No. 19-_______ 

================================================================================================================

In The 

Supreme Court of the United States 

---------------------------------  --------------------------------- 

LIBERTARIAN NATIONAL COMMITTEE, INC., 

Petitioner, 

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 

---------------------------------  --------------------------------- 

PETITION FOR A WRIT OF CERTIORARI 

---------------------------------  --------------------------------- 

ALAN GURA

Counsel of Record

GURA PLLC 

916 Prince Street, 

Suite 107 

Alexandria, VA 22314 

703.835.9085 

alan@gurapllc.com 

August 19, 2019 

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

QUESTIONS PRESENTED 

 1. In the asserted interest of preventing quid pro 

quo corruption, the Federal Election Commission limits the amount of money that a political party may receive each year from a deceased donor. 

 Over the course of his life, Joseph Shaber made 

various small donations to the Libertarian Party. He 

was unknown to party officials and candidates. Upon 

his death, the party learned that Shaber had unconditionally left it $235,575.20. Does limiting the size of Joseph Shaber’s uncoordinated testamentary bequest to 

the party violate the party’s First Amendment right to 

free speech? 

 2. In 2014, Congress imposed content-based spending restrictions on contributions to political parties. 

 A national political party committee may now 

spend only 10% of an individual’s maximum annual 

contribution on unrestricted speech. Of an individual’s 

maximum annual contribution, 30% must be spent on 

presidential nominating conventions, 30% on election 

contests and other legal proceedings, and 30% on party 

headquarters buildings. 52 U.S.C. §§ 30116(a)(1)(B), (a)(9), 

30125(a)(1). Money being fungible, these restrictions 

negligibly impact, if at all, party committees that 

would otherwise spend money from general funds on 

such government-preferred speech. Party committees 

that cannot or do not prioritize government-preferred 

spending purposes can raise and spend as little as 10% 

of each donor’s otherwise-allowable contribution. 
ii 

QUESTIONS PRESENTED – Continued 

 Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9) and 30125(a)(1) 

violate the First Amendment right of free speech by conditioning the size of contributions to a political party on 

the content of the party’s speech? 
iii 

RULE 29.6 DISCLOSURE STATEMENT 

 No parent or publicly owned corporation owns 10% 

or more of the stock in Libertarian National Committee, Inc. 

LIST OF PARTIES 

 Petitioner is the Libertarian National Committee, 

Inc., which was the plaintiff below. 

 Respondent is the Federal Election Commission, 

which was the defendant below. 

RELATED PROCEEDINGS 

 1. Libertarian Nat’l Committee, Inc. v. Federal 

Election Commission, United States District Court for 

the District of Columbia, No. 16-cv-00121-BAH. The 

district court denied the Federal Election Commission’s motion to dismiss on January 3, 2017. 

 2. Libertarian Nat’l Committee, Inc. v. Federal 

Election Commission, United States District Court for 

the District of Columbia, No. 16-cv-00121-BAH. The 

district court made factual findings and certified constitutional questions to the en banc District of Columbia Circuit on June 29, 2018, pursuant to 52 U.S.C. 

§ 30110. 

 3. Libertarian Nat’l Committee, Inc. v. Federal 

Election Commission, United States Court of Appeals 

for the District of Columbia Circuit, No. 18-5227. The 

court of appeals entered its judgment on May 21, 2019. 
iv 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED .................................. i 

RULE 29.6 DISCLOSURE STATEMENT ............. iii 

LIST OF PARTIES ................................................. iii 

RELATED PROCEEDINGS .................................. iii 

TABLE OF AUTHORITIES ................................... vi 

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

OPINIONS BELOW ............................................... 4 

JURISDICTION ..................................................... 5 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................................. 5 

STATEMENT OF THE CASE ................................ 5 

 A. The Regulatory Framework ........................ 5 

 B. Purported Justifications for FECA’s New 

Content-Based Spending Restrictions ........ 6 

 C. FECA’s Application to the Deceased ........... 9 

 D. Factual Background ..................................... 11 

 E. Proceedings Below ....................................... 15 

REASONS FOR GRANTING THE PETITION ..... 22 

 I. The Questions Presented Raise Recurring 

Issues of Significant and Immediate National Importance......................................... 23 

 II. The D.C. Circuit’s Decision Is Wrong .......... 26 

A. Limiting Shaber’s Bequest Violates the 

First Amendment .................................. 26 
v 

TABLE OF CONTENTS – Continued 

Page 

B. FECA’s Content-Based Spending Restrictions Are Unconstitutional .................... 31 

 III. The Questions Presented Need Not Percolate 

Further in the Lower Courts, Nor Are They 

Likely To Do So ............................................. 35 

CONCLUSION ....................................................... 38 

APPENDIX 

APPENDIX A – En Banc Court of Appeals Opinion filed May 21, 2019 ............................................. 1a 

APPENDIX B – District Court Opinion filed 

June 29, 2018 ........................................................ 81a 

APPENDIX C – District Court Order Certifying 

Questions filed June 29, 2018 ............................. 197a 

APPENDIX D – District Court Opinion filed 

January 3, 2017 ................................................... 200a 

APPENDIX E – Relevant Constitutional and 

Statutory Provisions 

 U.S. Const. amend. I ............................................ 218a 

 52 U.S.C. § 30110 ................................................. 218a 

 52 U.S.C. § 30116(a)(1)(B) ................................... 219a 

 52 U.S.C. § 30116(a)(9) ........................................ 219a 

 52 U.S.C. § 30116(c) ............................................. 221a 

 52 U.S.C. § 30116(d) ............................................ 222a 

 52 U.S.C. § 30125(a) ............................................ 225a 
vi 

TABLE OF AUTHORITIES 

Page 

CASES

Ariz. Free Enter. Club’s Freedom 

Club PAC v. Bennett, 

564 U.S. 721 (2011) ................................................. 23 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) .......... 2, 18, 21, 26, 31 

Citizens United v. FEC, 

558 U.S. 310 (2010) ........................................... 21, 27 

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

518 U.S. 604 (1996) ................................................. 23 

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

543 U.S. 157 (2004) ................................................. 32 

Doe v. Reed, 

561 U.S. 186 (2010) ................................................. 29 

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) ................................................. 30 

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990) .................................. 37 

Holmes v. FEC, 

823 F.3d 69 (D.C. Cir. 2016) .................................... 37 

Kachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992) 

(en banc) (per curiam) ............................................. 36 

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

930 F. Supp. 2d 154 (D.D.C. 2013) .................. passim 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

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

No. 13-5088, 2014 U.S. App. LEXIS 25108 

(D.C. Cir. Mar. 26, 2014) (per curiam)..................... 11 

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

No. 13-5094, 2014 U.S. App. LEXIS 3112, 

2014 WL 590973 (D.C. Cir. Feb. 7, 2014) 

(per curiam) ............................................................. 10 

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

950 F. Supp. 2d 58 (D.D.C. 2013) ............................ 10 

McConnell v. FEC, 

540 U.S. 93 (2003) ........................................... passim

McCutcheon v. FEC, 

572 U.S. 185 (2014) ................................................. 34 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .... passim

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc) ............ 30, 31 

Wis. Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) (per curiam) ...................... 29, 30 

STATUTES, REGULATIONS, AND RULES

28 U.S.C. § 1254(1) ........................................................ 5 

52 U.S.C. § 30101 .......................................................... 2 

52 U.S.C. § 30110 ....................................... iii, 1, 2, 7, 37 

52 U.S.C. § 30116(a)(1) ................................................. 9 

52 U.S.C. § 30116(a)(1)(B) ............................... i, ii, 5, 15 

52 U.S.C. § 30116(a)(9) ................................ i, ii, 6, 7, 15 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

52 U.S.C. § 30116(c) ...................................................... 5 

52 U.S.C. § 30125(a)(1) .................................... i, ii, 6, 15 

52 U.S.C. § 30125(b)(1) ............................................... 32 

Consolidated and Further Continuing Appropriations Act, 2015, 113 Pub. L. No. 235, 128 Stat. 

