No. 19-1398

IN THE

REPRESENTATIVE TED LIEU, ET AL.,

Petitioners,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS 

Laurence H. Tribe

Hauser Hall 420

HARVARD LAW SCHOOL*

Cambridge, MA 02138

Albert W. Alschuler

220 Tuttle Road

Cumberland, ME 04021

Ronald A. Fein

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre Street, #405

Newton, MA 02459

Jeffrey L. Fisher

 Counsel of Record

Pamela S. Karlan

Brian H. Fletcher

STANFORD LAW SCHOOL

 SUPREME COURT

 LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

(additional counsel listed 

on inside cover)
Richard W. Painter

Mondale Hall, Office 318

U. OF MINN. LAW SCHOOL*

229 19th Avenue South 

Minneapolis, MN 55455

* University affiliation 

noted for identification 

purposes only.

Malcolm Seymour

Andrew Goodman

FOSTER GARVEY P.C.

100 Wall Street, 20th Fl.

New York, NY 10005

Brad Deutsch

Benjamin Lambiotte

FOSTER GARVEY P.C.

Flour Mill Building

Suite 200

1000 Potomac St., NW

Washington, DC 20007
TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF FOR PETITIONERS..........................1

I. This case is an excellent vehicle for 

resolving the constitutionality of FECA’s 

limit on contributions to Super PACs ..................2

II. The court of appeals has incorrectly 

invalidated a federal statute ................................5

III. Other courts’ decisions invalidating

comparable state and local contribution limits 

make certiorari all the more warranted ............10

CONCLUSION...........................................................12

 
ii

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Alabama v. North Carolina,

560 U.S. 330 (2010)................................................3

Allen v. Cooper,

140 S. Ct. 994 (2020) ...........................................11

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011)..............................................11

Buckley v. Valeo,

424 U.S. 1 (1976)..........................................1, 6, 10

Cal. Medical Ass’n v. FEC,

453 U.S. 182 (1981)................................................6

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

467 U.S. 837 (1984)................................................4

Citizens for Resp, & Ethics in Wash. v. FEC,

209 F. Supp. 3d 77 (D.D.C. 2016)......................4, 5

Citizens United v. FEC,

558 U.S. 310 (2010)..........................................1, 11

Coleman v. Court of Appeals of Md.,

566 U.S. 30 (2012)................................................11

Colo. Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996)................................................8

FEC v. Beaumont,

539 U.S. 146 (2003)................................................5

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) .........................................2, 3

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803).................................4

McConnell v. FEC,

540 U.S. 93 (2003)..............................................7, 8
iii

McCutcheon v. FEC,

572 U.S. 185 (2014)......................................6, 7, 10

McWilliams v. Dunn,

137 S. Ct. 1790 (2017)............................................3

Republican Party of La. v. FEC,

137 S. Ct. 2178 (2017)............................................8

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020)............................................2

SpeechNow.org v. FEC,

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

Steffel v. Thompson,

415 U.S. 452 (1974)................................................3

Ulstein Mar., Ltd. v. United States,

833 F.2d 1052 (1st Cir. 1987)................................4

Constitutional Provisions 

U.S. Const., amend. I ......................................... passim

Statutes and Regulations 

Federal Election Campaign Act, 52 U.S.C.

§ 30101 et seq..................................................... passim

52 U.S.C. § 30108(c)(2) ..........................................3

52 U.S.C. § 30109(a)(8)(C).....................................4

11 C.F.R. § 109.21 ........................................................9

Other Authorities 

Black’s Law Dictionary (9th ed. 2009) ........................3

Faturechi, Robert & Kirchner, Lauren, Super 

PAC to Billionaire: We Need More Money 

to Save a Republican Senate, ProPublica 

(Oct. 14, 2016)........................................................9
iv

Federal Election Commission, Advisory 

Opinion 2011-12, 2011 WL 2662413 

(June 30, 2011) ......................................................9
REPLY BRIEF FOR PETITIONERS 

The Government recognizes the “strong 

presumption in favor of granting writs of certiorari to 

review decisions of lower courts holding federal 

statutes unconstitutional.” BIO 22 (citation omitted). 

