UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPRESENTATIVE TED LIEU, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-2201 (EGS) 

 ) 

 v. ) 

 ) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF 

MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Attorney 

jsiler@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Sana Chaudhry 

Attorney 

schaudhry@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

July 2, 2018 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 1 of 23
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TABLE OF CONTENTS 

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

ARGUMENT .............................................................................................................................2

I. SPEECHNOW CONTROLS THE OUTCOME OF THIS CASE .................................2

II. THE DEFERENTIAL “CONTRARY TO LAW” STANDARD OF 

REVIEW SUPPORTS THE COMMISSION’S DISMISSAL OF 

PLAINTIFFS’ ADMINISTRATIVE COMPLAINT ....................................................3

III. AFFIRMING THE COMMISSION’S DISMISSAL DECISION WOULD 

NOT PRECLUDE FURTHER APPELLATE REVIEW OF SPEECHNOW 

AND ITS PROGENY ....................................................................................................8

A. Plaintiffs’ Reliance on Brown v. Board of Education Is Misplaced ..................8

B. Recognizing That This Case Arises in the Enforcement Context 

Would Not Immunize SpeechNow from Further Review in an 

Appropriate Case .............................................................................................10

IV. PLAINTIFFS HAVE NOT SHOWN THAT A CHANGE IN 

CIRCUMSTANCES COMPELS REVISITING SPEECHNOW ................................13

V. THERE IS NO OTHER REASON TO SET ASIDE THE COMMISSION’S 

DISMISSAL DECISION .............................................................................................15

A. The Commission’s Decision Not to Engage in Nonacquiesence Was a 

Discretionary One That Is Beyond This Court’s Review ................................15

B. Plaintiffs’ Arguments Do Not Undermine the Commission’s Reliance 

on Its Commonsense Ten Advisory Opinion ...................................................16

CONCLUSION ........................................................................................................................18

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TABLE OF AUTHORITIES 

Cases Page(s) 

Adams v. Suozzi, 393 F. Supp. 2d 175 (E.D.N.Y. 2005) ...........................................................6 

Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951), 

rev’d, 347 U.S. 483 (1954) ..............................................................................................8, 9 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .........................................................................11 

Campaign Legal Ctr. v. FEC, No. 1:16-cv-752, 2018 WL 2739920 

(D.D.C. June 7, 2018) ......................................................................................................3, 4 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ........................................................14 

Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012) .....................................................................7 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837 (1984) ...........................................................................................................16 

Citizens for Responsibility & Ethics in Wash. v. FEC, No. 17-5049, 

2018 WL 2993249 (D.C. Cir. June 15, 2018) ......................................................4, 5, 15, 16 

Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................................2 

Combat Veterans for Congress PAC v. FEC, 795 F.3d 151 (D.C. Cir. 2015) ........................17 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 

485 U.S. 568 (1988) .............................................................................................................2 

FEC v. Akins, 524 U.S. 11 (1998) ..............................................................................................4 

Grant Med. Ctr. v. Hargan, 875 F.3d 701 (D.C. Cir. 2017) ..................................................6, 8 

Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16 (D.C. Cir. 2016).......................7, 8 

Heckler v. Chaney, 470 U.S. 821 (1985) ....................................................................... 4, 15-16 

Holmes v. FEC, 823 F.3d 69 (D.C. Cir. 2016) ........................................................................11 

Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082 (D.C. Cir. 1992) ................................................7 

LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994) ....................................................................17 

Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) ..........................11 

Maib v. FDIC, 771 F. Supp. 2d 14 (D.D.C. 2011) ..................................................................18 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 3 of 23
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Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .........................9 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ....................................................................13, 14 

N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d. Cir. 2013) .........................................5 

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967 (2005) ...........................................................................................................17 

PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786 (D.C. Cir. 2004) ............................................. 2-3 

Plessy v. Ferguson, 163 U.S. 537 (1896) ..................................................................................9 

Republican Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016), aff’d, 

137 S. Ct. 2178 (2017) .......................................................................................................14

Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006) ...........................4

Shapiro v. McManus, 136 S. Ct. 450 (2015) ...........................................................................11 

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .........................................................1 

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014) ...............................................................................................9 

United States v. All Assets Held at Bank Julius, Baer & Co., 

233 F. Supp. 3d 143 (D.D.C. 2017) .................................................................................5, 6 

United States v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015) ..............................................14 

United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) ...................................................14 

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997) ..........................................................2 

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) ................................................6 

Wayte v. United States, 470 U.S. 598 (1985)...........................................................................15 

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) ................................................................14 

Statutes and Regulations 

5 U.S.C. § 551(10) ...................................................................................................................18 

5 U.S.C. § 701(a)(2) ...................................................................................................................4 

28 U.S.C. § 636(b)(1)(A) ...........................................................................................................5 

52 U.S.C. § 30108(c)(2) ...........................................................................................................17 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 4 of 23
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52 U.S.C. § 30109(a) ...............................................................................................................12 