2130 (Dec. 16, 2014) .................................................. 6 

Fed. R. Evid. 106 ........................................................... 7 

OTHER AUTHORITIES

160 Cong. Rec. S6812 (daily ed. Dec. 13, 2014) 

(statement of Sen. Collins)........................................ 6 

72 Fed. Reg. 72899 (Dec. 26, 2007) ............................. 29 

84 Fed. Reg. 2504 (Feb. 7, 2019) ................................... 5 

Congress.gov, https://www.congress.gov/bill/113thcongress/ house-bill/83 .............................................. 6 

“Cromnibus,” Political Dictionary, available at 

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

(last visited Aug. 15, 2019) ........................................ 6 

FEC Advisory Op. 1999-14 (Council for a Livable 

World) ...................................................................... 10 

FEC Advisory Op. 2004-02 (Nat’l Comm. for an 

Effective Congress) ................................................. 10 

FEC Advisory Op. 2015-05 (Shaber) ............................ 9 

Petition for Certiorari, Thompson v. Hebdon, No. 

19-122 (filed July 22, 2019) ..................................... 37 

Suggestion of Mootness, Libertarian Nat’l Comm.

v. FEC, D.C. Cir. No. 13-5088 (Feb. 3, 2014) ........... 11 
1 

PETITION FOR A WRIT OF CERTIORARI 

 Libertarian National Committee, Inc., respectfully 

petitions for a writ of certiorari to review the judgment 

of the United States Court of Appeals for the District 

of Columbia Circuit in this case. 

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INTRODUCTION 

 The en banc D.C. Circuit divided in upholding 

two significant intrusions on Americans’ fundamental 

First Amendment right of free political speech. The 

court essentially held contribution limits immune 

from most as-applied constitutional challenges, and 

declared that this Court’s protection of speech from 

content-based restrictions, confirmed in Reed v. Town 

of Gilbert, 135 S. Ct. 2218 (2015), is inapplicable to 

campaign finance regulations. This case, arising on certified constitutional questions pursuant to the expedited procedure of 52 U.S.C. § 30110, plainly concerns 

recurring issues of significant national importance. 

The questions presented overlapped on this case’s 

facts, but either may be independently reviewed. 

 1. Americans of all political persuasions tend 

to die. And when they do, it often turns out that they 

have remembered their favorite political parties in 

their wills and other testamentary vehicles. Testation, 

deeply rooted in our tradition as one’s final act of civic 

engagement, often has a political dimension. Money 

thus regularly passes into our electoral campaign system from those who cannot police any quid pro quo
2 

relationship respecting what is always, until the moment of death, only a revocable promise to donate. 

 The deceased who leave political legacies were often unknown in life to party officials, candidates, and 

officeholders. Their testamentary vehicles were often 

drafted long before anyone might have predicted their 

time of death, let alone the identity of the candidates, 

officeholders, and issues of that future day. Upon death, 

as far as anyone knows, there is nothing more that a 

donor might do for a political party, and nothing more 

that a party might do for the donor. And unlike what 

this Court offered with respect to donations by the living in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), 

political testation is only a form of speech, not association. 

 Yet donors, dead and living, are equally subject 

to the Federal Election Campaign Act (“FECA”), 52 

U.S.C. § 30101 et seq.

1

 The Federal Election Commission (“FEC”) could not describe how an uncoordinated 

bequest left to the Libertarian National Committee 

(“LNC”) by Joseph Shaber, in life a small donor lacking 

any connection to party officials or candidates, might 

corrupt the political process. The majority nonetheless upheld the restriction of Shaber’s bequest. It assumed without deciding that “closely drawn” scrutiny 

governed the question, and refused to consider that 

donors are less able to extract the fruits of corruption 

after they die. The analysis began and ended with the 

fact that contribution limits have previously been 

1 All further statutory references are to Title 52 of the United 

States Code. 
3 

upheld under “closely drawn” scrutiny. Nothing else 

was “scrutinized,” closely or otherwise. 

 2. Shortly after Shaber’s passing, Congress complicated matters by jettisoning the key “soft money” 

contribution limit upheld in McConnell v. FEC, 540 

U.S. 93 (2003). In the corners of a last-minute budget 

deal, without the benefit of a legislative record that 

might justify restrictions on political speech, Congress 

replaced the straightforward contribution limit that 

McConnell considered with a new scheme. FECA now 

provides that up to 90% of an individual’s annual contribution to a political party committee can be spent 

only on government-privileged speech: presidential 

nominating conventions, the litigation of election contests and other legal proceedings, and the purchase 

and operation of party headquarters buildings. 

 If a party shares Congress’s speech preferences, 

it can speak more, without restriction. Money is fungible, and the “restricted” funds merely offset unrestricted funds that would have been spent on those 

government-preferred purposes. But if a party does not 

share Congress’s speech preferences—if its presidential nominating conventions are inexpensive or if it 

holds midterm conventions, if it has few legal bills and 

no election contests, or if it prefers to fund expressive 

operations outside its headquarters, that party does 

not speak as it wishes. It speaks less. 

 This scheme fails the strict scrutiny to which it 

should be subjected under Reed. Not one shred of evidence supports the counterintuitive notion that larger 
4 

donations are less corrupting when tied to the peculiar 

speech Congress privileged, which often benefits specific candidates and officeholders. Striving to explain 

the relationship between corruption concerns and Congress’s preferred speaking purposes, the FEC could not 

even articulate a rational basis for the scheme. It offered nothing more than contradictory suppositions, 

culminating in a multi-factor essay amounting to, “It 

depends.” Yet because the law employs the artifice of 

restricting “contributions”—even if it does so according 

to the content of the speech that the contributions 

fund—the majority below upheld it under its watereddown “closely drawn” version of “scrutiny.” 

 Courts can label and process content-based spending restrictions however they like, but the bottom-line 

result here is plain for all to see: how much an American can give to a political party, and how much that 

party can spend, depend on what the party says. 

---------------------------------  ---------------------------------

OPINIONS BELOW 

 The D.C. Circuit’s en banc opinion, App.1a-80a, is 

reported at 924 F.3d 533. The district court’s opinion 

and order certifying constitutional questions and facts 

to the en banc D.C. Circuit, App.81a-199a, is reported 

at 317 F. Supp. 3d 202. The district court’s opinion 

denying the FEC’s motion to dismiss, App.200a-17a, is 

reported at 228 F. Supp. 3d 19. 

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5 

JURISDICTION 

 The court of appeals entered its judgment on May 

21, 2019. This Court has jurisdiction under 28 U.S.C. 

