ORAL ARGUMENT HELD OCTOBER 22, 2015, 9:30 AM

No. 14-5249

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE,

Plaintiff-Appellant, 

v.

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On appeal from the United States District Court 

for the District of Columbia, No. 1:14-cv-1500 (CKK)

Independence Institute’s Supplemental Brief

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

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

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff-Appellant

January 6, 2016

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Table of Contents

Table of Authorities.................................................................................................. ii

Glossary of Abbreviations ........................................................................................iv

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

Statutes and Regulations............................................................................................ 1 

Summary of the Argument......................................................................................... 2 

Argument.................................................................................................................... 4 

I. Shapiro is binding precedent governing this appeal. ................................. 4 

II. Shapiro held that district judges must convene a three-judge court for the 

class of cases assigned by Congress to such courts. .................................. 6 

a. Under 52 U.S.C. § 30110 note and 28 U.S.C. § 2284, only a threejudge court has jurisdiction to hear the Institute’s challenge................ 6 

b. Shapiro holds that relevant constitutional challenges must be heard by 

a three-judge court unless they are, unlike the Institute’s claims, 

“‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ 

and ‘obviously without merit.’” ............................................................ 8 

c. Use of the three-judge court is “rare” and therefore not a burden on 

judicial resources.................................................................................13

Conclusion ...............................................................................................................14

Addendum: Republican Party of Louisiana et al. v. FEC, 2015 U.S. Dist. LEXIS 

159095, No. 15-1241 (CRC) (D.D.C. Nov. 25, 2015)

Certificate of Compliance

Certificate of Service

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Table of Authorities1

Cases

Ayotte v. Planned Parenthood, 

546 U.S. 320, 329 (2006) ..............................................................................11

Citizens United v. FEC, 

558 U.S. 310 (2010)......................................................................... 8, 9, 10, 11

Conrail v. United States, 

896 F.2d 574 (D.C. Cir. 1990).....................................................................6, 7

Corley v. United States, 

556 U.S. 303 (2009)......................................................................................... 5 

Feinberg v. Federal Deposit Insurance Corp., 

522 F.2d 1335 (D.C. Cir. 1975)................................................................. 1, 12

Goldstein v. Cox, 

396 U.S. 471 (1970).......................................................................................13

Gonzalez v. Automatic Employees Credit Union, 

419 U.S. 90 (1974).........................................................................................13

Independence Institute v. FEC, 

No. 14-5249, Order (Doc. 1588062) (D.C. Cir. Dec. 11, 2015) ..................... 1

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 

523 U. S. 26 (1998).......................................................................................... 6

National Association of Home Builders v. Defenders of Wildlife, 

551 U. S. 644 (2007)........................................................................................ 6 

Republican Party of Louisiana et al. v. FEC, 

2015 U.S. Dist. LEXIS 159095, No. 15-1241 (CRC) 

(D.D.C. Nov. 25, 2015) .................................................................................12

 

1 Authorities upon which the Independence Institute chiefly relies are marked with 

asterisks.

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* Shapiro v. McManus, 

577 U.S. ___, 136 S. Ct. 450, 193 L. Ed. 2d 279 (2015) .......1, 2, 3, 4, 5, 6, 7, 

 8, 9, 11, 12, 13

United States v. Ron Pair Enterprises, Inc., 

489 U.S. 235 (1989)......................................................................................... 6 

Van Hollen v. FEC, 

74 F. Supp. 3d 407 (D.D.C. 2014)................................................................. 11

Statutes

28 U.S.C. § 2284 ........................................................................................................ 1 

* 28 U.S.C. § 2284(a)........................................................................................2, 4, 5, 6

28 U.S.C. § 2284(b)(1)............................................................................................... 7 

28 U.S.C. § 2284(b)(3)...........................................................................................4, 7

* 52 U.S.C. § 30110 note ......................................................................................1, 2, 5

Bipartisan Campaign Reform Act of 2002, 

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

Other Sources

Oral Argument, Independence Institute v. FEC, 

No. 14-5249 (D.C. Cir. Oct. 22, 2015)

https://www.cadc.uscourts.gov/recordings/recordings2016.nsf/638E93666D

13933685257EE60058FB78/$file/14-5249.mp3. ...................................10, 13

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Glossary of Abbreviations

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

(2002)

FEC or Commission – Federal Election Commission

J.A. – Joint Appendix

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Introduction

On December 11, 2015, this Court entered a per curiam order directing the 

parties to file supplemental briefs addressing the Supreme Court’s recent unanimous 

decision in Shapiro v. McManus, 577 U.S. ___, 136 S. Ct. 450, 193 L. Ed. 2d 279

(2015). Independence Institute v. FEC, No. 14-5249, Order (Doc. 1588062) (D.C. 

Cir. Dec. 11, 2015). While existing precedent in this Circuit requires a three-judge 

district court to hear the Institute’s claims unless they are “obviously without merit” 

or “previous decisions of the Supreme Court...foreclose the subject,” J.A. 42; Op. 

Br. at 14; Ans. Br. at 53 (all citing Feinberg v. Federal Deposit Insurance Corp., 

522 F.2d 1335, 1338-39 (D.C. Cir. 1975)), Shapiro emphasizes—in unusually 

striking terms—that such courts must hear all but the most frivolous constitutional 

challenges to the Bipartisan Campaign Reform Act of 2002 (“BCRA”). 

Consequently, the Institute’s appeal should prevail and the FEC’s merits arguments

should be directed to a three-judge district court as Congress directed. 

Statutes and Regulations

The relevant portions of the Bipartisan Campaign Reform Act of 2002

(“BCRA”) (codified at 52 U.S.C. § 30110 note) and 28 U.S.C. § 2284 are reproduced 

in the Addendum to the Plaintiff-Appellant’s Opening Brief. 

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Summary of the Argument

Shapiro refutes many of the arguments raised by the FEC and the district court 

below. And it is binding precedent. While Shapiro’s facts concerned the drawing of 

Maryland’s Congressional districts, the statute at issue required a three-judge court 

for redistricting challenges or “when otherwise required by Act of Congress.” 28 

U.S.C. § 2284(a). Congress has “otherwise required” that such courts be convened 

to review challenges to BCRA. 52 U.S.C. § 30110 note (“The action shall be filed 

in the United States District Court for the District of Columbia and shall be heard 

by a 3-judge court convened pursuant to section 2284 of title 28, United States 

Code.”) (emphasis added). The precise procedure at issue in Shapiro is also the 

subject of this appeal.

Shapiro’s holding is straightforward: when Congress says a challenge “shall” 

be heard by a three-judge court, it shall be heard by a three-judge court. Shapiro, 

193 L. Ed. 2d at 284. This is because § 2284 is a jurisdictional statute. Id. at 285. 

A single district court judge does retain something of a gatekeeping role, but 

that duty is slight and carefully circumscribed. While a district court need not request 

that a three-judge court be convened if it “determines that three judges are not 

required,” id. at 284, this is not an invitation to consider the merits. Rather, it is an 

“administrative detail:” a district judge may “examin[e] the allegations in the 

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complaint,” but that review is solely to determine if the “request for a three-judge 

court” is made in a case covered by an appropriate statute such as BCRA. Id. 

As Maryland did in Shapiro, the FEC argues that a single district judge may 

dismiss an “insubstantial” claim rather than convene a three-judge court. That is true 

so far as it goes, but the Supreme Court could not have been clearer in explaining 

that this is not a back-door opportunity to weigh the merits of a particular claim. 

