EN BANC ARGUMENT SCHEDULED FOR NOVEMBER 30, 2018 

No. 18-5227 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

LIBERTARIAN NATIONAL COMMITTEE, INC., 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

_______________________________________________ 

On Certification of Constitutional Questions from the 

United States District Court for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

October 12, 2018 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), the Federal Election Commission hereby 

certifies as follows: 

(A) Parties and Amici. The Libertarian National Committee, Inc., was the 

plaintiff in the district court and is the plaintiff in this en banc proceeding pursuant 

to 52 U.S.C. § 30110. The Federal Election Commission was the defendant in the 

district court and is the defendant in this Court. There were no amici curiae in the 

district court. In this Court, the Goldwater Institute and the Institute for Free 

Speech have each filed a brief as amici curiae in support of the plaintiff. The 

Campaign Legal Center and Democracy 21 have indicated an intention to 

participate as amici curiae in support of the Federal Election Commission in this 

Court. 

(B) Rulings Under Review. This case comes before the Court of Appeals 

by way of certified constitutional questions, and so there is no ruling under review. 

On June 29, 2018, United States District Judge Beryl A. Howell certified three 

questions regarding the constitutionality of the Federal Election Campaign Act 

together with findings of fact. The certification appears in the Joint Appendix at 

JA 147-48, and the factual findings appear at JA 181-235. 

(C) Related Cases. This case has not previously been before this court or 

any other court, nor are there “any other related cases currently pending in this 

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court or in any other court.” Circuit Rule 28(a)(1)(C). The District Court 

previously considered a substantially similar case between the same parties as this 

action. Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) 

(Wilkins, J.). That court declined to certify to the Court of Appeals a broad 

question as the Libertarian National Committee, Inc., had requested, but the court 

instead certified a narrower question. Id. A panel of this Court summarily 

affirmed the district court’s refusal to certify the broader question. Libertarian 

Nat’l Comm., Inc. v. FEC, No. 13-5094 (D.C. Cir. Feb 7, 2014) (per curiam). The 

en banc Court of Appeals later dismissed the narrower certified question as moot. 

Libertarian Nat’l Comm., Inc. v. FEC, 13-5088 (D.C. Cir. Mar. 26, 2014) (en 

banc) (per curiam). 

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TABLE OF CONTENTS 

JURISDICTIONAL STATEMENT .................................................................... 1

STATUTES AND REGULATIONS ................................................................... 1

STATEMENT OF THE CASE ............................................................................ 1

A. Political Party Corruption, Federal Campaign Finance 

Regulation, and the Libertarian Party’s Court Challenges ............. 2

B. Congress’s 2014 Amendments to FECA ........................................ 8

C. The Segregated Account Provisions’ Impact 

on the LNC .................................................................................... 11

D. The Application of FECA’s Contribution Limits to 

Testamentary Contributions .......................................................... 12

E. Joseph Shaber’s Testamentary Contribution to the LNC .............. 14

F. District Court Proceedings ............................................................ 15

SUMMARY OF ARGUMENT ......................................................................... 16

STANDARD OF REVIEW ............................................................................... 18

ARGUMENT ..................................................................................................... 18

I. THE CONTRIBUTION LIMITS AT ISSUE ARE 

SUBJECT TO, AT MOST, CLOSELY DRAWN SCRUTINY ............. 18

II. FECA’S PROPHYLACTIC CONTRIBUTION LIMITS 

MAY BE CONSTITUTIONALLY APPLIED TO SHABER’S 

CONTRIBUTION TO THE LNC ........................................................... 21

A. The LNC Has Not Established That It Has a 

First Amendment Right to Receive Shaber’s 

Testamentary Contribution ............................................................ 21

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B. Even if the LNC’s Receipt of Contributions Implicates 

Its Speech Rights, Testamentary Contributions Raise 

Corruption Concerns and May Be Limited ................................... 25

1. FECA’s Contribution Limits Are Not Subject to the 

Type of Individualized Exception the LNC Seeks ............. 25

2. Application of FECA’s Limits to Shaber’s 

Testamentary Contribution Is Consistent with the 

First Amendment................................................................. 29

III. FECA’S LIMITS ON CONTRIBUTIONS TO NATIONAL PARTY 

COMMITTEES REMAIN CONSTITUTIONAL AFTER THE 2014 

AMENDMENTS PERMITTING THOSE PARTIES TO RAISE 

FUNDS IN LARGER AMOUNTS ......................................................... 32

A. The Segregated Account Provisions Restrict 

Contributions, Not Expenditures, and Are Subject to 

Closely Drawn Scrutiny ................................................................ 33

B. The Segregated Account Provisions Are Content Neutral, 

Rendering Strict Scrutiny Inapplicable ......................................... 37

C. Under Closely Drawn Scrutiny, FECA’s Limits on 

Contributions to National Party Committees 

Remain Constitutional ................................................................... 42

D. Applying the Segregated Account Limits to Shaber’s 

Testamentary Contribution Is Constitutional ................................ 52

E. If the Segregated Account Provisions Were Deemed 

Unconstitutional, the Appropriate Remedy Would Be to 

Revert Those Limits to the Status Quo Ante ................................. 52

CONCLUSION .................................................................................................. 57

 

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TABLE OF AUTHORITIES 

Cases Page 

A.N.S.W.E.R. Coal. v. Basham, 

845 F.3d 1199 (D.C. Cir. 2017) .............................................................. 39, 40 

Alaska Airlines, Inc. v. Brock, 

480 U.S. 678 (1987) ...................................................................................... 53 

Bailey v. Fed. Nat’l Mortg. Ass’n, 

209 F.3d 740 (D.C. Cir. 2000) ...................................................................... 18 

Bismullah v. Gates, 

551 F.3d 1068 (D.C. Cir. 2009) .................................................................... 55 

*Buckley v. Valeo, 

424 U.S. 1 (1976) .................... 2-4, 19-23, 26-27, 31, 33-34, 37-38, 41, 43-45 

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................................................................. 5, 27 

Cousins v. Wigoda, 

419 U.S. 477 (1975) ...................................................................................... 50 

Davis v. FEC, 

554 U.S. 724 (2008) ................................................................................ 44, 49 

Dean v. Blumenthal, 

577 F.3d 60 (2d Cir. 2009) ........................................................................... 24 

FEC v. Beaumont, 

539 U.S. 146 (2003) ...................................................................................... 28 

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) ...................................................................................... 31 

Free & Fair Election Fund v. Mo. Ethics Comm’n, 

903 F.3d 759 (8th Cir. 2018) ................................................................... 24-25 

 * Authorities upon which we chiefly rely are marked with asterisks. 

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Hill v. Colorado, 

530 U.S. 703 (2000) ................................................................................ 40, 41 

Holder v. Humanitarian Law Project, 

561 U.S. 1 (2010) .......................................................................................... 40 

*Holmes v. FEC, 

875 F.3d 1153 (D.C. Cir. 2017) ................18-19, 23, 27-28, 38, 44, 45, 48, 56 

Holmes v. FEC, 

823 F.3d 69 (D.C. Cir. 2016) ........................................................................ 28 

Ill. Liberty PAC v. Madigan, 

--- F.3d ----, No. 16-3585, 2018 WL 4354424 

(7th Cir. Sept. 13, 2018) ............................................................. 43, 44, 45, 49 

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

228 F. Supp. 3d 19 (D.D.C. 2017) .......................................................... 35, 36 

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

No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014) ............................ 13 

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

930 F. Supp. 2d 154 (D.D.C. 2013) .................................................. 13, 21, 25 

*McConnell v. FEC, 

540 U.S. 93 (2003) ........................ 5-6, 8, 11, 22, 29, 32-35, 38, 42-43, 45, 47 

McCutcheon v. FEC, 

572 U.S. 185 (2014) .............................................................. 19, 21, 24, 29, 49 

Minnesota v. Mille Lacs Band of Chippewa Indians, 

526 U.S. 172 (1999) ...................................................................................... 53 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) ..................................................................... 21, 23-24, 38 

Ognibene v. Parkes, 

671 F.3d 174 (2d Cir. 2011) ......................................................................... 27 

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*Randall v. Sorrell, 

548 U.S. 230 (2006) .................................................................... 33, 43, 44, 45 

Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015) ............................................................................. 38-39 

Reno v. Am. Civil Liberties Union, 

521 U.S. 844 (1997) ...................................................................................... 55 

Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150 (D.D.C. 2010) .................................................. 28, 36, 41 

Rufer v. FEC, 

64 F. Supp. 3d 195 (D.D.C. 2014) .................................................................. 8 

Sessions v. Morales-Santana, 

137 S. Ct. 1678 (2017) ............................................................................ 56, 57 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) ...................................................................... 4, 5 

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

732 F.3d 535 (5th Cir. 2013) ........................................................................ 24 

Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622 (1994) ...................................................................................... 39 

United States v. Goland, 

959 F.2d 1449 (9th Cir. 1992) ...................................................................... 31 

Virginia v. Am. Booksellers Ass’n, Inc., 

484 U.S. 383 (1988) ...................................................................................... 54 

Wagner v. FEC, 

793 F.3d 1 (D.C. Cir. 2015) .......................................................................... 42 

Wagner v. FEC, 

717 F.3d 1007 (D.C. Cir. 2013) .................................................................... 18 

Ward v. Rock Against Racism, 

491 U.S. 781 (1989) .......................................................................... 39, 41, 51 

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Statutes 

26 U.S.C. §§ 9008-09 .......................................................................................... 9 

26 U.S.C. § 9012 .................................................................................................. 9 

52 U.S.C. § 30101(1)(B) .................................................................................... 50 

52 U.S.C. § 30101(8)(A)(i) .................................................................................. 4 

52 U.S.C. § 30110 .......................................................................................... 1, 18 

52 U.S.C. § 30116(a)(1)(B) .................................................. 4, 6, 9, 34-35, 54, 55 

52 U.S.C. § 30116(a)(1)(D) ................................................................................. 7 

52 U.S.C. § 30116(a)(9) ................................................................... 11, 35, 54, 55 

52 U.S.C. § 30116(a)(9)(A) ......................................................................... 35, 39 

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

52 U.S.C. § 30116(a)(9)(B) ............................................................................... 40 

52 U.S.C. § 30116(a)-(d) ..................................................................................... 9 

52 U.S.C. § 30116(c) ........................................................................................... 6 

52 U.S.C. § 30125(a) ........................................................................................... 6 

52 U.S.C. § 30125(b) ........................................................................................... 7 

52 U.S.C. § 30125(b)(1) ...................................................................................... 6 

52 U.S.C. § 30125(b)(2) ...................................................................................... 6 

52 U.S.C. § 30144 .............................................................................................. 53 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 (2002) ...................................................... 6 

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Consolidated and Further Continuing Appropriations Act, 2015, 

Pub. L. No. 113-235, 128 Stat. 2130 (2014) .................................................. 9 

Federal Elections Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, 90 Stat. 475 (1976)......................................................... 4 

