No. 19-1398

In the Supreme Court of the United States

TED LIEU, UNITED STATES CONGRESSMAN, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

JACOB S. SILER

Acting Assistant General

Counsel

Federal Election Commission

Washington, D.C. 20463

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I) 

QUESTIONS PRESENTED

1. Whether the Federal Election Commission acted 

“contrary to law,” 52 U.S.C. 30109(a)(8)(C), when it dismissed petitioners’ administrative complaint and declined to commence enforcement proceedings against 

various political committees that had allegedly received 

unlawful contributions.

2. Whether a federal statute that limits the amounts 

that may be contributed to political committees, 52 

U.S.C. 30116(a)(1)(C), can constitutionally be applied to 

committees that make only independent expenditures. 
(III) 

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction.................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

A. Regardless of whether SpeechNow was correctly 

decided, the FEC acted lawfully in dismissing 

petitioners’ administrative complaint ............................. 9

B. SpeechNow was correctly decided................................. 16

C. This Court should deny the petition.............................. 22

Conclusion ................................................................................... 27

TABLE OF AUTHORITIES

Cases:

Alabama v. North Carolina, 560 U.S. 330 (2010) .............. 12

American Civil Liberties Union v. Mukasey, 

534 F.3d 181 (3d. Cir. 2008), cert. denied, 

555 U.S. 1137 (2009)............................................................ 23

Arizona Free Enterprise Club’s Freedom Club PA v. 

Bennett, 564 U.S. 721 (2011)........................................ 18, 21

Ashwander v. Tennessee Valley Authority, 

297 U.S. 288 (1936).............................................................. 25

Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012), 

cert. denied, 569 U.S. 947 (2013) ....................................... 23

Binderup v. Attorney General United States of 

America, 836 F.3d 336 (3d Cir. 2016), cert. denied, 

137 S. Ct. 2323 (2017) ......................................................... 23

Buckley v. Valeo, 424 U.S. 1 (1976).................... 17, 18, 19, 20

California Medical Ass’n v. FEC, 453 U.S. 182 

(1981).............................................................................. 19, 26

Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012)................ 15
IV

Cases—Continued: Page

Citizens for Responsibility & Ethics in Washington 

v. FEC, 892 F.3d 434 (D.C. Cir. 2018) .............................. 14

Citizens United v. FEC, 558 U.S. 310 (2010)...2, 3, 10, 18, 19

City of Long Beach v. Long Beach Area Chamber of 

Commerce, 562 U.S. 896 (2010)......................................... 26

Colorado Republican Federal Campaign Committee 

v. FEC, 518 U.S. 604 (1996) ............................................... 18

Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012) ............... 24

FEC v. Akins, 524 U.S. 11 (1998)......................................... 14

FEC v. Beaumont, 539 U.S. 146 (2003)............................... 17

FEC v. Colorado Republican Federal Campaign 

Committee, 533 U.S. 431 (2001)................................... 17, 22

FEC v. Democratic Senatorial Campaign 

Committee, 454 U.S. 27 (1981)........................................... 12

FEC v. National Conservative Political Action

Committee, 470 U.S. 480 (1985)......................................... 18

Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 

(1989).................................................................................... 25

Heartland Plymouth Court MI, LLC v. NLRB, 

838 F.3d 16 (D.C. Cir. 2016)............................................... 15

Heckler v. Chaney, 470 U.S. 821 (1985)............................... 13

Iancu v. Brunetti, 139 S. Ct. 2294 (2019)............................ 23

ICC v. Brotherhood of Locomotive Engineers, 

482 U.S. 270 (1987).............................................................. 13

Johnson v. United States R.R. Retirement Board, 

969 F.2d 1082 (D.C. Cir. 1992), cert. denied, 

507 U.S. 1029 (1993)............................................................ 15

Long Beach Area Chamber of Commerce v. City of 

Long Beach, 603 F.3d 684 (9th Cir.), cert. denied, 

562 U.S. 896 (2010).............................................................. 24

Maricopa County v. Lopez-Valenzuela,

574 U.S. 1006 (2014)............................................................ 22
V 

Cases—Continued: Page

McConnell v. FEC, 540 U.S. 93 (2003) ................................ 21

McCutcheon v. FEC, 572 U.S. 185 (2014) ............... 19, 20, 24

New York Progress & Protection PAC v. Walsh, 

733 F.3d 483 (2d Cir. 2013) ................................................ 24

North Carolina Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008)............................................... 23

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)........ 14

Republican Party of New Mexico v. King, 

741 F.3d 1089 (10th Cir. 2013)............................................. 24

Rostker v. Goldberg, 453 U.S. 57 (1981) .............................. 22

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.), 

cert. denied, 562 U.S. 1003 (2010) ................... 3, 4, 8, 20, 23

Keating v. FEC, 562 U.S. 1003 (2010) ................................... 4

Texans for Free Enterprise v. Texas Ethics Committee, 732 F.3d 535 (5th Cir. 2013)........................................ 24

Thalheimer v. City of San Diego, 645 F.3d 1109 

(9th Cir. 2011)...................................................................... 24

United States v. Alabama, 691 F.3d 1269 

(11th Cir. 2012), cert. denied, 569 U.S. 968 (2013) ........... 12

United States v. Mendoza, 464 U.S. 154 (1984).................. 14

United States v. Nixon, 418 U.S. 683 (1974)....................... 13

Wisconsin Right to Life State Political Action 

Committee v. Barland, 664 F.3d 139 (7th Cir. 2011) ...... 24

Constitution and statutes:

U.S. Const. Amend. I .................................................. passim

Federal Election Campaign Act of 1971, Pub. L. No. 