Rather, the inquiry is—again—jurisdictional: “[a]bsent a substantial federal 

question, even a single-judge district court lacks jurisdiction, and a three-judge court 

is not required where the district court itself lacks jurisdiction...” Id. at 285. The 

district court in Shapiro erred precisely because it dismissed a case, not because it 

lacked jurisdiction, but because it thought the case’s merits overly weak. 

Consistent with this understanding—and with the statute—the Shapiro Court 

held that a single judge may only dismiss a constitutionally insubstantial claim. And, 

in that context, “constitutional insubstantiality has been equated with such concepts 

as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and 

‘obviously without merit.’ And the adverbs are no mere throwaways; ‘the limiting 

words ‘wholly’ and ‘obviously’ have cogent legal significance.’” Id. at 286

(punctuation altered, internal citations omitted). 

The district court did not have the benefit of Shapiro when it denied the 

Independence Institute’s request for a three-judge court. Nevertheless, Shapiro is 

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now the law, and it clarifies that all a single district judge may do is review whether 

the three-judge court statute applies—“no more, no less.” Id. at 284. 

The Institute has brought a constitutional challenge to BCRA. For reasons 

already stated in its earlier briefing, its claims are meritorious. But this court need 

not reach those issues, and indeed lacks jurisdiction to do so. It is enough to note 

that the district court committed reversible error when it failed to request a threejudge court and instead entered summary judgment for the FEC despite the statute’s 

clear command.2

 

Argument

I. Shapiro is binding precedent governing this appeal. 

Shapiro addressed the language of 28 U.S.C. § 2284: “A district court of three 

judges shall be convened when otherwise required by Act of Congress, or when an 

action is filed challenging the constitutionality of the apportionment of congressional 

districts or the apportionment of any statewide legislative body.” 28 U.S.C. 

 

2 As the Shapiro Court reasoned: 

[This] conclusion is bolstered by §2284(b)(3)’s explicit command that 

“[a] single judge shall not . . . enter judgment on the merits.” It would 

be an odd interpretation that allowed a district judge to do under 

§2284(b)(1) what he is forbidden to do under §2284(b)(3). More likely 

that Congress intended a three-judge court, and not a single district 

judge, to enter all final judgments in cases satisfying the criteria of 

§2284(a).

Id. at 284-85 (quoting 28 U.S.C. § 2284(b)(3)). 

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§ 2284(a) (emphasis added). Shapiro centered on a challenge to Maryland’s 

redistricting of congressional districts, Shapiro, 193 L. Ed. 2d at 283, but, because 

challenges to BCRA are among the cases “otherwise required by Act of Congress”

to be heard by a three-judge court, its holding applies here. 28 U.S.C. § 2284(a). 

Indeed, 28 U.S.C. § 2284—the provision analyzed in Shapiro—is 

incorporated by reference into § 52 U.S.C. 30110 note. Congress provided:

Special Rules for Actions Brought on Constitutional Grounds. If any 

action is brought for declaratory or injunctive relief to challenge the 

constitutionality of any provision of [BCRA] or any amendment made 

by this Act, the following rules shall apply: (1) The action shall be filed 

in the United States District Court for the District of Columbia and shall 

be heard by a 3-judge court convened pursuant to section 2284 of title 

28, United States Code. 

52 U.S.C. § 301110 note (emphasis added). 

Nothing in the Shapiro decision or the statute it examined is limited only to 

congressional redistricting. After all, the Supreme Court has instructed that a “statute 

should be construed so that effect is given to all its provisions, so that no part will 

be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 

U.S. 303, 314 (2009) (internal citation and punctuation omitted). Applying Shapiro

only to Congressional redistricting would ignore a significant clause in § 2284(a), as 

well as 52 U.S.C. § 30110 note’s internal reference to that statute. 

Because Shapiro governs § 2284, and that provision is a necessary component 

of the statute at issue here, Shapiro governs this appeal. 

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II. Shapiro held that district judges must convene a three-judge court for 

the class of cases assigned by Congress to such courts. 

a. Under 52 U.S.C. § 30110 note and 28 U.S.C. § 2284, only a threejudge court has jurisdiction to hear the Institute’s challenge. 

Shapiro acknowledged the obvious: the statute’s “initial prescription could 

not be clearer: ‘A district court of three judges shall be convened...when an action is 

filed challenging the constitutionality of the apportionment of congressional 

districts.’” 193 L. Ed. 2d at 284 (quoting 28 U.S.C. § 2284(a)) (emphasis in Shapiro). 

Therefore “[i]t follows that the district judge was required to refer the case to a threejudge court, for § 2284(a) admits of no exception, and ‘the mandatory 

“shall”...normally creates an obligation impervious to judicial discretion.’” Id. 

(quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 

(1998) and citing National Association of Home Builders v. Defenders of Wildlife, 

551 U.S. 644, 661-62 (2007)) (emphasis in Shapiro).3

 

 

3 The Supreme Court’s plain reading is in line with long established precedent in this 

Circuit as well. See, e.g., Conrail v. United States, 896 F.2d 574, 578 (D.C. Cir. 

1990) (“the plain meaning of legislation should be conclusive, except in the ‘rare 

cases [in which] the literal application of a statute will produce a result demonstrably 

at odds with the intention of its drafters.’”) (quoting United States v. Ron Pair 

Enterprises, Inc., 489 U.S. 235, 242 (1989)) (brackets in Conrail). The Conrail court 

continued: 

And that “rare case” must involve, at a minimum, some clear indication 

of congressional intent, either in the legislative history or in the 

structure of the relevant statute, that informs the specific language in 

question; any attempt less grounded in the words of the legislature itself 

to further what a court perceives to be Congress’s general goal in 

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It is true that subsection (b)(1) allows a judge to “determine[] that three judges 

are not required.” 28 U.S.C. § 2284(b)(1). But Shapiro clarifies that this provision

“need not and therefore should not be read as a grant of discretion to the district 

judge to ignore §2284(a).” Shapiro, 193 L. Ed. 2d at 284. Instead, the Court held 

that the statute is jurisdictional, and that a single judge may dismiss an action only 

if the federal courts lack jurisdiction in the first instance. Id. at 285.

This reasoning is in line with the statutory text itself. Subsection (b)(3) clearly 

limits the power of a single judge, who “shall not appoint a master, or order a 

reference, or hear and determine any application for a preliminary or permanent 

injunction or motion to vacate such an injunction, or enter judgment on the merits.”

28 U.S.C. § 2284(b)(3). Indeed, any other decision of the single judge is also subject 

to “review[] by the full court at any time before final judgment.” Id. Congress has 

clearly foreclosed the action taken by the district court below. 

The Institute has consistently echoed this view. See, e.g., Op. Br. at 26, Reply 

Br. at 29. In its Opening Brief, the Institute argued that 52 U.S.C. § 30110 note is a 

jurisdictional statute requiring claims to be heard by a three-judge court. Op Br. at 

26 (“it was improper for the district court to refuse to convene a three-judge district 

 

enacting a statute is simply too susceptible to error to be tolerated 

within our scheme of separated powers.

Id. (emphasis added). Absent such evidence of contrary Congressional intent, this 

Court’s precedents support the Supreme Court’s plain reading of the statute. 

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court, which is the only body with jurisdiction to consider the merits of Plaintiff’s 

as-applied challenge”). The Shapiro Court agreed, and held that the three-judge 

court statute is indeed jurisdictional, and only a three-judge court can dismiss a case 

on the merits. Shapiro, 193 L. Ed. 2d at 284-85. A single judge is not to consider 

whether the claims are likely to succeed on the merits. Id. at 286 (“Perhaps 

petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to 

make their case before a three-judge district court.”). Instead, the single district judge

is to determine only whether the “‘request for three judges’ is made in a case covered 

by § 2284(a)—no more, no less.” Id. at 284. 

