UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) 

 Plaintiff, ) Civ. No. 11-562 (RLW) 

 ) 

 v. ) 

 ) MOTION TO ALTER OR 

FEDERAL ELECTION COMMISSION, ) AMEND THE JUDGMENT 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION 

TO ALTER OR AMEND THE JUDGMENT 

Pursuant to Federal Rule of Civil Procedure 59(e), defendant Federal Election 

Commission respectfully moves this Court for an order altering or amending this Court’s March 

18, 2013 Order (Docket No. 42). That Order certified a question of the constitutionality of the 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57, to the en banc United States Court of 

Appeals for the District of Columbia Circuit pursuant to 2 U.S.C. § 437h. A Memorandum of 

Points and Authorities in support of the Commission’s motion and a Proposed Order are 

submitted with this motion. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

aherman@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 1 of 18
2 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

khancock@fec.gov 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

April 15, 2013 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 2 of 18
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) 

 Plaintiff, ) Civ. No. 11-562 (RLW) 

 ) 

 v. ) 

 ) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO ALTER OR AMEND 

 ) 

 Defendant. ) 

 ) 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION 

TO ALTER OR AMEND THE JUDGMENT 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

 

Kevin P. Hancock 

Attorney 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

April 15, 2013 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 3 of 18
i 

TABLE OF CONTENTS 

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

I. BACKGROUND ................................................................................................ 2 

II. THE COURT MAY ALTER OR AMEND A JUDGMENT TO 

CORRECT A CLEAR ERROR OF LAW .......................................................... 4 

III. CERTIFICATION OF A CONSTITUTIONAL QUESTION SOLELY 

ABOUT BURRINGTON’S BEQUEST WAS CLEAR ERROR ....................... 5 

A. The Court’s General Holding Regarding Bequests Compels the 

Conclusion That the Contribution Limit Also Validly Applies to 

Burrington’s Bequest .............................................................................. 5 

B. The Court’s Ruling Applies an Excessively Narrow Tailoring 

Test to the Contribution Limit Instead of a Closely Drawn Test .......... 11 

C. The Court’s Ruling Does Not Construe 2 U.S.C. § 437h Narrowly ..... 12 

CONCLUSION ............................................................................................................. 14 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 4 of 18
1 

Defendant Federal Election Commission (“Commission” or “FEC”) respectfully requests, 

pursuant to Federal Rule of Civil Procedure 59(e), that the Court alter or amend the March 18, 

2013 judgment (Docket Nos. 41-42) erroneously ruling that contributors can seek constitutional 

exemptions from the limits of the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-

57, for each individual contribution they make. 

The Court’s ruling granted in part the motion under 2 U.S.C. § 437h of plaintiff 

Libertarian National Committee, Inc. (“LNC”) to certify a question of the constitutionality of 

FECA to the en banc Court of Appeals for the District of Columbia Circuit. The LNC’s 

proposed question asked whether FECA’s $32,400 limit on the amount that a person can 

annually contribute to a national political party committee is constitutional when applied to a 

bequeathed contribution. This Court correctly declined to certify that question, holding that 

large bequests to parties, in general, threaten to cause corruption and the appearance of 

corruption. However, the Court also held that the contribution limit could be unconstitutional as 

applied to one bequest — a $217,734 bequest made by Raymond Groves Burrington to the LNC 

— because the record contained no evidence that this particular bequest was corrupt. And on 

that basis, the Court narrowed the LNC’s section 437h question and certified it to the en banc

Court of Appeals. These two rulings cannot stand together. 

