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UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

CINCINNATI DIVISION 

) 

NATIONAL REPUBLICAN SENATORIAL ) 

COMMITTEE, et al., ) 

) Civ. No. 22-639 (DRC) 

Plaintiffs, ) 

)

 v. ) 

) OPPOSITION TO MOTION 

FEDERAL ELECTION COMMISSION, et al., ) TO CERTIFY 

)

 Defendants. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

OPPOSITION TO PLAINTIFFS’ MOTION TO CERTIFY QUESTION TO EN BANC 

COURT OF APPEALS 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

Kevin Deeley (Mass. Bar No. 644486) 

Associate General Counsel 

Harry J. Summers (Cal. Bar No. 147929) 

(Trial Attorney) 

Assistant General Counsel 

lstevenson@fec.gov 

kdeeley@fec.gov 

hsummers@fec.gov 

June 7, 2023 

Greg J. Mueller (D.C. Bar No. 462840) 

Shaina Ward (D.C. Bar No. 1002801) 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorneys 

gmueller@fec.gov 

sward@fec.gov 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

Washington, D.C. 20463 

(202) 694-1650 
 

 

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TABLE OF CONTENTS 

PAGE 

INTRODUCTION .....................................................................................................................1 

BACKGROUND .......................................................................................................................3 

I. THE FEDERAL ELECTION CAMPAIGN ACT’S 

ALLOWANCE OF COORDINATED PARTY 

EXPENDITURES BEYOND THE OTHERWISE 

APPLICABLE CONTRIBUTION LIMITS..................................................................3 

II. THE SUPREME COURT’S DECISION IN COLORADO II .......................................4 

III. PLAINTIFFS’ CHALLENGE TO THE COORDINATED 

PARTY EXPENDITURE LIMITS................................................................................6 

ARGUMENT.............................................................................................................................8 

I. SECTION 30110 PROCEDURE...................................................................................8 

II. CERTIFICATION OF ANY QUESTION IS PREMATURE.....................................10 

A. In Section 30110 Cases Like This One, All Parties Should 

Be Permitted to Participate in Developing a Factual Record 

Sufficient for Appellate Consideration, Including Through a 

Reasonable Discovery Period ..........................................................................10 

B. After Making Findings of Fact Based on a Sufficient Record, 

the District Court Must Determine Whether Any Constitutional 

Questions Warrant Certification ......................................................................15 

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

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INTRODUCTION 

Plaintiffs’ motion to certify a constitutional question to the en banc Court of Appeals is 

premature and should be denied. Applicable precedent makes clear that such certification would 

be appropriate only after the development of a factual record sufficient for an appellate response 

through a reasonable discovery period, and then a determination by this Court that any proposed 

question merits certification through the special judicial review procedure plaintiffs invoke. 

More than two decades ago, the Supreme Court upheld the limits that Congress placed on 

expenditures political parties may make in coordination with each of their federal candidates, 

under the provision now set forth in 52 U.S.C. § 30116. See FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431 (2001) (“Colorado II”). The Colorado II Court reaffirmed that 

the longstanding distinction established in Buckley v. Valeo, 424 U.S. 1 (1974), between 

coordinated and independent expenditures applied to spending by political parties. See Colorado 

II, 533 U.S. at 464. The Court then upheld the party coordinated expenditure limits on their face, 

explaining that “[t]here is no significant functional difference between a party’s coordinated 

expenditure and a direct party contribution to the candidate,” id., and that removing such limits 

would pose a danger of corruption or its appearance, id. at 464-65. 

Despite this established precedent, plaintiffs seek to have these longstanding limits 

stricken from the Federal Election Campaign Act (“FECA”), and if necessary, to have Colorado 

II itself overruled. They have challenged the constitutionality of the provisions on their face, and 

in the alternative as applied to a subset of expenditures known as party coordinated 

communications, as defined in an FEC regulation, 11 C.F.R. § 109.37. Invoking FECA’s special 

judicial review provision at 52 U.S.C. § 30110, plaintiffs now seek to “immediately” certify a 

question as to whether these limits are constitutional to the en banc Court of Appeals. (See 
 

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generally Pls’ Mem. of Law in Supp. of Mot. to Certify Question to En Banc Court of Appeals 

(Docket No. 21, PageID## 218-262) (“Pls.’ Mem.”).) 

Contrary to plaintiffs’ claims, however, certification of any question at this time would be 

premature. As explained below, such certification would be inappropriate in the absence of any 

discovery, a factual record developed by this Court that is sufficient for appellate consideration 

of plaintiffs’ constitutional claims, and briefing on the appropriateness of plaintiffs’ proposed 

question in light of a complete record. It is well established that section 30110 imposes three 

essential duties on a district court: (1) the court must develop a factual record by making findings 

of fact, (2) the district court must determine whether the constitutional challenges are frivolous 

or insubstantial, and (3), upon completing the first two functions, the court should certify any 

nonfrivolous questions along with that record to the en banc court of appeals. See Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981). 

