IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

LAURA HOLMES, et al.

 Plaintiffs,

 v.

FEDERAL ELECTION 

COMMISSION,

 Defendant.

)

)

)

)

)

)

) Civil Action No. 1:14-cv-01243 (RMC)

)

)

)

)

)

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PLAINTIFFS’ OPENING BRIEF REGARDING CERTIFICATION

Allen Dickerson, DC Bar No. 1003781

CENTER FOR COMPETITIVE POLITICS

124 West Street South, Suite 201

Alexandria, Virginia 22314

Phone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................... iii

ARGUMENT.................................................................................................................1 

I. Wagner’s Three-Step Process and the Scope of this Remand .......................1 

II. Developing a Record for Appellate Review ...................................................2 

III. This case presents two constitutional questions that the Supreme Court has 

not decided ......................................................................................................6 

A. The substantive question before this Court is whether Plaintiffs’ 

specific claims, in the context of the facts of this case, are foreclosed 

by Supreme Court precedent.................................................................6 

B. The Supreme Court has neither considered nor decided whether the 

bifurcated contribution limit furthers the government’s interest in 

preventing quid pro quo corruption ....................................................14

1. First Amendment Analysis.......................................................14

2. No court anticipated the effect on associational rights suffered 

by Plaintiffs and those similarly situated..................................16

3. No court has considered the bifurcated limit under the Supreme 

Court’s most recent pronouncement on closely drawn scrutiny, 

McCutcheon v. FEC .................................................................18

C. The Supreme Court has neither considered nor decided whether 

the bifurcated limit denies some contributors equal protection of the 

law.......................................................................................................20

1. Equal Protection Analysis ........................................................21

2. No court has considered whether bifurcating FECA’s base limit 

can subject some contributors to asymmetric treatment violating 

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the Constitution—but the Supreme Court has suggested that it 

might.........................................................................................22

3. The only court to consider an analogous contribution regime 

concluded that it violated the equal protection rights of the 

contributor-plaintiffs there........................................................27

D. Plaintiffs do not challenge the dollar amount of the individual 

contribution limit, so any deference traditionally afforded the 

legislature in that context is not relevant here ....................................29

CONCLUSION ............................................................................................................33

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TABLE OF AUTHORITIES

CASES

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

131. S. Ct. 2806 (2011)......................................................................25, 26

Buckley v. Valeo, 

424 U.S. 1 (1976)..............................................................................passim

Buckley v. Valeo, 

519 F.2d 817 (D.C. Cir. 1975).....................................................3, 4, 5, 14

Buckley v. Valeo, 

387 F. Supp. 135 (D.D.C. 1975)................................................................3 

Cal. Med. Ass’n v. FEC, 

53 U.S. 182 (1981).........................................................................2, 3, 7, 8

Cao v. FEC, 

688 F. Supp. 2d 498 (E.D. La. 2010) ..........................................10, 11, 26

Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981).................................................................................23

Citizens United v. FEC, 

558 U.S. 310 (2010).................................................................................10

City of Cleburne v. Cleburne Living Ctr., 

473 U.S. 432 (1985).................................................................................24

Davis v. FEC, 

554 U.S. 724 (2008).....................................................................24, 25, 26

Davis v. PBGC, 

571 F.3d 1288 (D.C. Cir. 2009).................................................................7 

Doe v. Reed,

561 U.S. 186 (2010).................................................................................12

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FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001)...........................................................................10, 11

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ................................................................................15

FEC v. Wis. Right to Life, 

551 U.S. 449 (2007)...................................................................................5 

Feinberg v. Fed. Deposit Ins. Corp., 

522 F.2d 1335 (D.C. Cir. 1975).................................................................8 

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990) ...........................................................6, 7, 9

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992) ............................................................passim

Libertarian Nat’l. Comm. v. FEC, 

930 F. Supp. 2d. 154 (D.D.C. 2013)..................................................13, 14

Mariani v. United States, 

212 F.3d 761 (3d Cir. 2000) .....................................................................5 

McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................................24

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)......................................................................passim

