IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

LIBERTARIAN NATIONAL )

COMMITTEE, INC., ) Case No. 1:16-CV-0121-BAH

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

__________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S 

MOTION TO DISMISS AND IN REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S 

MOTION TO CERTIFY FACTS AND QUESTIONS

Plaintiff Libertarian National Committee, Inc., respectfully submits its Memorandum of

Points and Authorities in Opposition to Defendant’s Motion to Dismiss and in Reply to Defendant’s

Opposition to Plaintiff’s Motion to Certify Facts and Questions to the Court of Appeals.

Dated: October 19, 2017 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)

Gura PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura

Alan Gura

Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 1 of 23
TABLE OF CONTENTS

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The FEC Misstates the LNC’s Facial Challenge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. The FEC May Not Understand the Difference Between a Contribution Limit

and an Expenditure Limit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. FECA Imposes Content-Based Expenditure Limits, Which are Subject to Strict

Scrutiny, on Ninety Percent (90%) of the Money Political Parties May Raise.. . . . . 6

IV. The FEC Does Not Argue that FECA’s Limits on Contributions to

Political Parties Would Survive Strict Scrutiny.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

V. Even if the Challenged Provision Is a Pure Contribution Limit, the Government

Bears the Burden of Establishing that It Passes Closely-Drawn Scrutiny.. . . . . . . . . 9

VI. The Cromnibus Expressive Purpose Limitations Have Not Done

the LNC Many Favors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

VII. As this Court Confirmed in LNC I, the LNC May Challenge the

Constitutionality of FECA’s Application to Particular Bequests. . . . . . . . . . . . . . . 14

VIII. The FEC’s Suggested Edits to the Proposed Questions are Irrational.. . . . . . . . . . . 17

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

Cases

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10, 11

Holmes v. FEC,

823 F.3d 69 (D.C. Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

Independence Inst. v. FEC,

816 F.3d 113 (D.C. Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 7

Libertarian Nat’l Comm., Inc. v. FEC,

930 F. Supp. 2d 154 (D.D.C. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16

McConnell v. FEC,

540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Nixon v. Shrink Mo. Gov’t Pac,

528 U.S. 377 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Randall v. Sorrell,

548 U.S. 230 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Shapiro v. McManus,

136 S. Ct. 450 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

Wagner v. FEC,

717 F.3d 1007 (D.C. Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wis. Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

52 U.S.C. § 30116(a)(1)(B) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 7, 13, 17, 18

52 U.S.C. § 30116(a)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

52 U.S.C. § 30116(a)(9)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 3 of 23
52 U.S.C. § 30116(a)(9)(B) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

52 U.S.C. § 30116(a)(9)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

52 U.S.C. § 30125.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 13, 17, 18

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 4 of 23
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S 

MOTION TO DISMISS AND IN REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S 

MOTION TO CERTIFY FACTS AND QUESTIONS

PRELIMINARY STATEMENT

“Frivolous” or some form thereof appears twenty-six times across the FEC’s thirty-five

pages of briefing, apparently produced by up to five attorneys and accompanied by thirty-eight

exhibits. And hedging its bets, the FEC proposes alternative questions for certification.

The FEC effort’s sheer volume belies any notion that the LNC’s claims fail the “low” bar of

certification. Shapiro v. McManus, 136 S. Ct. 450, 456 (2015); Holmes v. FEC, 823 F.3d 69, 71

(D.C. Cir. 2016). This is altogether quite a large body of work to squeeze through a “narrow”

exception, Independence Inst. v. FEC, 816 F.3d 113, 116 (D.C. Cir. 2016), meant to exclude

claims of the sort weeded out by the Prison Litigation Reform Act, Holmes, 823 F.3d at 72 n.4.

Were the LNC’s claims “obviously frivolous because they are foreclosed by binding precedent,”

FEC Br. at 2, perhaps the FEC should have identified that “binding precedent” straight away, or

even anywhere in its tome, which should have then been much shorter.

Of course the FEC does not disclose this “binding precedent.” Because it does not exist.

This is not to deny the existence of frivolous arguments. The FEC advances several theories

that do not merit extended discussion. To the limited extent that the FEC’s arguments may not be

frivolous, but are merely wrong, the FEC presents its arguments to the wrong court. This is not the

forum in which to dispute whether the cromnibus expressive purpose restrictions are, in fact,

content-based restrictions on speech. Nor is this the forum in which to argue that the challenged law

1

The FEC complains that this “shorthand is argumentative and misleading.” FEC Br. at 7

1

n.2. It is neither. The LNC’s term describes precisely the scheme’s function, and how it came about.