Currently, even though plaintiffs’ request for certification relies to a significant extent on 

factual assertions, the only evidence supporting it is the handful of self-serving declarations and 

limited other material they have submitted, which defendant Federal Election Commission 

(“FEC” or “Commission”) has had no opportunity to test. Nor has the Commission had the 

opportunity to take crucial discovery on plaintiffs’ allegations, or otherwise develop a record to 

support its position that the challenged restrictions — which actually permit political parties to 

make coordinated expenditures well above otherwise applicable contribution limits — impose no 

undue burden, but do serve to deter corruption and its appearance. As such, the Court simply 

does not at this time have a complete basis to determine what findings of fact should be made, let 

alone whether any question is appropriate for certification to the en banc Court of Appeals. That 

reasonable discovery take place prior to any certification is even more important where, as here, 

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the Supreme Court has already upheld the challenged provisions on their face and plaintiffs 

explicitly seek to have that authority overruled. 

The Commission therefore suggests that the parties should be permitted to submit a joint 

scheduling report with their positions regarding a discovery period, to be followed by the 

submission of proposed findings of fact and briefing to assist the Court in determining what 

question, if any, should be certified to the Sixth Circuit Court of Appeals sitting en banc. 

Plaintiffs’ request for immediate certification is premature and should be denied without 

prejudice. 

BACKGROUND 

I. THE FEDERAL ELECTION CAMPAIGN ACT’S ALLOWANCE OF 

COORDINATED PARTY EXPENDITURES BEYOND THE OTHERWISE 

APPLICABLE CONTRIBUTION LIMITS 

The instant case involves a category of payments commonly known as “coordinated party 

expenditures.” See Buckley, 424 U.S. at 36. In Buckley, the Supreme Court held that the 

limitations on political campaign contributions in FECA were generally constitutional, but that 

the statute’s limitations on election expenditures infringed political expression in violation of the 

First Amendment. Id. at 59. FECA defines “expenditure” to include “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by any person 

for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A). FECA 

also provides that “expenditures made by any person in cooperation, consultation, or concert, 

with” a federal candidate or her agents “shall be considered to be a contribution to such 

candidate,” but under a unique provision, the statute permits political parties to engage in such 

expenditures in excess of their otherwise applicable contribution limits. Id. at § 30116(d); 11 

C.F.R. § 109.37; see also Buckley, 424 U.S. at 46 (“expenditures controlled by or coordinated 

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with the candidate and his campaign are . . . treated as contributions rather than expenditures 

under the Act”). 

Under the current inflation-adjusted limits, political parties may make coordinated 

expenditures with their general election candidates up to an amount ranging from $55,000 to 

$109,900 in races for the U.S. House of Representatives, and from $109,900 to $3,348,500 in 

U.S. Senate races. Id.; 11 C.F.R. § 109.33; see FEC, Coordinated Party Expenditure Limits, 

https://bit.ly/3DcUySP (last visited June 6, 2023). 

II. THE SUPREME COURT’S DECISION IN COLORADO II 

 In 2001, the Supreme Court upheld the party coordinated expenditure limits in what is 

now 52 U.S.C. § 30116(d) on their face, explaining that “there is no significant functional 

difference between a party’s coordinated expenditure and a direct party contribution to the 

candidate.” Colorado II, 533 U.S. at 464. Before 1996, the Commission had presumed that, 

due to the close connection between parties and candidates, “all party expenditures should be 

treated as if they had been coordinated as a matter of law.” Colo. Republican Fed. Campaign 

Comm. v. FEC, 518 U.S. 604, 619 (1996) (“Colorado I”) (opinion of Breyer, J.) (emphasis 

omitted). In Colorado I, however, the Supreme Court held that parties were capable of making 

independent (i.e., non-coordinated) expenditures and that such expenditures could not 

constitutionally be limited. See id. at 617. The Court remanded the case for further proceedings 

to consider the constitutionality of FECA’s limits on party expenditures that actually are 

coordinated with candidates. See id. at 623- 626 (opinion of Breyer, J.). After the proceedings 

on remand, the case returned to the Supreme Court in Colorado II. 

