United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2016 Decided April 26, 2016

No. 15-5120

LAURA HOLMES AND PAUL JOST,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01243)

Allen Dickerson argued the cause for appellants. With him

on the briefs was Tyler Martinez.

Erin Chlopak, Acting Assistant General Counsel, Federal

Election Commission, argued the cause for appellee. With her

on the brief were Daniel A. Petalas, Acting General Counsel,

Kevin Deeley, Acting Associate General Counsel, and Steve N.

Hajjar and Charles Kitcher, Attorneys.

Before: GARLAND,

* Chief Judge, HENDERSON, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

*

 Chief Judge Garland was a member of the panel at the time the

case was argued but did not participate in this opinion.

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Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Anyone eligible to vote

in a Presidential election may bring an action in “the appropriate

district court” to determine whether “any provision” of the

Federal Election Campaign Act is unconstitutional. 52 U.S.C.

§ 30110. If the requirements of Article III of the Constitution

are satisfied, the district court must “immediately” “certify all

questions of constitutionality of this Act to the United States

court of appeals for the circuit involved . . . sitting en banc.” Id.

Laura Holmes and her husband, Paul Jost, are eligible

voters residing in Florida. They sued the Federal Election

Commission claiming that a provision of the Act violated the

First and Fifth Amendments to the Constitution. The district

court, after a thorough recital of facts not in dispute,1 declined

to certify any questions and granted the Commission’s motion

for summary judgment on the ground that plaintiffs’ arguments

were frivolous because they were inconsistent with “settled

law.” Holmes v. Fed. Election Comm’n, 99 F. Supp. 3d 123,

124, 149 (D.D.C. 2015). The question on appeal is whether,

instead, the district court should have certified the constitutional

questions raised in the complaint to the en banc court of appeals.

1

 The district court initially certified both of plaintiffs’ questions

to this court sitting en banc. Holmes v. Fed. Election Comm’n, No.

14-1243, 2014 WL 6190937, at *3-4 (D.D.C. Nov. 17, 2014). At the

suggestion of the Federal Election Commission, the court remanded

the case so that the district court could develop “the factual record

necessary for en banc review.” Holmes v. Fed. Election Comm’n, No.

14-5281 (D.C. Cir. 2014) (order granting remand).

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I

The Federal Election Campaign Act prohibits people from

making contributions “to any candidate” for “any election for

Federal office which, in the aggregate, exceed [$2,600].”2 52

U.S.C. § 30116(a)(1)(A). The contribution limit applies

“separately with respect to each election,” 52 U.S.C.

§ 30116(a)(6), as a result of which a person may contribute

$2,600 to a candidate for each “general, special, primary, or

runoff election” in which the candidate participates. 52 U.S.C.

§ 30101(1)(A). Plaintiffs believe that this “per-election”

provision violates the First and Fifth Amendments.

In 2014, each plaintiff wanted to contribute $5,200 to a

Congressional candidate during the general election campaign. 

Plaintiffs could not do so because that amount exceeded the

$2,600 per-election limit. Neither plaintiff contributed to his or

her candidate during the primary election campaign. Plaintiffs

explain that they are “interested principally in supporting the

ultimate nominee[s] from [their] party.”

Plaintiffs sought a declaratory judgment that the Act’s perelection limit is unconstitutional as applied to their

contributions, and an injunction forbidding the Commission

from enforcing that limit. They argued that § 30116(a)(6) of the

Act violates the First Amendment’s protection of free speech

because the per-election structure “serves no anti-corruption

purpose . . ..” They also claimed that § 30116(a)(6) violates the

Fifth Amendment’s guarantee of equal protection when “a

2

 During the course of this litigation the contribution limits, which

are indexed for inflation, rose from $2,600 to $2,700. See Price Index

Adjustments for Contribution and Expenditure Limitations, 78 Fed.

Reg. 8530, 8532 (Feb. 6, 2013); 80 Fed. Reg. 5750, 5751 (Feb. 3,

2015).

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candidate who faces a primary challenge competes in the

general election against a candidate who ran unopposed or

virtually unopposed during the primary.”3

The district court ruled “that no constitutional questions

warrant[ed] certification [under § 30110] because the plaintiffs’

claims involve questions of settled law.” Holmes, 99 F. Supp.

