En Banc Oral Argument Scheduled: Nov. 30, 2018

No. 18-5227

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

On certified questions from the United States District Court 

for the District of Columbia, No. 1:16-cv-121 (BAH)

Amicus Curiae Brief of the Institute for Free Speech

in Support of Plaintiff

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan

Institute for Free Speech

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

zmorgan@ifs.org

Counsel for Amicus Curiae

September 12, 2018

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CERTIFICATES AS TO PARTIES, RULINGS UNDER REVIEW, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Amicus Curiae Institute for Free Speech 

submits its Certificate as to Parties, Rulings, and Related Cases. 

A. Parties and Amici1

Plaintiff is the Libertarian National Committee, Inc., and Defendant is the 

Federal Election Commission.2 No person filed as amicus curiae before the district 

court.

B. Rulings Under Review

Under 52 U.S.C. § 30110, this Court sitting en banc considers the 

constitutional question at issue in the first instance. Chief Judge Beryl Howell of the 

United States District Court for the District of Columbia certified the constitutional 

question and findings of fact on July 19, 2018. Joint Appendix 147-253. That court 

also denied the Federal Commission’s motion to dismiss for lack of jurisdiction. 

Libertarian Nat’l Comm. v. Fed. Election Comm’n, No. 16-121 (ECF No. 36).

 1 The Institute reaffirms its previous filing, stating that it has no parent company, 

and no publicly-held company has a 10 percent or greater ownership interest in it.

2 Because there has been no merits determination concerning Plaintiff’s claims, this 

case does not present a true appeal. Consequently, this brief will refer to the 

Libertarian National Committee as “Plaintiff” and the Federal Election Commission 

as the “Defendant.”

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TABLE OF CONTENTS

CERTIFICATES AS TO PARTIES, RULINGS UNDER REVIEW,

AND RELATED CASES ...........................................................................................i

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

GLOSSARY........................................................................................................ vii

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

STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY

TO FILE................................................................................................................2

INTRODUCTION....................................................................................................3

ARGUMENT .........................................................................................................4

I. The Federal Election Commission is able to respond to a decision of this 

Court ...........................................................................................................4

a. The Commission can apply this Court’s rulings via the issuance of 

revised regulations after notice-and-comment rulemaking...................5

b. The Commission can also use its advisory opinion process to clarify the 

application of this Court’s rulings.........................................................7

c. In the enforcement context, however, the Commission’s members have 

consistently disapproved of enforcement action that would contradict 

judicial rulings.....................................................................................11

II. A clear rule exempting uncoordinated bequests from the federal 

contribution limits would vindicate the Constitution and preserve 

judicial economy .................................................................................14

CONCLUSION.............................................................................................................16

CERTIFICATE OF COMPLIANCE ..................................................................................17

CERTIFICATE OF SERVICE..........................................................................................18

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TABLE OF AUTHORITIES

CASES

Am. Fed’n of Labor-Congress of Indus. Orgs. v. Fed. Election Comm’n,

333 F.3d 168 (D.C. Cir. 2003).........................................................................4

Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n,

2018 U.S. Dist. LEXIS 130774, No. 16-259 (D.D.C. Aug. 3, 2018) ...........14

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010).....................................................................................4, 5

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008).......................................................................................14

Fed. Election Comm’n v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007).....................................................................................4, 5

Fed. Election Comm’n v. Political Contributions Data, 

943 F.2d 190 (2d Cir. 1991) ..........................................................................13

Gregg v. Ga.,

428 U.S. 153 (1976).........................................................................................6

Holmes v. Fed. Election Comm’n, 

823 F.3d 69 (D.C. Cir. 2016)...........................................................................6

Holmes v. Fed. Election Comm’n, 

875 F.3d 1153 (D.C. Cir. 2017).......................................................................2

Marks v. United States,

430 U.S. 188 (1977).........................................................................................5

Mass. Citizens for Life, Inc. v. Fed. Election Comm’n,

479 U.S. 238 (1986).........................................................................................4

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003)...........................................................................................5

