No. 19-5072

____________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

REPRESENTATIVE TED LIEU, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court 

for the District of Columbia 

Case No. 1:16-cv-02201-EGS 

____________________

APPELLANTS’ PETITION FOR REHEARING EN BANC

Ronald A. Fein

 Counsel of record

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre St #405

Newton, MA 02459

617-244-0234

November 15, 2019

Malcolm Seymour

Benjamin Lambiotte

Brad Deutsch (of counsel)

Andrew Goodman (of counsel)

FOSTER GARVEY 

Albert W. Alschuler (of counsel)

Richard Painter (of counsel)

Laurence H. Tribe (of counsel)

Anne Weismann

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TABLE OF CONTENTS

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

QUESTION OF EXCEPTIONAL IMPORTANCE PRESENTED......................... 1

LEGAL AND FACTUAL BACKGROUND........................................................... 4

I. The Federal Election Campaign Act and the Buckley framework ................... 4

II. Citizens United and SpeechNow....................................................................... 5

III. This challenge to super PACs and SpeechNow................................................ 7

REASONS FOR GRANTING THE PETITION ..................................................... 9

I. SpeechNow was wrongly decided. ................................................................... 9

A. Quid pro quo corruption can occur through contributions to entities 

whose expenditures do not corrupt. ............................................................... 9

B. Contributions to super PACs are substantially different from 

independent expenditures by the contributors.............................................. 12

II. Recent legal and factual developments have undermined SpeechNow.......... 13

A. SpeechNow is inconsistent with two recent Supreme Court decisions. ....... 13

B. New empirical evidence demonstrates that large contributions to super 

PACs create the appearance of corruption. .................................................. 15

III. The FEC’s decision was “contrary to law” because it relied on a 

precedent that is contrary to law. ................................................................... 16

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

ADDENDUM......................................................................................................... 20

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TABLE OF AUTHORITIES

Page

Cases

Akins v. FEC..................................................................................................16

101 F.3d 731 (D.C. Cir. 1996) (en banc), vacated on other grounds, 

524 U.S. 11 (1998)

Ali v. Trump .....................................................................................................1

No. 18-5297, 2019 WL 850757 (D.C. Cir. Feb. 22, 2019)

Brown v. Bd. of Educ. ....................................................................................18

98 F. Supp. 797 (D. Kans. 1951), rev’d, 347 U.S. 483 (1954)

* Buckley v. Valeo ........................................................................4, 5, 12, 13, 15

424 U.S. 1 (1976)

Cal. Med. Ass’n v. FEC.................................................................................13

453 U.S. 182 (1981)

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council ............................................16

467 U.S. 837 (1984)

* Citizens United v. FEC........................................................1, 3, 5, 7, 9, 13, 18

558 U.S. 310 (2010)

Citizens for Responsibility & Ethics in Washington v. FEC .........................17

209 F. Supp. 3d 77 (D.D.C. 2016), appeal dismissed, 

No. 16-5343, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017)

Coal. for Responsible Regulation, Inc. v. EPA................................................4

No. 09-1322, 2012 WL 6621785 (D.C. Cir. Dec. 20, 2012) 

Colo. Republican Campaign Comm. v. FEC...................................................7

518 U.S. 604 (1996)

Authorities upon which we chiefly rely are marked with asterisks.

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Emily’s List v. FEC........................................................................................12

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

Janus v. AFSCME..........................................................................................18

138 S. Ct. 2448 (2018)

Lieu v. FEC................................................................................................8, 17

370 F. Supp. 3d 175 (D.D.C. 2019)

Libertarian Nat’l Comm. v. FEC...................................................................15

924 F.3d 533 (D.C. Cir. 2019) (en banc) 

Long Beach Area Chamber of Commerce v. City of Long Beach ...................6

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

McConnell v. FEC...........................................................................................7

540 U.S. 93 (2003)

* McCutcheon v. FEC ............................................................................5, 13, 14

572 U.S. 185 (2014) 

N.C. Right to Life, Inc. v. Leake ......................................................................6

525 F.3d 274 (4th Cir. 2008)

Nixon v. Shrink Missouri Gov’t PAC.............................................................16

528 U.S. 377 (2000)

Orloski v. FEC...............................................................................................16

795 F.2d 156 (D.C. Cir. 1986)

Republican Nat’l Comm. v. FEC.....................................................................7

561 U.S. 1040 (2010) (mem.), 

aff’g 698 F. Supp. 2d 150 (D.D.C. 2010)

* Republican Party of La. v. FEC .........................................................7, 14, 15

219 F. Supp. 3d 86 (D.D.C. 2016), aff’d,

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

Republican Party of N.M. v. King ...................................................................6

741 F.3d 1089 (10th Cir. 2013)

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* SpeechNow.org v. FEC......................................................................................