§ 1254(1). 

---------------------------------  ---------------------------------

CONSTITUTIONAL AND 

STATUTORY PROVISIONS INVOLVED 

 The First Amendment, and relevant provisions of 

Title 52 of the United States Code, are reproduced at 

App.218a-25a. 

---------------------------------  ---------------------------------

STATEMENT OF THE CASE 

A. The Regulatory Framework 

 An individual may donate up to $355,000 to a national committee of a political party annually: Up to 

$35,500 in funds that a party may spend as it desires, 

and up to triple that amount, $106,500, deposited in 

each of three separate, segregated accounts. Section 

30116(a)(1)(B).2

 Party committees may spend money 

from the three “separate, segregated account[s]” only on 

(A) “a presidential nominating convention,” (B) party 

headquarters buildings, or (C) “election recounts and 

contests and other legal proceedings,” respectively. 

2 The statute’s $25,000 base limit is indexed for inflation. See

Section 30116(c). When this case was argued below, that figure 

was $33,900. It now stands at $35,500. See 84 Fed. Reg. 2504, 

2505-06 (Feb. 7, 2019). 
6 

Section 30116(a)(9); see also Section 30125(a)(1). Accordingly, 90% of what a person may give each year to 

a political party’s national committee is subject to content-based expenditure restrictions. 

B. Purported Justifications for FECA’s New 

Content-Based Spending Restrictions 

 1. Congress tucked language creating the segregated account structure into pages 644-45 of the 701-

page 2014 cromnibus bill. See “Subdivision N—Other 

Matters,” Consolidated and Further Continuing Appropriations Act, 2015, 113 Pub. L. No. 235, 128 Stat. 

2130, 2772-73 (Dec. 16, 2014).3 These “Other Matters” 

never faced a committee hearing in either house of 

Congress, and were not the subject of any congressional report or investigation. See Congress.gov, https:// 

www.congress.gov/bill/113th-congress/house-bill/83 (last 

visited Aug. 13, 2019) (absence of committee reports related to the spending purpose restrictions). 

 Debate was scant. The FECA amendments “should 

have been subject to debate and amendment in an open 

process by the full Senate,” but “we simply cannot allow a government shutdown.” 160 Cong. Rec. S6812 

(daily ed. Dec. 13, 2014) (statement of Sen. Collins). 

3 A “cromnibus” is “[l]egislation which combines a long-term 

omnibus spending bill with a shorter-term continuing resolution” 

that averts a government funding lapse. See “Cromnibus,” Political Dictionary, available at http://politicaldictionary.com/words/ 

cromnibus/ (last visited Aug. 15, 2019). 
7 

The legislative record thus lacks discussion of links between corruption concerns and political contributions 

of various sizes restricted to various purposes. 

 2. The parties nonetheless developed a factual 

record exploring potential rationales that might justify 

the scheme. 

 “Every dollar received through the separate, segregated accounts provided for in [Section 30116(a)(9)] 

potentially frees up another dollar in the recipient’s 

general account for unrestricted spending.” App.141a 

(CF38). Thus, parties “may in some circumstances 

value a contribution with use restrictions more highly 

than a smaller contribution without such restrictions.” 

Id. (CF39). “A political party may value a higher 

contribution with use restrictions . . . ” App.141a 

(CF40).4 

 The FEC explained that “larger contributions are 

generally more likely to lead to actual or apparent quid 

pro quo arrangements and can do so regardless of how 

the funds are ultimately used.” App.143a (CF41) (emphasis added); see also App.138a-39a (CF35). Yet the 

FEC asserted that “political parties will generally value 

[unrestricted contributions] higher,” because they 

can allegedly be used to “maximally benefit federal 

4 The FEC objected to certification of various facts extracted 

from its discovery responses by arguing that, if certified, its “full 

response[s] should in fairness be included. See Fed. R. Evid. 106.” 

See, e.g., App.142a (CF40 n.21). But the LNC indeed introduced 

the FEC’s “full responses” into the record. The FEC has always 

been free to assert the relevance of any part of its writings. 
8 

candidates”; accordingly, “such contributions pose a 

relatively more acute danger of quid pro quo corruption.” App.143a (CF41). 

 As the FEC also admitted, “[a]ll contributions to 

political parties can create the risk of corruption or its 

appearance regardless of the way that money is ultimately spent.” App.140a (CF36). The FEC theorized 

that “Congress could have permissibly concluded that 

contributions to a political party that directly benefit a 

particular candidate or can be spent directly on a particular election contest pose an especially acute risk 

warranting a lower dollar limit.” Id. 

 At bottom, the FEC admitted that a larger, 

“within-limit [restricted] contribution could appear as 

corrupt as or more corrupt than a lower [unrestricted 

contribution] that exceeds the general-account limit, 

depending on circumstances.” App.145a (CF43) (emphasis added). These circumstances include 

the identity of the contributor and the receiver, the policy interests of the contributor, 

the current status of relevant policies, the financial needs and goals of the receiver including as to the types of spending for which 

segregated account funds might be used and 

the public knowledge of those matters, the receiver’s ability to raise funds for different proposed uses, and whether any relevant policy 

changes happen close in time to the contribution. 

App.145a-46a (CF43) (emphasis added). The FEC continued by offering that “it is also possible that a 
9 

particular contribution below the general account limit 

may have an appearance of corruption that exceeds 

that of a higher contribution to a segregated account.” 

C.A. App.61-63 (emphasis added). 

 Notwithstanding its multi-factor, situational corruption test and its reticence to “opine on matters” that 

the FEC believes are “committed to the discretion of 

Congress,” C.A. App.60, 62, the FEC hypothesized that 

“Congress could have permissibly concluded” that unrestricted donations pose greater corruption risk than 

restricted donations, as the FEC believes that “unrestricted funds contributed to a political party may be

used for activities that maximally benefit federal candidates and thus may pose a relatively more acute danger of actual and apparent corruption.” App.140a-41a 

(CF37) (emphasis added). 

C. FECA’s Application to the Deceased 

 1. The FEC interprets “person,” as used in Section 30116(a)(1), “to include the dead and their estates.” App.3a-4a (citation omitted); App.170a (CF85). 

Testamentary bequests to political parties that exceed 

contribution limits must be placed in escrow, from 

which a party must withdraw funds every year until 

the funds are exhausted. The funds may earn interest, 

but parties may not exercise control over such funds, 

including control over the direction of the funds’ investment strategies or strategic choice as to the 

amount of withdrawals made in any particular year. See

FEC Advisory Ops. 2015-05 (Shaber), 2004-02 (Nat’l 
10 

Comm. for an Effective Congress), 1999-14 (Council for 

a Livable World); C.A. App. 45. 

 2. The parties have previously litigated FECA’s 

application to the deceased. In 2007, Raymond Burrington bequeathed the LNC $217,734.00 after a lifetime 

in which he had given the party a single $25 donation. 

The D.C. District Court refused to certify the LNC’s 

categorical challenge to FECA’s application against testamentary bequests, but certified an as-applied question 

regarding Burrington’s bequest, considering Burrington was unknown to the LNC and his bequest had 

come as a surprise. Libertarian Nat’l Comm., Inc. v. 

