IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

LIBERTARIAN NATIONAL )

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

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

__________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS

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

Points and Authorities in Support of its Motion to Certify Facts and Questions to the Court of

Appeals.

Dated: September 5, 2017 Respectfully submitted,

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

Gura PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura

Alan Gura

Case 1:16-cv-00121-BAH Document 24-1 Filed 09/05/17 Page 1 of 27
TABLE OF CONTENTS

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

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. LNC Has Standing to Asserts Its Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. The Certification Standards .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. Applying Contribution Limits to Shaber’s Bequest Violates LNC’s 

First Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. The Cromnibus Contribution Limit Regime, Owing to Its Expressive

Purpose Restrictions, Violates the LNC’s First Amendment Rights. . . . . . . . . . . . . 15

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Case 1:16-cv-00121-BAH Document 24-1 Filed 09/05/17 Page 2 of 27
TABLE OF AUTHORITIES

Cases

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18

Buckley v. Valeo,

519 F.2d 817 (D.C. Cir. 1975) (en banc) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Catholic Leadership Coalition of Tex. v. Reisman,

764 F.3d 409 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Dean v. Blumenthal,

577 F.3d 60 (2d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Farris v. Seabrook,

677 F.3d 858 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Goosby v. Osser,

409 U.S. 512 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hodel v. Irving,

481 U.S. 704 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Holmes v. FEC,

823 F.3d 69 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Independence Inst. v. FEC,

816 F.3d 113 (D.C. Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Libertarian Nat’l Comm., Inc. v. FEC,

930 F. Supp. 2d 154 (D.D.C. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12-14

Libertarian Nat’l Comm., Inc. v. FEC,

950 F. Supp. 2d 58 (D.D.C. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12

Libertarian Nat’l Comm., Inc. v. FEC,

No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Case 1:16-cv-00121-BAH Document 24-1 Filed 09/05/17 Page 3 of 27
Long Beach Area Chamber of Commerce v. City of Long Beach,

603 F.3d 684 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

McConnell v. FEC,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

McCutcheon v. FEC,

134 S. Ct. 1434 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Order, Libertarian Nat’l Comm., Inc. v. FEC,

No. 13-5094 (D.C. Cir. Feb. 7, 2014) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Police Dep’t of Chicago v. Mosley,

408 U.S. 92 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Republican Nat’l Comm. v. FEC,

698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge panel).. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Republican Party of La. v. FEC,

219 F. Supp. 3d 86 (D.D.C. 2016) (three-judge panel).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Shapiro v. McManus,

136 S. Ct. 450 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Speechnow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15

Texans for Free Enter. v. Tex. Ethics Comm’n,

732 F.3d 535 (5th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Marcavage,

609 F.3d 264 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Stevens,

559 U.S. 460 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Virginia,

518 U.S. 515 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Case 1:16-cv-00121-BAH Document 24-1 Filed 09/05/17 Page 4 of 27
Washington State Grange v. Washington State Republican Party,

552 U.S. 442 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Wis. Right to Life State PAC v. Barland,

664 F.3d 139 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Constitutional Provisions

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

28 U.S.C. § 1915(e)(2)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

52 U.S.C. § 30110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

52 U.S.C. § 30116(a)(1)(B) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17, 18, 21

52 U.S.C. § 30125.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21

Other Authorities

David Horton, Testation and Speech, 101 Geo. L. J. 61 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Case 1:16-cv-00121-BAH Document 24-1 Filed 09/05/17 Page 5 of 27
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS

PRELIMINARY STATEMENT

This case presents two First Amendment issues of first impression. May federal political

contribution limits apply to a testamentary bequest in the absence of any evidence of corruption?

And may Congress regulate the content of a political party’s expression under the guise of

combating corruption?

This Court recently certified a question raising the as-applied testamentary bequest issue to

the en banc D.C. Circuit, only to have the question mooted (through no fault of the plaintiff). As this

sort of dispute is perennial, the time has come to certify another such question. The expressive

restriction issue, however, is new. It arises from the 2014 “cromnibus” amendment to the Federal

Election Campaign Act (“FECA”) that greatly expanded the contribution limits to political parties

(a feature not here at issue) while imposing novel restrictions on the expressive purposes for which a

political party may solicit and expend donations.

The key facts are not expected to be contested. Respectfully, they should be determined, and

the case certified for the D.C. Circuit’s consideration.

* * *

Ten years ago, the Libertarian National Committee (“LNC”) received two surprises—one

good, the other less so. Raymond Groves Burrington, a Tennessee gentleman practically unknown to

the party (he had long-ago donated $25), had died and left it a much-needed $217,734 in his last

will and testament. That was the good surprise.

