EN BANC ARGUMENT SCHEDULED FOR NOVEMBER 30, 2018

No. 18-5227

In the United States Court of Appeals

for the District of Columbia Circuit

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Certification of Constitutional Questions by the

United States District Court for the District of Columbia

The Hon. Beryl A. Howell, Chief District Judge

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

PLAINTIFF’S REPLY BRIEF

Alan Gura

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

October 26, 2018 Counsel for Plaintiff-Appellant 

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A. PARTIES

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

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

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

(“FEC”) was the defendant in the District Court and is the defendant in

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

The Institute for Free Speech and the Goldwater Institute have each

filed amicus curiae briefs in support of Plaintiff before this Court.

The Campaign Legal Center and Democracy 21 have filed an amicus

curiae brief in support of Defendant before this Court.

B. RULINGS UNDER REVIEW

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

resolution of the merits in the first instance to this Court sitting en banc.

On June 29, 2018, the United States District Court, per the Hon. Beryl

Howell, Chief Judge, made factual findings and certified three questions

of law to this Court. That decision is published at 317 F. Supp. 3d 202

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

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C. RELATED CASES

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

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

testamentary bequests, but certified an as-applied constitutional

challenge to the imposition of contribution limits against a particular

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

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

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

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

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

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

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

banc) (per curiam).

ii

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CORPORATE DISCLOSURE STATEMENT

Plaintiff Libertarian National Committee, Inc., is a not-for-profit

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

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

States.

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

has a 10% or greater ownership interest in Plaintiff.

iii

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TABLE OF CONTENTS

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

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

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

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

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

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Restrictions of Political Speech, and Content-Based Speech

Restrictions, Are Subject to Strict Scrutiny. . . . . . . . . . . . . . . . . . . 4

II. FECA’s Application to Shaber’s Bequest Is Unconstitutional.. . . . 6

A. The LNC Has A Right to Receive Contributions.. . . . . . . . . . 6

B. The LNC Is Entitled to Raise an As-Applied Challenge 

to the Restriction of Shaber’s Bequest. . . . . . . . . . . . . . . . . 11

C. The FEC Fails to Establish Any Regulatory Interest in

Restricting Shaber’s Bequest.. . . . . . . . . . . . . . . . . . . . . . . . 12

iv

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III. FECA’s Content-Bases Restrictions on the Use of

Funds Contributed to National Party Committees Are

Unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. FECA Restricts Expenditures, Including Total Spending,

by Dictating How Money Is “Used”. . . . . . . . . . . . . . . . . . . 16

B. FECA Imposes Content-Based Speech Restrictions,

Triggering Strict Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. FECA’s Limit on Contributions to National Party

Committees Is Unconstitutional Under Any 

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

IV. Excising the Offending Provisions, Not Reverting to 

the Situation Congress Deemed Untenable, Is the 

Optimal Course. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Certificate of Compliance

Certificate of Service

v

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TABLE OF AUTHORITIES

Cases

*Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam). . . . . . . . . . . . . . . 4-8, 11, 20, 24, 25, 27

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Free & Fair Election Fund v. Mo. Ethics Comm’n,

903 F.3d 759 (8th Cir. 2018) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

*Holmes v. FEC,

875 F.3d 1153 (D.C. Cir. 2017) (en banc). . . . . . . . . . . . . . . . . . . 29-31

Ill. Liberty PAC v. Madigan,

2018 U.S. App. LEXIS 25927 (7th Cir. Sept. 13, 2018) . . . . . . . . . . . 31

Libertarian Nat’l Comm., Inc. v. FEC,

930 F. Supp. 2d 154 (D.D.C. 2013) (“LNC I”).. . . . . . . . . . . . . . . . . . . ii

Libertarian Nat’l Comm., Inc. v. FEC,

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

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

317 F. Supp. 3d 202 (D.D.C. 2018) (“LNC IV”) . . . . . . 5, 23, 25, 26, 28

Libertarian Nat’l Comm., Inc. v. FEC,

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

Libertarian Nat’l Comm., Inc. v. FEC,

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

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

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*McConnell v. FEC,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15-18, 26

Randall v. Sorrell,

548 U.S. 230 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

*Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21, 22, 24

Republican Nat’l Comm. v. FEC,

698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge panel). . . . . . . . . . . 19

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

*Speechnow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010) (en banc) .. . . . . . . . . . . . . . . . . . . . . 8, 9

Statutes

52 U.S.C. § 30101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

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

52 U.S.C. § 30116(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

52 U.S.C. § 30116(a)(9)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

52 U.S.C. § 30116(a)(9)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

52 U.S.C. § 30116(a)(9)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

52 U.S.C. § 30125(b)(1) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

vii

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Other Authorities

Cromnibus, Political Dictionary, available at 

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

Nancy Marshall-Genzer, Congress’ latest fiscal buzzword:

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

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

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

80%98cromnibus%E2%80%99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

viii

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GLOSSARY

BCRA — Bipartisan Campaign Reform Act of 2002

CF — Certified Fact

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

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

resolution” to authorize short-term funding so the

government does not run out of money in the

immediate future. See Cromnibus, Political

Dictionary, available at http://politicaldictionary

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

Congress’ latest fiscal buzzword: ‘Cromnibus,’

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

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

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

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

FEC — Federal Election Commission

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

JA — Joint Appendix

LNC — Libertarian National Committee

ix

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PLAINTIFF’S REPLY BRIEF

SUMMARY OF ARGUMENT

Were the LNC’s arguments “meritless under decades of clear

precedent,” FEC Br. 2, the District Court would not have certified three

questions, the first of which tracks Judge Wilkins’s 2013 certification.