Gabriella Miller Kids First Research Act, 

Pub. L. No. 113-94, 128 Stat. 1085 (2014) .................................................... 9 

Regulations 

11 C.F.R. § 300.30 ............................................................................................... 7 

11 C.F.R. § 9008.2(g) ........................................................................................ 50 

Other Authorities 

160 Cong. Rec. H9074 (daily ed. Dec. 11, 2014) 

(statement of Rep. Cole) ......................................................................... 10, 45 

160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) 

(statement of Rep. Boehner) .................................................. 10-11, 45, 46, 51 

160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014) 

(statement of Sen. Reid) ................................................................................ 10 

Br. of the Political Parties, McConnell v. FEC 

(and consolidated cases), Nos. 02-1727; 02-1733; 02-1753, 

2003 WL 21911213 (U.S. filed July 8, 2003) ................................................ 7 

Br. of the Appellants, Buckley v. Valeo, Nos. 75-436; 75-437, 

1975 WL 441595 (U.S. filed Sept. 30, 1975) ................................................. 3 

Carla Marinucci, GOP Donors Funding Nader/Bush 

Supporters Give Independent’s Bid a Financial Lift, S.F. Chron., 

July 9, 2004, http://www.sfgate.com/politics/article/GOP-donorsfunding-Nader-Bush-supporters-give-2708705.php 

(last visited Oct. 12, 2018) ............................................................................ 31 

FEC Advisory Op. 2015-05 (Shaber), 

2015 WL 4978865 (Aug. 11, 2015) ......................................................... 12-13 

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FEC Advisory Op. 2009-04 (Franken/DSCC), 

2009 WL 961213 (Mar. 20, 2009) ................................................................ 47 

FEC Advisory Op. 2006-24 (NRSC/DSCC), 

2006 WL 2918565 (Oct. 5, 2006) ................................................................. 46 

Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

82 Fed. Reg. 10,904 (Feb. 16, 2017) ............................................................ 11 

Reply Br. of the Appellants, Buckley v. Valeo, Nos. 75-436; 75-437, 

1975 WL 171458 (U.S. filed Nov. 3, 1975) ................................................... 3 

 

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GLOSSARY 

BCRA Bipartisan Campaign Reform Act of 2002 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

FEC Add. Addendum to Federal Election Commission’s Motion to 

Dismiss for Lack of Subject-Matter Jurisdiction 

(Document # 1749853) 

JA Joint Appendix 

LNC Libertarian National Committee, Inc. 

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JURISDICTIONAL STATEMENT 

The Libertarian National Committee, Inc. (“LNC”) lacks standing to sue 

under Article III of the Constitution for the reasons explained in the Federal 

Election Commission’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction 

(Doc. No. 1749853). 

If the LNC possesses standing, the district court otherwise had jurisdiction to 

find facts and certify constitutional questions to this Court under 52 U.S.C. 

§ 30110. That same provision grants jurisdiction for this Court to hear certified 

questions of constitutionality of the Federal Election Campaign Act (“FECA”) and 

directs that the Court hear the matter sitting en banc.

STATUTES AND REGULATIONS 

All applicable statutory provisions are contained in the Plaintiff’s Opening 

Brief. 

STATEMENT OF THE CASE 

The LNC challenges two aspects of FECA’s limits on political contributions 

to national political party committees. First, the LNC claims that its First 

Amendment right to free speech requires an exception to the generally applicable 

annual limits so that it may immediately receive in one lump sum a large 

contribution that a now-deceased supporter left the LNC in his estate. Second, the 

LNC facially challenges the constitutionality of a 2014 amendment to FECA, in 

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which Congress increased the amount of money national committees can legally 

accept by authorizing those committees to create three segregated accounts that can 

be used only to defray particular categories of expenses. This lawsuit is simply the 

latest episode in a forty-year legal effort by groups associated with the Libertarian 

Party to have FECA’s contribution limits declared unconstitutional. Although the 

LNC professes not to challenge that history, many of the arguments it makes here 

are similarly meritless under decades of clear precedent. 

A. Political Party Corruption, Federal Campaign Finance 

Regulation, and the Libertarian Party’s Court Challenges 

Many of our nation’s most notorious political scandals have included actual 

and apparent quid pro quos involving contributions to political party committees. 

After the “Democratic campaign book” scandal involving payments to the party in 

return for government business, Congress enacted restrictions on contributions to 

national political parties as part of the Hatch Act. (JA 201.) The Watergate 

scandal and “deeply disturbing examples” from the 1972 federal elections included 

contributors giving large amounts of money “to secure a political quid pro quo 

from current and potential office holders.” Buckley v. Valeo, 424 U.S. 1, 26-27 & 

n.28 (1976) (per curiam). In response, Congress enacted FECA’s limits on 

contributions from individuals and certain other groups to federal candidates. Id. 

Congress also created a system for public financing of presidential elections, 

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including funds to political parties to “defray their national committee Presidential 

nominating convention expenses.” Id. at 87. 

The Libertarian Party immediately joined others in challenging the 

constitutionality of these provisions. The Libertarian Party argued, as the LNC 

does here, that limits on contributions to candidates were “a regulation on the 

content as well as the quantity of political communication” and therefore they had 

to be justified by a “compelling governmental interest.” Reply Br. of the 

Appellants, Buckley v. Valeo, Nos. 75-436; 75-437, 1975 WL 171458, at *19, *53 

(U.S. filed Nov. 3, 1975). The party additionally argued that the limits on 

contributions to candidates were unconstitutionally overbroad because “most large 

contributors do not seek improper influence.” Buckley, 424 U.S. at 29. And the 

presidential convention financing provisions violated the First and Fifth 

Amendments, the party argued, because they were “blatantly discriminatory” 

against minor parties and independent candidates. Br. of the Appellants, Buckley 

v. Valeo, Nos. 75-436; 75-437, 1975 WL 441595, at *169 (U.S. filed Sept. 30, 

1975).

The Supreme Court rejected each of these arguments. The Court determined 

that contribution limits need only be “closely drawn” to a “sufficiently important 

interest,” rather than the “compelling” interest of strict scrutiny that the Court 

applied to expenditure limits. Buckley, 424 U.S. at 25. The Court found “no 

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indication” that contribution limits “would have any dramatic adverse effect on the 

funding of campaigns and political associations” and that their “overall effect” was 

“merely to require candidates and political committees to raise funds from a 

greater number of persons” and encourage direct political expression by those who 

would otherwise exceed the limits. Id. at 21-22. The Court concluded that 

although it “may be assumed” that “most large contributors do not seek improper 

influence,” “Congress was justified in concluding that” all contributions must be 

limited in order to eliminate “the opportunity for abuse.” Id. at 29-30. And the 

Court held that FECA’s provision of public financing for presidential nominating 

conventions was not discriminatory against minor parties. Id. at 104-05. 

After Buckley, Congress established a $20,000 limit on the amount that any 

person could contribute each calendar year to any political committee established 

and maintained by a national political party. See FECA Amendments of 1976, 

Pub. L. No. 94-283, § 112(2), 90 Stat. 475 (1976) (codified as amended at 52 

U.S.C. § 30116(a)(1)(B)). At that time, FECA’s contribution limits applied only to 

donations that fell within the statute’s definition of “contribution,” specifically 

those donations “made by any person for the purpose of influencing any election 

for Federal office.” See 52 U.S.C. § 30101(8)(A)(i) (emphasis added); Shays v. 

FEC, 414 F.3d 76, 80-81 (D.C. Cir. 2005). Donations to political party 

committees purportedly “aimed at state and local elections” were not limited in 

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amount, were largely unregulated by FECA, and came to be termed “soft money.” 

Shays, 414 F.3d at 80. 

For some time, the Federal Election Commission (“Commission” or “FEC”) 

“took a permissive view” regarding contributions that were ostensibly intended to 

influence both federal and state elections. Id. at 80. Thus, in 1977 the 

Commission permitted political parties to fund mixed-purpose activities in part 

with soft money. McConnell v. FEC, 540 U.S. 93, 123-24 (2003), overruled in 

part on other grounds, Citizens United v. FEC, 558 U.S. 310 (2010). Additionally, 

the Commission authorized political party committees to allocate their 

administrative expenses between accounts containing funds raised in compliance 

with FECA’s source-and-amount limits and accounts containing soft money. Id. at 

123 n.7. 

Many years of experience with soft money led to “disturbing findings” about 

its use and “campaign practices related to the 1996 federal elections.” McConnell, 

540 U.S. at 122; see JA 203-10. A series of quid pro quos by former lobbyist Jack 

Abramoff and former Representative Bob Ney included substantial sums to party 

committees. (JA 207-09.) Congress responded by again refining FECA’s limits 

on contributions to national party committees through enactment of the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”). McConnell, 540 U.S. at 122. Among 

other changes, that law increased the limit for contributions to national political 

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party committees to $25,000 and indexed that limit for inflation, but banned soft 

money by requiring that all contributions to those committees be subject to 

FECA’s limits. See BCRA, Pub. L. No. 107-155, §§ 101(a), 307(a)(2), (d), 116 

Stat. 81 (2002) (codified as amended at 52 U.S.C. §§ 30116(a)(1)(B), (c), 

30125(a)). 

At the same time, Congress generally prohibited state, district, and local 

committees of political parties from spending funds raised outside of FECA’s 

limits on “Federal election activity.” 52 U.S.C. § 30125(b)(1). These groups, 

however, may receive contributions to finance activities falling outside the 

statutory definition of that term without regard to federal restrictions. Id. A “main 

goal” of BCRA was to reverse the effect of the allocation regime which had 

“permitted the political parties to fund federal electioneering efforts with a 

combination of hard and soft money.” McConnell, 540 U.S. at 142. But in doing 

so, Congress also “carve[d] out an exception” to allow “state and local party 

committees to pay for certain types of federal election activity with an allocated 

ratio” of money raised pursuant to FECA’s source and amount limitations and socalled “Levin funds.” Id. at 162-63. Levin funds are subject to a $10,000 

contribution limit, but FECA otherwise “leaves regulation of such contributions to 

the States.” Id. at 163; see 52 U.S.C. § 30125(b)(2). Thus, Congress permitted 

state and local parties to receive from a single person $10,000 subject to FECA’s 

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source and amount limitations but which could be used for any purpose; another 

$10,000 in Levin funds from any source permitted by state law which could be 

used to finance specified federal election activity; and other amounts for 

nonfederal uses subject only to the law of the relevant state. See 52 U.S.C. §§ 

30116(a)(1)(D), 30125(b); 11 C.F.R. § 300.30 (outlining rules for separate federal, 

nonfederal, and Levin accounts). 

The LNC and other party committees immediately challenged the 

constitutionality of BCRA and revived previously unsuccessful arguments for the 

application of strict scrutiny. Among other things, the LNC argued that the BCRA 

provision requiring all “Federal election activity” to be financed through funds 

raised pursuant to FECA (1) should be subject to strict scrutiny like expenditure 

restrictions because it “requir[ed] national political parties to engage in political 

spending exclusively with federal money”; (2) regulated fundraising by political 

parties that purportedly could not corrupt federal candidates; and (3) discriminated 

against political parties in a manner “similar to that from content-based 

regulation.” See Br. of the Political Parties, McConnell v. FEC (and consolidated 

cases), Nos. 02-1727; 02-1733; 02-1753, 2003 WL 21911213, *35-39, *50-57, 

*91-98 (U.S. filed July 8, 2003). 

