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No. 15-1455

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY 

DEMOCRATS, TEA PARTY LEADERSHIP FUND, and

ALEXANDRIA REPUBLICAN CITY COMMITTEE,

Plaintiffs-Appellants, 

and

AMERICAN FUTURE PAC,

Intervenor-Appellant,

v. 

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

_________________________________ _________________________________

APPELLANTS’ MOTION FOR PANEL 

REHEARING AND REHEARING EN BANC

Introduction and Statement of Purpose

Appellants respectfully request panel rehearing and rehearing en banc of the 

district court’s grant of summary judgment to Appellee Federal Election 

Commission (“FEC”) on Count III because, in counsel’s judgment, the panel 

opinion is in conflict with decisions of the U.S. Supreme Court and the conflict is 

not addressed in the opinion. See Fed. R. App. P. 35(b)(1)(A), 4th Cir. R. 

40(b)(iii). Specifically, the panel’s ruling concerning Count III conflicts with two 

holdings in the Supreme Court’s latest campaign finance case: McCutcheon v. 

FEC, 134 S. Ct. 1434 (2014). 

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1. In McCutcheon, 134 S. Ct. at 1448-49, the Court invalidated

aggregate contribution limits on the total amount of money a contributor may give 

to all recipients during an election cycle, see 52 U.S.C. § 30116(a)(3). In the 

instant case, the panel concluded that Congress may reduce by half the amount that

certain groups may contribute to local, state, and national political parties once

those groups have been registered with the FEC for six months and qualify as 

“multicandidate political committees” (“MPCs”).1 Slip op. at 30. This reduction 

in limits on contributions to political parties is constitutional, the panel concluded,

because the same statute also increases the amount that those groups may 

contribute to candidates upon reaching that six-month mark. Id. Thus, the panel 

justified a reduction in certain contribution limits as a tradeoff for an increase in 

other limits. This reasoning is directly contrary to McCutcheon’s holding that 

Congress may not limit the amount that a contributor may give to certain 

recipients, simply because that contributor may give more money to others. 

McCutcheon, 134 S. Ct. at 1448-49, 1452; see also Davis v. FEC, 554 U.S. 724, 

739 (2008). 

2. In McCutcheon, the Court also reiterated that it has “identified only 

one legitimate governmental interest for restricting campaign finances: preventing 

 

1 A “multicandidate political committee” (often referred to as a “multicandidate 

PAC”) is a political committee that has received contributions from more than 50 

persons, made contributions to five or more candidates, and has been registered 

with the FEC for at least six months. 52 U.S.C. § 30116(a)(4). 

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corruption or the appearance of corruption.” 134 S. Ct. at 1450; accord Davis, 554 

U.S. at 741-42. The panel, however, held that Congress was justified in reducing 

the amount that MPCs may contribute to political parties after they have been 

registered for six months because the amount MPCs may contribute to candidates 

simultaneously increases at that point. Slip op. at 30. The panel did not explain 

why an MPC poses a greater risk of corruption with regard to political parties after 

it has been registered for six months than throughout the first six months of its 

existence. Nor did it explain why MPCs pose a greater risk of corruption with 

regard to political parties than with regard to candidates (for which MPCs’ 

contribution limits are increased after six months). Indeed, the panel ruling 

literally does not even mention the word “corruption.” Thus, the panel ruling 

violates McCutcheon’s imperative that contribution limits are valid only when 

reasonably tailored to combating actual or apparent quid pro quo corruption. 

McCutcheon, 134 S. Ct. at 1450. The bizarre and internally inconsistent statutory 

scheme governing MPCs does not further any anti-corruption interest; to the 

contrary, it appears to have been an unintended accident that abridges First 

Amendment rights. 

Background

1. Statutory Framework—Count III is an Equal Protection challenge to 

Congress’ disparate treatment of two materially identical groups: MPCs, and 

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political committees that meet all the requirements set forth in 52 U.S.C. 

