1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LAURA HOLMES )

)

and )

)

PAUL JOST, )

)

Plaintiffs, )

) No. 1:14-cv-01243-RMC

v. )

)

FEDERAL ELECTION )

COMMISSION, )

)

Defendant. )

MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs Laura Holmes and Paul Jost, by and through undersigned counsel, 

hereby move this Court for a preliminary injunction prohibiting the Federal 

Election Commission (“FEC”) from enforcing the bifurcated individual-tocandidate contribution limit codified at 2 U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6).

As set forth in the accompanying Memorandum of Law in support of this 

Motion, Plaintiffs are likely to succeed on the merits of their constitutional claims. 

Plaintiffs will be irreparably harmed if the FEC enforces the bifurcated 

Case 1:14-cv-01243-RMC Document 6 Filed 08/20/14 Page 1 of 2
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contribution limit against them, as that limit places an unconstitutional burden on 

their First and Fifth Amendment rights, and as the 2014 general election is fast 

approaching. Further, the public interest and the balance of equities favor the 

entrance of an injunction. Therefore, Plaintiffs satisfy the requirements for entry of 

a preliminary injunction.

Pursuant to LCvR 7(m) of this Court, on August 18, 2014, undersigned 

counsel conferred with counsel for the FEC via telephone. The FEC has indicated 

that it will oppose this motion.

Respectfully submitted this 20th day of August, 2014.

/s/ Allen Dickerson

Allen Dickerson, DC Bar No. 1003781

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, VA 22314

Phone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs

Case 1:14-cv-01243-RMC Document 6 Filed 08/20/14 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LAURA HOLMES )

)

and )

)

PAUL JOST, )

)

Plaintiffs, )

) No. 1:14-cv-01243-RMC

v. )

)

FEDERAL ELECTION )

COMMISSION, )

)

Defendant. )

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

Allen Dickerson, DC Bar No. 1003781

Center for Competitive Politics

124 West Street South, Suite 201

Alexandria, Virginia 22314

Phone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 1 of 39
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................ iii

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

FACTS..........................................................................................................................2

ARGUMENT .................................................................................................................5

I. Standard for Preliminary Relief.......................................................................5

II. There is a substantial likelihood that Plaintiffs will succeed on the merits of 

their claims.......................................................................................................6

A. Courts must carefully scrutinize contribution restrictions to determine 

whether they are “closely drawn” to a sufficiently important 

governmental interest ............................................................................7

B. The governmental interest is limited to preventing actual or apparent 

quid pro quo corruption.......................................................................11

C. 2 U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6) are unconstitutional 

because they violate Plaintiffs’ First Amendment freedom of political 

association and are not closely drawn to the prevention of quid pro 

quo corruption .....................................................................................13

i. Congress has determined that contributions of $5,200 are 

noncorrupting............................................................................13

ii. The bifurcated limit cannot survive constitutional scrutiny, 

because it is not closely drawn to a sufficiently important 

governmental interest................................................................14

D. The asymmetrical contribution limit 2 U.S.C. §§ 441a(a)(1)(A) and 

441a(a)(6) impose are unconstitutional because they deny Plaintiffs 

equal protection of the laws ................................................................17

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i. The Supreme Court has largely reviewed constitutional 

questions involving contribution limits from the perspective of 

established political entities such as candidates or PACs, not 

contributors ...............................................................................18

ii. The Supreme Court has not reviewed asymmetric contribution 

limits under the Fifth Amendment, but has suggested that such 

review is appropriate.................................................................19

iii. Contribution limits which favor one category of candidates over 

another implication the constitutional guarantee of equal 

protection ..................................................................................23

III. Absent the requested preliminary relief, Plaintiffs will suffer irreparable 

harm ...............................................................................................................28

IV. The requested injunction will further the public’s interest in protecting First 

Amendment liberties and guaranteeing equal protection of the laws ...........30

CONCLUSION.............................................................................................................31

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TABLE OF AUTHORITIES

CASES

ACLU v. Reno,

929 F. Supp. 824 (D. Pa. 1996)................................................................31

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

131. S. Ct. 2806 (2011)......................................................................21, 22

Brady Campaign to Prevent Gun Violence v. Salazar,

612 F. Supp. 2d 1 (D.D.C. 2009) ...............................................................5

Buckley v. Valeo,

424 U.S. 1 (1976)..............................................................................passim

Carey v. FEC,

791 F. Supp. 2d 121 (D.D.C. 2011) ...........................................................6

Chaplaincy of Full Gospel Churches v. England

454 F.3d 290 (D.C. Cir. 2006) ..................................................................5

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981).................................................................................18

Davis v. FEC,

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

Emineth v. Jaeger,

901 F. Supp. 2d 1138 (D.N.D. 2012).......................................................30

Elrod v. Burns,

427 U.S. 347 (1976)...........................................................................28, 29

Eu v. San Francisco County Democratic Cent. Comm.,

489 U.S. 214 (1989).................................................................................28

FEC v. Beaumont,

539 U.S. 146 (2003).................................................................................18

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 4 of 39
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FEC v. Nat’l Right to Work Comm.,

459 U.S. 197 (1982) ..................................................................................8

Gordon v. Holder,

632 F.3d 722 (D.C. Cir. 2013) ...................................................................5

Gordon v. Holder,

721 F.3d 638 (D.C. Cir. 2013) ...........................................................30, 31

Green v. Kennedy,

309 F. Supp. 1127 (D.D.C. 1970) ............................................................30

K.H. Outdoor, LLC v. City of Trussville

458 F.3d 1261 (11th Cir. 2006)................................................................31

McConnell v. FEC,

540 U.S. 93 (2003)...............................................................................8, 20

McCutcheon v. FEC,

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

Mills v. District of Columbia,

571 F.3d 1304 (D.D.C. 2009)...................................................................29

New York City Transit Auth. v. Beazer,

440 U.S. 568 (1979).................................................................................27

Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000)..........................................................................passim

O’Donnell Constr. Co. v. Dist. of Columbia,

963 F.2d 420 (D.C. Cir. 1992) .................................................................29

Randall v. Sorrell

548 U.S. 230 (2006).....................................................................10, 11, 18

Riddle v. Hickenlooper,

742 F.3d 922 (10th Cir. 2014)...........................................................passim

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 5 of 39
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Smith v. Henderson,