The Court in Colorado II rejected the plaintiff’s facial challenge to FECA’s limits on 

political parties’ coordinated expenditures, explaining that FECA’s limits on parties’ coordinated 

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expenditures were not unduly burdensome to parties and the coordinated expenditure limits 

comported with the First Amendment’s free speech and associational guarantees. Id. The 

Colorado II Court found that “a party’s coordinated expenditures, unlike expenditures truly 

independent, may be restricted to minimize circumvention of contribution limits.” Id. at 465. In 

conducting its review, the Court applied the intermediate scrutiny standard announced in 

Buckley, that is, that the restriction must be closely drawn to match an important government 

interest. Id. at 456. The Court held that Congress could regulate coordinated expenditures as 

contributions because of the sufficiently important governmental interest in preventing the 

potential for corruption. Id. at 459-60. Specifically, the Court stated: 

There is no significant functional difference between a party’s coordinated 

expenditure and a direct party contribution to the candidate, and there is good 

reason to expect that a party’s right of unlimited coordinated spending would 

attract increased contributions to parties to finance exactly that kind of spending. 

Coordinated expenditures of money donated to a party are tailor-made to 

undermine contribution limits. Therefore the choice here is not, as in Buckley and 

Colorado I, between a limit on pure contributions and pure expenditures. The 

choice is between limiting contributions and limiting expenditures whose special 

value as expenditures is also the source of their power to corrupt. Congress is 

entitled to its choice. 

Id. at 464-65 (footnotes omitted). 

Since the decision in Colorado II, the Fifth Circuit has upheld FECA’s coordinated party 

expenditure limits against a constitutional challenge, reaffirming the continued vitality of 

Colorado II. See In re Cao, 619 F.3d 410, 429 (5th Cir. 2010) (en banc) (“[T]he Colorado II 

Court, as well as the Court’s earlier cases, clearly held that coordinated expenditures may be 

restricted to prevent circumvention and corruption.”), cert. denied, 562 U.S. 1286 (2011). 

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III. PLAINTIFFS’ CHALLENGE TO THE COORDINATED PARTY 

EXPENDITURE LIMITS 

The complaint in this case was filed by plaintiffs National Republican Senatorial 

Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), James David 

(“J.D.”) Vance, and Steven Joseph Chabot on November 4, 2022, seeking declaratory and 

injunctive relief pursuant to the First Amendment. (Pls.’ Compl. for Declaratory and Injunctive 

Relief (“Compl.”) (ECF No. 1, PageID# 1).) Plaintiffs NRSC and NRCC are “national 

committee[s]” pursuant to 52 U.S.C. § 30101(14). (Compl. ¶¶ 13-14, PageID## 5-6.) They are 

located in Washington, DC, and they serve as the Republican Party’s campaign committees 

dedicating to elect candidates to the U.S. Senate and House, respectively. (Id.) Plaintiff J.D. 

Vance was the 2022 Republican nominee for the U.S. Senate in Ohio, and he is currently a U.S. 

Senator for that state. (Id. ¶ 15, PageID# 6.) Plaintiff Steven Joseph Chabot was the 2022 

Republican nominee for the U.S. House of Representatives from Ohio’s First Congressional 

District, and he was the sitting U.S. Congressman in that District at that time, although he did not 

prevail in the general election. (Id. ¶ 16, PageID# 6.) 

Defendant Federal Election Commission is an independent agency of the United States 

government with jurisdiction over the administration, interpretation, and civil enforcement of 

FECA, 52 U.S.C. §§ 30101-46. See generally 52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. 

Congress provided for the Commission to “prepare written rules for the conduct of its activities,” 

52 U.S.C. § 30106(e), “formulate policy” under FECA, see, e.g., 52 U.S.C. § 30106(b)(1), and 

make rules and issue advisory opinions, 52 U.S.C. §§ 30107(a)(7), (8); id. §§ 30108; 

30111(a)(8); see also Buckley, 424 U.S. at 1. The Commission is also authorized to institute 

investigations of possible violations of FECA, 52 U.S.C. § 30109(a)(1)-(2), and to initiate civil 

enforcement actions in the United States district courts, id. §§ 30106(b)(1), 30107(a)(6), 

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30107(e), 3019(a)(6). 

Plaintiffs challenge the limits on expenditures that political parties may make in 

coordination with their federal candidates under FECA. (Compl. ¶ 2, PageID# 2.) Plaintiffs do 

not argue that these limits are unreasonably low, but rather that they are unconstitutional per se 

because they implicate political parties’ First Amendment interests to participate in the electoral 

process and associate with the candidates of their choice. (Id. ¶¶ 90-103, PageID## 24-26.) 

Plaintiffs challenge the constitutionality of these provisions on their face (id. ¶¶ 90-99, PageID## 

24-25), and in the alternative as applied to a subset of such expenditures known as party 

coordinated communications, as defined in an FEC regulation, 11 C.F.R. § 109.37. (Compl. ¶¶ 

100-103, PageID# 26.) 

