No. 19-234

In the Supreme Court of the United States 

__________

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Petitioner,

v.

FEDERAL ELECTION COMMISSION, 

Respondent.

__________

On Petition For Writ Of Certiorari 

To The United States Court of Appeals 

For The District of Columbia

__________

BRIEF OF THE CATO INSTITUTE AS 

AMICUS CURIAE SUPPORTING PETITIONER

__________

Ilya Shapiro

 Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

September 20, 2019
i

QUESTION PRESENTED

A will reflects the deceased’s plans for the final disposition of his estate. Some wills bequeath property to 

political groups. Does the FEC’s requirement that 

these gifts be parceled out over the years in accordance 

with the maximum contribution rules for living donors 

violate the First Amendment?
ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

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

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT ..................................... 1

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

I. BUCKLEY’S BALANCING TEST CONSIDERS 

DIFFERENT INTERESTS, SO COURTS 

SHOULD NOT APPLY IT TO BEQUESTS.......... 2

A. The Interests at Stake with Bequests Do Not 

Align with Those in Buckley ............................. 3

1.There is more expressive value in a bequest 

than in an annual contribution. ....................... 4

2. Bequests do not create the same corruption 

danger as contributions from living donors ..... 5

B. When Buckley Is Inapposite, the Court Should 

Follow McCutcheon and Apply Strict Scrutiny 8

II. EVEN IF BUCKLEY’S TEST APPLIES, THE

COURT SHOULD RECOGNIZE AN EXCEPTION 

FOR CONTRIBUTIONS BY BEQUEST, AS IT 

HAS IN OTHER CONTEXTS.............................. 10

CONCLUSION .......................................................... 12
iii

TABLE OF AUTHORITIES

Page(s)

Cases

Buckley v. Valeo, 424 U.S. 1 (1976)................... passim

Cal. Med. Ass’n v. Fed. Election Comm’n, 

453 U.S. 182 (1981).................................................. 9

Citizens Against Rent Control/Coalition for Fair 

Hous. v. Berkeley, 454 U.S. 290 (1981).................... 9

Citizens United v. Fed. Election Comm’n, 

558 U.S. 310 (2010).................................................. 2

In re Primus, 436 U.S. 412 (1978)....................... 10, 11

Libertarian Nat’l Comm., Inc. v. Fed. Election 

Comm’n, 924 F.3d 533 (2019) .......................... 5, 6, 7

McConnell v. Fed. Election Comm’n, 

540 U.S. 93 (2003).................................................... 7

McCutcheon v. Fed. Election Comm’n, 

572 U.S. 185 (2014).......................................2, 3-4, 8

Mine Workers v. Ill Bar Ass’n, 

389 U.S. 217 (1967)............................................... 11

NAACP v. Button, 371 U.S. 415 (1963)..................... 10

Ohralik v. Ohio State Bar Ass'n, 

436 U.S. 447 (1978)................................................ 11

R.R. Trainmen v. VA Bar, 377 U.S. 1 (1964)............ 11

Randall v. Sorrell, 548 U.S. 230 (2006).................. 8, 9

Republican Nat’l Comm. v. Fed. Election Comm’n, 

698 F. Supp. 2d 150 (2010) ...................................... 7
iv

Statutes

52 U.S.C. § 30116(a)(1)(B)........................................... 3

Unif. Probate Code §§ 2-507–09.................................. 6

Other Authorities

Alex M. Johnson, Jr., Is It Time For Irrevocable 

Wills, 53 U. Louisville L. Rev. 393 (2016)............... 6

FEC Advisory Ops. 2004-02 ........................................ 6

FEC Advisory Ops. 2015-05 .................................... 3, 6
1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy 

research foundation established in 1977 and dedicated 

to advancing the principles of individual liberty, free 

markets, and limited government. Cato’s Robert A. 

Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited 

constitutional government that are the foundation of 

liberty. Toward those ends, Cato publishes books and 

studies, conducts conferences, and produces the annual Cato Supreme Court Review.

This case interests Cato because political speech is 

at the heart of a free society. Any restrictions on such 

speech must be subject to the strictest scrutiny and the 

narrowest tailoring. 