1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18

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

Texans for Free Enter. v. Tex. Ethics Comm’n ...............................................6

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

United States v. Brewster...............................................................................10

506 F.2d 62 (D.C. Cir. 1974)

United States v. Lindberg ..............................................................................10

No. 19-CR-00022 (W.D.N.C. filed Mar. 18, 2019)

* United States v. Menendez.............................................................................11

132 F. Supp. 3d 635 (D.N.J. 2015)

* United States v. Menendez.............................................................................11

291 F. Supp. 3d 606 (D.N.J. 2018)

* United States v. Siegelman ......................................................................10, 11

640 F.3d 1159 (11th Cir. 2011)

Vt. Right to Life Comm., Inc. v. Sorrell ...........................................................6

758 F.3d 118 (2d Cir. 2014)

Wisc. Right to Life State Political Action Comm. v. Barland..........................6

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

Rules, Statutes, Treatises, Misc.

18 U.S.C. § 201(b)(2) .....................................................................................9

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

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

52 U.S.C. § 30116(a)(1)(A) ............................................................................4

52 U.S.C. § 30116(a)(1)(C) ........................................................................1, 4

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Fed. R. App. P. 35(a)(2) .................................................................................3

FEC Advisory Op. 2010-11

https://www.fec.gov/files/legal/aos/76050.pdf (July 22, 2010) .....................6

Atty. Gen. Eric Holder to Sen. Harry Reid, June 16, 2010,

available at https://bit.ly/1MhojVD ................................................................1

* Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen 

& Richard W. Painter, Why Limits on Contributions to Super 

PACs Should Survive Citizens United,

86 Fordham L. Rev. 2299 (2018) ................................................................3, 9

Alex Altman, Meet the Man Who Invented the Super PAC,

Time, May 13, 2015, https://ti.me/1KJ7KvT ..................................................2

Douglas H. Ginsburg & Donald Falk,

The Court En Banc: 1981–1990,

59 Geo. Wash. L. Rev. 1008 (1991) ...............................................................3

* Michael D. Gilbert & Brian Barnes, The Coordination Fallacy, 

43 Fla. St. U. L. Rev. 399 (2016) ...........................................................12, 14

Michelle Ye Hee Lee, Eleven donors have plowed $1 billion into super PACs 

since they were created,

Wash. Post, Oct. 26, 2018, https://wapo.st/2XgpZch......................................2

Richard Briffault, Super PACs, 

96 Minn. L. Rev. 1644 (2012) ........................................................................2

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QUESTION OF EXCEPTIONAL IMPORTANCE PRESENTED

Can large contributions to super PACs corrupt or create the appearance of 

corruption? This Court said “no” in SpeechNow.org v. FEC, 599 F.3d 686 (D.C. 

Cir. 2010) (en banc), the decision that Representative Ted Lieu, Senator Jeff 

Merkley, and the other appellants now ask the Court to overrule en banc.

1 Relying 

on the then two-month-old decision in Citizens United v. FEC, 558 U.S. 310 

(2010), SpeechNow struck down a provision of the Federal Election Campaign Act 

(FECA) that limited contributions to independent expenditure-only political 

committees (i.e. super PACs) to $5,000 per year. 52 U.S.C. § 30116(a)(1)(C).

The Court could not have anticipated how SpeechNow would reshape our 

democracy. The parties briefed SpeechNow before the Supreme Court’s decision in 

Citizens United, and argued the case six days after it. The government relied 

heavily on pre-Citizens United arguments, see SpeechNow, 599 F.3d at 694, and 

did not seek an opportunity for supplemental briefing. After this Court’s decision, 

Attorney General Holder explained that the government did not seek certiorari 

because it would affect “only a small subset of federally regulated contributions.”2

1 Appellants previously sought initial hearing en banc. Denial of such a petition 

does not preclude a subsequent (and more common) petition for rehearing en banc. 

See, e.g., Ali v. Trump, No. 18-5297, 2019 WL 850757 (D.C. Cir. Feb. 22, 2019) 

(Tatel and Pillard, JJ., concurring in denial of initial hearing en banc).

2 Letter from Atty. Gen. Eric Holder to Sen. Harry Reid, June 16, 2010, available 

at https://bit.ly/1MhojVD.