The FEC’s preferred euphemism only serves to conceal the law’s purpose and pedigree.

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 5 of 23
satisfies, or fails, either strict or intermediate “closely drawn” scrutiny. To be sure, the LNC believes

that its certification motion does, in fact, tend to prove the challenged provisions and practices’

unconstitutionality. But that is not the point of this exercise.

The only point of this exercise is to pass the very low threshold for certification of this

dispute to the D.C. Circuit. That threshold has amply been met—and surpassed. The FEC should be

offered the opportunity to present its arguments to the en banc D.C. Circuit, to which the case should

be certified.

SUMMARY OF ARGUMENT

The FEC’s essential positions are that:

(1) there is nothing novel about the post-cromnibus FECA’s limit on contributions to

political parties—FECA looks just like it always has before;

(2) 52 U.S.C. § 30116(a)(1)(B) is only a contribution limit with no expressive purpose

restrictions whatsoever—the LNC must be imagining the three statutory restrictions

as to how money is to be “used”;

(3) all contribution limits are, per se, constitutional, unless perhaps they have a severe

impact on a party or candidate’s ability to mount a campaign, and in any event, the

post-cromnibus FECA satisfies closely-drawn scrutiny;

(4) the LNC should be grateful that FECA imposes content-based restrictions on how the

party may speak with up to 90% of the money raised from a particular individual,

because allowing a party to speak with restrictions is better than not allowing it to

speak at all;

(5) because contribution limits may be applied to testamentary bequests, they may be

applied to all testamentary bequests; and

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 6 of 23
(6) enough of the foregoing is contained in uncited mystery precedent such that the

LNC’s claims are all not just foreclosed, but frivolous.

These arguments lack merit. Indeed, the FEC’s brief calls into question whether the

Commission understands the essential claims, or even the distinction between contribution and

expenditure limits. Even one citation to precedent that forecloses this case would have been useful.

But LNC’s claims plainly include a first-impression challenge to a novel law, and an as-applied

claim of the type previously certified. Of course, the LNC need not win its case here. It need only

show that the case should be certified to the court having jurisdiction to hear it. That much, the LNC

has done. Its motion should be granted, and the FEC’s motion should be denied.

ARGUMENT

I. THE FEC MISSTATES THE LNC’S FACIAL CHALLENGE.

The FEC offers that “[t]he LNC . . . limits its current challenge to Congress’s recent

amendment to FECA that set higher limits for contributions to certain segregated accounts of the

national party committees.” FEC Br. at 12. This is an odd way to phrase the matter and may not be

technically accurate. While the LNC would not have challenged FECA’s contribution limit prior to

the cromnibus amendment, it challenges the contribution limit as it appears in the U.S. Code—52

U.S.C. §§ 30116(a)(1)(B) and 30125. The LNC does not argue that any portion of Section

30116(a)(1)(B) is severable, a question that goes to the remedy, and not the defect of FECA’s

current form.

To be sure, excising the provision’s reference to segregated accounts, and striking out the

segregated account language of subdivision (a)(9), would satisfy the LNC’s claim for relief, as it

would eliminate the content-based restriction and restore FECA’s party limit to the condition of a

pure contribution limit. But the LNC doubts that the Court can perform such a legislative task. The

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 7 of 23
balance Congress would have struck, had it cared to avoid content-based speech restrictions, is

unknowable. Obviously, Congress found the old limits insufficient.

The FEC’s confusion on this point may not be consequential with respect to any issue in the

case, but it seems appropriate to note the matter all the same.

II. THE FEC MAY NOT UNDERSTAND THE DIFFERENCE BETWEEN A CONTRIBUTION LIMIT

AND AN EXPENDITURE LIMIT.

Before any substantive discussion of the case’s merits, it is critical to establish the basic

concepts and terminology. Accordingly, the LNC is constrained to note that the FEC’s attempt to

distinguish between contribution and expenditure limits is perplexing. The FEC eventually settles on

the correct test (even as it would misapply it), but not before offering a confusing and erroneous

approach that defies established understanding.

The FEC states that the Supreme Court “defined how to distinguish between a contribution

limit and an expenditure limit.” FEC Br. at 13. The very next sentence: “The hallmark of a

contribution limit is that it ‘entails only a marginal restriction upon the contributor’s ability to

engage in free communication.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 20 (1976) (per

curiam)). The passage suggest that the extent of the restriction on free speech determines whether a

limit is a contribution limit (“marginal restriction”) or expenditure limit (significant restriction).

