ORAL ARGUMENT SCHEDULED NOVEMBER 30, 2018

No. 18-5227

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LIBERTARIAN NATIONAL COMMITTEE,INC.,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

On Certification of Constitutional Questions by the 

United States District Court for the District of Columbia, 

The Hon. Beryl A. Howell, Chief District Judge

Case No. 1:16-cv-121-BAH

BRIEF OF AMICI CURIAE CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

(202) 682-0240

Paul M. Smith

Tara Malloy

Megan P. McAllen 

Molly Danahy*

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

* Licensed to practice in New York 

only; application for admission to 

D.C. Bar pending; supervision by Tara 

Malloy, a member of the D.C. bar.

Counsel for Amici Curiae

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

(A) Parties and Amici. Libertarian National Committee, Inc. (“LNC”) was

the plaintiff in the district court and is the plaintiff in this en banc proceeding 

pursuant to 52 U.S.C. § 30110. The Federal Election Commission (“FEC”) was the 

defendant in the district court and is the defendant in this Court. 

No person filed as amicus curiae before the district court. The Institute for 

Free Speech and the Goldwater Institute have filed as amici in support of plaintiff 

before this Court.

(B) Rulings Under Review. The United States District Court for the District 

of Columbia (Howell, J.) (June 29, 2018) certified the three constitutional questions

at issue to this Court sitting en banc under 52 U.S.C. § 30110.

(C) Related Cases. The DistrictCourt previously declined to certify the LNC’s

challenge to the application of the annual contribution limits, 52 U.S.C. 

§ 30116(a)(1)(B), to testamentary bequests, but certified LNC’s narrower as-applied

constitutional challenge to the imposition of contribution limits against a particular

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

(Wilkins, J.) (“LNC I”), reconsideration denied, 950 F. Supp. 2d 58 (D.D.C. 2013)

(“LNC II”). This Court summarily affirmed. Libertarian Nat’l Comm., Inc. v. FEC,

No. 13-5094, 2014 WL 590973, (D.C. Cir. Feb. 7, 2014) (per curiam). It later held

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that the certified as-applied challenge had become moot. Libertarian Nat’l Comm.,

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

/s/ Tara Malloy

Tara Malloy

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

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CORPORATE DISCLOSURE STATEMENT OF AMICI CURIAE

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae Campaign 

Legal Center and Democracy 21 make the following disclosure regarding their 

corporate status:

Campaign Legal Center (“CLC”) is a nonprofit, nonpartisan corporation 

working in the areas of campaign finance reform, voting rights, and media law. CLC

has no parent corporation and no publicly held corporation has any form of 

ownership interest in CLC.

Democracy 21 is a nonprofit, nonpartisan corporation dedicated to making 

democracy work for all Americans, including promoting campaign finance reform 

and other political reforms to accomplish this goal. Democracy 21 has no parent 

corporation and no publicly held corporation has any form of ownership interest in 

Democracy 21.

/s/ Tara Malloy

Tara Malloy

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES....... ii

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

STATEMENT OF INTEREST...............................................................................1

SUMMARY OF ARGUMENT...............................................................................1

ARGUMENT............................................................................................................6

I. The LNC’s As-Applied Challenge to the Application of the Federal 

Contribution Limits to the Shaber Bequest Fails.......................................6

II. Increasing the Contribution Limits for Segregated Accounts Expands, 

Rather Than Burdens, the LNC’s First Amendment Activities...............14

A. The two-tier contribution limit regime serves valid 

anticorruption interests while enabling candidates and parties to 

amass sufficient resources for effective campaign advocacy ........14

B. The special account limits are not content-based ..........................18

C. The special purpose restrictions do not transform the 

contribution limits into expenditure limits.....................................22

III. The LNC Has No Basis for the Extraordinary Relief It Requests ...........23

CONCLUSION.......................................................................................................26

CERTIFICATE OF COMPLIANCE ..................................................................28

CERTIFICATE OF SERVICE ............................................................................29

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TABLE OF AUTHORITIES

*Authorities upon which the amici principally rely are marked with an asterisk.

Cases:

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).......... 5, 8, 12, 14, 16, 17, 21, 23

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981).........................................................17

Citizens United v. FEC, 558 U.S. 310 (2010)..................................................7, 9, 12

Davis v. FEC, 554 U.S. 724 (2008).........................................................4, 14, 15, 17

FEC v. Beaumont, 539 U.S. 146 (2003)............................................................17, 21

FEC v. Nat’l Conservative PAC, 470 U.S. 480 (1985) ...........................................17

FCC v. League of Women Voters, 468 U.S. 364 (1984)..........................................16

Frost v. Corp. Comm’n of Okla., 278 U.S. 515 (1929) ...........................................26

Ill. Liberty PAC v. Madigan, No. 16-3585, 2018 WL 4354424 (7th Cir. Sept. 