The FEC’s brief is unpersuasive. The Commission fails to carry its

burden under any level of First Amendment scrutiny. Ignoring the

central fact inherent in every case certified under 52 U.S.C. § 30110

1

—that something differs here from what has been considered before—

the FEC opens by declaring that “closely drawn” scrutiny applies here

because it applied previously in different contexts. Not so. Precedent

guides future courts by its reasoning, not its conclusion. That reasoning

requires strict scrutiny, as the challenged statute targets political speech

on the basis of its content.

The FEC cannot qualify its concession that it lacks knowledge of any

quid pro quo arrangement between the now-dead Shaber and the LNC.

It can say only that Shaber was a Libertarian whose party solicited his

1All statutory references are to Tile 52 of the United States Code

unless noted otherwise.

1

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donations. True, but this does not move the clear-error needle in

contesting the certified absence of quid pro quo corruption evidence.

Unable to justify its restriction of Shaber’s bequest, the FEC argues

that there is no First Amendment right at all in receiving testamentary

bequests for the purpose of engaging in political speech. Were this

correct, the government could outright ban all testamentary bequests to

political parties. But the argument misreads and contradicts precedent—

including circuit precedent that the FEC simply ignores.

This Court, among others, has acknowledged the right to receive and

speak with the money whose solicitation is itself secured by the First

Amendment. Shaber’s death did not terminate the LNC’s speech rights

in the money he gave it. It merely clarifies what is at stake.

The second two questions relate not to “FECA’s contribution limits”

as they have existed over the past “forty year[s],” FEC Br. 2, but to a

novel statutory creature that Congress summarily hatched in the 2014

cromnibus without examination. The FEC errs in viewing the relevant

limit not as the sum of its parts—how much can someone give a political

party committee in a year—but as an array of allegedly unconnected

2

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limits, all of which coincidentally apply in the same timeframe to the

same donor and the same recipient. But as a single contribution or as

several, the cromnibus scheme cannot be justified.

At bottom, the FEC’s cromnibus defense rests upon a faulty syllogism:

1. Contribution limits have been upheld;

2. The challenged limit is a contribution limit;

3. Ergo, FECA’s post-cromnibus party contribution limit is

constitutional. QED.

The first proposition is irrelevant. Not all contribution limits are per

se constitutional. The second proposition is at best debatable, but in any

event irrelevant, as the FEC finally concedes that the challenged

provision imposes content-based speech restrictions.

And even were the Court to apply only “closely drawn” scrutiny in

assessing the only scheme at issue, the FEC cannot carry its burden to

justify these impositions on core First Amendment political speech. After

three rounds of briefing through nearly three years of litigation, the FEC

still fails to conjure a coherent rationale for them under any standard of

review.

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Considering the complete lack of evidence purporting to justify the

scheme, and the FEC’s shifting and equivocal rationales, the current

incarnation of FECA’s limit on contributions to political party

committees is unconstitutional on its face. This Court should honor 

Congress’s decision to improve the parties’ abilities to speak, but excise

that decision’s accompanying unlawful content-based restrictions.

ARGUMENT

I. RESTRICTIONS OF POLITICAL SPEECH, AND CONTENT-BASED SPEECH

RESTRICTIONS, ARE SUBJECT TO STRICT SCRUTINY.

This case should not turn on the standard of scrutiny. Given the

FEC’s lack of justification for restricting Shaber’s bequest, and its

various defenses of the cromnibus expressive purpose limits that read

more like an indictment of the scheme, the LNC should prevail even

under rational basis review.

Yet the LNC is constrained to respond to the FEC’s assertion that the

limits here “are subject to, at most, closely drawn scrutiny,” FEC Br. 18,

because that was the standard applied in Buckley v. Valeo, 424 U.S. 1

(1976) (per curiam).

4

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Buckley applied “closely drawn” scrutiny in evaluating a facial

challenge to a pure contribution limit. Buckley, 424 U.S. at 25. It also

applied strict scrutiny to expenditure limits. Id. at 44-45. The second

question here raises a facial challenge, but to a contribution limit that

also functions as an expenditure limit and in any event, along contentbased lines. By Buckley’s own terms, the LNC’s facial challenge warrants

strict scrutiny. So, too, under the rule of Reed v. Town of Gilbert, 135 S.

Ct. 2218 (2015), which subjects all content-based speech restrictions to

strict scrutiny.

The FEC ignores the challenged restriction’s expenditure- and

content-based aspects, as though the LNC challenges the 1974 law and

not its 2014 cromnibus replacement. The District Court saw through this

gloss. So should this Court. “[T]he appropriate framework for review [of

the LNC’s facial challenge] is that governing content-based restrictions

on speech, requiring narrow tailoring to serve a compelling state

interest, rather than the contribution limit framework.” Libertarian

Nat’l Comm., Inc. v. FEC, 317 F. Supp. 3d 202, 219 (D.D.C. 2018) (“LNC

IV”) (citation omitted); JA 171.

