No. _______

In the Supreme Court of the United States

________________________________________

STOP RECKLESS ECONOMIC INSTABILITY CAUSED 

BY DEMOCRATS; TEA PARTY LEADERSHIP FUND;

AND ALEXANDRIA REPUBLICAN CITY COMMITTEE,

Petitioners,

and

AMERICAN FUTURE PAC,

Petitioner – Intervenor,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE 

U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

________________________________________

PETITION FOR WRIT OF CERTIORARI 

________________________________________

Dan Backer Michael T. Morley*

DB CAPITOL STRATEGIES, COOLIDGE-REAGAN

PLLC FOUNDATION 

203 S. Union St., Suite 300 1629 K St., Suite 300

Alexandria, VA 22314 Washington, DC 20013

(202) 210-5431 (860) 778-3883

DBacker@ michael@

DBCapitolStrategies.com coolidgereagan.org

Counsel for Petitioners Counsel for Petitioners

 & Petitioner-Intervenor

 *COUNSEL OF RECORD
Jerad Najvar

NAJVAR LAW FIRM

4151 Southwest Fwy. #625

Houston, TX 77027

(281) 404-4696

jerad@najvarlaw.com

Counsel for Petitioner-Intervenor 
QUESTIONS PRESENTED

I. When a case is moot, a federal court may 

nevertheless adjudicate the merits of the underlying 

issue only if it is “capable of repetition, yet evading 

review.” Generally, the issue must be “capable of 

repetition” with regard to the same plaintiff. 

Justices Scalia and O’Connor, however, noted that 

this Court’s “election law decisions . . . dispens[e] 

with the same-plaintiff requirement entirely.” Honig 

v. Doe, 484 U.S. 305, 335-36 (1988) (Scalia, J., 

dissenting). The Fifth, Sixth, Seventh, and Ninth

Circuits, following that approach, have held that the 

“same plaintiff” requirement does not apply in 

election-law cases. The First, Second, and Eighth

Circuits, as well as the Fourth Circuit in the instant 

case, have refused to recognize an exception to the 

“same plaintiff” requirement for election-law cases.

When a plaintiff’s constitutional challenge to an 

election-related statute becomes moot, but the 

challenged provision will be applied to other people 

or entities and is likely to evade review, may the 

court adjudicate the merits of the plaintiffs’ claim? 

In other words, is there an “election law” exception to 

the same-plaintiff requirement of the “capable of 

repetition, yet evading review” doctrine? 

II. This Court has held that limits on political 

contributions are constitutional only if they are 

reasonably tailored to combatting actual or apparent 

quid pro quo corruption. Under the Bipartisan 

Campaign Reform Act, after certain political 

committees have been registered with the FEC for six 
ii

months, the amount they may contribute to political 

parties is automatically slashed in half—even when 

there is no reason to believe they have done anything 

wrong—while at the same time the amount they may 

contribute to candidates nearly doubles. The question 

presented is: 

May the Government categorically cut in half the 

amount that political committees may contribute to 

political parties once they have been registered with 

the FEC for six months, solely on the grounds that it 

simultaneously (and inconsistently) increases the 

limit on contributions to candidates at that point, 

when neither the FEC nor the court contends that

such a blanket reduction furthers the Government’s 

interest in combatting corruption? 
iii

TABLE OF CONTENTS

 Page

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

TABLE OF AUTHORITIES................................. vii

PETITION FOR WRIT OF CERTIORARI .............1

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

JURISDICTIONAL STATEMENT.........................5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................................5

STATEMENT OF THE CASE ................................7

A. Conflicting Changes in Contribution 

Limits for Political Committees ...................7

B. Lower Court Proceedings ...........................11

REASONS FOR GRANTING THE WRIT............21

I. THIS COURT SHOULD RESOLVE THE 

DEEP CIRCUIT SPLIT AND TENSION

AMONG ITS OWN PRECEDENTS 

OVER WHETHER AN “ELECTION 

LAW” EXCEPTION TO THE SAMEPLAINTIFF REQUIREMENT EXISTS..........21
iv

A. This Court’s Precedents 

Recognize an “Election Law”

Exception to the Same-Plaintiff

Requirement.............................................21

B. Circuits Have Adopted Conflicting 

Positions on Whether an “Election 

Law” Exception to the Same-Plaintiff 

Requirement Exists..................................27

C. The Fourth Circuit’s Ruling is 

Squarely Contrary to the Fifth 

Circuit’s Ruling Concerning the 

Justiciability of Materially 

Identical Constitutional Claims ..............31

D. Compelling Reasons 

Support Granting Certiorari ...................33

II. THE FOURTH CIRCUIT’S RULING 

DIRECTLY CONTRADICTS 

MCCUTCHEON V. FEC..................................34

A. The Fourth Circuit Did Not 

Even Attempt to Explain How 

Prohibiting Political Committees 

From Making Contributions That 

Were Fully Legal Throughout the 

First Six Months of Their Existence 

Is a Reasonably Tailored Means of 

Fighting Corruption................................ 35
v

B. The Fourth Circuit Ignored 

McCutcheon’s Invalidation of 

Aggregate Contribution Limits By 

Allowing Reductions In Certain 

Contribution Limits for Political 

Committees to be “Offset” By 

Increases in Other Limits....................... 38

CONCLUSION ......................................................40

APPENDIX

Table of Contents

Opinion of the U.S. Court of Appeals 

for the Fourth Circuit Affirming 

Summary Judgment for Defendant

(Feb. 23, 2016)................................................A-1

Ruling of the U.S. District Court for the 

Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary 

Judgment and Granting Defendant’s 

Rule 56(d) Motion (June 18, 2014) ..............A-29

Opinion of the U.S. District Court 

for the Eastern District of Virginia 

Denying Plaintiffs’ Motion for 

Summary Judgment and Granting 

Defendant’s Cross-Motion for Summary 

Judgment (Feb. 27, 2015) ............................A-32
vi

Order of the U.S. District Court for 

the Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary Judgment 

and Granting Defendant’s Cross-Motion 

for Summary Judgment (Feb. 27, 2015).....A-54

Order of the U.S. Court of Appeals 

for the Fourth Circuit Denying 

Appellants’ Motion for Rehearing and 

Rehearing En Banc (Apr. 22, 2016).............A-56

Order of the U.S. District Court for 

the Eastern District of Virginia 

Dismissing Counts I and II for Lack 

of Subject-Matter Jurisdiction 

(May 18, 2016)..............................................A-58
vii

TABLE OF AUTHORITIES

Cases Page(s)

Am. Party of Texas v. White, 

415 U.S. 767 (1974)................................2, 24, 25

Anderson v. Celebrezze, 

460 U.S. 780 (1983)................................1, 24, 25

Barr v. Galvin, 

626 F.3d 99 (1st Cir. 2010) ....................2, 30, 31

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam).........................16

Caruso v. Yamhill Cnty., 

422 F.3d 848 (9th Cir. 2005)........................2, 29

Catholic Leadership Coalition 

of Tex. v. Reisman, 

764 F.3d 409 (5th Cir. 2014).................... passim

Citizens Against Rent Cont. / 

Coal. for Fair Hous. v. Berkeley, 

454 U.S. 290 (1981)............................................7

Corrigan v. City of Newaygo, 

55 F.3d 1211 (6th Cir. 1995)............................29

Ctr. for Individual Freedom v. Carmouche, 

449 F.3d 655, 662 (5th Cir 2006).....................28

Dart v. Brown, 

717 F.2d 1491 (5th Cir. 1983)..........................28
viii

Davis v. FEC, 

554 U.S. 724 (2008).................................. passim

Dunn v. Blumstein, 

405 U.S. 330 (1972)................................1, 24, 25

FEC v. Nat’l Conservative 

Political Action Comm., 

470 U.S. 480 (1985)......................................4, 35

FEC v. Wisconsin Right to Life, Inc.,

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

Fulani v. Brady, 

935 F.2d 1324 (D.C. Cir. 1991) ....................2, 30

Hatten v. Rains, 

854 F.2d 687 (5th Cir. 1988)............................28

Honig v. Doe, 

484 U.S. 305 (1988).............................i, 2, 19, 25

Joyner v. Molford, 

706 F.2d 1523 (9th Cir. 1983)..........................30

Kucinich v. Texas Democratic Party, 

563 F.3d 161 (5th Cir. 2009)................26, 27, 28

Lawrence v. Blackwell, 

430 F.3d 368 (6th Cir. 2005)........................2, 28

Libertarian Party of Michigan v. Johnson, 

714 F.3d 929 (6th Cir. 2013)............................28
ix

Majors v. Abell, 

317 F.3d 719 (7th Cir. 2003)........................2, 29

Mandel v. Bradley, 

432 U.S. 173 (1977).............................1-2, 24, 25

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014).............................. passim

Moore v. Hoseman, 

591 F.3d 741 (5th Cir. 2009)......................26, 28

Moore v. Ogilvie, 

394 U.S. 814 (1969).................................. passim

Morial v. Judicial Comm. of La., 

565 F.2d 295 (5th Cir. 1977)......................25, 28

Rosario v. Rockefeller, 

410 U.S. 752 (1973)................................1, 23, 25

S. Pac. Term. Co. v. ICC, 

219 U.S. 498 (1911)......................................1, 21

Schaefer v. Townsend, 

215 F.3d 1031 (9th Cir. 2000)..........................29

Steel Co. v. Citizens for a Better Env’t., 

523 U.S. 83 (1998)............................................18

Stop Reckless Economic Instability

Caused by Democrats v. FEC, 

814 F.3d 221 (4th Cir. 2016)..............................4
x

Stop Reckless Economic Instability

Caused by Democrats v. FEC, 

93 F. Supp. 3d 466 (E.D. Va. 2015) ...................4

Storer v. Brown, 

415 U.S. 724 (1974).................................. passim

Van Bergen v. Minnesota, 

59 F.3d 1541 (8th Cir. 1995)........................2, 31

Van Wie v. Pataki, 

267 F.3d 109 (2d Cir. 2001)..........................2, 30

Weinstein v. Bradford, 

423 U.S. 147 (1975)......................................1, 21

Wilson v. Birnberg, 

667 F.3d 591 (5th Cir. 2012)................27, 28, 33

Statutes

28 U.S.C. § 1254 ......................................................5

52 U.S.C. § 30101 ....................................................7

52 U.S.C. § 30116 .......................................... passim

Bipartisan Campaign Reform Act, 

Pub. L. No. 107-155, 116 Stat. 81 

(Nov. 6, 2002)....................................................11
xi

Federal Election Campaign Act, 

Pub. L. No. 92-225, 86 Stat. 3 

(Feb. 7, 1972)....................................................11

Other Sources

FEC, Price Index Adjustments for 

Contribution and Expenditure 

Limitations and Lobbyist Bundling 

Disclosure Threshold, 

80 FED. REG. 5,750 (Feb. 3, 2015)......................8

Martin H. Redish, Exceptions to the 

Mootness Doctrine, in 15-101 MOORE’S 

FEDERAL PRACTICE – CIVIL § 101.99 ..........25, 30

Tea Party Leadership Fund v. FEC, 

No. 12-1707 (D.D.C. Oct. 18, 2012)............13, 14
1

PETITION FOR WRIT OF CERTIORARI

This case presents a compelling jurisdictional 

issue for certiorari that has caused a split among

eight different circuits and fostered rifts within this 

Court’s jurisprudence. This case also presents a 

second, substantive constitutional issue, because the 

Fourth Circuit’s holding on the merits conflicts with 

fundamental principles of campaign finance 

jurisprudence. 

First, when a case becomes moot, a federal court

may nevertheless adjudicate the matter if the 

underlying issue remains “capable of repetition, yet 

evading review.” S. Pac. Term. Co. v. ICC, 219 U.S. 

498, 515 (1911). Generally, for this exception to the 

mootness doctrine to apply, the issue must be capable 

of repetition with regard to the same plaintiff. See, 

e.g., Weinstein v. Bradford, 423 U.S. 147, 149 (1975). 

In a series of constitutional challenges to electionrelated statutes, however, this Court adjudicated the 

merits of the plaintiffs’ claims, even though the cases 

had become moot as to those plaintiffs and there was 

no indication that the challenged provisions would 

ever again be applied to them. This Court held that 

the cases remained justiciable because the challenged 

provisions would continue to be applied to other 

candidates, voters, and political parties in 

subsequent elections. See, e.g., Storer v. Brown, 415 

U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 410 

U.S. 752, 756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 

330, 333 n.2 (1972); Moore v. Ogilvie, 394 U.S. 814, 

816 (1969); see also Anderson v. Celebrezze, 460 U.S. 

780, 784 n.3 (1983); Mandel v. Bradley, 432 U.S. 173, 
2

175 n.1 (1977); Am. Party of Texas v. White, 415 U.S. 

767, 770 n.1 (1974). 

Many of these cases led Justices Scalia and 

O’Connor to declare that this Court’s “election law 

decisions differ from the body of [its] mootness 

jurisprudence . . . in dispensing with the same-party 

requirement entirely, focusing instead upon the great 

likelihood that the issue will recur between the 

defendant and the other members of the public at 

large.” Honig v. Doe, 484 U.S. 305, 335 (1988) 

(Scalia, J., dissenting). 

Numerous circuits, following Justice Scalia’s 

opinion in Honig and this Court’s precedents, have 

recognized that the same-plaintiff requirement of the 

“capable of repetition, yet evading review” doctrine 

does not apply in election law cases. See, e.g., 

Catholic Leadership Coalition of Tex. v. Reisman, 764 

F.3d 409, 424 (5th Cir. 2014); Lawrence v. Blackwell, 

430 F.3d 368, 372 (6th Cir. 2005); Majors v. Abell, 

317 F.3d 719, 723 (7th Cir. 2003); Caruso v. Yamhill 

Cnty., 422 F.3d 848, 853-54 (9th Cir. 2005); see also 

Fulani v. Brady, 935 F.2d 1324, 1336 (D.C. Cir. 1991) 

(Mikva, C.J., dissenting). 

Several other circuits, including the panel below, 

A-19 to A-21, have reached the opposite conclusion, 

declining to recognize the exception to the sameplaintiff requirement for election law cases. See, e.g., 

Barr v. Galvin, 626 F.3d 99, 105-06 (1st Cir. 2010); 

Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001); 

Van Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th 

Cir. 1995). The panel opinion expressly recognized 

that circuits have split on this issue. A-18. It 

concluded that the same-plaintiff requirement 

applies, even in election law cases, because this 
3

Court’s rulings in FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449, 457-60 (2007), and Davis v. FEC, 

554 U.S. 724, 735-36 (2008), reject its earlier 

precedents sub silentio. A-19 to A-21. 

This case presents an important issue concerning 

the subject-matter jurisdiction of the federal 

judiciary and the ability of plaintiffs to challenge 

unconstitutional laws regulating elections. The 

longstanding circuit split is causing indefensible 

disparities between plaintiffs in different 

jurisdictions. Whereas the court below held that 

Petitioners’ constitutional challenge to a waiting 

period concerning political contribution limits 

became moot and nonjusticiable after the waiting 

period expired, A-21, the Fifth Circuit held that a 

challenge to a materially identical waiting period 

remained justiciable, even after its expiration,

because other entities would be subject to it. 

Catholic Leadership Coalition, 764 F.3d at 424. The 

time has come for this Court to definitively confirm 

that the “same plaintiff” requirement of the “capable 

of repetition, yet evading review” doctrine does not 

apply to election law cases. 

Second, this case also presents a substantive 

issue of First Amendment law. The Bipartisan 

Campaign Reform Act cuts in half the amount that 

certain political committees may contribute to 

political parties once those committees have been 

registered with the FEC for six months. See 52 

U.S.C. § 30116(a)(1)-(a)(4). The Fourth Circuit 

upheld this reduction in contribution limits on the 

grounds that BCRA also increases the amount that 

such committees may contribute to candidates upon 

reaching that six-month mark. A-27 to A-29. 
4

This Court has repeatedly admonished that 

“‘preventing corruption or the appearance of 

corruption are the only legitimate and compelling 

government interests thus far identified for 

restricting campaign finances.’” Davis v. FEC, 554 

U.S. 724, 741 (2008) (quoting FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 

496-497 (1985)); accord McCutcheon v. FEC, 134 S. 

Ct. 1434, 1441 (2014). The Fourth Circuit, however, 

did not even attempt to explain how reducing the 

amount that established political committees may 

contribute to political parties after they have been 

registered for six months furthers the Government’s 

interest in combatting actual or apparent corruption. 

Moreover, the Fourth Circuit’s reasoning—that 

Congress may decrease limits on contributions to 

political parties because it simultaneously increased 

limits on contributions to candidates—is inconsistent 

with this Court’s holding in McCutcheon, 134 S. Ct. 

at 1449, that contributors cannot be subjected to such 

tradeoffs among constitutionally protected activities. 

See also Davis, 554 U.S. at 738-40.

 

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the 

Fourth Circuit is published at 814 F.3d 221 and 

reproduced at A-1 to A-29. The opinion of the U.S. 

District Court for the Eastern District of Virginia is 

published at 93 F. Supp. 3d 466, and is reproduced at 

A-33 to A-55. 

 
5

JURISDICTIONAL STATEMENT

The Fourth Circuit issued its opinion and entered 

judgment on February 23, 2016. A-1 to A-2. That 

court refused rehearing and rehearing en banc on 

April 22, 2016. A-58. This Court has jurisdiction 

under 28 U.S.C. § 1254(1). 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED

U.S. CONST., amend. I

“Congress shall make no law . . . abridging the 

freedom of speech . . . .” 

U.S. Const., art. III, § 2

“The judicial power shall extend to all cases, in 

law and equity, arising under this Constitution, [and] 

the laws of the United States . . . .”

52 U.S.C. § 30116—Limitations on contributions 

and expenditures

(a) Dollar limits on contributions

(1) Except as provided in subsection (i) and 

section 30117 of this title, 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;
6

(B) to the political committees established and 

maintained by a national political party, which are 

not the authorized political committees of any 

candidate, in any calendar year which, in the 

aggregate, exceed $25,000 * * *;

(C) to any other political committee (other 

than a committee described in subparagraph (D)) in 

any calendar year which, in the aggregate, exceed 

$5,000; or

(D) to a political committee established and 

maintained by a State committee of a political party 

in any calendar year which, in the aggregate, exceed 

$10,000.