New York City Transit Auth. v. Beazer, 

440 U.S. 568 (1979).................................................................................29

News Am. Publ’g, Inc. v. FCC, 

844 F.2d 800 (D.C. Cir. 1988).................................................................21 

Nixon v. Shrink Mo. G’vt PAC, 

528 U.S. 377 (2000)..........................................................................passim

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Randall v. Sorrell

548 U.S. 230 (2006).....................................................................23, 31, 32

Republican Nat’l Comm. v. FEC (In re Anh Cao), 

619 F.3d 410 (5th Cir. 2010) .............................................................10, 12

Riddle v. Hickenlooper, 

742 F.3d 922 (10th Cir. 2014) ...........................................................27, 28 

SpeechNow.org v. FEC, 

567 F.Supp. 2d 70 (D.D.C. 2008)..............................................................7 

2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) ............................7 

United States v. Windsor, 

133 S. Ct. 2675 (2013).............................................................................21

Wagner v. FEC, 

717 F.3d 1007 (2013)........................................................................passim

Winter v. NRDC,

555 U.S. 7 (2008).......................................................................................7 

Wis. Right to Life v. FEC, 

546 U.S. 410 (2006).................................................................................12

Yick Wo v. Hopkins, 

118 U.S. 356 (1886).................................................................................22

STATUTES, RULES & CONSTITUTIONS

11 C.F.R. § 110.3(c)(3)....................................................................................16

52 U.S.C. § 30110 ....................................................................................passim

52 U.S.C. § 30116(a)(1)(A)...............................................................................6 

52 U.S.C. § 30116(a)(6) ..............................................................................6, 24

52 U.S.C. § 30116(c).......................................................................................24

 

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OTHER AUTHORITY

FEC, CAMPAIGN GUIDE: CONGRESSIONAL CANDIDATES AND COMMITTEES 

(June 2014), available at http://www.fec.gov/pdf/campaigngui.pdf.......27 

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ARGUMENT

Pursuant to this Court’s February 9, 2015 Order to Govern Proceedings, 

(Dkt. 24), Plaintiffs submit this Opening Brief Regarding Certification.

I. Wagner’s Three-Step Process and the Scope of this Remand

This case presents a narrow constitutional challenge, which Plaintiffs pursue 

under a compulsory statutory procedure. 52 U.S.C. § 30110.1

 Following this 

Court’s certification of the constitutional questions in this case, the Court of 

Appeals scheduled oral argument. The FEC responded by moving for remand, 

arguing, inter alia, that the record certified was insufficient because it did not 

“reflect[] input from both parties.” E.g., FEC Motion for Remand at 17, Holmes v. 

FEC, (No. 14-5281) (D.C. Cir. Jan. 2, 2015). The Court of Appeals remanded the 

action in a one page, unpublished order:

The court grants the motion to remand this 52 U.S.C. § 30110 

(formerly 2 U.S.C. § 437h) case in order to provide the parties an 

opportunity to develop, by expedited discovery or otherwise, the 

factual record necessary for en banc review of the plaintiffs’ 

constitutional challenge. It is further ordered that the district court 

shall complete the functions mandated by § 30110 and described in 

Wagner v. FEC, 717 F.3d at 1009, including the development of a 

record for appellate review, by April 24, 2015. The district court is to 

certify any constitutional question(s) by that date as well.

 

1

 Previously codified at 2 U.S.C. § 437h.

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Order, Holmes v. FEC, (No. 14-5281) (D.C. Cir. Jan. 30, 2015) (en banc) (per 

curiam) (D.D.C. Dkt. 22) (citing Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 

(1981) (“Cal. Med.”); Wagner v. FEC, 717 F.3d 1007, 1009 (2013)). 

Pursuant to that order, the scope of this remand is governed by Wagner v. 

FEC, which provides that: 

Under [§ 30110], a district court should perform three functions. First, 

it must develop a record for appellate review by making findings of 

fact. See Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 

(1982); Buckley v. Valeo, 519 F.2d 817, 818-19 (D.C. Cir. 1975) (per 

curiam). Second, the district court must determine whether the 

constitutional challenges are frivolous or involve settled legal 

questions. See Cal. Med. Ass'n v. FEC, 453 U.S. 182, 192 n.14 

(1981); Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en 

banc) (per curiam); Goland v. United States, 903 F.2d 1247, 1257 (9th 

Cir. 1990). Finally, the district court must immediately certify the 

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

court of appeals. See Cal. Med., 453 U.S. at 192 n.14; see also 

Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (en banc).

