United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2018 Decided May 21, 2019

No. 18-5227

LIBERTARIAN NATIONAL COMMITTEE, INC.,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

On Certification of Constitutional Questions

from the United States District Court

for the District of Columbia

(No. 1:16-cv-00121)

Alan Gura argued the cause and filed the briefs for 

appellant. 

Timothy Sandefur and Aditya Dynar were on the brief for 

amicus curiae Goldwater Institute in support of appellant.

Allen Dickerson and Zac Morgan were on the brief for 

amicus curiae Institute for Free Speech in support of appellant.

Jacob S. Siler, Attorney, Federal Election Commission, 

argued the cause for appellee. With him on the brief were Kevin 

A. Deeley, Associate General Counsel, and Harry J. Summers, 

Assistant General Counsel.

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Paul M. Smith, Tara Malloy, Megan P. McAllen, Fred 

Wertheimer, and Donald J. Simon were on the brief for amici 

curiae Campaign Legal Center, et al. in support of appellee.

Before: GARLAND, Chief Judge, and HENDERSON,

ROGERS, TATEL, GRIFFITH, SRINIVASAN, MILLETT, PILLARD,

WILKINS, and KATSAS, Circuit Judges.

*

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge GRIFFITH.

Opinion concurring in part, concurring in the judgment in 

part, and dissenting in part filed by Circuit Judge KATSAS, with 

whom Circuit Judge HENDERSON joins.

TATEL, Circuit Judge: When Joseph Shaber passed away, 

he left over $235,000 to the Libertarian National Committee

(LNC). This case is about when and how the LNC can spend 

that money. The LNC argues that the Federal Election 

Campaign Act (FECA), which imposes limits on both donors 

and recipients of political contributions, violates its First 

Amendment rights in two ways: first, by imposing any limits 

on the LNC’s ability to accept Shaber’s contribution, given that 

he is dead; and second, by permitting donors to triple the size 

of their contributions, but only if the recipient party spends the 

money on specified categories of expenses. Scrutinizing each 

provision in turn, we find no constitutional defects and reject 

the LNC’s challenges.

 

* Circuit Judge Rao did not participate in this matter.

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I.

Over half a million voters have registered as Libertarians. 

See Findings of Fact (“CF”) ¶ 3, Libertarian National 

Committee, Inc. v. Federal Election Commission, 317 F. Supp. 

3d 202 (D.D.C. 2018). The LNC, the national committee of the 

Libertarian Party, has over 130,000 members and about 15,000 

active donors. See CF ¶¶ 1, 3.

During his lifetime, Joseph Shaber was one of those 

donors, contributing a total of $3,315 in a series of relatively 

small donations over some twenty-five years. See CF ¶¶ 109–

10. Unbeknownst to the LNC, Shaber intended to be a donor in 

death as well. See CF ¶ 115. In 2015, shortly after Shaber had 

passed away, the LNC learned that Shaber left it the generous 

sum of $235,575.20. See CF ¶¶ 117, 121. 

But the LNC had a problem. Under FECA, “no person,”

52 U.S.C. § 30116(a)(1), may make a contribution to a national 

political party committee above an inflation-adjusted annual 

limit, see id. § 30116(c)—which, in 2015, capped contributions

at $33,400, see CF ¶ 119—and national party committees, in 

turn, “may not solicit, receive, . . . or spend any funds” donated 

in excess of that limit, 52 U.S.C. § 30125(a). Furthermore, the 

Federal Election Commission (the “Commission”), the agency 

charged with enforcing FECA, interprets “person” to include

the dead and their estates. See FEC Advisory Opinion 1999–14 

(Council for a Livable World), 1999 WL 521238, at *1 (July 

16, 1999) (“[A] testamentary estate is the successor legal entity 

to the testator and qualifies as a person under the Act . . . .”). 

Taken together, these restrictions prohibited the LNC from 

accepting more than $33,400 of Shaber’s donation into the 

LNC’s general fund in 2015.

But there was another way. Just the previous year, in 2014, 

Congress had amended FECA to permit donors to contribute, 

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over and above their general-purpose contributions, amounts 

up to three times the base limit into each of three new kinds of 

“separate, segregated” party-committee accounts. 

Consolidated and Further Continuing Appropriations Act, 

2015, Pub. L. No. 113-235, div. N, § 101, 128 Stat. 2130, 

2772–73 (2014) (codified at 52 U.S.C. § 30116(a)(1)(B), 

(a)(9)). Recipient parties may use these accounts to pay for 

“presidential nominating convention[s],” party “headquarters

buildings,” and “election recounts . . . and other legal 

proceedings.” 52 U.S.C. § 30116(a)(9). In 2015, then, the LNC

could have accepted up to $334,000 from Shaber’s bequest, 

taking $33,400 into its general fund and $100,200 into each of 

three segregated funds. 

The LNC, however, preferred not to tie up the majority of 

Shaber’s gift in segregated accounts, and the trustee in charge 

of distributing Shaber’s gift concluded that she had no 

authority to require the LNC to accept the full bequest into a 

combination of general- and dedicated-purpose accounts

because she “could not impose restrictions on Mr. Shaber’s 

bequest that Mr. Shaber did not himself place.” CF ¶¶ 126–27. 

Accordingly, the LNC accepted only $33,400 of Shaber’s 

donation, see CF ¶ 119, and the trustee asked the Commission 

for an advisory opinion on what to do with the rest, see 52 

U.S.C. § 30108(a) (requiring the Commission to issue written 

advisory opinions upon request). In that request, the trustee

proposed to put the balance of Shaber’s bequest into an escrow 

account that would disburse the maximum base-limit 

contribution into the LNC’s general fund each year until the 

entire gift had been depleted (about seven years in total). See

FEC Advisory Opinion 2015–05 (Shaber), 2015 WL 4978865, 

at *1 (Aug. 11, 2015). The Commission approved this plan, 

with the caveat that the escrow agreement must prevent the 

LNC from “exercis[ing] control over the undisbursed funds.” 

Id. at *3 n.4.

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In September 2015, the trustee and the LNC signed an 

agreement under which the remaining $202,175.20 of Shaber’s 

bequest would be deposited into an escrow account. See CF 

¶ 128. Pursuant to the escrow agreement, in January of every 

year the LNC receives a payment equal to the inflationadjusted contribution limit. See CF ¶ 128; see also Defendant 

Federal Election Commission’s Memorandum in Support of its 

Motion to Dismiss and in Opposition to Plaintiff’s Motion to 

Certify Facts and Questions, Ex. 27 (“Escrow Agreement”) ¶ 3, 

Libertarian National Committee, 317 F. Supp. 3d 202 (No. 16-

cv-00121), ECF No. 26-31. Although the escrow agreement 

prohibits the LNC from requesting any money in excess of the 

contribution limit, it does allow the committee to accept the 

“entire balance of the Escrow Fund” if it successfully 

“challenge[s] the legal validity of the [c]ontribution [l]imit in 

federal court.” Escrow Agreement ¶ 3. 

The LNC now seeks to do just that. On January 25, 2016, 

it filed this action challenging both the application of FECA’s 

contribution limits to Shaber’s bequest and FECA’s new twotiered limit on contributions to general and segregated

accounts. See Complaint ¶¶ 21–34, Libertarian National 

Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121), ECF No. 

1. Proceeding under FECA’s special judicial review provision,

the district court then certified factual findings and “nonfrivolous constitutional questions” to this en banc court. 

Holmes v. Federal Election Commission, 875 F.3d 1153, 1157 

(D.C. Cir. 2017) (en banc); see also 52 U.S.C. § 30110 (“The 

district court immediately shall certify all questions of 

constitutionality of [FECA] to the United States court of 

appeals for the circuit involved, which shall hear the matter 

sitting en banc.”). 

With the benefit of the district court’s findings of fact and 

certification order, we now consider the three legal questions

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articulated by the district court. See Order, Libertarian 

National Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121), 

ECF No. 34 (“Certification Order”). First:

Does imposing annual contribution limits against the 

bequest of Joseph Shaber violate the First 

Amendment rights of the Libertarian National 

Committee?

Id. at 2. Second:

Do [FECA’s contribution limits], 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 [the] general purpose contribution limit to those 

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

Id. Or, put more simply, does FECA’s two-tiered contribution

limit, on its face, violate the First Amendment? And third: 

Do [FECA’s contribution limits] 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 [the] general purpose 

contribution limit to those specialized purposes 

enumerated in § 30116(a)(9)?

Id. Again, put more simply, does FECA’s two-tiered 

contribution limit, as applied to Shaber’s bequest, violate the 

First Amendment? 

After assuring ourselves of subject-matter jurisdiction, we 

address each question in turn. 

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II.

“[T]he ‘irreducible constitutional minimum’ of standing 

consists of three elements. The plaintiff must have (1) suffered 

an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendant, and (3) that is likely to be redressed 

by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 

S. Ct. 1540, 1547 (2016) (internal citation omitted) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The 

Commission sees three defects in the LNC’s standing. We see 

none. 

The Commission first argues that by electing to place the 

balance of Shaber’s gift into escrow instead of accepting it into 

segregated accounts, the LNC has inflicted its own injury. See 

National Family Planning & Reproductive Health Ass’n v. 

Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (explaining that 

self-inflicted harm “does not amount to an ‘injury’ cognizable 

under Article III,” nor is it “fairly traceable to the defendant’s 

challenged conduct”). Of course the Commission is correct in 

the most literal sense: the LNC did, indeed, put pen to paper 

and sign the escrow agreement. But as the district court 

explained in rejecting the Commission’s self-infliction

argument, the LNC’s injury stems not from its inability to 

accept the entire bequest immediately (which it could have 

done), but rather from the committee’s “inability to accept 

[immediately] the entire bequest for general expressive 

purposes” (which FECA prohibits). Libertarian National 

Committee, Inc. v. Federal Election Commission, 228 F. Supp. 

3d 19, 25 (D.D.C. 2017). The Commission forced the LNC to 

choose between immediate access to the money and long-term

flexibility in spending it; that the committee chose the lesser of 

two evils hardly transforms FECA’s limitation into a selfimposed restriction.

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The Commission, however, has a response: because 

“[m]oney is fungible,” a dollar contributed into a segregated 

account “is an extra dollar from the . . . general account that 

becomes available for [the LNC’s] general expressive 

purposes.” Federal Election Commission’s Motion to Dismiss 

for Lack of Subject-Matter Jurisdiction (“Motion”) at 14–15. 

Perhaps so, but the arithmetic just does not work. In 2015, the 

year the LNC first gained access to Shaber’s $235,575 bequest, 

it spent only $341 on its 2016 presidential nominating 

convention and $7,261 on legal proceedings. Therefore, even 

assuming the LNC could have maxed out its headquarters 

spending at $100,200 and accepted an additional $33,400 into 

its general account, some $94,373 of Shaber’s bequest would 

have remained unused as of December 31, 2015. 

Contrary to the Commission’s argument, we have no need 

to examine the LNC’s “2016 budget expectations and 

expenditures.” Motion at 17. True, the LNC must demonstrate 

standing “as of the time [its] suit commence[d]” in January 

2016, Del Monte Fresh Produce Co. v. United States, 570 F.3d 

316, 324 (D.C. Cir. 2009), and expense reports reveal that by 

the end of 2016, the LNC had incurred enough convention, 

headquarters, and legal costs to have fully absorbed what 

remained of Shaber’s donation—assuming the money it spent 

on those expenses was itself unrestricted and thus fully 

fungible. But by January 2016, Shaber’s bequest sat locked in 

an escrow account over which—at the Commission’s 

direction—the LNC exercised “no control.” FEC Advisory 

Opinion 2015–05 (Shaber), 2015 WL 4978865, at *3 (Aug. 11, 

2015). The relevant date is therefore September 2015, when the 

LNC committed itself to the escrow arrangement. At that time, 

although the committee may have projected certain expenses, 

it lacked perfect information about what costs it would incur 

and what other donations it might receive in the new year. We 

cannot rely on hindsight to fault the LNC for its failure of

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foresight, and in any event, our task is not to assess the 

committee’s financial planning acumen. Rather, we must 

determine only whether the LNC suffered a cognizable injury

in fact that is fairly traceable to the Commission’s conduct 

(and, by extension, to FECA). The LNC easily clears that bar. 

Next, the Commission argues that a favorable judicial 

determination could not redress the LNC’s injury because this

suit, filed in 2016, seeks only injunctive and declaratory relief

for harm suffered a year earlier in 2015, when Shaber’s bequest 

became available. To be sure, our Article III authority does not 

include the power to turn back time. Nonetheless, much of the 

money remains tied up in escrow, and we most certainly do 

have authority to invalidate the challenged portions of FECA—

which, per the escrow agreement, would afford the LNC

immediate access to the remainder of the bequest for all 

purposes. See Escrow Agreement ¶ 3. That is redress. 

Finally, the Commission points out that the LNC “lacks 

standing to the extent its claims” depend on the allegation that

the challenged contribution limits “place the Libertarian Party 

at a competitive disadvantage vis-à-vis other political parties,” 

which, the Commission argues, “is akin to the oft-rejected 

argument that a party is harmed because it is at a fundraising 

disadvantage to its competitors.” Motion at 20–21. But 

according to the LNC, “that extent is zero.” Plaintiff’s 

Opposition to Defendant’s Motion to Dismiss (“Opposition”)

at 15. Taking the LNC at its word, we conclude, as did the 

district court, that the committee has alleged a cognizable harm 

in its inability to accept immediately “the entire bequest for 

general expressive purposes.” Libertarian National 

Committee, Inc., 228 F. Supp. 3d at 25. 

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III. 

We proceed to the first certified question: whether 

applying FECA’s annual contribution limits specifically to 

Shaber’s bequest violates the LNC’s First Amendment rights.

A.