13, 2018) .............................................................................................................15

LNC. v. FEC, 930 F. Supp. 2d 154 (2013) (“LNC I”) ...........................................3, 9

*McConnell v. FEC, 540 U.S. 93 (2003)........ 1, 2, 3, 5, 8, 12, 15, 17, 19, 20, 21, 22

McCutcheon v. FEC, 572 U.S. 185 (2014)..........................................................1, 21

Murphy v. NCAA, 138 S. Ct. 1461 (2018)...............................................................24

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)......................................17, 21

Randall v. Sorrell, 548 U.S. 230 (2006) (plurality opinion)..............................17, 21

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.) (three-judge 

court), aff’d, 561 U.S. 1040 (2010) .............................................................13, 24

Republican Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016) (threejudge court), aff’d, 137 S. Ct. 2178 (2017)...................................................19, 23

SpeechNow.org v. FEC, 567 F. Supp. 2d 70 (D.D.C. 2008)...................................12

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ................................... 11-12

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W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991) .........................................25

Federal Statutes:

52 U.S.C. § 30101(8)(A)(i)......................................................................................19

52 U.S.C. § 30101(9)(A)..........................................................................................19

52 U.S.C. § 30101(20)(A)(i)-(iv).............................................................................19

52 U.S.C. § 30116(a)(1)(B) .................................................................................1, 24

52 U.S.C. § 30116(a)(9).......................................................................................4, 15

52 U.S.C. § 30125(b)(1) ..........................................................................................19

FECA Amendments of 1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 475

(1976) (codified as amended at 52 U.S.C. § 30116(a)(1)(B))............................24

Miscellaneous Resources:

160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014)....................................................25

Answering Brief of Appellees, Thompson v. Hebdon, No. 17-35019 (9th Cir. 

argued June 11, 2018)..............................................................................................16

FEC Advisory Op. 2015-05 (Shaber) ........................................................................2

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GLOSSARY OF ABBREVIATIONS

BCRA Bipartisan Campaign Reform Act

FEC Federal Election Commission

FECA Federal Election Campaign Act

JA Joint Appendix

LNC Libertarian National Committee, Inc.

Cromnibus Consolidated and Further Continuing 

Appropriations Act, 2015, Pub. L. No. 

113-235, 128 Stat. 2130 (2014) 

(codified at 52 U.S.C. § 30116(a)(d))

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STATEMENT OF INTEREST1

Amici curiae Campaign Legal Center and Democracy 21 are organizations 

dedicated to promoting sound campaign finance reforms and defending the 

important democratic principles they advance. Amici regularly litigate the 

constitutionality of campaign finance laws, and have participated in several of the 

Supreme Court cases underlying the claims herein, including McConnell v. FEC, 

540 U.S. 93 (2003), and McCutcheon v. FEC, 572 U.S. 185 (2014). 

SUMMARY OF ARGUMENT

The problem with the case brought by the Libertarian National Committee

(“LNC”) is that it challenges provisions and applications of the Federal Election 

Campaign Act (“FECA”) that have not produced the injury it alleges. 

The LNC alleges that it wishes to make greater expenditures for “expressive” 

activities and to secure access to the ballot for its candidates, LNC Br. at 18, and that 

it wants to do so by accepting contributions in amounts exceeding FECA’s “base” 

limits on contributions to national party committees, 52 U.S.C. § 30116(a)(1)(B).

But it declines to challenge the constitutionality of the base limits directly—

presumably because it knows that these limits, along with the related “soft money” 

restrictions added by the Bipartisan Campaign Reform Act (“BCRA”), were upheld 

 

1 No party or party’s counsel authored this brief in whole or part, and no person, 

other than amici, contributed money to fund its preparation or submission.

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in McConnell, 540 U.S. at 154, and reaffirmed in Republican Nat’l Committee v. 

FEC, 698 F. Supp. 2d 150 (D.D.C.) (three-judge court), aff’d, 561 U.S. 1040 (2010)

(“RNC”). This puts the LNC in the untenable position of turning its fire to provisions

and applications of FECA that, if anything, relax the base contribution limits and 

result in more funds being available for the LNC’s desired expenditures.

First, the LNC challenges the application of the annual base limits to a 

$235,575 bequest it received from William Shaber in 2015. The FEC has interpreted 

FECA to allow political parties to receive bequests exceeding the federal base limits 

provided that any excess funds are placed in escrow and annually withdrawn in 

amounts equaling the applicable base contribution limits. See FEC Advisory Op. 

2015-05 (Shaber). In this sense, a bequest donor is advantaged as compared to a

living donor who, by contrast, cannot give a party an over-the-limit, lump-sum 

contribution to be placed in escrow. But according to the LNC, the FEC’s relatively 

permissive approach to testamentary contributions nevertheless violates the LNC’s

First Amendment rights because—at least with respect to the Shaber bequest—it 

maintains that the escrow approach is not “closely drawn” to the government’s 

interest in combatting corruption and its appearance. The LNC is thus complaining 

that the advantage it has been given to receive enormous testamentary contributions 

is not advantageous enough. Amici believe the better reading of FECA would permit 

a national party committee to accept a bequest only in the amount permitted by the 

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relevant contribution limits in the year the bequest was made; after all, the donor’s

First Amendment rights were extinguished upon his death, as the LNC 

acknowledges, LNC Br. at 34, and the corruptive potential of huge amounts of 

dedicated contributions, even in escrow, ought to be self-evident. The LNC’s real 

quarrel is thus with the base contribution limits.

Moreover, the LNC’s as-applied challenge with respect to the Shaber bequest 

is improperly framed. It does not proceed on the basis of a legal theory, challenging

categorically the application of the annual contribution limits to bequests on grounds 

that the governmental interest in regulating testamentary contributions is too 

attenuated or the record insufficient. The LNC did attempt to make this argument in 

LNC. v. FEC, 930 F. Supp. 2d 154 (2013) (“LNC I”), but it believes it was rejected

there and it has not renewed the argument here. LNC Br. at 35. Instead, the LNC 

attempts to demonstrate that the Shaber bequest, as a matter of its distinct facts, does 

not raise the “valid anticorruption concerns” that the “LNC concede[d]” bequests 

can raise. Id. at 166. 