(2) No multicandidate political committee 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 $5,000;

(B) to the political committees established and 

maintained by a national political party, which are 

not the authorized political committees of any 

candidate, in any calendar year, which, in the 

aggregate, exceed $15,000 * * *; or

(C) to any other political committee in any 

calendar year which, in the aggregate, exceed $5,000.

* * *
7

(4) * * * For purposes of paragraph (2), the 

term “multicandidate political committee” means a 

political committee which has been registered under 

section 30103 of this title for a period of not less than 

6 months, which has received contributions from 

more than 50 persons, and, except for any State 

political party organization, has made contributions 

to 5 or more candidates for Federal office.

STATEMENT OF THE CASE

A. Conflicting Changes in Contribution 

Limits for Political Committees

1. “[T]he practice of persons sharing common 

views banding together to achieve a common end is 

deeply embedded in the American political process.” 

Citizens Against Rent Cont. / Coal. for Fair Hous. v. 

Berkeley, 454 U.S. 290, 294 (1981). When people 

wish to join together to collectively make political 

contributions or spend money in connection with 

federal elections, the law requires them to do so 

through a “political committee.” 52 U.S.C. § 30101(4). 

Political committees exist on all sides of the political 

spectrum, from the NRDC Action Fund Inc. PAC to 

the National Rifle Association of America Political 

Victory Fund. 

Political committees that are not created or 

operated by a candidate, officeholder, or political 

party are often referred to as “political action 

committees” or “PACs.” When a PAC first registers 

with the FEC, it is treated as a “person” under 
8

campaign finance law, and is subject to the following 

contribution limits:

● $2,700 per election limit on contributions to 

candidates, 52 U.S.C. § 30116(a)(1)(A);1

● $33,400 annual limit on contributions to a 

national political party committee, 52 U.S.C. 

§ 30116(a)(1)(B);2

● $10,000 annual limit on contributions to a

state or local political party committee, 52 

U.S.C. § 30116(a)(1)(D). 

A PAC that satisfies the following three 

requirements is deemed a “multicandidate PAC”:

i. it received contributions from more than 50 

persons [hereafter, “Receipt Requirement”]; 

ii. it made contributions “to 5 or more candidates 

for Federal office” [hereafter, “Contribution 

Requirement”]; and

 

1 This figure is subject to adjustment for inflation. FEC, Price 

Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 80 

FED. REG. 5,750, 5,752 (Feb. 3, 2015). 

2 This figure is also subject to adjustment for inflation. 80 FED.

REG. at 5,752. In addition to the general contribution limit of 

$33,400 in unrestricted funds, a “person” also may contribute 

$100,200 annually to each of a national party committee’s three 

special segregated funds. 52 U.S.C. § 30116(a)(1)(B), (a)(9)(A)-

(C). 
9

iii. it has been registered with the FEC for six or 

more months. 

52 U.S.C. § 30116(a)(4). Even if a committee satisfies 

the Receipt and Contribution Requirements, it 

cannot qualify for Multicandidate PAC status until it 

has been registered with the FEC for six months. 

Conversely, once such a committee has been 

registered for six months, it has no choice but to 

accept multicandidate PAC status. 

Multicandidate PACs are subject to the following 

contribution limits:

● $5,000 per election limit on contributions to a 

candidate, 52 U.S.C. § 30116(a)(2)(A);

● $15,000 annual limit on contributions to a 

national political party committee, id. 

§ 30116(a)(2)(B);3 

● $5,000 annual limit on contributions to a state 

or local political party committee, id. 

§ 30116(a)(2)(C).

2. As the chart below shows, the contribution 

limits that apply to political committees that satisfy 

§ 30116(a)(4)’s Receipt and Contribution 

Requirements depend solely on whether those 

committees have been registered for six months:

 

3 A multicandidate PAC also may contribute $45,000 annually 

to each of the national party’s three segregated funds, as well. 

52 U.S.C. § 30116(a)(2)(B).
10

Contribution 

Recipient

Identity of Contributor

Political 

committee 

that has been 

registered for 

less than six 

(6) months

Political 

committee 

that has been 

registered 

for six (6) 

or more 

months

Candidate $2,700 per 

election

$5,000 per 

election

 

State or Local 

Political Party 

Committee

$10,000 

annually 

$5,000 

annually

National 

Political Party 

Committee

$33,400 

annually

$15,000 

annually

Special 

Segregated 

Fund of

National 

Political Party

$100,200 

annually 

per fund

$45,000 

annually 

per fund

This chart demonstrates an irrational feature of 

the current scheme: once a political committee that 

satisfies § 30116(a)(4)’s Receipt and Contribution 

Requirements has been registered for six months, the 

amount it may contribute to candidates nearly 
11

doubles, while the amount it may contribute to 

political parties is slashed by nearly half. Thus, the 

law treats such committees inconsistently once they 

reach that six-month mark.

Nothing in the legislative history of either the 

Federal Election Campaign Act, Pub. L. No. 92-225, 

86 Stat. 3 (Feb. 7, 1972), or the Bipartisan Campaign 

Reform Act, Pub. L. No. 107-155, 116 Stat. 81 

(Nov. 6, 2002), suggests any reason why a committee 

which satisfies the Receipt and Contribution 

Requirements may contribute only half as much to a 

national, state, or local political party once it has 

been registered with the FEC for six months. The 

record below is likewise devoid of evidence to suggest 

that such committees pose a greater risk of 

corruption concerning political parties once they have 

been registered for six months (and yet pose a 

correspondingly reduced risk of corruption 

concerning federal candidates). 

B. Lower Court Proceedings

1. Petitioners filed this lawsuit to challenge the 

arbitrary and internally inconsistent limits that 

apply to contributions from political committees. At 

the time the Complaint was filed, Petitioner Stop 

Reckless Economic Instability Caused by Democrats 

(“Stop REID”) was a recently formed committee that 

had satisfied the Receipt and Contribution 

Requirements, but had not yet been registered for six 

months. It wished to immediately make contributions 

of $5,000 to each of several federal candidates, but 52 

U.S.C. § 30116(a)(1)(A) permitted it to contribute 

only about half as much. A-8 to A-9. Stop REID 
12

argued that the statutory six-month waiting period 

before it could fully associate with the candidates of 

its choice by contributing the maximum statutory 

amount of $5,000 per election violated the First 

Amendment. A-9 to A-10. It also claimed that the 

statutory scheme violated the Equal Protection 

component of the Fifth Amendment’s Due Process 

Clause. Materially identical PACs—that is, 

committees that satisfied the Receipt and 

Contribution Requirements—are subject to 

substantially different limits on contributions to 

candidates based solely on whether they have been 

registered with the FEC for six months. A-10. 

Petitioner Tea Party Leadership Fund (“TPLF”) 

was a political committee that also satisfied the 

Receipt and Contribution Requirements, but had 

been registered for more than six months, thereby 

triggering Multicandidate PAC status. It wished to 

contribute $10,000 to Petitioner Alexandria 

Republican City Committee (“ARCC”), a local 

political party committee, and $32,400 to the 

National Republican Senatorial Committee, a 

national political party committee. A-10. Federal 

law, however, allowed it to contribute only half as 

much to political parties. 52 U.S.C. § 30116(a)(2)(B)-

(C). 

Although TPLF had been permitted to contribute 

$32,400 to national political parties (the inflationadjusted limit at the time) and $10,000 to state and 

local political parties throughout the first six months 

of its existence, 52 U.S.C. § 30116(a)(1)(B), (D), once 

it was registered with the FEC for six months, those 

amounts were halved to $15,000 and $5,000, 

respectively, id. § 30116(a)(2)(B)-(C). TPLF argued 
13

that these discriminatory contribution limits violated 

the Equal Protection component of the Fifth

Amendment’s Due Process Clause. Similarly situated 

entities—that is, committees that satisfied the 

Receipt and Contribution Requirements—are subject 

to substantially different limits on contributions to 

political parties based solely on whether they have

been registered with the FEC for six months. A-10. 

2. Throughout the lawsuit, the FEC took every 

opportunity to delay and extend the proceedings to 

ensure Stop REID’s claim would be mooted. 

Petitioners filed their three-count Complaint on April 

14, 2014, in the U.S. District Court for the Eastern 

District of Virginia, A-8, and filed a Motion for 

Summary Judgment approximately three weeks 

later, on May 6, 2014. D.E. #6 (May 6, 2004).4 The 

FEC filed a Rule 56(d) motion in response, arguing 

that immediate summary judgment was 

inappropriate because it needed discovery to 

demonstrate the constitutionality of the law it has 

been enforcing for the past half-century. See D.E. 

#26, at 3 (May 23, 2014).5 The district court denied 

 

4 “D.E.” refers to Docket Entries on the Civil Docket for case 

#1:14-cv-00397-AJT-IDD (E.D. Va.). 

5 This was not the FEC’s first attempt to prevent the federal 

courts from adjudicating the constitutionality of 52 U.S.C. § 

50116(a)’s six-month waiting period by dragging out the 

proceedings until they became moot. Shortly after TPLF was 

formed, it satisfied the Receipt and Contribution Requirements 

and filed a lawsuit in the U.S. District Court for the District of 

Columbia, raising essentially the same constitutional challenge 

to the six-month waiting period that Stop REID attempted to 

pursue here. Tea Party Leadership Fund v. FEC, No. 12-1707 

(D.D.C. Oct. 18, 2012). 
14

Petitioners’ summary judgment motion without 

prejudice and granted the FEC’s Rule 56(d) motion, 

ordering that discovery proceed. A-31. Neither the 

district court nor the Fourth Circuit wound up citing 

any evidence developed in discovery in adjudicating 

this case. 

In its proposed scheduling order to the district 

court, filed on July 2, 2014, the FEC argued that 

dispositive briefing should not conclude until midNovember—after the expiration of Stop REID’s sixmonth waiting period. D.E. #34, at 17 (setting forth 

FEC’s position). The court instead required that 

summary judgment motions be filed by September 

19, 2014—less than a month before the waiting 

period expired. 

Due to potential mootness issues with Stop 

REID’s claims, on August 27, 2014, Petitioner 

American Future PAC moved to join or intervene in 

the lawsuit and adopt Stop REID’s causes of action. 

D.E. #50 (Aug. 27, 2014). American Future had 

 

TPLF immediately moved for a preliminary injunction. The 

FEC, however, argued that a preliminary injunction was a 

“particularly inappropriate” vehicle through which to challenge 

the waiting period, because an injunction would “upend the 

status quo by preventing the Commission from enforcing 

statutory provisions that have been in place for almost 40 

years.” FEC Opposition to Plaintiffs’ Motion for Preliminary 

Injunction, Tea Party Leadership Fund v. FEC, No. 12-1707, 

D.E. #8 (D.D.C. Nov. 1, 2012). On November 2, the district 

court consolidated the preliminary injunction motion with crossmotions for summary judgment, and set a briefing deadline 

ending five months later, on March 29, 2013, after TPLF’s 

waiting period expired. Tea Party Leadership Fund v. FEC, No. 

12-1707, D.E. #10 (D.D.C. Nov. 2, 2012). Faced with such delay, 

TPLF voluntarily dismissed its claims. Tea Party Leadership 

Fund v. FEC, No. 12-1707, D.E. #50 (D.D.C. Nov. 7, 2013). 
15

formed on August 5, 2014, D.E. #50-4, at 3, and 

satisfied the Receipt and Contribution Requirements 

over the following three weeks, D.E. #50-3, at 1-2. 

Along with its motion, American Future enclosed 

Rule 26(a)(1) disclosures, see D.E. #50-6, as well as 

complete responses to all discovery requests that the 

FEC had served upon Stop REID, as those requests 

would have applied to American Future, see D.E. 

#50-5. 

The FEC nevertheless opposed the motion, 

claiming at one point that it would need to extend the 

discovery schedule by 128 days to take discovery 

from this newly-formed entity. See D.E. #50, at 2 

(discussing meet-and-confer with FEC concerning 

joinder motion). The Court denied American Future 

PAC’s motion for joinder but granted its request for 

intervention, and allowed until October 31, 2014 to 

allow the FEC to take discovery from it. D.E. #62 

(Oct. 6, 2014). Again, neither the district court nor 

the Fourth Circuit wound up relying on any evidence 

developed in discovery from American Future PAC in 

adjudicating this case. 

3. Petitioners and the FEC cross-moved for 

summary judgment on September 19, 2014. D.E. 

#56-57 (Sept. 19, 2014). On February 27, 2015—

following the expiration of both Stop REID’s and 

American Future’s six-month waiting periods—the 

district court denied Petitioners’ motion and granted 

the FEC’s motion, entering judgment for the FEC. 

D.E. #76-78 (Feb. 27, 2015). 

The district court began by considering whether 

Stop REID’s and American Future’s claims were 

moot, since their six-month waiting periods had 

expired and they were no longer subject to the 
16

reduced limit on candidate contributions. It 

recognized that an exception to the mootness doctrine 

exists where “the underlying dispute is capable of 

repetition, yet evading review.” A-45. It noted that 

this exception generally applies only where “‘the 

same complaining party will be subject to the same 

action again.’” Id. (quoting FEC v. Wisconsin Right 

to Life, Inc., 551 U.S. 449, 462 (2007)). Neither Stop

REID nor American Future can again be subject to 

the six-month waiting period, since it is triggered 

only when a political committee first registers with 

the FEC. 

The court then suggested, however, that under 

Storer v. Brown, 415 U.S. 724, 737 n.8 (1974), and 

the Fifth Circuit’s ruling in a highly analogous case, 

Catholic Leadership Coalition of Texas v. Reisman, 

764 F.2d 409, 422-23 (5th Cir. 2014), this “same 

plaintiff” requirement might not apply in the context 

of an election-related case such as this. A-45 to A-46. 

The court concluded, “Given the election law context, 

the Court assumes, without deciding, that the 

circumstances presented here satisfy both prongs of 

the mootness exception.” A-46. 

Turning to the merits of Stop REID’s and 

American Future’s challenges, the Court rejected 

their First Amendment claim. It began by holding 

that contribution limits impose only “‘marginal 

restrictions’” on First Amendment rights, because 

they “‘involve little restraint’ on contributors’ ability 

to express their own political views.” A-48 (quoting 

Buckley v. Valeo, 424 U.S. 1, 20-21 (1976) (per 

curiam)). The court further opined that, because 

Stop REID and American Future are groups, they 

have only “limited rights” and “receive less First 
17

Amendment protection” than “individual 

contributor[s]” wishing to make “direct contributions 

to candidates.” A-50 to A-51. 

Based on this cramped and misguided conception 

of the First Amendment interests at stake, the Court 

held that § 30116(a)(1)(A)’s $2,700 candidate 

contribution limit could not be unconstitutional, since 

it was higher than the limits upheld in Buckley. A49. Likewise, the six-month waiting period on 

contributing the full statutory amount of $5,000 to 

candidates did not raise First Amendment concerns, 

because numerous other ways existed for entities 

such as Stop REID and American Future to engage 

in “independent political expression.” A-50. 

The court also rejected all of the Petitioners’ 

Equal Protection claims. It began by declaring that, 

because Stop REID is a “‘grassroots organization,’” it 

“is precisely the type of instrumentality that lends 

itself to a circumvention of the contribution limits 

applicable to individuals.” A-53. It did not cite any 

evidence to support this assertion. 

Then, rather than comparing the statutory 

categories the law creates, the court went on to 

compare Stop REID itself with the Fund. Because 

Stop REID had received only 150 contributions, with 

most of its resources coming from two contributors, 

while the Fund “had over 100,000 contributors,” the 

court concluded that the two committees were not 

“similarly situated” for Equal Protection purposes. 

A-53. 

The court further noted that, “[e]ven if the PACs 

were similarly situated,” it would reject the Equal 

Protection claims “under either rational basis or 

intermediate scrutiny.” A-54. Combining its rational 
18

basis and intermediate scrutiny analyses, the court 

conclusorily declared—again, without citing any 

evidence—that the challenged contribution limits 

serve the government’s interest in reducing the risk 

of corruption and circumvention of other restrictions. 

A-54 to A-55. The court did not address the second 

prong of an intermediate scrutiny analysis, by 

examining whether basing contribution limits on the 

length of time a committee has been registered with 

the FEC is an “appropriately tailored” means of 

achieving the Government’s goals. McCutcheon, 134 

S. Ct. at 1457. 

Most notably, as mentioned above, the court 

emphasized the purported threat of circumvention 

that new, small, grassroots organizations such as 

Stop REID supposedly pose. A-53. It did not explain 

why, once a committee that satisfies § 30116(a)’s 

Receipt and Contribution Limits has been registered 

for six months, the Government has a valid interest 

in slashing the amount it may contribute to local, 

state, and national party committees in half.

4. The Fourth Circuit affirmed the grant of 

judgment to the FEC, but on different grounds. It 

began by holding that, rather than simply assuming 

Stop REID’s and American Future’s claims remained 

justiciable, the district court should have ruled on 

that issue first, before adjudicating the claims on 

their merits. A-14 (citing Steel Co. v. Citizens for a 

Better Env’t., 523 U.S. 83, 94 (1998)). 

The court recognized that Stop PAC’s and 

American Future’s challenges to the six-month 

waiting period became moot once that waiting period 

expired. A-16. Stop PAC and American Future 

argued that the issue was nevertheless capable of 
19

repetition, yet evading review. Id. Although neither 

PAC would ever again be subject to the six-month 

waiting period, the statute remained on the books 

and would continue to apply to other newly formed 

entities that typically would lack the resources to 

mount a legal challenge. Id. 

