ORAL ARGUMENT NOT YET SCHEDULED

No. 15-5120

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LAURA HOLMES AND PAUL JOST,

Plaintiffs-Appellants, 

v.

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On appeal from the United States District Court 

for the District of Columbia, No. 1:14-cv-1243 (RMC) 

Opening Brief for Plaintiffs-Appellants

Allen Dickerson (D.C. Cir. No. 54137) 

Tyler Martinez (D.C. Cir. No. 54964)

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiffs-Appellants

August 17, 2015

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Certificate as to Parties, Rulings, and Related Cases

Pursuant to Circuit Rule 28(a)(1), Appellants Laura Holmes and Paul Jost 

hereby submit their Certificate as to Parties, Rulings, and Related Cases. 

A. Parties and Amici

Before the United States District Court for the District of Columbia, 

Plaintiffs Laura Holmes and Paul Jost appeared against Defendant Federal 

Election Commission. No person filed as amicus curiae before the district court. 

On appeal, the parties are Appellants Laura Holmes and Paul Jost against 

Appellee Federal Election Commission.

Appellants Laura Holmes and Paul Jost are married to one another. Laura 

Holmes sometimes uses the name “Laura Holmes-Jost” when contributing to 

candidates. Appellants are residents of Florida and citizens of the United States, 

eligible to vote in any election for the office of President. 

Appellee Federal Election Commission (“FEC” or “Commission”) is the 

federal agency charged with “exclusive jurisdiction with respect to the civil 

enforcement” of the Federal Election Campaign Act (“FECA”) and its 

amendments. 52 U.S.C. § 30106(b)(1). The FEC must “administer, seek to obtain 

compliance with, and formulate policy with respect to” the federal campaign 

finance regime. Id. 

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B. Rulings Under Review

This appeal seeks review of the Opinion and Order of United States District 

Judge Rosemary M. Collyer in Holmes et al. v. FEC. No. 1:14-cv-01243-RMC; 

Opinion (D.D.C. Apr. 20, 2015) ECF No. 33; Order (D.D.C. Apr. 20, 2015) ECF 

No. 34.

C. Related Cases

Pursuant to 52 U.S.C. § 30110, the district court certified questions to this 

Court, en banc, in Case No. 14-5281. This Court remanded the case for 

performance of “the functions mandated by § 30110” and development of “the 

factual record necessary for en banc review.” Holmes v. FEC, No. 14-5281 Order 

(D.C. Cir. Jan. 30, 2015). This appeal arises from the district court’s decision on 

remand.

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Table of Contents

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

A. Parties and Amici........................................................................................... i 

B. Rulings Under Review..................................................................................ii

C. Related Cases................................................................................................ii

Table of Contents...................................................................................................iii

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

Glossary of Abbreviations ....................................................................................xii

Introduction............................................................................................................. 1 

Jurisdictional Statement.......................................................................................... 3 

Statement of the Issue ............................................................................................. 3 

Statutes and Regulations......................................................................................... 4 

Statement of the Case.............................................................................................. 4 

I. FECA limits Appellants’ ability to associate with particular 

candidates. ............................................................................................... 5 

II. Ms. Holmes and Mr. Jost brought an as-applied challenge on First 

and Fifth Amendment grounds, which was initially certified to this 

Court, en banc.......................................................................................... 9 

III. The district court developed a factual record but improperly 

resolved Appellants’ case on the merits................................................ 10

Summary of the Argument....................................................................................11

Argument...............................................................................................................15

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I. Standard of Review ...............................................................................15

II. Standard for Certifying Questions Under 52 U.S.C. § 30110............... 16

a. For challenges to FECA, Congress provided an exclusive 

review provision—now codified at 52 U.S.C. § 30110—to 

ensure swift consideration of constitutional questions posed 

by federal campaign finance restrictions.......................................... 16

b. The district court’s discretion to decline certification is limited. .... 17

c. The Supreme Court has rejected previous efforts to alter 

Congress’s exclusive grant of merits jurisdiction to the en banc

Court of Appeals. .............................................................................20

d. Certification is proper for as-applied challenges unless Supreme 

Court precedent directly forecloses the challenge. .......................... 22

i. This Circuit has held that constitutional questions should 

be certified unless the Supreme Court has precisely spoken 

to the issue.............................................................................. 22 

ii. Sister Circuits require narrow, as-applied challenges to be 

resolved by the en banc Courts of Appeals............................ 24

iii. The district court in this Circuit recognizes its narrow role 

under section 30110 and certifies questions to this Court 

even where the language of the question requires 

modification. ..........................................................................28

III. Appellants’ case presents an unanticipated, as-applied, challenge to 

the division and timing of FECA’s contribution limits......................... 30

a. FECA imposes the artificial, per-election division at issue here. .... 31

b. The Supreme Court has neither considered nor decided whether 

the per-election limit furthers the government’s interest in 

preventing quid pro quo corruption. ................................................ 34

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i. Buckley v. Valeo did not consider or review FECA’s perelection structure, and therefore cannot foreclose 

Appellants’ challenge............................................................. 34

ii. The Supreme Court’s most recent case reviewing 

contribution limits accords with Appellants’ reading of the 

statute. ....................................................................................37

c. Neither the Supreme Court nor any other court has considered 

Appellants’ specific Fifth Amendment challenge............................ 42

i. The facial opinion in Buckley did not reach the Fifth 

Amendment question. ............................................................ 43

ii. Appellants bring a novel, justiciable, equal protection 

claim.......................................................................................44

iii. Wagner v. FEC is not to the contrary. ................................... 51

Conclusion ............................................................................................................53

Certificate of Compliance .....................................................................................54

Addendum

Addendum Table of Contents ............................................................. ADD i

Certificate of Service

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Table of Authorities1

Cases

Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 

564 U.S. ___, 131 S. Ct. 2806 (2011) ..................................................48, 49

Bates v. City of Little Rock, 

361 U.S. 516 (1960)....................................................................................46

Bread Political Action Committee v. FEC, 

455 U.S. 577 (1982)........................................................................18, 20, 21

Brown v. Socialist Workers Campaign Comm., 

459 U.S. 87 (1982)......................................................................................36

Buckley v. Valeo, 

424 U.S. 1 (1976)......1, 13, 14, 18, 24, 25, 26, 32, 35, 36, 43, 44, 45, 46, 47

Buckley v. Valeo, 

519 F.2d 817 (D.C. Cir. 1975)....................................................................18

California Medical Association v. FEC, 

453 U.S. 182 (1981).............................................................18-19, 21, 22, 33

Cao v. FEC, 

688 F. Supp. 2d 498 (E.D. La. 2010) ...................................................24, 25

Citizens United v. FEC, 

558 U.S. 310 (2010)..............................................................................19, 52

City of Rochester v. Bond, 

603 F.2d 927 (D.C. Cir. 1979)....................................................................17

Connecticut Nat’l Bank v. Germain, 

503 U.S. 249 (1992)....................................................................................18

 

1 Authorities upon which Appellants chiefly rely are marked with asterisks.

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* Davis v. FEC, 

554 U.S. 724 (2008)..................................................................35, 44, 47, 48

Doughty v. Underwriters at Lloyd’s, London, 

6 F.3d 856 (1st Cir. 1993)...........................................................................39

Ex parte McCardle, 

74 U.S. 506 (1869)......................................................................................20

FEC v. Colo. Republican Federal Campaign Comm., 

533 U.S. 431 (2001)..............................................................................24, 25

FEC v. Lance, 

617 F.2d 365 (5th Cir. 1980)......................................................................17

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)....................................................................................43

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007)..........................................................................5, 41, 43

Feinberg v. Fed. Deposit Ins. Corp., 

522 F.2d 1335 (D.C. Cir. 1975)......................................................12, 23, 33

Gabbs Exploration Co. v. Udall, 

315 F.2d 37 (D.C. Cir. 1963)......................................................................39

Gilmore v. Montgomery, 

417 U.S. 556 (1974)....................................................................................45

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990)................................13, 15, 16, 19, 23, 24, 27

Holmes v. FEC, 

No. 14-5281 Order (D.C. Cir. Jan. 8, 2015) (Doc. 1531041) .................... 10

IFC Interconsult, AG v. Safeguard Intl Partners, 

438 F.3d 298 (3d Cir. 2006) .......................................................................39

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Int’l Ass’n of Machinists and Aerospace Workers v. FEC, 

678 F.2d 1092 (D.C. Cir. 1982).................................................................. 22

Int’l Ass'n of Machinists and Aerospace Workers v. FEC, 

No. 80-354, slip. op. (D.D.C. Dec. 16, 1980)............................................. 23

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992)..........................................................19, 26, 27

Libertarian National Committee v. FEC, 

930 F. Supp. 2d. 154 (D.D.C. 2013).....................................................28, 29

Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 

113 U.S. 33 (1885)......................................................................................19

Mariani v. United States, 

212 F.3d 761 (3d Cir. 2000) ................................................................. 19, 36

McConnell v. FEC, 

540 U.S. 93 (2003)......................................................................................35

* McCutcheon v. FEC, 

572 U.S. ___, 134 S. Ct. 1434 (2014) ........14, 30, 32, 37, 38, 39, 40, 41, 47

Nordlinger v. Hahn, 

505 U.S. 1 (1992)........................................................................................45

Peterson v. Martinez, 

707 F.3d 1197 (10th Cir. 2013).................................................................. 39

Republican Nat’l Comm. v. FEC (In re Anh Cao), 

619 F.3d 410 (5th Cir. 2010)..............................................13, 16, 24, 25, 26

* Riddle v. Hickenlooper, 

742 F.3d 922 (10th Cir. 2014)........................................................49, 50, 51

Rubin v. United States, 

449 U.S. 424 (1981)....................................................................................18

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Solomon v. Vilsack, 

763 F.3d 1 (D.C. Cir. 2014)........................................................................16

SpeechNow.org v. FEC, 

567 F. Supp. 2d 70 (D.D.C. 2008) .............................................................. 28

SpeechNow.org v. FEC, 

No. 08-0248 (JR), 2009 U.S. Dist. LEXIS 89011 (D.D.C. 2009).............. 28

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010)....................................................................28

United States v. McConney, 

728 F.2d 1195 (9th Cir. 1984)....................................................................16

United States v. Oakar, 

111 F.3d 146 (D.C. Cir. 1997)....................................................................39

United States v. Raines, 

362 U.S. 17 (1960)......................................................................................19

* Wagner v. FEC, 

717 F.3d 1007 (D.C. Cir. 2013)............................................9, 10, 12, 17, 18

Wagner v. FEC, 

No. 13-5162, 2015 U.S. App. LEXIS 11625 

(D.C. Cir. July 7, 2015) ..................................................................17, 51, 52

Wisconsin Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006)....................................................................................35

Yick Wo v. Hopkins, 

118 U.S. 356 (1886)....................................................................................45

Constitutions

U.S. CONST. art. I, § 8, Cl. 9 .................................................................................20

U.S. CONST. art. III, § 1 ........................................................................................20

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Statutes

28 U.S.C. § 1291..................................................................................................... 3 

28 U.S.C. § 1331..................................................................................................... 3 

28 U.S.C. § 2201..................................................................................................... 3 

28 U.S.C. § 2202..................................................................................................... 3 

52 U.S.C. § 30101(1).............................................................................................. 6 

* 52 U.S.C. § 30110......................................................ii, 2, 3, 5, 12, 15, 16, 17, 53

52 U.S.C. § 30116(a) ............................................................................................31

52 U.S.C. § 30116(a)(1)........................................................................................31

52 U.S.C. § 30116(a)(1)(A) .................................................................................... 4 

52 U.S.C. § 30116(a)(2)(A)..................................................................................24

52 U.S.C. § 30116(a)(6).......................................................................................... 5 

52 U.S.C. § 30116(c) ............................................................................................31

Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 (2002) .........................................................xii

Federal Election Campaign Act of 1971, 

Pub. L. 92-225, 86 Stat. 3 (1972) ...............................................................xii

Federal Election Campaign Act of 1974, 

Pub. L. 93-443, 88 Stat. 1263 (1974) ...................................................xii, 31

Rules

11 C.F.R. § 100.2(a)................................................................................................ 6 

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11 C.F.R. § 100.2(c)(5)........................................................................................... 6 

11 C.F.R. § 110.1(b)(3)(i).....................................................................................32

11 C.F.R. § 110.1(b)(5)(ii)(B) ........................................................................32, 33

11 C.F.R. § 110.3(c)(3)........................................................................................... 6 

Other Authorities

Holmes v. FEC, No. 14-5281, FEC Mot. for Remand (D.C. Cir. Jan. 2, 2015)... 21

Holmes v. FEC, No. 14-1243 (RMC), FEC Brief Opposing Certification and in 

Support of Summary Judgement in Favor of the Commission 

(D.D.C. Mar. 13, 2015) (ECF 27) .........................................................21-22

STATEMENT OF SENATOR CHRIS DODD, 147 CONG. REC. S. 2536 (2001) ............ 47

Tim Higgins, Presidential Fundraising: See Who's Spending, Who's Lagging, 

Who's Raising and Where, BLOOMBERG, July 16, 2015, at 

http://www.bloomberg.com/politics/articles/2015-07-16/presidentialcampaign-finance-reports-a-data-visualization .......................................... 32

60 Fed. Reg. 35292 (July 6, 1995)........................................................................43

72 Fed. Reg. 72899 (Dec. 26, 2007).....................................................................43

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Glossary of Abbreviations

BCRA – Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 

(2002). 