But contribution limits are prophylactic; they are meant to apply to all

contributions to “remove the temptation” of corruption before it arises, McConnell, 

540 U.S. at 153, not only to those contributions that have already given rise to quid 

pro quo arrangements or are likely do so imminently. If the government has shown 

that a contribution limit is justified by its compelling interest in preventing

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corruption or its appearance, it need not demonstrate, as a matter of fact, that a

particular contribution has led or will lead to quid pro quo corruption as a 

prerequisite for the limits’ application. Otherwise, the whole regime of contribution 

limits would be impossible to administer since every contribution would have to be 

separately litigated to determine if it poses a danger of corruption on its distinct facts.

Similarly misdirected is the LNC’s challenge to the 2014 “Cromnibus”

legislation that tripled the limits for contributions to political parties made to

segregated accounts for three enumerated purposes. 52 U.S.C. § 30116(a)(9)

(allowing segregated accounts to cover expenses for presidential nominating 

conventions, party headquarters buildings, and election-related litigation). 

Typically, courts do not hold that the relaxation of a facially constitutional 

contribution limit gives rise to any First Amendment injury—absent an invidious or 

discriminatory purpose. See Davis v. FEC, 554 U.S. 724, 737 (2008) (finding “no 

constitutional basis for attacking contribution limits on the ground that they are too 

high”). This increase in limits allows the LNC to raise more money, not less, for the 

purposes set forth in section 30116(a)(9). And because money is fungible, this 

increase allows the LNC to reallocate any funds originally designated for convention 

expenses or building costs to the expressive expenditures it claims to prioritize.

Indeed, as the FEC argues persuasively, the LNC likely lacks standing to challenge 

the segregated account limits as applied to the Shaber bequest, because the party had 

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so many “special purpose” expenses in the relevant years that it could have accepted 

the entire $235,575 bequest by January 1, 2016 under the segregated account limits

(and use any money thereby freed up for expressive purposes). FEC Mot. to Dismiss 

at 8.

To distract from the complete absence of injury shown, the LNC lists a series 

of purported constitutional defects that it claims nevertheless compel facial 

invalidation of the segregated account limits. It argues that these limits represent a 

content-based regulation of speech warranting strict scrutiny review. But the 

segregated account limits do not prescribe any “content” for the LNC speech—at 

least no more than do many other provisions of federal campaign finance law. As a 

second argument for strict scrutiny, the LNC attempts to recast the segregated 

account limits as expenditure restrictions, even though they, like all other 

contribution limits, do not “in any way limit[] the total amount of money parties can 

spend,” McConnell, 540 U.S. at 139, but “merely” require parties “to raise funds 

from a greater number of persons.” Id. at 136 (citing Buckley v. Valeo, 424 U.S. 1, 

21-22 (1976)).

Despite failing to articulate either a cognizable injury or a valid as-applied or 

facial claim, the LNC still demands the broadest of all possible relief. First, it 

requests that the Court strike down the base party contribution limits enacted in 1976 

and allow the national party committees to accept unlimited contributions for the 

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first time in 40 years. In the alternative, it requests that the Court rewrite the 

“Cromnibus” legislation to keep the trebled limits the LNC prefers while excising 

the special-purpose regime upon which such limits were founded. The extraordinary 

reach of the LNC’s requested relief lays bare its true agenda. While it purports to 

challenge only the application of the annual limits to a single bequest (Mr. Shaber’s),

and the higher segregated account limits only insofar as they “restrict the purposes” 

of its spending, the relief it seeks would eviscerate FECA’s base limits on party 

contributions. This Court should not venture down the convoluted legal path the 

LNC attempts to draw to reach this unwarranted result.

ARGUMENT

I. The LNC’s As-Applied Challenge to the Application of the Federal 

Contribution Limits to the Shaber Bequest Fails

The asserted basis for the LNC’s as-applied challenge to the contribution 

limits is misconceived. 

According to the LNC, the FEC has failed to show, as a matter of fact, that 

the Shaber bequest has led or will lead to “any quid pro quo arrangement,” LNC Br. 

at 38, and consequently, has not justified application of FECA’s annual contribution 

limits to the bequest. The LNC also attempts to make the positive case that the 

Shaber bequest has not and will not give rise to quid pro quo corruption, highlighting 

that Mr. Shaber made only a handful of contributions to the LNC while he was alive, 

id. at 37, that neither Shaber nor his family or associates had any other contacts with 

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the LNC in the past, id. at 38, and that, obviously, he would have no further contact 

with the LNC after his death, id. at 37.

This turns the doctrine on its head. Amici are aware of no court that has found 

that a litigant brings a valid as-applied claim to a facially constitutional contribution 

limit on the ground that his or her particular contribution, as a matter of fact, has not 

led to a quid pro quo arrangement and is unlikely to do so in the future. Following 

the logic of the LNC’s argument, the party contribution limit at section 

30116(a)(1)(B) is unconstitutional as applied to any would-be donor who can show

she has contributed only minimally to her chosen political party in the past, has few 

personal or family connections to the party, and will have no contact with the party 

following the contribution. Such a test would likely exempt the vast majority of 

donors in America from these—or any—contribution limits (as well as generate a 

lawsuit by every such donor who wishes to make an over-the-limit contribution). 

Contribution limits are designed to be “preventative,” Citizens United v. FEC, 

558 U.S. 310, 357 (2010), and have been repeatedly upheld on that basis by the 

Supreme Court. Their validity does not rest on a factual showing that all or even 

most contributions will give rise to corruption; on the contrary, as the Court has 

recognized, “few if any contributions to candidates will involve quid pro quo

arrangements.” Id. But the Court has nevertheless repeatedly accepted Congress’ 

determination, based on “common sense” and the “ample record” compiled over 

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time, that contribution limits are a necessary prophylactic to prevent corruption and 

its appearance. McConnell, 540 U.S. at 145. “The best means of prevention is to 

identify and to remove the temptation.” Id. at 153.