Under this view, a complete ban on political contributions would be an “expenditure limit,” as it

would have a severe effect on speech, while a slight imposition on expenditures would be a

“contribution limit.”

This is wrong, and it is not at all what Buckley held. It should go without saying, but it

apparently needs to be said: “contribution limits” limit contributions; “expenditure limits” limit

expenditures. To the extent the Supreme Court defined these terms, it referred to an expenditure

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 8 of 23
limit as “[a] restriction on the amount of money a person or group can spend on political

communication during a campaign,” Buckley, 424 U.S. at 18, and it referred to a contribution limit

as “a limitation upon the amount that any one person or group may contribute to a candidate or

political committee,” id. at 20. Now, it may well be that Buckley held that contribution limits only

2

have a marginal impact on the contributor’s speech, but it is not at all correct to aver that per

Buckley, the marginal extent of this impact is the “hallmark” that “defined how to distinguish

between a contribution limit and an expenditure limit.” FEC Br. at 13.

The FEC comes closer to the mark in understanding the difference between contribution and

expenditure limits when it discusses McConnell v. FEC, 540 U.S. 93 (2003). As the FEC aptly

notes, in McConnell, the Libertarian Party (among others) challenged the “soft money” ban now

codified at Section 30125, in part as an expenditure limit. But the Supreme Court found that “in the

main,” the provision “does little more than regulate the ability of wealthy individuals, corporations,

and unions to contribute large sums of money to influence federal elections, federal candidates, and

federal officeholders.” McConnell, 540 U.S. at 138.

[I]t is irrelevant that Congress chose . . . to regulate contributions on the demand rather than

the supply side. The relevant inquiry is whether the mechanism adopted to implement the

contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a

direct restriction on the contribution itself would not.

Id. at 138-39 (citation omitted) (emphasis added).

“The major contribution and expenditure limitations in the Act prohibit individuals from

2

contributing more than $ 25,000 in a single year or more than $ 1,000 to any single candidate for an

election campaign and from spending more than $ 1,000 a year ‘relative to a clearly identified

candidate.’” Buckley, 424 U.S. at 13 (footnotes omitted).

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 9 of 23
III. FECA IMPOSES CONTENT-BASED EXPENDITURE LIMITS, WHICH ARE SUBJECT TO STRICT

SCRUTINY, ON NINETY PERCENT (90%) OF THE MONEY POLITICAL PARTIES MAY RAISE.

Without any citation, the FEC blithely declares that “[b]inding First Amendment precedent

forecloses the LNC’s claim that strict scrutiny applies to the segregated account limits.” Id. at 12

(citing nothing). But this is only true if, in fact, the “segregated account limits” are pure contribution

limits bereft of any content-based speech restrictions. See, e.g., Reed v. Town of Gilbert, 135 S. Ct.

2218 (2015) (content-based speech restrictions trigger strict scrutiny). That, itself, is at least a

question of first impression—if not a particularly difficult one.

Oblivious to the difference between a generic contribution limit, and the new content-based

mechanism spawned by the 2014 cromnibus, the FEC adds that “[t]he Supreme Court clearly

rejected this argument,” to wit, that the FECA party limit is subject to strict scrutiny because it

contains content-based restrictions on speech, “when the Libertarian Party made it previously . . . .”

FEC Br. at 13.

The LNC is unaware of the Supreme Court having ever considered its challenge to the 2014

cromnibus version of FECA, with its expressive purpose restrictions.

As per McConnell and until the cromnibus, FECA’s contribution limits on political party

contributions were once just that—contribution limits. But that’s no longer so. FECA still limits

contributions to political parties, but the amounts that may be accepted depend on how the money is

“used.” 52 U.S.C. §§ 30116(a)(9)(A), (B), and (C). The provision at issue is both a contribution

limit and an expenditure limit. There is simply no precedent that deals with such a provision. And

even the FEC concedes that expenditure limits trigger strict scrutiny. FEC Br. at 12.