Alas, the party then learned that the Federal Election Commission would not allow it to take

immediate hold of Burrington’s entire gift. The party had done nothing for Burrington, beyond

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earning his loyalty through the ordinary pursuit of its political mission, and it could do no more for

Burrington, owing to his passing. And yet the FEC, ever-concerned with the prospect that the

Libertarian Party would exchange access to its federal officeholders for a promise to donate money

at some indeterminate future point, imposed the Federal Election Campaign Act’s (“FECA”) annual

contribution limit to Burrington’s gift. The money was placed in an escrow account that the party

was barred from managing (the FEC forbids any form of control over money that cannot be

accepted), from which the party could withdraw only the maximum contribution limit each year

until it was exhausted.

LNC sued. This Court rejected certification of a First Amendment challenge to FECA’s

application against testamentary bequests as a categorical matter, but certified an as-applied

challenge with respect to Burrington’s bequest, given the complete absence of any evidence of a quid

pro quo arrangement. Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013),

reconsideration denied, 950 F. Supp. 2d 58 (D.D.C. 2013) (“LNC I”). The D.C. Circuit

summarily affirmed the dismissal of the party’s categorical challenge. Order, Libertarian Nat’l

Comm., Inc. v. FEC, No. 13-5094 (D.C. Cir. Feb. 7, 2014) (per curiam). And before the Court

could hear the certified as-applied question, the bequest escrow account paid out its last dollar,

leading the D.C. Circuit to dismiss the question as moot. Order, Libertarian Nat’l Comm., Inc. v.

FEC, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc) (per curiam).

As promised then, the party did not need to wait long for a similar dispute to arise. On

August 23, 2014, another Libertarian donor virtually unknown to the party, Joseph Shaber, passed

away, leaving the party $235,575.20.

But history repeats itself with a twist. In the time between Shaber’s passing and the final

settlement of his estate, with the government hours away from running out of money and Congress

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deadlocked over a new budget, there emerged a new form of must-pass stopgap funding legislation:

the “cromnibus,” part continuing resolution, part omnibus budget bill—loaded with nuggets the

normal examination of which was politically unworthy of a government shutdown. On pages 1,599-

1,602 of this 1,603-page cromnibus there appeared for the first time anywhere a 900% (!) expansion

of FECA’s contribution limits to political parties, but with new content-based limits on the parties’

expression, coincidentally tailored to the special needs of the incumbent parties.

No less remarkable was the FEC’s initial response to LNC’s complaint about this

arrangement: an argument that the LNC was not truly injured because it could have circumvented

the law, using segregated purpose accounts to free-up fungible unrestricted money. That motion to

dismiss, correctly denied in part because the LNC did not have sufficiently high segregated purpose

expenses to evade the limits, admits the cromnibus scheme’s fundamental irrationality as a

corruption-fighting measure. And the standard of review here is much higher than rational basis.

Discovery and factual development have since cemented the cromnibus scheme’s constitutional

defects. It would fail any standard of review, and it is substantially overbroad.

Accordingly, LNC respectfully asks this Court to certify three questions to the en banc D.C.

Circuit:

1. Does imposing annual contribution limits against the bequest of Joseph Shaber

violate the First Amendment rights of the Libertarian National Committee?

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

Amendment rights of the Libertarian National Committee by restricting the purposes

for which the Committee may spend its money?

3. Does restricting the purposes for which the Libertarian National Committee may

spend the bequest of Joseph Shaber violate the Committee’s First Amendment rights?

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STATEMENT OF FACTS

A full recitation of the LNC’s proposed facts for certification, Exhibit A, and of the evidence

cited for each proposed facts, is not required for purposes of deciding this motion. A short summary

of selected facts, however, is useful.

Federal law restricts the annual contributions that individuals may give the LNC, the

national committee operating the Libertarian Party. A base contribution limit of $33,900 per year to

each national party committee currently applies, but individuals may also contribute triple that

amount to be dedicated for each of three separate purposes: a party’s headquarters building,

presidential nominating conventions, and election contests and other legal proceedings. Exh. A,

Proposed Facts (“PF”) 1-11. Accordingly, the total annual contribution that an individual may

provide the LNC is currently $339,000. PF 10. The FEC applies these regulations to testamentary

bequests. PF 19-20.

The different segregated purposes have different expressive functions and values. A

presidential convention would focus on a presidential race; an election contest pertains to the

outcome of a particular race; and a party headquarters building assists the party’s expressive mission

in a generalized way, while also displaying signs and imparting an architectural statement. PF 12-

17. Potential donors may forego contributions to a committee, or reduce the amount of their

contribution, if the uses of their contributions are restricted. PF 18.

The expressive purpose restrictions were enacted as part of a last-minute “cromnibus”

budget package. Congress made no fact-finding related to these restrictions, and the legislative

record is silent as to how they might relate to any anti-corruption interests. The segregated

convention purpose provision was intended to offset Congress’s earlier decision to terminate public

funding for presidential nominating conventions. PF 21-29.

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There does not exist any documentary evidence comparing the corrupting potential of

restricted, segregated expressive purpose contributions with the corrupting potential of unrestricted,

general purpose contributions. PF 26.