92-225, 86 Stat. 3 (52 U.S.C. 30101 et seq.) ......................... 2

52 U.S.C. 30101(4)(A)........................................................ 2

52 U.S.C. 30101(8)(A)(i).................................................... 2

52 U.S.C. 30101(9)(A)(i).................................................... 2

52 U.S.C. 30108(a)(1)....................................................... 10
VI

Statutes—Continued: Page

52 U.S.C. 30108(a)(1)-(2)................................................. 10

52 U.S.C. 30108(c)(1)....................................................... 10

52 U.S.C. 30108(c)(1)(B) ................................................... 5

52 U.S.C. 30108(c)(2)................................................. 10, 11

52 U.S.C. 30108(d)........................................................... 10

52 U.S.C. 30109(a)(1)......................................................... 4

52 U.S.C. 30109(a)(2)............................................. 4, 13, 14

52 U.S.C. 30109(a)(4)-(5)................................................... 4

52 U.S.C. 30109(a)(8)......................................................... 5

52 U.S.C. 30109(a)(8)(A) ........................................... 14, 15

52 U.S.C. 30109(a)(8)(C) ................................................... 9

52 U.S.C. 30110................................................................ 26

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

52 U.S.C. 30116(a)(1)(C) ........................................ passim

52 U.S.C. 30116(a)(7)(B) ................................................. 17

52 U.S.C. 30116(a)(7)(B)(i).............................................. 22

52 U.S.C. 30116(f).............................................................. 2

5 U.S.C. 551(10) ..................................................................... 12

28 U.S.C. 2412 .................................................................. 15, 16

Miscellaneous:

FEC Advisory Op. 2010-11, 2010 WL 3184269 

(July 22, 2010) ............................................................ passim

Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 

98 Yale L.J. 679 (1989) ....................................................... 15

 
(1) 

In the Supreme Court of the United States

No. 19-1398

TED LIEU, UNITED STATES CONGRESSMAN, ET AL.,

PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-2a) is 

not published in the Federal Reporter but is available 

at 2019 WL 5394632. The opinion of the district court

(Pet. App. 3a-22a) is reported at 370 F. Supp. 3d 175.

JURISDICTION

The judgment of the court of appeals was entered on 

October 3, 2019. A petition for rehearing was denied on 

January 24, 2020 (Pet. App. 23a-24a). The petition for a 

writ of certiorari was filed on June 18, 2020. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners filed an administrative complaint with 

the Federal Election Commission (FEC or Commission), alleging that certain groups had violated federal 
2 

laws restricting contributions to such groups, and requesting that the FEC initiate an enforcement action 

against those groups. The Commission dismissed the 

administrative complaint. Pet. App. 27a-44a. The district court dismissed petitioners’ suit seeking review of 

the FEC’s decision. Id. at 3a-22a. The court of appeals 

summarily affirmed. Id. at 1a-2a. 

1. The Federal Election Campaign Act of 1971 

(FECA), Pub. L. No. 92-225, 86 Stat. 3 (52 U.S.C. 30101 

et seq.), regulates contributions to certain groups known 

as “political committees.” FECA defines the term “political committee” to include “any committee, club, association, or other group of persons” that receives contributions or makes expenditures aggregating in excess 

of $1000 during a calendar year “for the purpose of influencing any election for Federal office.” 52 U.S.C. 

30101(4)(A), (8)(A)(i), and (9)(A)(i). 

FECA’s contribution limitations further delineate 

three general classes of political committees: committees authorized by a federal candidate, committees established by a political party, and other committees. 

See 52 U.S.C. 30116(a). This case concerns a subset of 

the third type of political committee—i.e., certain committees that are neither authorized by a federal candidate nor established by a political party. FECA makes 

it unlawful for any person to contribute more than $5000 

to such a committee within a calendar year, or for such 

a committee to accept a contribution in excess of that 

limit. See 52 U.S.C. 30116(a)(1)(C) and (f). 

2. In Citizens United v. FEC, 558 U.S. 310 (2010), 

this Court held that a federal statute prohibiting corporations and unions from using general treasury funds 

for independent electioneering violated the First Amendment. Id. at 319. The Court explained that, under its 
3 

precedents, a limit on independent campaign expenditures is subject to strict scrutiny. Id. at 336-337. While

acknowledging that the government has a compelling 

interest in preventing the reality and appearance of

quid pro quo corruption, the Court held that, as a categorical matter, “independent expenditures * * * do not 

give rise to corruption or the appearance of corruption.” 

Id. at 357. The Court noted that, “[b]y definition, an 

independent expenditure is political speech presented 

to the electorate that is not coordinated with a candidate.” Id. at 360. The Court explained that the “absence of prearrangement and coordination” reduces 

“the value of the expenditure to the candidate” and “alleviates the danger that expenditures will be given as a 

quid pro quo for improper commitments from the candidate.” Id. at 357 (citation omitted).

Two months later, in SpeechNow.org v. FEC, 599 

F.3d 686 (en banc) (SpeechNow), cert. denied, 562 U.S. 

1003 (2010), the en banc D.C. Circuit unanimously held

that FECA’s limit on contributions to political committees, as applied to committees that make only independent expenditures, violates the First Amendment. Id. at 

689. The court observed that, under this Court’s precedents, “contribution limits * * * implicate fundamental First Amendment interests,” although “they do not 

encroach upon [those] interests to as great a degree as 

expenditure limits.” Id. at 692. The court observed that 

this Court has “recognized only one interest sufficiently 

important to outweigh the First Amendment interests 

implicated by contributions for political speech: preventing corruption or the appearance of corruption.” 

Ibid. The court concluded that, given Citizens United’s 

holding that independent expenditures do not give rise 
4 

to corruption or the appearance of corruption, “contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of 

corruption.” Id. at 694. 

The government did not file a petition for a writ of 

certiorari in SpeechNow. The challenger in that case 

filed a petition seeking review of a separate holding relating to FECA’s disclosure requirements, but the

Court denied that petition. See Keating v. FEC, 562 

U.S. 1003 (2010) (No. 10-145). 

Approximately four months after the D.C. Circuit’s 

decision, the FEC issued an advisory opinion announcing, in light of Citizens United and SpeechNow, that individuals and groups may “make unlimited contributions to organizations * * * that make only independent 

expenditures,” and that such organizations may “solicit 

and accept unlimited contributions.” FEC Advisory Op. 