As the Supreme Court recognized in Buckley v. Valeo—

its first and seminal case examining FECA’s 

constitutionality—contribution limits “operate in an area of the 

most fundamental First Amendment activities.” 424 U.S. 1, 14 

(1976) (per curiam). “There is no right more basic in our 

democracy,” the Chief Justice explained in his recent plurality 

opinion in McCutcheon v. Federal Election Commission, “than 

the right to participate in electing our political leaders.” 572 

U.S. 185, 191 (2014) (plurality opinion).

In fact, political contributions implicate two distinct First 

Amendment rights: freedom of speech and freedom of 

association. “When an individual contributes money to a 

candidate, he exercises both of those rights: 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 (plurality opinion) (quoting 

Buckley, 424 U.S. at 21–22). The recipient, too, has First 

Amendment interests in accepting campaign contributions.

“[V]irtually every means of communicating ideas in today’s 

mass society requires the expenditure of money,” from 

“distributi[ng] . . . the humblest handbill,” to “hiring a hall and 

publicizing” rallies, to purchasing airtime on “television, radio, 

and other mass media.” Buckley, 424 U.S. at 19. And, of 

course, just as contributors associate with candidates and

parties by making donations, so, too, do recipients associate 

with contributors by accepting donations. See id. at 18, 22 

(explaining that contributions “enable[] like-minded persons to 

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pool their resources in furtherance of common political goals”

and that contribution limits therefore restrict “association by 

persons, groups, candidates, and political parties”). 

Altogether, then, in the world of political contributions, 

the First Amendment protects two kinds of rights (speech and 

association) belonging to two different rights-holders (donors 

and recipients). As the parties argue this case, however, the 

First Amendment interests at issue occupy only one box of the 

rights/rights-holders two-by-two matrix. Because “Shaber’s 

death ended his expression and association,” and because the 

LNC “does not associate with the dead,” the committee admits

that “[t]his case concerns primarily the LNC’s speech rights 

with respect to the Shaber bequest.” Appellant’s Br. 34–35. We 

thus find ourselves in the speech-recipient box. 

According to the Commission, contribution limits have 

only minimal bearing on a recipient’s free-speech rights. On 

the one hand, as the Commission observes, the Court held in 

Buckley that “restriction[s] on the amount of money a . . . group 

can spend on political communication during a campaign”—

that is, expenditure limits—“necessarily reduce[] the quantity 

of expression” and therefore receive “the exacting scrutiny 

applicable to limitations on core First Amendment rights.” 

Buckley, 424 U.S. at 19, 44–45 (emphasis added). On the other 

hand, restrictions on the amount of money someone can 

donate—that is, contribution limits—“merely . . . require 

candidates and political committees to raise funds from a 

greater number of persons” “rather than . . . reduce the total 

amount of money potentially available to promote political 

expression.” Id. at 22. Therefore, as the Court explained in 

Buckley and reiterated in McConnell v. Federal Election 

Commission, “[b]ecause the communicative value of large 

contributions inheres mainly in their ability to facilitate the 

speech of their recipients, . . . contribution limits impose 

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serious burdens on free speech only if they are so low as to 

‘preven[t] candidates and political committees from amassing 

the resources necessary for effective advocacy.’” McConnell v. 

Federal Election Commission, 540 U.S. 93, 135 (2003) (third

alteration in original) (quoting Buckley, 424 U.S. at 21); see 

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

opinion) (explaining that contribution limits fail “to survive 

First Amendment scrutiny” if they “prevent candidates from 

‘amassing the resources necessary for effective [campaign] 

advocacy’” or “magnify the advantages of incumbency to the 

point where they put challengers to a significant disadvantage” 

(alteration in original) (quoting Buckley, 424 U.S. at 21)). 

If that is the test, then FECA’s contribution limit as applied 

to Shaber’s bequest clearly passes. The LNC nowhere claims

that it needs Shaber’s money in order to “amass[] the resources 

necessary for effective advocacy.” Buckley, 424 U.S. at 21.

Surely, Shaber’s gift hardly represents a make-or-break sum

for the committee’s ability to engage in political 

communication. We doubt, moreover, that the LNC could 

make such a showing given that FECA’s current contribution 

limits are no lower than the ceilings the Court approved in 

McConnell. 

With respect to donors’ rights, by contrast, contribution 

limits tread closer to core First Amendment activity. To be 

sure, the speech embodied by a political contribution lacks 

nuance: because a contribution “does not communicate the 

underlying basis for the [donor’s] support,” “[a]t most, the size 

of the contribution provides a very rough index of the intensity 

of the contributor’s support for the candidate.” Buckley, 424 

U.S. at 21. That said, the ability to express support through

monetary donations provides an “important means of 

associating with a candidate or committee,” id. at 22—and a 

particularly important means, at that, for “individuals who do 

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not have ready access to alternative avenues for supporting 

their preferred politicians,” such as volunteering in person,

McCutcheon, 572 U.S. at 205 (plurality opinion). To protect 

contributors’ heterogeneous First Amendment interests in 

making political donations, therefore, the Court has announced 

a single unified test that applies an intermediate level of 

scrutiny to contribution limits. See Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377, 388 (2000) (explaining that 

“a contribution limitation surviving a claim of associational 

abridgment would survive a speech challenge as well”). 

“Closely drawn” scrutiny, as the Court now calls it, requires 

that “the [government] demonstrate[] a sufficiently important 

interest and employ[] means closely drawn to avoid 

unnecessary abridgment” of First Amendment rights. Buckley, 

424 U.S. at 25; see also McCutcheon, 572 U.S. at 197 (plurality

opinion) (same). 

But these decisions have left open the question whether 

closely drawn scrutiny—usually justified as a mechanism to

safeguard donors’ rights—also applies to a law limiting a

recipient’s right to receive a donation absent a corollary

restriction on a contributor’s right to contribute. Because the 

typical donor is a living human being capable of both speaking 

and associating, neither the Supreme Court nor we have had 

occasion to untangle a recipient’s rights from its donors’. But 

even though Shaber no longer speaks nor associates, Buckley

and its progeny hardly foreclose application of closely drawn 

scrutiny to the contribution limit at issue in this case. We shall 

therefore assume, without deciding, that closely drawn scrutiny 

applies to the imposition of contribution limits on Shaber’s 

bequest. And because we conclude that FECA’s limits survive 

even that heightened standard of review, we have no need to

interrogate that assumption further. 

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B. 

“In a series of cases over the past 40 years,” the Supreme 

Court has repeatedly recognized the government’s interest in

imposing contribution limits to combat “‘quid pro quo’ 

corruption [and] its appearance.” McCutcheon, 572 U.S. at 192

(plurality opinion) (emphasis omitted). The risk that candidates 

might exchange political favors for money is far from 

hypothetical. As the Court explained in McConnell, “[t]he idea 

that large contributions to a national party can corrupt or, at the 

very least, create the appearance of corruption of federal 

candidates and officeholders is neither novel nor implausible.” 

540 U.S. at 144. Indeed, both Buckley and McConnell cited

“deeply disturbing examples” of “pernicious practices” in thenrecent election cycles. Buckley, 424 U.S. at 27; see also

McConnell, 540 U.S. at 122 (noting “disturbing findings of a 

Senate investigation into campaign practices related to the 

1996 federal elections”). Therefore, given the threat posed by 

actual and apparent corruption to “the integrity of our system 

of representative democracy,” Buckley, 424 U.S. at 26–27, the 

Court has long held that “the Government’s interest in 

preventing quid pro quo corruption or its appearance . . . may 

properly be labeled ‘compelling,’” McCutcheon, 572 U.S. at 

199 (plurality opinion) (emphasis omitted) (quoting Federal 

Election Commission v. National Conservative Political Action 

Committee, 470 U.S. 480, 496 (1985)). 

The risk of quid pro quo corruption does not disappear

merely because the transfer of money occurs after a donor’s

death. Individuals planning to bequeath a large sum to a 

political party have two points of leverage during their

lifetimes: they may tell the party about their intentions, and

they may change their minds at any time. That latter possibility, 

as the district court found, “creates an incentive for a national 

party committee to limit the risk that a planned bequest will be 

revoked” and could cause that party, “its candidates, or its 

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office holders to grant political favors to the individual in the 

hopes of preventing the individual from revoking his or her 

promise.” CF ¶ 100 (first quoting Findings of Fact ¶ 92, 

Libertarian National Committee, Inc. v. Federal Election 

Commission (LNC I), 930 F. Supp. 2d 154, 186 (D.D.C. 2013), 

aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014);

then quoting Defendant Federal Election Commission’s 

Proposed Findings of Facts ¶ 80, Libertarian National 

Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121), ECF No. 

26-3) (internal quotation marks omitted). In other words, a

donor’s death simply imposes a sequencing constraint on a

quid pro quo exchange. Instead of money for votes, the donor 

requires votes for money—or, to be more precise, political 

favors now for the promise of money later. And even that 

constraint evaporates in the case of corrupt donors seeking 

favors for their survivors. Although an individual’s death 

terminates his ability to profit personally from a corrupt quo in 

exchange for his bequeathed quid, the donor’s surviving 

friends and family remain all too capable of accepting political 

favors that their deceased benefactor may have pre-arranged 

for their benefit. 

What’s more, where the courts have observed a risk of 

corruption, so too will the electorate. As the Court explained in 

Buckley, “[o]f almost equal concern as the danger of actual 

quid pro quo arrangements is the impact of the appearance of 

corruption stemming from public awareness of the 

opportunities for abuse inherent in a regime of large individual 

financial contributions.” 424 U.S. at 27. Voters lack the means 

to examine the intentions behind suspiciously sizable

contributions, a problem that becomes especially acute in the 

case of a deceased donor who, of course, is forever unavailable 

to answer inquiries. As a result, the corruptive potential of 

unregulated contributions, including the unregulated 

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contributions of the dead, inflicts almost as much harm on 

public faith in electoral integrity as corruption itself. 

The LNC acknowledges these risks. “Nobody here 

disputes the theoretical corruption potential of bequests,” 

declares the committee. Reply Br. 13. And as a result, the LNC 

has declined, both before the district court and on appeal, to

“revisit” the conclusion that bequests “generally warrant[] . . . 

subjection to FECA’s contribution limits.” Appellant’s Br. 35; 

see also CF ¶ 93 (“‘[I]t is possible for a bequest to raise valid 

anti-corruption concerns,’ as the LNC has ‘concede[d].’” 

(alterations in original) (quoting LNC I, 930 F. Supp. 2d at 

166)). 

It is precisely because the LNC concedes “the theoretical 

corruption potential of bequests,” Reply Br. 13, that we do not 

share our dissenting colleague’s concern that “the 

[Commission] points to nothing substantiating” the same, Op. 

at 10 (Katsas, J.). The government may, just like any other 

litigant in any other case, accept an opposing party’s 

concession. Moreover, among the district court’s findings that 

the LNC declines to dispute, see Oral Arg. Rec. 32:01–18

(conceding that this court is bound by the district court’s 

findings of fact unless clearly erroneous), are several that 

amount to substantial evidence demonstrating the 

government’s anticorruption interest in regulating bequests. 

To begin with, contrary to the dissent’s assertion that “bequests 

are rarely used for political contributions,” Op. at 10 (Katsas, 

J.), the district court found that since 1978 donors have 

contributed “more than $3.7 million in bequeathed funds,” not 

infrequently in five- and six-figure amounts. CF ¶ 102; see also 

CF ¶¶ 103–08 (listing bequeathed contributions to national 

political party committees). And that figure is “likely 

underreported,” as “reporting entities are not required to inform 

the [Commission] that a particular contribution they received 

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came from a bequest.” CF ¶ 102. In fact, the LNC did not report 

Shaber’s bequest as such. See CF ¶ 102. Furthermore, the 

district court found that “nothing prevents a living person from 

informing the beneficiary of a planned bequest about that 

bequest,” CF ¶ 94; that “[p]olitical committees ‘could feel 

pressure to . . . ensure that a (potential) donor is happy with the 

committee’s actions lest [that donor] revoke the bequest,’” CF

¶ 100 (second and third alterations in original) (quoting LNC I, 

930 F. Supp. 2d at 167); and that this pressure could cause a 

“national party committee, its candidates, or officeholders . . . 

[to] grant that individual political favors,” CF ¶ 99 (internal 

quotation marks omitted). Altogether, the district court’s 178 

paragraphs of findings amount to much more than “‘mere 

conjecture,’” Op. at 11 (Katsas, J.) (quoting McCutcheon, 572 

U.S. at 210 (plurality opinion)), that bequests pose a threat of 

quid pro quo corruption.

Disclaiming any “categorical challenge to the limitation of 

all bequests,” the LNC instead asks us to conduct an “asapplied” inquiry “narrowly focused on one particular bequest”: 

“whether Shaber’s bequest, specifically, warrants government 

limitation.” Appellant’s Br. 30, 35. It does not, says the LNC, 

because the bequest was not corrupt and the government

therefore has no legitimate interest in its restriction. 

As to the first half of the LNC’s argument, we have no 

trouble making the unremarkable assumption that Shaber’s 

contribution was not, in fact, part of a corrupt quid pro quo

exchange. Buckley rested on precisely the same assumption—

that “most large contributors do not seek improper influence 

over a candidate’s position or an officeholder’s action.” 

Buckley, 424 U.S. at 29. Indeed, the LNC’s observation that 

contribution limits restrict legitimate as well as corrupt 

donations is wholly unsurprising. The Court has often “noted 

that restrictions on direct contributions are preventative, 

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because few if any contributions to candidates will involve 

quid pro quo arrangements.” Citizens United v. Federal 

Election Commission, 558 U.S. 310, 357 (2010) (emphasis 

omitted). 

But that is precisely the point: it is “difficult to isolate 

suspect contributions” in the sea of legitimate donations. 