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Strict scrutiny likewise governs the LNC’s as-applied challenges

relating to Shaber’s bequest. Buckley did not concern as-applied

challenges, and it related presumptively to living people. Here, the asapplied challenges relate to the testation context unexamined in Buckley.

The focus is not on Shaber’s association with the LNC, but on the LNC’s

ability to receive and express itself with Shaber’s gift. The FEC may

dispute this right’s existence, but if it exists (and it does), it is a right of

expression. Per Buckley’s terms, it warrants strict scrutiny.2

II. FECA’S APPLICATION TO SHABER’S BEQUEST IS UNCONSTITUTIONAL.

A. The LNC Has A Right to Receive Contributions.

That the First Amendment secures a right to solicit contributions is

firmly established. See, e.g., Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 788-89 (1984). What use is the right to solicit

contributions, if there is no inherent concomitant right to accept them?

2The FEC also overreads the LNC’s disinterest in reviving its

categorical challenge to FECA’s application to testamentary bequests.

FEC Br. 20. Conceding that FECA can apply to bequests hardly

precludes as-applied challenges. Indeed, the LNC specifically endorsed

the District Court’s reading of LNC I as suggesting that “most bequests”

should not be restricted, and that FECA would only “rarely” apply to

bequests. LNC Br. 36 (internal quotation marks and citation omitted).

6

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The right to receive donations is also inherent in the right to speak.

“[T]he Court has acknowledged that certain unarticulated rights are

implicit in enumerated guarantees . . . fundamental rights, even though

not expressly guaranteed, have been recognized by the Court as

indispensable to the enjoyment of rights explicitly defined.” Richmond

Newspapers v. Virginia, 448 U.S. 555, 579-80 (1980) (footnote omitted)

(First Amendment right to attend criminal trial). Buckley acknowledged

the right to receive speech-enabling money in observing that speech

requires money. 424 U.S. at 19. “[C]ontributions may result in political

expression if spent by a candidate or an association to present views to

the voters,” an act “which involves speech by someone,” presumably, the

recipient. Id. at 21. Regardless of contribution limits’ impact “upon the

contributor’s ability to engage in free communication,” id. at 20-21, the

Court offered that “contribution restrictions could have a severe impact

on political dialogue if the limitations prevented candidates and political

committees from amassing the resources necessary for effective

advocacy,” id. at 21—a clear statement that contribution limits impact

the recipient’s speech rights. 

7

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The difference between Buckley on this score and the LNC’s Shaber

claim is that Buckley concerned a facial challenge questioning a limit’s

systemic impact, while the latter concerns the impact of limiting a

particular contribution. The FEC never questioned the obvious fact: the

LNC would spend Shaber’s money to speak. CF 127, JA 224. 

And contrary to the FEC’s claim, the LNC need not prove that

silencing it with respect to Shaber’s bequest causes the same harm as a

law that sweeps too broadly against all contributions. If the FEC lacks

an anti-corruption interest in restricting access to Shaber’s bequest, it

fails to carry its First Amendment burden, even if it considers the LNC’s

injury de minimus. Again, “something outweighs nothing every time.”

Speechnow.org v. FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc)

(internal quotation marks and punctuation omitted); JA 161 n.9.

This Court has acknowledged the right to receive political

contributions. The FEC ignores Speechnow, where the first certified

question asked whether contribution limits violated the lead plaintiff’s

First Amendment right to receive political contributions—and this Court

held that it did. Speechnow, 599 F.3d at 696. 

8

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Speechnow is consistent with a host of cases acknowledging the right

to receive political contributions. LNC Br. 32-33. The FEC ironically

claims that these courts had “no need” to distinguish between speech

and associational scrutiny standards because the donors were living,

FEC Br. 23-24, yet these courts clearly affirmed the right to receive

contributions. The FEC then wrongly claims that the courts lacked

“occasion to distinguish between a prospective donor’s right to speech

and the speech rights of the recipient.” FEC Br. 24. The occasions arose

when plaintiffs brought suit and obtained certified questions seeking to

vindicate the right to receive contributions. Speechnow was no oversight.

Yet while it ignores Speechnow and the other cases affirming the right

to receive contributions, the FEC illogically claims that cases offering

that contribution limits (on their face) “bear more heavily” on

associational than speech rights, or which “focused” on associational

rights, disprove the existence of speech rights. FEC Br. 21 (internal

quotation marks omitted). It even seizes on a decision striking down

Missouri’s PAC-to-PAC transfer ban for the proposition that a transfer

“implicates speech rights on the donor side, not the recipient side.” FEC

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Br. 25 (citing Free & Fair Election Fund v. Mo. Ethics Comm’n, 903 F.3d

759 (8th Cir. 2018) (“FFEF”)).

But only the first part of that assertion is true. Nowhere in FFEF did

the court deny that transfers implicate a recipient’s speech. If all the

court did was strike down a receipt-ban based on its impact upon donors,

that does not negate the receiver’s interest. Indeed, FFEF claimed that

it “receives contributions and makes independent expenditures to

influence voters. FFEF alleged that it desired to accept contributions

from other PACs and to contribute to those PACs that make only

independent expenditures.” FFEF, 903 F.3d at 762. The other plaintiff

“alleged that it wished to accept contributions from and contribute to

other PACs.” Id. Had the Eighth Circuit intended to reject a right to

receive, it doubtless would have said so given the plaintiffs’ posture.