The Supreme Court again rejected these arguments. The Court maintained 

Buckley’s application of a lower level of scrutiny for contribution limits than for 

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restrictions on expenditures. McConnell, 540 U.S. at 134-42. The Court reasoned 

that BCRA’s restrictions on party committees’ use of soft money “simply limit the 

source and individual amount of donations” and were not “expenditure 

limitations.” Id. at 139. Applying the “lesser demand” of closely drawn scrutiny, 

the Court concluded that the “special relationship and unity of interest” between 

federal candidates and political parties provided sufficient justification for 

Congress to limit contributions to both groups. Id. at 145. In the course of this and 

other challenges, the Supreme Court and lower courts have repeatedly explained 

how political parties are particularly susceptible to contributors who want a quid 

pro quo relationship with an officeholder. (JA 198-200.) 

More recently, a Libertarian party committee and supporter sought to have 

federal contribution limits enjoined as to funds they would choose to place in 

segregated accounts and spend independently from candidates, but they withdrew 

their challenge after, inter alia, the district court found their claims “in tension with 

forty years of Supreme Court jurisprudence upholding contribution limits to 

political parties” and denied their motion for preliminary injunction. Rufer v. FEC, 

64 F. Supp. 3d 195, 205 (D.D.C. 2014). 

B. Congress’s 2014 Amendments to FECA 

In 2014, Congress made two statutory changes that affect the amounts of 

money national party committees may raise. In April 2014, Congress terminated 

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the public funding of presidential nominating conventions. See Gabriella Miller 

Kids First Research Act, Pub. L. No. 113-94, 128 Stat. 1085 (2014) (codified at 26 

U.S.C. §§ 9008-09, 9012). All parties must now finance their nominating 

conventions through private contributions. 

Later that same year, Congress amended FECA to authorize national 

political party committees to create three “separate, segregated account[s]” which 

could be “used solely to defray expenses incurred with respect to”: (1) “a 

presidential nominating convention”; (2) “the construction, purchase, renovation, 

operation, and furnishing of one or more headquarters buildings of the party”; and 

(3) “the preparation for and the conduct of election recounts and contests and other 

legal proceedings.” 52 U.S.C. § 30116(a)(9)(A)-(C); see Consolidated and Further 

Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2772 

(2014) (codified at 52 U.S.C. § 30116(a)-(d)). Contributions to any of these 

accounts are limited to “300 percent of the amount otherwise applicable” to 

contributions to these national committees per calendar year. 52 U.S.C. 

§ 30116(a)(1)(B). National committees may continue to use funds contributed into 

their general account on any expense they wish, even if they also choose to raise 

money for that expense through the new segregated accounts. 

Congressional leaders explained the purpose behind these new accountbased party limits through identical explanations of congressional intent. 

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160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner); see 

also 160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid). 

That intent was to “provide national political party committees with a means of 

acquiring additional resources” for presidential nominating conventions “because 

such conventions may no longer be paid for with public funds.” 160 Cong. Rec. 

H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner). The two other types 

of new accounts, to raise funds to defray headquarters and legal expenses, similarly 

reflected Congress’s desire to permit political parties to acquire more resources. 

Id.; see also 160 Cong. Rec. H9074 (daily ed. Dec. 11, 2014) (statement of Rep. 

Cole) (explaining that the new limits would allow political “parties who are more 

transparent and more accountable” than many independent groups “to have the 

resources to compete”). Congressional leaders noted that these two types of 

expenses were less directly tied to election campaigns for federal office. See 160 

Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (stating 

that “many of” these expenses, “such as recount and legal proceeding expenses, are 

not for the purpose of influencing Federal elections”). 

As the explanations of congressional intent clarified, “[a]ll of the funds” 

parties could raise into the new accounts would be limited to “‘hard money’ 

subject to all of the source limitations, prohibitions, and disclosure provisions of” 

FECA. 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. 

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Boehner). Congress therefore adhered to the principle, recognized by the 

McConnell Court, that all contributions to national political party committees 

should be subject to FECA’s provisions to advance the “strong interests in 

preventing corruption” and its appearance. McConnell, 540 U.S. at 156. 

As the contribution limits stand today, a person may contribute up to 

$33,900 to a national party committee’s general fund plus an additional $101,700 

to each of the three segregated accounts the committee may create, for combined 

annual limits totaling $339,000. See Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 82 Fed. 

Reg. 10,904, 10,905-06 (Feb. 16, 2017). 

C. The Segregated Account Provisions’ Impact on the LNC 

Although the LNC argues that it has less use for the categories of expenses 

identified in 52 U.S.C. § 30116(a)(9) than for electoral advocacy, the record 

reflects that the LNC actually spends substantial sums on those specific activities. 

The LNC does not tailor its accounting records to the segregated account 

provisions in FECA, but in general, the LNC spent approximately $467,251.58 on 

those types of expenses in 2016 alone, which is a little more than 20% of the 

amount it budgeted for expenses that year. (JA 188.) Some of those expenses 

undoubtedly financed expressive activities, but others were typical office and 

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administrative expenses such as mortgage payments, utility fees, and cleaning 

services. (JA 125-26.) 

Even prior to the 2014 congressional amendments, the LNC regularly 

engaged in project-based fundraising and “guaranteed” that funds raised through 

those solicitations would “be used only for” the expenses identified. (JA 186.) 

The LNC finds that this kind of fundraising “is often more effective” than “asking 

for ‘unearmarked’ money.” (JA 183.) At least some of that fundraising tracked 

the categories of expenses Congress later identified in the segregated account 

provisions. For example, the LNC has for many years maintained a separate 

“building fund” and “Legal Offense Fund.” (JA 184-86.) 

The LNC has also taken advantage of the newly expanded segregated limits, 

accepting more than $55,000 into a segregated account for its headquarters. (JA 

186.) That money came from donors who had already contributed the maximum 

amount into the LNC’s general fund, and so it was money the LNC could not have 

accepted absent the new segregated account provisions. (Id.) 

D. The Application of FECA’s Contribution Limits to Testamentary 

Contributions 

FECA’s contribution limits apply to contributions made through 

testamentary estates just as those limits would have applied to the decedent were 

he or she still living. See, e.g., FEC Advisory Op. 2015-05 (Shaber), 2015 WL 

4978865, at *2 (Aug. 11, 2015) (citing Commission advisory opinions). In cases 

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where a decedent’s estate planning documents result in a contribution to a 

candidate or political party in excess of the relevant annual limit, the estate or an 

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

funds and contribute them to the recipient in successive years in amounts that 

comply with FECA’s limits, until the full sum is distributed. Id. at *2-3. 

In 2014, a panel of this Court rejected an LNC challenge to FECA’s 

contribution limits as they generally applied to testamentary contributions. That 

panel determined that the merits of the LNC’s claim were “so clear as to warrant 

summary” affirmance of the district court’s refusal to certify the LNC’s broad 

proposed question. Libertarian Nat’l Comm., Inc. v. FEC, No. 13-5094, 2014 WL 

590973, at *1 (D.C. Cir. Feb. 7, 2014) (per curiam). The district court had 

concluded that “the as-applied challenge brought by the LNC” was “impermissible 

because it raise[d] issues that the Supreme Court ha[d] already addressed” and that 

preventative contribution limits “should be the same for bequests as for other 

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

67 (D.D.C. 2013) (“LNC I”). The district court did certify a narrow question 

whether FECA’s contribution limits could be constitutionally applied to one 

specific bequest to the LNC, from a donor whose only known interaction with the 

LNC during his life was a single $25 contribution, id. at 168-71, but that part of the 

matter became moot while pending before this Court, see Order, Libertarian Nat’l 

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Comm. v. FEC, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc) (per curiam) 

(Doc. No. 1485531). 

E. Joseph Shaber’s Testamentary Contribution to the LNC 

Later in 2014, Joseph Shaber, a longtime supporter of the LNC, passed 

away. (JA 223.) In his estate planning documents, Shaber had made the LNC a 

beneficiary of a trust to be paid after his death. (JA 222-23.) The LNC’s interest 

was ultimately determined to be worth $235,575.20. (JA 224.) Due to normal 

administrative delays, the LNC did not have access to any of the money until 2015. 

(JA 223.) 

Although Congress’s 2014 amendments to FECA meant that the LNC could 

have accepted the entire amount Shaber left all at once by utilizing segregated 

accounts, and the Trustee offered to contribute in that way, the LNC declined. (See 

JA 224; FEC Add. at 104-05.) The LNC instead stated that it wished to “accept 

and spend the entire amount” on “general expressive purposes, including 

expression in aid of its federal election efforts.” (JA 224.) Shaber had not 

restricted how the LNC should accept the funds, specifying that the money should 

be distributed “outright” to the LNC. (JA 224.) The Trust and the LNC agreed to 

deposit funds in excess of the general annual limit into an escrow account for 

annual distributions equal to that limit. (JA 224-25.) The LNC considered 

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accepting the entire amount into separate accounts in 2016 but ultimately decided 

against that plan in order to maintain this lawsuit. (FEC Add. at 106.) 

While he was alive, Shaber had made 46 donations to the LNC, totaling 

$3,315. (JA 221.) Those contributions made Shaber eligible to be a “life member” 

of the LNC, and they led the LNC to include Shaber on in-house mailing lists 

through which the LNC makes regular solicitations for contributions. (JA 221-22.) 

The LNC also invited Shaber to at least one VIP event in 2013, which was held in 

conjunction with a large annual convention that Libertarian candidates frequently 

attend, and sent Shaber at least one fundraising appeal directly related to its 

headquarters. (JA 222, 224.) 

The LNC has asked supporters to include the LNC as a beneficiary in their 

estate planning, though the record does not reflect whether Shaber himself received 

such a solicitation. (JA 226.) These requests have been successful. The LNC has 

learned that at least two living individuals have named or intend to name the LNC 

as a beneficiary in their wills. (JA 226, 231.) 

F. District Court Proceedings 

The LNC filed this suit in 2016, making claims that the general and 

segregated account limits cannot constitutionally be applied to Shaber’s 

contribution and a facial claim that the segregated account limits are 

unconstitutional content-based speech restrictions. (JA 13-16.) The Commission 

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moved to dismiss, arguing that the injuries the LNC alleged were either selfinflicted or not caused by FECA and therefore could not support Article III 

standing. The district court denied the Commission’s motion. (JA 29.) After 

discovery, the Commission again moved to dismiss, arguing that the constitutional 

questions the LNC sought to ask this Court were ineligible for certification under 

52 U.S.C. § 30110. The district court denied that motion as well, concluding that 

the LNC’s claims were not “wholly insubstantial, obviously frivolous, or obviously 

without merit” so as to be ineligible for certification. (JA 177 (alteration and 

internal quotation marks omitted).) The district court certified three questions and 

entered findings of fact. (JA 181-235.) 