944 F. Supp. 2d 89 (D.D.C. 2013) ...........................................................28

United States v. Windsor,

133 S. Ct. 2675 (2013) .............................................................................17

STATUTES, RULES & CONSTITUTIONS

11 C.F.R. § 100.2 ...............................................................................................2

11 C.F.R. § 110.1(b)(2)......................................................................................3

11 C.F.R. § 110.1(b)(2)(ii).................................................................................3

11 C.F.R. § 110.1(b)(3)(i)................................................................................26

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

2 U.S.C. § 431(1)(A)..........................................................................................2

2 U.S.C. § 441a(a)(1)(A)...........................................................................passim

2 U.S.C. § 441a(a)(6)................................................................................passim

2 U.S.C. § 441a(c)............................................................................................19

COLO. REV. STAT. § 1-45-103.7(4) ..................................................................23

OTHER AUTHORITIES

147 CONG. REC. S. 2542 (Statement of Sen. Dodd) ........................................21

Andrew Prokop, “Is the Tea Party primary surge a huge myth?”, VOX.COM

(Aug. 13, 2014),

http://www.vox.com/2014/6/25/5837696/is-the-tea-party-primary-surgea-huge-myth..............................................................................................27

Congressional Candidates and Committees, FEDERAL ELECTION COMMISSION

(June 2014),

http://www.fec.gov/pdf/candgui.pdf....................................................3, 26

Details for Committee ID: C00503110, Itemized Individual Contributions–

SCOTT PETERS FOR CONGRESS, FEC Campaign Finance Disclosure 

Portal,

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 6 of 39
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http://www.fec.gov/fecviewer/CandCmteTransaction.do (visited Aug. 19, 

2014)...........................................................................................................4

Details for Committee ID C00414318, Itemized Individual Contributions–

LOEBSACK FOR CONGRESS, FEC Campaign Finance Disclosure 

Portal,

http://www.fec.gov/fecviewer/CandCmteTransaction.do (visited Aug. 19, 

2014)...........................................................................................................4

FEC Price Index Adjustments for Contribution and Expenditure Limitations 

and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530 (Feb. 

16, 2013).....................................................................................................2

John Sides, “An Expert on Congressional Primaries Weighs in on Cantor’s 

Loss,” WASHINGTON POST (June 12, 2014), 

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/06/12/theexpert-on-congressional-primaries-weighs-in-on-cantors-loss/ ..............27

“Iowa Primary Results”, NEW YORK TIMES (June 4, 2014), 

http://elections.nytimes.com/2014/results/primaries/iow .......................25

Public Disclosure Division, “2014 Congressional Primary Dates and 

Candidate Filing Deadlines for Ballot Access,” FEDERAL ELECTION 

COMMISSION (2014),

http://www.fec.gov/pubrec/fe2014/2014pdates.pdf.................................17

Robert G. Boatright, Ph.D, “Books: Congressional Primaries”, 

http://wordpress.clarku.edu/rboatright/books/congressionalprimaries-2/ ..............................................................................................27

United States Representative in Congress by District, Statewide Direct 

Primary Election–Statement of Vote, CALIFORNIA SECRETARY OF STATE

(June 3, 2014),

http://www.sos.ca.gov/elections/sov/2014-primary/pdf/63

-congress.pdf ............................................................................................26

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INTRODUCTION

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

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

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

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

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

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

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

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

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

The Plaintiffs in this case closely mirror Briana is this example. 

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

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

probe” such questions, Buckley v. Valeo, 424 U.S. 1, 30 (1976) (per curiam),

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

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

state chooses to impose. It is improper for contribution limits to be artificially 

divided in ways that are poorly tailored to the prevention of quid pro quo 

corruption or that provide advantages to certain types of candidates. Such schemes 

violate, respectively, the First and Fifth Amendments.

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 8 of 39
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This is such a case. Congress has stated that an individual may give $5,200 

to a candidate for both the general and primary elections, reasoning that such 

contributions are insufficient to corrupt the receiving candidate. Congress then 

conditioned that noncorrupting contribution on the timing of the gift: at least half 

must be given before the primary election, even if only by a day, and even if the 

entire $5,200 is used for the general election. Conversely, the entire $5,200 may 

not be given after the primary election, even if only by a day, and even though the 

same $5,200 will be used for the same general election. 

Congress’s per-election bifurcation of a noncorrupting contribution violates 

both common sense and the Constitution. It should be enjoined.

FACTS

The Federal Election Campaign Act (“FECA”) limits monetary 

contributions to federal candidates. 2 U.S.C. § 441a(a)(1)(A) (2014). Individuals 

may give $2,600 to a candidate per election, with “election” defined to include 

“general, special, primary, or runoff” contests for federal office. 2 U.S.C. § 

431(1)(A); 11 C.F.R. § 100.2 (defining “election”); FEC Price Index Adjustments 

for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 78 Fed. Reg. 8530, 8532 (Feb. 16, 2013) (indexing contribution limit

imposed by 2 U.S.C. § 441a(a)(1)(A)). Consequently, a separate contribution limit

applies to primary and general election contests. 2 U.S.C. § 441a(a)(6) (“the 

Case 1:14-cv-01243-RMC Document 6-1 Filed 08/20/14 Page 9 of 39
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limitations on contributions to a candidate imposed by paragraphs (1) and (2) of 

this subsection shall apply separately with respect to each election...”). If an 

individual wishes to give to a candidate for both the primary and general elections, 

she may give a total of $5,200.

Defendant Federal Election Commission (“FEC’) thoroughly regulates the 

giving of money for elections. See 11 C.F.R. § 110.1(b)(2) (explaining how to 

determine whether a contribution was earmarked for a specific election). Nonearmarked contributions are presumed to be for the “next election.” 11 C.F.R. § 

110.1(b)(2)(ii). But money earmarked for the primary election and given before 

that election takes place may be used for the general election. Congressional 

Candidates and Committees, FEDERAL ELECTION COMMISSION at 21 (June 2014), 

http://www.fec.gov/pdf/candgui.pdf (“Nevertheless, the campaign of a candidate 

running in the general election may spend unused primary contributions for general 

election expenses”). By contrast, a contribution earmarked for an election that has 

already taken place may only be used to retire outstanding debts from that, prior

election. 11 C.F.R. § 110.1(b)(3)(i)(A). That is, a contributor who gives $5,200 in 

earmarked contributions the day before a primary election may functionally give 

$5,200 for general election purposes. But if she sought to contribute the same 

amount the day after the primary, she would be limited to a single $2,600 

contribution for the general election.