§ 30116(a)(4) for MPC status, except they have been registered for less than six 

months (hereafter, “Newer Committees”). Slip op. at 29-30. Federal law imposes 

the following disparate contribution limits upon these groups:

Contribution Recipient

Identity of Contributor

Newer Committees MPCs

Candidate $2,700 per election $5,000 per election

State or Local 

Political Party 

$10,000 annually $5,000 annually

National Political Party $33,400 annually $15,000 annually

See 52 U.S.C. § 30116(a)(1) (limits for Newer Committees), (a)(2) (limits for 

MPCs); see also Slip op. at 5 n.1 (noting that some Newer Committee limits are 

adjusted for inflation). 

This chart demonstrates a puzzling feature of the current scheme: once a 

Newer Committee has been registered for six months, thereby qualifying as an 

MPC, the amount it may contribute to candidates nearly doubles, while the amount 

it may contribute to political parties is slashed by half or more. Critically, as 

discussed in Part II below, the panel did not identify any reason—much less any

constitutionally valid reason—for this inconsistent treatment. 

2. Plaintiffs-Appellants’ Constitutional Challenge—Count III alleged 

that the Equal Protection component of the Fifth Amendment’s Due Process 

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Clause, see Bolling v. Sharpe, 347 U.S. 497, 499 (1954), prohibits Congress from 

cutting the amount that certain committees may contribute to political parties once 

they have been registered for six months, thereby allowing MPCs to contribute 

only half as much to political parties as Newer Committees. Such inconsistent 

treatment is especially unjustified in light of Congress’ determination that Newer 

Committees must wait until they qualify as MPCs before being able to contribute 

the full statutory amount of $5,000 per election to candidates. 

The Supreme Court has held that statutes which impose different restrictions 

on similarly situated entities concerning their ability to exercise their First 

Amendment rights, including the right to make campaign contributions, are subject 

to intermediate scrutiny. Cal. Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) 

(hereafter, “CalMed”).2 Appellants argued that the arbitrary discrimination in 

limits on contributions to political parties from MPCs and Newer Committees 

cannot survive such heightened scrutiny. Slip op. at 27. Such discrimination is 

especially senseless because it places much lower limits on MPCs than on Newer 

Committees, despite the fact that MPCs are established entities. Unlike Newer 

Committees, MPCs have filed numerous reports with the FEC disclosing their 

 

2 Accord Wagner v. FEC, 854 F. Supp. 2d 83, 96 (D.D.C. 2012), vacated on 

jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013); see also Police Dep’t of 

the City of Chicago v. Mosley, 408 U.S. 92, 102 (1972); cf. Austin v. Mich. State 

Chamber of Comm., 494 U.S. 652, 667-68 (1990), overturned on other grounds, 

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

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finances and thus, in the FEC’s view, should pose less of a corruption risk. See, 

e.g., Response Brief of Appellee Federal Election Commission, Doc #21, at 38 

(Aug. 10, 2015) (“[A] PAC that has existed for at least six months is more likely to 

be a bona fide group. After six months, a PAC is more likely to be a known 

commodity to donors and donees. . . . A six-month old PAC is also likely to have 

more members, more contributors, more contributions to candidates, and . . . will 

have publicly disclosed information to the FEC about itself.”). 

3. The panel ruling—The panel affirmed the district court’s grant of 

summary judgment to the FEC on Count III. Relying exclusively on the Supreme 

Court’s 35-year-old ruling in CalMed, the panel rejected the MPC’s Equal 

Protection claim because:

[T]he decrease in the amount of contributions that political 

committees, once they become MPCs, can make annually to state 

party committees or their local affiliates (from $10,000 to $5,000) and 

to national party committees (from $32,400 to $15,000) is more than 

counterbalanced by the increase in the limits in the amount of 

contributions that MPCs can make to individual candidates (from 

$2,600 to $5,000). . . . Appellants cannot demonstrate that [federal 

law] discriminates against MPCs . . . .

Slip op. at 30 (emphasis in original). 

Summary of Argument

The panel overlooked the numerous conflicts between its reasoning and the 

Supreme Court’s recent holding in McCutcheon, 134 S. Ct. 1434, in which the 

Court invalidated aggregate contribution limits. McCutcheon expressly repudiates

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the notion that Congress can impose tradeoffs upon contributors concerning the 

amounts they may contribute to different recipients. Id. at 1448-49, 1452. 

