NOT YET SCHEDULED FOR ORAL ARGUMENT

____________________

No. 19-5072

____________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

REPRESENTATIVE TED LIEU, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court 

for the District of Columbia 

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

____________________

APPELLANTS’ RESPONSE IN OPPOSITION TO FEC’S MOTION FOR 

SUMMARY AFFIRMANCE AND AFFIRMATIVE REQUEST TO 

HOLD FEC’S MOTION IN ABEYANCE 

Ronald A. Fein

 Counsel of record

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre St #405

Newton, MA 02459

617-244-0234

May 30, 2019

Malcolm Seymour

Benjamin Lambiotte

Brad Deutsch (of counsel)

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

Albert W. Alschuler (of counsel)

Richard Painter (of counsel)

Laurence H. Tribe (of counsel)

Anne Weismann

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 1 of 35
ii

TABLE OF CONTENTS

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

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

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

I. The Federal Election Campaign Act ................................................................ 4

II. Citizens United, SpeechNow, and the FEC’s advisory opinion........................ 6

III. Administrative proceedings before the FEC .................................................... 9

IV. Proceedings before the district court.............................................................. 10

ARGUMENT.......................................................................................................... 11

I. Standard of review.......................................................................................... 11

II. The Court should hold the FEC’s motion in abeyance pending 

consideration of appellants’ petition for initial hearing en banc.................... 13

A. Summary affirmance would lead to inefficient and duplicative 

processes....................................................................................................... 13

B. Summary affirmance would prejudice the development of the law by 

limiting the participation of amici curiae..................................................... 15

C. The appeal and petition have substantial merit because SpeechNow’s 

erroneous conclusion has been undermined by subsequent legal and 

factual developments.................................................................................... 16

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

widespread concern about corruption and super PACs in federal 

elections........................................................................................................ 22

III. In the alternative, the Court should deny the FEC’s motion because 

plenary briefing would elucidate and preserve issues for further appeal. ...... 25

CONCLUSION ...................................................................................................... 27

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 2 of 35
iii

TABLE OF AUTHORITIES

Page

Cases

*

*

*

*

Akins v. FEC .......................................................................................................12

101 F.3d 731 (D.C. Cir. 1996), vacated on other grounds, 524 U.S. 11 (1998)

Al-Alwi v. Trump ................................................................................................16

901 F.3d 294 (D.C. Cir. 2018)

Buckley v. Valeo ...............................................................................4, 5, 6, 19, 21

424 U.S. 1 (1976)

Church of Scientology v. IRS ..............................................................................26

792 F.2d 153 (D.C. Cir. 1986)

Citizens for Responsibility & Ethics in Washington v. FEC...............................12

209 F. Supp. 3d 77 (D.D.C. 2016), appeal dismissed, No. 16-5343, 

2017 WL 4957233 (D.C. Cir. Apr. 4, 2017)

Citizens United v. FEC ...............................................................5, 6, 7, 11, 17, 19

558 U.S. 310 (2010)

Coal. for Responsible Regulation, Inc. v. EPA ..................................................23

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

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

533 U.S. 431 (2001)

Heartland Plymouth Court MI, LLC v. NLRB .............................................14, 25

838 F.3d 16 (D.C. Cir. 2016)

Holmes v. FEC ...............................................................................................3, 24

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

Joseph v. United States ......................................................................................13

135 S. Ct. 705 (2014)

Authorities upon which we chiefly rely are marked with asterisks.

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 3 of 35
iv

*

*

*

*

*

LaShawn A. v. Barry ..........................................................................................13

87 F.3d 1389 (D.C. Cir. 1996)

Libertarian Nat’l Comm., Inc. v. FEC ...............................................................21

No. 18-5227, 2019 WL 2180336 (D.C. Cir. May 21, 2019) (en banc)

Long Beach Area Chamber of Commerce v. City of Long Beach ........................8

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

McCutcheon v. FEC .......................................................................................5, 19

572 U.S. 185 (2014)

N.C. Right to Life, Inc. v. Leake ...........................................................................8

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

Nat’l Patent Development Corp. v. Smith & Nephew, Ltd. ..........................21, 25

865 F.2d 353 (D.C. Cir. 1989), vacated, 877 F.2d 1003 (D.C. Cir. 1989)

Neonatology Assocs., P.A. v. Comm’r of Internal Revenue................................15

293 F.3d 128 (3d Cir. 2002)

Niskey v. Kelly ....................................................................................................12

859 F.3d 1 (D.C. Cir. 2017), cert. denied, 138 S. Ct. 427 (2017)

Pearson v. Callahan ...........................................................................................26

555 U.S. 223 (2009)

Republican Party of N.M. v. King ........................................................................8

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

Republican Party of Louisiana v. FEC ..............................................................20

219 F. Supp. 3d 86 (D.D.C. 2016), aff’d, 137 S. Ct. 2178 (2017)

SpeechNow.org v. FEC ...................................1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, 

599 F.3d 686 (D.C. Cir. 2010) (en banc) 16, 17, 18, 19, 20, 21, 24

Taxpayers Watchdog, Inc. v. Stanley ...........................................................12, 16

819 F.2d 294 (D.C. Cir. 1987)

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 4 of 35
v

*

*

*

Texans for Free Enter. v. Tex. Ethics Comm’n ....................................................8

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

United States v. Fortner .....................................................................................12

455 F.3d 752 (7th Cir. 2006)

United States v. Menendez .................................................................................18

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

United States v. Menendez .................................................................................18

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

United States v. Siegelman .................................................................................17

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

Vt. Right to Life Comm., Inc. v. Sorrell ................................................................8

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

Wagner v. FEC .............................................................................................23, 26

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

Wisc. Right to Life State Political Action Comm. v. Barland ..............................8

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

Rules, Statutes, Treatises, Misc.