FEC (“LNC I”), 930 F. Supp. 2d 154 (D.D.C. 2013), reconsideration denied, 950 F. Supp. 2d 58 (D.D.C. 2013). 

 The D.C. Circuit summarily affirmed the denial of 

certification with respect to the categorical challenge. 

Libertarian Nat’l Comm., Inc. v. FEC, No. 13-5094, 

2014 U.S. App. LEXIS 3112, 2014 WL 590973 (D.C. Cir. 

Feb. 7, 2014) (per curiam). Before the certified as-applied challenge could be briefed, the escrow account 

holding Burrington’s bequest made its final disbursement. The FEC thus suggested mootness. 

 Notwithstanding factual findings that the LNC solicits bequests, LNC I, 930 F. Supp. 2d at 174 (CF22, 

23); that the LNC regularly receives bequests, id. at 

182 (CF69); that political parties generally receive bequests, id. at 183 (CF72, 73); and that “many bequests 

of amounts far exceeding FECA’s annual contribution 

limit . . . have been left for national party committees 
11 

in recent years,” id. at 184 (CF78); see generally CF76-

86, the FEC confidently predicted that “there is no 

reasonable expectation that the Contribution Limit 

will restrict a bequest to the LNC again.” Suggestion 

of Mootness, Libertarian Nat’l Comm. v. FEC, D.C. Cir. 

No. 13-5088, at 7 (Feb. 3, 2014). 

 The D.C. Circuit agreed and declared the as-applied 

challenge moot. Libertarian Nat’l Comm., Inc. v. FEC, 

No. 13-5088, 2014 U.S. App. LEXIS 25108 (D.C. Cir. 

Mar. 26, 2014) (per curiam). Less than five months 

later, Joseph Shaber died, leaving the LNC a bequest 

even larger than Burrington’s. App.180a (CF117), 181a 

(CF121). 

D. Factual Background 

 1. “The major parties . . . spend substantial sums 

on activities that can be paid for through segregated 

accounts: They put on lavish nominating conventions 

that are spectacles made for a national audience, they 

maintain expensive headquarters, and they challenge 

and defend in court the outcomes of numerous elections across the country.” App.50a. Because money is 

fungible, segregated contributions to the major parties 

“are in effect no different from general contributions.” 

App.50a-51a. 

 “By contrast, minor parties gain little from this 

scheme because they do not have much use for segregated-account contributions. The LNC, for example, 

holds more modest conventions and maintains a less 

expensive headquarters than the major parties, and 
12 

the LNC has never spent money on election recounts 

and is unlikely to do so in the future.” App.51a. For 

example, in 2015, the year that the LNC gained access 

to Shaber’s bequest, it spent only $340.50 on the following year’s presidential nominating convention, 

$72,827.11 on its headquarters, and $7,260.61 on legal proceedings. App.213a; C.A. App. 78. “All, or very 

nearly all, of the Libertarian Party’s [presidential convention expenses] are incurred and paid for in the year 

in which the convention is held.” App.135a-36a (CF28). 

In 2016, a presidential election year, the LNC’s total 

spending on all three special purposes approximated 

only $467,251.58. App.136a (CF29). 

 In other words, in non-presidential years, a single 

donor could cover the LNC’s special purpose expenses 

and still the content-based spending restrictions would 

bar the LNC from spending most of that donor’s maximum allowable donation. In presidential years, two or 

three donors could cover the tab for the entire convention (at $106,500 apiece), and still the party would be 

barred from spending most of their maximum contributions for lack of sufficient government-preferred expenses. The LNC would not buy another headquarters 

building or foment baseless litigation merely to create 

segregated account expenses. 

 Rather than raise money that could only be spent 

on non-existent expenses, the LNC would raise money 

to speak directly to the electorate about its ideology 

and political mission, and to support its candidates. 

App.171a (CF89). The LNC would build its institutional capability, including its capability to regularly 
13 

qualify for the ballot in various states. Id. The LNC 

spends the bulk of its resources obtaining ballot access 

for its candidates. App.169a (CF83). 

 The LNC’s donors share its priorities. They are uninterested in donating money that would be of little or 

no practical use. The LNC identified donors who gave 

the maximum unrestricted base contribution and 

would have exceeded that limit but for the segregated 

spending purpose restrictions. These donors would exceed the unrestricted base limit in future years, but 

refrain from doing so because the content-based spending restrictions would limit or eliminate the value 

of their donations beyond FECA’s base amount. See

App.185a-90a (CF139-156). 

 2. During his lifetime, Joseph Shaber made 46 donations to the LNC, totalling $3,315. App.178a (CF110). 

But without its knowledge, the LNC was made a beneficiary of his trust in 2010. App.180a (CF115). The size 

of Shaber’s gift to the LNC was contingent upon various factors, including the value of his property and 

whether he would have grandchildren at the time of 

his passing. Id. (CF116). Shaber died in 2014, rendering the trust irrevocable, id. (CF117), and preventing 

him from engaging in political expression, association, 

or support. Id. (CF118). 

 The LNC’s share of the trust was eventually determined to be $235,575.20. App.181a (CF121). Shaber 

specified that the LNC should take his bequest “outright.” Id. (CF123). 
14 

 The FEC is unaware of any condition or limitation 

attached by Shaber to his bequest. Id. (CF124). Nor is 

the FEC aware of any quid pro quo arrangement related to Shaber’s LNC bequest. App.182a (CF125). To 

the LNC’s knowledge, neither Shaber nor anyone related to him or acting on his behalf has had any relationship with the LNC, its officers, board members, or 

candidates, apart from Shaber’s contribution history. 

App.183a (CF129). Aside from pursuing its ideological 

and political mission, the LNC provided nothing of 

value to Shaber, or to anyone else, in exchange for his 

bequest to the LNC. Id. (CF133). Shaber’s trust cannot 

impose new restrictions on Shaber’s bequest. App.182a 

(CF126). 

 The LNC would accept and spend the entirety of 

Shaber’s bequest for its general expressive purposes, 

including expression in aid of its federal election efforts. App.182a (CF127). In 2015, upon first gaining 

access to Shaber’s bequest, the LNC took the maximum then allowed for unrestricted purposes. App.180a 

(CF119). Shaber’s trust and the LNC agreed to deposit the remaining $202,175.20 into an FEC-compliant 

escrow account, subject to this litigation’s outcome. 

App.182a (CF128). The LNC is prohibited from pledging, assigning, or otherwise obligating the account’s 

anticipated contributions before they are disbursed. 

App.183a (CF132). 
15 

E. Proceedings Below 

 1. The LNC brought this case in the United 

States District Court for the District of Columbia, 

seeking the certification of questions (1) challenging 

the application of any contribution limits to Shaber’s 

bequest, (2) facially challenging Sections 30116(a)(1)(B), 

(a)(9), and 30125(a)(1) owing to their content-based 

speech restrictions, and (3) challenging the contentbased restrictions’ application against the Shaber bequest. The FEC moved to dismiss the complaint, arguing that the LNC’s injury with respect to Shaber’s 

bequest was self-inflicted, because it could have accepted the entirety of the bequest in various segregated spending purpose accounts. With respect to the 

facial challenge, the FEC claimed that the LNC’s injury was one of competitive disadvantage, which is neither caused by FECA nor redressable in court. 