52 U.S.C. § 30109(a)(2) ...........................................................................................................13 

52 U.S.C. § 30109(a)(3) ...........................................................................................................13 

52 U.S.C. § 30109(a)(4) ...........................................................................................................13 

52 U.S.C. § 30109(a)(6)(A) .....................................................................................................13 

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

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................3 

52 U.S.C. § 30110 ....................................................................................................................10 

Miscellaneous 

Black’s Law Dictionary (10th ed. 2014) ....................................................................................5 

FEC Advisory Op. 2010-11 (Commonsense Ten), 

2010 WL 3184269 (July 22, 2010) ....................................................................................16 

Sup. Ct. R. 10 ...........................................................................................................................10

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INTRODUCTION 

Plaintiffs’ judicial complaint presents a single legal question: whether it was contrary to 

law for the Federal Election Commission (“Commission” or “FEC”) to dismiss plaintiffs’ 

administrative complaint in light of the D.C. Circuit’s decision in SpeechNow.org v. FEC, 599 

F.3d 686 (D.C. Cir. 2010) (en banc) and the similar decisions by six other Circuit courts. 

Plaintiffs admit that SpeechNow declared the statutory provisions that their administrative 

complaint relied upon unenforceable as a constitutional matter; that the Commission faithfully 

applied the D.C. Circuit’s holding; and that this Court is bound by that holding. Those 

concessions are sufficient for the Court to grant the Commission’s motion to dismiss. 

Plaintiffs’ opposition makes “three main points” (Pls.’ Opp’n to FEC’s Mot. to Dismiss 

First Am. Compl. (“Pls.’ Opp’n”) at 3), but none of those arguments would justify reversing the 

Commission’s dismissal. First, as to the proper standard of review, the Commission’s adherence 

to SpeechNow was correct, and therefore it could not have been contrary to law so long as that 

ruling remains valid, regardless of the standard applicable to review of this FEC enforcement 

decision. Second, the Commission did not claim that its prior advisory opinion impairs 

plaintiffs’ ability to maintain this judicial review action, only that the advisory opinion limited 

the Commission’s enforcement options. Third, regardless of whether plaintiffs can make a 

compelling case to reconsider SpeechNow, this Court may not grant plaintiffs that relief. And, in 

any event, none of plaintiffs’ arguments for overturning that decision shows that a different 

Commission approach to this enforcement matter was legally compelled. 

Plaintiffs have briefed these issues in submissions to the Commission and twice to this 

Court, but they have still not identified a single case that would permit this Court to rule in their 

favor. Therefore, the Court should not accept plaintiffs’ invitation to engage in hypothetical 

constitutional analysis. Instead, the Court should grant the Commission’s motion to dismiss. 

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ARGUMENT 

I. SPEECHNOW CONTROLS THE OUTCOME OF THIS CASE 

Regardless of how the Court construes the contrary to law standard, the Commission’s 

motion should be granted. As the Commission demonstrated in its opening memorandum, the 

Commission’s dismissal in this case was a routine application of the D.C. Circuit’s SpeechNow

decision. (See Mem. in Supp. of FEC’s Mot. to Dismiss Pls.’ First Am. Compl. (“FEC Mem.”) 

at 12-15.) In response, plaintiffs concede that the Commission correctly applied SpeechNow, but 

they argue that that case should be overruled. (Pls.’ Opp’n at 15.) That concession ends the 

analysis. Even if this Court were to conclude that the D.C. Circuit — as well as every other 

court of appeals to consider the issue after Citizens United v. FEC, 558 U.S. 310 (2010) —

misapplied the First Amendment or Supreme Court precedent, the Court would still be bound to 

follow the law of the circuit until that law was overturned by the en banc court. See United 

States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997); Pls.’ Opp’n at 15 (conceding that 

“overruling SpeechNow [is] something this Court cannot do”). 

This Court need not — and should not — decide more to affirm the Commission’s 

dismissal. Despite the clear applicability of SpeechNow, plaintiffs seem to invite this Court to 

engage in a hypothetical analysis of their constitutional claims, including some that are factual in 

nature. (Pls.’ Opp’n at 15-31.) This Court should reject that invitation as inconsistent with the 

general rule against engaging in unnecessary constitutional analysis. Cf. Edward J. DeBartolo 

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (discussing 

the “prudential concern that constitutional issues not be needlessly confronted”). This case can 

be resolved purely on the basis of controlling precedent; it is not necessary to resolve the 

arguments plaintiffs present that a higher court should overturn that precedent. PDK Labs. Inc. 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 7 of 23
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v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring) (“[I]f it is not 

necessary to decide more, it is necessary not to decide more.”). 