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McCutcheon v. Fed. Election Comm’n,

572 U.S. 185 (2014).........................................................................................4

N.Y. Progress & Protection PAC v. Walsh, 

733 F.3d 483, 488 (2nd Cir. 2013)..................................................................9

SpeechNow.org v. Fed. Election Comm’n,

599 F.3d 686 (D.C. Cir. 2010).................................................................2, 4, 8

Van Hollen v. Fed. Election Comm’n,

811 F.3d 486 (D.C. Cir. 2016).........................................................................6

Wagner v. Fed. Election Comm’n,

717 F.3d 1007 (D.C. Cir. 2013).....................................................................15

Wis. Right to Life, Inc. v. Fed. Election Comm’n,

546 U.S. 410 (2006).........................................................................................5

CONSTITUTIONS, STATUTES, RULES, AND REGULATIONS

52 U.S.C. § 30108......................................................................................................7

52 U.S.C. § 30108(a)(1).............................................................................................9

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

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

52 U.S.C. § 30109(a)(2)...........................................................................................12

52 U.S.C. § 30110...........................................................................................i, 1, 2, 3

52 U.S.C. § 30118(b)(2) ............................................................................................5

Fed. R. App. P. 29(a)(4).............................................................................................2

OTHER AUTHORITIES

72 Fed. Reg. 72899 (Dec. 26, 2007)...........................................................................6

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76 Fed. Reg. 63567 (Oct. 13, 2011)...........................................................................7

79 Fed. Reg. 62797 (Oct. 21, 2014)...........................................................................6

80 Fed. Reg. 12079 (Mar. 6, 2015)............................................................................7

81 Fed. Reg. 71647 (Oct. 18, 2016)...........................................................................7

82 Fed. Reg. 46937 (Oct. 10, 2017)...........................................................................7

83 Fed. Reg. 12864 (Mar. 26, 2018)..........................................................................7

Advisory Opinion 2010-11 (“Commonsense Ten”)..............................................8, 9

Advisory Opinion 2011-09 (“Facebook”) ...............................................................10

Advisory Opinion 2012-11 (“Free Speech”) .............................................................9

Advisory Opinion 2013-18 (“Revolution Messaging”)...........................................11

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

Time Magazine (May 13, 2015)......................................................................8

People for the American Way, et al., 

“Letter: Senators Must Scrutinize FEC Nominee Trey Trainor”..................12

Ron Jacobs, Back to the Future: FEC issues regulations for Citizens United, 

Political Law Briefing (Mar. 11, 2015)...........................................................7

Josh Israel and Aaron Mehta, Held up for 15 months, FEC nominee laments

process, 

The Hill (Oct. 17, 2010) ................................................................................11

Statement for the Record by Commissioner Caroline C. Hunter,

Advisory Opinion 2010-19 (“Google”).........................................................10

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Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioners 

Caroline C. Hunter and Donald F. McGahn,

Matter Under Review 5541 (“The November Fund, et al.”), 

Jan. 22, 2009 ..................................................................................................13

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners

Caroline C. Hunter and Donald F. McGahn,

Matter Under Review 5625 (“Aristotle”), Mar. 14, 2010 .............................13

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners 

Caroline C. Hunter and Donald F. McGahn,

Matters Under Review 5712, 5799 (“McCain”)............................................13

Luke Wachob, Bipartisanship works for the FEC, 

Washington Examiner (Oct. 19, 2014)..........................................................11

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GLOSSARY

FEC..............................................................................Federal Election Commission

WRTL...................................................................................Wisconsin Right to Life

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STATUTES AND REGULATIONS

The pertinent statutes and regulations at issue are:

The Commission, the national committee of any political party, or any 

individual eligible to vote in any election for the office of President may 

institute such actions in the appropriate district court of the United 

States, including actions for declaratory judgment, as may be 

appropriate to construe the constitutionality of any provision of this 

Act. The district court immediately shall certify all questions of 

constitutionality of this Act to the United States court of appeals for the 

circuit involved, which shall hear the matter sitting en banc.