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Plaintiffs Laura Holmes and Paul Jost are a married couple residing in 

Florida. Compl. at ¶ 8. Ms. Holmes and Mr. Jost each wish to financially support a 

candidate in the 2014 general election. Id. Both of their preferred candidates face 

opponents who did not have a significant challenger during their respective 

primary elections. Id. at ¶¶ 20, 23. Ms. Holmes has contributed $2,600 to Carl 

DeMaio, a general election candidate for California’s 52nd Congressional District. 

Id. at ¶ 21. Mr. Jost has contributed $2,600 to Dr. Mariannette Miller-Meeks, a 

general election candidate seeking election in Iowa’s Second Congressional 

District. Id. at ¶ 22. Ms. Holmes and Mr. Jost did not give to either candidate 

during the primary, and now each wishes to give an additional $2,600 to his or her

preferred candidate. Id. at ¶¶ 21, 22. Allowing these contributions would merely 

put Plaintiffs on the same footing as contributors to their preferred candidates’ 

opponents.1

 

1

Incumbent Representatives Scott Peters and David Loebsack—Mr. DeMaios’ and 

Dr. Miller-Meeks’ respective opponents—each received $2,600 general election 

contributions from supporters who also gave $2,600 for the primary. Details for 

Committee ID: C00503110, Itemized Individual Contributions–SCOTT PETERS 

FOR CONGRESS, FEC Campaign Finance Disclosure Portal, 

http://www.fec.gov/fecviewer/CandCmteTransaction.do (visited Aug. 19, 2014); 

Details for Committee ID C00414318, Itemized Individual Contributions–

LOEBSACK FOR CONGRESS, FEC Campaign Finance Disclosure Portal, 

http://www.fec.gov/fecviewer/CandCmteTransaction.do (visited Aug. 19, 2014).

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ARGUMENT

I. Standard for Preliminary Relief

In determining whether a preliminary injunction is appropriate, this Court 

considers four factors: (1) whether there is a substantial likelihood that the moving 

party will succeed on the merits, (2) whether the moving party will suffer 

irreparable injury if the Court does not grant the injunction, (3) whether the 

injunction would substantially injure other interested parties, and (4) whether the

injunction is in the public interest. Brady Campaign to Prevent Gun Violence v. 

Salazar, 612 F. Supp. 2d 1, 11-12 (D.D.C. 2009) (citing Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). See also Gordon v. 

Holder, 632 F.3d 722, 724 (D.C. Cir. 2013) (applying these factors as articulated 

by the Supreme Court in Winter v. Natural Resources Defense Council, 555 U.S. 7 

(2008) (“A plaintiff seeking a preliminary injunction must establish that he is 

likely to succeed on the merits, that he is likely to suffer irreparable harm in the 

absence of preliminary relief, that the balance of equities tips in his favor, and that 

an injunction is in the public interest”)).

This four-factor test is applied on a sliding scale. “If the showing in one area 

is particularly strong, an injunction may issue even if the showings [in other areas] 

are rather weak.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d at 297

(citation omitted).

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II. There is a substantial likelihood that Plaintiffs will succeed on the 

merits of their claims.

When determining whether a preliminary injunction is appropriate, “the 

most critical” factor is the plaintiff’s likelihood of success on the merits. Carey v. 

FEC, 791 F. Supp. 2d 121, 128 (D.D.C. 2011). Thus, we turn first to the merits of 

the two constitutional claims at issue: that the bifurcated contribution limit of 2 

U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6) violates Plaintiffs’ constitutional rights

under the First and Fifth Amendments.

The Supreme Court has long recognized that contribution limits “implicate 

fundamental First Amendment interests,” especially the “right to associate.” 

Buckley v. Valeo, 424 U.S. 1, 23, 25 (1976) (per curiam) (citing NAACP v. Ala. ex 

rel Patterson, 357 U.S. 449, 460-61 (1958)). Consequently, statutes limiting such 

contributions are subject to, at minimum, exacting scrutiny. The bifurcated 

contribution limit created by 2 U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6) fails this 

test, because it is not closely drawn to a sufficiently important government interest. 

Consequently, Plaintiffs are likely to succeed on the merits of their First 

Amendment claim. The bifurcated contribution limit also allows certain political 

contributors to associate for a longer period of time and to a greater extent than 

others. Thus, the limit denies certain contributors—including Plaintiffs—equal 

protection of the laws. Furthermore, there is no link between this asymmetrical and 

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discriminatory outcome and the elimination of political corruption. Plaintiffs are 

therefore also likely to succeed on the merits of their Fifth Amendment claim.

A. Courts must carefully scrutinize contribution restrictions to 

determine whether they are “closely drawn” to a sufficiently 

important governmental interest. 

The Supreme Court’s seminal campaign finance decision, Buckley v. Valeo, 

set the parameters for judicial scrutiny of laws that limit political activity. 424 U.S. 

1. The opinion first distinguished between limits on expenditures and limits on 

contributions, while explicitly noting that both such limits “implicate fundamental 

First Amendment interests.” Id. at 23. Nevertheless, the Court noted, “contribution 

limits impose a lesser restraint on political speech because they ‘permit[ ] the 

symbolic expression of support evidenced by a contribution but do[ ] not in any 

way infringe the contributor’s freedom to discuss candidates and issues.’” 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014) (quoting Buckley, 424 U.S. at 

21) (alterations in original). As a result, the Buckley Court found that “even a 

significant interference with protected rights of political association [including 

contribution limits] may be sustained if the State demonstrates a sufficiently 

important interest and employs means closely drawn to avoid unnecessary 

abridgement of associational freedoms.” 424 U.S. at 25 (citations and quotation 

marks omitted) (alterations supplied).

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Thus, it has been the law for nearly four decades that, in cases involving 

limits on political contributions, government “action which may have the effect of 

curtailing the freedom to associate is subject to the closest scrutiny.” Id.; FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 207 (1982) (both citing NAACP v. Ala. 

ex rel. Patterson, 357 U.S. 449, 460-61 (1958)). Returning to first principles,

Buckley reiterated that “[t]he Court’s decisions involving associational freedoms 

establish that the right of association is a basic constitutional freedom, that is 

closely allied to freedom of speech and a right which, like free speech, lies at the 

foundation of a free society.” 424 U.S. at 24-25 (citations and quotation marks 

omitted).

