1

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LIBERTARIAN NATIONAL )

COMMITTEE, INC., ) No. 13-5094

)

Appellant, )

)

v. )

)

FEDERAL ELECTION ) OPPOSITION TO MOTION 

COMMISSION, ) FOR SUMMARY AFFIRMANCE

)

Appellee. )

)

APPELLANT LIBERTARIAN NATIONAL COMMITTEE’S

REPLY IN OPPOSITION TO APPELLEE’S MOTION FOR

SUMMARY AFFIRMANCE

Appellee Federal Election Commission (“FEC” or “the Commission”) 

applies the Federal Election Campaign Act’s (“FECA’s”) contribution limits to 

testamentary bequests. See, e.g., FEC Advisory Op. 2004-02, 2004 WL 1402536 at 

*2 (Feb. 26, 2004). But the deceased are plainly incapable of associating with 

political parties (or anyone else), nor can they enforce quid pro quo arrangements 

with individuals or political parties whom they may remember in their last wills 

and testaments. Bequests also differ from contributions given by living individuals 

in other critical ways. Usually, donors have no way of knowing when their 

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contributions might be received, who the candidates in the elections succeeding 

their deaths might be, or what issues the parties would stress in those elections.1

Of greater salience to this stage of the case, the question of whether 

contributions from the deceased pose a threat of corruption or the appearance 

thereof has never been litigated in any federal court—until now. 

Appellant Libertarian National Committee (“LNC”), bequeathed an amount 

of money in excess of the current limits, asserts that the FEC’s restrictions on its 

ability to accept testamentary bequests violate the First Amendment. Consequently, 

pursuant to 2 U.S.C. § 437h, the district court certified the dispute to this Court 

sitting en banc. FEC Mot. to Sum. Aff. at 1. It did so because “the plain text of 

section 437h grants exclusive merits jurisdiction to the en banc court of appeals.” 

Wagner v. FEC, 717 F. 3d 1007, 1011 (D.C. Cir. 2013). 

Although the FEC could point to no case determining the constitutionality of 

applying contribution limits to bequests, the district court granted partial summary 

judgment to the Commission and narrowed LNC’s question to the en banc Court of 

 1

Burrington’s bequest is instructive. When he drafted his will in 2000, Burrington 

could not have predicted his death seven years later, that his bequest might most 

immediately impact the 2008 election, or the identity of the presidential candidates 

and issues debated in that election.

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Appeals, an action that forms the basis of the instant, preliminary appeal. The FEC 

again brings forward no authority foreclosing LNC’s question. It thus fails to meet 

the extraordinary burden that summary affirmance requires.

LEGAL AND FACTUAL BACKGROUND

A. The Litigants

“The FEC is an independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement 

of FECA.” FEC Mot. for Sum. Aff. at 2. The LNC is the national party committee 

of the Libertarian Party of the United States. Mem. Op., Civ. No. 11-562, at 2 

(D.D.C. Mar. 18, 2013) (Dkt. 41). 

In 2007, the LNC learned that Raymond Groves Burrington had passed on, 

leaving it $217,734. Id. However, owing to the FEC’s interpretation of FECA, the 

LNC may presently only receive $32,400 per calendar year from an individual, 

even if that individual is deceased. 2 U.S.C. §§ 441a(a)(1)(B), 441i(a)(1); FEC 

Advisory Op. 2004-02 (Feb. 26, 2004). As a result, the LNC has been forced to 

leave the bequest in trust, withdrawing only this limited amount each year. But the 

LNC wants not only to recover the entirety of Burrington’s bequest immediately; it 

also wishes to establish a planned giving program by which it would solicit—and 

accept without restriction—testamentary bequests.

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B. Proceedings Before the District Court

FECA contains a special judicial review provision designed to ensure that 

“serious question[s] as to [FECA’s]...constitutionality” are resolved “at the earliest 

possible time.” Bread PAC v. FEC, 455 U.S. 577, 582 (1982) (internal citations 

and quotations omitted).

Under section 437h, a district court should perform three functions. 

First, it must develop a record for appellate review by making findings 

of fact. Second, the district court must determine whether the 

constitutional challenges are frivolous or involve settled legal 

questions. Finally, the district court must immediately certify the 

record and all non-frivolous constitutional questions to the en banc

court of appeals.