52 U.S.C. § 30110.

* * *

(a) Dollar limits on contributions.

(1) ...no person shall make contributions...

(B) to the political committees established and maintained by a 

national political party, which are not the authorized political 

committees of any candidate, in any calendar year which, in the 

aggregate, exceed $ 25,000, 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;

52 U.S.C. § 30116(a)(1)(B).

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STATEMENT OF IDENTITY,INTEREST IN CASE,

AND SOURCE OF AUTHORITY TO FILE 3

Founded in 2005 by Bradley A. Smith, a former Chairman of the Federal 

Election Commission, the Institute for Free Speech is a nonpartisan, nonprofit 

organization that works to protect and defend the political rights to free speech, 

assembly, press, and petition. As part of that mission, the Institute has had extensive 

interactions with the Federal Election Commission and is familiar with its history 

and authority. Additionally, the Institute has represented clients in two suits against 

the Commission under the 52 U.S.C. § 30110 procedure, SpeechNow.org v. Fed. 

Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc) and Holmes v. Fed. 

Election Comm’n, 875 F.3d 1153 (D.C. Cir. 2017) (en banc).

The Institute certifies that its brief will be of unique help to the Court, as it 

will address the scope of the Commission’s capacity to respond to a ruling from this 

Court, and the effect such response will have on future litigation under the § 30110 

procedure.

Counsel for both Parties have consented to the Institute’s participation as 

amicus curiae.

 3 No other party’s counsel authored this brief in whole or in part, nor did any person 

contribute money that was intended to fund the preparation or submission of this 

brief. Fed. R. App. P. 29(a)(4).

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INTRODUCTION

Congress has required this Court, sitting en banc, to hear constitutional 

challenges to the Federal Election Campaign Act in the first instance. This is an 

unusual role for an appellate court to play, and highlights Congress’s insistence that 

constitutional questions relating to that Act be heard swiftly and resolved clearly. It 

also, quite reasonably, raises questions of judicial economy.

Congress did not create the 52 U.S.C. § 30110 procedure in a vacuum. The 

Federal Election Campaign Act also created the Federal Election Commission 

(“FEC” or “Commission”), an agency empowered with a range of administrative 

tools. Those powers are available, and have been used, to implement judicial 

opinions and provide guidance to American political actors. In response to an 

opinion by this Court in the instant case, these tools can be applied to limit the need 

for extensive, burdensome follow-up litigation under the § 30110 process. 

But, of course, there is no guarantee that the FEC will do so—and some 

indication that it will not. Consequently, the Constitution and the needs of judicial 

economy counsel in the same direction. This Court should issue a clear ruling for 

the Plaintiff, one that does not rely upon a regulatory response by the Commission 

or invite wasteful follow-up litigation.

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ARGUMENT

I. The Federal Election Commission is able to respond to a decision of 

this Court.

“Unique among federal administrative agencies,” the FEC exists to enforce 

statutes whose “sole purpose is the regulation of core constitutionally protected 

activity.” Am. Fed’n of Labor-Congress of Indus. Orgs. v. Fed. Election Comm’n, 

333 F.3d 168, 170 (D.C. Cir. 2003). Perhaps unsurprisingly, those statutes are 

sometimes found to be unconstitutional. E.g. Mass. Citizens for Life, Inc. v. Fed. 

Election Comm’n, 479 U.S. 238 (1986); Fed. Election Comm’n v. Wis. Right to Life, 

Inc., 551 U.S. 449 (2007); Citizens United v. Fed. Election Comm’n, 558 U.S. 310 

(2010); McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014); 

SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc).