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Holder’s declaration belongs on a historic list of wrong predictions. In the 

2016 election, contributions to federal super PACs substantially outstripped the 

total amount of money raised by all federal candidates combined. The $2,800 limit 

on direct contributions to candidates still stands, but SpeechNow has rendered it 

“functionally meaningless.” Richard Briffault, Super PACs, 96 Minn. L. Rev. 

1644, 1684 (2012). Major donors pair maximum legal contributions to candidates 

with multi-million dollar contributions to super PACs supporting the same 

candidates.3 Deep into the 2016 presidential primaries, nearly half of all super PAC 

contributions came from just 50 families.4 Since SpeechNow, the contributions of 

eleven top donors to super PACs have ranged from $38.4 million to $287 million.5

Even the president of SpeechNow.org did not anticipate its impact—he later 

observed that using an independent expenditure group to promote a particular 

candidate “just never entered my mind.”6

Do large contributions to super PACs lead to an appearance of corruption? 

SpeechNow said no, but overwhelming bipartisan majorities of the public 

consistently say yes. The rise of super PACs is regularly denounced by statesmen 

3 Add. to FEC’s Mot. for Summ. Aff. (“FEC Add.”), ECF No. 1787446 (May 10, 

2019), at 33-44.

4 Id. at 29-30.

5 Michelle Ye Hee Lee, Eleven donors have plowed $1 billion into super PACs 

since they were created, Wash. Post, Oct. 26, 2018, https://wapo.st/2XgpZch. 6 Alex Altman, Meet the Man Who Invented the Super PAC, Time, May 13, 2015, 

https://ti.me/1KJ7KvT. 

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as diverse as Senator John McCain (“What we have done is made a contribution 

limit a joke.”) and President Jimmy Carter (describing current system as 

“unlimited political bribery”). See Albert W. Alschuler, Laurence H. Tribe, 

Norman L. Eisen & Richard W. Painter, Why Limits on Contributions to Super 

PACs Should Survive Citizens United, 86 Fordham L. Rev. 2299, 2340-42 (2018). 

In 2016, both parties’ presidential candidates decried super PACs, and the victor, 

President Trump, declared, “[T]hese super PACs are a disaster . . . Very 

corrupt. . . . There is total control of the candidates.” Id. at 2338-40. 

The SpeechNow Court believed its ruling was compelled by Citizens United, 

but, as explained here, it was not. The proposition upon which SpeechNow

depends—that if super PAC expenditures do not corrupt, contributions to super 

PACs cannot corrupt either—is factually inaccurate and contradicts decades of 

bribery law. Moreover, two recent Supreme Court decisions substantially 

undermine SpeechNow’s key premises. 

This case presents “a question of exceptional importance” under Fed. R. 

App. 35(a)(2) because of widespread concern about corruption and super PACs in 

federal elections. A case has “exceptional importance to the public” if it involves 

“a unique issue of great moment to the community.” Douglas H. Ginsburg & 

Donald Falk, The Court En Banc: 1981–1990, 59 Geo. Wash. L. Rev. 1008, 1025 

(1991). A decision with “massive real-world consequences” is “plainly one of 

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exceptional importance.” Coal. for Responsible Regulation, Inc. v. EPA, No. 09-

1322, 2012 WL 6621785, at *14 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., 

dissenting from denial of rehearing en banc).

Whether Congress can limit contributions to super PACs is such a question. 

This case presents a clash between a clear statutory command of Congress and a 

constitutional decision that has fundamentally transformed U.S. elections. The 

super PACs spawned by SpeechNow have undermined faith in our democracy, and 

the question of whether six-figure contributions to super PACs pose a risk of 

corruption or its appearance is ripe for en banc reconsideration. 

LEGAL AND FACTUAL BACKGROUND

I. The Federal Election Campaign Act and the Buckley framework

Congress enacted the Federal Election Campaign Act (FECA) “to limit the 

actuality and appearance of corruption resulting from large individual financial 

contributions.” Buckley v. Valeo, 424 U.S. 1, 26 (1976). FECA presently limits 

contributions to candidates to (inflation-adjusted) $2,800 per contributor per 

election, and contributions to independent political committees (including the 

groups now known as super PACs) to $5,000 per contributor per year. See 52 

U.S.C. §§ 30116(a)(1)(A), (C). 

Under Buckley and its progeny, limits on campaign financing must advance 

the government interest in protecting against “corruption or the appearance of 

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corruption.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014); Buckley, 424 U.S. at 

26-27. Different standards apply to limits on expenditures by candidates, parties, 

and groups than limits on contributions to those entities. See Buckley, 424 U.S. at 

23-35, 39-51. Expenditure limits receive strict scrutiny; they must serve a 

“compelling interest and [be] narrowly tailored to achieve that interest.” Citizens 

United, 558 U.S. at 340. But contribution limits are not subject to strict scrutiny. 

