UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LIBERTARIAN NATIONAL 

COMMITTEE, INC., 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

 Civ. No. 16-121 (BAH) 

MOTION TO DISMISS 

 

 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION 

Defendant Federal Election Commission moves this Court for an order dismissing the 

complaint of plaintiff Libertarian National Committee, Inc. pursuant to Federal Rule of Civil 

Procedure 12(b)(1). In support of its motion, the Commission is filing the attached 

Memorandum in Support of Its Motion to Dismiss and in Opposition to Plaintiff’s Motion to 

Certify Facts and Questions and a Proposed Order. 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

October 5, 2017 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

/s/ Jacob S. Siler 

Jacob S. Siler (D.C. Bar. No. 1003383) 

Attorney 

jsiler@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 1 of 42
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LIBERTARIAN NATIONAL 

COMMITTEE, INC., 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

 Civ. No. 16-121 (BAH) 

MEMORANDUM SUPPORTING 

MOTION TO DISMISS AND 

OPPOSING MOTION TO CERTIFY 

 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION TO DISMISS AND IN OPPOSITION 

TO PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

October 5, 2017 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

Jacob S. Siler (D.C. Bar. No. 1003383) 

Attorney 

jsiler@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 2 of 42
i 

TABLE OF CONTENTS 

 Page 

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

BACKGROUND ...................................................................................................................... 2 

A. FECA’s Contribution Limits and Challenges to Them.....................................2 

B. FECA’s Treatment of Bequeathed Contributions .............................................5 

C. The Segregated Account Limits ....................................................................... 6 

D. The LNC and Its 2011 Lawsuit Challenging FECA’s Limit on Bequeathed 

 Contributions to Political Parties ......................................................................7 

E. Joseph Shaber’s Bequest to the LNC ...............................................................9 

F. The LNC’s Claims in This Case and Its Motion to Certify Facts and 

 Questions.........................................................................................................10 

ARGUMENT ...........................................................................................................................11 

I. STANDARDS OF REVIEW.......................................................................................11 

II. THE LNC’S CLAIM THAT THE SEGREGATED ACCOUNT LIMITS ARE 

 UNCONSTITUTIONAL IS FRIVOLOUS ................................................................12 

A. Closely Drawn Scrutiny Applies to the General and Segregated Account 

Limits Because They Are Contribution Limits, Not Expenditure Limits ........12 

B. The Segregated Account Limits Easily Survive Closely Draw Scrutiny ........18 

III. THE LNC’S CLAIM THAT APPLICATION OF CONTRIBUTION LIMITS 

TO THE SHABER BEQUEST VIOLATES THE FIRST AMENDMENT IS 

FRIVOLOUS ...............................................................................................................24 

A. Contribution Limits Are Preventative Rules Designed to Deter Corruption 

and So Their Constitutionality Does Not Depend on Whether There Is 

Evidence of Corruption for Any Individual Application of the Limits ...........25 

B. The LNC’s Suggestion That There Must Be Evidence of Corruption for 

Each Particular Bequest Is Frivolous ...............................................................27 

C. There Is No Viable Categorical Basis to Differentiate the Shaber Bequest ....28 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 3 of 42
ii 

D. The Certification Order in LNC I Does Not Require Certification of 

the LNC’s Claims Here ....................................................................................30 

E. The LNC’s Purported First Amendment Right to Receive Campaign 

Contributions Does Not Support the Certification of Its Proposed 

 Question ...........................................................................................................32 

IV. THE LNC’S CLAIM THAT APPLICATION OF CONTRIBUTION LIMITS 

TO THE SHABER BEQUEST VIOLATES THE FIRST AMENDMENT IS 

FRIVOLOUS ...............................................................................................................33 

CONCLUSION ........................................................................................................................35

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 4 of 42
iii 

TABLE OF AUTHORITIES 

Cases Page 

*Buckley v. Valeo, 424 U.S. 1 (1976) .................... 1-3, 13, 14, 16-18, 20, 21, 23, 25-28, 32-33

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .......................................................................2, 4

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................5, 25, 26, 27, 28

Davis v. FEC, 554 U.S. 724 (2008) .......................................................................19, 20, 23, 24

FEC v. Beaumont, 539 U.S. 146 (2003) ............................................................................25, 26

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ..........................18, 21

Gulf Power v. FCC, 669 F.3d 320 (D.C. Cir. 2012) ................................................................25

Holmes v. FEC, 823 F.3d 69 (D.C. Cir. 2016) ..................................................................11, 18

In re Cao, 619 F.3d 410 (5th Cir. 2010) ..................................................................................26

In re Exec. Office of President, 215 F.3d 20 (D.C. Cir. 2000) ................................................32

Johnson v. Comm’n on Presidential Debates, 869 F.3d 976 

(D.C. Cir. 2017) ...........................................................................................................12, 18

*Libertarian Nat’l Comm. v. FEC, 

930 F. Supp. 2d 154 (D.D.C. 2013) ...............................................5, 7, 8, 16, 24, 30, 31, 34

Libertarian Nat’l Comm. v. FEC, 950 F. Supp. 2d 58 (D.D.C. 2013) .............................8, 9, 31

Libertarian Nat’l Comm., Inc. v. FEC, No. 13–5094, 2014 WL 590973 

(D.C. Cir. Feb. 7, 2014) .............................................................................................1, 8, 24

McConnell v. FEC, 540 U.S. 93 (2003) ...............................5, 12, 14, 15, 16, 17, 21, 22, 23, 28

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ..........................................................................12

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ............................................................16

Randall v. Sorrell, 548 U.S. 230 (2006) ................................................................18, 19, 24, 32

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) .......................15, 21, 26 

Shapiro v. McManus, 136 S. Ct. 450 (2015) ...........................................................................12

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)....................................................12

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 5 of 42
iv 

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987) ......................................8

United States v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015) ..............................................27

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) ..............................................................13, 27, 28

Statutes 

18 U.S.C. § 201 ........................................................................................................................27 

26 U.S.C. § 9008 ......................................................................................................................19 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 307, 116 Stat. 81 

(Mar. 27, 2002) (codified as amended at 52 U.S.C. § 30116(a)(1)(B), (c)) ........................4 

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 

128 Stat. 2130 (Dec. 16, 2014) (codified at 52 U.S.C. § 30116(a)(d)) ..........................6, 19 

FECA Amendments of 1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 475 (May 11, 1976) 

(codified as amended at 52 U.S.C. § 30116(a)(1)(B)) .....................................................3, 4 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-46 ..........................................................2 

52 U.S.C. § 30101(14) ...................................................................................................4 

52 U.S.C. § 30110 ........................................................................................2, 10, 11, 33 

52 U.S.C. § 30116(a)(1)(B) ...............................................................5, 6, 12, 15, 34, 35 

52 U.S.C. § 30116(a)(9) ...............................................................................6, 12, 34, 35 

52 U.S.C. § 30116(a)(9)(A)-(C) ....................................................................................6 

52 U.S.C. § 30116(a)(9)(A) .........................................................................................15 

Gabriella Miller Kids First Research Act, Pub. L. No. 113-94, 128 Stat. 1085 (2014) 

(codified at 26 U.S.C. §§ 9008-09, 9012) ......................................................................6, 19 

Miscellaneous 

160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) ..............................................................19, 20 

160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014)...............................................................19, 20 

Brief of the Political Parties, Republican Nat’l Comm. v. FEC, Nos. 02-1727, 02-1733, 02-

1753, 2003 WL 21911213 (S. Ct. July 8, 2003) ..................................................................4 

FEC Advisory Op. 2015-05 (Shaber), 2015 WL 4978865 (Aug. 11, 2015)..........................5, 6 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 6 of 42
v 

FEC, Types of Political Party Committees, https://www.fec.gov/help-candidates-andcommittees/registering-political-party/types-political-party-committees/ ..........................4 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 82 Fed. Reg. 10904 (Feb. 16, 2017) ............................5, 6 

Reply Br. of the Appellants, Buckley v. Valeo, 1975 WL 171458, *19, *50 

(U.S. filed Nov. 3, 1975)................................................................................................3, 21 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 7 of 42
1 

INTRODUCTION 

For more than forty years, the Libertarian Party has sought to have federal contribution 

limits subject to strict scrutiny and found to be impermissible content-based spending 

restrictions. The Supreme Court has repeatedly rejected those claims and instead held that 

restrictions on political contributions are a permissible response to the risk of corruption and its 

appearance, so long as the limits are set at levels that allow candidates and political parties to 

amass the resources necessary to engage in effective campaign advocacy. Buckley v. Valeo, 424 

U.S. 1, 20-22 (1976) (per curiam). In this case, plaintiff Libertarian National Committee, Inc. 

(“LNC”) once again seeks to have a contribution limit struck down as a content-based 

expenditure limit. But the LNC’s claim is even more far-fetched here. The LNC now contends 

that Congress violated the First Amendment when it relaxed the burden of an annual contribution 

limit by permitting national party committees like the LNC to raise substantial additional funds 

for certain activities, even though that change obviously increases the pool of funds that are 

potentially available. 