Buckley, 424 U.S. at 30. As the LNC sees it, because the 

government’s interest lies in preventing quid pro quo 

corruption, the government may restrict only corrupt 

contributions. The government, however, already has those 

restrictions on the books: they are called bribery laws. But 

bribery laws “deal with only the most blatant and specific 

attempts of those with money to influence governmental 

action,” id. at 28, and if those laws were sufficient to achieve

the government’s compelling interest in preventing quid pro 

quo corruption and its appearance, then Congress would have 

had no need in the first place to impose contribution limits to 

combat prior decades’ “deeply disturbing” quid pro quo 

arrangements, id. at 27. Accordingly, the problem with the 

LNC’s proposed regime—one under which actually

noncorrupt contributions could exceed FECA’s limits—is that 

corruption is notoriously difficult to ferret out, and “the scope 

of . . . pernicious practices can never be reliably ascertained.” 

Id. Because “the First Amendment does not require Congress 

to ignore the fact that ‘candidates, donors, and parties test the 

limits of the current law,’” McConnell, 540 U.S. at 144 

(quoting Federal Election Commission v. Colorado 

Republican Federal Campaign Committee, 533 U.S. 431, 457 

(2001)), “prophylactic” contribution limits, McCutcheon, 572 

U.S. at 221 (plurality opinion), are permissible—even vital—

to forestall the worst forms of political corruption.

Critically, moreover, even if through some omniscient 

power courts could separate the innocent contributions from

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the nefarious, an appearance of corruption would remain. 

Although “Congress may not regulate contributions simply to 

reduce the amount of money in politics,” id. at 191 (plurality

opinion), it may certainly do more than ask the public to place 

groundless faith in a bribery-prevention scheme that has failed

to thwart corruption in the past. “It is therefore reasonable,” the 

Court explained in McConnell, “to require that all parties and 

all candidates follow the same set of rules” in order to prevent 

“‘both the actual corruption threatened by large financial 

contributions and the eroding of public confidence in the 

electoral process through the appearance of corruption.’” 540 

U.S. at 136, 159 (quoting Federal Election Commission v. 

National Right to Work Committee, 459 U.S. 197, 208 (1982)). 

That is not to say as-applied challenges to FECA’s 

contribution limits are impossible. Because restrictions that 

strike a permissible balance between governmental and 

individual interests may nonetheless “impose heavy burdens on 

First Amendment rights in individual cases,” John Doe No. 1 

v. Reed, 561 U.S. 186, 203 (2010) (Alito, J., concurring), 

people may bring as-applied challenges to demonstrate that, in 

their unique circumstances, the law in question works too 

harshly. For example, “a nascent or struggling minor party can 

bring an as-applied challenge” to a contribution limit that 

“prevents [the party] from ‘amassing the resources necessary 

for effective advocacy,’” McConnell, 540 U.S. at 159 (quoting 

Buckley, 424 U.S. at 21), and, similarly, a group may bring an 

as-applied challenge to a campaign-contribution disclosure 

provision that subjects its donors to “‘threats, harassment, or 

reprisals,’” Citizens United, 558 U.S. at 367 (quoting 

McConnell, 540 U.S. at 198); see also Doe, 1 v. Federal 

Election Commission, 920 F.3d 866, 871 (D.C. Cir. 2019) 

(“Citizens United left open the possibility of an as-applied First 

Amendment challenge, but only if the donor proved that 

revealing its identity would probably bring about threats or 

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reprisals.”). But while an individual may demonstrate that, in 

his particular case, a contribution limit imposes an 

impermissibly high burden, donors and recipients may not use

the guise of an as-applied challenge merely to relitigate the 

government’s settled interest in enforcing “preventative” 

limits, Citizens United, 558 U.S. at 357, against all

contributions—corrupt and noncorrupt alike. “[A] plaintiff 

cannot successfully bring an as-applied challenge to a statutory 

provision based on the same factual and legal arguments the 

Supreme Court expressly considered when rejecting a facial 

challenge to that provision.” Republican National Committee 

v. Federal Election Commission, 698 F. Supp. 2d 150, 157 

(D.D.C.) (three-judge panel), aff’d, 561 U.S. 1040 (2010).

Unlike the LNC and the dissent, see Op. at 18 (Katsas, J.),

we see nothing to the contrary in SpeechNow.org v. Federal 

Election Commission, 599 F.3d 686 (D.C. Cir. 2010) (en banc). 

In that case, we sustained an as-applied challenge to a 

contribution limit on the grounds that “the government ha[d] 

no anti-corruption interest in limiting contributions to an 

independent expenditure group,” id. at 695, but we did not do 

so because of anything special about the government’s

anticorruption interest “in that case” in particular, Op. at 18

(Katsas, J.). Instead, we explained that because the Supreme 

Court had recently held in Citizens United “as a matter of law

that independent expenditures do not corrupt or create the 

appearance of quid pro quo corruption,” neither could 

contributions to independent expenditure-only groups “corrupt 

or create the appearance of corruption.” SpeechNow.org, 599 

F.3d at 694 (emphasis omitted). In this case, by contrast, the 

LNC raises no challenge to Buckley nor to the anticorruption 

interest that case and its successors recognized. See Appellant’s 

Br. 60 n.13 (“[T]his case does not challenge Buckley.”).

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The dissent suggests that even if the government has an 

interest in limiting bequests disclosed during donors’ lifetimes, 

it lacks a similar interest in regulating the class of bequests kept 

secret until donors’ deaths. See Op. at 12–14 (Katsas, J.). The 

trouble, however, is that because the LNC states in no uncertain 

terms that its “as-applied Shaber challenge . . . does not contest 

any contribution limit’s general sweep,” Reply Br. 11, we are 

limited to addressing only the matters raised and litigated by 

the parties and certified to this court for review, see 52 U.S.C. 

§ 30110—that is, whether “imposing annual contribution 

limits against the bequest of Joseph Shaber” violates the LNC’s 

First Amendment rights. Certification Order 2. Indeed, the 

LNC expressly foreswears any broader challenge. See supra at 

17. Perhaps, as the dissent proposes, the Commission might be 

able to “police” bequest disclosures in the same manner it 

distinguishes coordinated from independent expenditures. Op. 

at 14 (Katsas, J.). But there are significant differences, both 

practical and constitutional, between independent 

expenditures, coordinated expenditures, and contributions. See 

supra at 11–12; see also McConnell, 540 U.S. at 221 

(explaining that coordinated expenditures “may be regulated as 

indirect contributions”). For now, then, we simply observe that 

the task of distinguishing truly uncoordinated from covertly 

disclosed bequests would seem to require the same sorts of 

fact-intensive inquiries and give rise to the same sorts of 

appearance-of-corruption concerns that prophylactic 

contribution limits are designed to avoid. Without the parties 

to guide us, we decline to venture into such challenging terrain. 

See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)

(“The premise of our adversarial system is that appellate courts 

do not sit as self-directed boards of legal inquiry and research, 

but essentially as arbiters of legal questions presented and 

argued by the parties before them.”). 

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We thus return to the LNC’s bottom line: “[W]hat about 

Shaber?” Reply Br. 14. By the LNC’s logic, the only 

individuals who must keep their contributions under FECA’s 

limits are those who intend to violate the bribery laws. That just 

cannot be what the First Amendment requires. We therefore 

answer the first certified question in the negative: imposing 

FECA’s contribution limits on Shaber’s bequest does not 

violate the LNC’s First Amendment rights.

IV. 

This brings us to the second and third certified questions—

a facial and an as-applied challenge—which ask whether it 

offends the First Amendment that donors may contribute above

the base limit only if they make their contributions into

segregated, dedicated-purpose accounts.

A.

The only portion of FECA at issue here is an amendment

contained in the Consolidated and Further Continuing 

Appropriations Act—what we reluctantly assent to calling the 

“cromnibus” amendment. The LNC assures us, as it must, that 

it “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.” Appellant’s Br. 40. 

Instead, the LNC contends that because the 2014 cromnibus

amendment “radically altered FECA’s nature and structure,” 

id., we must now apply a heightened level of scrutiny. What 

was constitutional before, the theory goes, is constitutional no 

longer. 

Accordingly, we begin by considering precisely what “sort 

of contribution limits . . . the Supreme Court upheld in 

McConnell.” Id. A little history will help. 

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In the FECA Amendments of 1976, Congress imposed a 

$20,000 limit on “contributions” to national party committees. 

Federal Election Campaign Act Amendments of 1976, Pub. L.

No. 94-283, § 112(2), 90 Stat. 475, 487 (codified as amended 

at 52 U.S.C. § 30116(a)(1)(B)). But not all donations qualified 

as contributions. Instead, FECA defined “contribution” as a gift 

“made . . . for the purpose of influencing any election for 

Federal office,” thus leaving unregulated any money ostensibly 

donated for the purpose of influencing state and local elections. 

Federal Election Campaign Act Amendments of 1979, Pub. L. 

No. 96-187, § 101, 93 Stat. 1339, 1340 (1980) (codified as 

amended at 52 U.S.C. § 30101(8)). And so “soft money” was 

born. While FECA subjected contributions for the purpose of 

influencing federal elections (so-called hard money) to its 

limits, parties remained free to “raise [soft money] in massive 

dollops from single contributors.” Shays v. Federal Election 

Commission, 414 F.3d 76, 81 (D.C. Cir. 2005). “Over time, 

political parties took increasing advantage of . . . soft money 

opportunities,” id., causing, as the Senate Committee on 

Governmental Affairs described it, “a ‘meltdown’ of the 

campaign finance system,” McConnell, 540 U.S. at 129

(quoting S. Rep. No. 105-167, vol. 4, at 4611 (1998); id., vol. 

5, at 7515).

Seeking to close the “soft-money loophole,” McConnell, 

540 U.S. at 133, Congress enacted the Bipartisan Campaign 

Reform Act in 2002. See Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81. Through that statute, 

known as BCRA, Congress took a two-pronged approach to 

purging federal elections of soft money: it prohibited national 

political party committees from accepting or “spend[ing] any 

funds” “not subject to” FECA, and it prohibited (with limited 

exceptions) state, district, and local party committees from 

“expend[ing] or disburs[ing] for Federal election activity” any 

funds raised outside FECA’s limits. Id. § 101 (codified at 52 

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U.S.C. § 30125(a), (b)). Approving these soft-money 

restrictions in McConnell, the Supreme Court rejected the 

argument that BCRA imposes an impermissible expenditure 

limit rather than a permissible contribution limit. According to 

the Court, BCRA’s soft-money ban, though styled as a 

restriction on party “spending,” “simply limit[s] the source and 

individual amount of donations” without “limit[ing] the total 

amount of money parties can spend.” McConnell, 540 U.S. at 

139. “[I]t is irrelevant,” the Court explained, “that Congress 

chose . . . to regulate contributions on the demand rather than 

the supply side.” Id. at 138.

So what changed? The 2014 cromnibus amendment 

introduced gradations into the political party contribution limit 

where none had been before. As previously explained, see 

supra at 3–4, FECA now permits donors to contribute up to 

three times the inflation-adjusted base limit into any of three 

new “separate, segregated account[s] . . . used . . . to defray 

expenses incurred with respect to” presidential nominating 

conventions, headquarters buildings, and recounts and other 

legal proceedings. 52 U.S.C. § 30116(a)(9). 

Insisting that this case differs meaningfully from Buckley 

and McConnell, the LNC argues that we must apply strict 

scrutiny to FECA’s new two-tiered scheme. We disagree. 

The LNC first contends that because the statute now 

restricts how certain funds may be “used,” 52 U.S.C. 

§ 30116(a)(9), the cromnibus amendment “transformed” 

FECA’s contribution limit into an expenditure limit, 

Appellant’s Br. 41. But McConnell forecloses this argument.

That decision teaches that the difference between an 

expenditure limit and a contribution limit hinges not on the 

statute’s use of magic words such as “spend” (as in BCRA) or 

“use” (as in the cromnibus amendment), but rather on a

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functional test. “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. 

That test makes this an easy case. Neither the generalpurpose contribution ceiling nor the 300%-higher dedicatedpurpose contribution ceiling “in any way limits the total 

amount of money parties can spend.” Id. at 139. The cromnibus 

amendment says nothing about how much money political 

party committees may expend on general purposes, 

conventions, headquarters, and recounts. Instead, the twotiered scheme does nothing more than its single-tiered

predecessor: it “simply limit[s] the source and individual 

amount of donations” for each category of expenses. Id. Or, as

the Court put it in Buckley, “[t]he overall effect of the Act’s 

contribution ceilings is merely to require . . . political 

committees to raise funds from a greater number of persons . . . 

rather than to reduce the total amount of money potentially 

available to promote political expression.” 424 U.S. at 21–22. 

That is a contribution limit through and through. 

The LNC’s second tack is somewhat more creative, albeit 

no more successful. Consider, the LNC posits, a contribution 

from Donor Doe that exceeds the base limit by $1, i.e., a 

$33,401 donation. Under the cromnibus amendment’s twotiered contribution limit, the committee may use Doe’s extra 

dollar to pay for a presidential nominating convention but not 

a midterm convention, or for a sign on its headquarters but not 

a billboard on the street. According to the LNC, then, 

regardless of whether the two-tiered limit imposes a 

permissible contribution ceiling on donors, with respect to 

recipients, FECA’s “spending purpose restrictions directly 

limit how the LNC may express itself” based on the content of 

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its speech. Appellant’s Br. 46; see also Reply Br. 20 (criticizing 

the Commission’s “obsessive focus on contributors’ interests” 

as “irrelevant, because the restrictions at issue target the 

parties’ accounts” and because “[i]t is not the donors who are 

barred from spending beyond the accounts’ segregated 

purposes”). For this proposition, the LNC relies on Reed v. 

Town of Gilbert, in which the Court recently held that laws 

“defining regulated speech by particular subject matter, . . . 

function[,] or purpose,” “are subject to strict scrutiny.” 135 S. 