Wagner, 717 F.3d at 1009 (internal citations omitted). Indeed, “the plain text of 

section 437h grants exclusive merits jurisdiction to the en banc court of appeals.” 

Id. at 1011.

Frivolity under §437h is a legal term of art. The district court “must ... 

determine [that] the Supreme Court’s previous rulings have foreclosed the 

challenges before it,” or that the case raises otherwise “settled legal questions” by 

presenting a mere “sophistic twist” on settled doctrine. Cao v. FEC, 688 F. Supp. 

2d 498, 534 (E.D. La. 2010); see also SpeechNow.org v. FEC, 2009 U.S. Dist. 

LEXIS 89011 at *2 (D.D.C. 2009) (“The task before me is not to answer any 

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constitutional questions, or a render a judgment of any kind”); Wagner, 717 F.3d at 

1009; Goland v. United States, 903 F.3d 1247, 1257 (9th Cir. 1990).

The LNC sought to certify the following question: “Does imposing annual 

contribution limits against testamentary bequests directed at, or accepted or 

solicited by political party committees, violate First Amendment speech and 

associational rights?” The parties briefed the merits of LNC’s §437h claim and 

proposed findings of fact for certification to the en banc Court of Appeals. (Dkt. 

Nos. 24-38). The district court conducted a two-hour summary-judgment hearing 

on February 25, 2013, and handed down its ruling on March 18, 2013. 

The district court’s ruling revised LNC’s question to create a narrower 

challenge to the rule against a party committee soliciting or receiving bequests in 

excess of annual contribution limits. Mem. Op. at 23-28. In dismissing LNC’s

broader question, the district court did not determine that the legal question 

regarding testamentary bequests had been resolved by any federal court ruling, but 

rather that “bequests other than Burrington’s may very well raise the anticorruption concerns that motivated the Buckley [v. Valeo, 424 U.S. 1 (1976)] and 

McConnell [v. FEC, 540 U.S. 93 (2003)] Courts to dismiss a facial attack on 

contribution limits.” Mem. Op. at 20 (emphasis supplied).

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On April 15, 2013, the FEC filed a Fed. R. Civ. P. 59(e) motion to alter or 

amend the district court’s ruling, asserting that the court’s certification of the 

revised question was clear legal error because all challenges to party contribution 

limits had been resolved by, inter alia, the facial ruling in McConnell. FEC Mot. to 

Alt. (Dkt. 48). This motion necessitated a reply brief from the LNC on April 29, 

2013 (LNC’s Reply to FEC Mot. to Alt. (Dkt. 50)), followed by the FEC’s 

response on May 9, 2013 (FEC Response to LNC’s Reply to Mot. to Alt. (Dkt. 

54)). The district court denied the Commission’s Rule 59(e) motion on June 17, 

2013. Mem. Op., Civ. No. 11-0562 (D.D.C. June 17, 2013) (Dkt. 59).2 Thus, the 

narrower certified question is now pending before the en banc Court. See No. 13-

5088.

C. Proceedings Before This Court

On April 22, 2013, the LNC sought to have this appeal heard initially en 

banc, to have this appeal consolidated with the certified en banc proceeding (No. 

13-5088), or in the alternative, to have the en banc proceeding stayed until this 

appeal resolved the certified question’s scope. See LNC’s Pet. For Initial Hr’g En 

Banc and Mot. to Consolidate Related Appeals (Doc. No. 1432045). On September 

23, 2013, this Court, sitting en banc, denied the LNC’s initial en banc and 

 2 A copy of the district court’s ruling is attached as Exhibit 1.

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consolidation request, but granted LNC’s alternative request that the present matter 

be heard before its certified question. Per Curiam Order at 2 (Doc. No. 1457785).

STANDARD OF REVIEW

“A party seeking summary disposition bears the heavy burden of 

establishing that the merits of his case are so clear that expedited action is 

justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 

1987) (per curiam); see also Truesdale v. U.S. Dept. of Justice, 2012 U.S. App. 

LEXIS 17125 (D.C. Cir. Aug. 15, 2012). Accordingly, “[p]arties should avoid 

requesting summary disposition of issues of first impression for the Court.” D.C.