McCutcheon likewise rejected the panel’s premise that Congress may validly seek 

to limit or reduce the amount that a contributor may give to one recipient, on the 

grounds that the contributor gave more money to other recipients. Id. 

The panel’s reasoning also effectively exempts the Government from any 

obligation to articulate a valid purpose for reducing the amount that MPCs may 

contribute to local, state, and national political parties once they have been 

registered for six months. The panel held that limits on contributions from MPCs 

to political parties may be slashed because Congress simultaneously increased the 

limits on contributions from MPCs to candidates. McCutcheon expressly 

reaffirmed, however, that contribution limits are valid only if they further the 

Government’s interest in fighting actual or apparent quid pro quo corruption. 134 

S. Ct. at 1441.

Regardless of whether the “total” amount of liberty MPCs enjoy has been 

reduced, the Government still must articulate an anti-corruption rationale for this 

reduction in limits. Under McCutcheon, Congress may not restrict the amount that 

a committee may give to certain recipients, simply to limit the overall amount of 

money it contributes over the course of an election cycle. Id. at 1450. 

McCutcheon’s reasoning makes it virtually impossible for the Government to 

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demonstrate that a contribution from a political committee to a political party poses 

a greater risk of corruption once that committee has been registered for six months. 

Id. at 1452.

ARGUMENT ON PETITION FOR 

REHEARING AND REHEARING EN BANC

I. THE PANEL’S REASONING IS INCONSISTENT 

WITH MCCUTCHEON’S REPUDIATION OF 

AGGREGATE CONTRIBUTION LIMITS

In McCutcheon v. FEC, 134 S. Ct. 1434, the Supreme Court invalidated 52 

U.S.C. § 30116(a)(3)’s aggregate contribution limits on the total amount a person 

may contribute to all candidates, and all political committees, over the course of an 

election cycle. The Court recognized that, once a person had contributed the 

maximum permissible amount to nine candidates, she would hit her aggregate 

contribution limit and be prohibited from making any more candidate 

contributions. McCutcheon, 134 S. Ct. at 1448-49. It explained:

It is no answer to say that the individual can simply contribute less 

money to more people. To require one person to contribute at lower 

levels than others because he wants to support more candidates or 

causes is to impose a special burden on broader participation in the 

democratic process. . . . [T]he Government may not penalize an 

individual for ‘robustly exercis[ing]’ his First Amendment rights.

Id. at 1449 (quoting Davis v. FEC, 554 U.S. 724, 739 (2008)). 

Thus, McCutcheon rejects the notion that the Government can force 

contributors to make tradeoffs among the recipients of their contributions. In this 

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case, the panel recognized that the law imposes such a tradeoff on MPCs: although 

the limits on contributions from MPCs to candidates increases after six months, it 

is only at the cost of having the limits on contributions from MPCs to political 

parties dramatically reduced. Slip op. at 30. McCutcheon does not permit the 

Government to require an MPC “to contribute at lower levels” to political parties 

simply because it has the opportunity to “robustly exercis[e]” its First Amendment 

rights by giving more to candidates. McCutcheon, 134 S. Ct. at 1449 (quotation 

marks omitted). The panel ruling, however, did not address McCutcheon. 

The Court’s reasoning is similarly inconsistent with Davis v. FEC, 554 U.S. 

724 (2008). Suppose Congress had enacted a statute subjecting MPCs to the same 

contribution limits as Newer Committees, but stating that, if an MPC chooses to 

contribute between $2,701-$5,000 per election to a candidate, then the amount it 

may contribute to political parties gets cut in half. Under this scheme, MPCs that 

choose to exercise their right to contribute additional funds to candidates “must 

shoulder a special and potentially significant burden if they make that choice.” 

Davis, 554 U.S. at 739. The resulting reduction in limits on contributions to 

political parties would be a “penalty on any [committee] who robustly exercises 

[its] First Amendment right” by giving additional funds to candidates. Id. at 738-

39. 