Shapiro makes clear that the statutory “shall” has force. Congress meant what 

it said when it outlined a special jurisdictional procedure for constitutional 

challenges to BCRA. 

b. Shapiro holds that relevant constitutional challenges must be heard 

by a three-judge court unless they are, unlike the Institute’s claims,

“‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously 

frivolous,’ and ‘obviously without merit.’” 

The FEC has resisted the statute’s clear language, arguing that only 

substantial claims must be heard by a three-judge court. See, e.g., Ans. Br. at 53.

The district court adopted much of this reasoning, relying on a misreading of Citizens 

United v. FEC, 558 U.S. 310 (2010). Compare J.A. 42 (examining substantiality

standard) with J.A. 57 (holding that the Institute’s claims are “foreclosed” by 

Citizens United). 

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But Shapiro emphasizes that the only “insubstantial” case, for this purpose, is 

a case so frivolous that no federal court has jurisdiction to consider it: 

Absent a substantial federal question, even a single-judge district court 

lacks jurisdiction, and a three-judge court is not required where the 

district court itself lacks jurisdiction... 

Shapiro, 193 L. Ed. 2d at 285 (internal citation and quotation marks omitted).

Quoting extensively from its previous rulings, the Supreme Court noted that this sort 

of “constitutional insubstantiality has been equated with such concepts as 

‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously 

without merit.’ And the adverbs are no mere throwaways; ‘the limiting words 

‘wholly’ and ‘obviously’ have cogent legal significance.’” Id. at 286 (punctuation 

altered, internal citations omitted). Consequently, under Shapiro, it is not enough 

that the Supreme Court may have examined a provision of the law in a prior context; 

claims can be dismissed only if they are “obviously without merit,” which is 

synonymous with such extraordinary terms as “obviously frivolous” and “essentially 

fictitious.” 

By contrast, the district court held that Independence Institute’s case is 

“foreclosed” based solely upon Citizens United, even though it recognized the 

differences between Citizens United and the Institute’s challenge. J.A. 57. That is, 

the district court held that the Institute’s challenge is “squarely foreclosed” by 

Citizens United even though it recognized that the cases deal with different types of 

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organizations under the tax code (with different purposes and restrictions) and even 

though it recognized that “the Hillary advertisements were arguably pejorative while 

Plaintiff’s advertisement is, on its face, neither complimentary nor pejorative with 

respect to any candidate.” J.A. 57-58. 

At oral argument, the Institute noted these distinctions, and also the low 

threshold for a three-judge court, which can be denied only if the claims are “so 

foreclosed [by precedent] that there can be no honest difference of opinion.” Oral 

Argument at 7:43, Independence Institute v. FEC, No. 14-5249 (D.C. Cir. Oct. 22, 

2015).

4 In that context, the Institute has long argued that a distinguishable as-applied 

challenge, based upon significantly different facts and legal theories, cannot be 

foreclosed by one as-applied case in the Supreme Court. See, e.g. Op. Br. at 14; 

Reply Br. at 3-4. The differences in the organizations’ messages are material: 

Citizens United centered on a movie, and ads for that movie, about Hillary Clinton’s 

candidacy. In contrast, the Institute’s ad, as the district court acknowledged, was 

“neither complimentary nor pejorative with respect to any candidate.” J.A. 58; cf.

Reply Br. at 4-5 (explaining differences between Citizens United’s ads and the 

Institute’s proposed ad). Likewise, the nature of who is speaking—the often active 

advocacy group Citizens United versus the educational Independence Institute—

 

4 Available at

https://www.cadc.uscourts.gov/recordings/recordings2016.nsf/638E93666D13933

685257EE60058FB78/$file/14-5249.mp3

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also matters. Reply Br. at 5. The Supreme Court prefers as-applied challenges 

precisely because, as is the case here, a law that is constitutional in one situation may 

be unconstitutional in another. See Ayotte v. Planned Parenthood, 546 U.S. 320, 329 

(2006). 

Moreover, as noted in the briefing in this case, the legal landscape changed 

significantly when Van Hollen v. FEC, 74 F. Supp. 3d 407 (D.D.C. 2014), 

“substantially broadened the scope of donor disclosure beyond that in place for the 

Citizens United case.” Reply Br. at 16; see also Op. Br. at 47-48 (noting effect of 

recent Van Hollen decision); see also J.A. 17-18 ¶ 55 (Institute’s Verified Complaint 

noting then-pending Van Hollen decision’s possible effect on the Institute’s planned 

activity). This is because Van Hollen struck down a regulation that limited disclosure 

for electioneering communications, Van Hollen, 74 F. Supp. 3d at 410, and opened 

up the Institute’s entire donor list to disclosure if it made an electioneering 

communication. This is a major shift in the law, and one the Supreme Court has 

never addressed.

Thus, applying Shapiro to this case, there is no hint that any of the Institute’s

claims are “‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and 

‘obviously without merit.’” Shapiro, 193 L. Ed. 2d at 286. The district court ruled 

that Citizens United foreclosed these claims, not that they were frivolous or 

fictitious. While the district court did state that the claims were “insubstantial,” J.A. 

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42, it did not analyze whether they were “wholly insubstantial,” and certainly did 

not find that the Institute’s claims were so insubstantial that they defeated federal 

jurisdiction, the standard announced in Shapiro. 193 L. Ed. 2d at 285 (“We have 

long distinguished between failing to raise a substantial federal question for 

jurisdictional purposes...and failing to state a claim for relief on the merits; only 

‘wholly insubstantial and frivolous’ claims implicate the former.”).

Even before Shapiro, some district courts understood that Congress had 

sharply constrained the ability of a single judge to act upon the merits of a 

constitutional challenge to BCRA.

5

 Post-Shapiro, the Supreme Court has clearly 

indicated that a district court’s only role under 28 U.S.C. § 2284 is to determine

whether a case properly invokes that statute, “no more, no less.” Id. at 284. 

 

5 A recent ruling in the district court for this Circuit supplies a good example. Judge 

Christopher Cooper’s opinion in Republican Party of Louisiana et al. v. FEC, 2015 

U.S. Dist. LEXIS 159095, No. 15-1241 (CRC) (D.D.C. Nov. 25, 2015), highlighted

that this Court’s Feinberg test, even without the benefit of Shapiro, requires that a 

constitutional challenge to provisions of BCRA—even provisions that had been 

upheld in previous cases—must be heard by a three-judge court. Most significantly, 

the Republican Party’s claims had been addressed facially in the omnibus challenge 

of McConnell v. FEC, 540 U.S. 93 (2003), and in multiple as-applied challenges. Id.

slip op. at 1-2 (collecting cases, including challenges by the same plaintiffs the year 

before). While prior cases “upheld the constitutionality of the same provisions of 

BCRA that [the] Plaintiffs challenge[d t]here...[n]evertheless, subsequent 

statements by the Supreme Court and the relatively low bar that Plaintiffs must 

clear,” compelled a three judge-court. Id. at 15-16 (emphasis added). 

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c. Use of the three-judge court is “rare” and therefore not a burden 

on judicial resources.

