UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LIBERTARIAN NATIONAL )

COMMITTEE, INC., )

) Civ. No. 11-562 (RLW)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) JOINT STATUS REPORT

)

Defendant. )

)

JOINT STATUS REPORT

Pursuant to the Court’s minute order dated February 21, 2013, the parties have met and 

conferred, and they now submit this joint status report briefly setting forth their joint and

respective positions on whether the Supreme Court’s decision to note probable jurisdiction in

McCutcheon v. FEC (No. 12-536) should affect further proceedings in this case. 

Plaintiff Libertarian National Committee, Inc. (“LNC”) and defendant Federal Election 

Commission agree that the Supreme Court’s action in McCutcheon should not delay this Court’s 

consideration of the LNC’s pending motion for certification pursuant to 2 U.S.C. § 437h and the 

Commission’s pending motion for summary judgment. 

The parties disagree, however, on whether the Supreme Court’s action in McCutcheon

will substantively affect the proceedings in this case.

Plaintiff’s Position

On February 19, 2013, the United States Supreme Court announced it would hear the 

merits of McCutcheon v. FEC. The Court’s decision amply demonstrates that the issues before 

Case 1:11-cv-00562-RLW Document 39 Filed 02/22/13 Page 1 of 5
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this Court remain live constitutional questions and therefore cannot be frivolous under the 

established interpretation of 2 U.S.C. § 437h.

McCutcheon is being heard on a direct appeal from this Court, where McCutcheon was 

understood as directly challenging the established dichotomy between contributions and 

expenditures adopted by the U.S Supreme Court in Buckley v. Valeo. The McCutcheon plaintiffs 

argued that the challenged contribution limits ought to be reviewed under strict scrutiny because 

they are a “burden on political speech.” Mem. in Support of Prelim. Inj., 5-6 McCutcheon v. 

FEC, No. 1:12-cv-01034, Doc. 8.1 (June 22, 2012). Those plaintiffs “expressly call[ed] for the 

reconsideration of Buckley” on this question to “preserve...[that] argument for the U.S. Supreme 

Court.” Id. at 6; 6 n.1.

In ruling against the McCutcheon plaintiffs, this Court “acknowledge[d that] the 

constitutional line between political speech and political contributions grows increasingly 

difficult to discern.” McCutcheon v. FEC, No. 1:12-cv-01034, slip op. at 6 (D.D.C. Sept. 28, 

2012). This Court further stated that the McCutcheon plaintiffs “raise[d] the troubling possibility 

that Citizens United undermined the entire contribution limits scheme” and noted that the case 

could “ultimately spur a new evaluation of Buckley.” Id. at 13.

Should the high court adopt the McCutcheon plaintiffs’ view that aggregate contribution 

limits affect “core political expression,” this would revolutionize the jurisprudence of 

contribution limits. McCutcheon Juris. Statement at 4. A re-interpretation of contribution limits 

as an act of political expression reviewable under strict scrutiny would obviously have great 

import on this case, which argues that “individuals acting in a testamentary capacity...are not 

exercising their associational rights, but their right of free speech in desiring to leave a political 

legacy.” First Amend. Compl., 6 LNC v. FEC, No. 1:11-cv-00562 Doc. 13 (May 27, 2011). 

Case 1:11-cv-00562-RLW Document 39 Filed 02/22/13 Page 2 of 5
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Furthermore, McCutcheon seeks to apply the reasoning of Randall v. Sorrell, 548 U.S. 

230 (2006), to federal contribution limits. See McCutcheon Juris. Statement at 29. Randall

involved unconstitutionally-low contribution limits to Vermont state-party committees. Randall, 

548 U.S. at 262. Using simple arithmetic, the McCutcheon plaintiffs seek to apply the reasoning 

of Randall to claim that the federal contribution limits are too low, in proportion to the federal 

electorate’s size. Id. at 30. McCutcheon and the RNC claim that the Randall-approved aggregate 

contribution limits would be $184,000 per biennium to political parties. Id. 

If the Supreme Court adopts McCutcheon’s Randall analysis, then the base contribution 

limits would be in doubt, and likely would be subject to challenge under the new 

Randall/McCutcheon analysis. The question is before the Court as Question Presented 3, and is 

therefore a non-frivolous claim in the eyes of the Supreme Court. See McCutcheon Juris.

Statement at i. This case presents a minor party—the LNC—that also challenges base 

contribution limits to parties, but in a different, narrower context. 

The Supreme Court’s decision to note probable jurisdiction in McCutcheon may 

positively impact the merits of Plaintiff’s claims when they are considered, on the merits, by the 

Court of Appeals. But the Supreme Court’s decision to review certain contribution limits to 

political parties, possibly under strict scrutiny, demonstrates that the issues presented in this case 

remain live constitutional questions that have not been legally foreclosed by Supreme Court 

precedent. Consequently, they are not frivolous, and this Court should act to quickly certify this 

case to the Court of Appeals.

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Defendant’s Position

It is the Commission’s position that the Supreme Court’s consideration of McCutcheon is 

unlikely to affect the merits of this case. McCutcheon involves a challenge to the Federal 

Election Campaign Act’s (“FECA”) aggregate contribution limits, 2 U.S.C. § 441a(a)(3), not the 

base contribution limits at issue here, 2 U.S.C. §§ 441a(a)(1)(B), 441i(a)(1). See McCutcheon v. 

FEC, --- F. Supp. 2d. ---, No. 12-1034, 2012 WL 4466482, at *5 (D.D.C. Sept. 28, 2012) (threejudge court) (“Plaintiffs do not . . . challenge the base contribution limits,[] so we may assume 

they are valid expressions of the government’s anticorruption interest.”). In sum, McCutcheon

involves a different kind of contribution limit under FECA and, in any event, does not involve 

bequests; thus, the Supreme Court’s decision to note probable jurisdiction in McCutcheon says 

nothing about whether the LNC has presented a substantial constitutional question. Accordingly, 

this Court should proceed to consider whether the merits of the LNC’s claim warrant review by 

the en banc Court of Appeals pursuant to section 437h.

Respectfully submitted,

/s/ Alan Gura Anthony Herman

Alan Gura General Counsel

Gura & Possessky, PLLC aherman@fec.gov

101 N. Columbus Street, Suite 405

Alexandria, Virginia 22314 Lisa J. Stevenson (D.C. Bar No. 457628)

703.835.9085/Fax: 703.997.7665 Deputy General Counsel – Law

alan@gurapossessky.com lstevenson@fec.gov

/s/ Allen Dickerson David Kolker (D.C. Bar No. 394558)

Allen Dickerson Associate General Counsel 

Center for Competitive Politics dkolker@fec.gov

124 S. West Street, Suite 201

Alexandria, Virginia 22314 Harry J. Summers

703.894.6800/Fax: 703.894.6811 Assistant General Counsel

adickerson@campaignfreedom.org hsummers@fec.gov

Case 1:11-cv-00562-RLW Document 39 Filed 02/22/13 Page 4 of 5
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COUNSEL FOR PLAINTIFF /s/ Kevin P. Hancock 

LIBERTARIAN NATIONAL Kevin P. Hancock

COMMITTEE, INC. Attorney

khancock@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463

February 22, 2013 (202) 694-1650

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