The LNC also challenges the application of that contribution limit to a testamentary 

bequest it has received. But in 2013, the LNC’s claim that a contribution limit could not be 

constitutionally applied to bequests was rejected, with the Court of Appeals finding “[t]he merits 

of the parties’ positions . . . so clear as to warrant summary action.” Libertarian Nat’l Comm., 

Inc. v. FEC, No. 13-5049, 2014 WL 590973, at *1 (D.C. Cir. Feb. 7, 2014). To avoid that 

decision, the LNC now simply asserts that it has a right to accept the one new bequest. 

However, the LNC offers no valid basis to distinguish that bequest from any other. Thus, there 

is no reason to grant an ad hoc exemption to a preventative contribution limit that has been 

repeatedly upheld. 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 8 of 42
2 

To make these challenges, the LNC invokes a special review procedure in the Federal 

Election Campaign Act (“FECA”) that provides for certification of constitutional claims raised 

by certain litigants to the en banc Court of Appeals. 52 U.S.C. § 30110. That procedure, 

however, does not permit certification of constitutional claims that are frivolous. See Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981). All of the LNC’s claims here are obviously 

frivolous because they are foreclosed by binding precedent and the LNC does not attempt to 

present a nonfrivolous argument to overturn that precedent. Instead, the LNC merely asks this 

Court to apply “the current state of First Amendment precedent,” while invoking arguments that 

have been squarely foreclosed by that very precedent. (LNC’s Mem. of P. & A. in Supp. of Pl.’s 

Mot. to Certify Facts and Questions (“LNC Mem.”) at 17 (Docket No. 24-1).) Because the 

LNC’s constitutional claims are wholly insubstantial, this Court should decline to certify its 

proposed questions to the en banc Court of Appeals. Instead, the Court should dismiss this case 

for lack of subject-matter jurisdiction, a decision that would not, of course, foreclose review of 

the LNC’s claims under ordinary appellate procedures. 

BACKGROUND 

A. FECA’s Contribution Limits and Challenges to Them 

Defendant Federal Election Commission (“FEC” or “Commission”) is an independent 

federal agency that is responsible for administering, interpreting, and civilly enforcing FECA, 52 

U.S.C. §§ 30101-46. In 1974, in response to the Watergate scandal and the “deeply disturbing” 

reports from the 1972 federal elections of contributors giving large amounts of money to 

candidates “to secure a political quid pro quo,” Buckley, 424 U.S. at 26-27 & n.28, Congress 

enacted limits on contributions from individuals and other groups to candidates. Id. at 23-24. 

The Libertarian Party and other plaintiffs contended that the contribution limits needed to be 

justified by a “compelling governmental interest” and were a “regulation of the content of 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 9 of 42
3 

speech” because groups were permitted to give higher amounts than individuals and only unions 

and corporations were permitted to spend without limits to communicate with and raise funds 

from associated persons. See Reply Br. of the Appellants, Buckley v. Valeo, 1975 WL 171458, 

*19, *50 (U.S. filed Nov. 3, 1975). Plaintiffs also contended that the contribution limits 

discriminated against challengers to incumbents to such an extent that they amounted to a 

regulation on “the quantity of political communication,” id. at *53, and were overbroad because 

“most large contributors do not seek improper influence over a candidate’s position or an 

officeholder’s action,” Buckley, 424 U.S. at 29. 

The Supreme Court rejected each of these contentions. Rather than the “compelling” 

interest associated with strict scrutiny, the Court held that contribution limits need be supported 

only by a “sufficiently important interest” as part of an intermediate, “closely drawn” scrutiny. 

Id. at 25. Congress’s effort to “limit the actuality and appearance of corruption resulting from 

large individual financial contributions” was such an interest. Id. at 26. The Court found that 

rather than acting as a spending limit, the “overall effect of the Act’s contribution ceilings is 

merely to require candidates and political committees to raise funds from a greater number of 

persons” and encourage direct political expression by some people. Id. at 21-22. The Court 

concluded that the plaintiffs’ claims of discrimination were “without merit” and that Congress 

was justified in limiting all contributions even if it is “difficult to isolate suspect contributions.” 

Id. at 29-30, 35. 

After other FECA provisions that restrained campaign spending were struck down, in 

1976 Congress added a limit to the amount that individuals may contribute each calendar year to 

any national political party committee. See FECA Amendments of 1976, Pub. L. No. 94-283, § 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 10 of 42
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112(2), 90 Stat. 475 (May 11, 1976) (codified as amended at 52 U.S.C. § 30116(a)(1)(B)).1

 In 

2002, Congress increased the limit from $20,000 to $25,000 and indexed it for inflation. See

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 307(a)(2), (d), 116 Stat. 81 

(Mar. 27, 2002) (codified as amended at 52 U.S.C. § 30116(a)(1)(B), (c)). Also in 2002, 

Congress banned the national party committees’ then-practice of accepting “soft money” 

donations (i.e., funds raised outside of FECA’s limitations, prohibitions, and reporting 

requirements) by requiring that all contributions to those committees be subject to FECA’s 

limits. Id. § 101(a) (codified at 52 U.S.C. § 30125(a)). At the same time, Congress generally 

prohibited state, district, and local committees of political parties from spending such nonfederal 

funds on “Federal election activity,” although these groups may raise funds for activities falling 

outside the statutory definition of that term without regard to federal restrictions. Id. (codified as 

amended at 52 U.S.C. § 30125(b)(1)). 

The following year, the LNC (a national committee of the Libertarian Party, Compl. ¶ 1) 

along with other plaintiffs renewed the Libertarian Party’s effort to (a) have contribution limits 

be subjected to strict scrutiny and struck down for (b) regulating fundraising that purportedly 

could not corrupt federal candidates, (c) having a disproportionate impact on minor parties, and 

(d) discriminating against political parties in a manner “similar to that from content-based 

regulation.” See Brief of the Political Parties, McConnell v. FEC (and consolidated cases), Nos. 

02-1727; 02-1733; 02-1753, 2003 WL 21911213, *35-39, *50-57, *64-69, *91-98 (U.S. filed 

 1

 A “national committee” under FECA is the “organization which, by virtue of the bylaws 

of a political party, is responsible for the day-to-day operation of such political party at the 

national level, as determined by the Commission.” 52 U.S.C. § 30101(14). Examples include 

the Libertarian National Committee, Inc., the Republican National Committee, the Democratic 

National Committee, and the Green Party of the United States, as well as committees of certain 

of those parties that are established specifically to elect candidates to Congress. See FEC, Types 

of Political Party Committees, https://www.fec.gov/help-candidates-and-committees/registeringpolitical-party/types-political-party-committees/. 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 11 of 42
5 

July 8, 2003). The Supreme Court once again rejected each of the LNC’s claims and upheld the 

constitutionality of the limits on contributions to political parties. See McConnell v. FEC, 540 

U.S. 93, 133-89 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 

310, 366 (2010). The Court found that the limits on contributions to political party committees 

are (a) subject to closely drawn scrutiny, (b) serve to prevent corruption and its appearance for 

all funds raised and spent, (c) do not unduly infringe the rights of minor parties, and (d) do not 

unconstitutionally discriminate against political parties. Id. at 144-45, 155, 158-59, 161, 187-88. 

After adjusting for inflation, the annual limit on contributions a person may give to a 

national party committee’s general fund now stands at $33,900. 52 U.S.C. § 30116(a)(1)(B); 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling 

Disclosure Threshold, 82 Fed. Reg. 10904, 10905-06 (Feb. 16, 2017). 

B. FECA’s Treatment of Bequeathed Contributions 

The Commission has determined that FECA’s contribution limits apply to testamentary 

estates just as those limits would have applied to the decedent were he or she still living. See, 

e.g., FEC Advisory Op. (“AO”) 2015-05 (Shaber), 2015 WL 4978865, at *2 (Aug. 11, 2015) 

(citing AOs). As a result, when an estate distributes a decedent’s bequest to a political party, the 

distribution must comply with the relevant FECA contribution limit. See Libertarian Nat’l 

Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 165 (D.D.C. 2013) (“LNC I”) (“The FEC’s 

interpretation of the statute to include a testamentary bequest appears reasonable . . . and is 

entitled to deference under Chevron.”), aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. 2014). 

In cases where a decedent’s will instructs an estate to give an amount that is in excess of the 

relevant contribution limit, the FEC has advised that the estate or an independent third party 

(such as a trustee or escrow agent) may retain the funds and contribute them to the recipient in 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 12 of 42
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subsequent years in amounts that comply with FECA’s limits until the bequeathed sum is 

depleted. See, e.g., AO 2015-05 (Shaber), 2015 WL 4978865, at *2-3. 