Indeed, in Buckley, the Supreme Court explicitly rejected the LNC’s 

suggestion that contribution limits are only constitutional insofar as they applied to 

contributions with demonstrated corruptive intent or effect: 

Appellants’ first overbreadth challenge to the contribution ceilings rests 

on the proposition that most large contributors do not seek improper 

influence . . . . Although the truth of that proposition may be assumed, 

it does not undercut the validity of the $1,000 contribution limitation. 

Not only is it difficult to isolate suspect contributions, but, more 

importantly, Congress was justified in concluding that the interest in 

safeguarding against the appearance of impropriety requires that the 

opportunity for abuse inherent in the process of raising large monetary 

contributions be eliminated.

424 U.S. at 29-30. In other words, the federal contribution limits were not overbroad 

even though “most” of the contributions they cover in reality are not corruptive in 

intent or effect. Id. at 29. The Court thus upheld the limits not based on a factual 

showing that they would regulate only demonstrably “suspect” contributions, but 

rather based on a legal conclusion that the government had demonstrated a 

sufficiently important interest in eliminating the risk of corruption and its 

appearance, which is “inherent in the process of raising large monetary 

contributions.” Id. at 30. It follows that simply alleging that a particular contribution 

is not corruptive, as a factual matter, is not sufficient to prevail in an as-applied 

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challenge to the limits: Buckley held that the contribution limits were constitutional 

even as they applied to such contributions, id., and Citizens United accepted the 

possibility that “few if any” contributions actually lead to quid pro quo

arrangements. 558 U.S. at 357.

Moreover, the LNC is seeking an as-applied exemption from facially

constitutional contribution limits whose application to bequests has already been 

deemed reasonable in light of “valid anti-corruption concerns.” LNC I, 930 

F. Supp. 2d at 166. The LNC thus does not seek an as-applied exemption in 

circumstances where the government’s anticorruption interest has not already been 

established. 

In an earlier iteration of this case—in which the LNC made substantially the 

same arguments in the context of a different bequest—Judge Wilkins found that the 

FEC’s account of the corruptive potential of bequests was “sensible and persuasive”: 

if the federal limits were not applied to bequests, “a political committee could feel 

pressure to continue to ensure that a (potential) donor is happy with the committee’s 

actions lest they revoke the bequest” and the “bequest [could] also help friends or 

family of the deceased have access to political officeholders and candidates.” Id. at 

166, 167. He also noted that the FEC had proffered evidence to substantiate these 

concerns even though compiling a such record was undoubtedly impeded by the fact 

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that “the FECA contribution limit has applied to [bequests] for the last 35 years.” Id. 

at 167. 

At the same time, Judge Wilkins acknowledged that the LNC might be able 

to show, as a matter of fact, that the specific bequest from Raymond Burrington at 

issue there did not “implicate any valid anti-corruption concerns.” Id. at 170. Judge 

Howell, in her decision certifying the questions underlying the instant proceedings, 

similarly found that the LNC raised “non-frivolous arguments” that Mr. Shaber’s 

bequest does not in fact “raise corruption concerns.” JA 165-66. Amici submit that 

this type of as-applied challenge does not comport with the relevant doctrine or the 

logic of Buckley. To be sure, Judge Wilkins and Judge Howell did not actually 

endorse this theory; each merely certified it as a non-frivolous question for this 

Court’s en banc review. This Court should reject the LNC’s proposal to adjudicate 

the corruptive nature of particular contributions on a case-by-case basis, dismiss 

Question 1, and take this opportunity to clarify the jurisprudence.

Amici do not suggest that an as-applied challenge to the application of 

contribution limits to bequests can never be mounted. But the LNC cannot bring 

such a challenge by reciting specific facts about the Shaber bequest and then arguing 

that it is non-corruptive. That kind of challenge has already been rejected by the 

Supreme Court in upholding the prophylactic nature of contribution limits on a facial 

basis. Cf. RNC, 698 F. Supp. 2d at 157 (“[A] plaintiff cannot successfully bring an 

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as-applied challenge to a statutory provision based on the same factual and legal 

arguments the Supreme Court expressly considered when rejecting a facial challenge 

to that provision.”). There is no principled way to distinguish the LNC’s legal 

arguments from those expressly considered and rejected in Buckley and 

McConnell—and the only relevant factual distinction is that the prospective 

contributor in this case is dead, and has no First Amendment right to speak or to 

associate with the LNC from beyond the grave.

Thus, if the LNC is going to bring an as-applied challenge, it must argue 

something more than merely asserting that the Shaber bequest does not pose any 

particular threat of corruption or the appearance of corruption.2It must show that 

even though the contribution limits at issue are facially valid, they cannot be applied 

to a category of contributions with certain common characteristics that distinguish 

them from the legal rationale used to uphold the facial validity of the limits. 

This is how as-applied challenges have been permitted to proceed against 

facially constitutional contribution limits in past cases. This point is best illustrated 

 

2 Even here, the LNC’s case for why the Shaber bequest is uniquely non-corruptive 

is tenuous. It bases this conclusion on the fact that Shaber had made minimal 

contributions to the LNC prior to his bequest, and that neither Shaber nor his family 

had any past relationship with the LNC. But this says nothing about his family’s 

relationship with the LNC in the future. It may be true that LNC officials had no 

contacts with the Shabers before his bequest, but after benefiting from their largesse, 

it is certainly possible, if not predictable, that party officials will demonstrate their 

gratitude in the future. 

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by comparing SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), where an asapplied challenge to political committee contribution limits was accepted, with RNC,

where an as-applied challenge to party contribution limits was rejected.