SUMMARY OF ARGUMENT

This Court is once again faced with clarifying the 

test for evaluating the constitutionality of campaign 

contribution limits. Now the question is whether, to 

prevent quid pro quo corruption (by the dead?), political contributions in wills must be parceled out at the 

same yearly increment as the living, long after the testator has reached his final resting place. This is unconstitutional for two reasons.

First, Buckley v. Valeo, 424 U.S. 1 (1976), does not 

apply here. The Buckley test primarily weighs the suppression of free speech and association rights inherent 

in contribution limits with the government interest in 

preventing corruption or the appearance thereof. The 

 

1 Rule 37 statement: All parties were timely notified and consented to the filing of this brief. No part of this brief was authored 

by any party’s counsel; no person or entity other than amicus

funded its preparation or submission.
2

speech interests at stake in bequests are primarily expressive, not associative, while there is no corruption

risk from the miniscule number of such bequests. 

Buckley’s scale uses different weights. In McCutcheon

v. FEC, 572 U.S. 185 (2014), the Court declined to apply the Buckley test when that balancing is inapplicable, and it should do so here.

Second, even if the Court finds the Buckley test applicable, it should create an exception for bequests. Bequests are a discrete and identifiable subset of contributions. Even if there is some sort of corruption risk, 

there is nowhere near the type of risk posed by annual

contributions made by a living person. In analyzing 

the application of legal ethics rules to political organizations and unions, the Court has created carveouts to 

prophylactic restrictions on the freedom of speech. 

Those carveouts are easy to apply to discrete and easily identifiable activities—and are demanded by the 

First Amendment.

ARGUMENT

I. BUCKLEY’S BALANCING TEST CONSIDERS

DIFFERENT INTERESTS, SO COURTS

SHOULD NOT APPLY IT TO BEQUESTS

The right to contribute money to political candidates and organizations is an integral part of the political speech at the core of the First Amendment. 

Buckley v. Valeo, 424 U.S. 1, 14 (1976). “Speech is an 

essential mechanism of democracy.” Citizens United v. 

FEC, 558 U.S. 310, 339 (2010). Generally, “[p]olitical 

speech must prevail against laws that would suppress 

it, whether by design or inadvertence.” Id. at 340.

Despite these principles, the Court has developed

narrow restrictions on political speech to combat cor-
3

rupt quid pro quo agreements between citizens and political entities. See Buckley, 424 U.S. at 12–37 (upholding a contribution limit of $1,000 for individual candidates and $5,000 for groups). Buckley authorized a

prophylactic rule allowing Congress to restrict the total contribution a person can give to any candidate or 

group. Using this rule, the current annual contribution 

limit is $35,000. 52 U.S.C. § 30116(a)(1)(B). When a

decedent leaves a contribution to a political group in 

his will, the FEC contends that it must be parceled out 

yearly in accordance with the contribution minimum. 

FEC Advisory Ops. 2015-05. But Buckley’s reasoning, 

extended to the current situation, does not reach the 

same conclusion. Accordingly, the Court should hold 

bequests to be outside of Buckley’s prophylactic rule.

A. The Interests at Stake with Bequests Do 

Not Align with Those in Buckley

Buckley created a balancing test for evaluating 

laws restricting the people’s general right to contribute 

to political causes. On one arm of the scales are the 

dual interests of free expression and free association. 

Buckley, 424 U.S. at 20. On the other arm, the Court 

recognized a sufficient government interest in preventing corruption and the appearance of corruption. 

Id. at 27. Even though the vast majority of political 

contributions are innocent, the government has been 

allowed to cast a wide, prophylactic net. Id. at 30.

But the weights for these scales are very particular. 

The government’s interest must be in preventing corruption and its appearance; Buckley chose anti-corruption out of three proffered rationales. Id. at 26. Indeed, 

in the near half-century since Buckley, the Court has 

not recognized any other rationale for restricting political contributions. See McCutcheon v. FEC, 572 U.S. 
4

185, 191–92 (2014) (plurality) (discussing rejected rationales). Furthermore, the Court’s reliance on free association was based on a constant value given to the 

expressive conduct of a yearly contribution. Buckley, 

424 U.S. at 21–22. The interests attending bequests

are quite different.

1. There is more expressive value in a bequest 

than in an annual contribution.