C. The Segregated Account Limits 

In 2014, Congress amended two campaign finance provisions that affect the ability of 

national party committees to raise money. In April 2014, Congress terminated a program that 

had provided public funding for presidential nominating conventions to national political parties 

that met certain criteria. See Gabriella Miller Kids First Research Act, Pub. L. No. 113-94, 128 

Stat. 1085 (2014) (codified at 26 U.S.C. §§ 9008-09, 9012). That repeal put all national political 

parties on a level playing field in that no party receives public funding for conventions, but the 

change required each party to finance its own presidential nominating conventions exclusively 

through contributions. 

Later that same year, Congress amended FECA to increase the amount national political 

party committees could raise into three types of “separate, segregated account[s]” which could be 

“used solely to defray expenses incurred with respect to” three categories of activities. 52 U.S.C. 

§ 30116(a)(9)(A)-(C); see Consolidated and Further Continuing Appropriations Act, 2015, Pub. 

L. No. 113-235, 128 Stat. 2130, 2772 (Dec. 16, 2014) (codified at 52 U.S.C. § 30116(a)-(d)). 

The national committees are now permitted to raise additional money for these accounts to 

defray expenses incurred with respect to: (1) “a presidential nominating convention”; (2) “the 

construction, purchase, renovation, operation, and furnishing of one or more headquarters 

buildings of the party”; and (3) “the preparation for and the conduct of election recounts and 

contests and other legal proceedings.” 52 U.S.C. § 30116(a)(9). For contributions to each of 

these accounts, the relevant limit is “300 percent of the amount otherwise applicable” to 

contributions to national political party committees. Id. § 30116(a)(1)(B). That calculation 

currently amounts to $101,700. See 82 Fed. Reg. 10904, 10905-06 (Feb. 16, 2017). The 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 13 of 42
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Commission will refer to the limits applicable to these accounts collectively as the “segregated 

account limits.”2 Notwithstanding the segregated account limits, a national party committee may 

still use funds raised through the general party limit on any expenses it wishes, even if it also 

raises money through the segregated account limit. Moreover, FECA does not require national 

party committees to establish these accounts if they elect not to do so. 

D. The LNC and Its 2011 Lawsuit Challenging FECA’s Limit on Bequeathed 

Contributions to Political Parties 

In addition to its other challenges to FECA’s contribution limits, the LNC has also filed a 

lawsuit against the Commission arguing that FECA abridges its constitutional rights specifically 

with respect to bequeathed contributions. In 2011, the LNC challenged the constitutionality of 

applying the general party contribution limit to testamentary bequests. See Libertarian Nat’l 

Comm. v. FEC, Civ. No. 11-562-RLW (D.D.C. filed Mar. 17, 2011). In that case, the LNC 

alleged that it had been the beneficiary of a $217,734 bequest from deceased donor Raymond 

Groves Burrington, and it sought a court order permitting it to accept the entire amount in one 

lump sum. LNC I, 930 F. Supp. 2d at 156. Based on these facts, the LNC asked the district court 

to certify to the en banc Court of Appeals the question whether “imposing annual contribution 

limits against testamentary bequests directed at, or accepted or solicited by political party 

committees, violate First Amendment speech and associational rights.” Id. 

The district court held that the LNC’s challenge as stated was “[f]rivolous and/or 

[i]nsubstantial,” and thus the court declined to certify it to the en banc D.C. Circuit. LNC I, 930 

F. Supp. 2d at 165-67. The court explained that the LNC’s case “raise[d] issues that the Supreme 

Court has already addressed.” Id. at 166. The court first pointed out that the Supreme Court had 

 2

 The LNC’s shorthand for these statutory limits is “the cromnibus expressive purpose 

restrictions.” (LNC Mem. at 17; Pl.’s Facts Submitted for Certification (Docket No. 24-3) 

(“LNC Proposed Facts”) ¶ 22.) That shorthand is argumentative and misleading. The 

Commission will refer to the limits by the above term, which is drawn from the provision itself. 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 14 of 42
8 

previously held, in Buckley and McConnell, that FECA’s contribution limits validly apply to 

minor political parties like the Libertarian Party. Id. at 165. The district court also determined 

that bequests to political parties “may very well raise the anti-corruption concerns that motivated 

the Buckley and McConnell Courts to dismiss a facial attack on contribution limits.” Id. at 166-

67 (citing the FEC’s record evidence). On appeal, the D.C. Circuit summarily affirmed that 

aspect of the district court’s ruling, Libertarian Nat’l Comm. v. FEC, 2014 WL 590973, at *1, 

which means the Commission had met the “heavy burden of establishing that the merits of [its] 

case [we]re so clear that expedited action [wa]s justified,” Taxpayers Watchdog, Inc. v. Stanley, 

819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). 

The district court did also reframe the question proposed by the LNC to exclude the 

aspects of it that the court deemed ineligible for certification. LNC I, 930 F. Supp. 2d at 168-71. 

The greatly narrowed question that the court certified addressed whether FECA’s contribution 

limit violated the LNC’s First Amendment rights solely as applied to the Burrington bequest. 

That bequest was distinguishable from other bequests, the Court found, because during 

Burrington’s life he had made only a single $25 contribution to the LNC, had no known 

interaction with the party other than that single contribution, and had not indicated to the LNC 

that he planned to leave money to the organization in his will. Id. at 170-71. Misperceiving the 

import of broader arguments the Commission had made, the court’s understanding was that “the 

FEC did not really respond to [the LNC’s arguments about the Burrington request] in its briefs.” 

Id. at 170. After the issuance of this order reframing the question, the FEC asked the district 

court to reconsider, arguing that FECA’s contribution limits were preventative rules that were 

not amenable to individualized exceptions. See Libertarian Nat’l Comm. v. FEC, 950 F. Supp. 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 15 of 42
9 

2d 58, 60 (D.D.C. 2013). Applying the “clear error” standard of review applicable to postjudgment motions, the district court denied the FEC’s motion. Id. at 63. 

While the case was pending before the Court of Appeals, the remainder of Burrington’s 

bequest was distributed to the LNC through the annual application of the general party limit. As 

a result, the en banc D.C. Circuit vacated the district court’s ruling related to the Burrington 

bequest specifically and dismissed that portion of the LNC’s case as moot. See Order, 

Libertarian Nat’l Comm. v. FEC, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc) (Doc. No. 

1485531). 

E. Joseph Shaber’s Bequest to the LNC 

Joseph Shaber was a long-time LNC donor who had made contributions to the LNC 

dating as far back as 1988. (FEC Exh. 13; Compl. ¶ 15.) While he was alive, Shaber made 47 

contributions totaling $3,315 to the LNC, with $1,900 of that total contributed in 2011 and 2012. 

(FEC Exh. 13.) Shaber’s contributions made him eligible to be a “life member” of the LNC. 

(FEC Exh. 6, at 78:5-20.) And Shaber’s contributions led the LNC to send him regular 

solicitations and an invitation to at least one VIP event. (Id.; FEC Exhs. 5, 14.) 

Shaber died in August 2014, leaving a bequest to the LNC that was eventually 

determined to be worth $235,575.20. (Compl. ¶ 17.) Shaber did not restrict how the LNC could 

use this bequest, and at one point the representatives of his estate requested that the LNC accept 

the full amount of the bequest all at once, pursuant to the segregated account limits. (FEC Exhs. 

16, 28.) The LNC declined to do so. Instead, the trustee of Shaber’s estate entered an agreement 

with the LNC to hold the remaining funds in escrow, to be distributed to the LNC each year at 

the maximum general party limit pursuant to 52 U.S.C. § 30116(a)(1)(B). (See Compl. ¶¶ 19-20; 

FEC Exh. 27.) As the LNC’s Chair later explained in an internal communication, one of the 

reasons the LNC did not want to take money from the Shaber bequest for its building fund was 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 16 of 42
10 

that the LNC was “suing the Federal government over the limitations on how much we can take 

from a bequest in a particular year.” (FEC Exh. 17, at 1.) The LNC’s treasurer was in favor of 

accepting an additional $100,200 to pay down the principal on the LNC’s building in 2016, but 

the LNC did not do so after the party’s governing body deadlocked 8-8 on the treasurer’s 

proposal. (Id.; FEC Exh. 26, at 3.) 

Accordingly, to date the LNC has reported receiving $100,200 from the Shaber bequest 

in three distributions of $33,400 each. These contributions were received by the LNC on 

February 25, 2015, January 29, 2016, and January 3, 2017. (See FEC Exhs. 18-20.) 

F. The LNC’s Claims in This Case and Its Motion to Certify Facts and 

Questions 

Although the LNC acknowledges that the general limits on contributions to national 

political party committees have been upheld as consistent with the First Amendment as a facial 

matter (Compl. ¶ 24), the LNC nevertheless seeks to enjoin the Commission from enforcing the 

limits either generally or as applied to the Shaber bequest (Compl. at 10, Prayer for Relief ¶ 1). 

The LNC asserts three specific claims here. In count I, the LNC claims that the general party 

limit is invalid under the First Amendment as applied to the Shaber bequest. In counts II and III, 

the LNC claims that Congress’s creation of the segregated account limits transformed the preexisting annual party contribution limit, currently $33,900, into a “content-based restriction on a 

national party’s speech” that violates the First Amendment, either facially or as applied to the 

Shaber bequest. (Compl. at 2; see id ¶¶ 21-34.) 