Ct. 2218, 2227 (2015); see also Appellant’s Br. 47–48 (arguing 

that “[c]haracterizing FECA’s revised contribution limit as a 

pure contribution limit does not alter the fact that it ‘target[s] 

speech based on its communicative content,’ ‘by particular 

subject matter, and . . . by its function or purpose’” (second and 

third alterations in original) (citation omitted) (quoting Reed, 

135 S. Ct. at 2226–27)).

But the LNC misses one crucial element in the “contentbased restriction on speech” inquiry: speech. Recall that

Buckley drew a clear distinction between spending money 

(expenditures) and receiving money (contributions). 

Restrictions on the former regulate speech, as “virtually all 

meaningful political communications in the modern setting 

involve the expenditure of money” so that an absolute limit on 

a political party’s expenditures necessarily restricts its total 

amount of expression. Buckley, 424 U.S. at 11. Restrictions on 

the latter, however, are something different. Receiving money 

facilitates speech, to be sure, but a bank account balance 

becomes speech only when spent for expressive purposes. This 

is why the Court has made clear “that contribution limits 

impose serious burdens on free speech only if they are so low 

as to ‘preven[t] . . . political committees from amassing the 

resources necessary for effective advocacy.’” McConnell, 540 

U.S. at 135 (quoting Buckley, 424 U.S. at 21).

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So there lies the solution to the Donor Doe problem. The 

LNC’s speech occurs when it spends Doe’s money on political 

expression. That speech remains unencumbered by FECA 

because, as discussed above, see supra at 24–25, the cromnibus

amendment’s two-tiered contribution limit imposes no

expenditure limit. True, the LNC may not spend Doe’s

additional dollar on a billboard. But it may spend as many 

dollars from as many non-Does as it wants on billboards, so

long as it spends no more than $33,400 from any single donor. 

The LNC’s speech is thus subject to no restriction, contentbased or otherwise. 

We emphasize that this case implicates only the sort of 

line-drawing exercises that inhere in a system of federal 

campaign finance regulation—that is, lines that define in 

evenhanded terms covered recipients, donors, and 

contributions. This case, in other words, presents no plausible 

claim that FECA’s two-tiered contribution limit restricts

contributions based on the donor’s identity or viewpoint.

And yet, the LNC argues that FECA’s two-tiered 

contribution limit merits strict scrutiny. Consequently, by the 

LNC’s logic, FECA would be rife with content-based 

restrictions on recipients’ speech. For example, the McConnellapproved BCRA prohibits national party committees from 

“spend[ing] any funds,” 52 U.S.C. § 30125(a)(1), donated in 

excess of FECA’s limits, which, in turn, apply to contributions 

made “for the purpose of influencing any election for Federal 

office,” id. § 30101(8)(A)(i). Likewise, BCRA’s soft-money 

ban prohibits state party committees from spending non-FECA 

contributions on “Federal election activity.” Id. § 30125(b). If, 

as the LNC argues, a limit on contributions made to segregated 

accounts dedicated to particular “uses” counts as a contentbased restriction on speech, then so, too, would restrictions on 

spending donations “made . . . for the purpose of influencing 

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any election for Federal office” or on expending funds for 

“Federal election activity.” But that, of course, is not the case: 

as the Court explained in McConnell, BCRA does not 

“burden[] speech in a way that a direct restriction on the 

contribution itself would not.” 540 U.S. at 139.

Consequently, the LNC essentially asks us to conclude that 

Reed’s application of strict scrutiny to laws that “defin[e]

regulated speech by particular subject matter, . . . function[,] or 

purpose,” 135 S. Ct. at 2227, overruled, by implication alone, 

McConnell’s application of closely drawn scrutiny to FECA’s 

contribution limits. To put it mildly, we have our doubts. But

if the Supreme Court had intended to shake the constitutional

foundation of FECA’s contribution-limit architecture, then it is 

the Supreme Court’s province to say so. See Rodriguez de 

Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 

(1989) (“If a precedent of [the Supreme] Court has direct 

application in a case, yet appears to rest on reasons rejected in 

some other line of decisions, the Court of Appeals should 

follow the case which directly controls, leaving to [the 

Supreme] Court the prerogative of overruling its own 

decisions.”). Unless and until the Court expressly abrogates

McConnell, this “inferior court” lacks authority to “conclude 

[that the Supreme Court’s] more recent case[]” has, “by 

implication, overruled an earlier precedent.” Agostini v. Felton, 

521 U.S. 203, 237 (1997). 

B.

With no reason to apply strict scrutiny to the cromnibus 

amendment’s two-tiered contribution limit, we again assume 

that closely drawn scrutiny supplies the appropriate test. We 

say “assume” because it remains unclear whether closely 

drawn scrutiny applies to a recipient’s First Amendment 

interests alone, see supra at 13, and the LNC declines to invoke 

the rights of its donors, see supra at 11, 25–26. Nevertheless,

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because we conclude that the cromnibus amendment’s twotiered contribution limit survives closely drawn scrutiny, we 

have no need to determine whether a less stringent standard of 

review may apply. 

In applying closely drawn scrutiny, “we must assess the fit 

between the stated governmental objective and the means 

selected to achieve that objective.” McCutcheon, 572 U.S. at 

199 (plurality opinion). “[I]f a law that restricts political speech 

does not ‘avoid unnecessary abridgement’ of First Amendment 

rights, it cannot survive ‘rigorous’” closely drawn review. Id.

(internal citation omitted) (quoting Buckley, 424 U.S. at 25, 

29). 

The LNC makes no attempt to challenge the government’s 

significant anticorruption interest served by limiting the size of 

contributions to political parties. Indeed, the LNC invokes the 

district court’s factual finding on this point: “[T]he essential 

truth,” says the committee, “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 . . . .’” Appellant’s Br. 57 (alterations in original) 

(quoting CF ¶ 36). Rather than contesting the need for 

contribution limits, the LNC makes a more refined point. “It is 

one thing to generalize that larger contributions pose a greater 

risk, and for that reason, impose a simple contribution limit,” 

argues the committee, but “[r]estricting 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.” Id. at 56. In other 

words, conceding the need for an overall contribution limit, and 

taking no issue with drawing that line at either $33,400 or 

$334,000, the LNC questions whether the government can 

demonstrate an anticorruption interest in treating general- and 

dedicated-purpose contributions differently. 

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Right out of the gate, the LNC’s argument faces a high

hurdle: the cromnibus amendment increased the total amount 

individuals may contribute to a political party. Before 2014, the 

LNC could accept only a base-limit sized contribution from 

any one person; now it may accept ten times that amount. 

Consequently, the LNC’s argument sounds very much like a 

grievance with Congress’s decision to raise contribution limits. 

But so long as contribution limits apply equally to all donors 

and recipients, “[t]here is . . . no constitutional basis for 

attacking contribution limits on the ground that they are too 

high.” Davis v. Federal Election Commission, 554 U.S. 724, 

737 (2008). If, as the LNC concedes, the government had a 

legitimate anticorruption interest in keeping individual 

contributions below $33,400, then, by simple mathematics, it 

must also have an interest in keeping contributions below 

$334,000.

We hasten to add a caveat. Although a law does not offend 

the First Amendment merely because it “conceivably could 

have restricted even greater amounts of speech in service of 

[its] stated interests,” a law’s underinclusivity—in this case, the 

fact that FECA restricts some contributions less than others—

nonetheless “can raise ‘doubts about whether the government 

is in fact pursuing the interest it invokes.’” Williams-Yulee v. 

Florida Bar, 135 S. Ct. 1656, 1668 (2015) (quoting Brown v. 

Entertainment Merchants Ass’n, 564 U.S. 786, 802 (2011)). 

But we see no reason for such skepticism in this case, as 

allowing donors to make larger contributions into each of the 

new dedicated-purpose accounts serves Congress’s legitimate 

interest in relaxing restrictions on First Amendment activity

where, as it has concluded here, it can achieve its anticorruption 

interest with less stringent limits.

Take the new, higher limit on contributions to pay for 

presidential nominating conventions. In April 2014, Congress 

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ended public funding for such conventions, leaving parties on 

their own. See Gabriella Miller Kids First Research Act, Pub. 

L. No. 113-94, 128 Stat. 1085 (2014). The cromnibus 

amendment gives parties a tool for making up for that shortfall, 

ensuring, as Congress must, that parties remain capable of 

“amassing the resources necessary for effective advocacy.” 

Buckley, 424 U.S. at 21.

Equally benign are the other two new dedicated-purpose 

accounts, one for party headquarters and the other for election 

recounts and “other legal proceedings.” 52 U.S.C. 

§ 30116(a)(9). As the Court explained in McConnell, the 

donations “that pose the greatest risk of . . . corruption” are 

“those contributions . . . that can be used to benefit federal 

candidates directly.” 540 U.S. at 167. Congress could have 

permissibly concluded that unlike contributions that can be 

used for, say, television ads, billboards, or yard signs, 

contributions that fund mortgage payments, utility bills, and 

lawyers’ fees have a comparatively minimal impact on a 

party’s ability to persuade voters and win elections. Indeed, 

congressional leaders supporting the cromnibus amendment 

emphasized that “many” of the “expenditures made from the 

[dedicated-purpose] accounts” are “not for the purpose of 

influencing federal elections.” 160 Cong. Rec. S6814 (daily ed. 

Dec. 13, 2014) (statement of Sen. Reid); id. at H9286 (daily ed. 

Dec. 11, 2014) (statement of Rep. Boehner). That makes good 

sense: headquarters, once built, exist regardless of whether an 

election is afoot, and recounts, by definition, can occur only 

after votes have been cast. In fact, before BCRA, the 

Commission entirely excluded donations for both party 

headquarters and election recounts from the definition of 

“contribution.” See 11 C.F.R. § 100.7(b)(12) (2002) (“A gift 

. . . made to a national committee . . . of a political party is not 

a contribution if it is specifically designated to defray any cost 

incurred for construction or purchase of any office facility 

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which is not acquired for the purpose of influencing the 

election of any candidate in any particular election for Federal 

office.”); id. § 100.7(b)(20) (“A gift . . . made with respect to a 

recount of the results of a Federal election, or an election 

contest concerning a Federal election, is not a contribution 

. . . .”). 

We are untroubled in this case by the fact that, as the LNC 

observes, the cromnibus amendment passed Congress without 

the sort of robust record of congressional factfinding that 

accompanied BCRA. In one sense this might be expected; after 

all, BCRA imposed new contribution limits, so its additional

restriction on First Amendment rights required justification. 

The cromnibus amendment, by contrast, did just the opposite: 

it relaxed contribution limits. Had BCRA’s extensive 

legislative history identified some troubling finding related 

specifically to conventions, headquarters, or legal expenses, we 

would perhaps harbor more concern about the cromnibus

amendment’s relatively stingy congressional record. But we 

have discovered in that record no basis for any such concern, 

leaving us without any reason to conclude that the Congress of 

2014 committed constitutional error by determining that, a 

dozen years after BCRA, times and circumstances had 

sufficiently changed to permit it to deal more generously with

expense categories less directly tied to particular candidates or 

elections. See Wagner v. Federal Election Commission, 793 

F.3d 1, 30 (D.C. Cir. 2015) (en banc) (noting that contribution 

restrictions need not address “speculative” concerns).

Our dissenting colleague worries that Congress may have 

enacted the cromnibus amendment not to better tailor 

contribution limits to serve the government’s anticorruption 

interest, but rather to benefit the major parties that do the most

spending on segregated-account activities. See Op. at 7–9

(Griffith, J.). But the LNC itself, though displeased that 

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33

FECA’s two-tiered contribution limit more closely “align[s] 

with the financial needs and goals of the incumbent parties,” 

Appellant’s Br. 58 (internal quotation marks omitted), 

expressly disclaims any argument that “the First Amendment 

requires a level electoral playing field, free of the advantages 

that speakers may have owing to their resources,” Opposition 

at 26; see also id. at 27 (stating that the LNC’s “merits briefing 

[is] bereft of even a molecule of competitive disadvantage

theory” and arguing that “it is absurd for the [Commission] to 

insist” otherwise). And indeed, the First Amendment requires 

no such thing. While Congress may not enact contribution 

limits that “magnify the advantages of incumbency to the point 

where they put challengers to a significant disadvantage,” 

Randall, 548 U.S. at 248 (plurality opinion), neither is it “an 

acceptable governmental objective,” “[n]o matter how 

desirable it may seem,” “to ‘equaliz[e] the financial resources 

of candidates,’” McCutcheon, 572 U.S. at 207 (plurality

opinion) (second alternation in original) (quoting Arizona Free 

Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 

721, 748, 750 (2011)). Therefore, “if Congress concludes that 

allowing contributions of a certain amount does not create an 

undue risk of corruption or the appearance of corruption,” the 

Court has explained, then “a candidate who wishes to restrict 

an opponent’s fundraising cannot argue that the Constitution 

demands that contributions be regulated more strictly.” Davis, 

554 U.S. at 737. By the same token, the mere fact that

additional fundraising opportunities will benefit some political 

parties over others does not itself render Congress’s relaxation 

of contribution limits suspect under the First Amendment. See 

Federal Election Commission v. Massachusetts Citizens for 

Life, Inc., 479 U.S. 238, 257 (1986) (“Political ‘free trade’ does 

not necessarily require that all who participate in the political 

marketplace do so with exactly equal resources.”). We thus see 

no reason to “‘doubt[] . . . [that] the government is in fact 

pursuing the interest it invokes,’” Williams-Yulee, 135 S. Ct. at

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34

1668 (quoting Brown, 564 U.S. at 802), to justify FECA’s twotiered contribution limit: combatting quid pro quo corruption 

and its appearance.

At bottom, the cromnibus amendment represents just 

another tweak in Congress’s decades-long project to fine-tune

FECA’s balance between speech and associational rights, on 

the one hand, and the government’s anticorruption interest, on 

the other. That balance, to be sure, remains imperfect. But 

closely drawn scrutiny “require[s] ‘a fit that is not necessarily 

perfect, but reasonable; that represents not necessarily the 

single best disposition but one whose scope is in proportion to 

the interest served . . . .’” McCutcheon, 572 U.S. at 218 

(plurality opinion) (internal quotation marks omitted) (quoting 

Board of Trustees of the State University of New York v. Fox, 

492 U.S. 469, 480 (1989)). And lacking any “‘scalpel to probe’ 

each possible contribution level,” we “defer[] to the 

legislature’s” “empirical judgments” about “the precise 

restriction necessary to carry out the statute’s legitimate 

objectives.” Randall, 548 U.S. at 248 (plurality opinion)

(quoting Buckley, 424 U.S. at 30). 

