EN BANC ARGUMENT SCHEDULED FOR NOVEMBER 30, 2018

No. 18-5227

In the United States Court of Appeals

for the District of Columbia Circuit

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Certification of Constitutional Questions by the

United States District Court for the District of Columbia

The Hon. Beryl A. Howell, Chief District Judge

(Dist. Ct. No. 1:16-cv-121-BAH)

PLAINTIFF’S OPENING BRIEF

Alan Gura

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

September 10, 2018 Counsel for Plaintiff-Appellant 

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A. PARTIES

Libertarian National Committee, Inc. (“LNC”) was the Plaintiff in

the District Court and is the Plaintiff in this en banc proceeding

pursuant to 52 U.S.C. § 30110. The Federal Election Commission

(“FEC”) was the defendant in the district court and is the defendant in

this Court. No party participated as amicus curiae in the District Court.

The Institute for Free Speech, and the Goldwater Institute, have

indicated that they will appear as amici in support of Plaintiff before

this Court.

B. RULINGS UNDER REVIEW

This case is not appellate in nature, as 52 U.S.C. § 30110 assigns 

resolution of the case’s merits in the first instance to this Court sitting

en banc. On June 29, 2018, the United States District Court, per the

Hon. Beryl Howell, Chief Judge, made factual findings and certified

three questions of law to this Court. Dist. Ct. Docket Nos. 35, 36. That

decision is not currently reported, but is available at 2018 U.S. Dist.

LEXIS 108891, and is reprinted at Joint Appendix (“JA”) 147-235.

i

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C. RELATED CASES

The District Court previously declined to certify the LNC’s challenge

to the FEC’s practice of applying political contribution limits to

testamentary bequests, but certified an as-applied constitutional

challenge to the imposition of contribution limits against a particular

bequest. Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154

(D.D.C. 2013) (“LNC I”) (Wilkins, J.), reconsideration denied, 950 F.

Supp. 2d 58 (D.D.C. 2013) (“LNC II”). This Court summarily affirmed

the dismissal of the categorical challenge. Libertarian Nat’l Comm., Inc.

v. FEC, No. 13-5094 (D.C. Cir. Feb. 7, 2014) (per curiam). It later held

that the certified as-applied challenge had become moot. Libertarian

Nat’l Comm., Inc. v. FEC, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en

banc) (per curiam).

ii

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CORPORATE DISCLOSURE STATEMENT

Plaintiff Libertarian National Committee, Inc., is a non-for-profit

organization incorporated under the laws of the District of Columbia. It

serves as the national committee of the Libertarian Party of the United

States.

Plaintiff has no parent companies, and no publicly-traded company

has a 10% or greater ownership interest in Plaintiff.

iii

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TABLE OF CONTENTS

Certificate as to Parties, Rulings, and Related Cases. . . . . . . . . . . . . . . . i

Corporate Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statutes and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The Regulatory Scheme.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. Legislative History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. The FEC’s Asserted Relationships Between the 

Spending Purpose Restrictions and Regulatory Interests.. . . 9

4. The Segregated Spending Purpose Accounts’

Potential Utility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5. Joseph Shaber’s Testamentary Bequest. . . . . . . . . . . . . . . . 16

6. The Spending Purpose Restrictions’ Impact on the LNC.. . 18

7. Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv

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Summary of Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. Imposing Annual Contribution Limits Against Joseph Shaber’s

Bequest Violates the LNC’s First Amendment Rights.. . . . . . . . . 30

A. The LNC Has A First Amendment Right to 

Receive Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

B. Testamentary Contributions Implicate Speech,

Not Associational Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. The FEC Cannot Meet Its Burden in Restricting

the LNC’s Access to Shaber’s Bequest, Because 

Shaber’s Bequest Raises No Corruption Concerns. . . . . . . . 35

II. FECA, On Its Face, Violates the LNC’s First Amendment 

Rights by Restricting the LNC’s Spending of Contributions 

Above Section 30116(a)(1)(B)’s Base General Purpose Limit to

Those Specialized Purposes Enumerated in Section 30116(a)(9). 39

A. FECA’s New Regime for Limiting Contributions to 

Political Parties Imposes Expenditure Restrictions 

Subject to Strict Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . 40

B. Even if Viewed as Imposing a Pure Contribution Limit,

FECA’s New Regime for Limiting Contributions to 

Political Parties Imposes Content-Based Restrictions 

Subject to Strict Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . 44

C. FECA’s New Regime for Limiting Contributions to 

Political Parties Fails Any Level of First Amendment

Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

v

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III. FECA Violates the LNC’s First Amendment Rights by 

Restricting the LNC’s Spending of That Portion of

Shaber’s Bequest Exceeding Section 30116(a)(1)(B)’s 

Base General Purpose Limit to Those Specialized

Purposes Enumerated in Section 30116(a)(9). . . . . . . . . . . . . . . . 58

IV. The Court Should Either Enjoin FECA’s Political Party

Contribution Limit, or Excise the Limit’s Spending 

Purpose Restrictions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Certificate of Compliance

Statutory Addendum

Certificate of Service

vi

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TABLE OF AUTHORITIES

Cases

A.N.S.W.E.R. Coal. v. Basham,

845 F.3d 1199 (D.C. Cir. 2017) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

*Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 63

Annex Books, Inc. v. City of Indianapolis,

581 F.3d 460 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Ayotte v. Planned Parenthood,

546 U.S. 320 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

*Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam). . . . . . 32, 34, 36, 41, 42, 44, 49, 60, 61

Catholic Leadership Coalition of Tex. v. Reisman,

764 F.3d 409 (5th Cir. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Citizens United v. FEC,

558 U.S. 310 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 50

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

*Colo. Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 44, 51, 52

*Authorities on which we chiefly rely are marked with asterisks.

vii

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Dean v. Blumenthal,

577 F.3d 60 (2d Cir. 2009) (per curiam). . . . . . . . . . . . . . . . . . . . . . . 33

Exec. Bens. Ins. Agency v. Arkison,

134 S. Ct. 2165 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Farris v. Seabrook,

677 F.3d 858 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Hodel v. Irving,

481 U.S. 704 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Holmes v. FEC,

875 F.3d 1153 (D.C. Cir. 2017) (en banc). . . . . . . . . . . . . . . . . . . . . . 42

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

930 F. Supp. 2d 154 (D.D.C. 2013) (“LNC I”).. . ii, 30-32, 34-36, 40, 44

Libertarian Nat’l Comm., Inc. v. FEC,

950 F. Supp. 2d 58 (D.D.C. 2013) (“LNC II”). . . . . . . . . . . . . . . . . ii, 31

Libertarian Nat’l Comm., Inc. v. FEC,

228 F. Supp. 3d 19 (D.D.C. 2017) (“LNC III”). . . . . . . . . 25-27, 43, 56

Libertarian Nat’l Comm., Inc. v. FEC,

No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc) (per curiam). . . . . . . ii

Libertarian Nat’l Comm., Inc. v. FEC,

No. 13-5094 (D.C. Cir. Feb. 7, 2014) (per curiam). . . . . . . . . . . . . . . . ii

viii

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

603 F.3d 684 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Mass. Citizens for Life v. FEC,

479 U.S. 238 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

*McConnell v. FEC,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 40, 42-44, 48

*McCutcheon v. FEC,

572 U.S. 185 (2014). . . . . . . . . . . . . . . . . . . . . 32, 34, 40, 41, 44, 49, 50

Minn. v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Murphy v. NCAA,

138 S. Ct. 1461 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

NAACP v. Button,

371 U.S. 415 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Police Dep’t of Chicago v. Mosley,

408 U.S. 92 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

*Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48

Republican Nat’l Comm. v. FEC,

698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge panel). . . . . . . . 48, 49

Republican Party of La. v. FEC,

219 F. Supp. 3d 86 (D.D.C. 2016) (three-judge panel). . . . . . . . . . . . 48

ix

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Sessions v. Morales-Santana,

137 S. Ct. 1678 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

*Speechnow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010) (en banc) .. . . . . . . . . . 32, 33, 35, 38, 39

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

732 F.3d 535 (5th Cir. 2013) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Booker,

543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

United States v. Marcavage,

609 F.3d 264 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Virginia,

518 U.S. 515 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

United States v. Weaver,

808 F.3d 26 (D.C. Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Wagner v. FEC,

717 F.3d 1007 (D.C. Cir. 2013) (“Wagner I”). . . . . . . . . . . . . . . . . . . . 1

Wagner v. FEC,

793 F.3d 1 (D.C. Cir. 2015) (en banc) (“Wagner II”). . . . . . . . . . 50, 51

Wis. Right to Life State PAC v. Barland,

664 F.3d 139 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Wis. Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

x

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Constitutional Provisions

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Statutes and Rules

26 U.S.C. § 9008(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

26 U.S.C. § 9008(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

52 U.S.C. § 30101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

52 U.S.C. § 30110.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 30, 31, 43

52 U.S.C. § 30116(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

52 U.S.C. § 30116(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . 2, 25, 39, 42, 58, 59

52 U.S.C. § 30116(a)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 39, 56, 58

52 U.S.C. § 30116(a)(9)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

52 U.S.C. § 30116(a)(9)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

52 U.S.C. § 30116(a)(9)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

52 U.S.C. § 30116(a)(9)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

52 U.S.C. § 30116(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

52 U.S.C. § 30116(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

xi

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52 U.S.C. § 30125.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 59

52 U.S.C. § 30125(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

52 U.S.C. § 30125(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

52 U.S.C. § 30144.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Consolidated and Further Continuing Appropriations Act, 2015,

113 Pub. L. 235, 128 Stat. 2130 (Dec. 16, 2014). . . . . . . . . . . . . . . . . . 6

Gabriella Miller Kids First Research Act,

Pub. L. No. 113-94, 128 Stat. 1085 (Apr. 3, 2014). . . . . . . . . . . . . . . . 7

Fed. R. Evid. 106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Other Authorities

160 Cong. Rec. H9068 (daily ed. Dec. 11, 2014) 

(statement of Rep. Slaughter). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 55

160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) 

(statement of Rep. Boehner). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

160 Cong. Rec. S6748 (daily ed. Dec. 12, 2014) 

(statement of Sen. Leahy). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

160 Cong. Rec. S6810 (daily ed. Dec. 13, 2014) 

(statement of Sen. Levin). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

160 Cong. Rec. S6812 (daily ed. Dec. 13, 2014) 

(statement of Sen. Collins). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

160 Cong. Rec. S6812 (daily ed. Dec. 13, 2014) 

(statement of Sen. Manchin).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 55

xii

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160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014)

(statement of Sen. Reid). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

160 Cong. Rec. S6860 (daily ed. Dec. 15, 2014) 

(statement of Sen. Wyden). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 55

Congress.gov, 

https://www.congress.gov/bill/113th-congress/house-bill/83 . . . . . . . . 6

Cromnibus, Political Dictionary, available at 

http://politicaldictionary.com/words/cromnibus/ . . . . . . . . . . . . . . . xiv