Invoking the special procedures for judicial review of the constitutionality of FECA 

pursuant to 52 U.S.C. § 30110, the LNC now 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? 

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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? 

(LNC Mem. at 3.) 

The LNC also submits proposed facts for certification (Docket No. 24-3), and the 

Commission submits herewith its own proposed factual findings, as well as a response to the 

LNC’s proposed facts. Should the Court decide to certify any question to the Court of Appeals, 

it should also make factual findings sufficient to aid in review by that court. Cal. Med. Ass’n, 

453 U.S. at 192 n.14 (recognizing that “immediate adjudication of constitutional claims” under 

the predecessor to section 30110 “would be improper in cases where the resolution of such 

questions required a fully developed factual record”). 

ARGUMENT 

I. STANDARD OF REVIEW 

In this lawsuit, the LNC has invoked the special procedures for judicial review of the 

constitutionality of FECA under 52 U.S.C. § 30110. As relevant here, that section permits the 

“national committee of any political party” to bring suits “to construe the constitutionality of any 

provision of” FECA, and it provides that the “district court shall immediately certify all 

questions of constitutionality of [FECA] to the United States court of appeals for the circuit 

involved, which shall hear the matter sitting en banc.” Id. As construed by the Supreme Court, 

however, section 30110 does not mandate automatic certification of all constitutional questions a 

plaintiff seeks to raise. The provision does not “require certification of constitutional claims that 

are frivolous.” Cal. Med. Ass’n, 453 U.S. at 192 n.14; see also Holmes v. FEC, 823 F.3d 69, 71 

(D.C. Cir. 2016) (“Under § 30110, district courts do not certify ‘frivolous’ constitutional 

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12 

questions to the en banc court of appeals.”). A district court should, therefore, dismiss a claim 

for lack of subject-matter jurisdiction for the same reasons that single judges do when asked to 

seek convening of a three-judge court under 28 U.S.C. § 2284, namely if a claim is “so 

insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise 

completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a 

Better Environ., 523 U.S. 83, 89 (1998); see also Shapiro v. McManus, 136 S. Ct. 450, 455-56 

(2015) (discussing this standard and citing Steel Co.); cf. Johnson v. Comm’n on Presidential 

Debates, No. 1:15-cv-1580, 2017 WL 3708097, at *5 (D.C. Cir. Aug. 29, 2017) (holding that 

court lacked subject-matter jurisdiction over First Amendment claim because it was frivolous).

II. THE LNC’S CLAIM THAT THE SEGREGATED ACCOUNT LIMITS ARE 

UNCONSTITUTIONAL IS FRIVOLOUS

A. Closely Drawn Scrutiny Applies to the General and Segregated Account 

Limits Because They Are Contribution Limits, Not Expenditure Limits 

Binding First Amendment precedent forecloses the LNC’s claim that strict scrutiny 

applies to the segregated account limits. As the LNC acknowledges and as explained above, the 

Supreme Court has squarely held that limits on contributions to political party groups are subject 

to closely drawn scrutiny and are constitutional. See, e.g., McConnell, 540 U.S. at 144-45, 161; 

LNC Mem. at 17; Compl. ¶ 24. The LNC, therefore, limits its current challenge to Congress’s 

recent amendment to FECA that set higher limits for contributions to certain segregated accounts 

of the national party committees. Compl. ¶¶ 5-6, 29, 33; see 52 U.S.C. § 30116(a)(1)(B), (9). 

Longstanding Supreme Court precedent distinguishes the standard of review for the 

constitutionality of limits on campaign expenditures from the standard applied to limits on 

campaign contributions. Limits on campaign expenditures are subject to strict scrutiny. See 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014). In contrast, limits on campaign 

contributions are subject to “closely drawn” scrutiny — “a lesser but still ‘rigorous standard of 

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review.’” Id. (quoting Buckley, 424 U.S. at 29 (1976)); see also Wagner v. FEC, 793 F.3d 1, 5-6 

(2015) (en banc), cert. denied sub nom. Miller v. FEC, 136 S. Ct. 895 (2016). Under the closely 

drawn standard, “[e]ven a significant interference with protected rights of political association 

may be sustained if the State demonstrates a sufficiently important interest and employs means 

closely drawn to avoid unnecessary abridgement of associational freedoms.” Buckley, 424 U.S. 

at 25 (internal quotation marks omitted). 

The LNC suggests that the parties “could be expected to dispute” whether the segregated 

account limits are restrictions on expenditures subject to strict scrutiny or contribution limits 

subject to closely drawn scrutiny (LNC Mem. at 18), but that question is neither novel nor 

substantial enough to merit certification to the en banc Court of Appeals. The Supreme Court 

clearly rejected this argument when the Libertarian Party made it previously, and the Court 

instead defined how to distinguish between a contribution limit and an expenditure limit. The 

hallmark of a contribution limit is that it “entails only a marginal restriction upon the 

contributor’s ability to engage in free communication.” Buckley, 424 U.S. at 20. This is so 

because a “limitation on the amount of money a person may give to a [political party] involves 

little direct restraint on his political communication, for it permits the symbolic expression of 

support evidenced by a contribution but does not in any way infringe the contributor’s freedom 

to discuss candidates and issues.” Id. at 21. “While contributions may result in political 

expression if spent by a candidate or an association to present views to the voters, the 

transformation of contributions into political debate involves speech by someone other than the 

contributor.” Id. Exemplifying the LNC’s attempted relitigation of these binding holdings, the 

LNC contests all of these propositions in this case. (FEC Exh. 2 ¶¶ 1-4.) 

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The Supreme Court Court has also held that from the perspective of the receiver of the 

contribution, “restrictions could have a severe impact on political dialogue if the limitations 

prevented candidates and political committees from amassing the resources necessary for 

effective advocacy.” Buckley, 424 U.S. at 22. But so long as the limits are not set so low as to 

prevent effective advocacy, the “overall effect” of a contribution limit “is merely to require 

candidates and political committees to raise funds from a greater number of persons and to 

compel people who would otherwise contribute amounts greater than the statutory limits to 

expend such funds on direct political expression.” Id. at 21-22. 

In contrast to contribution limits, limits on the amount a person may spend — 

expenditure limits — “impose direct and substantial restraints on the quantity of political 

speech.” Buckley, 424 U.S. at 39. That is because a limit “on the amount of money a person or 

group can spend on political communication during a campaign necessarily reduces the quantity 

of expression by restricting the number of issues discussed, the depth of the exploration, and the 

size of the audience reached.” Id. at 19. In McConnell, the Court considered the LNC’s 

challenge to the constitutionality of a statutory provision that “prohibit[ed] national parties from 

receiving or spending” money that was not subject to FECA’s amount and source requirements, 

and that also “prohibit[ed] state party committees from spending” such money “on federal 

election activities.” 540 U.S. at 139 (emphases added). Although the statute restricted how 

national and state party committees could spend money raised outside of FECA’s amount and 

source requirements, the Court nonetheless concluded that the limits were contribution 

restrictions, not expenditure limits. Id. at 138 (“[I]t is irrelevant that Congress chose . . . to 

regulate contributions on the demand rather than the supply side.”). As the Court explained, the 

“relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to 

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prevent circumvention of that limit, burdens speech in a way that a direct restriction on the 

contribution itself would not.” McConnell, 540 U.S. at 138-39. 

As with the limits considered in McConnell, there is no credible argument that the 

segregated account limits at issue here restrict expenditures. The statutory language is framed as 

a limit on the amount an individual may give to a political party, not a restriction on how much 

the party may spend. See 52 U.S.C. § 30116(a)(1)(B) (“[N]o person shall make contributions 

. . . to the political committees established and maintained by a national political party . . . which, 

in the aggregate, exceed $25,000, or, in the case of contributions made to any of the accounts 

described in paragraph (9), exceed 300 percent of the amount otherwise applicable under this 

subparagraph with respect to such calendar year.”). The segregated account limits, moreover, do 

not “in any way limit[] the total amount of money parties can spend.” McConnell, 540 U.S. at 

139.3

 If anything, the segregated account limits permit increased spending by parties by 

providing additional sources of funds they may use to finance certain operations. Parties remain 

free to spend as much or as little as they wish on their conventions, headquarters, legal 

proceedings, or for any other expenses they wish to incur. See id. (noting that contribution limits 

“simply limit the source and individual amount of donations”); Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150, 156 (D.D.C. 2010) (“RNC”) (three-judge court) (“McConnell . . . squarely 

held that the level of scrutiny for regulations of contributions to candidates and parties does not 

turn on how the candidate or party chooses to spend the money or to structure its finances.”), 

aff’d, 561 U.S. 1040 (2010). And by making available more funds for those expenses, the 

 3

 One of the segregated account provisions provides that the “aggregate amount of 

expenditures the national committee of a political party may make from such an account may not 

exceed $20,000,000 with respect to any single convention.” 52 U.S.C. § 30116(a)(9)(A). That 

provision does not set a maximum limit on the amount a party may spend on a single convention, 

however, because national parties may spend in excess of that amount using contributions 

subject to the general limit, and in any event the LNC has not challenged that part of the statute. 