Here, Congress drew that line at $33,400 for generalpurpose spending and $100,200 for dedicated-purpose 

spending. The LNC has given us no reason to think that this 

two-tiered limit would offend the First Amendment. The 

cromnibus amendment’s limits are closely drawn to the 

government’s anticorruption interest, and, as compared to the 

pre-2014 baseline, they certainly avoid unnecessary 

infringement of associational and speech rights. We therefore 

answer the second and third certified questions in the negative: 

FECA’s two-tiered contribution limit, both on its face and as 

applied to Shaber’s bequest, does not violate the LNC’s First 

Amendment rights. 

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V. 

The task of crafting campaign finance restrictions is, in 

many ways, a zero-sum game. Make the regime too restrictive, 

and you threaten “fundamental First Amendment interests” by 

burdening citizens’ political expression. Buckley, 424 U.S. at

23. Make the regime too permissive, and you threaten “the 

integrity of our system of representative democracy” by failing 

to prevent quid pro quo corruption and its appearance. Id. at 

26–27. Balancing these interests has turned out to be a difficult

and iterative task. For the reasons given above, we conclude 

that the current version of FECA—both its application of 

contribution limits to Shaber’s bequest and its use of a twotiered contribution limit—has achieved a constitutionally 

permissible balance. Therefore, although we deny the 

Commission’s motion to dismiss for lack of standing, we reject 

each of the LNC’s three constitutional challenges on the merits. 

So ordered.

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GRIFFITH, Circuit Judge, concurring in part and dissenting 

in part: When the government restricts First Amendment 

freedoms, it “bears the burden of proving the constitutionality 

of its actions.” McCutcheon v. FEC, 572 U.S. 185, 210 (2014) 

(plurality opinion) (quoting United States v. Playboy Entm’t 

Grp., 529 U.S. 803, 816 (2000)). Here, the government has not 

justified the cromnibus amendments’ two-tiered scheme for 

contributions to national political parties. I therefore part ways 

with the majority on the second and third certified questions.

The appropriate standard of review is closely drawn 

scrutiny, as the majority assumes and Judge Katsas explains. 

See Maj. Op. at 28; Op. at 1-5 (Katsas, J.). Under this standard, 

the government must “demonstrate[] a sufficiently important 

interest and employ[] means closely drawn to avoid 

unnecessary abridgment” of First Amendment freedoms. 

Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). The only 

qualifying interest is combating quid pro quo corruption and its 

appearance, and we require the government to employ “a 

means narrowly tailored to achieve the desired objective.” 

McCutcheon, 572 U.S. at 192, 218 (quoting Bd. of Trs. of State 

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). This standard 

is “rigorous,” and the government will not prevail if there is “a 

substantial mismatch between [its] stated objective and the 

means selected to achieve it.” Id. at 197, 199 (first quoting 

Buckley, 424 U.S. at 29).

The Libertarian National Committee (LNC) would take no 

issue with a single contribution limit set at $33,400 or

$334,000. Maj. Op. at 29. Indeed, a challenge to such a limit 

would be foreclosed by McConnell v. FEC, 540 U.S. 93 (2003). 

There, the Supreme Court held that the Federal Election 

Campaign Act permissibly prohibited a donor from 

contributing more than $25,000 to a national political party

because the government showed that the prohibition 

substantially advanced, and was properly tailored to, the 

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2

government’s interests in preventing corruption or its 

appearance. See McConnell, 540 U.S. at 142-61.

But McConnell does not resolve this case, because the 

two-tiered scheme here differs in important waysfrom the limit 

upheld in McConnell. Rather than limiting all contributions

above a certain level, the scheme prohibits contributions above 

the general limit of $33,400 but makes exceptions to that 

general limit by allowing additional contributions of up to 

$100,200 to each of three segregated accounts for presidential 

nominating conventions, party headquarters, and election 

recounts and litigation. See 52 U.S.C. § 30116(a)(1)(B), (a)(9);

Maj. Op. at 3-4.

1 This is a new scheme. McConnell did not 

address the propriety of a regime with these exceptions, the 

presence of which “can raise doubts about whether the 

government is in fact pursuing the interest it invokes” or 

“reveal that a law does not actually advance” that interest.

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015)

(internal quotation marks omitted). Put differently, the 

cromnibus amendments introduced a critical feature not 

present in McConnell: “Congress’ judgment” that 

contributions of $300,600 to segregated accounts “do not 

unduly imperil anticorruption interests.” Davis v. FEC, 554 

U.S. 724, 741 (2008). Given this judgment by Congress, it is 

now “hard to imagine how” limiting general contributions to 

$33,400 “serv[es] anticorruption goals sufficiently to justify 

the resulting constitutional burden”—unless general and 

segregated contributions differ in a constitutionally meaningful 

way. Id. For these reasons, the government cannot justify 

treating general contributions more restrictively than 

segregated contributions based on McConnell’s approval of a 

since-abandoned congressional judgment. Rather, the 

 

1 Like the majority, I use the limits adjusted for inflation as of 

2015. Maj. Op. at 3-4.

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3

government must show that a new scheme that differentiates 

between general and segregated contributions is closely drawn 

to serve anticorruption interests. 

To do so, the government argues that general and 

segregated contributions raise different corruption concerns. 

This is because general-account spending is more likely to be 

for the purpose of influencing elections and thus raise 

corruption concerns, while segregated-account spending is less 

likely to be for the purpose of influencing elections and thus 

does not raise comparable corruption concerns. See FEC Br. 

46-50. The record does not support this distinction.

The government relies on identical statements from 

Senator Reid and Representative Boehner, who both asserted 

that “many” of the expenditures from segregated accounts are 

“not for the purpose of influencing Federal elections.” 160 

Cong. Rec. S6814 (daily ed. Dec. 13, 2014); id. at H9286 (daily 

ed. Dec. 11, 2014). But these self-serving assertions by 

representatives of the major parties do not tell us whether 

segregated-account spending is any different from generalaccount spending with respect to influencing elections or 

raising corruption concerns. Without that information, we 

simply do not know whether the cromnibus amendments are 

justified in prohibiting all contributions above the general limit 

except those made to segregated accounts. And an ambivalent 

record is not enough to survive closely drawn scrutiny. See

McCutcheon, 572 U.S. at 217 (rejecting aggregate contribution 

limits in part because the government did not provide “any 

real-world examples” that they served anticorruption interests 

by preventing donors from circumventing the base limits);

McConnell, 540 U.S. at 145-154 (upholding limits on softmoney contributions only after identifying extensive evidence 

connecting the limits to the government’s legitimate interests);

cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666-67 

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4

(1994) (in applying intermediate scrutiny to a speech 

restriction, explaining that “we cannot determine” whether 

Congress drew “reasonable inferences based on substantial 

evidence” without “a more substantial elaboration in the 

District Court of the predictive or historical evidence upon 

which Congress relied, or the introduction of some additional 

evidence”); Annex Books, Inc. v. City of Indianapolis, 581 F.3d 

460, 463 (7th Cir. 2009) (Easterbrook, J.) (“[T]here must be 

evidence” to carry a First Amendment burden.). 

The government’s position does not fare any better when 

we examine the segregated accounts more closely. As the 

majority points out, the higher limits on contributions to pay 

for presidential nominating conventions were prompted by the 

end of public funding for such conventions in 2014. The

cromnibus amendments gave parties a “tool for making up for 

that shortfall.” Maj. Op. at 31. That explanation is 

understandable, but it does not establish that there are lesser 

corruption concerns with contributions that help put on 

nominating conventions. There can be no serious doubt that the 

nominating conventions of the major parties are closely 

connected to elections. Contributions to their staging therefore 

appear to raise the same corruption risks as general 

contributions, and the record provides no reason to think 

otherwise.

The record is similarly slim as to the segregated accounts 

for maintaining party headquarters and contesting election 

results. The majority offers that “Congress could have 

permissibly concluded that unlike contributions that can be 

used for, say, television ads, billboards, or yard signs, 

contributions that fund mortgage payments, utility bills, and 

lawyers’ fees have a comparatively minimal impact on a 

party’s ability to persuade voters and win elections.” Id.

Perhaps, but that inference lacks record support. The record 

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5

gives no reason to think that spending on party headquarters or

election contests has a different influence on elections than 

general-account spending, and the majority might just as 

reasonably have said the opposite: that Congress “could have” 

determined that elections are significantly influenced by a 

party headquarters (where parties might host donors and 

connect them to party leaders and candidates) and election 

recounts and litigation (which resolve whether an actual 

candidate wins or loses a particular election). My point is not 

that either of these potential determinations is more reasonable 

than the other; my point is that without record support they are 

“too speculative” to carry a First Amendment burden. 

McCutcheon, 572 U.S. at 210.

Finally, the factual findings made by the district court

provide no better support for the government. The district court 

found that “unrestricted funds are more valuable to national 

party committees and their candidates than funds that may only 

be used for particular categories of expenses.” Findings of Fact 

(“CF”) ¶ 50, Libertarian Nat’l Comm. v. FEC, 317 F. Supp. 3d 

202 (D.D.C. 2018). And according to the government, “it is 

simple common sense that the more a political party values a 

contribution, the more likely that contribution will be or appear 

to be part of a quid pro quo corruption scheme,” making it more 

reasonable for the cromnibus amendments to treat general

contributions more restrictively than segregated contributions. 

FEC Br. 47. The problem for the government, however, is that 

the district court’s findings simultaneously point in the 

opposite direction: “A political party may in some 

circumstances value a contribution with use restrictions more 

highly than a smaller contribution without such restrictions,” 

particularly because money is generally fungible and every 

dollar received through segregated accounts “potentially frees 

up another dollar in the recipient’s general account for 

unrestricted spending.” CF ¶¶ 38-39. The record does not 

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6

clarify whether such a “circumstance” is presented by this case; 

again, we just don’t know. Moreover, even if a dollar donated 

to a general account raised more corruption concerns than a 

dollar given to a segregated account, the government 

acknowledges that “larger contributions to political parties 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.” CF ¶ 35 (alterations omitted). This further 

highlights the poor fit of the cromnibus amendments, which

treat larger contributions to segregated accounts as if they were 

less likely to raise corruption concerns than substantially 

smaller contributions to a general account.

In the absence of any corruption-related difference 

between general and segregated contributions, the government 

has not carried its burden of showing that the two-tiered 

scheme is closely drawn to serve anticorruption interests. This 

conclusion does not rely on a “freestanding underinclusiveness 

limitation,” as Judge Katsas fears. Op. at 20 (Katsas, J.)

(quoting Williams-Yulee, 135 S. Ct. at 1668). Although “the 

First Amendment imposes no freestanding ‘underinclusiveness 

limitation,’” underinclusivity still “creates a First Amendment 

concern when the State regulates one aspect of a problem while 

declining to regulate a different aspect of the problem that 

affects its stated interest in a comparable way.” WilliamsYulee, 135 S. Ct. at 1668, 1670 (first quoting R.A.V. v. City of 

St. Paul, 505 U.S. 377, 387 (1992)). That’s the problem with 

the two-tiered scheme in this case. On this record, segregated 

and general contributions affect the government’s

anticorruption interests in the same way, yet the scheme 

restricts general contributions while declining to restrict 

segregated contributions. Thus, the scheme’s 

underinclusiveness—its exceptions allowing some 

contributions above the general limit—shows that the 

government has not justified prohibiting other contributions 

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7

from exceeding the general limit. See id. at 1670; see also Reed 

v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015) (rejecting a 

speech restriction as “hopelessly underinclusive” under strict 

scrutiny because it drew distinctions between prohibited and 

permissible categories of speech in a way that was not justified 

by the interests asserted by the government); id. at 2239 

(Kagan, J., concurring in the judgment) (rejecting the same 

restriction under intermediate scrutiny due to its 

underinclusivity); Edwards v. District of Columbia, 755 F.3d 

996, 1007-08 (D.C. Cir. 2014) (rejecting a speech restriction as 

“fatally underinclusive” under intermediate scrutiny).

That is enough to resolve the second and third certified 

questions in the LNC’s favor, but in closing I note that there 

are additional reasons to be skeptical of the government’s 

position. The two-tiered scheme’s exceptions loosen 

restrictions on the very contributions that are highly sought by 

major parties but of little use to minor parties. In my view, this 

further undercuts the government’s position that the scheme

pursues the only permissible government interest: combating 

quid pro quo corruption and its appearance. 

Under the scheme, a donor may contribute a total of 

$334,000 to a political party: $33,400 to the general account 

and $100,200 to each of the three segregated accounts. The 

major parties benefit from this scheme because they spend 

substantial sums on activities that can be paid for through 

segregated accounts: They put on lavish nominating 

conventions that are spectacles made for a national audience, 

they maintain expensive headquarters, and they challenge and 

defend in court the outcomes of numerous elections across the 

country. Indeed, from December 2014 through December 

2016, the Republican Party received more than $23 million for

its convention, $26 million for its headquarters, and $5 million 

for election recounts and litigation; the Democratic Party 

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8

received more than $12 million for its convention, $3 million 

for its headquarters, and $6 million for election recounts and 

litigation. CF ¶¶ 45-46; J.A. 90. The cromnibus amendments 

enable the major parties to raise such sums with individual 

contributions of up to $334,000. What’s more, those 

contributions are in effect no different from general 

contributions. So long as a party has segregated-account 

expenses, a dollar received in a segregated account frees up a 

dollar in the general account that otherwise might have been 

used to defray the segregated-account expenses. Therefore, 

until a party receives enough money to cover its segregatedaccount expenses, the two-tiered scheme establishes an 

effective general contribution limit of $334,000. 