II. THE DEFERENTIAL “CONTRARY TO LAW” STANDARD OF REVIEW 

SUPPORTS THE COMMISSION’S DISMISSAL OF PLAINTIFFS’ 

ADMINISTRATIVE COMPLAINT 

The parties in this case agree that the standard for review of a Commission dismissal of 

an administrative complaint like the one at issue here is whether the dismissal is “contrary to 

law” under FECA. 52 U.S.C. § 30109(a)(8)(C); see FEC Mem. at 10; Pls.’ Opp’n at 6.1 Both 

sides similarly agree that courts need not give binding deference to an administrative agency’s 

interpretation of judicial precedent or the Constitution. (FEC Mem. at 10; Pls.’ Opp’n at 6.) The 

parties differ, however, over whether the contrary to law standard is otherwise deferential to the 

Commission’s enforcement decisions in a particular case. 

Two recent decisions involving judicial review of Commission dismissal decisions do 

much to explain the proper scope of review. In Campaign Legal Center v. FEC, a court in this 

district reviewed the Commission’s decision to dismiss administrative complaints based on 

concerns about “due process and First Amendment principles” that “counseled against 

investigation.” 1:16-cv-752, 2018 WL 2739920, at *5 (D.D.C. June 7, 2018). Even though that 

court declined to give binding deference “to the Commission’s interpretation of case law or the 

Constitution,” it also observed that the “‘contrary to law’ standard is itself deferential.” Id. As 

that court recognized, there is nothing inconsistent between judicial primacy in interpreting 

constitutional requirements and recognizing that the contrary to law standard is deferential to the 

Commission’s enforcement decisions in a particular matter. See id.

 1

 Plaintiffs have now abandoned their Administrative Procedure Act claim. (Pls.’ Opp’n at 

5 n.2.) 

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The D.C. Circuit’s decision in Citizens for Responsibility & Ethics in Washington v. FEC

further limits the scope of judicial review under section 30109. No. 17-5049, 2018 WL 2993249 

(D.C. Cir. June 15, 2018) (“CREW”). In that case, the court of appeals held that the 

Administrative Procedure Act and the Supreme Court’s decision in Heckler v. Chaney bar 

judicial review of “‘certain categories of administrative decisions,’” including any FEC decision 

not to institute enforcement proceedings as a matter of prosecutorial discretion. CREW, 2018 

WL 2993249, at *3 (quoting Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. 

Cir. 2006)); see also 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). As 

the D.C. Circuit explained, the “upshot is that agency enforcement decisions, to the extent they 

are committed to agency discretion, are not subject to judicial review for abuse of discretion.” 

CREW, 2018 WL 2993249, at *5 (footnote omitted). The court recognized that FECA expressly 

authorizes judicial review if “the agency’s action was based entirely on its interpretation of” law. 

Id. at *5 n.11 (citing FEC v. Akins, 524 U.S. 11, 26 (1998)). To the extent that the 

Commission’s dismissal relied on discretionary factors, however, those conclusions are not 

eligible for judicial review.2

Plaintiffs argue that Campaign Legal Center is inapplicable because it involved a 

“discretionary enforcement decision,” whereas the Commission’s “legal ruling here . . . reflected 

its interpretation of constitutional law.” (Pls.’ Opp’n at 8 & n.4.) But the discussion of the 

contrary to law standard in Campaign Legal Center was not predicated solely on the 

Commission’s prosecutorial discretion. See 2018 WL 2739920, at *4-5. Additionally, as 

explained in more detail below (see infra at pp. 15-16), at least some of the Commission’s 

reasoning in the matter being reviewed here was based on an assessment of how likely any 

 2

 Plaintiffs’ opposition was filed two days before the D.C. Circuit’s decision in CREW. 

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enforcement action would be to succeed, given the current state of the law and similar factors 

that were discussed in the CREW opinion. CREW, 2018 WL 2993249, at *3 n.7 (citing factors 

such as “whether the agency is likely to succeed if it acts” and “the strength of the case”). 

Fundamentally, plaintiffs seem to suggest that the Commission must prove that 

SpeechNow was correctly decided in order to prevail. (See Pls.’ Opp’n at 6-10 (arguing that a 

Commission dismissal is contrary to law if the judicial ruling on which it was based is contrary 

to law).) But even the standards on which plaintiffs rely do not establish such a requirement. 

For example, plaintiffs cite the Black’s Law Dictionary entry for “contrary to law,” which 

defines the standard as “conflicting with established law.” (Id. at 6 (citing Black’s Law 

Dictionary (10th ed. 2014)) (emphasis added).) SpeechNow’s central holding has been adopted 

by six other courts of appeals and has been cited favorably in a controlling Supreme Court 

opinion. (FEC Mem. at 14-15.) No court of appeals has disagreed. Whatever the outer bounds 

of “established law” might be, SpeechNow clearly falls within its scope. See N.Y. Progress & 

Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d. Cir. 2013) (“Few contested legal questions are 

answered so consistently by so many courts and judges.”). 

Plaintiffs also compare FECA’s standard to one in the Federal Magistrate Act (Pls.’ 

Opp’n at 7 n.3), but that standard is equally supportive of the Commission’s position here. 