717 F.3d at 1009. Wagner provides a clear roadmap, which Plaintiffs follow 

below.

II. Developing a Record for Appellate Review

In remanding this case, the Court of Appeals suggested that the FEC should 

be given an opportunity to conduct discovery, and asked this Court to thereafter 

develop a factual record adequate for appellate review. The Commission has now 

had that opportunity, and has been invited to suggest additional facts for 

certification. Without prejudging that effort, Plaintiffs believe that the facts this 

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Court previously certified were adequate. Consequently, Plaintiffs propose only 

modest additions in their Proposed Facts for Certification, submitted 

contemporaneously with this Opening Brief.

The Court of Appeals has required this Court and the Parties to act 

expeditiously. Order (“the district court shall complete the functions mandated by 

§ 30110 and described in Wagner v. FEC, 717 F.3d at 1009, including the 

development of a record for appellate review, by April 24, 2015. The district court 

is to certify any constitutional question(s) by that date as well.”). This schedule is 

consistent with decades of § 30110 jurisprudence recognizing that “Congress’s 

objective when it enacted [§ 30110]... was, and is, speed.” Wagner, 717 F.3d at

1013 n.6. Speed is necessary because of “the public’s interest in having questions 

of FECA’s constitutionality speedily resolved.” Id. at 1013. A long line of cases 

reiterate this principle. See e.g., Cal. Med., 453 U.S. at 188 (Congress enacted [§ 

30110] as “method for obtaining expedited review of constitutional challenges to 

the [FECA]”); Buckley v. Valeo, 387 F. Supp. 135, 138 (D.D.C. 1975) (“The very 

essence of [§ 30110]...is speedy judicial review”) remanded on other grounds 519 

F.2d 817 (D.C. Cir. 1975) (en banc) (per curiam); but see Buckley, 519 F.2d at 819

(noting the “intention of Congress for expedition in appellate disposition”). 

Both this extensive precedent and the Court of Appeals’ order emphasize the 

speed with which this Court must act. Thus, neither Congress nor the appellate 

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court anticipate a substantial period of discovery, or the need for extensive factual 

findings (or the motion practice, extensive evidentiary hearings, expert testimony, 

and other time consuming steps necessary to develop and vet a lengthy record). 

Extraneous information—including general statements, characterizations of law, or 

details unrelated to the constitutional issues Plaintiffs present—need not (and 

should not) be made part of the certified record.

Of course, this Court must certify sufficient facts to resolve the 

constitutional questions at bar—a task lower courts have not always completed to 

the satisfaction of the Courts of Appeals. For example, when Buckley v. Valeo first 

came before the D.C. Circuit, it remanded the case, instructing the district court 

to“[t]ake whatever may be necessary in the form of evidence over and above

submissions that may suitably be handled through judicial notice.” 519 F.2d 817,

818 (D.C. Cir. 1975) (en banc) (per curiam). Similarly, in Khachaturian v. FEC, 

the district court considered no briefing and made no factual findings. 980 F.2d 

330, 332 (5th Cir. 1992). In fact, Khachaturian filed his complaint and motion to 

expedite on September 29, 1992—and that complaint constituted the entirety of the 

record sent to the en banc Court of Appeals. Khachaturian, No. 92-3232 (E.D. La. 

1992) (Dkts. 1 and 2). The FEC was not even given time to answer Khachaturian’s 

complaint. 980 F.2d at 332. This, of course, resulted in a record insufficient to 

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decide Mr. Khachaturian’s constitutional questions. But neither Buckley nor 

Khachaturian is, on this point, remotely similar to Plaintiffs’ case.

While an adequate record must be developed, the caselaw also 

overwhelmingly holds that unnecessary discovery and factfinding are 

inappropriate. See, e.g., Buckley v. Valeo, 519 F.2d at 818 (ordering district court 

to “[t]ake whatever may be necessary in the form of evidence”) (emphasis 

supplied); Wagner at 1017 (district court need only “make appropriate findings of 

facts, as necessary, and to certify those facts...”) (emphasis supplied); Mariani v. 