As a matter of common sense, and under McConnell’s “relevant inquiry,” the cromnibus

FECA is plainly an expenditure limit, because it “burdens speech in a way that a direct restriction on

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the contribution itself would not.” McConnell, 540 U.S. at 138-39. A “direct restriction on the

contribution itself” would simply limit the LNC to annual contributions of $X, as before, but it

would not burden the LNC’s speech in any way thereafter. The current restrictions make a

contribution legal or illegal depending on the content of the speech that it would fund. Indeed, in

McConnell, the lack of any content-based restrictions on contributed funds was the decisive factor in

upholding the soft-money ban. Right or wrong, the entire theory of banning soft money is that “large

soft-money contributions to national parties are likely to create actual or apparent indebtedness on

the part of federal officeholders, regardless of how those funds are ultimately used.” Id. at 155.

Respectfully—the notion that “there is no credible argument that the segregated account

limits at issue here restrict expenditures,” FEC Br. at 15, is risible. To what end are the accounts

“segregated,” if not to restrict how the funds are “used”? See 52 U.S.C. §§ 30116(a)(9)(A), (B),

and (C). Can money from a segregated account be expended for a purpose inconsistent with the

statutory restriction? The accounting here is not recreational. The expenditure restrictions are

spelled out in the text of the statute and form the entire basis for the provision’s existence.

The FEC is not wrong in asserting that this case is replete with frivolous arguments, but it

has misidentified their source. Even if the FEC were correct, and the limits at issue today are purely

contribution limits that have no impact on how money is spent, that idiosyncratic view is hardly

mandated by precedent. Provided the text of Section 30116(a)(1)(B) and (a)(9), a not-insubstantial

number of judges, lawyers, and other people not employed by the FEC would immediately recognize

that the provision limits the amount of money a party may raise depending on how it speaks with

that money. That this is even in dispute is startling.

At the very least, this is something for the D.C. Circuit to consider en banc—something no

court has ever considered before. Yes, the application of strict scrutiny to pure contribution limits

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“has been squarely rejected through more than forty years of Supreme Court cases.” FEC Br. at 17.

But the FEC is simply in denial about the nature of the challenged provision.

Consider this sentence: “There is, therefore, simply no basis for the LNC’s argument that

whether the segregated account limit is an expenditure limit subject to strict scrutiny is a substantial

issue worthy of certification.” Id. at 18 (emphasis added). What, exactly, is the function of this

segregation, if not to limit the content of expenditures? In one sense, the FEC is correct: if the

question of whether strict scrutiny applies is insubstantial, that’s because the FEC’s position with

respect to the nature and function of the challenged provision is utterly frivolous. The current state

of First Amendment precedent, and for some time now, makes it exceedingly clear that expenditure

limits and all forms of content-based restrictions on speech are subject to strict scrutiny. Pretending

that post-2014 cromnibus, FECA’s restriction remains an unadulterated contribution limit, is

detached from the reality of the plain statutory text and the provision’s essential function.

IV. THE FEC DOES NOT ARGUE THAT FECA’S LIMITS ON CONTRIBUTIONS TO POLITICAL

PARTIES WOULD SURVIVE STRICT SCRUTINY.

The FEC has placed all its eggs in the “contribution limit” basket. The government does not

lose every strict scrutiny case, but here, it does not even bother making an effort to justify the law

under strict scrutiny. Perhaps the FEC recognizes that the fit between FECA’s expenditure limits,

which are plainly content-based restrictions on speech, and any legitimate anti-corruption interest, is

not as strong as that which sustains other laws against constitutional challenge. The FEC is

unprepared for, or perhaps resigned to, the inevitable outcome flowing from a recognition of the

FECA party limit’s new, post-cromnibus character.

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Case 1:16-cv-00121-BAH Document 27 Filed 10/19/17 Page 12 of 23
V. EVEN IF THE CHALLENGED PROVISION IS A PURE CONTRIBUTION LIMIT, THE GOVERNMENT

BEARS THE BURDEN OF ESTABLISHING THAT IT PASSES CLOSELY-DRAWN SCRUTINY.

The FEC suggests that the LNC’s facial challenge is foreclosed, because the Supreme Court

has “repeatedly” upheld “restrictions on political contributions . . . so long as the limits are set at

levels that allow candidates and political parties to amass the resources necessary to engage in

effective campaign advocacy.” FEC Br. at 1 (citation omitted). “[Contribution] limits would only be

invalid if they prevent candidates from amassing the resources necessary for effective campaign

advocacy.” FEC Br. at 24 (internal quotation marks omitted).

Putting aside for the moment whether the challenged provision is truly a pure contribution

limit (it is not, as discussed above), these are not correct statements of law. Neither is the FEC’s

related claim that “[a]s the LNC acknowledges and as explained above, the Supreme Court has

squarely held that limits on contributions to political party groups are subject to closely drawn

scrutiny and are constitutional.” FEC Br. at 12 (emphasis added).