SUMMARY OF ARGUMENT 

The LNC’s claims each run counter to Supreme Court precedent. The 

LNC’s as-applied claims depend on its contention that it has a First Amendment 

speech right to receive a specific contribution from a deceased donor, but it has not 

established any such right. Contribution restrictions burden the associational

rights of both the donor and recipient of a campaign contribution, but the LNC 

expressly disclaims reliance on any such associational right as it relates to 

contributions received through a decedent’s estate. And as far as speech rights are 

concerned, prior decisions evaluating contribution limits have primarily relied on 

the rights of the donor, not the recipient, and in any event have concluded that 

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constitutional harm occurs only if the limits are too low — a claim the LNC does 

not make. 

Even if a First Amendment speech right to receive exists, applying 

contribution limits to the specific testamentary contribution at issue here remains 

constitutional. The LNC does not contest that limits on testamentary contributions 

are justified by corruption concerns, consistent with longstanding precedent. 

Instead, the LNC argues that an exception to those limits should be made for a 

single donor. But under closely drawn scrutiny, a generally valid contribution 

limit is not unconstitutionally overbroad because it prohibits more than only 

corrupt contributions. 

The LNC’s facial attack on Congress’s amendment of FECA to permit 

political parties to raise funds in higher amounts for segregated accounts that may 

be used only for certain categories of expenses is similarly flawed. The 

applicability of these higher contribution limits depends on the category of expense 

the party undertakes, not the content of any speech financed by those expenses. 

Nor do the segregated account provisions restrict expenditures; parties remain free 

to spend as much as they wish on any type of expense. 

The Supreme Court has already affirmed Congress’s judgment that all 

contributions to national parties can corrupt or create an appearance of corruption, 

a conclusion that the LNC does not dispute here. But it does not necessarily follow 

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that all contributions must be subject to the same dollar limit. Here, Congress 

exercised its particular expertise in the costs and nature of running for political 

office and determined that while all contributions should remain subject to an 

annual limit, a higher limit for certain categories of expenses would permit the 

parties to raise additional resources for those activities without presenting an 

intolerable risk of corruption. This Court should accept that judgment. 

STANDARD OF REVIEW 

The LNC filed this case pursuant to 52 U.S.C. § 30110. That provision 

requires the district court, after making appropriate findings of fact, to certify all 

non-frivolous questions of constitutionality of FECA to the en banc court of 

appeals. Id.; see Holmes v. FEC, 875 F.3d 1153, 1157 (D.C. Cir. 2017) (en banc), 

cert. denied, 138 S. Ct. 2018 (2018). This Court determines the merits in this first 

instance, and no judgment of the district court is under review. See Wagner v. 

FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013). The district court’s findings of fact 

“may not be set aside unless clearly erroneous.” Bailey v. Fed. Nat’l Mortg. Ass’n, 

209 F.3d 740, 743 (D.C. Cir. 2000). 

ARGUMENT 

I. THE CONTRIBUTION LIMITS AT ISSUE ARE SUBJECT TO, AT 

MOST, CLOSELY DRAWN SCRUTINY 

“In Buckley, the Supreme Court set out the standards for judicial review of 

campaign-finance regulations challenged under the First Amendment.” Holmes, 

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875 F.3d at 1158. There, the Court distinguished between limits on a person’s 

election-influencing expenditures and limits on a person’s contributions to 

candidates or political groups. Limits on a person’s independent expenditures are 

subject “to ‘the exacting scrutiny applicable to limitations on core First 

Amendment rights of political expression.’” McCutcheon v. FEC, 572 U.S. 185, 

197 (2014) (quoting Buckley, 424 U.S. at 44-45) (plurality op.). Limits on a 

person’s financial contributions to others, however, are subject to a “lesser” 

standard and “‘may be sustained if the State demonstrates a sufficiently important 

interest and employs means closely drawn to avoid unnecessary abridgement of 

associational freedoms.’” Id. (quoting Buckley, 424 U.S. at 25). 

The Court drew this distinction between expenditures and contributions in 

light of the differences in “the degree to which each encroaches upon protected 

First Amendment interests.” McCutcheon, 572 U.S. at 197. Expenditure 

restrictions are subject to strict scrutiny because they “necessarily reduce[] the 

quantity of expression.” Buckley, 424 U.S. at 19. A “limitation upon the amount 

that any one person or group may contribute to a candidate or political committee,” 

by contrast, “entails only a marginal restriction upon the contributor’s ability to 

engage in free communication.” Id. at 20. This is so because contribution limits 

“permit[] the symbolic expression of support evidenced by a contribution but do[] 

not in any way infringe the contributor’s freedom to discuss candidates and 

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issues.” Buckley, 424 U.S. at 21. And while “contribution restrictions could have 

a severe impact on political dialogue” if they are set at too low a limit, they are 

permissible unless they would “prevent[] candidates and political committees from 

amassing the resources necessary for effective advocacy.” Id.

In light of these principles, the LNC concedes two important points. First, 

the LNC states that “this case does not challenge Buckley.” (Opening Br. at 60 

n.13.) Second, the LNC states that it “does not revisit” the conclusion in LNC I 

“that testamentary bequests may theoretically raise corruption concerns, thus 

generally warranting their subjection to FECA’s contribution limits.” (Id. at 35.) 

These concessions greatly reduce the scope of legal issues this Court must 

decide. Because the LNC does not dispute that testamentary contributions may 

raise corruption concerns or that FECA’s limits on those contributions are 

“generally warrant[ed],” the narrower application of those principles here easily 

survives review. And the LNC’s acceptance of Buckley’s distinction between 

expenditures and contributions effectively decides its facial claim, despite the 

LNC’s efforts to persuade the Court to apply strict scrutiny. 

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II. FECA’S PROPHYLACTIC CONTRIBUTION LIMITS MAY BE 

CONSTITUTIONALLY APPLIED TO SHABER’S CONTRIBUTION 

TO THE LNC 

A. The LNC Has Not Established That It Has a First Amendment 

Right to Receive Shaber’s Testamentary Contribution 

As an initial matter, the LNC has not established that the First Amendment’s 

protection of the freedom of speech includes the right of an organization to receive 

a political contribution from a particular deceased donor. The Supreme Court’s 

analysis of contribution limits has consistently explained those limits bear “more 

heavily on the associational right than on freedom to speak,” Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 388 (2000) (emphasis added), beginning with Buckley

where the Court “focused on the effect of the contribution limits on the freedom of 

political association.” McCutcheon, 572 U.S. at 197 (citing Buckley, 424 U.S. at 

29). The Supreme Court has explained that limits on the amount a person may 

contribute to a political group also implicate the speech rights of the contributor. 

E.g., id. at 203. Here, however, the LNC makes plain that “Shaber’s death ended 

his expression and association” and that the LNC “does not associate with the 

dead.” (Opening Br. at 34.) Thus, consistent with caselaw, see, e.g., LNC I, 930 F. 

Supp. 2d at 170, the LNC disclaims any reliance on Shaber’s speech or 

associational rights, or its own rights to associate with its supporters. (See Opening 

Br. at 33-34.) Instead, the LNC seeks to extend the Supreme Court’s analysis of 

the contributor’s speech rights to establish that its own speech rights are violated 

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when the law prevents it from accepting an unlimited amount from a specific 

source. (Opening Br. at 31-33). 

The LNC’s proposed extension is contrary to the Supreme Court’s analysis. 

Buckley made clear that contribution limits “could have a severe impact on 

political dialogue if the limitations prevented candidates and political committees 

from amassing the resources necessary for effective advocacy.” 424 U.S. at 21. 

But the Court found “no indication” that FECA’s contribution limits “would have 

any dramatic adverse effect on the funding of campaigns and political 

associations.” Buckley, 424 U.S. at 21-22. Following Buckley, the McConnell

Court explained that because “the communicative value of large contributions 

inheres mainly in their ability to facilitate the speech of their recipients,” 

contribution limits “impose serious burdens on free speech only if they are so low

as to” fail Buckley’s test. McConnell, 540 U.S. at 135 (emphasis added). 

The LNC has not argued that applying FECA’s annual limits to Shaber’s 

contribution prevents it — the recipient — from engaging in effective advocacy. 

Nor would such an argument be successful, since FECA’s current combined limits 

for contributions to national committees are substantially higher than the limits the 

Supreme Court has previously approved. See, e.g., Buckley, 424 U.S. at 21; 

McConnell, 540 U.S. at 159, 173. 

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In fact, the LNC has not shown that the limits at issue impair its speech at 

all. While the act of receiving a political contribution involves speech rights of the 

donor and serves to associate the donor with the recipient, it does not involve 

speech by the recipient. Contributions “result in political expression if” they are 

“spent by a candidate or an association to present views to the voters.” Buckley, 

424 U.S. at 21 (emphasis added). “A contributor does not direct” how a recipient 

expends funds, so “any decision” on how to spend funds “is an independent one on 

the part of” the recipient. Cf. Holmes, 875 F.3d at 1167 (discussing transfers 

between primary and general election funds of candidate campaigns). While a 

contribution limit that is too low may inhibit speech by preventing a group from 

“amassing the resources necessary” to pay for “distribution of the humblest 

handbill or leaflet,” “hiring a hall and publicizing” an event, or purchasing time 

“on television, radio, and other mass media,” the “overall effect” of a limit that is 

not too low “is merely to require” such groups “to raise funds from a greater 

number of persons.” Buckley, 424 U.S. at 19, 21-22. 

The cases on which the LNC relies do not establish that its right to free 

speech encompasses a right to receive Shaber’s political contribution. (See 

Opening Br. at 32-33.) Every case the LNC cites considered contribution limits in 

the context of donations from living donors or active organizational entities. (Id.) 

There was thus no need for those courts to “parse distinctions between the speech 

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and association standards of scrutiny.” Shrink Mo., 528 U.S. at 388. Nor did those 

courts have occasion to distinguish between a prospective donor’s right to speech 

and the speech rights of the recipient. In two cases, the language the LNC cites 

comes from the courts’ description of the parties’ arguments, not the courts’ 

analysis. (See Opening Br. at 32-33 (quoting McCutcheon, 572 U.S. at 195; 

Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013)).) 

Only one case separately addressed whether the First Amendment encompasses a 

right to receive campaign contributions, and even there, the Second Circuit did not 

disaggregate the recipient’s speech rights from her right to associate. See Dean v. 

Blumenthal, 577 F.3d 60, 68 n.7 (2d Cir. 2009). In any event, the court concluded 

that “it is ‘far from obvious whether in fact there is such a right’” to receive under 

the First Amendment. Id. at 68. 