11 C.F.R. § 110.1(n) .............................................................................................5

18 U.S.C. § 201(b)(2) .........................................................................................17

52 U.S.C. § 30108(c)(2) .................................................................................9, 22

52 U.S.C. § 30109(a)(8)(A) ...........................................................................5, 10

52 U.S.C. § 30109(a)(8)(C) .....................................................................5, 10, 11

52 U.S.C. § 30110 ..............................................................................................23

52 U.S.C. § 30116(a)(1)(A) .............................................................................5, 7

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 5 of 35
vi

*

*

52 U.S.C. § 30116(a)(1)(C) ..............................................................................5, 7

52 U.S.C. § 30116(c) ............................................................................................5

Fed. R. App. P. 29(b) .........................................................................................15

Fed. R. App. P. 35(b) .........................................................................................14

Fed. R. App. P. 35(c) ..........................................................................................15

Fed. R. App. P. 40(a)(1)(B) ................................................................................15

Fed R. Civ. P. 12(b)(6) .......................................................................................12

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

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

PACs Should Survive Citizens United, 

86 Fordham L. Rev. 2299 (2018) .....................................................16, 17, 20, 24

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

59 Geo. Wash. L. Rev. 1008, 1025 (1991) ........................................................23

FEC, Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

84 Fed. Reg. 2504 (Feb. 7, 2019) .........................................................................5

FEC Advisory Op. 2010-11, https://www.fec.gov/files/legal/aos/76050.pdf

(July 22, 2010) (Commonsense Ten) ....................................................8, 9, 10, 22

Handbook of Practice & Internal Proc. (D.C. Cir. Dec. 1, 2018) ................13, 22

Letter from Atty. Gen. Eric Holder to Sen. Harry Reid (June 16, 2010) .........2, 8

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

43 Fla. St. U. L. Rev. 399, 419 (2016) ...............................................................18

Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War 

over Coordination, 9 Duke J. Const. L. & Pub. Pol’y 1, 15 (2014) ..................20

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 6 of 35
1

INTRODUCTION

This is not an ordinary case. The goal of this litigation under the Federal 

Election Campaign Act (FECA) is to modify or reverse existing law on a question 

of exceptional importance: whether the First Amendment requires that political 

spending vehicles known as super PACs (technically, “independent expenditureonly committees”) be allowed to accept unlimited contributions for the purpose of 

influencing federal elections. The plaintiffs below—Representative Ted Lieu (DCal.), the late Representative Walter Jones (R-N.C.), Senator Jeff Merkley (D-Or.), 

and three 2016 congressional candidates from both major political parties—

brought this action on the eve of the 2016 election to establish that existing federal 

limits on contributions to super PACs are, in fact, constitutional and enforceable.

This Court considered this question before, more abstractly, in 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc). That decision—

which birthed the modern super PAC and radically transformed American 

politics—rested entirely on a misapplication of a single sentence in Citizens United

to the effect that “independent” expenditures cannot corrupt or even create an 

appearance of corruption. From this premise, SpeechNow purported to reason 

syllogistically that contributions to political committees that make only 

independent expenditures cannot cause corruption, or even the appearance of

corruption. Believing that SpeechNow would affect “only a small subset of 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 7 of 35
2

federally regulated contributions,” the government declined to seek Supreme Court 

review, and the nation entered the age of the super PAC.1

But SpeechNow’s reasoning was flawed. The supposed syllogism rested on 

an unstated and inaccurate premise: that when a political contributor gives money 

to a third party (i.e., a person or entity other than the politician), this contribution 

can only be part of a quid pro quo exchange if the third party then spends the 

money in a way that is itself corrupting. That premise, however, is simply wrong. 

As bribery law recognizes, politicians sometimes value large contributions made to 

favored third parties, regardless of how those third parties spend the money. And a 

donor to a super PAC can reach a corrupt agreement with a candidate without even 

involving the super PAC’s employees in the conversation.

The SpeechNow decision’s seemingly neat logical conclusion has been 

undermined by nearly a decade’s actual experience with super PACs in real life—

including substantial empirical evidence of the appearance of corruption, and two 

federal indictments (and one conviction) for bribery of a type that, according to 

SpeechNow, is legally impossible. With American elections increasingly 

dominated by super PACs, the question of whether six or seven-figure 

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

Letter”), available at https://bit.ly/1MhojVD (last visited May 24, 2019).

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 8 of 35
3

contributions to these entities can pose any risk of corruption—or even the 

appearance of corruption—is ripe for revisiting. 

Representative Lieu, Senator Merkley, and the other appellants brought this 

case for just that purpose. They acknowledged at every stage—before the Federal 

Election Commission (FEC) and again before the district court—that SpeechNow 

remains the law of this circuit. The FEC’s effort to preempt en banc consideration 

of the merits is misguided. As this Court has noted in a similar context, even for a 

Supreme Court decision (which SpeechNow was not), “what may appear to be 

‘settled’ Supreme Court constitutional law sometimes turns out to be otherwise,” 

and “it is entirely possible to mount a non-frivolous argument against what might 

be considered ‘settled’ Supreme Court constitutional law.” Holmes v. FEC, 823 

F.3d 69, 73-74 (D.C. Cir. 2016). The Court’s observation is even more true of a 

circuit decision—even an en banc decision. Indeed, whenever someone challenges 

an appellate precedent, they must initiate the challenge in an agency or lower court 

that is bound by the precedent. The challenge does not fail simply because the 

agency or lower court must follow this precedent. If that were so, unfortunate 

decisions could never be overruled. 