It also acknowledges that both courts below “rested 

their judgments solely on the constitutional” ground 

that FECA’s limit on contributions to political 

committees, as applied to Super PACs, violates the 

First Amendment. Id. 25 (emphasis added). And the 

Government nowhere disputes the extraordinary 

importance of that constitutional holding.

The Government nevertheless opposes certiorari 

on three grounds. First, it argues that this case is an 

unsuitable vehicle for resolving the question 

presented. There is, however, no impediment to 

review. Second, the Solicitor General maintains that 

the D.C. Circuit’s holding in SpeechNow.org v. FEC,

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

correct—albeit not for the reason the D.C. Circuit

gave. But the D.C. Circuit’s holding is not only 

debatable but wrong. As the Government itself argued 

in SpeechNow, “Citizens United does not disrupt 

Buckley’s longstanding decision upholding 

contribution limits,” and this Court’s contributionlimits jurisprudence justifies the limit on 

contributions to Super PACs. Pet. App. 60a. Third, the 

Government notes that other courts of appeals have 

invalidated state and local contribution limits similar 

to the federal limit here. If anything, however, these 

decisions enhance the need for this Court’s review.

This Court should grant certiorari and close the 

gaping loophole SpeechNow opened in the Nation’s 

campaign-finance laws.
2

I. This case is an excellent vehicle for resolving 

the constitutionality of FECA’s limit on 

contributions to Super PACs. 

The Government’s contends that, before deciding 

whether the contribution limit here is constitutional,

this Court might need to address two statutory 

arguments the Government raised in the district 

court. See BIO 9-16, 25. This contention is doubly 

misguided. There is no potential barrier to reaching 

the constitutional question presented. In any event,

the statutory arguments the Solicitor General recites

lack merit.

1. This Court has explained time and again that it 

is “a court of review, not first view.” Manuel v. City of 

Joliet, 137 S. Ct. 911, 922 (2017) (citation omitted). 

This Court’s custom, therefore, is to address the lower 

court’s resolution of the question presented and then 

remand for that court to consider, in the first instance, 

any properly preserved alternative arguments. See, 

e.g., id.

The Solicitor General suggests that this custom 

does not necessarily apply in this case. He asserts that

“[i]f” the Government decides here to raise a statutory 

argument at the merits stage, then—even though the 

court of appeals did not reach the issue—“principles of 

constitutional avoidance” would require the Court to 

consider the argument “before turning to the 

constitutional question [presented].” BIO 25. This is 

incorrect. The Court regularly resolves constitutional 

questions presented and then remands for lower 

courts to address alternative arguments for 

affirmance in the first instance—even where those 

arguments are statutory in nature. See, e.g., Seila Law 

LLC v. CFPB, 140 S. Ct. 2183, 2211 (2020) (deciding 
3

separation-of-powers issue and remanding for 

consideration of statutory “ratification” argument);

McWilliams v. Dunn, 137 S. Ct. 1790, 1801 (2017) 

(deciding question regarding the Due Process Clause 

and remanding for consideration of alternative 

statutory argument); Manuel, 137 S. Ct. at 919, 922 

(deciding Fourth Amendment question and remanding 

for consideration of statute of limitations argument).

If anything, there are stronger reasons than usual 

to adhere to that custom here. The constitutional 

question presented is exceptionally pressing. See Pet. 

11-13. Yet this case has taken four years to reach this 

Court, and the Government does not point to any other 

potential vehicles currently pending in any court. Nor 

does the Government identify any litigation involving 

a comparable state or local law that has been brought 

in the past several years. Even if such a case were 

brought, it is hard to believe that this Court would be 

better served if the Government were relegated to a 

mere amicus role in a case that could decide the fate of 

a federal statute as important as this one.