Contrary to the LNC’s argument, the Eighth Circuit’s recent decision in 

Free & Fair Election Fund v. Missouri Ethics Commission clarifies that 

contribution limits generally implicate only the speech rights of the donor. 903 

F.3d 759, 763 (8th Cir. 2018). There, the Eighth Circuit concluded that a state law 

prohibiting “a political action committee from receiving contributions from other 

political action committees” violated “a political action committee’s First 

Amendment rights to freedom of speech and association.” Id. at 762. That court 

reasoned that “prohibiting a PAC from receiving contributions . . . necessarily 

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prohibits a PAC from making contributions to other PACs,” and “therefore limits 

the donor-PAC’s speech . . . rights under the First Amendment.” Id. at 763 (third 

emphasis added). In other words, a PAC-to-PAC transfer implicates speech rights 

on the donor side, not the recipient side. 

The LNC has therefore failed to establish any First Amendment right to 

receive Shaber’s testamentary contribution. 

B. Even if the LNC’s Receipt of Contributions Implicates Its Speech 

Rights, Testamentary Contributions Raise Corruption Concerns 

and May Be Limited 

1. FECA’s Contribution Limits Are Not Subject to the Type of 

Individualized Exception the LNC Seeks 

Applying FECA’s contribution limits to testamentary contributions survives 

review even if closely drawn scrutiny applies. As previously noted, the LNC has 

conceded that testamentary contributions may “raise corruption concerns” and that 

application of FECA’s contribution limits to that category of contributions is 

“generally warrant[ed].” (Opening Br. at 35.) Indeed, factual findings by the 

LNC I court and the district court below amply support that proposition. See 930 

F. Supp. 2d at 166, 186; JA 216-21; see also LNC I, 930 F. Supp. 2d at 167 

(observing that in light of the potential for corruption or its appearance, the 

“preventative” contribution limits “should be the same for bequests as for other 

contributions”). 

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Nevertheless, the LNC proposes that the Commission must prove that 

Shaber’s contribution, specifically, was “related to” a “quid pro quo arrangement.” 

(Opening Br. at 38 (internal quotation marks omitted).) But the LNC’s pursuit of 

an individualized exception for Shaber’s testamentary contribution is inconsistent 

with the Supreme Court’s treatment of FECA’s prophylactic contribution limits. 

See, e.g., Buckley, 424 U.S. at 29. Indeed, the LNC’s argument closely resembles 

the overbreadth claim the Libertarian Party lost in Buckley. There, the Supreme 

Court concluded that a $1,000 limit on contributions to a candidate was not 

unconstitutionally overbroad merely because “most large contributors do not seek 

improper influence over a candidate’s position or an officeholder’s action.” Id. at 

29-30. While “the truth of” that “proposition may be assumed, it does not undercut 

the validity of the $1,000 contribution limitation.” Id. at 29-30. Not only is it 

“difficult to isolate suspect contributions,” but “Congress was justified in 

concluding that the interest in safeguarding against the appearance of impropriety 

requires that the opportunity for abuse inherent in the process of raising large 

monetary contributions be eliminated.” Id. at 30. 

Buckley also rejected the contention that only corrupt transactions could be 

barred. 424 U.S. at 27. “[L]aws making criminal the giving and taking of bribes 

deal with only the most blatant and specific attempts of those with money to 

influence governmental action,” and so the Court concluded that it was 

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constitutionally permissible for Congress to regulate contributions beyond those 

for which a criminal quid pro quo relationship could be proven. Id. at 27-28. 

Consistent with closely drawn scrutiny, Buckley also concluded that the 

contribution limit there was constitutional even “in the case of large contributions 

from immediate family members” where “the risk of improper influence is 

somewhat diminished.” Id. at 53 n.59. Even though Congress could have 

structured the contribution limitation to take account of the ways that testamentary 

bequests or familial contributions are different, “Congress’ failure to engage in 

such fine tuning does not invalidate the legislation.” Buckley, 424 U.S. at 30. 

Following Buckley, no court has held that an otherwise valid contribution 

limit is invalid as applied to a single, allegedly non-corrupting contribution. See, 

e.g., Ognibene v. Parkes, 671 F.3d 174, 191 (2d Cir. 2011) (rejecting argument that 

contribution limits were “overbroad because they ban legitimate as well as corrupt 

acts”). The very nature of a prophylactic rule is that it does not require 

individualized proof “because few if any contributions” involve “quid pro quo 

arrangements.” See Citizens United v. FEC, 558 U.S. 310, 357 (2010). For 

example, a living individual who desired to contribute $1 million to a federal 

candidate could not succeed in petitioning a court to permit the contribution by 

arguing that there was no proof that his contribution was part of a quid pro quo 

transaction. Cf. Holmes, 875 F.3d at 1162 (upholding distinction between primaryUSCA Case #18-5227 Document #1755071 Filed: 10/12/2018 Page 39 of 71
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and general-election contributions even where plaintiffs’ planned twice-the-limit 

contributions were within the total amount permitted in an election cycle). 

The LNC notes that the Supreme Court has allowed individualized asapplied challenges to expenditure restrictions. (Opening Br. at 31.) But 

expenditure restrictions are subject to strict scrutiny, and, unlike contribution 

limits, they must therefore be narrowly tailored. To be sure, courts have 

considered certain as-applied challenges to contribution limits as well. See, e.g., 

FEC v. Beaumont, 539 U.S. 146, 149 (2003); Republican Nat’l Comm. v. FEC, 698 

F. Supp. 2d 150 (three-judge court), aff’d, 561 U.S. 1040 (2010). But those 

challenges have been unsuccessful, see Republican Nat’l Comm., 698 F. Supp. 2d 

at 160, predicated on some well-defined category rather than the facts of a specific 

contribution, see Beaumont, 539 U.S. at 159, or both, id. 

The LNC also argues that section 30110 commands that “all questions of the 

constitutionality of” FECA be certified to the en banc Court. (Opening Br. at 31.) 

The question in this Court is not whether the LNC’s as-applied claims achieve the 

“low bar” for certification under section 30110. Holmes v. FEC, 823 F.3d 69, 72 

(D.C. Cir. 2016) (internal quotation marks omitted). It is whether those claims are 

meritorious. They are not. 

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2. Application of FECA’s Limits to Shaber’s Testamentary 

Contribution Is Consistent with the First Amendment 

Even if FECA’s contribution limits were subject to individualized scrutiny, 

applying those limits to Shaber’s contribution is justified by the government’s 

interests in combatting the actuality and appearance of corruption. Contribution 

limits are a permissible response to combat not only direct corruption, but also the 

“appearance or perception of corruption engendered by large campaign 

contributions.” McConnell, 540 U.S. at 143; see McCutcheon, 572 U.S. at 192-93. 

As McConnell established, all “large contributions to a national party can corrupt, 

or at the very least, create the appearance of corruption.” 540 U.S. at 144. 

The same is true of testamentary contributions. The LNC actively solicits its 

supporters to include large gifts in their estate planning (see JA 226), as did the 

national parties with the soft-money contributions at issue in McConnell, 540 U.S. 

at 146. As in McConnell, the LNC has created a program to “tall[y] the amount 

of” testamentary bequests it has raised. Id.; see JA 226. And as in McConnell, the 

record reflects that donors or their associates have “asked that their contributions 

be credited to particular candidates.” 540 U.S. at 146; see JA 217, 221. 

The fact that a testamentary contribution is completed after the donor’s death 

does not immunize it from being or appearing to be part of a quid pro quo 

corruption scheme. “[N]othing prevents a living person from informing the 

beneficiary of a planned bequest about that bequest” (JA 216), and a “living person 

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may alter his or her estate planning documents at any time before death for any 

reason” (JA 219). Therefore, a person’s “promise to bequeath a contribution in the 

future could cause that political party, its candidates, or its office holders to grant 

political favors to the individual in the hopes of preventing the individual from 

revoking his or her promise.” (JA 218-19 (internal quotation marks omitted).) 

The record establishes that corruption risks attend Shaber’s specific 

contribution. Shaber contributed to the LNC 46 times while he was alive, totaling 

more than $3,000, thereby making him eligible for “life member” status. (JA 221.) 

The LNC included Shaber on routine solicitations and invitations as part of its inhouse mailing list, which is used to solicit testamentary contributions. (JA 222, 

226.) 

Even if Shaber’s contribution was not itself a quid for a quo, several other 

large potential testamentary contributions the LNC identifies implicate corruption 

concerns, and the LNC offers no workable way to distinguish among them. For 

example, the LNC states that one of its large annual donors plans to revise his 

estate plan to provide a gift to the LNC of up to $1 million upon his death. (JA 

229-32.) The LNC also notes that its former National Chair wishes to leave 40% 

of his estate to the LNC upon his death. (JA 232-33.) Testamentary contributions 

of this type, which the LNC plainly has advance knowledge of, raise additional 

corruption concerns. Courts have “no scalpel to probe” differences in degree 

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between contributors who were in contact with a recipient party one, 46, or 4600 

times during their lives. Buckley, 424 U.S. at 30. 

FECA’s contribution limits, moreover, apply equally to all parties. “[A]ny 

attempt to exclude minor parties and independents en masse from the Act’s 

contribution limitations overlooks the fact that minor-party candidates may win 

elective office or have a substantial impact on the outcome of an election.” 

Buckley, 424 U.S. at 34-35, 70; see, e.g., United States v. Goland, 959 F.2d 1449 

(9th Cir. 1992); Carla Marinucci, GOP Donors Funding Nader/Bush Supporters 

Give Independent’s Bid a Financial Lift, S.F. Chron., July 9, 2004, 

http://www.sfgate.com/politics/article/GOP-donors-funding-Nader-Bushsupporters-give-2708705.php (last visited Oct. 12, 2018). As a result, the LNC’s 

“lack of federal officeholders” and its concomitant limited “ability to offer” any 

“political favors” from its own officeholders does not eliminate the risks of actual 

or apparent corruption that a ruling in the LNC’s favor might create. (Opening Br. 

at 38.) 

Application of FECA’s contribution limits to testamentary contributions is 

also supported by the important government interest in “prevent[ing] attempts to 

circumvent” FECA’s otherwise valid limits. FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 446 (2001) (internal quotation marks omitted). 

The record establishes that national parties often receive testamentary 

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32 

contributions. “Estates have contributed more than $3.7 million in bequeathed 

funds to recipients that must file reports with the FEC” since 1978, a figure which 

is likely underinclusive. (JA 219; see also JA 86-89.) If these contributions were 

excluded from FECA’s limits, donors would likely shift more of their giving from 

limited annual contributions to unlimited testamentary contributions, thereby 

increasing the one-time value of their contribution and the concomitant risk of 

corruption. (See JA 226.) As the Supreme Court has observed, donors often react 

to changes in campaign finance law “by scrambling to find another way” to 

purchase political favors. McConnell, 540 U.S. at 165. 