Plaintiffs now seek to “immediately” certify a question as to whether the party 

coordinated expenditure limits are constitutional to the en banc Court of Appeals under FECA’s 

special judicial review provision at 52 U.S.C. § 30110. (See Pls.’ Mem. (Docket No. 21, 

PageID# 226).) Plaintiffs essentially argue that the limits violate the First Amendment, that 

Colorado II does not control the outcome of their challenge in light of intervening factual and 

legal developments, and that even if that precedent does control, it should be overruled. (Id. at 

19-37, PageID## 242-260.)1 

As explained in this brief, the FEC opposes plaintiffs’ motion for certification on the 

ground that it is premature. The FEC does not concede that the legal or factual arguments or 

assertions made in support of plaintiffs’ motion are correct and reserves the right to dispute any 

of those claims, and to provide its own legal and factual support on the issues that are before this 

Court, at the proper time. 

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ARGUMENT 

I. SECTION 30110 PROCEDURE 

 52 U.S.C. § 30110 is a special judicial review procedure, but precedent makes clear that 

the creation of an adequate factual record and careful review of proposed constitutional questions 

by the district court is critical to its operation. The provision was added to FECA in 1974 to 

provide expedited consideration of anticipated constitutional challenges to the extensive 

amendments to FECA that year. See Federal Election Campaign Act Amendments of 1974, Pub. 

L. No. 93-443, § 208(a), 88 Stat. 1263, 1285-1286 (1974). Section 30110 provides that “[t]he 

[Federal Election] Commission, the national committee of any political party, or any individual 

eligible to vote in any election for the office of President may institute such actions in the 

appropriate district court of the United States, including actions for declaratory judgment, as may 

be appropriate to construe the constitutionality of any provision of this Act.” 52 U.S.C. § 30110. 

Section 30110 further provides that “[t]he district court immediately shall certify all questions of 

constitutionality of this Act to the United States court of appeals for the circuit involved, which 

shall hear the matter sitting en banc.” Id. 

Importantly, however, the Supreme Court has held that use of section 30110 is subject to 

certain restrictions and should be construed narrowly, in part because it creates “a class of cases 

that command the immediate attention of . . . the courts of appeals sitting en banc, displacing 

existing caseloads and calling court of appeals judges away from their normal duties.” Bread 

Pol. Action Comm. v. FEC, 455 U.S. 577, 580 (1982). 2 First, of course, a “party seeking to 

Part of the Supreme Court’s concern in Bread Pol. Action Comm. was the requirement in 

the statute at that time that section 30110 proceedings be expedited. 455 U.S. at 580. Though 

the expedition provision has since been repealed, Pub. L. No. 100-352, § 6(a), 102 Stat. 662, 663 

(1988), section 30110 continues to present the possibility of advancement without review by 

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invoke [section 30110] must have standing to raise the constitutional claim.” Cal. Med. Ass’n v. 

FEC, 453 U.S. 182, 192 n.14 (1981). In addition, even if a plaintiff falls within one of the 

classes of parties specified in the statute and the legal challenge falls within the scope of the 

provision, the district court should perform three functions. First, the court must develop a 

record sufficient to support appellate review by making findings of fact. Cal. Med., 453 U.S. at 

192 n.14. Second, it must determine whether the constitutional challenges are frivolous or 

insubstantial. Id. Only then, after performing these two functions initially, should the district 

court certify the record and all non-frivolous constitutional questions to the en banc court of 

appeals. Cal. Med., 453 U.S. at 192 n.14; Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 

2000) (en banc); Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (per curiam), 

aff’d in part and rev’d in part on other grounds, 424 U.S. 1 (1976); see also 52 U.S.C. § 30110. 

If the issues presented are frivolous or insubstantial, the court may dismiss the claims or 

grant summary judgment to the Commission. See, e.g., Cao, 619 F.3d at 415, 417-20 (affirming 

district court’s dismissal of certain proposed questions); Judd v. FEC, 304 F. App’x 874, 875 

(D.C. Cir. 2008) (per curiam) (affirming district court’s dismissal because “the constitutional 

challenge to [FECA] is frivolous”); Nat’l Comm. of the Reform Party of the U.S. v. Democratic 

Nat’l Comm, 168 F.3d 360, 367 (9th Cir. 1999) (affirming district court’s decision denying 

certification of claims that FECA “unconstitutionally preempts common law remedies . . . 

because plaintiffs had no common law remedies for FECA to preempt”); Whitmore v. FEC, 68 

F.3d 1212, 1215 (9th Cir. 1996) (affirming denial of certification for frivolousness where 

“plaintiffs sought an injunction commanding competing congressional candidates not to accept 

district courts and panels of courts of appeals and thus continues to pose a danger of docket 

disruption. 

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out-of-state contributions”); Gifford v. Congress, 452 F. Supp. 802, 810 (E.D. Cal. 1978) 

(refusing to certify constitutional questions and dismissing FECA challenge on the “ground that 

it is frivolous” (cited with approval in Cal. Med., 453 U.S. at 192 n.14), approved, Gifford v. 