By contrast, minor parties gain little from this scheme 

because they do not have much use for segregated-account 

contributions. The LNC, for example, holds more modest 

conventions and maintains a less expensive headquarters than 

the major parties, and the LNC has never spent money on 

election recounts and is unlikely to do so in the future. See LNC 

Br. 13-15. In most years, its expenses for these purposes are 

less than $500,000. See id.; CF ¶¶ 25-29. Lacking further 

segregated-account expenses, the LNC and similar minor 

parties do not benefit much from the higher limit for 

segregated-account contributions. Instead, they seek 

contributions that can be used for other purposes, and those 

contributions are limited to $33,400. 

In this way, the scheme’s exceptions loosen restrictions on 

those contributions that are useful to major parties but not to 

minor parties. Of course, this effect is in part attributable to the 

various levels of support for different parties and the parties’ 

decisions on how to raise and spend contributions. And as the 

majority notes, this effect alone does not render the scheme 

unconstitutional. See Maj. Op. at 33. Even so, it raises further 

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9

doubts that the scheme is tailored to serve anticorruption 

interests rather than an impermissible interest, such as 

disadvantaging minor parties. See Williams-Yulee, 135 S. Ct. 

at 1668. This concern overlaps with those that motivate

comparative-disadvantage cases, see, e.g., Randall v. Sorrell

548 U.S. 230, 248 (2006) (a statute regulating contributions 

must not “magnify the advantages of incumbency to the point 

where [it] put[s] challengers to a significant disadvantage”), 

but it is not an attempt to raise a comparative-disadvantage 

claim on the LNC’s behalf, Maj. Op. at 32-33. It simply

provides further record-based reasons to be skeptical that the 

two-tiered scheme is tailored to serve anticorruption interests.

Because the government has not carried its burden of 

showing that the scheme is closely drawn to combat corruption 

or its appearance, I would hold that the scheme violates the 

First Amendment. Having reached a different decision on the 

merits, the majority has no occasion to address the appropriate 

remedy. I therefore do not reach the issue either.2 But on the 

merits of the second and third certified questions, I respectfully 

dissent.

 

2 The appropriate remedy, i.e., the “upshot” of holding that the 

scheme violates the First Amendment, Op. at 23 (Katsas, J.), is 

disputed by the parties. The LNC argues that the appropriate remedy 

is excising the use restrictions while leaving the increased overall 

limit, allowing a donor to contribute $334,000 for general use. LNC 

Br. 62-63; accord Amicus Br. of the Goldwater Inst. 8. The 

government urges the pre-cromnibus status quo, which would allow 

a donor to contribute $33,400 for general use and nothing more. FEC 

Br. 54-56. Alternatively, the court could remand this matter for 

further record development. See Order, Holmes v. FEC, No. 14-5281 

(D.C. Cir. Jan. 30, 2015) (en banc) (per curiam); Buckley v. Valeo, 

519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (per curiam); see also 

Turner, 512 U.S. at 668.

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KATSAS, Circuit Judge, with whom Circuit Judge

HENDERSON joins, concurring in part, concurring in the 

judgment in part, and dissenting in part: This case involves 

statutory limits on contributions that individuals may make to 

political parties. In McConnell v. FEC, 540 U.S. 93 (2003), the 

Supreme Court held that these contribution limits are not 

facially unconstitutional. Here, we consider whether the limits 

are unconstitutional as applied to contributions made through 

bequests. We also consider whether the limits became 

unconstitutional when Congress amended them in 2014. 

I 

To frame the relevant inquiries, we must first decide the 

appropriate level of First Amendment scrutiny. The majority 

reserves this question, ante at 13, 28, but I would decide it. 

In 1976, the Supreme Court fixed the level of scrutiny for 

limits on contributions to candidates for federal elective 

offices. Those limits “may be sustained if the State 

demonstrates a sufficiently important interest and employs 

means closely drawn to avoid unnecessary abridgment” of 

speech and associational freedoms. Buckley v. Valeo, 424 U.S. 

1, 25 (1976) (per curiam). Subsequently, the Court has applied

this same level of scrutiny to assess the constitutionality of 

contribution limits imposed on all kinds of donors and 

recipients, including candidates for federal and state offices;

national, state, and local political parties; and political action 

committees. See, e.g., McCutcheon v. FEC, 572 U.S. 185, 

196–99 (2014) (plurality opinion); Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721, 734–35 (2011); 

Davis v. FEC, 554 U.S. 724, 736–37 (2008); Randall v. Sorrell, 

548 U.S. 230, 246–48 (2006) (plurality opinion); McConnell, 

540 U.S. at 134–41; FEC v. Beaumont, 539 U.S. 146, 161–62 

(2003); FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. 431, 446–56 (2001); Nixon v. Shrink Mo. Gov’t PAC, 528 

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2 

U.S. 377, 387–88 (2000). For shorthand, this level of scrutiny

is now referred to (rather clumsily) as “closely drawn scrutiny.” 

Despite this long line of precedent, the Federal Election 

Commission urges us to lower the bar, at least with respect to 

bequests. The FEC asks us to consider only whether the 

challenged contribution limits prevent the Libertarian National

Committee, which received the bequest at issue here, from 

“amassing the resources necessary for effective advocacy.” 

The FEC plucks that phrase out of Buckley, which observed 

that contribution limits “could have a severe impact” if they 

prevented recipients from amassing such resources. 424 U.S. 

at 21. The FEC reasons that bequests implicate neither the 

donor’s speech interests nor anyone’s associational interests, 

and the recipient’s speech interests are impaired only if it is

prevented from mounting, in the aggregate, some quantum of 

“effective” advocacy. 

This analysis is flawed at every turn. To begin, “effective 

advocacy” is not a reduced, free-floating level of First 

Amendment scrutiny. If a contribution limit prevents effective

advocacy, then it is insufficiently tailored to satisfy closely

drawn scrutiny. See Randall, 548 U.S. at 246–62 (plurality 

opinion); id. at 267–73 (Thomas, J., concurring in the 

judgment). But contribution limits may be insufficiently 

tailored for other reasons, such as “a substantial mismatch 

between the Government’s stated objective and the means 

selected to achieve it.” McCutcheon, 572 U.S. at 199 (plurality 

opinion). And regardless of any tailoring problems, 

contribution limits are unconstitutional if the asserted 

government interest is insufficiently important. See, e.g., 

Davis, 554 U.S. at 740 n.7; SpeechNow.org v. FEC, 599 F.3d 

686, 695 (D.C. Cir. 2010) (en banc). 

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Likewise, the Supreme Court has never attempted “to 

parse distinctions between the speech and association standards

of scrutiny for contribution limits.” Shrink Mo. Gov’t, 528 U.S. 

at 388. Rather, it has fashioned what the majority aptly 

describes as a “single unified test that applies an intermediate 

level of scrutiny to contribution limits.” Ante at 13. Thus, in 

reaffirming the appropriateness of closely drawn scrutiny in 

McConnell, the Court held it immaterial that the challenged 

provisions restricted the acceptance of contributions by parties 

rather than the giving of contributions by donors. See 540 U.S. 

at 138. Applying closely drawn scrutiny in SpeechNow, this 

Court held that the challenged contribution limits violated the

First Amendment rights of both the donors and the recipient, 

without hinting at any distinction between the two. See 599 

F.3d at 690–96. And the three-judge district court in 

Republican National Committee v. FEC, 698 F. Supp. 2d 150 

(D.D.C.) (Kavanaugh, J.), aff’d, 561 U.S. 1040 (2010) (mem.), 

applied closely drawn scrutiny to assess contribution limits 

challenged only by recipients. See id. at 153, 156. Of course, 

different contribution limits may impact speech and 

associational interests in different ways, but “we account for 

[those impacts] in the application, rather than the choice, of the 

appropriate level of scrutiny.” McConnell, 540 U.S. at 141. 

The FEC’s plea for less-than-intermediate scrutiny is also 

radical. For over four decades, various justices have urged that 

because contribution limits “operate in an area of the most 

fundamental First Amendment activities,” Buckley, 424 U.S. at 

14, they should be subjected to strict rather than closely drawn 

scrutiny. See, e.g., Shrink Mo. Gov’t, 528 U.S. at 405–10 

(Kennedy, J., dissenting); id. at 410–30 (Thomas, J., joined by 

Scalia, J., dissenting); Colo. Republican Fed. Campaign 

Comm. v. FEC, 518 U.S. 604, 635–44 (1996) (Colorado I) 

(Thomas, J., dissenting in part); Buckley, 424 U.S. at 241–46 

(Burger, C.J., dissenting in part); id. at 290 (Blackmun, J., 

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dissenting in part). McConnell acknowledged this “significant 

criticism.” 540 U.S. at 137. And in McCutcheon—the Court’s 

most recent decision in this area—the plurality sought to 

minimize the differences between strict and closely drawn 

scrutiny, see 572 U.S. at 196–99, in the face of a continuing 

call for strict scrutiny, see id. at 228–32 (Thomas, J., 

concurring in the judgment). Given this longstanding debate 

over whether closely drawn scrutiny sets the bar too low, it is

quite a stretch to posit that, here, it sets the bar too high. 

The FEC’s proposal would create anomalies in First 

Amendment law more generally. Effective speech often 

requires multiple parties—speakers, listeners, and, in the 

context of mass markets, patrons. The Supreme Court 

generally treats the rights of these parties as “reciprocal.” Va. 

State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748, 756–57 (1976) (“the protection afforded is to the

communication, to its source and to its recipients both”). So,

the right of one party to speak implies the right of another party 

to listen. See id. Likewise, the right of one party to fund speech 

implies the right of another party to accept the funds. Cf. 

McConnell, 540 U.S. at 138 (“it is irrelevant that Congress 

chose ... to regulate contributions on the demand rather than 

the supply side”). It would be odd enough to isolate one from 

the other in deciding the merits, much less to do so in fixing an 

appropriate level of scrutiny. 

Finally, in fixing the level of scrutiny, death should make 

no difference. Of course, living donors have substantial speech 

and associational interests in contributing money to political 

parties of their choice. See, e.g., McCutcheon, 572 U.S. at 191–

92 (plurality opinion); id. at 228 (Thomas, J., concurring in the 

judgment). Yet a contribution is no less speech and expressive

association if the donor makes it through a bequest rather than

a lifetime transfer. Either way, the donor intends to support the 

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5 

political views of the party, and an observer would reasonably 

understand as much. See Buckley, 424 U.S. at 16–17; cf. 

Spence v. Washington, 418 U.S. 405, 410–11 (1974) (per 

curiam). Likewise, the speech and associational interests of 

recipients—in using all available resources to fund political 

speech—do not vary depending on whether contributions come 

from living or deceased donors. 

In sum, the FEC’s attempt to ratchet down the level of 

scrutiny by separating speech from expressive association, 

donors from recipients, and the living from the dead is 

unsupported by precedent and unsound in principle. I would 

hold what the majority only assumes—that closely drawn 

scrutiny governs this case. 

II 

Under closely drawn scrutiny, limits on political 

contributions are constitutional “if the State demonstrates a 

sufficiently important interest and employs means closely 

drawn to avoid unnecessary abridgment” of speech and 

associational freedoms. Buckley, 424 U.S. at 25. In this 

sensitive area, the only sufficiently important government 

interests are the prevention of quid pro quo corruption—“a 

direct exchange of an official act for money”—and its 

appearance. McCutcheon, 572 U.S. at 192 (plurality opinion). 

Interests in equalizing “electoral opportunities,” and in 

preventing donors from acquiring “influence over or access to 

elected officials or political parties,” are insufficient. Id. at 

207–08 (quotation marks omitted). Moreover, “the 

Government bears the burden of proving the constitutionality 

of its actions,” id. at 210 (quotation marks omitted), consistent 

with how intermediate scrutiny works in other First 

Amendment contexts. See, e.g., United States v. Nat’l 

Treasury Emps. Union, 513 U.S. 454, 475 (1995) (“the 

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Government ... must demonstrate that the recited harms are 

real, not merely conjectural, and that the regulation will in fact 

alleviate these harms in a direct and material way” (quotation 

marks omitted)) (speech restrictions on government 

employees); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 

664–68 (1994) (plurality opinion) (same for content-neutral 

speech restrictions); Edenfield v. Fane, 507 U.S. 761, 770–71 

(1993) (same for commercial speech restrictions). 

In Buckley, the Supreme Court applied these principles to 

reject a facial challenge to limits on contributions made to 

candidates for federal elective offices. The Court noted 

“deeply disturbing examples” of “quid pro quo” corruption, 

which proved that the government’s asserted interest was “not 

an illusory one.” 424 U.S. at 26–27. The Court cited “a 

number of the abuses” discussed in our Buckley opinion, id. at 

27 n.28, which explained that the record before Congress was 

“replete with specific examples of improper attempts to obtain 

governmental favor in return for large campaign 

contributions,” 519 F.2d 821, 839 n.37 (D.C. Cir. 1975) (en 

banc). The Supreme Court further reasoned that, even if most 

contributors do not improperly seek quid pro quo exchanges, 

“suspect contributions” are “difficult to isolate.” 424 U.S. at 

30. So, to prevent actual and apparent corruption, the 

government may eliminate the “opportunity for abuse” from 

large contributions. Id.

In McConnell, the Court rejected a facial challenge to 

limits on contributions to political parties. Given what it 

described as the “unity of interest” between parties and elected 

officials, the Court found “neither novel nor implausible” the 

supposition that large contributions to a party could corrupt its 

elected officials. 540 U.S. at 144–45. The Court also discussed 

at length the supporting evidence: the major political parties 

annually had been raising hundreds of millions of dollars in 

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previously unregulated soft money, id. at 124; these 

contributions often were solicited by, and used to help, 

individual candidates, id. at 146; wealthy donors made large 

contributions to both major parties, id. at 148; and these 

contributions impacted a wide range of legislation, id. at 150. 