2010-11, 2010 WL 3184269, at *2 (July 22, 2010) (AO 

2010-11). Since issuing AO 2010-11, the FEC has not 

enforced the limits in 52 U.S.C. 30116(a)(1)(C) against 

political committees that make only independent expenditures. 

3. This case arises out of an administrative complaint that petitioners filed in 2016. Under FECA, 

“[a]ny person” who believes that a violation of the statute has occurred “may file a complaint” with the Commission. 52 U.S.C. 30109(a)(1). If the FEC “determines 

* * * that it has reason to believe that a person has committed * * * a violation,” it “shall * * * notify the 

person of the alleged violation” and “shall make an investigation of such alleged violation,” potentially culminating in a civil suit in federal district court. 52 U.S.C. 

30109(a)(2); see 52 U.S.C. 30109(a)(4)-(5). FECA grants 
5 

a cause of action to “[a]ny party aggrieved” by the Commission’s dismissal of an administrative complaint, 

and it empowers the reviewing court to determine 

whether the FEC’s dismissal decision based on its 

interpretation of the statute was “contrary to law.” 

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

Petitioners’ administrative complaint alleged that 

ten independent-expenditure-only political committees 

had knowingly accepted contributions in excess of the 

$5000-per-year limit imposed by 52 U.S.C. 30116(a)(1)(C). 

Pet. App. 29a. The complaint asked the FEC to enforce 

the contribution limit against those committees. Ibid. 

The FEC found no reason to believe that a FECA 

violation had occurred, and it accordingly dismissed the 

complaint. Pet. App. 27a-44a. The FEC observed that 

the D.C. Circuit’s decision in SpeechNow “plainly permit[s] the contributions described in the Complaint.” 

Id. at 39a. The Commission also observed that, under 

FECA and its implementing regulations, “an advisory 

opinion may be relied upon * * * by any person involved in any specific transaction or activity ‘which is 

indistinguishable in all its material aspects from the 

transaction or activity with respect to which such advisory opinion is rendered.’” Id. at 40a (quoting 52 U.S.C. 

30108(c)(1)(B)).

The FEC explained that it had issued an advisory 

opinion (AO 2010-11) acquiescing in the holding of 

SpeechNow. Pet. App. 40a. The agency further explained that, because the committees identified in petitioners’ administrative complaint had acted in accordance with the Commission’s guidance in AO 2010-11, 

they were entitled to rely on that opinion and could not 

be subjected to any sanction for conduct that the advisory opinion allowed. Id. at 40a-42a. The Commission 
6 

observed that FECA “does not permit the Commission 

to investigate an allegation before making a finding that 

there is reason to believe that a respondent has violated 

or is about to violate the law.” Id. at 42a. The FEC 

concluded that the committees’ adherence to the agency 

guidance in AO 2010-11 precluded any “finding of reason to believe that [the committees] violated the law.” 

Ibid. 

The FEC also stated that it chose “not to accept [petitioners’] invitation not to acquiesce [in] the binding 

SpeechNow decision.” Pet. App. 42a. The Commission

explained that, in the years since SpeechNow was decided, several additional courts of appeals have considered the constitutionality of state and local laws capping 

contributions to independent-expenditure-only groups, 

and that all of those courts have held that such laws violate the Constitution. Id. at 43a. In light of those decisions, the FEC explained that there was “simply no 

basis to conclude that the law remains unsettled in a 

way that would begin to justify Commission nonacquiescence, as [petitioners] contend, even if the Commission had not already adopted the holding of SpeechNow

in AO 2010-11.” Ibid.

4. Petitioners filed suit in the United States District Court for the District of Columbia, seeking judicial 

review of the FEC’s dismissal of their administrative 

complaint. See Pet. App. 4a. The court granted the 

Commission’s motion to dismiss petitioners’ suit, concluding that the FEC’s decision to dismiss petitioners’ 

administrative complaint was not “contrary to law.” Id.

at 17a.

The district court first determined that it owed no 

deference to the FEC’s decision to dismiss the complaint. Pet. App. 14a-17a. The court believed that this 
7 

case was “not * * * typical” because the FEC’s decision 

to dismiss the complaint rested “on its interpretation of 

the D.C. Circuit’s opinion in SpeechNow.” Id. at 16a. 

The court stated that “courts need not, and should not, 

defer to agency interpretations of opinions written by 

courts.” Ibid. (citation omitted). 

Reviewing the FEC’s dismissal decision without deference, the district court described the D.C. Circuit’s

holding in SpeechNow that FECA’s cap on contributions to political committees cannot constitutionally be 

applied to committees that make only independent expenditures. Pet. App. 17a-21a. The court concluded 

that, because no subsequent decision had overruled 

SpeechNow, that decision remained binding and justified the FEC’s dismissal of the complaint. Id. at 21a. 

The court then stated that, “[b]ecause the FEC correctly applied SpeechNow in dismissing the administrative complaint, the Court need not decide whether the 

Commission erroneously acquiesced [in] SpeechNow or 

whether the FEC’[s] reliance on its advisory opinion 

was contrary to law.” Id. at 21a n.5. 

5. The full D.C. Circuit denied petitioners’ request 

for an initial en banc hearing of the appeal. Pet. App. 

25a-26a. A panel of the court of appeals summarily affirmed the district court’s judgment. Id. at 1a-2a. The 

court explained that the FEC’s decision to dismiss petitioners’ administrative complaint “was not contrary to 

law as the challenged contributions to independentexpenditure-only political committees cannot constitutionally be prohibited under [SpeechNow].” Ibid. The 

full court then denied petitioners’ request for rehearing 

en banc. Id. at 23a-24a.
8 

ARGUMENT

Petitioners challenge (Pet. 9-29) the D.C. Circuit’s

holding in SpeechNow.org v. FEC, 599 F.3d 686 (en 

banc), cert. denied, 562 U.S. 1003 (2010), that 52 U.S.C.