III. FECA’S LIMITS ON CONTRIBUTIONS TO NATIONAL PARTY 

COMMITTEES REMAIN CONSTITUTIONAL AFTER THE 2014 

AMENDMENTS PERMITTING THOSE PARTIES TO RAISE 

FUNDS IN LARGER AMOUNTS 

The Supreme Court has held that FECA’s annual limits on contributions to 

national party committees are subject to closely drawn scrutiny and are 

constitutional. McConnell, 540 U.S. at 141-60. The Court explained that the 

“special relationship and unity of interest” between national parties and federal 

candidates and officeholders make it “neither novel nor implausible” that large 

contributions “can corrupt or, at the very least, create the appearance of 

corruption.” Id. at 144-45. These relationships and the “means by which parties 

have traded on” them were sufficiently intertwined to justify BCRA’s application 

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33 

to all money raised and spent by the national parties, even though some of that 

money funded activities for which “no federal office [was] at stake.” Id. at 154-55. 

The only relevant change Congress has made to the contribution limits since 

McConnell was its 2014 amendment to increase the amount a person may 

contribute annually, so long as some of that money is deposited in segregated 

accounts to defray specific categories of expenses. This change does not render a 

permissible campaign finance system constitutionally suspect; rather, it draws the 

limits more closely to the corruption interest. Congress’s amendment also serves 

its obligation under the First Amendment by ensuring that “the amount or level” of 

contribution limits is high enough to allow recipients to “‘amass[] the resources 

necessary for effective advocacy.’” Randall v. Sorrell, 548 U.S. 230, 247 (2006) 

(quoting Buckley, 424 U.S. at 21). FECA’s revised contribution limits clearly 

merit the traditional deference to “Congress’s ability to weigh competing 

constitutional interests in an area in which it enjoys particular expertise.” Id. at 

137. 

A. The Segregated Account Provisions Restrict Contributions, Not 

Expenditures, and Are Subject to Closely Drawn Scrutiny 

Initially, the LNC argues that Congress’s 2014 amendment “radically altered 

FECA’s nature and structure” and converted what had been a constitutional 

contribution limit into an expenditure limit subject to strict scrutiny. (Opening Br. 

at 40-44.) That claim lacks merit. 

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An expenditure limit is a “restriction on the amount of money a person or 

group can spend on political communication” and “necessarily reduces the quantity 

of expression.” Buckley, 424 U.S. at 19. A contribution limit, in contrast, is “a 

limitation upon the amount that any one person or group may contribute to a 

candidate or political committee.” Id. at 20. In McConnell, the Court clarified that 

the “relevant inquiry” is whether a given campaign finance restriction “burdens 

speech in a way that a direct restriction on the contribution would not.” 540 U.S. 

at 138-39. As that Court explained, the soft-money ban at issue was a contribution 

limit because it did not “in any way limit[] the total amount of money parties can 

spend.” Id at 139. 

Under these standards, FECA’s limits remain contribution limits, not 

restrictions on speech, after the 2014 amendments. The segregated account 

provisions are framed as a limit on the amount of money that a person may 

contribute, not as a limit on how much the party may spend. 52 U.S.C. 

§ 30116(a)(1)(B) (providing that “no person shall make contributions” which 

“exceed 300 percent of the amount otherwise applicable”). And the segregated 

account provisions do not cap spending, either generally or in connection with the 

categories of expenses for which larger contributions are permitted. See 52 U.S.C. 

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§ 30116(a)(1)(B), (9). National parties may spend as much as they wish on any 

expense.1

The structure of the segregated account provisions is functionally 

indistinguishable from the limits on state and local parties’ use of money raised 

outside of FECA’s restrictions on federal election activity upheld in McConnell. 

540 U.S. at 139. There the Court reviewed a BCRA provision that barred those 

parties “from spending nonfederal money on federal election activities,” though it 

left those parties’ contributions for other expenses federally unregulated, and 

provided exceptions for certain spending subject to separate limits and allocation 

formulas. Id. As the Court concluded, the BCRA provision “simply limit[ed] the 

source and individual amount of donations”; that it did “so by prohibiting the 

spending of soft money [did] not render” it an “expenditure limitation.” Id.

The LNC admits that it “could have deposited the entirety of Shaber’s” 

contribution in segregated accounts when it became available in 2015, but the LNC 

argues that it would not have been able to spend all of that money that year. 

(Opening Br. at 43 (citing LNC v. FEC, 228 F. Supp. 3d 19, 26 (D.D.C. 2017)).) 

 1

 The provision providing for a segregated account for convention expenses 

does limit the benefit provided by the higher limit added in 2014, 52 U.S.C. 

§ 30116(a)(9)(A), but national parties may spend in excess of that amount on 

conventions using funds contributed through the pre-existing general limit. In any 

event, the LNC does not challenge the statute on that basis. 

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This claim is incorrect. The passage of the district court opinion on which the 

LNC relies merely concluded that the LNC had not, as a factual matter, incurred 

enough expenses in the relevant categories to fully “free[] up the full value of” 

Shaber’s contribution for general spending. LNC v. FEC, 228 F. Supp. 3d at 26. 

The district court did not conclude that FECA prevented the LNC from spending 

more than a certain amount. To the contrary, the district court expressly concluded 

that the segregated account provisions should be characterized as a contribution 

limit rather than an expenditure restriction, as the LNC goes on to admit. (JA 169-

70; Opening Br. at 43.) 

As the Commission explained in its motion to dismiss in this Court, the LNC 

actually did incur enough presidential convention, headquarters, and legal 

proceedings expenses in 2015 and 2016 to fully utilize Shaber’s contribution with 

general spending. But regardless, FECA’s limits did not require the LNC to spend 

below a given dollar amount, either generally or on any category of expense. The 

LNC may choose not to incur more expenses, but that does not convert FECA’s 

limits into expenditure restrictions. Cf. Republican Nat’l Comm., 698 F. Supp. 2d 

at 156 (noting that McConnell “squarely held that the level of scrutiny for 

regulations of contributions to candidates and parties does not turn on how the 

candidate or party chooses to spend the money or to structure its finances”). 

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Treating the segregated account provisions as contribution limits rather than 

as speech restrictions is consistent with Buckley’s rationale for distinguishing the 

levels of scrutiny between those types of limits. As with pre-existing contribution 

limits, the segregated account provisions leave contributors “free to become a 

member of any political [party] and to assist personally in the [party’s] efforts on 

behalf of candidates.” Buckley, 424 U.S. at 22. Contributors to the national party 

committees also remain “free to engage in independent political expression.” Id. at 

28. Like other contribution restrictions, FECA’s segregated account provisions 

entail “only a marginal restriction upon the contributor’s ability to engage in free 

communication.” Id. at 20. 

As a result, FECA’s limits on contributions to national party committees are 

what they appear to be: limits on contributions subject to closely drawn scrutiny, 

not speech restrictions. 

B. The Segregated Account Provisions Are Content Neutral, 

Rendering Strict Scrutiny Inapplicable 

The LNC also argues that the segregated account provisions should be 

reviewed under strict scrutiny based on its view that they are content-based speech 

restrictions. (Opening Br. at 44-49.) But even if the segregated account limits did 

restrict speech, like other FECA limits on contributions to national party 

committees they do not discriminate on the basis of content. 

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Preliminarily, FECA’s contribution limits only indirectly have potential 

impacts on the speech of political parties. Not all of the funds contributed to 

candidates or political parties are then converted by the recipient into speech, as 

Buckley and later cases recognized. Cf. Holmes, 875 F.3d at 1167 (noting that 

recipients independently make spending decisions). That is partly why the 

Supreme Court has consistently rejected calls from the Libertarian Party and other 

litigants to apply strict scrutiny to those limits; “[w]hile contributions may result in 

political expression if spent by a candidate or an association to present views to the 

voters,” they do not necessarily have that result. Buckley, 424 U.S. at 21 (emphasis 

added). 

Although contribution limits affect speech less than association, such limits 

do still burden both interests at least as to the contributor. McConnell, 540 U.S. at 

140 n.42. Given the Supreme Court’s conclusion that contribution restrictions bear 

“more heavily on the associational right than on [the] freedom to speak,” however, 

“a contribution limitation surviving” the intermediate scrutiny applicable to “a 

claim of associational abridgment would survive a speech challenge as well.” 

Shrink Mo., 528 U.S. at 388. 

In any event, FECA’s limits do not discriminate on the basis of content. 

“Government regulation of speech is content based if a law applies to particular 

speech because of the topic discussed or the idea or message expressed.” Reed v. 

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39 

Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Speech restrictions are also content 

based if the law “cannot be ‘justified without reference to the content of the 

regulated speech’ or [was] adopted by the government ‘because of disagreement 

with the message’” conveyed. Id. at 2227 (quoting Ward v. Rock Against Racism, 

491 U.S. 781, 791 (1989)). “Meanwhile, ‘laws that confer benefits or impose 

burdens on speech without reference to the ideas or views expressed are in most 

instances content neutral.’” A.N.S.W.E.R. Coal. v. Basham, 845 F.3d 1199, 1208 

(D.C. Cir. 2017) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 

(1994)). 

Here, the availability of the segregated account-based contribution limits 

does not depend on any “topic discussed or the idea or message expressed” in 

speech financed by funds contributed pursuant to those limits. Reed, 135 S. Ct. at 

2227. Rather, what matters is the type of expenses the national party defrays with 

segregated account funds. Take, for example, the account that may be used to 

defray “expenses incurred with respect to a presidential nominating convention.” 

52 U.S.C. § 30116(a)(9)(A). FECA does not condition the availability of that 

account on the topics discussed or the message conveyed at that convention. A 

party could use the funds to support a potential presidential candidate, but it could 

also use them to pay for transportation of party officials to the event or to finance 

discussions on topics of interest to the party that are unrelated to its presidential 

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nominee. Along similar lines, a party could use FECA’s headquarters account to 

purchase telephone service, and it would not matter whether the party uses its 

phones for fundraising, electoral advocacy, or to call a restaurant to order catering 

for a late-night meeting. See 52 U.S.C. § 30116(a)(9)(B). Although the 

availability of the segregated accounts to defray expenses depends on the context

of the expenses (e.g., the telephone must be in the party’s headquarters), it does not 

depend on the content of speech related to those expenses (e.g., what is said on the 

telephone). 

The segregated account provisions, therefore, turn “not on the content of any 

speech, but on the desirability of providing to” national political parties access to 

additional funds for certain types of expenses. A.N.S.W.E.R. Coal., 845 F.3d 1209. 

The provisions make “no reference at all to speech,” but instead identify specific 

categories of party spending. Id. The law applies “equally to all” national party 

committees “regardless of viewpoint,” message, or ideology. Hill v. Colorado, 

530 U.S. 703, 719 (2000). A party’s decision to engage in speech or 

communicative conduct does not “trigger[] coverage under the statute” depending 

on the message it chooses to impart. See Holder v. Humanitarian Law Project, 

561 U.S. 1, 27-28 (2010). Moreover, Congress justified adopting the segregated 

account provisions “without reference to the content of” any regulated speech and 

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41 

not “because of disagreement with the message” any speech conveys. Ward, 491 

U.S. at 791. 