FEC or Commission – Federal Election Commission

FECA – Federal Election Campaign Act of 1971, Pub. L. 92-225, 86 Stat. 3 

(1972) and the Federal Election Campaign Act of 1974, Pub. L. 93-443, 88 

Stat. 1263 (1974).

JA – Joint Appendix

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Introduction

Consider two individuals, Adam and Briana, who each seek to contribute in 

a Congressional election. Adam supports the incumbent, who faces no primary 

challenger, and Briana does not. Adam gives $5,200 before the primary election to 

the unchallenged incumbent, earmarking $2,600 for the primary and $2,600 for the 

general election. Briana waits out the challenging party’s primary before 

contributing, because she wants her money to be used to fight the incumbent rather 

than being wasted in an intraparty squabble. The result is that the incumbent can 

use all of Adam’s $5,200 contribution for general election purposes, while Briana 

can now only give $2,600 to the challenging party’s nominee.

Appellants Laura Holmes and Paul Jost closely mirror Briana in this 

example. 

Appellants argue that this situation violates their First and Fifth Amendment 

rights. While Congress may limit the amount a particular individual gives to a 

particular candidate, its discretion in doing so is not limitless. Lacking “a scalpel to 

probe” such questions, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), courts 

will generally defer to the legislature’s judgment of the permitted contribution 

amount. But courts do not rotely defer to any type of restriction the state chooses to 

impose. It is improper for contribution limits to be artificially divided in ways that 

are not properly tailored to the prevention of quid pro quo corruption or that 

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provide advantages to certain types of candidates. Such schemes violate, 

respectively, the First and Fifth Amendments.

Appellants challenged the bifurcation of the Federal Election Campaign 

Act’s contributions limit, as applied to their circumstances, pursuant to Congress’s 

expedited judicial review procedure codified at 52 U.S.C. § 30110.2 The § 30110 

procedure requires the district court to make findings of fact and certify

constitutional claims to the en banc court of appeals. Initially, the district court did 

so, certifying questions to this Court, en banc, in Case No. 14-5281. This Court

subsequently remanded the case and required the district court to, inter alia, 

“provide the parties an opportunity to develop, by expedited discovery or 

otherwise, the factual record necessary for en banc review of the plaintiff’s 

constitutional challenge.” JA 59. 

On April 20, 2015, the district court found facts and ruled on all parties’ 

evidentiary objections. But the court denied certification of Appellants’ questions 

and entered summary judgment for the FEC. 

Appellants Holmes and Jost timely appealed, seeking review of the denial of 

certification. Because § 30110 is the exclusive means of bringing this challenge, 

 

2 On September 1, 2014, the Office of Law Revision Counsel recodified the 

Federal Election Campaign Act (“FECA”) and its amendments from 2 U.S.C. §§ 

431-57 to 52 U.S.C. §§ 30101-30146. This case was filed before that date and thus 

Appellants Holmes and Jost used the old codification in their initial filings. 

Appellants now use the updated codification.

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and because the merits of Appellants’ argument have never been considered by the 

Supreme Court or this Court sitting en banc, the district court—like a panel of this 

Court—lacked jurisdiction to decide this case, which should be swiftly certified to 

the en banc Court as Congress intended.

Jurisdictional Statement

Appellants Holmes and Jost appeal a final decision of the district court. The 

district court had jurisdiction to hear the constitutional claims pursuant to 28 

U.S.C. § 1331 (federal question) and 28 U.S.C. §§ 2201 and 2202 (declaratory 

judgment). Under 52 U.S.C. § 30110, the district court had jurisdiction to make 

necessary findings of fact and certify constitutional questions to the en banc court 

of appeals. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 (review of 

final decisions of district courts). 

Statement of the Issue

Whether the District Court erred in declining to certify pursuant to 52 U.S.C. 

§ 30110, as involving “questions of settled law,” the following: 

1. When federal law limits individual contributors to giving $2,600 to a 

candidate for use in the primary election and $2,600 to a candidate for use in 

the general election and denies Plaintiffs the ability to give $5,200 to a 

candidate solely for use in the general election, does it violate Plaintiffs’ 

rights of freedom to associate guaranteed by the First Amendment, U.S. 

Const. amend, I?

2. When federal law limits individual contributors to giving $2,600 to a 

candidate for use in the primary election and $2,600 to a candidate for use in 

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the general election and denies Plaintiffs the ability to give $5,200 to a 

candidate solely for use in the general election, does it violate Plaintiffs’ 

rights to Due Process, in the context of equal protection of the law, 

guaranteed by the Fifth Amendment, U.S. Const. amend. V?

Statutes and Regulations

The relevant portions of the Federal Election Campaign Act (“FECA”)—

codified at 52 U.S.C. §§ 30101, 30110 and 30116—and the Federal Election 

Commission’s supporting regulations—codified at 11 C.F.R. §§ 100.2, 102.9, 

110.1 and 110.3—are reproduced in the Addendum to this brief. 

Statement of the Case

Appellants challenge Congress’s determination that the non-corrupting 

nature of a $5,200 political contribution hinges on the timing of the gift. FECA 

requires at least half to be given on or before the date of the primary election, even 

if the campaign uses the entire $5,200 for general election purposes. Conversely, 

the entire $5,200 may not be given after the primary election, even if only the next 

day, and even though the same $5,200 will be used for the same general election.

This bifurcation of a non-corrupting contribution serves no anti-corruption purpose 

and advantages those candidates who, not having faced a significant primary 

challenge, may take primary funds for use in the general election. Consequently, in 

the circumstances here, 52 U.S.C. §§ 30116(a)(1)(A) and (a)(6) violates the First 

and Fifth Amendments. 

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Because, pursuant to 52 U.S.C. § 30110, the merits of this argument may 

only be evaluated by a federal court of appeals sitting en banc, the district court 

erred in declining to certify Appellants’ constitutional questions and instead 

entering summary judgment for the Federal Election Commission

I. FECA limits Appellants’ ability to associate with particular

candidates.

Ms. Holmes3 and Mr. Jost each wished to associate with candidates in the 

2014 general election by means of campaign contributions. This was not unusual;

while this case is an as-applied challenge in the context of the 2014 election, 

Appellants have “a long history of contributing to their preferred candidates... 

[and] intend to make such contributions in the future.” JA 291. Therefore, the 

district court found—over the FEC’s objection—that the challenge was not moot 

under the “capable of repetition yet evading review” doctrine. JA 290-91 (citing 

and applying FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007)). 

Appellants’ ability to associate with candidates is limited by federal law, 

specifically Congress’s decision to regulate contributions to candidates on a perelection basis. 52 U.S.C. § 30116(a)(6) (“the limitations on contributions to a 

candidate imposed by... this subsection shall apply separately with respect to each 

election...”); see also JA 272, ¶ 8. FECA defines “election” as, inter alia, “(A) a 

 

3 Ms. Holmes will, at times, contribute to candidates under the name “Laura 

Holmes-Jost.” JA 270, ¶ 1.

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general, special, primary, or runoff election....” 52 U.S.C. 30101(1). Importantly,

the federal campaign finance regime operates under the legal fiction that a 

candidate facing no primary challenge nonetheless participates in a primary 

election, for which he or she may receive a full “primary” contribution. Id.; C.F.R. 

§ 100.2(a) (“[e]lection means the process by which individuals, whether opposed 

or unopposed, seek nomination for election, or election, to Federal office”); 11 

C.F.R. § 100.2(c)(5) (defining primary election for “major party candidate[s]” to 

include possibility of running unopposed and assigning primary election date for 

contribution purposes). 

Moreover, federal regulations state that money given on or before the date of 

the primary election, even where designated for that purpose, may be used solely 

for general election expenses at a candidate’s discretion. 11 C.F.R. § 110.3(c)(3)

(allowing transfers for “funds unused for the primary” to be used in the general 

election). Such discretion will, in practice, always be exercised where a candidate 

in truth participates in only one meaningful election: the general. 

This appeal concerns two specific congressional contests that, like the 

overwhelming majority of such races, consisted of a primary and general election. 

Consequently, federal law permitted contributions of up to $5,2004 to the 

 

4 The Bipartisan Campaign Reform Act (“BCRA”) amended FECA to raise the 

individual contribution limits and index future limits to inflation. JA 273, ¶ 9 

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candidates, provided those contributions were bifurcated between the primary and 

general elections.

In 2014, Carl DeMaio, a candidate for the Fifty-Second Congressional 

District of California, faced three competitors in the state’s “blanket” primary, two 

of which were members of his party. JA 285, ¶ 61. Ms. Holmes did not make any 

contributions during that election because she was interested principally in 

supporting the ultimate nominee from her party against the incumbent 

congressional representative. JA 17 ¶ 39; id. at 23 ¶ 67. 

As the district court noted, “Mr. DeMaio finished second in California’s ‘top 

two’ congressional primary election,” Id. at ¶ 64, giving him the right to face

incumbent Congressman Scott Peters in the general election. Id. at ¶ 65. At that 

point, Ms. Holmes contributed $2,600 to Mr. DeMaio. JA 286, ¶67. Because she 

did not contribute for the primary, Ms. Holmes wished to contribute an additional 

$2,600 to the Republican nominee, but could not do so because “that contribution 

would have exceeded the $2,600 per-election contribution limit established by 

FECA....” Id. at ¶ 68. 

 

(internal citation omitted). While this challenge was pending, the Federal Election 

Commission (“FEC”) raised the limit for the 2015-2016 election cycle to $2,700 

per-candidate, per-election. Id. at ¶ 10 (internal citation omitted). Thus, the base 

limits are now $5,400. The district court used the $5,200 number, and for clarity 

Appellants will continue to reference that amount. 

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Mr. Jost faced a similar quandary. Dr. Marianette Miller-Meeks won a 

contested primary, giving her the right to face incumbent Congressman David 

Loebsack in the general election for Iowa’s Second Congressional District. Id. at ¶ 

70. Mr. Jost did not make any contributions to Dr. Miller-Meeks for the primary,

id. at ¶ 71, JA 287, ¶¶ 72-73, but contributed $2,600 to the Miller-Meeks campaign 

for the general election, Id. at ¶ 74. He too was barred by FECA’s per-election 

contribution limit from contributing an additional $2,600, despite making no 

contribution during the primary election. Id. at ¶ 75. 

These two elections demonstrate how, in practice, the per-election division 

of federal contribution limits imposes concrete burdens upon Appellants’ 

constitutional rights. Congress clearly does not believe that a candidate for 

Congress is corrupted by accepting $5,200 from a donor in an election cycle, and 

both Ms. Holmes and Mr. Jost clearly could have contributed that full amount

toward the general election had they supported either Congressman Peters or 

Congressman Loebsack. However, because they are not members of those 

representatives’ party, and wished to see those incumbents defeated, they were 

limited to $2,600 for that same contest. It strains credulity to suggest, as present 

law does, that there is a higher risk of corruption when a candidate receives $5,200 

for purposes of the general election, but not when that candidate’s opponent 

receives $2,600 for the general election and $2,600 for an uncontested primary.

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Ultimately, both Appellants’ preferred candidates lost their respective 

general elections. JA 286, at ¶ 69; JA 287, ¶ 76. Nevertheless, Appellants intend to 

contribute to candidates for general, but not primary, election purposes in the 

future. 

II. Ms. Holmes and Mr. Jost brought an as-applied challenge on First 

and Fifth Amendment grounds, which was initially certified to 

this Court, en banc. 

Because they are barred from associating with their preferred candidates by 

means of non-corrupting contributions, Ms. Holmes and Mr. Jost brought an asapplied challenge to the Federal Election Campaign Act (“FECA), and requested

certification of questions of law to the en banc Court of Appeals for the District of 

Columbia Circuit pursuant to 52 U.S.C. § 30110.

The § 30110 procedure is unusual. Congress recognized that regulation of 

activity centered on elections is constitutionally sensitive, and accordingly

provided for expedited review of constitutional challenges to FECA. This 

procedure is mandatory for challenges of this type. 

Wagner v. FEC explained the § 30110 procedure. First, a district court “must 

develop a record for appellate review by making findings of fact.” Wagner v. FEC, 

717 F.3d 1007, 1009 (D.C. Cir. 2013) (per curiam) (internal citations omitted). 

Second, the district court “must determine whether the constitutional challenges 

are frivolous or involve settled legal questions.” Id. Third, the district court must 

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certify the “non-frivolous constitutional questions to the en banc court of appeals.” 

Id. 

Initially, the district court denied Ms. Holmes and Mr. Jost’s motion for a 

preliminary injunction, Op. Denying Prelim. Inj., JA 37, and ordered Appellants to 

show cause why the order denying the preliminary injunction should not be 

converted into an appealable denial of their requested certified questions. JA 4.

Satisfied with Ms. Holmes and Mr. Jost’s prompt response, the district court

proceeded to certify questions to the en banc Court. JA 4 (vacating order); JA 52

(Certification of Questions of Constitutionality of Federal Election Campaign Act). 