The FEC cannot have it both ways, dismissing cases that uphold the

right to receive because they never thought to reject it, but then

endorsing cases upholding a right to donate as silently rejecting the right

to receive. The right to receive may not attract as much attention as the

right to contribute, as cases typically involve living donors with present

10

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contribution interests. But existence of the right to receive contributions

is not a matter of first impression, nor would it pose a particularly

difficult question if it were. The FEC’s position, however, contains no

limiting principle—it would immunize all campaign finance restrictions

from constitutional review. Any unconstitutional contribution limit could

simply be reconfigured as a receipt limitation.

The LNC has the right to receive contributions enabling its First

Amendment political speech.

B. The LNC Is Entitled to Raise an As-Applied Challenge 

to the Restriction of Shaber’s Bequest.

The FEC misses the point in arguing that the as-applied Shaber

challenge “is inconsistent with the Supreme Court’s treatment of

FECA’s prophylactic contribution limits.” FEC Br. 26. The Shaber

challenge is not “inconsistent with,” but irrelevant to prophylactic

considerations. It does not at all “resemble” Buckley’s overbreadth

claim, as it does not contest any contribution limit’s general sweep.

It may well be true that “under closely drawn scrutiny, a generally

valid contribution limit is not unconstitutionally overbroad because it

prohibits more than only corrupt contributions.” FEC Br. 17. But the

11

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LNC does not challenge any limit’s general validity as overbroad. The

question is not whether the limit facially fits some standard of review,

with the understanding that no “fit” must or could ever be perfect. Asapplied challenges exist precisely because even valid prophylactic rules

are imprecise. That other as-applied challenges to contribution limits

have failed, FEC Br. 28, does not mean that all such challenges must

fail. The repeated certification of as-applied challenges answers the

FEC’s claim that such challenges are barred. They are not.

C. The FEC Fails to Establish Any Regulatory Interest in

Restricting Shaber’s Bequest.

The FEC asserts, but fails to carry its burden of proving, that

“applying [FECA’s] limits to Shaber’s contribution is justified by the

government’s interests in combatting the actuality and appearance of

corruption.” FEC Br. 29.

The Commission argues that large contributions, including bequests,

“can corrupt, or at the very least, create the appearance of corruption,”

id. (quoting McConnell v. FEC, 540 U.S. 93, 144 (2003) (emphasis

added). It claims that “even if Shaber’s contribution” is not problematic,

“several other large potential testamentary contributions” are, and “the

12

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LNC offers no workable way to distinguish among them.” FEC Br. 30. It

argues that the LNC should not be “exclude[d] . . . en masse” from

FECA, id. at 31 (internal quotation marks omitted), and that “if

[testamentary] contributions were excluded from FECA’s limits,” donors

would shift from current to testamentary giving, id. at 32.

Nobody here disputes the theoretical corruption potential of bequests,

or the merits of other donors’ plans (which the LNC would defend, if

need be, at the appropriate time).3 The LNC does not argue that it

should be “excluded en masse” from FECA (although its electoral

success at any given time may be relevant to the as-applied analysis).

And for what it may be worth, the LNC doubts that motivated donors

would forego aiding political victories in their lifetimes to maximize the

value of gifts they hope come in the most distant possible future, the

fruits of which they may not expect to see.4

3The FEC states that a recipient may grant favors “in the hopes of

preventing the individual from revoking his or her promise” to bequeath

money, FEC Br. 30 (internal quotation marks omitted), but politicians

always hope that donors reward their performance and access. Court

dockets are replete with disappointed heirs.

4As they followed lifetimes of unremarkable, even scant giving, the

Burrington, Shaber, and Clinard bequests might demonstrate that

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But what about Shaber?

The FEC wrongly asserts that each of FECA’s bequest applications

must be presumptively valid. But it does not respond to the District

Court’s rejection of this theory, which the LNC endorsed. See supra n.2.

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. There is no need to speculate about an

appearance of corruption. The donor/donee relationship has ended, and

can be examined.

Here, that examination failed to reveal any quid pro quo arrangement.

Shaber was a small and unknown donor, and no one on the LNC side did

him or his family any favors. Moreover, Shaber’s gift was contingent and

not apparently timed. The FEC’s response? That “corruption risks

attend Shaber’s specific contribution,” because he trickled small

donations amounting to over $3,000 over the course of a lifetime, and

received solicitations. FEC Br. 30. The FEC’s failure to spell out these

“risks” is unsurprising, as the record negates even the appearance of

testamentary giving helps relatively less-affluent people contribute

money they could not afford to part with while alive. 

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corruption, let alone the actual corruption that the FEC should identify

to justify FECA’s application to testamentary bequests.

FECA’s application to Shaber’s bequest violates the LNC’s First

Amendment rights.

III. FECA’S CONTENT-BASES RESTRICTIONS ON THE USE OF FUNDS

CONTRIBUTED TO NATIONAL PARTY COMMITTEES ARE

UNCONSTITUTIONAL.

The FEC argues that because FECA’s annual limits on contributions

to national party committees survived McConnell, FECA’s radical 2014

restructuring is irrelevant. Indeed, the FEC and its amici present the

cromnibus amendments as a sort of favor to the LNC, because they

raised the political committee contribution limit.

But the ability to accept donations for the purpose of political speech

is not a special government dispensation for which Americans must be

grateful—it is a fundamental First Amendment right. The cromnibus

amendments rendered FECA’s current incarnation unconstitutional for

precisely the reason on which the predecessor statute’s validity hinged.