They need only be “closely drawn” to promote a “sufficiently important interest.” 

McCutcheon, 572 U.S. at 197 (quoting Buckley, 424 U.S. at 25).7

II. Citizens United and SpeechNow

In Citizens United, the Supreme Court invalidated FECA’s prohibition of 

independent expenditures by corporations. See 558 U.S. at 340-41. It declared, 

“The anticorruption interest is not sufficient to displace the speech here in 

question,” and added: “[W]e now conclude that independent expenditures, 

7 This petition omits internal punctuation and citations from quotations.

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including those made by corporations, do not give rise to corruption or the 

appearance of corruption.” Id. at 357. 

Two months later, SpeechNow held all limits on contributions to super PACs 

unconstitutional:

In light of the [Supreme] 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. The Court has effectively held that there is 

no corrupting “quid” for which a candidate might in 

exchange offer a corrupt “quo.” 

599 F.3d at 694-95. The FEC then issued an advisory opinion allowing 

independent expenditure-only political committees to accept unlimited 

contributions. See FEC Advisory Op. 2010-11, 

https://www.fec.gov/files/legal/aos/76050.pdf (July 22, 2010). 

In rapid succession the Fifth, Seventh, Ninth, and Tenth Circuits followed 

SpeechNow,

8 and the Second Circuit did so provisionally.9 The Supreme Court has 

8 See Republican Party of N.M. v. King, 741 F.3d 1089 (10th Cir. 2013); Texans 

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

to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011); 

Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 (9th 

Cir. 2010); accord N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) 

(similar but less categorical ruling). 

9 See Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 140 (2d Cir. 2014) 

(expressly reserving the question notwithstanding an earlier opinion that followed 

SpeechNow when approving a preliminary injunction). 

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never considered whether contributions to super PACs may be limited, but, both 

before and after Citizens United, it has held that contributions to political parties 

used only to fund independent expenditures may be limited. McConnell v. FEC, 

540 U.S. 93, 152 & n.48 (2003), overruled in part on another issue by Citizens 

United v. FEC, 558 U.S. 310 (2010); Republican Party of La. v. FEC, 137 S. Ct. 

2178 (2017) (mem.), aff’g 219 F. Supp. 3d 86 (D.D.C. 2016) (discussed infra at p. 

14); Republican Nat’l Comm. v. FEC, 561 U.S. 1040 (2010) (mem.), aff’g 698 F. 

Supp. 2d 150 (D.D.C. 2010) (Kavanaugh, J.) (holding that Citizens United did not 

disturb McConnell’s ruling that contributions to parties making only independent 

expenditures may be limited); see also Colo. Republican Campaign Comm. v. 

FEC, 518 U.S. 604, 617 (1996) (plurality opinion) (recognizing that contributions 

to a party making only independent expenditures enable donors to evade limits on 

contributions to candidates, and declaring that, although the party’s expenditures 

cannot be limited for this reason, contributions to the party can be).

III. This challenge to super PACs and SpeechNow

Representative Ted Lieu (D-Cal.), Representative Walter Jones (R-N.C.),10

Senator Jeff Merkley (D-Or.), and three Republican and Democratic congressional 

candidates filed an administrative complaint before the FEC against ten super 

10 Representative Jones passed away during the litigation. 

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PACs that had received contributions from single donors ranging from $300,000 to 

$5,000,000—far exceeding the statutory $5,000 limit.11

Relying on SpeechNow, the FEC dismissed the complaint. Lieu v. FEC, 370 

F. Supp. 3d 175, 181 (D.D.C. 2019). Appellants challenged the FEC’s dismissal of 

the complaint in the district court as “contrary to law.” 52 U.S.C. 

§§ 30109(a)(8)(A), (C). Although the FEC cited decisions interpreting this 

standard when an agency is entitled to deference, the district court found those 

cases inapposite, noting: “This is not the typical case of administrative review: the 

FEC’s decision to dismiss the complaint was based exclusively on its interpretation 

of the D.C. Circuit’s opinion in SpeechNow.” Lieu, 370 F. Supp. 3d at 183. The 

court concluded that it should review the FEC’s decision de novo because “courts 

need not defer to an agency’s interpretation of judicial precedent.” Id. Relying on 

SpeechNow, however, the court dismissed the complaint. Id. at 186. 