When a party objects to a magistrate judge’s order regarding a non-dispositive pretrial matter, 

the district court reviews the order to determine whether it is “clearly erroneous or contrary to 

law.” 28 U.S.C. § 636(b)(1)(A). Review is de novo with respect to legal conclusions, but the 

sources of law the district court consults include not just “the relevant statutes,” but also 

applicable “case law.” United States v. All Assets Held at Bank Julius, Baer & Co., 233 F. Supp. 

3d 143, 148 (D.D.C. 2017) (emphasis added). The district court is, of course, bound by circuit 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 10 of 23
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law when conducting its review. When the magistrate judge’s decision is compelled by clear 

circuit precedent, the district court must follow it regardless of whether there is reason to doubt 

the correctness of the circuit’s ruling. See, e.g., Adams v. Suozzi, 393 F. Supp. 2d 175, 178 

(E.D.N.Y. 2005) (holding that it was not contrary to law for magistrate judge to refuse to stay 

discovery pending appeal “[g]iven the clear precedent from the Second Circuit directly on point 

on this issue,” notwithstanding contrary authority from other circuits). Like Commission 

dismissal decisions, magistrate judges’ decisions are “entitled to great deference.” All Assets, 

233 F. Supp. 3d at 147 (internal quotation marks omitted). 

What is more, plaintiffs fail to reconcile their arguments regarding the standard of review 

with their concession that the Commission properly applied SpeechNow. On the one hand, 

plaintiffs argue that this Court owes no binding deference to the Commission’s interpretation of 

the Constitution, a point that the Commission does not contest. (Pls.’ Opp’n at 6; FEC Mem. at 

11.) But on the other hand, plaintiffs simultaneously argue that it was contrary to law for the 

Commission to adhere to the unanimous decisions of the judiciary tasked with that very 

interpretive role. Pls.’ Opp’n at 9-10; see Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 

(D.C. Cir. 2002) (noting that interpreting “Supreme Court precedent” based “on constitutional 

concerns” is “an area of presumed judicial, rather than administrative, competence”). 

“[O]beying judicial decisions is usually what courts expect agencies to do,” Grant Med. 

Ctr. v. Hargan, 875 F.3d 701, 703 (D.C. Cir. 2017), a precept which has added force where that 

precedent “is based on constitutional concerns,” Univ. of Great Falls, 278 F.3d at 1341. Of 

course, the Commission could have sought enforcement in a circuit that had not yet ruled on the 

legal issues decided by SpeechNow, as the agency itself recognized. (See AR 293.) But no legal 

principle required the Commission to take that course. As the Commission reasonably 

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concluded, the weight of unanimous case law made success unlikely even in these other circuits. 

(See AR 293.) In addition, it was plainly reasonable for the Commission to give special 

consideration to D.C. Circuit law, given that the Commission is located here. (See FEC Mem. at 

18-19.) FECA’s venue provision requires that any judicial review of the agency’s dismissal 

decision would occur in this district, where the contribution limits at issue in plaintiffs’ 

administrative complaint had been declared unconstitutional. 52 U.S.C. § 30109(a)(8)(A); see 

Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 22-23 (D.C. Cir. 2016) (noting that a 

“statute’s multi-venue provision” may excuse an administrative agency’s nonacquiesence with 

adverse circuit law). Yet plaintiffs’ approach would fault the Commission for complying with a 

clear constitutional holding of the D.C. Circuit that has been adopted by six other circuits. But 

see Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C. Cir. 1992) (admonishing that an 

agency’s refusal to follow the unanimous rulings of three circuits “would show contempt for the 

rule of law”). Indeed, plaintiffs’ approach would have the Commission routinely defy the 

judiciary’s rulings in an area at the core of the judicial function.3

 

It is also important to note that the Commission was itself the party in SpeechNow 

arguing that FECA’s restrictions on contributions to political committees were constitutional as 

applied to groups that make only independent expenditures. See 599 F.3d at 686. Even after 

SpeechNow, the Commission argued in this district that certain related restrictions were 

constitutional. See Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012). The Commission did not 

succeed in those cases. Having lost the argument presented by plaintiffs’ administrative 

 3

 Of course, the Commission’s assessment of enforcement litigation options was 

discretionary, and such judgments are judicially unreviewable, as explained below. (See infra

pp. 15-16.) 

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complaint here, it was not contrary to law for the Commission to accept that result and proceed 

accordingly. 

None of this is meant to suggest that the Commission lacks authority to argue against 

precedent or attempt to change the law, if it does so openly in an appropriate case. See 

Heartland, 838 F.3d at 21-22; Grant Med. Ctr., 875 F.3d at 707. The Commission’s decision 

here acknowledged as much. (AR 293.) But plaintiffs’ argument that the Commission acts 

contrary to law when it does not defy the constitutional holdings of the judiciary is in deep 

tension with the proper standard of review. 