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Under Davis, 554 U.S. at 739, such a “statutorily imposed choice” would 

likely be held unconstitutional due to the “resulting drag on First Amendment 

rights.” Davis prohibits the Government from requiring people to choose between 

“abid[ing] by a limit” on First Amendment rights and “endur[ing] [a] burden that is 

placed on that right by the activation of a scheme of discriminatory contribution 

limits.” Id. at 740; cf. Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721, 736, 739 (2011) (holding that a state may not “forc[e] that choice—

trigger matching funds, change your message, or do not speak” upon candidates or 

PACs). 

The challenged provisions in this case are even harsher than the hypothetical 

statute discussed above, because MPCs do not have a choice. Congress has forced 

upon them increased limits on contributions to candidates while dramatically 

reducing their ability to contribute to political parties—even for MPCs that wish to 

associate with parties rather than individual candidates. In the course of allowing 

MPCs to more “robustly exercise [their] First Amendment rights” through 

candidate contributions, Congress has simultaneously required them to “endure” a 

new “burden” on their ability to associate with political parties. Davis, 554 U.S. at 

738-39. Such a scheme is not permissible because it is foisted upon unwilling 

MPCs, rather than the result of a “statutorily imposed choice.” Id. 

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Because the panel ruling endorses the type of tradeoffs among First 

Amendment activities that McCutcheon and Davis emphatically reject, without 

recognizing or addressing these issues, this Court should grant rehearing or 

rehearing en banc. 

II. THE PANEL’S REASONING IS INCONSISTENT WITH 

MCCUTCHEON’S HOLDING THAT CONTRIBUTION LIMITS 

ARE VALID ONLY WHEN TIED TO COMBATTING ACTUAL 

OR APPARENT QUID PRO QUO CORRUPTION

The panel’s ruling also should be reconsidered because it relieves the 

Government of its obligation to articulate a constitutionally valid purpose for

reducing the amount that MPCs may contribute to political parties after they have 

been registered for six months. McCutcheon reiterated that “Congress may 

regulate campaign contributions to protect against corruption or the appearance of 

corruption. . . . Any regulation must instead target what we have called ‘quid pro 

quo’ corruption or its appearance.” McCutcheon, 134 S. Ct. at 1441 (emphasis 

added); accord Davis, 554 U.S. at 741 (“[P]reventing corruption or the appearance 

of corruption are the only legitimate and compelling government interests thus far 

identified for restricting campaign finances” (quoting Nat’l Conservative Political 

Action Comm., 470 U.S. 480, 496-497 (1985))). 

Here, the panel did not identify any anti-corruption interest that is served by 

slashing the amount that an MPC may contribute to political parties after the MPC 

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has been registered for six months. Cf. Slip op. at 29-30. Instead, the panel upheld 

that reduction because the amount MPCs may contribute to candidates 

simultaneously increases at that point. Id. at 30. The Supreme Court has never 

held, however, that a group’s First Amendment right to make political 

contributions to certain recipients may be curtailed simply because Congress has 

chosen to expand its ability to contribute to other recipients. Indeed, as discussed 

above, such tradeoffs run counter to McCutcheon and Davis. 

Moreover, the panel does not explain why a contribution of $10,000 to a 

local or state party, or $33,400 to a national party, from an MPC is potentially 

corrupting and therefore may be prohibited, when Congress did not believe that 

such contributions from materially identical groups that have been registered for 

less than six months raised enough of a risk of corruption to prohibit. The 

Supreme Court’s campaign finance rulings consistently reject such selective 

prohibitions. 

McCutcheon, for example, holds:

Congress’s selection of a $5,200 base limit indicates its belief that 

contributions of that amount or less do not create a cognizable risk of 

corruption. If there is no corruption concern in giving nine candidates 

up to $5,200 each, it is difficult to understand how a tenth candidate 

can be regarded as corruptible if given $1,801, and all others 

corruptible if given a dime.

134 S. Ct. at 1452. 

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Likewise, in Davis, the Court held:

[G]iven Congress’ judgment that liberalized limits for non-selffinancing candidates do not unduly imperil anticorruption interests, it 

is hard to imagine how the denial of liberalized limits to self-financing 

candidates can be regarded as serving anticorruption goals sufficiently 

to justify the resulting constitutional burden. 