The Fourth Circuit recognized that, in their

dissenting opinion in Honig v. Doe, Justice Scalia 

(joined by Justice O’Connor) recognized that this 

Court’s opinions in election law cases “dispens[e] 

with the same-party requirement” and “focus[] 

instead upon the great likelihood that the issue will 

recur between the defendant and the other members 

of the public at large.” A-17 (quoting Honig v. Doe, 

484 U.S. 305, 336-36 (1988) (Scalia, J., dissenting)). 

The court also noted that various circuits “have taken 

different views regarding whether the cases cited in 

Justice Scalia’s dissent indicate[] a deliberate 

decision by the Supreme Court not to apply the samecomplaining-party requirement in election cases.” A17. It went on to observe that “courts have reached 

different results when considering arguments like 

the one Appellants now raise.” A-18. The Fourth

Circuit further noted that this Court “applied the 

same-complaining-plaintiff rule in two relatively 

recent election cases.” A-19 (citing FEC v. Wisconsin 

Right to Life, Inc., 551 U.S. 449, 457-60 (2007); Davis 

v. FEC, 554 U.S. 724, 731-32 (2008)). As discussed 

below, neither of those cases even discussed the 

election-law exception to the same-plaintiff rule; it 

was unnecessary to do so, since this Court concluded 

that the plaintiffs in both cases would be subject to 

the challenged provision again in the future. 
20

The Fourth Circuit ultimately decided to enforce 

the same-plaintiff requirement against Stop REID 

and American Future and expressly left “to the 

Supreme Court the decision of whether it wishes to 

create an exception to, or otherwise limit, that rule.” 

A-21. It ordered the district court to dismiss Stop 

REID’s and American Future’s claims for lack of 

subject-matter jurisdiction. Id. 

The court held that TPLF’s challenge to the 

reduction in limits on contributions to political 

parties that occurs at the six-month mark remained 

justiciable, A-21 to A-24, but rejected it on the merits. 

It held that TPLF could not show that the statutory 

scheme places a greater “overall burden[]” on the 

rights of groups that have satisfied the Receipt and 

Contribution Requirements and have been registered 

for six months, than groups that have satisfied those 

requirements but have been registered for less time. 

It explained:

[T]he decrease in the amount of contributions 

that political committees, once they become 

[multicandidate PACs], can make annually to 

state party committees or their local affiliates 

(from $10,000 to $5,000) and to national party 

committees (from $32,400 to $15,000) is more 

than counteracted by the increase in the 

limits in the amount of contributions that 

[multicandidate PACs] can make to individual 

candidates (from $2,600 to $5,000).

A-28 (emphasis added). The court affirmed the 

district court’s grant of summary judgment on this 

claim to the FEC. 
21

Petitioners moved for rehearing and rehearing en 

banc, but the Fourth Circuit denied the motion on 

April 22, 2016. A-58. 

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD RESOLVE THE 

DEEP CIRCUIT SPLIT AND TENSION

AMONG ITS OWN PRECEDENTS 

OVER WHETHER AN “ELECTION 

LAW” EXCEPTION TO THE SAMEPLAINTIFF REQUIREMENT EXISTS

This Court should grant certiorari to resolve the 

conflict among the circuits—and its own precedents—

on whether the “same plaintiff” requirement of the 

“capable of repetition, yet evading review” doctrine 

applies in election law cases. 

A. This Court’s Precedents Recognize 

an “Election Law” Exception to 

the Same-Plaintiff Requirement

When a case becomes moot, a federal court may 

nevertheless adjudicate the matter if the underlying 

issue remains “capable of repetition, yet evading 

review.” S. Pac. Term. Co. v. ICC, 219 U.S. 498, 515 

(1911). Generally, for this exception to the mootness 

doctrine to apply, the issue must be capable of 

repetition with regard to the same plaintiff. See, e.g., 

Weinstein v. Bradford, 423 U.S. 147 (1975). 

In a series of constitutional challenges to statutes 

governing various aspects of elections, however, this 
22

Court adjudicated the plaintiffs’ claims, even after 

they became moot, despite the absence of any 

indication that those plaintiffs would ever again be 

subject to the challenged provisions. For example, in 

Moore v Ogilvie, 394 U.S. 814, 815 (1969) (Douglas, 

J.)—which was not a class-action suit—the 

petitioners were independent candidates for the office 

of presidential elector from the State of Illinois. They 

argued that the State had unconstitutionally rejected 

their petition to appear on the ballot in the 1968 

election. While the case was pending, the state 

election board moved to dismiss; the board argued

that, since the “election has been held, there is no 

possibility of granting any relief to appellants.” Id. at 

816.

This Court nevertheless concluded that the case 

remained justiciable. It explained that, “while the 

1968 election is over, the burden” which the 

challenged legal provision “placed on the nomination 

of candidates for statewide offices remains and 

controls future elections . . . . The problem is 

therefore ‘capable of repetition, yet evading review.’” 

Id. (quoting S. Pac. Term. Co., 219 U.S. at 515). The 

Court continued, “The need for its resolution thus 

reflects a continuing controversy in the federal-state 

area where our ‘one man, one vote’ decisions have 

thrust.” Id. 

The Ogilvie Court did not even attempt to 

consider whether the plaintiffs in the suit would ever 

again be subject to the challenged provisions. 

Indeed, two Justices specifically insisted in dissent 

that, “[i]n the absence of any assertion that the 

appellants intend to participate as candidates in any 

future election, the Court’s reference to cases 
23

involving ‘continuing controversy between the 

parties’ is wide of the mark.” Id. at 819 (Stewart, J., 

dissenting). Nevertheless, the majority held that the 

case remained justiciable solely because the 

challenged provision would continue to apply in 

future elections. See id. at 816.6

Likewise, in Storer v. Brown, 415 U.S. 724, 727 

(1974)—also not a class-action—the plaintiffs 

challenged certain restrictions on independent 

candidates seeking ballot access. This Court held 

that the case remained justiciable, even after the 

election occurred, stating:

The 1972 election is long over, and no effective 

relief can be provided to the candidates or 

voters, but this case is not moot, since the 

issues properly presented, and their effects on 

independent candidacies, will persist as the 

California statutes are applied in future 

elections. This is, therefore, a case where the 

controversy is “capable of repetition, yet 

evading review.”

Id. at 737 n.8. 

 

6

In Dunn v. Blumstein, 405 U.S. 330, 331 (1972), the plaintiff 

brought a class action challenging a residency requirement for 

registering to vote. This Court held that the plaintiff’s claim 

remained justiciable, even after he had lived in the jurisdiction 

long enough to satisfy the residency requirement. Id. at 332 

n.2. It explained, “Although appellee can now vote, the problem 

to voters posed by the Tennessee residence requirements is 

‘capable of repetition, yet evading review,’” because the “laws in 

question remain on the books.” Id.; see also Rosario v. 

Rockefeller, 410 U.S. 752, 756 n.5 (1973).
24

The Storer Court added that, “in the context of 

election cases,” it was “appropriate” to apply the 

“capable of repetition, yet evading review” doctrine 

regardless of whether the plaintiff was pursuing a 

facial or as-applied challenge. Id. “[P]ossible 

constitutional limits” on a statute’s application “will 

have the effect of simplifying future challenges, thus 

increasing the likelihood that timely filed cases can 

be adjudicated before an election is held.” Id. 

In subsequent election law cases, this Court cited 

these precedents in applying the “capable of 

repetition, yet evading review” doctrine, without 

engaging in any analysis of whether the same 

plaintiffs might again be affected by the challenged 

provisions. See, e.g., Anderson v. Celebrezze, 460 U.S. 

780, 784 n.3 (1983) (“Even though the 1980 election 

is over, the case is not moot.”); Mandel v. Bradley, 

432 U.S. 173, 175 n.1 (1977) (“Bradley successfully 

gathered the requisite number of signatures, 

obtained a place on the ballot, ran, and lost. This 

case is nonetheless not moot.”); Am. Party of Texas v. 

White, 415 U.S. 767, 770 n.1 (1974) (“Although the 

November 1972 election has been completed and this 

Court may not grant retrospective relief that would 

affect the outcome, this case is not moot.”). 

This Court has invoked the election-law exception 

to the same-plaintiff requirement in numerous types 

of cases, including challenges to deadlines for ballot 

access petitions, Anderson, 460 U.S. at 784 n.3; 

Mandel, 432 U.S. at 175 n.1; signature requirements 

for ballot access petitions, Storer, 415 U.S. at 726-27; 

White, 415 U.S. at 770 n.1; Moore, 394 U.S. at 815; 

residency requirements for voter registration, Dunn, 

405 U.S. at 331; and party membership requirements 
25

for voting in primary elections, Rosario, 410 U.S. at 

756. 

Most of the election-law cases in which this Court 

dispensed with the same-plaintiff requirement were 

not class actions. Storer, 415 U.S. at 726-27; Moore, 

394 U.S. at 815; see also Anderson, 460 U.S. at 784 

n.3; Mandel, 432 U.S. at 175 n.1; White, 415 U.S. at 

770 n.1; cf. Morial v. Judicial Comm. of La., 565 F.2d 

295, 297 n.3 (5th Cir. 1977) (“In none of these cases 

was the suit brought as a formal class action . . . .”). 

Even in class actions challenging election laws, the 

Court never mentioned their class-action status in 

concluding that the claims remained justiciable. 

Rosario, 410 U.S. at 756 n.5 (“Although the June 

primary election has been completed and the 

petitioners will be eligible to vote in the next 

scheduled New York primary, this case is not moot, 

since the question the petitioners raise is ‘capable of 

repetition, yet evading review.’”); cf. Dunn 405 U.S. 

at 331. 

Precedents such as these led Justices Scalia and 

O’Connor to declare in their opinion in Honig v. Doe 

that this Court’s “election law decisions differ from 

the body of [its] mootness jurisprudence . . . in 

dispensing with the same-party requirement entirely, 

focusing instead upon the great likelihood that the 

issue will recur between the defendant and the other 

members of the public at large.” 484 U.S. 305, 335 

(1988) (Scalia, J., dissenting); see also Martin H. 

Redish, Exceptions to the Mootness Doctrine, in 15-

101 MOORE’S FEDERAL PRACTICE – CIVIL § 101.99[1] 

(recognizing that the “capable of repetition, yet 

evading review” exception to the mootness doctrine 

“has been held to apply even when it was clear from 
26

the nature of the law or the conduct that the exact 

same plaintiff would not suffer the same harm in the 

future; it was enough that other voters or candidates 

would suffer the same harm”). 

The Fourth Circuit refused to follow these 

precedents, however, on the grounds that more 

recent election law cases applied the same-plaintiff 

requirement. See A-19 to A-20. In both cases the 

Fourth Circuit cited, however, this Court concluded 

that the challenged provision would apply to the 

same plaintiffs again. Davis v. FEC, 554 U.S. 724, 

731-32 (2008); FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 457-60 (2007). It therefore was 

unnecessary to decide whether an exception existed 

to the same-plaintiff requirement; applying the 

requirement did not lead the Court to deny relief to 

the plaintiffs due to lack of justiciability. In any 

event, neither Wisconsin Right to Life nor Davis

cited, distinguished, or overturned any of the 

precedents in the line of cases discussed above. See 

Moore v. Hoseman, 591 F.3d 741, 744-45 (5th Cir. 

2009) (holding that neither Wisconsin Right to Life 

nor Davis eliminated the election law exception to 

the same-plaintiff requirement); Kucinich v. Texas 

Democratic Party, 563 F.3d 161, 164-65 (5th Cir. 

2009) (same). This Court should grant certiorari to 

overturn the Fourth Circuit’s error and remove any 

doubt about the existence of an election-law 

exception to the same-plaintiff requirement of the 

“capable of repetition, yet evading review” doctrine. 
27

B. Circuits Have Adopted Conflicting

Positions on Whether an “Election 

Law” Exception to the SamePlaintiff Requirement Exists

1. As the Fourth Circuit itself recognized, “courts 

have reached different results when considering” 

whether the same-plaintiff requirement applies in 

election law cases. A-18; see also Wilson v. Birnberg, 

667 F.3d 591, 596 (5th Cir. 2012) (recognizing circuit 

split). Numerous circuits, following precedents such 

as Moore, Storer, and Justice Scalia’s opinion in 

Honig, have recognized that constitutional issues in 

election-law cases are capable of repetition, yet 

evading review, so long as the challenged provisions 

will continue to be applied to other voters, 

candidates, or contributors in the future. 

The Fifth Circuit, in a challenge to a waiting 

period in a campaign finance statute remarkably 

similar to this case, see infra Part I.C, held, “[T]his 

court ‘dispens[es] with the same-party requirement’ 

in election law cases, and ‘focus[es] instead upon the 

great likelihood that the issue will recur between the

defendant and other members of the public at large.’” 

Catholic Leadership Coalition of Texas v. Reisman, 

764 F.3d 409, 424 (5th Cir. 2014) (quoting Kucinich, 

563 F.3d at 165 (5th Cir. 2009)). It explained, “[I]n 

election law cases such as this one, where (1) the 

state plans on continuing to enforce the challenged 

provision, and (2) that provision will affect other 

members of the public, the [capable of repetition, 
28

yet evading review] exception is met.” Id. (emphasis 

added).7

The Sixth Circuit similarly has declared, “Even if 

the court could not reasonably expect that the 

controversy would recur with respect to [the 

plaintiffs], the fact that the controversy almost 

invariably will recur with respect to some future 

potential candidate or voter in Ohio is sufficient 

to meet the [capable of repetition] prong because it is 

somewhat relaxed in election cases.” Lawrence v. 

Blackwell, 430 F.3d 368, 372 (6th Cir. 2005) 

(emphasis added). The court explained that the 

“capable of repetition, yet evading review” doctrine 

applies in “challenges to election laws even when the 

nature of the law made it clear that the plaintiff 

would not suffer the same harm in the future.” Id.

8 

The Sixth Circuit was concerned that applying the 

 

7 Moore, 591 F.3d at 744-45 (5th Cir. 2009); Kucinich, 563 F.3d 

at 164-65 (“[W]e are unwilling to dismiss the case as moot when 

‘the issues properly presented, and their effects [], will persist 

as the [restrictions] are applied in future elections.’” (quoting 

Storer, 415 U.S. at 737 n.8)); Morial v. Judicial Comm’n of La., 

565 F.2d 295, 297 n.3 (5th Cir. 1977) (“In none of these cases 

was the suit brought as a formal class action; nor did the Court 

pause to consider whether the particular plaintiff would be 

subject to future harm.”); see also Wilson v. Birnberg, 667 F.3d 

591, 596-97 (5th Cir. 2012); Ctr. for Individual Freedom v. 

Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (holding that, in 

election law cases, “the Court does not always focus on whether 

a particular plaintiff is likely to incur the same injury”); Hatten 

v. Rains, 854 F.2d 687, 690 n.4 (5th Cir. 1988); Dart v. Brown, 

717 F.2d 1491, 1493 n.3 (5th Cir. 1983). 

8 See also Libertarian Party of Michigan v. Johnson, 714 F.3d 

929, 932 (6th Cir. 2013); Corrigan v. City of Newaygo, 55 F.3d 

1211, 1213-14 (6th Cir. 1995). 
29

same-plaintiff requirement in election law cases 

would allow a government entity to “repeatedly 

apply” the challenged provision to “different 

candidates”—or voters, parties, and PACs, for that 

matter—“none of whom could ever challenge it in 

court.” Corrigan, 55 F.3d at 1214. 

Likewise, the Seventh Circuit has noted:

[W]hile canonical statements of the exception 

to mootness for cases capable of repetition but 

evading review require that the dispute giving 

rise to the case be capable of repetition by the 

same plaintiff, the courts, perhaps to avoid 

complicating lawsuits with incessant 

interruptions to assure the continued existence 

of a live controversy, do not interpret the 

requirement literally, at least in abortion and 

election cases . . . . 

Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003). 

The Ninth Circuit has reached the same 

conclusion. Caruso v. Yamhill Cnty., 422 F.3d 848, 

853-54 (9th Cir. 2005) (holding that the 

constitutional challenge of a plaintiff in a non-class 

case remained justiciable, even though “there is no 

evidence in the record” that the plaintiff would be 

subject to the challenged statute again).9 It 

explained: 

 

9 See also Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 

2000); Joyner v. Molford, 706 F.2d 1523, 1527 (9th Cir. 1983). 
30

Appellate courts are frequently too slow to 

process appeals before an election determines 

the fate of a candidate. If such cases were 

rendered moot by the occurrence of an election, 

many constitutionally suspect election laws—

including the one under consideration here—

could never reach appellate review. This is 

enough to escape the brand of 

“mootness.”

Joyner v. Molford, 706 F.2d 1523, 1527 (9th Cir.

1983) (citations omitted); see also Fulani v. Brady, 

935 F.2d 1324, 1336 (D.C. Cir. 1991) (Mikva, C.J., 

dissenting) (“[T]he Supreme Court and this court 

often have ignored the same-party requirement in 

the election context”). 

2. In contrast, several other circuits, including 

the Fourth Circuit below, A-20 to A-21, have refused 

to recognize the election law exception to the sameplaintiff requirement.

10 See Barr v. Galvin, 626 F.3d 

99, 105-06 (1st Cir. 2010) (choosing to “abide by the 

‘same complaining party’ requirement”); Stop REID, 

A-17 to A-19 (rejecting Justice Scalia’s analysis from 

Honig and enforcing the “same-complaining-plaintiff 

rule” in “election cases”); Van Wie v. Pataki, 267 F.3d 

109, 114-15 (2d Cir. 2001) (declining to follow the 

Storer line of cases and holding that, in election law 

 

10 See Redish, 15-101 MOORE’S FEDERAL PRACTICE, supra at 

§ 101.99[1] (recognizing that, while some circuits apply the 

“capable of repetition, yet evading review” exception even when 

“the exact same plaintiff would not suffer the same harm in the 

future,” other circuits hold that “there must be a reasonable 

expectation that the same complaining party will encounter the 

challenged action in the future”). 
31

cases, “in the absence of a class action, there must be 

a reasonable expectation that the same complaining 

party would encounter the challenged action in the 

future”); Van Bergen v. Minnesota, 59 F.3d 1541, 

1546 (8th Cir. 1995) (same). 