30116(a)(1)(C) cannot constitutionally be applied to contributions to political committees that make only independent expenditures. That challenge does not warrant 

this Court’s review.

The FEC’s dismissal of petitioners’ administrative 

complaint, which asked the agency to initiate enforcement proceedings against political committees that had 

allegedly received excessive contributions, was not “contrary to law.” Because the political committees identified in petitioners’ administrative complaint had relied 

in good faith on AO 2010-11, FECA precluded the Commission from imposing any sanction on them. And even 

setting aside the binding effect of the FEC’s advisory 

opinion, the Commission here lawfully acquiesced in 

SpeechNow and in the numerous other appellate decisions that have reached the same conclusion. In any 

event, as the D.C. Circuit in SpeechNow correctly held, 

the application of Section 30116(a)(1)(C) to contributions to groups that make only independent expenditures violates the First Amendment.

Although this Court ordinarily applies a strong presumption in favor of reviewing decisions that have held 

Acts of Congress unconstitutional, that presumption is 

overcome here. All the courts of appeals that have considered the question have agreed that federal, state, or 

local laws that restrict contributions to political groups 

cannot constitutionally be applied to groups that make 

only independent expenditures. And because this suit 

involves a challenge to the FEC’s decision not to initiate 
9 

enforcement proceedings, this case would be a poor vehicle for considering the constitutional question. The 

petition for a writ of certiorari should be denied. 

A. Regardless Of Whether SpeechNow Was Correctly 

Decided, The FEC Acted Lawfully In Dismissing 

Petitioners’ Administrative Complaint

FECA authorizes a court to review the FEC’s dismissal of an administrative complaint to determine 

whether that agency decision was based on an interpretation of FECA that is “contrary to law.” 52 U.S.C. 

30109(a)(8)(C). The FEC’s dismissal of petitioners’ administrative complaint was not “contrary to law.”

In AO 2010-11, the FEC acquiesced in SpeechNow’s 

holding that Section 30116(a)(1)(C) cannot constitutionally be applied to contributions to political committees 

that make only independent expenditures. That advisory opinion has remained in effect throughout the past 

decade, and it precluded the agency from undertaking 

an enforcement action against committees that had adhered to the Commission’s guidance. And even setting 

aside the binding effect of AO 2010-11, the Commission 

here lawfully acquiesced in SpeechNow and in the subsequent appellate decisions that have reached the same 

conclusion. Either of those grounds alone forecloses petitioners’ challenge to the Commission’s dismissal of 

their administrative complaint, regardless of whether 

SpeechNow was correctly decided. 

1. The FEC’s prior advisory opinion acquiescing in 

SpeechNow justified, and indeed required, the dismissal 

of petitioners’ administrative complaint. FECA establishes a detailed procedure for the FEC to issue advisory opinions. Any person may request an advisory 

opinion from the Commission concerning the applica-
10

tion of FECA or of FEC regulations to “a specific transaction or activity by the person.” 52 U.S.C. 30108(a)(1). 

The Commission must make the request public and “accept written comments submitted by any interested 

party.” 52 U.S.C. 30108(d). FECA also requires the 

agency to “render a written advisory opinion” within a 

specified period of time after receiving the request. 52 

U.S.C. 30108(a)(1)-(2). 

FECA protects persons who rely in good faith on the 

FEC’s advisory opinions. “Any advisory opinion rendered by the Commission * * * may be relied upon 

by—(A) any person involved in the specific transaction 

or activity with respect to which such advisory opinion 

is rendered; and (B) any person involved in any specific 

transaction or activity which is indistinguishable in all 

its material aspects from the transaction or activity with 

respect to which such advisory opinion is rendered.” 52 

U.S.C. 30108(c)(1). The statute further provides that, 

“[n]otwithstanding any other provisions of law, any person who relies upon any provision or finding of an advisory opinion * * * and who acts in good faith in accordance with the provisions and findings of such advisory 

opinion shall not, as a result of any such act, be subject 

to any sanction provided by [FECA].” 52 U.S.C. 

30108(c)(2). The advisory-opinion process is an important part of the statutory scheme, since it helps to 

clarify the line between lawful and unlawful activities, 

and thus to alleviate the potential chilling effect on lawful conduct that FECA might otherwise cause.

AO 2010-11 states that, in light of Citizens United v. 

FEC, 558 U.S. 310 (2010), and SpeechNow, individuals 

and groups may “make unlimited contributions to organizations * * * that make only independent expenditures,” and that such organizations may in turn “solicit 
11

and accept unlimited contributions.” AO 2010-11, 2010 

WL 3184269, at *2 (July 22, 2010). In dismissing petitioners’ administrative complaint in this case, the FEC 

explained that the committees against which petitioners 

seek enforcement action have engaged in transactions 

or activities that are “indistinguishable in all [their] material aspects from the transaction or activity with respect to which [the] advisory opinion [wa]s rendered.” 

Pet. App. 40a (citation omitted). The Commission further explained that those committees had acted “in good 

faith reliance” on AO 2010-11. Ibid. The FEC therefore 

correctly concluded that “[t]he contributions described 

in the Complaint * * * clearly fall within the Act’s protection for persons entitled to rely on an advisory opinion.” Ibid. That determination independently justified 

the FEC’s dismissal of petitioners’ administrative complaint, regardless of whether SpeechNow was correctly 

decided. 

While conceding that the FEC may not retrospectively punish committees for past contributions accepted in good-faith reliance on AO 2010-11, petitioners 

have argued that the agency may still provide prospective relief from future contributions through a declaration that such contributions violate the law. See D. Ct. 

Doc. 42, at 11-15 (June 13, 2018). As the Commission

observed, however, FECA prohibits the imposition of 

any “sanction” on a committee that has relied in good 

faith on an advisory opinion. Pet. App. 41a n.45 (quoting 

52 U.S.C. 30108(c)(2)). In dismissing petitioners’ administrative complaint, the FEC construed the term 

“sanction” to include the declaratory relief that petitioners have requested. Ibid. 