3d at 149. In addition to declining to certify plaintiffs’

constitutional issues to the en banc court of appeals, the district

court granted the Commission’s motion for summary judgment

on the merits and dismissed plaintiffs’ claims. Id.

Plaintiffs appeal only the district court’s decision not to

certify their constitutional questions.

II

Under § 30110, district courts do not certify “frivolous”

constitutional questions to the en banc court of appeals. Cal.

Med. Ass’n v. Fed. Election Comm’n, 453 U.S. 182, 192 n.14

(1981). The role of the district court is similar to that of “a

single judge asked to seek convening of a three-judge court

under 28 U.S.C. § 2284 . . ..” Clark v. Valeo, 559 F.2d 642, 645

3

 In the district court, but not in this court, the Commission

argued that the case was moot because the elections were over. The

district court decided – and we agree – that the case fits “the

established exception to mootness for disputes capable of repetition,

yet evading review.” Holmes, 99 F. Supp. 3d at 138 (quoting Fed.

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462

(2007)). Plaintiffs’ claims could not “be fully litigated before the

[elections concluded],” id. (quoting Moore v. Hosemann, 591 F.3d

741, 744 (5th Cir. 2009)), and there was “a reasonable expectation [the

plaintiffs] will again be subject to [the Act’s] per-election contribution

limit” because they had “aver[red] that they intend to make such

contributions in the future.” Id. at 139.

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n.2 (D.C. Cir. 1977) (per curiam), aff’d sub nom. Clark v.

Kimmitt, 431 U.S. 950 (1977). The single judge in such a case

may refuse to convene a three-judge court if the plaintiff’s

claims are “wholly insubstantial,” “obviously frivolous,” and

“obviously without merit.” Shapiro v. McManus, 136 S. Ct.

450, 456 (2015) (quoting Goosby v. Osser, 409 U.S. 512, 518

(1973)). These phrases, the Court wrote in Shapiro, set a “low

bar.” Id.; see, e.g., Indep. Inst. v. Fed. Election Comm’n, No.

14-5249, 2016 WL 790894 (D.C. Cir. Mar. 1, 2016).4

This brings us to plaintiffs’ contention that § 30116(a)(6)

violates the First Amendment. Their argument begins with the

proposition that the “right to participate in democracy through

political contributions is protected by the First Amendment . . ..” 

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1441

(2014) (plurality opinion). This “constitutional guarantee has its

fullest and most urgent application precisely to the conduct of

campaigns for political office.” Monitor Patriot Co. v. Roy, 401

U.S. 265, 272 (1971). To protect this First Amendment right,

limitations on campaign contributions are unconstitutional

unless they target “quid pro quo corruption or its appearance”;

quid pro quo in this context “captures the notion of a direct

exchange of an official act for money.” 134 S. Ct. at 1441

(internal quotation marks omitted). The linchpin of plaintiffs’

argument is that contributing $5,200 to a candidate in a general

election in one lump sum cannot be considered corrupting

because Congress determined that contributing $5,200 to a

candidate in two installments ($2,600 for a primary election and

4

 In Judd v. Fed. Election Comm’n, 304 F. App’x 874, 875 (D.C.

Cir. 2008) (per curiam), we also analogized the district court’s role

under § 30110 to that of a district court in dismissing in forma

pauperis claims that are “frivolous or malicious” within the meaning

of 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S.

319, 324-25 (1989).

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$2,600 for a general election) is not corrupting. In support,

plaintiffs invoke the McCutcheon plurality’s statement 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; see also id. at 1442,

1448, 1451. The district court may be correct that

McCutcheon’s repeated references to a “$5,200” contribution

limit were just “shorthand . . . dicta” to describe the combined

limit “for the primary and general elections.” Holmes, 99 F.

Supp. 3d at 145. But then again, it may be that plaintiffs are

correct in treating those references as support for their position. 

We do not take sides on the merits of the dispute. It is enough

to say that plaintiffs’ argument is not “obviously frivolous” or

“obviously without merit.” Shapiro, 136 S. Ct. at 456.

The district court nevertheless declined to certify the First

Amendment issue on the ground that plaintiffs’ argument

contradicted “settled law.” Holmes, 99 F. Supp. 3d at 146, 149. 