The LNC has never acknowledged, and the Supreme Court has never held, “squarely” or

otherwise, “that limits on contributions to political party groups . . . are constitutional,” in the sense

that they are all constitutional. Some are, and some are not.

The “closely drawn” scrutiny to which pure contribution limits are held is still a form of

heightened scrutiny. The fact that some contribution limits have been upheld does not mean that all

contribution limits are per se constitutional. Contrary to the FEC’s sweeping claim of per se

constitutionality of contribution limits, the Supreme Court “has recognized . . . that contribution

limits might sometimes work more harm to protected First Amendment interests than their

anti-corruption objectives could justify.” Randall v. Sorrell, 548 U.S. 230, 247-48 (2006)

(plurality) (citations omitted) (striking down contribution limits).

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Whether the post-2014 cromnibus FECA limit passes “closely drawn” scrutiny—if that level

of scrutiny even applies—is plainly a matter of first impression. Nothing like the current version of

FECA has ever been litigated. The LNC is well within its rights to ask whether this version of a

contribution limitation is “so different in kind as to raise essentially a new issue about the adequacy

of [post-cromnibus FECA’s] tailoring to serve its purposes.” Nixon v. Shrink Mo. Gov’t Pac, 528

U.S. 377, 395 (2000). After all, the Supreme Court has always “understood contribution limits . . .

to ‘focus precisely on the problem of large campaign contributions -- the narrow aspect of political

association where the actuality and potential for corruption have been identified . . . .’” Id. n.7

(quoting Buckley, 424 U.S. at 28). FECA’s contribution limit, if it is just that, has abandoned this

focus. A $33,901 contribution may be illegal where a $339,000 contribution is just fine. Whether

the mechanisms of this scheme are “closely drawn” to an anti-corruption interest, and considering

the scheme’s particular harms, is a matter of first impression.

The anti-corruption purposes of a generic contribution limits are understood. The anticorruption purposes of a contribution limit that contains expressive purpose, content-based

expressive limitations, has yet to be revealed. The most that the FEC offers here is that Congress

might have thought this and could have found that, all the while admitting that political parties may

or may not value smaller or larger contributions for general or restricted purposes. This is “closely

drawn scrutiny?” The FEC also argues that the cromnibus expressive purpose limits are intended to

allow the political parties to raise more money, which is at once a circular argument (Congress

allowed additional money to come in so parties could raise more money), and ignores the fungible

aspect of money that allows the sort of widespread circumvention by the incumbent parties that the

FEC elsewhere complains the LNC should have engaged in as well.

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But while the cromnibus amendment’s legitimate purposes are, to be charitable, elusive, the

harm it visits is obvious: censorship offends First Amendment values. Period, full stop. And where

the rules favor fundraising for purposes needed most by incumbent parties, the playing field is tilted.

These harms are separate and distinct from the potential evil of a generic contribution limit,

whereby “candidates and political committees [are prevented] from amassing the resources

necessary for effective advocacy,” Buckley, 424 U.S. at 21, and they were not at issue in Buckley

(or any other case) because they are so novel. Buckley did not foreclose what it could not foresee, let

alone consider. The fact that contribution limits can impose multiple harms does not let Congress off

the hook because it has inflicted only one or some of these harms utilizing a new species of

contribution limit that incorporates expressive purpose limitations.

The LNC will not fully preview its D.C. Circuit brief here and burden this Court with

argument as to why the FEC is wrong in asserting that the post-cromnibus FECA limits pass closely

drawn scrutiny. Suffice it to say, there is absolutely nothing in the record—nothing—that reveals

any connection or rationale between the expressive purpose limitations and anti-corruption interests.

“Congress might have thought this and could have thought that” doesn’t cut it, especially as there is

nothing offered on the connection between corruption and expression for a particular purpose, and

the FEC has admitted that parties might well favor larger donations for restricted purposes.

Why should they not? Money is fungible. And with no sense of irony, the FEC’s loudest

complaint throughout this litigation is that the LNC shoud have preferred a larger, restricted

donation. Of course, the FEC plays fast and loose with the terminology, casually slipping back and

forth between “funds” and “contributions.” See FEC Br. at 22 (“the LNC admitted that it values

unrestricted funds more than those that may only be used for particular categories of expenses. If the

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LNC is correct that unrestricted contributions are more valuable . . . .”) (citation omitted) (emphasis

added). These are not the same thing. Unrestricted funds are always better than restricted funds. But

a large, restricted contribution may be preferable to a smaller, unrestricted contribution, if the

restricted contribution merely offsets fungible general account money that would have been spent on

the restricted purpose anyway. For example, the LNC may prefer an unrestricted $10,000 gift to a

$100,000 gift that can only be used on recounts and legal proceedings. Given their legal expenses,

the RNC and DNC would choose differently.

