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 Circuit

AMICUS CURIAE BRIEF OF 

THE INSTITUTE FOR FREE SPEECH

IN SUPPORT OF PETITIONER

ALLEN DICKERSON

 Counsel of Record

RYAN MORRISON

INSTITUTE FOR FREE SPEECH

124 S. West St., Ste. 201

Alexandria, VA 22314 

adickerson@ifs.org

(703) 894-6800

September 23, 2019 Counsel for Amicus Curiae

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
i 

TABLE OF CONTENTS

Table of Authorities .................................................. ii 

Interest of Amicus Curiae.......................................... 1 

Summary of the Argument........................................ 1 

Argument.................................................................... 2 

I. Granting the writ will provide the Court a 

vehicle to re-affirm McCutcheon v. Federal 

Election Commission, which has received 

insufficient attention from the courts of 

appeal ......................................................... 2 

II. The Court has multiple opportunities this 

Term to address the application of closely 

drawn scrutiny and exacting scrutiny ...... 8 

Conclusion.......................................................10 
ii 

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................... 3, 4, 6, 7

Citizens United v. Fed. Election Comm’n, 

558 U.S. 310 (2010) ................................... 4, 7 

Crossroads Grassroots Policy Strategies v. Federal 

Election Comm’n, 

788 F.3d 312 (D.C. Cir. 2015) ....................... 9

Del. Strong Families v. Denn, 

579 U.S. _, 136 S. Ct. 2376 (2016) ................ 8 

Doe v. Reed, 

561 U.S. 186 (2010) ....................................... 6 

Emily’s List v. Federal Election Comm’n, 

581 F.3d 1 (D.C. Cir. 2009) ........................... 3 

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

551 U.S. 449 (2007) ................................... 6, 7

In re Grand Jury Subpoena, 

912 F.3d 623 (D.C. Cir. 2019) ...................... 7 

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

Comm’n, 

924 F.3d 533 (D.C. Cir. 2018) ..............passim
iii 

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

Comm’n, 

317 F. Supp. 3d 202 (D.D.C. 2018) ............ 4-6 

Marks v. United States, 

430 U.S. 188 (1977) ...................................... 3

McCutcheon v. Fed. Election Comm’n, 

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

McDonnell v. United States, 

579 U.S. __, 136 S. Ct. 2355 (2016)............... 4

Riddle v. Hickenlooper, 

742 F.3d 922 (10th Cir. 2014) ....................... 8 

SpeechNow.org v. Federal Election Comm’n, 

599 F.3d 686 (D.C. Cir. 2010) ....................... 6 

Wagner v. Federal Election Comm’n, 

717 F.3d 1007 (D.C. Cir. 2013) ..................... 9 

Statutes

52 U.S.C. § 30110................................................. 1, 9

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

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

52 U.S.C. § 30125(a) ................................................ 5 
iv 

Other Authorities

Br. of Inst. For Free Speech,

Thompson v. Hebdon, 

No. 19-122 (U.S. Aug. 26, 2019) .................... 8 

Charles Dickens, Bleak House 

(Macmillan Collector’s Edition) ................... 7 

Mot. of Inst. For Free Speech,

Institute for Free Speech v. Becerra, 

No. 17-17403, DN 32 

 (9th Cir. Aug. 23, 2019) ........................... 9, 10

Pet. for Cert. of Americans for Prosperity

Foundation,

Americans for Prosperity Foundation v. 

Becerra, 

Nos. 19-251, 19-255 (U.S. Aug. 26, 2019) ..... 9 

Pet. for Cert. of Libertarian National Committee,

Inc.,

Libertarian National Committee, Inc. v. 

Federal Election Comm’n, 

No. 19-234 (U.S. Aug. 19, 2019) .............. 9, 10

Pet. for Cert. of David Thompson,

Thompson v. Hebdon, 

No. 19-122 (U.S. July 22, 2019) .................... 9 
1 

INTEREST OF AMICUS CURIAE1

The Institute for Free Speech is a nonpartisan, 

nonprofit organization that works to defend the rights 

to free speech, assembly, press, and petition. Over the 

last decade, the Institute has represented individuals 

and civil society groups in cases at the intersection of 

political regulation and First Amendment liberties.