The LNC describes how contributions to the segregated accounts might be 

used for certain types of speech (Opening Br. at 44-47), but the applicability of the 

limits does not depend on whether a party chooses to convert the contributed funds 

into speech on any particular topic, or whether the funds are converted to speech at 

all. The LNC might use a headquarters account to make an architectural statement 

or hang a political sign in its window (id. at 45), but it might also use that account 

to pay for its mortgage or for cleaning services (JA 125-26). While all of those 

activities help the LNC spread its message, the applicability of FECA’s 

contribution limits does not depend on the content of any speech. And in any 

event, the “level of scrutiny . . . does not turn on how the [LNC] chooses to spend 

the money.” Republican Nat’l Comm., 698 F. Supp. 2d at 156. 

The Supreme Court has repeatedly blessed contribution restrictions that 

would have been content-discriminatory schemes under the approach the LNC 

proposes. In Buckley, the Court reviewed FECA’s limit on contributions “made 

for the purpose of influencing” a federal election and rejected the Libertarian 

Party’s argument that the statute regulated the content of speech. Buckley, 424 

U.S. at 20-23; cf. Hill, 530 U.S. at 719-26 (holding that statute prohibiting 

“knowingly approach[ing]” a person “for the purpose of . . . engaging in oral 

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protest, education, or counseling” was content neutral). In McConnell, the Court 

rejected the LNC’s call to apply strict scrutiny to a BCRA provision that permitted 

state party committees to use one account to raise funds subject to FECA’s source 

and amount limitations for federal election activity, a separate account to raise 

limited Levin funds that could be used for mixed expenses and were not subject to 

source limitations, and a third account to raise funds limited only by state law for 

use in state and local elections. 540 U.S. at 139. Each of these statutory 

provisions regulated contributions depending on how the money was to be used, 

but that did not mean that they discriminated based on content. 

C. Under Closely Drawn Scrutiny, FECA’s Limits on Contributions 

to National Party Committees Remain Constitutional 

FECA’s limits on contributions to national party committees remain 

supported by the governmental interest in combating quid pro quo corruption and 

its appearance after Congress’s 2014 amendments. As this Court has recognized, 

this “interest may properly be labeled compelling,” and so it would satisfy either 

intermediate or strict scrutiny. See, e.g., Wagner v. FEC, 793 F.3d 1, 8 (D.C. Cir. 

2015) (en banc) (internal quotation marks omitted). The McConnell Court 

concluded that the “Government’s strong interests in preventing corruption, and in 

particular the appearance of corruption, are . . . sufficient to justify subjecting all 

donations to national parties to the source, amount, and disclosure limitations of 

FECA.” 540 U.S. at 145, 156. But that Court did not hold that the Constitution 

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required all contributions to political parties to be regulated to the same extent. 

Instead, it repeatedly invoked “deference” to Congress’s “particular expertise” in 

structuring the limitations. Id. at 137; see also id. at 164, 171. 

The Supreme Court has long deferred to legislative judgment on the specific 

amounts of limits on political contributions. See, e.g., Buckley, 424 U.S. at 30. 

And in “practice, the legislature is better equipped to make such empirical 

judgments, as legislators have ‘particular expertise’ in matters related to the costs 

and nature of running for office.” Randall, 548 U.S. at 248 (quoting McConnell, 

540 U.S. at 137). 

The LNC’s primary argument that the segregated account provisions are not 

closely drawn to corruption concerns is that there is no sufficient basis to 

differentiate between contributions made under the pre-existing general limit and 

those subject to the higher, account-based limits. (Opening Br. at 50-58.) “This 

cluster of arguments misunderstands the government’s burden in a campaignfinance challenge like this one.” Ill. Liberty PAC v. Madigan, --- F.3d ----, No. 16-

3585, 2018 WL 4354424, at *5 (7th Cir. Sept. 13, 2018). The Commission need 

not prove that the specific dollar amount of a limit independently furthers some 

corruption rationale. “The focus of the ‘closely drawn’ inquiry in this context is 

whether the contribution limits for individual donors are above the ‘lower bound’ 

at which ‘the constitutional risks to the democratic electoral process become too 

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great.’” Id. (quoting Randall, 548 U.S. at 248). So long as the dollar limits 

“exceed that lower boundary, the Supreme Court has ‘extended a measure of 

deference to the judgment of the legislative body that enacted the law.’” Id.

(quoting Davis v. FEC, 554 U.S. 724, 737 (2008)). 

This judicial deference remains appropriate even though Congress did not 

select a single, across-the-board limit for all contributions to national party 

committees. This Court’s recent en banc decision in Holmes v. FEC essentially 

decided this point. 875 F.3d at 1162. There, this Court concluded that because 

contribution limits “can validly promote an anti-corruption objective,” Congress 

need not separately justify each contribution limit’s time period or dollar amount 

“with some added anti-corruption explanation.” Id. at 1162-63. In reaching that 

conclusion, the Court pointed to Buckley’s analysis of FECA’s original $1,000 perelection limit on contributions to federal candidates. Id. at 1162. “Having 

generally sustained” FECA’s contribution limits, Buckley “did not ask whether 

Congress’s choice of a flat, $1,000 limit — instead of a graduated scheme allowing 

for higher ceilings for certain elections — itself advanced the anti-corruption 

interest under the closely drawn test.” Id. Instead, Buckley explained that once a 

court “was ‘satisfied that some limit on contributions is necessary’ to address 

corruption, it had ‘no scalpel to probe, whether, say, a $2,000 ceiling might not 

serve as well as $1,000.’” Id. (quoting Buckley, 424 U.S. at 30). 

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Similarly here, it is undisputed that “some limit” on all contributions to 

national party committees is constitutionally permissible. Buckley, 424 U.S. at 30 

(emphasis added); see McConnell, 540 U.S. at 156. Congress need not, therefore, 

separately justify its decision to adopt a “graduated scheme allowing for higher 

ceilings for” certain categories of expenses. Holmes, 875 F.3d at 1162; see also Ill. 

Liberty PAC, 2018 WL 4354424, at *4-5 (rejecting argument that the government 

must prove differences in contribution limits for different types of organizations 

are independently justified by corruption concerns). 

Congress’s 2014 amendments involved application of its “particular 

expertise” in the “costs and nature” of party expenses. Randall, 548 U.S. at 248. 

The provisions reflect a congressional effort to balance corruption concerns with 

providing “national political party committees with a means of acquiring additional 

resources” after the termination of public funding for presidential nominating 

conventions. 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. 

Boehner); see also 160 Cong. Rec. H9074 (daily ed. Dec. 11, 2014) (statement of 

Rep. Cole) (expressing desire to ensure political parties “have the resources to 

compete”). This is precisely the concern the Supreme Court has instructed should 

animate legislatures, Randall, 548 U.S. at 247, and it is an indicator that the 

provision fits closely with the interest served. 

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Congress also concluded higher contribution limits were appropriate as to 

two other types of segregated accounts, for party committee headquarters and legal 

proceedings expenses, since those were less directly tied to the core electoral 

purpose of persuading voters. See 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) 

(statement of Rep. Boehner). As the district court found, the LNC’s headquarters 

provides “full-time, professional support for the on-going political activities of the 

party” (JA 187 (internal quotation marks and alterations omitted)), but those 

purposes are less-directly tied to any particular candidate, election, or officeholder. 

Congress likewise concluded that “recount and legal proceeding expenses” 

were “not for the purpose of influencing federal elections” under FECA and 

therefore could be subject to higher limits. 160 Cong. Rec. H9286 (daily ed. Dec. 

11, 2014) (statement of Rep. Boehner). To support this conclusion, Congress cited 

earlier Commission guidance explaining that, under FECA, a “contribution” 

includes any “payment of money . . . for the purpose of influencing a Federal 

election,” but the statute’s definition of an “election” does not include a recount. 

FEC Advisory Op. 2006-24 (NRSC/DSCC), 2006 WL 2918565, at *3 & n.1 (Oct. 

5, 2006). As a result, pre-BCRA Commission authority excluded contributions to 

finance recounts from FECA’s contribution limits, though restrictions on the 

permissible sources of contributions remained applicable. Id. BCRA altered this 

conclusion and required that recounts be financed through hard money funds. Id.; 

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see also FEC Advisory Op. 2009-04 (Franken/DSCC), 2009 WL 961213, at *2 

(Mar. 20, 2009) (extending that analysis to national party committees). By 

providing a segregated account with a higher contribution limit to fund those 

expenses, Congress adopted a “refinement on the pre-BCRA regime” that had 

permitted those expenses to be funded by unlimited contributions. McConnell, 540 

U.S. at 162. 

The balance Congress struck is similarly supported by record evidence that 

national party committees place a higher value on unrestricted contributions than 

those that may only be used for designated expenses. (JA 197.) Indeed, the 

primary basis of the LNC’s claim is that it prefers to receive unrestricted 

contributions, to the point that it has deprived itself of additional money it could 

have received through segregated accounts. (JA 215-16.) Other parties structure 

their fundraising strategies to ensure that contributions are first made to the parties’ 

general account, and only then to the segregated accounts subject to the higher 

dollar limit. (JA 197.) And it is simple common sense that the more a political 

party values a contribution, the more likely that contribution will be or appear to be 

part of a quid pro quo corruption scheme. 

The record also reflects that the segregated account provisions have 

achieved their goal of providing national parties with a means of acquiring 

additional resources without interfering with their general advocacy efforts. (See

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JA 197.) As one national party committee explained, paying for legal expenses 

“with funds from a pre-existing legal proceedings account” did “not reduce by a 

dime the resources we can put towards our political work.” (Id.) 

The segregated account provisions are also justified because they “reinforce 

the First Amendment associational interests embodied in campaign contributions.” 

Holmes, 875 F.3d at 1166. Like the separate primary and general elections at issue 

in Holmes, the segregated account provisions “concern distinct associational 

interests” insofar as each category of expenses serves “a different purpose” and 

“frequently feature[s] a discussion of different issues and priorities.” Id. The 

LNC’s experience bears this out. The LNC provides separate forms of recognition 

for donors specifically to its “building fund.” (JA 186.) Donors like Chastain and 

Rufer who do “not want any part of” their contributions to be restricted or who do 

not believe the LNC “has much use for those spending” categories may choose to 

associate with the LNC only through its general fund. (JA 228, 230.) General 

contributions therefore “involve[] a different associational tie than contributing to” 

the more operational expenses reflected in the segregated account provisions. 

Holmes, 875 F.3d at 1166. 

For all the space the LNC devotes to attacking the Commission’s discovery 

responses (see, e.g., Opening Br. 53-55, 57), those responses merely make the 

basic point that whether a particular contribution is or appears corrupt depends on 

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the circumstances. There is no objective amount at which a contribution becomes 

corrupting or appears as such. Congress needs to ensure that the burdens on 

contributions it imposes are generally proportionate to the corruption interest and 

meaningfully serve it. McCutcheon, 572 U.S. at 210-15. The Commission need 

not, however, prove a precise amount at which contributions become actually or 

apparently corrupt. See Ill. Liberty PAC, 2018 WL 4354424, at *5. For example, a 

payment of $1 in exchange for a legislator’s official act would remain corrupt even 

though it would be within the relevant contribution limit. On the other hand, a 

payment of $1 million to a national party committee is not necessarily attempted 

corruption if it is made outside of a bargained-for exchange. This lack of an 

empirical standard is why courts have provided “a measure of deference to the 

judgment” of Congress in structuring contribution limits. Davis, 554 U.S. at 737. 