These rulings are based primarily on recent 

precedents—Wisconsin Right to Life, 551 U.S. at 462, 

and Davis, 554 U.S. at 728-30—that do not expressly 

consider or address whether the same-plaintiff 

requirement applies in election law cases, and did not 

deny relief to any plaintiffs on the grounds that they 

would not face the challenged provisions again in the 

future. Cf. Barr, 626 F.3d at 105-06; Stop REID, A19 to A-20. This Court should grant certiorari to 

resolve the circuit split and end the widespread 

confusion about its precedents. 

C. The Fourth Circuit’s Ruling is Squarely 

Contrary to the Fifth Circuit’s Holding 

That Materially Identical Constitutional 

Claims Remained Justiciable

Beyond presenting a circuit split over the broad 

issue of whether an “election law” exception applies 

to the same-plaintiff requirement, this case involves 

a direct conflict between the Fourth and Fifth 

Circuits concerning the continued justiciability of 

materially identical constitutional challenges. 

In Catholic Leadership Coalition of Tex. v. 

Reisman, 764 F.3d 409 (5th Cir. 2014), the plaintiff

challenged a state law imposing waiting periods on 

certain political committees that wished to make 

political contributions and expenditures. Despite the 

fact that the plaintiff’s waiting period had elapsed, 
32

and the plaintiff could never again be subject to it, 

the Fifth Circuit reached the merits of its claim

because the underlying issue was capable of 

repetition, yet evading review. Id. at 423. 

The Fifth Circuit “dispense[d] with the same 

party requirement” of that doctrine, because the 

plaintiffs’ challenge to campaign finance laws was 

deemed to be an “election case[].” Id. The court 

“focus[ed] instead upon the great likelihood that the 

issue will recur between the defendant and the other 

members of the public at large.” Id. (quotation 

marks omitted). The Fifth Circuit explained, “[I]n 

election law cases such as this one, where (1) the 

state plans on continuing to enforce the challenged 

provision, and (2) that provision will affect other 

members of the public, the exception [to the sameparty requirement] is met.” Id. at 424. 

Petitioners Stop REID and American Future 

likewise challenged the constitutionality of a waiting 

period for making political contributions to 

candidates. A-9 to A-10. Like the plaintiffs in 

Catholic Leadership Coalition, their waiting period 

expired, and they argued that the underlying 

constitutional questions were capable of repetition, 

yet evading review. The Fourth Circuit refused to 

follow Catholic Leadership Coalition, however, see A18, and instead held that their challenges were 

irrevocably moot because they could never again be 

subject to the waiting period. This Court cannot 

continue to tolerate such disparities in plaintiffs’ 

ability to enforce their First Amendment rights, 

particularly in the sensitive area of election-related 

litigation. 
33

D. There Are Compelling 

Reasons to Grant Certiorari

This Court should grant certiorari to determine 

whether a plaintiff’s constitutional challenge to an 

election-related statute remains justiciable when his 

own claim becomes moot, but the issue is capable of 

repetition, yet evading review in subsequent elections 

for other people or groups. This important issue 

concerns the scope of the federal judiciary’s Article 

III jurisdiction. It directly impacts plaintiffs’ ability 

to enforce fundamental constitutional rights, 

specifically in the critical context of election law. 

Allowing unconstitutional statutes to persist in 

regulating federal and state elections is intolerable in 

a democracy such as ours. Moreover, recognizing the 

exception is necessary to prevent government entities 

like the FEC from needlessly delaying proceedings as 

a way of preserving unconstitutional provisions and 

precluding adjudications on the merits. See supra 

pp. 13-16 & n.5. 

This issue has caused a longstanding split among 

eight circuits that the circuits themselves have 

expressly recognized. A-18; Wilson, 667 F.3d at 596. 

This circuit split has led to fundamental unfairness 

of plaintiffs in some jurisdictions being able to 

invalidate unconstitutional election laws, Catholic 

Leadership Coalition, 764 F.3d at 423-24, while the 

substantially identical claims of plaintiffs in other 

jurisdictions are dismissed as non-justiciable, Stop 

REID, A-20 to A-21. This case also involves tension 

between this Court’s longstanding line of StorerMoore precedents applying the election law exception 

to the same-plaintiff requirement, and more recent 
34

cases that neither mention nor contradict it. For all 

these reasons, certiorari is warranted. 

II. THE FOURTH CIRCUIT’S RULING

DIRECTLY CONTRADICTS

MCCUTCHEON V. FEC

BCRA’s system for regulating political 

contributions from political committees is arbitrary, 

internally inconsistent, and fundamentally 

irrational. For a committee that has satisfied 52 

U.S.C. § 30116(a)(4)’s Receipt and Contribution 

Requirements, see supra pp. 8-9, once it has been 

registered with the FEC for six months, the amount 

it may contribute to candidates nearly doubles, while 

the amount it may contribute to local, state, and 

national political parties gets slashed in half. A 

committee, however, cannot become simultaneously 

both more and less likely to engage in corruption 

after six months, warranting such internally 

inconsistent changes in contribution limits. 

The Fourth Circuit nevertheless upheld the

dramatic and inexplicable drop in the limit on 

contributions to political parties. Its ruling conflicts 

with McCutcheon v. FEC, 134 S. Ct. 1434, 1441 

(2014), because the court did not even attempt to 

explain how that reduction furthers the 

Government’s interest in combatting actual or 

apparent quid pro quo corruption. See infra Part

II.A. The Fourth Circuit’s only explanation was that 

the decrease in the limit on contributions to political 

parties is constitutionally valid, because it is 

accompanied by an increase on the limit to 

contributions to candidates. This embrace of tradeoffs 
35

among First Amendment rights is directly contrary 

to McCutcheon, 134 S. Ct. at 1448-49, and Davis v. 

FEC, 554 U.S. 724, 739 (2008). See infra Part II.B. 

This Court should grant certiorari to resolve this 

conflict between the Fourth Circuit’s ruling and its 

campaign finance jurisprudence. 

A. The Fourth Circuit Did Not Even 

Attempt to Explain How Prohibiting 

Political Committees From Making 

Contributions That Were Fully Legal 

Throughout the First Six Months of 

Their Existence Is a Reasonably 

Tailored Means of Fighting Corruption

The Fourth Circuit’s ruling is directly contrary to 

this Court’s precedents. The court impermissibly 

relieved the Government of its obligation to 

articulate a constitutionally valid purpose for 

reducing the amount that political committees may 

contribute to political parties after they have been 

registered for six months. McCutcheon held that 

“Congress may regulate campaign contributions to 

protect against corruption or the appearance of 

corruption. . . . Any regulation must . . . target

what we have called ‘quid pro quo’ corruption or its 

appearance.” McCutcheon, 134 S. Ct. at 1441 

(emphasis added); accord Davis, 554 U.S. at 741 

(“‘[P]reventing corruption or the appearance of 

corruption are the only legitimate and compelling 

government interests thus far identified for 

restricting campaign finances’” (quoting FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 

496-497 (1985))). 
36

The panel below did not identify any anticorruption interest that is served by slashing the 

amount that a political committee may contribute to 

political parties after it has been registered for six 

months. Cf. A-28 to A-29. Instead, the panel upheld 

that reduction because the amount the committee 

may contribute to candidates simultaneously 

increases at that point. Id. This Court has never 

held, however, that a group’s First Amendment right 

to make political contributions to certain recipients 

may be curtailed simply because Congress has 

chosen to expand its ability to contribute to other 

recipients. Indeed, as discussed below, such tradeoffs 

run counter to McCutcheon and Davis. See infra Part 

II.B.

Moreover, Congress chose to allow political 

committees that satisfy the Receipt and Contribution 

Requirements to contribute $10,000 to local and state 

political parties, and $33,400 to national parties, 

throughout the first six months of their existence. 

The panel did not explain how such contributions 

become more corrupting, and therefore may be 

prohibited, once those committees have been 

registered for six months. This Court has consistently 

rejected such selective prohibitions. 

McCutcheon, for example, holds:

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. If 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 
37

given $1,801, and all others corruptible if 

given a dime.

134 S. Ct. at 1452. 

Likewise, in Davis, the Court held:

[G]iven Congress’ judgment that liberalized 

limits for non-self-financing candidates do not 

unduly imperil anticorruption interests, it is 

hard to imagine how the denial of liberalized 

limits to self-financing candidates can be 

regarded as serving anticorruption goals 

sufficiently to justify the resulting 

constitutional burden. 

554 U.S. at 741. 

In this case, Congress’s selection of $10,000 and 

$33,400 as base limits on contributions from newer 

committees to political parties “indicates its belief 

that contributions of th[ose] amount[s] or less do not 

create a cognizable risk of corruption.” McCutcheon,

134 S. Ct. at 1452. “If there is no corruption concern” 

in such contributions, “it is difficult to understand 

how” identical contributions from the very same 

entities “can be regarded as corruptible” once those 

entities hit the six-month mark. Id. To the 

contrary, by the time a political committee has 

existed for six months, it has filed several FEC 

reports, the public has gained information about it, it 

has cultivated a reputation, and the FEC has had 

substantial opportunity to investigate any concerns 

about it. Response Brief of Appellee Federal Election 

Commission, D.E. #21, at 38 (Aug. 10, 2015). If 
38

anything, the Government’s anti-corruption interest 

would shrink, not grow. 

Even more revealingly, neither the panel nor the 

FEC has explained why this risk of corruption 

increases with regard to political parties after six 

months, while simultaneously decreasing with 

regard to candidates at that point (thereby 

justifying an increase in limits on contributions from 

political committees to candidates). In short, because 

the Fourth Circuit’s ruling literally does not even 

mention the word “corruption,” it is flatly 

inconsistent with fundamental tenets of this Court’s 

campaign finance jurisprudence. 

B. The Fourth Circuit Ignored

McCutcheon’s Invalidation of 

Aggregate Contribution Limits By 

Allowing Reductions In Certain 

Contribution Limits for Political 

Committees to be “Offset” By 

Increases in Other Limits

The Fourth Circuit also violated this Court’s 

holding in McCutcheon by endorsing precisely the 

type of tradeoffs among First Amendment rights that 

McCutcheon condemned. In McCutcheon v. FEC, 134 

S. Ct. 1434, this Court invalidated 52 U.S.C. 

§ 30116(a)(3)’s aggregate contribution limits on the 

total amount a person may contribute to all 

candidates, and all political committees, over the 

course of an election cycle. It recognized that, once a 

person had contributed the maximum permissible 

amount to nine candidates, she would hit her 

aggregate contribution limit and be prohibited from 
39

making any more candidate contributions. 

McCutcheon, 134 S. Ct. at 1448-49. 

It explained:

It is no answer to say that the individual can 

simply contribute less money to more people. 

To require one person to contribute at lower 

levels than others because he wants to support 

more candidates or causes is to impose a 

special burden on broader participation in the 

democratic process. . . . [T]he Government 

may not penalize an individual for “robustly 

exercis[ing]” his First Amendment rights.

Id. at 1449 (quoting Davis, 554 U.S. at 739). 

Thus, McCutcheon rejects the notion that the 

Government can force contributors to make tradeoffs 

among the recipients of their contributions. In this 

case, the Fourth Circuit recognized that the law 

imposes such a tradeoff on certain political 

committees: although the limit on contributions from 

those committees to candidates increases after six 

months, it is only at the cost of having the limit on 

contributions from those committees to political 

parties dramatically reduced. A-29 to A-30. 

McCutcheon does not permit the Government to 

require a committee “to contribute at lower levels” to 

political parties simply because it has the 

opportunity to “robustly exercis[e]” its First 

Amendment rights by giving more to candidates. 

McCutcheon, 134 S. Ct. at 1449 (quotation marks 

omitted). The panel ruling, however, did not even 

cite McCutcheon. 
40

Because the panel ruling endorses the type of 

tradeoffs among First Amendment activities that 

McCutcheon emphatically rejects, without even 

recognizing or addressing these issues, this Court 

should grant certiorari. 

CONCLUSION

For these reasons, this Court should grant the 

petition and issue a writ of certiorari in this case. 

Respectfully submitted, 

Michael T. Morley*

COOLIDGE-REAGAN 

FOUNDATION

1629 K St., Suite 300

Washington, DC 20013

(860) 778-3883

michael@

coolidgereagan.org 

Counsel for Petitioners

& Petitioner-Intervenor

*COUNSEL OF RECORD

Dan Backer

DB CAPITOL STRATEGIES,

PLLC

203 S. Union St., Suite 300

Alexandria, VA 22314

(202) 210-5431

DBacker@ 

DBCapitolStrategies.com

Counsel for Petitioners
41

Jerad Najvar

NAJVAR LAW FIRM

4151 Southwest Fwy., #625

Houston, TX 77027

(281) 494-4696

jerad@najvarlaw.com

Counsel for PetitionerIntervenor

JULY 2016
APPENDIX
TABLE OF CONTENTS

Opinion of the U.S. Court of Appeals for 

the Fourth Circuit Affirming Summary 

Judgment for Defendant (Feb. 23, 2016)............A-1

Ruling of the U.S. District Court for the 

Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary 

Judgment and Granting Defendant’s 

Rule 56(d) Motion (June 18, 2014)....................A-29

Opinion of the U.S. District Court for the 

Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary Judgment 

and Granting Defendant’s Cross-Motion for 

Summary Judgment (Feb. 27, 2015) ................A-32

Order of the U.S. District Court for 

the Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary Judgment 

and Granting Defendant’s Cross-Motion 

for Summary Judgment (Feb. 27, 2015)..........A-54

Order of the U.S. Court of Appeals 

for the Fourth Circuit Denying 

Appellants’ Motion for Rehearing and 

Rehearing En Banc (Apr. 22, 2016) ..................A-56

Order of the U.S. District Court for the 

Eastern District of Virginia Dismissing 

Counts I and II for Lack of Subject-Matter 

Jurisdiction (May 18, 2016) ..............................A-58
A-1

Opinion of the U.S. Court of Appeals for the 

Fourth Circuit Granting Summary Judgment 

for Defendant (Feb. 23, 2016)

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_____________

No. 15-1455

_____________

STOP RECKLESS ECONOMIC INSTABILITY 

CAUSED BY DEMOCRATS (“Stop Reid”); TEA 

PARTY LEADERSHIP FUND; ALEXANDRIA 

REPUBLICAN CITY COMMITTEE,

Plaintiffs – Appellants, 

AMERICAN FUTURE PAC,

Intervenor/Plaintiff – Appellant,

and

NIGER INNIS; NIGER INNIS FOR CONGRESS,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant – Appellee.

_____________
A-2

Appeal from the United States District Court for the 

Eastern District of Virginia, at Alexandria. Anthony 

J. Trenga, District Judge. (1:14-cv-00397-AJT-IDD)

_____________

Argued: December 8, 2015

Decided: February 23, 2016

_____________

Before TRAXLER, Chief Judge, SHEDD, Circuit 

Judge, and Elizabeth K. DILLON, United States 

District Judge for the Western District of Virginia, 

sitting by designation.

_____________

Affirmed in part; vacated and remanded in part with 

instructions by published opinion. Chief Judge 

Traxler wrote the opinion, in which Judge Shedd and 

Judge Dillon joined.

_____________

ARGUED: Michael T. Morley, COOLIDGEREAGAN FOUNDATION, Washington, D.C., for 

Appellants. Kevin Paul Hancock, FEDERAL 

ELECTION COMMISSION, Washington, D.C., for 

Appellee. ON BRIEF: Dan Backer, DB CAPITOL 

STRATEGIES, Alexandria, Virginia, for Appellants 

Stop Reckless Economic Instability Caused by

Democrats, Tea Party Leadership Fund, and 

Alexandria Republican City Committee; Jerad 

Najvar, NAJVAR LAW FIRM, Houston, Texas, for 

Intervenor-Appellant American Future PAC. Lisa J.

Stevenson, Deputy General Counsel-Law, Kevin 

Deeley, Acting Associate General Counsel, Harry J. 
A-3

Summers, Assistant General Counsel, FEDERAL 

ELECTION COMMISSION, Washington, D.C., for 

Appellee. 

_____________

TRAXLER, Chief Judge:

Four political committees – “Stop Reckless 

Economic Instability Caused By Democrats” (“Stop 

PAC”), “Tea Party Leadership Fund” (“the Fund”), 

“Alexandria Republican City Committee” (“ARCC”), 

and “American Future PAC” (“American Future”) 

(collectively, “Appellants”) – appeal a district court 

order granting summary judgment against them in 

their claims challenging the constitutionality of 

certain contribution limits established by the Federal 

Election Campaign Act of 1971 (“FECA”), see 52 

U.S.C. §§ 30101–30146. We conclude that two of the 

three claims became moot before the district court 

granted summary judgment, and we therefore vacate 

the merits judgment on those counts and remand to 

the district court with instructions to dismiss them 

for lack of subject-matter jurisdiction. Regarding the 

third claim, we affirm. 

I.

FECA regulates many different types of donors 

and recipients. See 52 U.S.C. §§ 30116, 30118-19, 

30121 (formerly 2 U.S.C. §§ 441a, 441b-441c, 441e). 

To understand the issues before us in this appeal, it 

is necessary to understand some of FECA’s basic 

concepts and limits.
A-4

To begin, FECA defines a “political committee” as 

“any committee, club, association, or other group of 

persons” that, during a calendar year, received 

contributions or made expenditures in excess of 

$1,000. 52 U.S.C. § 30101(4)(A) (formerly 2 U.S.C. 

§ 431(4)(A)); see The Real Truth About Abortion, Inc. 

v. FEC, 681 F.3d 544, 555 (4th Cir. 2012). FECA 

defines “expenditures” and “contributions” as 

encompassing spending or fundraising “for the 

purpose of influencing any election for Federal 

office.” 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i) (formerly 2 

U.S.C. § 431(8)(A)(i), (9)(A)(i)); see also Buckley v. 

Valeo, 424 U.S. 1, 79 (1976) (limiting FECA’s 

political-committee requirements to organizations 

that are controlled by a candidate or whose “major 

purpose” is to nominate or elect a candidate); The 

Real Truth About Abortion, Inc., 681 F.3d at 555. A 

group that has met the political-committee criteria 

must register with the Federal Election Commission 

(“FEC”). See 52 U.S.C. § 30103(a) (formerly 2 U.S.C. 