When this happens, the FEC can call upon its administrative powers to

implement the Court’s ruling and clarify the scope of newly-permissible activities. 

In ideal circumstances, it has done so pursuant to formal rulemaking and advisory 

opinions.

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a. The Commission can apply this Court’s rulings via the issuance of revised 

regulations after notice-and-comment rulemaking.

For example, there is the Commission’s response to Federal Election 

Commission v. Wisconsin Right to Life, Inc. (“WRTL II”),

4 where the Supreme Court 

heard an as-applied challenge to a statutory provision now codified at 52 U.S.C. 

30118(b)(2). 551 U.S. 449 (2007). That law made “it a federal crime for any 

corporation to broadcast, shortly before an election, any communication that names 

a federal candidate for elected office and is targeted to the electorate.” WRTL II, 551 

U.S. at 455-456.5 The Court ruled for the Plaintiff, and in a controlling opinion by 

Chief Justice Roberts, described the type of advertisements that could be run by 

corporations, notwithstanding the statutory ban. Id. at 469-470.6

 4 The first iteration of the case asked whether an as-applied remedy was foreclosed 

by McConnell v. Federal Election Commission, 540 U.S. 93 (2003), which upheld 

the corporate ban as a facial matter. Wis. Right to Life, Inc. v. Fed. Election Comm’n, 

546 U.S. 410, 411-412 (per curiam) (“In upholding [the statute] against a facial 

challenge, we did not purport to resolve future as-applied challenges”).

5 The provision was later facially invalided in the Citizens United decision. 558 U.S. 

at 365.

6 The Chief Justice was joined by Justice Alito. Three justices would have struck the 

statute facially, presaging the Court’s ultimate decision in Citizens United. WRTL II, 

551 U.S. at 483-504 (Scalia, J., concurring op., joined by Kennedy and Thomas, JJ.).

Four other justices would have upheld the ban entirely. Id. at 504-536 (Souter, J., 

dissenting, joined by Stevens, Ginsburg, and Breyer, JJ.). Therefore, the Chief 

Justice’s narrow opinion is the controlling one. Marks v. United States, 430 U.S. 

188, 193 (1977) (“When a fragmented Court decides a case and no single rationale 

explaining the result enjoys the assent of five Justices, ‘the holding of the Court may 

be viewed as that position taken by those Members who concurred in the judgments 

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The Commission responded to the WRTL II decision by conducting a 

rulemaking and issuing revised regulations pursuant to that decision. 72 Fed. Reg. 

72899, 72899 (Dec. 26, 2007) (“The Commission is revising 11 CFR parts 104 and 

114 to implement the recent U.S. Supreme Court decision in FEC v. Wisconsin Right 

to Life, Inc.”). There, the Commission chose to “track[] the WRTL II decision’s 

language” and reasoning, 72 Fed. Reg. at 72902, and updated other regulations to 

deal with the new reality of corporate-sponsored electioneering communications, 

including rules concerning donor reporting for those advertisements. 72 Fed. Reg. at 

72911.7 The Commission could act in a similar fashion here.8

By contrast, in recent years, the FEC has had difficulty promulgating new 

regulations. Following the Citizens United decision, it took five years and a few fits 

and starts before the Commission promulgated rules implementing that decision. 79 

Fed. Reg. 62797, 62798 (Oct. 21, 2014) (noting that two rounds of comments 

 

on the narrowest grounds....’”) (quoting Gregg v. Ga., 428 U.S. 153, 169 n.15 

(1976)).

7 The corporate electioneering communications disclosure regulations born of that 

rulemaking were recently upheld by a panel of this Court. Van Hollen v. Fed. 

Election Comm’n, 811 F.3d 486 (D.C. Cir. 2016).