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segregated account limits end up potentially increasing funds available to parties that can be used 

to discuss a greater “number of issues,” further explore the “depth[s]” of those issues, and raise 

the “size of the audience reached.” Buckley, 424 U.S. at 19. 

Because they are contribution limits, the segregated account limits bear “more heavily on 

the associational right than on freedom to speak.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 388 (2000). As a facial matter, the segregated account limits “both ‘leave the contributor 

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

efforts on behalf of candidates,’ and allow associations ‘to aggregate large sums of money to 

promote effective advocacy.’” McConnell, 540 U.S. at 136 (quoting Buckley, 424 U.S. at 22). 

The application of the segregated account limits to a testamentary bequest does not 

change the standard of review. Although those who have died obviously cannot continue to 

actively associate with a political party, that does not call for a higher standard of review; on the 

contrary, as the LNC admits, it has no associational rights in play with respect to potential 

bequests because it does not “knowingly associate with dead people.” (LNC Proposed Facts 

¶ 90.) The LNC previously suggested that applying contribution limits to testamentary bequests 

should be subject to strict scrutiny because “individuals acting in a testamentary capacity are not 

exercising their associational rights, but their right of free speech in desiring to leave a political 

legacy.” (Compl. ¶ 24.) But as the LNC I court concluded, deceased individuals lack any First 

Amendment rights. 930 F. Supp. 2d at 169-70. As for the living, because contribution limits are 

only a marginal infringement on the speech rights of the contributor, the Supreme Court has 

made clear that “a contribution limitation surviving a claim of associational abridgement would 

survive a speech challenge as well.” Nixon, 528 U.S. at 388. 

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With respect to the LNC’s own rights, its assertion that it relies only upon the current 

state of First Amendment precedent is belied by its invocation of strict scrutiny, a position that 

has been squarely rejected through more than forty years of Supreme Court cases. The reasons 

the LNC offers to apply a higher level of scrutiny have all been expressly rejected. The LNC 

argues that the segregated account limits are “especially problematic” because “major parties . . . 

have far larger expenses” than minor parties and therefore are poised to benefit more. (LNC 

Mem. at 18.) But Buckley clearly rejected that argument when the Libertarian Party made it 

there, noting that FECA’s contribution limits do not discriminate against minor parties when they 

“treat[] all candidates equally with regard to contribution limitations.” 424 U.S. at 33-34 & n.40. 

The LNC similarly suggests that it needs more money for “ballot access” than the major parties. 

(LNC Mem. at 6.) Again, Buckley’s and McConnell’s holdings to the contrary when the 

Libertarian Party pursued this argument previously foreclose it here. 424 U.S. at 33; 540 U.S. at 

159 (“It is therefore reasonable to require that all parties and all candidates follow the same set of 

rules designed to protect the integrity of the electoral process.”). 

In truth, this case is simply the latest in a string of constitutional challenges in which the 

Libertarian Party has sought to have strict scrutiny applied to contribution limits. While the LNC 

is free to continuing making this argument, it is frivolous to claim that it can do so while merely 

seeking to have this Court apply “the current state of First Amendment precedent.” (LNC Mem. 

at 17.) 

The D.C. Circuit’s holding in Holmes does not require certification of this claim that has 

been foreclosed by repeated decisions of the Supreme Court. In Holmes, the court suggested that 

the mere fact that “the plaintiff is arguing against Supreme Court precedent” was not a basis to 

decline certification “so long as the plaintiff mounts a non-frivolous argument in favor of 

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overturning that precedent.” 823 F.3d at 74. If that part of the Holmes opinion were a binding 

holding, plaintiff would still be required to actually make a nonfrivolous argument to overturn 

precedent. Id. The LNC does the opposite by asking this Court to “apply the current state of 

First Amendment precedent.” (LNC Mem. at 17.) That statement in Holmes was in fact dictum, 

however, as the court went on to hold that the Supreme Court had not actually foreclosed the 

claim at issue. Holmes, 823 F.3d at 74. As a subsequent panel of the D.C. Circuit clarified, 

claims “foreclosed by prior decisions of [the Supreme] Court” deprive the lower courts of 

jurisdiction to hear the claim. Johnson, 2017 WL 3708097, at *5 (quoting Steel Co., 523 U.S. at 

89). 

There is, therefore, simply no basis for the LNC’s argument that whether the segregated 

account limit is an expenditure limit subject to strict scrutiny is a substantial issue worthy of 

certification. 

B. The Segregated Account Limits Easily Survive Closely Drawn Scrutiny 

Congress’s decision to allow political parties to raise additional funds for certain types of 

expenses is constitutionally permissible because it is closely drawn to serve important 

government interests. The LNC’s basic claim is that it is unconstitutional for Congress to set one 

dollar limit for contributions for general use while adopting a different dollar limit for certain 

specific categories of expenses. But the Supreme Court has clearly held that Congress has the 

discretion to set the specific dollar amounts of contribution limits. See, e.g., Randall v. Sorrell, 

548 U.S. 230, 248 (2006); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 446 

(2001) (“[T]he dollar amount of the limit need not be fine tuned.” (internal quotation marks and 

alterations omitted)); Buckley, 424 U.S. at 30. The Court has “deferred to the legislature’s 

determination of” how to structure contribution limits “to carry out the statute’s legitimate 

objectives” because “[i]n practice, the legislature is better equipped to make such empirical 

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judgments, as legislators have ‘particular expertise’ in matters related to the costs and nature of 

running for office.” Randall, 548 U.S. at 248 (quoting McConnell, 540 U.S. at 137); see Davis v. 

FEC, 554 U.S. 724, 737 (2008).

Congress’s adjustment of FECA to set contribution limits at a higher level with respect to 

certain types of political party expenses serves important government interests. Prior to 2014, 

the national committees of political parties could receive public funding to finance presidential 

nominating conventions if they met certain eligibility requirements. See 26 U.S.C. § 9008. In 

April 2014, however, Congress terminated that program and transferred the funds that had been 

devoted to convention funding to medical research. See Gabriella Miller Kids First Research 

Act, Pub. L. No. 113-94, 128 Stat. 1085 (2014) (codified as amended at 26 U.S.C. §§ 9008-09, 

9012). Congress amended FECA to create the segregated account limits in December of that 

same year, before any presidential nominating convention would have occurred. See 

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 

2130, 2772 (Dec. 16, 2014) (codified as amended at 52 U.S.C. § 30116(a), (d)). 

The legislative history confirms that Congress enacted the segregated account limits to 

provide national parties “with a means of acquiring additional resources” for presidential 

nominating conventions “because such conventions may no longer be paid for with public 

funds.” 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014); see also 160 Cong. Rec. S6814 (daily 

ed. Dec. 13, 2014). The new convention account was intended to ensure that national parties 

would maintain access to sufficient funds to continue their operations after one source of funds 

was no longer available. Congress thus provided an increased contribution limit for funds “to be 

used in the same manner as the former public funds could have been used, as well as to pay for 

the costs of fundraising for this segregated account.” 160 Cong. Rec. H9286 (daily ed. Dec. 11, 

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2014); see also 160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014). At the same time, Congress 

also concluded that parties should be permitted to raise additional resources for two other types 

of expenses that tend to be less directly connected to most candidates or campaigns for federal 

office. See 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (noting that “many of” the activities 

that may be financed through these accounts “are not for the purpose of influencing Federal 

elections”); see also 160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014). Because of this decreased 

connection, Congress decided to relax the contribution limits applicable to funds that can defray 

national committee expenses for headquarters buildings as well as for recounts and other legal 

proceedings. 

Based on this history, it is frivolous for the LNC to suggest that Congress’s decision to 

provide additional flexibility for national party committees to raise needed funds shows 

insufficient tailoring. Congress has a duty to ensure that the contribution limits it sets are closely 

drawn to prevent corruption and its appearance. See, e.g., Buckley, 424 U.S. at 29. Where it 

concludes that the limits it previously set “are not needed in order to combat corruption, then the 

obvious remedy is to raise . . . those limits.” Davis, 554 U.S. at 743. That Congress did so here 

reduces any burden that lower contribution limits place on the rights of contributors and party 

committees. The LNC can hardly argue that that reduction in burden somehow renders a 

previously permissible contribution regime constitutionally suspect. 