Tiernan, 670 F.2d 882 (9th Cir. 1982)). 

Thus, even where a constitutional challenge may not be foreclosed as a matter of law, the 

district court undertaking section 30110 review should go beyond the complaint and review the 

factual record, and only if it concludes that nonfrivolous constitutional issues are raised from the 

facts should it certify those questions. See, e.g., Cao, 619 F.3d at 414, 433 & n.32; Khachaturian 

v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en banc). 

Indeed, failure to complete the functions mandated by section 30110 may result in a 

remand to the district court for the requisite threshold inquiry. See, e.g., Holmes v. FEC, No. 14-

5281, slip op. (D.C. Cir. Jan. 30, 2015), accompanying this Opposition as Exhibit (“Exh.”) 1 and 

available at http://www.fec.gov/law/litigation/holmes_ac_order.pdf; Khachaturian, 980 F.2d at 

331; Buckley, 519 F.2d at 818. 

II. CERTIFICATION OF ANY QUESTION IS PREMATURE 

A. In Section 30110 Cases Like This One, All Parties Should Be Permitted to 

Participate in Developing a Factual Record Sufficient for Appellate 

Consideration, Including Through a Reasonable Discovery Period 

In section 30110 cases like this one, as in other civil cases, it is well-established that 

district courts must allow the parties to participate in developing the factual record. See Exh. 1, 

Holmes, No. 14-5281, slip op. (D.C. Cir. Jan. 30, 2015), available at http://www.fec.gov/law 

/litigation/holmes_ac_order.pdf (granting motion to remand case to allow parties an opportunity 

to develop factual record necessary for en banc review of the plaintiffs’ constitutional challenge); 

Khachaturian, 980 F.2d at 332 (remanding to take in evidence and suggesting that district court 

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conduct an evidentiary hearing). And district courts have used the discovery process to develop 

a factual record that is sufficient for appellate consideration. For example, the Fifth Circuit 

Court of Appeals relied on deposition testimony to determine that the district court had “abid[ed] 

by its proper role” in a case brought under section 30110. Cao, 619 F.3d at 414, 433 & n.32. 

The district court’s order in that case had set a months-long period for discovery and provided 

additional time for briefing on proposed findings of fact and certification. See Exh. 2, Order, 

Cao v. FEC, Civ. No. 08-4887, Docket No. 41 (E.D. La. Feb. 26, 2009), available at 

https://www.fec.gov/resources/cms-content/documents/usdcedla-order-02-26-2009.pdf. More 

recently, a different district court denied a motion to certify in a section 30110 case and ordered 

the parties to conduct discovery prior to the court making a certification determination. See Exh. 

3, Order, Stop Hillary PAC v. FEC, Civ. No. 15-1208, Docket No. 34 (E.D. Va. Dec. 16, 2015), 

available at https://www.fec.gov/resources/legal-resources/litigation/shp_dc_order.pdf. 

Indeed, the Supreme Court and lower courts have long emphasized the importance of 

developing a full factual record in section 30110 cases, notwithstanding its provision for 

“immediate[]” certification. In Cal. Med., for example, the Supreme Court rejected Justice 

Stewart’s concern that “[s]ection [30110] litigation will often occur . . . without the fully 

developed record which should characterize all litigation.” 453 U.S. at 208 (Stewart, J., 

dissenting). The majority explained that, “as a practical matter, immediate adjudication of 

constitutional claims through a § [30110] proceeding would be improper in cases where the 

resolution of such questions required a fully developed factual record.” Id. at 192 n.14 

(emphases added). 

Even before Cal. Med., courts had recognized the importance of thorough factual records 

compiled with the assistance of the parties in section 30110 cases. When Buckley v. Valeo first 

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came before that court, it did so without a record. The D.C. Circuit, en banc, remanded the case 

with instructions to the district court to “[t]ake whatever may be necessary in the form of 

evidence over and above submissions that may suitably be handled through judicial notice.” 519 

F.2d at 818 (emphases added); compare id. at 821 (Bazelon, J. dissenting) (emphasizing section 

30110’s “use of the word ‘immediately’”). Following proceedings in which the parties 

conducted discovery and proposed factual findings, the case returned with an “augmented” 

record. Id. at 818. More recently, the D.C. Circuit again remanded a section 30110 case that 

another district court had prematurely certified and ordered the court to provide the parties an 

opportunity to develop the factual record, including by discovery, and to complete the functions 

mandated by section 30110 “including the development of a record for appellate review.” Exh. 

