ORAL ARGUMENT SCHEDULED: OCTOBER 31, 2016, AT 9:30 AM

No. 16-5194

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LAURA HOLMES AND PAUL JOST, 

Plaintiffs/Appellants, 

v.

FEDERAL ELECTION COMMISSION, 

Defendant/Appellee. 

On certification by the United States District Court for 

the District of Columbia under 52 U.S.C. § 30110

Plaintiffs’ Reply Brief

Allen Dickerson

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs/Appellants

September 30, 2016

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TABLE OF CONTENTS

Table of Authorities................................................................................................. iv

Glossary of Abbreviations ....................................................................................... vi

I. Statutes and Regulations.................................................................................. 1

II. Summary of Argument .................................................................................... 1

III. Argument ......................................................................................................... 2

A. The FEC mischaracterizes Plaintiffs’ challenge .......................................... 3

1. The FEC attempts to turn Plaintiffs’ as-applied claim into a strawman 

facial argument.......................................................................................... 3

2. The FEC attempts to cloud Plaintiffs’ challenge with irrelevant 

examples ................................................................................................... 7

3. The FEC attempts to turn Plaintiffs’ challenge to FECA into a 

regulatory challenge.................................................................................. 9

B. The FEC has evaded its burden, failing to demonstrate that bifurcating a 

non-corrupting contribution meets closely drawn scrutiny .......................10

1. The bifurcated structure is not closely drawn to any anti-corruption 

interest.....................................................................................................11

a. The FEC fails to show that there is a strong anti-corruption interest 

supporting bifurcation...............................................................11

b. The FEC fails to show that the bifurcated contribution 

requirements are closely drawn ................................................16

2. Having failed to show that the bifurcated contribution limits are closely 

drawn to the anti-corruption interest, the FEC introduces interests not 

recognized by the Supreme Court...........................................................21

3. Having failed to meet its burden under closely drawn scrutiny, even 

after insisting on a remand for fact-finding, the FEC seeks to shift its 

burden to the Plaintiffs............................................................................23

C. The FEC erroneously argues that Plaintiffs caused their own harm .........24

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IV. Conclusion .....................................................................................................26

Certificate of Compliance ........................................................................................27

Certificate of Service ...............................................................................................28

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TABLE OF AUTHORITIES1

Cases

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)..........

....................................................................................................................... 23, 25

Broadrick v. Okla., 413 U.S. 601 (1973)................................................................... 6 

Buckley v. Valeo, 424 U.S. 1 (1976)......................................................... 1, 2, 10, 17

Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021 

(9th Cir. 2009)......................................................................................................12

Chamber of Commerce of the United States v. SEC, 412 F.3d 133 (D.C. Cir. 2005)

..............................................................................................................................26

Citizens United v. FEC, 558 U.S. 310 (2010)..........................................................17

Coal. for Secular Gov’t v. Williams, 815 F.3d 1267 (10th Cir. 2016) ....................12

Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107 

(D.C. Cir. 1990) ...................................................................................................25

Consumer Fed’n of Am. v. FCC, 348 F.3d 1009 (D.C. Cir. 2003)..........................25

Davis v. FEC, 554 U.S. 724 (2008).................................................................. 22, 23

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)............................................5, 6

Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989) .................................................. 6 

Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ................................................6, 7

* Holmes v. FEC, 823 F.3d 69 (D.C. Cir. 2016) ................................ 1, 3, 10, 17, 18

Holmes v. FEC, 99 F. Supp. 3d 123 (2016).............................................................17

 1 Authorities upon which Plaintiffs rely are marked with asterisks.

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* McCutcheon v. FEC, 134 S. Ct. 1434 (2014)...........................................................

....................................................... 1, 2, 4, 7, 10, 11, 12, 14, 15, 16, 17, 21, 23, 24

McDonnell v. United States, 136 S. Ct. 2355 (2016) ..............................................15

Metro. Wash. Airports Auth. Prof’l Fire Fighters Ass’n Local 3217, etc. v. United 

States, 959 F.2d 297 (D.C. Cir. 1992) ................................................................... 6 

Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012)

..............................................................................................................................17

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ................................ 6 

NAACP v. Alabama, 357 U.S. 449 (1958)................................................................. 2 

Randall v. Sorrell, 548 U.S. 230 (2006)............................................... 19, 20, 21, 22

Va. v. Am. Booksellers Ass’n, 484 U.S. 383 (1988) ................................................25

Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442 (2008)................... 6 

Worley v. Cruz-Bustillo, 717 F.3d 1238 (11th Cir. 2013) .......................................17

Statutes

52 U.S.C. § 30110................................................................................................9, 18

Other Authorities

Nathaniel Persily & Jennifer Rosenberg, Defacing Democracy?: The Changing 

Nature and Rising Importance of As-Applied Challenges in the Supreme Court’s 

Recent Election Law Decisions, 93 Minn. L. Rev. 1644 (2009)........................... 6 

Regulations

11 C.F.R. § 110.1(b)(5)(ii)(B) .................................................................................19

11 C.F.R. § 110.3(c)(3)............................................................................................19

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GLOSSARY OF ABBREVIATIONS 

BCRA: Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 

(2002)

FEC or Commission: Federal Election Commission

FECA: Federal Election Campaign Act of 1971, Pub. L. 92-225, 86 Stat. 3 (1972), 

the Federal Election Campaign Act of 1974, Pub. L. 93-443, 88 Stat. 1263 

(1974), and Federal Election Campaign Act Amendments of 1976, Pub. L. 94-

283, 90 Stat. 475 (1976). 

JA: Joint Appendix

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I. STATUTES AND REGULATIONS 

All applicable statutes and regulations are contained in Plaintiffs’ Opening 

Brief. 