Representative Lieu, Senator Merkley, and the other appellants seek to make 

their case for revisiting a historically fraught decision on one of the most critical 

questions affecting our democracy today. They challenged SpeechNow, not 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 9 of 35
4

because they expected the FEC or the district court to overrule it, but simply to 

preserve their claims for appeal. Contrary to the FEC’s assertion, appellants do not 

argue that the FEC “was required to disregard a clear and binding holding on a 

constitutional issue.”2 They argue that the FEC’s ruling was contrary to law 

because SpeechNow is contrary to law.

The FEC, however, seeks to cut appellants short before they have had an 

opportunity to make their case. This Court should reject the FEC’s attempt to deny 

appellants their opportunity, and instead hold the FEC’s motion in abeyance 

pending a decision on appellants’ forthcoming petition for initial hearing en banc 

or, in the alternative, deny the motion.3

LEGAL AND FACTUAL BACKGROUND

I. The Federal Election Campaign Act 

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

actuality and appearance of corruption resulting from large individual financial 

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

FECA limits contributions to candidates to $2,800 per contributor per election, 

and, at issue here, contributions to political committees (other than the authorized 

committees of candidates or political parties) to $5,000 per contributor per year. 

 2 FEC Mot. for Summary Affirmance, ECF No. 1787446 (May 10, 2019), at 14.

3 Appellants sought the FEC’s consent for their requested affirmative relief to hold 

the FEC’s motion in abeyance. By counsel, the FEC declined to consent.

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 10 of 35
5

See 52 U.S.C. §§ 30116(a)(1)(A), (C).4 The FEC’s regulations explain that this last 

contribution limit “appl[ies] to contributions made to political committees making 

independent expenditures.” 11 C.F.R. § 110.1(n). 

Under Buckley and its progeny, limits on campaign financing must serve the 

government interest in protecting against “corruption or the appearance of 

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

26-27. Different constitutional standards apply to limits on speech-like 

expenditures by candidates, parties, or groups than apply to limits on contributions 

to those who make such expenditures. See Buckley, 424 U.S. at 23-35, 39-51. 

Expenditure limits receive strict scrutiny; they must serve a “compelling interest 

and [be] narrowly tailored to achieve that interest.” Citizens United v. FEC, 558 

U.S. 310, 340 (2010) (citation and quotation marks omitted). But limits on 

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

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

Buckley, 424 U.S. at 25) (quotation marks omitted). Limiting “quid pro quo

corruption and its appearance” is a sufficiently important interest. Id. 

Applying this framework, the Court has “routinely struck down limitations 

on independent expenditures by candidates, other individuals, and groups, while 

 4 Under 52 U.S.C. § 30116(c), some of these limits are adjusted for inflation. See 

FEC, Price Index Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 84 Fed. Reg. 2504 (Feb. 7, 2019).

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 11 of 35
6

repeatedly upholding contribution limits.” FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 441-42 (2001) (internal citations omitted).

II. Citizens United, SpeechNow, and the FEC’s advisory opinion

In Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court held that 

FECA’s prohibition of independent expenditures by corporations violated the First 

Amendment. The Court explained that the First Amendment prohibits “restrictions 

distinguishing among different speakers, allowing speech by some but not by 

others.” Id. at 340-41. As a result, the Court held, FECA’s prohibition on 

independent expenditures by corporations constituted censorship of a “distrusted 

source,” in violation of the First Amendment. Id. at 356.

The Court also noted that, under Buckley, the lack of spender-candidate 

coordination “undermines the value of the [independent] expenditure to the 

candidate,” resulting in a “substantially diminished potential for abuse.” Id. at 357 

(quoting Buckley, 424 U.S. at 47) (quotation marks omitted). Given this diminished 

potential for abuse, the Court stated that “[t]he anticorruption interest is not 

sufficient to displace the speech here in question.” Id. Finally, the Court added: 

“[W]e now conclude that independent expenditures, including those made by 

corporations, do not give rise to corruption or the appearance of corruption.” Id. 

Shortly after the Supreme Court’s decision in Citizens United, this Court 

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

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 12 of 35
7

challenge to the $5,000 limit on contributions to political committees in 52 U.S.C. 

§ 30116(a)(1)(C). SpeechNow was argued six days after Citizens United but had 

been briefed earlier. The Federal Election Commission (FEC)’s brief relied heavily 

on pre-Citizens United arguments about gratitude, “‘preferential access for donors 

and undue influence over officeholders.’” 599 F.3d at 694 (quoting FEC brief). 

The FEC did not request an opportunity for supplemental briefing. 

The Court rejected the FEC’s arguments and instead reasoned syllogistically 

from the statement in Citizens United that “‘independent expenditures, including 

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

corruption.’” Id. (quoting Citizens United, 558 U.S. at 357). It wrote:

In light of the Court's holding as a matter of law that 

independent expenditures do not corrupt or create the 

appearance of quid pro quo corruption, contributions to 

groups that make only independent expenditures also 

cannot corrupt or create the appearance of corruption. 

The Court has effectively held that there is no corrupting 

“quid” for which a candidate might in exchange offer a 

corrupt “quo.” 

Id. at 694-95. Consequently, SpeechNow held that the $5,000 limit on contributions 

to political committees violated the First Amendment. 

The Department of Justice elected not to petition for certiorari, on the theory 

that SpeechNow would affect “only a small subset of federally regulated 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 13 of 35
8

contributions.”5 In rapid succession the Fifth, Seventh, Ninth, and Tenth Circuits 

followed SpeechNow,

6 and the Second Circuit did so provisionally.7 The Supreme 

Court has not reviewed the question.