8 Moreover, challenges to post-opinion regulations promulgated by the Commission 

would not be subject to § 30110. Holmes v. Fed. Election Comm’n, 823 F.3d 69, 75-

76 (D.C. Cir. 2016) (“Plaintiffs’ Fifth Amendment claim is...clearly a challenge to 

the regulations, and therefore outside the scope of § 30110...[as] the issue plaintiffs 

raise...is a result of regulations, not the Act”).

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occurred in 2011 and 2012, and the “Commission held a public hearing on March 7, 

2012”); 80 Fed. Reg. 12079, 12079 (Mar. 6, 2015) (setting effective date for those 

regulations as January 27, 2015); Ron Jacobs, Back to the Future: FEC issues 

regulations for Citizens United, Political Law Briefing (Mar. 11, 2015) 

(“Interestingly, the FEC never changed its rules to implement the Court’s decision. 

Pick up the Code of Federal Regulations from 2011, 2012, 2013, or 2014 and you 

will find very clear statements that corporations may not make independent 

expenditures or electioneering communications”).9

A similar fate has befallen an ongoing effort to determine which forms of

paid-for online advertising may be excluded from statutory disclaimer requirements. 

Four notice-and-comment periods on that question have come and gone without any 

subsequent Commission action. 83 Fed. Reg. 12864 (Mar. 26, 2018); 82 Fed. Reg. 

46937 (Oct. 10, 2017); 81 Fed. Reg. 71647 (Oct. 18, 2016); 76 Fed. Reg. 63567 

(Oct. 13, 2011).

b. The Commission can also use its advisory opinion process to clarify the 

application of this Court’s rulings.

The Commission is empowered to issue advisory opinions upon request. 52 

U.S.C. § 30108. These opinions, however, are not merely advisory. So long as the 

requestor complies in “good faith” with the written opinion, they are immune from 

 9 https://www.politicallawbriefing.com/2015/03/back-to-the-future-fec-issuesregulations-for-citizens-united/

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civil or criminal penalties for their conduct. 52 U.S.C. § 30108(c)(2). And this shield 

applies beyond the requestor: “any person involved in any specific transaction or 

activity which is indistinguishable in all its material aspects from the transaction or 

activity with respect to which such advisory opinion is rendered” are also protected. 

52 U.S.C. § 30108(c)(1)(B). 

The FEC took this approach in the immediate aftermath of SpeechNow.org v. 

Federal Election Commission. That case, which came to this Court under the 

§ 30110 procedure, found that the federal contribution limits were unconstitutional

as applied to “independent expenditure-only organizations.” 599 F.3d at 696.10

Shortly after that decision, an organization named Commonsense Ten filed an 

advisory opinion request with the Commission, asking simply whether it could 

“solicit[] and accept[] unlimited contributions from individuals, political 

committees, corporations, and labor organizations for the purpose of making 

independent expenditures, as well as registering and reporting with the Commission 

as a nonconnected political committee.” Advisory Opinion 2010-11 

 10 This decision created so-called “Super PACs.” Alex Altman, Meet the Man Who 

Invented the Super PAC, Time Magazine, May 13, 2015 (“David Keating...was the 

architect of a federal lawsuit that ended in a landmark 2010 court ruling...The case, 

SpeechNow.org v. FEC, scrapped annual limits on individual contributions to 

campaign advocacy groups, ushering in the era of super PACs”), available at: 

http://time.com/3856427/super-pac-david-keating/.

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(“Commonsense Ten”) at 2 (italics removed).

11 Relying on this en banc Court’s 

decision in SpeechNow.org, as well as the Citizens United decision, the FEC 

concluded that “there is no basis to limit the contributions” to Super PACs such as 

Commonsense Ten.

12 Id. at 3. Moreover, the FEC determined that in the absence of 

new registration forms for independent expenditure-only political committees, a 

cover letter “clarifying that [the Super PAC] intends to accept unlimited 

contributions for the purpose of making independent expenditures” would suffice. 