II. SUMMARY OF ARGUMENT

Individual contributions of $5,200 to candidates who have participated in a 

primary and a general election pose no cognizable risk of corruption. See 

McCutcheon v. FEC, 134 S. Ct. 1434, 1452 (2014). Plaintiffs Laura Holmes and 

Paul Jost do not seek to give more than that amount. Nevertheless, the Federal 

Election Campaign Act (“FECA”) requires that they divide that non-corrupting 

contribution and give at least half before the primary election. For that provision to 

pass closely drawn scrutiny, Defendant Federal Election Commission (“FEC” or 

“Commission”) must show that the artificial bifurcation of a non-corrupting 

contribution is closely drawn to the anti-corruption interest. See id. at 1445-46, 1452, 

1456-57. It has not done so. 

Instead, the FEC has sought to evade the constitutional issue at the heart of 

the certified question by mischaracterizing Plaintiffs’ claims and arguing against the 

resulting strawman. Plaintiffs seek neither a single uniform limit for the entire 

election cycle nor the right to give more than $2,600 to a candidate who has 

participated in only a single election period. Their challenge is not foreclosed by 

Buckley v. Valeo, 424 U.S. 1 (1976)—as this Court has already held. Holmes v. FEC, 

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823 F.3d 69, 74 (D.C. Cir. 2016). And the FEC’s attempt to ground its case, at this 

late stage, on new governmental interests ignores the fact that the Supreme Court 

has recognized only the anti-corruption interest, and has specifically rejected others 

that have been suggested from time to time, including those the Commission 

advances.

Cutting through these and other distractions, this case is simple. The FEC has 

not shown that the anti-corruption interest retains any force after other measures—

including disclosure requirements and contribution limits—are taken into account. 

And it has failed to show that the bifurcated contribution requirement does anything 

whatsoever to prevent corruption. Those are the Commission’s burdens, and it has 

failed to carry them. 

III. ARGUMENT

Rather than demonstrating that FECA’s bifurcated contribution limits, as 

applied to Plaintiffs, are closely drawn to the anti-corruption interest,

2 the 

 2 Without citing any authority, the FEC repeatedly refers to the standard of review 

as intermediate scrutiny. Def. Br. at 4, 14-15. The Supreme Court, however, has 

referred to the standard as “closely drawn” scrutiny. See Buckley v. Valeo, 424 U.S. 

1, 25 (1976); McCutcheon v. FEC, 134 S. Ct. 1434, 1444, 1445 (2014) (Roberts, 

C.J., controlling opinion); see also Buckley, 424 U.S. at 25, 64-65, 66, 75 (citing to 

the standard from NAACP v. Alabama, 357 U.S. 449 (1958), and variously calling it 

a closely drawn standard, exacting scrutiny, a strict test, or a strict standard of 

scrutiny). To avoid further confusion in this already-complex area of the law, 

Plaintiffs will refer to the standard using the terms chosen by the Supreme Court.

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Commission’s brief mischaracterizes both Plaintiffs’ challenge and its own burdens 

under heightened scrutiny. 

A. The FEC mischaracterizes Plaintiffs’ challenge

1. The FEC attempts to turn Plaintiffs’ as-applied claim into a 

strawman facial argument

The FEC attempts to turn Plaintiffs’ as-applied challenge into a facial 

challenge. Contrary to the FEC’s assertions, however, Plaintiffs have not asked for 

a uniform election-cycle system of limits, or for any other form of relief extending 

beyond their circumstances.

First, the FEC repeatedly suggests that Plaintiffs are seeking to tear down the 

entire per-election structure of FECA and replace it with “[u]niform per-electioncycle limits.” Def. Br. at 29, 38; see also id. at 30, 33, 35, 41, 49. Plaintiffs ask for 

no such thing. Moreover, this Court has already rejected the FEC’s repeated 

argument that this case represents a direct challenge to, and is thus foreclosed by, 

Buckley’ facial ruling concerning the general validity of contribution limits. See

Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 2016) (“We do not share this view of 

Buckley.”). 

 

In addition, the FEC argues that the district court’s factual findings must be reviewed 

for clear error. Whether that is the correct standard, which appears to be a matter of 

first impression, is irrelevant here, as the record consists almost entirely of legislative 

facts that required no evidentiary determinations by the district court. Moreover, the 

FEC has not challenged any of the district court’s findings. 

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Similarly, despite repeated briefing before the district court, this Court sitting 

en banc, and a panel of this Court, the Commission continues to mischaracterize 

Plaintiffs’ challenge as one to the specific amounts Congress has determined are 

non-corrupting, and to recast Plaintiffs’ challenge as a demand to contribute $5,200 

in any single election within an election cycle. See, e.g. Def. Br at 40. The FEC fails 

to cite a single instance, however, in which Plaintiffs have in fact requested such 

relief.3

 

Congress has determined that candidates who have participated in a primary 

election and a general election will not be corrupted by contributions from a single 

person totaling $5,200—$2,600 for each stage of the election—and Plaintiffs do not 

dispute that amount. See McCutcheon, 134 S. Ct. at 1452.

4 Plaintiffs have requested 

the ability to wait until the general election period—at a time when a candidate has 

passed through a primary, been selected as a party’s nominee, and become eligible 

to receive up to $5,200 from any individual contributor—and donate the total noncorrupting contribution at that time. No more. 

 3 Given that this is not the relief requested, the FEC’s argument that ruling for 

Plaintiffs would require the Court to usurp legislative authority, see Def. Br. at 49, 

is a red herring. 

4 Unless otherwise noted, all citations to McCutcheon are to the Chief Justice’s 

controlling opinion. 