The predecessor scheme did not discriminate based on the content of the

LNC’s speech. The current scheme plainly does.

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A. FECA Restricts Expenditures, Including Total Spending,

by Dictating How Money Is “Used.”

The FEC finally agrees that in determining whether a restriction is a

contribution or expenditure limit, “the ‘relevant inquiry’ is whether a

given campaign finance restriction ‘burdens speech in a way that a direct

restriction on the contribution would not.’” FEC Br. 34 (quoting

McConnell, 540 U.S. at 138-39); LNC Br. 42.

Alas, the FEC’s quotation of the relevant statute is highly selective.

The FEC quotes a portion of the limit imposing “a direct restriction on

the contribution,” offering that Section 30116(a)(1)(B) “provid[es] that

‘no person shall make contributions’ which ‘exceed 300 percent of the

amount otherwise applicable’.” FEC Br. 34. This is incomplete. The total

contribution limit is not 300% of anything.

The part of the statute that the FEC does not wish to quote speaks of

three accounts that may receive 300% of the base limit, restricted as to

how deposits are “used.” Sections 30116(a)(9)(A), (B), and (C) (emphasis

added). The subjects being “used” are not contributions, but

“account[s],” id., or more precisely, account funds. When money leaves

the accounts to pay for something, it is not a contribution leaving the

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account, but an expenditure. By restricting how account expenditures are

“used,” the statute burdens the LNC’s speech in a way that directly

restricting the contribution would not. It no longer “simply limit[s] the

source and individual amount of donations.” McConnell, 540 U.S. at 139.

The FEC’s claim that “the segregated account provisions do not cap

spending, either generally or in connection with the categories of

[privileged] expenses,” FEC Br. 34, is demonstrably untrue. Even its illconsidered motion to dismiss admits that the LNC could not spend

Shaber’s entire bequest in 2015 owing to the use restrictions. The FEC

still talks of absorption “in 2015 and 2016,” FEC Br. 36, as though the

contribution limits are biannual, and ignoring its prohibition on

strategically varying the amounts of contributions from escrow. Yet as

the FEC acknowledges, the District Court concluded that Shaber’s

bequest could not “fully” offset general spending. Id. That is why some

portion of it had to go into escrow—it could not all be spent that year.

The gift exceeded what the LNC was allowed to spend of it, so the use

restrictions reduced the LNC’s overall spending.

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And Shaber’s 2015 gift is just one example. The LNC’s segregated

purpose spending is low enough that in most years, a single donor could

exceed its absorption ability.

5 To this reality, the FEC responds that “the

LNC may choose not to incur more expenses, but that does not convert

FECA’s limits into expenditure restrictions.” FEC Br. 36. In other

words, the LNC should hold presidential nominating conventions every

year, litigate meritless election contests upon winning 3% of the vote,

and buy more headquarters buildings. If it can’t find a useless,

government-approved way to waste money, that’s not the FEC’s fault.

The argument is unserious.6

But the FEC is onto something. The fact that the statute dictates to

the LNC how it would “choose” to spend its money is precisely why the

statute burdens speech. The choice of how to spend segregated account

5The LNC spends nothing on presidential conventions during the

two years following such conventions, and spends only a symbolic

amount on such conventions in their preceding years. CF 28, JA 188; JA

78. It will retire its headquarters mortgage by 2024. CF 25, JA 187. It

has never spent money on election recounts and is unlikely to do so in

the foreseeable future. LNC Br. 15.

6

In any event, McConnell spoke of a total expenditure limit only as

an “example” of expenditure limits. McConnell, 540 U.S. at 139.

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money is not made by the LNC; it is made by Congress. Of course “the

level of scrutiny for regulations of contributions to candidates and

parties does not turn on how the candidate or party chooses to spend the

money or to structure its finances,” FEC Br. 36 (quoting Republican

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 156 (D.D.C. 2010) (threejudge panel), aff’d, 561 U.S. 1040 (2010))—when contribution limits

“apply regardless of how a national party might want to use the money.”

Republican Nat’l Comm., 698 F. Supp. 2d at 153.

That is not the case here.

B. FECA Imposes Content-Based Speech Restrictions,

Triggering Strict Scrutiny.

If “The Segregated Account Provisions Are Content Neutral,” FEC

Br. 37, on what basis are they segregated? Incredibly, the FEC admits

that these restrictions are content-based: “each category of expenses

serves a different purpose and frequently features a discussion of

different issues and priorities.” FEC Br. 48 (internal quotation marks

and brackets omitted). Indeed.

The LNC nonetheless addresses the FEC’s lengthier denial of this

plain fact:

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The FEC’s claim that the challenged limits “only indirectly have

potential impacts on the speech of political parties” because not all

money might be used for “speech,” FEC Br. 38 (emphasis added), is

frivolous. The same might be said to defend a contribution limit of $0.

Parties are in the speaking business; speaking “requires the expenditure

of money,” Buckley, 424 U.S. at 19. The less money parties have, the less

they might speak. Moreover, a limit’s impact determines whether it

survives constitutional scrutiny; it does not alter the standard of review.