These efforts have included challenges to campaign 

finance regulations at all levels of government and

have given the Institute substantial experience 

wrestling with the various standards of scrutiny 

announced by this Court and the federal courts of 

appeal.

SUMMARY OF THE ARGUMENT

The Libertarian National Committee (“LNC”) 

was bequeathed an amount of money for unrestricted 

purposes above the limit allowed by the Federal 

Election Campaign Act (“FECA”). Accordingly, the 

LNC was forbidden by the Federal Election 

Commission (“FEC”) from immediately accepting the 

full bequest. The LNC brought an as-applied First 

Amendment challenge against FECA’s contribution 

limits pursuant to 52 U.S.C. § 30110. 

In McCutcheon v. Federal Election Comm’n, 

572 U.S. 185, 206-07 (2014), the Court firmly 

reiterated that preventing quid pro quo corruption or 

1 No counsel for a party authored this brief in whole or part, nor 

did any person or entity, other than amicus or its counsel, 

financially contribute to preparing or submitting this brief. All 

Parties have consented to the filing of this brief.
2 

its appearance is the “only [] legitimate governmental 

interest for restricting campaign finances.” Here, all 

parties agree that the LNC had no knowledge of the 

bequest prior to the contributor’s death and provided 

nothing in exchange for the donation. Consequently, 

there was no quid pro quo corruption or even its 

appearance involved in the transaction. 

Nevertheless, the United States Court of Appeals for 

the District of Columbia Circuit denied the LNC’s asapplied challenge despite the absence of any evidence 

of corruption or its appearance. 

The Petition provides the Court an opportunity 

to protect core First Amendment rights by 

establishing a bright line rule that contribution 

restrictions should not apply to uncoordinated 

bequests. It should be granted. 

ARGUMENT

I. Granting the writ will provide 

the Court a vehicle to re-affirm 

McCutcheon v. Federal Election 

Commission, which has received 

insufficient attention from the 

courts of appeal.

The Chief Justice’s controlling opinion in

McCutcheon 2 recognized that making political 

2 Although the Chief Justice’s opinion only commanded four 

votes, Justice Thomas wrote separately to urge the Court to 

overturn campaign finance precedents in favor of a more robust 

reading of the First Amendment. McCutcheon, 572 U.S. at 228 

(Thomas, J., concurring in the judgment) (“I adhere to the view 

that this Court’s decision in Buckley v. Valeo denigrates core 
3 

contributions is a basic First Amendment right. 572

U.S. at 191. Indeed, “the First Amendment 

safeguards an individual’s right to participate in the 

public debate through political expression and 

political association.” Id. at 203. When a person 

contributes money to a political committee, “he 

exercises both of those rights: The contribution 

‘serves as a general expression of support for the 

[committee] and [its] views and serves to affiliate a 

person with [the committee].’” Id. (quoting Buckley v. 

Valeo, 424 U.S. 1, 21-22 (1976) (per curiam)). Thus, 

the LNC has “full First Amendment protection and 

[is] entitled to receive donations and make 

expenditures because they offer an opportunity for 

ordinary citizens to band together to speak on the 

issue or issues most important to them.” Emily’s List 

v. Federal Election Comm’n, 581 F.3d 1, 11 (D.C. Cir. 

2009) (Kavanaugh, J.) (internal quotation marks and 

citation omitted).

But the McCutcheon plurality also recognized

“that right is not absolute” and that Congress can 

restrict contributions “to protect against corruption or 

the appearance of corruption.” 572 U.S. at 191. 

Because contribution limits generally allow a 

“symbolic expression of support” without “infring[ing] 

the contributor’s freedom to discuss candidates and 

issues,” these laws must pass closely drawn scrutiny. 

Id. at 197; Buckley, 424 U.S. at 21. 