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Plaintiffs are not challenging the per-election limits, or asking to give $5,200 

in any election (including the primary itself). See Def. Br. at 16, 38, 40-41, 48. They 

are not seeking to donate $5,200 during the general election without respect to a 

candidate’s having participated in a primary, see id., nor to limit candidates who 

have participated in both a primary and a primary runoff to only $5,200 in total 

contributions, see id. at 29. And the FEC’s effort to extend this case to the 

extraordinarily rare occurrence of elections beyond the general election is entirely 

unsupported and an obvious distraction. Id. at 26-32. In short, none of the exotic 

situations upon which the FEC relies is contemplated by the Verified Complaint.

Second, the FEC claims that Plaintiffs’ challenge is not as-applied because 

Plaintiffs’ relief would reach beyond “their proposed 2014 general-election 

contributions.” Def. Br. at 49-50; see also id. at 16-17.5 But relief does not cease to 

be as-applied merely because a plaintiff may use it later in similar circumstances. 

 5 To the extent the FEC’s references to the 2014 general-election campaign 

constitute a veiled suggestion of mootness, see Def. Br. at 49, this case “fit[s] 

comfortably within the established exception to mootness for disputes capable of 

repetition, yet evading review,” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 

(2007). As with most cases involving election-law challenges, because of the short 

timeline surrounding elections, “the challenged action is in its duration too short to 

be fully litigated prior to cessation or expiration.” Id. (internal quotation marks 

omitted). Moreover, “there is a reasonable expectation that [Plaintiffs] will be 

subject to the same action again.” Id. (internal quotation marks omitted). FECA’s 

bifurcated contribution limits have not changed, and Plaintiffs “wish to contribute to 

individual candidates after their primaries.” JA 12, ¶ 18; see also id. at 14, ¶ 26. 

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See Nathaniel Persily & Jennifer Rosenberg, Defacing Democracy?: The Changing 

Nature and Rising Importance of As-Applied Challenges in the Supreme Court’s 

Recent Election Law Decisions, 93 Minn. L. Rev. 1644, 1647 (2009) (noting that the 

remedy in as-applied actions is to “excise the plaintiff and those similarly situated 

from the statute’s constitutional reach”); cf. FEC v. Wis. Right to Life, Inc., 551 U.S. 

449, 469-70 (2007) (creating entire class of ads to which as-applied relief applied); 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th Cir. 2008) (holding statute 

“unconstitutional as applied to [plaintiff] and all similarly situated entities” 

(emphasis added)); Fender v. Thompson, 883 F.2d 303, 305 (4th Cir. 1989) (same). 

That is, a challenge ceases to be as-applied when the requested relief extends to 

parties that are not similarly situated. This case does not do so. 

It would, of course, benefit the FEC’s case if it could recast Plaintiffs’ 

challenge as a facial one. The burden would then switch to Plaintiffs, requiring them 

to show that FECA had no “plainly legitimate sweep” justifying its burdens. Gordon 

v. Holder, 721 F.3d 638, 654 (D.C. Cir. 2013) (quoting Wash. State Grange v. Wash. 

State Repub. Party, 552 U.S. 442, 449 (2008)); Metro. Wash. Airports Auth. Prof’l

Fire Fighters Ass’n Local 3217, etc. v. United States, 959 F.2d 297, 305 (D.C. Cir. 

1992) (quoting Broadrick v. Okla., 413 U.S. 601, 615 (1973)). But, such is not the 

case. Plaintiffs have brought an as-applied challenge, and it is the FEC’s burden to 

“demonstrate[] a sufficiently important interest and [show that the law] employs 

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means closely drawn to avoid unnecessary abridgement of associational freedoms.” 

McCutcheon, 134 S. Ct. at 1444 (internal quotation marks omitted).

2. The FEC attempts to cloud Plaintiffs’ challenge with irrelevant 

examples 

Despite having failed to point to any relief Plaintiffs have requested beyond 

their circumstances, the FEC rests its argument upon a few rare occasions having 

nothing to do with Plaintiffs’ situation. Def. Br. at 26-32. But whatever utility 

FECA’s structure may have in those unusual circumstances, it has none here. After 

all, even in a facial challenge, a law must have a legitimate sweep, and not simply

be helpful in a few rare circumstances. See Gordon, 721 F.3d at 654. Here, the FEC’s 

evidence fails to show that the law is constitutional in Plaintiffs’ circumstances, even 

if it might be constitutional in others. 

The FEC suggests that relief from FECA as applied to Plaintiffs must be 

denied because FECA accounts for a “lack of uniformity” in federal elections. Def. 

Br. at 26-27. The Commission notes that some states permit special elections, but it 

fails to show that such procedures are anything but exceptions to the overwhelming 

majority of electoral contests that happen each election cycle. See id. at 32 (noting 

126 special elections over 12 years, but failing to compare that to the total number 

of election contests). Moreover, even taking the FEC’s examples at face value, none 

of them describes Plaintiffs’ challenge, as there is no variance from the standard

election process here.

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For instance, the FEC describes one situation in which a challenger in 

Mississippi faced a primary and runoff election before squaring off against his 

opponent in the general election, an incumbent who was able to slide through the 

primary election. Id. at 29. The FEC complains that Plaintiffs’ requested relief would 

have required the two general election candidates to be subject to the same limits for 

the entire cycle. But this scenario is outside Plaintiffs’ circumstances, where the 

candidates all passed through only one primary and one general election. 