This Court docketed the Certified Questions as case No. 14-5281. Before 

Ms. Jost and Mr. Holmes filed their opening brief, the Federal Election 

Commission filed a Motion for Remand, arguing that the district court had not 

fully discharged its duties under the Section 30110 procedure. This Court 

eventually agreed, remanding the case for “the functions mandated by § 30110” 

and development of “the factual record necessary for en banc review.” JA 59. In 

the interim, this Court required Appellants to file their opening brief and appendix. 

Holmes v. FEC, No. 14-5281 Order (D.C. Cir. Jan. 8, 2015) (Doc. 1531041). 

III. The district court developed a factual record but improperly 

resolved Appellants’ case on the merits.

On remand, the district court considered both parties’ proposed facts, 

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resolved evidentiary objections, and produced seventy-six paragraphs of factual 

findings. JA 270-287. These include “legislative facts” which are “general facts 

which help the tribunal decide questions of law and policy, [but] are without 

reference to specific parties, and need not be developed through evidentiary 

hearings.” JA 269. (internal citation omitted). 

Having concluded that substantial project, the district court declined to 

recertify certify Appellants’ constitutional questions to this Court, as mandated by 

52 U.S.C. § 30110 and Wagner v. FEC. Instead, the district court asserted that

“Plaintiffs’ claims rest on issues of settled law” and therefore granted summary 

judgment to the Commission, resolving the merits of the case. Id.; id. at 309. The 

district court’s order issued the same day. JA 310.

Ms. Holmes and Mr. Jost timely appealed. JA 311. This question here is

whether the district court, on these facts, erred in not certifying constitutional 

questions pursuant to 52 U.S.C. § 30110. 

Summary of the Argument

The Federal Election Campaign Act (“FECA”) restricts the amount that 

individual citizens may permissibly contribute to political campaigns. 

Recognizing, however, that such limitations—even where necessary—intrude upon 

core First Amendment rights to free speech and association, Congress provided for 

an unusual procedure intended to expedite constitutional challenges to FECA. Now 

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codified at 52 U.S.C. § 30110, this provision states that a “district court 

immediately shall certify all questions of [the] constitutionality of the Act to the 

United States court of appeals for the circuit involved, which shall hear the matter 

sitting en banc.” 

This court has acknowledged Congress’s clear command, holding that “the 

plain text of section [30110] grants exclusive merits jurisdiction to the en banc

court of appeals.” Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013). Because 

the provision is jurisdictional, section 30110 is “the exclusive means of obtaining 

judicial review in those cases to which it applies.” Id. (internal citation omitted). In 

short, certification of valid constitutional questions is mandatory. 

Accordingly, the district court’s involvement under § 30110 is limited. It 

must perform only three functions: develop a record to send to the en banc court of 

appeals, determine whether a challenge is frivolous or involves settled law, and 

certify the non-frivolous questions. Under the relevant test, challenges to FECA 

may only be dismissed if prior decisions of the Supreme Court have “foreclose[d] 

the subject” and left “no room for the inference that the question sought to be 

raised can be the subject of controversy.” Feinberg v. Fed. Deposit Ins. Corp., 522

F.2d 1335, 1339 (D.C. Cir. 1975). This is a low bar, necessitated by the clear 

language of § 30110 itself.

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In determining whether the Supreme Court has “foreclosed” a subject, the 

mere fact that the high court has considered a facial challenge to a particular 

provision is insufficient. As the Ninth Circuit has noted, “[o]nce a core provision 

of FECA has been reviewed and approved by the courts, unanticipated variations 

also may deserve the full attention of the appellate court.” Goland v. United States, 

903 F.2d 1247, 1257 (9th Cir. 1990). Thus, even though Buckley v. Valeo, 424 U.S. 

1 (1976) (per curiam), facially approved of FECA’s contribution limits, 

constitutional challenges unanticipated by the Buckley Court have been certified to 

en banc courts of appeals. See, e.g. Republican Nat’l Comm. v. FEC (In re Anh 

Cao), 619 F.3d 410, 423 (5th Cir. 2010) (certified question concerning FECA 

contribution limit).

Appellants Laura Holmes and Paul Jost bring such an unanticipated, asapplied challenge. They argue that once Congress has determined that a certain 

contribution amount poses little risk of quid-pro-quo corruption, it may not impose 

further restrictions on how that money is given, unless those additional restrictions

also serve the government’s anti-corruption interest. Appellants contend that the 

per-election division in FECA, as applied here, is improperly tailored to that 

interest. Therefore, it violates the First Amendment and, because it also works a 

disproportionate harm to contributors supporting candidates that face primary 

opposition, violates the Fifth Amendment.

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No Supreme Court decision has decided these questions, or even addressed 

them in dicta, and so only the en banc Court of Appeals has jurisdiction to hear 

Appellants’ claims. While Buckley upheld the propriety of contribution limits 

against a facial challenge, it gave no attention to Congress’s decision to bifurcate 

those contributions between primary and general elections. Instead, while Buckley

noted the “per election” character of the contribution limits, the Court went on 

merely to refer to “[t]he Act’s $1,000 contribution limitation” throughout its 

analysis. 424 U.S. at 28. 

Similarly, in its recent decision in McCutcheon v. FEC, 572 U.S. ___, 134 S. 

Ct. 1434 (2014), the Court reexamined Buckley’s laconic analysis of the 

longstanding limit on aggregate political contributions. There, in analyzing 

whether the statute was appropriately tailored to the actual risk that contributions 

would lead to quid-pro-quo corruption, the Court assumed that Congress had 

imposed a single contribution limit of $5,200. McCutcheon, 134 S. Ct. at 1442. 

The Court then held that if $5,200 given to a particular candidate was 

noncorrupting, there was no justification for preventing an individual from giving 

that same amount to additional candidates. Id. at 1452. That case was brought 

pursuant to a similar expedited review provision, without objection from the 

Commission—even though Buckley had explicitly reached the constitutionality of 

aggregate limits, unlike the bifurcation at issue here.

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In short, the Court has not examined, much less approved, Congress’s 

decision to artificially bifurcate a noncorrupting contribution and require half of it 

to be given for the purposes of a primary election. That fact alone is sufficient to 

require certification of Appellant’s First Amendment claim.

Likewise, no court has considered the specific Fifth Amendment challenge 

brought below. Appellants’ challenge is based on the asymmetry posed when a 

candidate who faces a primary challenge competes in the general election against a 

candidate who ran virtually unopposed during the primary. The only difference 

between Holmes and Jost, and donors supporting the general election opponents of 

the candidates favored by Holmes and Jost, was that those other contributors, 

provided they gave to an unchallenged incumbent, could give $5,200 solely toward 

general election use, while Appellants could not.

Since the Supreme Court has not heard these as-applied claims, the 

constitutional questions posed by Ms. Holmes and Mr. Jost’s claims should be 

certified to this Court, sitting en banc, as Congress intended in enacting § 30110. 

Argument

I. Standard of Review

Courts of Appeals review de novo the failure to certify questions of law

pursuant to 52 U.S.C. § 30110. See, e.g., Goland v. United States, 903 F.2d 1247, 

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1252 (9th Cir. 1990).5 Likewise, this Court reviews de novo a district court’s entry 

of summary judgment. See, e.g., Solomon v. Vilsack, 763 F.3d 1, 8 (D.C. Cir. 

2014) (“We review de novo the district court’s grant of summary judgment, and

can affirm only if the record demonstrates both that there is no genuine issue as to 

any material fact, and that the moving party is entitled to a judgment as a matter of 

law”) (internal citation and quotation marks omitted). 

II. Standard for Certifying Questions Under 52 U.S.C. § 30110

a. For challenges to FECA, Congress provided an exclusive review 

provision—now codified at 52 U.S.C. § 30110—to ensure swift 

consideration of constitutional questions posed by federal 

campaign finance restrictions.

Congress designed a special jurisdictional provision to provide quick and 

clear interpretation of FECA by the circuit courts of appeals: 

The Commission, the national committee of any political party, or any 

individual eligible to vote in any election for the office of President 

may institute such actions in the appropriate district court of the 

United States, including actions for declaratory judgment, as may be 

appropriate to construe the constitutionality of any provision of this 

Act. The district court immediately shall certify all questions of 

 

5

 In Republican Nat’l Comm. v. FEC (In re Anh Cao), 619 F.3d 410, 415 (5th Cir. 

2010) (en banc), the Fifth Circuit reviewed the denial of certification of questions 

under an “abuse of discretion” standard, citing Goland, 903 F.2d at 1252. But 

Goland held that the decision to certify questions is one of law subject to de novo

review. Goland, 903 F.2d at 1252 (“We are confronted in this case with a question 

of law -- whether the caselaw reviewing and interpreting Federal Election 

Campaign Act amendments disposes of this constitutional challenge. Accordingly, 

our review is de novo”) (citing United States v. McConney, 728 F.2d 1195 (9th Cir. 

1984) (en banc)).

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constitutionality of this Act to the United States court of appeals for 

the circuit involved, which shall hear the matter sitting en banc.

52 U.S.C. § 30110. There is no dispute that Appellants are members of the class 

capable of bringing a case under the § 30110 review provision, which is “‘the 

exclusive means of obtaining judicial review in those cases to which it applies.’”

Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013) (per curiam)

6 (quoting and 

applying City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979) (emphasis 

in Wagner). 

As Wagner explained, “the plain text of section [30110] grants exclusive 

merits jurisdiction to the en banc court of appeals.” Id. Wagner further explained 

that “‘Congress’s obvious intent in enacting [§ 30110] was to deprive district 

courts and panels of the circuit courts of appeals of jurisdiction to consider the 

constitutionality of the FECA.’” Id. (quoting and applying FEC v. Lance, 617 F.2d 

365, 367-68 (5th Cir. 1980) (Lance I)). 

b. The district court’s discretion to decline certification is limited.

Section 30110 is not ambiguous. It requires district courts to “immediately” 

certify “all questions of constitutionality.” 52 U.S.C. § 30110. The command is 

forceful and clear. The Supreme Court “ha[s] stated time and again that courts 

 

6 This Court, en banc, reached the merits of Wagner without modifying the panel’s 

holding concerning 52 U.S.C. § 30110. Wagner v. FEC, No. 13-5162, 2015 U.S. 

App. LEXIS 11625 (D.C. Cir. July 7, 2015). 

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must presume that a legislature says in a statute what it means and means in a 

statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-

254 (1992) (collecting cases). Having noted and given effect to unambiguous 

statutory language, “judicial inquiry is complete.” Id. (quoting Rubin v. United 

States, 449 U.S. 424, 430 (1981)). 

Nevertheless, the district court serves three limited, but important, functions. 

First, it “must develop a record for appellate review by making findings of fact.” 

Wagner, 717 F.3d at 1009 (citing Bread Political Action Committee v. FEC, 455 

U.S. 577, 580 (1982) (“Bread PAC”) and Buckley v. Valeo, 519 F.2d 817, 818-19, 

(D.C. Cir. 1975) (en banc) (per curiam) aff’d in part and rev’d in part 424 U.S. 1 

(1976) (per curiam)). Second, the district court “must determine whether the 

constitutional challenges are frivolous or involve settled legal questions.” Id. Third, 

the district court must certify the “non-frivolous constitutional questions to the en 

banc court of appeals.” Id. 

The relevant test is straightforward: constitutional challenges must proceed 

under the special review provisions unless they are “frivolous or involve settled 

legal questions.” Id. (collecting cases). This phrasing suggests that “frivolity” and 

“settled legal questions” are separate standards, but this is misleading. In practice, 

courts often conflate the “frivolousness” standard with the “settled questions of 

law” formulation. See California Medical Association v. FEC, 453 U.S. 182, 192 

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n.14 (1981) (“Cal. Med.”); Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 

2000) (en banc). The relevant question is whether the specific question presented 

in a case has already been definitively decided.

Moreover, as the Ninth Circuit has noted, “[o]nce a core provision of FECA 

has been reviewed and approved by the courts, unanticipated variations also may 

deserve the full attention of the appellate court.” Goland, 903 F.2d at 1257. The 

Third Circuit has similarly recognized that “a genuinely new variation on an issue 

raised under a particular section of the FECA that already has been challenged and 

upheld may give rise to a nonfrivolous challenge to that section.” Mariani, 212 

F.3d at 769 (applying Goland and citing Khachaturian v. FEC, 980 F.2d 330, 331 

(5th Cir. 1992) (en banc) (per curiam)). This is unsurprising since facial rulings are 

necessarily rare and limited. As Chief Justice Roberts has noted, it is the Court’s 

practice “‘never to formulate a rule of constitutional law broader than is required 

by the precise facts to which it is to be applied.’” Citizens United v. FEC, 558 U.S. 

310, 373 (2010) (Roberts, C.J., concurring) (quoting United States v. Raines, 362 

U.S. 17, 21 (1960) (quoting Liverpool, New York & Philadelphia S. S. Co. v. 

Commissioners of Emigration, 113 U.S. 33, 39 (1885)). 

Thus, while “not every sophistic twist that arguably presents a ‘new’ 

question should be certified,” district courts ought to certify questions which pose 

genuinely new questions. Goland, 903 F.2d at 1257. The Supreme Court has never 

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considered the constitutionality of the per-election limitation on contributions as it 

applies here. See, e.g., JA 308 n.16 (district court noting that “the Supreme Court 

has not decided the appropriate level of scrutiny in cases challenging political 

contribution limits on equal protection grounds”). 