§ 433(a)).

There are different types of political committees. 

Some are associated with a particular candidate or 

entity. See, e.g., 52 U.S.C. § 30101(14) (providing 

that a “national committee” is a political committee 

responsible for the day-to-day operation of a national 

political party); 52 U.S.C. § 30101(15) (providing that 

a “State committee” is a political committee that is 

responsible for the day-to-day operation of a political 

party at the state level); 52 U.S.C. § 30102(e)(1) 

(providing that each candidate must designate a 

political committee to serve as the candidate’s 

“principal campaign committee”). And others are not 
A-5

associated with any candidate or entity (“nonconnected political committees”). 

FECA sets different contribution limits for 

different classes of donors and recipients. A 

contribution made by a non-connected political 

committee to an individual candidate is governed by 

the restriction limiting contributions by “persons” 

generally. 52 U.S.C. § 30116(a)(1)(A). “Persons” 

include “individual[s], partnership[s], committee[s], 

association[s], corporation[s], labor organization[s], 

or any other organization[s] or group[s]” other than 

the federal government. 52 U.S.C. § 30101(11). In 

2014, the inflation-adjusted limit for contributions by 

“persons” was $2,600 per election, with primaries and 

general elections counting as separate elections.1

However, non-connected political committees, unlike 

other types of persons, qualified for an elevated perelection limit of $5,000 on contributions to individual 

candidates if and when they satisfied three criteria: 

They must have “been registered [with the FEC] for a 

period of not less than 6 months” (the “waiting 

period”), “received contributions from more than 50 

persons,” and “made contributions to 5 or more 

 

1 52 U.S.C. § 30116(a)(1)(A) sets the per-election limit at $2,000. 

However, that amount had been adjusted for inflation to $2,600 

by the time the parties filed their memoranda in the district 

court regarding summary judgment, see Price Index 

Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8,530-02, 

8,532 (Feb. 6, 2013), and it was adjusted on February 3, 2015, to 

$2,700, see Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 80 Fed. Reg. 5,750-02, 5,752 (Feb. 3, 2015). See also

52 U.S.C. § 30116(c) (providing for periodic inflation adjustment 

of certain limits).
A-6

candidates for Federal office.” 52 U.S.C. 

§ 30116(a)(4); see 52 U.S.C. § 30116(a)(2)(A). A 

political committee satisfying these criteria is 

referred to as a “multicandidate political committee” 

(“MPC”). Id.

FECA also limits contributions that persons and 

political committees can make to political party 

committees. See 52 U.S.C. § 30116(a)(1)(B), (D), 

(a)(2)(B)-(C). With regard to contributions to these 

committees, the limits decrease when the nonconnected political committee becomes an MPC. 

When this case was commenced in April 2014, 

persons (including non-connected political 

committees that did not qualify as MPCs) could 

contribute $32,400 per year to national party 

committees and $10,000 combined to state political 

party committees and their local affiliates, while the 

corresponding limits for MPCs were $15,000 and 

$5,000. See id.; 11 C.F.R. § 110.3(a)(1); Price Index 

Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure 

Threshold, 78 Fed. Reg. 8,530-02, 8,532 (Feb. 6, 

2013).

On December 16, 2014, Congress amended FECA 

to create a new category of limits. Under the 

amended law, national party committees can create 

up to three segregated accounts to fund their 

presidential nominating convention, building 

headquarters, and election-related legal expenses. 

See Consolidated and Further Continuing 

Appropriations Act, 2015, Pub. L. 113-235, Div. N, 

§ 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) 

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

(a)(2)(B), (a)(9)). The annual limits for contributions 
A-7

made to such segregated accounts are three times the 

limits on other contributions to national party 

committees. See id.

II.

The plaintiffs in this suit, Stop PAC, the Fund, 

and ARCC, filed their initial complaint against the 

FEC on April 14, 2014, and filed an amended 

complaint on July 7, 2014 (the “Amended 

Complaint”). The Amended Complaint alleged the 

following facts regarding the parties.

Plaintiff Stop PAC is a non-connected political 

committee that registered with the FEC on March 

11, 2014. As of April 14, 2014, Stop PAC had over 

150 contributors and had made contributions to five 

candidates for federal office. On or around April 4, 

2014, Stop PAC contributed the maximum $2,600 to 

candidate Niger Innis in the Nevada Primary for the 

Republican nomination for a seat in the U.S. House 

of Representatives.2 On or around June 16, 2014, 

Stop PAC contributed the same amount to candidate 

Dan Sullivan in the Alaska Primary for the 

Republican nomination for the U.S. Senate. Stop 

PAC wished to contribute more to each candidate —

as it could have had it been an MPC — but its 

waiting period would not expire until September 11, 

2014, after the primaries were held.

Stop PAC also contributed $2,600 to Congressman 

Joe Heck, Republican nominee for Congress from 

 

2 Innis and his campaign committee were plaintiffs in the 

original complaint, but the district court granted a motion to 

voluntarily dismiss them. 
A-8

Nevada’s 3rd Congressional District, in connection 

with his 2014 general election. Stop PAC wished to 

contribute more to Heck immediately, but it was 

prohibited from doing so until its waiting period 

expired.

The Fund is a non-connected MPC that registered 

with the FEC in 2012, has over 100,000 contributors, 

and has contributed to dozens of federal candidates. 

Because the Fund was an MPC, the maximum 

amounts it could contribute annually to a state 

political party committee and its local affiliates and 

to a national party committee each year were $5,000 

and $15,000, respectively. See 52 U.S.C. 

§ 30116(a)(2)(B)-(C); 11 C.F.R. § 110.3(a)(1).

Plaintiff ARCC is a local political party committee 

affiliated with the Virginia Republican State 

Committee, which is a state political party 

committee. The Fund contributed the statutory 

maximum of $5,000 to ARCC on April 4, 2014. For 

the year 2014, the Fund wished to contribute an 

additional $5,000 to ARCC and $32,400 to the 

National Republican Senatorial Committee 

(“NRSC”), both of which FECA would have allowed 

had the Fund not yet become an MPC. See 52 U.S.C. 

§ 30116(a)(1)(B), (D), (a)(2)(B)-(C); see 78 Fed. Reg. at 

8,532.

The Amended Complaint contains three claims, 

each of which seeks declaratory and injunctive relief. 

Counts I and II pertain to FECA’s $2,600-per-election 

limit on contributions made to individual candidates 

by political committees that have not yet become 

MPCs. See 52 U.S.C. § 30116(a)(1)(A). In Count I, 

Stop PAC alleges that that limit, as applied to Stop 

PAC, violates the equal protection component of the 
A-9

Fifth Amendment’s Due Process Clause because 

FECA applies a higher limit to MPCs than it does to 

political committees that have not completed the 

waiting period but have satisfied the other MPC 

criteria. In Count II, Stop PAC alleges that the 

waiting period, as applied to Stop PAC, violates its 

First Amendment rights to free speech and free 

association. In Count III, ARCC and the Fund allege 

that FECA’s annual limits on contributions made by 

MPCs to national party committees ($15,000), see 52 

U.S.C. § 30116(a)(2)(B), and to state party 

committees ($5,000), see 52 U.S.C. § 30116(a)(2)(C), 

violate the equal protection component of the Fifth 

Amendment’s Due Process Clause insofar as political 

committees that have not yet completed the waiting 

period but that have satisfied the other MPC criteria 

enjoy the higher limits of $32,400 and $10,000, 

respectively.

On August 27, 2014, the plaintiffs moved to join 

American Future in the suit as an intervening 

plaintiff concerning Counts I and II. American 

Future is a non-connected political committee that 

registered with the FEC on August 11, 2014. As of 

August 22, 2014, American Future had raised $5,473 

from 54 contributors. It contributed $2,600 to 

candidate Tom Cotton’s general election campaign in 

Arkansas for the U.S. Senate, and $100 each to four 

other candidates. American Future wished to 

contribute $2,000 more to Cotton for the 2014 general 

election, but FECA prevented it from doing so since 

American Future’s waiting period was not due to 

expire before the November 2014 election. American 

Future also wished to contribute more than $2,600 to 

Cotton immediately but could not do so until he filed 
A-10

paperwork concerning the 2016 primary election. 

Finally, American Future desired to contribute more 

than $2,600 as soon as possible to other candidates 

for their 2016 primaries. On October 6, 2014, the 

district court entered an order allowing American 

Future to intervene pursuant to Federal Rule 24. 

See Fed. R. Civ. P. 24.

On September 19, 2014, before the district court 

ruled on the plaintiffs’ joinder motion, the parties 

filed cross-motions for summary judgment. In 

support of its motion, the FEC, in addition to arguing 

that none of the challenged limitations were 

unconstitutional, asserted that the district court 

lacked subject-matter jurisdiction over Stop PAC’s 

claims (Counts I and II). In particular, it argued that 

Stop PAC’s claims should be dismissed for lack of 

standing since it caused its own injury by not 

registering as early as November 2013, in time to 

become an MPC before the three elections concerning 

which it wished to make additional contributions. 

The FEC also argued that Stop PAC’s claims were 

moot because it became an MPC on September 11, 

2014, and was thus no longer subject to the limit that 

it challenged, and never would be again.

In response, the plaintiffs contended that Stop 

PAC established standing. In that regard, they 

objected to the FEC’s attempt to “effectively blame 

Stop PAC for failing to organize itself more than six 

months before the primaries,” when in fact “[m]ost 

ordinary people are not especially interested in 

becoming involved in the political process until 

shortly before an election.” Memo. in Opp’n to FEC’s 

Mot. for Summ. J. 3. As for the FEC’s suggestion 

that Stop PAC’s claims were moot, the plaintiffs 
A-11

invoked the exception for claims that are “capable of 

repetition, yet evading review.” Southern Pac. Term. 

Co. v. ICC, 219 U.S. 498, 515 (1911). Although the 

plaintiffs acknowledged that this exception is 

generally applied only when the plaintiff itself faces a 

risk that it will be subject to the same challenged 

provisions in the future, the plaintiffs argued that 

the same-plaintiff requirement need not be met in 

election-related cases.

On February 24, 2015, as the parties waited for 

the district court to rule on their summary judgment 

motions, the FEC filed a notice with the district court 

raising additional arguments regarding mootness. In 

the notice, the FEC informed the district court that 

on February 11, 2015, American Future had become 

an MPC. As it had argued regarding Stop PAC, the 

FEC contended that American Future, as an MPC, 

was no longer affected by the limit it was challenging 

and never would be again. The FEC’s filing also 

informed the court of the December 16, 2014 change 

in the law allowing contributions to the specified 

segregated accounts of national parties of three times 

the limits on other contributions to national party 

committees. The FEC maintained that that change 

mooted the Fund’s challenge to the limits on an 

MPC’s contributions to national party committees.

The district court subsequently granted summary 

judgment to the FEC on all claims. See Stop 

Reckless Econ. Instability Caused By Democrats v. 

FEC, 93 F. Supp. 3d 466 (E.D. Va. 2015) (“Stop”).

Regarding each of the three claims, the district court 

assumed that the FEC’s arguments regarding 

standing and mootness failed, see id. at 472-73, and 

ruled that the FEC was entitled to summary 
A-12

judgment on the merits, see id. at 473-77. As for 

Count II, alleging a First Amendment violation, the 

district court concluded that “Stop PAC and 

American Future cannot show that they have 

suffered a cognizable constitutional injury as a result 

of the waiting period, even if they would have made a 

higher contribution, had they been permitted to do 

so.” Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1 

(1976), and California Med. Ass’n v. FEC, 453 U.S. 

182 (1981)). Regarding Counts I and III, alleging 

violation of the plaintiffs’ equal protection rights 

under the Fifth Amendment, the district court 

concluded that Stop PAC and the Fund were not 

similarly situated to each other, and thus that 

“FECA does not improperly discriminate among such 

committees” and “does not violate the plaintiffs’ 

rights under the Fifth Amendment.” Id. at 477. The 

district court alternatively ruled that any 

discrimination was justified under either rationalbasis or intermediate scrutiny. See id.

III.

With regard to each of the three counts, 

Appellants argue that the district court erred in 

granting summary judgment against them. In 

response, the FEC maintains that the district court 

should never have addressed the merits of the claims 

because it lacked subject-matter jurisdiction over 

them. See Fed. R. Civ. P. 12(h)(3) (“If the court 

determines at any time that it lacks subject-matter 

jurisdiction, the court must dismiss the action.”). 

Alternatively, the FEC argues that the district 

court’s decision regarding the merits was correct.
A-13

“Without jurisdiction the court cannot proceed at 

all in any cause. Jurisdiction is power to declare the 

law, and when it ceases to exist, the only function 

remaining to the court is that of announcing the fact 

and dismissing the cause.” Ex parte McCardle, 74 

U.S. 506, 514 (1868). Accordingly, the Supreme 

Court has stated in no uncertain terms that federal 

courts are not free to simply assume that they 

possess subject-matter jurisdiction and then proceed 

to decide the merits of the issues before them when 

their jurisdiction remains in doubt. See Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). 

Rather, federal courts must determine whether they 

have subject-matter jurisdiction over a claim before 

proceeding to address its merits. See id. The district 

court erred in failing to follow this course in this 

case.

We therefore begin our analysis by addressing the 

FEC’s contentions that the district court did not have 

subject-matter jurisdiction when it granted summary 

judgment to the FEC.

Article III gives federal courts jurisdiction only 

over “[c]ases” and “[c]ontroversies.” U.S. Const. art. 

III, § 2, cl. 1. “One essential aspect of this 

requirement is that any person invoking the power of 

a federal court must demonstrate standing to do so,” 

which “requires the litigant to prove that he has 

suffered a concrete and particularized injury that is 

fairly traceable to the challenged conduct, and is 

likely to be redressed by a favorable judicial 

decision.” Hollingsworth v. Perry, 133 S. Ct. 2652, 

2661 (2013).

“To qualify as a case fit for federal-court 

adjudication, an actual controversy must be extant at 
A-14

all stages of review, not merely at the time the 

complaint is filed.” Arizonans for Official English v. 

Arizona, 520 U.S. 43, 67 (1997) (internal quotation 

marks omitted). Accordingly, a case is moot “when 

the issues presented are no longer ‘live’ or the parties 

lack a legally cognizable interest in the outcome.” 

Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (some 

internal quotation marks omitted).

A case that would otherwise be moot is not so if 

the underlying dispute is “capable of repetition, yet 

evading review.” Southern Pac. Term. Co., 219 U.S. 

at 515. The Supreme Court has explained

that in the absence of a class action, the 

“capable of repetition, yet evading review” 

doctrine was limited to the situation where 

two elements combined: (1) the challenged 

action was in its duration too short to be fully 

litigated prior to its cessation or expiration, 

and (2) there was a reasonable expectation 

that the same complaining party would be 

subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per 

curiam); see id. (holding that doctrine did not prevent 

the case from being moot because the “case, not a 

class action, clearly does not satisfy the latter 

element”).

A.

Regarding Counts I and II, the FEC repeats its 

argument presented below that Stop PAC lacked 

standing to prosecute Counts I and II. The FEC also 
A-15

repeats its alternative contention that Counts I 

and II became moot once Stop PAC and Intervenor 

American Future became MPCs, since that change in 

status ensured that they would never again be bound 

by the limit they are challenging. We agree with this 

latter argument. See United States v. Juvenile Male, 

131 S. Ct. 2860, 2865 (2011) (per curiam) (holding 

that exception’s same-complaining-party requirement 

was not met when plaintiff challenging special 

conditions of juvenile supervision had turned 21 and 

thus would “never again be subject to an order

imposing [such] special conditions”). Because we 

conclude that Counts I and II became moot before the 

district court granted summary judgment, we do not 

address the FEC’s contention that Stop PAC never 

established standing to assert these claims in the 

first place. See Arizonans for Official English, 520 

U.S. at 66-67 (declining to decide standing issue 

when claim was moot).

Appellants do not deny that once Stop PAC and 

American Future became MPCs and the contribution 

limit they are challenging therefore ceased to apply 

to them, the district court was no longer in position 

to prevent any threatened injury (or provide redress 

for any past injury). Nevertheless, Appellants argue 

that the “capable of repetition, yet evading review” 

doctrine applied to prevent Counts I and II from 

becoming moot. In this regard, Appellants do not 

dispute the fact that there was no longer any 

reasonable expectation that they would be subject to 

the same limit again. Rather, they maintain that in 

election-related cases, the same-complaining-party 

element need not be satisfied. We disagree.
A-16

In support of their argument, Appellants rely 

primarily on Justice Scalia’s dissent in Honig v. Doe, 

484 U.S. 305, 335-36 (1988) (Scalia, J., dissenting). 

In the dissent, Justice Scalia cited abortion and 

election cases in which he argued the Court had 

“dispens[ed] with the same-party requirement” and 

“focus[ed] instead upon the great likelihood that the 

issue will recur between the defendant and the other 

members of the public at large.” Id. (emphasis in 

original).3

Since Honig was decided, courts have taken 

different views regarding whether the cases cited in 

Justice Scalia’s dissent indicated a deliberate 

decision by the Supreme Court not to apply the samecomplaining-party requirement in election cases. 

 

3 Justice Scalia acknowledged that those cases 

may “have been limited to their facts, or to the 

narrow areas of abortion and election rights, by [the 

Court’s] more recent insistence that, at least in the 

absence of a class action, the ‘capable of repetition’ 

doctrine applies only where ‘there [is] a “reasonable 

expectation”’ that the ‘same complaining party’ would 

be subjected to the same action again.” Honig v. Doe, 

484 U.S. 305, 336 (1988) (Scalia, J., dissenting) 

(emphasis in original). In class actions, at least when 

the class is certified while the case remains live for 

the named plaintiff, a reasonable expectation that 

someone in the represented class will be subject to 

the same action may be sufficient to satisfy the 

“capable of repetition” prong of the exception. See

Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 

1523, 1530-31 (2013); Sosna v. Iowa, 419 U.S. 393, 

401-02 (1975).
A-17

Partially as a result of this disagreement, courts have 

reached different results when considering 

arguments like the ones Appellants now raise. 