2. At any rate, the statutory arguments the 

Solicitor General raised below are unconvincing.

a. FECA’s safe-harbor provision bars a court from 

imposing a “sanction” when someone has relied in good

faith on an FEC advisory opinion. BIO 10-12 (quoting 

52 U.S.C. § 30108(c)(2)). Petitioners, however, seek no 

“sanction.” A “sanction” is a “penalty or coercive 

measure.” Alabama v. North Carolina, 560 U.S. 330, 

340 (2010) (quoting Sanction, Black’s Law Dictionary 

(9th ed. 2009)). And a declaratory judgment—the only 

relief petitioners asked the FEC to issue—is neither a 

penalty nor “coercive.” Steffel v. Thompson, 415 U.S. 

452, 471 (1974) (internal quotations omitted). A 
4

declaratory judgment merely “states the existing legal 

rights” of the parties. Ulstein Mar., Ltd. v. United 

States, 833 F.2d 1052, 1055 (1st Cir. 1987). 

Falling back, the Government suggests (without 

actually citing Chevron) that the FEC’s contrary 

construction of “sanction” is “at least ‘sufficiently 

reasonable.’” BIO 12 (citation omitted). But even if 

some form of deference applied here, interpreting a 

statutory term in the teeth of its ordinary meaning is 

not reasonable.

b. The Solicitor General’s argument (BIO 13-16) 

based on the FEC’s “enforcement discretion” falls flat 

as well. The Government says the FEC has acted 

permissibly because “the primary responsibility for 

judging whether there is reason to believe that a 

violation [of FECA] has occurred belongs to the FEC, 

not to the courts.” Id. 14. But the question here is not 

whether a violation of FECA has occurred. All agree it 

has. The only question is whether the FECA provision 

that has been violated is constitutional. That question 

most assuredly falls squarely within “the province and 

duty of the judicial department.” Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 177 (1803).

As the district court recognized, the Government’s

musings (BIO 14-15) about the permissibility of the 

FEC’s “acquiescence” in SpeechNow are thus beside 

the point. Pet. App. 14a-17a. Unlike many other 

statutory regimes, FECA expressly allows judicial 

review of agency action that is “contrary to law.” 52 

U.S.C. § 30109(a)(8)(C). And the FEC acts “contrary to 

law” when it declines to enforce FECA based on “an 

erroneous interpretation of Supreme Court precedent 

and the First Amendment.” Citizens for Resp. & 

Ethics in Wash. v. FEC, 209 F. Supp. 3d 77, 81 (D.D.C. 
5

2016). Any other conclusion would let the FEC 

insulate a lower-court decision from this Court’s 

review simply by declining to seek certiorari and then 

announcing that it had “acquiesced.”

II. The court of appeals has incorrectly invalidated 

a federal statute. 

The Solicitor General declines to defend the 

linchpin of the D.C. Circuit’s reasoning—namely, that 

“contributions to groups that make only independent 

expenditures . . . cannot corrupt or create the 

appearance of corruption.” Pet. App. 59a. That is no 

surprise: The D.C. Circuit’s logic flatly contradicts a 

theory the Government itself has successfully used in 

criminal bribery cases. Pet. 20-23. Instead, the 

Solicitor General argues that when a large 

contribution to a Super PAC is not made “in 

coordination with a federal candidate’s campaign,” it 

poses no risk of quid pro quo corruption. BIO 21 

(emphasis in original); see also id. 18. The Solicitor 

General’s unwillingness to defend the D.C. Circuit’s 

justification for striking down a federal statute is itself 

a strong signal that this Court’s review is warranted. 

And the Solicitor General’s new argument—no less 

than the D.C. Circuit’s reasoning—misreads this 

Court’s precedent and blinks practical reality.