This standard derives from a footnote in Cal. Med., 453 U.S. at

192 n.14, a case arising under the predecessor to § 30110. But

it is unclear whether the Supreme Court was referring to

“settled” questions of constitutional law or statutory

interpretation. Earlier in the footnote the Court spoke of cases

in which “the resolution of unsettled questions of statutory

interpretation may remove the need for constitutional

adjudication.” Id. Toward the end of the footnote, the Court

mentioned that the parties had not suggested that the statute at

issue could be interpreted to avoid the constitutional issue, to

which the Court added that the issues in the case were neither

“insubstantial nor settled.” Id.5

5

 Dicta in Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 1009

(D.C. Cir. 2013) (per curiam), stated that “the district court must

determine whether the constitutional challenges are frivolous or

involve settled legal questions,” citing inter alia the footnote in the

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The Court’s footnote raises several problems. For instance,

which court or courts must have “settled” the constitutional

issue? Suppose a panel of the court of appeals has rendered a

decision contrary to plaintiffs’ claims. Would that constitute

settled law? The district courts in the circuit would be bound to

follow the appellate panel’s decision, as would other three-judge

panels in the circuit. See LaShawn A. v. Barry, 87 F.3d 1389,

1395 (D.C. Cir. 1996) (en banc). Yet district court certification

under § 30110 is to the en banc court of appeals, which has the

authority to overrule not only a panel’s decision but also a

previous en banc decision. See id.

Suppose instead that “settled law” refers only to decisions

of the Supreme Court. See, e.g., Cal. Water Serv. Co. v. City of

Redding, 304 U.S. 252, 255 (1938) (per curiam) (“The lack of

substantiality in a federal question may appear . . . because its

unsoundness so clearly results from the previous decisions of

this Court as to foreclose the subject.” (italics added)). This

would make some sense, because the en banc court must adhere

to a Supreme Court decision that is directly on point even if

Supreme Court’s Cal. Med. opinion. The statement was dicta because

Wagner presented no such issue. The plaintiffs had disclaimed

jurisdiction under § 30110 and instead “invoke[d] only the district

court’s federal question jurisdiction” under 28 U.S.C. § 1331. Id. Our

court held that § 30110’s jurisdiction was exclusive and therefore

remanded the case. See id. at 1015-17. After the district court

complied with § 30110, we issued a detailed and lengthy en banc

opinion rejecting plaintiffs’ claims on the merits. See Wagner v. Fed.

Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015) (en banc), cert. denied

sub nom. Miller v. Fed. Election Comm’n, 136 S. Ct. 895 (2016). The

nature and length of our en banc opinion shows that the issues in

Wagner were not “settled law.” Neither of the two questions the

district court certified dealt with “settled law,” and, in contrast to the

present case, the Federal Election Commission in Wagner did not

argue otherwise.

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there are persuasive arguments against it. See Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989). From this, one might conclude that under § 30110, a

district court should decline to certify a question if the Supreme

Court precedent is so “settled” that the plaintiff would surely

lose in the en banc court. See, e.g., Khachaturian v. Fed.

Election Comm’n, 980 F.2d 330 (5th Cir. 1992) (en banc) (per

curiam); Goland v. United States, 903 F.2d 1247, 1257-58 (9th

Cir. 1990).

But what may appear to be “settled” Supreme Court

constitutional law sometimes turns out to be otherwise.6

McCutcheon and Citizens United v. Fed. Election Comm’n, 558

U.S. 310 (2010), may be seen as examples of the Court

disagreeing with “settled law” in the context of federal

campaign finance law. The dissenters in both cases certainly

thought so. See McCutcheon, 134 S. Ct. at 1465 (Breyer, J.,

dissenting) (“Today a majority of the Court overrules [the

Court’s previous] holding.”); Citizens United, 558 U.S. at 394

(Stevens, J., concurring in part and dissenting in part) (“The

majority’s approach to corporate electioneering marks a

dramatic break from our past.”). These cases, and others,

illustrate an important point not captured in the “settled law”

idea: it is entirely possible to mount a non-frivolous argument

6 See, e.g., GEORGE COSTELLO, CONG. RESEARCH SERV.,

RL33172, THE SUPREME COURT’S OVERRULING OF CONSTITUTIONAL

PRECEDENT: AN OVERVIEW (2005); Burnet v. Coronado Oil & Gas

Co., 285 U.S. 393, 406-08 (1932) (Brandeis, J., dissenting) (“[I]n

cases involving the Federal Constitution, where correction through

legislative action is practically impossible, this Court has often

overruled its earlier decisions. The Court bows to the lessons of

experience and the force of better reasoning, recognizing that the

process of trial and error, so fruitful in the physical sciences, is

appropriate also in the judicial function.”)