Thus, to determine whether it is constitutional to bifurcate the individual-tocandidate contribution limit, this Court “must assess the fit between the stated 

governmental objective and the means selected to achieve that objective.” 

McCutcheon v. FEC, 134 S. Ct. at 1445. In other words, the means—in this case, 

the bifurcated limit—must be “closely drawn” to the ends. Id. at 1446; see also 

McConnell v. FEC, 540 U.S. 93, 144-45 (2003) (contribution limits are subject to 

“‘heightened judicial scrutiny,’” as they impinge on protected freedoms of 

expression and association) (quoting Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377, 391 (2000)).

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“Closely drawn” scrutiny involves a measure of deference to legislative 

determinations setting contribution limits. In upholding the state contribution limit 

at issue there, the Shrink Missouri Court observed that “[w]hile Buckley's 

evidentiary showing exemplifies a sufficient justification for contribution limits, it 

does not speak to what may be necessary as a minimum.” 528 U.S. at 391. The 

Court further noted that “Buckley upheld contribution limits as 

constitutional...noting the Court's ‘deference to a congressional determination of 

the need for a prophylactic rule where the evil of potential corruption had long 

been recognized.’” Id. at 393, n. 5 (quoting FEC v. Nat’l Conservative Political 

Action Comm., 470 U.S. 480, 500 (1985)).

This deference, however, is not akin to carte blanche for a legislative body

to limit political association in arbitrary or unconstitutional ways. Nixon v. Shrink 

Missouri clarified that, while it had found sufficient evidence to uphold the base 

limits at issue there, “[t]he quantum of empirical evidence needed to satisfy 

heightened judicial scrutiny of legislative judgments will vary up or down with the 

novelty and plausibility of the justification raised.” Id. at 391. This ratcheted scale 

is particularly illuminating when it comes to scrutinizing the artificially bifurcated 

limit under 2 U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6). Indeed, Nixon v. Shrink 

Missouri considered whether a state’s limit on contributions to candidates was too 

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low.

2

In other words, that case involved the mere existence of contribution limits as 

such, and whether they were set at an appropriate level, neither of which are 

“novel” questions. On the other hand, the issue here—which is the artificial 

bifurcation of a total contribution to a single candidate between the primary and 

general portions of an election cycle—does not merely reflect Congress’s 

judgment that there should be some contribution limit set at some amount. Rather, 

it regulates the manner in which the base limit—the amount and existence of 

which Plaintiffs do not contest—must be given. This question is novel. 

Furthermore, the government’s proffered justification is unlikely to be plausible; it 

must assert that the possibility of corruption systemically varies with whether or 

not a contribution is made before or after a primary election. Thus, the government 

must present more evidence than it has in the past in order to justify this restriction 

upon associational rights.

Moreover, even if a base limit (or another, less-than-novel restriction) were 

at issue, deference to the legislature is not without limit. In Randall v. Sorrell, for 

example, the Supreme Court considered Vermont’s limit on individual-tocandidate contributions during an entire election cycle. 548 U.S. 230, 249 (2006)

(Noting that the Vermont law “sets its limits per election cycle, which includes 

 

2 Missouri’s contribution limit was, like the federal limit at issue here, calculated 

on a per-election basis. Shrink Missouri, 528 U.S. at 382 (statutory citation 

omitted). But it was the existence and level of the contribution limit that was 

challenged not, as here, its bifurcation.

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both a primary and a general election”). To ensure that limit was closely drawn to a 

sufficiently important governmental interest, the Randall Court applied a two part 

test, first determining if the statute showed “danger signs” of putting challengers at

a significant disadvantage; and second “review[ing] the record independently and 

carefully with an eye toward assessing the statute’s tailoring

[and]...proportionality.” 548 U.S. at 249 (quotation marks and citation omitted).

The Court did not defer to the legislature, because it determined that the limit in 

question was “too low and too strict to survive First Amendment scrutiny.” Id. at 

248.

Thus, it is incumbent upon this Court to meaningfully consider whether the 

bifurcated limit is closely drawn to a sufficiently important interest.

B. The governmental interest is limited to preventing actual or 

apparent quid pro quo corruption.

The Supreme Court has uniformly held that there is only one governmental 

interest sufficient to justify contribution limits: the prevention of actual or apparent

quid pro quo corruption. McCutcheon, 134 S. Ct. at 1450; Buckley, 424 U.S. at 25;

see also Nixon v. Shrink Mo., 528 U.S. at 388. Just last term, the Court restated the 

contours of this quid pro quo corruption. The Chief Justice’s historical summary of 

this standard—and its present application—bears repeating:

In a series of cases over the past 40 years, we have spelled out how to 

draw the constitutional line between the permissible goal of avoiding 

corruption in the political process and the impermissible desire simply 

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to limit political speech. We have said 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. They embody a 

central feature of democracy—that constituents support candidates 

who share their beliefs and interests, and candidates who are elected 

can be expected to be responsive to those concerns.

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

corruption or its appearance. That Latin phrase captures the notion of 

a direct exchange of an official act for money. The hallmark of 

corruption is the financial quid pro quo: dollars for political favors.

Campaign finance restrictions that pursue other objectives, we have 

explained, impermissibly inject the Government into the debate over 

who should govern. And those who govern should be the last people 

to help decide who should govern.

McCutcheon, 134 S. Ct. at 1441-1442 (citations and quotation marks omitted) 

(emphasis in original).

Consequently, it is beyond dispute that contribution limits must target this

understanding of quid pro quo corruption. But the government must offer more 

than a naked assertion of a “corruption” interest to justify a burden on the 

fundamental right to associate via political contributions. Nixon v. Shrink Mo., 528 

U.S. at 392 (citing and discussing Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604, 616 (1996) (opinion of Breyer, J.)). “In the First Amendment 

context, fit matters.” McCutcheon, 134 S. Ct. at 1456. And that is where “closely 

drawn” scrutiny comes in. A contribution limit must be closely drawn to the 

government’s interest in preventing actual or apparent quid pro quo

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13

arrangements—dollars for favors. Otherwise, it is unconstitutional. McCutcheon, 

134 S. Ct. at 1462.

C. 2 U.S.C. §§ 441a(a)(1)(A) and 441a(a)(6) are unconstitutional 

because they violate Plaintiffs’ First Amendment freedom of 

political association and are not closely drawn to the prevention of 

quid pro quo corruption.

i. Congress has determined that contributions of $5,200 are

noncorrupting.