III. AFFIRMING THE COMMISSION’S DISMISSAL DECISION WOULD NOT 

PRECLUDE FURTHER APPELLATE REVIEW OF SPEECHNOW AND ITS 

PROGENY 

Plaintiffs suggest that the Commission’s arguments on the standard of review would be 

inconsistent with “our country’s civil rights precedents” and would “[i]mmunize” SpeechNow

from reconsideration. (Pls.’ Opp’n at 9-12.) Neither point is correct. 

A. Plaintiffs’ Reliance on Brown v. Board of Education Is Misplaced 

Plaintiffs repeatedly cite Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951), 

rev’d, 347 U.S. 483 (1954), but the procedural posture of this case bears little relationship to 

Brown. On the most basic level, Brown did not involve review of an administrative enforcement 

decision. Id. Accordingly, that case did not involve the application of a statutorily defined 

standard of review, such as the contrary to law standard applicable here. Id. It is unsurprising, 

then, that the district court in the case did not consider whether any administrative agency had 

properly followed the law or otherwise made reasonable enforcement decisions. (See Pls.’ 

Opp’n at 9-10.) 

Plaintiffs also observe that the Brown district court engaged in a discussion of the merits 

of the plaintiffs’ constitutional claims, even though the court was bound by precedent to rule 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 13 of 23
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against them. (Id. at 9 (quoting Brown, 98 F. Supp. at 800).) However, the Brown plaintiffs had 

argued both that Kansas’s segregated school system was unequal as a factual matter under Plessy 

v. Ferguson, 163 U.S. 537 (1896), as well as that segregated schools were inherently unequal 

under the Fourteenth Amendment. Brown, 98 F. Supp. at 797-98. Consideration of that first 

argument required the district court to make findings of fact regarding the relative quality and 

availability of educational facilities and services offered among the various segregated schools in 

the relevant school districts. Id. at 798. The second argument required the district court to 

consider whether more recent cases in which the Supreme Court had decided that particular 

school segregation schemes were unconstitutional had overruled Plessy. Id. at 799-800 (“It is 

vigorously argued and not without some basis therefor that the later decisions of the Supreme 

Court . . . show a trend away from the Plessy and Lum cases.”). 

Here, in contrast, the plaintiffs’ claim is that the Commission’s dismissal was contrary to 

law. As this is an agency review action, there are no factual disputes for this Court to resolve. 

See, e.g., Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993); Pls.’ 

Opp’n at 5 (“this case involves no factual disputes”). Because this case presents a pure matter of 

law, this Court need not wade into the proffered factual developments plaintiffs submit in their 

briefing. As to plaintiffs’ legal arguments against SpeechNow, later cases from the Supreme 

Court and the other courts of appeals have either accepted or adopted it. (See FEC Mem. at 14-

15.) Unlike the situation in Brown, therefore, there is no question that SpeechNow remains 

binding circuit law. And because any appeal will be reviewed de novo, there is no risk that 

plaintiffs will be prevented from making whatever properly preserved arguments they wish 

regardless of how this Court decides the case. See Stop This Insanity Inc. Emp. Leadership Fund 

v. FEC, 761 F.3d 10, 13 (D.C. Cir. 2014). 

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B. Recognizing That This Case Arises in the Enforcement Context Would Not 

Immunize SpeechNow from Further Review in an Appropriate Case 

As the Commission noted in its opening memorandum, plaintiffs seeking to relitigate the 

constitutionality of limits on contributions to super PACs have several procedures available to 

them. (FEC Mem. at 21.) In contrast to the method plaintiffs chose to pursue here, those 

alternatives would not require identified administrative respondents to defend themselves 

privately before the Commission or publicly before the courts for conduct undertaken in reliance 

on judicial and FEC guidance. (Id.) In their opposition, plaintiffs accuse the Commission of 

seeking “to bar the reconsideration or review of SpeechNow” and argue that the enforcement 

context “has no bearing on whether Plaintiffs’ Complaint states a valid claim for relief” (Pls.’ 

Opp’n at 10), but those claims are wrong. 

Plaintiffs point to no principle of law that requires that circuit precedent must be easy to 

overrule. Indeed, it is reasonable to expect that as more courts accept a proposition of law, and 

no courts disagree, it will become increasingly hard to reverse that holding. Cf. Sup. Ct. R. 10 

(stating that a “conflict” between the decisions of courts of appeals is a factor in whether to grant 

a writ of certiorari). Far from seeking to bar review, the Commission’s defense of this case 

merely asks this Court to recognize that SpeechNow is binding precedent in this circuit and hold 

that the Commission’s dismissal was consistent with that precedent. Whatever plaintiffs might 

argue in a case that properly presents the correctness of the SpeechNow holding, the 

Commission’s decision in this case followed binding law and therefore should be affirmed. 