The segregated account limits are closely drawn under Supreme Court precedent. The 

Court has readily affirmed the congressional judgment that differing contribution limits may 

apply to distinct categories of expenses. In McConnell, for example, the Supreme Court upheld a 

FECA amendment contained in the Bipartisan Campaign Reform Act (“BCRA”) that prohibited 

state and local political parties from using contributions over $10,000 received from an 

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individual donor in a calendar year for any “Federal election activity” defined by the statute. 540 

U.S. at 173. Yet federal law does not limit contributions to state political parties that are then 

used for expenses outside the definition of Federal election activity. See id. Similarly, before 

the “enactment of BCRA in 2002, federal law permitted national political parties to accept and 

use large, unlimited contributions” to fund state and local election activities even though those 

activities “could simultaneously influence federal elections.” RNC, 698 F. Supp. 2d at 153. Yet 

the pre-BCRA contribution limits applicable to funds raised by national political parties for use 

in federal elections remained constitutional even though different rules applied to funds raised 

for use in those state and local elections. See Colo. Republican Fed. Campaign Comm., 533 U.S. 

at 458 (2001). And in Buckley, the Court did not accept the Libertarian Party’s argument that 

limits on individual contributions were “highly discriminatory and, in effect a regulation of the 

content of speech” in light of the ability of established groups to give more to candidates and 

corporations, and unions being permitted an exemption for fundraising and internal 

communications. Reply Br. of the Appellants, Buckley v. Valeo, 1975 WL 171458, *50 (U.S. 

filed Nov. 3, 1975). The Supreme Court instead concluded that the provisions did not 

“unconstitutionally discriminate against ad hoc organizations in favor of established interest 

groups and impermissibly burden free association.” Buckley, 424 U.S. at 35. 

To be sure, the Court has held that it is permissible for Congress to regulate all 

contributions to the national parties 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, 540 U.S. at 155. The LNC latches on to 

this language to argue that Congress is required to regulate all contributions to political party 

groups in precisely the same way. (LNC Mem. at 19.) But the Court nowhere said that. 

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Accepting that all large contributions to political parties “are likely to create actual or apparent 

indebtedness” does not mean that all such contributions are equally suspect regardless of how 

they are used. McConnell, 540 U.S. at 155. Indeed, it is hard to see how McConnell would have 

upheld limits on contributions to state parties applicable to only some of their expenses if that 

were the case. And contrary to the LNC’s assertion (LNC Mem. at 19 (“BCRA applies 

depending on how a national party might want to use its money”)), limits apply to all national 

party committees equally, regardless of their policy positions, financial situation, or spending 

priorities. Congress merely determined that a higher limit was acceptable for certain types of 

party expenses. 

The LNC’s position in this case shows that Congress’s decision to regulate general 

contributions more strictly than those raised to pay certain costs is closely drawn. The LNC’s 

claims here demonstrate that political parties and their candidates tend to place more value on 

unrestricted contributions than those that may only be used for certain expenses. (Compl. ¶ 13.) 

Indeed, the LNC admitted that it values unrestricted funds more than those that may only be used 

for particular categories of expenses. (FEC Exh. 2 ¶ 18.) If the LNC is correct that unrestricted 

contributions are more valuable, then Congress was justified in concluding that such 

contributions create a higher risk of corruption or its appearance than other types of 

contributions. A party’s candidates and officeholders are more likely to be corrupted by 

something the party values more highly than by something it does not need as acutely. 

The LNC claims that the Commission’s discovery responses show Congress “could not 

have . . . concluded” that unrestricted contributions warrant greater restrictions (LNC Mem. at 

20), but the FEC merely acknowledged the uncontroversial principle that the value of a particular 

contribution to the recipient and its appearance of corruption will depend on the circumstances 

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surrounding that contribution. For example, a lower contribution to a political party might 

appear more corrupt than a higher one if the party changes its position on a policy matter close in 

time to the lower contribution. That multifaceted question is precisely why courts defer to the 

legislature’s judgment on the dollar amounts to be applied in connection with contribution limits 

— if it “is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, 

whether, say, a $2,000 ceiling might not serve as well as $1,000.” Buckley, 424 U.S. at 30 

(internal quotation marks omitted). 

Because the segregated account limits apply the same way to all national committees of 

political parties, there is no basis for any claim of differential treatment. See Davis, 554 U.S. at 

743-44 (2008) (invalidating contribution limit that imposed “different contribution . . . limits on 

candidates vying for the same seat”). The LNC suggests that the segregated account structure is 

unconstitutional because of its effect on minor parties, but the Supreme Court foreclosed that 

basis for challenging a contribution restriction when the Libertarian Party previously brought it 

as well. McConnell, 540 U.S. at 159 (“It is . . . reasonable to require that all parties and all 

candidates follow the same set of rules designed to protect the integrity of the electoral 

process.”); Buckley, 424 U.S. at 33 (rejecting argument that contribution limits discriminated 

against minor parties because the limits “treat[ed] all candidates equally with regard to 

contribution limitations”). 

The LNC’s suggestion (LNC Mem. at 6, 18) that the segregated account limits are 

unconstitutional because the LNC does not need the extra money it could receive into those 

accounts for its conventions, headquarters, or legal expenses is similarly frivolous. “There is . . . 

no constitutional basis for attacking contribution limits on the ground that they are too high.” 

Davis, 554 U.S. at 737. Because “Congress has no constitutional obligation to limit 

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contributions at all,” a party that “wishes to restrict” a political opponent’s “fundraising cannot 

argue that the Constitution demands that contributions be regulated more strictly.” Id. 

Regardless of how the LNC frames its challenge to the current FECA structure of 

contribution limits applicable to national party committees, such limits would only be invalid if 

they “prevent candidates from ‘amassing the resources necessary for effective campaign 

advocacy.’” Randall, 548 U.S. at 248 (quoting Buckley, 424 U.S. at 21) (alteration omitted)). 

They do not. Far from reducing the resources available to national parties to engage in campaign 

advocacy, the segregated account limits instead expand the parties’ ability to amass resources by 

enlarging the potential pool of funds available to them. The more permissive current structure 

easily survives closely drawn scrutiny, and the LNC’s claims to the contrary are frivolous. 

III. THE LNC’S CLAIM THAT APPLICATION OF CONTRIBUTION LIMITS TO 

THE SHABER BEQUEST VIOLATES THE FIRST AMENDMENT IS 

FRIVOLOUS 

In LNC I, the district court held that the LNC’s claim that it is generally unconstitutional 

to apply contribution limits to testamentary bequests was “[f]rivolous and/or [i]nsubstantial” 

under section 30110, and therefore the court declined to certify that question to the D.C. Circuit. 

LNC I, 930 F. Supp. 2d at 165-67. That decision was summarily affirmed by the Court of 

Appeals. Libertarian Nat’l Comm., Inc. v. FEC, No. 13-5049, 2014 WL 590973, at *1 (D.C. Cir. 

Feb. 7, 2014). The LNC chose not to seek further review of the decision. 

In the current case, the LNC states that it disagrees with the general ruling in LNC I, but it 

concedes that it has “lost that battle” and that the “issue is not before the Court” in this case. 

(LNC Mem. at 11 (noting as an aside that “[t]he LNC continues to believe that it is 

unconstitutional to apply any campaign contribution limits to testamentary bequests).) Thus, the 

LNC does not and cannot argue that it is unconstitutional to apply campaign contribution limits 

to testamentary bequests as a general matter because it is issue-precluded from relitigating that 

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25 

issue in this action and because it has affirmatively waived the argument. See Gulf Power Co. v. 

FCC, 669 F.3d 320, 322 (D.C. Cir. 2012) (holding that issue preclusion was “a fatal bar” to the 

relitigation of a “constitutional issue”). 

The LNC instead asks this Court to certify the question whether “imposing annual 

contribution limits against the bequest of Joseph Shaber violate[s] the First Amendment rights of 

the” LNC, relying heavily on the LNC I district court’s certification of a question as to one prior 

bequest. (LNC Mem. at 3, 12.) In light of the LNC’s affirmative waiver of any challenge to the 

broader ruling in LNC I, however, the question the LNC seeks to have certified here is frivolous. 

If it is constitutional to apply contribution limits to bequeathed contributions, as the Court of 

Appeals confirmed in 2014, then there is no plausible argument that it is unconstitutional to 

apply that limit to the bequest at issue here. 

A. Contribution Limits Are Preventative Rules Designed to Deter Corruption 

and So Their Constitutionality Does Not Depend on Whether There Is 

Evidence of Corruption for Any Individual Application of the Limits 

The Supreme Court explained long ago that contribution limits are prophylactic rules that 

target not just the “actuality” of corruption but also its “appearance.” Buckley, 424 U.S. at 26; 

see also Citizens United, 558 U.S. at 357 (“The Court . . . has noted that restrictions on direct 

contributions are preventative . . . .”). Because they are prophylactic rules, contribution limits 

are constitutional even though the result is to limit many contributions that are not part of any 

quid pro quo corruption scheme. See FEC v. Beaumont, 539 U.S. 146, 157 (2003) (observing 

that the Court will not “second-guess a legislative determination as to the need for prophylactic 

measures where corruption is the evil feared” (internal quotation marks omitted)). Thus, the 

Court in Buckley upheld FECA’s contribution limits despite acknowledging “the proposition that 

most large contributors do not seek improper influence over a candidate’s position or an 

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officeholder’s action.” 424 U.S. at 29; see also Citizens United, 558 U.S. at 357 (“[F]ew if any 

contributions to candidates will involve quid pro quo arrangements.”). 