Based on decades-old cases interpreting superseded law, the FEC claims that 

the courts are overburdened by cases such as this. Shapiro says otherwise. In its 

briefing here, many of the FEC’s cited cases predate the substantial narrowing of 

three-judge court jurisdiction that occurred in 1976. See, e.g., Ans. Br. at 52 (citing 

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 98 (1974) and 

Goldstein v. Cox, 396 U.S. 471, 478 (1970)). As noted at oral argument, three-judge 

courts were common before 1976 because they were required for every

constitutional challenge to a state law. Oral Argument at 9:33. This burdensome 

requirement was eased in 1976 as, by extension, was the Supreme Court’s mandatory 

appellate docket. The Independence Institute argued, therefore, that such pre-1976 

cases were not helpful in considering the burdens placed upon the courts by the post1976 regime. Id. 

The Shapiro Court agreed, similarly noting that while “[r]are today, threejudge district courts were more common in the decades before 1976.” Shapiro, 193 

L. Ed. 2d at 282. The Shapiro Court further explained that considerations of judicial 

economy raised in that earlier context no longer apply because “[i]n 1976, Congress 

substantially curtailed the circumstances under which a three-judge court is 

required.” Id. at 283. Thus, to the extent the FEC relies upon considerations of 

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judicial economy in defending the district court’s decision below, Shapiro has fatally 

undercut its arguments.

Conclusion

For the foregoing reasons and those stated in the Plaintiff-Appellant’s prior 

briefing and argument, the judgment of the district court should be reversed. The 

merits of the Independence Institute’s constitutional claims should be heard by a 

three-judge district court pursuant to 52 U.S.C. § 30110 note and Shapiro. 

Dated: January 6, 2016

Respectfully submitted,

s/ Allen Dickerson 

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

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

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff-Appellant

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Addendum

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPUBLICAN PARTY OF LOUISIANA,

et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION,

 

Defendant. 

Case No. 15-cv-01241 (CRC) 

MEMORANDUM OPINION

The Federal Election Campaign Act (“FECA”) establishes dollar limits on contributions that 

individuals and certain entities may make to a single federal candidate or political-party committee 

in a given election cycle. In 1998, the Senate Committee on Governmental Affairs concluded that

certain corporations, labor unions, and wealthy individuals had sought to circumvent FECA’s limits

on contributions to political parties through so-called “soft money” contributions. S. Rep. No. 105-

167 (1998). In campaign-finance parlance, “soft money” refers to federally unregulated money

contributed to parties for activities intended to influence state or local elections. To prevent the use 

of soft money to fund election activity that was ostensibly non-federal but in fact benefited federal 

candidates, Congress, in the Bipartisan Campaign Reform Act of 2002 (“BCRA”), banned nationaland state-party committees from using funds raised in excess of the FECA contribution limits to 

engage in activity affecting federal elections. This “federal election activity” includes such conduct 

as voter registration, voter identification, and get-out-the-vote activities connected to elections with 

federal candidates on the ballot, as well as public communications that refer to clearly identified 

federal candidates.

Soon after Congress imposed the soft-money ban, the Supreme Court rejected a facial 

challenge to its constitutionality in McConnell v. FEC, 540 U.S. 93 (2003). The ban withstood an 

Case 1:15-cv-01241-CRC Document 24 Filed 11/25/15 Page 1 of 19

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as-applied challenge seven years later in RNC v. FEC (“RNC I”), 698 F. Supp. 2d 150 (D.D.C.

2010), aff’d, 561 U.S. 1040 (2010). And just last year, the Chief Justice stressed—in his opinion 

overturning limits on the aggregate value of contributions an individual can make to multiple 

candidates (or parties) in one election cycle—that “[o]ur holding about the constitutionality of the 

aggregate limits clearly does not overrule McConnell’s holding about ‘soft money.’” McCutcheon 

v. FEC, 134 S. Ct. 1434, 1451 n.6 (2014).

Undaunted, Plaintiffs in this case—state and local committees of the Republican Party in 

Louisiana—seek yet another bite at the apple. They have sued the Federal Election Commission 

(“FEC”), alleging that the soft-money ban and two related BCRA provisions unduly infringe on 

their First Amendment free-speech rights. The laws do so, Plaintiffs contend, by preventing them 

from funding so-called “independent” federal election activities—activities not coordinated with a 

candidate or campaign—from state-party-committee accounts that are not subject to federal 

contribution limitations and administrative requirements. The ultimate merits of this latest 

challenge are not yet before the Court. At this stage, the Court must decide only whether Plaintiffs 

are entitled to have their claims heard by a three-judge district court, whose final rulings on the 

merits could be appealed directly to the Supreme Court, under BCRA’s special judicial-review 

mechanism. See BCRA § 403.

Close observers of the campaign-finance arena may be experiencing twinges of déjà vu. 

Last year, these same plaintiffs, represented by the same counsel, were among those who mounted 

similar challenges to the soft-money ban before this Court. See Rufer v. FEC, 64 F. Supp. 3d 195 

(D.D.C. 2014); RNC v. FEC (“RNC II”), No. 14-cv-00853 (D.D.C. Aug. 19, 2014). This Court 

declined to convene a three-judge court to hear those challenges. While the Court found that the 

plaintiffs had presented “substantial, non-frivolous” constitutional claims, it concluded they lacked 

standing to bring those claims before a three-judge court because their central alleged injury—being 

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prevented from accepting unlimited contributions to fund “independent” election activity—could 

have been redressed only by invalidating the longstanding base party contribution limits in FECA. 

Rufer, 64 F. Supp. 3d at 198. BCRA three-judge courts, however, are empowered to decide only 

constitutional challenges to provisions of BCRA itself. Id. Having been deprived of a direct ticket 

to the Supreme Court, the Rufer and RNC II plaintiffs abandoned their appeal of the Court’s ruling, 

and at least some of them regrouped to fight another day. 

That day has now come, and the Court is again presented with the same two questions: Are 

Plaintiffs’ constitutional claims substantial, and are their alleged injuries redressable by a BCRA 

three-judge court? The Court this time answers yes to both. As in Rufer and RNC II, Plaintiffs 

have presented substantial constitutional claims. While the Supreme Court has twice upheld 

BCRA’s soft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon

created widespread uncertainty over the central question presented here: whether truly independent 

campaign expenditures by political parties—if there can be such a thing—pose the type of 

corruption risk that the Supreme Court has held is necessary to justify limiting federal election 

spending. Given this uncertainty, Plaintiffs’ claims cannot be fairly characterized as “frivolous,” 

“obviously without merit,” or “so foreclosed by” Supreme Court precedent that there is “no room 

for the inference that the question sought to be raised can be the subject of controversy.” Feinberg 

v. FDIC, 522 F.2d 1335, 1339 (D.C. Cir. 1975) (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)).

But unlike in the prior cases, the Court concludes that Plaintiffs here have standing to 

present their claims to a three-judge court. The core injury alleged by the Rufer and RNC II

plaintiffs could not have been redressed without striking down FECA’s base limits, which a BCRA 

three-judge court may not do. Assiduously avoiding a frontal assault on the base limits, Plaintiffs 

here re-characterize their injury as simply being prevented from spending funds from state-partycommittee accounts on federal election activity, without regard to the FECA base limits. Make no 

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mistake, a ruling for Plaintiffs on the merits would render largely meaningless FECA’s limits on 

contributions to state- and local-party committees: Depending on the contribution limits in the 

relevant state, if any, an individual or corporation would be able to contribute sums in excess of the 

existing FECA-imposed federal limits to a state party, and the party could then deposit those funds 

in a state account and use them to engage in “independent” federal election activity on a scale that 

would be impossible under existing law. Plaintiffs have nevertheless established standing because, 

technically speaking, the relief they seek can be achieved by invalidating BCRA’s soft-money ban 

while leaving FECA’s base limits in place. Clever indeed, but not too clever by half as the FEC 

suggests. The Court will, accordingly, grant Plaintiffs’ motion to convene a three-judge district 

court to hear their claims as required by BCRA § 403.