Under closely drawn scrutiny, the government 

must show that the law serves a “sufficiently 

First Amendment speech and should be overruled.”) (internal 

citation omitted). Accordingly, under Marks v. United States, 430 

U.S. 188 (1977), the Chief Justice’s opinion is the controlling 

opinion of the Court. 
4 

important interest” and employs means “closely 

drawn to avoid unnecessary abridgement of 

associational freedoms.” McCutcheon, 572 U.S. at 

197; Buckley, 424 U.S. at 25. The only “legitimate” 

governmental interest for contribution limits is 

“preventing corruption or the appearance of 

corruption.” McCutcheon, 572 U.S. at 206. And in 

pursuit of this interest, the government “may target 

only a specific type of corruption—‘quid pro quo’ 

corruption.” 3 Id. at 207. Quid pro quo corruption 

requires “the exchange of a thing of value for an 

‘official act.’” McDonnell v. United States, 579 U.S. _, 

_, 136 S. Ct. 2355, 2372 (2016). 

Because the aggregate contribution limits at 

issue in McCutcheon did “little, if anything” to 

prevent quid pro quo corruption or its appearance 

they were “invalid under the First Amendment.” 572 

U.S. at 193.

Likewise, the contribution limits at issue here 

provide no protection from quid pro quo corruption or 

its appearance. During his life, Joseph Shaber 

donated $3,315 to the LNC over twenty-five years, 

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

Comm’n, 924 F.3d 533, 536 (D.C. Cir. 2018) (“LNC 

II”), “a drop in the bucket relative to current law’s 

annual limit.” Libertarian Nat’l Comm., Inc. v. 

Federal Election Comm’n, 317 F. Supp. 3d 202, 216 

(D.D.C. 2018) (“LNC I”). At his death, Shaber 

surprised the LNC with a bequest of over $235,000 

3 A regulation cannot target ingratiation and access a 

contributor may receive from political actors. McCutcheon, 572 

U.S. at 192. That embodies “a central feature of democracy.” Id. 

Instead, a regulation “must” target ‘“quid pro quo corruption or 

its appearance.’” Id. (quoting Citizens United v. Federal Election 

Comm’n, 558 U.S. 310, 359 (2010)).
5 

with no strings attached. LNC II, 924 F.3d at 536; 

LNC I, 317 F. Supp. 3d at 207, 250. But at the time, 

FECA only allowed the LNC to accept $33,400 of the 

bequest without restriction. LNC II, 924 F.3d at 536 

(citing 52 U.S.C. §§ 30116(a)(1), (c); 52 U.S.C. § 

30125(a)). The rest of the money was deposited in an 

escrow account to be disbursed annually in amounts 

permitted by FECA unless the LNC is successful in 

this as-applied challenge—then it can accept the 

remaining escrow balance. Id. at 536-37. And, 

indeed, the LNC should succeed.

“The facts surrounding this bequest are 

undisputed. Shaber neither coordinated with the 

LNC regarding his decision to include the party in his 

will nor even informed the party of that decision.” Id. 

at 561 (Katsas, J., dissenting) (citing LNC I, 317 F. 

Supp. 3d at 249). Except for pursuing its ordinary 

political activities, the LNC ‘“provided nothing of 

value to Mr. Shaber, or to anyone else, in exchange for 

his bequest.’” Id. (quoting LNC I, 317 F. Supp. 3d at 

251). And Shaber asked for nothing in return. Id. 

(citing LNC I, 317 F. Supp. 3d at 250). “[B]esides 

making his modest gifts, Shaber had no other 

relationship with the LNC during his lifetime, thus 

making the prospect of corruption even more 

unlikely.” Id. (citing LNC I, 317 F. Supp. 3d at 251). 

Nevertheless, the FEC insists that federal 

contribution limits must apply to this unexpected 

gift—a quid for which no quo was given, or even 

possible. Moreover, there is no danger of future 

potential corruption: the facts surrounding Shaber’s 

contribution are unchangeable because of his death.

 The LNC II majority concedes the bequest “was 

not, in fact, part of a corrupt quid pro quo exchange.” 