The FEC’s obsessive focus on contributors’ interests is irrelevant,

because the restrictions at issue target the parties’ accounts. It is not the

donors who are barred from spending beyond the accounts’ segregated

purposes. Not that focusing on the donors would help the FEC. The

record establishes that the speech restrictions substantially impact

donors, who limit and refrain from contributing because they object to

the restrictions placed on their contributions. See CF 32, JA 189; CF

144, 145, JA 228; CF 153, 154, JA 230; CF 157, 158, JA 231; CF 166, JA

233-34; LNC Br. 19-22. This, in turn, impacts the LNC’s ability to speak.

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At bottom, the FEC’s theories as to why a statute directing political

parties’ spending somehow does not impose content-based speech

restrictions rely on an excessively narrow definition of “content-based.”

To the FEC, content-based restrictions are only those based on

viewpoint, ideology, or specific content. This position has a surface-level

appeal, because some of the restrictions the FEC disclaims would be

egregiously content-based.

But the fact that FECA is not content-based in the worst possible

ways does not excuse its still-serious content-based restrictions from

strict scrutiny. The FEC errs largely in the manner that the Supreme

Court cautioned against in Reed, conflating or glossing over several of

that leading precedent’s instructions.

Reed began by explaining that the “commonsense meaning of the

phrase ‘content based’ requires a court to consider whether a regulation

of speech ‘on its face’ draws distinctions based on the message a speaker

conveys.” Id. at 2227 (internal quotation marks omitted). It then

described two ways in which a restriction may be facially message-based

and thus, content based: it may make “obvious” distinctions, “defining

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regulated speech by particular subject matter, and . . . more subtle

[distinctions], defining regulated speech by its function or purpose.” Id.

“Both are distinctions drawn based on the message a speaker conveys,

and, therefore, are subject to strict scrutiny.” Id.

Reed then described “a separate and additional category of laws that,

though facially content neutral, will be considered content-based

regulations of speech: laws that cannot be justified without reference to

the content of the regulated speech, or that were adopted by the

government because of disagreement with [the speech’s] message.” Id.

(internal quotation marks omitted).

The FEC offers only a poor argument with respect to the first type of

facial, message-based restriction: subject matter. The LNC can discuss

topics “unrelated to its presidential nominee” at its presidential

conventions, FEC Br. 39-40, or use its headquarters telephone “to order

catering,” id. at 40. Of course, it bears repeating that the FEC also

admits that “each category of expenses . . . frequently features a

discussion of different issues and priorities,” FEC Br. 48 (internal

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quotation marks and brackets omitted), but to be sure, the segregated

account restrictions are viewpoint- and ideology-neutral.

But do they not relate to subject matter? The subject matter of a

presidential nominating convention is the nomination of a presidential

ticket. The LNC could not spend segregated convention account funds on

its mid-term conventions, as those relate to a different subject. The

litigation accounts are even more narrowly restricted. They can only be

used for expression on the subject matters of election contests, recounts

or other legal proceedings. “[T]he lawfulness of a particular expenditure

by the LNC may indeed turn on the message that the expenditure

conveys.” LNC IV, 317 F. Supp. 3d at 219; JA 172.

Beyond this, the FEC main denial of the restrictions’ nature simply

skips past Reed’s “more subtle” forms of content-based message

regulation, which are not so subtle here: function or purpose. Even if the

segregated accounts do not restrict spending according to subject matter,

they definitely restrict spending based on function and purpose.

Presidential nominating conventions and political litigation are

essentially expressive functions that serve particular purposes. Much of

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what goes on at a headquarters building, if not parts or aspects of a

building itself, might be similarly described. Again, the FEC’s latest

admission: “each [cromnibus] category of expenses serves a different

purpose.” FEC Br. 48 (internal quotation marks omitted). When FECA

demands that funds be spent on the functions and for the purposes of

presidential conventions, headquarters buildings, and legal proceedings

such as election contests, it forbids the funds from being spent to serve

any other function or purpose.

Even if FECA’s restrictions were considered content-neutral, the FEC

cannot justify them “without reference to the content of the regulated

speech.” Reed, 135 S. Ct. at 2227. For example, if the LNC spends

restricted money expressing itself at a convention, it must nominate a

presidential ticket.

Unable to contest the plain fact that the segregated account structure

imposes content-based speech restrictions, the FEC argues that Buckleyera FECA “would have been content-discriminatory . . . under the

approach the LNC proposes,” as it targeted contributions “made for the 

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purpose of influencing a federal election.” FEC Br. 41 (internal quotation

marks omitted). Even were this true, it would be irrelevant.

As a preliminary matter, the theory was not apparently considered. If

Buckley “rejected the Libertarian Party’s argument that the statute

regulated the content of speech,” id. (citing Buckley, 424 U.S. at 20-23),

that rejection does not appear on the pages cited by the FEC (or

anywhere else).7 And had the Supreme Court analyzed FECA’s targeting

of federal funds as a content-based restriction, it would have likely

upheld the provision given Congress’s greater interest in regulating

federal rather than state and local election activity. LNC IV, 317 F.

Supp. 3d at 221-22; JA 175. “The pre-BCRA soft money regime simply

does not establish that the FECA's current specialized purpose regime

passes constitutional muster.” Id.

7With respect to contribution limits, the Buckley plaintiffs

“contend[ed] that the contribution limitations must be invalidated

because bribery laws and narrowly drawn disclosure requirements

constitute a less restrictive means of dealing with” corruption concerns.