1. Precedent. Contribution limits are “merely 

‘marginal’ speech restrictions.” FEC v. Beaumont, 539 

U.S. 146, 161 (2003). As the Government recognizes, 

therefore, “this Court has applied more deferential 

First Amendment scrutiny to limits on campaign 

contributions than to limits on campaign 

expenditures.” BIO 20. And the Government does not 

dispute (nor could it) that the statute here limits 

contributions, not expenditures. But—reversing the 
6

position the Government took in SpeechNow, see Pet. 

App. 60a—the Solicitor General argues that the 

statute is unconstitutional “even under the more 

deferential standard.” BIO 20. He pins this argument 

on two remarkably thin reeds: (a) dicta in a single 

Justice’s separate opinion in California Medical 

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

(b) a lone footnote in the legal background section of 

the plurality opinion in McCutcheon v. FEC, 572 U.S. 

185 (2014). BIO 19-20. Neither of those sources 

indicates that the statute here is unconstitutional, 

much less compels that conclusion.

True, Justice Blackmun expressed the view in his 

CalMed concurrence that the First Amendment

prohibits limiting contributions to political 

committees that make only independent expenditures. 

But, as petitioners have explained, Justice Blackmun 

expressly based this suggestion on a premise that this 

Court rejected in Buckley and has continued to reject 

ever since—namely, that contribution limits should be 

subject to the same exacting scrutiny as expenditure 

limits. Pet. 17 n.5; see also Pet. 14-17. The Solicitor 

General offers no response to this explanation.

The footnote in McCutcheon does not help the 

Solicitor General either. That footnote observed that, 

under SpeechNow, FECA’s contribution limits did not 

apply “to independent expenditure PACs.” 572 U.S. at 

193 n.2 (plurality opinion). But, contrary to the 

Solicitor General’s assertion (BIO 20), that 

observation did not “suggest[]” that “SpeechNow [i]s 

correct.” The plurality in McCutcheon was merely 

describing the state of affairs that existed leading up 

to “the 2013-2014 election cycle.” 572 U.S. at 193. Nor 

did any other aspect of McCutcheon suggest that 
7

Congress lacked the ability to limit contributions to 

Super PACs.

To the contrary, the plurality in McCutcheon 

stressed that its ruling did not affect the Court’s 

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

“about ‘soft money.’” 572 U.S. at 209 n.6. And, as 

petitioners have explained, the reasons the Court gave 

in McConnell for upholding the contribution limits 

there apply equally here. See Pet. 17, 23, 25. The 

Solicitor General’s only response is that political 

parties—the recipients of the contributions in 

McConnell—have particularly “close ties” to 

candidates they support. BIO 21 (citation omitted). 

But the same is plainly true of Super PACs—

particularly those that are directly linked to political 

parties. See Pet. 24-25. Indeed, the Solicitor General 

never claims otherwise.

2. Practical reality. The Solicitor General’s 

argument with respect to the realities of political 

fundraising fares no better. The Solicitor General 

asserts that, so long as a contribution to a political 

committee is not “coordinated with a candidate,” it 

poses no risk of corruption sufficient to justify 

regulation. BIO 21-22. This assertion is mistaken.

a. Like the Solicitor General here, those who 

challenged the contribution limit in McConnell

maintained that contributions cannot corrupt when 

neither they nor the expenditures they enable are 

coordinated with candidates. 540 U.S. at 301 

(Kennedy, J., concurring in part and dissenting in 

part) (reprising this argument). Drawing on 

“precedent, common sense, and the realities of 

political fundraising,” the Court rejected that 

proposition. 540 U.S. at 152. It explained that even 
8

when the entity receiving contributions makes only 

“noncoordinated expenditures,” Congress can limit 

contributions to that entity where an “alignment of 

interests” exists between it and a candidate. 540 U.S. 

at 152 & n.48, 155-56; see also Colo. Republican Fed. 

Campaign Comm. v. FEC, 518 U.S. 604, 617 (1996) 

(opinion of Breyer, J.) (recognizing the “danger of 

corruption” when individuals can make large 

contributions “for independent party expenditures for 

the benefit of a particular candidate”). The Court 

reaffirmed this holding in Republican Party of La. v. 

