UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) 

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

 ) 

 v. ) 

 ) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO ALTER OR AMEND 

 ) 

 Defendant. ) 

 ) 

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO ALTER OR AMEND THE JUDGMENT 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

 

Holly J. Baker 

Kevin P. Hancock 

Attorneys 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

May 9, 2013 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 1 of 16
TABLE OF CONTENTS 

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

ARGUMENT .................................................................................................................. 2 

I. THE COMMISSION HAS SATISFIED RULE 59(e) BY PRESENTING 

CLEAR ERRORS OF LAW IN THIS COURT’S PRIOR RULING................. 2 

II. THE COURT’S RULING CONTAINS THREE CLEAR ERRORS 

OF LAW ............................................................................................................. 3 

A. The Court Applied a Test Akin to Strict Scrutiny’s Narrow 

Tailoring Instead of Closely Drawn Scrutiny ......................................... 3 

B. The Contribution Limit Prevents Bequests from Posing the 

Threat or Appearance of Corruption and Validly Applies 

to Burrington’s Bequest as a Matter of Law ........................................... 7 

C. Section 437h Cases Before the En Banc Courts of Appeals 

Could Proliferate Due to This Court’s Erroneous Ruling ..................... 12 

CONCLUSION ............................................................................................................. 13 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 2 of 16
Having correctly upheld the constitutionality of a contribution limit of the Federal 

Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, as applied to bequests, the Court 

erroneously certified a question under 2 U.S.C. § 437h as to the application of that limit to a 

single bequeathed contribution. Contrary to the Court’s ruling, contributors or recipients may 

not (and should not be allowed to) seek exemptions from FECA’s contribution limits for an 

individual contribution (in this case made through a bequest) based on an after-the-fact analysis 

of whether the contribution resulted in actual or apparent corruption. To our knowledge, this 

Court’s ruling is the only one ever to reach that conclusion. Certification here was clear error, 

and defendant Federal Election Commission’s (“Commission” or “FEC”) motion to alter of 

amend the Court’s judgment under Federal Rule of Civil Procedure 59(e) should be granted. 

 In response to the Commission’s opening brief, plaintiff Libertarian National Committee, 

Inc. (“LNC”) points to no case where another court has held that a contributor can receive an 

after-the-fact, individualized exception from a contribution limit. The least-restrictivealternative tailoring in which the Court engaged is a feature of strict scrutiny, not the applicable 

closely drawn standard, which the LNC concedes applies to contribution limits like the one at 

issue. The LNC points out that only thirteen other section 437h claims have ever been certified 

to the en banc Courts of Appeals, but that number underlines how limited review under section 

437h is. The prevalence of section 437h cases could increase greatly, however, should district 

courts adopt this Court’s rationale. 

The Commission respectfully requests that the Court alter or amend the judgment. 

 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 3 of 16
2 

ARGUMENT 

I. THE COMMISSION HAS SATISFIED RULE 59(e) BY PRESENTING CLEAR 

ERRORS OF LAW IN THIS COURT’S PRIOR RULING 

 Under Rule 59(e), this Court may alter or amend its judgment if the Commission “‘can 

present new facts or clear errors of law that compel a change in the court’s prior ruling,’” as the 

LNC’s opposition brief recognizes. (LNC Opp’n to Def.’s Mot. to Alter or Amend (“LNC 

Opp’n”) at 2 (quoting Amoco Prod. Co. v. Fry, 908 F. Supp. 991, 993 (D.D.C. 1995) (emphasis 

omitted) (Docket No. 51).) The Commission has satisfied this standard by pointing out clear 

errors of law demonstrating that the LNC failed to present any substantial constitutional 

question. (See Mem. of Points and Authorities in Supp’t of FEC’s Mot. to Alter or Amend the J. 

(“FEC Mem.”) at 8-13 (Docket No. 48).) 

 As an initial matter, contrary to the LNC’s claim, the Commission does not face a 

“greater” burden in meeting the Rule 59(e) standard because section 437h allegedly presents a 

“low bar” for certification. (LNC Opp’n at 2.) Section 437h is interpreted narrowly to limit 

certification to the en banc Courts of Appeals, as this Court noted (see Mem. Op. at 12 (Docket 

No. 41)), but regardless of whether the certification standard is strict or lenient, Rule 59(e) is 

satisfied here because the legal errors in finding that standard satisfied were “clear.” The 

Commission need not prove more. 