The certification of that narrow question was clear error for three reasons. First, as the 

Court’s opinion recognizes, contribution limits are bright-line prophylactic rules designed to 

prevent the threat of corruption and the appearance of corruption, which stem from the 

opportunity for abuse that is inherent in all large contributions. Thus, the Supreme Court has 

held FECA contribution limits to be valid both facially and as applied to various classes of 

contributions while recognizing that most contributions do not in fact lead to quid pro quo

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2 

exchanges. The Commission is aware of no case holding that a party can obtain an after-the-fact, 

as-applied exemption from the contribution limits for one isolated contribution. And it was error 

to require that the Commission present evidence that the Burrington bequest was corrupting, 

because it has in fact been made in installments subject to the FECA contribution limit, which 

has been in effect at some amount for more than 35 years. 

Second, the Court’s ruling effectively requires the contribution limit to be narrowly 

tailored to only contributions that pose the greatest danger of corruption, contrary to the 

longstanding rule, recognized by this Court, that contribution limits are subject to intermediate 

scrutiny, not strict scrutiny. Finally, the Court’s ruling conflicts with the Supreme Court’s 

command that the availability of section 437h review should be carefully limited, since the ruling 

opens the door for most large contributors to seek individual exemptions from FECA’s limits in 

separate en banc Court of Appeals proceedings on the ground that their specific contributions 

will not cause corruption. 

 Accordingly, the Commission respectfully requests that the Court alter or amend its 

judgment to hold that the LNC has failed to present any substantial constitutional question under 

section 437h for review by the en banc Court of Appeals. 

I. BACKGROUND 

 Plaintiff LNC filed this action claiming that FECA’s annual limit on contributions to 

national political party committees violates the First Amendment when applied to bequeathed 

contributions.1

 (See First Am. Compl. (Docket No. 13).) In April 2007, LNC supporter 

                                                           

1

 2 U.S.C. § 441a(a)(1)(B) (“[N]o person shall make contributions . . . to the political 

committees established and maintained by a national political party . . . in any calendar year 

which, in the aggregate, exceed [$32,400].”) (hereinafter, “Contribution Limit” or “Limit”); 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 6 of 18
3 

Raymond Groves Burrington died, and his will contained a bequest for the LNC that amounted 

to $217,734. (FEC Mem. in Opp’n to Pl.’s Mot. to Certify Facts and Questions and in Supp. of 

FEC’s Mot. for Summ. J. (“FEC SJ Mem.”) at 3 (Docket No. 29).) To comply with the 

Contribution Limit, the estate deposited the bequest into an escrow account, from which it has 

since made annual, FECA-compliant contributions to the LNC. (Id.) 

 After the parties completed discovery, the LNC moved under 2 U.S.C. § 437h to have the 

following question of FECA’s constitutionality certified to the en banc United States Court of 

Appeals for the District of Columbia Circuit: 

Does imposing annual contribution limits against testamentary bequests 

directed at, or accepted or solicited by political party committees, violate 

First Amendment speech and association rights? 

 (Docket No. 25.) In response, the Commission concurrently moved for summary judgment and 

opposed certification on the ground that the LNC’s proposed claim was not substantial and thus 

did not warrant review by the en banc Court of Appeals. (Docket Nos. 28-29.) The Commission 

argued that unlimited bequeathed contributions to political parties would present the same threat 

of corruption and the appearance of corruption that the Supreme Court has held supports the 

validity of contribution limits generally. (FEC SJ Mem. at 15-35 (Docket No. 29).) 

 On March 18, 2013, the Court issued a Memorandum Opinion (Docket No. 41) and 

Order (Docket No. 42) granting the parties’ motions in part and denying them in part. First, the 

Court held that the LNC’s proposed section 437h question, as stated, is insubstantial. (Mem. Op. 

at 18 (Docket No. 41).) The Court found the Commission’s arguments that unlimited bequests 

would threaten corruption and its appearance “sensible and persuasive,” and the Court concluded 

                                                                                                                                                                                               

Disclosure Threshold, 78 Fed. Reg. 8530-02, 8532 (Feb. 6, 2013) (adjusting section 

441a(a)(1)(B)’s limit for inflation). 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 7 of 18
4 

that bequests “may very well raise the anti-corruption concerns.” (Mem. Op. at 19-20.) The 

LNC has appealed this portion of the Court’s ruling. (Docket No. 43.) 