Buckley, 424 U.S. at 27. They also contended that the limits were

overbroad, id. at 29-30, and favored incumbents over challengers and

major- over minor-party candidates and independents, id. at 30-35.

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The FEC makes a similar point by arguing that McConnell rejected a

call to apply strict scrutiny to arguably content-based restrictions. But as

the District Court pointed out, “[McConnell] plaintiffs did not raise the

argument that § 30125(b)(1) unconstitutionally conditioned a

contribution's lawfulness on the purpose for which the contribution was

made, which is the argument the LNC raises here. As such,

McConnell cannot be read to foreclose the LNC’s claim.” LNC IV, 317 F.

Supp. 3d at 221 (citations omitted); JA 174. “Questions which merely

lurk in the record, neither brought to the attention of the court nor ruled

upon, are not to be considered as having been so decided as to constitute

precedents.” Id. (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543

U.S. 157, 170 (2004)). And again, had McConnell considered Section

30125(b)(1) as a content-based restriction, it is easier for Congress to

justify making such distinctions in regulating federal and state election

funds differently. Id.

However courts might have described other FECA provisions, the

limit at issue is riddled with content-based restrictions that target the

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subject matter, function, and purpose of speech, and which cannot be

justified (if at all) without reference to the speech’s content.

C. FECA’s Limit on Contributions to National Party

Committees Is Unconstitutional Under Any Standard of

Review.

The First Amendment requires courts to take seriously restrictions on

core political speech. Even “closely drawn” scrutiny is no rubber stamp.

Congress may have a keen understanding of the political process, but

there is no irrebuttable presumption that it used that understanding in

good faith, or at all. The burden in this First Amendment case is the

FEC’s. Buckley, 424 U.S. at 25. The Commission does not carry its

burden here by showing that Congress enacted dollar limitations, and

calling it a day. Whatever deference is owed Congress in setting a dollar

limit governing (1) the total amount that (2) one entity may give another

(3) in a set timeframe, cannot extend to content-based spending

restrictions.

The FEC asks this Court to pretend that the cromnibus content-based

restrictions are the product of some hallowed “particular expertise” to

which deference is owed. But as Members themselves declared, the

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cromnibus amendments were a midnight scam, an increase in the party

contribution limit under a Potemkin facade of restrictions on fungible

money that typically prove toothless. Indeed—the FEC still argues that

the LNC should act more like other parties and simply circumvent the

restrictions by spending differently. It complains that the restrictions are

needed to fight corruption (how exactly remains a secret), and then it

complains that the LNC does not take all the money.

Because it is naive to view the cromnibus as a carefully calibrated

exercise of expertise, the FEC imagines FECA’s current party

contribution limit not as the single limit with problematic use

restrictions that it is, but as an allegedly more-digestible collection of

limits, each of which, taken separately, require deference.

This approach is irrational. If one simply asks how much a person

may give the LNC each year, the answer is $339,000. “Altogether . . . an

individual may contribute $339,000 per year to accounts established and

maintained by national political parties.” LNC IV, 317 F. Supp. 3d at

210, JA 158; id. at 216, JA 167 (“the limit of $339,000 that individuals

may contribute for either general or specialized purposes”).

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At one point the FEC slips, and speaks against “maintaining a

$339,000 contribution limit.” FEC Br. 54 (emphasis added). When it

wants to, the FEC understands what this Court explained in Holmes v.

FEC, 875 F.3d 1153, 1161 (D.C. Cir. 2017) (en banc): that contribution

limits are defined by size and time. It complains that the LNC did not, in

2015, accept what it constantly describes in the singular as “Shaber’s

contribution,” see, e.g. FEC Br. 36, an amount that Shaber “left all at

once,” id. at 14. What limit applied to Shaber’s contribution, such that

the LNC could have accepted all of it in 2015? It would be odd to say

there was no one limit, only “current combined limits,” FEC Br. 22,

merely because the LNC could only accept the gift by dispersing it among

various accounts.

But even were the FEC correct, and FECA imposed not a single limit

but a collection of limits, the FEC errs in arguing that it “need not prove

that the specific dollar amount of a limit independently furthers some

corruption rationale.” FEC Br. 43. It most assuredly does, because the

“limits” at issue are not generalized—they do much more than limit time

and amount. Holmes, 875 F.3d at 1161.

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All of the cases relied upon by the FEC that upheld contribution

limits deferred to generic dollar limits for particular donors and

recipients at particular times. No court has ever deferred to contentbased expenditure restrictions under the guise of deferring to a generic

contribution limit.

The FEC misrepresents this Court’s decision in Holmes with selective

quotation: “Congress need not . . . separately justify its decision to adopt

a ‘graduated scheme allowing for higher ceilings for’ certain categories of

expenses.” FEC Br. 45 (quoting Holmes, 875 F.3d at 1162) (other

citation omitted). In the quoted passage, the words following “higher

ceilings for” cannot fairly be described as “certain categories of

expenses;” the omitted words are “certain elections.” Holmes, 875 F.3d

at 1162. In discussing “certain elections,” Holmes referenced “the other

essential element of a contribution limit—its timeframe.” Id. The

timeframe here, one year, is not the issue. And the issue—use

restrictions—is not an “essential element” of contribution limits.