 Nor is the Commission required to present “alternative rationales” or “new legal theories” 

to show clear legal error, as the LNC contends. (LNC Opp’n at 2-3.) In fact, under Rule 59(e), a 

party may not present a new legal theory that was available prior to the judgment. Patton Boggs 

LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012). The Commission need only point 

out that the Court made a clear error of law on the basis of the legal arguments already put forth, 

as the Commission has here. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 4 of 16
3 

 Moreover, in its new, greatly narrowed form, the question certified by this Court presents 

only the insubstantial issue of whether the LNC can immediately receive the mere $7,534 that 

remains of the $217,734 Burrington bequest, or whether it must wait seven months to receive it 

at the end of the year. (See FEC Mem. at 4, 13 n.7.) The LNC responds (LNC Opp’n at 3 n.2) 

that the certified question will be saved from mootness by the capable-of-repetition-yet-evadingreview doctrine, but this incorrect contention misses the point: Even though the certified 

question will not be moot until the new year, it is — today — not factually substantial enough to 

warrant the attention of the en banc Court of Appeals since the LNC has already accepted the 

vast majority of the bequest.1

II. THE COURT’S RULING CONTAINS THREE CLEAR ERRORS OF LAW 

 The Court’s holding that 2 U.S.C. § 441a(a)(1)(B) (“Contribution Limit”) could be 

invalid as applied to just Burrington’s bequest — and its certification of a narrowed section 437h 

question on that basis — was clear legal error. The LNC has failed to demonstrate otherwise. 

A. The Court Applied a Test Akin to Strict Scrutiny’s Narrow Tailoring Instead 

of Closely Drawn Scrutiny 

This Court’s ruling erroneously applied a test akin to strict scrutiny’s narrow tailoring 

requirement, despite first recognizing that the Contribution Limit is subject only to the less 

rigorous “closely drawn” (i.e., intermediate) scrutiny. (See FEC Mem. at 11-12.) The certified 

question requires the Commission to prove an actual quid pro quo arrangement, or special access 

or benefits that make such an arrangement more likely, to justify applying the Contribution Limit 

to Burrington’s bequest. (Mem. Op. at 27-28.) This ruling, however, is directly contrary to the 

                                                           

1

 The Commission did not explicitly make this point in its pre-judgment briefs, but the 

LNC obviously had not argued for the narrow certification that the Court ultimately adopted. 

Given the ruling that neither party had anticipated, the Commission should not be foreclosed 

from pointing out this aspect of the ruling’s error. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 5 of 16
4 

Supreme Court’s holding in Buckley that Congress need not use means that are less restrictive 

than prophylactic contribution limits, such as bribery laws and disclosure requirements, to 

address “proven and suspected quid pro quo arrangements.” 424 U.S. 1, 27-28 (1976). 

 The LNC does not deny that this Court applied a less-restrictive-means test in certifying 

the section 437h question, nor does the LNC dispute that strict scrutiny utilizes least-restrictivemeans analysis. (LNC Opp’n at 14.) The LNC does claim that the Court applied proper 

tailoring because closely drawn scrutiny is allegedly “flexible” and “ambiguous” enough to also 

allow for a “less” (but not “least”) restrictive-alternative analysis. (Id.) The LNC makes no 

effort, however, to explain what means could be more restrictive than this Court’s requirement 

that evidence of actual corruption be produced to justify the Contribution Limit’s application to 

Burrington’s one bequest. And in any event, the LNC’s attempt to import a less-restrictivealternative analysis into closely drawn scrutiny is flatly contrary to Buckley. See, e.g., Colorado 

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 641 (1996) (Thomas, J., concurring in 

the judgment and dissenting in part) (“[T]he Buckley Court summarily rejected the argument 

that, because less restrictive means of preventing corruption existed — for instance, bribery laws 

and disclosure requirements — FECA’s contribution provisions were invalid.” (emphasis 

added)). 

As this Court correctly recognized (Mem. Op. at 14-15), the Supreme Court has been 

anything but ambiguous in repeatedly distinguishing closely drawn scrutiny from strict scrutiny: 

“[E]xpenditure limits are subject to strict scrutiny, while contribution limits will be valid as long 

as they satisfy ‘the lesser demand of being closely drawn to match a sufficiently important 

interest’” — and “[t]he Court has never repudiated this distinction.” McCutcheon v. FEC, 893 F. 