An annual contribution of, say, $100 to a political 

party has some expressive value, and the money is 

used to facilitate political speech and activity. Yet the 

contribution also carries with it great associative 

value—indicating that the donor is part of the “team,” 

so to speak—that in many ways outshines the expressive value. The reverse is true for bequests. In Buckley, 

so long as a person may speak through the act of contributing, the amount he contributes has merely a 

“marginal” impact on communicative value.2 Id. at 21

(“The quantity of communication by the contributor 

does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.”). The

greater part of the First Amendment consideration 

rests on the contribution’s associative value. Id. at 24.

In contrast, the amount given in a bequest entails 

a great deal of communicative value. While each year’s

contribution represents continued support of an organization, a bequest manifests only at death—which is, 

of course, a once-in-a-lifetime event. Moreover, while 

yearly contributions are temporally limited to support 

 

2 This is not entirely true. A specific amount has the potential for 

immense communicative value. Just five years ago, this Court 

heard a case where the petitioner sought to donate $1,776 to multiple candidates. See McCutcheon, 572 U.S. at 194 (plurality). 
5

for a particular election cycle, a bequest represents a 

gift to the future and expresses faith that the organization will still espouse the testator’s values after he 

is gone. The actual amount thus gains considerable 

significance. A trip to the local probate court will 

demonstrate how much expressive significance is attached to individual bequests. If two siblings receive 

different sums in their father’s will, the communicative aspect of the amount is readily apparent. While a 

yearly contribution is part of a testator’s ever-shifting 

assets, a bequest is out of a finite and unrenewable estate, symbolizing the share of the deceased’s remainder dedicated to the cause.

While yearly contributions are usually weighed primarily by the value of their associational speech, bequests are primarily expressive. It is uncontested that 

free association is not at issue here. Libertarian Nat’l 

Comm., Inc. v. FEC, 924 F.3d 533, 540 (2019); Pet. Br. 

at 2. The distinction between free association and free 

expression is significant; it affected Buckley’s outcome. 

Buckley ruled on the constitutionality of both contribution limits and expenditure limits. 424 U.S. at 12.

However, the free expression interests at stake were 

weighed against the government interests of equalizing the amount spent on campaigns, limiting the growing cost of running for office, and discouraging circumvention of contribution limits. Id. at 56–57. These differing interests mean that the Court cannot simply 

plug bequests into Buckley’s balancing test for campaign expenditures.

2. Bequests do not create the same corruption 

danger as contributions from living donors.

The interest in preventing quid pro quo corruption

is absent here. There is no appearance of corruption
6

that depends on the total size of a bequest, as the FEC

concedes. The FEC has approved the one-time placement of large bequests into trusts, which then distribute the maximum yearly contribution to political 

groups. FEC Advisory Ops. 2015-05; FEC Advisory 

Ops. 2004-02. To the FEC, it is the timing, not the size, 

of a gift that triggers the corruptive element. But timing is the concern of the living, not the dead. 

The illusory nature of a will obviates timing concerns. A will may be revoked at any time. Unif. Probate 

Code §§ 2-507–09; see also Alex M. Johnson, Jr., Is It 

Time For Irrevocable Wills?, 53 U. Louisville L. Rev. 

393 (2016). Indeed, after receiving the consideration

for his promise of a contribution, a corrupt testator 

would never actually need to give the gift. Likewise, if 

the bequest is in consideration for a corrupt benefit to

the decedent’s heirs, the heirs would have no means of 

enforcing the promise once the gift is transferred.

3

That is not to say that a quid pro quo is impossible 

by bequest. A testator could conspire with third parties 

to enforce bribes after his death, but that situation is 

different than Buckley’s anti-corruption interest. That 

Court decided that a prophylactic rule was necessary

precisely because the vast number of independent contributions made bribery laws ineffective at preventing 

quid pro quo corruption. Buckley, 424 U.S. at 262.

But anti-bribery laws are more than sufficient to 

prevent corrupt bequests, thus obviating the need for 

a blanket, prophylactic rule. There has only been $3.7 

million bequeathed to political causes in the last 40 

years. Libertarian Nat’l Comm., 924 F.3d at 540. In 

 

3 In that regard, the FEC’s recommendation to create a trust actually facilitates corrupt purposes because the heirs could affect 

trust assets if the corrupt promise went unfulfilled.
7

contrast, the FEC reports that political committees 

have raised nearly $2 billion in the first half of 2019

alone.4 This is not to say that bequests are a drop in 

the bucket, but rather that where the FEC’s interest 

in stopping corruption usually leaves the Commission

sifting through an ocean of contributions, here it need 

only sift through a puddle. The increased complexity 

of schemes to bribe by bequest, coupled with the 

miniscule pool of bequests to examine, means normal 

anti-bribery laws can perform that function. 