 Despite finding the LNC’s question insubstantial, however, the Court certified the 

following narrowed and reframed question to the en banc Court of Appeals: 

Does imposing annual contribution limits against the bequest of Raymond 

Groves Burrington violate the First Amendment rights of the Libertarian 

National Committee? 

(Mem. Op. at 28.) The Court found persuasive the LNC's argument that the “Burrington bequest 

does not implicate any valid anti-corruption concerns,” since in the record “there are no facts to 

indicate that the LNC solicited a large bequest from Burrington, provided any benefit or special 

access to Burrington while he was alive, or provides any special benefit or access to Burrington’s 

heirs or representatives now.” (Id. at 27.) 

 As of the date of the Court’s ruling, the Burrington estate had contributed the entire 

$217,734 bequest to the LNC except for approximately $7,534. In each year from 2007 to 2013, 

the Burrington estate has contributed to the LNC the maximum (or almost the maximum) that 

FECA allows.2

 On January 1, 2014, the LNC will be able to accept the remaining balance of the 

Burrington bequest, as the LNC desires. (See First Am. Compl. ¶¶ 15, 24 (Docket No. 13).) 

II. THE COURT MAY ALTER OR AMEND A JUDGMENT TO CORRECT A 

CLEAR ERROR OF LAW 

 Under Rule 59(e), a party may file a motion to alter or amend a judgment. Such motions 

are properly granted if “the district court finds that there is an intervening change of controlling 

law, the availability of new evidence, or the need to correct a clear error or prevent manifest 

                                                           

2

 Reports reflecting the Burrington estate’s contributions to the LNC can be found by 

searching for identification number “C00255695” on the Commission’s website at 

http://www.fec.gov/finance/disclosure/candcmte_info.shtml. 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 8 of 18
5 

injustice.” Ciralsky v. C.I.A., 355 F.3d 661, 671 (D.C. Cir. 2004) (internal quotation marks 

omitted); see also Firestone v. Firestone, 76 F.3d 1205, 1208-09 (D.C. Cir. 1996) (finding Rule 

59(e) motion should have been granted to correct “erroneous” ruling). “Clear error” exists where 

there are either “errors of fact appearing on the face of the record or errors of law.” Ramseur v. 

Barreto, 213 F.R.D. 79, 81 (D.D.C. 2003) (explaining that Rule 59(e) relief is warranted if the 

movant “clearly establish[es] . . . a manifest error of law”) (internal quotation marks omitted). 

III. CERTIFICATION OF A CONSTITUTIONAL QUESTION SOLELY ABOUT 

BURRINGTON’S BEQUEST WAS CLEAR ERROR 

The Commission respectfully requests that the Court withdraw its certification of the 

narrow question of FECA’s constitutionality to the en banc Court of Appeals because it was 

based on a clear error of law. This Court correctly concluded that the Contribution Limit validly 

applies to bequeathed contributions to parties, and on that basis the Court declined to certify the 

LNC’s stated section 437h question. The Court nevertheless held that it is possible that the Limit 

could be invalid as applied to just one bequeathed contribution — Burrington’s bequest to the 

LNC. On this basis, the Court certified a narrowed section 437h question.3

 This unprecedented 

holding was erroneous for three reasons, as set forth below. 

A. The Court’s General Holding Regarding Bequests Compels the Conclusion 

That the Contribution Limit Also Validly Applies to Burrington’s Bequest 

This Court correctly held that the Contribution Limit validly applies to bequests to 

national party committees because bequests “may very well raise the same anti-corruption 

concerns that motivated the Buckley and McConnell Courts to dismiss a facial attack on 

contribution limits.” (Mem. Op. at 20; see also id. at 19-22.) The Limit promotes the anti-

                                                           

3

 The Commission does not challenge the Court’s authority to narrow and reframe a 

proposed section 437h question. (See Mem. Op. at 23-25.) 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 9 of 18
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corruption interests when applied to bequests, this Court explained, even though “there is not a 

record replete with well-documented problems associated with corruption from large bequests.” 