In July 2010, the FEC approved an advisory opinion allowing political 

committees to solicit and accept unlimited contributions if they promise to make 

only independent expenditures. See FEC Advisory Op. 2010-11, 

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

Ten).8 Under FECA, “any person who relies upon any provision or finding of an 

 5 Holder Letter, at 2.

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

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

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

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

Cir. 2010). The Fourth Circuit had already made a similar but less categorical 

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

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

(expressly declining plaintiff’s invitation to “follow [SpeechNow and related 

decisions] and hold that contribution limits may not be constitutionally applied to 

‘independent expenditure’ entities,” and instead assuming arguendo that “even if 

contribution limits would be unconstitutional as applied to independentexpenditure-only groups, [plaintiff] would not succeed here.”). 

8 Four years later, a contribution to the committee that sought this opinion became

part of the basis for a federal indictment for alleged bribery. See infra Part II.C.1. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 14 of 35
9

advisory opinion . . . shall not, as a result of any such act, be subject to any 

sanction provided by this Act.” 52 U.S.C. § 30108(c)(2). 

III. Administrative proceedings before the FEC 

In July 2016, Representative Ted Lieu (D-Cal.), the late Rep. Walter Jones 

(R-N.C.),9 Senator Jeff Merkley (D-Or.), State Senator (ret). John Howe (a 

Republican congressional candidate from Minnesota), Zephyr Teachout (a 

Democratic congressional candidate from New York), and Michael Wager (a 

Democratic congressional candidate from Ohio) filed an administrative complaint 

before the FEC, naming as respondents ten super PACs that had received 

contributions from single donors ranging from $300,000 to $5,000,000—far in 

excess of the statutory $5,000 limit. (Add. 48-82).10

The complaint acknowledged this Court’s decision in SpeechNow but argued 

that this decision was unsound. It noted substantial legal scholarship criticizing 

SpeechNow’s reasoning and offered empirical evidence that large contributions to 

super PACs were in fact resulting in incidents of corruption and the widespread 

appearance of corruption. Finally, the complaint acknowledged the FEC’s 

Commonsense Ten advisory opinion and recognized that, under 52 U.S.C. 

§ 30108(c)(2), an entity acting in compliance with an FEC advisory opinion is not 

 9 Representative Jones died during the pendency of the litigation. 

10 For the convenience of the Court and to avoid duplication of materials,

appellants cite the addendum to the FEC’s motion for summary affirmance.

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 15 of 35
10

subject to “sanction.” For this reason, the complaint did “not ask the FEC to seek 

civil penalties or other sanctions for past conduct, but rather only declaratory 

and/or injunctive relief against future acceptance of excessive contributions.” 

Admin. Compl. ¶ 7 (Add. 51).

In May 2017, the FEC dismissed the complaint. It made no factual findings, 

but rather rested its decision entirely on legal determinations, principally 

SpeechNow and the Commonsense Ten advisory opinion. (Add. 109).

IV. Proceedings before the district court

Under FECA, any party who files an administrative complaint before the 

FEC and is “aggrieved by an order of the Commission dismissing a complaint” 

may challenge the dismissal in federal district court. 52 U.S.C. § 30109(a)(8)(A). 

In such a proceeding, “the court may declare that the dismissal of the complaint . . . 

is contrary to law.” Id. § 30109(a)(8)(C).

Appellants filed such an action. Their complaint and briefing recognized that 

the district court could not overrule SpeechNow and explained that they offered 

arguments on the issue only to preserve them for appeal. Compl. ¶ 12 (Add. 29). 

The district court granted the FEC’s motion to dismiss. As the court 

observed, “This is not the typical case of administrative review: the FEC’s decision 

to dismiss the complaint was based exclusively on its interpretation of the D.C. 

Circuit’s opinion in SpeechNow.” (Add. 15). Consequently, the court rejected the 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 16 of 35
11

FEC’s argument that the agency was entitled to deference, agreeing with appellants 

that it should review the FEC’s decision de novo because “courts need not defer to 

an agency’s interpretation of judicial precedent.” (Add. 14-15). The district court 

also rejected the FEC’s argument that it was entitled to deference regarding its 

decision not to enforce, both because FECA provides a specific right to challenge 

such decisions, and because “the dismissal decision was not rooted in a judgment 

call such as exercising prosecutorial discretion or policy-based justifications, but 

rather an interpretation of judicial precedent.” (Add. 16).

On the merits, the district court observed that, as appellants had 

acknowledged, “the D.C. Circuit’s interpretation of Citizens United in SpeechNow

binds this Court.” (Add. 19). Consequently, the district court concluded that since 

the FEC followed SpeechNow, its decision was not contrary to law. (Add. 22-23). 

This timely appeal followed.

ARGUMENT

I. Standard of review

The district court reviews the FEC’s action to determine whether it is 

“contrary to law” under 52 U.S.C. § 30109(a)(8)(C). As the district court 

concluded (Add. 14-17), since the FEC’s decision in this case “was based 

exclusively on its interpretation of” judicial precedent, the “contrary to law” 

standard means de novo review, not deferential review for reasonableness. See 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 17 of 35
12

Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (“We are not obliged 

to defer to an agency’s interpretation of Supreme Court precedent under Chevron

or any other principle”), vacated on other grounds, 524 U.S. 11 (1998); Citizens 

for Responsibility & Ethics in Washington v. FEC, 209 F. Supp. 3d 77, 85-87

(D.D.C. 2016) (rejecting FEC’s argument for deference under “contrary to law” 

standard where FEC dismissed administrative complaints based on its

interpretation of court precedent and First Amendment), appeal dismissed, No. 16-

5343, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017).