The LNC also disputes Congress’s logic in selecting the three categories for 

which segregated accounts may be created (Opening Br. at 52), but the LNC 

conflates the parties’ required administrative costs with the ways in which the 

party might choose to use those funds. Citing nothing, the LNC asserts that the 

“whole point of presidential nominating conventions is to maximally benefit 

candidates for President and Vice-President, by selecting and showcasing them.” 

(Id.) But historically, nominating conventions were more akin to an internal 

election, where delegates negotiated a platform and settled disputes over who 

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should be the nominee. See, e.g., Cousins v. Wigoda, 419 U.S. 477, 490 (1975) 

(describing the “National Party Convention as a concerted enterprise engaged in 

the vital process of choosing Presidential and Vice-Presidential candidates”); JA 

187 (describing the “purpose” of the LNC’s presidential nominating conventions). 

While many modern conventions may occur after nominees have been all but 

selected under party rules, FECA treats them as contested elections. See 52 U.S.C. 

§ 30101(1)(B); 11 C.F.R. § 9008.2(g). Moreover, while parties might choose to 

“use buildings to feature signs and other displays supporting particular candidates” 

(Opening Br. at 52), the LNC admitted below that its primary purpose for 

maintaining a headquarters was the administrative support of its full-time 

professional staff (JA 187). 

There is no evidence in the record that Congress selected these categories of 

expenses to burden minor parties. The LNC obliquely suggests that it is uniquely 

burdened by the categories Congress chose because it “speaks relatively little” 

through those categories. (Opening Br. at 56.) In fact, the district court found that 

the LNC “spent roughly $467,251.58 on 52 U.S.C. § 30116(a)(9)-sanctioned 

expenses in 2016,” which reflects 20.6% of the LNC’s budget for expenses that 

year. (JA 188.) In contrast, only approximately 17.4% of the Republican National 

Committee’s total receipts were made through the segregated account provisions 

(JA 196), as were only 10.8% of the Democratic National Committee’s (JA 195-

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96). In any event, a “regulation that serves purposes unrelated to the content of 

expression is deemed neutral, even if it has an incidental effect on some speakers 

or messages but not others.” Ward, 491 U.S. at 791. 

More fundamentally, although Congress’s effort to balance corruption 

concerns with the availability of party finances led it to conclude that a higher 

dollar limit was warranted for these categories of expenses, Congress did not 

exempt the expenses from FECA’s contribution limits. By raising but not 

eliminating the limits on contributions to segregated accounts, Congress implicitly 

recognized that contributions for these categories of expenses still entail a risk of 

corruption and its appearance. Because of that risk, Congress mandated that all 

contributions to national party committees would be subject to FECA’s “source 

limitations, prohibitions, and disclosure provisions,” as well as the newly 

graduated dollar amount limits. 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) 

(statement of Rep. Boehner). 

Congress was entitled to set that balance. It permitted an individual to give 

tens of thousands of dollars in funds that can be used on campaigns for particular 

candidates and hundreds of thousands of dollars in funds for activities that are 

more difficult to raise and less tied to particular candidates. Congress reasonably 

structured the limits in accord with the corruption risks and its obligation to ensure 

the parties can amass the resources for effective advocacy. The addition of the 

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segregated accounts expanded the amounts that can be contributed to national 

committees due to specific concerns and made the limits on parties even more 

closely drawn. 

D. Applying the Segregated Account Limits to Shaber’s 

Testamentary Contribution Is Constitutional 

Application of the segregated account provisions to Shaber’s testamentary 

contribution remains valid for the same reasons that applying FECA’s general limit 

is constitutional. See supra at pp. 21-32. The LNC does not appear to make any 

separate argument that the segregated account provisions are uniquely burdensome 

when applied to testamentary contributions in general or Shaber’s contribution in 

particular. Therefore, if the Commission is correct that FECA’s general 

contribution limit may be constitutionally applied to that testamentary contribution 

and that the segregated account limits are facially constitutional, the LNC has 

provided no basis for the Court to rule differently on its as-applied challenge to the 

segregated account provisions. 

E. If the Segregated Account Provisions Were Deemed 

Unconstitutional, the Appropriate Remedy Would Be to Revert 

Those Limits to the Status Quo Ante 

If the LNC were to prevail on its argument that the segregated account 

provisions are unconstitutional, reverting to the pre-2014 status quo would be the 

appropriate remedy. “A court should refrain from invalidating more of the statute 

than is necessary,” and therefore it is the court’s “duty” to “maintain” an act of 

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Congress “in so far as it is valid.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 

684 (1987) (internal quotation marks and alterations omitted). This question is 

“essentially an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of 

Chippewa Indians, 526 U.S. 172, 191 (1999). Moreover, FECA’s severability 

clause, 52 U.S.C. § 30144, “creates a presumption that Congress did not intend the 

validity of the statute in question to depend on the validity of the constitutionally 

offensive provision.” Alaska Airlines, 480 U.S. at 686. “In such a case, unless 

there is strong evidence that Congress intended otherwise, the objectionable 

provision can be excised from the remainder of the statute.” Id.

Consistent with its 40-plus years of efforts, the LNC briefly suggests that the 

Court should enjoin FECA’s limits on contributions to national party committees 

in their entirety. Such a disruption and exposure of our democracy to Watergateera level dangers of corruption is entirely unwarranted given that the overall 

amount of permitted contributions is unchallenged. The LNC also admits that 

there “is no evidence . . . that Congress would prefer to . . . have no limits at all.” 

(Opening Br. at 63.) As the Court has previously upheld contribution limits from 

constitutional attack, there is also no question that reverting to a unitary general 

limit on contributions to national party committees would be both constitutional 

and workable. (Id. at 62.) There is, therefore, no basis to completely eliminate 

FECA’s national party contribution limits. 

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The LNC’s fallback proposal is for this Court to excise the statute’s 

description of expenses for which segregated account funds may be used, but 

maintain the increased dollar limits. (Opening Br. at 60-63.) Presumably that 

would mean a person could contribute up to $339,000 to each national party 

committee per year for general use — an increase of 900%. 

But Congress would not have accepted such a limit in the absence of the 

segregated account restrictions on how contributed funds could be used. There is 

simply no way to remove the segregated account requirements while maintaining a 

$339,000 contribution limit without doing the legislative work of rewriting the 

statute. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) 

(stating that a statute must be “readily susceptible” to the narrowing construction 

and that the courts “will not rewrite” the law). 

The best evidence that the text could not bear such alteration is the 2014 

amendment itself. As relevant here, Congress’s amendment added two provisions 

to FECA. First, it added the following language to the end of 52 U.S.C. 

§ 30116(a)(1)(B): “, or in the case of contributions made to any of the accounts 

described in paragraph (9), exceed 300 percent of the amount otherwise applicable 

under this subparagraph with respect to such calendar year.” Second, the 

amendment added three provisions at 52 U.S.C. § 30116(a)(9), which describe the 

types of accounts for which the higher limits apply. Striking the three provisions at 

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52 U.S.C. § 30116(a)(9) would eliminate the segregated accounts, but then donors 

would be limited to the general party limit because there would be no “accounts 

described in paragraph (9)” for which a higher limit could apply. 52 U.S.C. 

§ 30116(a)(1)(B). Striking the newly added language in section 30116(a)(1)(B) 

would similarly revert the limits to their pre-amendment state. And of course 

striking the entire amendment would also maintain the prior, pre-amendment 

general limit. The LNC’s approach of excising only the description of permissible 

categories of expenses, however, would create an odd and barely comprehensible 

regime of $33,900 per year plus $101,700 per year into each of three accounts that 

are separate without purpose. “Congress would not have enacted” the segregation 

requirement “had it known that” the categories of expenses “would be held 

unconstitutional”; therefore, the “two provisions must fall together.” Bismullah v. 

Gates, 551 F.3d 1068, 1070 (D.C. Cir. 2009). And because the increased overall 

monetary cap does not “enjoy[] a textual manifestation separate from” the 

segregated account provisions governing the expenses on which they may be used, 

an increased general limit cannot be created through “textual surgery.” Reno v. 

Am. Civil Liberties Union, 521 U.S. 844, 883 (1997). 

The fact that Congress did not simply raise the pre-existing general 

contribution limit also indicates that the specific segregated account provisions 

were essential to the amended structure. While the LNC suggests that there is no 

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difference between an unrestricted $339,000 contribution and a contribution in that 

amount placed in segregated accounts pursuant to section 30116(a)(9), Congress 

plainly disagreed. “Moreover, even if there were some ground compelling” the 

Court “to transform Congress’s” segregated account provisions into a higher 

general limit, as the LNC suggests, this Court “could not assume that Congress 

necessarily would have chosen” to do so. Holmes, 875 F.3d at 1164. “Congress 

could conceivably regard a one-time contribution of” $339,900 into its general 

account “alone to present a greater risk of apparent or actual corruption than” 

multiple distinct lower contributions into each of a party’s general and segregated 

accounts. Id. Should the Court agree with the LNC that the segregated account 

provisions are unconstitutional, the better approach would be to simply strike the 

entire amendment and leave to Congress the decision whether to set a higher 

general limit. 

The LNC’s final suggestion of a “judicial preference for extending benefits, 

‘rather than nullification’” has no place here. (Opening Br. at 63 (quoting Sessions 

v. Morales-Santana, 137 S. Ct. 1678, 1699 (2017)). The LNC is not bringing an 

equal protection claim that it is being denied benefits extended to others. Rather, 

Congress extended the benefit of the segregated account provisions to all political 

parties regardless of ideology or major party status. As a result, the question is not 

“whether the legislature would have struck an exception and applied the general 

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57 

rule equally to all,” because the general rule already applies equally to all. 

Morales-Santana, 137 S. Ct. at 1700. Instead, the question is whether Congress 

would have adopted the higher segregated account limits in the absence of the 

specific categorical restrictions it imposed. There is no evidence that it would. 

CONCLUSION 

This Court should answer all three certified questions in the negative. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

/s/Jacob S. Siler 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

October 12, 2018 FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

USCA Case #18-5227 Document #1755071 Filed: 10/12/2018 Page 69 of 71
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because it contains 12,918 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1). 

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 it was 

prepared using Microsoft Word 2013 in 14-point Times New Roman. 

/s/Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

 

USCA Case #18-5227 Document #1755071 Filed: 10/12/2018 Page 70 of 71
CERTIFICATE OF SERVICE 

I hereby certify that on this 12th day of October, 2018, I electronically filed 

the foregoing brief with the Clerk of the Court for the U.S. Court of Appeals for 

the District of Columbia Circuit by using the appellate CM/ECF system. The 

participants in the case are registered CM/ECF users and service will be 

accomplished by the appellate CM/ECF System. 

/s/Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

 

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