Worse, plaintiffs get the potential alternatives wrong. Plaintiffs argue that FECA’s 

special review provision, by which certain parties may seek immediate certification to the en 

banc court of appeals in an action “to construe the constitutionality of any provision” of FECA, 

52 U.S.C. § 30110, is “largely unavailable to plaintiffs who challenge ‘settled principles of 

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law.’” (Pls.’ Opp’n at 10-11 (quoting Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 

154, 161 (D.D.C. 2013).) While it is true that the Supreme Court has held that the special review 

provision does not require district courts to certify “constitutional claims that are frivolous,” Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981), plaintiffs ignore the most recent D.C. Circuit 

opinion construing that provision, Holmes v. FEC, 823 F.3d 69 (D.C. Cir. 2016). The district 

court in Holmes had concluded that certification of a First Amendment claim to the en banc court 

of appeals was unnecessary because it was inconsistent with “settled law” that had been decided 

by the Supreme Court. Id. at 70 (internal quotation marks omitted). On appeal, the D.C. Circuit 

reversed. Id. As to the standard for certification under section 30110, the appellate court wrote 

that it did not “think a district court may decline to certify a constitutional question simply 

because the plaintiff is arguing against Supreme Court precedent so long as the plaintiff mounts a 

non-frivolous argument in favor of overturning that precedent.” Id. at 74. As to the specific 

First Amendment claim the Holmes plaintiffs asserted, however, the court of appeals concluded 

that the constitutional issue had not, in fact, been settled, and it therefore remanded the case for 

certification to the en banc court of appeals. Id. at 74-75. 

Plaintiffs do not even cite Holmes, let alone reckon with the implications of the decision. 

(Pls.’ Opp’n at 10-11.) Of course, to the extent that plaintiffs believe they have a non-frivolous 

basis to argue SpeechNow is incorrect, Holmes would support using FECA’s special review 

procedure to have the court of appeals do so. While the Commission might argue in such an 

action that certification is unjustified, it is hard to see how plaintiffs would succeed in convincing 

the entire D.C. Circuit that SpeechNow should be overturned if they cannot clear that preliminary 

“‘low bar.’” Holmes, 823 F.3d at 72 (quoting Shapiro v. McManus, 136 S. Ct. 450, 456 (2015)). 

And more importantly, even in the event of a dismissal by the district court at the early 

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certification stage, plaintiffs would be permitted to appeal such a decision and attempt to 

convince the court of appeals to revisit SpeechNow in a manner materially similar to what they 

seek here.4

 

The other alternative procedures identified in the Commission’s opening memorandum 

are equally available to litigants seeking to make a good faith argument to overturn SpeechNow. 

(FEC Mem. at 21.) Plaintiffs argue that “[s]tate and local limits on super PAC contributions 

have been unenforced since 2013” (Pls.’ Opp’n at 10), but that is because those restrictions have 

been uniformly struck down as unconstitutional after Citizens United (see FEC Mem. at 14-15 

n.4). And while any direct challenge to the Commission’s Commonsense Ten advisory opinion 

might be time-barred, plaintiffs could have asked the Commission to take actions to supersede 

that opinion and then filed a lawsuit if the agency did not do so. 

As these alternatives establish, the Commission’s decision not to proceed with the 

administrative enforcement plaintiffs seek here does not prevent a litigant from seeking review 

of SpeechNow through less objectionable causes of action. But the enforcement action plaintiffs 

urge would impose real costs on the respondents identified in plaintiffs’ administrative 

complaint, who had been relying on administrative and judicial guidance clearly indicating their 

conduct was constitutionally protected. Plaintiffs argue that the costs to those respondents would 

be the same if plaintiffs utilized any other procedure to revive limits on contributions to super 

PACs (Pls.’ Opp’n at 11), but that is not the case. Plaintiffs’ administrative complaint invoked 

FECA’s detailed enforcement procedures. See 52 U.S.C. § 30109(a). If the Commission had 

 4

 For similar reasons, plaintiffs’ argument that certain of their arguments may “have never 

been presented to any court” and “deserve a chance for review” presents a false choice. (See 

Pls.’ Opp’n at 30-31.) To the extent that plaintiffs’ premise is correct, they could make these 

arguments in other, less problematic actions to lower or higher courts. 

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13 

found reason to believe statutory violations had occurred, as plaintiffs requested, FECA would 

have required the Commission to “make an investigation” into the respondents, and, if the 

agency found probable cause to believe violations occurred, to seek to conciliate with those 

groups. Id. § 30109(a)(2)-(4). In any conciliation efforts, the Commission would be asking the 

respondents to formally admit that they had engaged in unlawful conduct — an unlikely prospect 

given SpeechNow. If respondents did not conciliate, further enforcement would have required 

the Commission to litigate plaintiffs’ factual allegations and legal theories in a public lawsuit in 

which the respondents were named as defendants. Id. at § 30109(a)(6)(A). The procedural 

mechanism plaintiffs chose, therefore, imposes burdens on identified respondents that could have 

been avoided in litigation between the Commission and plaintiffs alone. 