“[T]he plain text of section [30110] grants exclusive merits jurisdiction to the en banc court

of appeals.” Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013). That is where this case

belongs, and that is where the FEC should make its “closely-drawn scrutiny” argument in the

unlikely event of that being the correct standard of review.

VI. THE CROMNIBUS EXPRESSIVE PURPOSE LIMITATIONS HAVE NOT DONE

THE LNC MANY FAVORS.

Permeating the FEC’s defense of this case is the Orwellian notion that the LNC is somehow

ungrateful for having its speech restricted. How could the LNC possibly complain after Congress

“relaxed the burden of an annual contribution limit,” and the new law “obviously increases the

pool of funds that are potentially available”? FEC Br. at 1. “If anything, the segregated account

limits permit increased spending by parties by providing additional sources of funds they may use to

finance certain operations.” Id. at 15. “Far from reducing the resources available to national parties

to engage in campaign advocacy, the segregated account limits instead expand the parties’ ability to

amass resources by enlarging the potential pool of funds available to them.” Id. at 24.

This is an upside-down view of the First Amendment. The ability to express oneself on

political matters is not a privilege that Congress deigns to bestow upon political parties. Free speech

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is a pre-existing, natural right whose protection happens to be codified in our Constitution. Congress

does not create the “pool of funds that are potentially available.” But for the regulations—which the

government must bear the burden in defending—the LNC could raise and spend all the money it

wants in whatever way it wants. Until 2014, Congress had imposed a neutral contribution limit on

this right that courts had upheld, if not without controversy. The record is fairly obvious that

Congress, comprised of the two incumbent parties, has now created a scheme allowing its constituent

parties to raise vast sums of money that their smaller competitors cannot raise, leaving the LNC (and

others) in the constitutional dust.

Two unassailable facts, admitted by the FEC, tower above all others. First, “the maximum

amount of money that the government allows an individual to give the Libertarian National

Committee in a calendar year is $339,000.” LNC Exh. A, Dkt. 24-3, ¶ 10 (citing 52 U.S.C. §§

30116(a)(1), 30125; Exh. C, FEC’s Response to Request for Admission 26). Second, how the LNC

would use that money is subject to content-based restrictions. No, the LNC is not grateful that it

suffers content-based restrictions on 90% of the money that it might raise from an individual. That is

not a gift from Congress. It is a severe violation of the LNC’s First Amendment rights.

The baseline is freedom, not the previous regulation. What FECA used to provide is

irrelevant. Imagine if a city were to amend its noise ordinance to allow an additional two hours of

sound amplification, provided that those two hours of amplified sound were used exclusively to

discuss the city council. Would concert promoters be ungrateful for challenging the content-based

restriction on two hours of their speech? Or should they just be happy that they can express

themselves for an additional two hours, even if the content-based restrictions do not obviously

advance any noise-control interest?

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Nobody knows how Congress will react if the D.C. Circuit were to agree with the LNC’s

position. At a minimum, the playing field will at least be more level if Congress couldn’t favor the

incumbent parties’ spending priorities. For its part, the LNC suspects that Congress would raise the

contribution limit, if not to $339,000, then to something higher than the existing base limit of

$33,900 that the Republicans and Democrats found so constraining. The LNC might be proven

wrong as to how this plays out in the end, but, the FEC cannot establish that the cromnibus law is

the best that the LNC could hope to obtain. As the cromnibus regime is unconstitutional, it is not

irrational for the LNC to ask that it be rid of the scheme, and that Congress try again (if it wishes).

VII. AS THIS COURT CONFIRMED IN LNC I, THE LNC MAY CHALLENGE THE CONSTITUTIONALITY

OF FECA’S APPLICATION TO PARTICULAR BEQUESTS.

The FEC offers that “[i]f it is constitutional to apply contribution limits to bequeathed

contributions, as the Court of Appeals confirmed in 2014, then there is no plausible argument that it

is unconstitutional to apply that limit to the bequest at issue here.” FEC Br. at 25.