1, Holmes, No. 14-5281, slip op. “Because of the great gravity and delicacy of (the courts’) 

function in passing upon the validity of an act of Congress, the need is manifest for a full-bodied 

record in such adjudication.” Martin Tractor Co. v. FEC, 627 F.2d 375, 380 (D.C. Cir. 1980) 

(section 30110 case) (footnotes and internal quotation marks omitted). 

Plaintiffs themselves acknowledge that section 30110 “require[s]” district courts to 

“[m]ake findings of fact” (Pl.’s Mem. at 19, PageID# 242), yet their attempt to proceed directly 

to certification with the minimal, one-sided evidence accompanying their motion would deny the 

Commission the use of the discovery process to test plaintiffs’ assertions and develop evidence 

for its own case, both for purposes of determining the appropriateness of certification and for 

appellate review. Certification under section 30110 cannot occur before this necessary evidence 

is assembled and the Court has made findings of fact informed by that record-building process. 

Indeed, such a process is critical particularly here, where plaintiffs seek not only to have 

a federal statute struck down but also to overturn a Supreme Court precedent that has been in 

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place for decades. And plaintiffs’ efforts to do so are not purely legal in nature. Instead, they 

rely substantially on factual claims. First, plaintiffs assert that the party coordinated expenditure 

limits violate the First Amendment because of the burdens they impose on parties and the alleged 

lack of evidence that such expenditures raise corruption concerns. (Pls.’ Mem. at 19-26, 

PageID## 242-249.) Plaintiffs do claim that their challenge “involves both a different statutory 

regime and different legal arguments from the ones at issue in Colorado II.” (Id. at 18, PageID# 

243; see generally id. at 13-22, PageID## 236-245.) But alternatively, plaintiffs also argue that 

“Colorado II cannot be sustained” given the “legal and factual developments in the 22 years 

since it was handed down,” and they even seek to undo the basic analytical framework that 

Buckley established, under which contribution limits receive “closely drawn” rather than strict 

scrutiny. (Id. at 18, PageID # 243; see id. at 30-31, PageID## 253-254.) To be sure, some of 

these arguments are legal ones, but some of plaintiffs’ core claims depend heavily on factual 

assertions that must be tested through discovery prior to any certification. The Commission must 

have an opportunity to develop the factual basis to fully respond to plaintiffs’ claims. 

More fundamentally, proceeding with plaintiffs’ request for certification prior to a 

discovery process is also contrary to the federal courts’ overwhelming recognition of the 

importance of preparing fulsome records in constitutional challenges to campaign finance 

restrictions. See, e.g., Randall v. Sorrell, 548 U.S. 230, 253-56 (2006) (relying on deposition 

testimony and expert witnesses to analyze statewide effects of legislation at issue); Colorado II, 

533 U.S. at 457-65 (2001) (sustaining FECA provisions based on district court record containing 

“substantial evidence [of] how . . . parties test . . . limits . . . and . . . how [those] contribution 

limits would be eroded if” provisions were struck); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 393-94 (2000) (upholding contribution limits on the basis of the lower court record); 

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Wagner v. FEC, 793 F.3d 1, 17-18 (D.C. Cir. 2015) (en banc) (relying on the “impressive, if 

dismaying” record that “[t]he FEC has assembled” to determine whether the provision at issue 

continues to show a risk of quid pro quo corruption and its appearance); Int’l Ass’n of Machinists 

and Aerospace Workers v. FEC, 678 F.2d 1092, 1097 (D.C. Cir.) (en banc) (per curiam), aff’d, 

459 U.S. 983 (1982) (finding it “undesirable to decide a constitutional issue abstracted from its 

factual context”); FEC v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 49 

(2d Cir. 1980) (en banc) (relying on “a substantial record . . . including transcripts of testimony, 

exhibits, and . . . findings of fact” that district court had compiled “[a]fter extensive evidentiary 

hearings”); Martin Tractor Co., 627 F.2d at 380 (noting that the Supreme Court had 

“emphasized the importance of a detailed factual record upon which a court might limit, frame 

and perhaps avoid a constitutional decision”); Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 

154, 156-57, 166 (D.D.C. 2013) (allowing seven months for discovery in a section 30110 

challenge, and then relying upon plaintiff’s deposition testimony to deny in part its claim), aff’d 

mem. in relevant part, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014); Exh. 3, Order, 

Stop Hillary PAC v. FEC, 1:15-cv-1208 (E.D.V.A. Dec. 16, 2015) (Docket No. 35) (ordering 

discovery in section 30110 proceeding and explaining that “this Court follows the Supreme 

Court’s affirmation in Cal. Med. that ‘immediate adjudication of constitutional claims through a 

[§ 30110] proceeding would be improper in cases where the resolution of such questions 

required a fully developed factual record’”) (quoting Cal. Med, 453 U.S. at 192 n.l4 ). 