United States, 212 F.3d 761, 765 (3d Cir. 2000) (noting, in a challenge to FECA, 

that “some of the District Court's findings [we]re unsupported by proper evidence 

and that some stray[ed] from appropriate fact finding into legal conclusions”).2

Given the authority supporting a limited approach to discovery and factual 

development, it is hardly fatal to this expedited review procedure when, as it did in 

Wagner, § 30110 “results in a less-focused record than ordinary litigation.” 717 

F.3d at 1015. Moreover, from a practical standpoint, a lengthy record is not 

needed. This case concerns a specific, narrow problem: the constitutional 

implications of a law which, under a specific and recurring set of circumstances, 

 

2 Likewise, challenges to the Bipartisan Campaign Reform Act of 2002 (“BCRA”) 

proceed under a parallel judicial review procedure. The Supreme Court held that 

BCRA challenges “must entail minimal if any discovery, to allow parties to resolve 

disputes quickly without chilling speech through the threat of burdensome 

litigation.” FEC v. Wis. Right to Life, 551 U.S. 449, 469 (2007) (emphasis added).

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denies contributors like the Plaintiffs the same constitutional rights that other 

contributors enjoy, and does so without appreciably furthering the government’s 

anticorruption efforts. 

A succinct record is sufficient to demonstrate that bifurcation of the 

candidate contribution limit between primary and general elections violates the 

First and Fifth Amendments as applied to Plaintiffs and those similarly situated. 52 

U.S.C. §§ 30116(a)(1)(A); 30116(a)(6). Plaintiffs’ own experience demonstrates 

that favored contributors may give their preferred candidates $5,200 for the general 

election, while Plaintiffs and those similarly situated may not. On the other hand, it 

is the FEC’s burden to show that its anticorruption interests are served by 

bifurcating contribution limits—as opposed to the limits themselves. Thus, we turn 

to the second task set out by the Wagner Court: “determin[ing] whether the 

constitutional challenges are frivolous or involve settled legal questions.” Id. at 

1009 (citing Cal. Med., 453 U.S. at 192, n.14; Khachaturian v. FEC, 980 F.2d at 

331; Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990)). 

III. This case presents two constitutional questions that the Supreme Court 

has not decided.

A. The substantive question before this Court is whether Plaintiffs’ 

specific claims, in the context of the facts of this case, are 

foreclosed by Supreme Court precedent.

The certification of constitutional questions is not discretionary: “the plain 

text of [§ 30110] grants exclusive merits jurisdiction to the en banc court of 

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appeals.” Wagner at 1011 (emphasis supplied). See also Certification of Questions 

of Constitutionality of Federal Election Campaign Act at 1-2 (Dkt. 18) (this Court 

recognizing same).3 The relevant test is straightforward. Constitutional issues must 

be certified unless the Supreme Court has already decided the questions presented. 

 

3

 This Court first considered this case on a preliminary injunction motion, which is

an extraordinary remedy that may only be awarded upon a clear 

showing that the plaintiff is entitled to such relief....[and is] never 

awarded as of right...A plaintiff seeking a preliminary injunction 

must establish that he is likely to succeed on the merits, that he is 

likely to suffer irreparable harm in the absence of preliminary relief, 

that the balance of equities tips in his favor, and that an injunction is 

in the public interest.

Winter v. NRDC, 555 U.S. 7, 22, 24, 20 (2008). Given the remedy’s exceptional 

nature, a “movant has the burden to show that all four factors...weigh in favor of 

the injunction.” Davis v. PBGC, 571 F.3d 1288, 1292 (D.C. Cir. 2009).

By contrast, under § 30110, certification is required, with a limited exception for 

questions that are frivolous or matters of settled law. See, e.g., Cal. Med., 453 U.S. 

at 192 n. 14. Consequently, the rigorous standard for preliminary relief is distinct 

from the statutory path to en banc review. Certification is a right provided by 

Congress, not “an extraordinary remedy that may only be awarded upon a clear 

showing.” Winter, 555 U.S. at 22.

Similarly, certification does not require a multi-factor test, or impose a weighty 

burden on parties seeking it. Instead, there is a presumption in favor of 

certification: the showing required is minimal, akin to that required to survive a 

motion to dismiss under FED. R. CIV. P. 12(b)(6). Goland v. United States, 903 

F.2d 1247, 1257-58 (9th Cir. 1990) (comparing [§ 30110] certification standard to 

three judge court provision of 28 U.S.C. § 2284, and describing the showing 

required as “closely resembl[ing] that applied under Rule 12(b)(6)”). Compare, 

e.g., SpeechNow.org v. FEC, 567 F.Supp. 2d 70 (D.D.C. 2008) (denying plaintiffs’ 

motion to enjoin enforcement of certain contribution limits under § 30110); 2009 

U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) (certifying constitutional 

questions to the en banc Court of Appeals)).