Of course, courts have considered as-applied challenges directed at exempting certain 

classes of entities from contribution limits. See, e.g., Beaumont, 539 U.S. 146 (rejecting 

challenge to FECA’s ban on corporate contributions to candidates as applied to nonprofit 

corporations). The LNC does not even, however, assert an as-applied challenge to FECA’s 

contribution limits with respect to the Shaber bequest on a nonfrivolous basis to differentiate it 

(and those like it) from the mine run of testamentary bequests to which the LNC concedes 

contribution limits may be permissibly applied under current law. Without identifying some 

categorical basis to differentiate the Shaber bequest, the LNC’s claim is “not so much an asapplied challenge as it is an argument for overruling a precedent,” and so it is wholly foreclosed. 

RNC, 698 F. Supp. 2d at 157; see also In re Cao, 619 F.3d 410, 430 (5th Cir. 2010). And as 

noted above, the LNC does not make such an argument here. 

The LNC has admitted that it is not entitled to certification of constitutional claims based 

on reasoning that has been previously rejected. In LNC I post-judgment briefing, the LNC 

conceded that if it had lost “any remotely similar case involving any bequest” before “the Court 

of Appeals,” cases involving different bequests that were “similarly situated . . . would likely be 

frivolous within the meaning of” 52 U.S.C. § 30110. Pl. Libertarian Nat’l Committee’s Opp’n to 

Def’s Mot. to Alter or Amend at 6, No. 11-562, (Docket No. 51) (D.D.C. April 29, 2013) 

(emphasis added). Of course, the LNC did lose its claim that the party contribution limit may 

not be constitutionally applied to testamentary bequests in general, as it concedes. (LNC Mem. 

at 2, 11.) So it cannot argue now that the same contribution limit is unconstitutional as applied to 

a particular bequest without providing some basis for distinguishing that specific one from the 

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general category of bequests. The LNC’s failure to do so renders its first claim illogical and 

frivolous. 

B. The LNC’s Suggestion That There Must Be Evidence of Corruption for Each 

Particular Bequest Is Frivolous 

The sole basis the LNC offers for distinguishing the Shaber bequest and the others it 

identifies is the conclusory assertion that there “is no evidence of quid pro quo corruption” with 

respect to those bequests. (LNC Mem. at 12.) But that argument cannot be reconciled with LNC 

I and it merely reframes the overbreadth claim that has been foreclosed by the Supreme Court in 

the context of contribution limits generally. Buckley, 424 U.S. at 29-30. When reviewing a 

particular application of a contribution limit, the government is not required to show evidence of 

corruption as to that contribution. Such a requirement would be flatly inconsistent with the very 

concept of a preventative contribution limit. See Citizens United, 558 U.S. at 357; Buckley, 424 

U.S. at 27. 

If accepted, the LNC’s suggestion that limits on bequeathed contributions could only be 

permissible if there is evidence of quid pro quo corruption with respect to the specific bequest 

would also eliminate any distinction between preventative contribution limits and the criminal 

statutes proscribing corruption. Where a particular contribution — whether it is made through a 

bequest or not — is part of a quid pro quo corruption scheme, that contribution would be illegal 

under the criminal code. See Wagner, 793 F.3d at 25 & n.28 (citing 18 U.S.C. § 201); cf. United 

States v. Menendez, 132 F. Supp. 3d 635, 638 (D.N.J. 2015) (“Defendants here have been 

charged with engaging in a quid pro quo bribery scheme, not with exceeding limits set by a 

prophylactic campaign finance regulation.”). But “the Supreme Court has repeatedly 

dispatched” the argument that campaign contribution limits are unconstitutional because they go 

beyond “criminal statutes that directly ban quid pro quos and coercion.” Wagner, 793 F.3d at 25 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 34 of 42
28 

(footnote omitted). This is because “laws making criminal the giving and taking of bribes deal 

with only the most blatant and specific attempts of those with money to influence governmental 

action.” Buckley, 424 U.S. at 27-28. The Supreme Court has repeatedly held that Congress may 

go beyond such statutes and apply preventative contribution limits to stem potential corruption 

even when no quid pro quo could be proven. Id.; see also Citizens United, 558 U.S. at 356-57 

(noting that the Court has approved contribution limits as a “preventative” measure even though 

quid pro quo arrangements “would be covered by bribery laws” if proven); McConnell, 540 U.S. 

at 143 (“In Buckley, we expressly rejected the argument that antibribery laws provided a less 

restrictive alternative to FECA’s contribution limits . . . .”). 

The LNC’s erroneous view of the evidence required to justify such limits also ignores the 

fact that the Supreme Court has consistently deemed the appearance of corruption to be a 

sufficient basis to support such limits. McConnell, 540 U.S. at 143 (discussing “the 

Government’s interest in combating the appearance or perception of corruption engendered by 

large campaign contributions”); Buckley, 424 U.S. at 27 (“Of almost equal concern as the danger 

of actual quid pro quo arrangements is the impact of the appearance of corruption stemming 

from public awareness of the opportunities for abuse inherent in a regime of large individual 

financial contributions.”) In other words, if the LNC has “lost [the] battle” over whether it is 

unconstitutional to apply any campaign contribution to testamentary bequests (LNC Mem. at 11), 

then it has also lost the war over whether such a limit may apply in the absence of evidence of 

actual corruption as to that bequest. 

C. There Is No Viable Categorical Basis to Differentiate the Shaber Bequest 

The LNC’s Motion to Certify fails to provide any basis to distinguish Shaber’s bequest 

from any other bequest it might receive. As the LNC argues, its contacts with Shaber during his 

life were “not . . . unusual” and his contributions “unspectacular.” (LNC Mem. at 15.) In fact, 

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Shaber contributed 47 times and more than $3,000 to the LNC while he was alive — an amount 

that qualified him to be a “life member” of the party and which led the LNC to send routine 

solicitations and invitations to Shaber. (FEC Exh. 6, at 78:5-20.) Shaber’s bequest, therefore, 

has no distinguishing characteristics that would make an appropriate basis for an as-applied 

claim. And to the extent the LNC’s assertions imply that Shaber’s contacts with the party would 

need to have been “unusual” or “spectacular” to be constitutionally subject to the contribution 

limit, such a claim would plainly be foreclosed by the broad ruling of LNC I and other precedent. 

Moreover, the LNC’s assertion of an as-applied claim with respect to the Shaber bequest 

is belied by its belated identification of other potential future bequests as presenting similar 

constitutional issues. (See LNC Mem. at 9 (“LNC’s claims are not limited to Shaber’s 

bequest.”).) Even though the LNC’s complaint (Docket No. 1) stated that its claims applied only 

to the Shaber bequest, the LNC’s current factual offering identifies three other actual or potential 

testamentary bequests that it now contends are affected by FECA’s contribution limits. (See

LNC Proposed Facts ¶¶ 110, 118, 123-130.) These other factual situations encompass potential 

bequestors who remain living, as well as those whose bequests have matured due to their death. 

They cover individuals who have given hundreds of thousands of dollars to the LNC (id. ¶ 96), 

as well as individuals who gave less than $2,000 (id. ¶ 124). They include individuals who have 

informed the LNC of their intentions as well as those who did not. (Id. ¶¶ 70, 110.) They also 

include an individual who has served as an LNC official and has “repeatedly run” for political 

office “as a Libertarian.” (Id. ¶ 115.) The only similarity among these bequests is that they are 

bequests. Thus, even if the attempted expansion of the LNC’s claims here did not go beyond the 

claims in its complaint, the bequests that the LNC has now attempted to place at issue in this 

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case are not categorically distinct from any other potential bequeathed contribution, and they 

underline even more strongly the frivolous nature of its claims. 

D. The Certification Order in LNC I Does Not Require Certification of the 

LNC’s Claims Here 

The LNC relies heavily on the certification of an as-applied challenge based on one 

specific bequest by the district court in LNC I (LNC Mem. at 12), but that certification order did 

not say that bequests of the sort that the LNC presents in this case would qualify for certification, 

and it did not address the arguments the Commission makes here as to why such a single-bequest 

certification is inappropriate. In its motion to certify in LNC I, the LNC sought to certify only a 

single, broad question whether applying contribution limits to testamentary bequests violated 

“First Amendment speech and associational rights.” 930 F. Supp. 2d at 156. The district court

concluded that because bequests as a general matter “may very well raise the same anticorruption concerns that motivated the Buckley and McConnell Courts to dismiss a facial attack 

on contribution limits,” the LNC’s question as drafted was frivolous. Id. at 166. However, the 

district court reframed the question presented by the LNC and certified only the far narrower 

question whether the limits could be constitutionally applied to the one particular bequest the 

LNC had placed before the court. Id. at 171. 