554 U.S. at 741. 

In this case, Congress’s selection of $10,000 and $33,400 as base limits on 

contributions from Newer Committees to political parties “indicates its belief that 

contributions of th[ose] amount[s] or less do not create a cognizable risk of 

corruption.” 134 S. Ct. at 1452. “If there is no corruption concern” in such 

contributions, “it is difficult to understand how” identical contributions from the 

very same entities “can be regarded as corruptible” once those entities hit the sixmonth mark and qualify as MPCs. Id. “Given Congress’ judgment that liberalized 

limits” for Newer Committees “do not unduly imperil anticorruption interests, it is 

hard to imagine how the denial of liberalized limits to [materially identical MPCs] 

can be regarded as serving anticorruption goals sufficiently to justify the resulting 

constitutional burden.” 554 U.S. at 741. 

Thus, the reduction in limits on contributions from MPCs to political parties 

that occurs at the six-month mark does not further any valid anti-corruption 

interest. Contributions that were permissible when made by a committee that has 

been registered for only five months do not become more suspect, and therefore 

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more susceptible to regulation, once the committee has been registered for seven 

months, or seven years. Neither the panel nor the FEC has identified any reason 

why such longer-established committees pose more of a risk of corruption with 

regard to political parties than their newer counterparts. Quite the contrary—the 

longer a committee has existed, the more that is known about it, the more FEC 

reports it has filed, the more “established” it becomes, the more of a reputation it 

develops, and the more opportunity the FEC has to investigate it. Response Brief 

of Appellee Federal Election Commission, Doc #21, at 38 (Aug. 10, 2015). 

Likewise neither the panel nor the FEC has explained why this risk of corruption 

increases with regard to political parties after six months, while simultaneously 

decreasing with regard to candidates at that point (thereby justifying an increase in 

limits on contributions from MPCs to candidates). 

Thus, while the panel recognized that federal campaign finance law forces 

MPCs to essentially “trade off” their ability to contribute to political parties in 

exchange for a greater ability to contribute to candidates, slip op. at 30, it failed to 

identify any constitutionally valid reason for the reduction in limits on 

contributions to political parties that tradeoff entails. The Supreme Court has 

never held that a limit on one type of contribution may be lowered solely to offset 

additional rights granted by an increase in a different limit. Such tradeoffs in 

freedom are anathema to the First Amendment. 

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CONCLUSION

Because the panel ruling does not address, and is inconsistent with, the 

Supreme Court’s holdings in McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (and 

Davis v. FEC, 554 U.S. 724 (2008)), Plaintiffs-Appellants respectfully request that 

this Court grant either panel rehearing, or rehearing en banc. 

Respectfully submitted, 

/s/ Michael T Morley 

Dan Backer, Esq. Michael T. Morley, Esq.

DB CAPITOL STRATEGIES Coolidge-Reagan Foundation

203 S. Union Street 1629 K Street, N.W.

Suite 300 Suite 300

Alexandria, VA 22314 Washington, DC 20013

(202) 210-5431 (860) 778-3883

DBacker@DBCapitolStrategies.com Michaelmorleyesq@hotmail.com

Counsel for Appellants Stop Reckless Lead Counsel for Appellants

Economic Instability Caused by Democrats, and Appellant-Intervenor

Tea Party Leadership Fund, and 

Alexandria Republican City Committee

Jerad Najvar

NAJVAR LAW FIRM

4151 S.W. Freeway

Suite 625

Houston, TX 77027

(281) 404-4696

Jerad@najvarlaw.com

Counsel for IntervenorAppellant American 

Future PAC

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CERTIFICATE OF SERVICE

I certify that on April 8, 2016, the foregoing document was served on all 

parties or their counsel of record through the CM/ECF system if they are registered 

users or, if they are not, by serving a true and correct copy at the addresses listed 

below:

Harry Summers

Kevin Hancock

Federal Election Commission

999 E. St. NW. #910

Washington, D.C. 20463

Counsel for Defendant 

/s/ Michael T. Morley April 8, 2016

 Signature date

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