David Horton, Testation and Speech, 101 Geo. L. J. 61 (2012).. . . . . . . 34

FEC Advisory Op. 1999-14 (Council for a Livable World) . . . . . . . . . . . . 6

FEC Advisory Op. 2004-02 (Nat’l Comm. for an Effective Congress). . . . 6

FEC Advisory Op. 2015-05 (Shaber). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Nancy Marshall-Genzer, Congress’ latest fiscal buzzword:

‘Cromnibus,’ Marketplace, Dec. 1, 2014, available at

https://www.marketplace.org/2014/12/01/economy/

congress%E2%80%99-latest-fiscal-buzzword-%E2%

80%98cromnibus%E2%80%99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

xiii

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GLOSSARY

CROMNIBUS — A Congressional bill that is in part an “omnibus”

long-term budget bill, and in part a “continuing

resolution” to authorize short-term funding so the

government does not run out of money in the

immediate future. See Cromnibus, Political

Dictionary, available at http://politicaldictionary

.com/words/cromnibus/ ; Nancy Marshall-Genzer,

Congress’ latest fiscal buzzword: ‘Cromnibus,’

Marketplace, Dec. 1, 2014, available at https://

www.marketplace.org/2014/12/01/economy/

congress%E2%80%99-latest-fiscal-buzzword-

%E2%80%98cromnibus%E2%80%99

FEC — Federal Election Commission

FECA — Federal Election Campaign Act, 52 U.S.C. § 30101 et seq

JA — Joint Appendix

DNC — Democratic National Committee

LNC — Libertarian National Committee

RNC — Republican National Committee

xiv

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PLAINTIFF’S OPENING BRIEF

JURISDICTIONAL STATEMENT

The District Court had jurisdiction to make findings of fact and certify

constitutional questions to this Court pursuant to 28 U.S.C. § 1331 and

52 U.S.C. § 30110.1 As a political party’s national committee, Plaintiff is

entitled to access Section 30110.

The District Court made findings of fact and certified three questions

of law. JA 147-48, 181-235. This Court, sitting en banc, has exclusive

jurisdiction to hear the certified questions. Section 30110; Wagner v.

FEC, 717 F.3d 1007, 1014 (D.C. Cir. 2013) (“Wagner I”).

STATEMENT OF THE ISSUES

The District Court certified three questions:

1. Does imposing annual contribution limits against the bequest of

Joseph Shaber violate the First Amendment rights of the

Libertarian National Committee?

1Further statutory references are to Title 52, United States Code

unless noted.

1

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2. Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9), and 30125(a)(1), on their

face, violate the First Amendment rights of the Libertarian

National Committee by restricting the purposes for which the

Committee may spend its contributions above § 30116(a)(1)(B)’s

general purpose contribution limit to those specialized purposes

enumerated in § 30116(a)(9)?

3. Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9), and 30125(a)(1) violate the

First Amendment rights of the Libertarian National Committee by

restricting the purposes for which the Committee may spend that

portion of the bequest of Joseph Shaber that exceeds §

30116(a)(1)(B)’s general purpose contribution limit to those

specialized purposes enumerated in § 30116(a)(9)?

STATUTES AND REGULATIONS

52 U.S.C. §§ 30110; 30116(a)(1)(B), (a)(9), (c) and (d); and 30125(a).

See addendum.

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STATEMENT OF THE CASE

This case presents two overlapping issues of first impression.

1. Americans often remember political parties in their wills and other

testamentary vehicles. Such donors may have been unknown to the

parties while alive, and their at-times surprising instructions might have

been drafted long before the political issues, candidates, and platforms in

controversy at their times of death could have been foreseen.

The FEC applies contribution limits to all testamentary bequests. As

noted in the statement of related cases, this Court affirmed the dismissal

of the LNC’s categorical challenge to the FEC’s practice, and dismissed

as moot a certified as-applied challenge involving one of Plaintiff’s

deceased donors.

The LNC does not revive its categorical challenge. But another donor,

Joseph Shaber, has since died, remembering the LNC with another

bequest whose acceptance the FEC frustrates. The District Court

certified this resultant as-applied challenge, which again asks the basic

question: under what circumstances may the government limit political

contributions from the dead?

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2. Months after Shaber’s passing, Congress altered the basic structure

of FECA’s contribution limits to political parties. FECA previously

limited individual contributions to political parties without regard to

how parties spent their money, once accepted. But in 2014, Congress

raised FECA’s limit, while restricting the expressive purposes for which

a party may spend most of the money a person might donate.

The previous contribution limit now serves as a base amount, which

defines how much of a contribution can be spent without restriction.

People may also contribute triple the base limit, to be spent exclusively

for each of three purposes: presidential nominating conventions,

litigation of election contests and other proceedings, and party

headquarters buildings. In other words, the government restricts how a

political party may express itself with 90% of the money it can accept

from an individual. The LNC submits that this scheme imposes an

unconstitutional content-based restriction on political speech. It

challenges the scheme facially, and as-applied to Shaber’s bequest.

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1. The Regulatory Scheme

“Altogether . . . an individual may contribute $339,000 per year to

accounts established and maintained by national political parties—

$101,700 to each of three specialized purpose accounts, plus $33,900 for

general purposes.” JA 158 (citing Section 30116(a)(1)(B)). Party

committees may spend money from the three “separate, segregated

account[s]” only on (A) “a presidential nominating convention,” (B)

party headquarters buildings, or (C) “election recounts and contests and

other legal proceedings,” respectively. Section 30116(a)(9).

A national committee of a political party . . . may not solicit, receive,

or direct to another person a contribution, donation, or transfer of

funds or any other thing of value, or spend any funds, that are not

subject to the limitations, prohibitions, and reporting requirements of

this Act.

Section 30125(a)(1) (emphasis added); JA 159.

The FEC interprets “person,” as used in Section 30116(a)(1), to

include testamentary estates. JA 45; Certified Fact (“CF”) 85, JA 214-15

(citations omitted).

2 Testamentary bequests to political parties that

exceed contribution limits must be placed in escrow, from which a party

2The LNC generally omits citations when citing to the District

Court’s certified facts.

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must withdraw funds every year until the funds are exhausted. The

funds may earn interest, but parties may not exercise control over such

funds, including control over the direction of the funds’ investment

strategies or strategic choice as to the amount of any withdrawals made

in any particular year. See FEC Advisory Ops. 2015-05 (Shaber), 2004-02

(Nat’l Comm. for an Effective Congress), 1999-14 (Council for a Livable

World); JA 45.

2. Legislative History

Congress raised the party contribution limit and imposed the

corresponding spending purpose restrictions as part of the 2014

cromnibus. Language enacting these provisions appeared as “Subdivision

N — Other Matters,” on pages 644-645 of the 701-page Consolidated and

Further Continuing Appropriations Act, 2015, 113 Pub. L. 235, 128 Stat.

2130, 2772-73 (Dec. 16, 2014).

These “Other Matters” never faced a committee hearing in either

house of Congress, and were not the subject of any congressional report

or investigation. See Congress.gov, https://www.congress.gov/bill/113thcongress/house-bill/83 (last visited Aug. 30, 2018) (absence of committee

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reports related to the spending purpose restrictions). House Speaker

Boehner and Senate Majority Leader Reid offered identical statements of

intent describing the modifications effected by the FECA amendments,

without discussing how the spending purpose restrictions related to anticorruption concerns. 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014)

(statement of Rep. Boehner); 160 Cong. Rec. S6814 (daily ed. Dec. 13,

2014) (statement of Sen. Reid). The statement offered that the

presidential nominating convention provision was enacted “because such

conventions may no longer be paid for with public funds.” Id.3

Given the context of the provisions’ appearance, debate was scant.

The FECA amendments “should have been subject to debate and

amendment in an open process by the full Senate,” but “we simply

cannot allow a government shutdown.” 160 Cong. Rec. S6812 (daily ed.

Dec. 13, 2014) (statement of Sen. Collins). The legislative record thus

apparently lacks discussion of links between corruption concerns and

political contributions of various sizes restricted to various purposes.

3Congress had redirected public funds from presidential nominating

conventions to pediatric cancer research. Gabriella Miller Kids First

Research Act, Pub. L. No. 113-94, 128 Stat. 1085 (Apr. 3, 2014); 26

U.S.C. §§ 9008(b), 9008(i).

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But some in Congress dismissed the segregated purpose restrictions’

relevance to corruption concerns.

A last-minute, nongermane addition . . . changes campaign finance

law to allow megadonors to give 10 times the amount currently

allowed to political parties for housekeeping, and those of us in the

political field know what it means to have the housekeeping accounts:

that means it can go for absolutely anything.

160 Cong. Rec. H9068 (daily ed. Dec. 11, 2014) (statement of Rep.

Slaughter). The FECA amendments “increas[e] the amount of money

wealthy donors can contribute to political parties.” 160 Cong. Rec. S6748

(daily ed. Dec. 12, 2014) (statement of Sen. Leahy).

“[The bill] increases the limits for individual contributions to political

parties by 10 times the current limit—10 times.” 160 Cong. Rec. S6812

(daily ed. Dec. 13, 2014) (statement of Sen. Manchin). It “greatly

expands donations to the Republican and Democratic parties by allowing

a tenfold increase in the maximum amount that donors may contribute .

. . .” 160 Cong. Rec. S6860 (daily ed. Dec. 15, 2014) (statement of Sen.

Wyden) (emphasis added). “We shouldn’t use appropriations bills like

this one . . . to open the floodgates to campaign donations from

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millionaires.” 160 Cong. Rec. S6810 (daily ed. Dec. 13, 2014) (statement

of Sen. Levin).

3. The FEC’s Asserted Relationships Between the 

Spending Purpose Restrictions and Regulatory Interests

“Unrestricted funds are more valuable to national party committees

and their candidates than funds that may only be used for particular

categories of expenses.” CF 50, JA 197 (emphasis added).

Contributions are another matter. “Every dollar received through the

separate, segregated accounts provided for in [Section 30116(a)(9)]

potentially frees up another dollar in the recipient’s general account for

unrestricted spending.” CF 38, JA 192. Thus, parties “may in some

circumstances value a contribution with use restrictions more highly

than a smaller contribution without such restrictions.” CF 39, id.

A political party may value a higher contribution with use restrictions

. . . such as in the case of a contribution that the party may use to

defray expenses for which it knows it must pay and for which it would

otherwise have trouble raising funds. The party may value that

contribution more than a smaller contribution that comes with no use

restrictions but is easier to replicate through other fundraising efforts.

CF 40, id.

4

4The FEC objected to certification of various facts extracted from

its discovery responses by arguing that, if certified, its “full response[s]

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The FEC thus admitted that a lawful, $101,700 restricted

contribution “may create the same or greater appearance of corruption

as an unrestricted [$33,901] contribution,” which would be unlawful by

one dollar, “by that individual to the same national committee of a

political party.” CF 41, JA 193-94.