The initial question presented for certification in LNC I asserted a claim as applied to 

bequests generally, and the court did not connect the Commission’s grounds for opposition to 

that claim with the particular bequest at issue there. Id. at 170. As a result, the district court’s 

initial opinion did not enjoy the benefit of sufficiently clear briefing regarding whether it was 

permissible to assert an as-applied claim with respect to a single bequest that could not 

meaningfully be distinguished from the general category of bequests to political parties. That 

question was more squarely presented after the Commission made a post-judgment motion 

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31 

pursuant to Federal Rule of Civil Procedure 59(e) asking the court to reconsider the narrower 

question it had certified. See Libertarian Nat’l Comm., Inc., 950 F. Supp. 2d 58. But as these 

arguments were presented in a post-judgment motion, the LNC I court considered only whether it 

had committed “clear error” in certifying the question, and the court concluded that it had not. In 

so ruling, the court found that “the FEC never previously argue[d] that individualized as-applied 

challenges to contribution limits are foreclosed as a matter of law.” Id. at 62. 

The LNC I post-judgment opinion also does not require the court to certify an as-applied 

claim in this case. Here, the Commission has continuously maintained that any argument that a 

contribution limit may be subject to an individualized, as-applied claim due to the absence of 

evidence of corruption is frivolous. Thus, this question comes before this Court outside the 

context of clear-error review. In addition, unlike the earlier court, this Court has the benefit of 

the D.C. Circuit’s summary affirmance of the general ruling in LNC I. The LNC does not 

contest that decision, which as described above renders its current narrower claims frivolous. 

The Burrington bequest at issue in LNC I, moreover, had fewer evident factual markers of 

the potential for apparent or actual corruption than the bequests the LNC has now tried to place 

at issue in this case. Burrington had only made a single donation to the LNC in the amount of 

$25 nearly a decade before his death, and he had no other recorded interaction with the party 

until his death. LNC I, 930 F. Supp. 2d at 156. Shaber, in contrast, gave 47 times and more than 

$3,000 to the LNC, was eligible to become a life member of the party, and received regular 

solicitations and invitations to events from the LNC, including a “VIP reception.” (FEC Exh. 6, 

at 78:5-20; FEC Exhs. 13-14.) And the other individuals making potential and realized bequests 

that the LNC now identifies in its papers have had similar, and in some cases far more extensive, 

contacts with the party. (LNC Proposed Facts ¶¶ 110, 115-16, 124.) Thus, the factual 

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circumstances surrounding those bequests are distinct from those considered in LNC I, and that 

decision provides no support to the LNC here.4

E. The LNC’s Purported First Amendment Right to Receive Campaign 

Contributions Does Not Support the Certification of Its Proposed Question 

The LNC’s framing of its legal arguments around a supposed “First Amendment right to 

receive campaign contributions” cannot save its first proposed certified question. (LNC Mem. at 

13.) The constitutional test that the Buckley Court applied to FECA’s contribution limits already 

accounts for the rights of individuals and entities on the receiving end of contributions by asking 

if contribution limits are so low that they prevent recipients from “amassing the resources 

necessary for effective advocacy.” Buckley, 424 U.S. at 21; see also Randall, 548 U.S. at 248 

(“Following Buckley, we must determine whether . . . contribution limits prevent candidates from 

‘amassing the resources necessary for effective [campaign] advocacy.’” (alteration in original)). 

Buckley specifically considered whether FECA violated the First Amendment rights of those 

who would receive political contributions by forbidding the “receipt . . . of contributions on 

behalf of political candidates in excess of the amounts specified.” Buckley, 424 U.S. at 59 n.67. 

The Court answered that question with a definitive “NO.” Id. And in Randall the Court focused 

on “the ability of candidates to raise the funds necessary to run a competitive election.” Randall, 

548 U.S. at 253; see also id. at 261 (striking down a state contribution limit because it 

“threaten[ed] to inhibit effective advocacy by those who seek election, particularly challengers” 

and because it would “mute the voice of political parties”). Thus, any First Amendment interest 

the LNC has in receiving contributions is already reflected in the constitutional test the Supreme 

Court has applied to uphold FECA’s contribution limits. 

 4

 Even if the LNC I post-judgment ruling were directly applicable here, as a district court 

opinion it is not binding on this Court. See In re Exec. Office of President, 215 F.3d 20, 24 (D.C. 

Cir. 2000) (“District Court decisions do not establish the law of the circuit, nor, indeed, do they 

even establish ‘the law of the district.’” (citations omitted)). 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 39 of 42
33 

The LNC does not even try to meet that test. It nowhere alleges or offers evidence that 

FECA’s contribution limits prevent it from “amassing the resources necessary for effective 

advocacy,” either as a general matter or as applied to testamentary bequests or the Shaber 

bequest in particular. Buckley, 424 U.S. at 21. In fact, the LNC expressly concedes that it “does 

not claim in this litigation that the current contribution limit” applicable to political parties “is 

too low.” (LNC Mem. at 17.) That concession establishes the frivolousness of the LNC’s claim 

as to bequests. 

IV. IF THE COURT FINDS ANY QUESTION REGARDING THE SEGREGATED 

ACCOUNT LIMITS WORTHY OF CERTIFICATION, IT SHOULD REFRAME 

THE LNC’S OVERBROAD PROPOSED QUESTIONS 

For the reasons explained above, the LNC’s complaint presents no questions that should 

be certified to the en banc Court of Appeals under 52 U.S.C. § 30110. Instead, the LNC’s claims 

should be dismissed, which would not foreclose further review, but would mean that any appeal 

would proceed under ordinary procedures to a three-judge panel of the D.C. Circuit. See 

Holmes, 823 F.3d 69 (three-judge panel reviewing district court decision not to certify questions 

under section 30110). Assuming that the Court does deem any portion of the LNC’s claims 

regarding the segregated account limits worthy to be certified, however, the LNC’s proposed 

questions two and three should be limited because they are phrased in argumentative terms and 

go far beyond the claims asserted in its complaint. 

Counts II and III of the LNC’s complaint focused on the constitutionality of the 

segregated account limits, which permit national committees of political parties to accept more 

money into accounts for expenses related to a presidential nominating convention, a headquarters 

building, and for recounts and other legal expenses. Compl. ¶¶ 29, 33; see 52 U.S.C. 

§ 30116(a)(1)(B), (9). This appeared to be the only aspect of the limit on contributions to 

political parties that the LNC challenged in its complaint, as the LNC confirmed in its discovery 

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34 

responses. (FEC Exh. 2 ¶¶ 26, 28.) However, the LNC’s proposed questions two and three are 

not expressly targeted at the segregated account structure, but instead broadly assert that the 

contribution limits applicable to national committees “restrict[] the purposes for which [the 

LNC] may spend” its money. (LNC Mem. at 3.) 

That framing of the issue is argumentative because it begs the question whether the 

segregated account limits actually restrict the LNC’s spending. As explained above, because the 

segregated account limits do not set maximum amounts of spending, there is no nonfrivolous 

argument that they restrict the LNC’s speech. At a minimum, the questions should be reframed 

to avoid suggesting the answer. 

Unlike the LNC’s complaint, moreover, certified questions two and three are not limited 

to the segregated account structure. (LNC Mem. at 3.) Rather, they broadly implicate any 

possible hypothetical “purposes” for which the LNC might wish to incur expenses, even if they 

fall outside the three categories of expenses identified as to the segregated account limits. (Id.) 

In fact, question 2 as drafted could be read to present a broad facial challenge to the general 

account limit in section 30116(a)(1)(B) that is not connected to the segregated account limits. 

This Court should not “certify to the en banc Court of Appeals an as-applied question laden with 

hypotheticals about the constitutionality of contribution limits.” LNC I, 930 F. Supp. 2d at 167. 

If any part of this case is to be certified, therefore, the questions should be limited to the 

challenge the LNC made in its complaint: 

2. Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment rights of the 

Libertarian National Committee by permitting it to accept 300% of the otherwise 

applicable contribution limit into segregated accounts used to defray expenses 

Case 1:16-cv-00121-BAH Document 25 Filed 10/05/17 Page 41 of 42
35 

with respect to its presidential nominating conventions, headquarters buildings, 

and election recounts and contests and other legal proceedings? 

3. Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment rights of the 

Libertarian National Committee by permitting it to accept 300% of the otherwise 

applicable contribution limit from the bequest of Joseph Shaber into segregated 

accounts used to defray expenses with respect to its presidential nominating 

conventions, headquarters buildings, and election recounts and contests and other 

legal proceedings? 

CONCLUSION 

For the foregoing reasons, the Court should dismiss this case and deny the LNC’s motion 

to certify facts and questions. The LNC’s claims are frivolous because they are foreclosed by 

Supreme Court precedent, and so they should not be certified to the en banc Court of Appeals. 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

October 5, 2017 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

/s/ Jacob S. Siler 

Jacob S. Siler (D.C. Bar. No. 1003383) 

Attorney 

jsiler@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

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