924 F.3d at 543. And there is no appearance of 
6 

corruption if a political committee unknowingly 

receives a bequest from a supporter. Id. at 565 

(Katsas, J., dissenting) (because the LNC was 

unaware of the bequest, no quid pro quo agreement 

could be inferred). Yet, the majority arrived at a 

decision for the FEC not by concentrating on the facts 

of this case, but by focusing instead on the possibility 

that other potential bequests could be used by other 

donors to engage in corrupt bargains with a national 

party committee. Id. at 542-44. 

That is true, so far as it goes, and important to 

note in a facial challenge. But the LNC did not bring 

a facial challenge. This case only involves the specific 

facts of Shaber’s bequest. See Doe v. Reed, 561 U.S. 

186, 201 (2010) (an unsuccessful facial challenge does 

not foreclose an as-applied challenge); Federal 

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 

449, 476-82 (2007) (opinion of Roberts, C.J.) (same); 

SpeechNow.org v. Federal Election Comm’n, 599 F.3d 

686, 692-96, (D.C. Cir. 2010) (en banc) (same). 

Certainly, as the majority states, a bequest can 

be corrupt if there is a bargain before the testator’s

death. LNC II, 924 F.3d at 542. “But this cannot 

happen if the testator does not even tell the recipient 

about the planned bequest during his lifetime. In that 

circumstance, a quid pro quo exchange is impossible.” 

Id. at 564 (Katsas, J., dissenting). 

But the majority upheld the limit as-applied to 

Shaber’s bequest because, “it is ‘difficult to isolate 

suspect contributions’ in the sea of legitimate 

donations.” Id. at 543 (quoting Buckley, 424 U.S. at

30). This gives up the game. “Buckley did not address 

an as-applied challenge to the contribution limits.” 

LNC I, 317 F. Supp. 3d at 206. By applying broad 

facial challenge principles to an as-applied case that 
7 

has no evidence of quid pro quo corruption or its 

appearance, the majority employs the ‘“prophylaxisupon-prophylaxis approach’” that McCutcheon

discourages. 572 U.S. at 221 (citing Wis. Right to Life, 

Inc., 551 U.S. at 479 (opinion of Roberts, C.J.)). Worse 

still, it converted a valid as-applied challenge into a 

broader, facial attack on the statute. But it is not the 

D.C. Circuit’s place to amend a plaintiff’s complaint. 

In re Grand Jury Subpoena, 912 F.3d 623, 627 (D.C. 

Cir. 2019) (“Mindful of our obligation to avoid 

sweeping more broadly than we must to decide the 

case in front of us....”). 

The dead cannot ask for favors. And a political 

committee cannot offer them to the dearly departed. 

This is especially true when the deceased does not 

inform the beneficiary of a bequest that it exists. 4 

This uncoordinated arrangement is neither corrupt 

nor potentially corrupting. As with independent 

expenditures, ‘“[t]he absence of prearrangement and 

coordination [of a bequest with a political committee] 

. . . alleviates the danger that [contributions] will be 

given as a quid pro quo for improper commitments 

from the [committee].’” Citizens United v. Federal 

Election Comm’n, 558 U.S. 310, 357 (2010) (quoting 

Buckley, 424 U.S. at 47).

 Political contribution restrictions should not 

apply to uncoordinated bequests. “The line between 

coordinated and uncoordinated spending [] runs 

throughout campaign-finance law, and the FEC

routinely must police it.” LNC II, 924 F.3d at 565 

4 Of course, wills can always be changed. Western literature is 

replete with examples of would-be beneficiaries surprised by a 

testator’s last-minute decisions. E.g., Charles Dickens, Bleak 

House (Macmillan Collector’s Edition). Nevertheless, Amicus

writes only to discuss the LNC’s as-applied challenge. 
8 

(Katsas, J., dissenting). The FEC has “extensive 

disclosure requirements and enforcement powers” at 

its disposal to determine whether political 

expenditures were coordinated or not. Id. During 

this litigation, it offered “no reason why it cannot

make the same determination as to bequests.” Id. 

Accordingly, finding for the LNC in this as-applied 

challenge does not require rewriting the law. 