III 

A 

This case presents a challenge to limits on contributions to 

political parties made through bequests. In a prior case, the 

LNC unsuccessfully sought to enjoin application of the 

contribution limits to all bequests. Libertarian Nat’l Comm., 

Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) (LNC I). Here, 

the LNC seeks to enjoin application of the limits only to a 

bequest made by Joseph Shaber. 

The facts surrounding this bequest are undisputed. Shaber 

neither coordinated with the LNC regarding his decision to 

include the party in his will nor even informed the party of that 

decision. Libertarian Nat’l Comm., Inc. v. FEC, 317 F. Supp. 

3d 202, 249 (D.D.C. 2018) (LNC II). “Aside from pursuing its 

ideological and political mission, the LNC has provided 

nothing of value to Mr. Shaber, or to anyone else, in exchange 

for his bequest.” Id. at 251. The bequest imposed no 

conditions and made no requests, but instead provided for the 

LNC to take “outright” a contribution ultimately valued at 

about $235,000. Id. at 250 (quotation marks omitted). Over 

the course of his lifetime, Shaber donated a total of $3,315 to

the LNC, made in 46 separate gifts spread out over 24 years. 

Id. at 248–49. Besides making these contributions, Shaber had 

no other relationship with the LNC. Id. at 251. 

In its prior cases on contribution limits, the Supreme Court 

considered no issues specific to bequests. Because the LNC 

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8 

does not rest its claim on “the same factual and legal arguments 

the Supreme Court expressly considered” in Buckley and 

McConnell, those precedents do not foreclose the LNC’s asapplied challenge here. Republican Nat’l Comm., 698 F. Supp. 

2d at 157 (“McConnell permits as-applied challenges”); see 

also Doe v. Reed, 561 U.S. 186, 201 (2010) (“upholding the 

law against a broad-based challenge does not foreclose a 

litigant’s success in a narrower one”). Indeed, the Supreme 

Court has sustained an as-applied challenge to corporateexpenditure limits previously held facially constitutional, FEC 

v. Wis. Right to Life, Inc., 551 U.S. 449, 476–82 (2007) (WRTL) 

(plurality opinion), and this Court has sustained an as-applied

challenge to contribution limits previously held facially 

constitutional, SpeechNow, 599 F.3d at 692–96. Moreover, 

because the LNC’s challenge raises issues not addressed in 

Buckley or McConnell, the government retains its burden of 

proof under heightened scrutiny. See WRTL, 551 U.S. at 464–

65 (plurality opinion). Of course, we must determine which 

facts, if any, distinguish this case from Buckley and McConnell, 

and the breadth of our reasoning will impact the law going 

forward. See Citizens United v. FEC, 558 U.S. 310, 331 (2010) 

(“no general categorical line bars a court from making broader 

pronouncements of invalidity in properly ‘as applied’ cases” 

(quotation marks omitted)). But regardless of the breadth of 

our reasoning, the LNC’s first claim seeks relief only as to 

Shaber’s individual bequest. 

Under these rules for assessing as-applied challenges, I 

would hold that the challenged contribution limits are 

unconstitutional as applied to any of three nested categories: 

bequests, uncoordinated bequests, and Shaber’s bequest. I will

address the categories from broadest to narrowest. 

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1 

“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.” McConnell, 540 U.S. at 144 (quotation marks 

omitted). Here, that means requiring more evidence rather than

less, for there are strong reasons to think that bequests—in 

contrast to contributions from living donors—do not pose a 

significant risk of actual or apparent quid pro quo corruption. 

For one thing, politics operates on notoriously “short 

timeframes,” Citizens United, 558 U.S. at 334, so gifts deferred 

until death—perhaps many election cycles down the road—

will have relatively little value to political parties or their

candidates. For another, there is no easy means for deceased 

donors or their beneficiaries to enforce any corrupt bargains. 

In the context of contributions from living donors, such 

bargains are managed through winks and nods over time, as 

money flows one way and political favors flow the other. See 

McConnell, 540 U.S. at 147 (quoting lobbyist’s testimony that 

“overt words are rarely exchanged about contributions, but 

people do have understandings”). Bequests cannot work like 

that, because the money flows only once, and at death. So, if a 

corrupt donor seeks political favors during his lifetime, when 

the bequest is nothing more than a revocable promise, the 

recipient will have no way to prevent the donor from accepting 

the favors but then reneging on the promise. Or, if the donor 

seeks favors for survivors, he will have no way to ensure 

delivery after death makes the bequest irrevocable and removes 

him from the picture. Either way, inherent constraints limit the 

feasibility of any contemplated exchange. Bequests are thus 

generally “less susceptible ... to misuse,” Beaumont, 539 U.S. 

at 160, than contributions from living donors. 

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The evidence confirms this point. To justify its concerns 

about possible corruption through bequests, the FEC could 

have pointed to anything in any of four records: the legislative 

record of a select committee established by Congress to 

investigate fundraising for the 1972 presidential election, see 

Buckley, 519 F.2d at 839 n.35; the 100,000-page record 

compiled for the three-judge district court in McConnell, see 

251 F. Supp. 2d 176, 209 (D.D.C. 2003); the district-court 

record in LNC I, where all bequests were at issue; or the 

district-court record in this case. Yet, despite the massive 

records in Buckley and McConnell, and the two records made 

in the bequest-specific LNC cases, the FEC points to nothing 

substantiating its concerns. In fact, these records undercut its 

position in three critical respects. 

First, bequests are rarely used for political contributions. 

From 1978 through August 2017, bequests accounted for only 

about $3.7 million in contributions to federal candidates, 

political parties, and all other entities required to file reports 

with the FEC. LNC II, 317 F. Supp. 3d at 247. To put that 

number in perspective, the same group of recipients spent $7 

billion in the 2012 election cycle alone, McCutcheon, 572 U.S. 

at 219 (plurality opinion), and the major political parties spent 

nearly $1.2 billion in 2000 alone, see McConnell, 540 U.S. at 

124. Of course, bequests to political parties might increase if 

the relevant contribution limits were invalidated. But, from 

1978 to 2002, donors could have made unlimited soft-money 

bequests to political parties. See id. at 122–24. And if 

McConnell correctly understood the “unity of interest” 

between political parties and elected officials, such bequests 

would have been almost as enticing as ones made directly to 

the officials. See id. at 144–45. In sum, despite decades of 

little or no relevant regulation, contributions through bequests 

have remained a drop in the proverbial bucket. 

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Second, and perhaps most striking, the FEC does not point 

to even a single quid pro quo exchange—at any time in 

American history—allegedly effected through a bequest. Nor 

do the careful, extensive findings made by the district courts in 

the LNC cases. See LNC I, 930 F. Supp. 2d at 171–90; LNC II, 

317 F. Supp. 3d at 225–57. In developing the records for those

cases, all the FEC could muster up was more evidence of 

corruption involving contributions from living donors. See id.

at 236–42. In striking down limits on independent 

expenditures by corporations, the Supreme Court stressed that 

“[t]he McConnell record was over 100,000 pages long, yet it 

does not have any direct examples of votes being exchanged 

for expenditures.” Citizens United, 558 U.S. at 360 (cleaned 

up). The FEC’s failure of proof here is no less dramatic. 

Third, there is no evidence of testators trying to play both 

sides. In McConnell, the Court found it “[p]articularly telling” 

that wealthy individuals “gave substantial sums to both major 

national parties, leaving room for no other conclusion but that

these donors were seeking influence, or avoiding retaliation, 

rather than promoting any particular ideology.” 540 U.S. at 

148. The FEC alleges nothing comparable as to bequests. This 

should hardly be surprising, for the possibility of a corrupt 

donor securing political favors, not by giving large sums to 

both parties during his lifetime, but by simultaneously 

remembering both parties in his will, seems almost fantastic. 

Against this evidence (or lack thereof), and despite the 

practical problems with effectuating any quid pro quo through 

a bequest, the majority posits that a corrupt bequest might be 

possible—in theory—if the donor and the party worked out the 

exchange in advance. Ante at 14–15. With respect, I find that 

possibility insufficient to discharge the FEC’s significant 

burden of proof under closely drawn scrutiny. The Supreme 

Court has “‘never accepted mere conjecture as adequate to 

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carry a First Amendment burden,’” McCutcheon, 572 U.S. at 

210 (plurality opinion) (quoting Shrink Mo. Gov’t, 528 U.S. at 

392), and so neither should we. 

2 

In any event, contribution limits are unconstitutional as 

applied to uncoordinated bequests. To reiterate, the majority 

posits that bequests could be corrupt if the testator bargained

with the intended beneficiary before his death. Ante at 14–15; 

see also LNC I, 930 F. Supp. 2d at 166 (“making one’s bequest 

known before death could be treated just as a contribution is”). 

But this cannot happen if the testator does not even tell the 

recipient about the planned bequest during his lifetime. In that 

circumstance, a quid pro quo exchange is impossible. 

The only response is that coordinated and uncoordinated 

bequests may be difficult to distinguish, so both must be 

regulated together. But this reasoning runs counter to perhaps

the most fundamental distinction in campaign-finance law—

between contributions and independent expenditures. 

In Buckley, the Court invalidated a limit on the 

expenditures that any person could make “relative to a clearly 

identified candidate.” See 424 U.S. at 39–51 (quotation marks 

omitted). The government defended the expenditure limit as 

necessary to prevent evasion of the limits on contributions to 

candidates. But the governing statute already treated 

“controlled or coordinated expenditures” as “contributions 

rather than expenditures.” Id. at 46 & n.53. And the Court held 

that this distinction between coordinated and independent 

spending also marked a critical constitutional line. Thus, the

treatment of “prearranged or coordinated expenditures” as 

contributions permissibly addressed the government’s concern 

about evading contribution limits. Id. at 47. But the limit on 

independent expenditures did not. As the Court explained: 

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“The absence of prearrangement and coordination of an 

expenditure with the candidate or his agent not only 

undermines the value of the expenditure to the candidate, but 

also alleviates the danger that expenditures will be given as a

quid pro quo for improper commitments from the candidate.” 

Id. Later decisions have reinforced this “fundamental 

constitutional difference” between independent expenditures, 

which are fully protected, and coordinated expenditures, which 

may be and are regulated as contributions. FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 497 

(1985); see, e.g., McConnell, 540 U.S. at 202–03, 219–22; 

Colorado I, 518 U.S. at 613–16 (plurality opinion); FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 251–63 (1986). 

Most recently, in Citizens United, the Court applied this 

reasoning to invalidate limits on independent expenditures by 

corporations and unions. 558 U.S. at 356–60, 365–66. 

In SpeechNow, this Court recognized that the protection 

for independent expenditures also constrains the government’s 

ability to regulate contributions. We held that contribution 

limits are unconstitutional as applied to recipients that engage 

only in independent expenditures. We noted that, after Citizens 

United, “the government has no anti-corruption interest in 

limiting independent expenditures.” 599 F.3d at 693. Then, 

we reasoned: “In light of the Court’s holding as a matter of law 

that independent expenditures do not corrupt or create the 

appearance of quid pro quo corruption, contributions to groups 

that make only independent expenditures also cannot corrupt 

or create the appearance of corruption.” Id. at 694. Because 

no legitimate government interest was implicated, even a 

modest impairment of speech and associational rights would be 

unconstitutional. See id. at 695 (“something ... outweighs 

nothing every time” (quotation marks omitted)). 

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The line between coordinated and uncoordinated spending 

thus runs throughout campaign-finance law, and the FEC 

routinely must police it. Congress has long defined an 

expenditure “independent” of a candidate as one that, in 

pertinent part, was “not made in concert or cooperation with or

at the request or suggestion of such candidate, the candidate’s

authorized political committee, or their agents, or a political

party committee or its agents.” 52 U.S.C. § 30101(17)(B); see 

also id. § 30116(a)(7)(B)(i) (treating expenditures not 

independent of a candidate as “a contribution to such 

candidate”); McConnell, 540 U.S. at 221–22 & n.99. A parallel 

definition now distinguishes expenditures “independent” of 

political parties from contributions to those parties. See id. at 

219–20 & n.97. The Supreme Court has held that this 

definition is not impermissibly vague, id. at 222–23; the FEC 

has promulgated a swath of regulations implementing it, see 

generally 11 C.F.R. pt. 109; and the Commission or the courts 

frequently apply it to determine whether disputed expenditures 

were in fact independent, see, e.g., Colorado I, 518 U.S. at 

619–23 (plurality opinion); AFL-CIO v. FEC, 333 F.3d 168, 

171 (D.C. Cir. 2003). Likewise, other decisions assess whether

specific entities make only independent expenditures and thus 

have a First Amendment right to receive unrestricted 

contributions under SpeechNow. See, e.g., Vt. Right to Life 

Comm., Inc. v. Sorrell, 758 F.3d 118, 140–41 (2d Cir. 2014). 

Armed with extensive disclosure requirements and 

enforcement powers, the FEC routinely determines whether 

disputed expenditures were coordinated or independent. The 

FEC offers no reason why it cannot make the same 

determination as to bequests. Because coordinated and 

uncoordinated bequests can be manageably distinguished, and 

because uncoordinated bequests are not even alleged to present 

any corruption risk, the contribution limits are unconstitutional 

at least as applied to them. 

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3 

Finally, the contribution limits are unconstitutional as 

applied to Shaber’s individual bequest. Not only was his 

bequest uncoordinated, but several additional facts make the 

LNC’s challenge even stronger. 

First, far from coordinating with the LNC, Shaber never 

even told the LNC of the bequest before his death. LNC II, 317 

F. Supp. 3d at 249. With the LNC unaware that a testamentary 

quid might be forthcoming, there could be no quid pro quo 

agreement—nor even any debate about whether to infer such 

an agreement based on winks, implicit understandings, or other 

ambiguous circumstances. 