This Court reviews de novo the district court’s dismissal of appellants’ 

complaint under Rule 12(b)(6), and must “assume the truth of the complaint’s 

factual allegations and all reasonable inferences to be drawn from them.” Niskey v. 

Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017), cert. denied, 138 S. Ct. 427 (2017). 

On the FEC’s motion for summary affirmance, this Court determines 

whether the FEC has met its “heavy burden of establishing that the merits of [its] 

case are so clear” that “no benefit will be gained from further briefing and 

argument.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 

1987); accord United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) (court 

must be “convinced that [case] is so insubstantial” that full briefing is pointless).

On appellants’ motion to hold the FEC’s motion in abeyance, 

“[t]he courts of appeals have wide discretion to adopt and apply procedural rules 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 18 of 35
13

governing the management of litigation.” Joseph v. United States, 135 S. Ct. 705 

(2014) (statement of Kagan, J). (quotation marks omitted). 

II. The Court should hold the FEC’s motion in abeyance pending 

consideration of appellants’ petition for initial hearing en banc.

A. Summary affirmance would lead to inefficient and duplicative 

processes.

The FEC’s motion invites unnecessary duplication of effort. In the right 

circumstances, summary disposition can produce “a major savings of time, effort, 

and resources for the parties, counsel, and the Court.”11 But that is not the case 

here. As appellants advised the district court below, they intend to seek 

reconsideration of SpeechNow. (Add. 2, 17). Since a three-judge panel may not 

overrule circuit precedent,

12 appellants informed the Court at the outset of this 

appeal that they intend to submit a petition for an initial hearing en banc—a 

petition that has been delayed by the FEC’s motion for summary affirmance.13 The 

FEC’s motion purportedly seeks to simplify the Court’s adjudication by obtaining 

 11 Handbook of Practice & Internal Proc. (D.C. Cir. Dec. 1, 2018), § VII.A, at 28.

12 LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996). 13 See Pltfs.’-Appellants’ Cert. as to Parties, Rulings and Related Cases, ECF No. 

1784640 (Apr. 25, 2019) (“Appellants’ Certificate”), at 2-3; Statement of Issues to 

be Raised, ECF No. 1784641 (Apr. 25, 2019) (“Appellants’ Statement”), at 2. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 19 of 35
14

a summary ruling on the merits. But against the backdrop of appellants’ 

forthcoming petition, the FEC’s motion is counterproductive.

Appellants’ forthcoming petition seeks to conserve time and resources by 

bypassing this panel’s review of the merits and proceeding directly to en banc

hearing. But summary disposition entails significant motion practice and requires 

examination of a dispute’s underlying merits. See Heartland Plymouth Court MI, 

LLC v. NLRB, 838 F.3d 16, 27 n.9 (D.C. Cir. 2016) (because motion for summary 

disposition requires “full-fledged” merits briefing, “[i]t is not at all clear this 

motions practice would . . . . meaningfully reduce[] . . . attorney fees”). The 

potential efficiencies of summary disposition are nullified when the foreseeable 

consequence of such a grant, in this appeal, would be a petition for en banc 

rehearing. See Fed. R. App. P. 35(b). Allowing appellants to seek en banc hearing 

at the outset would conserve resources. 

The apparent aim of the FEC’s motion is to prevent earnest reevaluation of 

SpeechNow (the goal of this lawsuit from its inception). Far from streamlining 

proceedings, the FEC’s motion simply interposes an additional round of motion 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 20 of 35
15

practice, truncating appellants’ time to draft their petition while yielding no real

benefit for the Court. See Fed. R. App. P. 35(c), 40(a)(1)(B).

B. Summary affirmance would prejudice the development of the law by 

limiting the participation of amici curiae.

Summary disposition would prejudice not just appellants, but the broader 

public interest and the development of the law, by substantially limiting amici’s 

opportunity to assist the Court during merits consideration. “Even when a party is 

very well represented, an amicus may provide important assistance to the court.” 

Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 132 (3d 

Cir. 2002) (Alito, J.). Both parties have consented to the participation of multiple 

amici curiae who have, in accordance with Circuit Rule 29(b), notified the Court 

of their intent to submit briefs in this appeal.

14

The forced conversion of appellants’ petition for initial en banc hearing into 

one for rehearing would also restrict participation of amici in another way. The 

Court’s rules prohibit amici briefs in support of petitions for en banc rehearing, but 

not in support of petitions for initial en banc hearing. See Fed. R. App. P. 29(b); 

 14 Appellants and the FEC had already consented to the amicus participation of 

Senator Sheldon Whitehouse and of Citizens for Responsibility and Ethics in 

Washington before the FEC filed its motion for summary affirmance. See 

Appellants’ Certificate, at 2; Def.-Appellee FEC’s Certificate as to Parties, Rulings 

and Related Cases, ECF No. 1784712 (Apr. 25, 2019), at 1-2. Since then, Professor 

Christopher Robertson et al. filed a consented-to notice of intent to participate as 

amici curiae. See ECF No. 1788798 (May 21, 2019). Sen. Whitehouse has voiced 

his opposition to summary affirmance. See ECF No. 1790040 (May 29, 2019).

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 21 of 35
16

Al-Alwi v. Trump, 901 F.3d 294, 295 (D.C. Cir. 2018) (noting without objection an 

amicus curiae brief submitted in support of a petition for initial en banc hearing).