Id. at 3, n.4. This quickly became the practice for organizations seeking to take 

advantage of their constitutional rights.13

Of course, the Commission is not always able to issue binding advisory 

opinions. Although the FEC “shall render a written advisory opinion” no “later than 

60 days after the Commission receives...a complete written request concerning the 

application” of the law, there is no statutory requirement that the Commission 

answer the question. 52 U.S.C. § 30108(a)(1); Advisory Opinion 2012-11 (“Free 

 11 http://saos.fec.gov/aodocs/AO%202010-11.pdf

12 The FEC’s approach has been consistently upheld by courts reviewing similar 

state laws. See, e.g., N.Y. Progress & Protection PAC v. Walsh, 733 F.3d 483, 488 

(2nd Cir. 2013) (“Few contested legal questions are answered so consistently by so 

many courts and judges.”).

13 To this day, the Commission provides a template for such letters on its Web site. 

https://www.fec.gov/resources/cms-content/documents/ie_only_letter.pdf

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Speech”) at 1 (“The Commission could not approve a response by the required four 

affirmative votes about the remaining advertisements and donation requests, or 

about Free Speech’s status as a political committee”).14

Indeed, given the Commission’s failure to act on its Internet ad disclaimer 

rulemaking, mentioned above, members of the regulated community unsuccessfully 

sought to have their rights sorted out via advisory opinions. An advisory opinion by 

Google was answered with a “vague and limited response,” that made it “impossible 

for regulated entities to determine whether their advertising programs are materially 

indistinguishable from Google’s, and therefore covered by the opinion.” Statement 

for the Record by Commissioner Caroline C. Hunter, Advisory Opinion 2010-19 

(“Google”) at 1 (citation and quotation marks omitted).

15 This “no rationale 

approach,” id., was at least an answer—something the Commission was unable to 

give in response to follow-up requests by different parties. Advisory Opinion 2011-

09 (“Facebook”) at 1 (“The purpose of this letter is to inform you that the 

Commission has concluded its consideration of your advisory opinion request 

 14 http://saos.fec.gov/aodocs/AO%202012-11.pdf

15 https://www.fec.gov/files/legal/aos/2010-19/1158399.pdf

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without issuing an advisory opinion”);

16 Advisory Opinion 2013-18 (“Revolution 

Messaging”) (stating similar).17

c. In the enforcement context, however, the Commission’s members have 

consistently disapproved of enforcement action that would contradict 

judicial rulings.

The Commission has the capacity to settle outstanding questions arising from 

judicial decisions, and in the past, it has done so. But it is also possible that the 

bipartisan FEC will be unable to produce a regulation or agree on advisory 

opinions.18

But there is an upshot: investigations into wrongdoing, and any enforcement,

must be initiated by a vote of at least four of the six statutory commissioners.19 52 

 16 http://saos.fec.gov/aodocs/AO%202011-09.pdf

17 http://saos.fec.gov/aodocs/2013-18.pdf

18 Given its extraordinarily sensitive mission, serious concerns would be raised if the 

Commission were seen to be controlled by a single political party. In that sense, 

regulatory gridlock at the FEC is the result of good-faith disagreement among the 

Commissioners and reflects considered Congressional policy. Luke Wachob, 

Bipartisanship works for the FEC, Washington Examiner (Oct. 19, 2014), 

https://www.washingtonexaminer.com/bipartisanship-works-for-the-fec.

19 At present, there are four sitting commissioners. Consequently, the Commission 

must act unanimously if it wishes to initiate investigations or enforcement actions. 

Efforts to seat new commissioners to fill vacancies have occasioned heavy 

opposition. E.g. Josh Israel and Aaron Mehta, Held up for 15 months, FEC nominee 

laments process, The Hill (Oct. 17, 2010), 

http://thehill.com/homenews/campaign/123031-withdrawn-fec-nominee-lamentsbroken-confirmation-process-;

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U.S.C. § 30109(a)(2).20 Thus, the FEC’s structure also allows commissioners to 

block enforcement in circumstances where there is a good faith basis to believe that 

a regulation or statute has been invalidated by the courts.