The FEC rejects the premise that a contribution of any particular dollar value is “corrupting”

but that lower values are not “corrupting.” PF 30. Larger contributions to political parties are

generally more likely to lead to actual or apparent quid pro quo arrangements and can do so

regardless of how the funds are ultimately used. PF 31. All contributions to political parties can

create the risk of corruption or its appearance regardless of the way that money is ultimately spent.

PF 32. The FEC takes the position that “Congress could have permissibly concluded” that

unrestricted donations to a political party warrant greater limitations than restricted donations, PF

33, but admits that parties may value restricted, higher contributions more than unrestricted, lower

contributions, PF 38-40. The FEC has declined to “describe,” in a factual sense, “how the separate,

segregated accounts provided for in 52 U.S.C. § 30116(a)(9) are consistent with the purposes of the

Federal Election Campaign Act. PF 34. The FEC does not know Congress’s reasons for enacting

this scheme. PF 35.

Because money is fungible, donations received for a segregated purpose potentially free up

other money that would have been spent out of a party’s general account, to be used for unrestricted

purposes. PF 36, 37. So long as a party would have spent a sufficient amount on a segregated

purpose, a segregated purpose donation is effectively an unrestricted donation. PF 41. A particular

within-limit contribution to a committee’s segregated purpose account could appear as corrupt as or

more corrupt than a lower contribution to that committee’s general account that exceeds the general

account limit. PF 42. It is also possible that a particular contribution below the general account limit

may have an appearance of corruption that exceeds that of a higher contribution to a segregated

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account. PF 43. The RNC and DNC have accepted many millions of dollars into their cromnibus

segregated purpose accounts, thereby liberating equivalent millions of funds that would have

otherwise been spent on those purposes, for other, unrestricted purposes. PF 44-50.

The LNC’s spending needs and priorities differ markedly from those of its two larger

competitors. The LNC’s spending on ballot access, for example, is a pressing need, while the LNC

uses comparatively little money on presidential nominating conventions, a headquarters building,

and election contests. PF 52-68.

Unbeknown to the LNC, it was made a beneficiary of the Joseph Shaber Revocable Living

Trust U/T/D February 11, 2010. When Shaber passed away over four years later, rendering the trust

irrevocable, the LNC became the beneficiary of a bequest totaling $235,575.20 which it was to have

“outright.” There is no evidence that Shaber attempted to time his bequest, and the size of his gift to

the LNC was itself contingent on various factors, such as the fluctuation in the value of Shaber’s

property and whether he would have grandchildren at the time of his death. There is no evidence of

any quid pro quo relationship relating to Shaber’s bequest to the LNC. When the bequest became

available to the LNC in 2015, it needed and desired the entirety of the bequest for general

unrestricted purposes. To that end, the LNC accepted what it could without restriction, and placed

the rest in an escrow account from which to withdraw the maximum unrestricted amount each year.

The LNC also removed Shaber from its membership rolls, as the LNC cannot associate with the

deceased. PF 69-91.

The LNC has identified large donors who have already given the maximum base

contribution this year for unrestricted purposes, and who stand ready to donate more money this year

and in future years, but refrain from doing so owing to the cromnibus expressive purpose

restrictions. One of these donors is also preparing to leave the LNC a sizeable bequest that would be

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subject to the cromnibus expressive purpose restrictions. Another donor refrains from leaving the

LNC a large bequest because of the cromnibus restrictions. PF 92-122. And during the pendency of

this litigation, the LNC has become the beneficiary of another unexpected testamentary bequest in

an amount exceeding the base contribution limit, but within the total contribution limit. PF 123-131.

The Libertarian Party’s ability to influence elections is in some measure related to its ability

to raise and expend money. The LNC needs, and would prefer, to spend its funds in order to directly

speak to the electorate about its ideology and political mission, to support its candidates, and to

build its institutional capability, including its ability to regularly qualify for the ballot in various

states. PF 132. But for the segregated purpose restrictions of 52 U.S.C. § 30116(a), the LNC would

solicit and receive donations in amounts exceeding the base annual contribution limit (currently

$33,900) but within the total annual contribution limit (currently $339,000), and use those

donations for LNC’s general expressive purposes, apart from expenses related to its headquarters

building, legal proceedings, and presidential nominating conventions. LNC refrains from this

activity only because it is illegal, and neither the LNC nor anyone who works for it would risk

criminal process and sanctions for what would be a futile act. PF 134.

The LNC would utilize donations exceeding the base annual contribution limit (currently

$33,900) to express itself to the full limits of the First Amendment in the LNC’s best judgment. This

expression would include maintaining and improving the party’s access to the ballot, promoting

awareness of the party and its ideology, and supporting its candidates for state and federal office. PF

135. Among the donations that the LNC would solicit and accept in excess of the base annual

contribution limit (currently $33,900) would be donations from donors who have already given the

base annual contribution limit but stand ready to give more for unrestricted purposes if it were legal

to do so, including the donors and testamentary bequests identified in this litigation. PF 136.