Compare Van Wie v. Pataki, 267 F.3d 109, 114-15 (2d 

Cir. 2001) (applying same-plaintiff requirement in an 

election case), and Barilla v. Ervin, 886 F.2d 1514, 

1519-20 & n.3 (9th Cir. 1989) (same), with Catholic 

Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 

423-24 (5th Cir. 2014) (concluding that same-plaintiff 

requirement need not be met in election cases), 

Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 

2005) (same), and Majors v. Abell, 317 F.3d 719, 723 

(7th Cir. 2003) (same).

In the end, we need not decide whether we believe 

the Supreme Court has sub silentio limited, or 

created an exception to, the requirements of the 

“capable of repetition, yet evading review” doctrine. 

That is so because even were we to conclude that the 

Supreme Court has actually sub silentio excused 

compliance with the rule in some election cases, we 

would be obligated to follow the rule that the Court 

has actually articulated. See, e.g., Shalala v. Illinois 

Council on Long Term Care, Inc., 529 U.S. 1, 18 

(2000) (“This Court does not normally overturn, or so 

dramatically limit, earlier authority sub silentio.”); 

Hohn v. United States, 524 U.S. 236, 252–53 (1998) 

(“Our decisions remain binding precedent until we 

see fit to reconsider them, regardless of whether 

subsequent cases have raised doubts about their 

continuing vitality.”); Agostini v. Felton, 521 U.S. 

203, 237 (1997) (explaining that if a Supreme Court 

precedent directly controls, “yet appears to rest on 

reasons rejected in some other line of decisions, the 

Court of Appeals should follow the case which 
A-18

directly controls, leaving to [the Supreme] Court the 

prerogative of overruling its own decisions” (internal 

quotation marks omitted)); id. (explaining that lower 

courts should not conclude that the Supreme Court’s 

“more recent cases have, by implication, overruled 

[its] earlier precedent”); Mackall v. Angelone, 131 

F.3d 442, 445–49 (4th Cir. 1997) (en banc) (applying 

Agostini and refusing to create an exception to a 

general rule articulated by the Supreme Court even 

though a subsequent Supreme Court case had noted 

that in a future case the Court might adopt the 

exception we were considering).

Moreover, the Supreme Court has actually 

applied the same-complaining-plaintiff rule in two 

relatively recent election cases. FEC v. Wisconsin 

Right To Life, Inc., 551 U.S. 449 (2007), concerned an 

as-applied challenge to a federal prohibition on the 

use of corporate funds to finance “electioneering 

communications” during a 60-day pre-election blackout period. See id. at 457-60. With the black-out 

period long over, the Supreme Court considered 

whether the case met the requirements of the 

“capable of repetition, yet evading review” doctrine. 

The Court explained that “[t]he second prong . . . 

requires a ‘reasonable expectation’ or a 

‘demonstrated probability’ that ‘the same controversy 

will recur involving the same complaining party.’” 

Id. at 463 (emphasis added). The Court concluded 

that the requirement was met in that case because 

the plaintiff “credibly claimed that it planned on 

running materially similar future targeted broadcast 

ads mentioning a candidate within the blackout 

period, and there is no reason to believe that the FEC 

will refrain from prosecuting violations of” the 
A-19

challenged statute. Id. (citation and internal 

quotation marks omitted).

In Davis v. FEC, 554 U.S. 724 (2008), the 

Supreme Court reviewed a challenge from a selffinanced candidate to certain campaign-financedisclosure requirements to which he was subject. See

id. at 731-32. With the litigation having continued 

after the election occurred, the Court again 

considered whether the “capable of repetition, yet 

evading review” doctrine applied. The Court again 

applied the same-complaining-party requirement, 

and determined it was satisfied because the 

candidate had publicly announced that he intended 

to run again as a self-financed candidate. See id. at 

735-36.

Like the Supreme Court, we have also applied the 

same-complaining-plaintiff requirement in recent 

election cases. Most recently, in Lux v. Judd, 651 

F.3d 396 (4th Cir. 2011), we reviewed a constitutional 

challenge to a state’s requirement that each 

signature on a petition for ballot placement by an 

independent candidate for Congress be witnessed by 

a district resident. See id. at 398. In considering 

whether the case satisfied the requirements of the 

“capable of repetition, yet evading review” doctrine, 

we noted that “[e]lection-related disputes qualify as 

‘capable of repetition’ when ‘there is a reasonable 

expectation that the challenged provisions will be 

applied against the plaintiffs again during future 

election cycles.’” Id. at 401. We concluded that that 

requirement was satisfied in that case. See id.

For all of these reasons, we conclude that we are 

bound to apply the doctrine that we and the Supreme 

Court have articulated — and recently applied — and 
A-20

we must leave to the Supreme Court the decision of 

whether it wishes to create an exception to, or 

otherwise limit, that rule. Accordingly, because 

Appellants cannot satisfy the same-complainingparty requirement, the “capable of repetition, yet 

evading review” doctrine does not apply, and the 

district court erred in not dismissing Counts I and II 

for lack of subject-matter jurisdiction. We therefore 

vacate the district court’s merits ruling regarding the 

claims and remand them to the district court for 

dismissal in accordance with Rule 12(h)(3).

B.

The FEC contends that the district court erred in 

declining to dismiss Count III on mootness grounds 

as well. We disagree.

In Count III the Fund and ARCC challenge the 

constitutionality of the annual $5,000 limit that 

applies to contributions from MPCs to state political 

party committees and their local affiliates, and the 

Fund challenges the constitutionality of the annual 

$15,000 limit on contributions from MPCs to national 

party committees. See 52 U.S.C. § 30116(a)(2)(B)-

(C). The FEC advances distinct mootness arguments 

concerning each of these two challenges.

Regarding the challenge to the limit on 

contributions to state party committees and their 

local affiliates, the FEC notes that the Amended 

Complaint alleges that the Fund wished to 

“immediately contribute an additional $5,000 to . . . 

ARCC, which would bring its total contributions

to . . . ARCC for the year 2014 to $10,000.” J.A. 59. 

The FEC argues that, once 2014 ended, this 
A-21

challenge was moot because the district court could 

not grant the Fund the right to contribute additional 

amounts to ARCC in 2014.

We conclude, however, that this challenge, unlike 

those presented in Counts I and II, easily fits into the 

“capable of repetition, yet evading review” exception. 

It is undisputed that the election cycle is too short in 

duration for election disputes to be fully litigated 

within a single cycle. See Moore v. Ogilvie, 394 U.S. 

814, 816 (1969). And the Fund very well may wish to 

contribute more than $5,000 to the ARCC in future 

years. To invoke the exception, Appellants are not 

required to forecast evidence that they were so 

inclined. See North Carolina Right to Life Comm. 

Fund for Indep. Political Expenditures v. Leake, 524 

F.3d 427, 435 (4th Cir. 2008) (holding that 

constitutional challenges to system of public 

financing for judicial elections, brought by two 

political committees and a candidate, were not 

mooted by the election even though neither the 

political committees nor the candidate had 

specifically alleged an intent to participate in future 

election cycles; concluding that “there is a reasonable 

expectation that the challenged provisions will be 

applied against the plaintiffs again during future 

election cycles”; rejecting “the argument that an excandidate’s claims may be ‘capable of repetition yet 

evading review’ only if the ex-candidate specifically 

alleges an intent to run again in a future election”); 

see also Honig, 484 U.S. at 318-19 n.6 (“Our concern 

in these cases, as in all others involving potentially 

moot claims, was whether the controversy was 

capable of repetition and not . . . whether the 

claimant had demonstrated that a recurrence of the 
A-22

dispute was more probable than not.” (emphasis in 

original)).

As for the Fund’s challenge to the annual $15,000 

limit on contributions from MPCs to national party 

committees, the FEC contends that that challenge 

was mooted by the December 2014 change in the law 

referenced earlier. The Fund had alleged in its 2014 

Amended Complaint that it wanted to “immediately 

contribute $32,400 to the” NRSC. J.A. 59. The 

December 2014 amendment authorized the NRSC to 

create a segregated account to fund their buildingheadquarters expenses and another to fund their 

election-related legal expenses.4 See Consolidated 

and Further Continuing Appropriations Act, 2015, 

Pub. L. 113-235, Div. N, § 101, 128 Stat. 2130, 2772-

73 (Dec. 16, 2014) (codified as amended at 52 U.S.C. 

§ 30116(a)(1)(B), (a)(2)(B), (a)(9)). Under the new 

law, donors may make contributions to each of these 

new accounts in amounts up to three times the 

amounts they could previously contribute to a 

national party committee. See id. In this way, if the 

NRSC created such segregated accounts, the Fund 

would have been free to contribute $32,400 to the 

building-fund account or legal-fund account were it 

so inclined. We conclude, however, that the possible 

availability of this new option did not moot the 

challenge here. Nothing in the record indicates that 

the Fund had or has any interest in donating to such 

specialized accounts. Because the $15,000 limit that 

the Fund is challenging remains in place, we 

 

4 The provision pertaining to accounts for the expenses 

concerning presidential nominating conventions does not apply 

to national congressional campaign committees. See 52 U.S.C. 

§ 30116(a)(9)(A).
A-23

conclude that this challenge, like the challenge to the 

$5,000 annual limit on MPC contributions to state 

and local political committees, fits into the “capable 

of repetition, yet evading review” exception.

IV.

Having determined that the district court 

possessed subject-matter jurisdiction over Count III, 

and that we continue to possess jurisdiction as well, 

we turn to Appellants’ contention that the district 

court erred in granting summary judgment to the 

FEC on the merits on that claim. We conclude that 

the district court was correct to grant summary 

judgment.

“We review a district court’s decision to grant 

summary judgment de novo, applying the same legal 

standards as the district court, and viewing all facts 

and reasonable inferences therefrom in the light 

most favorable to the nonmoving party.” T–Mobile 

Ne. LLC v. City Council of Newport News, 674 F.3d 

380, 384–85 (4th Cir. 2012) (internal quotation 

marks omitted). Summary judgment is appropriate 

“if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Although the Fourteenth Amendment’s Equal 

Protection Clause does not apply to the federal 

government, the Fifth Amendment’s Due Process 

Clause contains an equal protection component. See

Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Indeed, 

the Supreme Court has explained that “the equal 

protection obligations imposed by the Fifth and the 

Fourteenth Amendments [are] indistinguishable.” 
A-24

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 

217 (1995).

“To succeed on an equal protection claim, a 

plaintiff must first demonstrate that he has been 

treated differently from others with whom he is 

similarly situated and that the unequal treatment 

was the result of intentional or purposeful 

discrimination.” Morrison v. Garraghty, 239 F.3d 

648, 654 (4th Cir. 2001). “Once this showing is made, 

the court proceeds to determine whether the 

disparity in treatment can be justified under the 

requisite level of scrutiny.” Id.

Count III alleges that the challenged limits 

violate the Fifth Amendment’s equal protection 

component by discriminating against MPCs and in 

favor of political committees that have satisfied the 

other MPC criteria but have yet to complete the 

waiting period. The critical case governing this claim 

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

(1981) (“CMA”). In that case, an unincorporated 

association of California doctors, along with other 

plaintiffs, brought a declaratory judgment action 

challenging the constitutionality of a FECA provision 

prohibiting individuals and unincorporated 

associations from contributing more than $5,000 to 

any MPC in a calendar year. See id. at 185-86. One 

basis for the challenge was that the provision 

violated the equal protection component of the Fifth 

Amendment’s Due Process Clause. See id. at 200. 

The plaintiffs’ position was that even though 

unincorporated associations were similarly situated 

to corporations and labor unions, the provision 

treated unincorporated associations more harshly 

since corporations and labor unions were not subject 
A-25

to a similar limit.5 See id. The district court certified 

the constitutional questions in the case to the Ninth 

Circuit, which upheld the provision. See id. at 186. 

The plaintiffs then sought review of that decision in 

the Supreme Court. See id. at 186-87.

Like the Ninth Circuit, the Supreme Court 

concluded that the challenged limit did not violate 

the Fifth Amendment. The Court reasoned as 

follows:

In order to conclude that [the restriction] . . . 

violates the equal protection component of the 

Fifth Amendment, we would have to find that 

because of this provision [FECA] burdens the 

First Amendment rights of persons subject to 

[the challenged restriction] to a greater extent 

than it burdens the same rights of corporations 

and unions, and that such differential 

treatment is not justified. We need not 

consider this second question — whether the 

discrimination alleged by appellants is 

justified — because we find no such 

discrimination. Appellants’ claim of unfair 

treatment ignores the plain fact that the 

 

5 FECA allowed corporations and labor unions to pay for the 

establishment, administration, and solicitation of a “‘separate 

segregated fund to be utilized for political purposes.’” California 

Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (quoting 2 U.S.C. § 

441b(b)(2)(C) (now 52 U.S.C. § 30118(b)(2)(C))). There was no 

statutory limitation on the amount these groups could spend on 

such funds. See id. And, the plaintiffs claimed that the 

contributions of a corporation or labor union to its segregated 

political fund should be considered to be directly analogous to 

the contributions of an unincorporated association to an MPC. 

See id.
A-26

statute as a whole imposes far fewer

restrictions on individuals and unincorporated 

associations than it does on corporations and 

unions. Persons subject to the [challenged 

restriction] may make unlimited expenditures 

on political speech; corporations and unions, 

however, may make only the limited

contributions authorized by § 441b(b)(2) [now 

52 U.S.C. § 30118(b)(2)]. Furthermore, 

individuals and unincorporated associations 

may contribute to candidates, to candidates’ 

committees, to national party committees, and 

to all other political committees while 

corporations and unions are absolutely barred 

from making any such contributions. In 

addition, [MPCs] are generally unrestricted in 

the manner and scope of their solicitations; the 

segregated funds that unions and corporations 

may establish pursuant to §441b(b)(2)(C) [now 

52 U.S.C. § 30118(b)(2)(C)] are carefully 

limited in this regard.

Id. at 200-01 (emphasis in original).

The FEC argues that the claims here fail for 

similar reasons in that political committees overall 

clearly receive more favorable treatment under 

FECA than do other groups. For that reason, the 

FEC argues, there is no discrimination by FECA 

against MPCs that must be justified. We largely 

agree with the FEC’s position, but with one caveat. 

We believe the FEC is correct to the extent it argues 

that CMA requires us, in determining whether 

actionable discrimination has occurred, to compare 

the treatment the relevant respective groups receive 
A-27

under FECA overall, not just the treatment the 

groups receive under the specific provision of FECA 

that is being challenged. We conclude, however, that 

the proper comparison is between political 

committees that have become MPCs and political 

committees that have not completed the waiting 

period but have satisfied the other MPC conditions. 

It is those two groups, after all, that Appellants 

maintain are similarly situated yet treated 

differently under FECA.

Nevertheless, in our estimation, Appellants 

cannot show that FECA overall burdens the First 

Amendment rights of political committees that have 

become MPCs more than it burdens the rights of 

political committees that have satisfied all MPC 

requirements but the waiting period. That is so 

because the decrease in the amount of contributions 

that political committees, once they become MPCs, 

can make annually to state party committees or their 

local affiliates (from $10,000 to $5,000) and to 

national party committees (from $32,400 to $15,000) 

is more than counteracted by the increase in the 

limits in the amount of contributions that MPCs can 

make to individual candidates (from $2,600 to 

$5,000). To the extent that there is a difference in 

treatment, it appears to us to favor the MPCs in that 

the total amount of money MPCs can contribute 

overall will be substantially greater since there are 

so many different individual candidates to which the 

respective entities can contribute. Because 

Appellants cannot demonstrate that FECA 

discriminates against MPCs, there is no 

discrimination to be justified, and we conclude that 
A-28

the FEC was entitled to summary judgment on 

Count III.

V.

In sum, we conclude that the district court erred 

in adjudicating the merits of Counts I and II, as those 

claims became moot once the political committees 

challenging them became MPCs and were no longer 

subject to the limitations they were challenging. 

Accordingly, we vacate the merits judgment on those 

claims and remand to the district court with 

instructions to dismiss them for lack of subjectmatter jurisdiction. On the other hand, we conclude 

the district court properly granted summary 

judgment to the FEC on Count III, and we therefore 

affirm the judgment on that claim.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART

WITH INSTRUCTIONS TO DISMISS
A-29

Ruling of the U.S. District Court for the 

Eastern District of Virginia Denying Plaintiffs’ 

Motion for Summary Judgment and Granting 

Defendant’s Rule 56(d) Motion 

(June 18, 2014)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

STOP RECKLESS 

ECONOMIC INSTABILITY

CAUSED BY DEMOCRATS,

et al., 

Plaintiffs, 

v. Case No. 

1:14-cv-397 

FEDERAL ELECTION (AJT/IDD)

COMMISSION,

Defendant. 

ORDER

Presently pending are plaintiffs' Motion for 

Summary Judgment [Doc. No. 6] and defendant 

Federal Election Commission's Motion to Allow Time 

for Discovery under Rule 56(d) (“Rule 56(d) Motion”) 

[Doc. No. 27]. Upon consideration of plaintiff s 
A-30

Motion for Summary Judgment and defendant’s Rule 

56(d) Motion, the memoranda and exhibits in support 

thereof and in opposition thereto, and it appearing to 

the Court that an adequate factual record is 

necessary for proper consideration of plaintiff s 

constitutional claims, that the defendant is entitled 

to a reasonable opportunity to obtain discovery for 

that purpose, that there are no facts or circumstances 

that would justify adjudicating plaintiffs' 

constitutional claims in the absence of such a record 

and that the plaintiffs Motion for Summary 

Judgment is therefore premature, it is hereby

ORDERED that defendant’s Rule 56(d) Motion 

[Doc. No. 27] be, and the same hereby is GRANTED; 

and it is further

ORDERED that plaintiffs Motion for Summary 

Judgment [Doc. No. 6] be, and the same hereby is, 

DENIED without prejudice to its being refiled at an 

appropriate time; and it is further 

ORDERED that the hearings on plaintiffs Motion 

for Summary Judgment and defendant's Rule 56(d) 

Motion, scheduled for June 20, 2014, be, and the 

same hereby are, CANCELLED.