Furthermore, the Commission fails to explain how Plaintiffs’ requested relief 

would require those two Mississippi candidates to be subject to the same 

contribution limits. Plaintiffs merely request that, where a candidate has been 

through a primary and a general election, and thus entitled to receive $2,600 for each 

of those elections, that contributors be able to give that sum all at once during the 

general election. In a different case, one involving more than a primary and general 

election, a court might extend the logic of Plaintiffs’ requested relief. The most 

logical way of doing so would be to permit a contributor to give $5,200 for the 

primary and general elections, as Plaintiffs request, and an additional $2,600 for a 

special election, should one occur. 

The same considerations apply to the 2015-2016 Congressional races in 

Oklahoma, Georgia, and Texas, as well as the 2008 Georgia Senate race, which the 

FEC has pointed to as elections where only one of the candidates faced a primary 

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runoff. Def. Br. at 29-32. Nothing about Plaintiffs’ requested relief would have 

prevented the Georgia Senate race candidates from receiving additional funding for 

their post-general election runoff because—again—Plaintiffs have not requested an 

election-cycle limit. But see id. at 30. 

3. The FEC attempts to turn Plaintiffs’ challenge to FECA into a 

regulatory challenge

The FEC argues that Plaintiffs are challenging FEC regulations rather than 

FECA. Id. at 46-48. Notably, however, the FEC fails to provide a single citation to 

Plaintiffs’ opening brief where they have done so. This is because Plaintiffs have 

chosen to be faithful to the law of the case, which is that regulatory challenges are 

outside the scope of 52 U.S.C. § 30110 and thus not permitted as part of their

constitutional challenge. 

The FEC permits checks of up to $5,200 in certain circumstances, and 

Plaintiffs therefore cite to FEC regulations as evidence that the Commission 

recognizes that donating $5,200 in a single check is not corrupting. See, e.g.,

Opening Br. at 23-24, 27-28. The FEC’s only other response to this evidence is to 

misconstrue it, suggesting that it is an argument for a single election-cycle 

contribution limit. Def. Br. at 48. As already explained, that is not Plaintiffs’ request.

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B. The FEC has evaded its burden, failing to demonstrate that bifurcating a 

non-corrupting contribution meets closely drawn scrutiny

In this as-applied challenge, the FEC has the burden of showing “a sufficiently 

important interest and [that it has employed] means closely drawn to avoid 

unnecessary abridgement of associational freedoms.” Buckley, 424 U.S. at 25. The 

Supreme Court “has identified only one legitimate governmental interest for 

restricting campaign finances: preventing corruption or the appearance of 

corruption,” McCutcheon, 134 S. Ct. at 1450, and has limited that interest to quid 

pro quo corruption and its appearance, id. at 1451. Consequently, the FEC must 

demonstrate a close fit between FECA’s bifurcated contribution requirements and 

the anti-corruption interest. Id. at 1444-45. 

As a panel of this Court has already explained, and contrary to the FEC’s 

assertions, see, e.g., Def. Br. at 38, the per-election division of contribution limits 

was not foreclosed by Buckley—in fact, it was barely mentioned by the Buckley 

Court. Holmes, 823 F.3d at 74-75, 76. Consequently, the FEC must show, in this 

case and on these facts, that when a candidate has passed through a primary election, 

is sitting in the general election as a party nominee, and is thus eligible to receive up 

to $5,200 from any individual without triggering the anti-corruption interest, that 

FECA’s compelled bifurcation of that $5,200 non-corrupting contribution is closely 

drawn to the anti-corruption interest. 

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After cutting through its attempts to redefine Plaintiffs’ challenge, the FEC 

has failed to meet this burden.

1. The bifurcated structure is not closely drawn to any anticorruption interest

The FEC has failed to meet the closely drawn standard in two ways: it has not 

shown that there is an anti-corruption interest supporting the bifurcated limits, and 

it has not shown that FECA’s bifurcation requirements are closely drawn to any anticorruption interest. 

a. The FEC fails to show that there is a strong anti-corruption 

interest supporting bifurcation

The Supreme Court has recognized only one “sufficiently important interest” 

for upholding contribution limits: “preventing corruption or the appearance of 

corruption.” McCutcheon, 134 S. Ct. at 1444, 1450. But, after taking into account 

other anti-corruption measures, the FEC has failed to demonstrate that there is any 

remaining anti-corruption interest sustaining the bifurcated contribution 

requirements’ limitation on associational freedom. Instead, the FEC responds with 

conclusory statements about the strength of the interest. 

For example, the FEC cites to Supreme Court decisions upholding the 

existence of contribution limits and then states, with no discussion or support, that 

“[f]ocusing in on the limit’s operation per election does not alter the important 

governmental interest.” Def. Br. at 23-24. But this begs the question: what precisely 

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is the governmental interest? The controlling opinion in McCutcheon explained that 

there remained no cognizable risk of corruption to support other anti-corruption 

prophylaxes once the base limits and disclosure laws were taken into account. 

McCutcheon, 134 S. Ct. at 1452, 1458; cf. Coal. for Secular Gov’t v. Williams, 815 

F.3d 1267, 1278 (10th Cir. 2016) (noting that the strength of the informational 

interest varies depending on the amount of information the Government’s regulation 

would provide); Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 

556 F.3d 1021, 1032 (9th Cir. 2009) (same). Accordingly, the FEC has failed to 

provide any evidence that any portion of its anti-corruption interest remains after the 

base limits have gone to work.

In still another instance, the FEC seems to state in conclusory fashion that the 

corruption concern is the same when contributors make “[g]eneral-election 

contributions in amounts that are double the statutory limit, regardless of whether 

[they made any] primary contributions.” Def. Br. at 50. That is, the FEC appears to 

argue that, if Plaintiffs contributed $5,200 during the general election but nothing 

during the primary election, it would “raise the same concerns as similar 

contributions” by someone who also “ma[d]e primary election contributions.” Id. 