Qualifying its answer, the FEC denied that its admission “is true as a

general matter,” conceding it may be true “in some circumstances.” Id.

The FEC explained that “larger contributions are generally more likely

to lead to actual or apparent quid pro quo arrangements and can do so

regardless of how the funds are ultimately used.” Id. (emphasis added);

see also CF 35; JA 190-91. Yet the FEC asserted that “political parties

will generally value [unrestricted contributions] higher,” allegedly

because they can be used to “maximally benefit federal candidates;”

accordingly, “such contributions pose a relatively more acute danger of

should in fairness be included. See Fed. R. Evid. 106.” See, e.g., CF 40

n.21, JA 193. Rule 106 is inapposite, as the LNC indeed introduced the

“full responses” into the record below. The FEC has always been free to

assert the relevance of any part of its writings. In certifying some facts,

the District Court quoted the FEC at greater length than Plaintiff

believes relevant, but did not always include the FEC’s “full response.”

The LNC designated the “full responses” at-issue at JA 53-55, 57-64.

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quid pro quo corruption.” CF 41, JA 193. As the FEC also admitted,

“[a]ll contributions to political parties can create the risk of corruption

or its appearance regardless of the way that money is ultimately spent,”

adding that 

Congress could have permissibly concluded that contributions to a

political party that directly benefit a particular candidate or can be

spent directly on a particular election contest pose an especially acute

risk warranting a lower dollar limit.

CF 36, JA 191.

When the LNC asked the FEC to “describe in detail all evidence” for

the proposition that a maximum restricted contribution ($101,700) is

less corrupting than a contribution exceeding the unrestricted base limit

by one dollar ($33,901), the FEC replied that it “cannot respond to this

interrogatory because it rejects the premise that a contribution of any

particular dollar value is ‘corrupting’ but that lower values are not

‘corrupting.’” CF 34, JA 189-90.

The LNC asked the FEC to describe the likelihood that, and the

circumstances under which, a maximum $101,700 restricted contribution

“would create the same or greater appearance of corruption” as would an

unrestricted, illegal-by-one-dollar $33,901 contribution by the same

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person to the same committee. CF 43, JA 194-95. The FEC objected on

grounds that it should not “opine on matters committed to the discretion

of Congress.” JA 60, 62. It then offered that a “within-limit [restricted]

contribution could appear as corrupt as or more corrupt than a lower

[unrestricted contribution] that exceeds the general-account limit,

depending on circumstances,” examples of which include 

the identity of the contributor and the receiver, the policy interests of

the contributor, the current status of relevant policies, the financial

needs and goals of the receiver including as to the types of spending

for which segregated account funds might be used and the public

knowledge of those matters, the receiver’s ability to raise funds for

different proposed uses, and whether any relevant policy changes

happen close in time to the contribution.

CF 43, JA 195 (emphasis added). The FEC continued by offering that “it

is also possible that a particular contribution below the general account

limit may have an appearance of corruption that exceeds that of a higher

contribution to a segregated account.” JA 61-63 (emphasis added).5

Notwithstanding its multi-factor corruption test and its reticence to

“opine on matters committed to the discretion of Congress,” JA 60, 62,

the FEC hypothesizes that “Congress could have permissibly concluded”

5See supra n.4. This part of the FEC’s position is in any event

deducible from the certified portion.

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that unrestricted donations pose greater corruption risk than restricted

donations, as it believes that “unrestricted funds contributed to a

political party may be used for activities that maximally benefit federal

candidates and thus may pose a relatively more acute danger of actual

and apparent corruption.” CF 37, JA 191-92 (emphasis added).

4. The Segregated Spending Purpose Accounts’

Potential Utility

Between December 14, 2014, and December 13, 2016, Democratic

Party national committees accepted $41,510,551 in the segregated

spending purpose accounts; Republican Party national committees 

accepted $88,455,532 in such accounts; and the LNC accepted $31,508 in

such accounts. CF 31; JA 188-89; see also CF 44-49, JA 195-97; CF 51-52,

JA 197. The FEC did not object to certification of the following fact:

In 2016, the RNC spent $7,834,889 from its Building Fund,

presumably on Building related expenses; $19,482,219 from its

Convention Fund and $3,625 from its Operating Fund on convention

related expenses; and $5,020,500 from its Recount Fund plus $26,825

from their Convention Fund presumably on legal related expenses.

JA 79 (citing JA 65-66).6

6The LNC respectfully submits that the District Court clearly erred

in overlooking or declining to certify this undisputed fact.

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The parties disputed how much the LNC spends toward the three

purposes for which segregated accounts are allowed, largely because the

LNC’s internal accounting charts are not tailored to FECA’s exact

language. But the District Court found that in the 2016 presidential

election year, the LNC’s total spending on all three special purposes

approximated $467,251.58. CF 29, JA 188. 

The LNC holds presidential nominating conventions once every four

years. CF 26, JA 187. “All, or very nearly all, of the Libertarian Party’s

[presidential convention expenses] are incurred and paid for in the year

in which the convention is held.” CF 28, JA 188. Minor presidential

convention expenses are occasionally pre-paid in the year preceding the

convention year, but no such expenses are incurred in the two years

following a presidential convention year. Id. While it asserted, without

valid support, that cities bid to host the LNC’s conventions and that the

LNC would accept government funding for its conventions, the FEC did

not dispute that “LNC spent $249,971 to hold the Libertarian Party’s

2016 presidential nominating convention.” JA 82-83.7

7See supra n.6.

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In 2014, the LNC purchased a headquarters building for $825,000. CF

24, JA 187. The LNC seeks to retire the building’s mortgage as quickly

as possible, and in any event prior to a 2024 balloon payment. To this

end, it budgets at least $60,000 in odd-numbered years to pay down the

principal, and undertakes fundraising efforts directed to that purpose.

The LNC expects to meet its 2024 goal, but its goals at times exceed its

budget, and its budget targets are sometimes missed. CF 25, id. The FEC

objected to other statements contained in the fact proposal, but did not

object to the fact that “[a]s of August 22, 2017, LNC has an outstanding

balance of $250,860 on its headquarters mortgage.” JA 81.

8

And notwithstanding the parties’ dispute as to the LNC’s litigation

expenses, the FEC did not dispute that “[o]wing to its smaller share of

the vote, the Libertarian Party is unlikely to expend money in the

foreseeable future on funding election recounts,” and that “[t]he LNC

has never spent money litigating election recounts.” JA 80-81.9

8See supra n.6.

9See supra n.6.

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5. Joseph Shaber’s Testamentary Bequest

Between 1988 and 2011, Joseph Shaber donated amounts ranging

from $10 to $300 to the LNC. Between June 2011 and November 2012,

he gave the LNC $100 per month. In May 2012, he donated an additional

$100. CF 109, JA 221. Shaber’s 46 donations totaled $3,315. Id.

Without its knowledge, the LNC was made a beneficiary of the Joseph

Shaber Revocable Trust under a trust dated February 11, 2010. CF 115,

JA 222. The size of Shaber’s gift to the LNC was contingent upon a

variety of factors, including the value of his property and whether he

would have grandchildren at the time of his passing. CF 116, JA 223.

Shaber died on August 23, 2014, rendering the trust irrevocable. CF 117,

id. Shaber’s death prevents him from engaging in political expression,

association, or support. CF 118, id.

The LNC first had access to Shaber’s bequest in 2015, and took the

maximum then-allowed for unrestricted purposes in February of that

year. CF 119, id. In September 2015, the LNC’s share of the Shaber

trust was established at $235,575.20. CF 121, JA 224. Although the LNC

had sent Shaber a fundraising appeal related directly to its headquarters

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building, Shaber specified that the LNC should take his bequest

“outright.” CF 122, id.; CF 123, id.

The FEC is unaware of any condition or limitation attached by Shaber

to his bequest to the LNC, CF 124, id., nor is the FEC aware of any quid

pro quo arrangement related to Shaber’s LNC bequest, CF 125, id. To

the LNC’s knowledge, neither Shaber nor anyone related to him or

acting on his behalf has had any relationship with the LNC, its officers,

board members, or candidates, apart from Shaber’s contribution history.

CF 129, JA 225. The Trustee of Shaber’s Trust could not impose

restrictions on Shaber’s bequest that Shaber did not himself place. CF

126, JA 224. 

Aside from pursuing its ideological and political mission, the LNC

provided nothing of value to Shaber, or to anyone else, in exchange for

his bequest to the LNC. CF 133, JA 225. The LNC removed Shaber from

its membership rolls upon learning of his bequest. CF 134, JA 226.

The LNC would accept and spend the entirety of Shaber’s bequest for

its general expressive purposes, including expression in aid of its federal

election efforts. CF 127, JA 224. But the LNC having taken the

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maximum allowable unrestricted amount for 2015, the Trust and the

LNC agreed to deposit the remaining $202,175.20 into an FEC-compliant

escrow account, subject to this litigation’s outcome. CF 128, JA 224-25.

The LNC is prohibited from pledging, assigning, or otherwise obligating

the anticipated contributions before they are disbursed. CF 132, JA 225. 

6. The Spending Purpose Restrictions’

Impact on the LNC 

The Libertarian Party’s ability to influence elections is related to its

ability to raise and spend money. The LNC needs, and would prefer, to

spend its funds directly speaking to the electorate about its ideology and

political mission, supporting its candidates, and building its institutional

capability, including its capability to regularly qualify for the ballot in

various states. CF 89, JA 215-16. The LNC spends the bulk of its

resources obtaining ballot access for its candidates, “probably the most

important thing the [LNC] does.” CF 83; JA 214. 

“Absent the [base] annual contribution limit, the LNC would utilize

donations exceeding such limit for political expression, including

improving the party’s access to ballots, promoting awareness of the party

and its ideology, and supporting candidates for state and federal office.”

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CF 91, JA 216.10 But “potential donors may forego making a contribution

to the national committee of a political party, or reduce the amount of

their contribution, if the uses of that contribution are restricted.” CF 32,

JA 189. 

Indeed, the LNC identified donors who gave the maximum

unrestricted base contribution in 2017 and would have exceeded that

limit but for the segregated spending purpose restrictions. These donors

would exceed the unrestricted base limit in future years, but continue to

refrain from doing so for the same reason. As it turns out, the LNC’s

supporters agree with the LNC that the party should prioritize the

spending of its money speaking for purposes outside those privileged by

the segregated account scheme. FECA’s spending purpose restrictions

cause such donors to reduce the size of their contributions.

The record establishes some manifestations of this injury. Chris Rufer

and Michael Chastain regularly donate to the LNC and to Libertarian

candidates. CF 140, JA 227; CF 149, JA 229. Rufer donated over

10This certified fact cites as its basis LNC Chair Nicholas Sarwark’s

statement about “the base annual contribution limit (currently

$33,900).” JA 76.