In this Court, appellants petitioned unsuccessfully for initial hearing en 

banc.12 The FEC, meanwhile, sought summary affirmance.13 The panel summarily 

affirmed, relying on SpeechNow and concluding: “The Federal Election 

Commission’s decision to dismiss the administrative complaint was not contrary to 

11 FEC Add. at 25-26, 39-43, 48-82.

12 See ECF No. 1793993 (June 21, 2019); ECF No. 1802897 (Aug. 20, 2019).

13 See ECF No. 1787446 (May 10, 2019).

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law as the challenged contributions to independent-expenditure only political 

committees cannot constitutionally be prohibited under [SpeechNow].”14

REASONS FOR GRANTING THE PETITION

I. SpeechNow was wrongly decided.

A. Quid pro quo corruption can occur through contributions to entities 

whose expenditures do not corrupt. 

SpeechNow announced that a single sentence of Citizens United compelled 

its result: “[I]ndependent expenditures . . . do not give rise to corruption or the 

appearance of corruption.” 558 U.S. at 357.15 SpeechNow reasoned that if 

independent expenditures do not corrupt, contributions to entities that make only 

such expenditures cannot corrupt either. See 599 F.3d at 694. 

The Court thus insisted that the corrupting potential of a payment to a third 

party depends on whether the third party’s expenditures are corrupting. But federal 

prosecutions for bribery (the clearest form of quid pro quo corruption) often rest on 

payments to third parties without regard to how or whether the third party uses the 

money. See 18 U.S.C. § 201(b)(2) (defining bribery to include cases where a 

candidate or official “corruptly demands, seeks, receives, accepts, or agrees to 

receive or accept anything of value personally or for any other person or entity” in 

14 See ECF No. 1809245 (Oct. 3, 2019). 

15 Although SpeechNow described this statement as holding, it was actually dictum. 

See Alschuler et al., 86 Fordham L. Rev. at 2312-14.

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exchange for official action) (emphasis added); United States v. Siegelman, 640 

F.3d 1159, 1165-66, 1169 n.13 (11th Cir. 2011) (affirming a bribery conviction 

although the “quid” was a contribution to an issue-advocacy campaign that the 

court acknowledged did “not financially benefit the individual politician in the 

same way that a candidate-election campaign contribution does”); United States v. 

Brewster, 506 F.2d 62, 68 (D.C. Cir. 1974) (noting that a bribe, unlike a gratuity, 

can be paid to “any other person or entity”). Just as a contribution to a favorite 

charity can be the “quid” in a bribe even when the charity’s expenditures do not 

corrupt anyone, super PAC contributions create opportunities for corruption even 

if super PAC expenditures do not. And if a donor can bribe a politician with a 

contribution to a super PAC, the public has an interest in preventing such bribes.

The federal courts’ criminal dockets confirm this. Just eight months ago, a 

federal grand jury returned an indictment for bribery centered on $1.5 million 

given to an independent expenditure committee in exchange for favorable official 

action. See United States v. Lindberg, No. 19-CR-00022 (W.D.N.C. filed Mar. 18, 

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2019), ECF No. 3 (indictment), ¶¶ 14, 16(a), 38, 53-61, 84, 86.16 Under 

SpeechNow, that should be impossible. 

Similarly, in United States v. Menendez, the district court upheld a grand 

jury indictment for another (per SpeechNow) ostensibly impossible transaction: a 

bribe in which the “quid” was $600,000 contributed to a super PAC. See 132 F. 

Supp. 3d 635, 639 (D.N.J. 2015). The indictment did not suggest that the recipient 

super PAC had acted improperly or that its expenditures corrupted the official. See 

id; see also United States v. Menendez, 291 F. Supp. 3d 606, 621-22 (D.N.J. 2018) 

(reiterating that a super PAC contribution can be a bribe while dismissing bribery 

charge for factual insufficiency following trial and a hung jury).17

Furthermore, as Siegelman and Menendez show, a donor can reach a corrupt 

agreement with a politician without involving the recipient of the contribution in 

the conversation. “The super PAC need not know about the illegal exchange; the 

16 The charges did not rest on how the independent expenditure committee spent

the bribe; in fact, it appears that the money was not spent at all. Id. ¶ 75.

17 The court specifically held that the evidence sufficed to establish that the super 

PAC contribution was “anything of value,” i.e., a quid. Id. at 621-23; cf. 

SpeechNow, 599 F.3d at 694-95 (“there is no corrupting ‘quid’”). 

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parties surely would prefer that it not.” Michael D. Gilbert & Brian Barnes, The 

Coordination Fallacy, 43 Fla. St. U. L. Rev. 399, 419 (2016). 

B. Contributions to super PACs are substantially different from 

independent expenditures by the contributors. 