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The LNC is confident that it could identify and develop additional donors who would give

beyond the base annual contribution limit (currently $33,900), but refrain from doing so because it

is illegal to give larger amounts without restriction and they do not perceive sufficient value in

donations that carry the government’s purpose restrictions. The LNC would also be better able to

attract larger testamentary bequests if the donors would know that a larger portion of their bequest

would be immediately effective. PF 137. The ability to solicit and receive donations up to the

current total contribution limit ($339,000), for use without restriction, would significantly advance

the LNC’s expressive and political missions. PF 138.

SUMMARY OF ARGUMENT

The courts have jurisdiction to resolve all of the LNC claims in this litigation, all of which

easily pass the very low bar for certifying FECA disputes.

With respect to whether contribution limits can apply to the Shaber bequest, the fact that this

Court previously certified a virtually identical dispute suffices to show that the dispute is not one

that can be dismissed out-of-hand as frivolous. The LNC has a right to accept Shaber’s bequest, and

the government bears the burden of showing that its contribution limits make constitutional sense

under these particular circumstances.

The challenges relating to the cromnibus expressive purpose restrictions are thornier still.

The parties can reasonably be expected to dispute whether the law functions as a contribution limit,

or an expenditure limit. It is readily apparent that FECA now establishes, post-cromnibus, a contentbased restriction on the speech of political parties. It is exceedingly difficult to see how these

restrictions would survive the strict scrutiny to which they are subject.

But the restrictions would also fail the heightened “closely drawn” standards reserved for

contribution limits, given their pervasive irrationality and lack of evidence supporting their logical

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relationship to valid anti-corruption interests. Indeed, the cromnibus restrictions are also overbroad

in the sense that they sweep far too broadly, targeting virtually all third-party contributions that

would exceed the base limit but still fall within the total contribution limit, without any evidence of

anti-corruption concerns.

ARGUMENT

I. LNC HAS STANDING TO ASSERT ITS CLAIMS.

As this Court already determined, the LNC has standing to challenge FECA’s application to

Shaber’s bequest because the law barred the LNC from using the entirety of that bequest, as it

wished to do, for unrestricted expressive purposes. Opinion, Dkt. 21. FEC maintains that the Court

lacks jurisdiction, Answer, Dkt. 22, at ¶ 3 and affirmative defense 1, but the fact remains that

nothing the LNC could have done in 2015 would have allowed it to use $235,575.20 that year,

without restriction, as a consequence of Shaber’s bequest. Indeed, even had the LNC wanted to use

the maximum $100,200 allowed in 2015 for the segregated building account to pay down its

headquarter’s mortgage principal, accounting for the $33,400 allowed for unrestricted uses that year

and withdrawing the LNC’s 2015 expenses for a presidential nominating convention and legal

proceedings would not have approached the totality of Shaber’s bequest.

1

Of course, LNC’s claims are not limited to Shaber’s bequest. See Complaint, ¶¶ 14, 31,

Prayer for Relief ¶ 1, 4; Opinion, Dkt. 21, at 4. “LNC’s injury is that it cannot accept money—

On this score, LNC wishes to correct the record. LNC sometimes incurs small prepaid

1

expenses related to a presidential nominating convention in the year preceding the convention.

Sarwark Decl., ¶ 34. In declaring that LNC “spent no money” in 2015 on a presidential nominating

convention, LNC’s Operations Director, Robert Kraus, inadvertently overlooked an accounting

entry reflecting a December 17, 2015 payment in the amount of $340.50 for the purpose of a 2016

convention website. The total amount LNC spent on a presidential nominating convention in 2015 is

thus $340.50. Mr. Kraus, and LNC, apologize for the oversight. Kraus Decl., ¶ 2. This oversight,

while regrettable, is not material.

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from Shaber’s bequest and from other donors—for spending as it wishes.” Id. (quoting Pl.’s

Opp’n, Dkt. 12, at 8) (emphasis in original). LNC’s injury related to other donors is not speculative.

LNC has identified two donors (Rufer and Chastain) who have already given the LNC the base

contribution limit this year and who stand ready to donate additional money to LNC for its general

expressive purposes, but cannot do so owing to the challenged provisions. They would also exceed

the base contribution limit for general expressive purposes in future years.

LNC stands ready to solicit and accept these currently illegal contributions, and it is

confident that it could successfully solicit general purpose donations in excess of the base

contribution limit from others. Chastain is also in the process of remembering the LNC in his will in

an amount exceeding the base contribution limits. A third donor (Redpath) refrains from

remembering the LNC in his will because of the cromnibus expressive purpose restrictions. And

while this litigation has been pending, another LNC contributor (Clinard) passed away, leaving it an

unrestricted bequest exceeding the base contribution limit and thus replicating the Shaber (and

Burrington) scenario. And surely the FEC would not deny that FECA has a real impact in limiting

contributions that would otherwise be made. Thus, even if the Shaber dispute were to become moot

prior to the D.C. Circuit’s resolution of the case, the LNC’s facial challenge would survive.

The D.C. Circuit has jurisdiction to resolve all aspects of LNC’s claims.