In SpeechNow, plaintiffs brought an “as-applied challenge” to facially valid 

contribution limits to political committees, and “asserted that it is unconstitutional 

to require groups making only “independent expenditures” to observe the 

contribution limits applicable to political committees.” See 567 F. Supp. 2d 70, 71 

(D.D.C. 2008). Plaintiffs based this argument not on whether a particular large 

contribution to SpeechNow would be corrupting, but rather on the general 

proposition that the government, as a matter of law, “has no anticorruption interest 

in limiting independent expenditures,” and thus had no anti-corruption interest in 

limiting contributions to independent expenditure-only groups. 599 F.3d at 693. 3

Conversely, in RNC, a three-judge court rejected the RNC’s request for an asapplied exemption from the facially valid party contribution limits based upon the 

 

3

In addition to this Court’s ruling in SpeechNow, the Supreme Court has 

recognized two other forms of as-applied relief for minor parties. First, it has 

affirmed that “a nascent or struggling minor party can bring an as-applied challenge 

if [Section 441i(a)] prevents it from ‘amassing the resources necessary for effective 

advocacy.’” McConnell, 540 U.S. at 159 (quoting Buckley, 424 U.S. at 21). And in

the area of disclosure, the Court has allowed an as-applied exemption if a group 

demonstrates “a reasonable probability that [its] members would face threats, 

harassment, or reprisals if their names were disclosed.” Citizens United, 558 U.S. at 

370; Buckley, 424 U.S. at 74. But neither of these as-applied claims is pertinent here, 

and the Court has never blessed as-applied relief based on a personal disavowal of 

corruptive potential in the manner requested here.

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party’s “pledge[]” to “not involv[e] federal candidates or officeholders in its softmoney solicitations” and “not grant[] soft-money donors preferential access to 

candidates or officeholders based on their large, soft-money contributions.” 698 F. 

Supp. 2d at 158. In essence, the RNC promised, much like the LNC does here, to 

strip its fundraising for soft money of any specific factors that could lead to quid pro 

quo corruption. The court found, however, that this fact-specific pledge to sanitize 

individual donations did not undercut Congress’ rationale for why unlimited softmoney contributions are inherently corruptive, which is based on Congress’ general

concern about “the close relationship between federal officeholders and the national 

parties,” id. at 159 (citing McConnell, 540 U.S. at 154), and how this relationship 

was “likely to create actual or apparent indebtedness on the part of federal 

officeholders.” Id.

As in RNC, this Court should not countenance the LNC’s request to carve out 

case-by-case exemptions from facially valid contribution limits whenever a litigant 

asserts that a particular contribution carries no risk of corruption and the government 

is unable “prove” it has led or will lead to a quid pro quo arrangement. See LNC Br. 

at 37-38. This approach is not just contrary to all relevant precedent; it is entirely 

unworkable as well. Every individual contributor would be able to state a valid asapplied claim by merely alleging that his or her past or intended campaign 

contributions bore no indicia of corruptive intent or effect. If this manner of asUSCA Case #18-5227 Document #1754989 Filed: 10/12/2018 Page 21 of 37
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applied challenge were permitted, it would reduce contribution limits to no more 

than criminal bribery statutes, and convert courts into contribution-licensing 

authorities—at great cost to both electoral integrity and the judiciary.

II. Increasing the Contribution Limits for Segregated Accounts Expands, 

Rather Than Burdens, the LNC’s First Amendment Activities.

A. The two-tier contribution limit regime serves valid anticorruption

interests while enabling candidates and parties to amass sufficient 

resources for effective campaign advocacy. 

The LNC does not directly challenge either the base limits on contributions to 

national political party committees or the trebling of those limits for certain special 

purpose accounts. LNC Br. at 40, 44; JA 170. In other words, LNC does not argue 

that either the base limit or the special purpose limits are too low, such that they 

prevent national parties in general or the LNC in particular from “amassing the 

resources necessary for effective advocacy,” Buckley, 424 U.S. at 21. Nor does the 

LNC argue that the segregated account limits were adopted with invidious intent, or

that they discriminate between similarly situated political actors, see Davis, 554 U.S. 

at 738 (striking down the “Millionaire’s Amendment,” which quadrupled the 

contribution limits for candidates facing a wealthy self-financed opponent). Finally, 

the LNC does not argue that the segregated account limits in any way go beyond the 

base limits to actually or potentially restrict the LNC’s ability to speak on political 

issues or engage in associative activity. Indeed, the LNC does not allege any injury 

at all directly arising out of the segregated account limits. 

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Instead, the LNC argues that there is no anticorruption rationale for Congress’ 

specific decision to triple the base limits for the three purposes enumerated in 52 

U.S.C. § 30116(a)(9). LNC Br. at 56-58. This is an odd argument. There is “no 

constitutional basis for attacking contribution limits on the ground that they are too 

high,” Davis, 554 U.S. at 737, and similarly, no basis for challenging Congress’ 

decision to increase limits, see McConnell, 540 U.S. at 228-29 (finding plaintiffs 

lacked standing to challenge an increase in the individual base limits from $1,000 to 

$2,000). At the same time, a limit of $101,700 on contributions to the special 

accounts (triple the base limit amounts) still inhibits potential quid pro quo abuse far 

more than would no contribution limit; the fact that the segregated account limits

could have been set lower is of no constitutional import. As the Supreme Court has 

emphasized, courts do not strike down laws because they “conceivably could have 

restricted even greater amounts of speech in service of their stated interests.” 

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015).