Because this case involves a limit upon the amount an individual may give 

to a particular candidate, McCutcheon’s discussion of closely drawn scrutiny is 

particularly relevant. McCutcheon discussed both types of contribution limits 

applicable to individuals: base limits (which cap the amount any individual 

contributor can give to any one candidate) and aggregate limits (which cap the total 

amount an individual may give to all candidates, parties, and PACs). 134 S. Ct. at 

1443. The Court evaluated, as it must, whether these aggregate limits were closely 

drawn to the prevention of quid pro quo corruption. Id. at 1452.

The McCutcheon Court’s consideration of the aggregate limits is beyond the 

scope of this case. Its discussion of the base limits, however, is instructive. The 

Court considered the total limit on any one individual’s contributions to any one 

candidate without respect to the artificial distinction between primary and general 

elections. Id. at 1448 (“if all contributions fall within the base limits Congress 

views as adequate to protect against corruption. The individual may give up to 

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$5,200 each to nine candidates”); 1451 (“under the dissent’s view, it is perfectly 

fine to contribute $5,200 to nine candidates but somehow corrupt to give the same 

amount to a tenth”).

Thus, the Court clarified what Congress had already found in setting the 

base limit at $5,200: this is the dollar amount at or below which—when given by 

an individual to a candidate—there is no threat of actual or apparent corruption. 

That is, McCutcheon reiterated that “Congress’s selection of a $5,200 base limit 

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

cognizable risk of corruption.” Id. at 1452. Thus, preventing Plaintiffs’ desired 

contributions—a total of $5,200 to any given candidate during a general election—

does not further an anti-corruption interest. By drawing the line at $5,200, 

Congress implicitly found that contributions of that size, at least, pose no 

cognizable risk of corruption.

ii. The bifurcated limit cannot survive constitutional scrutiny, 

because it is not closely drawn to a sufficiently important 

governmental interest.

As explored above, under exacting scrutiny, a law infringing upon First 

Amendment associational rights may only be upheld if it is “closely drawn” to a 

“sufficiently important” government interest. Nixon v. Shrink Mo., 528 U.S. at 387-

388 (citation and quotation marks omitted). When reviewing contribution limits, 

the Supreme Court has limited this to just one such interest: preventing actual or 

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apparent quid pro quo corruption. Buckley, 424 U.S. at 26-27. Both Congress and 

the Supreme Court have recognized that a contribution of $5,200 from a 

contributor to a candidate during an election cycle is non-corrupting. Thus, the 

bifurcated limit, as a matter of law, does not prevent actual or apparent corruption.

Moreover, even if it did further that interest, the bifurcated limit lacks all 

semblance of constitutional tailoring, and would therefore still fail First 

Amendment scrutiny.

The bifurcated limit is not tailored, first because it prevents Plaintiffs and 

those similarly situated from giving the full, non-corrupting contribution amount at 

the time they feel is most critical in the electoral cycle. And, as the Supreme Court 

has noted in the contribution limit context, “[s]uch distinctions in degree become 

significant...when they can be said to amount to differences in kind.” Buckley, 424 

U.S. at 30 (citations omitted). Such is the case here.

Moreover, if a contributor wishes to fully associate with a candidate up to 

the $5,200 mark, yet the candidate is running in a competitive primary, the law 

actually forces contributors to associate with the candidate during a primary 

election. This is so even in the case of contributors who simply wish to support 

candidates in the general election along party lines—they are foreclosed from 

doing so. (Or, at least, must spend significant time and effort learning about 

primary candidates, then must choose a candidate who may or may not win the 

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contested primary, and then perhaps see their contribution used to attack other 

candidates from their party in that primary, rather than accomplishing their desired 

goal: defeating the candidate from the opposing party). This also evidences a lack 

of tailoring. Like the aggregate limit on individual to candidate contributions at 

issue in McCutcheon, “[a]t that point, the limits deny the individual all ability to 

exercise his expressive and associational rights by contributing to someone who 

will advocate for his policy preferences,” which is a “clear First Amendment 

harm[].” Id. at 1448-49.

Constitutional tailoring is particularly absent where, as here, both Mr. 

DeMaio and Dr. Miller-Meeks face opponents who themselves were essentially 

unopposed during their respective primaries, and who are permitted by federal law 

to use primary election contributions for general election expenses. The only 

difference between Plaintiffs desired contributions and contributions to their 

preferred candidates’ opponents is that those other supporters will have given their 

money earlier. The fact that issues continue to develop during a campaign

exacerbates this lack of tailoring. For example, it may be only after the primary 

that a scandal involving a candidate is revealed, or that a candidate reveals hitherto 

unknown beliefs or policy preferences that might cause a donor to wish to 

associate with another candidate.

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Furthermore, primaries are at different times in various states. Public 

Disclosure Division, “2014 Congressional Primary Dates and Candidate Filing 

Deadlines for Ballot Access,” FEDERAL ELECTION COMMISSION (2014), 

http://www.fec.gov/pubrec/fe2014/2014pdates.pdf. Contributors should not be 

prevented from supporting their chosen candidates simply because it is difficult to 

keep up with myriad primary dates. 

On the other side of the ledger, there can be no cognizable government 

interest in encouraging contributors to candidates without primary opponents to put 

a full $5,200 toward the general election. This harms donors like the Plaintiffs. See 

Davis v. FEC, 554 U.S. 724, 750 (2008) (contribution limit unconstitutional under 

the First Amendment which “ha[d] the effect of enabling [Plaintiff’s] opponent to 

raise more money and to use that money to finance speech that counteracts and 

thus diminishes the effectiveness of” other candidate speech). Thus, the bifurcated 

limit must fail First Amendment scrutiny.

D. The asymmetrical contribution limit 2 U.S.C. §§ 441a(a)(1)(A) 

and 441a(a)(6) impose are unconstitutional because they deny 

Plaintiffs equal protection of the laws.

Because the bifurcated contribution limit inevitably creates asymmetrical 

and discriminatory outcomes, it is unconstitutional under the Fifth Amendment’s 

guarantee of equal protection. United States v. Windsor, 133 S. Ct. 2675, 2695 

(2013) (“The liberty protected by the Fifth Amendment’s Due Process Clause 

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contains within it the prohibition against denying to any person the equal 

protection of the laws”) (citation omitted).

i. The Supreme Court has largely reviewed constitutional 

questions involving contribution limits from the perspective 

of established political entities such as candidates or PACs, 

not contributors. 