Further, there has never been a known corrupt bequest to political groups. As Judge Katsas noted below, 

the FEC has failed to justify a concern about corruption by pointing to a single instance of bribery by bequest in four separate court records and investigations 

over the past decade. Libertarian Nat’l Comm., 924 

F.3d at 540 (Katsas, J., concurring in part and in judgment, dissenting in part). In contrast, when the Court 

upheld yearly soft-money contribution limits, the FEC

produced voluminous record evidence and testimony 

about an epidemic of corrupt soft-money contributions. 

McConnell v. FEC, 540 U.S. 93, 153–54 (2003); see also 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 

158 (2010) (Kavanaugh, J.) (“McConnell's decision to 

uphold the soft-money ban rested on something more 

specific: record evidence of the selling of preferential 

access to federal officeholders and candidates in exchange for soft-money contributions.”).

In short, there is no evidence of a corruption problem around bequests. A bequest is an illogical way to 

make a bribe. Even if there were an issue, the minimal

number of bequests and the complexity involved in 

 

4 Campaign finance data available at the FEC website, 

https://www.fec.gov/data/browse-data/?tab=raising
8

making them work as bribes would make normal antibribery laws more than sufficient to tackle the issue. 

Between the considerable expressive value of bequests and the lack of a compelling and realistic anticorruption interest, the Buckley balancing test is inapposite as applied to bequests. The expressive value of 

bequests, whatever it might be, outweighs the Commission’s complete absence of anti-corruption interest. 

This Court has repeatedly noted that it lacks the “scalpel to probe” whether a $1,000 or $2,000 yearly contribution limit better balances free association rights 

with anti-corruption interests. Buckley, 424 U.S. at 30; 

Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality). 

The precision of a scalpel is unnecessary here, however, because the scales simply do not balance.

B. When Buckley Is Inapposite, the Court 

Should Follow McCutcheon and Apply

Strict Scrutiny

In McCutcheon, the Court returned to first principles, recognizing that the case differed from Buckley in 

two important respects. First, the speech at issue was 

an aggregate contribution limit. McCutcheon, 572 U.S.

at 191–92. Second, the limit had little if any effect on 

the state’s interest in combating corruption. Id. at 192.

Here, as in McCutcheon, the contribution limit applied to bequests is different in kind than the yearly 

contribution limit. Similarly, this case presents a campaign finance law with little to no actual effect on quid 

pro quo corruption or its appearance. This case also 

has one advantage over McCutcheon. Buckley, in three 

sentences out of a 139-page opinion, upheld an aggregate yearly contribution limit as ancillary to the general contribution limit. Buckley, 424 U.S. at 30. While 
9

the Court in McCutcheon had to distinguish that aspect of Buckley, here it may preempt such problems by 

recognizing now that bequests simply do not implicate 

the interests presented by yearly contributions.

The position of bequests outside of the Buckley

framework is stark when compared to the rest of Buckley’s progeny. In the first post-Buckley case presenting 

a contribution-limits challenge, the Court was already 

split on how to apply the balancing test. See Cal. Med. 

Ass’n v. FEC, 453 U.S. 182 (1981). In a divided opinion, 

the plurality reasoned that a Buckley-style yearly contribution limit on multicandidate committees was necessary to prevent corruption by those donating an 

amount greater than the individual contribution limit 

on the understanding that the whole amount would go 

to a single candidate. Cal. Med. Ass’n, 453 U.S. at 198–

99 (plurality). That part of the opinion failed to command a full majority of the Court; the concurrence 

opined that the contribution limit survived strict scrutiny as an expenditure limitation. Id. at 201–02 

(Blackmun, J., concurring in part and in judgment).

Other decisions have found contribution limits to 

be unconstitutionally low. See, e.g., Randall, 548 U.S. 

at 249 (plurality) (striking down contribution limits of 

$500 per candidate, per election cycle); Citizens 

Against Rent Control/Coal. for Fair Hous. v. Berkeley, 

454 U.S. 290, 300 (1981) (invalidating a $250 limit on 

contributions to groups formed to support or oppose 

specific ballot initiatives). Unlike those cases, the issue here is not the size of contributions, but the source.