 The district court denied the FEC’s motion to dismiss. “The LNC does not argue” that FECA bars its acceptance of “the entire Shaber bequest in one lump 

sum,” but that it could not “accept the entire bequest 

for general expressive purposes when the bequest became available in 2015.” App.210a. “LNC’s injury is 

that it cannot accept money—from Shaber’s bequest 

and from other donors—for spending as it wishes.” 

App.210a-11a (internal quotation marks omitted). The 

district court also rejected the FEC’s claim that the 

LNC had sufficient offsetting segregated account expenses to accept Shaber’s full bequest, App.212a-14a, 

and rejected the FEC’s competitive disadvantage 
16 

theory as an unfair misreading of the complaint. 

App.214a-16a. 

 Following discovery, the LNC moved for factfinding and certification. The FEC moved to dismiss, 

asserting the proposed constitutional questions were 

frivolous. In the alternative, the FEC proposed its 

own facts and sought to rephrase the questions. The 

district court denied the FEC’s second motion to dismiss, some of which it found “convoluted and barely 

comprehensible.” App.96a. It made 178 factual findings, certified the LNC’s first question, and certified 

the LNC’s second and third questions with some modification. App.127a-99a. 

 2. The en banc D.C. Circuit unanimously rejected 

the FEC’s third motion to dismiss, brought along the 

same lines as the Commission’s previous unsuccessful efforts. App.7a-11a. But the court divided on the 

merits. Judge Griffith dissented from the judgment 

upholding the spending purpose restrictions. Judge 

Katsas, joined by Judge Henderson, concurred in the 

judgment as to the spending purpose restrictions, but 

dissented from the judgment upholding the application of contribution limits as to Shaber’s bequest. 

 2. a. The majority acknowledged that this Court 

has “left open the question whether closely drawn scrutiny . . . applies to a law limiting a recipient’s right to 

receive a donation absent a corollary restriction on a 

contributor’s right to contribute.” App.15a. Nonetheless, because precedent had not expressly foreclosed 

such application, the majority “assume[d], without 
17 

deciding, that closely drawn scrutiny applies to the imposition of contribution limits on Shaber’s bequest.” 

App.15a-16a. 

 The majority offered that “[t]he risk of quid pro 

quo corruption does not disappear merely because the 

transfer of money occurs after a donor’s death,” App.17a, 

without explaining how, exactly, a dead donor whose 

gift had become irrevocable could change his mind if a 

corrupt party did not live up to its end of the bargain. 

 It then observed that bequests could theoretically 

be coordinated with a party in a quid pro quo deal, 

holding against the LNC its refusal to revisit LNC I’s 

recent foreclosure of a broad categorical challenge to 

FECA’s afterlife application. App.18a-19a. Turning to 

Shaber’s bequest, the majority had “no trouble making 

the unremarkable assumption that Shaber’s contribution was not, in fact, part of a corrupt quid pro quo exchange.” App.20a. But it countered that contribution 

limits exist because separating noncorrupt from corrupt contributions is too difficult a task. App.21a-22a. 

 “That is not to say as-applied challenges to FECA’s 

contribution limits are impossible.” App.22a. But the 

majority asserted that the LNC’s challenge with respect to Shaber’s bequest was “based on the same 

factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge 

to [FECA]” earlier. App.23a (internal quotation marks 

omitted). It added that because the LNC’s challenge 

was narrowly tailored to Shaber’s bequest, it could not 

consider whether uncoordinated bequests writ large, of 
18 

which Shaber’s was the example before the court, cannot be limited by FECA. App.24a-25a. 

 2. b. The majority found that FECA’s new limits 

on contributions to national committees should still be 

characterized as contribution rather than expenditure 

limits, notwithstanding their content-based spending 

restrictions. App.29a. 

 The majority further held that the cromnibus 

amendment did not impose content-based restrictions 

on speech at all. The LNC pointed out that it can only 

spend money donated beyond the base limit “to pay for 

a presidential nominating convention but not a midterm convention, or for a sign on its headquarters but 

not a billboard on the street.” App.30a. The cromnibus 

amendment restricts, explicitly, spending from the parties’ accounts. The majority answered that “[r]eceiving 

money facilitates speech, to be sure, but a bank account 

balance becomes speech only when spent for expressive purposes.” App.31a. 

 Nonetheless, the majority next quoted McConnell

and Buckley for the proposition that contribution limits may “impose serious burdens on [recipients’] free 

speech.” Id. (internal quotation marks omitted). But 

because the cromnibus scheme is not Buckley’s example of an impermissible burden, the majority found 

that the First Amendment is unburdened. The LNC’s 

“speech remains unencumbered by FECA.” App.31a-32a. 

 The majority also perceived a conflict between 

McConnell and Reed. It noted that “FECA would be rife 

with content-based restrictions” that would be subject to 
19 

strict scrutiny were Reed’s treatment of content-based 

restrictions applicable to election laws. App.32a. To 

subject “McConnell-approved BCRA” to strict scrutiny 

under Reed would, in the majority’s view, be tantamount to holding that Reed overruled McConnell by 

implication. App.32a-33a. 

 Seeing neither expenditures nor the content of 

speech burdened, the majority assumed that “closely 

drawn” scrutiny governed the LNC’s facial challenge to 

the cromnibus scheme, and upheld it. App.34a. The 

majority viewed the cromnibus amendment as having 

done the LNC a favor, because it raised the overall contribution limit. App.35a. And it was “untroubled” by 

the lack of a “robust record of congressional 

factfinding” underlying the cromnibus amendment, because in its view, Congress “relaxed contribution limits.” 

App.38a. The introduction of content-based spending restrictions was of no concern, because the overall contribution limit grew. 

 3. Judge Griffith dissented as to the spending 

purpose restrictions, which he found to fail closelydrawn scrutiny. 

 “McConnell does not resolve this case.” App.43a. 

“This is a new scheme. McConnell did not address the 

propriety of a regime with these [preferred spending] 

exceptions” to a general contribution limit. App.44a. 

Congress made a new judgment that vast sums of 

money exceeding the base limit are non-corrupting if 

tied to particular spending purposes, and that judgment must be justified under the First Amendment. Id.
20 

Congress’s “self-serving assertions” that “many” expenditures from the cromnibus accounts are not intended 

to influence federal elections (but see presidential nominating conventions) are insufficient. App.45a. “And an 

ambivalent record is not enough to survive closely 

drawn scrutiny.” Id. (citations omitted). 

 Judge Griffith noted that the privileged spending 

purposes—presidential conventions, lawyers, buildings—might implicate corruption concerns as much as 

any other speech. “There can be no serious doubt that 

the nominating conventions of the major parties are 

closely connected to elections. Contributions to their 

staging therefore appear to raise the same corruption 

risks as general contributions, and the record provides 

no reason to think otherwise.” App.46a. Party headquarters are used to “host donors and connect them to 

party leaders and candidates,” and election recounts 

“resolve whether an actual candidate wins or loses a 

particular election.” App.47a. “[W]ithout record support [the majority’s rationalizations] are too speculative to carry a First Amendment burden.” Id. (internal 

quotation marks omitted). 

 4. Judge Katsas, joined by Judge Henderson, 

concurred in the judgment upholding the contentbased spending restrictions, but dissented from the 

judgment rejecting the LNC’s as-applied Shaber bequest challenge. 