Because Appellants’ arguments have never been reviewed by any court, and 

in particular not by the Supreme Court, they have not been settled and are not 

frivolous. 

c. The Supreme Court has rejected previous efforts to alter

Congress’s exclusive grant of merits jurisdiction to the en banc

Court of Appeals.

Twice the Supreme Court has been asked to alter § 30110’s jurisdiction, and 

twice the Supreme Court has rejected the suggestion out of hand.

7

First, in Bread PAC, several PACs and trade associations sought to invoke §

30110’s “unique system of expedited review” even though, as corporations and 

PACs, they were plainly not one of the “three carefully chosen classes of persons” 

named in the statute (the FEC itself, national party committees, and natural persons 

eligible to vote for President). 455 U.S. at 578-79, 581. The Court rejected this

“expansive construction” in favor of the statute’s “obvious meaning.” Id. at 581. In 

doing so, Bread PAC noted the potential burden Congress placed upon the 

 

7 Congress enjoys plenary authority to set the jurisdiction of the inferior federal 

courts and the appellate jurisdiction of the Supreme Court. U.S. CONST. art. I, § 8, 

Cl. 9; id. at art. III, § 1; see also, e.g., Ex parte McCardle, 74 U.S. 506 (1869). 

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judiciary in mandating expedited review of a statute, and concluded that in such 

cases “close construction of statutory language takes on added importance” 

because “[j]urisdictional statutes are to be constructed with precision and with 

fidelity to the terms by which Congress has expressed its wishes.” Id. at 580

(quotation marks and citation omitted).

Second, in Cal. Med., the FEC sought to narrow the scope of § 30110 

review, asking the Court to “preclude the use of [§ 30110] actions to litigate 

constitutional challenges to the Act that have been or might be raised as defenses 

to ongoing or contemplated Commission enforcement proceedings.” Cal. Med. 453 

U.S. at 189. The Court declined to adopt this “cramped construction of the statute,” 

noting the “all-encompassing language” of § 30110. Id. at 190; see also id. at 190 

n.13 (“[§ 30110] expressly requires a district court to ‘immediately...certify all 

questions of the constitutionality of this Act’ to the court of appeals.” (emphasis in 

original)). It further stated that the FEC’s interpretation would “undermine the very 

purpose” of the statute: “to provide a mechanism for the rapid resolution of 

constitutional challenges to the Act.” Id. at 191. 

Below, the FEC emphasized the district court’s role in easing the judicial

burden of Section 30110. See, e.g., Holmes v. FEC, No. 14-5281, FEC Mot. for 

Remand at 12 (D.C. Cir. Jan. 2, 2015); Holmes v. FEC, No. 14-1243 (RMC), FEC 

Brief Opposing Certification and in Support of Summary Judgement in Favor of 

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the Commission at 13 (D.D.C. Mar. 13, 2015) (ECF 27); see also JA 232-33 (at 

hearing, FEC asserting screening role for district court). But Cal. Med. considered 

that argument and cautioned against “exaggerat[ing] the burden [§ 30110] actions 

have placed on the federal courts.” 453 U.S. at 192 n.13. In particular, the Court 

noted that “only a handful” of such cases had been heard, including six cases 

during the two years from 1979-80. Id. 

In short, the Supreme Court has unambiguously rejected attempts to secondguess Congress’s judgment in enacting § 30110 or to circumscribe that provision’s 

clear language.

d. Certification is proper for as-applied challenges unless Supreme 

Court precedent directly forecloses the challenge.

i. This Circuit has held that constitutional questions should be 

certified unless the Supreme Court has precisely spoken to 

the issue.

Section 30110 permits a district court to resolve a challenge to FECA in only 

one instance: if the Supreme Court has already directly ruled on the certified 

question so as to foreclose relief. If the Supreme Court has not done so, then the

case merits certification and dismissal is inappropriate. Int’l Ass’n of Machinists 

and Aerospace Workers v. FEC, 678 F.2d 1092, 1096 (D.C. Cir. 1982) (en banc) 

(Under § 30110, the district court certifies questions that are “neither frivolous nor 

so insubstantial as to warrant dismissal for failure to state a claim”) (quoting Int’l

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Ass'n of Machinists and Aerospace Workers v. FEC, No. 80-354, slip. op. at 10 

(D.D.C. Dec. 16, 1980)); see also id. at 1118 (answering certified questions after 

approving claimants’ standing). 

Additional authority on this point comes from a related procedural context. 

For some cases, including in certain campaign finance challenges, Congress 

commands district courts to convene a special three-judge court with direct review 

by the Supreme Court. 28 U.S.C. § 2284. The courts have recognized that the 

standard for convening a three-judge court under that provision is similar to the 

standard for certification under § 30110. Goland, 903 F.2d at 1257-58.

Consequently, this Court’s decision in Feinberg v. Federal Deposit 

Insurance Corp., 522 F.2d 1335, 1336 (D.C. Cir. 1975), which arose in the § 2284

context, is enlightening. There, this Court held that a constitutional question is 

“substantial” unless prior Supreme Court decisions have “foreclose[d] the subject” 

and left “no room for the inference that the question sought to be raised can be the 

subject of controversy.” Id. at 1339 (internal quotation and citation omitted).

Appellants’ proposed constitutional questions, having never been addressed, 

clearly meet this standard. 

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ii. Sister Circuits require narrow, as-applied challenges to be 

resolved by the en banc Courts of Appeals. 

Under § 30110, courts have found narrow, as-applied challenges to be 

sufficiently “substantial,” and found certification of such questions appropriate, 

even where those cases challenge contribution limits upheld facially by the 

Supreme Court. In such cases, a district court’s analysis in deciding the weight of 

the constitutional challenge “closely resembles that applied under [Federal] Rule 

[of Civil Procedure] 12(b)(6).” Goland, 903 F.2d at 1257-58. 

Three cases highlight this liberal standard. In each case, even if the en banc

courts eventually ruled against a challenge, the proper procedure was to allow that 

decision to be made in the first instance by the court of appeals.

Cao v. FEC, illustrates when a question is appropriate for certification. 688 

F. Supp. 2d 498 (E.D. La. 2010) aff'd som. nom. Republican Nat’l Comm. v. FEC 

(In re Anh Cao), 619 F.3d 410 (5th Cir. 2010). There, the United States District 

Court for the Eastern District of Louisiana certified several questions to the Fifth 

Circuit. Among them was whether the $5,000 contribution limit on PAC-tocandidate contributions under 52 U.S.C. § 30116(a)(2)(A) was unconstitutional as 

applied to a political party’s PAC. This PAC-to-candidate contribution limit had

been upheld in prior Supreme Court cases, including Buckley v. Valeo, 424 U.S. at 

35-36, and FEC v. Colo. Republican Federal Campaign Comm., 533 U.S. 431, 

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438-39 (2001) (“Colorado II”). Nevertheless, the Cao plaintiffs brought a 

challenge based upon the important role of established political parties in the 

electoral system. Cao, 688 F. Supp. 2d at 527 ¶ 117 (internal citation omitted).

Given that central role, the Cao plaintiffs argued, a political party’s PAC should 

not be subject to the PAC-to-candidate contribution limit. Cao, 688 F. Supp. 2d at 

547.

The Cao district court concluded that this question was appropriate for 

certification because the Supreme Court had never directly considered that

argument. “Buckley mentioned the predecessor to [the PAC-to-candidate limit], but 

did so only in the context of discussing ad hoc political groups as opposed to 

‘established interest groups.’ Political parties were not mentioned, nor was the 

constitutionality of undifferentiated limits.” Id. (quoting 424 U.S. at 36). The 

district court continued: “the portion of Colorado II cited by the FEC dealt 

exclusively with coordinated expenditures, not contributions,” and “contributions 

and expenditures require distinct constitutional analysis. In fact, the Colorado II

court suggested that parties might warrant additional constitutional protections, but 

declined to address the question.” Id. (citing 533 U.S. at 448-49). 

The en banc Fifth Circuit determined that this certification was appropriate, 

and answered the challenge on the merits. In re Anh Cao, 619 F.3d at 420-21 

(approving of certification of question); id. at 422 (ruling on question certified by 

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district court). The appellate court ultimately ruled that political party PACs should 

be subject to the same contribution limit as other PACs. Id. at 423. But the 

procedural point remains: even though the underlying statute had been twice 

upheld, the courts of the Fifth Circuit recognized that certification was appropriate

where the Cao plaintiffs had brought a novel claim based upon the application of 

that statute to specific facts. 

Another Fifth Circuit case, Khachaturian v. FEC, is similarly instructive, 

and demonstrates the extremely high standard for declaring a case insubstantial.

980 F.2d 330. There, “Khachaturian argue[d] that the [individual contribution] 

limit [was] unconstitutional as applied to his independent candidacy. However, 

Buckley considered, and rejected, claims that the contribution limit invidiously 

discriminates against independent and minor-party candidates as a class.” 980 F.2d 

at 331 (citing 424 U.S. at 33-35). This was a correct reading of Buckley. The 

Buckley Court had specifically stated that “the record [before it was] virtually 

devoid of support for the claim that the [then] $1,000 contribution limitation will 

have a serious effect on the initiation and scope of minor-party and independent 

candidacies.” 424 U.S. at 34. Thus, the Supreme Court had considered the precise 

claim Mr. Khachaturian raised—that the individual-to-candidate contribution limit 

was unconstitutional in the context of an independent candidate. Further, 

Khachaturian had not shown that his situation was any different from that of the 

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minor-party and independent candidates that Buckley had considered. 980 F.3d at 

332. As a result, unlike in Cao, certification was properly declined. 

Finally, in Goland v. United States, the Ninth Circuit emphasized that it is 

not the specific provision of law at issue that determines a question’s substantiality, 

but rather the factual posture and legal theory undergirding the case itself. 903 F.2d 

1247. There, the plaintiff funneled over $120,000 through 56 people to fund 

campaign ads without disclosing his identity. Id. at 1252, 1251. After being 

indicted for violating FECA, Mr. Goland sought certification of three 

constitutional questions under the procedure Appellants invoke here. Id. at 1252.

The Ninth Circuit dismissed as “sophistic” and “creative” Goland’s suggestion 

that, because he contributed anonymously, the individual contribution limit upheld 

in Buckley was inapplicable to him. Id. at 1257, 1258. Nevertheless, even in 

rejecting Goland’s claim, the Ninth Circuit reiterated that “[o]nce a core provision 

of FECA has been reviewed and approved by the courts, unanticipated variations 

also may deserve the full attention of the appellate court.” Id. at 1257. 

Therefore, as-applied challenges are appropriately certified where they arise 

in new factual contexts or raise novel legal arguments. Such is the case here. 

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iii. The district court in this Circuit recognizes its narrow role 

under section 30110 and certifies questions to this Court 

even where the language of the question requires 

modification.

In SpeechNow.org v. FEC, No. 08-0248 (JR), 2009 U.S. Dist. LEXIS 89011 

at *2 (D.D.C. 2009), Judge Robertson recognized the district courts’ limited role 

under section 30110, stating: 

The task before me is not to answer any constitutional questions, or to 

render a judgment of any kind. Instead, I am to make findings of fact 

that will allow the Court of Appeals to answer the constitutional 

questions I certify.

This certification came despite the same district court denying SpeechNow.org’s 

motion to enjoin enforcement of certain contribution limits under FECA. 

SpeechNow.org v. FEC, 567 F. Supp. 2d 70, 82 (D.D.C. 2008). Ultimately, this 

Court decided SpeechNow.org’s challenge, striking down the limits that Judge 

Robertson likely would have upheld. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. 

Cir. 2010) (en banc). 

Libertarian National Committee v. FEC, 930 F. Supp. 2d. 154 (D.D.C. 

2013),

8 went further, modifying a question to narrow the issue and preserve review 

by this Court. In that case, Judge Wilkins found that that the LNC’s proposed 

certified question in a facial challenge was foreclosed by facial rulings of the 

 

8 Below, the district court in this case praised Libertarian National Committee for 

“provid[ing] a cogent overview of the law regarding campaign finance.” 

Consequently the district court “relie[d] on that analysis.” JA 297 n.6. 

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Supreme Court. Id. at 165. Nevertheless, the Court concluded that “on th[o]se 

facts, it appear[ed] that the anti-corruption interests that would be implicated by 

[the contribution limit challenged there] may be minimal.” Id. at 171. Thus, 

After a careful review of the parties’ positions, the facts, and the 

current state of the law in this area, this Court conclude[d] that, 

although the question presented by the LNC for certification does not 

merit review by the en banc Court of Appeals, there is a valid, 

narrower constitutional question raised by the [facts of the case] that 

presents an as-applied challenge that should be certified.

Id. Judge Wilkins certified the narrowed question and presented this Court with 

findings of fact. Id. Libertarian National Committee, therefore, shows how far 

district courts must go to assure novel constitutional challenges are heard by the en 

banc Court of Appeals.