IV. PLAINTIFFS HAVE NOT SHOWN THAT A CHANGE IN CIRCUMSTANCES 

COMPELS REVISITING SPEECHNOW

Plaintiffs continue to maintain that SpeechNow was incorrectly decided or has been 

undermined by recent developments (Pls.’ Opp’n at 15-31), but nothing in their administrative 

complaint would have compelled the Commission to ignore SpeechNow. As explained above, 

this Court need not and should not wade into plaintiffs’ arguments on the merits of the 

SpeechNow decision. Even if it did, as an initial matter, nearly all of the cases plaintiffs cite 

predate SpeechNow and Citizens United, and therefore they cannot be a basis to conclude that the 

D.C. Circuit’s decision is no longer authoritative. (Id.) Only four are more recent. (Id. at 18-19, 

21-22, 25-26.) Of those four, only the Supreme Court’s decision in McCutcheon v. FEC is from 

a court with the authority to reverse SpeechNow. 134 S. Ct. 1434 (2014) (plurality op.). 

The plurality opinion in McCutcheon does not abrogate SpeechNow. The Supreme Court 

plurality certainly considered its decision to be consistent with SpeechNow. As the Commission 

explained in its opening brief, that controlling opinion favorably cited SpeechNow in explaining 

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the structure of FECA’s contribution limits. (FEC Mem. at 15 (quoting McCutcheon, 134 S. Ct. 

at 1442 n.2).) Plaintiffs nowhere respond to this point, despite their argument that McCutcheon

undermines SpeechNow. 

The other post-SpeechNow cases plaintiffs cite are all self-distinguishing. Two of them 

are criminal cases involving “a quid pro quo bribery scheme, not [] exceeding limits set by a 

prophylactic campaign finance regulation” like the one struck down in SpeechNow. United 

States v. Menendez, 132 F. Supp. 3d 635, 638 (D.N.J. 2015); see also United States v. Siegelman, 

640 F.3d 1159 (11th Cir. 2011).5 In the final case, Republican Party of Louisiana v. FEC, the 

three-judge panel itself distinguished SpeechNow, as plaintiffs admit. 219 F. Supp. 3d 86, 98 

(D.D.C. 2016), aff’d, 137 S. Ct. 2178 (2017); Pls.’ Opp’n at 22. To accept plaintiffs’ argument 

that the decision is inconsistent with SpeechNow is to ignore the court’s opinion. 

For similar reasons, plaintiffs’ pre-SpeechNow cases are insufficient to establish that it 

was unlawful for the Commission to follow the D.C. Circuit’s ruling. In Caperton v. A.T. 

Massey Coal Co., for example, the Supreme Court addressed campaign contributions in a state 

judicial campaign. 556 U.S. 868 (2009). As the Supreme Court has since clarified, however, a 

“State’s interest in preserving public confidence in the integrity of its judiciary extends beyond 

its interest in preventing the appearance of corruption in legislative and executive elections.” 

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1666-67 (2015); see also Caperton, 556 U.S. at 889 

(recognizing the “vital state interest” in protecting “public confidence in the fairness and 

integrity of the nation’s elected judges” (internal quotation marks omitted)). 

 5

 Plaintiffs summarize Siegelman as involving a campaign contribution that “did not 

benefit [the defendant] personally.” (Pls.’ Opp’n at 26.) As explained by the Eleventh Circuit, 

however, at least some of the relevant contributions were used to repay a loan that the defendant 

had “personally and unconditionally guaranteed.” Siegelman, 640 F.3d at 1165. 

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In any event, plaintiffs cite these cases only for the implication that they are inconsistent 

with SpeechNow. The best evidence that SpeechNow remains authoritative, however, comes 

from the circuit level cases that have directly considered the constitutionality of restrictions on 

contributions to independent expenditure groups. As the Commission demonstrated in its 

opening brief, every court of appeals to consider that issue since Citizens United has likewise 

concluded that such restrictions are unconstitutional. (FEC Mem. at 14-15 n.4.) To this, 

plaintiffs have no response. 

V. THERE IS NO OTHER REASON TO SET ASIDE THE COMMISSION’S 

DISMISSAL DECISION 

A. The Commission’s Decision Not to Engage in Nonacquiesence Was a 

Discretionary One That Is Beyond This Court’s Review 

The administrative complaint plaintiffs filed in this matter invited the Commission not to 

acquiesce in the SpeechNow decision. (AR 5.) During its internal consideration of the 

administrative complaint, the Commission chose “not to accept” plaintiffs’ “invitation.” 

(AR 293.) The Commission previously argued that its decision was not contrary to law because 

it was reasonable. (See FEC Mem. at 17-21.) After the recent D.C. Circuit decision in CREW, 

however, the Commission’s decision is not subject to judicial review. 2018 WL 2993249, at *5. 