FEC, 137 S. Ct. 2178 (2017) (mem.), upholding the 

federal limit on contributions to state and local 

political parties seeking to use them only for 

independent expenditures.

Those holdings apply with full force here. In light 

of the alignment of interests between candidates and 

Super PACs supporting their election, a serious risk 

exists that candidates will feel indebted to donors who 

make big contributions to such organizations. This, in 

turn, incentivizes donors to make large contributions 

to create such indebtedness. See Pet. 25-26; Amicus 

Br. of Political Scientists 17-28. Indeed, there is good 

reason to believe that contributions to Super PACs 

“present an even higher risk of corruption than soft 

money does.” Amicus Br. of Legal Scholars of 

Campaign Finance 9. Unlike “soft money” 

contributions to parties, contributions to Super PACs

fund advertisements expressly advocating the election 

of favored candidates. Moreover, unlike political 

parties, Super PACs often support a single candidate. 

They can also be used to funnel huge salaries and 

other payments to candidates’ close friends and family 

members—and thus to enable indirect payments for 

political favors. Id. 9-13.
9

The Solicitor General protests that if a Super PAC 

truly became an “alter ego” of a candidate’s campaign 

organization, then SpeechNow would be “inapplicable” 

because the Super PAC would be acting “in 

coordination with” the campaign. BIO 21 (emphasis 

removed). This contention misapprehends our 

argument. We use the term “alter ego” to describe the 

type of relationship that the FEC permits under its 

anti-coordination rules. Pet. 7; see also 11 C.F.R. 

§ 109.21 (defining coordination and establishing safe 

harbors); FEC Advisory Op. 2011-12, 2011 WL 

2662413 (June 30, 2011) (giving finer-grained 

guidance). Under those rules, donors typically view a 

contribution to a Super PAC as functionally 

indistinguishable from a contribution to a candidate 

himself. See, e.g., Robert Faturechi & Lauren 

Kirchner, Super PAC to Billionaire: We Need More 

Money to Save a Republican Senate, ProPublica (Oct. 

14, 2016), https://perma.cc/Q7SJ-U4M5 (quoting a 

Super PAC’s solicitation of funds: “We are the blessed 

Super PAC by Sen. Toomey . . . . I am his former senior 

aide and finance director, and I am working with his 

former chief-of-staff, cc’d on this email.”).

The Government does not suggest that these rules 

allow “coordinated” activity. Nor does it suggest that 

any of the real-world practices that petitioners and 

amici describe constitute “coordination” under FECA. 

Accordingly, the only pathway available to prevent the 

potential corruption—and obvious appearance of 

corruption—enabled by Super PACs is enforcing 

FECA’s contribution limits.

2. The Solicitor General’s position that Congress 

may limit only “coordinated” contributions to Super 

PACs also flouts public perceptions. The First 
10

Amendment permits Congress to regulate 

contributions that are not themselves bribes. Buckley, 

424 U.S. at 27-28. “In addition to ‘actual quid pro quo 

arrangements,’ Congress may permissibly limit ‘the 

appearance of corruption stemming from public 

awareness of the opportunities for abuse inherent in a 

regime of large individual contributions’ to particular 

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

opinion) (quoting Buckley, 424 U.S. at 27).

Large contributions to Super PACs present 

equivalent opportunities for abuse. See Pet. 21-22, 25-

27. A multi-million-dollar contribution to a candidate’s 

designated Super PAC need not be made “pursuant to 

an agreement with the candidate” (BIO 22) to raise 

this danger. Where the candidate is aware of the 

private contribution and later takes an official public 

act because of it, the public no doubt perceives the 

outcome as corrupt. Congress thus acted well within 

constitutional bounds to forestall such conduct.

III. Other courts’ decisions invalidating comparable 

state and local contribution limits make 

certiorari all the more warranted. 