This is a stunning statement. The FEC appears to believe that the risk of 

corruption to a candidate has nothing to do with the amount actually contributed to 

that candidate. This concession undermines the entire rationale for contribution 

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limits in the first place; it certainly undermines the FEC’s case. After all, if the 

Commission claims that contributing $7,800 ($2,600 in the primary election and 

$5,200 in the general) is precisely as dangerous as contributing $5,200 (nothing in 

the primary and $5,200 in the general), the FEC is rejecting Congress’s guidance as 

to the funding level at which an unacceptable corruption risk develops.6 If that is so, 

it is not clear on what basis it can claim that Plaintiffs’ planned contributions would 

pose any additional risk of corruption.

What is more, this assertion rests on fact-dependent claims that beg for some 

sort of evidence or substantiation, especially as the Commission appears to reject 

Congress’s supposed expertise. Certainly, the Commission should be required to 

provide some evidence to substantiate the counterintuitive claim that the corruption 

concern is the same when a contributor gives 1) $5,200 during the general election 

campaign and $0 during the primary and 2) $5,200 during the general election 

campaign and $2,600 during the primary. But, despite insisting that the case be 

remanded for further fact-finding, the FEC failed to provide any evidence that the 

corruption concern is the same in these instances, or that there is a heightened risk

when a person contributes $5,200 during the primary election or contributes $2,600

the day before the primary and $2,600 the day after. 

 6 The Commission has accused Plaintiffs of doing precisely the same thing but, as 

already explained, that charge is unfounded. See supra at 4. 

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The FEC’s view that the corruption interest is independent of the funds 

contributed is representative of broader efforts by the FEC, and the Government in 

general, to police in the name of corruption the entire relationship between citizens 

and their public servants. For example, the FEC’s brief appears to reject any 

constraint to the anti-corruption interest. That is, rather than demonstrate that 

FECA’s bifurcation provisions are sustained by the anti-corruption interest—as 

constrained by the Supreme Court to quid pro quo corruption or the appearance of 

quid pro quo corruption, see McCutcheon, 134 S. Ct. at 1450—the FEC attempts to 

argue that Plaintiffs have impermissibly limited the reach of the anti-corruption 

interest to just quid pro quo corruption. Def. Br. at 20-24. 

Despite the Government’s repeated attempts to expand the scope of what 

might constitute corruption or its appearance, it has been repeatedly rebuffed. In 

McCutcheon, for example, the controlling opinion told the FEC that the quid pro quo 

limitation of the anti-corruption interest applies to both corruption and its 

appearance: “And because the Government’s interest in preventing the appearance 

of corruption is equally confined to the appearance of quid pro quo corruption, the 

Government may not seek to limit the appearance of mere influence or access.” 134 

S. Ct. at 1451 (emphasis added); see also id. (“The line between quid pro quo

corruption and general influence may seem vague at times, but the distinction must 

be respected in order to safeguard basic First Amendment rights.”). 

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Thus, because the limitation to quid pro quo corruption applies to both 

corruption and its appearance, the explanation of the scope and limitations of quid 

pro quo corruption in McDonnell v. United States, 136 S. Ct. 2355 (2016), is directly 

relevant here. But see Def. Br. at 21-22. Although it may limit the FEC’s power, the 

Commission must nonetheless respect McDonnell’s core point: corruption cannot be 

interpreted to encompass the whole of the relationship between contributing 

constituents and their representatives. There, as here, “[t]he Government’s” desire 

to secure an expansive interpretation of corruption “could cast a pall of potential 

prosecution over these relationships.” Id. at 2372. 

Furthermore, McDonnell is useful in illuminating the type of argument the 

FEC is making here. In McCutcheon, the Chief Justice stated that the contribution 

limits were merely a prophylaxis, and that other steps to further protect against 

corruption, like the artificial bifurcation of contributions here or the aggregate limits 

there, were merely prophylaxes on prophylaxes. 134 S. Ct. at 1458. In particular, the 

Chief Justice in McCutcheon stated that contributions of $5,200 “or less do not create 

a cognizable risk of corruption,” and that, given that “there is no corruption concern 

in giving . . . candidates up to $5,200 each,” it was difficult to see how additional 

restrictions built atop that $5,200 limitation could be constitutional. Id. at 1452; see 

also id. at 1448 (noting Congress’s decision to allow individuals to “give up to 

$5,200” to a candidate and that an unconstitutional prophylaxis on prophylaxis 

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further limited contributions even though “all contributions fall within the base 

limits Congress views as adequate to protect against corruption”). 

Notwithstanding McCutcheon’s controlling opinion, the FEC here argues that 

a party may nonetheless be corrupted on occasion, regardless of all the prophylaxes 

in the world, and the Commission cites to several newspaper articles outside the 

district court’s factual findings to that end. Def. Br. at 44-45. It may be true that 

corruption still happens occasionally despite effective prophylaxes, but that is not an 

argument to sustain a general restriction on the “right to participate in the public 

debate through political expression and political association.” McCutcheon, 124 S. 

Ct. at 1448; see also id. at 1452 (“And—importantly—we have never accepted mere

conjecture as adequate to carry a First Amendment burden.” (internal quotation 

marks omitted)). It is an argument for prosecuting actual corruption. 

b. The FEC fails to show that the bifurcated contribution 

requirements are closely drawn

Even assuming that the FEC has shown a correct understanding of the anticorruption interest, the FEC must still show that FECA’s bifurcated contribution 

limits are narrowly drawn in Plaintiffs’ circumstances. In failing to address the law’s 

fit, the FEC incorrectly—and contrary to this Court’s holding—argues that the 

question was foreclosed by Buckley. Moreover, it blatantly refuses to address the 

question, instead labeling it “absurd.” 