The Clerk is directed to forward copies of this 

Order to all counsel of record.

_/s/ Anthony J. Trenga___

Anthony J. Trenga

United States District Judge
A-31

Alexandria, Virginia

June 18, 2014
A-32

Opinion of the U.S. District Court for 

the Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary Judgment 

and Granting Defendant’s Cross-Motion 

for Summary Judgment 

(Feb. 27, 2015)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

STOP RECKLESS 

ECONOMIC INSTABILITY

CAUSED BY DEMOCRATS,

et al., 

Plaintiffs, 

v. Case No. 

1:14-cv-397 

FEDERAL ELECTION (AJT/IDD)

COMMISSION,

Defendant. 

MEMORANDUM OPINION

Presently pending are cross-motions for summary 

judgment with respect to plaintiffs’ constitutional 

challenges to certain statutory contribution limits 

under the Federal Election Campaign Act (“FECA”) 
A-33

[Doc. Nos. 56 and 57]. Specifically, plaintiffs contend 

that (1) the six month registration period, 2 U.S.C. 

§ 441a(a)(4), violates the First Amendment as

applied to plaintiff Stop Reckless Economic 

Instability Caused By Democrats (“Stop PAC”); (2) 

the limit on contributions from persons to candidates, 

§ 441a(a)(l)(A), violates the Fifth Amendment as 

applied to Stop PAC; and (3) FECA’s annual limits on 

contributions from multicandidate nonconnected 

political committees (“PACs”), like the Tea Party 

Leadership Fund (the “Fund”), to national party 

committees, § 441a(a)(2)(B)($15,000), and to state 

party committees, § 441a(a)(2)(C) ($5,000) violate the 

Fifth Amendment. Plaintiffs seek a declaration that 

these provisions are unconstitutional and also a 

permanent injunction barring defendant Federal 

Election Committee (“FEC”) from enforcing them 

against plaintiffs and similarly situated groups. For

the reasons stated herein, the Court will assume, 

without deciding, that plaintiffs have standing to 

raise their claims and that their claims are not moot, 

but concludes that the

BACKGROUND

On April 14, 2014, the original plaintiffs filed a 

complaint against defendant FEC [Doc. No. 1], 

challenging the constitutionality of certain FECA 

contribution limits.1 More specifically, plaintiffs Stop 

 

1 The original plaintiffs were Stop PAC, Niger Innis, Niger Innis 

for Congress, Tea Party Leadership Fund, and Alexandria 

Republican City Committee. On July 3, 2014, plaintiffs filed a 

motion to voluntarily dismiss plaintiffs Niger Innis and Niger 

Innis for Congress [Doc. No. 35], which the Court granted [Doc. 
A-34

PAC, the Fund, and the Alexandria Republican City 

Committee (“ARCC”) and intervenor American 

Future PAC (“American Future”) (referred to 

collectively as “plaintiffs”) allege that FECA, as 

amended by the Bipartisan Campaign Reform Act 

(“BRCA”), 52 U.S.C. §§ 30101-46 (formerly 2 U.S.C. 

§§ 431-57), unconstitutionally and discriminatorily 

places different contribution limits on materially 

indistinguishable political committees based on 

whether a committee has been in existence for six 

months. FECA requires that newly registered PACs 

wishing to contribute to candidates comply with a 

$2,600 limit for six months before earning an 

increased $5,000 limit reserved for multicandidate 

PACs. In that regard, Stop PAC and American 

Future argue that (1) the $2,600 limit on 

contributions from persons (or new PACs) to 

candidates, 2 U.S.C. § 441a(a)(1)(A), violates the 

equal protection component of the Fifth Amendment 

 

No. 46]. On July 7, 2014, plaintiffs filed an Amended Complaint 

[Doc. No. 37] (“Am. Compl.”), and also sought leave, if 

necessary, to file the amended complaint pursuant to Fed. R. 

Civ. P. 15(a)(2) and (d) [Doc. No. 36], which the Magistrate 

Judge granted on July 24, 2014 [Doc. No. 47]. On August 27, 

2014, plaintiffs filed a motion to join American Future PAC 

[Doc. No. 51]. The Magistrate Judge entered an Order allowing 

American Future to intervene in this suit pursuant to Fed. R. 

Civ. P. 24 [Doc. No. 62]. On September 19, 2014, the parties 

filed cross-motions for summary judgment [Doc. Nos. 56, 57]. 

On October 31, 2014, the Court heard argument on the parties' 

cross-motions for summary judgment, following which it took 

the motions under advisement, with leave to file by November 

14, 2014 any supplemental briefs pertaining to intervenor 

American Future, with responses thereto by November 21, 2014 

[Doc. No. 67], all of which the parties timely filed. See Doc. Nos. 

68, 69, 71, 72. 
A-35

as applied to Stop PAC (Count I);2 and (2) the sixmonth registration and waiting period for 

designation as a “multicandidate political 

committee,” 2 U.S.C. § 441a(a)(4), violates the First 

Amendment as applied to Stop PAC (Count II).3 In 

addition, FECA sets a higher limit for contributions 

made by persons, as opposed to those made by 

multicandidate PACs, to party committees.4 In 

 

2 52 U.S.C. §30116 (formerly cited as 2 U.S.C. §441a and 

changed in September 2014) provides, in relevant part: “[N]o 

person shall make contributions to any candidate and his 

authorized political committees with respect to any election for 

Federal office which, in the aggregate, exceed $2,000.” 52 

U.S.C. § 30116(a)(1)(A). At the time of the parties’ briefing, the 

statutory figure had been adjusted for inflation to $2,600. See

78 Fed. Reg. 8,530, 8,532 (Feb. 6, 2013). On February 3, 2015, 

the limit was increased under FECA to $2,700 to account for 

inflation. See Price Index Adjustments for Contribution and 

Expenditure Limitations, 80 Fed. Reg. 5750-02, 5752 (Feb. 3, 

2015). 

3 A “multicandidate political committee” is defined as “a 

political committee which has been registered under section 

30103 of this title for a period of not less than 6 months, which 

has received contributions from more than 50 persons, and, 

except for any State political party organization, has made 

contributions to 5 or more candidates for Federal office.” 52 

U.S.C. §30116(a)(4).

4 Per 52 U.S.C. §30101(11), a “person” “includes an individual, 

partnership, committee, association, corporation, labor 

organization, or any other organization or group of persons.” A 

person can contribute $32,400 annually to a national party and 

$10,000 annually to a state or local party committee. § 

30116(a)(1)(A), (B), (D). Section 30116(a)(2)(B) provides: “No 

multicandidate political committee shall make contributions to 

the political committees established and maintained by a 

national political party, which are not the authorized political 

committees of any candidate, in any calendar year, which, in the 

aggregate, exceed $15,000.” 
A-36

plaintiffs’ third claim, ARCC and the Fund argue 

that FECA’s annual limits on contributions made by 

multicandidate PACs to national party committees 

under 2 U.S.C. § 441a(a)(2)(B) ($15,000) and to state 

party committees under § 441a(a)(2)(C) ($5,000) 

violate the equal protection component of the Fifth 

Amendment (Count III).

FACTS5

Plaintiff Stop PAC is a hybrid non-connected 

political committee that registered with the FEC on 

March 11, 2014. Stop PAC is registered and based in 

Virginia. Of its contributors, 78 contributors reside 

in Nevada, and its founder and chairman, Greg 

Campbell, also resides there. As of April 10, 2014, 

Stop PAC had over 150 contributors and had 

contributed to five candidates for federal office. 

Section 441a(a)(1)(A) of FECA limited Stop PAC’s 

contributions to each federal candidate to $2,600 per 

election until September 11, 2014, when Stop PAC 

became a multicandidate PAC and was permitted to 

contribute $5,000.

Former plaintiff Niger Innis was a candidate in 

the June 10, 2014 primary election for the 

Republican Party nomination for the U.S. House of 

Representatives in Nevada (“Nevada Primary”). As 

of April 10, 2014, Stop PAC had contributed $2,600 to 

Niger Innis for the Nevada Primary. Stop PAC 

wished to contribute an additional $2,400 to Innis in 

 

5 Because this matter comes before the Court on cross-motions 

for summary judgment, the recited facts are either uncontested 

or stated most favorably to the plaintiffs and intervenor 

American Future. 
A-37

connection with the Nevada Primary, but section 

441a(a)(1)(A) prohibited it from doing so because 

Stop PAC had not been registered with the FEC for 

more than six months. The Nevada Primary 

occurred before Stop PAC's six-month waiting period 

expired.

On June 16, 2014, Stop PAC contributed the 

statutory maximum of $2,600 to Dan Sullivan, a 

candidate for the Republican nomination for U.S. 

Senate in Alaska's August 19, 2014 primary election 

(“Alaska Primary”). Stop PAC wished to contribute 

an additional $2,400 to Sullivan in connection with 

the Alaska Primary, but section 441a(a)(1)(A) 

prohibited it from doing so because it had not been 

registered for more than six months before the 

Alaska Primary. The Alaska Primary occurred 

before Stop PAC's six-month waiting period expired. 

On July 7, 2014, Stop PAC contributed $2,600 to 

Congressman Joe Heck in connection with his 

candidacy in the 2014 general election. At that time, 

Stop PAC had an additional $1,800 that it wished to 

contribute immediately to Heck, but could not until 

its six-month waiting period expired on September 

11, 2014. Thereafter, on October 3, 2014, after 

acquiring multicandidate status, Stop PAC 

contributed an additional $1,800 to Heck for the 

November 2014 general election.

Intervenor American Future is a non-connected 

political committee that registered with the FEC on 

August 11, 2014, and qualified as a multicandidate 

PAC on February 11, 2015. Its purpose is to “stand 

for veterans who have secured our freedom.” By 

August 22, 2014, American Future had raised $5,473 

from 54 contributors, $5,000 of which was received on 
A-38

August 18, 2014 from a single donor; 41 of those 

contributions were for five dollars, and three were for 

one dollar. On August 19, 2014, American Future 

contributed $2,600 to Tom Cotton's general election 

campaign for U.S. Senate, and then contributed $100 

each to four other candidates. American Future 

wished to contribute an additional $2,000 to Cotton 

in connection with the 2014 general election, but 

section 441a(a)(1)(A) prevented it from doing so 

because it had not been registered with the FEC for 

six months before the November 2014 general 

election. American Future made no contribution to 

any candidate after August 25, 2014. At the time of 

its intervention, American Future also argued that it 

wished to contribute funds in excess of $2,600 to 

Cotton immediately, but, due to the six-month 

waiting period, could not unless and until Cotton 

filed paperwork concerning the 2016 primary 

election, and that it reasonably anticipated wanting 

to contribute funds in excess of $2,600 to other 

candidates for the 2016 primary election at the 

earliest available opportunity. American Future 

expected that many candidates would begin filing the 

paperwork necessary to begin fundraising for the 

2016 primary election in December 2014 or January 

2015.

Plaintiff ARCC is a local political party committee 

that is affiliated with the Virginia Republican State 

Committee, a state political party committee. The 

ARCC contends that its rights to receive 

contributions from the Fund and other PACs have 

been infringed as a result of FECA.

Plaintiff the Fund is a hybrid non-connected 

multicandidate PAC that registered with the FEC in 
A-39

2012. By May 2014 the Fund had over 100,000 

contributors and it has contributed to dozens of 

federal candidates. As such, the maximum amount 

that it may contribute to a state political party 

committee and local affiliates under section 

441a(a)(2)(C) of FECA is $5,000 each year. If the 

Fund had been registered with the FEC for less than 

six months, it would have qualified as a “person” 

rather than a “multicandidate political committee,”

and been permitted to contribute up to $10,000 each 

year to a state political party committee and its local 

affiliates. See § 441a(a)(1)(D). The maximum 

amount that federal law permits it to contribute to a 

national political party committee is $15,000 

annually. See § 441a(a)(2)(B). If the Fund had been 

registered with the FEC for less than six months, it 

would have qualified as a “person” and been 

permitted to contribute up to $32,400 each year to a 

national political party committee. See

§ 441a(a)(1)(B). In 2014, the Fund contributed the 

statutory maximum of $5,000 to the ARCC, a local 

political party committee. The Fund wishes to 

contribute an additional $5,000 to the ARCC for a 

total of $10,000 in 2014. In addition, the Fund wants 

to contribute $32,400 in 2014 to the National 

Republican Senatorial Committee, a national party 

committee.

STANDARD OF REVIEW

Summary judgment should be granted where the 

record shows that “there is no genuine dispute as to 

any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a); 
A-40

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 

Entry of summary judgment is appropriate “against 

a party who fails to make a showing sufficient to 

establish the existence of an element essential to that 

party’s case, and on which that party will bear the 

burden of proof at trial.” Celotex Corp. v. Catrett, 477 

U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 

(1986). The non-moving party must go beyond the 

pleadings and mere allegations and set forth 

specific facts showing that there is a genuine issue 

for trial.” Id. at 323. “[T]he mere existence of some 

alleged factual dispute between the parties will not 

defeat an otherwise properly supported motion for 

summary judgment.” Anderson, 477 U.S. at 247-48. 

Indeed, “[i]f the evidence is merely colorable, or is not 

significantly probative, summary judgment may be 

granted.” Id. at 249-50 (internal citations omitted). 

The Court reviews the evidence in the light most 

favorable to the non-moving party.

ANALYSIS

A. Justiciability of Stop PAC and American 

Future’s Claims6

The FEC first challenges the justiciability of Stop 

PAC and American Future’s asserted claims based on 

the doctrines of standing and mootness.

 

6 Intervenor American Future has adopted, joined in, and 

incorporated by reference the arguments presented by Stop PAC 

in support of its motion for summary judgment and in 

opposition to FEC’s motion for summary judgment. 
A-41

As to standing, the FEC first argues that Stop 

PAC and American Future do not have standing 

because they have not suffered any cognizable injury 

as a result of the challenged scheme under the theory 

that they have themselves caused the alleged injury 

by not registering with the FEC early enough. As to 

mootness, FEC argues that Stop PAC is no longer 

subject to the six-month restriction under FECA, 

having become a multicandidate PAC on September 

11, 2014, a position that now extends to American 

Future, which no longer is subject to the six-month 

restriction as of February 11, 2015.

In support of their standing claim, Stop PAC and 

American Future argue that they have suffered 

injuries in fact as a result of the six month delay that 

conditioned their ability to associate with candidates 

for political office by contributing more than $2,600 

to a particular candidate. Ostensibly in recognition 

of their ability to remove any such disabilities by 

organizing more than six months before the 

primaries in which they wished to contribute, Stop 

PAC and American Future, relying on Citizens 

United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. 

Ed. 2d 753 (2010), assert that “[i]t is well known that 

the public begins to concentrate on elections only in 

the weeks immediately before they are held.” For 

that reason, they argue that they are injured because 

federal law allows entrenched, longstanding 

institutional interests to associate with candidates by 

contributing to the maximum authorized extent, 

$5,000, whereas members of the general public are 

crippled by being able to associate to a lesser degree, 

i.e., through only a $2,600 contribution.
A-42

To establish standing, a plaintiff must satisfy the 

“case or controversy” requirement of Article III by 

demonstrating that it had the requisite stake in the 

outcome when the suit was filed and that the alleged 

prospective injury qualifies for redress. Specifically, 

the plaintiff must show (1) it has suffered an “injury 

in fact,” (2) the injury is “fairly traceable” to the 

actions of the defendant, and (3) the injury will likely 

be redressed by a favorable decision. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 

2130, 119 L. Ed. 2d 351 (1992). An injury in fact is 

“an invasion of a legally protected interest which is 

(a) concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical.” Id. at 

560. Here, there is no doubt that the plaintiffs and 

intervenor American Future have been affected by 

the challenged contribution limits. There are, 

however, substantial issues concerning whether that 

injury satisfies the constitutional requirements for 

standing, given the ability of entities such as Stop 

PAC and American Future to control the timing of 

their registrations relative to any particular election. 

Nevertheless, the Court will assume, without 

deciding, that they have standing for the purposes of 

challenging the contribution limits.

As for mootness, in order to be justiciable, Article 

III also requires a live case or controversy. See FEC 

v. Wis. Right to Life, Inc. (WRTL), 551 U.S. 449, 461-

62, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007) (stating 

the “case-or-controversy requirement subsists 

through all stages of federal judicial proceedings. . . . 

[I]t is not enough that a dispute was very much alive 

when suit was filed.”) (alteration in original) (quoting 

Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 
A-43

110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990)). “A case 

becomes moot when interim relief or events have 

eradicated the effects of the defendant's act or 

omission, and there is no reasonable expectation that 

the alleged violation will recur.” Van Wie v. Pataki, 

267 F.3d 109, 113 (2d Cir. 2001) (quoting Irish 

Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 647 

(2d Cir. 1998)). However, there is an exception to the 

mootness doctrine that applies where the underlying 

dispute is capable of repetition, yet evading review. 

See WRTL, 551 U.S. at 462. Specifically, the 

exception applies where “(1) the challenged action is 

in its duration too short to be fully litigated prior to 

cessation or expiration, and (2) there is a reasonable 

expectation that the same complaining party will be 

subject to the same action again” unless the court 

intervenes. Id. (quoting Spencer v. Kemna, 523 U.S. 

1, 17, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998)); see 

also Delaney v. Bartlett, 2003 Civ. No. 1:02cv0741, 

2003 U.S. Dist. LEXIS 24059, 2003 WL 23192145, at 

*3 (M.D.N.C. Dec. 24, 2003).

Under the “evading review” prong, “[ejection 

controversies are paradigmatic examples of cases 

that cannot be fully litigated before the particular 

controversy expires.” Moore v. Hosemann, 591 F.3d 

741, 744 (5th Cir. 2009). However, it is unclear 

under the existing election case law whether the 

“capable of repetition” prong applies under the 

circumstances of this case. Compare Davis v. FEC, 

554 U.S. 724, 735, 128 S. Ct. 2759, 171 L. Ed. 2d 737 

(2008) (holding capable of repetition yet evading 

review exception applied where case could not be 

resolved before election concluded and same U.S. 