As all these cases, at every level of the federal judiciary, show, the threshold 

inquiry is not whether the offending statute has ever before been subject to a 

constitutional challenge. Instead, it is whether the specific facts and legal claims of 

this as-applied challenge present a novel application of law that has not been ruled 

upon by the Supreme Court. If the case is an unanticipated, as-applied challenge to 

FECA, then the district court erred in failing to certify the presented questions to 

the en banc Court of Appeals. 

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III. Appellants’ case presents an unanticipated, as-applied, challenge to

the division and timing of FECA’s contribution limits.

The Supreme Court has not had an opportunity to review the 

constitutionality of the per-election division of FECA’s base limits, let alone 

subject it to the closely drawn scrutiny the Constitution requires. Tellingly, neither 

the Commission nor the district court below can point to a case that did so. That 

fact alone determines the outcome of this appeal.

The district court instead based its ruling upon the belief that Appellants’

“challenge to FECA’s temporal per-election restrictions on individual 

contributions to federal candidates constitutes a veiled attack on the contribution 

limit set by Congress and upheld by the Supreme Court as a legitimate means to 

combat corruption.” JA 267. This view is mistaken. 

The Supreme Court has repeatedly observed that the First Amendment

injury imposed by limiting the freedom to directly associate with candidates via 

contributions may only be tolerated when the law serves to fight corruption or its 

appearance. McCutcheon, 134 S. Ct. at 1441 (“Any regulation must instead target 

what we have called ‘quid pro quo’ corruption or its appearance”) (emphasis 

added). 

Appellants do not dispute that Congress may set a contribution limit. They 

dispute whether Congress may artificially divide that limit once the legislature 

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arrives at an amount deemed low enough to combat corruption. If the per-election 

division does not serve the government’s anti-corruption interest, as-applied to 

these facts, then Appellants’ associational freedoms has been infringed unlawfully. 

Accordingly, the district court ought to have certified this case to the en banc Court 

of Appeals.

a. FECA imposes the artificial, per-election division at issue here.

The district court rejected Appellants’ arguments that FECA itself bifurcated 

the contribution limits, determining that “FECA does not dictate a maximum 

contribution limit of $5,200 that may be split between the primary and general 

elections.” JA 300. Thus, the district court rejected Appellants’ claim that the perelection limit is unconstitutional as-applied because “[t]he base limit is not 

$5,200.” JA 301. In doing so, the district court rejected the clear language of the 

statute and ignored the realities of its application. JA 303-304. 

A system of per-election contribution limits has been in place since 1974. 

See 52 U.S.C. § 30116(a); Federal Election Campaign Act of 1974, Pub. L. 93-443 

§ 101, 88 Stat. 1263 (1974). Originally set at $1000, the limit was doubled by 

Congress in 2002 and indexed for inflation. JA 272, ¶ 6; 52 U.S.C. §§ 30116(a)(1), 

(c) JA 273, ¶ 9. As a practical matter, it has always been recognized that a 

candidate may raise $5200 (originally $2000) from a donor in an election cycle. 

For example, the FEC has long allowed donors to a write a single check to a 

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candidate for the combined primary/general election limit, provided that the donor 

included a notation dividing the contribution between the primary and the general. 

11 C.F.R. § 110.1(b)(5)(ii)(B). Similarly, the press routinely reports donor 

contributions to candidates in the aggregate. E.g., Tim Higgins Presidential 

Fundraising: See Who's Spending, Who's Lagging, Who's Raising and Where, 

BLOOMBERG, July 16, 2015, at http://www.bloomberg.com/politics/articles/2015-

07-16/presidential-campaign-finance-reports-a-data-visualization. 

This division is not simply an exercise in legislative discretion as to setting 

dollar amounts. As a practical matter, there is little value to winning a primary if 

winning the general election does not follow. And, indeed, it is quite clear that the 

vast majority of members will sit in Congress knowing that certain donors 

contributed $5,200 to their efforts to be elected, and can contribute up to that 

amount, adjusted for inflation, should they seek reelection. In short, Congress has 

plainly determined that a candidate may collect $5,200 from a single contributor

without danger of corruption. Compare Buckley, 424 U.S. at 30 with McCutcheon, 

134 S. Ct. at 1452. 

Furthermore, under the present system, a donor can even contribute $5200 to 

a primary victor after the primary election is over. But contributions earmarked for 

elections that have already taken place may only be used to retire outstanding debts 

from that specific, prior election. 11 C.F.R. § 110.1(b)(3)(i). Moreover, 

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contributions given for a primary can be carried over to a general election. 11 

C.F.R. § 110.1(b)(5)(ii)(B). Thus, a contributor who gives $5,200 in earmarked 

contributions the day before a primary election may functionally give $5,200 for 

general election purposes. But if she seeks to do the same the day after the 

primary, her ability to provide general election support is halved to a single $2,600 

contribution for the general election. 

This per-election division doubles the scope of association that certain 

contributors enjoy, and does so as a matter of statutory and regulatory design.9 It 

specifically works most intensely in favor of candidates who do not have primary 

opposition, and against donors who wish to support a particular party’s nominee in 

the general election, regardless of which of the party’s contenders is victorious in 

the primary. 

Accordingly, the government must justify this division and show that it

serves to prevent quid pro quo corruption. This question has never been subject to

the scrutiny of judicial review, and thus warrants certification.10 

 

9 The existence of other elections, whether run-off elections which allow for three 

elections during a cycle, or the unusual “jungle” system used in Louisiana, is not to 

the contrary. Appellants here seek to give to candidates that have survived a 

primary challenge and are contesting a general election—no more and no less.

10 Of course, the district court did reach the merits. But it had no jurisdiction to do 

so under 52 U.S.C. § 30110 because the Supreme Court had not foreclosed the 

subject. See Cal.Med., 453 U.S. at 192 n.14; Feinberg, 522 F.2d. at 1339. 

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b. The Supreme Court has neither considered nor decided whether 

the per-election limit furthers the government’s interest in 

preventing quid pro quo corruption.

i. Buckley v. Valeo did not consider or review FECA’s perelection structure, and therefore cannot foreclose 

Appellants’ challenge.

Buckley v. Valeo is the seminal case addressing the intersection between the 

First Amendment and campaign finance reform. Yet the plaintiffs in that case did 

not challenge the structure and timing of FECA’s contribution limits, and Buckley

is consequently silent as to the constitutionality of the per-election division of 

those limits. The district court nonetheless relied upon Buckley to foreclose 

Appellants’ challenge. JA 301 (“The base limit is not $5,200...[it is] $2,600, and 

Buckley mandates deference to that limit”). 

The district court’s view that Buckley’s general blessing of base contribution 

limits foreclosed future examination of the per-election division, a question not 

before the Court in 1976, is unpersuasive.11 After all, even the district court agreed

“that Buckley upheld the dollar value of FECA’s individual contribution limit and 

did not address the constitutionality of setting contribution limits on a per-election 

basis.” JA 301.

 

11 Furthermore, Buckley did not have the benefit of subsequent guidance and 

regulation by Congress and the FEC. See, id. at 1446 (detailing subsequent changes 

to FECA by Congress); see also id. at 1447 (detailing same for FEC).

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It is certainly true that Buckley provides the proper standard for determining 

when a contribution limitation infringes upon the First Amendment. But Buckley 

merely stands for the proposition that base limits are generally constitutional, but 

not that any and every base limit is constitutional. Davis v. FEC—which facially 

invalidated a base limit more than 30 years after Buckley was decided—

conclusively demonstrates as much. 554 U.S. 724 (2008); see infra at 47. 

The district court recognized, instead, that Buckley “found generally that 

individual contribution limits advanced a ‘sufficiently important’ state interest if 

they are appropriately designed to reduce quid pro quo corruption or the 

appearance of corruption.” JA 297 (quoting Buckley, 424 U.S. at 28) (emphasis 

added). This is unsurprising, since Buckley was the general facial challenge to 

FECA, brought shortly after the Act became law. See, e.g., Buckley, 424 U.S. at 8-

9 (“The complaint sought both a declaratory judgment that the major provisions of 

the Act were unconstitutional and an injunction against enforcement of those 

provisions”). Under a First Amendment analysis, the Buckley Court upheld the 

individual limit against facial attack. Id. at 29. But Buckley does not foreclose asapplied challenges to particular limits. See, e.g. Wisconsin Right to Life, Inc. v. 

FEC, 546 U.S. 410, 411-12 (2006) (“WRTL I”) (allowing an as-applied challenge 

to BCRA provision upheld facially in McConnell v. FEC, 540 U.S. 93, 190 n.73 

(2003)). Appellants’ challenge, if successful on the merits, will in no way dislodge 

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Buckley’s reasoning. Rather, this case will determine if FECA’s contribution limit, 

which sets forth Congress’s judgment as to the level of contribution that can be 

permitted consistent with the government’s anti-corruption interest, is in fact 

“appropriately designed to reduce quid pro quo corruption or the appearance of 

corruption” where it is artificially bifurcated across two elections. JA 297 (quoting 

Buckley, 424 U.S. at 28) (emphasis added). 

Unsurprisingly, there have been a number of as-applied challenges brought 

against FECA after Buckley, belying claims that such challenges are foreclosed. 

For instance, while the Buckley Court upheld FECA’s disclosure limits to all party 

committees, certain minor parties have been permitted a judicial exemption from 

the law’s requirements. Brown v. Socialist Workers Campaign Comm., 459 U.S. 

87, 102 (1982). Not all such as-applied challenges have been successful, but when 

novel claims have been brought under the § 30110 procedure it has been the duty 

of the en banc Court of Appeals to determine whether FECA unnecessarily 

infringes upon constitutional freedoms. Mariani v. United States, 212 F.3d 761 

(2000) (finding that plaintiff’s challenge properly had been certified, but 

upholding, under § 30110 procedure, FECA’s prohibition against direct corporate 

contributions to candidates). 

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ii. The Supreme Court’s most recent case reviewing 

contribution limits accords with Appellants’ reading of the 

statute. 

In 2014, the Court revisited, in part, its holding in Buckley and struck down 

the federal aggregate contribution limit. McCutcheon, 134 S. Ct. at 1462. In doing 

so, the Court reviewed the design of the aggregate limit as it related to the 

government’s interest in fighting corruption, and found that the statute was not 

“closely drawn” to that interest. While the McCutcheon opinion has merited notice 

for its articulation of the relevant quid pro quo corruption that justifies campaign 

finance regulations in the first place,

12 it also directly spoke to FECA’s base limits. 

In order to review the aggregate limit for tailoring, the Court necessarily 

looked to the underlying base limits, and in doing so read FECA to work precisely 

as Appellants maintain that it does: by creating a base limit of $5,200. Specifically, 

the Chief Justice’s controlling opinion held that “Congress’s selection of a $5,200 

base limit indicates its belief that contributions of that amount or less do not create 

a cognizable risk of corruption.” McCutcheon, 134 S. Ct. at 1452. The combination

of the primary and general election contribution limits was the basis for striking 

down the aggregate contribution limits. 

 

12 “Any regulation must instead target what we have called quid pro quo corruption 

or its appearance. That Latin phrase captures the notion of a direct exchange of an 

official act for money...Campaign finance restrictions that pursue other objectives, 

we have explained [are] impermissibl[e].” 134 S. Ct. at 1441 (punctuation altered, 

brackets added, citations omitted).

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The district court below incorrectly disregarded the Supreme Court’s 

holding as “taken out of context” and “dicta” in order to justify its finding that 

“[t]he base limit is not $5,200.” JA 303, 301. But the McCutcheon Court based its 

holding on the belief that, in fact, the base limit is $5,200. In describing the facts of 

the McCutcheon challenge the Court noted “[f]or the 2013-2014 election cycle, the 

base limits in the Federal Election Campaign Act of 1971 (FECA), as amended by 

the Bipartisan Campaign Reform Act of 2002 (BCRA), permit an individual to 

contribute up to $2,600 per election to a candidate ($5,200 total for the primary 

and general elections).” Id. at 1442 (emphasis added). 

Thus, the McCutcheon Court was plainly aware of the per-election 

bifurcation. Nevertheless, it determined that the amount authorized for primary and 

general election contributions was the relevant fact for the purposes of finding 

whether FECA was properly tailored to the government’s anti-corruption interest. 

As the McCutcheon Court reasoned, 

“[i]f there is no corruption concern in giving nine candidates up to 

$5,200 each, it is difficult to understand how a tenth candidate can 

be regarded as corruptible if given $1,801, and all others 

corruptible if given a dime. And if there is no risk that additional 

candidates will be corrupted by donations of up to $5,200, then the 

Government must defend the aggregate limits by demonstrating 

that they prevent circumvention of the base limits.”

Id. at 1452. That is, the Court held that the state had no interest in further 

regulating the aggregation of contributions independent of the base limit of $5,200. 

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Id. at 1448 (“The individual may give up to $5,200 each to nine candidates, but the 

aggregate limits constitute an outright ban on further contributions to any other 

candidate”) (emphasis added). The existence of the combined primary and general 

election limits was at the core, not the periphery, of the Court’s holding. The Chief 

Justice’s reading of the statute, therefore, was not dicta.13 Indeed, the McCutcheon 

dissenters also based their argument on a base limit of $5200. See 134 S.Ct. at

1473 (Breyer, dissenting) (the majority “significantly understates the problem. 