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$900,000 to directly support the election of Libertarian candidates in

2016 alone, CF 140, JA 227; and over $280,000 directly to the LNC over

the years, including the maximum amounts allowed by law for

unrestricted purposes in 2012, 2013, 2016 and 2017, CF 143, JA 228. In

2017, Chastain donated the maximum $33,900 in unrestricted funds, and

an additional $26,410.01 to the building fund. CF 152, JA 230. 

Rufer and Chastain trust the LNC to effectively spend funds

advancing its mission, which they support. Because they wish to

maximize the LNC’s unrestrained ability to advocate its message, and

further their involvement with the LNC’s mission, Rufer and Chastain

would donate unrestricted funds in amounts exceeding the unrestricted

contribution limits and the party’s spending for segregated account

purposes were it legal to do so. CF 141, JA 227; CF 146, JA 228-29; CF

147, JA 229; CF 150, JA 229-30; CF 155, JA 231; CF 156, id. Neither

would donate to the LNC to obtain access to or the gratitude of any

candidates or officeholders. Rufer and Chastain would not expect special

access to candidates or officeholders were they to give the LNC over

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$33,900 in a year, restricted to a particular purpose or without

restriction. CF 142, JA 228; CF 151, JA 230.

Rufer and Chastain understand that the government lets them donate

up to $339,000 to the LNC per year, but refrained from giving the LNC

additional money last year because they knew that additional funds

would come with government-imposed strings. CF 144, JA 228; CF 153,

JA 230. Rufer did not want any part of his 2017 contribution restricted

to spending on a headquarters building, fees for election contests and

other legal proceedings, and presidential nominating conventions.

Beyond his contribution to the LNC’s building fund, neither did

Chastain. They did not believe that the LNC had much use for those

spending purposes in 2017, and any money spent for those purposes may

not communicate the same messages that the LNC would otherwise

communicate with their donations. CF 145, JA 228; CF 154, JA 230.

FECA’s spending restrictions do not only impact the LNC’s access to

money from living donors; they impact the LNC’s access to future

testamentary bequests as well. In 2017, Chastain was revising his estate

plan, seeking to make the LNC a contingent beneficiary in the amount of

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$500,000- $1,000,000 to be spent without restriction. Chastain wants no

part of his bequest restricted to spending on a headquarters building,

fees for election contests and other legal proceedings, and presidential

nominating conventions. CF 157, JA 231; CF 158, id.

William Redpath’s last will and testament provides that his estate

would fund a trust charged with furthering ballot access and electoral

reform to benefit the Libertarian Party. Last year, that bequest’s value

would have exceeded $1.1 million. But Redpath would prefer to leave

this seven-figure amount to the LNC without restriction. CF 164, JA

233; CF 165, id. He shares the skepticism about the LNC’s need for

spending on the segregated spending purposes in any given year, which

may not communicate the same messages that the LNC would otherwise

express with an unrestricted bequest. But for the spending purpose

restrictions, Redpath would immediately replace his will’s ballot access

and reform trust with an unrestricted bequest of the equivalent amount

to the LNC. CF 166, JA 233-34.

Neither Chastain nor Redpath would bequeath money to the LNC in

an attempt to affiliate with the party after their deaths. CF 159, JA 231;

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CF 167, JA 234. They have no idea who the Libertarian candidates for

any office might be at the time their estates disburse funds to the LNC,

cannot predict the identity of future candidates, and hope and expect to

live beyond the time through which the party’s candidates and issues

may be currently foreseen. CF 160, JA 232; CF 168, JA 234. Neither

Chastain nor Redpath have received any sort of benefit for promising to

remember the Libertarian Party in their wills should the contribution

limits change. CF 161, JA 232; CF 169, JA 234.

Between 1988 and 2008, Frank Welch Clinard, Jr., sporadically

donated to the LNC, in small amounts totaling $1,625.30. Only three

times did his donations meet or exceed $100, with the highest donation

amounting to $159. CF 171, JA 234-35. Clinard left the LNC an

unrestricted testamentary bequest totaling $111,863.52. CF 170, JA 234;

CF 173, JA 235.

As with Shaber, the LNC is unaware of any relationships between

Clinard, his relatives, or agents, and the LNC, its officers, board

members or candidates, apart from his contribution history. CF 172, JA

235. It gave Clinard nothing of value, apart from pursuing its mission, in

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exchange for the bequest; and would accept and spend the entire bequest

for its general expressive purposes, including expression in aid of its

federal election efforts. The LNC has established an escrow account

toward that end. CF 174, id.; CF 175, id.; CF 176, id. Clinard’s death,

too, prevents him from engaging in political association, expression or

support, and the LNC removed him from its membership rolls on

account of his death. CF 177, id.; CF 178, id.

“The LNC is confident that it could identify and develop additional

donors who would give beyond the base annual contribution limit

(currently $33,900), but refrain from doing so because it is illegal to give

larger amounts without restriction and they do not perceive sufficient

value in donations that carry the government’s purpose restrictions.” CF

92, JA 216. “The LNC would also be better able to attract larger

testamentary bequests if the donors would know that a larger portion of

their bequest would be immediately effective.” Id.

7. Procedural History

The LNC brought this case in the United States District Court for the

District of Columbia, challenging the application of any contribution

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limits to Shaber’s bequest, facially challenging Sections 30116(a)(1)(B)

and 30125 owing to their content-based speech restrictions, and

challenging the content-based restrictions’ application against the

Shaber bequest. JA 7-28. The FEC moved to dismiss the complaint,

arguing that the LNC’s injury (at least with respect to Shaber’s bequest)

was self-inflicted, because it could have accepted the entirety of the

bequest in various segregated spending purpose accounts. The FEC also

claimed that the LNC’s injury was one of competitive disadvantage,

which is neither caused by FECA nor redressable in court.

The District Court denied the FEC’s motion to dismiss. Libertarian

Nat’l Comm. v. FEC, 228 F. Supp. 3d 19 (D.D.C. 2017) (“LNC III”), JA

29-42. “The LNC does not argue” that FECA bars its acceptance of “the

entire Shaber bequest in one lump sum,” but that it could not “accept

the entire bequest for general expressive purposes when the bequest

became available in 2015.” Id. at 25, JA 37. “LNC’s injury is that it

cannot accept money—from Shaber’s bequest and from other donors—

for spending as it wishes.” Id. (internal quotation marks omitted).

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Pointing to the fungible nature of money, see CF 38, JA 192, the FEC

nonetheless argued that the LNC had spent enough money toward the

segregated purposes during the 2014 and 2016 “election cycles” such that

it could have used Shaber’s bequest to offset other funds. “The FEC’s

argument has some surface-level appeal, but does not stand up to

scrutiny.” 228 F. Supp. 3d at 26, JA 39. “Since the bequest became

available in 2015, the LNC’s 2014 and 2016 expenditures are of no

moment.” Id. (footnote omitted). And “the LNC’s total spending in a

given election cycle is a red herring,” because the contribution limits are

annual. Id.

“What matters is that in 2015, LNC spent no money on a presidential

nominating convention, $72,827.11 on its headquarters, and $7,260.61

on legal proceedings, totaling $80,872.72 in segregated purpose

spending.” Id.11 The resulting “overage” would have approximated

$168,000 in money the LNC could not spend in 2015. “[A]ccepting the

entire bequest would not have freed up the full value of the Shaber

11The LNC later corrected the 2015 presidential nominating

convention line, which amounted to a non-material $340.50. JA 78.

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bequest for engaging in federal election activities and resulted in the

alleged injury in 2015.” 228 F. Supp. 3d at 26, JA 39.

Rejecting the FEC’s competitive disadvantage theory, the District

Court “agree[d] with the LNC that the Commission does not afford the

Complaint a fair reading.” Id. at 27 (internal quotation marks omitted),

JA 41. “[T]he FEC cherry-picks certain phrases from the LNC’s

complaint referencing the party’s interest in competing with other

parties,” id., JA 40-41, but its competitive-disadvantage arguments “are

premised on a mischaracterization of the alleged injury and therefore

fail,” Id. (footnote omitted), JA 41.

Following discovery, the LNC moved for fact-finding and certification.

The FEC moved to dismiss for lack of jurisdiction, asserting the

questions were insubstantial. In the alternative, the FEC proposed its

own facts and sought to rephrase the questions. On June 29, 2018, the

District Court denied the FEC’s motion, made 178 factual findings,

certified the LNC’s first question, and certified the LNC’s second and

third questions with some modification. JA 147-235.

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SUMMARY OF ARGUMENT

This Court should allow the LNC to accept Shaber’s bequest as he left

it—without restriction. Given this bequest’s circumstances, nothing

suggests the specter of quid pro quo corruption that might justify

restricting the LNC’s right to accept and spend that money advancing its

political mission.

FECA’s spending restrictions must also yield to First Amendment

requirements. Regardless of whether the new, post-cromnibus FECA’s

party limit may be characterized as a contribution or expenditure limit,

FECA now imposes content-based restrictions on the speech of political

parties. These restrictions, at once both over- and under-inclusive,

cannot survive the strict scrutiny to which they are subject. Nor can

FECA’s newly-restructured party limit survive the heightened “closely

drawn” standards reserved for content-neutral contribution limits, given

its pervasive irrationality and the lack of evidence supporting any logical

relationship to valid anti-corruption interests. 

This Court may remedy the LNC’s injury by either enjoining Section

30116(a)(1)(B)’s political party contribution limit on account of its

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embedded, defective spending purpose restrictions; or it may take the

more-limited option of enjoining just the unconstitutional spending

purpose restrictions, leaving the overall limit in place. The first option is

the most straightforward. The second option has the advantage of

preserving Congress’s decision to maintain, if expand, the contribution

limits while extending that decision’s benefits without unlawful

restrictions. Of course, any action might well prompt Congress to revisit

the issue, with greater care befitting First Amendment speech rights

than could be given in a last-minute cromnibus process. But allowing

this unconstitutional scheme of content-based speech restrictions to

continue hobbling political expression is untenable.

Should this Court nonetheless determine that Shaber’s bequest may

be subject to contribution limits, and should it leave in place the new

content-based restrictions on political parties’ spending, it should at

least require that the government justify application of these restrictions

to Shaber’s bequest. 

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STANDARD OF REVIEW

Per Section 30110, this Court decides the merits in the first instance;

no judgment of the District Court is under review. This Court generally

reviews findings of fact for clear error. See, e.g., United States v. Weaver,

808 F.3d 26, 32 (D.C. Cir. 2015).

ARGUMENT

I. IMPOSING ANNUAL CONTRIBUTION LIMITS AGAINST JOSEPH SHABER’S

BEQUEST VIOLATES THE LNC’S FIRST AMENDMENT RIGHTS.

The LNC maintains that applying campaign contribution limits to

testamentary bequests is always unconstitutional. But having lost that

battle in LNC I, see Certificate as to Parties, Rulings and Related Cases,

supra at ii, Plaintiff does not revisit the matter here. It need not do so to

prevail on its as-applied challenge respecting Shaber’s bequest.