In reviewing contribution limits, the Supreme Court has largely considered 

challenges by candidates or political committees from the perspective of the 

recipient of a contribution, not the contributor herself. The Buckley Court’s 

decision to uphold the individual contribution limits in FECA, for instance, was 

grounded in a record that focused on the candidates and parties involved. 424 U.S. 

at 33. It did not specifically address the right to equal protection held by 

contributors. 

Indeed, the principal cases on the question of contribution limits tend to 

observe the question regarding “restraint[s] on the right of association...[by] 

hobbl[ing] the collective expressions of a group.” Citizens Against Rent Control v. 

City of Berkeley, 454 U.S. 290, 296 (1981). Even when contributors have been 

attached as plaintiffs, the contributor-plaintiffs generally have mounted a 

wholesale challenge to the limits themselves—not the asymmetric classification of 

different types of contributors. E.g. Randall v. Sorrell, 548 U.S. at 239-40. Nor has 

the Supreme Court reviewed bans on contributions by certain persons under the 

equal protection rubric. FEC v. Beaumont, 539 U.S. 146 (2003) (ban on corporate 

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direct contributions to candidates upheld under First Amendment, not Fifth 

Amendment, principles).

ii. The Supreme Court has not reviewed asymmetric 

contribution limits under the Fifth Amendment, but has 

suggested that such review is appropriate.

The Supreme Court has, to date, declined to decide an asymmetric 

contribution limit case under the equal protection doctrine. The Buckley Court only 

considered a facial challenge to the contribution limits imposed by FECA, and did 

not consider the effects—plain or disparate—of separate limits for primary and 

general elections. 424 U.S. at 35 (noting that “the impact of the Act’s $1,000 

contribution limitation on major-party challengers and on minor-party candidates 

does not render the provision unconstitutional on its face”). 

The Buckley Court was aware, however, of the danger that contribution 

limits could work a Fifth Amendment harm, and left open the possibility of

subsequent challenges when contribution limits rose to the level of “invidious 

discrimat[ion]”. Id. at 31, n. 33. The Court noted that, given that FECA was 

necessarily designed by incumbents, it was possible that while “the Act, on its 

face, appears to be evenhanded” that “may not reflect political reality.” Id.

In 2002, Congress amended FECA by passing the Bipartisan Campaign 

Reform Act (“BCRA”). BCRA Section 307 doubled the individual contribution 

limits, and indexed the limits to the consumer price index. 2 U.S.C. § 441a(c). 

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BCRA left FECA’s distinction between primary and general elections undisturbed. 

2 U.S.C. § 411a(a)(6). Like FECA, BCRA was quickly challenged facially by a 

number of plaintiffs. McConnell v. FEC, 540 U.S. 93. Nevertheless, no McConnell 

plaintiff challenged the bifurcation of those limits.3

However, as discussed supra, last Term the Supreme Court struck down the 

aggregate contribution limits imposed on contributors, and in doing so emphasized 

that the receipt of a $5,200 contribution by a candidate did not pose a threat of 

corruption or its appearance. McCutcheon, 134 S. Ct. at 1451.

Furthermore, the Supreme Court has determined that asymmetric 

contribution limits can be fatal to a law’s constitutionality. The Court has held that, 

when the rights of contributors are at issue, governments may not succeed by 

positing a general interest in “reduc[ing] the amount of money in politics” or 

“restrict[ing] the political participation of some in order to enhance the relative 

influence of others.” Id. at 1441. Davis v. FEC applied these principles in a 

candidate challenge to certain BCRA limits. 554 U.S. 724, 744 (2008).

Davis turned on the application of the First Amendment to a BCRA 

provision informally known as the “millionaire’s amendment.” 554 U.S. at 729 

 

3 A number of plaintiffs challenged BCRA’s increase in individual contribution 

limits, but did not challenge the limit’s bifurcation between the primary and 

general elections. Nonetheless, the McConnell Court declined to reach the issue for 

want of jurisdiction. 540 U.S. at 227-229 (finding plaintiffs challenging increase 

failed to demonstrate Article III standing).

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(discussing BCRA Section 319(a), 2 U.S.C. § 441a(1)(a)). The “millionaire’s 

amendment” permitted candidates facing a self-financing opponent to raise money 

up to three times the normal contribution limit. Id. at 738. Before BCRA’s 

enactment, multiple observers suggested that the overall effect of the provision 

would be to insulate incumbents from successful challenge. E.g. 147 CONG. REC. S. 

2542 (Statement of Senator Chris Dodd: “this is what I could call incumbency 

protection”). The Davis plaintiff, a self-financed Congressional candidate, raised 

both First and Fifth Amendment objections to the “millionaire’s amendment.” 554 

U.S. at 744, n. 9. 

The government attempted to justify the amendment as a means of leveling 

the playing field—permitting non-wealthy candidates to access greater financial 

resources. Id. at 741. The Court rejected this proffered interest, noting that it “ha[d] 

never upheld the constitutionality of a law that imposes different contribution 

limits for candidates who are competing against each other.” Id. at 738. But, while

Davis was decided under the First Amendment, and the Court did not reach Mr. 

Davis’s Fifth Amendment claims, the Court grounded its analysis in a rejection of 

the law’s asymmetric outcomes. Id. at 744 n. 9.

Similarly, in Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, the 

Court struck down an Arizona public financing regime based, in part, on its 

asymmetric effect, although not specifically under the Equal Protection clause.

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131. S. Ct. 2806, 2819 (2011). Arizona’s system provided that “a publicly financed 

candidate would receive roughly one dollar for every dollar spent by an opposing 

privately financed candidate” or an independent group supporting such a candidate.

Id. at 2813. In rejecting the state’s approach, the Court relied upon Davis. Id. at 

2818 (“The logic of Davis largely controls our approach to this case”). But it also 

noted an asymmetry problem: some Arizona districts, including its state House 

districts, elected more than one candidate.4 Consequently, “each dollar spent by the 

privately funded candidate would result in an additional dollar of campaign 

funding to each of that candidate’s publically financed opponents.” Id. at 2819 

(emphasis supplied). The Court stated that, in such circumstances, candidates 

would be required “to fight a political hydra of sorts.” Id. This was equally, if not 

especially, true for independent groups who, in speaking for or against a candidate, 

would trigger direct cash payments to their opponents. Id. (“spending one dollar 

can result in the flow of dollars to multiple candidates the group disapproves of”). 