Supp. 2d 133, 137 (D.D.C. 2012) (three-judge court) (emphasis added) (quoting McConnell v. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 6 of 16
5 

FEC, 540 U.S. 93, 136 (2003)). To be sure, closely drawn scrutiny is a “heightened” form of 

scrutiny that requires “careful tailoring,” as the LNC stresses. (LNC Opp’n at 10 (quoting 

McConnell, 540 U.S. at 231, and Randall v. Sorrell, 548 U.S. 230, 237 (2006)).) But it is not 

strict scrutiny. 

The LNC effectively confirms that the Court’s ruling could only be appropriate under 

strict scrutiny by principally relying (LNC Opp’n at 6-8) on two cases applying that level of 

scrutiny. FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 476-82 (2007) (“WRTL”), and FEC 

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258, 263 (1986) (“MCFL”), both involved 

spending limitations. The Supreme Court thus applied strict scrutiny and not the intermediate, 

closely drawn scrutiny that is applicable to contribution limits like the one in this case. See

WRTL, 551 U.S. at 476-82; MCFL, 479 U.S. at 258, 263-65. 

Closely drawn scrutiny provides far more breathing room for prophylactic contribution 

limits than strict scrutiny does for expenditure limits. The governmental interest supporting a 

contribution limit need not support every particular application of that limit. For example, the 

Supreme Court in FEC v. Beaumont, applying closely drawn scrutiny, declined to create an 

MCFL-like exception to a contribution limit for certain non-profit advocacy corporations. See 

539 U.S. 146, 157-63 (2003) (acknowledging the Court’s reluctance to “second-guess a 

legislative determination as to the need for prophylactic measures where corruption is the evil 

feared” (internal quotation marks omitted)). Courts have thus repeatedly rejected as-applied 

challenges even where the class of contributions at issue posed a somewhat reduced danger of 

corruption, in contexts such as contributions from family members, contributions for 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 7 of 16
6 

administrative support rather than influencing elections, and anonymous contributions. (See 

FEC Mem. at 8-9 (citing cases).)2

 Given the flexibility associated with closely drawn scrutiny, as-applied exceptions to 

contribution limits are rare. But that does not mean the Commission takes the position that no

test is applied to ensure that a contribution limit’s scope is closely commensurate with its 

supporting governmental interest, as the LNC erroneously suggests. (LNC Opp’n at 12.) As the 

LNC itself acknowledges, the Supreme Court in McConnell, applying closely drawn scrutiny, 

invalidated a limit on contributions by minors because the restriction swept too broadly. (LNC 

Opp’n at 15 (citing McConnell, 540 U.S. at 231-232).) Similarly, in N.C. Right to Life, Inc. v. 

Leake, 525 F.3d 274, 293-95 (4th Cir. 2008), a contribution limit failed closely drawn scrutiny 

because the Fourth Circuit determined that the contributions at issue — contributions made to 

political committees that make only independent expenditures — do not threaten corruption at 

all. Thus, the Contribution Limit served no anti-corruption purpose and was not closely drawn. 

See id. 

But here, this Court determined that contributions by the deceased to national party 

committees do threaten corruption. (Mem. Op. at 19-21.) And thus, applying closely drawn 

scrutiny, this Court correctly found that the Contribution Limit furthers its purpose of preventing 

corruption “the same for bequests as for other contributions.” (Id. at 21.) The Court departed 

from closely drawn scrutiny, however, when it went on to suggest that the Contribution Limit 

might not apply to the Burrington bequest absent evidence of corruption. Requiring specific 

                                                           

2

 The Commission’s citation to FEC v. National Conservative Political Action Comm., 470 

U.S. 480, 500 (1985) (“NCPAC”), was intended to indicate that the Court in FEC v. National 

Right to Work Comm., 459 U.S. 197 (1982), had rejected an as-applied exemption for nonprofit 

corporations even though they “might not exhibit all of the evil that contributions by [for profit] 

corporations exhibit.” The holding in NCPAC itself involved an expenditure limit subject to 

strict scrutiny. 470 U.S. at 494-97. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 8 of 16
7 

evidence of actual and apparent corruption stemming from a single contribution would lead to a 

burdensome and amorphous inquiry.3

 And the Court’s ruling suggests that the Commission 

would have to monitor the Burrington bequest for evidence of corruption on an ongoing basis to 

justify the Limit’s application. (Mem. Op. at 28 n.8.) This kind of after-the-fact, individualized, 

case-by-case analysis subverts the purpose and utility of a bright-line prophylactic rule and is 

inconsistent with the flexibility that the LNC concedes closely drawn scrutiny provides. 