Constitutional litigation is not limited to all-or-nothing propositions.

LNC I properly distinguished an as-applied challenge narrowly focused

on one particular bequest, from a categorical challenge to the limitation

of all bequests. The court below correctly rejected the FEC’s “convoluted

and barely comprehensible argument that . . . LNC I itself forecloses the

LNC’s [Shaber] claim.” JA 160.

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An as-applied challenge contends that a law’s “application to a

particular person under particular circumstances deprived that person of

a constitutional right.” United States v. Marcavage, 609 F.3d 264, 273

(3d Cir. 2010) (citations omitted) (emphases added). As Judge Wilkins

found, Section 30110’s command “to immediately . . . certify all

questions of the constitutionality of this Act” includes the certification of

as-applied challenges concerning particular donations. LNC II, 950 F.

Supp. 2d at 60 (internal quotation marks omitted). After all, were the

LNC to take Shaber’s full bequest today, it could seek certification of an

as-applied challenge in defense of an enforcement action. Id. at 60-61.

And the Supreme Court has “allowed individualized as-applied First

Amendment challenges to expenditure restrictions.” Id. at 61; see Wis.

Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam); Mass.

Citizens for Life v. FEC, 479 U.S. 238 (1986).

A. The LNC Has A First Amendment Right to Receive

Contributions.

LNC I rejected the notion that decedents or their estates have a right

to make contributions, but found that a meaningful question existed as

to whether the LNC had a First Amendment right to receive a

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contribution. LNC I, 930 F. Supp. 2d at 170-71. The Supreme Court long

ago implied a First Amendment speech right to receive campaign

contributions, by confirming that such contributions are a necessary

prerequisite for engaging in political advocacy. “[V]irtually every means

of communicating ideas in today’s [1976] mass society requires the

expenditure of money.” Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per

curiam). Laws limiting a political party’s receipt of printing presses,

broadcasting equipment, or internet servers would doubtless be viewed

as implicating speech rights. 

The Supreme Court may have resolved the issue in McCutcheon v.

FEC, 572 U.S. 185 (2014), where the RNC prevailed alongside its donor

on the argument that it had a First Amendment right “to receive the

contributions that [its donors] would like to make . . . .” Id. at 195.

Indeed, LNC I might have relied on Speechnow.org v. FEC, 599 F.3d 686

(D.C. Cir. 2010) (en banc), where the first certified question asked

“[w]hether the contribution limits . . . violate the First Amendment by

preventing David Keating, SpeechNow.org’s president and treasurer,

from accepting contributions to SpeechNow.org in excess of the limits . .

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. .” Id. at 690. This Court answered that the limits at issue indeed

“violate[d] the First Amendment . . . by prohibiting SpeechNow from

accepting donations in excess of the limits.” Id. at 696.

This Court is not alone in upholding a First Amendment right to

accept political contributions. “[B]oth the contributing and the

contributed-to party have sufficient injuries-in-fact to challenge

campaign finance restrictions.” Catholic Leadership Coalition of Tex. v.

Reisman, 764 F.3d 409, 423 (5th Cir. 2014) (citations omitted); Texans

for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013)

(substantial likelihood of success on claim that law “violates [political

committee’s] right to free speech by prohibiting it from accepting funds

from corporations”); see also Wis. Right to Life State PAC v. Barland,

664 F.3d 139, 154 (7th Cir. 2011); Long Beach Area Chamber of

Commerce v. City of Long Beach, 603 F.3d 684, 698-99 (9th Cir. 2010),

abrogated in part on other grounds, Farris v. Seabrook, 677 F.3d 858,

865 n.6 (9th Cir. 2012); see also Dean v. Blumenthal, 577 F.3d 60, 69-70

(2d Cir. 2009) (per curiam).

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B. Testamentary Contributions Implicate Speech,

Not Associational Rights.

“When an individual contributes money to a candidate, he exercises

both [rights of political expression and political association]: The

contribution ‘serves as a general expression of support for the candidate

and his views’ and ‘serves to affiliate a person with a candidate.’”

McCutcheon, 572 U.S. at 203 (quoting Buckley, 424 U.S. at 21-22). But

testamentary bequests are fundamentally different. As the District Court

found, Shaber’s death ended his expression and association; the LNC,

which does not associate with the dead, removed Shaber from its

membership rolls. CF 118, JA 223; CF 134, JA 226.

None of this suggests that the LNC would lack standing to assert the

expressive aspects of Shaber’s bequest. “For obvious reasons, it has long

been recognized that the surviving claims of a decedent must be pursued

by a third party.” Hodel v. Irving, 481 U.S. 704, 711 (1987). The LNC

would respectfully disagree with LNC I ’s determination, 930 F. Supp. 2d

at 169-70, that a deceased donor’s last will and testament lacks First

Amendment protection for its expressive aspect. See, e.g., David Horton,

Testation and Speech, 101 Geo. L. J. 61 (2012).

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But while ordinarily, “contribution limits may bear more heavily on

the associational right than on freedom to speak,” McConnell v. FEC,

540 U.S. 93, 135 (2003) (internal quotation marks omitted), they do not

implicate associational rights at all when applied against testamentary

bequests. “[I]n the literal sense, the FECA restriction (as enforced by the

FEC) on [testamentary bequests] is not a ‘contribution limit involving

significant interference with associational rights [that] must be closely

drawn to serve a sufficiently important interest.’” LNC I, 930 F. Supp.

2d at 169 (quoting Speechnow.org, 599 F.3d at 692). This case concerns

primarily the LNC’s speech rights with respect to the Shaber bequest,

triggering a higher standard of review.

C. The FEC Cannot Meet Its Burden in Restricting

the LNC’s Access to Shaber’s Bequest, Because Shaber’s

Bequest Raises No Corruption Concerns.

The LNC does not revisit LNC I’s holding that testamentary bequests

may theoretically raise corruption concerns, thus generally warranting

their subjection to FECA’s contribution limits. But this as-applied

challenge asks whether Shaber’s bequest, specifically, warrants

government limitation. The FEC bears the burden of showing it does.

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That the government bears the burden under any form of heightened

scrutiny is by now axiomatic. And so it is in the campaign finance field.

Even in cases of living donors, where contribution limits are said to

primarily implicate associational rather than speech rights, limits “may

be sustained if the State demonstrates a sufficiently important interest

and employs means closely drawn to avoid unnecessary abridgment of

associational freedoms.” Buckley, 424 U.S. at 25 (emphasis added); JA

162 n.10.

The LNC submits that with respect to political contributions, as in

other ways, the dead differ materially from the living, and thus raise

different indicia of potential corruption and a different level of concern.

As the court below found, “LNC I’s recognition of the mere ‘possib[ility]’

that a bequest may ‘raise valid anti-corruption concerns,’ suggests if

anything that most bequests do not raise valid corruption concerns, and

that bequests only rarely raise the corruption concerns necessary to

justify the contribution limits’ application.” JA 162 (quoting LNC I, 930

F. Supp. 2d at 166).

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In evaluating a testamentary bequest, the corruption inquiry is wholly

retrospective. And barring supernatural intervention, the potential for

quid pro quo activity is rather more limited than in the case of a living

donor, as are prospects for its enforcement. Regardless of what the LNC

might do for Shaber now, he will give it nothing more or less than his

bequest. The FEC could only look back on Shaber’s now-terminated

relationship with the LNC, in an attempt to identify some meaningfully

suspicious connection between his bequest and the LNC’s conduct.

The FEC indeed availed itself of the fair opportunity to conduct

discovery of Shaber’s estate, the LNC, and even a federal campaign to

which Shaber donated. Its fishing expedition turned up nothing. Shaber

was just an ordinary Libertarian donor who could afford to be more

generous to his party when he no longer had use for money. His “$3,315

donated over 24 years is a drop in the bucket relative to current law’s

annual limit of $33,900 for [unrestricted purposes], and an even smaller

drop relative to the limit of $339,000 that individuals may contribute for

either general or specialized purposes.” JA 166-67 (citations omitted).

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The LNC knew nothing of Shaber’s bequest before he died. JA 165;

CF 115, JA 222. Apart from his modest donations, “neither Mr. Shaber

nor any of his associates and loved ones had any known relationship to

the LNC or its board members, officers, or candidates.” JA 165-66; CF

129, JA 225. “[T]he LNC has given nothing tangible of value to Mr.

Shaber or his associates and loved ones.” JA 166; CF 133, JA 225.

Nothing suggests that Shaber timed his highly-contingent gift (largely, a

share of property itself contingent on the prospect of grandchildren), CF

116, JA 223; CF 120, id., as part of some quid pro quo arrangement.

Even had Shaber’s bequest ingratiated him to the LNC and afforded him

access to its candidates, the party’s lack of federal officeholders limited

its ability to offer him any political favors. CF 4, JA 182. “Ingratiation

and access, in any event, are not corruption.” Citizens United v. FEC,

558 U.S. 310, 360 (2010).

The FEC’s prospects for meeting its heightened scrutiny burden

ended when the District Court found that “[t]he FEC is unaware at this

time of any quid pro quo arrangement related to Mr. Shaber’s bequest to

the LNC.” CF 125, JA 224. When “there is no corrupting ‘quid’ for

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which a candidate might in exchange offer a corrupt ‘quo’ . . . we must

conclude that the government has no anti-corruption interest in limiting

contributions . . . .” SpeechNow, 599 F.3d at 694-95. “Even a modest

burden on one’s ability to raise funds may be undue if such burden

serves no corruption concern whatsoever.” JA 161 n.9. Since “something

outweighs nothing every time,” Speechnow, 599 F.3d at 695 (internal

quotation marks and punctuation omitted), the “something” of the

LNC’s substantial First Amendment interest in accepting Shaber’s

contribution outweighs the FEC’s nothing.

II. FECA, ON ITS FACE, VIOLATES THE LNC’S FIRST AMENDMENT

RIGHTS BY RESTRICTING THE LNC’S SPENDING OF CONTRIBUTIONS

ABOVE SECTION 30116(A)(1)(B)’S BASE GENERAL PURPOSE LIMIT TO

THOSE SPECIALIZED PURPOSES ENUMERATED IN SECTION

30116(A)(9).

“[T]he First Amendment has its fullest and most urgent application

to speech uttered during a campaign for political office.” Ariz. Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (internal

quotation marks and citations omitted). And at any time, “[t]he

independent expression of a political party’s views is ‘core’ First

Amendment activity no less than is the independent expression of

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individuals, candidates, or other political committees.” Colo. Republican

Fed. Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996) (opinion of

Breyer, J.) (citation omitted).

A political party’s independent expression not only reflects its

members’ views about the philosophical and governmental matters

that bind them together, it also seeks to convince others to join those

members in a practical democratic task, the task of creating a

government that voters can instruct and hold responsible for

subsequent success or failure.

Id. at 615-16. FECA’s new content-based spending restrictions do not

respect the LNC’s First Amendment speech rights.