The argument is unserious. In Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154

(D.D.C. 2013) (“LNC I”), this Court certified a challenge to a particular bequest even as it held that

FECA may be applied to bequests as a general proposition. The FEC unsuccessfully complained in a

motion for reconsideration, and to this day it complains that this Court “[m]isperceiv[ed] the import

of broader arguments the Commission had made . . . .” FEC Br. at 8. The LNC respects the fact that

the FEC would rather not be sued, especially where it would be called upon to defend its more

aggressive and creative applications of federal election law, e.g., for fear of corruption from the

hereafter. The LNC could play this game, too, as certification of its broader categorical attack was

denied under a pre-Shapiro, pre-Holmes certification standard. But the LNC acknowledges the

reality of what has already been won and lost. It’s well-past time for the FEC to do likewise.

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The argument would ordinarily end here, but the LNC is constrained to respond to one of the

FEC’s more objectionable claims on this point. Yes, the LNC conceded, as it should have, that were

it to someday lose a substantially similar case, that loss would preclude similar cases. But that hasn’t

happened. And the LNC most certainly did not argue in LNC I that Judge Wilkins erred in certifying

the as-applied challenge concerning the Burrington bequest, and that he should have certified

nothing because he declined to certify a broader challenge. Here is the complete language from the

page cited by the FEC:

Indeed, were LNC to lose this case before the D.C. Circuit, and a subsequent suit were

brought involving a different bequest that is nonetheless similarly situated to the LNC here,

that case would likely be frivolous within the meaning of §437h. But LNC has not lost this

case, nor has any remotely similar case involving any bequest been decided by the Court

of Appeals. And were LNC to prevail before the D.C. Circuit, presumably no materially

similar cases would arise, as the Commission would conform its conduct to the Court’s

decision and implement rules for similar, non-corrupting bequests.

LNC v. FEC, D.D.C. No. 11-562, Dkt. 51 at 6 (citation omitted) (emphasis added).

This language remains true today. The LNC did not lose the challenge Judge Wilkins

certified with respect to the Burrington bequest. The case was declared moot before it could be

decided. It remains true that the Court of Appeals has never decided any “remotely similar case

involving any bequest.” It remains quite plausible, and not at all foreclosed, for a political party to

advance an argument as to why the FEC lacks a constitutionally-adequate basis (valid anticorruption concerns) to limit the money that may be accepted from a particular bequest.

To the extent that the FEC argues that the LNC has not sufficiently distinguished Shaber’s

bequest from one where anti-corruption concerns might apply, the arguments are at best premature.

This goes to the merits of the LNC’s claims, which are within the exclusive jurisdiction of the en

banc D.C. Circuit. Whether and to what degree Shaber’s bequest should be differentiated from

ordinary bequests, which questions necessarily include considerations of how and under what

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circumstances a bequest raises valid anti-corruption concerns, is precisely the sort of question that

the Act leaves to the en banc Court of Appeals. To the extent the LNC I opinion serves as a guide, it

indicates that Shaber’s bequest is not too different from Burrington’s. Burrington donated only a

small amount in his life to the LNC, $25.00. LNC I, 930 F. Supp. 2d at 170. Shaber donated more

consistently, but in nominal amounts. His $3,315 over the course of 24 years—average annual

donation, $138.13, LNC Exh. E—did not mark him as a big fish. Not surprisingly, as with

Burrington, LNC I, 930 F. Supp. 2d at 170, nobody at the LNC knew that Shaber would leave a

bequest to the party. LNC Exh. A, Dkt. 24-3, ¶ 70. Indeed, neither Shaber nor anyone related to him

or acting on his behalf has had any relationship with the LNC, its officers, board members, or

candidates, apart from Shaber’s contribution history. Id. ¶ 84. And aside from pursuing its

ideological and political mission, LNC has provided nothing of value to Joseph Shaber, or to anyone

else, in exchange for his bequest to the LNC. Id. ¶ 85.

3

Furthermore, as with Burrington, “there are no facts to indicate that the LNC solicited a

large bequest from” Shaber, “provided any benefit or special access to [Shaber] while he was alive,

or provides any special benefit or access to [Shaber]’s heirs or representatives now.” LNC I, 930 F.