Insofar as federal courts have prevented state and 

local governments from enforcing contribution limits

similar to the FECA limit at issue here, that simply 

enhances the importance of the constitutional 

question presented. See Amicus Br. of Washington 

and 17 Other States at 16-21.

Contrary to the Government’s contention (BIO 

24), it makes no difference that these decisions agree 

with one another. Just last Term, the Court granted 

certiorari to review a court of appeals decision 

declaring a federal statute unconstitutional. Every 

other federal court to address the issue—two other 
11

courts of appeals and numerous district courts—had 

reached the same conclusion, and the Solicitor General 

agreed with that consensus. This Court explained, 

however, that “[b]ecause the Court of Appeals held a 

federal statute invalid, we granted certiorari.” Allen v. 

Cooper, 140 S. Ct. 994, 1000 (2020); see also Pet. for 

Cert. at 15 n.4, Allen v. Cooper, No. 18-877; Br. in Opp. 

at 10-12, Allen v. Cooper, No. 18-877. Similar cases 

abound. See, e.g., Coleman v. Court of Appeals of 

Maryland, 566 U.S. 30, 35 (2012) & Br. in Opp. at 8-9, 

Coleman v. Court of Appeals of Maryland, No. 10-1016 

(granting certiorari where all six courts of appeals to 

address the constitutionality of a federal statute had 

invalidated it); Brown v. Entertainment Merchants 

Ass’n, 564 U.S. 786 (2011) & Br. in Opp. at 12-16, 

Brown v. Entertainment Merchants Ass’n, No. 08-

1448 (granting certiorari where all four federal courts 

of appeals and every district court to consider the type 

of state law at issue had held them unconstitutional).

This Court’s actions in those cases reflect the 

respect it accords other branches of the federal 

government, as well as the States. Even when the 

Court ultimately agrees with lower courts that a law 

(or type of law) is unconstitutional, a definitive ruling 

by this Court advances inter-branch and federal-state

dialogue. Indeed, the Court’s reasoning often provides

critical guidance to legislators regarding how they 

might accomplish their objectives in a constitutional 

manner.

Yet the reasons for granting certiorari here go 

beyond the need to hear this Court’s voice on the 

question presented. Most of the lower court cases the 

Solicitor General cites—like SpeechNow itself—were 

issued during the brief period between Citizens United 
12

and the upsurge of Super PACs. All were issued before 

elected officials across the political spectrum began 

complaining that massive contributions to Super 

PACs are “[v]ery corrupt.” Pet. 27 (citation omitted). 

Especially with the consequences of SpeechNow in full 

view, this Court’s review is urgently needed to restore 

the integrity of FECA and our electoral system.

CONCLUSION 

For the foregoing reasons, the petition for a writ 

of certiorari should be granted.
13

Respectfully submitted, 

Laurence H. Tribe

Hauser Hall 420

HARVARD LAW SCHOOL*

Cambridge, MA 02138

Albert W. Alschuler

220 Tuttle Road

Cumberland, ME 04021

Ronald A. Fein

John C. Bonifaz

Ben T. Clements

FREE SPEECH FOR PEOPLE

1320 Centre Street, #405

Newton, MA 02459

Richard W. Painter

Mondale Hall, Office 318

U. OF MINN. LAW SCHOOL*

229 19th Avenue South 

Minneapolis, MN 55455

* University affiliation 

noted for identification 

purposes only.

Jeffrey L. Fisher

 Counsel of Record

Pamela S. Karlan

Brian H. Fletcher

STANFORD LAW SCHOOL

 SUPREME COURT

 LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

Malcolm Seymour

Andrew Goodman

FOSTER GARVEY P.C.

100 Wall Street, 20th Fl. 

New York, NY 10005

Brad Deutsch

Benjamin Lambiotte

FOSTER GARVEY P.C.

Flour Mill Building

Suite 200

1000 Potomac St., NW

Washington, DC 20007

October 21, 2020