A. FECA’s New Regime for Limiting Contributions to 

Political Parties Imposes Expenditure Restrictions 

Subject to Strict Scrutiny.

The LNC would not have brought, and the District Court would not

have certified, a challenge to the sort of contribution limits that the

Supreme Court upheld in McConnell. LNC I made no such claim against

pre-cromnibus FECA. But the 2014 cromnibus amendments radically

altered FECA’s nature and structure. As the Supreme Court said of

another provision reviewed for the first time, “[w]e are confronted with a

different statute and different legal arguments, at a different point in the

development of campaign finance regulation.” McCutcheon, 572 U.S. at

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203. Congress transformed FECA from a contribution limit to, at best, a

hybrid contribution/expenditure limit.

The FEC argued below that the Supreme Court “defined how to

distinguish between a contribution limit and an expenditure limit” by

looking to the restriction’s impact on speech, with a contribution limit’s

“hallmark” being that it “entails only a marginal restriction upon the

contributor’s ability to engage in free communication.” FEC Br., Dist.

Ct. Dkt. 26 at 13 (quoting Buckley, 424 U.S. at 20).

The FEC erred. The Court may have “distinguished expenditure

limits from contribution limits based on the degree to which each

encroaches upon protected First Amendment interests,” McCutcheon,

572 U.S. at 196-97, but that distinction is not defining; it only explains

why expenditure and contribution limits warrant different levels of

scrutiny. To the extent the Court defined these terms, it referred to an

expenditure limit as “[a] restriction on the amount of money a person or

group can spend on political communication during a campaign,”

Buckley, 424 U.S. at 19, and it referred to a contribution limit as “a

limitation upon the amount that any one person or group may contribute

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to a candidate or political committee,” id. at 20; see also id. at 13. And as

this Court recently explained, “[a] contribution limit necessarily contains

two essential ingredients: (i) a monetary cap, and (ii) a time period.”

Holmes v. FEC, 875 F.3d 1153, 1161 (D.C. Cir. 2017) (en banc).

McConnell supplies a test for distinguishing the two types of limits.

Rejecting charges that the previous “soft money” ban effected an

expenditure limit, the Supreme Court explained that 

[I]t is irrelevant that Congress chose . . . to regulate contributions on

the demand rather than the supply side. The relevant inquiry is

whether the mechanism adopted to implement the contribution limit,

or to prevent circumvention of that limit, burdens speech in a way

that a direct restriction on the contribution itself would not.

McConnell, 540 U.S. at 138-39 (citation omitted) (emphasis added). As

an example, the Court offered that the previous soft money ban was a

contribution limit, because it did not “in any way limit[] the total

amount of money parties can spend.” Id. at 139 (citations omitted).

Under McConnell’s test, Section 30116(a)(1)(B) now imposes an

expenditure limit on political parties. To be sure, this provision still

limits contributions, but the amounts that parties may accept today

depend on how the money is “used.” Sections 30116(a)(9)(A), (B), and

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(C); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) (First

Amendment scrutiny applies where “the conduct triggering coverage

under the statute consists of communicating a message”). A “direct

restriction on the contribution itself,” McConnell, 540 U.S. at 139, would

simply limit annual contributions to $X, as before. The current

restrictions burden speech in a way that direct contribution restrictions

would not, id., because they make a contribution legal or illegal

depending on the content of the funded speech.

The new statute also limits “the total amount of money that can be

spent,” id., as shown by the FEC’s first unsuccessful motion to dismiss.

The LNC could have deposited the entirety of Shaber’s bequest in

various segregated accounts when it became available in 2015, but it

would have still been unable to spend approximately $168,000 that year,

LNC III, 228 F. Supp. 3d at 26, JA 39. The District Court thus erred in

offering that McConnell forecloses description of the current limit as an

expenditure limit, JA 169-70, a determination that, in any event, Section

30110 leaves to this Court. Yet the District Court correctly found that

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“[t]he specialized purpose regime is neither a pure contribution limit nor

a pure expenditure limit, but contains elements of both . . . .” JA 169.

The LNC respects the fact that tremendous litigation and judicial

resources have been expended in determining that FECA’s soft money

ban on political party contributions was a contribution limit. In LNC I, it

let the matter lie. But Congress has since restructured the provision to

include what McConnell would plainly describe as expenditure limits. 

“[W]e should not transplant the reasoning of cases upholding

ordinary contribution limitations to a case involving FECA’s restrictions

on political party spending.” Colo. Republican, 518 U.S. at 629

(Kennedy, J., concurring in the judgment and dissenting in part).

Expenditure limits are subject to “the exacting scrutiny applicable to

limitations on core First Amendment rights of political expression.”

McCutcheon, 572 U.S. at 197 (quoting Buckley, 424 U.S. at 44-45).

B. Even if Viewed as Imposing a Pure Contribution Limit,

FECA’s New Regime for Limiting Contributions to 

Political Parties Imposes Content-Based Restrictions 

Subject to Strict Scrutiny.

The purposes to which the segregated accounts are restricted each

have particular expressive aspects. Although it cannot “know[] the goals

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of every presidential nominating convention[] . . . the FEC admits that

promoting the election of a party’s federal candidates has been a goal of

many recent presidential nominating conventions.” JA 51. It admits that

“[f]unds spent on conducting a presidential nominating convention may

influence the outcome of federal elections, by persuading voters who

attend or watch the convention to vote for or against the candidates

featured at that convention.” Id. And “the FEC admits that public

statements of those at presidential nominating conventions often express

support for the nominated candidates and opposition to those

candidates’ opponents.” JA 52.

A building may make an architectural statement consistent with the

party’s mission, CF 15, JA 184, and display political signs, CF 16, JA

185. The FEC “admit[s] that funding for a political party’s headquarters

building assists the party in expressing its views.” JA 52. Litigation for

political ends is “a form of political expression.” NAACP v. Button, 371

U.S. 415, 429 (1963). The FEC admits that “election-related litigation

may affect the ultimate victor of an election.” JA 52.

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The spending purpose restrictions directly limit how the LNC may

express itself, in preparation for and during political campaigns, based

on the subject matter, function, or purpose of its speech. The LNC is

allowed to accept contributions to fund its political activities, but may

only use them towards the purposes and in the amounts ordained by

Congress. Consider a $33,901 contribution, which exceeds the base

unrestricted limit by one dollar: if the LNC speaks as it wishes with that

contribution, distributing pamphlets about the party’s ideology or

supporting a non-presidential candidate, the contribution is illegal. If the

LNC spends one dollar of that same contribution broadcasting its

presidential nominating convention, hanging a sign on its building, or

litigating an election contest, the contribution is legal.

Donating $101,700, the maximum segregated purpose limit, for any of

these latter purposes is perfectly legal, as would be a $305,100 donation

divided equally for each of these purposes; donating $101,700 to

broadcast movies about the party’s ideology—or its midterm, nonpresidential conventions, is illegal. And as the FEC helped demonstrate

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with its first motion to dismiss, the amount of speech the LNC may

exercise turns on that speech’s content.

“[A]bove all else, the First Amendment means that government has

no power to restrict expression because of its message, its ideas, its

subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 95 (1972). “Content-based laws—those that target speech based

on its communicative content—are presumptively unconstitutional and

may be justified only if the government proves that they are narrowly

tailored to serve compelling state interests.” Reed v. Town of Gilbert, 135

S. Ct. 2218, 2226 (2015) (citations omitted). “Facial distinctions based on

message, whether they regulate the speech’s subject matter, function, or

purpose, are content based and so subject to strict scrutiny.”

A.N.S.W.E.R. Coal. v. Basham, 845 F.3d 1199, 1208 (D.C. Cir. 2017)

(citing Reed, 135 S. Ct. at 2227). Strict scrutiny also applies “when the

purpose and justification for the law are content based.” Reed, 135 S. Ct.

at 2228).

Characterizing FECA’s revised contribution limit as a pure

contribution limit does not alter the fact that it “target[s] speech based

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on its communicative content,” Reed, 135 S. Ct. at 2226, “by particular

subject matter, and . . . by its function or purpose,” id. at 2227. There is

no “contribution limit” exception to the content-based discrimination

doctrine. Nor would fabricating such an exception assist the FEC.

McConnell upheld the pre-cromnibus soft money ban precisely because it

was content-neutral. “[L]arge soft-money contributions to national

parties are likely to create actual or apparent indebtedness on the part of

federal officeholders, regardless of how those funds are ultimately used.”

McConnell, 540 U.S. at 155 (emphasis added). Courts have since invoked

content-neutrality in upholding contribution limits. See Republican

Party of La. v. FEC, 219 F. Supp. 3d 86, 97 (D.D.C. 2016) (three-judge

panel), aff’d, 137 S. Ct. 2178 (2017) (state party committees); Republican

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C. 2010) (threejudge panel), aff’d, 561 U.S. 1040 (2010).

But that logic works only if the parties get to decide how to spend

their money for expressive purposes—as the District Court described the

pre-cromnibus state of affairs “[w]ith respect to national political

parties,” when contribution limits “appl[ied] regardless of how a

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national party might want to use the money.” Republican Nat’l Comm.,

698 F. Supp. 2d at 153. That was then, this is now: FECA’s contribution

limit depends on how a national party uses its money, regardless of

whether courts might describe the limit as a “contribution limit,”

“expenditure limit,” or a hybrid. As the District Court explained,

[T]he LNC’s second question raises an issue less akin to a traditional

challenge to a contribution limit than to a challenge to a statute

alleged to restrict speech on the basis of content. As such, the

appropriate framework for review is that governing content-based

restrictions on speech, requiring [strict scrutiny], rather than the

contribution limit framework.

JA 170-71 (citations omitted). However one slices it, FECA imposes

content-based speech discrimination. It is subject to strict scrutiny.

C. FECA’s New Regime for Limiting Contributions to Political

Parties Fails Any Level of First Amendment Scrutiny.

The choice between strict or intermediate “closely drawn” scrutiny is

ultimately inconsequential. “[R]egardless whether we apply strict

scrutiny or Buckley’s ‘closely drawn’ test, we must assess the fit between

the stated governmental objective and the means selected to achieve that

objective. Or to put it another way, if a law that restricts political speech

does not avoid unnecessary abridgement of First Amendment rights, it

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cannot survive ‘rigorous’ review.” McCutcheon, 572 U.S. at 199 (citations

and internal quotation marks omitted).

Unlike the “soft money” ban reviewed in McConnell, FECA’s “Other

Matters” cromnibus amendments were not produced by the sort of factfinding, analysis, and reasoned deliberation that might overcome

heightened scrutiny. If anyone in Congress believed, or even considered,

that the segregated spending purpose structure is tailored to addressing

corruption while respecting First Amendment rights, those views

warranted discussion. The cromnibus amendments reflect no “historical

pedigree,” Wagner v. FEC, 793 F.3d 1, 10 (D.C. Cir. 2015) (en banc)

(“Wagner II”) (internal quotation marks omitted), no “century of careful

legislative adjustment.” Id. at 14.