Petitioners have challenged that interpretation of 

the statutory term “sanction.” D. Ct. Doc. 42, at 13-15. 
12

This Court has held, however, that “in determining 

whether the Commission’s action was ‘contrary to law,’ 

the task for [a court] [i]s not to interpret the statute as 

it th[inks] best but rather the narrower inquiry into 

whether the Commission’s construction [i]s ‘sufficiently 

reasonable’ to be accepted by a reviewing court.” FEC

v. Democratic Senatorial Campaign Committee, 454 

U.S. 27, 39 (1981) (DSCC) (citation omitted). That standard is especially apt where (as here) the challenged 

agency action is a decision not to initiate a government 

enforcement proceeding—a decision that in most contexts lies within the government’s unreviewable discretion. See p. 13, infra. 

Here, the FEC observed that courts have interpreted the word “sanction” to cover “nonmonetary limits on future activities.” Pet. App. 41a n.45 (citing Alabama v. North Carolina, 560 U.S. 330, 340-341 (2010); 

United States v. Alabama, 691 F.3d 1269, 1289 (11th 

Cir. 2012), cert. denied, 569 U.S. 968 (2013)). The Commission further noted that “[s]uch a construction would 

also be consistent with * * * the Administrative Procedure Act,” which defines “‘sanction’” to include a “‘prohibition, requirement, limitation, or other condition affecting the freedom of a person.’” Ibid. (quoting 5 

U.S.C. 551(10)). Finally, the FEC explained that a contrary reading of FECA would expose individuals and 

groups who rely on advisory opinions to FEC investigations and administrative proceedings, undermining “the 

purpose of the advisory opinion process.” Ibid. That 

interpretation of the word “sanction” is at least “‘sufficiently reasonable’ to be accepted by a reviewing court.” 

DSCC, 454 U.S. at 39 (citation omitted). 
13

2. In dismissing petitioners’ administrative complaint, the FEC also stated that, “even if the Commission had not already adopted the holding of SpeechNow

in AO 2010-11,” the agency would find “no basis to conclude that the law remains unsettled in a way that would 

begin to justify Commission nonacquiesence.” Pet. 

App. 43a. The agency’s decision to acquiesce in SpeechNow and in the many other appellate decisions that 

have reached the same result was not “contrary to law,” 

whether or not SpeechNow was correctly decided. 

Even when Executive Branch officials believe that a 

violation of law has occurred, they generally retain authority to decide “not to prosecute or enforce, whether 

through civil or criminal process.” Heckler v. Chaney, 

470 U.S. 821, 831 (1985); see, e.g., United States v. 

Nixon, 418 U.S. 683, 693 (1974). In most statutory contexts, “an agency’s decision not to prosecute or enforce, 

whether through civil or criminal process, is a decision 

generally committed to an agency’s absolute discretion,” Chaney, 470 U.S. at 831, and is presumptively not 

subject to judicial review, id. at 832, even when it rests 

on the agency’s belief “that the law will not sustain” a 

prosecution or enforcement action, ICC v. Brotherhood 

of Locomotive Engineers, 482 U.S. 270, 283 (1987).

To be sure, FECA constrains the Commission’s enforcement discretion in significant respects. FECA 

provides that, if the FEC “determines * * * that it has 

reason to believe that a person has committed * * * a 

violation,” the FEC “shall make an investigation of such 

alleged violation.” 52 U.S.C. 30109(a)(2) (emphasis 

added). And while an agency’s decision not to undertake enforcement action ordinarily is not subject to judicial review, FECA authorizes “[a]ny party aggrieved 

by an order of the Commission dismissing a complaint 
14

filed by such party” to “file a petition with the United 

States District Court for the District of Columbia.” 52 

U.S.C. 30109(a)(8)(A); see FEC v. Akins, 524 U.S. 11, 

25-26 (1998) (holding that the FEC’s decision not to 

commence enforcement proceedings was subject to judicial review where that decision rested on an erroneous 

interpretation of FECA); Citizens for Responsibility & 

Ethics in Washington v. FEC, 892 F.3d 434, 441 & n.11 

(D.C. Cir. 2018) (distinguishing Akins and holding that 

the FEC’s decision not to commence enforcement proceedings was not subject to judicial review where that 

decision rested on an exercise of prosecutorial discretion and not on an interpretation of FECA). Even so, 

FECA makes plain that the primary responsibility for 

judging whether there is reason to believe that a violation has occurred belongs to the FEC, not to the courts. 

The statute requires the FEC to conduct an investigation only when “the Commission * * * determines, by 

an affirmative vote of 4 of its members, that it has reason to believe that a person has committed * * * a violation.” 52 U.S.C. 30109(a)(2) (emphases added). Nothing in FECA suggests that the Commission is disabled 

from considering (and potentially acquiescing in) applicable case law in making its own determination whether 

there is “reason to believe that” a violation has occurred.

The law governing agency acquiescence in judicial 

decisions reinforces that conclusion. As a general matter, a lower federal court’s decision binds the Executive 

Branch in the specific case in which the judgment was 

rendered, see Plaut v. Spendthrift Farm, Inc., 514 U.S. 

211, 218-219 (1995), but does not necessarily bind the 

Executive Branch in other cases, see United States v. 
15

Mendoza, 464 U.S. 154, 158-163 (1984). Federal administrative agencies therefore may, in appropriate circumstances, decline to acquiesce in a precedent set by a 

lower federal court. See, e.g., Johnson v. United States

R.R. Retirement Board, 969 F.2d 1082, 1093 (D.C. Cir. 

1992), cert. denied, 507 U.S. 1029 (1993); see generally

Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 

679 (1989). Agency officials may also choose, however, 

to conform their practices to lower-court case law, 

whether or not those officials subjectively believe that 

the case law is correct. FECA provides for review of 

the FEC’s dismissal decisions in the United States District Court for the District of Columbia, see 52 U.S.C. 

30109(a)(8)(A), and SpeechNow is “binding” there, Pet. 