The FEC’s motion does not identify any exigencies or special circumstances 

that would necessitate a provisional decision on the merits. This Court should hold 

the FEC’s motion in abeyance pending the Court’s decision on appellants’

forthcoming petition for initial en banc hearing. 

C. The appeal and petition have substantial merit because SpeechNow’s 

erroneous conclusion has been undermined by subsequent legal and 

factual developments.

The FEC cannot meet the “heavy burden” needed to establish that “no 

benefit” will be gained from considering the appeal in the ordinary course,

Taxpayers Watchdog, 819 F.2d at 297-98. Appellants’ claims are well suited for en 

banc review and speak to issues of profound national importance. 

This section briefly summarizes some of the major reasons to overrule 

SpeechNow. A law review article by some of appellants’ lawyers provides a more 

thorough exposition of these arguments. See Albert W. Alschuler, Laurence H. 

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

Super PACs Should Survive Citizens United, 86 Fordham L. Rev. 2299 (2018). 

1. SpeechNow rests on a flawed syllogism.

The superficially plausible logic of the SpeechNow decision has a critical 

flaw: it implicitly relies on an unsupportable premise. The SpeechNow opinion 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 22 of 35
17

announced that a single sentence of Citizens United compelled its result. The 

Supreme Court wrote in Citizens United that “independent expenditures . . . do not 

give rise to corruption or the appearance of corruption,” 558 U.S. at 357, and 

SpeechNow declared that “[i]n light of the Court’s holding as a matter of law that 

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

corruption, contributions to groups that make only independent expenditures also 

cannot corrupt or create the appearance of corruption.” 599 F.3d at 694.15

This analysis relies on the unstated and incorrect premise that the corrupting 

potential of a payment to a third party depends on how the third party spends the 

money. To the contrary, federal prosecutions for bribery (the most extreme form of 

quid pro quo corruption) often rest on payments to third parties, without regard to 

how (or whether) the third party spends the money. See 18 U.S.C. § 201(b)(2) 

(defining bribery to include situations in which a candidate or official “corruptly 

demands, seeks, receives, accepts, or agrees to receive or accept anything of value 

personally or for any other person or entity” in exchange for official action) 

(emphasis added); United States v. Siegelman, 640 F.3d 1159, 1165-66, 1169 n.13 

(11th Cir. 2011) (affirming bribery conviction where the “quid” was a contribution 

to an issue-advocacy campaign while acknowledging that such contributions “do 

 15 Although SpeechNow described the quoted statement from Citizens United as the 

Supreme Court’s holding, this statement was dictum. See Alschuler et al., 86 

Fordham L. Rev. at 2312-14.

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 23 of 35
18

not financially benefit the individual politician in the same way that a candidateelection campaign contribution does”).

Just as a contribution to a favorite charity can be the “quid” in a bribe even 

though the charity’s beneficial expenditures do not corrupt anyone, super PAC 

contributions create opportunities for corruption even if super PAC expenditures

do not. In United States v. Menendez, the district court upheld a federal grand jury 

indictment for an alleged transaction that, according to SpeechNow, was legally 

impossible: a bribe where the “quid” included contributions to a super PAC. See 

132 F. Supp. 3d 635, 639 (D.N.J. 2015).

16 The indictment did not suggest that the 

super PAC that received the contribution had acted improperly or that its 

expenditures corrupted the official. See id.

17

Siegelman and Menendez cannot be reconciled with SpeechNow. Whatever 

rules may restrict super PACs’ media strategists from talking to candidates, these 

cases illustrate how a donor can reach a corrupt agreement with a politician 

without even involving the super PAC in the conversation. “The super PAC need 

not know about the illegal exchange; the parties surely would prefer that it not.”

Michael D. Gilbert & Brian Barnes, The Coordination Fallacy, 43 Fla. St. U. L. 

 16 These contributions are at issue here too. Compl. ¶¶ 50-51 (Add. 40).

17 The district court later dismissed this charge for factual insufficiency, but 

explicitly reiterated that a super PAC contribution can be a bribery “quid.” See 

United States v. Menendez, 291 F. Supp. 3d 606, 621-22 (D.N.J. 2018).

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 24 of 35
19

Rev. 399, 419 (2016). If it is possible to bribe a politician via a contribution to a 

super PAC, then the public has an interest in preventing such bribes.

2. SpeechNow is inconsistent with recent Supreme Court decisions.

Two recent cases substantially undermine SpeechNow’s foundations. 

First, in McCutcheon, the Supreme Court rejected SpeechNow’s 

interpretation of the line from Citizens United (“independent expenditures . . . do 

not give rise to corruption or the appearance of corruption”) that grounded the 

entire SpeechNow syllogism. SpeechNow had interpreted that line to mean that 

independent expenditures have zero value to a candidate, rephrasing the statement 

as: “The Court has effectively held that there is no corrupting ‘quid’ for which a 

candidate might in exchange offer a corrupt ‘quo.’” 599 F.3d at 694-95. But in 

McCutcheon, the plurality opinion by Chief Justice Roberts explained that while 

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

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

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

value of the expenditure to the candidate” but then added, “But probably not by 95 

percent.” 572 U.S. at 214 (quotation marks omitted) (emphasis added).

Similarly, even assuming that a super PAC contribution is worth 99 percent 

less than a contribution to a candidate, a $1 million super PAC contribution has the 

same potential for corruption or appearance of corruption as a $10,000 direct 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 25 of 35
20

contribution—nearly twice the legal limit. See Alschuler et al., 86 Fordham L. 