II. THE CERTIFICATION STANDARDS.

The Federal Election Campaign Act provides that

the national committee of any political party . . . may institute such actions in the appropriate

district court of the United States, including actions for declaratory judgment, as may be

appropriate to construe the constitutionality of any provision of this Act. The district court

immediately shall certify all questions of constitutionality of this Act to the United States

court of appeals for the circuit involved, which shall hear the matter sitting en banc.

52 U.S.C. § 30110. Accordingly, this Court should (1) identify the constitutional issues raised by

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the complaint; (2) take evidence; (3) make factual findings; and (4) certify constitutional questions

to the D.C. Circuit. Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (per curiam).

The bar to certification is “low.” Holmes v. FEC, 823 F.3d 69, 71 (D.C. Cir. 2016)

(quoting Shapiro v. McManus, 136 S. Ct. 450, 456 (2015)). While “district courts do not certify

‘frivolous’ constitutional questions to the en banc court of appeals,” id. at 71 (citation omitted), “the

Shapiro Court stressed [that] the exception for insubstantial claims is narrow.” Independence Inst.

v. FEC, 816 F.3d 113,116 (D.C. Cir. 2016). Certification should be denied “only when the case is

‘essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit.’” Id.

(quoting Shapiro, 136 S. Ct. at 456); Goosby v. Osser, 409 U.S. 512, 518 (1973). The D.C.

Circuit has “analogized the district court’s role under § 30110 to that of a district court in

dismissing in forma pauperis claims that are ‘frivolous or malicious’ within the meaning of 28

U.S.C. § 1915(e)(2)(B)(i).” Holmes, 823 F.3d at 72 n.4 (citation omitted).

LNC’s claims easily pass this low bar.

III. APPLYING CONTRIBUTION LIMITS TO SHABER’S BEQUEST VIOLATES LNC’S 

FIRST AMENDMENT RIGHTS.

The LNC continues to believe that it is unconstitutional to apply any campaign contribution

limits to testamentary bequests. But that issue is not before the Court. The LNC unfortunately lost

that battle in the previous litigation, and there is no shortage of other, as-yet unadjudicated

constitutional defects to challenge.

The FEC’s issue preclusion defense, Answer, Dkt. 22, at 6, is unavailing. “An as-applied

attack . . . does not contend that a law is unconstitutional as written but that its application to a

particular person under particular circumstances deprived that person of a constitutional right.”

United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (citations omitted) (emphases

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added). And as Judge Wilkins also found, the statutory command “to immediately . . . certify all

questions of the constitutionality of this Act” includes the certification of as-applied challenges

concerning particular donations. Libertarian Nat’l Comm., Inc. v. FEC, 950 F. Supp. 2d 58, 60

(D.D.C. 2013) (internal quotation marks omitted). At LNC I’s conclusion, Mr. Shaber still had

months to live, and the LNC had no idea that it would become the beneficiary of his trust. If

anything, the previous litigation’s result—the certification of an as-applied question relating to a

particular bequest (even if that question became moot)—supports certification of another as-applied

question related to a different bequest.

Starting from where Judge Wilkins left off, assuming that it is generally constitutional to

apply campaign contribution limits to testamentary bequests, would it still be constitutional to apply

such limits to a particular bequest for which there is no evidence of quid pro quo corruption? That at

least one federal judge believed the question is worthy of certification to the en banc D.C. Circuit,

shortly before his own ascension to that court, strongly suggests that the question is not “essentially

fictitious, wholly insubstantial, obviously frivolous, and obviously without merit.” Shapiro, 136 S.

Ct. at 456 (quotation omitted); Independence Inst., 816 F.3d 113 at116.

While Judge Wilkins rejected the claim that FECA implicated Mr. Burrington’s First

Amendment rights to have his testamentary bequest effectuated, he found it a meaningful question as

to whether the LNC had a First Amendment right to receive Burrington’s bequest. LNC I, 930 F.

Supp. 2d at 170-71. This Court noted that in Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009), the

Second Circuit vacated a district court opinion rejecting the existence of such a right. For qualified

immunity purposes in that matter, it was enough that the right had not been clearly established, but

Dean was careful to leave the door open. “The Second Circuit in Dean did not view as frivolous the

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argument that there is a First Amendment right to receive campaign contributions. Neither should

this Court.” LNC I, 930 F. Supp. 2d at 170-71.

Time has only bolstered this reasoning. In McCutcheon v. FEC, 134 S. Ct. 1434 (2015), for

example, the RNC prevailed alongside its donor, Sean McCutcheon, on the argument that it had a

First Amendment right “to receive the contributions that McCutcheon and similarly situated

individuals would like to make . . . .” Id. at 1443. Indeed, LNC I might well have relied on

Speechnow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) on this point, where the first

certified question asked “[w]hether the contribution limits . . . violate the First Amendment by

preventing David Keating, SpeechNow.org’s president and treasurer, from accepting contributions

to SpeechNow.org in excess of the limits . . . .” Id. at 690. The D.C. Circuit answered that the

contribution limits there at issue indeed “violate[d] the First Amendment . . . by prohibiting

SpeechNow from accepting donations in excess of the limits.” Id. at 696.