(Id. at 20.) That is because, as the Court emphasized, the limits are “‘preventative,’” given that 

“[t]he scope of the ‘pernicious practices’ involved in large direct contributions to political 

committees ‘can never be reliably ascertained.’” (Id. at 21 (quoting Citizens United v. FEC, 130 

S. Ct. 876, 908 (2010)).) 

For that same reason, specific evidence regarding actual and apparent corruption 

stemming from Burrington’s particular bequest — or any other particular bequest — should not 

be required in order to uphold application of the Contribution Limit to the bequest. As with any 

preventative, bright-line prophylactic rule, the Contribution Limit’s validity is not undermined 

by the fact that the Limit will inevitably regulate some conduct that does not directly implicate 

the underlying purpose of the rule. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 776 (1975) 

(explaining that while a prophylactic rule might prove “in particular cases to be ‘under-inclusive’ 

or ‘over-inclusive,’ in light of its presumed purpose, it is nonetheless a widely accepted response 

to legitimate [government] interests”). Thus, the Court’s ruling that the Contribution Limit could 

be invalid as applied to Burrington’s bequest even though it was valid as applied to bequests 

generally was clearly erroneous. (See Mem. Op. at 27-28.) 

As this Court’s opinion explains, the Supreme Court in Buckley acknowledged that “most 

large contributors do not seek improper influence.” Mem. Op. at 5; see Buckley, 424 U.S. at 29. 

Nevertheless, Buckley upheld the facial validity of contribution limits, explaining that 

[due to] the difficulty in determining suspect contributions, “Congress was 

justified in concluding that the interest in safeguarding against the 

appearance of impropriety requires that the opportunity for abuse inherent 

in the process of raising large monetary contributions be eliminated.” 

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(Mem. Op. at 5-6 (quoting Buckley, 424 U.S. at 30).) Accordingly, prophylactic contribution 

limits validly apply to all contributions, including those with no actual corrupt purpose or effect, 

in order to remove “the danger of actual quid pro quo arrangements” and “the appearance of 

corruption stemming from public awareness of the opportunities for abuse.” Buckley, 424 U.S. 

at 27 (emphases added); see also Citizens United, 130 S. Ct. at 908 (“[R]estrictions on direct 

contributions are preventative, because few if any contributions to candidates will involve quid 

pro quo arrangements.”); FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 210 (1982) 

(declining to “second guess a legislative determination as to the need for prophylactic measures 

where corruption is the evil feared” even though FECA limits contributions by corporations 

“without great financial resources, as well as those more fortunately situated”). 

Since Buckley, courts have entertained as-applied challenges to FECA’s contribution 

limits, such as the LNC’s challenge in this case. But in view of the prophylactic nature of the 

limits, we are not aware of a court ever holding, as this Court did, that a contribution limit could 

be struck down as applied to one contribution due to a lack of evidence showing that the isolated 

contribution was actually or apparently corrupting. Instead, to uphold the limits, courts have 

required only that the particular class of contribution at issue would present a danger of 

corruption and its appearance similar to that described in Buckley if the relevant limit were lifted. 

For example, McCutcheon v. FEC upheld the validity of aggregate contribution limits by 

pointing out scenarios where corruption would result if the limits were lifted, and did not 

examine whether the specific contributions made or planned would actually result in a quid pro 

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quo exchange. See --- F. Supp. 2d ---, No. 12-1034, 2012 WL 4466482, at *1-*6 (D.D.C. Sept. 