I. Background 

A. Statutory Scheme

As the Court has previously explained, see Rufer, 64 F. Supp. 3d at 199–200, Congress 

amended FECA in 1976 to establish monetary ceilings on contributions to political-party 

committees intended to influence federal elections. Federal Election Campaign Act Amendments 

of 1976, Pub. L. No. 94–283, § 112, 90 Stat. 487 (codified at 52 U.S.C. § 30116). These 

amendments prohibited contributions to “political committees established and maintained by a 

national political party . . . which, in the aggregate, exceed $20,000; or . . . to any other political 

committee . . . which, in the aggregate, exceed $5,000.” Id. In ensuing campaign cycles, certain 

corporations, labor unions, and wealthy individuals sought to bypass these contribution limits by 

making so-called “soft money” contributions to political parties—contributions ostensibly 

earmarked for state and local elections or “issue advertising” and thus not subject to the same legal

requirements as contributions explicitly intended to influence federal elections. McConnell, 540 

U.S. at 122–26. In 2002, Congress responded to this circumvention of FECA’s contribution limits 

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by enacting BCRA, a sweeping series of amendments to FECA which, among other things, limited 

soft-money contributions to political parties. Id. 

Rather than specifically defining and prohibiting soft-money contributions, BCRA imposed 

a general ban on certain entities involved in federal elections from collecting funds in excess of 

FECA’s base contribution ceilings. BCRA § 101, codified at 52 U.S.C § 30125, added a new 

section to FECA (section 323) prohibiting national-, state-, and local-party committees from 

soliciting, receiving, spending, or disbursing money not raised in compliance with the base 

contribution limits. BCRA also amended the overall base limits by capping individual 

contributions to state-party committees at $10,000, and by increasing FECA’s contribution limit for 

national parties to $25,000 and pegging that limit to inflation. BCRA §§ 102(3), 307(a)(2). 

FECA contains a special judicial-review mechanism that requires a district court to “certify 

all questions of constitutionality of the Act to the United States court of appeals for the circuit 

involved, which shall hear the matter sitting en banc” if the challenge is brought by “the national 

committee of any political party, or any individual eligible to vote in any election for the office of 

President.” 52 U.S.C. § 30110. Rather than incorporate FECA’s preexisting judicial-review 

procedure into BCRA, Congress required that constitutional challenges to any “provision of” or 

“amendment made by” BCRA be heard by a three-judge district court. See BCRA § 403(a)(3). To 

expedite Supreme Court review of the constitutionality of the new statute, Congress provided that 

decisions of the three-judge court may be appealed directly to the Supreme Court. Id.

B. Plaintiffs’ Challenge

Plaintiffs in this action are the Republican Party of Louisiana (“state-party plaintiff”) and the 

Jefferson Parish and Orleans Parish Republican Party Executive Committees (“local-party 

plaintiffs”). They seek to use nonfederal funds to engage in a wide variety of non-coordinated 

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“federal election activity,”1 including conducting mass mailings exhorting voter registration and 

voting; performing voter identification; undertaking other generic campaign activity; and paying 

some portion of the salaries of employees who spend a significant amount of their time on federal 

election activity. Verified Compl. ¶¶ 84–106. Plaintiffs ask the Court to invalidate three BCRA 

provisions that they contend stand in the way. 

(1) the Ban, BCRA § 101(a), which prohibits “state, district, [and] local committees” 

from using nonfederal funds for federal election activity and is codified at 52 U.S.C. 

30125(b)(1); 

(2) the Fundraising Requirement, BCRA § 101(a), which requires state and local 

committees to pay “direct costs,” 11 C.F.R. 300.32(a)(3), of fundraising activity for 

funds used for federal election activity and is codified at 52 U.S.C. 30125(c); and

(3) the Reporting Requirement, BCRA § 103(a), which requires monthly reporting by 

“political committees” of federal election activity, including identifying information 

1 Congress has defined “federal election activity” as 

(i) voter registration activity during the period that begins on the date that is 120 

days before the date a regularly scheduled Federal election is held and ends on the 

date of the election;

(ii) voter identification, get-out-the-vote activity, or generic campaign activity 

conducted in connection with an election in which a candidate for Federal office 

appears on the ballot (regardless of whether a candidate for State or local office also 

appears on the ballot);

(iii) a public communication that refers to a clearly identified candidate for Federal 

office (regardless of whether a candidate for State or local office is also mentioned 

or identified) and that promotes or supports a candidate for that office, or attacks or 

opposes a candidate for that office (regardless of whether the communication 

expressly advocates a vote for or against a candidate); or

(iv) services provided during any month by an employee of a State, district, or local 

committee of a political party who spends more than 25 percent of that individual’s 

compensated time during that month on activities in connection with a Federal 

election.

52 U.S.C. § 30101(20)(A).

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on disbursements/receipts for “person[s] aggregating in excess of $200 for any 

calendar year,” 52 U.S.C. 30104(e). 

Id. ¶ 32, 34, 35. They challenge these provisions as unconstitutional under the First Amendment (1) 

as applied to (a) non-individualized, independent communications exhorting registering to vote and 

voting and (b) non-individualized, independent communications by Internet; (2) as applied to (a) 

non-individualized, independent communications and (b) such communications made from a socalled independent-communications-only account (“ICA”); (3) as applied to all independent federal 

election activity; and (4) facially. Verified Compl. ¶ 1. 

While Plaintiffs do not directly challenge the base contribution limits established by FECA, 

the clear effect, if not purpose, of a successful challenge would be to enable circumvention of those 

limits. Indeed, the remedy Plaintiffs seek would effectively eviscerate the limits. After all, if a 

state or local party is free to spend (potentially unlimited) funds from its nonfederal account on 

federal election activity, then what purpose would limits on contributions to federal accounts serve? 

If the provisions of BCRA to which Plaintiffs object are struck down, Plaintiffs will be free to raise 

and spend tens of thousands of dollars more through their nonfederal accounts than they would be 

able to through federal accounts subject to FECA’s limits. In Louisiana, for example, a state party 

may accept up to $100,000 over four years from a single individual, Verified Compl. ¶ 109, well 

above the $10,000 a state party may receive annually from an individual for purposes of spending 

on federal election activity. If an individual were to contribute the maximum amount allowed under 

state law to the Republican Party of Louisiana over a four-year cycle, and Plaintiffs’ BCRA 

challenge is successful, the state party could spend $60,000 more on federal election activity as a 

result of that donor’s contributions than it could as the law stands today. And in a state with no 

contribution limits whatsoever for state parties, striking down the provisions of BCRA that 

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Plaintiffs challenge would allow for unlimited contributions to a state party for the purpose of 

conducting federal election activity.

Plaintiffs request that this Court convene a three-judge court to adjudicate their challenges 

pursuant to BCRA § 403. They have also filed a motion to expedite this action. The FEC seeks 

discovery, to which Plaintiffs have agreed to a limited extent. The Court held a hearing on 

Plaintiffs’ three-judge-court application and the motion to expedite on October 27, 2015.