The D.C. Circuit is not alone in upholding First Amendment rights to accept political

contributions. “[B]oth the contributing and the contributed-to party have sufficient injuries-in-fact to

challenge campaign finance restrictions.” Catholic Leadership Coalition of Tex. v. Reisman, 764

F.3d 409, 423 (5th Cir. 2014) (citations omitted); Texans for Free Enter. v. Tex. Ethics Comm’n,

732 F.3d 535, 537 (5th Cir. 2013) (substantial likelihood of success on claim that law “violates

[political committee’s] right to free speech by prohibiting it from accepting funds from

corporations”); see also Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 154 (7th Cir.

2011); Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 698-99

(9th Cir. 2010), abrogated in part on other grounds, Farris v. Seabrook, 677 F.3d 858, 865 n.6

(9th Cir. 2012).

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That the First Amendment protects an antecedent, corollary right to receive money enabling

political speech should not be controversial. “[C]ertain unarticulated rights are implicit in

enumerated guarantees . . . fundamental rights, even though not expressly guaranteed, have been

recognized by the Court as indispensable to the enjoyment of rights explicitly defined.” Richmond

Newspapers v. Virginia, 448 U.S. 555, 579-80 (1980) (First Amendment rights of speech and press

to access criminal trials). The Supreme Court long ago implied a First Amendment speech right to

receive campaign contributions, by confirming that such contributions are a necessary prerequisite

for engaging in political advocacy. “[V]irtually every means of communicating ideas in today’s

[1976] mass society requires the expenditure of money.” Buckley v. Valeo, 424 U.S. 1, 19 (1976)

(per curiam). Surely a law barring the receipt of a printing press, broadcasting equipment, or internet

server would be viewed as implicating speech rights, even if the physical receipt of such equipment

is not, in and of itself, expressive.

None of this is to suggest that LNC would lack standing to assert the expressive aspects of

Shaber’s bequest. “For obvious reasons, it has long been recognized that the surviving claims of a

decedent must be pursued by a third party.” Hodel v. Irving, 481 U.S. 704, 711 (1987). LNC

would respectfully disagree with LNC I ’s determination, 930 F. Supp. 2d at 169-70, that

testamentary bequests lack First Amendment protection. See, e.g., David Horton, Testation and

Speech, 101 Geo. L. J. 61 (2012). But LNC I’s point about the deceased’s lack of rights is welltaken in this respect: “in the literal sense, the FECA restriction (as enforced by the FEC) on the

Burrington bequest is not a ‘contribution limit involving significant interference with associational

rights [that] must be closely drawn to serve a sufficiently important interest.’” LNC I, 930 F. Supp.

2d at 169 (quoting Speechnow.org, 599 F.3d at 692). Shaber, too, is not currently “associating”

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with the LNC. The case concerns, directly, LNC’s speech rights with respect to the Shaber bequest,

triggering a higher standard of review.

That there exists a First Amendment right to receive contributions for the purpose of

engaging in political speech is a question found to be open in LNC I and in the Second Circuit, but it

appears resolved in the LNC’s favor by Speechnow and a growing number of other circuits’

precedent, to say nothing of McCutcheon’s example. The question would then be whether the FEC

could meet its burden in applying the contribution limitations as against this bequest, given the

complete lack of evidence of any quid pro quo corruption attending Shaber’s bequest. The LNC

solicited money from Shaber, but not in any unusual manner. Its return on those efforts during

Shaber’s lifetime was much appreciated, but unspectacular. There is no evidence that Shaber knew

when he was going to die and timed his highly-contingent gift (largely, a share of property itself

contingent on the prospect of grandchildren) as part of some quid pro quo arrangement. The FEC

undertook some discovery seeking proof of a corrupt relationship, and turned up nothing.

The D.C. Circuit might well hold it unconstitutional to apply FECA’s contribution limits to

Shaber’s bequest under these circumstances. As with the previous bequest, it should be afforded the

opportunity to do so.

IV. THE CROMNIBUS CONTRIBUTION LIMIT REGIME, OWING TO ITS EXPRESSIVE PURPOSE

RESTRICTIONS, VIOLATES THE LNC’S FIRST AMENDMENT RIGHTS.

“[A]bove all else, the First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of

Chicago v. Mosley, 408 U.S. 92, 95 (1972). “Content-based laws—those that target speech based

on its communicative content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town

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of Gilbert, 135 S. Ct. 2218, 2226 (2015) (citations omitted). When a law “defin[es] regulated

speech by particular subject matter” or “by its function or purpose,” it is content-based and is

“subject to strict scrutiny.” Id. at 2227. And “the First Amendment has its fullest and most urgent

application to speech uttered during a campaign for political office.” Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (internal quotation marks and citations

omitted).

The cromnibus expressive purpose restrictions directly limit how the LNC may express

itself, in preparation for and during political campaigns, based on the subject matter, function, or

purpose of the LNC’s speech. The LNC is allowed to accept contributions to fund its political

activities, but may only use them towards the purposes and in the amounts ordained by Congress.