Another superficially plausible argument for SpeechNow’s result has been

advanced elsewhere: If someone can spend $1 million to place his own campaign 

advertisements, why can’t he join with others to place independent advertisements 

through a super PAC? See Emily’s List v. FEC, 581 F.3d 1, 10-11 (D.C. Cir. 2009).

Although two or three people might indeed band together to buy a 

newspaper advertisement, large-scale political campaigning requires the efforts of 

many people and the creation of a legally distinct spending organization, e.g., a 

super PAC. The funders of this organization no longer make their own 

expenditures; they have become contributors. With the creation of a distinct 

spending organization, “the transformation of contributions into political debate 

involves speech by someone other than the contributor.” Buckley, 424 U.S. at 21. 

Such “speech by proxy . . . is not the sort of political advocacy that [the] Court in 

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Buckley found entitled to full First Amendment protection.” Cal. Med. Ass’n v. 

FEC, 453 U.S. 182, 196 (1981) (plurality opinion). 

II. Recent legal and factual developments have undermined SpeechNow.

A. SpeechNow is inconsistent with two recent Supreme Court decisions.

In McCutcheon v. FEC, 572 U.S. 185 (2014), the Supreme Court rejected 

SpeechNow’s interpretation of the statement upon which its decision rested—

Citizens United’s declaration that “independent expenditures . . . do not give rise to 

corruption or the appearance of corruption.” SpeechNow read this statement to say 

that expenditures have zero value to a candidate, declaring: “The Court has 

effectively held that there is no corrupting ‘quid’ for which a candidate might in 

exchange offer a corrupt ‘quo.’” 599 F.3d at 694-95. SpeechNow concluded that 

the applicable standard of review did not matter because, even under the less 

demanding standard applicable to contribution limits, “something . . . outweighs 

nothing every time.” Id. at 695.

In McCutcheon, however, Chief Justice Roberts’s plurality opinion, joined 

by three other members of the Citizens United majority, explained that while 

independent expenditures may be worth less, they are not worthless. The Court 

noted Buckley’s statement that “[t]he absence of prearrangement and coordination 

of an expenditure with the candidate or his agent . . . undermines the value of the 

expenditure to the candidate,” and then it added, “But probably not by 95 percent.” 

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572 U.S. at 214 (emphasis added); see also Gilbert & Barnes, 43 Fla. St. U. L. 

Rev. at 415-18 (even with strict coordination rules, value of independent 

expenditures to candidates “almost certainly exceeds zero”). McCutcheon’s

recognition that independent expenditures are of some value to a candidate cannot 

be reconciled with SpeechNow’s assertion that “there is no corrupting ‘quid.’” 

More recently, the Court affirmed a decision explicitly rejecting 

SpeechNow’s assumption that the corrupting potential of a payment to a third party 

depends on whether the third party’s expenditures are themselves corrupting. In 

Republican Party of Louisiana v. FEC, a three-judge district court in this Circuit 

held that “soft money” contributions to a political party can corrupt even when the 

party’s independent expenditures do not corrupt. As the court explained, “the 

inducement occasioning the prospect of indebtedness on the part of a federal 

officeholder is not the [independent] spending of soft money by the political party. 

The inducement instead comes from the contribution of soft money to the party in 

the first place.” 219 F. Supp. 3d 86, 97 (D.D.C. 2016), aff’d, 137 S. Ct. 2178 

(2017) (mem.). The court distinguished SpeechNow on the ground that candidates 

purportedly have closer relationships with political parties than with super PACs. 

See 219 F. Supp. 3d at 98. But even if that proposition once was true, it cannot be 

assumed today, certainly not for the “party-linked” super PACs cited in the 

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 20 of 29
15

complaint here.

18 Moreover, SpeechNow did not advance that empirical claim; it 

rested on the proposition that, as a matter of law, contributions that are used to 

fund only independent expenditures cannot corrupt. The Republican Party of 

Louisiana decision expressly rejected that proposition; it is difficult to see how the 

Supreme Court could have affirmed if it disagreed.

B. New empirical evidence demonstrates that large contributions to 

super PACs create the appearance of corruption. 

The appearance of corruption poses “almost equal concern as the danger of 

actual quid pro quo arrangements.” Buckley, 424 U.S. at 27. Since voters cannot 

“examine the intentions behind suspiciously sizable contributions,” unregulated 

contributions “inflict[] almost as much harm on public faith in electoral integrity as 

corruption itself. ” Libertarian Nat’l Comm. v. FEC, 924 F.3d 533, 542 (D.C. Cir. 