Nor can it be argued that “Congress and outside experts have

generated significant evidence corroborating [a] rationale” for FECA’s

spending purpose restrictions, “and [that] the only reason we do not

have any of the relevant materials before us is that the Government had

no reason to develop a record.” Citizens United, 558 U.S. at 457

(Stevens, J., dissenting). Congress and outside experts have generated

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nothing. Discovery yielded nothing, and the FEC has introduced nothing

by way of relevant evidence into the record. The FEC has not “assembled

an impressive, if dismaying, account,” Wagner II, 793 F.3d at 17, of why

FECA’s spending restrictions are needed. Nothing shows why a sixfigure gift ostensibly restricted to promoting presidential candidates,

which is in any event completely fungible for the large parties, is less

corrupting than an unrestricted gift one-third its size.

In the absence of any real evidence, the FEC hypothesized a rationale.

It mused that unlike contributions restricted to spending on presidential

conventions, building, and litigation, unrestricted contributions “may be

used for activities that maximally benefit federal candidates and thus

may pose a relatively more acute danger of actual and apparent

corruption.” CF 37, JA 191-92. “Congress could have permissibly

concluded” that this risk justifies the restricted spending scheme. CF 37,

JA 191 (emphasis added). Whether Congress reached that conclusion is a

matter of pure speculation and, given the known circumstances,

exceedingly unlikely. To be sure, this Court cannot “accept[] the

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Government’s conclusive presumption that all party expenditures are

‘coordinated.’” Colo. Republican, 518 U.S. at 619. 

In any event, the FEC’s claim is irrational. Even were money not

fungible, rendering these distinctions irrelevant for parties (e.g., the

Republican and Democratic parties) whose designated purpose spending

matches or exceeds their “restricted” contributions, the designated

spending purposes are plainly capable of “maximally benefit[ing] federal

candidates.”

The whole point of presidential nominating conventions is to

“maximally benefit” candidates for President and Vice-President, by

selecting and showcasing them. Such soirees regularly promote other

federal officeholders and candidates as well. Parties can use buildings to

feature signs and other displays supporting particular candidates. And

winning an election recount or contest surely provides federal candidates

a “maximum benefit.”

To borrow the FEC’s language, contributions funding presidential

conventions or election contests are obvious examples of contributions

“that directly benefit a particular candidate or can be spent directly on a

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particular election contest,” thus “pos[ing] an especially acute risk

warranting a lower dollar limit.” CF 36, JA 191 (emphasis added).

Indeed—the FEC literally contradicts the logic of Section 30116(a)(9)(C),

which allows donations up to 300% of the base limit to fund “election

recounts or contests.”

Strict scrutiny does not allow content-based speech restriction on such

a weak “this-on-the-one-hand, that-on-the-other” rationale. Neither does

“closely drawn” scrutiny. “The quantum of empirical evidence needed to

satisfy heightened judicial scrutiny of legislative judgments will vary up

or down with the novelty and plausibility of the justification raised.”

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). Here, the

novelty is high, and the plausibility of the FEC’s (not Congress’s)

hypothesized justification is low. “We have never accepted mere

conjecture as adequate to carry a First Amendment burden,” id. at 392,

but mere conjecture is all that the FEC can offer.

“Congress could have permissibly concluded,” because this dubious

distinction “may” be true, is the language of the rational basis test. But

under heightened constitutional review, the government’s “justification

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must be genuine, not hypothesized or invented post hoc in response to

litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). Where

First Amendment rights are at stake, the government cannot “get away

with shoddy data or reasoning.” City of Los Angeles v. Alameda Books,

Inc., 535 U.S. 425, 438 (2002) (plurality opinion). “[T]here must be

evidence; lawyers’ talk is insufficient.” Annex Books, Inc. v. City of

Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009).

The “lawyers’ talk” here is bewildering. Are radically-higher but

lawful, restricted contributions more potentially corrupting than lower,

unrestricted contributions? Yes and no. Parties might “value a

contribution with use restrictions more highly than a smaller

contribution without such restrictions.” CF 39, JA 192; CF 40, id. The

FEC asserts that “generally,” larger contributions are more potentially

corrupting “regardless of how the money is spent”—until now, the

prevailing logic of imposing contribution limits—and yet, in the same

breath, this is not “true as a general matter,” because parties allegedly

value unrestricted contributions more than restricted contributions. CF

41, JA 193-94.

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But it cannot be that parties generally favor unrestricted

contributions in the current scheme, because as the District Court found,

CF 38, JA 192, money is fungible. If the “restricted” contribution merely

offsets general account spending that would have occurred anyway, the

“restricted” contribution is, for all intents and purpose, unrestricted,

and its size is more relevant than its restriction. And the congressional

record is not silent as to members’ appreciation of this point. As Rep.

Slaughter remarked, “those of us in the political field know what it

means to have the housekeeping accounts: that means it can go for

absolutely anything.” 160 Cong. Rec. H9068 (daily ed. Dec. 11, 2014)

(statement of Rep. Slaughter). Senators Manchin and Wyden completely

disregarded the spending restrictions in describing the cromnibus

amendments as raising the contribution limit to party committees by a

factor of ten. 160 Cong. Rec. S6812 (daily ed. Dec. 13, 2014) (statement of

Sen. Manchin); 160 Cong. Rec. S6860 (daily ed. Dec. 15, 2014)

(statement of Sen. Wyden).

Rather than dispute this point, the FEC made it the centerpiece of its

first motion to dismiss. It tried to jam the round peg of the LNC’s minor55

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party math into Section 30116(a)(9)’s square segregated spending hole,

hoping to show that the LNC could have winked and nudged its way

around the spending restrictions to accept Shaber’s bequest in full.

But as the District Court held in LNC III, the math did not work for

the LNC with respect to Shaber. It also does not work out for Rufer, or

Chastain, or Redpath, or Clinard, and it may not work out for any donor

who would give the LNC an amount greater than the general purpose

limit, but within the total contribution limit. The LNC speaks relatively

little in the ways and on the subjects that Congress has advantaged.

Congress has placed the FEC in the impossible position of trying to

parse, from nothing, a coherent rationale that might explain how the

cromnibus spending purpose restrictions, with all their inherent

contradictions, might be narrowly tailored or closely drawn to relevant

corruption concerns. It is one thing to generalize that larger

contributions pose a greater risk, and for that reason, impose a simple

contribution limit. Restricting how a party spends 90% of a contribution,

in 30% tranches tied to presidential nominating conventions, buildings,

and litigation, cannot be explained on a corruption-fighting rationale.

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For all its vacillation, the FEC has admitted that no answer exists. To

review: the essential truth is that “[a]ll contributions to political parties

can create the risk of corruption or its appearance regardless of the way

that money is ultimately spent . . . .” CF 36, JA 191 (emphasis in

original). The FEC “rejects the premise that a contribution of any

particular dollar value is ‘corrupting’ but that lower values are not

‘corrupting.’” CF 34, JA 189-90.

But if the line at which corruption concerns overtake First

Amendment rights is to be set, it must be set somewhere. And the iron

fact of this case is, for good or ill, Congress has set that line at $339,000

per year from any one person. A contribution of $101,700 for any

designated spending purpose (let alone a lawful $305,100 contribution

for all three of them) might well “appear as corrupt as or more corrupt

than” an unlawful-by-one-dollar $33,901 unrestricted contribution. CF

43, JA 195. Yet it is lawful.

How to discern the potential corruption levels within the overall

limit? It depends on any number of shifting, case-specific factors,

including “the financial needs and goals of the receiver including as to

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the types of spending for which segregated account funds might be

used.” Id. The LNC submits that FECA’s massively-privileged special

spending purposes align with “the financial needs and goals” of the

incumbent parties, as some members of Congress declared. In any event,

they do not align with the LNC’s expressive goals. The statute plainly

sweeps too broadly.

Congress acted within its power to raise the contribution limit for

political parties. But all the evidence indicates a complete absence of

tailoring between the spending restrictions and corruption concerns.

Congress thus violated the First Amendment by imposing content-based

restrictions on the parties’ speech.

III. FECA VIOLATES THE LNC’S FIRST AMENDMENT RIGHTS BY

RESTRICTING THE LNC’S SPENDING OF THAT PORTION OF SHABER’S

BEQUEST EXCEEDING SECTION 30116(A)(1)(B)’S BASE GENERAL

PURPOSE LIMIT TO THOSE SPECIALIZED PURPOSES ENUMERATED IN

SECTION 30116(A)(9).

Even if this Court believes that Shaber’s bequest raises an appearance

of corruption, and even if this Court believes that FECA satisfies

heightened scrutiny notwithstanding its pervasive content-based

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discrimination, the question would nonetheless arise: what justifies

applying the spending restrictions against Shaber’s bequest?

Because nothing justifies applying contribution limits against

Shaber’s bequest, and nothing justifies FECA’s content-based

discrimination, nothing plus nothing equals nothing. The FEC has not

established why the special spending purpose restrictions should be

applied, in particular, as against Shaber’s bequest, even if they contain

some generally applicable logic.

IV. THE COURT SHOULD EITHER ENJOIN FECA’S POLITICAL PARTY

CONTRIBUTION LIMIT, OR EXCISE THE LIMIT’S SPENDING PURPOSE

RESTRICTIONS.

The injuries inflicted by FECA’s content-based spending restrictions

are redressable in two ways. The first is the most straightforward:

enjoining the defective contribution limit of Section 30116(a)(1)(B) and

concurrent operation of Section 30125.12 Congress could re-impose a

contribution limit consistent with current constitutional precedent if it

12

If only Section 30116(a)(1)(B) were enjoined, political parties

could not raise or spend any money at all given Section 30125’s language

barring funds not subject to FECA’s limits.

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wished—and it probably would before this Court’s mandate could issue.13

This option ensures that the Court would not “rewrite a statute and give

it an effect altogether different from that sought by the measure viewed

as a whole.” Murphy v. NCAA, 138 S. Ct. 1461, 1482 (2018) (internal

quotation marks omitted).

But “[g]enerally speaking, when confronting a constitutional flaw in a

statute, we try to limit the solution to the problem, severing any

problematic portions while leaving the remainder intact.” Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010)

(internal quotation marks omitted). And so the Court might also excise

the spending purpose restrictions, respecting Congress’s desire to

maintain an overall limit at the level it found typically palatable.

“The inquiry into whether a statute is severable is essentially an

inquiry into legislative intent.” Minn. v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 191 (1999) (citation omitted). FECA’s 

severability clause, Section 30144, “creates a presumption that Congress

13The LNC maintains that “Congress shall make no law . . .

abridging the freedom of speech,” U.S. Const. amend. I, but this case

does not challenge Buckley.

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did not intend the validity of the statute in question to depend on the

validity of the constitutionally offensive provision.” Alaska Airlines, Inc.

v. Brock, 480 U.S. 678, 686 (1987) (citations omitted). Absent “strong

evidence that Congress intended otherwise, the objectionable provision

can be excised from the remainder of the statute.” Id.