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Wagner, 717 F.3d at 1009 (collecting cases). In Cal. Med., Justice Marshall 

described this test as one of substantiality or settled law (“the issues here are 

neither insubstantial nor settled. We therefore conclude that this case is properly 

before us pursuant to § [30110].”) 453 U.S. at 192 n.14. The en banc Fifth Circuit

stated that a “district court need not certify legal issues that have been resolved by 

the Supreme Court.” Khachaturian v. FEC, 980 F.2d at 331; see also, e.g., 

Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335, 1339 (D.C. Cir. 1975) 

(constitutional question is “substantial” for purposes of certification to three-judge 

court unless Supreme Court has “foreclose[d] the subject” and left “no room for 

the inference that the question sought to be raised can be the subject of 

controversy”). However phrased, the heart of the inquiry is the same: whether a 

case challenging the same provision, under the same legal theory, premised upon 

the same or similar facts, has been presented to and decided by the Supreme Court. 

Khachaturian v. FEC is instructive. In that case, “Khachaturian argue[d] that 

the [individual contribution] limit [was] unconstitutional as applied to his 

independent candidacy. However, Buckley considered, and rejected, claims that the 

contribution limit invidiously discriminates against independent and minor-party 

candidates as a class.” 980 F.2d at 331 (citing 424 U.S. at 33-35). This was correct: 

the Buckley Court had specifically stated that “the record [before it was] virtually 

devoid of support for the claim that the [then] $ 1,000 contribution limitation 

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w[ould] have a serious effect on the initiation and scope of minor-party and 

independent candidacies.” 424 U.S. at 34. Thus, the Supreme Court had considered 

the precise claim Mr. Khachaturian raised—that the individual contribution limit 

was unconstitutional in the context of an independent candidate. Further, 

Khachaturian had not shown that his situation was any different from that of the 

minor-party and independent candidates that Buckley had considered. 980 F.3d at 

331. As a result, it had been improper to certify the question. 

The threshold inquiry, then, is not whether the offending statute has ever 

before been subject to a constitutional challenge. Instead, it is whether the 

particular questions the plaintiffs ask the court to certify, on the particular facts of 

their situation, present a novel application of the law that has not been ruled upon 

by the Supreme Court. Goland v. United States, for example, emphasized that it is 

not the specific provision of law at issue that determines a question’s substantiality, 

but the factual posture and legal theory undergirding the case itself. 903 F.2d 1247

(9th Cir. 1990). There, the plaintiff funneled over $120,000 through 56 people to 

fund campaign ads without disclosing his identity. Id. at 1251. After being indicted

for violating FECA, he challenged the statute’s application to him and sought 

certification to a three-judge court under the predecessor to § 30110. Id. at 1252. 

The Ninth Circuit dismissed as “sophistic” and “creative” Goland’s suggestion 

that, because he contributed anonymously, the individual contribution limit upheld 

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in Buckley was inapplicable to him. Id. at 1257, 1258. Even in doing so, the Court 

of Appeals reiterated: “[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.” Id. at 1257. See also, e.g., Citizens United v. FEC, 558 U.S. 

310, 373 (2010) (opinion of Roberts, C.J.) (noting the Court’s practice “‘never to 

formulate a rule of constitutional law broader than is required by the precise facts 

to which it is to be applied’”) (citing United States v. Raines, 362 U.S. 17, 21 

(1960)) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners 

of Emigration, 113 U.S. 33, 39 (1885)).

Cao v. FEC, on the other hand, illustrates when a question is appropriate for 

certification. 688 F. Supp. 2d 498 (E.D. La. 2010) aff'd som. nom. Republican 

Nat’l Comm. v. FEC (In re Anh Cao), 619 F.3d 410 (5th Cir. 2010). There, the 

United States District Court for the Eastern District of Louisiana certified several 

questions to the Fifth Circuit. Among them was whether the $ 5,000 contribution 

limit on PAC-to-candidate contributions under 2 U.S.C. § 441a(a)(2)(A)4

 was 

unconstitutional as applied to a political party’s PAC. Importantly, this PAC-tocandidate contribution limit had been upheld in prior Supreme Court cases, 

including Buckley v. Valeo, 424 U.S. at 36, and FEC v. Colo. Republican Federal 

Campaign Comm., 533 U.S. 431, 438-39 (2001) (“Colorado II”). Nevertheless, the

 

4

 Recodified at 52 U.S.C. § 30116(a)(2)(A). 