 Judge Katsas rejected the FEC’s “radical” request, 

App.56a, to “lower the [scrutiny] bar, at least with respect to bequests.” App.54a. Contribution limits that 
21 

prevent effective advocacy are not the only ones that 

fail closely-drawn scrutiny. “[C]ontribution limits may 

be insufficiently tailored for other reasons . . . [a]nd regardless of any tailoring problems, contribution limits 

are unconstitutional if the asserted government interest is insufficiently important.” App.55a. 

 “In its prior cases on contribution limits, the Supreme Court considered no issues specific to bequests,” 

and the LNC “does not rest its claim on the same factual and legal arguments the Supreme Court expressly 

considered in Buckley and McConnell.” App.61a (internal 

quotation marks omitted). “[T]here are strong reasons to 

think that bequests—in contrast to contributions from 

living donors—do not pose a significant risk of actual 

or apparent quid pro quo corruption.” App.63a. Bequests are often significantly deferred, and “there is no 

easy means for deceased donors or their beneficiaries 

to enforce any corrupt bargains.” Id.

 Indeed, “the FEC points to nothing substantiating 

its concerns” respecting bequests. App.64a. Its concerns are wholly theoretical. “The FEC’s failure of 

proof here is no less dramatic” than that in Citizens 

United v. FEC, 558 U.S. 310, 360 (2010). App.65a. 

 Judge Katsas also found that the First Amendment categorically secures uncoordinated bequests 

from limitation. App.66a-70a. And beyond that, he determined that Shaber’s bequest, in particular, could 

not be limited, as Shaber never informed the LNC of it, 

neither sought nor was offered anything in exchange 
22 

for the bequest, and was only a minor donor with no 

other relationship to the party. App.70a-71a. 

 With respect to FECA’s new contribution limit, 

Judge Katsas agreed with Judge Griffith that the FEC 

had not established “a corruption-based justification 

for the differential treatment of these speech categories.” App.76a. “But I do not think that such proof is 

necessary in this case.” Id. Judge Katsas rejected the 

majority’s contention that the case does not involve 

speech restrictions, but agreed with its assessment 

that Reed is inapplicable to campaign finance restrictions. Id. 

 Judge Katsas was also inclined to agree with 

Judge Griffith that FECA’s new contribution limit is 

underinclusive, in that “money is fungible, the exceptions dwarf the rule, and there is no plausible anticorruption rationale to explain the disparate treatment.” App.79a. But he offered that McConnell 

precluded the claim because it upheld a lower overall 

limit. In his view, lower courts cannot revisit 

McConnell “based on intervening statutes.” App.80a. 

“On this point, any course correction must come from 

the Supreme Court itself.” Id. 

---------------------------------  ---------------------------------

REASONS FOR GRANTING THE PETITION 

 The decision below dilutes the First Amendment’s 

protection of political speech. It affirms the subversion 

of Americans’ expressive legacies, and it upholds a 

statute that segregates and limits the funds of political 
23 

parties according to the content of their speech—a 

stark and serious violation of Americans’ core First 

Amendment rights. It warrants review. 

I. The Questions Presented Raise Recurring 

Issues of Significant and Immediate National 

Importance. 

 1. “[T]he First Amendment has its fullest and 

most urgent application to speech uttered during a 

campaign for political office.” Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) 

(internal quotation marks and citations omitted). And 

at any time, “[t]he independent expression of a political 

party’s views is ‘core’ First Amendment activity no less 

than is the independent expression of individuals, candidates, or other political committees.” Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 616 

(1996) (opinion of Breyer, J.) (citation omitted). 

A political party’s independent expression not 

only reflects its members’ views about the 

philosophical and governmental matters that 

bind them together, it also seeks to convince 

others to join those members in a practical 

democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure. 

Id. at 615-16. 

 How strange that this most important class of 

speech—speech uttered during campaigns, speech uttered by political parties—should hold a second-class 
24 

status when it comes to the First Amendment’s protection from content-based discrimination. 

 The decision below radically departs from the bedrock concept that “above all else, the First Amendment 

means that government has no power to restrict expression because of its message, its ideas, its subject 

matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). It upholds content-based 

limits on the speech of political parties who would 

spend over 10% of their donors’ maximum annual contributions. When parties lack offsetting privileged expenses, these content-based restrictions deny them 

significant potential support. A content-based campaign finance regulation that effectively limits the 

LNC’s donations to $35,500 while allowing its Republican and Democratic competitors to rake in $355,000 

per donor impacts the national political conversation 

in a manner warranting this Court’s urgent attention. 

 This Court should not wait to see what inspiration 

campaign finance regulators draw from this opinion. 

FECA’s cromnibus amendment might have only been a 

ruse to allow the two incumbent parties to raise vast 

new sums of essentially unrestricted cash. But now 

that the D.C. Circuit has blessed content-based spending restrictions on speech, look out. Congress, and legislatures around the country, will assuredly develop 

new views as to which speech purposes should, as a 

matter of law, draw more—and less—support. The time 

to examine this phenomenon is now. 
25 

 2. The FEC frequently interferes with bequests. 

“[T]he district court found that since 1978 donors have 

contributed more than $3.7 million in bequeathed 

funds, not infrequently in five- and six-figure amounts. 

And that figure is likely underreported.” App.19a (citations omitted). It bears recalling the district court’s 

earlier finding that “many bequests of amounts far exceeding FECA’s annual contribution limit . . . have 

been left for national party committees in recent 

years.” LNC I, 930 F. Supp. 2d at 184 (CF78). Immediately upon the D.C. Circuit’s disposition of the Burrington dispute as incapable of repetition, Shaber’s death 

proved the court wrong. The record also reflects a third 

LNC bequest exceeding the base limit thus far. 

App.194a-96a (CF170-78). 

 There will be more bequests, left to all parties. 

Every bequest restricted by the FEC significantly 

interferes with American legal tradition and its respectful efforts to honor the wishes of the deceased. 

Considering the serious First Amendment issues that 

the FEC’s practice implicates, this Court’s intervention 

is needed. 
26 

II. The D.C. Circuit’s Decision Is Wrong. 

A. Limiting Shaber’s Bequest Violates the 

First Amendment. 

 1. As Judge Katsas demonstrated, the outcome 

of the LNC’s bequest claim does not turn on whether 

the standard of review is strict or “closely drawn.” But 

the LNC is nonetheless constrained to note that courts 

should never merely assume the standard of review. If 

a court does not know the answer to an important legal 

question, it should exercise judgment, not guess. The 

majority acknowledged that this Court’s decisions have 

“left open the [standard of review] question” respecting 

bequests. App.15a. But rather than reason an answer, 

it “assume[d] without deciding” that “closely drawn” 

scrutiny governs the bequest issue. App.15a-16a. 

 This assumption was wrong. Underlying this 

Court’s more relaxed treatment of contribution limits 

is the notion that such laws “entail[ ] only a marginal 

restriction upon the contributor’s ability to engage in 

free communication.” Buckley, 424 U.S. at 20-21. Contribution limits “limit one important means of associating with a candidate or committee, but leave the 

contributor free” to associate in other ways. Id. at 22. 