In Colorado I, Justice Breyer pointed out the importance of record evidence in reviewing 

the constitutionality of the limits on political party coordinated expenditures that are at issue 

here. See 518 U.S. at 624-25. On remand to the Court of Appeals, the Tenth Circuit remanded 

the case to the district court and further explained the need for factual development: 

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[T]he issues are too important to be resolved in haste. It seems inevitable that not only 

this court but the Supreme Court itself will have to address these issues. We will both 

benefit by the parties fleshing out the record with any evidence they and the district court 

deem relevant to the issues’ resolution and by the district court’s resolution of the legal 

issues in the first instance. 

FEC v. Colo. Republican Fed. Campaign Comm., 96 F.3d 471, 473 (10th Cir. 1996). When the case 

reached the Supreme Court a second time, the Court made ample use of the factual record that had been 

developed on remand. See generally Colorado II, 533 U.S. at 457-60. Given that plaintiffs’ complaint 

here raises similar challenges to the same provisions at issue in the Colorado cases, record development 

permitting the obtaining of similar material is necessary. 

B. After Making Findings of Fact Based on a Sufficient Record, the District 

Court Must Determine Whether Any Constitutional Questions Warrant 

Certification 

As explained above, the Supreme Court has made clear that district courts play an 

important gatekeeping role in determining whether to certify constitutional questions to the 

appellate courts, explaining that district courts should only certify questions under section 30110 

when the issues presented are not frivolous or insubstantial. Cal. Med., 453 U.S. at 192 n.14. 

Plaintiffs assert that the question they now present for certification “easily qualifies as nonfrivolous” (Pls.’ Mot. at 18, PageID# 241), and in support they provide several declarations and 

other material to the court purporting to support their “undisputed” factual assertions. (See 

generally Docket Nos. 19-1 – 19-5, PageID## 173-214.) 

Yet the Commission should be permitted to address these threshold certification 

standards only after developing a record including through discovery. Indeed, plaintiffs’ own 

factual submissions demonstrate the prematurity of their certification motion. Among other 

things, plaintiffs’ declarations make allegations regarding the effect of FECA’s coordinated party 

expenditure limits on plaintiffs’ speech, whether contributions have furthered quid pro quo 

15 
  

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arrangements, the amounts of various expenditures, plaintiffs’ desire to exceed the current limits, 

and the alleged burden the limits place on plaintiffs, which are all issues that are appropriate for 

discovery. (See, e.g., Decl. of Jason Thielman (“Theilman Decl.”) ¶ 20, PageID# 179 (“Creating 

and maintaining an [independent expenditure (“IE”)] unit to avoid any violation of coordination 

rules and the coordinated party expenditure limits has imposed substantial burdens on the 

NRSC”); id. ¶ 21, PageID# 179 (“The NRSC spent nearly $38 million in total to operate its IE 

unit, including nearly $1.2 million alone on rent and furnishings, staffing costs, and 

consultants”); Decl. of James David Vance (“Vance Decl.”) ¶ 12, PageID# 196 (“My campaign 

committee will continue to bear the burdens and costs imposed by the coordinated party 

expenditure limits”).) The Commission has not had the opportunity to seek written discovery or 

depose plaintiffs’ witnesses on these issues, many of which are within plaintiffs’ exclusive 

knowledge. Without this critical process, the Commission cannot be expected to fully respond as 

to how the challenged provisions actually affect plaintiffs, or to take a position on whether their 

activities support a certification-worthy claim. It would be equally imprudent for the appellate 

court to assess the burden and constitutionality of the plaintiffs’ challenges without a full factual 

understanding of plaintiffs’ activities.3 

This includes discovery in several areas related to the Court’s jurisdiction. Plaintiff 

Chabot is reported to have stated out of court that he will not run for federal office in the future. 

Discovery will assist the Court in determining whether Chabot could suffer any injury from the 

challenged restrictions that could be redressed by this Court sufficient for standing to pursue his 

claims and whether his claims are moot. See Cal. Med., 453 U.S. at 192 n.14. In addition, the 

NRSC and NRCC reported spending less than the maximum amount permitted by FECA in 

coordinated party expenditures on behalf of the two plaintiff candidates in the 2022 election. 