C. Relevant Case Law 

As the Court observed in Rufer, “this case sits at the confluence of two currents of First 

Amendment jurisprudence concerning federal campaign finance.” 64 F. Supp. 3d at 200. The first 

establishes that Congress may, consistent with the First Amendment, limit contributions to federal 

candidates and their parties in order to curb the risk and appearance of corruption in the legislative 

process. See McCutcheon, 134 S. Ct. at 1451 n.6 (noting that the “base [contribution] limits remain 

the primary means of regulating campaign contributions”); McConnell, 540 U.S. at 154–55 

(affirming the constitutionality of contribution limits to political parties and observing that due to 

“the close relationship between federal officeholders and the national parties, . . . large soft-money 

contributions are likely to create actual or apparent indebtedness on the part of federal 

officeholders, regardless of how those funds are ultimately used”); Buckely v. Valeo, 424 U.S. 1, 96 

(1976) (upholding the constitutionality of FECA’s base contribution limits); see also RNC I, 698 F. 

Supp. 2d at 152 (“Congress may impose some limits on contributions to federal candidates and 

political parties because of the quid pro quo corruption or appearance of quid pro quo corruption 

that can be associated with such contributions.”). The FEC argues that this line of cases squarely 

forecloses Plaintiffs’ challenge to the soft-money ban, which was meant to do precisely that: curb 

the risk and appearance of corruption in the legislative process. 

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The second jurisprudential current establishes that the risk of corruption arising from 

contributions to candidates and parties dissipates when the recipient of the donation is distinct from

a candidate or party. Cases applying this principle hold that the First Amendment forbids Congress 

from limiting contributions to and expenditures by political action committees and other 

“independent” entities whose campaign spending is not coordinated with candidates or parties. See

Citizens United v. FEC, 558 U.S. 310, 357 (2010) (concluding that “independent expenditures . . . 

do not give rise to corruption or the appearance of corruption,” and thus independent-expenditureonly organizations cannot be subject to any contribution limits under the First Amendment); see 

also Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 618 (1996) (holding that 

political parties may make unlimited independent expenditures using contributions subject to 

FECA’s limits); Buckley, 424 U.S. at 47 (“The absence of prearrangement and coordination of an 

expenditure with the candidate or his agent not only undermines the value of the expenditure to the 

candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for 

improper commitments from the candidate.”). Plaintiffs argue that these holdings should apply 

equally to independent spending by party committees, notwithstanding their close relationship to 

candidates. What’s sauce for the PAC geese, they submit, should be sauce for the party ganders.

II. Analysis 

A. Jurisdiction

As noted above, the Court’s role at this stage of the proceedings is to determine how and by 

whom this case will be heard. Plaintiffs have applied for the appointment of a three-judge district 

court to adjudicate the constitutionality of the challenged BCRA provisions. See Pls.’ Appl. for 

Three-Judge Court 1 (citing BCRA § 403(a), (d)(2) (allowing plaintiffs to challenge the 

constitutionality of BCRA provisions before a three-judge district court convened pursuant to 28 

U.S.C. § 2284)). BCRA’s judicial-review provision appears straightforward. It states simply, in 

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mandatory language, that a constitutional challenge to BCRA “shall,” if the plaintiff so chooses, be 

heard by a three-judge court in the United States District Court for the District of Columbia. Not 

just any constitutional challenge needs to be heard by a three-judge court, however. 

To qualify for a three-judge court, a case must present a “‘substantial claim’ and ‘justiciable 

controversy.’” Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C.2011) (quoting Feinberg, 522 

F.2d at 1338).2 Plaintiffs’ claims should not proceed to a three-judge court if they are “‘obviously 

without merit,’ or if their ‘unsoundness so clearly results from the previous decisions of [the 

Supreme Court] as to foreclose the subject and leave no room for the inference that the question 

sought to be raised can be the subject of controversy.’” Feinberg, 522 F.2d at 1338 (quoting Ex 

parte Poresky, 290 U.S. at 32). Similarly, Plaintiffs’ claims should not be heard by a three-judge 

court if Plaintiffs lack standing. See Nixon v. Richey, 513 F.2d 430, 446 n.129 (D.C. Cir. 1975) 

(“In Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 (1974), the [Supreme] Court 

noted that a single judge could dismiss a constitutional challenge for lack of standing without 

asking for a three-judge court . . . .”). With these standards in mind, the Court turns first to the 

question of whether Plaintiffs have standing and whether a three-judge court in particular could 

redress their alleged harm. 

2 It bears mention that the Supreme Court may soon clarify the standard for “determin[ing] 

that a complaint covered by 28 U.S.C. § 2284 is insubstantial[] and that three judges are therefore 

not required.” See 14-990 Shapiro v. McManus, U.S. Supreme Court (June 8, 2015), 

http://www.supremecourt.gov/qp/14-00990qp.pdf. Should the Supreme Court’s forthcoming ruling

in Shapiro v. McManus alter this Court’s analysis of whether Plaintiffs’ claims are constitutionally 

insubstantial, the three-judge court convened to hear Plaintiffs’ challenge will retain and may 

exercise the authority to dissolve itself—an order that would be appealable not directly to the 

Supreme Court, but instead to the U.S. Court of Appeals for the D.C. Circuit. See Gonzalez v. 

Automatic Emp. Credit Union, 419 U.S. 90, 99–101 (1974). 

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1. Standing

This Court may properly dismiss Plaintiffs’ claims without convening a three-judge court if 

Plaintiffs lack standing to bring those claims. To have standing, “the plaintiff[s] must have suffered 

an ‘injury in fact’—an invasion of a legally protected interest”—which is concrete and 

particularized and is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 

In addition, “there must be a causal connection between the injury and the conduct complained of.” 

Id. (quoting Simon v. E. Ky. Rights Org., 426 U.S. 26, 41–42 (1976)). Finally, “it must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. 

(quoting Simon, 426 U.S. at 38, 43, 96).

a. Injury 

The Court’s analysis begins with Plaintiffs’ alleged injury. Although the allegations in 

Plaintiffs’ verified complaint are far from crystal clear on this point, Plaintiffs appear to claim that 

their injury derives from being forced to spend only federal funds, contained in a federal account

and subject to federal regulations, on federal election activity. Verified Compl. ¶ 75. The stateparty plaintiff explains that “its ability to do desired federal election activity is burdened by the 

inability to allocate costs to nonfederal funds as allowed before BCRA, and [that] it cannot do some 

desired federal election activity due to this inability.” Id. The local-party plaintiffs claim that they 

are injured by “the complexity and burden of compliance, including creating a federal account to 

fund [federal election] activity,” which restricts—or at least encumbers—their ability to engage in 

election-related speech. Id. ¶ 76. 

Thus, for the state-party plaintiff to continue to conduct its desired federal election activity, 

it is forced to maintain a federal account and to comply with the regulations and reporting 

requirements that accompany such an account. Similarly, for the local-party plaintiffs to conduct 

their desired federal election activity—at least the amount of activity they seek to fund—they would 

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be forced to open a federal account and to comply with the accompanying regulations and reporting 

requirements. Because BCRA forces Plaintiffs to channel funding for most federal election activity

through federal accounts, which they allege to be a relatively burdensome alternative to funding 

such activity through existing nonfederal accounts, Plaintiffs have identified an injury—a restriction 

on their speech—that suffices to establish constitutional standing. See Citizens United, 558 U.S. at 

337–38 (observing, for example, that “the option to form [federal political action committees] does 

not alleviate the First Amendment problems with [a ban on corporate electoral advocacy]” because

“PACs are burdensome alternatives; they are expensive to administer and subject to extensive 

regulations”). 