Supp. 2d at 171. To say, as does the FEC, that the campaign finance laws should be afforded a

prophylactic effect, and may bar many contributions that are not, in fact, tainted by corruption, is all

well and good. It is also perfectly compatible with the acknowledgment that the dead are different,

and thus raise different indicia of potential corruption and a different level of concern from that

raised by the living. With a bequest, the corruption inquiry is wholly retrospective, and barring

Had Shaber been a more generous and active donor to the LNC during his life, he would

3

have left the FEC with a greater opportunity to conduct discovery into his relationship with the

party.

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supernatural intervention, the potential for quid pro quo activity is rather more limited, as is its

enforcement. Judge Wilkins’s opinion inherently recognizes that a bequest poses a rather different

situation than that of a living person who foreswears corruption attached to a large gift. The FEC

fails to acknowledge the distinction.

Along these lines, the FEC simply errs in asserting that “any First Amendment interest

the LNC has in receiving contributions is already reflected in the constitutional test the Supreme

Court has applied to uphold FECA’s contribution limits.” FEC Br. at 32. The Supreme Court never

held that political parties lack a First Amendment interest in receiving contributions. It only held that

the challenged versions of FECA did not infringe the rights of parties. Certainly the Supreme Court

never considered how it might apply that balance in the context of a particular bequest, let alone, in

combination with a content-based expenditure limit.

And of course, as the Supreme Court has explained to the FEC, “[i]n upholding [a BCRA

provision] against a facial challenge, we did not purport to resolve future as-applied challenges.”

Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) (per curiam).

VIII. THE FEC’S SUGGESTED EDITS TO THE PROPOSED QUESTIONS ARE IRRATIONAL.

Sensing that this case may not be “frivolous” after all, the FEC takes aim at two of the

LNC’s questions. But in seeking to re-write these questions, the FEC is re-writing the complaint, and

altering the LNC’s theory of the case. There is no valid reason to do so.

The second question asks:

Do 52 U.S.C. §§ 30116(a)(1)(B) and 30125, on their face, violate the First Amendment

rights of the Libertarian National Committee by restricting the purposes for which the

Committee may spend its money?

This question merely tracks the Complaint, which posits a facial challenge against 52 U.S.C.

§§ 30116(a)(1)(B) and 30125. See Complaint, Dkt. 1, ¶ 31 (“Because they favor, on their face, the

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acceptance of funds based on the content of a political party’s speech, 52 U.S.C. §§ 30116(a)(1)(B)

and 30125 violate the First Amendment speech and associational rights of the LNC and its

supporters”). Ever-resistant to the LNC’s essential theory of the case, the FEC wants to re-frame this

challenge as one that asks whether the LNC’s rights are violated “by permitting it to accept 300% of

the otherwise applicable contribution limit.” FEC Br. at 34.

The LNC’s third question asks whether “restricting the purposes for which the Libertarian

National Committee may spend the bequest of Joseph Shaber violate the Committee’s First

Amendment rights,” tracking its challenge to the “CONTENT-BASED RESTRICTIONS,”

Complaint, Dkt. 1, at 10 (Count Three), based on the LNC’s desire not “to spend the bulk of the

[Shaber bequest] on attorney fees, a convention, or a building,” id. ¶¶ 33, 34. The FEC would alter

this request, too, by asking whether the LNC’s rights are violated “by permitting it to accept 300%

of the otherwise applicable contribution limit from the bequest of Joseph Shaber”for segregated

purposes. FEC Br. at 35.

The FEC’s proposed edits are irrational and argumentative. Obviously, when someone is

being “permitted” to do something that he or she otherwise cannot ordinarily do, no rights are

violated. The FEC’s construction assumes that the default, background condition is a complete lack

of freedom. That may not be a surprising position for the FEC to hold, but it is a position that stands

completely outside the broad spectrum of how the First Amendment is understood in this country.

Stated simply, Americans presume that they may speak freely within the scope of a right that secures

political expression.

The FEC’s alternative construction is thus offensive to the LNC’s values, as well as to the

LNC’s right as a plaintiff to describe and define its conception of its rights and how they are being

violated. As discussed above, at 12-13, the LNC strongly rejects the notion that it is being

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“permitted” to do anything by a law that restricts the amount of money it can accept and what it

may do with the money. The government does not “permit” the LNC to enjoy First Amendment

rights. FECA is only, at best, an imposition on First Amendment rights. The questions here are

whether aspects of that imposition are constitutional. The LNC has framed these questions in an

accurate, direct, and neutral fashion.

CONCLUSION

FEC’s motion to dismiss should be denied. Plaintiff’s certification motion should be granted.

Dated: October 19, 2017 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)

Gura PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura

Alan Gura

Attorney for Plaintiff

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