Commissioners have explained their reliance upon federal case law when 

declining to find, in the Commission’s parlance, that there is “reason to believe” a 

violation of federal law has occurred—even in circumstances that are not directly 

foreclosed by a court’s decision. E.g. Statement of Reasons of Vice Chairman

Caroline C. Hunter and Commissioners Donald F. McGahn and Matthew S. 

Petersen, Matter Under Review 6211 (“Krikorian for Congress”) at 1-2, Jan. 24, 

2011 (“In light of last year’s Supreme Court decision in Citizens United v. Federal 

Election Commission...the continuing viability of the Commission’s facilitation 

regulation is at best suspect” as support not to find reason to believe)21; Statement 

 

People for the American Way, et al., “Letter: Senators Must Scrutinize FEC 

Nominee Trey Trainor” (letter from ten reform organizations arguing that “Mr. 

Trainor’s record raises significant concerns about his ability and willingness to fulfill 

the responsibilities of an FEC commissioner”), http://www.pfaw.org/blogposts/letter-senators-must-scrutinize-fec-nominee-trey-trainor/.

20 “If the Commission, upon receiving a complaint under paragraph (1) or on the 

basis of information ascertained in the normal course of carrying out its supervisory 

responsibilities, determines, by an affirmative vote of 4 of its members, that it has 

reason to believe that a person has committed, or is about to commit, a violation of 

this Act.”

21 http://eqs.fec.gov/eqsdocsMUR/11044284605.pdf

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of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. 

Hunter and Donald F. McGahn, Matter Under Review 5625 (“Aristotle”) at 8-9, 

Mar. 14, 2010 (relying on the Second Circuit’s decision in Federal Election 

Commission v. Political Contributions Data, 943 F.2d 190 (2d Cir. 1991) as support 

not to find reason to believe)22; MURs 5712, 5799 (“McCain”), Statement of 

Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter 

and Donald F. McGahn at 5, n.13, Mar. 5, 2010 (“These sorts of arguments have 

been rejected by the courts, most recently in FEC v. Emily’s List, when the D.C. 

Circuit unanimously held that the Commission’s regulations were beyond the reach 

of the statute itself”)23; Statement of Reasons of Vice Chairman Matthew S. Petersen 

and Commissioners Caroline C. Hunter and Donald F. McGahn, Matter Under 

Review 5541 (“The November Fund, et al.”), Jan. 22, 2009 (“The theories advanced

in support of enforcement failed to fully incorporate important principles in recent 

judicial decisions that should assist the Commission in its thinking on this issue, 

including the Government’s losses before the U.S. Supreme Court in FEC v. 

 22 http://eqs.fec.gov/eqsdocsMUR/10044264158.pdf

23 http://eqs.fec.gov/eqsdocsMUR/10044262366.pdf

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Wisconsin Right to Life and FEC v. Davis [sic]

24, and the Fourth Circuit’s persuasive 

decision in North Carolina Right to Life, Inc. v. Leake”)25.

Amicus expects current and future commissioners will apply this Court’s 

ruling and bar enforcement where the facts of a case are clearly implicated by 

judicial reasoning. If so, this will decrease the pressure on recipient organizations to 

seek declaratory judgments regarding future bequests, resulting in a reduced use of 

§ 30110.26

II. A clear rule exempting uncoordinated bequests from the federal 

contribution limits would vindicate the Constitution and preserve 

judicial economy.

Congress has tasked this Court with a special responsibility: to ensure that 

constitutional challenges to the Federal Election Campaign Act are resolved 

promptly and decisively. See Clark v. Valeo, 559 F.2d 642, 661 (D.C. Cir. 1977) (en 

banc) (Tamm, J., concurring) (“Senator Buckley proposed [§ 30110] as a measure 

to provide for expeditious review of fundamental constitutional objections he had 

raised to the core of the law”). Indeed, “section [30110] vests exclusive jurisdiction 

 24 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008).