CIRCUIT HANDBOOK OF PRACTICES AND INTERNAL PROCEDURES 36 (2013). 

Indeed, the FEC’s motion for summary affirmance must be denied if “[t]he 

merits of the parties’ positions are not so clear as to warrant summary action.” 

Baird v. Gotbaum, 2013 U.S. App. LEXIS 21064 (D.C. Cir. July 19, 2013) (per 

curiam) (citing Taxpayers Watchdog, 819 F.3d at 297). 

Summary disposition is appropriate only where the moving party has 

carried the heavy burden of demonstrating that the record and the 

motion papers comprise a basis adequate to allow the fullest 

consideration necessary to a just determination.

Cascade Broad. Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C. Cir. 1987) 

(internal quotation and citation omitted). Such motions are generally disfavored. 

See, e.g. United States v. Fortner, 455 F.3d 752 (7th Cir. 2006).

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ARGUMENT

The LNC appealed this matter because the district court improperly ruled on 

the merits of its claim, even though “Congress’s obvious intent in enacting section 

437h was to deprive district courts and panels of the circuit courts of appeals of 

jurisdiction to consider the constitutionality of the FECA.” Wagner, 717 F.3d at 

1011 (quoting FEC v. Lance, 617 F.2d 365, 374 (5th Cir, 1980)). 

The Commission’s request for summary affirmance is extraordinary. 

Appellate review is an essential component of the due process of law. That is 

especially true in the instant case, which presents a novel and complex First 

Amendment issue.3

The standard governing this motion reflects the deep suspicion with which 

courts have approached motions for summary affirmance. The heavy burden the 

 3

Indeed, the district court found briefing and argument helpful: full briefing on the 

findings of fact, the FEC’s motion for summary judgment, and the FEC’s Rule 

59(e) motion were conducted below. Further, the summary judgment hearing in the 

district court lasted more than two hours. See Taxpayers Watchdog, 819 F.2d at 

297-298 (“To summarily affirm an order of the district court, this court must 

conclude that no benefit will be gained from further briefing and argument of the 

issues presented.”) (emphasis supplied).

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Commission must bear is compounded by the low standard the LNC must meet in 

this appeal. At this stage of a § 437h action, the FEC must show not only that the 

LNC is incorrect, but that its claim is frivolous and the “Supreme Court’s previous 

rulings have [either] foreclosed the challenges before it” or the case presents a 

mere “sophistic twist” on concretely settled law. Cao, 688 F. Supp. 2d at 534; 

Goland, 903 F2d at 1257.

A claim is not frivolous if the “window remains open” and the case has not 

been necessarily decided. Cao, 688 F. Supp. 2d at 534. As no federal court has 

ruled on the applicability of campaign finance statutes to the dead, that window 

indeed remains open. Further, by not certifying the full question to the en banc 

Court of Appeals, the district court exercised jurisdiction that Congress explicitly 

denied it. Wagner, 717 F.3d at 1016-1017 (“Inferior federal courts have only the 

jurisdiction the Congress confers upon them.”).

The FEC’s objection to this appeal is actually no different than its 

unsuccessful objection to the district court’s certification of this case, or, indeed, to 

the certification of any and all as-applied challenges to FECA’s contribution 

limits. “[B]ecause the general merits of the national-party contribution limit have 

been addressed in previous Supreme Court rulings,” the Commission asserts that 

LNC’s case has necessarily been decided, and its argument—that the deceased 

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cannot possibly serve as a nexus for quid pro quo corruption—is frivolous. Mot. 

for Sum. Aff. at 7 (emphasis supplied).This reasoning guided the FEC’s argument 

through extensive briefing below—including the Commission’s Fed. R. Civ. P. 

59(e) motion, which asserted that the court erred merely by certifying any portion 

of the LNC’s question.

In the FEC’s Rule 59(e) briefing, the Commission claimed that the district 

court acted erroneously because “[c]ourts have almost universally rejected such asapplied challenges to FECA’s contribution limits—even in cases where the threat 

of corruption was concededly somewhat diminished.” FEC Mot. to Alt. at 8 

(emphasis supplied). The FEC’s notion that “prophylactic contribution limits 

validly apply to all contributions, including those with no actual corrupt practice or 

effect,” is simply wrong. Mot. to Alt. at 7 (emphasis in original). 