Bequests are different than yearly contributions. 

As in McCutcheon, the traditional Buckley analysis is 

inapplicable, so the Court should apply strict scrutiny.
10

II. EVEN IF BUCKLEY’S TEST APPLIES, THE

COURT SHOULD RECOGNIZE AN EXCEPTION FOR CONTRIBUTIONS BY BEQUEST,

AS IT HAS IN OTHER CONTEXTS

Even if Buckley’s reasoning applies to bequests, the

Court should exempt them from such regulation. 

When the Court recognizes an area where the government may regulate speech, it carefully polices that regulation to prevent undue speech suppression. The 

Court has done this in other areas of concerning freedom of expression and association, and can easily recognize an exception for bequests.

In In re Primus, the Court was asked to consider 

whether to apply the legal ethical canon against solicitation of clients to an ACLU attorney who offered representation to a woman who had been sterilized as a 

condition to receiving public medical assistance. 436 

U.S. 412 (1978). The rule against solicitation is a 

prophylactic one and, in regulating the practice of law, 

states have considerable interests in taking measures 

to protect against the “substantive evils of undue influence, overreaching, misrepresentation, invasion of 

privacy, [and] conflict of interest[.]” Id. at 426. Yet the 

Court recognized that “[b]road prophylactic rules in 

the area of free expression are suspect, and precision 

of regulation must be the touchstone in an area so 

closely touching our most precious freedoms.” Id. at 

432 (quoting NAACP v. Button, 371 U.S. 415, 438 

(1963)). Because the ACLU is a political organization 

and the solicitation of a client was “undertaken to express personal political beliefs and to advance the civilliberties objectives of the ACLU,” the freedoms of expression and association were implicated. Id. at 422. 

“Where political expression or association is at issue,” 

precision is particularly important because “courts 
11

cannot tolerate the degree of imprecision that often 

characterizes government regulation.” Id. at 434.

Primus built on and clarified Button, which exempted the NAACP from certain state laws regulating 

lawyer conduct. The rational of both of these cases has 

also been applied to unions. R.R. Trainmen v. VA Bar, 

377 U.S. 1 (1964) (union recommendations of lawyers 

overcome restrictions on solicitation of clients); Mine 

Workers v. Ill. Bar Ass’n, 389 U.S. 217 (1967) (union 

lawyers may represent employees in claim disputes). 

These cases share a common theme. All involve discrete identifiable entities: either unions or political organizations that require impact litigation to function 

fully. Categorically applying prophylactic legal-ethics 

rules—whatever their merits in other contexts—would 

have severely harmed the political, associative, and 

expressive goals of the organizations. 

The same is true here. In the realm of campaign 

contributions, bequests are discrete and identifiable. 

The necessity of third-party trust personnel and probate representatives makes it easy to determine if a 

contribution is from the deceased. The other distinguishing feature is the minimal danger these organizations pose to the government interests at stake. Similarly, the Court in Primus distinguished the ACLU 

from ordinary ambulance chasers by virtue of the political bent of expressive and associational rights. Primus, 436 U.S. at 434 (distinguishing Ohralik v. Ohio

State Bar Ass’n, 436 U.S. 447 (1978) (holding an attorney lacked free association rights to solicit clients in 

hospital rooms)). Context matters; bequests are as different from inter vivos contributions as ACLU (or 

Cato) legal advocates are from ambulance chasers. 
12

This Court has repeatedly noted that it lacks the 

“scalpel to probe” whether a $1,000 or $2,000 contribution limit better balances associational rights with 

anti-corruption interests. Buckley, 424 U.S. at 30. But

that level of precision is not necessary here. The Court 

can use the cutting tools at its disposal to remove bequests from Buckley’s contribution framework.

Bequests can be separated from general contributions and treated as a separate class, because it is clear 

what is and is not a bequest. Like unions and political 

groups in other contexts, bequests do not significantly 

implicate the state interest at stake here. They can 

and should be removed them from the general prophylactic suppression of political contributions.

CONCLUSION

For the foregoing reasons, and those expressed by 

the petitioner, the Court should grant certiorari.

Respectfully submitted,

September 20, 2019

Ilya Shapiro

 Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org