The lifting of a contribution limit would raise a constitutional issue only if the 

enactment of the “Cromnibus” limits rendered the law underinclusive. But this 

argument is also difficult to make because “the First Amendment imposes no 

freestanding ‘underinclusiveness limitation.’” Id. (quoting R.A.V. v. St. Paul, 505 

U.S. 377, 387 (1992)). Consequently, “underinclusiveness claims occupy difficult 

theoretical terrain.” Ill. Liberty PAC v. Madigan, No. 16-3585, 2018 WL 4354424, 

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at *8 (7th Cir. Sept. 13, 2018) (rejecting argument that state’s “more generous”

contribution limits as to certain groups “fatally undermines the anticorruption 

rationale” for other, lower contribution limits).

The bar for demonstrating underinclusiveness is high: the LNC must show 

that the current two-tiered system of contribution limits cannot “fairly be said” to 

advance the government’s anticorruption interest because it provides only 

“ineffective or remote” support for its assorted goals. FCC v. League of Women 

Voters, 468 U.S. 364, 396 (1984). The LNC has not even attempted to make such a 

showing. Although it hints that Congress may have now set the “line” for corruption 

“at $339,000 per year,” LNC Br. at 57, it does not argue that the trebled segregated 

account limits render the base contribution limits so “ineffective” that they obviate 

FECA’s anticorruption purpose and effect.

The LNC’s underinclusiveness argument also fails to apprehend that Congress 

must serve two purposes in setting contribution limits: not only the anticorruption

goal the LNC exclusively emphasizes, but also the more practical goal of ensuring

that candidates and parties operating under the limits can “amass[] the resources 

necessary for effective advocacy.” Buckley, 424 U.S. at 21. Arguably, the 

governmental interest in preventing corruption and its appearance would be best 

served by setting the contribution limits as low as possible. Cf. Answering Brief of 

Appellees, at 40, Thompson v. Hebdon, No. 17-35019 (9th Cir. argued June 11, 

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2018) (noting record evidence suggesting that some Alaska state legislators were 

willing to be bought for “as little as $200, or candy”). The Supreme Court has held, 

however, that Congress must balance its pursuit of the anticorruption interest against 

the interests of parties and candidates in being able to raise sufficient funds to 

campaign effectively. Buckley, 424 U.S. at 21. 

Because this balancing act requires a complex, fact-dependent inquiry, 

uniquely within the Congress’ expertise, the Supreme Court has consistently 

counseled deference to legislative judgments regarding the structure and monetary 

threshold of contribution limits. See Davis, 554 U.S. at 737; Randall v. Sorrell, 548 

U.S. 230, 248 (2006); McConnell, 540 U.S. at 137; FEC v. Beaumont, 539 U.S. 146,

155 (2003); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391, 397 (2000); FEC v. 

Nat’l Conservative PAC, 470 U.S. 480, 500 (1985); Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 201 (1981); Buckley, 424 U.S. at 30. 

Here, Congress has determined that these dual purposes are best served by 

preserving the lower base limits while raising the limits on contributions made for 

certain specific purposes; this two-tier structure ensures that candidates and parties 

are able to amass the resources necessary to cover certain expenses, such as 

nominating conventions, without raising the limits wholesale and destabilizing the 

existing system of contribution limits. The LNC’s overwhelming focus on the 

relative corruptive potential of larger “special purpose” contributions versus smaller 

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general purpose contributions, LNC Br. at 52-58, thus misses the point. Congress is 

permitted to—in fact, is required to—balance its anticorruption goals with the need 

to ensure that candidates and parties can still amass sufficient resources for all of 

their purposes. 

The results of this balancing may be controversial. Indeed, both amici groups 

opposed the “Cromnibus” limits as a matter of policy, and publicly criticized both 

the congressional process that resulted in the “Cromnibus” and the potential effects

of the segregated account limits on the campaign finance system. But it is one thing 

to object to higher limits on policy grounds, which amici do, and quite another for 

the LNC to maintain that allowing national parties to accept larger contributions 

contributions for certain special purposes causes constitutional injury or violates the 

First Amendment. So long as the current two-tiered system can “fairly be said” to 

advance and balance the government’s dual commitments to preventing corruption 

and ensuring candidates and parties have access to adequate campaign resources, 

then the law is neither underinclusive nor unconstitutional.

B. The special account limits are not content-based.

The LNC attempts to impose strict scrutiny instead of intermediate scrutiny

here by arguing that it is constitutionally suspect to restrict the trebled contribution 

limits to funds used for certain designated purposes. But that is how many provisions 

of federal campaign finance law operate. Indeed, the most obvious and fundamental

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“purpose restriction” in campaign finance law is that FECA regulates only money 

received or spent “for the purpose of influencing any election for Federal office.” 

See 52 U.S.C. § 30101(8)(A)(i) (defining “contribution”); id. § 30101(9)(A) 

(defining “expenditure”). Yet FECA’s many contribution limits—which vary with 

respect to the source of the contribution, the identity of the recipient, and the 

purposes to which the funds are allocated—have never been deemed “contentbased” regulations subject to strict scrutiny.

One example of an existing contribution restriction with a highly detailed 

“purpose requirement” is section 323(b) of BCRA, which requires state parties to 

finance “Federal election activity” with funds raised under federal limits. “Federal 

election activity” is defined to include (1) voter registration activity during the 120 

days before a federal election; (2) voter identification, GOTV, and generic campaign 

activity in connection with any election where a federal candidate appears on the 

ballot; and (3) any “public communication” that “refers to a clearly identified 

[federal] candidate” and “promotes,” “supports,” “attacks,” or “opposes” such a 

candidate. 52 U.S.C. §§ 30101(20)(A)(i)-(iv), 30125(b)(1). McConnell upheld this

soft-money restriction. 540 U.S. at 173; see also Republican Party of La. v. FEC, 

219 F. Supp. 3d 86 (D.D.C. 2016) (three-judge court), aff’d, 137 S. Ct. 2178 (2017) 

(reaffirming constitutionality of section 323(b)). Moreover, although section 323(b) 

indisputably applied federal limits only to funds used for certain purposes,

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McConnell did not review these “purpose-based” restrictions as “content-based” 

regulations subject to strict scrutiny, but instead as contribution limits subject to 

intermediate “closely drawn” scrutiny. 540 U.S. at 167-71 (reviewing section 

323(b)’s application to “Federal election activity”).