B. The Contribution Limit Prevents Bequests from Posing the Threat or 

Appearance of Corruption and Validly Applies to Burrington’s Bequest as a 

Matter of Law 

 Because bequeathed contributions threaten corruption and the appearance of corruption, 

this Court correctly concluded that the Contribution Limit validly applies, in general, to bequests 

to national party committees. (Mem. Op. at 19-21.) That ruling means that the Limit is also 

valid as applied to Burrington’s particular bequest. It was therefore error for the Court to find 

that there was a substantial question as to the Limit’s application to that single bequest. (Id. at 

27-28.) As the Commission noted (FEC Mem. at 7), we are aware of no other case in which a 

court has ruled that a constitutional contribution limit could be invalid as applied to one 

contribution absent corruption evidence about that particular contribution. And the LNC has 

identified no such case. 

FECA’s contribution limits are prophylactic rules. They prevent “the danger” and “the 

appearance” of quid pro quo corruption that is inherent in all large contributions. Buckley, 424 

                                                           

3

 The LNC argues that it is “not so” that this Court’s ruling would require the Commission 

to justify one application of the Contribution Limit by proving an actual quid pro quo or special 

access or benefits that make a quid pro quo arrangement more likely. (LNC Opp’n at 14.) The 

Court, however, certified the question about Burrington explicitly because “here there are no 

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

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

Burrington’s heirs or representatives now.” (Mem. Op. at 27 (emphasis added).) 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 9 of 16
8 

U.S. at 27-30. As a result, FECA’s limits validly apply to all contributions even though “most 

large contributors do not seek improper influence.” Id. at 29. This Court’s ruling acknowledged 

these features of the contribution limits. (Mem. Op. at 4-5, 21.) 

As with any prophylactic rule, contribution limits are not subject to individualized caseby-case analysis. See, e.g., Brown v. City of Pittsburgh, 586 F.3d 263, 273 (3d Cir. 2009) (“In 

light of the difficulties inherent in making the individualized, case-by-case judgments . . . [a] 

bright-line prophylactic rule may be the best way to provide protection, and, . . . offer[] clear 

guidance . . . .” (internal quotation marks omitted)). Indeed, the whole point of prophylactic 

rules like the Contribution Limit is to avoid such a difficult analysis. See id.; cf. Mem. Op. at 5-6 

(“[B]ecause of the difficulty in determining suspect contributions, ‘Congress was justified in 

concluding that the interest in safeguarding against the appearance of impropriety requires that 

the opportunity for abuse inherent in the process of raising large monetary contributions be 

eliminated.’” (quoting Buckley, 424 U.S. at 30)); see also FEC Mem. at 5-11. 

Even though contribution limits are not subject to individualized case-by-case analysis, 

they are subject to as-applied challenges that seek categorical exceptions, such as the LNC’s asapplied claim in this case as to bequests. The relevant question in these cases has been whether 

the particular class of contributions at issue (e.g., contributions by corporations, family members, 

or in this case, the deceased) presents the same dangers of corruption and its appearance that 

were identified in Buckley.

4

 (See FEC Mem. at 8-9 (citing cases).) If the dangers are present, 

                                                           

4

 In evaluating this question, the Supreme Court has recognized that it would be unrealistic 

to require evidence of past corruption when the limit under attack has been in place for decades. 

Thus, to uphold the limit at issue, the Court has required only that “experience under the present 

law confirm[ that] a serious threat of abuse” would result were the type of spending at issue no 

longer limited. FEC v. Colo. Republican Federal Campaign Comm., 533 U.S. 431, 457 (2001) 

(rejecting challenge to long-standing limits on spending that a party coordinates with its 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 10 of 16
9 

courts have upheld the contribution limit under attack because in that as-applied situation the 

limit continues to serve its constitutionally permissible prophylactic purpose. (See id.) 

Here, this Court found that application of the Contribution Limit to bequeathed 

contributions serves the intended purposes of preventing the danger and appearance of 

corruption. (Mem. Op. at 19-20.) So the Contribution Limit is valid as applied to all bequests 

— regardless of the fact that “most large contributors [of bequests] do not seek improper 

influence,” Buckley, 424 U.S. at 29 — and it is not subject to further case-by-case analysis. 