25 http://eqs.fec.gov/eqsdocsMUR/29044223819.pdf

26 Indeed, even if a complainant decides to sue the Commission because it declines 

to act on a complaint regarding a bequest, such litigation will proceed in district 

court. See Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 

2018 U.S. Dist. LEXIS 130774, No. 16-259 (D.D.C. Aug. 3, 2018) (finding that FEC 

dismissal of complaint was improper).

USCA Case #18-5227 Document #1750259 Filed: 09/12/2018 Page 22 of 26
15

in the en banc courts of appeals.” Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 

1014 (D.C. Cir. 2013). Because of this exclusivity, concerns regarding judicial 

economy hang in the background of every opinion issued under § 30110.

If this Court rules narrowly, grounding its decision in caveats, minutiae, and 

subjective factors, it may not fully address the constitutional controversy. The

decision may not address logical questions arising from its reasoning. Such a ruling 

will cry out for additional clarification, and the best way to get a definitive answer 

will be more litigation through the § 30110 process. A narrow ruling will also make 

it more difficult for the FEC to respond using the administrative powers described 

above.

Therefore, this Court should fashion a broad, bright-line rule that cleanly 

clarifies the circumstances where contribution limits will not apply to bequests. Such 

a remedy is easily articulated. The Court should find that contribution limits are 

inappropriate where a bequest is made without any prior coordination with the 

recipient committee, and where that committee seeks to receive it only after the 

contributors’ death. That ruling will be easily applicable to, and easily cognizable 

by, a wide array of actors, obviating the need for future § 30110 litigation on the 

subject. 27The FEC should have little difficulty applying this standard via regulation 

 27 Moreover, in the unlikely event that a bequest that sounds within such an opinion 

is challenged as unlawful, a broad ruling will provide ammunition for commissioners 

USCA Case #18-5227 Document #1750259 Filed: 09/12/2018 Page 23 of 26
16

or advisory opinion, but if it finds itself unable to, the harm to the regulated 

community will be minimal—because that community will know its rights.

CONCLUSION

For the foregoing reasons, the likely impact of this Court’s decision on the 

FEC’s functions, and its effect on the broader rights of American political speakers, 

both mitigate in favor of a clearly defined remedy that categorically protects 

uncoordinated bequests.

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan

Institute for Free Speech

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

zmorgan@ifs.org

September 12, 2018 Counsel for Amicus Curiae

 

to estop enforcement actions sought under a theory that conflicts with the plain 

meaning of the holding.

USCA Case #18-5227 Document #1750259 Filed: 09/12/2018 Page 24 of 26
17

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitation set 

forth in Rule 32(a)(7)(B)Iii) of the Federal Rules of Appellate Procedure because it 

contains 3,415 words, according to a word count by Microsoft Word 2016, excluding 

the parts of the brief exempted by Circuit Rule 32(e)(1). 

This brief complies with the typeface requirements of Rule 32(a)(5) because 

it has been prepared in a proportionally-spaced typeface—Times New Roman—

using 14-point font.

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan

Institute for Free Speech

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

zmorgan@ifs.org

September 12, 2018 Counsel for Amicus Curiae

USCA Case #18-5227 Document #1750259 Filed: 09/12/2018 Page 25 of 26
18

CERTIFICATE OF SERVICE

I hereby certify that I caused the foregoing to be filed with the Clerk of this 

Court via the appellate CM/ECF system. Counsel for all parties in the instant 

matter are registered CM/ECF users and will be served by the appellate CM/ECF 

system.

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan

Institute for Free Speech

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

September 12, 2018 Counsel for Amicus Curiae

USCA Case #18-5227 Document #1750259 Filed: 09/12/2018 Page 26 of 26