Rev. at 2324-25; Richard L. Hasen, Super PAC Contributions, Corruption, and the 

Proxy War over Coordination, 9 Duke J. Const. L. & Pub. Pol’y 1, 15 (2014) 

(stating that “the arguments for individual contribution limits applied to candidate

campaign accounts and to single-candidate reliable Super PACs appear to be very 

close to each other and roughly similar in strength”).

More recently, the Court affirmed a decision explicitly rejecting 

SpeechNow’s implicit premise that a contribution used to fund independent 

expenditures cannot corrupt. In Republican Party of Louisiana v. FEC, a threejudge district court in this circuit held that “soft money” (i.e., raised outside of the 

FECA system) contributions to a political party can corrupt even when the party’s 

independent expenditure of those contributed funds does not corrupt. As the court 

explained, “the inducement occasioning the prospect of indebtedness on the part of 

a federal officeholder is not the [independent] spending of soft money by the 

political party. The inducement instead comes from the contribution of soft money 

to the party in the first place.” Republican Party of Louisiana v. FEC, 219 F. Supp. 

3d 86, 97 (D.D.C. 2016) (Srinivasan, J.) (emphases in the original), aff’d, 137 S. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 26 of 35
21

Ct. 2178 (2017). Likewise, a contribution to a super PAC can corrupt even if the 

super PAC never spends it. 

3. New empirical evidence undermines SpeechNow. 

New empirical evidence not available to the Court in 2010 demonstrates that 

candidates and donors to super PACs have ample ways to enter into corrupt 

agreements and wink-and-nod understandings. This evidence—which, on a motion 

to dismiss, is assumed to be true—includes both quantitative empirical research 

and interviews with candidates and staff. Compl. ¶¶ 18-24 (Add. 31-35). 

Furthermore, new empirical evidence not available to the Court in 2010 

demonstrates that large contributions to super PACs have created a pervasive 

appearance of corruption. Compl. ¶¶ 18, 19, 21 (Add. 31-33). As Buckley noted, 

“the impact of the appearance of corruption stemming from public awareness of 

the opportunities for abuse inherent in a regime of large individual financial 

contributions” poses “almost equal concern as the danger of actual quid pro quo 

arrangements.” 424 U.S. at 27; Libertarian Nat’l Comm., Inc. v. FEC, No. 18-

5227, 2019 WL 2180336, at *6 (D.C. Cir. May 21, 2019) (en banc) (noting that 

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

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 27 of 35
22

electoral integrity as corruption itself” since voters cannot “examine the intentions 

behind suspiciously sizable contributions”). 

4. The FEC’s advisory opinion provides no basis for summary affirmance

because it involves an issue of first impression not decided below.

The Court should not summarily affirm based on the Commonsense Ten 

advisory opinion because it involves a question of first impression that the district 

court did not decide. FECA provides that anyone who relies in good faith on an 

FEC advisory opinion “shall not . . . be subject to any sanction provided by this 

Act.” 52 U.S.C § 30108(c)(2). Below, appellants argued that an advisory opinion 

acts as a shield only against a “sanction,” not against a declaratory judgment. The 

FEC maintained, however, that a declaratory judgment is itself a “sanction.” The 

district court expressly declined to decide this question. (Add. 22).

This Court’s internal procedures emphasize that “[p]arties should avoid 

requesting summary disposition of issues of first impression for the Court.” 

Handbook of Practice & Internal Proc., § VIII.G, at 36. That is even more 

important when there is no ruling below. The Court should not decide this 

contested question without full briefing and argument. 

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

widespread concern about corruption and super PACs in federal 

elections. 

Appellants’ forthcoming petition for initial en banc hearing will demonstrate 

that this issue presents “a question of exceptional importance” under Fed. R. App. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 28 of 35
23

35(a)(2) because of its profound interest to the American public. In general, a case 

has “exceptional importance to the public” if it involves “a unique issue of great 

moment to the community.” Douglas H. Ginsburg & Donald Falk, The 

Court En Banc: 1981–1990, 59 Geo. Wash. L. Rev. 1008, 1025 (1991). As thenJudge Kavanaugh noted in 2012, when “[a] decision in either direction will have 

massive real-world consequences,” it is “plainly one of exceptional importance.” 

See Coal. for Responsible Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 

6621785, at *14 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., dissenting from the 

denial of rehearing en banc).

The question of whether Congress can limit the amount of contributions to 

super PACs is such a question. This is not a minor dispute over the technicalities of 

an obscure statute. It is a clash between a clear statutory command of Congress and 

a constitutional decision by this Court that, a broad bipartisan swath of the 

American public agrees, has wreaked havoc on our political system. Compl. ¶¶ 18-

19 (Add. 31-32). Indeed, for cases arising in a different procedural context, 

Congress has determined in advance that all questions regarding FECA’s

constitutionality must be decided en banc, Wagner v. FEC, 717 F.3d 1007, 1008 

(D.C. Cir. 2013) (per curiam) (construing 52 U.S.C. § 30110), even those that pose 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 29 of 35
24

an “argument against what might be considered ‘settled’ Supreme Court 

constitutional law,” Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 2016).

Super PACs now threaten to supersede, and in some cases already have 

superseded, the regular campaign finance system. Since SpeechNow, and contrary 

to Attorney General Holder’s prediction that “the court of appeals’ decision will 

affect only a small subset of federally regulated contributions,” the number of 

super PACs has exploded, as have the size of contributions to them, and their 

importance in federal races. See Compl. ¶¶ 14-15 (Add. 29-30). In the 2016 

election cycle, contributions to federal super PACs substantially outstripped the 

total amount of money raised by political parties and by all federal candidates 

combined. Id. ¶ 15 (Add. 30). Yet by April 2016, over 40% of this money had 

come from just 50 funders and their families. Id. ¶ 14 (Add. 29-30). 