If the FEC’s argument were correct, there could never be a successful asapplied challenge to a prophylactic contribution limit. But such challenges have 

been brought. See e.g. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en 

banc) (successful challenge to prophylactic contribution limit as-applied to those 

giving to political committees which only produce independent expenditures). 

The Commission’s argument revisits a well-trod path. The FEC has long 

relied upon facial constitutional holdings in an effort to block otherwise-valid asUSCA Case #13-5094 Document #1467285 Filed: 11/21/2013 Page 10 of 18
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applied challenges. But the courts have repeatedly rejected the Commission’s 

peculiar theory of constitutional jurisprudence. Indeed, the FEC fails to even cite 

the most important ruling on this point, the Supreme Court’s unanimous decision 

in Wisc. Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”). There, the Court

explicitly rejected the Commission’s view that McConnell “left ‘no room’ for asapplied challenges.” FEC v. Wisc. Right to Life, 551 U.S. 449, 456 (2007) (“WRTL 

II”). 

In the follow-on litigation, WRTL II, the Court also rejected the 

Commission’s contention that after “McConnell already held” a provision of the 

law “facially valid” the burdens of determining a law’s constitutionality must shift 

to the as-applied challenger. WRTL II, 551 U.S. at 464. The WRTL II Court noted 

that “McConnell’s analysis was grounded in the evidentiary record before the 

Court” and the McConnell Court considered the facial challenge before it on that 

record. WRTL II, 551 U.S. at 466, compare Mot. for Sum. Aff. at 9 (relying heavily 

on the evidentiary record before the Supreme Court in McConnell.) McConnell 

“did not adopt any test as the standard for future as-applied challenges.” Id. 

The same is true here: the record in McConnell and Buckley does not address 

bequests, and those cases consequently cannot block a subsequent as-applied 

challenge on that basis.

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It remains undisputed that, in the §437h context, “[o]nce a core provision of 

FECA has been reviewed and approved by the courts, unanticipated variations also 

may deserve the full attention of the appellate court.” Goland, 903 F.2d at 1257. A 

question presented to the district court for certification under §437h is only 

frivolous if it has been necessarily decided by the federal courts. Goland, 903 F.2d 

at 1257-1259 (where Buckley had upheld FECA’s contribution limits and its ban 

on anonymous contributions, “sophistic” to say contribution limits invalid “simply 

because [contributors] were anonymous”). And again, the Commission can point to 

no ruling discussing the applicability of contribution limits to bequests.

The Commission correctly states that “the LNC contends here that a large 

contribution to a national party is no longer potentially corrupting and will no 

longer look corrupt simply because it is bequeathed.” Mot. for Sum. Aff. at 10. But 

Buckley and McConnell hardly foreclose this case, given that both cases addressed 

the political activities of the living, not the dead, and upheld contribution limits 

precisely because the donors in those cases could engage in a variety of partysupporting activities not known to occur beyond the grave. Buckley, 424 U.S. at 28 

(contribution limits “leav[e] persons free to engage in independent political 

expression [and] to associate actively through volunteering their services”); 

McConnell v. FEC, 540 U.S. at 136 (contribution limits “leave the contributor free 

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to become a member of any political association and to assist personally in the 

association’s efforts on behalf of candidates”) (quoting Buckley, 424 U.S. at 22). 

No plaintiff in either case sought to challenge contribution limits as applied to 

bequests. 

Accordingly, while the Commission correctly notes that “[t]he Supreme 

Court’s rejection of the Libertarian Party’s challenge to contribution limits in 

Buckley remains good law, as does its rejection of the LNC’s challenge in 

McConnell,” the Commission pointedly ignores the obvious: in neither Buckley nor 

McConnell did the LNC challenge contribution limits as they applied to donations 

from the deceased. FEC Mot. for Sum. Aff. at 11 (internal citations omitted).4 For 

the same reason, the FEC misplaces reliance on Republican Nat’l Comm. v. FEC, 

 4 Indeed, if any argument presents a mere “sophistic twist,” it is the Commission’s 

assertion that the LNC’s participation in cases challenging campaign finance rules 

on other grounds forecloses it from bringing further as-applied challenges. Goland, 

903 F.2d at 1257; compare McConnell (Republican National Committee a 

plaintiff), with McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) 

(Republican National Committee a plaintiff), probable jurisdiction noted (U.S. 