The FEC nonetheless contends that Plaintiffs’ injury is partly self-inflicted because they 

have the option of using a special type of nonfederal funds, known as “Levin funds,” to conduct 

some of their intended federal election activity. Defs.’ Opp’n 7. The Supreme Court described 

“Levin funds” in McConnell: 

A refinement on the pre-BCRA regime that permitted parties to pay for certain 

activities with a mix of federal and nonfederal funds, the Levin Amendment allows 

state and local party committees to pay for certain types of federal election activity 

with an allocated ratio of hard money and “Levin funds”—that is, funds raised within 

an annual limit of $10,000 per person. 2 U.S.C. § 441i(b)(2). Except for the $10,000 

cap and certain related restrictions to prevent circumvention of that limit, § 323(b)(2) 

leaves regulation of such contributions to the States.

540 U.S. 93, 162–63 (2003). In addition, “corporations and unions that are restricted from 

contributing under federal law can provide Levin funds.” Defs.’ Opp’n 7. As the FEC 

acknowledges, however, Plaintiffs could use Levin funds to conduct only “some of their desired 

activities,” because those “funds may only be used to fund certain activities falling within the first 

two categories of federal election activity: (1) voter registration activity in the run up to a federal 

election, and (2) voter identification, get-out-the-vote, and certain generic campaign activity.” Id. at 

7–8, 18–19 (citing 52 U.S.C. § 30125(b)(2)(A)). Plaintiffs seek to engage in additional federal 

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election activity, including paying a portion of the salaries of employees who spend more than 25% 

of their compensated time in a given month on federal election activities, Verified Compl. ¶ 106, 

payments which the FEC appears to agree Plaintiffs could not make using Levin funds, Defs.’ 

Opp’n 8 (citing 52 U.S.C. § 30125(b)(2)(B)(i)).

The FEC’s argument also misses a broader point: At least part of Plaintiffs’ alleged injury

stems not from an inability to raise enough federal funds to conduct their desired level of federal 

election activity, but from being forced—in order to conduct that amount of activity—to maintain 

or establish federal accounts and to comply with a host of federal regulations governing the use of 

federal funds. Plaintiffs claim they do not use Levin funds for the same reason they seek to avoid 

conducting federal election activity through funds raised and spent from federal accounts: the 

accompanying “complexity, burdens, and restrictions.” Verified Compl. 5 n.4; see also Pls.’ Reply 

21 n.22 (“Levin funds require extensive recordkeeping and are limited in how they may be raised, 

how much may be raised, and how they may be used—they cannot be used, inter alia, for the sort of 

broadcast activities Plaintiffs wish to do and for any [federal election activity] identifying a federal 

candidate.”). The theoretical availability of Levin funds, therefore, does not ameliorate this aspect 

of Plaintiffs’ claimed injury.

b. Causation

Plaintiffs have also established causation. Although the FEC contended at oral argument 

that FECA, not BCRA, imposes the regulations and reporting requirements of which Plaintiffs 

complain, it is BCRA that requires state and local parties that wish to conduct federal election 

activity to do so only with “funds subject to the limitations, prohibitions, and reporting 

requirements of th[e] Act.” 52 U.S.C. § 30125. BCRA is the reason why Plaintiffs may not expend 

their nonfederal funds, in nonfederal accounts and not subject to federal regulation, on their desired 

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federal election activity. Thus, the challenged provisions of BCRA here are the cause of Plaintiffs’ 

purported injury. 

c. Redressability 

The FEC does not contest that Plaintiffs’ alleged injuries could be redressed by a favorable 

decision in an appropriate judicial forum. Rather, as in Rufer and RNC II, the FEC contends that a 

three-judge court could not redress Plaintiffs’ alleged injuries. The Court agrees that a three-judge 

court would be unable to provide Plaintiffs the relief they seek if what they sought was to invalidate 

the base contribution limits put in place by FECA. See Rufer, 64 F. Supp. 3d at 204 (“A threejudge BCRA court ‘has no power to adjudicate a challenge to the [base] FECA limits.’” (quoting 

McConnell, 540 U.S. at 229)). But in contrast to the challenge brought in Rufer and RNC II, 

Plaintiffs here do not seek, directly at least, the invalidation of FECA’s base contribution limits. 

Plaintiffs instead challenge the provisions of BCRA that stand in the way of their using nonfederal 

funds, contained in nonfederal accounts, to fund significant amounts of federal election activity. 

They want to be able to spend freely from those nonfederal funds on that federal election activity. 

And a three-judge BCRA court could indeed allow Plaintiffs to do just that without having to 

invalidate FECA’s base contribution limits. 

Issuing a ruling that has the effect of rendering FECA’s base contribution limits meaningless

is not the same thing as issuing one that strikes down those limits. While a three-judge court is 

powerless to do the latter, nothing prevents it from doing the former. Therefore, there is no 

redressability bar to Plaintiffs’ attempt to have their case heard before a three-judge court convened 

pursuant to BCRA’s judicial-review provision.

2. Substantiality

Plaintiffs’ constitutional claims need not proceed to a three-judge court if they are 

insubstantial. A constitutional claim is insubstantial if it is obviously devoid of merit or if 

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precedent unquestionably forecloses the subject of the claim and leaves no room for suggesting that 

the question raised can be the subject of controversy. Feinberg, 522 F.2d at 1338; see also Goosby 

v. Osser, 409 U.S. 512, 518 (1973) (“‘Constitutional insubstantiality’ for this purpose has been 

equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. at 33, ‘wholly 

insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 

(1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 (1933).”). While this 

standard may sound simple to apply, the “determination of substantiality is rarely mechanical,” and 

“[i]n many cases . . . , there may be considerable room for argument over whether particular 

constitutional claims are so frivolous, or so foreclosed by prior decisions, as to be too insubstantial 

for jurisdiction.” Feinberg, 522 F.2d at 1339. This is indeed such a case. 

As noted previously, both McConnell and RNC I upheld the constitutionality of the same 

provisions of BCRA that Plaintiffs challenge here, which are now codified at 52 U.S.C. § 30125. 

McConnell upheld these provisions against a facial challenge, 540 U.S. at 161–73, and RNC I 

upheld them against an as-applied challenge, 698 F. Supp. 2d at 160–62. Plaintiffs contend that

their argument—that the First Amendment allows for unlimited state-party spending on 

independent federal election activity—is distinguishable from the argument advanced by the 

plaintiffs in RNC I—that state-party spending cannot be limited as to election activity that is not 

sufficiently federal in nature. The state-party plaintiffs in RNC I, however, sought to conduct

activity very similar to that which plaintiffs wish to conduct here. Compare 698 F. Supp. 2d at 156 

(noting that plaintiffs wished to “engage in voter registration, voter identification, get-out-the-vote 

activities, and ‘generic campaign activity’ . . . in connection with elections where both state and 

federal candidates appear on the ballot”), with Verified Compl. ¶¶ 74–111. Given the similarities, 

the FEC urges that Plaintiffs’ case is plainly foreclosed by the two prior cases, rendering their 

claims constitutionally insubstantial. Defs.’ Opp’n 32. The Court is inclined to agree with the FEC 

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that McConnell and RNC I appear to control any district court’s resolution of this case. 

Nevertheless, given subsequent statements by the Supreme Court and the relatively low bar that 

Plaintiffs must clear to demonstrate that their claims are substantial, the Court finds, as it did in 

Rufer and RNC II, that Plaintiffs have met their burden.