28, 2012) (three-judge court), prob. juris. noted, 133 S. Ct. 1242 (2013).4

 

Courts have almost universally rejected such as-applied challenges to FECA’s 

contribution limits — even in cases where the threat of corruption was concededly somewhat 

diminished — and have sometimes explicitly relied on the interest in maintaining clear, brightline prophylactic rules. See, e.g., FEC v. Beaumont, 539 U.S. 146, 159-60 (2003) (rejecting 

argument “that on a class-wide basis [nonprofit political advocacy] corporations pose no 

potential threat to the political system” when making contributions); FEC v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480, 500 (1985) (rejecting as-applied exemption for 

contributions made by nonprofit corporations even though they “might not exhibit all of the evil 

that contributions by [for profit] corporations exhibit,” in order to give “proper deference to a 

congressional determination of the need for a prophylactic rule”); Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 198 n.19 (1981) (rejecting as-applied exemption for contributions to a political 

committee that are earmarked for administrative support, rather than for influencing elections);

Buckley, 424 U.S. at 53 n.59 (rejecting as-applied exemption for contributions to candidates from 

“immediate family members,” even though the “risk of improper influence is somewhat 

diminished”); Goland v. United States, 903 F.2d 1247, 1258-59 (9th Cir. 1990) (rejecting asapplied exemption for contributions where the contributor keeps his identity a secret by using 

                                                           

4

 If contributors were permitted to seek individual as-applied exemptions from the 

contribution limits, it would undermine the clarity and dependability that prophylactic 

contribution limits provide. Contributors would be left to guess when they could permissibly 

make above-limit contributions, and there could be considerable uncertainty about whether they 

would face an FEC enforcement action as a result. Individual as-applied exemptions would also 

make the contribution limits administratively unworkable, as evidence of corruption and its 

appearance — likely in the form of depositions, document requests, and opinion polls — would 

be required to determine if each of the potentially thousands of desired above-limit contributions 

each year could lawfully be made. 

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straw donors, allegedly precluding the opportunity to exert undue influence); Republican Nat’l 

Comm. v. FEC, 698 F. Supp. 2d 150, 158-59 (D.D.C.) (three-judge court) (rejecting as-applied 

exemption for soft-money donations where the political party promises not to link its 

officeholders with the donors), aff’d, 130 S. Ct. 3544 (2010). Each court analyzed the danger of 

corruption for the entire class of contributors, and in no case did a court find that the 

circumstances of a particular contribution warranted an exemption. 

In other First Amendment contexts, the Supreme Court has likewise upheld objective, 

prophylactic rules that it acknowledged would regulate some speech that might not implicate the 

government interests involved in order to address the practical difficulty and chilling effect of 

case-by-case analysis. See, e.g., Hill v. Colorado, 530 U.S. 703, 729 (2000) (upholding law 

banning “unwelcome demonstrators” from coming closer than eight feet to people entering 

health care facilities, while acknowledging that the law’s “prophylactic approach . . . will 

sometimes inhibit a demonstrator whose approach in fact would have proved harmless”); Fla. 

Bar v. Went For It, Inc., 515 U.S. 618, 633 (1995) (upholding rule prohibiting lawyers from 

targeting victims for 30 days after an accident to protect grieving victims, even though some 

injuries or grief of some victims may be “relatively minor”).5

Here, the Commission argued extensively in its briefs that bequeathed contributions, if 

unlimited, would present the same risks of corruption and its appearance as other contributions. 

(See FEC SJ Mem. at 15-35 (Docket No. 29); FEC’s Reply Mem. in Supp. of Mot. for Summ. J. 

at 11-17 (Docket No. 38).) The Court agreed. Finding the Commission’s arguments “sensible 

                                                           

5

 It is not hard to imagine other troubling ramifications if bright-line prophylactic rules in 

the public interest are susceptible to case-by-case exemptions. For instance, traffic safety would 

quickly be undermined if a motorist were permitted to seek an exemption from a speed limit on 

the grounds that he or she had a good driving record and would promise to drive 120 miles per 

hour only on a major highway during the middle of the night. 