Feb. 19, 2013).

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698 F. Supp. 2d 150 (D.D.C. 2010) (“RNC”).5 At the risk of landing blows the 

horse can no longer feel, RNC plainly did not involve testamentary bequests. RNC 

does not demonstrate that McConnell, or any other case, has necessarily or even 

theoretically decided the LNC’s full question. 

Indeed, the FEC’s use of RNC is an odd choice at this point in the 

proceedings. RNC is not a §437h challenge to FECA, but a decision by a threejudge panel of the district court with full authority to decide a question on the 

merits. And the RNC Court was able to reach conclusive determinations precisely 

because McConnell, a case “grounded in the evidentiary record before the 

[Supreme] Court,” explicitly foreclosed much of the RNC plaintiffs’ case. WRTL 

II, 551 U.S. at 466; see also RNC, 698 F. Supp. 2d 150, 157 (“McConnell upheld 

[Bipartisan Campaign Reform Act] § 323(a) against a facial challenge based on the 

same applications of the statute that the RNC now raises in its as-applied 

challenge.”). 

Because the Commission points to no evidence that the McConnell Court 

ever contemplated the ramifications of political contributions from the deceased, 

 5 The RNC Court did not, of course, rule that the RNC’s claims were invalid 

merely because the party participated in McConnell.

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the McConnell record, holding, and subsequent case law relying on McConnell, 

such as RNC, do not foreclose the LNC’s full question. 

Indeed, the FEC’s arguments in this respect are bizarre, considering its very 

aggressive discovery and factual development in this case. If McConnell’s record 

truly contained all the information needed to resolve LNC’s challenge, what was 

the point of FEC’s various third-party subpoenas, depositions, interrogatories, and 

document demands? The Commission certainly did not litigate this case as though 

all the necessary facts were settled and on file before the Supreme Court.

As-applied challenges to the campaign finance laws, even those laws that

function as prophylactic measures, are not automatically frivolous under §437h. 

See SpeechNow.org, 599 F.3d at 686; Cao, 688 F. Supp. 2d at 534. The LNC is 

before this Court because the district court improperly ruled on the merits of its 

proposed certified question, rather than merely determining if the LNC’s question 

was a novel one. And, indeed, in the two years and numerous briefs filed by the 

Commission, it has pointed to no case that has decided—or even considered—the 

constitutionality of restricting contributions from the dead. The FEC has simply 

not met the “heavy burden” required for the grant of a motion for summary 

affirmance. Taxpayers Watchdog, 819 F.2d at 297.

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CONCLUSION

The Commission’s motion for summary affirmance should be denied.

 Dated: November 21, 2013 Respectfully submitted,

/s/ Allen Dickerson 

 Alan Gura Allen Dickerson 

 Gura & Possessky, PLLC Center for Competitive Politics

 101 N. Columbus St., Suite 405 124 S. West St., Suite 201

 Alexandria, VA 22314 Alexandria, VA 22314

 703.835.9085/F: 703.997.7665 703.894.6800/F: 703.894.6811

 alan@gurapossessky.com adickerson@campaignfreedom.org

Counsel for Appellant

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LIBERTARIAN NATIONAL )

COMMITTEE, INC., ) No. 13-5094

)

Appellant, )

)

v. )

)

FEDERAL ELECTION ) CERTIFICATE OF SERVICE

COMMISSION, )

)

Appellee. )

)

CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2013, I filed the LNC’s Reply in 

Opposition to Appellee’s Motion for Summary Affirmance with the Clerk of the 

Court of the United States Court of Appeals for the District of Columbia via 

United States mail and the Court’s CM/ECF system.

Service was made on the following through the CM/ECF system:

Kevin P. Hancock

Lisa J. Stevenson

Kevin Deeley

Harry J. Summers

Holly J. Baker

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

USCA Case #13-5094 Document #1467285 Filed: 11/21/2013 Page 17 of 18
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/s/ Allen Dickerson

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, VA 22314

(703) 894-6800

adickerson@campaignfreedom.org

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