That is because federal election law also allows a single contributor to give $5,200 

to each party candidate over a 2-year election cycle (assuming the candidate is 

running in both a primary and a general election). §[ 30116](a)(1)(A); 78 Fed. Reg. 

8532. There are 435 party candidates for House seats and 33 party candidates for 

 

13 Even assuming the McCutcheon passages are “dicta,” however, the district court 

was still bound by the Supreme Court’s reasoning. See, e.g., United States v. 

Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (“‘carefully considered language of the 

Supreme Court, even if technically dictum, generally must be treated as 

authoritative’”) (quoting Doughty v. Underwriters at Lloyd’s, London, 6 F.3d 856, 

861 n.3 (1st Cir. 1993)). That is because even if a statement is dicta “it does not 

necessarily follow that [it was] wrong, and certainly dicta of the United States 

Supreme Court should be very persuasive.” Gabbs Exploration Co. v. Udall, 315 

F.2d 37, 39 (D.C. Cir. 1963) (internal citations omitted); also IFC Interconsult, AG 

v. Safeguard Intl Partners, 438 F.3d 298, 311 (3d Cir. 2006) (“we pay due homage 

to the Supreme Court’s well-considered dicta as pharoi that guide our rulings”). 

This is particularly true when the case at issue is of recent vintage. As the Tenth 

Circuit recognized, lower courts “are bound by Supreme Court dicta almost as 

firmly as by the Court’s outright holdings, particularly when the dicta is recent and 

not enfeebled by later statements.” Peterson v. Martinez, 707 F.3d 1197, 1210 

(10th Cir. 2013) (quotation marks and citation omitted) (emphasis added). 

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Senate seats in any given election year. That makes an additional $2.4 million in 

allowable contributions. Thus, without an aggregate limit, the law will permit a 

wealthy individual to write a check, over a 2-year election cycle, for $3.6 

million—all to benefit his political party and its candidates.”) See also id. (“no ... 

candidate receives more than it could have received from Rich Donor directly--

...$5,200); id. at 1474 (“Campaign finance law prohibits an individual from 

contributing (1) more than $5,200 to any candidate in a federal election cycle”). 

The district court claims that Buckley forecloses any consideration of the 

structure of Congress’s base contribution limits. JA 301-302. But whether the

bifurcation of that limit fights corruption is an open question, and one unlikely to 

be answered in the affirmative, especially after McCutcheon. We know, as the 

McCutcheon Court knew, that Congress has authorized the giving of $5,200 to a 

candidate for office for most of the election cycle, and that such contributions do

not implicate the anti-corruption interest. The per-election division is an artificial 

means of dividing that amount. From an anticorruption perspective, it is no 

different from permitting $2,600 for the primary election, $1,300 from the primary 

until October 1, and a final $1,300 from October 1 to Election Day. However 

convenient a particular administrative approach may be for the FEC, these 

divisions do nothing to prevent corruption, and that is the only governmental 

interest that justifies a contribution limit. 

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The district court dismissed McCutcheon entirely. It stated that “[t]he 

Supreme Court’s reference to $5,200 was a product of the facts in that case, where 

appellant made the maximum permissible base level contributions to his preferred 

candidates for their primary and general elections....” JA 304, n.12. But this is true 

for only some, but not all, of Mr. McCutcheon’s contributions. He also wished to 

give $1,776 to an additional 12 candidates, among other activities. See, e.g., 

McCutcheon, 134 S.Ct. at 1443 (“[h]e alleges that he wished to contribute $1,776 

to each of 12 additional candidates but was prevented from doing so by the 

aggregate limit on contributions to candidates”). That is, McCutcheon stands 

generally for the unconstitutionality of “prophylaxis-upon-prophylaxis,” of 

contribution limits that simply pile additional restrictions upon the base limit on 

how much may be contributed to a candidate. Id. at 1458 (quoting and applying 

Wisconsin Right to Life, 551 U.S., at 479 (Roberts, C.J. controlling opinion)). 

Merely pointing to a plaintiff’s preferred contribution structure cannot change the 

fact that the Court looked to $5,200 as the threshold at which contributions risk

becoming “corrupting,” and that this understanding of the base limit was central 

both to its holding, Id. at 1442; id. at 1452, and to the dissenters’ arguments as well 

id. at 1476 (“total allowable contributions to Smith [are] $5,200 per election 

cycle.”). 

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Consequently, the district court was incorrect in determining that “the base 

limit—the maximum contribution to a candidate for his general election 

campaign—is $2,600, and Buckley mandates deference to that limit.” JA 301. 

Rather, Appellants “claim is unsettled...because Buckley did not address when a 

contributor could give $5,200 during the election cycle.” Id. (emphasis in original).

It is undisputed that FECA and the FEC permit individuals to give $5,200 to the 

same candidate for the same office during the same election cycle—as the 

McCutcheon Court properly noted. And it is further undisputed that no Supreme 

Court case has determined whether the artificial division of the $5,200 into two 

giving periods during a contest for office featuring a primary and a general election 

is properly designed to serve the government’s anti-corruption interest. 

Consequently, the district court erred in not recertifying Appellants’ First 

Amendment question to the en banc Court of Appeals.

c. Neither the Supreme Court nor any other court has considered 

Appellants’ specific Fifth Amendment challenge.

Appellants’ challenge is based upon the asymmetry posed when a candidate 

who faces a primary challenge competes in the general election against a candidate 

who ran unopposed or virtually unopposed during the primary.14 During the 2014 

 

14 While defining the exact situations in which a candidate is “virtually unopposed” 

would require the Commission to issue a regulation, there is nothing in the record 

to indicate that the Commission could not do so, nor that the specific elections at 

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election, the only difference between Appellants and contributors to their preferred 

candidates’ general election opponents was that a contributor to Congressman 

Loebsack or Congressman Peters could give $5,200 solely toward general election 

use, while Appellants were denied that same ability. 

Appellants challenge this result under the Fifth Amendment’s guarantee of

the equal protection of the laws. The district court, however, found Appellants’ 

Fifth Amendment claim unworthy of certification, stating that “FECA treats all 

individual contributors equally by imposing uniform per-candidate, per-election 

contribution limits”, and accordingly, because “Buckley’s reasoning 

applies...here” Appellants’ “Fifth Amendment claim is based on settled law.” JA 

306, 308. This was incorrect, and merits reversal. 

i. The facial opinion in Buckley did not reach the Fifth 

Amendment question.

Given that the per-election division of the base limit was not considered in 

Buckley’s First Amendment analysis, it is unsurprising that the Court did not 

address the equal protection implications of that regime. 424 U.S. at 35 (“In view 

of these considerations, we conclude that the impact of the Act’s $1,000 

 

issue here are anywhere near the line. JA 264 (noting the Commission’s ability to 

implement “as-applied challenges leading to sweeping relief and regulatory 

adjustment”, and citing the FEC’s regulatory changes after FEC v. Wisconsin Right 

to Life, Inc., 551 U.S. at 457 at 72 Fed. Reg. 72899 (Dec. 26, 2007) and FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 241 (1986) at 60 Fed. Reg.

35292, 35293 (July 6, 1995)). 

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contribution limitation on major-party challengers and on minor-party candidates 

does not render the provision unconstitutional on its face”) (emphasis added). 

Indeed, the district court itself observed that that the Buckley opinion’s facial 

review of the limits “does not mean that the statute could not be unconstitutional in 

an as-applied challenge” under the Fifth Amendment. JA 306 (quoting Buckley, 

424 U.S. at 31 n.33 as expressing no “opinion with regard to the alleged invidious 

discrimination resulting from the full sweep of the legislation as enacted”).

No court has considered the issue that Appellants bring,

15 although the 

McCutcheon Court, by treating the primary and general election limits as one 

overall limit, did suggest that the transfer of $5,200 from an individual contributor 

to a particular candidate posed no corruption concerns. Nevertheless, the district 

court determined that Appellants claim was “foreclosed by Buckley.” JA 308, n.15.

ii. Appellants bring a novel, justiciable, equal protection claim.

Unable to foreclose certification on the ground that this case has been 

reviewed by the Supreme Court, the district court justified denial by reaching the 

merits and quoting extensively from the its rejection of Appellants’ earlier motion 

 

15 As discussed infra, a Fifth Amendment claim against other federal contribution 

limits was raised in Davis v. FEC, 554 U.S. 724 (2008) (declaring unconstitutional 

the “millionaire’s amendment” changing contribution limits for opponents of selffinanced candidates), but the Supreme Court ruled on other grounds. Id. at 738. 

Nonetheless, the Court has certainly not foreclosed Fifth Amendment challenges to 

contribution limits generally—let alone Fifth Amendment challenges to the perelection division in particular.

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for a preliminary injunction. JA 306-07. Because the district court’s authority to 

reject certification is, as discussed supra, limited, the district court essentially 

stated that Appellants had not presented a claim capable of judicial redress. JA 

307; but see Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (equal protection 

doctrine’s “broad and benign provisions” render invalid any law which may “itself 

be fair on its face and impartial in appearance, yet...[be] applied...so as practically 

to make unjust and illegal discriminations between persons in similar 

circumstances, material to their rights”).

The Constitution’s guarantee of equal protection is designed to prevent 

“governmental decisionmakers from treating differently persons who are in all 

relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citation 

omitted). The “[e]qual protection analysis in the Fifth Amendment area is the same 

as that under the Fourteenth Amendment,” Buckley, 424 U.S. at 93 (citation 

omitted), and “[t]he Equal Protection Clause of the Fourteenth 

Amendment...proscribe[s]” against “state action of every kind that operates to 

deny any citizen the equal protection of the laws.” Gilmore v. Montgomery, 417 

U.S. 556, 565 (1974) (internal quotation marks and citation omitted) (emphasis 

added). 

Here, the government has implicitly classified contributors based upon 

whether or not their preferred candidate faces a primary challenger. For example, 

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Adam wishes to support Party A’s candidate in the general election. Since Party A 

has an uncontested primary, Adam can contribute $5200 before the primary date, 

knowing that it will all be used to support the election of Party A’s nominee in the 

general election. Briana wishes to support Party B’s candidate in the general 

election. But since Party B has a contested primary, she cannot confidently 

contribute $5200 to her party’s nominee in the general election. FECA thus

classifies contributors based upon the moment during an election period—before 

or after a primary election—that a contributor seeks to financially associate with a 

candidate’s campaign. Worse, it does so in the context of a fundamental right that

“lies at the foundation of a free society”, and is accordingly “protected not only 

against heavy-handed frontal attack, but also from being stifled by more subtle 

governmental interference.” Buckley, 424 U.S. at 25; Bates v. City of Little Rock, 

361 U.S. 516, 523 (1960).

Indeed, the Buckley Court anticipated that circumstances such as Appellants’ 

might arise. Buckley merely considered a facial challenge to FECA’s contribution 

limits, and did not consider the effects of separate limits for primary elections. 424 

U.S. at 35 (“the impact of the Act’s $1,000 contribution limitation on major-party 

challengers and on minor-party candidates does not render the provision 

unconstitutional on its face”). The Buckley Court left the door open for subsequent 

challenges where those limits work “invidious discrimination.” Id. at 31, n.33. This 

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was particularly important because FECA was necessarily designed by 

incumbents, and so it was possible that “the Act, [might] on its face appear[] to be 

evenhanded” but this appearance “may not reflect political reality.” Id.; see 

McCutcheon, 134 S. Ct. at 1441-42 (“[T]hose who govern should be the last 

people to help decide who should govern”) (emphasis in original).

While the Court has yet to address the specific question presented here—

hence the need for the unusual review process of 52 U.S.C. § 30110—it has 

determined that where contribution limits work asymmetrical effects, they threaten 

fundamental freedoms and may be unconstitutional.

In 2008, Davis v. FEC considered a BCRA provision, commonly called the 

“millionaire’s amendment,” which permitted candidates facing a self-financed 

opponent to raise money in increments triple the normal base limit. 554 U.S. at 

729; id. at 738. Before BCRA’s enactment, observers noted that the provision’s 

inevitable effect would be asymmetric treatment in favor of a specific class of 

candidate—in that case, incumbents. STATEMENT OF SENATOR CHRIS DODD, 147 

CONG. REC. S. 2536, 2542 (2001) (“this is what I could call incumbency 

protection”). 

The Davis plaintiff, a self-financed Congressional candidate, raised both 

First and Fifth Amendment objections. 554 U.S. at 744, n.9. Ultimately, Davis 

prevailed—though the Court did not reach his Fifth Amendment claim—on the 

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ground that such an asymmetric outcome offends the Constitution. Id. at 738 (“We 

have never upheld the constitutionality of a law that imposes different 

contributions for candidates who are competing against each other, and we agree 

with Davis that this scheme impermissibly burdens his First Amendment right to 

spend his own money for campaign speech”).

Similarly, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

the Supreme Court struck down an Arizona public financing regime under the First 

Amendment based, in part, upon its asymmetric effect. 564 U.S. ___, ___,131 S. 

Ct. 2806, 2819 (2011). Arizona’s system allowed “a publicly financed candidate” 

to “receive[] roughly one dollar for every dollar spent by an opposing privately 

financed candidate” or independent group supporting such a candidate. Id. at 2813. 