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Plaintiffs have simply asked, in circumstances where Congress and the courts 

have determined that contributions of up to $5,200 are non-corrupting, that the FEC 

prove a substantial relation between the anti-corruption interest and requiring that 

contribution to be split into smaller sums made at different times.

7 The FEC’s 

principal response to this question is that Plaintiffs’ challenge is foreclosed because 

Buckley upheld the per-election limit. This is an argument that the FEC has 

repeatedly raised, and which the district court accepted. Def. Br. at 15, 17; JA 173. 

This Court, however, has rejected the idea that Buckley “‘contemplated and 

approved’ the Act’s per-election contribution limits.” Holmes, 823 F.3d at 74 

(quoting Holmes v. FEC, 99 F. Supp. 3d 123, 144 (2016)); id. (“We do not share this 

view of Buckley.”). 

 7 Courts have typically applied strict scrutiny to bans on speech and expenditure 

limits, see, e.g. Citizens United v. FEC, 558 U.S. 310, 340 (2010) and McCutcheon, 

134 S. Ct. at 1444, and applied to other regulations what they call exacting scrutiny, 

which requires a substantial relation between a law and a sufficiently important 

interest, see, e.g., Citizens United, 558 U.S. at 366. In McCutcheon, the Chief Justice 

calls the former standard exacting scrutiny and the latter standard, which he applies 

to contribution limits, the closely drawn standard. 134 S. Ct. at 1444. Regardless of 

the name, the latter standard requires a “substantial relation between the 

governmental interest and the” burdens the law imposes upon the parties. Buckley, 

424 U.S. at 64-65. That is, “[t]hough possibly less rigorous than strict scrutiny, 

exacting scrutiny is more than a rubber stamp.” Worley v. Cruz-Bustillo, 717 F.3d 

1238, 1249 (11th Cir. 2013) (quoting Minn. Citizens Concerned for Life, Inc. v. 

Swanson, 692 F.3d 864, 876 (8th Cir. 2012)). 

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And while the FEC correctly states that this Court reversed the district court 

for failing to certify Plaintiffs’ First Amendment challenge under § 30110, and that 

the bar for certification is low, this Court was nevertheless quite categorical in its 

analysis of Buckley. Apart from holding that Buckley had not foreclosed the question, 

and contrary to the FEC’s characterization of the opinion, see Def. Br. at 45-46, this 

Court stated that there was an “absence [in Buckley] of any analysis of the First 

Amendment question plaintiffs raise.” Holmes, 823 F.3d at 74. This was not 

surprising, because none of the questions certified in Buckley addressed the question, 

and the per-election structure was barely mentioned in a thousand pages of opinions 

and briefing, and then only to summarize or define the contribution limits. Id. 

Consequently, Plaintiffs have raised a novel question not foreclosed by 

Buckley. The Commission’s arguments to the contrary—including repeated citations 

to the district court’s since-overturned reasoning—are foreclosed by this Court’s 

decision. See, e.g., Def. Br. at 16-17.8

 

Similarly, rather than address the merits, the FEC again suggests that Plaintiffs 

are seeking two mutually-exclusive aims: either to give $5,200 in any election, 

regardless of context, or else an overall election-cycle limit of $5,200, again 

 8 Moreover, the district court’s reasoning in its order on the preliminary injunction 

is irrelevant here because it was not part of the district court’s § 30110 factual 

findings. Indeed, the district court ruled on that motion long before delving into the 

facts of the case.

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regardless of context. Def. Br. at 44. It then declares that it will not “make the absurd 

showing, suggested by” Plaintiffs, namely that there be a substantial relation 

between those restrictions and the Government’s interest. Def. Br. at 44. But 

misstating Plaintiffs’ challenge, and then declaring that it would be “absurd” to 

address that strawman, does not absolve the FEC of its burden with regard to 

Plaintiffs’ true challenge.9

 

In only one instance does the FEC come close to addressing the question at 

hand, but it does so by misinterpreting Supreme Court precedent. Contrary to the 

FEC’s brief, the plurality opinion in Randall v. Sorrell, 548 U.S. 230 (2006), did not 

 9 Amici Campaign Legal Center, et al., advance one argument attempting to connect 

the bifurcated contribution restriction to the anti-corruption interest, arguing that the 

“sticker shock” of seeing a large contribution amount raises the appearance of 

corruption. See Amici Br. at 23. But Amici’s argument lacks any evidentiary 

foundation. We do not know whether seeing a $5,200 contribution—one given for 

the first time to a candidate during the general election and after her participation in 

a primary—would raise concerns about the appearance of corruption. Indeed, Amici

ignore that contributors may already make single, large donations to a candidate 

without triggering the anti-corruption interest or its anti-circumvention corollary. 

See, e.g., 11 C.F.R. §§ 110.1(b)(5)(ii)(B) and 110.3(c)(3). 

On the other hand, it could raise a greater appearance of corruption to see numerous 

small contributions, whether spread out over time or even on a single day. Someone 

looking over such fragmented contributions could suspect that a contributor is 

making numerous small contributions to circumvent limits and the attention of 

regulatory authorities. We simply do not know. This is an evidentiary question for 

which the FEC has provided no support whatsoever, and for which it bears the 

burden of persuasion. 

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hold “that limiting contributions per election cycle . . . is a danger sign that a limit 

may not be closely drawn.” Def. Br. at 16. Randall struck down Vermont’s limit as 

impermissibly low. Randall, 548 U.S. at 262. In doing so, the plurality opinion noted 

that Vermont had election-cycle limits, id. at 249, but not to opine on the advantages 

or disadvantages of per-election limits, much less their constitutionality. Rather, it 

mentioned them to emphasize how low Vermont’s limits really were. 