(Answer ¶¶ 29, 35, Docket No. 24, PageID## 281-82.) For those two elections that are the focus 

of plaintiffs’ case, discovery will aid in verifying the amount of spending authorizations provided 

by other party committees, reasons that the maximum amounts of coordinated party expenditures 

may not have been spent by any party committee, and whether the limits at issue did in fact 

operate to prevent additional coordinated spending. These areas of inquiry bear on the standing 

of all plaintiffs. The Commission should be permitted to take discovery on jurisdiction for 

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In addition to the party discovery necessary to understand plaintiffs’ specific factual 

claims, the Commission also needs an opportunity to compile a record of broader, more general 

facts about other parties. See generally Advisory Committee Notes to Fed. R. Evid. 201 (quoting 

2 Kenneth Davis, Administrative Law Treatise 353 (1958)). Facts that are more “general” than 

the parties before a court “help the tribunal decide questions of law and policy,” like the 

significant revision to the democratic process in contravention of Congress that plaintiffs seek 

here. Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992) (internal quotation 

marks and citation omitted); see also, e.g., Langevin v. Chenango Ct., Inc., 447 F.2d 296, 300 

(2d Cir. 1971) (“questions of law and policy and Discretion”) (Friendly, C.J.). 

Federal courts have frequently cited facts about parties not before the court in 

determining the constitutionality of campaign finance laws, and much of the extensive records 

discussed above constituted such material. (See supra p. 11-12.) As plaintiffs acknowledge, this 

case raises many of the same issues as Colorado II, in which the Court concluded: 

Parties are ... necessarily the instruments of some contributors whose object is not 

to support the party’s message or to elect party candidates across the board, but 

rather to support a specific candidate for the sake of a position on one narrow 

issue, or even to support any candidate who will be obliged to the contributors. 

533 U.S. at 451-52 (footnote omitted). 

That conclusion was based on broad evidence, such as political committees’ habit of giving to 

competing parties or candidates in the same election. In discussing these facts, the Court cited, 

inter alia, statements submitted in the lawsuit by a political scientist and a former Senator. Id. at 

451-52 & nn.12-13. This Court should not certify any proposed constitutional question without 

providing an opportunity for the development of a factual record that includes similar material. 

Chabot’s claims, as well as the extent to which the challenged restrictions affect the other 

plaintiffs. 

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Indeed, as explained above, plaintiffs themselves support their arguments with assertions that 

relevant “legal and factual developments” have occurred in the years since Colorado II. (Pls.’ 

Mem. at 18, PageID# 241.) And even if political parties’ operations have changed little in recent 

years, general facts to that effect would support the conclusion that the reasoning and holding of 

Colorado II should not be disturbed. 

Moreover, certifying the case based only on those facts that plaintiffs have chosen to 

identify here contravenes the Supreme Court’s recognition that no “lawsuit[] can[] be resolved 

with due process of law unless both parties have had a fair opportunity to present their cases.” 

Pernell v. Southall Realty, 416 U.S. 363, 385 (1974). It is a fundamental principle of civil 

litigation that “a party is entitled as a general matter to discovery of any information sought if it 

appears ‘reasonably calculated to lead to the discovery of admissible evidence.’” Degen v. 

United States, 517 U.S. 820, 825-26 (1996) (quoting Fed. R. Civ. P. 26(b)(1)). Bypassing this 

process would also deprive the Commission of its fundamental due process right to participate in 

determining and proposing the relevant facts for the Court.4 

CONCLUSION 

Certification to the en banc Court of Appeals at this time would be premature. Under section 

30110, this Court cannot perform its critical gatekeeper role until an adequate factual record has been 

established, based on input from both parties following a period of discovery necessary to ascertain what 

the relevant facts are. Plaintiffs propose to place this matter on a path that the Courts of Appeals 

previously rejected in Holmes, Khachaturian, and Buckley. Accordingly, this Court should deny 

With preliminary motions resolved and an answer having been filed, counsel for the FEC 

reached out to counsel for plaintiffs this week to schedule a conference of the parties on the 

possibility of the proposal of a case schedule including a period for discovery. This conferral is 

scheduled to take place tomorrow. 

18 

4 
 

 

 

 

Case: 1:22-cv-00639-DRC Doc #: 26 Filed: 06/07/23 Page: 21 of 22 PAGEID #: 324 

plaintiffs’ motion without prejudice and allow the parties to submit a joint scheduling report addressing 

a proposed discovery schedule, to be followed by the submission of proposed factual findings and 

briefing to assist the Court in determining what question, if any, should be certified. 

June 7, 2023 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

Kevin Deeley (Mass. Bar No. 644486) 

Associate General Counsel 

/s/ Harry J. Summers 

Harry J. Summers (Cal. Bar No. 147929) 

(Trial Attorney) 

Assistant General Counsel 

lstevenson@fec.gov 

kdeeley@fec.gov 

hsummers@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Shaina Ward (D.C. Bar No. 1002801) 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorneys 

gmueller@fec.gov 

sward@fec.gov 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

Washington, D.C. 20463 

(202) 694-1650 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 7, 2023, I served the foregoing pursuant to Fed. R. Civ. P. 

5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Harry J. Summers 

Harry J. Summers (Cal. Bar No. 147929) 

Assistant General Counsel 

 hsummers@fec.gov