2019) (en banc). Although SpeechNow held as a matter of law that contributions to 

independent expenditure groups “cannot . . . create the appearance of corruption,” 

599 F.3d at 694, new empirical evidence demonstrates that they can and have. 

Opinion surveys consistently show a pervasive appearance of corruption 

specifically attributable to large super PAC contributions. For example, in a 2012 

survey, 69% of respondents (74% of Republicans, 73% of Democrats) agreed that 

“new rules that let corporations, unions and people give unlimited money to Super 

18 FEC Add. at 34-35, 40, 58-61.

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 21 of 29
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PACs will lead to corruption.”19 And 73% of respondents (75% of Republicans, 

78% of Democrats) agreed “there would be less corruption if there were limits on 

how much could be given to Super PACs.”20 Other national and state surveys yield 

similar results.21 Cf. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 394 

(2000) (finding an appearance of corruption when an “overwhelming 74%” of 

voters approved an initiative limiting contributions). 

III. The FEC’s decision was “contrary to law” because it relied on a 

precedent that is contrary to law. 

The panel’s opinion is susceptible to two readings: (1) the FEC’s action was 

not “contrary to law” because the contribution limits are unconstitutional, or (2) 

regardless of SpeechNow’s ongoing validity, any FEC decision that relied on thenapplicable precedent cannot be “contrary to law.” The former is understandable 

under the law of the circuit doctrine. But the latter is erroneous. 

In section 30109 actions where the legal questions involve interpreting

ambiguous statutory terms, the FEC may receive deference. See Chevron, U.S.A., 

Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984); Orloski v. FEC, 795 F.2d 156

(D.C. Cir. 1986). But for questions of constitutional law and judicial precedent, the 

“contrary to law” standard affords the FEC no deference. See Akins v. FEC, 101 

19 FEC Add. at 31-32.

20 Id. at 32.

21 Id. at 31-33.

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 22 of 29
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F.3d 731, 740 (D.C. Cir. 1996) (en banc) (declining to “defer to an agency’s 

interpretation of Supreme Court precedent under Chevron or any other principle”), 

vacated on other grounds, 524 U.S. 11 (1998); Citizens for Responsibility & Ethics 

in Washington v. FEC, 209 F. Supp. 3d 77, 85-87 (D.D.C. 2016) (rejecting FEC’s 

argument for deference under “contrary to law” standard where FEC dismissed 

complaints based on its interpretation of court precedent and First Amendment), 

appeal dismissed, No. 16-5343, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017).

This appeal raises a question of law. As the district court held, the FEC’s

decision “was based exclusively on its interpretation of the D.C. Circuit’s opinion 

in SpeechNow.” Lieu, 370 F. Supp. 3d at 183-84. The “contrary to law” standard 

does not require deference to the FEC, and deference to an agency on an issue of 

constitutional interpretation would be inappropriate. Id. at 183-84. 

Of course, as appellants have acknowledged throughout, SpeechNow 

remains the law of this Circuit, and neither the FEC, the district court, nor the 

panel could overrule it. But the “contrary to law” standard does not freeze the law 

forever by requiring an appellate court to ask only whether an administrative 

agency or lower court adhered to precedent as it stood when a case was filed. A 

decision may be contrary to law because the precedent itself is contrary to law.

Nearly every challenge to appellate precedent must be initiated before a 

court or agency that is bound by that precedent. The challenge does not fail simply 

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18

because the lower court or agency must adhere to the precedent. See, e.g., Janus v. 

AFSCME, 138 S. Ct. 2448 (2018) (reversing after district court dismissed 

complaint, and court of appeals affirmed, in reliance on precedent that the Court 

overruled); Citizens United, 558 U.S. at 322, 372 (reversing district court that 

followed precedent that the Court overruled); Brown v. Bd. of Educ., 98 F. Supp. 

797, 800 (D. Kans. 1951) (following Supreme Court precedent requiring it to 

uphold racial segregation in schools), rev’d, 347 U.S. 483 (1954) (setting aside 

district court’s ruling, not because the court acted improperly in following 

precedent, but because the precedent itself was contrary to law).

CONCLUSION

This Court should grant rehearing en banc to reexamine SpeechNow. 