These passages can only be read as expressing the Court’s concern, explicitly 

raised in both Buckley and Davis, that governments might impermissibly burden 

political association and expression by providing some with advantages over 

 

4

Id. at 2815 (“Arizona is divided into 30 districts for purposes of electing members 

to the State's House of Representatives. Each district elects two representatives to 

the House biannually. In the last general election, the number of candidates 

competing for the two available seats in each district ranged from two to seven”).

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others. Doing so constitutes a First Amendment violation, as explained above. But 

it is also falls far short of the equal protection of the laws.

iii. Contribution limits which favor one category of candidates

over another implicate the constitutional guarantee of equal 

protection.

Earlier this year, the Tenth Circuit Court of Appeals did reach the merits of 

an equal protection claim brought by contributors. Riddle v. Hickenlooper, 742 

F.3d 922 (10th Cir. 2014).5 There, the Court reviewed a statute which, similar to 

federal law, provided a $200 contribution limit for both the primary and general 

elections. COLO. REV. STAT. § 1-45-103.7(4) (2010). But, “[f]or money ostensibly 

given for the primary, the candidate committee could accept the contribution and 

spend it during the general election.” Riddle, 742 F.3d at 924. Nonetheless, 

candidates who did not run in a primary—such as write-in or independent 

candidates—were prohibited from accepting primary election money. Id. at 927. 

Thus, “[a]fter the primary, a supporter of [a write-in candidate] could give her only 

$200. At the same time, others could contribute $400 each to the Republican and 

Democratic candidates, and the [major party] candidates could spend that money in 

the general election.” Id. The Riddle plaintiffs sought to contribute a full $400 to a 

 

5 While that case was resolved under the Fourteenth Amendment, under 

longstanding Supreme Court precedent, Fifth Amendment challenges are subject to 

the same analysis applied in cases implicating the Fourteenth Amendment’s Equal 

Protection Clause. Buckley, 424 U.S. at 93.

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write-in candidate for state office, and since the statute prevented them from doing 

so, they sought relief in federal court. Id. at 924.

The Riddle Court quickly determined that the “statute does classify 

contributors in a way that impinges on a fundamental right—the right to contribute 

as a form of political expression.” Id. at 927 (citation omitted). The Court observed 

that this “conclusion would ordinarily require us to apply strict scrutiny.” Id.

(citing Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666 (1990)). But 

because “the Supreme Court has applied a less rigorous test for contribution limits” 

the Riddle Court, “[f]or the sake of argument...assume[d] that” the Court’s First 

Amendment scrutiny analysis “applies when contributors challenge contribution 

limits based on the Fourteenth Amendment’s Equal Protection Clause rather than 

the First Amendment.” Id. at 928 (citations omitted).

Thus, to determine whether a contribution limit with asymmetric effect 

survives constitutional review under the doctrine of equal protection, a court “must 

determine whether it is closely drawn to advance the State’s interest in preventing 

corruption or the appearance of corruption.” Id. That is, there must be “a link 

between the differing contribution limits and the battle against corruption, 

[otherwise] the means chosen are not closely drawn.” Id. Because the “statute 

create[d] a basic favoritism between candidates vying for the same office” without 

any cognizable anti-corruption interest in doing so, the Court found that 

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Colorado’s asymmetric scheme violated the Constitution’s guarantee of equal 

protection. Id. at 929, 930.

The instant case deals with a statute which poses Fifth Amendment harm 

comparable to that found unconstitutional by the Riddle Court. Like Riddle, where 

the contribution limit artificially distinguished between two types of candidates, 

the primary/general bifurcation of the limit works a similar effect. Colorado’s 

statute created different contribution limits for those who ran in a primary election 

and those who did not. Similarly, the federal scheme does not distinguish between 

those candidates who must face significant primary challengers and those who do 

not. While “on its face” the bifurcated scheme does not appear discriminatory, the 

disparate impact in favor of candidates who do not face a primary challenge—and 

their supporters—is the clear “political reality.” Buckley, 424 U.S. at 31, n 33.

Consider the case of Mr. Jost’s preferred candidate, Mariannette MillerMeeks. While incumbent Representative Dave Loebsack ran an uncontested race 

for the Democratic nomination in his district, Dr. Miller-Meeks ran against two 

other candidates for the Republican nomination: Mark Lofgren and Matthew 

Waldren. “Iowa Primary Results”, NEW YORK TIMES (June 4, 2014), 

http://elections.nytimes.com/2014/results/primaries/iowa. Indeed, Miller-Meeks’s 

opponents combined to earn over 50 percent of the Republican vote, with Lofgren 

earning 38.2 percent and Waldren capturing 12.3 percent. Id. Thus, for all intents 

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and purposes, every dollar that Congressman Loebsack has raised this election 

cycle may be used for general election purposes, a luxury Dr. Miller-Meeks simply 

does not have. Congressional Candidates and Committees, FEDERAL ELECTION 

COMMISSION at 21 (June 2014), http://www.fec.gov/pdf/candgui.pdf

(“Nevertheless, the campaign of a candidate running in the general election may 

spend unused primary contributions for general election expenses”). Yet, now that 

the primary has concluded, Mr. Jost cannot give $5,200 to Dr. Miller-Meeks’s 

campaign for general election purposes. 11 C.F.R. § 110.1(b)(3)(i) (“A 

contribution designated in writing for a particular election, but made after that 

election, shall be made only to the extent that the contribution does not exceed net 

debts outstanding from such election”).6 The government explains neither how this 

meets the demands of equal protection, nor why it is needed to prevent corruption. 

Nor are the instant circumstances unusual. Significant primary challenges to 

incumbent candidates are extraordinarily rare. Indeed, precious few challengers 

ever force incumbents to less than 75 percent of the vote—the figure which Dr. 

 

6 California’s system, while different from Iowa’s, worked the same effect for Ms. 

Holmes’s preferred candidate, Carl DeMaio. Four candidates sought to advance to 

the general election for the 52nd Congressional district: Democratic incumbent 

Scott Peters, and three Republican candidates. United States Representative in 

Congress by District, Statewide Direct Primary Election – Statement of Vote, 

CALIFORNIA SECRETARY OF STATE (June 3, 2014),

http://www.sos.ca.gov/elections/sov/2014-primary/pdf/63-congress.pdf.