Congressional candidate plaintiff who challenged 
A-44

self-financing limitations announced his intent to 

self-finance another bid for Congress), and WRTL, 

551 U.S. at 463-64 (applying exception where 

plaintiff “credibly claimed” a “materially similar”

future controversy involving the same parties would 

occur), with Storer v. Brown, 415 U.S. 724, 737 n.8, 

94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974) (noting that, 

although the California election was over, case was 

“capable of repetition, yet evading review” because 

“the issues properly presented, and their effects on 

independent candidacies, will persist as the 

California statutes are applied in future elections”), 

and Catholic Leadership Coalition of Texas v. 

Reisman, 764 F.3d 409, 422-23 (5th Cir. 2014) 

(stating that a challenge to a statute’s waiting period 

imposed on new committees was not moot, even 

though election was over and waiting period would 

no longer apply to plaintiffs, because the statute 

would continue to injure plaintiffs by limiting their 

“ability to receive contributions from newly formed 

general purpose committees” and holding that 

plaintiffs “need not show they will suffer the exact 

same injury so long as an injury is caused by the 

same alleged illegality”). Given the election law 

context, the Court assumes, without deciding, that 

the circumstances presented here satisfy both prongs 

of the mootness exception.7

 

7 The mootness issues, particularly as to the Fund’s challenge to 

the $15,000 limit, and its previous inability to contribute up to 

$32,400, has been further affected by FECA amendments on 

December 16, 2014 that allow multicandidate PACs to give an 

additional $45,000 to up to three new types of accounts that 

national committee are allowed to create. See Consolidated and 

Further Continuing Appropriations Act, 2015, PL 113-235, 128 
A-45

B. First Amendment Challenges

Stop PAC and American Future argue that the 

six-month waiting period of section 441a(a)(4) and 

the monetary contribution restrictions that flow from 

it to new PACs violate the First Amendment. That 

position presents the same type of First Amendment 

constitutional challenges considered and rejected in 

Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 

2d 659 (1976), and California Medical Association v. 

FEC, 453 U.S. 182, 101 S. Ct. 2712, 69 L. Ed. 2d 567 

(1981), where the Supreme Court rejected a 

constitutional challenge to contribution limits that, 

overall, restricted advocacy more than those 

challenged here. Stop PAC and American Future 

claim, however, that these cases do not control 

because they are bringing a more narrow, as applied 

challenge to restrictions placed on groups that have 

received more than 50 contributors and contributed 

to at least five candidates, as opposed to individuals. 

The Court finds the relied upon distinctions 

immaterial to the core holdings of Buckley and 

California Medical Association, which dictate the 

result here.

In Buckley, the Supreme Court considered 

whether the limits the FEC placed on contributions 

from a person, defined as “an individual, partnership, 

committee, association, corporation, or any other 

organization or group of persons,” to candidates 

violated the First Amendment under the theory that, 

 

Stat. 2130, 2772-73 (Dec. 16, 2014) (codified as amended at 52 

U.S.C. § 30116(a), (d)).
A-46

by limiting contributions, the FEC limited the 

contributor's ability to express his political views 

through the speech of another. Although the Court 

recognized that contribution limits “implicate 

fundamental First Amendment interests,” it upheld 

various ceilings on contributions. Buckley, 424 U.S. 

at 23. Specifically, the Court upheld a $1,000 limit 

on contributions from individuals or groups to 

candidates for federal office and a $5,000 limit on 

donations from PACs. The Court reasoned that 

contribution limits are such “marginal restriction[s]” 

that they involve “little direct restraint” on 

contributors’ ability to express their own political 

views. See id. at 20-21 (reasoning that “[w]hile 

contributions may result in political expression if 

spent by a candidate or an association to present 

views to the voters, the transformation of 

contributions into political debate involves speech by 

someone other than the contributor”).

In California Medical Association, the Supreme 

Court considered whether a contributor’s rights were 

impaired by limits on the amount he could contribute 

to a PAC that advocates the views and candidacies of 

candidates. Determining that the analysis in 

Buckley controlled the issue, the Court held that the 

rights of a contributor were not impaired by limits on 

what he could contribute to an advocacy PAC, 

reasoning that this form of “proxy speech” was too 

attenuated to garner constitutional protection. See

id. at 196 (deciding the “sympathy of interests”

between the PAC and the contributor did not convert 

the PAC’s speech into that of the contributor, thus 

not entitling PAC speech to full First Amendment 

protection). These rulings apply with equal or 
A-47

greater force to a legislative scheme that allows a 

non-connected PAC to make separate $2,600 

contributions to many candidates.

Here, Stop PAC made contributions to five 

candidates 24 days after registering with the FEC 

and had the ability to make such contributions to any 

other candidate it chose. Similarly, American Future 

contributed $2,600 to Tom Cotton, and had the 

ability to make many other such contributions. Stop 

PAC and American Future therefore had the ability 

to make, and in fact made, greater contributions than 

the plaintiffs in Buckley, whom the Supreme Court 

concluded had not suffered a constitutional injury. In 

light of Buckley, Stop PAC and American Future 

cannot show that they have suffered a cognizable 

constitutional injury as a result of the waiting period, 

even if they would have made a higher contribution, 

had they been permitted to do so.8 Stop PAC and 

American Future were able to associate with, express 

approval of, and contribute to their chosen 

candidates through monetary contributions; and 

under Buckley, the limits placed on those 

contributions do not translate into a First 

Amendment infringement. See Buckley, 424 U.S. at 

21 (reasoning a campaign contribution limit involves 

little direct restraint because it “permits the symbolic 

expression of support evidenced by a contribution but 

does not in any way infringe the contributor's 

freedom to discuss candidates and issues”).

Likewise, Stop PAC and American Future did not 

sustain a constitutional injury as a result of the six-

 

8 See Am. Comp. HI 21, 25, 30 (alleging that it had the ability 

and desire to make additional contributions).
A-48

month waiting period, which did not restrict their 

ability to participate in political activity, other than 

through direct financial contributions. FECA does 

not restrain new PACs or their individual 

contributors from otherwise assisting the campaigns 

and political activities of their selected candidates. 

For example, Stop PAC and American Future’s 

contributors were free to engage in independent 

political expression during the six-month waiting 

period through such activities as raising their own 

funds to support candidates, volunteering their time 

to work on candidates' campaigns, and voting for the 

candidate of their choice, and Stop PAC and 

American Future could have spoken independently in 

favor of, or organized volunteer efforts to support, 

candidates of their choice. See Gottlieb v. FEC, 143 

F.3d 618, 622, 330 U.S. App. D.C. 104 (D.C. Cir. 

1998). In fact, Stop PAC and American Future have 

not claimed that their ability to engage in any 

specific protected speech has been stifled or 

compromised by the delay. See Buckley, 424 U.S. at 

21 (reasoning that “[t]he quantity of communication 

by the contributor does not increase perceptively with 

the size of his contribution, since the expression rests 

solely on the undifferentiated, symbolic act of 

contributing”).

Overall, Buckley makes clear that, within 

jurisprudential limits not exceeded here, the limited 

effect on First Amendment freedoms imposed by 

restrictions on the size of financial contributions from 

individuals and PACs to candidates and their 

political committees does not unconstitutionally 

infringe on political speech. California Medical 

Association makes clear that limitations on 
A-49

contributions from persons to PACs, even PACs that 

engage in advocacy and “proxy speech,” receive less 

First Amendment protection than direct individual 

contributions to candidates. Because this case does 

not involve an individual contributor, the First 

Amendment, under these Supreme Court precedents, 

provides Stop PAC and American Future with 

limited rights, not offended here, with respect to

their ability to make political contributions.

Accordingly, the Court concludes that FECA’s sixmonth waiting period, and the limited restriction 

that it places on financial contributions from PACs, 

do not constitute a First Amendment violation of 

Stop PAC and American Future's ability to associate 

with the candidates whom they support.

C. Fifth Amendment Equal Protection 

Challenges

Plaintiffs also seek protection under the Fifth 

Amendment from the per election contribution limits 

imposed on amounts new PACs can contribute to 

candidates and the annual contribution limits placed 

on amounts multicandidate PACs, such as the Fund 

and ARCC, can contribute to national, state, and 

local party committees. The FEC argues that 

FECA’s restrictions do not violate the Fifth 

Amendment because the restrictions are not 

discriminatory and, in any event, new PACs and 

multicandidate PACs are not similarly situated for 

the purposes of any equal protection analysis.

A contribution limit violates the equal protection 

component of the Fifth Amendment if plaintiffs can 

show they were treated differently from others who 
A-50

were similarly situated and that the unequal 

treatment was the result of discriminatory animus. 

See Equity in Athletics, Inc. v. Dept. of Educ, 639 

F.3d 91, 108 (4th Cir. 2011). The equal protection 

claim here reduces to whether a difference in 

treatment may be legislated with respect to a group 

of political committees that has more than 50 

contributors and contributed to at least five federal 

candidates based on when a political committee 

registered with the FEC. This inquiry involves three 

questions: (1) are the political committees that have 

been registered for less than six months similarly 

situated to those that have been registered for more 

than six months? (2) If so, what is the appropriate 

level of scrutiny? (3) Depending on the appropriate 

level of scrutiny, is the government's purpose 

sufficiently important and is the statutory 

classification sufficiently connected to that purpose? 

See Riddle v. Hickenlooper, 742 F.3d 922, 925 (10th 

Cir. 2014).

In assessing these claims, the Court must 

recognize that the legislation at issue, as a whole, 

places fewer restrictions on PACs than some other 

regulated persons or entities. See California Medical 

Association, 453 U.S. at 200 (holding that “claim of 

unfair treatment [based on limitations on 

contributions different than other regulated entities] 

ignores the plain fact that the statute as a whole 

imposes far fewer restrictions on . . . associations 

than it does on corporations and unions”); see also 52 

U.S.C. §§ 30118 and 30121 (restricting certain 

persons and entities from making contributions 

altogether). In short, plaintiffs’ claims of 

unconstitutional discrimination must be assessed 
A-51

within the broad context of the overall legislative 

scheme that Congress adopted.

Separate entities are “similarly situated” “if they 

are alike in ‘all relevant respects.’” Riddle, 742 F.3d. 

at 926 (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 

112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)). The Fund 

and Stop PAC argue that they are materially 

identical because they both have more than 50 

contributors and have contributed to five or more 

candidates (perhaps even the same candidates), 

engage in the same activities, and have the same 

goals, yet are subject to different contribution limits 

depending on when they registered with FEC. But

Stop PAC and the Fund are not “similarly situated”

when considered relative to core, legitimate 

legislative purposes. By its own description, Stop 

PAC is a “grassroots organization,” as compared to 

the more “entrenched” multicandidate PACs. See

Am. Compl. at 1. As such, Stop PAC is precisely the 

type of instrumentality that lends itself to a 

circumvention of the contribution limits applicable to 

individuals. The risk of circumvention is particularly 

great during the initial months of a PAC’s creation, 

which often coincides with the period immediately 

before an election when the incentives to infuse funds 

to a candidate are at their highest. See, e.g., Clark 

Decl., Doc. No. 57, Ex. 11 (showing that in 2008 the 

busiest month for PAC registrations was October, 

just before the November election and stating that 

since 2003, 5,084 PACs have registered with the 

FEC, and approximately 77 percent of those PACs 

had not become multicandidate PACs as of August 

26, 2014). For example, when Stop PAC had been 

registered with the FEC for one month it was 
A-52

comprised of approximately 150 contributors and had 

contributed to five candidates for federal office, with 

Stop PAC’s two largest contributors providing a 

significant portion of Stop PAC’s receipts. On the 

other hand, the Fund is a broad-based interest group. 

When it had been registered with the FEC for two 

years it had over 100,000 contributors and had 

contributed to dozens of federal candidates. For 

these reasons, the Court concludes that Stop PAC, 

during the initial six month period following 

registration, and multicandidate PACs, such as the 

Fund, are not similarly situated, the FECA does not 

improperly discriminate among such committees; and 

the FEC does not violate the plaintiffs’ rights under 

the Fifth Amendment.9

Even if the PACs were similarly situated, under 

either rational basis or intermediate scrutiny, there 

is sufficient government interest to justify the FECA 

contribution limits. See, e.g., Nixon v. Shrink 

Missouri Gov’t PAC, 528 U.S. 377, 387, 120 S. Ct. 

897, 145 L. Ed. 2d 886 (2000) (“It has, in any event, 

been plain ever since Buckley that contribution limits 

would more readily clear the hurdles before them.”); 

see also Montana Right to Life Ass'n v. Eddleman, 

343 F.3d 1085, 1091 (9th Cir. 2003) (reasoning that 

after Shrink Missouri courts “need not be overly 

concerned with the precise standard of scrutiny to be 

applied”). Specifically, there is sufficient government 

interest in preventing the risk of corruption of the 

political process and the circumvention of the 

 

9 Because the Court finds that new committees and 

multicandidate PACs are not similarly situated, it does not 

consider the second and third questions under an Equal 

Protection analysis.
A-53

legislative and regulatory systems to justify the 

limits on contributions from new PACs, or “persons,”

to candidates and from mullicandidate PACs to 

parties. See, e.g., Buckley, 424 U.S. at 26 (justifying 

limitations on contributions from individuals to 

candidates based on statute’s primary stated purpose 

of limiting the actuality and appearance of 

corruption).

For the above reasons, the Court will enter 

summary judgment in favor of defendant Federal 

Election Commission and deny the motion for 

summary judgment filed on behalf of plaintiffs Stop 

Reckless Economic Instability Caused By Democrats, 

Tea Party Leadership Fund, and Alexandria 

Republican City Committee and intervenor American 

Future.

The Court will issue an appropriate Order.

The Clerk is directed to forward copies of this 

Memorandum Opinion to all counsel of record.

_/s/ Anthony J. Trenga___

Anthony J. Trenga

United States District Judge

Alexandria, Virginia

Feb. 27, 2015
A-54

Order of the U.S. District Court for the 

Eastern District of Virginia Denying 

Plaintiffs’ Motion for Summary Judgment 

and Granting Defendant’s Cross-Motion 

for Summary Judgment 

(Feb. 27, 2015)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

STOP RECKLESS 

ECONOMIC INSTABILITY

CAUSED BY DEMOCRATS,

et al., 

Plaintiffs, 

v. Case No. 

1:14-cv-397 

FEDERAL ELECTION (AJT/IDD)

COMMISSION,

Defendant. 

ORDER

This matter is before the Court on Plaintiffs' 

Motion for Summary Judgment [Doc. No. 56] and 

Defendant Federal Election Commission's Motion for 

Summary Judgment [Doc. No. 57] (collectively, the 
A-55

“Motions”). Upon consideration of the Motions, the 

memoranda submitted in support thereof and in

opposition thereto, the argument presented at the 

hearing held on October 31, 2014, and for the reasons 

stated in the accompanying Memorandum Opinion, it 

is hereby

ORDERED that Plaintiffs' Motion for Summary 

Judgment [Doc. No. 56] be, and the same hereby is, 

DENIED; and it is further

ORDERED that Defendant Federal Election 

Commission's Motion for Summary Judgment [Doc. 

No. 57] be, and the same hereby is, GRANTED, and 

the action is hereby DISMISSED.

The Clerk is directed to enter judgment in favor of 

defendant Federal Election Commission and against 

plaintiffs Stop Reckless Economic Instability Caused 

By Democrats, the Tea Party Leadership Fund, and 

the Alexandria Republican City Committee and 

intervenor American Future PAC pursuant to Fed. R. 

Civ. P. 58 and in accordance with this Order, and to 

forward copies of this Order to all counsel of record. 

_/s/ Anthony J. Trenga___

Anthony J. Trenga

United States District Judge

Alexandria, Virginia

Feb. 27, 2015
A-56

Order of the U.S. Court of Appeals 

for the Fourth Circuit Denying Appellants’ 

Motion for Rehearing and Rehearing En Banc 

(Apr. 22, 2016)

FILED: April 22, 2016

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_____________

No. 15-1455

(1:14-cv-00397-AJT-IDD)

_____________

STOP RECKLESS ECONOMIC INSTABILITY 

CAUSED BY DEMOCRATS (“Stop Reid”); TEA 

PARTY LEADERSHIP FUND; ALEXANDRIA 

REPUBLICAN CITY COMMITTEE

Plaintiffs – Appellants

AMERICAN FUTURE PAC

Intervenor/Plaintiff – Appellant

and

NIGER INNIS; NIGER INNIS FOR CONGRESS

Plaintiffs

v.
A-57

FEDERAL ELECTION COMMISSION

Defendant – Appellee

_____________

ORDER

_____________

The court denies the petition for rehearing and 

rehearing en banc. No judge requested a poll under 

Fed. R. App. P. 35 on the petition for rehearing en 

banc. 

Entered at the direction of the panel: Chief Judge 

Trexler, Judge Shedd and Judge Dillon. 

For the Court

 /s/ Patricia S. Connor, Clerk
A-58

Order of the U.S. District Court for the 

Eastern District of Virginia Dismissing 

Counts I and II for Lack of Subject-Matter 

Jurisdiction 

(May 18, 2016)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

STOP RECKLESS 

ECONOMIC INSTABILITY

CAUSED BY DEMOCRATS,

et al., 

Plaintiffs, 

v. Case No. 

1:14-cv-397 

FEDERAL ELECTION (AJT/IDD)

COMMISSION,

Defendant. 

ORDER

This matter is before the Court on remand from 

the United States Court of Appeals for the Fourth 

Circuit with instructions to dismiss Counts l and II of 

the Complaint [Doc. No. 1] for lack of subject matter 

jurisdiction. See Stop Reckless Econ. Instability 
A-59

Caused by Democrats v. Fed. Election Comm’n, 814 

F.3d 221 (4th Cir. 2016). Accordingly, it is hereby 

ORDERED that Counts I and II of the Complaint 

[Doc. No. 1] be, and the same hereby are, 

DISMISSED for lack of subject matter jurisdiction.

The Clerk is directed to forward copies of this 

Order to all counsel of record. 

_/s/ Anthony J. Trenga___

Anthony J. Trenga

United States District Judge

Alexandria, Virginia

May 18, 2016