Normally, “contribution limits may bear more heavily 

on the associational right than on freedom to speak,” 

McConnell, 540 U.S. at 135 (internal quotation marks 

omitted). But they do not implicate associational rights 

at all when applied against testamentary bequests, because the dead do not engage in political association. 

“[I]n the literal sense, the FECA restriction (as enforced by the FEC) on [testamentary bequests] is not a 
27 

contribution limit involving significant interference 

with associational rights [that] must be closely drawn 

to serve a sufficiently important interest.” LNC I, 930 

F. Supp. 2d at 169. 

 The majority acknowledged that the LNC’s asapplied challenge implicates only “the speech-recipient 

box.” App.13a. The associational predicate for reducing 

the standard of review to “closely drawn” is thus absent. 

 2. The majority’s denial of any difference between the corruption abilities of deceased and living 

donors denies the known distinction between life and 

death itself. Death disrupts all individual capabilities 

in this world—including the ability to corrupt a political party. 

 In the majority’s view, “political favors now for 

the promise of money later” is a form of corruption, 

App.17a-18a; a corrupt donor could promise to remember a party in his will. But so what? As the FEC 

admitted, “[n]ational committees of political parties, 

candidates for federal office, and federal office holders, 

may grant preferential treatment and access to potential donors in the unilateral hope that such preferential treatment and access would be remembered with 

a donation.” LNC I, 930 F. Supp. 2d at 177 (CF46). It 

can hardly be illegal for a party to hope that it will be 

remembered by those who appreciate its efforts. “Ingratiation and access, in any event, are not corruption.” 

Citizens United, 558 U.S. at 360. 
28 

 The dead cannot perform the “winks and nods” of 

quid pro quo policing. App.63a. As Judge Katsas observed, “a corrupt donor [who] seeks political favors 

during his lifetime, when the bequest is nothing more 

than a revocable promise,” can easily renege. Id. While 

a corrupt donor’s “surviving friends and family remain 

all too capable of accepting political favors that their 

deceased benefactor may have pre-arranged for their 

benefit,” App.18a, that donor “will have no way to ensure delivery after death makes the bequest irrevocable and removes him from the picture.” App.63a. “Once 

a political party receives a testamentary bequest, neither it, nor its candidates, risk offending the deceased 

donors.” LNC I, 930 F. Supp. 2d at 177 (CF48). 

 Any theoretical corrupt bequest tests the limit of 

cosmic possibility; a coordinated deathbed bequest 

closely timed to some political favor, perhaps? “[T]he 

FEC does not point to even a single quid pro quo exchange—at any time in American history—allegedly 

effected through a bequest. Nor do the careful, extensive findings made by the district courts in the LNC 

cases.” App.65a (citations omitted). And it “seems almost fantastic” that a testator would donate to competing political parties, as the living do to secure access. 

App.66a. 

 The majority’s suggestion that the LNC could not 

establish an as-applied violation as to Shaber’s bequest without seeking broader relief fares no better. 

The D.C. Circuit’s summary affirmance in LNC I confirmed that corrupting bequests exist as legal fiction, if 
29 

not in the real world. But that decision did not make 

the dead and the living equals in the context of as-applied FECA challenges, and the LNC had no need to 

tilt against that windmill. “[U]pholding the law 

against a broad-based challenge does not foreclose a 

litigant’s success in a narrower one.” Doe v. Reed, 561 

U.S. 186, 201 (2010) (citations omitted); Wis. Right to 

Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam). Indeed, the very opinion that LNC I affirmed, rejecting a 

categorical challenge to FECA’s application against bequests, also certified the LNC’s as-applied challenge 

respecting Burrington’s bequest. Had the LNC sought 

relief as to other bequests based only upon the factual 

record made as to Shaber’s gift, the majority would 

have doubtless—and properly—criticized it for doing 

so. 

 3. The majority’s claim that prophylactic contribution limits are too difficult to subject to as-applied 

challenges because donor-donee relationships are unknowable, App.21-22a, is factually and legally deficient. Review of a party’s relationship with a dead 

person is wholly retrospective. The majority did not 

need to rely on its generosity of spirit in “making the 

unremarkable assumption that Shaber’s contribution 

was not, in fact, part of a corrupt quid pro quo exchange.” App.20a. It had a record, built through adversarial and third-party discovery. And there is no reason 

why the FEC cannot apply lessons learned from Shaber’s example. It has previously issued guidance tracking this Court’s upholding of an as-applied challenge. 

See 72 Fed. Reg. 72899, 72899 (Dec. 26, 2007) (“The 
30 

Commission is revising 11 CFR parts 104 and 114 to 

implement the recent U.S. Supreme Court decision in 

FEC v. Wis[.] Right to Life, Inc., [551 U.S. 449 (2007)]”). 

 4. The majority’s claim that the LNC raised only 

the factual and legal arguments previously rejected in 

upholding the facial validity of contribution limits, 

App.23a, defies the record. Had the LNC done that, the 

district court would not have certified this case, or the 

previous one concerning Burrington’s bequest. Indeed, 

the majority began by acknowledging that Shaber’s 

condition makes this a case of first impression. “Because the typical donor is a living human being capable 

of both speaking and associating, neither the Supreme 

Court nor we have had occasion to untangle a recipient’s rights from its donors’.” App.15a. 

 The merits of the LNC’s Shaber-bequest claim are 

not close. The FEC’s prospects for meeting its heightened scrutiny burden—“closely drawn,” “exacting,” or 

something in between—ended when the district court 

found that “[t]he FEC is unaware at this time of any 

quid pro quo arrangement related to Mr. Shaber’s bequest to the LNC.” App.182a (CF125). When “there is 

no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo’ . . . we must conclude that 

the government has no anti-corruption interest in 

limiting contributions. . . .” SpeechNow.org v. FEC, 599 

F.3d 686, 694-95 (D.C. Cir. 2010) (en banc). “Even a 

modest burden on one’s ability to raise funds may be 

undue if such burden serves no corruption concern 

whatsoever.” App.98a n.9. 
31 

 Since “something outweighs nothing every time,” 

SpeechNow, 599 F.3d at 695 (internal quotation marks 

and punctuation omitted), the “something” of the LNC’s 

substantial First Amendment interest in accepting 

Shaber’s contribution outweighs the FEC’s nothing. 

B. FECA’s Content-Based Spending Restrictions Are Unconstitutional. 

 1. The majority’s argument that FECA’s contentbased spending restrictions do not implicate speech 

contradicts this Court’s precedent and strain credulity.

Buckley’s holding that contribution limits infringe the 

recipient’s speech rights when they are set too low, 424 

U.S. at 21, supplies an important clue: contribution 

limits implicate speech. 

 Nobody should deny that a $0.00 contribution 

limit would implicate the recipient’s First Amendment 

speech rights because it only hurts a “bank account 

balance,” and without money, nothing can “become[ ] 

speech.” App.31a. Laws limiting a political party’s receipt of printing presses, broadcasting equipment, or 

internet servers would doubtless be viewed as implicating speech rights, even if nothing has “become 

speech” owing to these implements because their contribution has been barred. 

 Likewise, telling a political party that it can accept 

checks exceeding $300,000, so long as it does not spend 

a cent on pamphlets, or radio ads, or anything else that 

is not congressionally-approved, most certainly implicates First Amendment speech. And it implicates the 
32 

First Amendment by imposing content-based restrictions on speech. 