In particular, the plurality opinion in Randall stated that “[Vermont’s] Act sets 

its limits per election cycle, which includes both a primary and a general election. 

Thus, in a gubernatorial race with both primary and final election contests, the Act’s 

contribution limit amounts to $200 per election per candidate.” Id. But the plurality 

opinion says this only to simplify the math for the next point: that the “limits are 

well below the limits th[e] Court upheld in Buckley.” Id. at 250. Because FECA has 

a per-election limit, and Vermont set a per-cycle limit, comparing the two cases 

required a lowest common denominator. The Court does not state that the perelection-cycle limit is itself a “warning sign.” The next paragraph, which compares 

Vermont’s limits to those in multiple other states, makes this clear. See id. at 250-

51. So, too, does the conclusion: “In sum, Act 64’s contribution limits are 

substantially lower than both the limits we have previously upheld and comparable 

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limits in other States.” Id. at 253. Thus, the plurality opinion in Randall was doing 

math, not making a constitutional finding about per-election limits.10

2. Having failed to show that the bifurcated contribution limits are 

closely drawn to the anti-corruption interest, the FEC introduces 

interests not recognized by the Supreme Court

Even though the anti-corruption interest is the only one that matters for

contribution limits, see McCutcheon, 134 S. Ct. at 1450, the FEC cryptically states 

that “FECA’s per-election limits operate in a manner that is well-matched to the 

congressional purpose.” Def. Br. at 33. In particular, again citing to the district 

court’s superseded preliminary injunction opinion, the FEC argues that Plaintiffs’ 

relief should be denied because bifurcated contribution requirements “allow[] 

candidates to compete fairly.” Def. Br. at 33, 36 (internal quotation marks omitted). 

As the Supreme Court previously explained to the FEC, however, “[t]he ancillary 

 10 The FEC correctly notes, on the other hand, that Justice Thomas’s concurrence 

expressed concern with Vermont’s election-cycle contribution limits for their 

potential to substantially advantage candidates “who did not face a serious primary 

challenge.” Randall, 548 U.S. at 268 (Thomas, J., concurring). Ironically, this was 

the very point that Plaintiffs’ made before the district court, when arguing that FECA 

was unconstitutional under the Fifth Amendment because it disadvantaged 

candidates who faced serious challengers. See Reply at 19, Holmes v. FEC, No. 1:14-

cv-01243-RMC (D.D.C. Mar. 20, 2015), ECF No. 28. The FEC argued before the 

district court, however, that such disparate impact arguments were not cognizable 

because the disparities arise from vagaries of the election process. See Opposition to 

Certification at 30-31, 37-39, Holmes v. FEC, No. 1:14-cv-01243-RMC (D.D.C. 

Mar. 13, 2015), ECF No. 27. The FEC’s arguments apply here, and the Commission 

should respect the law of the case after successfully arguing that such claims should 

not be brought before this Court.

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interest in equalizing the relative financial resources of candidates competing for 

elective office [is] clearly not sufficient to justify the . . . infringement of 

fundamental First Amendment rights.” Davis v. FEC, 554 U.S. 724, 738 (2008)

(citation omitted) (internal quotation marks omitted). 

The FEC also seems to create a new governmental interest out of the 

constitutional command that campaign finance laws cannot “prevent candidates 

from amassing the resources necessary for effective [campaign] advocacy.” Randall, 

548 U.S. at 248 (internal quotation marks omitted). Based on Randall, the FEC 

seems to argue that FECA must be constitutional as-applied to Plaintiffs because it 

allows sufficient resources for campaign advocacy in other circumstances, and the 

FEC supplies examples to this effect. See Def. Br. at 24, 29-32, 36. 

But even assuming that FECA allowed sufficient resources for Plaintiffs’ 

preferred candidates to campaign effectively (and focusing on candidates’ rights 

rather than contributors’ rights), this argument is steeped in the fallacy of the inverse. 

The absence of a condition that sometimes makes a law unconstitutional does not 

mean that the law is thereby constitutional. For example, just because an attorney 

stays sober throughout a trial, it does not necessarily follow that he provided 

effective assistance of counsel. Here, Plaintiffs have not argued that the law is 

unconstitutional in their circumstances because it prevents their preferred candidates 

from amassing the resources for effective advocacy, but rather because the 

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restrictions on their rights to associate with their preferred candidates do not meet 

closely drawn scrutiny. And, as discussed above, Plaintiffs do not request an 

election-cycle limit that would prevent candidates from taking contributions for 

special elections.11 

3. Having failed to meet its burden under closely drawn scrutiny, even 

after insisting on a remand for fact-finding, the FEC seeks to shift 

its burden to the Plaintiffs 

Having failed to meet its burden, the FEC attempts to shift it to Plaintiffs, 

arguing that it is Plaintiffs’ burden to establish not just that the contribution base 

limits reduce corruption but that the danger of quid pro quo corruption “is removed 

entirely when contributions are made at or below FECA’s limit.” Def. Br. at 44. As 

noted above, the FEC’s argument ignores the controlling opinion’s explanation in 

McCutcheon that there is no “cognizable risk of corruption,” and perhaps “no 

corruption concern in giving . . . candidates up to $5,200 each.” 134 S. Ct. at 1452. 

 11 Moreover, the FEC, unlike the parties in Randall, has failed to provide any record 

showing that particular candidates have been unable to amass the resources 

necessary for effective advocacy. Even if there were a record, the FEC cannot raise 

such a claim, either on its own or on behalf of other parties. Such arguments are 

accordingly not properly before this Court. And, if they were, they have been 

repeatedly rejected by the Supreme Court. See, e.g., Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721, 749 (2011) (“We have repeatedly 

rejected the argument that the government has a compelling state interest in ‘leveling 

the playing field’ that can justify undue burdens on political speech.”); Davis, 554 

U.S. at 737 (denying right “to restrict an opponent’s fundraising”). 