The Commission also explained in its motion to alter or amend that the erroneous 

evidentiary requirement placed on the Commission was compounded by the fact that 

Burrington’s bequeathed contributions were, in fact, subject to the Contribution Limit and 

disbursed accordingly (see FEC Mem. at 10-11). The LNC made no response. The lack of 

evidence of corruption proves, if anything, that the Contribution Limit worked, not that it might 

be unnecessary to serve the anti-corruption purposes here. (Mem. Op. at 27-28.) It was thus 

clear error to hold this lack of evidence against the validity of the Contribution Limit as applied 

to Burrington. See Wagner v. FEC, No. 11-1841, 2012 WL 5378224, at *7 (D.D.C. Nov. 2, 

2012) (“Congress need not roll back its longstanding [contribution limit] and wait for a scandal 

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

The LNC confuses apples for oranges when it asserts that this Court’s certified question 

is a routine example of a Court granting an exception to a prophylactic rule. (See LNC Opp’n at 

6-9.) The LNC argues (id.) that prophylactic rules may not apply to “entities posing no risk” to a 

governmental interest and that courts have at times created “workable” exceptions to 

prophylactic campaign finance statutes in other cases, citing cases where strict scrutiny applies 

                                                                                                                                                                                               

candidates) (citing Burson v. Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) 

(noting difficulty of mustering evidence to support long-enforced statutes)). 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 11 of 16
10 

such as MCFL. As explained above (supra p. 5), those cases are inapposite here. In any event, 

even if the same standard of scrutiny applied, the LNC’s arguments conflate (1) the categorical 

exception to the Contribution Limit for bequests that the LNC sought from this Court (and which 

the Court rejected) and (2) the individualized, case-by-case analysis of Burrington’s bequest 

impermissibly certified by the Court. MCFL is an example of the former, not the latter. The 

Supreme Court held there that an expenditure ban could not constitutionally apply to a category 

of non-profit corporations because such groups “do not pose th[e] danger of corruption.” MCFL, 

479 U.S. at 259.5 The Court thus crafted what became known as the “MCFL exception” — an 

objective test that identified three features an organization must have to be exempt from the 

spending limit. Id. at 263-65. These guideposts allowed other non-profit advocacy corporations 

to know ex ante whether they would also be exempt from the expenditure limit. 

What happened here is very different. This Court denied the LNC’s bid for an MCFLlike exception by rejecting the LNC’s argument that the deceased and their estates are “entities 

posing no risk” of corruption. (Mem. Op. at 19-21.) The Court’s ruling then went farther, 

however, in calling for a post hoc evaluation of whether one isolated contribution — that was 

already limited by FECA — caused corruption. In contrast to a categorical, MCFL-like 

exception that is based on the identity of the spender (e.g., the deceased or estates), the kind of 

case-by-case corruption analysis envisioned under this Court’s ruling would be unworkable for 

all involved: (1) Contributors would be left to guess ex ante whether they can contribute 

                                                           

5

 The LNC also cites WRTL (LNC Opp’n at 6-7), but like MCFL, WRTL carved out a 

categorical exemption to a FECA spending restriction on the basis of its conclusion that there 

was no corruption danger. As explained above (supra p. 5), because both MCFL and WRTL

involved spending limitations, the Supreme Court applied strict scrutiny and not the 

intermediate, closely drawn scrutiny that applies to contribution limits like the one in this case. 

Under the less rigorous closely drawn scrutiny, exemptions to contribution limits are far more 

rare. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 12 of 16
11 

amounts above the limits; (2) the Commission would have to engage in discovery relating to 

each individual contribution challenged to determine if the Contribution Limit validly applies; 

and (3) the en banc Courts of Appeals would have to entertain challenges to the Contribution 

Limit by every contributor who claims that his or her particular contribution did not result in 

corruption. (See also FEC Mem. at 8 n.4, 12-13.)6

This unworkable case-by-case analysis undermines the Court’s general ruling upholding 

the prophylactic limit as applied to bequests — and the LNC appears to recognize this. On April 

22, 2013, the LNC moved the Court of Appeals to consolidate both the certified and noncertified portions of this Court’s ruling before the en banc Court of Appeals.7

 (See Exhibit A.) 