 2. The majority was reluctant to acknowledge 

that the cromnibus amendment created content-based 

speech restrictions, because doing so would raise questions about “McConnell-approved BCRA,” App.32a, referring to other FECA amendments that accompanied 

the previous soft money ban. The majority’s odd word 

usage, “McConnell-approved BCRA,” elides an inconvenient fact. McConnell approved BCRA, so in that 

sense it can fairly be described as “McConnellapproved.” But while McConnell may have upheld 

content-based provisions, it did not uphold them 

against content-based challenges of the sort made 

here. “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.” Cooper Indus., Inc. 

v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (internal 

quotation marks omitted). 

 The FEC had advanced a version of this argument before the district court with respect to Section 

30125(b)(1), which bars state, district, and local political committees from spending funds on federal election 

activity. McConnell upheld the provision, but the district court was unimpressed. “[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, 
33 

McConnell cannot be read to foreclose the LNC’s 

claim.” App.117a-18a (citations omitted). 

 3. The majority found that under McConnell, the 

LNC’s speech was not subject to content-based restrictions. App.32a. But under Reed, “facial distinctions . . . defining regulated speech by its function or 

purpose . . . are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to 

strict scrutiny.” Reed, 135 S. Ct. at 2227. So are laws 

that “cannot be justified without reference to the content of the regulated speech.” Id. (internal quotation 

marks omitted). 

 Rather than resist the fact that Reed perfectly describes the cromnibus scheme, the court asserted that 

Reed was in conflict with McConnell, a case having direct application, as the latter had upheld contribution 

limits. “Unless and until the [Supreme] Court expressly abrogates McConnell,” the D.C. Circuit will not 

apply strict scrutiny to content-based restrictions contained in contribution limits. App.33a. 

 This Court should accept that challenge. It should 

not have become necessary, as Reed contains no “campaign finance exception” and McConnell did not address 

a content-based scheme of the type at issue here. As 

the district court acknowledged, the cromnibus scheme 

represents a new breed of restriction, “neither a pure 

contribution limit nor a pure expenditure limit, but 

contain[ing] elements of both.” App.111a. Its contentbased features mean that “the appropriate framework 

for review is that governing content-based restrictions 
34 

on speech, requiring narrow tailoring to serve a compelling state interest, rather than the contribution 

limit framework.” App.113a. There is no logical reason, 

and the court of appeals offered none, to reduce the 

standard of review in content-based discrimination 

cases where political speech is concerned. 

 4. The majority offered that as long as the government deigns to allow more speech, it can restrict 

the speech’s content as it wishes. How could the LNC 

complain about being “given” more speech? 

 Alas, free speech is a right, not a governmentdispensed favor. And to justify restrictions on this 

right, the government requires actual evidence—even 

under “closely drawn” scrutiny. As Judge Griffith 

demonstrated, the record simply lacks any evidence 

carrying the FEC’s burden on this point. 

 Worse still, there is no unraveling the FEC’s 

soup of conflicting conjecture, supposition, and rationalization. The FEC claims that donations tied to 

individual candidates and officeholders are more potentially corrupting, but two of FECA’s three favored 

speech categories—presidential nominating conventions and election contests—fall into this class. Congress “could” have thought this and Congress “may” 

have thought that, but the legislative history confirms 

that no one thought about it much at all, except as a 

means to enable the two incumbent parties to collect 

more money. “[W]e have never accepted mere conjecture as adequate to carry a First Amendment burden,” 

McCutcheon v. FEC, 572 U.S. 185, 210 (2014) (internal 
35 

quotation marks omitted), but conjecture, all of it internally inconsistent, is all that the FEC has offered. 

 And so the rationale for the Nation’s basic federal 

contribution limit for political parties is either valid, or 

not, on a case-by-case basis, according to at least eight 

different factors—including the identity of donor and 

receiver and what each could use from the other. 

App.145a-46a (CF43). This is quite a distance from this 

Court’s understanding that “large soft-money contributions to national parties are likely to create actual 

or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately 

used.” McConnell, 540 U.S. at 155 (emphasis added). 

When do these content-based restrictions on speech go 

too far? The FEC knows it when it sees it. If the goal of 

campaign finance regulation is to increase the public’s 

confidence in our electoral system, the record here only 

casts doubt on that enterprise. 

III. The Questions Presented Need Not Percolate Further in the Lower Courts, Nor Are 

They Likely To Do So. 

 The various opinions below, including “the careful, 

extensive findings made by the district courts in the 

LNC cases,” App.65a, have thoroughly vetted the questions, providing this Court a sufficient platform for 

decision. The FEC has thrown every conceivable jurisdictional theory (and a few others) at this case. 

Eleven of the eleven judges who have examined these 
36 

theories have come away satisfied that jurisdiction 

exists. 

 But notwithstanding the decision’s broad impact 

on our country’s political conversation, this Court 

should not expect other parties to line up challenges to 

the FEC’s restriction of bequests or FECA’s new content-based spending limits. A living donor’s challenge 

to the FEC’s bequest practice would likely be considered unripe. No estate has ever dedicated its resources 

to bringing such an action through to this Court. Any 

such effort would face the claim that the deceased’s 

speech rights did not survive death. App.12a-13a; LNC 

I, 930 F. Supp. 2d at 169-70. The incumbent parties 

may be less interested in immediate access to sizeable 

bequests and, unlike third parties, benefit from the 

content-based restrictions that they effectively evade. 

They have no incentive to support the litigation of 

these issues, and every incentive to leave in place their 

officeholders’ handiwork. 

 Most problematic, cementing the decision below 

would fuel the FEC’s arguments that these disputes 

should never be certified again as doing so would “involve settled principles of law.” Kachaturian v. FEC, 

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

(citation omitted). “Once the statute has been thoroughly reviewed by the Court, questions arising under 

‘blessed’ provisions understandably should meet a higher 

threshold.” Goland v. United States, 903 F.2d 1247, 

1257 (9th Cir. 1990). 
37 

 Section 30110 was designed for speed and certainty. 

Inherent in that structure is a bias against repeatedly 

litigating the same issue. While FECA decisions can be 

revisited, Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 

2016), a district court is less likely to certify a question 

already addressed by the en banc court, and a panel 

would be even less likely to reverse denial of a settled 

matter’s certification. Even were this Court to reverse 

such a decision, that would call for quite the effort by 

a plaintiff only to start on the merits at square one. 

Section 30110 is meant to generate high-level review 

in important cases, not the percolation of circuit splits. 

The significant questions presented could not easily, if 

ever, return here. Accordingly, this petition should at 

least be held pending the outcome of Thompson v. Hebdon, No. 19-122 (petition for certiorari filed July 22, 

2019), which calls upon this Court to clarify the standard for reviewing campaign finance restrictions under 

the First Amendment. Any guidance this Court might 

offer in Thompson would require re-examination of the 

decision reached in this case. 

---------------------------------  ---------------------------------
38 

CONCLUSION 

 The petition for a writ of certiorari should be 

granted. 

Respectfully submitted. 

ALAN GURA

Counsel of Record 

GURA PLLC 

916 Prince Street, Suite 107 

Alexandria, VA 22314 

703.835.9085 

alan@gurapllc.com 

August 19, 2019