Relying on “[t]he logic of Davis” the Court rejected this approach. Id. at 2818. In 

its opinion, the Court also pointed to a further asymmetry: some Arizona districts, 

including its state House districts, elected more than one candidate. Consequently, 

“each dollar spent by the privately funded candidate would result in an additional 

dollar of campaign funding to each of that candidate’s publicly financed 

opponents.” Id. at 2819 (emphasis added). The Court stated that, in such 

circumstances, candidates would be required “to fight a political hydra of sorts.” 

Id. 

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49

This was equally (if not especially) true for independent groups which, in 

speaking about candidates, would trigger direct cash payments to those candidates’ 

opponents. Id. (“spending one dollar can result in the flow of dollars to multiple 

candidates the group disapproves of”). These passages can only be read to express 

the Court’s concern—explicitly raised in both Buckley and Davis—that 

governments might impermissibly burden political association and expression by 

advantaging some over others. This violates the First Amendment, as explained 

above. It also falls far short of the Fifth Amendment’s equal protection guarantee.

In fact, the Tenth Circuit has struck down asymmetric contribution limits 

under the equal protection doctrine. While that case, Riddle v. Hickenlooper, 742 

F.3d 922 (10th Cir. 2014), contemplated a slightly different factual posture, it 

addressed a parallel constitutional claim, where a contribution limit that operated 

asymmetrically violated the guarantee of equal protection. 

The case involved a Colorado law permitting uncontested major party 

candidates to receive contributions for the primary and general elections—just as 

federal law permits now. Id. at 924 (Contributions for both elections allowed “even 

when there is only one candidate seeking the nomination” of a major party). These 

primary and general election contributions could—as in the federal system—all be 

spent in the general election. Compare id. at 926 with JA 273-74, ¶ 11; JA 277, ¶ 

26; see also Congressional Candidates and Committees, FEDERAL ELECTION 

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50

COMMISSION at JA 94 (“Nevertheless, the campaign of a candidate running in the 

general election may spend unused primary contributions for general election 

expenses”). But candidates seeking the nomination of other, non-major parties, 

could receive primary contributions “only when multiple candidates vie for the 

nomination.” Id. at 924. Other candidates who did not run in a primary—such as 

independent or write-in candidates—were also barred from accepting primary 

election money. Id. at 927. 

The Riddle plaintiffs, like Ms. Holmes and Mr. Jost, sought to contribute the 

full primary and general election amounts to a general election candidate (in 

Riddle, a write-in candidate). The Tenth Circuit found no cognizable anticorruption interest in “creat[ing] a basic favoritism between candidates vying for 

the same office,” and determined that Colorado’s asymmetric scheme violated the 

U.S. Constitution’s requirement that citizens be treated equally under the law. Id. 

at 929-30. Specifically, the Tenth Circuit determined that because “[a]fter the 

primary, a supporter of [the write-in candidate] could give” half as much money 

for the general election as other candidates, “the statute treated contributors 

differently based on the political affiliation of the candidate being supported. And 

by treating the contributors differently, the statute impinged on the right to political 

expression.” Id. at 927.

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51

Despite these relevant precedents and persuasive analysis, and the lack of 

any ruling on the direct question presented here, the district court declined to 

certify Appellants’ equal protection question. In doing so, the district court 

suggested that Appellants are “only restricted to the exact same extent as any other 

individuals wishing to contribute more than $2,600 per election.” JA 306-307

(citation and quotation marks omitted, emphasis in original). As discussed supra, 

the law does not actually work this way—there are circumstances in which $5,200 

may be given to candidates for general election purposes. And, in any event, only 

the en banc Court of Appeals has jurisdiction to render that judgment. 

iii. Wagner v. FEC is not to the contrary.

The en banc Court of Appeals recently rejected a Fifth Amendment claim in 

the context of a § 30110 challenge to FECA. Wagner v. FEC, No. 13-5162, 2015 

U.S. App. LEXIS 11625 (D.C. Cir. July 7, 2015).

Wagner did speak to one aspect of Appellants’ challenge: whether strict 

scrutiny would apply to a Fifth Amendment claim brought against FECA. The 

Riddle decision, in the Tenth Circuit, specifically declined to resolve that issue, 

finding instead that the Colorado contribution limit failed closely drawn scrutiny. 

742 F.3d at 928. Wagner did reach that question, holding that strict scrutiny is 

inappropriate for equal protection challenges to individual contribution limits. 

Wagner, 2015 U.S. App. LEXIS 11625 at *81-82. 

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52

While the Wagner Court rejected Appellants’ claims that certain categories 

of givers could be prohibited from financially associating with candidates of their

choice, Wagner involved Congressional limits on government contractors. Id. at 

*2-3. The en banc Court differentiated limits on government officials from 

restrictions on giving by the general public, given the state’s interest in “allowing 

governmental entities to perform their functions.” Id. at *15 (citing Citizens 

United, 558 U.S. at 341). This interest is not implicated here, as Appellants are 

private citizens and “the Supreme Court has identified no congressional objective 

beyond protection against quid pro quo corruption and its appearance that warrants 

imposing campaign finance restrictions on the citizenry at large.” Id. 

Furthermore, the Wagner plaintiffs’ challenge was rejected, in part, because 

“plaintiffs acknowledge that they know of no case in any court in which an equalprotection challenge to contribution limits succeeded where a First Amendment 

one did not.” Id. at *81 (quotation marks and citation omitted) (emphasis in 

original). But the Riddle case provides ample evidence that Fifth Amendment 

remedies are available when contribution limits violate the equal protection of the 

laws. This fact, in itself, is sufficient to justify § 30110 review by the en banc 

Court of Appeals.

Thus, Appellants seek relief which can be granted under the Fifth 

Amendment. Their claim is novel and has never been reviewed by the Supreme 

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53

Court. Accordingly, Appellants’ claim ought to be heard en banc pursuant to 52 

U.S.C. § 30110.

Conclusion

For the foregoing reasons the judgment of the district court should be 

reversed and the merits of Appellants’ constitutional claims certified to this Court, 

en banc, pursuant to 52 U.S.C. § 30110.

Respectfully Submitted,

s/ Allen Dickerson 

Allen Dickerson (D.C. Cir. No. 54137)

Tyler Martinez (D.C. Cir. No. 54964) 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiffs-Appellants

Dated: August 17, 2015. 

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54

Certificate of Compliance

I hereby certify that this brief complies with the type-volume limitation set 

forth in Federal Rule of Appellate Procedure 32(a)(7)(B)(i) because it contains 

12,315 words, excluding the parts of the brief exempted by Federal Rule of 

Appellate Procedure 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rules of 

Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a 

proportionally-spaced typeface using Microsoft Word 2010 in Times New Roman

14-point font.

Dated: August 17, 2015 s/ Allen Dickerson

Allen Dickerson

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USCA Case #15-5120 Document #1568248 Filed: 08/17/2015 Page 68 of 93
ADDENDUM

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ADD i 

Addendum Table of Contents

52 U.S.C. § 30101(1).......................................................................................ADD 1

52 U.S.C. § 30110............................................................................................ADD 2

52 U.S.C. § 30116(a)(1)(A) .............................................................................ADD 3

11 C.F.R. § 100.2 .............................................................................................ADD 4

11 C.F.R. § 102.9 .............................................................................................ADD 7

11 C.F.R. § 110.1(b) ......................................................................................ADD 12

11 C.F.R. § 110.3(c)(3)..................................................................................ADD 22

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ADD 1 

52 U.S.C. § 30101(1)

When used in this Act:

(1) The term “election” means-- 

(A) a general, special, primary, or runoff election;

(B) a convention or caucus of a political party which has authority to nominate 

a candidate;

(C) a primary election held for the selection of delegates to a national 

nominating convention of a political party; and

(D) a primary election held for the expression of a preference for the 

nomination of individuals for election to the office of President.

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ADD 2 

52 U.S.C. § 30110

The Commission, the national committee of any political party, or any individual 

eligible to vote in any election for the office of President may institute such actions 

in the appropriate district court of the United States, including actions for 

declaratory judgment, as may be appropriate to construe the constitutionality of 

any provision of this Act. The district court immediately shall certify all questions 

of constitutionality of this Act to the United States court of appeals for the circuit 

involved, which shall hear the matter sitting en banc.

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ADD 3 

52 U.S.C. § 30116(a)(1)(A)

(a) Dollar limits on contributions.

(1) Except as provided in subsection (i) and section 315A [52 USCS § 30117], 

no person shall make contributions--

(A) to any candidate and his authorized political committees with respect to 

any election for Federal office which, in the aggregate, exceed $ 2,000...

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ADD 4 

11 C.F.R. § 100.2

(a) Election means the process by which individuals, whether opposed or 

unopposed, seek nomination for election, or election, to Federal office. The 

specific types of elections, as set forth at 11 CFR 100.2(b), (c), (d), (e) and (f) are 

included in this definition.

(b) General election. A general election is an election which meets either of the 

following conditions:

(1) An election held in even numbered years on the Tuesday following the first 

Monday in November is a general election.

(2) An election which is held to fill a vacancy in a Federal office (i.e., a special 

election) and which is intended to result in the final selection of a single 

individual to the office at stake is a general election. See 11 CFR 100.2(f).

(c) Primary election. A primary election is an election which meets one of the 

following conditions:

(1) An election which is held prior to a general election, as a direct result of 

which candidates are nominated, in accordance with applicable State law, for 

election to Federal office in a subsequent election is a primary election.

(2) An election which is held for the expression of a preference for the 

nomination of persons for election to the office of President of the United 

States is a primary election.

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ADD 5 

(3) An election which is held to elect delegates to a national nominating 

convention is a primary election.

(4) With respect to individuals seeking federal office as independent 

candidates, or without nomination by a major party (as defined in 26 U.S.C. 

9002(6)), the primary election is considered to occur on one of the following 

dates, at the choice of the candidate:

(i) The day prescribed by applicable State law as the last day to qualify for 

a position on the general election ballot may be designated as the primary 

election for such candidate.

(ii) The date of the last major party primary election, caucus, or convention 

in that State may be designated as the primary election for such candidate.

(iii) In the case of non-major parties, the date of the nomination by that 

party may be designated as the primary election for such candidate.

(5) With respect to any major party candidate (as defined at 26 U.S.C. 9002(6)) 

who is unopposed for nomination within his or her own party, and who is 

certified to appear as that party's nominee in the general election for the office 

sought, the primary election is considered to have occurred on the date on 

which the primary election was held by the candidate's party in that State.

(d) Runoff election. Runoff election means the election which meets either of the 

following conditions:

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ADD 6 

(1) The election held after a primary election, and prescribed by applicable 

State law as the means for deciding which candidate(s) should be certified as a 

nominee for the Federal office sought, is a runoff election.

(2) The election held after a general election and prescribed by applicable State 

law as the means for deciding which candidate should be certified as an 

officeholder elect, is a runoff election.

(e) Caucus or Convention. A caucus or convention of a political party is an election 

if the caucus or convention has the authority to select a nominee for federal office 

on behalf of that party.

(f) Special election. Special election means an election which is held to fill a 

vacancy in a Federal office. A special election may be a primary, general, or runoff 

election, as defined at 11 CFR 100.2(b), (c) and (d).

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ADD 7 

11 C.F.R. § 102.9

The treasurer of a political committee or an agent authorized by the treasurer to 

receive contributions and make expenditures shall fulfill all recordkeeping duties 

as set forth at 11 CFR 102.9(a) through (f):

(a) An account shall be kept by any reasonable accounting procedure of all 

contributions received by or on behalf of the political committee.

(1) For contributions in excess of $ 50, such account shall include the name 

and address of the contributor and the date of receipt and amount of such 

contribution.

(2) For contributions from any person whose contributions aggregate more 

than $ 200 during a calendar year, such account shall include the identification 

of the person, and the date of receipt and amount of such contribution.

(3) For contributions from a political committee, such account shall include the 

identification of the political committee and the date of receipt and amount of 

such contribution.

(4) In addition to the account to be kept under paragraph (a)(1) of this section, 

for contributions in excess of $ 50, the treasurer of a political committee or an 

agent authorized by the treasurer shall maintain:

(i) A full-size photocopy of each check or written instrument; or

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ADD 8 

(ii) A digital image of each check or written instrument. The political 

committee or other person shall provide the computer equipment and 

software needed to retrieve and read the digital images, if necessary, at no 

cost to the Commission.

(b) 

(1) An account shall be kept of all disbursements made by or on behalf of the 

political committee. Such account shall consist of a record of:

(i) the name and address of every person to whom any disbursement is 

made;

(ii) the date, amount, and purpose of the disbursement; and

(iii) if the disbursement is made for a candidate, the name and office 

(including State and congressional district, if any) sought by that 

candidate.

(iv) For purposes of 11 CFR 102.9(b)(1), purpose has the same meaning 

given the term at 11 CFR 104.3(b)(3)(i)(A).

(2) In addition to the account to be kept under 11 CFR 102.9(b)(1), a receipt or 

invoice from the payee or a cancelled check to the payee shall be obtained and 

kept for each disbursement in excess of $ 200 by or on behalf of, the 

committee, except that credit card transactions, shall be documented in 

accordance with 11 CFR 102.9(b)(2)(ii) and disbursements by share draft or 

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ADD 9 

check drawn on a credit union account shall be documented in accordance with 

11 CFR 102.9(b)(2)(iii).

(i) 

(A) For purposes of 11 CFR 102.9(b)(2), payee means the person who 

provides the goods or services to the committee or agent thereof in 

return for payment, except for an advance of $ 500 or less for travel and 

subsistence to an individual who will be the recipient of the goods or 

services.