App. 39a. The FEC also noted that “seven federal 

courts of appeals have addressed the constitutionality 

of limiting contributions to [groups that make only independent expenditures]; each has ruled that such limits are unconstitutional.” Id. at 43a; see pp. 23-24, infra. 

Given this established body of precedent, the FEC 

found “no basis to conclude that the law remains unsettled in a way that would begin to justify Commission 

nonacquiescence.” Pet. App. 43a. The FEC also explained that “[a]ttempting to enforce contribution limits 

against independent expenditure groups might expose 

the Commission to awards of legal fees.” Id. at 43a n.51; 

see 28 U.S.C. 2412 (authorizing fee awards against the 

government where the government’s legal position is 

adopted in “bad faith” or is not “substantially justified”); Heartland Plymouth Court MI, LLC v. NLRB, 

838 F.3d 16, 18 (D.C. Cir. 2016) (awarding fees under 28 

U.S.C. 2412 on the ground that an agency had unjustifiably failed to acquiesce in circuit precedent); Carey v. 
16

FEC, 864 F. Supp. 2d 57, 61 (D.D.C. 2012) (awarding 

fees under 28 U.S.C. 2412 on the ground that the FEC 

had failed to follow SpeechNow). The FEC’s decision to 

dismiss the administrative complaint in light of those 

circumstances was not “contrary to law” even setting 

aside the binding effect of AO 2010-11. 

Petitioners argued below that “the FEC’s legal ruling here merely reflected its interpretation of constitutional law and was not an exercise of prosecutorial or 

enforcement discretion.” D. Ct. Doc. 42, at 8. But the 

FEC has not made an independent “legal ruling” that 

Section 30116(a)(1)(C) violates the First Amendment. 

Rather, the FEC recognized that the D.C. Circuit in 

SpeechNow had held the statute unconstitutional as applied; noted that other courts had reached similar conclusions; observed that disregarding those precedents 

could lead to the award of legal fees against the agency;

and concluded that acquiescence in those precedents 

would be appropriate even if AO 2010-11 did not independently preclude the initiation of enforcement proceedings against the ten political committees that were 

the subject of petitioners’ administrative complaint. 

See Pet. App. 42a-43a. Dismissal of the administrative 

complaint on that basis reflected a permissible exercise 

of enforcement discretion and was not “contrary to 

law.”

B. SpeechNow Was Correctly Decided

As applied to contributions to political committees 

that make only independent expenditures, Section

30116(a)(1)(C) violates the First Amendment. Such an 

application of Section 30116(a)(1)(C) restricts speech 

protected by the First Amendment, but is not properly 

tailored to serve the government’s interest in prevent-
17

ing actual or apparent quid pro quo corruption. SpeechNow therefore was correctly decided; the FEC was 

right to dismiss petitioners’ complaint; and the court of 

appeals and district court were right to reject petitioners’ challenge to that dismissal decision. 

1. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this Court held that the First Amendment protects the right to spend money on, and to make contributions to, electoral campaigns. Id. at 14-23. The 

Court also made clear, however, that those rights are 

not absolute, and that Congress may regulate campaign 

financing in order to prevent the reality or appearance 

of quid pro quo corruption. Id. at 26-27.

Since Buckley, this Court has held that Congress 

may limit direct contributions to candidates and expenditures coordinated with candidates (which FECA 

treats as contributions, see 52 U.S.C. 30116(a)(7)(B)). 

In particular, the Court has held that Congress may cap 

individuals’ contributions to candidates, see Buckley, 

424 U.S. at 24-38; prohibit corporations from making 

contributions to candidates, see FEC v. Beaumont, 539 

U.S. 146, 149 (2003); and limit expenditures that are coordinated with candidates, see FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 

(2001) (Colorado II). The Court has explained that direct contributions and coordinated expenditures raise 

the risk that candidates will accept or appear to accept

such payments in exchange for political favors. See 

Buckley, 424 U.S. at 46-47. 

At the same time, the Court has repeatedly struck 

down restrictions on independent expenditures—that 

is, expenditures that are not coordinated with candidate 

campaigns. The Court has invalidated caps on independent expenditures by individuals or groups, see 
18

Buckley, 424 U.S. at 39-59; caps on independent expenditures by political committees, see FEC v. National Conservative Political Action Committee, 470 

U.S. 480, 497 (1985) (NCPAC); caps on independent expenditures by political parties, see Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 

604, 618-619 (1996) (lead opinion of Breyer, J.); and prohibitions on independent expenditures by corporations, 

see Citizens United, 558 U.S. at 357. The Court has explained that independent expenditures have a “substantially diminished potential for abuse” because the “absence of prearrangement and coordination * * * alleviates the danger that expenditures will be given as a 

quid pro quo for improper commitments from the candidate.” Citizens United, 558 U.S. at 357 (quoting

Buckley, 424 U.S. at 47). The Court has further explained that “[t]he candidate-funding circuit is broken” 

by an independent expenditure, and that the “separation” between a candidate and such an expenditure ordinarily “negates the possibility” that the expenditure 

is part of a quid pro quo. Arizona Free Enterprise 

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 751 

(2011). The Court’s decisions thus have recognized a 

“fundamental constitutional difference” between, on the 

one hand, direct contributions and coordinated expenditures, and, on the other hand, “money spent to advertise one’s views independently of the candidate’s campaign.” NCPAC, 470 U.S. at 497.

The D.C. Circuit’s decision in SpeechNow follows 

logically from those principles. So long as it is not coordinated with any candidate, a contribution to a group 

that makes only independent expenditures raises no 

greater risk of quid pro quo corruption than do the 

group’s independent expenditures themselves. In that 
19

circumstance, the “absence of prearrangement and coordination” between the group and the candidate necessarily “alleviates the danger that expenditures will be 

given as a quid pro quo for improper commitments from 

the candidate.” Citizens United, 558 U.S. at 357 (quoting Buckley, 424 U.S. at 47). 

This Court’s decisions in California Medical Ass’n v. 