The crucial development since the Supreme Court upheld the soft-money ban in RNC I is its 

decision in McCutcheon, in particular its discussion of the type of corruption risk that is necessary 

to justify limiting political contributions. A plurality of the Court held in McCutcheon “that 

government regulation may not target the general gratitude a candidate may feel toward those who 

support him or his allies, or the political access such support may afford. ‘Ingratiation and 

access . . . are not corruption.’” McCutcheon, 134 S. Ct. at 1441 (plurality opinion) (ellipses in 

original) (quoting Citizens United, 558 U.S. at 360). Rather, “[a]ny regulation must instead target 

what we have called ‘quid pro quo’ corruption or its appearance.” Id. The Court explained: 

Of course a candidate would be pleased with a donor who contributed not only 

to the candidate himself, but also to other candidates from the same party, to party 

committees, and to PACs supporting the party. But there is a clear, administrable line 

between money beyond the base limits funneled in an identifiable way to a 

candidate—for which the candidate feels obligated—and money within the base limits 

given widely to a candidate’s party—for which the candidate, like all other members 

of the party, feels grateful.

When donors furnish widely distributed support within all applicable base 

limits, all members of the party or supporters of the cause may benefit, and the leaders 

of the party or cause may feel particular gratitude. That gratitude stems from the basic 

nature of the party system, in which party members join together to further common 

political beliefs, and citizens can choose to support a party because they share some, 

most, or all of those beliefs. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 

214–216 (1986). To recast such shared interest, standing alone, as an opportunity for 

quid pro quo corruption would dramatically expand government regulation of the 

political process.

Id. at 1461. 

To be sure, the Chief Justice’s opinion in McCutcheon was careful “not [to] address the base 

limits” so as not to “silently overrule[] the Court’s holding in McConnell,” and to emphasize that its 

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“holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s 

holding about ‘soft money.’” Id. at 1451 n.6 (plurality opinion). Yet one cannot help but question

how the Court’s definition of corruption in McCutcheon squares with its holding on the soft-money 

ban in McConnell. 

Indeed, Justice Breyer voiced this uncertainty in his dissent for four Justices, arguing that 

the Court’s definition of ‘corruption’ in McCutcheon, which was central to its holding in that case, 

is “virtually impossible to reconcile with [the] Court’s decision in McConnell, upholding the 

Bipartisan Campaign Reform Act.” Id. at 1466 (Breyer, J., dissenting). The dissent further

explained that McCutcheon may have changed the law in a way that the Supreme Court’s earlier 

decision in Citizens United, which predated the Court’s affirmance of the soft-money ban in RNC I, 

did not:

The plurality’s use of Citizens United’s narrow definition of corruption here, however, 

is a different matter. That use does not come accompanied with a limiting context 

(independent expenditures by corporations and unions) or limiting language [as it did 

in Citizens United]. It applies to the whole of campaign finance regulation. And, as 

I have pointed out, it is flatly inconsistent with the broader definition of corruption 

upon which McConnell’s holding depends.

Id.; see also id. (“Does the Court intend today to overrule McConnell? Or does it intend to leave 

McConnell and BCRA in place? The plurality says the latter. . . . But how does the plurality explain 

its rejection of the broader definition of corruption, upon which McConnell’s holding depends?”).

The McCutcheon dissenters are not alone in questioning whether the Court’s decision 

seriously undermines McConnell’s soft-money holding. Election-law scholars and practitioners

have also opined that the BCRA provisions challenged here may find themselves on shaky 

constitutional ground after McCutcheon. See, e.g., Richard L. Hasen, Op-Ed: The McCainFeingold Act May Doom Itself, Nat’l L.J. (Aug. 17, 2015), http://www.nationallawjournal.com/

id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself?slreturn=20150928113613 

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(noting, following McCutcheon, the “good chance the [Supreme Court] . . . will strike down what 

remains of McCain-Feingold”); Kimberly Robinson, After ‘McCutcheon,’ Soft Money Next on 

Chopping Block?, Bloomberg BNA (Apr. 22, 2014), http://www.bna.com/mccutcheon-soft-moneyn17179889763/ (“[A]lthough it is ‘technically true’ that McCutcheon didn’t invalidate restrictions 

on soft money, the decision ‘makes it more likely that the soft money ban will be struck down in a 

future case.’” (quoting Professor Daniel Tokaji)); Did McCutcheon Save Democracy Or Destroy 

It?, Politico Magazine (Apr. 2, 2014), http://www.politico.com/magazine/story/2014/04/ 

mccutcheon-save-democracy-or-destroy-it-105327 (“McCutcheon borrows the narrow reading of 

the government’s interest in Citizens United and applies it to enhance the position of political 

parties in the campaign finance regulatory scheme, contrary to the direction set by McConnell. . . . 

[T]he doctrine developed in Citizens United for ‘independent expenditures’ on behalf of candidates 

has moved the constitutional law as it affects ‘contributions’ to political parties. The reach of 

Citizens United has been extended, and that of McConnell cut back.” (quoting former White House 

Counsel Robert Bauer)). The zeitgeist in the campaign-finance community thus reflects significant 

uncertainty as to the state of Section 13205’s constitutionality and the continued vitality and scope 

of McConnell’s soft-money holding. In light of this uncertainty, it would be somewhat odd to view 

this new constitutional challenge to BCRA’s soft-money provisions as being frivolous, clearly 

foreclosed, or obviously devoid of merit. 

In sum, Plaintiffs’ claims raise questions that, while seemingly settled following McConnell

and RNC I, may no longer be so settled. And intervening changes in the law or the legal landscape

are properly considered as part of the Court’s substantiality inquiry. See Feinberg, 522 F.2d at 

1339. Given developments since the Supreme Court again upheld the soft-money ban in RNC I, 

which it decided after Citizens United but before McCutcheon, Plaintiffs’ claim—which presents an

argument for reconsidering certain holdings in McConnell in light of McCutcheon—does not 

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appear to be frivolous or to involve a question that has been so settled by precedent as to be beyond 

controversy. As a result, the Court finds Plaintiffs’ claims to be constitutionally substantial for 

purposes of convening a three-judge district court.

III. Conclusion 

Because the Court finds that Plaintiffs have advanced substantial constitutional claims and 

have standing to pursue those claims, it will grant Plaintiffs’ motion to convene a three-judge court, 

request that the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit convene a three-judge 

court, and adopt the discovery and summary-judgment briefing schedule that the parties propose in 

their Meet and Confer Statement [Dkt. No. 20]. It will therefore also deny Plaintiffs’ motion to 

expedite as moot. An Order accompanies this Memorandum Opinion.

 

CHRISTOPHER R. COOPER

United States District Judge

Date: November 25, 2015 

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Certificate of Compliance

I hereby certify that this brief complies with the per curiam order from this 

Court in Independence Institute v. FEC, No. 14-5249 (Doc. 1588062) (D.C. Cir. 

Dec. 11, 2015), because it is less than fifteen pages, excluding the parts of the brief 

exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because it has been prepared in a proportionallyspaced typeface using Microsoft Word 2013 in Times New Roman 14-point font.

Dated: January 6, 2016 s/ Allen Dickerson

Allen Dickerson

Certificate of Service

I hereby certify that on January 6, 2016, I electronically filed the foregoing 

using the court’s CM/ECF system which will automatically generate and send by 

email a Notice of Docket Activity to all registered attorneys currently participating 

in this case, constituting service on those attorneys. A copy of the foregoing will be 

mailed to Charles Fried. The requisite number of paper copies of the foregoing will 

be filed with the Clerk.

s/ Allen Dickerson

Allen Dickerson

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