“We seek to determine what Congress would have intended in light of

the Court's constitutional holding. Would Congress still have passed the

valid sections had it known about the constitutional invalidity of the

other portions of the statute?” United States v. Booker, 543 U.S. 220, 246

(2005) (internal quotation marks omitted). “[A] court should refrain

from invalidating more of the statute than is necessary.” Alaska Airlines,

480 U.S. at 684 (internal quotation marks omitted). “Unless it is evident

that the Legislature would not have enacted those provisions which are

within its power, independently of that which is not, the invalid part

may be dropped if what is left is fully operative as a law.” Id. (quoting

Buckley, 424 U.S. at 108). “We ordinarily give effect to the valid portion

of a partially unconstitutional statute so long as it remains fully

operative as a law, and so long as it is not evident from the statutory text

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and context that Congress would have preferred no statute at all.” Exec.

Bens. Ins. Agency v. Arkison, 134 S. Ct. 2165, 2173 (2014) (internal

quotation marks omitted).

Leaving the current total contribution limit in place, while excising

the spending purpose restrictions, would yield a result that is both

constitutional under existing precedent, and easily workable. And while

the precise balance Congress would have struck, had it cared to avoid

content-based speech restrictions, is unknowable, some of Congress’s 

preferences are obvious.

First and foremost, Congress found the old limits insufficient. The

statement of intent, supra at 7, offered that at least a third of the limit

increase was necessitated by the loss of public financing for presidential

nominating conventions. Presumably the increasing fundraising targeted

toward headquarters buildings and litigation.

Second, Congress has always been aware of money’s fungible nature.

Some members opposed the limit expansion on these grounds, but any

corruption risk at these levels must have been acceptable to Congress,

because the measure passed. And Congress must have intended that the

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moneys contributed to the segregated spending accounts was money that

at least the two major parties would have to spend; why else would it be

donated? There is no evidence, let alone “strong evidence,” Alaska

Airlines, 480 U.S. at 686, that Congress would prefer to return to the old

limits, or have no limits at all, as the price of foregoing the

unconstitutional spending purpose restrictions.

Because the Court can “clearly . . . articulate[] the background

constitutional rules at issue and . . . easily . . . articulate the remedy,” it

can excise the spending purpose restrictions without performing

“quintessentially legislative work.” Ayotte v. Planned Parenthood, 546

U.S. 320, 329 (2006). And to the extent that Congress could be viewed as

having increased the contribution limit in an underinclusive manner,

excising the problematic spending restrictions would be consistent with

the judicial preference for extending benefits, “rather than

nullification.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1699 (2017)

(internal quotation marks omitted).

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CONCLUSION

All three certified questions should be answered in the affirmative.

The Court should direct the entry of appropriate declaratory and

injunctive relief.

Dated: September 10, 2018 Respectfully submitted,

/s/ Alan Gura

Alan Gura

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because this brief contains 11,688

words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii) and Circuit Rule 32(a)(1).

This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal

Rule of Appellate Procedure 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using Corel WordPerfect in

14-point Century Schoolbook font.

/s/ Alan Gura

Alan Gura

USCA Case #18-5227 Document #1749912 Filed: 09/10/2018 Page 80 of 90
Addendum

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ADDENDUM TABLE OF CONTENTS

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

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

52 U.S.C. § 30116(a)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

52 U.S.C. § 30116(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. § 30116(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

52 U.S.C. § 30125(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

USCA Case #18-5227 Document #1749912 Filed: 09/10/2018 Page 82 of 90
52 U.S.C. § 30110

Judicial review

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

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

institute such actions in the appropriate district court of the United

States, including actions for declaratory judgment, as may be appropriate

to construe the constitutionality of any provision of this Act. The district

court immediately shall certify all questions of constitutionality of this

Act to the United States court of appeals for the circuit involved, which

shall hear the matter sitting enbanc.

52 U.S.C. § 30116

Limitations on contributions and expenditures

(a) Dollar limits on contributions.

(1) Except as provided in subsection (i) and section 315A [52

USCS § 30117], no person shall make contributions–

* * *

(B) to the political committees established and maintained

by a national political party, which are not the

authorized political committees of any candidate, in any

calendar year which, in the aggregate, exceed $ 25,000,

or, in the case of contributions made to any of the

accounts described in paragraph (9), exceed 300 percent

of the amount otherwise applicable under this

subparagraph with respect to such calendar year;

* * *

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(9) An account described in this paragraph is any of the following

accounts:

(A) A separate, segregated account of a national committee of

a political party (other than a national congressional

campaign committee of a political party) which is used solely

to defray expenses incurred with respect to a presidential

nominating convention (including the payment of deposits) or

to repay loans the proceeds of which were used to defray such

expenses, or otherwise to restore funds used to defray such

expenses, except that the aggregate amount of expenditures

the national committee of a political party may make from

such account may not exceed $ 20,000,000 with respect to any

single convention.

(B) A separate, segregated account of a national committee of

a political party (including a national congressional campaign

committee of a political party) which is used solely to defray

expenses incurred with respect to the construction, purchase,

renovation, operation, and furnishing of one or more

headquarters buildings of the party or to repay loans the

proceeds of which were used to defray such expenses, or

otherwise to restore funds used to defray such expenses

(including expenses for obligations incurred during the 2-year

period which ends on the date of the enactment of this

paragraph).

(C) A separate, segregated account of a national committee of

a political party (including a national congressional campaign

committee of a political party) which is used to defray

expenses incurred with respect to the preparation for and the

conduct of election recounts and contests and other legal

proceedings.

* * *

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(c) Increases on limits based on increases in price index.

(1) (A) At the beginning of each calendar year (commencing in

1976), as there become available necessary data from the

Bureau of Labor Statistics of the Department of Labor, the

Secretary of Labor shall certify to the Commission and

publish in the Federal Register the percent difference

between the price index for the 12 months preceding the

beginning of such calendar year and the price index for the

base period.

(B) Except as provided in subparagraph (C), in any calendar

year after 2002--

(i) a limitation established by subsections (a)(1)(A),

(a)(1)(B), (a)(3), (b), (d), or (h) shall be increased by the

percent difference determined under subparagraph (A);

(ii) each amount so increased shall remain in effect for

the calendar year; and

(iii) if any amount after adjustment under clause (i) is

not a multiple of $ 100, such amount shall be rounded

to the nearest multiple of $ 100.

(C) In the case of limitations under subsections (a)(1)(A),

(a)(1)(B), (a)(3), and (h), increases shall only be made in

odd-numbered years and such increases shall remain in effect

for the 2-year period beginning on the first day following the

date of the last general election in the year preceding the year

in which the amount is increased and ending on the date of

the next general election.

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(2) For purposes of paragraph (1)--

(A) the term "price index" means the average over a calendar

year of the Consumer Price Index (all items--United States

city average) published monthly by the Bureau of Labor

Statistics; and

(B) the term "base period" means--

(i) for purposes of subsections (b) and (d), calendar year

1974; and

(ii) for purposes of subsections (a)(1)(A), (a)(1)(B),

(a)(3), and (h), calendar year 2001.

(d) Expenditures by national committee, State committee, or

subordinate committee of State committee in connection with

general election campaign of candidates for Federal office.

(1) Notwithstanding any other provision of law with respect to

limitations on expenditures or limitations on contributions, the

national committee of a political party and a State committee of a

political party, including any subordinate committee of a State

committee, may make expenditures in connection with the general

election campaign of candidates for Federal office, subject to the

limitations contained in paragraphs (2), (3), and (4) of this subsection.

(2) The national committee of a political party may not make any

expenditure in connection with the general election campaign of any

candidate for President of the United States who is affiliated with

such party which exceeds an amount equal to 2 cents multiplied by

the voting age population of the United States (as certified under

subsection (e)). Any expenditure under this paragraph shall be in

addition to any expenditure by a national committee of a political

party serving as the principal campaign committee of a candidate for

the office of President of the United States.

4

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(3) The national committee of a political party, or a State committee

of a political party, including any subordinate committee of a State

committee, may not make any expenditure in connection with the

general election campaign of a candidate for Federal office in a State

who is affiliated with such party which exceeds--

(A) in the case of a candidate for election to the office of Senator,

or of Representative from a State which is entitled to only one

Representative, the greater of--

(i) 2 cents multiplied by the voting age population of the

State (as certified under subsection (e)); or

(ii) $ 20,000; and

(B) in the case of a candidate for election to the office of

Representative, Delegate, or Resident Commissioner in any other

State, $ 10,000.

(4) Independent versus coordinated expenditures by party.

(A) In general. On or after the date on which a political party

nominates a candidate, no committee of the political party may

make--

(i) any coordinated expenditure under this subsection with

respect to the candidate during the election cycle at any time

after it makes any independent expenditure (as defined in

section 301(17) [52 USCS § 30101(17)]) with respect to the

candidate during the election cycle; or

(ii) any independent expenditure (as defined in section

301(17) [52 USCS § 30101(17)]) with respect to the candidate

during the election cycle at any time after it makes any

coordinated expenditure under this subsection with respect to

the candidate during the election cycle.

5

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(B) Application. For purposes of this paragraph, all political

committees established and maintained by a national political

party (including all congressional campaign committees) and all

political committees established and maintained by a State political

party (including any subordinate committee of a State committee)

shall be considered to be a single political committee.

(C) Transfers. A committee of a political party that makes

coordinated expenditures under this subsection with respect to a

candidate shall not, during an election cycle, transfer any funds to,

assign authority to make coordinated expenditures under this

subsection to, or receive a transfer of funds from, a committee of

the political party that has made or intends to make an

independent expenditure with respect to the candidate.

(5) The limitations contained in paragraphs (2), (3), and (4) of this

subsection shall not apply to expenditures made from any of the

accounts described in subsection (a)(9).

6

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52 U.S.C. § 30125

Soft money of Political Parties 

(a) National committees.

(1) In general. A national committee of a political party (including

a national congressional campaign committee of a political party)

may not solicit, receive, or direct to another person a contribution,

donation, or transfer of funds or any other thing of value, or spend

any funds, that are not subject to the limitations, prohibitions, and

reporting requirements of this Act.

(2) Applicability. The prohibition established by paragraph (1)

applies to any such national committee, any officer or agent acting

on behalf of such a national committee, and any entity that is

directly or indirectly established, financed, maintained, or

controlled by such a national committee.

7

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CERTIFICATE OF SERVICE

I certify that on September 10, 2018, I electronically filed the

foregoing brief with the Clerk of this Court by using the appellate

CM/ECF system. The participants in the case are registered CM/ECF

users. Accordingly, electronic copies of this joint appendix were served

through the Court’s CM/ECF system, on:

Jacob S. Siler

Harry J. Summers

Kevin Deeley

Federal Election Commission

1050 First Street NE

Washington, DC 20463

/s/ Alan Gura

Alan Gura

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