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Robert Boatright of Clark University, a scholar on the subject,7considers the “level 

at which the incumbent might notice a challenger.” Andrew Prokop, “Is the Tea 

Party primary surge a huge myth?”, VOX.COM (Aug. 13, 2014), 

http://www.vox.com/2014/6/25/5837696/is-the-tea-party-primary-surge-a-hugemyth. For example, despite the media coverage of Virginia Congressman Eric 

Cantor’s defeat by a primary opponent in June 2014, “only three times since 1970 

has a Virginia incumbent been held to less than 75 percent of the primary vote.” 

John Sides, “An Expert on Congressional Primaries Weighs in on Cantor’s Loss,” 

WASHINGTON POST (June 12, 2014) http://www.washingtonpost.com/

blogs/monkey-cage/wp/2014/06/12/the-expert-on-congressional-primaries-weighsin-on-cantors-loss/. Indeed, the high-water mark for primary challenges to House 

incumbents was 1992, when fewer than 100 challengers managed to force an 

incumbent to less than 75 percent of the primary vote. Prokop, Fig. 1.1. 

Plaintiffs’ desire to engage in political expression and association under the 

equal protection of our campaign finance laws. Their predicament implicates a 

“fundamental principle: the State must govern impartially.” New York City Transit 

Auth. v. Beazer, 440 U.S. 568, 587 (1979). The bifurcated contribution limit is

simply not consistent with this principle. The limit’s bifurcation favors incumbents 

generally, and certainly does so in the races wherein Plaintiffs which to associate. 

 

7 Robert G. Boatright, Ph.D, “Books: Congressional Primaries”, 

http://wordpress.clarku.edu/rboatright/books/congressional-primaries-2/.

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This fact is all the more troubling given that the offending laws were drafted by 

incumbent candidates for office. See McCutcheon, 134 S. Ct. at 1441 (“Campaign 

finance restrictions that pursue...objectives [other than preventing actual or 

apparent quid pro quo corruption]...impermissibly inject the Government into the 

debate over who should govern”) (citation and quotation marks omitted).

Unless the government can deliver a “closely drawn” justification for 

allowing some candidates to raise $5,200 from a single contributor for the general 

election, while prohibiting other candidates from doing the same, the bifurcated

limit fails Fifth Amendment scrutiny.

III. Absent the requested preliminary relief, Plaintiffs will suffer 

irreparable harm.

“The First Amendment ‘has its fullest and most urgent application’ to speech 

uttered during a campaign for political office.’” Eu v. San Francisco County 

Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. 

v. Roy, 401 U.S. 265, 272 (1971)). Thus, the loss, or threatened loss, of 

associational or expressive freedoms is particularly harmful during an election 

season. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“[I]njunctive relief is clearly 

appropriate...[when] First Amendment interests [a]re either threatened or in fact 

being impaired at the time relief [i]s sought”) (citation omitted). “The loss of First 

Amendment freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury.” Id. (citation omitted).

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Elrod also applies to other infringements upon constitutional rights. See 

Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.D.C. 2009) (noting, in 

Fourth Amendment context, “[i]t has long been established that the loss of 

constitutional freedoms, ‘for even minimal periods of time, unquestionably 

constitutes irreparable injury’”) (quoting Elrod v. Burns, 427 U.S. at 373). This 

reasoning necessarily applies to the constitutional right to equal protection of the 

laws. See Smith v. Henderson, 944 F. Supp. 2d 89, 108 (D.D.C. 2013) (“Even 

assuming that every Equal Protection Clause violation constitutes an irreparable 

injury...”).

In any event, association and expression are particularly time-sensitive in the 

context of an election year. Elrod, 427 U.S. at 374, n. 29 (recognizing timeliness of 

action in context of political speech) (citing Carroll v. Princess Anne, 393 U.S. 

175, 182 (1968); Wood v. Georgia, 370 U.S. 375, 391-92 (1962)). Every day that 

Plaintiffs are denied equal protection of the laws, they are further harmed. 

O’Donnell Constr. Co. v. Dist. of Columbia, 963 F.2d 420, 428 (D.C. Cir. 1992) 

(finding irreparable harm when plaintiff has “little hope of obtaining...corrective 

relief at a later date if the injunction does not issue”) (citation and quotation marks

omitted).

Plaintiffs wish to associate one-on-one with particular candidates in this 

particular election. “Elections are, by nature, time sensitive and finite. While there 

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will be other elections, no future election will be this election.” Emineth v. Jaeger, 

901 F. Supp. 2d 1138, 1142 (D.N.D. 2012) (emphasis in original). By contrast, the 

FEC will not suffer irreparable injury if this Court grants Plaintiffs’ motion. No 

party—least of all a government defendant—can be injured through the lack of 

enforcement of a statute violating the First and Fifth Amendments. Gordon v. 

Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“enforcement of an unconstitutional 

law is always contrary to the public interest”) (citations omitted). And the 

government can hardly be harmed if plaintiffs are able to contribute $5,200 to a 

candidate, which the government must admit they could have done legally had they 

timed their contributions differently.

IV. The requested injunction will further the public’s interest in protecting

First Amendment liberties and guaranteeing equal protection of the

laws.

The public interest is furthered when unconstitutional laws—particularly 

ones that implicate core equal protection and First Amendment political rights—

remain unenforced. See Green v. Kennedy, 309 F. Supp. 1127, 1139 (D.D.C. 1970) 

(“Equity properly grants relief when considerations of public interest are involved, 

as distinguished from purely private interest. This principle is properly invoked by 

plaintiffs claiming denial of constitutional rights”) (citations omitted).

“No long string of citations is necessary to find that the public interest 

weighs in favor of having access to a free flow of constitutionally protected 

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speech.” ACLU v. Reno, 929 F. Supp. 824, 851 (D. Pa. 1996); see also K.H. 

Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (“The 

public has no interest in enforcing an unconstitutional ordinance”) (citation 

omitted). This simply “acknowledge[s] the obvious: enforcement of an 

unconstitutional law is always contrary to the public interest.” Gordon v. Holder, 

721 F.3d at 653 (citations omitted).

CONCLUSION

For the foregoing reasons, Plaintiffs request that their motion for a 

preliminary injunction be granted.

Respectfully submitted this 20th day of August, 2014.

/s/ Allen Dickerson

Allen Dickerson, DC Bar No. 1003781

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, VA 22314

Phone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs

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