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against what might be considered “settled” Supreme Court

constitutional law. The Federal Rules of Civil Procedure

specifically recognize such a prospect. Under Rule 11(b)(2),

attorneys may not be sanctioned for presenting a “nonfrivolous

argument for extending, modifying, or reversing existing

law . . ..” FED. R. CIV. P. 11(b)(2); see also Burns v. George

Basilikas Tr., 599 F.3d 673, 677 (D.C. Cir. 2010) (quoting FED.

R.CIV. P. 11 advisory committee’s notes to 1993 amendments).

We therefore do not think a district court may decline to

certify a constitutional question simply because the plaintiff is

arguing against Supreme Court precedent so long as the plaintiff

mounts a non-frivolous argument in favor of overturning that

precedent. That the plaintiff will be fighting a losing battle in

the lower courts does not necessarily make the question

“obviously frivolous,” or “wholly insubstantial,” or “obviously

without merit.” Shapiro, 136 S. Ct. at 456. The plaintiff has to

raise the question to ensure that it is preserved for Supreme

Court review. See Yee v. City of Escondido, 503 U.S. 519, 533

(1992). And certifying the question fulfills § 30110’s evident

purpose of accelerating potential Supreme Court review. See

Cal. Med., 453 U.S. at 191; see also Harrison v. PPG Indus.,

Inc., 446 U.S. 578, 593 (1980).

Given our statement in Wagner, see note 5 supra, and the

uncertain meaning of the footnote in Cal. Med., we cannot fault

the district court for invoking “settled law” in declining to

certify plaintiffs’ First Amendment question under § 30110. 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), supposedly

did the settling. Although Buckley did not specifically “address

the constitutionality of setting contribution limits on a perelection basis,” the district court found that the Supreme Court

“contemplated and approved” the Act’s per-election contribution

limits. Holmes, 99 F. Supp. 3d at 144.

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We do not share this view of Buckley. In more than 200

pages of the majority opinion and dissents, the Justices writing

in Buckley mentioned the “per-election” structure only a handful

of times, and each time merely to “summarize[]” or define the

contribution limits provision in the Act. 424 U.S. at 7; see, e.g.,

id. at 24. In nearly 800 pages of briefs, this structure is

mentioned only for that same limited purpose.7

 The absence of

any analysis of the First Amendment question plaintiffs raise in

this case is not surprising. Of the 28 constitutional questions the

district court certified in Buckley, none touched upon the

subject. See Buckley v. Valeo, 519 F.2d 821, 898-901 (D.C. Cir.

1975) (en banc) (per curiam), aff’d in part, rev’d in part, 424

U.S. 1, and modified, 532 F.2d 187 (D.C. Cir. 1976).8

Even if the Supreme Court had “contemplated and

approved” the per-election contribution limit, as the district

court thought, that is not the proper standard under § 30110. 

Plaintiffs’ First Amendment question need not be certified if

their arguments “fail[] to raise a substantial federal question for

jurisdictional purposes.” Shapiro, 136 S. Ct. at 455. A few

7 See Buckley v. Valeo, 424, U.S. 1 (1976) (Nos. 75-436 & -437),

Brief of the Appellants, 1975 WL 173792; Brief for the Attorney

General as Appellee, 1975 WL 412237; Reply Brief of the Appellants,

1975 WL 171458; see, e.g., Brief for the Attorney General and the

Federal Election Commission, 1975 WL 171459, at *6 (“Individuals

are . . . restricted to $1,000 per election (or primary) to any particular

candidate.”); Brief for Appellees Center for Public Financing of

Elections, 1975 WL 171457, at *113 (“The [Act] permit[s] individuals

to contribute $1,000 per candidate per election . . ..”).

8

 The closest is Question 3, which asked whether the “statutory

limitation” on “the amounts that individuals or organizations may

contribute or expend in connection with elections for federal office”

violates the First Amendment. Id. at 898. But nowhere does this

question even mention that the limit applies on a per-election basis.

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scattered references to the per-election structure in Buckley with

no discussion of its constitutionality do not reach this threshold. 