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But the argument also ignores that it is the FEC’s burden to show that the 

bifurcation of the contribution limits is constitutional. In particular, it is the FEC’s 

burden to show that there is a sufficient anti-corruption interest—after accounting 

for the protections provided by the contribution base limits and “statutory safeguards 

against circumvention,” see id. at 1446, 1458—to sustain the bifurcated contribution 

requirements that violate Plaintiffs’ associational rights. See also id. at 1458 (noting 

that restrictions “layered on top” of base limits are a “prophylaxis-upon-prophylaxis 

approach [that] requires that [a court] be particularly diligent in scrutinizing the 

law’s fit” (internal quotation marks omitted)). 

C. The FEC erroneously argues that Plaintiffs caused their own harm

Without legal citation, the FEC asserts that “the alleged injury [Plaintiffs] 

claim resulted not from FECA’s contribution limit but, instead, from their own 

voluntary choices.” Def. Br. at 50. Choosing to comply with the law is no choice. 

Federal law currently prohibits Ms. Holmes and Mr. Jost from fully associating with 

their preferred candidate—the party nominee—even when abiding by the total 

amounts created by the base limits. That the Plaintiffs want to structure their 

contributions the day after the primary rather than the day before the primary does 

not matter. That is, Plaintiffs want to associate with their party nominees to the full 

extent that would be non-corrupting. But, to do so, to contribute $5,200 to the party 

nominees, Plaintiffs must be able to divine the results of the primary election so that 

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they can contribute before the primary, or they must violate the law. Thus, the real 

choice is to break the law or give up their right. See Va. v. Am. Booksellers Ass’n, 

484 U.S. 383, 393 (1988) (noting that self-censorship is “a harm that can be realized 

even without an actual prosecution”); see also Ariz. Free Enter., 564 U.S. at 739

(forcing a party to alter the form in which he exercises his First Amendment or forgo 

that right “contravenes the fundamental rule of protection under the First 

Amendment, that a speaker has the autonomy to choose the content of his own 

message” (internal quotation marks omitted)).

But, even if Plaintiffs truly had an alternative means of attaining their goals, 

this Court has held that plaintiffs in such circumstances have a cognizable injury 

when the law limits their choices. For example, in the context of television and 

Internet service providers, this Court held that “the inability of consumers to buy a 

desired product may constitute injury-in-fact even if they could ameliorate the injury 

by purchasing some alternative product.” Consumer Fed’n of Am. v. FCC, 348 F.3d 

1009, 1012 (D.C. Cir. 2003) (internal quotation marks omitted); see also

Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 112-

13 (D.C. Cir. 1990) (injury-in-fact where fuel economy regulations hindered 

“opportunity to buy larger passenger vehicles”).

This concept is so prevalent that when this Court faced a challenge to the 

Security and Exchange Commission’s regulations concerning the membership of 

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mutual fund boards necessary for certain transactions in Chamber of Commerce of 

the United States v. SEC, 412 F.3d 133, 136 (D.C. Cir. 2005), the Court upheld the 

litigant’s status in just two paragraphs. Id. at 138. “Under [this Circuit’s] precedent, 

therefore,” Ms. Holmes and Mr. Jost have “suffered an injury-in-fact and, because a 

favorable ruling would redress that injury, [they have] standing to sue the 

Commission.” Id. 

IV. CONCLUSION

For the reasons given above, and those given in Plaintiffs’ Opening Brief, the 

Court should conclude that FECA’s bifurcated contribution limits are 

unconstitutional as applied to Plaintiffs. 

Dated: Sept. 30, 2016

Respectfully submitted,

/s/ Allen Dickerson 

Allen Dickerson (D.C. Cir. No. 54137)

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs/Appellants

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitation set 

forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it 

contains 6,390 words, according to a word count by Microsoft Word 2016, excluding 

the parts of the brief exempted by Rule 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Rule 32(a)(5) because 

it has been prepared in a proportionally-spaced typeface—Times New Roman—

using 14-point font. 

Respectfully submitted Sept. 30, 2016 /s/ Allen Dickerson

Allen Dickerson

CENTER FOR COMPETITIVE POLITICS

Counsel for Plaintiffs/Appellants

USCA Case #16-5194 Document #1638781 Filed: 09/30/2016 Page 33 of 34
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CERTIFICATE OF SERVICE

I hereby certify that on September 30, 2016, I electronically filed the 

foregoing Plaintiffs’ Reply Brief with the Clerk of the United States Court of 

Appeals for the District of Columbia Circuit using the Court’s CM/ECF system. 

All participants in the case are represented by counsel of record who are 

registered CM/ECF users and will be served by the CM/ECF system. Service was 

made by CM/ECF on the following registered attorneys currently appearing in the 

case:

Erin Rebecca Chlopak Email: echlopak@fec.gov

Charles P. Kitcher Email: ckitcher@fec.gov

Kevin Andrew Deeley Email: kdeeley@fec.gov

Steve Nicholas Hajjar Email: shajjar@fec.gov 

Joseph Gerald Hebert Email: ghebert@campaignlegalcenter.org

Donald Jay Simon Email: dsimon@sonosky.com

Fred Wertheimer Email: fwertheimer@democracy21.org

Respectfully submitted Sept. 30, 2016 /s/ Allen Dickerson

Allen Dickerson

CENTER FOR COMPETITIVE POLITICS

Counsel for Plaintiffs

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