 14-point Times New Roman. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: June 21, 2019

CERTIFICATE OF SERVICE

I hereby certify that on June 21, 2019, I electronically filed the foregoing 

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

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

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

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

the brief to be filed with the Clerk. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: June 21, 2019

USCA Case #19-5072 Document #1793993 Filed: 06/21/2019 Page 24 of 26
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

(A) Parties and Amici. Representative Ted Lieu, Senator Jeff Merkley, 

State Senator (ret.) John Howe, Zephyr Teachout, and Michael Wager were 

plaintiffs in the district court and are appellants in this Court. Representative 

Walter Jones was a plaintiff in the district court but is now deceased and is not an 

appellant. The Federal Election Commission (FEC) was the defendant in the 

district court and is the appellee in this Court. No amicus briefs were filed in the 

district court. With the FEC’s consent, notices of intent to participate as amici 

curiae in support of plaintiffs-appellants have been filed by: 

(1) Senator Sheldon Whitehouse; 

(2) Citizens for Responsibility and Ethics in Washington; and 

(3) Professor Christopher T. Robertson, Professor Kelly Bergstrand, and D. 

Alex Winkelman.

(B) Rulings Under Review. This is an appeal from an order of the United 

States District Court for the District of Columbia (entered on February 28, 2019 by 

the Honorable Emmet G. Sullivan) granting the FEC’s motion to dismiss the 

complaint. Lieu v. FEC, No. 1:16-cv-02201-EGS (D.D.C. Feb. 28, 2019), Dkt. No. 

USCA Case #19-5072 Document #1793993 Filed: 06/21/2019 Page 25 of 26
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47. The court’s Memorandum Opinion appears at 370 F. Supp. 3d 175 (D.D.C. 

2019). 

(C) Related Cases. This case was not previously before this Court or any 

other court. Counsel is not aware of any other related cases within the meaning of 

Circuit Rule 28(a)(1)(C) currently pending in this Court or in any other court.

/s/ Ronald A. Fein

Ronald A. Fein

Dated: June 21, 2019

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