This is likely because the “purpose restrictions” of section 323(b), like the 

special-purpose regime challenged here, do not actually prescribe any “content” for 

covered state party expenditures. For instance, the requirement that a state party use 

federal funds for covered voter registration activities did not in any way limit or 

restrict the content of the state party’s communications or expressive activities in 

conducting such activities. Similarly, the fact that nominating conventions may be 

financed under the higher segregated account limits does not in any way dictate the 

content of a party’s expressive activities in conducting the convention: the party can 

feature any person discussing any subject in any media at the convention, and

§ 30116(a)(9)(A) does not require otherwise.

Indeed, the purportedly “content-based” segregated account limits impose no 

burdens on political speech or associative activity that are not already imposed by 

the base limits themselves, which the LNC presumably deems “content-neutral” and 

does not challenge here. Permitting larger contributions for specified purposes does

not in any way reduce a contributor’s capacity to engage in political expression and 

association by contributing to national parties; on the contrary, the “Cromnibus”

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allows contributors to contribute exactly as much in general purpose contributions 

to the LNC as they could before, but then give an additional $101,700 to each of its 

special accounts as well. Nor do the purpose restrictions impose any cap on the 

national parties’ overall spending for general purposes or expressive activity. In 

short, the special-purpose regime does not limit the total quantum or content of 

speech any more than the base contribution limits already do. If anything, raising the 

limits as to the special purpose accounts enlarges the LNC’s capacity to engage in 

political speech and association by freeing up for expressive purposes funds that it 

previously might have spent for “special purposes.” The party, obviously, is better 

off.

Finally, the LNC’s argument ignores the fact that since Buckley, the Supreme 

Court has adhered to and continually refined a system of intermediate review for 

campaign contribution limits, and has never required strict scrutiny. McCutcheon, 

572 U.S. at 189; Randall, 548 U.S. at 249-53; McConnell, 540 U.S. at 136; 

Beaumont, 539 U.S. at 161; Shrink Mo., 528 U.S. at 387-88; Buckley, 424 U.S. at 

25, 29. Even if the segregated account limits—or any campaign finance regulation—

could be characterized as “content-based,” the Supreme Court has accounted for that 

concern by subjecting such limits to “closely drawn” scrutiny. Otherwise, under the 

LNC’s approach, every “purpose” restriction, including the myriad campaign 

finance regulations routinely upheld under the Buckley framework, would be treated 

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as a content-based restriction subject to strict scrutiny. No campaign finance 

precedent supports this approach.

C. The special purpose restrictions do not transform the contribution 

limits into expenditure limits.

In a second bid for strict scrutiny, the LNC argues that by allowing 

contributions above the base limits for certain purposes, Congress imposed an 

impermissible content-based restriction on parties’ expenditures. LNC Br. at 54. 

This misconstrues Supreme Court case law, which has only treated laws that directly 

“cap” an entity’s total spending as “expenditure limits.” 

As the LNC acknowledges, McConnell already rejected exactly the argument 

it makes here. 540 U.S. at 139. There, the Court upheld the provisions of BCRA that 

banned national party committees from soliciting, receiving, directing, or spending

any soft money, i.e., funds not compliant with the federal contribution limits. Even 

though the law prohibits parties from “spending” non-federal funds, the Court did 

not treat the law as an expenditure limit, and instead found it “irrelevant that 

Congress chose . . . to regulate contributions on the demand rather than the supply 

side.” Id. at 138. Thus, the Court deemed BCRA’s prohibition on spending nonfederal money to be, in principle, a contribution limit, not an expenditure limit,

because those provisions in no way “limit[] the total amount of money parties can 

spend.” Id. at 139. “Rather, they simply limit the source and individual amount of 

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donations” by requiring the parties to spend federal funds instead of non-federal 

funds. Id. 

The LNC fails to distinguish the segregated account limits from the softmoney limits upheld in McConnell. See also Republican Party of La., 219 F. Supp. 

3d at 94 (“It is not our place, however, to second-guess the Supreme Court’s 

treatment of [BCRA’s soft-money limit] as a contribution restriction instead of an 

expenditure restriction.”). The LNC concedes that expenditure limits restrict “‘the 

amount of money a person or group can spend on political communication during a 

campaign,’” whereas contribution limits restrict “the amount that any one person or 

group may contribute to a candidate or political committee.” LNC Br. at 41-42

(quoting Buckley, 424 U.S. at 19, 20). But it fails to explain how limiting the amount 

an individual may contribute to a political party for a particular purpose “caps” the 

total amount of money that the party “can spend on political communication during 

a campaign.” Neither the base limits nor the segregated account limits restrict the

national parties’ spending on political activity; they merely compel parties “to raise 

funds from a greater number of persons.” Buckley, 424 U.S. at 22. 

III. The LNC Has No Basis for the Extraordinary Relief It Requests. 

Although the LNC struggles throughout this case to identify any injury it has 

suffered by reason of the laws it challenges, much less an injury of constitutional 

significance, this does not dissuade it from demanding extraordinary relief.