The takeover of our campaign finance system by super PACs after 

SpeechNow has become an issue of major national importance. It was noted by 

both Democratic and Republican candidates in the 2016 presidential election, and 

became a major theme in both parties’ primaries and in the general election. Id. 

Politicians of both major political parties—including figures as politically

dissimilar as President Donald Trump and former President Jimmy Carter—have 

described the super PAC system arising from SpeechNow as corrupt, as have major 

donors from both parties. See Alschuler et al., 86 Fordham L. Rev. at 2338-2342. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 30 of 35
25

When major Republican and Democratic politicians and donors join a bipartisan 

majority of the public in concern over the damage that a judicial decision has 

caused to our political system, it is hard to say that the question is not of 

exceptional importance. 

III. In the alternative, the Court should deny the FEC’s motion because 

plenary briefing would elucidate and preserve issues for further appeal.

This is not a case where “no benefit” will be gained from briefing the case in 

full. Plenary briefing of the parties’ arguments would assist in preserving 

appellants’ positions for en banc or certiorari review, two possibilities noted in 

appellants’ initial submissions.18 As this Court noted in Heartland Plymouth Court, 

when a litigant mounts a non-frivolous challenge to existing law, summary 

disposition may interfere with preservation of arguments against that challenged 

precedent for higher court review. See 838 F.3d at 27 n.9.

Plenary briefing would also permit the panel, in a case of manifest national 

significance, to parse and develop the underlying issues in a manner that facilitates 

streamlined en banc or Supreme Court review. See, e.g., Nat’l Patent Development 

Corp. v. Smith & Nephew, Ltd., 865 F.2d 353, 357-50 (D.C. Cir. 1989) 

(concurrence by then-Judge Ruth Bader Ginsburg yielding to controlling case law, 

but voicing disagreement with that precedent and setting stage for en banc review), 

 18 See Appellants’ Certificate, pp. 2-3; Appellants’ Statement, at 2. 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 31 of 35
26

vacated, 877 F.2d 1003 (D.C. Cir. 1989) (Judge Ginsburg writing for en banc court 

and vacating panel decision). 

If nothing else, to the extent that the Court might decide that the statutory 

advisory opinion question—which, as noted above, has not been decided by any 

other panel of this Court—should be decided before the constitutional issue,19 a 

panel decision (based on full briefing) on this question could help frame or narrow 

the issues for the en banc court later. See, e.g., Church of Scientology v. IRS, 792 

F.2d 153, 155-56 (D.C. Cir. 1986) (noting that entire case was briefed and argued 

before the panel, and then supplementally briefed and argued to the en banc court 

on a single issue framed by panel).

Moreover, like briefing for an initial hearing en banc, plenary briefing would 

permit participation by the amici curiae who have signaled their intent to submit 

briefs in these proceedings, with the FEC’s consent. Rare is the case that attracts 

 19 Cf. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (authorizing courts to decide 

constitutional issues first in qualified immunity cases to further development of the 

law); Wagner, 717 F.3d at 1008 (explaining Congress’s interest in expeditiously 

resolving constitutional questions about FECA). 

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 32 of 35
27

the interest of three different amici, including a United States Senator, in which the 

court would derive “no benefit” from briefing on the merits. 

CONCLUSION

Appellants respectfully request that the FEC’s motion be held in abeyance 

pending appellants’ submission, and the Court’s disposition, of a petition for initial 

en banc hearing. In the alternative, appellants ask that the Court deny the motion 

and decide appellants’ petition and appeal in the ordinary course of proceedings.

Respectfully submitted, 

/s/ Ronald A. Fein

Ronald A. Fein

John C. Bonifaz 

Ben T. Clements 

FREE SPEECH FOR PEOPLE

1320 Centre St. #405

Newton, MA 02459

(617) 244-0234

rfein@freespeechforpeople.org

Laurence H. Tribe (of counsel)

Hauser Hall 420

Harvard University*

Cambridge, MA 02138

(617) 495-1767

Albert W. Alschuler (of counsel)

220 Tuttle Road

Cumberland, ME 04021

(207) 829-3963

Malcolm Seymour 

Andrew Goodman (of counsel)

GARVEY SCHUBERT BARER

100 Wall Street, 20th Floor

New York, NY 10005

(212) 431-8700

mseymour@gsblaw.com

Benjamin Lambiotte

Brad Deutsch (of counsel)

GARVEY SCHUBERT BARER

Flour Mill Building

1000 Potomac Street NW, Suite 200

Washington, DC 20007-3501

(202) 965-7880

Anne Weismann

6117 Durbin Road 

Bethesda, MD 20817

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 33 of 35
28

Richard Painter (of counsel)

Mondale Hall, Office 318

University of Minnesota Law School*

229 19th Avenue South 

Minneapolis, MN 55455

(612) 626-9707

* University affiliation noted for identification purposes only.

Attorneys for Appellants

Date: May 30, 2019

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 34 of 35
29

CERTIFICATE OF COMPLIANCE

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

and Circuit Rule 27(c) because the brief contains 6,037 words, excluding the parts 

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

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

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

Microsoft Word 14-point Times New Roman. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: May 30, 2019

CERTIFICATE OF SERVICE

I hereby certify that on May 30, 2019, I electronically filed the foregoing 

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

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

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

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

the brief to be filed with the Clerk. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: May 30, 2019

USCA Case #19-5072 Document #1790270 Filed: 05/30/2019 Page 35 of 35