Take, for instance, the plurality opinion in McCutcheon holding

the Act’s aggregate contribution limit unconstitutional under the

First Amendment. 134 S. Ct. at 1442. The plurality determined

that Buckley did not control because the aggregate limit “had not

been separately addressed at length by the parties,” and because

the Buckley opinion had “spent a total of three sentences

analyzing that limit.” Id. at 1446. Whatever superficial analysis

the aggregate limit received in Buckley, the per-election

structure received even less. The constitutionality of the Act’s

per-election structure is by no account “settled law.”

As to plaintiffs’ Fifth Amendment claim, they argue that

because the candidates they supported faced primary opposition

and then competed in general elections against candidates who

had faced no primary opposition, the Act “artificially favors

some contributors . . . over others.” This effect, they say, results

from Commission regulations permitting candidates to transfer

unused primary contributions to general election campaigns if

those contributions were “made before the primary election.” 11

C.F.R. § 110.1(b)(5)(ii)(B)(1); see also 11 C.F.R. § 110.3(c)(3). 

Therefore, according to plaintiffs, “a contributor who gives

$5,200 in earmarked contributions [($2,600 for the primary

election, $2,600 for the general election)] the day before a

primary election may functionally give $5,200 for general

election purposes.” They believe that this violates the Fifth

Amendment because it creates a contribution “asymmetry.” 

That is, plaintiffs may only contribute $2,600 to a candidate in

a general election while others may functionally contribute

$5,200 to a competing candidate who did not have to spend

anything in a primary.

The “asymmetry” plaintiffs describe is a function of the

regulations, not the Act. Section 30110 requires the district

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court to “certify all questions of constitutionality of this

Act . . ..” 52 U.S.C. § 30110 (italics added). Plaintiffs’ Fifth

Amendment claim is so clearly a challenge to regulations, and

therefore outside the scope of § 30110, that it “fail[s] to raise a

substantial federal question for jurisdictional purposes.” 

Shapiro, 136 S. Ct. at 455.9

Plaintiffs frame their Fifth Amendment contention as a

“challenge [to] the . . . timing of [the Act’s] contribution limits.” 

Their complaint and their briefs on appeal do focus on the

timing of contributions and on candidates’ ability to transfer

campaign funds. But the Act is silent on both subjects. The Act

merely sets contributions limits and applies those limits on a

per-election basis. See 52 U.S.C. § 30116(a)(1)(A), (a)(6). 

Plaintiffs’ objections are therefore a consequence of the

Commission’s regulations.

Plaintiffs try to tie the regulations to the Act by claiming

that the Commission “cannot write a regulation contrary to

statute.” This misses the point that a regulation may be

unconstitutional even if the statute it implements is not. The

Commission, like other administrative agencies, has leeway in

promulgating regulations to enforce statutory provisions. There

may be many different ways for an agency to do this. That one

such implementing regulation may be unconstitutional does not

render the statute itself unconstitutional. See Am. Fed’n of

Labor & Cong. of Indus. Orgs. v. Fed. Election Comm’n, 333

F.3d 168, 179 (D.C. Cir. 2003). Although the district court

declined to certify the Fifth Amendment issue on the ground that

plaintiffs’ supporting arguments contradicted settled law, we

9

 Complaints against Commission regulations follow the standard

procedure of a filing in the district court and, after a decision on the

merits or a dismissal, appeal to the court of appeals. See, e.g., Emily’s

List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009).

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reach the same result for a different reason – namely, that the

issue plaintiffs raise about the Fifth Amendment is a result of

regulations, not the Act.

III

The district court’s judgment declining to certify plaintiffs’

Fifth Amendment question is affirmed.10 The district court’s

decision not to certify plaintiffs’ First Amendment question and

to grant summary judgment to the Commission is reversed and

the case is remanded for the district court to certify that question

to the court of appeals en banc.

 So ordered.

10 We do not reach the question whether the district court

properly granted summary judgment for the Commission on plaintiffs’

Fifth Amendment claim. The only Fifth Amendment issue plaintiffs

presented to us on appeal was, in their words: “Whether the District

Court erred in declining to certify pursuant to 52 U.S.C. § 30110, as

involving ‘questions of settled law,’” the constitutional validity of the

statute under the Fifth Amendment.

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