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In terms of testamentary contributions, LNC purports to challenge only the

application of the annual limits to the Shaber bequest; in terms of the segregated 

account limits, the LNC challenges only the three special purpose restrictions 

enumerated in § 30116(a)(9). Despite the limited nature of the questions certified 

here, the LNC requests the broadest possible relief: the invalidation of the original 

base limits on contributions to national party committees, which have been in effect 

for over 40 years, see FECA Amendments of 1976, Pub. L. No. 94-283, § 112(2), 

90 Stat. 475 (1976) (codified as amended at 52 U.S.C. § 30116(a)(1)(B)), and whose 

constitutionality has been reaffirmed as recently as 2010, see RNC, 698 F. Supp. 2d 

at 160. The sum total of the LNC’s argument in favor of this extreme result is that it 

would provide the “most straightforward” relief. LNC Br. at 59.4

 

4 Even if the Court finds the special-purpose regime embedded in the segregated 

account limits facially unconstitutional, the segregated account limits themselves are 

severable from the pre-existing base limits. When a particular provision of an 

otherwise constitutional statute is determined to be unconstitutional, courts should 

not invalidate the constitutional portions of the statute unless it is evident that 

Congress would not have independently enacted those provisions. Murphy v. NCAA, 

138 S. Ct. 1461, 1482 (2018). The LNC does not dispute that the base contribution 

limits are constitutional or that they were enacted independently of the segregated 

account limits. Nor would eliminating the higher segregated account limits have any 

effect on the operation or effectiveness of the base limits. As such, there is simply 

no basis for striking or altering the base limits.

If, instead, the Court finds that the segregated account limits are not facially 

unconstitutional, but are unconstitutional as applied to the Shaber bequest, there is 

no need to reach the question of severability. Any injury resulting from the limits as 

applied to the Shaber bequest may be remedied by an injunction, and would not 

require the Court to strike down any portion of the law.

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The LNC’s “fall back” position is to ask that this Court redress its purported 

injury by “excising the spending purpose restrictions” while “[l]eaving the current

[trebled] total contribution limit in place.” Id. at 62. To put it more plainly, the LNC 

asks this Court to rewrite the Cromnibus legislation line by line to achieve a result 

flatly contrary to its language and any expressed intent of the sponsors. 

As grounds for this relief, the LNC relies on the allegation that it is 

“unknowable” what balance Congress would have struck had it been faced with the 

choice of keeping the pre-existing base limits or allowing unrestricted contributions 

at three times the existing limits. Id. Therefore, faced with the supposed 

“unknowability” of congressional intent, the LNC suggests that the Court must infer 

that Congress would have tripled the base limit.5 But if evidence of congressional 

intent is indeed absent, the rule is clear: the text of the legislation is the best guide

of intent, and here the trebled limits were enacted only for funds to be used for the 

purposes enumerated in § 30116(a)(9). See W. Va. Univ. Hosps., Inc. v. Casey, 499 

U.S. 83, 98 (1991) (noting that “best evidence” of statutory purpose “is the statutory 

text adopted by both Houses of Congress and submitted to the President”). 

Moreover, the LNC ignores that Congress had before it the same option of simply 

 

5 The limited legislative record does indicate that Congress adopted the segregated 

account limits to ensure that national parties had “a means of acquiring additional 

resources” to fund presidential nominating conventions, because public funding for 

conventions had been terminated earlier that year. See 160 Cong. Rec. H9286 (daily 

ed. Dec. 11, 2014).

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tripling the limits across the board in 2014, and it did not do so. This Court should 

not undo Congress’ intended result here.

And if this Court finds the special purpose restrictions unconstitutional on 

their face, the proper relief is apparent: it should strike the 2014 “Cromnibus” 

amendments to FECA in their entirety. See Frost v. Corp. Comm’n of Okla., 278 

U.S. 515, 525-46 (1929) (finding that where “the statute, before the amendment, was 

entirely valid” the unconstitutional amendment becomes a “nullity,” and the original 

statute stands as the “expression of the legislative intent.”). This would leave in place 

the base limits and simply restore § 30116(a)(1)(B) to its pre-2014 structure and 

amounts. This system is clearly workable, as it governed U.S. elections from 

FECA’s enactment in 1974 until 2014 without significant amendment; and it is 

clearly constitutional, as Buckley, McConnell and RNC confirm. If indeed the LNC 

believes the trebled segregated account limits—which allow it to spend significantly 

more, directly and indirectly, on both special purpose and expressive activity—cause 

the party such grievous injury, then the LNC should welcome the clean and complete 

invalidation of those limits.

CONCLUSION

This Court should find in favor of the FEC on the certified questions raised in 

this proceeding.

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Dated: October 12, 2018

Respectfully submitted, 

Paul M. Smith (DC Bar No. 358870)

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

Molly Danahy*

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Fred Wertheimer (DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue NW

Washington, DC 20036

(202) 355-9600

Donald J. Simon (DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street NW, Suite 600

Washington, DC 20005

(202) 682-0240

Counsel for Amici Curiae

*Licensed to practice in New York only; 

application for admission to D.C. Bar 

pending; supervision by Tara Malloy, a 

member of the D.C. bar.

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6492 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) 

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft Office Word 

2007 in Times New Roman 14 point font.

/s/ Tara Malloy

Tara Malloy

Dated: October 12, 2018

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CERTIFICATE OF SERVICE

I hereby certify that on October 12, 2018, I electronically filed the BRIEF 

AMICI CURIAE with the Clerk of Court for the United States Court of Appeals for 

the District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all counsel required to be served.

I further certify that I will also cause the requisite number of paper copies of 

the brief to be filed with the Clerk on October 12, 2018.

/s/ Tara Malloy

Tara Malloy

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