The fact is that buildings, conventions, and lawyers, all convey or enable expression in some way or

to some degree. Consider a $33,901 contribution to the LNC: if the LNC speaks as it wishes with

that contribution, distributing pamphlets about the party’s ideology or supporting a non-presidential

candidate, the contribution is illegal. If the LNC spends one dollar of that same contribution

broadcasting its presidential nominating convention, hanging a sign on its building, or litigating an

election contest, the contribution is legal. A $101,700 donation for any of these latter purposes is

perfectly legal; a $101,700 donation to secure the party’s ballot line is illegal. And the amount of

speech a political party may exercise turns on the content of that speech. Parties with large

privileged expenses may circumvent the restrictions, and greatly amplify their voice. Parties lacking

large privileged expenses can speak less in the manners and on matters that are suitable and

important to them.

Considering the complete lack of congressional fact-finding or any other evidence justifying

this last-minute, late-night political deal, and its detachment from any coherent effort to stem

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corruption or the appearance of corruption, this innovative restriction on core First Amendment

activity warrants immediate review by the en banc D.C. Circuit.

The parties could be expected to dispute whether the cromnibus expressive purpose

restrictions are effectively expenditure limits, because they limit the purposes to which the LNC may

put the money; or contribution limits, because they limit contributions (depending, of course, on the

expressive purpose to which they would be utilized). This is a novel question forced by a novel

scheme.To be sure, the cromnibus expressive purpose restrictions are expenditure limits—contentbased restrictions on speech.

This is not a challenge to any contribution limit. The LNC does not claim in this litigation

that the current contribution limit of $339,000 to political parties is too low. Nor would the LNC

challenge the contribution limit, in today’s legal environment, were it only $33,900. Of course, the

LNC’s ideological position remains that the FEC and the laws it enforces are all unconstitutional.

See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”).

If the Supreme Court will not recognize that principle, repealing FECA would be a legislative

priority for the first Libertarian Party-controlled Congress. But here, the LNC merely seeks to apply

the current state of First Amendment precedent.

Even the FEC has grudgingly admitted in discovery that the real contribution limit is

$339,000. PF 10. It might have been simpler for Congress to say as much directly, but that is the

figure derived by asking the simple question: how many dollars might a person give to the LNC

each year? If Suzie can legally give Bobby one apple to put in his backpack, another apple to put in

his lunchbox, and a dozen apples to make applesauce, then Suzie can give Bobby fourteen apples,

regardless of how much applesauce Bobby would eat. So it is with Section 30116. Donors can put

different amounts of money into different bank accounts, but all accounts are owned by the same

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recipient. And the total amount that can be given per year, by one donor to one national committee

of a political party, is $339,000. There is no way around this fact.

This would still be a pure contribution limit case if the multiple bank account scheme had

nothing to do with expenditures; for example, had the government simply wanted political parties to

spread their deposits across multiple banks to stabilize the banking industry. But again, that isn’t the

law. If Suzie can legally give Bobby four crayons, but one crayon may be used only in writing her a

Valentine’s Day card and three crayons may be used only to illustrate book reports, Bobby cannot

use any crayons to write Mary a valentine, even if he has no book report due or doesn’t care for

Suzie. In this scenario, the regulation is not merely a contribution limit of four crayons, but also, a

restriction on Bobby’s expression. Again, the same concept applies to Section 30116. When a

political party can have money, and use it for some expression, but not other expression, that is an

expression-restriction, not merely a contribution limit.

The cromnibus expressive purpose restrictions are especially problematic, because they

largely, if not only, disable minor parties. The Supreme Court once observed that contribution

limitations “would appear to benefit minor-party and independent candidates relative to their

major-party opponents because major-party candidates receive far more money in large

contributions,” Buckley, 424 U.S. at 33, but major parties also have far larger expenses. The FEC

argued that the cromnibus expressive limitations are meaningless because money is fungible, but

only the latter point is true. Parties enlarge their assets only to the extent of their special purpose

outlays.

This is not to say that the LNC’s claims sound in equal protection, or are based on some

yardstick of competitive ability. Rather, as a content-based speech restriction, this state of affairs is

irrational, nevermind its inability to meet the rigors of strict scrutiny.

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Alternatively, analyzing the cromnibus expressive purpose restrictions as a contribution limit

should not aid the FEC in avoiding certification—or defending the cromnibus on the merits. While

contribution limits are subject to a lower level of still-heightened scrutiny, the Supreme Court

upheld BCRA’s pre-cromnibus soft money ban precisely because “large soft-money contributions to

national parties are likely to create actual or apparent indebtedness on the part of federal

officeholders, regardless of how those funds are ultimately used.” McConnell v. FEC, 540 U.S.

93, 155 (2003) (emphasis added). And this Court has repeatedly followed McConnell’s logic in

turning away as-applied challenges to contribution limits unimpacted by the cromnibus

amendments. See Republican Party of La. v. FEC, 219 F. Supp. 3d 86, 97 (D.D.C. 2016) (threejudge panel), aff’d, 137 S. Ct. 2178 (2017) (state party committees); Republican Nat’l Comm. v.

FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge panel), aff’d, 561 U.S. 1040 (2010).

Content-neutrality supported the constitutionality of contribution limits.

But that logic works only if the parties get to decide how to spend their money for expressive

purposes. Or, as this Court described the pre-cromnibus state of affairs “[w]ith respect to national

political parties,” when “BCRA’s limits appl[ied] regardless of how a national party might want to

use the money.” Republican Nat’l Comm., 698 F. Supp. 2d at 153. That was then, this is now:

BCRA applies depending on how a national party might want to use its money. But if large

contributions are corrupting or appear corrupt, then why are some very large contributions suddenly

allowed, while much smaller contributions are still forbidden? Since Congress has abandoned the

“all large contributions corrupt the same regardless of what’s done with them” approach in favor of

“it’s not corrupting to give ten times as much, if it’s spent a certain way,” courts treating this as a

contribution limitation should expect to see some very good explanations for how the cromnibus

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regime is “closely drawn to meet the sufficiently important governmental interests of avoiding

corruption and its appearance.” McConnell, 540 U.S. at 168-69 (emphasis added).

The D.C. Circuit would be disappointed. The cromnibus has no legislative record to speak

of. No one had heard of this scheme until it suddenly found its way into the U.S. Code. Asked to

produce “documentary evidence comparing the corrupting potential of restricted, segregated

expressive purpose contributions with the corrupting potential of unrestricted, general purpose

contributions,” the FEC had nothing. PF 26. But under heightened constitutional review, the

government’s “justification must be genuine, not hypothesized or invented post hoc in response to

litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996).

Indeed, the FEC’s discovery responses make clear that it cannot carry its burden to defend

the cromnibus scheme under “closely drawn” scrutiny. After admitting that larger contributions are

generally more corrupting than smaller ones regardless of their use, PF 31, the FEC explained that

“Congress could have permissibly concluded” that the unrestricted contributions warrant greater

restrictions, PF 33, though it obviously did no such thing. Or maybe Congress could not have so

concluded. The FEC admitted, for example, that “[a] political party may in some circumstances

value a contribution with use restrictions more highly than a smaller contribution without such

restrictions,” PF 38; that “[a] political party may value a higher contribution with use restrictions,”

PF 39; that a cromnibus-approved segregated purpose contribution “may create the same or greater

appearance of corruption as an unrestricted contribution in the amount of $33,901,” PF 40; see also

PF 42; and indeed, “that a particular contribution below the general account limit may have an

appearance of corruption that exceeds that of a higher contribution to a segregated account,” PF 43.

Topping off these and other defects, the FEC’s discovery responses generally confirmed the

fact that political parties with sufficiently large cromnibus expenditures thereby circumvent the

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limits altogether. Every dollar that a party knows it will spend anyway on its building, convention

(up to $20 million), or lawyers, is another dollar that the party can use for any reason. So a

$300,000 donation to the RNC or DNC is not corrupting, because those parties have an approved

use for it; but a $35,000 donation to the LNC, which lacks federal officeholders, merits prosecution.

Because the anti-corruption goals allegedly served by the cromnibus expressive purpose restrictions

“affect First Amendment rights they must be pursued by means that are neither seriously

underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 805

(2011) (citation omitted).

The over-inclusiveness also renders the Sections 30116(a) and 30125 unconstitutionally

overbroad, as “a substantial number of [their] applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010)

(quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n. 6

(2008)). Every prospective contribution between the base limit of $33,900 and the total contribution

limit of $339,000 that is not solicited or accepted because it would not offset a sufficient amount of

segregated purpose dollars, and every such contribution that is foregone because donors are

discouraged from giving uselessly-restricted funds, reflects an unconstitutional application of the

provisions. Nearly all contributions between the base and total contribution limits to all but the two

major parties are impacted. The LNC is the only “third” party that even maintains a segregated

purpose account, PF 44, and it has been of only limited utility.

LNC’s facial challenges to the cromnibus expressive purpose restrictions bear further

briefing and consideration by the Court of Appeals. As reflected in the second question presented, it,

too, passes the “low bar” of certification.

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Finally, there need not be much said relating to the LNC’s third proposed question,

encompassing the LNC’s as-applied challenge to the application of the cromnibus expressive

purpose restrictions against the Shaber bequest. Even if it is determined that contribution limits can

be applied to that particular donation, and even if it is determined that the expressive purpose

restrictions do not doom the current statutes, there would still be the question of how the expressive

purpose restrictions legitimately advance any governmental interest with respect to Shaber’s

bequest. That question, too, is far from frivolous.

CONCLUSION

The LNC respectfully requests that the motion be granted, and that its proposed facts and

questions be certified to the en banc D.C. Circuit.

Dated: September 5, 2017 Respectfully submitted,

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

Gura PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura

Alan Gura

Attorney for Plaintiff

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