Respectfully submitted, 

/s/ Ronald A. Fein

Ronald A. Fein

John C. Bonifaz 

Ben T. Clements 

FREE SPEECH FOR PEOPLE

1320 Centre St. #405

Newton, MA 02459

(617) 244-0234

rfein@freespeechforpeople.org

Laurence H. Tribe (of counsel) 

Hauser Hall 420

Harvard University*

Cambridge, MA 02138

(617) 495-1767

Malcolm Seymour 

Andrew Goodman (of counsel)

FOSTER GARVEY 

100 Wall Street, 20th Floor

New York, NY 10005

(212) 431-8700

mseymour@gsblaw.com

Benjamin Lambiotte

Brad Deutsch (of counsel)

FOSTER GARVEY 

Flour Mill Building

1000 Potomac Street NW, Suite 200

Washington, DC 20007-3501

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 24 of 29
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Albert W. Alschuler (of counsel) 

220 Tuttle Road

Cumberland, ME 04021

(207) 829-3963

Richard Painter (of counsel)

Mondale Hall, Office 318

University of Minnesota Law School*

229 19th Avenue South 

Minneapolis, MN 55455

(612) 626-9707

(202) 965-7880

Anne Weismann

6117 Durbin Road 

Bethesda, MD 20817

* University affiliation noted for 

identification purposes only.

Attorneys for Appellants

Date: November 15, 2019

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ADDENDUM

CERTIFICATE OF COMPLIANCE

This response complies with the word limit of Fed. R. App. R. 27(d)(2)(A) 

and Circuit Rule 27(c) because the brief contains 3,889 words, excluding the parts 

of the brief exempted by Fed. R. App. P. 32(f). The response complies with the 

typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements 

of Fed. R. App. P. 32(a)(6) because it uses the proportionally spaced typeface 

Microsoft Word 14-point Times New Roman. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: November 15, 2019

CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2019, I electronically filed the 

foregoing document with the Clerk of Court using the CM/ECF system. I certify 

that all participants in the case are registered CM/ECF users and that service to all 

persons required to be served will be accomplished by the CM/ECF system.

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Ronald A. Fein

Ronald A. Fein

Dated: November 15, 2019

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 26 of 29
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

(A) Parties and Amici. Representative Ted Lieu, Senator Jeff Merkley, 

State Senator (ret.) John Howe, Zephyr Teachout, and Michael Wager were 

plaintiffs in the district court and are appellants in this Court. Representative 

Walter Jones was a plaintiff in the district court but is now deceased and is not an 

appellant. The Federal Election Commission (FEC) was the defendant in the 

district court and is the appellee in this Court. No amicus briefs were filed in the 

district court. The following have appeared as amici curiae in this Court: 

(1) Senators Sheldon Whitehouse, Richard Blumenthal, and Mazie Hirono; 

(2) Citizens for Responsibility and Ethics in Washington; and 

(3) Professor Christopher T. Robertson, Professor Kelly Bergstrand, and D. 

Alex Winkelman.

(B) Rulings Under Review. This is an appeal from an order of the United 

States District Court for the District of Columbia (entered on February 28, 2019 by 

the Honorable Emmet G. Sullivan) granting the FEC’s motion to dismiss the 

complaint. Lieu v. FEC, No. 1:16-cv-02201-EGS (D.D.C. Feb. 28, 2019), Dkt. No. 

47. The court’s Memorandum Opinion appears at 370 F. Supp. 3d 175 (D.D.C. 

2019). The panel’s order granting the FEC’s motion for summary affirmance is 

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 27 of 29
22

attached to this petition. This petition for rehearing en banc seeks review of the 

panel’s decision.

(C) Related Cases. This case was not previously before this Court or any 

other court. Counsel is not aware of any other related cases within the meaning of 

Circuit Rule 28(a)(1)(C) currently pending in this Court or in any other court.

/s/ Ronald A. Fein

Ronald A. Fein

Dated: November 15, 2019

USCA Case #19-5072 Document #1816092 Filed: 11/15/2019 Page 28 of 29
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-5072 September Term, 2019

1:16-cv-02201-EGS

Filed On: October 3, 2019

Ted Lieu, Representative, et al.,

Appellants

v.

Federal Election Commission,

Appellee

BEFORE: Rogers, Tatel, and Srinivasan, Circuit Judges

O R D E R

Upon consideration of the motion for summary affirmance, the response thereto,

and the reply; and the motion to hold in abeyance, the response thereto, and the reply,

it is

ORDERED that the motion to hold in abeyance be dismissed as moot. It is

FURTHER ORDERED that the motion for summary affirmance be granted. The

merits of the parties' positions are so clear as to warrant summary action. See

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). 

The Federal Election Commission’s decision to dismiss the administrative complaint

was not contrary to law as the challenged contributions to independent-expenditureonly political committees cannot constitutionally be prohibited under SpeechNow.org v.

FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), cert. denied, 562 U.S. 1003 (2010). See

52 U.S.C. § 30109(a)(8)(C); Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after resolution

of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.

P. 41(b); D.C. Cir. Rule 41.

Per Curiam

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