Likewise, when the Supreme Court spoke of legislative expertise in

“in matters related to the costs and nature of running for office,”

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Randall v. Sorrell, 548 U.S. 230, 248 (2006), it did so in the context of a

generic contribution limit—and it rejected the legislative “expertise” in

striking down the limits. The FEC’s reliance on Ill. Liberty PAC v.

Madigan, 2018 U.S. App. LEXIS 25927 (7th Cir. Sept. 13, 2018) is

likewise misplaced. Like Holmes and Randall, that case too involved

generic contribution limits without regard to the content of any

expenditure.

Indeed, Illinois Liberty supports the LNC’s position. The Illinois

Liberty plaintiffs complained that individuals’ contributions were more

limited than those of various entities, which the Seventh Circuit

understood as an argument that the challenged limits were

underinclusive. Ill. Liberty, 2018 U.S. App. LEXIS 25927 at *13-*14.

Rejecting that theory, the Seventh Circuit held that “Liberty PAC must

instead plausibly plead that Illinois was not actually concerned about

corruption when it promulgated the individual contribution limits. It has

not done so.” Id. at *14. But this is exactly what the LNC claims—that

the challenged restrictions do not address, let alone even rationally

relate to corruption concerns.

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Given its opposition to any sort of actual scrutiny, it is no surprise

that the FEC fails to give a better account of how the cromnibus

spending restrictions are “closely drawn” to corruption concerns than it

attempted in discovery. It falls back on Speaker Boehner’s perfunctory

recitation of the cromnibus amendments’ features that accompanied

their introduction in the House, but nothing in that statement addressed

corruption concerns or the illogic revealed here in discovery. 

Congress may have wanted to compensate parties for the loss of public

presidential convention funds, FEC Br. 45, or revert to the pre-BCRA

arrangement that allowed for more money to flow to election recounts,

id. 46-47. But these are still the spending purposes that the FEC

identified in discovery as being the most dangerous—such contributions

“maximally benefit” particular candidates or are tailored to particular

contests, CF 36, JA 191; CF 37, JA 191-92—and the cromnibus privileges

them. The notion that these activities are “less tied to particular

candidates,” FEC Br. 51, defies credulity.

Headquarters and legal proceeding spending may be “less directly tied

to the core electoral purpose of persuading voters,” FEC Br. 46 (citation

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omitted), but contributions for these purposes are still fungible, as are

other restricted contributions, and may still be more or less appreciated

by parties, depending on their circumstances.

The FEC claims that the cromnibus structure is supported by the fact

that parties “place a higher value on unrestricted contributions than”

restricted ones, FEC Br. 47 (citing JA 197), but that is false and

unsupported by its citation, which provides that unrestricted funds are

more valuable than restricted funds, CF 50; JA 197. Contributions are

not funds, and the FEC has admitted, repeatedly, that parties may value

restricted contributions more than restricted ones, depending on the

circumstances. See discussion LNC Br. 9-12. It should have addressed

these admissions.

The FEC gets one thing correct: “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.” FEC Br. 47. That is why it loses, having admitted that parties

may prize larger, restricted cromnibus contributions more highly,

because they are often perfectly fungible with unrestricted funds that

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they liberate, and because they maximally benefit particular candidates

and particular contests.

At bottom, the FEC has no answer for how these restrictions might

pass any standard of review. It concedes, if inadvertently, that FECA

imposes content-based speech restrictions, but fails to attempt justifying

the restrictions under strict scrutiny; its “closely drawn” scrutiny

amounts to, “because Congress said so.” This is not even loosely-drawn

scrutiny. It is a rubber stamp.

IV. EXCISING THE OFFENDING PROVISIONS, NOT REVERTING TO

THE SITUATION CONGRESS DEEMED UNTENABLE, IS THE 

OPTIMAL COURSE.

Having argued at great length that Congress properly expanded the

amount of money available to parties, compensating for the loss of

convention and recount funds and exercising its special expertise in the

overall cost of running for office, the FEC makes a U-turn regarding the

remedy. It urges that the only way to correct FECA’s content-based

restriction is to roll back Congress’s decision to increase the parties’

fundraising abilities.

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That option is available. But it would stifle the most speech, and

subvert “Congress’s desire to permit political parties to acquire more

resources.” FEC Br. 10. Congress would respond to any remedy, but this

Court should still retain as much of what Congress has lawfully done.

CONCLUSION

All three certified questions should be answered in the affirmative.

The Court should direct the entry of appropriate declaratory and

injunctive relief.

Dated: October 26, 2018 Respectfully submitted,

/s/ Alan Gura

Alan Gura

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because this brief contains 6,420 words,

excluding the parts of the brief exempted by Federal Rule of Appellate

Procedure 32(a)(7)(B)(iii) and Circuit Rule 32(e)(1).

This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal

Rule of Appellate Procedure 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using Corel WordPerfect in

14-point Century Schoolbook font.

/s/ Alan Gura

Alan Gura

USCA Case #18-5227 Document #1757323 Filed: 10/26/2018 Page 46 of 47
CERTIFICATE OF SERVICE

I certify that on October 26, 2018, I electronically filed the foregoing

brief with the Clerk of this Court by using the appellate CM/ECF system.

The participants in the case are registered CM/ECF users and service

will be accomplished by the appellate CM/ECF System.

/s/ Alan Gura

Alan Gura

USCA Case #18-5227 Document #1757323 Filed: 10/26/2018 Page 47 of 47