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and persuasive” (Mem. Op. at 20), this Court concluded that the Contribution Limit is valid as 

applied to bequests to national party committees, and thus the Court declined to certify the 

LNC’s section 437h question as stated (id. at 18-22). That ruling should have sufficed as a 

matter of law to uphold the prophylactic Limit as applied to all bequests, including Burrington’s 

bequest.6

 Cf. supra pp. 7-9 (citing cases in which courts upheld contribution limits against asapplied challenges because the class of contribution at issue threatens corruption and its 

appearance). If, as this Court correctly concluded, the prophylactic Contribution Limit promotes 

anti-corruption interests when applied to bequests, it therefore must be valid even though “most 

large contributors [of bequests] do not seek improper influence.” Buckley, 424 U.S. at 29. That 

the record contained “no facts to indicate” (Mem. Op. at 27) Burrington’s bequest resulted in a 

quid pro quo is beside the point. 

The limited evidence of corruption in the record relating to bequests generally, and to 

Burrington’s bequest in particular, is due “in large part [to the fact that] the FECA contribution 

limit has applied to [bequests] for the last 35 years.” (Mem. Op. at 21.) Striking down FECA as 

applied to Burrington’s bequest — which was not received in amounts exceeding the Limit — 

for lack of corruption evidence would make the Contribution Limit a victim of its own success. 

See, e.g., Wagner v. FEC, --- F. Supp. 2d ---, No. 11-1841, 2012 WL 5378224, at *7 (D.D.C. 

Nov. 2, 2012) (“Congress need not roll back its longstanding [contribution limit] and wait for a 

scandal to arise in order to provide evidence that [the limit] prevents corruption.”). The Limit on 

Burrington’s six-figure bequest properly served its purpose of preventing “the danger” of 

                                                           

6

 Thus, the FEC did respond to the LNC’s argument that Burrington’s bequest did not 

implicate anti-corruption concerns. (See Mem. Op. at 27.) Although there was not extensive 

explicit discussion of whether that specific bequest was corrupting, the Commission’s broader 

arguments generally subsume the narrower question of whether the Act could validly be applied 

to the Burrington bequest. 

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corruption and “the appearance of corruption stemming from public awareness of the 

opportunities for abuse” inherent in all large contributions. Buckley, 424 U.S. at 27 (emphases 

added). 

B. The Court’s Ruling Applies an Excessively Narrow Tailoring Test to the 

Contribution Limit Instead of a Closely Drawn Test 

 The Court properly recognized that contribution limits are examined to see whether they 

are “closely drawn to meet a sufficiently important governmental interest,” i.e., intermediate 

rather than strict scrutiny. (Mem. Op. at 14-15 (internal quotation marks omitted).) Under 

closely drawn scrutiny, the contribution limits need not be narrowly tailored to apply only to 

contributions that pose the highest danger of resulting in quid pro quo corruption. See Buckley, 

424 U.S. at 27-28. Buckley rejected the argument that the limits are improperly tailored because 

bribery laws provide a less restrictive means of addressing “proven and suspected quid pro quo

arrangements.” Id. (internal quotation marks omitted); see also Citizens United, 130 S. Ct. at 

908 (“The practices Buckley noted would be covered by bribery laws . . . if a quid pro quo

arrangement were proved. . . . The Buckley Court, nevertheless, sustained limits on direct 

contributions in order to ensure against the reality or appearance of corruption.”). But this 

Court’s ruling would require the Commission to prove an actual quid pro quo arrangement, or 

special access or benefits that make such an arrangement more likely, to justify applying the 

Contribution Limit to Burrington’s bequest. (Mem. Op. at 27-28.) The Court thus required 

something akin to narrow tailoring, a fit the Supreme Court held is unnecessary for contribution 

limits. Buckley, 424 U.S. at 27-28; Citizens United, 130 S. Ct. at 908. 