FEC, 453 U.S. 182 (1981) (CalMed), and McCutcheon v. 

FEC, 572 U.S. 185 (2014), reinforce that conclusion. In 

CalMed, this Court upheld FECA provisions that limited the amounts that could be contributed to certain 

political committees. See 453 U.S. at 193-199 (plurality 

opinion); id. at 201-204 (Blackmun, J., concurring in 

part and concurring in the judgment). Justice Blackmun, whose vote was necessary to the judgment, emphasized that the committees at issue there could make 

contributions to political candidates. See id. at 203 

(Blackmun, J., concurring in part and concurring in the 

judgment). He explained that, because the committees 

were “essentially conduits for contributions to candidates,” they posed a “threat of actual or potential corruption.” Ibid. He further explained, however, that “a 

different result would follow” if—as in SpeechNow and 

in this case—the limit “were applied to contributions to 

a political committee established for the purpose of

making independent expenditures.” Ibid. “[C]ontributions to a committee that makes only independent expenditures,” he reasoned, “pose no such threat” of actual or apparent quid pro quo corruption. Ibid. 

Chief Justice Roberts’s controlling opinion in 

McCutcheon drew the same distinction as Justice 

Blackmun’s opinion in CalMed. See McCutcheon, 572 

U.S. at 193 n.2 (plurality opinion). The McCutcheon
20

plurality explained that FECA’s contribution limits apply to committees whose activities include “contributing 

to candidates.” Ibid. The opinion then stated that those 

contribution limits do “not” apply to any group that 

“makes only independent expenditures and cannot contribute to candidates.” Ibid. The opinion cited SpeechNow for that proposition, suggesting that the Justices 

who joined the opinion regarded SpeechNow as correct. 

Ibid. 

2. Petitioners’ contrary arguments lack merit. Petitioners observe (Pet. 13-19) that this Court has applied 

more deferential First Amendment scrutiny to limits on 

campaign contributions than to limits on campaign expenditures. That observation is accurate, but it is beside the point here. The Court has made plain that even 

a limit on contributions imposes “significant First Amendment costs for individual citizens,” and it “has identified 

only one legitimate governmental interest”—“preventing

corruption or the appearance of corruption”—that can 

justify those costs. McCutcheon, 572 U.S. at 206-207

(plurality opinion); see Buckley, 424 U.S. at 23-38. And 

as explained above, the Court’s precedents establish 

that “the government has no anti-corruption interest in 

limiting contributions to an independent expenditure 

group.” SpeechNow, 599 F.3d at 695. It is therefore 

unnecessary to parse the differences between the 

standard applicable to contribution limits and the 

standard applicable to expenditure limits; even under 

the more deferential standard, the absence of a legitimate anti-corruption interest means that Section 

30116(a)(1)(C) cannot constitutionally be applied under 

the circumstances here. Ibid.
21

Petitioners also invoke (Pet. 17) this Court’s decision 

in McConnell v. FEC, 540 U.S. 93 (2003), upholding limits on contributions to political parties. Political parties, 

however, differ from independent-expenditure-only

groups in material ways. The Court has held that the 

“special relationship,” “unity of interest,” “close affiliation,” and “close ties” between political parties and candidates create a real risk that a donor could corrupt a 

candidate by contributing to the candidate’s party. Id. 

at 145, 152. In contrast, the Court has emphasized in 

subsequent cases that non-party committees that make 

independent expenditures are “separat[e]” from candidates. Arizona Free Enterprise, 564 U.S. at 751. That 

separation “negates the possibility that independent expenditures” (and therefore contributions to non-party 

groups that make independent expenditures) “will result in the sort of quid pro quo corruption with which 

[the Court’s] case law is concerned.” Ibid. 

Petitioners contend (Pet. 24) that, in practice, 

“[m]any” political committees operate as “alter egos of 

candidates’ campaigns,” and that contributions to such 

committees raise “the same prospects” of corruption as 

contributions to candidates and political parties. If a 

particular political committee makes expenditures in 

coordination with a federal candidate’s campaign, the 

SpeechNow holding will be inapplicable by its terms. 

But petitioners do not “allege that any of the committees [named in their complaint] coordinated their spending with a candidate.” Pet. App. 40a.

As explained above, this Court’s campaign-finance 

jurisprudence has drawn a sharp distinction between 

expenditures that are coordinated with a candidate for 

federal office, which are treated for both statutory and 
22

constitutional purposes as contributions to the candidate, and independent expenditures to advocate a particular electoral result. The concept of a committee that 

does not coordinate with any candidate, yet acts as a 

candidate’s “alter ego,” has no grounding in this Court’s 

precedents. And petitioners identify no workable constitutional standard that could be used to identify the 

political committees that are properly regarded as a 

candidate’s alter ego even though they make only independent expenditures. 

Petitioners raise (Pet. 20-23) the possibility that a

candidate could enter into a quid pro quo in which a contribution to an independent-expenditure-only political 

committee serves as the illicit quid. A separate FECA 

provision, however, already guards against that possibility. As discussed, FECA provides that any payment 

that is coordinated with a candidate “shall be considered to be a contribution to such candidate.” 52 U.S.C. 

30116(a)(7)(B)(i); see, e.g., Colorado II, 533 U.S. at 443. 

Under that provision, a contribution that is given to an 

independent-expenditure-only group pursuant to an 

agreement with the candidate would be treated as a contribution to the candidate (not simply as a contribution 

to the group), and it would accordingly be subject to the 

caps on direct contributions to candidates.

C. This Court Should Deny The Petition 

This Court has described judging the constitutionality of a federal statute as “the gravest and most delicate 

duty” of the federal judiciary. Rostker v. Goldberg, 453 

U.S. 57, 64 (1981) (citation omitted). The Court has 

therefore applied “a strong presumption in favor of 

granting writs of certiorari to review decisions of lower 

courts holding federal statutes unconstitutional,” even 

in the absence of a circuit conflict. Maricopa County v. 
23

Lopez-Valenzuela, 574 U.S. 1006, 1007 (2014) (Thomas, 

J., respecting the denial of the application for a stay); 

see, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019). 