Second, the bequest came with no strings attached. LNC 

II, 317 F. Supp. 3d at 250. It neither demanded nor even asked 

that the LNC do anything in return. The district court noted 

that, in one other instance, a trustee had requested that the LNC 

use the bequest to help defeat specific candidates. See id. at 

248. There would be nothing wrong with such an agreement, 

for that quo would not involve any “official act” of the 

government. See McCutcheon, 572 U.S. at 192 (plurality 

opinion). But, here, Shaber never sought any quo at all. 

Third, the LNC “provided nothing of value” in exchange 

for the bequest, except perhaps for continuing to “pursu[e] its

ideological and political mission.” LNC II, 317 F. Supp. 3d at 

251. In LNC I, the FEC expressed concern that a political party 

could grant “preferential access” to testators who (unlike 

Shaber) tell the party of the intended gift during their lifetime. 

930 F. Supp. 2d at 186. However, “[i]ngratiation and access 

... are not corruption.” Citizens United, 558 U.S. at 360. And, 

here, Shaber did not seek even that. 

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Fourth, Shaber made only modest contributions to the 

LNC during his lifetime. As the district court explained, 

Shaber’s total lifetime donation of $3,315, made in 46 separate

contributions spread out over 24 years, “is a drop in the bucket 

relative to current law’s annual limit of $33,900 for individuals 

to contribute for any purpose to national political party 

committees, and an even smaller drop relative to the limit of 

$339,000 that individuals may contribute for either general or 

specialized purposes.” LNC II, 317 F. Supp. 3d at 216. 

Likewise, Shaber’s contribution history did not qualify him for

any of the benefits that the LNC affords to its major donors. 

See id. at 242. So, there is no reason to think that the LNC 

might have even identified Shaber as someone likely to make 

a large bequest, much less used that possibility to engineer a 

secret quid pro quo before his death. 

Finally, besides making his modest gifts, Shaber had no 

other relationship with the LNC during his lifetime, LNC II, 

317 F. Supp. 3d at 251, thus making the prospect of corruption 

even more unlikely. 

B 

The majority views the LNC’s as-applied claim as resting 

on nothing more than a factual contention that Shaber’s 

individual bequest was not corrupt. Ante at 16–17. It then 

rejects the claim as inconsistent with Buckley’s holding that, 

because corrupt and legitimate contributions are hard to 

distinguish, “prophylactic” limits may be applied to both. Ante

at 17–19 (quotation marks omitted). But there is more to the 

LNC’s claim. 

As noted above, the fact that the LNC sought relief only as 

to Shaber’s bequest did not prevent it from making substantive 

arguments that sweep more broadly. See Bucklew v. Precythe, 

139 S. Ct. 1112, 1127–28 (2019); Citizens United, 558 U.S. at 

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331. Although the LNC asks us to assess Shaber’s bequest 

based on a totality of the circumstances, it also makes broader

arguments keyed to the general nature of bequests and 

uncoordinated bequests. See, e.g., LNC Opening Br. at 37 

(“[B]arring 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.”); LNC Reply Br. at 14 (“Bequests are

different. Until death, they are merely a revocable promise. 

After death, they are irrevocable, and cannot be policed by the

dead for quid pro quo compliance.”). In my judgment, that was 

enough to preserve the broader arguments—and, as to them, to 

trigger the FEC’s burden of proof under closely drawn scrutiny. 

The FEC did not misapprehend this point; to the contrary, it 

argued both that Buckley forecloses as-applied challenges 

based on the facts of individual cases, FEC Br. at 25–28, and 

that bequests as a category raise the same corruption concerns 

as other kinds of political contributions, id. at 29–32. 

On the merits, the LNC’s substantive arguments do not 

threaten the general justification for prophylactic contribution 

limits. As explained above, contributions made through 

bequests may be safely distinguished as a category—just like 

contributions to groups that make only independent 

expenditures. See SpeechNow, 599 F.3d at 692–96. The same 

is true for the narrower category of contributions made through

uncoordinated bequests. And to the extent that additional facts 

strengthen the LNC’s challenge, there is nothing inappropriate 

about considering them. Successful as-applied challenges 

often turn on the facts of individual cases. See, e.g., WRTL, 

551 U.S. at 469–81 (plurality opinion) (expenditure limit 

impermissibly extended beyond functional equivalent of 

express advocacy); Brown v. Socialist Workers ’74 Campaign 

Comm., 459 U.S. 87, 88 (1982) (disclosure requirement 

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impermissibly subjected party to threats or harassment). 

Likewise, case-specific facts would be necessary to determine 

whether contribution limits prevent individual recipients from 

“amassing the resources necessary for effective advocacy”—a 

type of as-applied challenge that McConnell repeatedly invited. 

540 U.S. at 159 (quotation marks omitted); see id. at 173. 

The majority also suggests that as-applied challenges to 

contribution limits may be appropriate in cases where the 

burdens imposed on speakers are particularly harsh, but not in 

cases where the relevant government interests are particularly 

weak. Ante at 19–20. There is no conceptual reason why that 

should be so, for closely drawn scrutiny requires proof both 

that an important government interest is implicated and that the 

challenged restriction does not infringe speech or associational 

interests unnecessarily. SpeechNow confirms this point. 

There, in striking down contribution limits as applied to 

recipients that make only independent expenditures, we rested 

squarely on the premise that “the government ha[d] no anticorruption interest” in that case, without reaching the question 

of how severely the challenged limits infringed speech and 

associational interests. 599 F.3d at 694–95. 

Finally, it is worth remembering that Buckley and 

McConnell are themselves exceptions to an overarching First 

Amendment principle. “Broad prophylactic rules in the area of 

free expression are suspect,” and “[p]recision of regulation 

must be the touchstone” in this area. NAACP v. Button, 371 

U.S. 415, 438 (1963). Buckley and McConnell qualify that 

principle, by approving “prophylactic” restrictions extending 

to some non-corrupt contributions. McCutcheon, 572 U.S. at 

221 (plurality opinion). But the “prophylaxis” must also have 

limits. See id. Under closely drawn scrutiny, it cannot properly 

be extended to bequests that, as a group and individually, may 

reliably be determined to be legitimate. 

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IV 

Beyond any question about bequests, the LNC challenges 

the contribution limits as amended in 2014. The LNC contends 

that the current limits are unconstitutional, both on their face 

and as applied. On this point, the LNC does not highlight any 

facts about Shaber’s individual contribution, but instead 

attacks the statutory scheme itself. 

The provisions at issue are structured as one old rule 

subject to three new exceptions. The rule is that no person may 

contribute over $25,000 per year to a national political party,

52 U.S.C. § 30116(a)(1)(B), subject to adjustment for inflation, 

id. § 30116(c). It is contained in the Federal Election 

Campaign Act of 1971 (FECA), as amended by the Bipartisan 

Campaign Finance Reform Act of 2002 (BCRA), and it was 

upheld by McConnell. See Pub. L. No. 107-155, § 307(a)(2), 

(d), 116 Stat. 81, 102–03; 540 U.S. at 142–61. The exceptions 

permit individuals to make additional annual contributions of 

up to $75,000 for presidential nominating conventions, 

$75,000 for party headquarters, and $75,000 for recounts and 

other legal proceedings, all subject to the same inflation 

adjustment. 52 U.S.C. § 30116(a)(1)(B), (a)(9). They were 

created by a 2014 amendment to FECA. Pub. L. No. 113-235, 

div. N, § 101, 128 Stat. 2130, 2772–73. The LNC’s challenge 

to this scheme mixes attacks on the new exceptions, attacks on 

the old rule, and attacks on how the two treat different 

categories of speech differently. The LNC also combines 

arguments based on overbreadth and underbreadth. But once 

these various arguments are unpacked, none of them succeeds. 

Most obviously, the new contribution limits do not 

themselves restrict too much speech. On this point, McConnell

controls. If a prohibition on contributing more than $25,000 to 

a political party for any purpose does not restrict too much 

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speech, then neither do exceptions that permit additional 

contributions of up to three times that amount. The majority 

correctly concludes that this much is a matter of “simple 

mathematics,” ante at 30, and Judge Griffith agrees, ante at 1. 

The LNC further attacks the statutory distinction between 

contributions for nominating conventions, headquarters, and 

legal proceedings (now governed by the higher 2014 limits) 

and contributions for all other purposes (still governed by the

lower BCRA limit). It contends that there is no anti-corruption 

justification for treating these categories differently. The 

majority concludes that there are such justifications, ante at 30–

32, while Judge Griffith concludes that there may not be, ante

at 3–7. In my view, Judge Griffith has the better of this 

argument, so I would join his dissent if the First Amendment 

required proof of a corruption-based justification for the 

differential treatment of these speech categories. But I do not 

think that such proof is necessary in this case. 

As a general matter, “the First Amendment imposes no 

freestanding ‘underinclusiveness limitation.’” Williams-Yulee 

v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015) (quoting R.A.V. v. 

City of St. Paul, 505 U.S. 377, 387 (1992)). So, for example, 

if a state may prohibit obscenity across the board, then it may

prohibit obscene telephone calls but not obscene telegrams—

even if the two raise comparable concerns. See R.A.V., 505 

U.S. at 387. Otherwise, laws might “violate[] the First 

Amendment by abridging too little speech”—which is highly 

“counterintuitive.” Williams-Yulee, 135 S. Ct. at 1668. 

In my view, that principle governs this case. Under closely 

drawn scrutiny, Congress needed an anti-corruption 

justification both to impose BCRA’s original contribution limit

and to limit the additional categories of spending permitted by

the 2014 amendment. As noted above, McConnell found 

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sufficient justification for the former, and the latter follows

from it. But Congress did not need a further, corruption-related 

justification to restrict contributions for nominating 

conventions, headquarters, and legal expenses less severely 

than it restricts other contributions. Rather, Congress could 

have chosen to restrict those contributions less severely for 

other reasons, such as a desire to make up for the loss of public 

funds for nominating conventions, or simply to permit more 

speech rather than less. The First Amendment demands a 

strong anti-corruption justification when Congress chooses to 

restrict campaign contributions, not when it chooses to loosen 

the restrictions. 

There are two important qualifications to this analysis, but 

neither affects the bottom line here. 

First, distinctions among categories of speech may violate 

the First Amendment if they are based on content. See R.A.V., 

505 U.S. at 387 (“the First Amendment imposes not an 

‘underinclusiveness’ limitation but a ‘content discrimination’ 

limitation”). Here, the LNC contends that the more favorable 

treatment of contributions for nominating conventions, 

headquarters, and legal expenses is content-based, because it 

targets speech based on its “function or purpose.” Reed v. 

Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Moreover, if a 

distinction between “political” and other speech is contentbased, see id. at 2224–30, then so are the distinctions among 

the types of political-speech contributions at issue here. 

Whatever the force of this argument in the abstract, it 

cannot carry the day. Reed did not involve campaign 

contribution limits, which the Supreme Court has long treated 

as content-neutral restrictions subject to intermediate scrutiny. 

So, while I disagree with the majority’s suggestion that Reed is 

inapposite because this case does not involve speech 

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restrictions, ante at 26, I agree with its ultimate conclusion, 

ante at 27–28, that a lower court cannot follow the implications 

of Reed as against the holdings of the campaign-finance cases. 

See Agostini v. Felton, 521 U.S. 203, 237 (1997). 

Second, underinclusiveness can raise First Amendment 

concerns for another reason, by suggesting that the government 

is not pursuing its asserted interests or that the challenged 

speech restriction will not substantially advance them. See 

Williams-Yulee, 135 S. Ct. at 1668. The majority concludes 

that the 2014 scheme does not raise these concerns, ante at 30–

32, while Judge Griffith concludes that it does, ante at 3–9. 

Were we free to engage this question, I would agree with Judge 

Griffith. But I believe that McConnell forecloses the debate. 

An underinclusiveness argument along these lines uses 

speech-enabling exceptions to attack a speech-restricting rule. 

If the government allows the sale of violent movies, that casts

doubt on its asserted need to restrict the sale of violent video 

games. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 801–02 

(2011). If the government permits newspapers to be distributed

through newsracks, that casts doubt on its asserted need to 

prohibit commercial publications from being similarly 

distributed. City of Cincinnati v. Discovery Network, Inc., 507 

U.S. 410, 416–28 (1993). If the government permits electronic 

media to release names of juvenile offenders, that casts doubt 

on its asserted need to prohibit newspapers from doing so. 

Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104–05 (1979). 

Here, the analogous argument amounts to a direct attack 

on BCRA itself: If Congress permits annual contributions to 

political parties of $225,000 (or $300,600, adjusted for 

inflation) for three specified categories of activity, that casts 

doubt on its asserted need to prohibit all other annual 

contributions over $25,000 (or $33,400, adjusted for inflation). 

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As Judge Griffith explains, the argument is compelling: money 

is fungible, the exceptions dwarf the rule, and there is no 

plausible anti-corruption rationale to explain the disparate 

treatment. Nonetheless, McConnell held that BCRA’s $25,000 

contribution limit substantially advances, and is narrowly 

tailored to, the important government interest in combatting 

actual or apparent quid pro quo corruption. If we may not 

revisit that conclusion based on intervening Supreme Court 

decisions that undermine McConnell’s reasoning, see Agostini, 

521 U.S. at 237, then neither may we revisit it based on 

intervening statutes that do likewise. On this point, any course 

correction must come from the Supreme Court itself. 

Judge Griffith concludes that McConnell is not binding on 

this point because it did not involve a “regime” with the three

new exceptions. Ante at 2. True enough, but the upshot of his 

argument is that “limiting general contributions to $33,400” is

now unconstitutional. Id. And that general limit, created by 

section 307(a)(2) of BCRA, and currently codified at 52 U.S.C. 

§ 30116(a)(1)(B), is precisely the one that McConnell upheld. 

* * * * 

I join Part II of the majority opinion, which holds that the 

LNC has standing to raise its various challenges. For the 

reasons given above, I respectfully dissent from Part III of the 

opinion, and I concur in the judgment as to Part IV. 

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