 The Court’s ruling also suggested that even if the Burrington bequest could in the future 

raise anti-corruption concerns, a future reviewing court would nevertheless need to decide 

whether the Commission could otherwise address those concerns through its “disclosure and 

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12 

rulemaking authority.” (Mem. Op. at 28 n.8.) But that sort of search for less restrictive means to 

address the government interest at issue is, again, a hallmark of narrow tailoring under strict 

scrutiny. 

This is clear error. Neither Congress nor the Commission was required to explore 

alternative methods for combating corruption and its appearance. See Beaumont, 539 U.S. at 160 

n.7; Cal. Med. Ass’n, 453 U.S. at 199 n.20; Buckley, 424 U.S. at 27-28. The Court’s scrutiny of 

each individual application of the Contribution Limit, and its suggestion that the Commission 

must explore means alternative to a contribution limit, are inconsistent with closely drawn 

review. The Court should correct this error of law. 

C. The Court’s Ruling Does Not Construe 2 U.S.C. § 437h Narrowly 

 Finally, the Court’s ruling conflicts with the Supreme Court’s teaching, recognized by 

this Court, that section 437h should be construed narrowly to minimize the number of cases 

coming before the en banc Court of Appeals: 

[T]he Supreme Court has stated that 2 U.S.C. § 437h should be construed 

narrowly, in part because it creates ‘a class of cases that command the 

immediate attention of . . . the courts of appeals sitting en banc, displacing 

existing caseloads and calling court of appeals judges away from their 

normal duties for expedited en banc sittings.’ 

(Mem. Op. at 12 (quoting Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982).) 

 This Court’s ruling that the Contribution Limit may be invalid as applied to one 

contribution absent evidence of actual corruption could well multiply the number of section 437h 

proceedings before the en banc courts of appeals. The ruling opens the door for any contributor 

who desires to make a contribution in excess of FECA’s limits to bring a section 437h action to 

put forth evidence that his or her particular contribution deserves an exemption under the First 

Amendment because it would not cause actual corruption. Since “most large contributors do not 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 16 of 18
13 

seek improper influence,” Mem. Op. at 5; see Buckley, 424 U.S. at 29, and “any individual 

eligible to vote” in a Presidential election may bring a section 437h claim, 2 U.S.C. § 437h, the 

increased workload for the en banc courts of appeals could well be significant. 

These potential proceedings could be lengthy and fact-intensive, given the necessity of 

discovery to ascertain evidence of corruption.7

 And they would likely occur with increasing 

frequency in the weeks leading up to a federal election and involve motions for preliminary 

injunctions and other requests for expedition, multiplying the complexity and costs of such 

litigation. 

These consequences further illustrate why courts have consistently treated FECA’s 

contribution limits as bright-line rules not subject to after-the-fact, case-by-case exceptions. 

Such exceptions would undermine the clarity the limits provide for contributors and create an 

administratively unworkable system for — and place a burden on — the Commission, district 

courts, and en banc courts of appeals. 

                                                           

7

 Take this case, for example. Because we are in a new calendar year and the certified case 

is narrower, all that is at stake before the Court of Appeals is whether the LNC can receive 

approximately $7,000 now or must wait until the end of this year, an off year in the election 

cycle. The question as narrowed thus may be factually insubstantial at this time and unworthy of 

certification. In the future, district courts would need to weigh how far over a given limit a 

prospective contribution must be in order for it to present a substantial question worthy of en 

banc consideration. This Court also indicated that the danger of corruption for the Burrington 

bequest could change over time (see Mem. Op. at 28 n.8), and that could potentially require relitigation of its permissibility.    

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 17 of 18
14 

IV. CONCLUSION 

 For the foregoing reasons, the Commission respectfully requests that the Court alter or 

amend its judgment to hold that the LNC has failed to present any substantial constitutional 

question under 2 U.S.C. § 437h for review by the en banc Court of Appeals. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

aherman@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

khancock@fec.gov 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

April 15, 2013 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 48 Filed 04/15/13 Page 18 of 18