That strong presumption is not absolute, however, and 

the Court has occasionally denied review even when a 

court of appeals has held an Act of Congress unconstitutional. See, e.g., Binderup v. Attorney General 

United States of America, 836 F.3d 336 (3d Cir. 2016)

(en banc), cert. denied, 137 S. Ct. 2323 (2017); Beer v. 

United States, 696 F.3d 1174 (Fed. Cir. 2012), cert. denied, 569 U.S. 947 (2013); American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d. Cir. 2008), cert. denied, 

555 U.S. 1137 (2009). In the unusual circumstances of this 

case, the question whether Section 30116(a)(1)(C) can constitutionally be applied to independent-expenditure-only 

groups does not warrant this Court’s review.

1. The courts of appeals that have considered the issue have uniformly concluded that the First Amendment precludes caps on contributions to groups that 

make only independent expenditures. Before Citizens 

United, one court of appeals had already held that a 

state law imposing such a limit violated the First 

Amendment. See North Carolina Right to Life, Inc. v. 

Leake, 525 F.3d 274, 293-295 (4th Cir. 2008). Two 

months after Citizens United was decided, the D.C. Circuit sitting en banc unanimously held in SpeechNow

that the FECA limit on contributions to political committees is unconstitutional as applied to independentexpenditure-only committees. See 599 F.3d at 689. 

Since the decisions in Citizens United and SpeechNow, five more courts of appeals have likewise held that 

state and local campaign-finance laws imposing such 

limits violated the First Amendment; in each case, the 

decision was unanimous. See New York Progress & 
24

Protection PAC v. Walsh, 733 F.3d 483, 486-488 (2d Cir. 

2013); Texans for Free Enterprise v. Texas Ethics Committee, 732 F.3d 535, 537-538 (5th Cir. 2013); Wisconsin 

Right to Life State Political Action Committee v. Barland, 664 F.3d 139, 151-155 (7th Cir. 2011); Farris v. 

Seabrook, 677 F.3d 858, 864-868 (9th Cir. 2012); Thalheimer v. City of San Diego, 645 F.3d 1109, 1117-1121 

(9th Cir. 2011); Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696-699 (9th 

Cir.), cert. denied, 562 U.S. 896 (2010); Republican 

Party of New Mexico v. King, 741 F.3d 1089, 1092-1103 

(10th Cir. 2013). All in all, 30 federal appellate judges 

have considered the issue since Citizens United, and all 

30 have reached the same conclusion: Limits on contributions to political committees cannot constitutionally 

be applied to groups that make only independent expenditures. “Few contested legal questions are answered so consistently by so many courts and judges.” 

New York Progress, 733 F.3d at 488. That consensus 

renders this Court’s intervention unnecessary, particularly since the controlling opinion in McCutcheon appeared to embrace SpeechNow. See McCutcheon, 572

U.S. at 193 n.2; pp. 19-20, supra. 

2. Even if the constitutional question warranted this 

Court’s review, this case would be an unsuitable vehicle 

in which to resolve it. As explained above, the FEC’s 

decision to dismiss petitioners’ administrative complaint was lawful whether or not SpeechNow was correctly decided. That is so both because AO 2010-11 precluded any enforcement action against the committees 

named in petitioners’ administrative complaint, and because the Commission lawfully acquiesced in the uniform appellate case law even setting aside the binding 

effect of the advisory opinion. See pp. 13-16, supra. 
25

To be sure, the courts below (which were bound by 

SpeechNow’s First Amendment holding as a matter of 

circuit precedent) rested their judgments solely on the 

constitutional ruling in SpeechNow. Those courts did 

not decide “whether the Commission erroneously acquiesced [in] SpeechNow or whether the FEC’[s] reliance 

on its advisory opinion was contrary to law.” Pet. App. 

21a n.8; see id. at 1a-2a. Under this Court’s precedents, 

however, a respondent is entitled to “defend its judgment on any ground properly raised below whether or 

not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.” 

Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 38-39 

(1989) (citation omitted). If this Court grants review, 

and the FEC then argues on the merits that the dismissal decision properly protects parties that had relied on 

AO 2010-11 and reflects a lawful exercise of enforcement discretion, principles of constitutional avoidance 

will require the Court to address those arguments before turning to the constitutional question raised by petitioners. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) 

(“The Court will not pass upon a constitutional question 

although properly presented by the record, if there is 

also present some other ground upon which the case 

may be disposed of.”). 

3. Denying this petition would not wholly insulate 

the First Amendment question from this Court’s review. Substantially the same First Amendment issue 

can arise—and has arisen—in the context of state and 

local limitations on contributions to groups that make 

only independent expenditures. See pp. 23-24, supra. 

As petitioners acknowledge (Pet. 13 n.3), the petition 

for a writ of certiorari in City of Long Beach v. Long 
26

Beach Area Chamber of Commerce, 562 U.S. 896 (2010) 

(No. 10-155), raised precisely that question. The Court 

denied that petition, but future petitions presenting the 

same question could still arise. Review might also be 

available under 52 U.S.C. 30110, which authorizes a national political party or voter to sue to determine “the 

constitutionality of any provision” of FECA, and which 

requires the district court in such an action to certify 

non-frivolous constitutional questions to the court of appeals, which must hear the matter sitting en banc. See 

ibid.; CalMed, 453 U.S. at 193 n.14. 

A case that comes to this Court through either of 

those routes would squarely present the question that 

petitioners ask the Court to resolve, without any threshold complications relating to the FEC’s advisory opinions or its enforcement discretion. Such a case, unlike 

this one, also would avoid imposing burdens on groups 

that have relied in good faith on clear judicial and administrative guidance. 
27

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

JACOB S. SILER

Acting Assistant General

Counsel

Federal Election Commission

JEFFREY B. WALL

Acting Solicitor General

SEPTEMBER 2020