The motion would seem to be an effort to circumvent this Court’s ruling that the LNC’s original 

proposed section 437h question is insubstantial. In support of its motion, the LNC argues that 

this Court’s certified and non-certified questions “logically should be heard” together because 

they are “based on the same legal analysis,” and thus reviewing the non-certified claim “would 

require no more work for the en banc court.” (Id. at 1-2, 9.) Also, the LNC argues that hearing 

both claims together would “maintain decision uniformity” and avoid “inconsistent rulings” were 

the two cases decided differently. (Id. at 1, 7.) Thus, even the LNC seems to acknowledge 

implicitly that this Court’s general upholding of the Contribution Limit as applied to bequests 

controls the specific issue of the Limit’s validity as applied to Burrington’s particular bequest. 

Because this Court found the broader question too insubstantial for section 437h certification, the 

                                                           

6

 These features also distinguish the inquiry under this Court’s decision from the analyses 

in cases like WRTL that focus on the specific text of ads, with limited reference to objective 

external facts. But a “corruption” analysis would be far more holistic and open-ended, even if 

based on factors such as whether the bequest at issue was made following little or no contact 

between the deceased and the party, or whether there was “special benefit or access.” 

7

 The LNC’s motion to consolidate is properly discussed here for the first time in the 

Commission’s reply brief since the LNC filed that motion with the D.C. Circuit on April 22, 

after the Commission filed its motion to alter or amend with this Court on April 15. 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 13 of 16
12 

entire case should be before a three-judge panel, not the en banc Court of Appeals. Accordingly, 

the Court’s ruling to the contrary was erroneous. 

C. Section 437h Cases Before the En Banc Courts of Appeals Could Proliferate 

Due to This Court’s Erroneous Ruling 

 The rationale of this Court’s ruling could multiply the number of section 437h cases 

before the en banc Courts of Appeals, contrary to the Supreme Court’s command that section 

437h be read narrowly to limit such cases. (See FEC Mem. at 12-13.) This Court’s ruling opens 

the door for virtually every individual contributor seeking an exemption from the contribution 

limits to request under section 437h that an en banc Court of Appeals perform an individualized 

case-by-case analysis of whether their contribution would cause actual or apparent corruption. 

(See id.) 

 The LNC has identified no case besides this Court’s ruling that has ever required such a 

case-by-case corruption analysis, particularly in the context of closely drawn scrutiny. The LNC 

observes that only thirteen previous cases have been certified to the en banc Courts of Appeals 

under section 437h (LNC Opp’n at 3), but that simply underlines how narrowly the section has 

been construed in the past. Section 437h cases could increase and burden the Courts of Appeals 

in the future under the reasoning of this Court’s ruling. It is arguably not frivolous under that 

ruling for one to claim that a particular contribution should be exempt from limitation because it 

did not result in corruption. (Mem. Op. at 27-28.) As a result, the number of claimants seeking 

to prove that they are “similarly situated” in the “follow-on litigation” the LNC admits is likely 

to occur (LNC Opp’n at 5) could be significant, given that “most large contributors do not seek 

improper influence,” Mem. Op. at 5; see Buckley, 424 U.S. at 29. 

 Nor would other limits on the use of section 437h prevent follow-on cases from 

proliferating, as the LNC claims. (LNC Opp’n at 4.) The statute permits “any individual eligible 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 14 of 16
13 

to vote” in a Presidential election to bring a section 437h claim. 2 U.S.C. § 437h. The LNC 

relies on Bread PAC v. FEC as a limit on the scope of section 437h review, but that case held 

only that trade associations and political committees cannot use section 437h, see 455 U.S. 577, 

578, 584-85 (1982). Furthermore, under the rationale of this Court’s ruling, the restrictions on 

section 437h that are described in Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981), and Goland v. 

United States, 903 F.2d 1247 (9th Cir. 1990) (see LNC Opp’n at 4) — including the requirement 

of standing, and the bars on hypothetical, insubstantial, and settled claims — would not limit 

similar follow-on litigation, just as they did not limit the certified question here. Accordingly, 

the Court’s ruling could lead to a substantial increase in the number of section 437h cases before 

the en banc Courts of Appeals. 

CONCLUSION 

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

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

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

Respectfully submitted, 

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

General Counsel 

aherman@fec.gov 

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

Deputy General Counsel – Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

 

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 15 of 16
14 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

khancock@fec.gov 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

May 9, 2013 (202) 694-1650

Case 1:11-cv-00562-RLW Document 54 Filed 05/09/13 Page 16 of 16