(B) For any advance of $ 500 or less to an individual for travel and 

subsistence, the expense voucher or other expense account 

documentation and a cancelled check to the recipient of the advance 

shall be obtained and kept.

(ii) For any credit card transaction, documentation shall include a monthly 

billing statement or customer receipt for each transaction and the cancelled 

check used to pay the credit card account.

(iii) For purposes of 11 CFR 102.9(b)(2), a carbon copy of a share draft or 

check drawn on a credit union account may be used as a duplicate record 

of such draft or check provided that the monthly account statement 

showing that the share draft or check was paid by the credit union is also 

retained.

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ADD 10

(c) The treasurer shall preserve all records and accounts required to be kept under 

11 CFR 102.9 for 3 years after the report to which such records and accounts relate 

is filed.

(d) In performing recordkeeping duties, the treasurer or his or her authorized agent 

shall use his or her best efforts to obtain, maintain and submit the required 

information and shall keep a complete record of such efforts. If there is a showing 

that best efforts have been made, any records of a committee shall be deemed to be 

in compliance with this Act. With regard to the requirements of 11 CFR 

102.9(b)(2) concerning receipts, invoices and cancelled checks, the treasurer will 

not be deemed to have exercised best efforts to obtain, maintain and submit the 

records unless he or she has made at least one written effort per transaction to 

obtain a duplicate copy of the invoice, receipt, or cancelled check.

(e) 

(1) If the candidate, or his or her authorized committee(s), receives 

contributions that are designated for use in connection with the general election 

pursuant to 11 CFR 110.1(b) prior to the date of the primary election, such 

candidate or such committee(s) shall use an acceptable accounting method to 

distinguish between contributions received for the primary election and 

contributions received for the general election. Acceptable accounting methods 

include, but are not limited to:

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ADD 11

(i) The designation of separate accounts for each election, caucus or 

convention; or

(ii) The establishment of separate books and records for each election.

(2) Regardless of the method used under paragraph (e)(1) of this section, an 

authorized committee's records must demonstrate that, prior to the primary 

election, recorded cash on hand was at all times equal to or in excess of the 

sum of general election contributions received less the sum of general election 

disbursements made.

(3) If a candidate is not a candidate in the general election, any contributions 

made for the general election shall be refunded to the contributors, 

redesignated in accordance with 11 CFR 110.1(b)(5) or 110.2(b)(5), or 

reattributed in accordance with 11 CFR 110.1(k)(3), as appropriate.

(f) The treasurer shall maintain the documentation required by 11 CFR 110.1(l), 

concerning designations, redesignations, reattributions and the dates of 

contributions. If the treasurer does not maintain this documentation, 11 CFR 

110.1(l)(5) shall apply.

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ADD 12

11 C.F.R. § 110.1(b)

(b) Contributions to candidates; designations; and redesignations.

(1) No person shall make contributions to any candidate, his or her authorized 

political committees or agents with respect to any election for Federal office 

that, in the aggregate, exceed $ 2,000.

(i) The contribution limitation in the introductory text of paragraph (b)(1) 

of this section shall be increased by the percent difference in the price 

index in accordance with 11 CFR 110.17.

(ii) The increased contribution limitation shall be in effect for the 2-year 

period beginning on the first day following the date of the last general 

election in the year preceding the year in which the contribution limitation 

is increased and ending on the date of the next general election. For 

example, an increase in the contribution limitation made in January 2005 is 

effective from November 3, 2004 to November 7, 2006.

(iii) In every odd numbered year, the Commission will publish in the 

FEDERAL REGISTER the amount of the contribution limitation in effect 

and place such information on the Commission's Web site.

(2) For purposes of this section, with respect to any election means --

(i) In the case of a contribution designated in writing by the contributor for 

a particular election, the election so designated. Contributors to candidates 

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ADD 13

are encouraged to designate their contributions in writing for particular 

elections. See 11 CFR 110.1(b)(4).

(ii) In the case of a contribution not designated in writing by the 

contributor for a particular election, the next election for that Federal office 

after the contribution is made.

(3) 

(i) A contribution designated in writing for a particular election, but made 

after that election, shall be made only to the extent that the contribution 

does not exceed net debts outstanding from such election. To the extent 

that such contribution exceeds net debts outstanding, the candidate or the 

candidate's authorized political committee shall return or deposit the 

contribution within ten days from the date of the treasurer's receipt of the 

contribution as provided by 11 CFR 103.3(a), and if deposited, then within 

sixty days from the date of the treasurer's receipt the treasurer shall take the 

following action, as appropriate:

(A) Refund the contribution using a committee check or draft; or

(B) Obtain a written redesignation by the contributor for another 

election in accordance with 11 CFR 110.1(b)(5); or

(C) Obtain a written reattribution to another contributor in accordance 

with 11 CFR 110.1(k)(3).

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ADD 14

If the candidate is not a candidate in the general election, all contributions 

made for the general election shall be either returned or refunded to the

contributors or redesignated in accordance with 11 CFR 110.1(b)(5), or 

reattributed in accordance with 11 CFR 110.1(k)(3), as appropriate.

(ii) In order to determine whether there are net debts outstanding from a 

particular election, the treasurer of the candidate's authorized political 

committee shall calculate net debts outstanding as of the date of the 

election. For purposes of this section, net debts outstanding means the total 

amount of unpaid debts and obligations incurred with respect to an 

election, including the estimated cost of raising funds to liquidate debts 

incurred with respect to the election and, if the candidate's authorized 

committee terminates or if the candidate will not be a candidate for the 

next election, estimated necessary costs associated with termination of 

political activity, such as the costs of complying with the post-election 

requirements of the Act and other necessary administrative costs associated 

with winding down the campaign, including office space rental, staff 

salaries and office supplies, less the sum of:

(A) The total cash on hand available to pay those debts and obligations, 

including: currency; balances on deposit in banks, savings and loan 

institutions, and other depository institutions; traveler's checks; 

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ADD 15

certificates of deposit; treasury bills; and any other committee 

investments valued at fair market value;

(B) The total amounts owed to the candidate or political committee in 

the form of credits, refunds of deposits, returns, or receivables, or a 

commercially reasonable amount based on the collectibility of those 

credits, refunds, returns, or receivables; and

(C) The amount of personal loans, as defined in 11 CFR 116.11(b), that 

in the aggregate exceed $ 250,000 per election.

(iii) The amount of the net debts outstanding shall be adjusted as additional 

funds are received and expenditures are made. The candidate and his or her 

authorized political committee(s) may accept contributions made after the 

date of the election if:

(A) Such contributions are designated in writing by the contributor for 

that election;

(B) Such contributions do not exceed the adjusted amount of net debts 

outstanding on the date the contribution is received; and

(C) Such contributions do not exceed the contribution limitations in 

effect on the date of such election.

(iv) This paragraph shall not be construed to prevent a candidate who is a 

candidate in the general election or his or her authorized political 

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ADD 16

committee(s) from paying primary election debts and obligations with 

funds which represent contributions made with respect to the general 

election.

(4) For purposes of this section, a contribution shall be considered to be 

designated in writing for a particular election if -- 

(i) The contribution is made by check, money order, or other negotiable 

instrument which clearly indicates the particular election with respect to 

which the contribution is made;

(ii) The contribution is accompanied by a writing, signed by the 

contributor, which clearly indicates the particular election with respect to 

which the contribution is made; or

(iii) The contribution is redesignated in accordance with 11 CFR 

110.1(b)(5).

(5) 

(i) The treasurer of an authorized political committee may request a written 

redesignation of a contribution by the contributor for a different election if 

-- 

(A) The contribution was designated in writing for a particular election, 

and the contribution, either on its face or when aggregated with other 

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ADD 17

contributions from the same contributor for the same election, exceeds 

the limitation on contributions set forth in 11 CFR 110.1(b)(1);

(B) The contribution was designated in writing for a particular election 

and the contribution was made after that election and the contribution 

cannot be accepted under the net debts outstanding provisions of 11

CFR 110.1(b)(3);

(C) The contribution was not designated in writing for a particular 

election, and the contribution exceeds the limitation on contributions set 

forth in 11 CFR 110.1(b)(1); or

(D) The contribution was not designated in writing for a particular 

election, and the contribution was received after the date of an election 

for which there are net debts outstanding on the date the contribution is 

received.

(ii) 

(A) A contribution shall be considered to be redesignated for another 

election if -- 

(1) The treasurer of the recipient authorized political committee 

requests that the contributor provide a written redesignation of the 

contribution and informs the contributor that the contributor may 

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ADD 18

request the refund of the contribution as an alternative to providing 

a written redesignation; and

(2) Within sixty days from the date of the treasurer's receipt of the 

contribution, the contributor provides the treasurer with a written 

redesignation of the contribution for another election, which is 

signed by the contributor.

(B) Notwithstanding paragraph (b)(5)(ii)(A) of this section or any other 

provision of this section, the treasurer of the recipient authorized 

political committee may treat all or part of the amount of the 

contribution that exceeds the contribution limits in paragraph (b)(1) of 

this section as made with respect to the general election, provided that:

(1) The contribution was made before the primary election;

(2) The contribution was not designated for a particular election;

(3) The contribution would exceed the limitation on contributions 

set forth in paragraph (b)(1) of this section if it were treated as a 

contribution made for the primary election;

(4) Such redesignation would not cause the contributor to exceed 

any of the limitations on contributions set forth in paragraph (b)(1) 

of this section;

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ADD 19

(5) The treasurer of the recipient authorized political committee 

notifies the contributor of the amount of the contribution that was 

redesignated and that the contributor may request a refund of the 

contribution; and

(6) Within sixty days from the date of the treasurer's receipt of the 

contribution, the treasurer shall provide notification required in 

paragraph (b)(5)(ii)(B)(5) of this section to the contributor by any 

written method including electronic mail.

(C) Notwithstanding paragraph (b)(5)(ii)(A) of this section or any other 

provision of this section, the treasurer of the recipient authorized 

political committee may treat all or part of the amount of the 

contribution that exceeds the contribution limits in paragraph (b)(1) of 

this section as made with respect to the primary election, provided that:

(1) The contribution was made after the primary election but before 

the general election;

(2) The contribution was not designated for a particular election;

(3) The contribution would exceed the limitation on contributions 

set forth in paragraph (b)(1) of this section if it were treated as a 

contribution made for the general election;

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ADD 20

(4) Such redesignation would not cause the contributor to exceed 

any of the limitations on contributions set forth in paragraph (b)(1) 

of this section;

(5) The contribution does not exceed the committee's net debts 

outstanding for the primary election;

(6) The treasurer of the recipient authorized political committee

notifies the contributor of how the contribution was redesignated 

and that the contributor may request a refund of the contribution; 

and

(7) Within sixty days from the date of the treasurer's receipt of the 

contribution, the treasurer shall provide notification required in 

paragraph (b)(5)(ii)(C)(6) of this section to the contributor by any 

written method, including electronic mail.

(iii) A contribution redesignated for another election shall not exceed the 

limitations on contributions made with respect to that election. A 

contribution redesignated for a previous election shall be subject to the 

requirements of 11 CFR 110.1(b)(3) regarding net debts outstanding.

(6) For the purposes of this section, a contribution shall be considered to be 

made when the contributor relinquishes control over the contribution. A 

contributor shall be considered to relinquish control over the contribution when 

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ADD 21

it is delivered by the contributor to the candidate, to the political committee, or 

to an agent of the political committee. A contribution that is mailed to the 

candidate, or to the political committee or to an agent of the political 

committee, shall be considered to be made on the date of the postmark. See 11 

CFR 110.1(1)(4). An in-kind contribution shall be considered to be made on 

the date that the goods or services are provided by the contributor.

USCA Case #15-5120 Document #1568248 Filed: 08/17/2015 Page 91 of 93
ADD 22

11 C.F.R. § 110.3(c)(3)

(c) Permissible transfers. The contribution limitations of 11 CFR 110.1 and 110.2 

shall not limit the transfers set forth below in 11 CFR 110.3(c) (1) through (6) – 

[...] 

(3) Transfers of funds between the primary campaign and general election 

campaign of a candidate of funds unused for the primary;

USCA Case #15-5120 Document #1568248 Filed: 08/17/2015 Page 92 of 93
Certificate of Service

I hereby certify that I electronically filed the foregoing Opening Brief for 

Plaintiffs-Appellants and Joint Appendix using the court’s CM/ECF system which 

will automatically generate and send by email a Notice of Docket Activity to all 

registered attorneys currently participating in this case, constituting service on 

those attorneys. D.C. Cir. R. 25(d).

Steve Nicholas Hajjar shajjar@fec.gov

Charles P. Kitcher ckitcher@fec.gov

Erin Rebecca Chlopak echlopak@fec.gov

Kevin Andrew Deeley kdeeley@fec.gov

Dated: August 17, 2015 s/ Allen Dickerson

Allen Dickerson

USCA Case #15-5120 Document #1568248 Filed: 08/17/2015 Page 93 of 93