“Because coordinated and uncoordinated bequests 

can be manageably distinguished, and because 

uncoordinated bequests are not even alleged to 

present any corruption risk, the contribution limits 

are unconstitutional at least as applied to them.” Id. 

II. The Court has multiple 

opportunities this Term to address 

the application of closely drawn 

scrutiny and exacting scrutiny. 

The D. C. Circuit is not alone; the federal courts 

are struggling to apply closely drawn scrutiny and 

exacting scrutiny. See Br. of Inst. for Free Speech at 

6-12, Thompson v. Hebdon, No. 19-122 (U.S. Aug. 26, 

2019). See also, e.g., Riddle v. Hickenlooper, 742 F.3d 

922, 930 (10th Cir. 2014) (Gorsuch, J., concurring) (“I 

confess some uncertainty about the level of scrutiny 

the Supreme Court wishes us to apply to this 

contribution limit challenge....”). As Justice Thomas 

noted, the Court’s failure to grant certiorari and 

clarify the standards of review in campaign finance 

cases “sends a strong message that ‘exacting scrutiny’ 

means no scrutiny at all.” Del. Strong Families v. 

Denn, 579 U.S. _, 136 S. Ct. 2376, 2378 (2016)

(Thomas, J., dissenting from denial of cert.). 
9 

Accordingly, the Court should provide lower courts

guidance on these important issues.

Thankfully, the Court may have as many as 

four opportunities this Term to clarify the level of 

scrutiny applied to campaign finance laws: (1) this

Petition is a chance to scrutinize contribution limits 

in an as-applied challenge with undisputed facts 5

revealing no quid pro quo corruption or its 

appearance; (2) Thompson v. Hebdon provides the 

Court an opportunity to harmonize and clarify 

exacting scrutiny and closely drawn scrutiny, Pet. for 

Cert. of David Thompson, No. 19-122 (U.S. July 22, 

2019); (3) Americans for Prosperity Foundation v. 

Becerra is an occasion to address proper tailoring for 

contribution disclosure laws applied to non-profit civil 

society groups engaging in issue advocacy, Pet. for 

Cert. of Americans for Prosperity Foundation, Nos. 

19-251, 19-255 (U.S. Aug. 26, 2019); and (4) Institute 

for Free Speech v. Becerra6 is a potential opportunity 

to address the fundamental question of whether 

compelled disclosure of donors to nonprofit civil 

society groups is a First Amendment injury in the 

5 This Petition also presents the Court an opportunity to rule on 

the standard of review for district court factual findings in 52

U.S.C. § 30110 cases. One of the functions of the district court 

in § 30110 cases is “develop[ing] a record for appellate review by 

making findings of fact.” Wagner v. Federal Election Comm’n, 

717 F.3d 1007, 1009 (D.C. Cir. 2013). No court has addressed 

the standard of review for factual findings in § 30110 cases. 

Circuit courts generally review findings of fact for clear error. 

See, e.g., Crossroads Grassroots Policy Strategies v. Federal 

Election Comm’n, 788 F.3d 312, 316 (D.C. Cir. 2015). Granting 

the writ will give the Court a chance to rule on whether clear 

error is the proper standard for factual findings in § 30110 cases.

6 Petition forthcoming.
10

first place. Mot. of Inst. for Free Speech, No. 17-

17403, DN 32 (9th Cir. Aug. 23, 2019). 

As stated above, this petition should be granted 

to uphold McCutcheon. But at a minimum, and as 

Petitioner suggests, Pet. 37, the case should be held 

pending the outcome of the case that the Court 

chooses as its vehicle for articulating the standard of 

scrutiny in campaign finance law.

CONCLUSION

For the foregoing reasons, the Court should 

grant the writ.

Respectfully submitted,

ALLEN DICKERSON

Counsel of Record

RYAN MORRISON

INSTITUTE FOR FREE

SPEECH

124 S. West St., Ste. 201

Alexandria, VA 22314

adickerson@ifs.org 

(703) 894-6800

September 23, 2019 Counsel for Amicus Curiae