Like a dismissal for prosecutorial discretion, a decision to challenge prevailing judicial 

precedent is a discretionary one “‘ill-suited to judicial review.’” CREW, 2018 WL 2993249 at 

*3 n.7 (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)). The CREW court explained 

that prosecutorial discretion dismissals are not subject to judicial review because they involve a 

“‘complicated balancing of a number of factors which are particularly within [the agency’s] 

expertise,’” including “‘whether agency resources are best spent on this violation or another, 

whether the agency is likely to succeed if it acts,’” and “‘whether the particular enforcement 

action requested best fits the agency’s overall policies.’” Id. (quoting Heckler, 470 U.S. at 

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831-32). The Commission’s decision not to challenge the binding D.C. Circuit opinion in 

SpeechNow in the matter under review similarly involved an analysis of the agency’s likelihood 

of success, its overall policies, and the possibility that doing so might expose it to legal fees. 

(AR 292-94 & n.45.) After CREW, such a decision is committed to the Commission’s discretion 

and is “not subject to judicial review for abuse of discretion.” CREW, 2018 WL 2993249, at *5. 

B. Plaintiffs’ Arguments Do Not Undermine the Commission’s Reliance on Its 

Commonsense Ten Advisory Opinion 

Finally, plaintiffs make two arguments in support of their view that the Commonsense 

Ten advisory opinion does not support the Commission’s handling of their administrative 

complaint, but these claims are incorrect. See FEC Advisory Op. 2010-11 (Commonsense Ten), 

2010 WL 3184269 (July 22, 2010). Plaintiffs first argue that the Commission’s acceptance of 

SpeechNow in its Commonsense Ten advisory opinion “does not mean that” the administrative 

respondents’ “contributions actually were lawful.” (Pls.’ Opp’n at 12.) But the Commission 

never argued that its advisory opinion somehow amended FECA. Rather, the Commission’s 

argument was that it could not find reason to believe in this matter without contradicting its prior 

advisory opinion, which itself had been based on SpeechNow. (See FEC Mem. at 22.) Plaintiffs’ 

argument that Commission advisory opinions cannot amend FECA is therefore inapposite. 

Second, plaintiffs argue that the Commission’s construction of FECA’s advisory opinion 

safe harbor is ineligible for deference under Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984), because plaintiffs “have sought only declaratory relief,” 

which in their view is not a “sanction.” (Pls.’ Opp’n at 13-15.) As an initial matter, the 

Commission’s reliance on its advisory opinion would come into play only if the en banc D.C. 

Circuit reversed SpeechNow, as the Commission’s dismissal was plainly correct if that decision 

Case 1:16-cv-02201-EGS Document 43 Filed 07/02/18 Page 21 of 23
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stands. See Combat Veterans for Congress PAC v. FEC, 795 F.3d 151, 156-67 (D.C. Cir. 2015) 

(discussing harmless error). 

 More fundamentally, however, none of the authorities plaintiffs cite establishes that the 

term “sanction” is unambiguous in the context of FECA. (See Pls.’ Opp’n at 13-14.) Instead, 

plaintiffs shift the analysis by arguing that declaratory judgments are not “coercive” or are not 

punishable by “contempt” (id.), when the statutory term is “sanction,” 52 U.S.C. § 30108(c)(2). 

Plaintiffs, moreover, continue to minimize the effect Commission proceedings and 

enforcement litigation would have on the particular administrative respondents they chose to 

identify. (See Pls.’ Opp’n at 15.) They argue that a declaratory judgment cannot be a “sanction” 

because it “will merely clarify the law for everyone and affect everyone the same way.” (Id.) 

But that ignores the fact that the Commission’s enforcement procedures would necessarily target 

particular entities and individuals for investigation and potential litigation, as a result of conduct 

that was supported by a clear FEC advisory opinion. (See supra pp. 12-13.) The respondents, at 

a minimum, would experience adverse consequences for relying on Commonsense Ten. 

Plaintiffs fail to respond to other points the Commission made to show that its 

construction of “sanction” is entitled to Chevron deference. (See FEC Mem. at 24-25.) 

Specifically, plaintiffs fail to respond to the Commission’s argument that the D.C. Circuit’s 

opinion in LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994), is consistent with according Chevron 

deference to the Commission’s construction because the case did not conclude that the term 

“sanction” was unambiguous. (FEC Mem. at 24-25 (citing Nat’l Cable & Telecomms. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 982 (2005).) Nor do plaintiffs respond to the 

Commission’s argument that its construction of the statute was reasonable at step two of the 

Chevron analysis, including the Commission’s citation to the Administrative Procedure Act 

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18 

definition of “sanction.” (Id. at 25 (citing 5 U.S.C. § 551(10)).) Having failed to respond to 

these arguments, plaintiffs have waived any opposition to them. See Maib v. FDIC, 771 F. Supp. 

2d 14, 20 (D.D.C. 2011). 

CONCLUSION 

For the foregoing reasons, this Court should grant the Commission’s motion to dismiss 

plaintiffs’ First Amended Complaint. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

/s/Jacob S. Siler 

Jacob S. Siler (D.C. Bar No. 1003383) 

Attorney 

jsiler@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Sana Chaudhry 

Attorney 

schaudhry@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

July 2, 2018 

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