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Cao plaintiffs brought a challenge based upon Supreme Court dicta noting the 

especially important role of established political parties in the electoral system. 

Given that central role, the plaintiffs argued, a political party’s PAC should not be 

subject to the PAC-to-candidate contribution limit. Cao, 688 F. Supp. 2d at 547.

The Cao district court concluded that this question was appropriate for 

certification because the Supreme Court had never directly considered that

argument. “Buckley mentioned the predecessor to [the PAC-to-candidate limit], but 

did so only in the context of discussing ad hoc political groups as opposed to 

‘established interest groups.’ Political parties were not mentioned, nor was the 

constitutionality of undifferentiated limits.” Id. (quoting 424 U.S. at 36). The 

district court continued: “the portion of Colorado II cited by the FEC dealt 

exclusively with coordinated expenditures, not contributions,” and “contributions 

and expenditures require distinct constitutional analysis.” Id.

Cao found further grounds for certification in the Supreme Court’s postBuckley jurisprudence: “In fact, the Colorado II court suggested that political

parties might warrant additional constitutional protections, but declined to address 

the question.” Id. (citing 533 U.S. at 448-49). The district court concluded that an 

“acknowledgment by the high court that parties may possess uniquely protected 

associational rights is sufficient for this Court to hold that [the question was] nonfrivolous.” Id.

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The en banc court ultimately rejected the Cao plaintiffs’ argument that 

political party PACs should not be subject to the same contribution limit as other 

PACs. In re Anh Cao, 619 F.3d 410 (5th Cir. 2010). But that is not relevant here. 

What is relevant is that the question was properly certified because, although the 

underlying statute had been twice upheld by the Supreme Court, plaintiffs brought

a novel claim based upon a different application of that statute to different facts.

Given this fact-bound determination, the as-applied nature of Plaintiffs’ case 

further supports certification. The importance of the as-applied path to 

constitutional litigation is well established, and applies as broadly in the context of 

political law as any other. For example, in Doe v. Reed, the Court “note[ed]—as [it 

had] in other election law disclosure cases—that upholding the law against a 

broad-based challenge does not foreclose a litigant’s success in a narrower one.” 

561 U.S. 186, 201 (2010) (citation omitted). Similarly, in upholding a BCRA 

provision against a facial attack, the Supreme Court took pains to reiterate that it 

“did not purport to resolve future as-applied challenges.” Wis. Right to Life v. FEC, 

546 U.S. 410, 411-12 (2006). As in Cao, courts have found that narrow, as-applied 

challenges are sufficiently “substantial” for certification, even when those cases 

concern contribution limits upheld facially by the Supreme Court.

Plaintiffs do not dispute that Buckley v. Valeo foreclosed challenges to the 

general imposition of individual contribution limits. 424 U.S. at 28-29 (facially 

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upholding individual limits as targeted to “the narrow aspect of political 

association where the actuality and potential for corruption have been identified”). 

The difference here is that Plaintiffs challenge the bifurcation itself, and its 

application in situations where candidates run unopposed in their primaries before 

going on to face candidates in the general election who had previously participated 

in a competitive primary. The FEC can point to no case—in the Supreme Court or 

elsewhere—that has even considered the bifurcation of the overall limit, let alone 

subjected it to the closely drawn scrutiny the Constitution requires. It has cited no 

precedent that contemplates the Plaintiffs’ circumstance. Thus, Plaintiffs’ 

constitutional questions are appropriate for certification. 

Moreover, even if this Court does not conclude that Plaintiffs have 

articulated a certifiable question, if the facts of their case present such a question, 

certification should proceed. Indeed, “[t]his Court has the power, and apparently 

the duty, to identify the constitutional issues and to reframe the question as 

necessary so that any proper non-frivolous question is certified to the en banc 

Court of Appeals.” Libertarian Nat’l. Comm. v. FEC, 930 F. Supp. 2d. 154, 169 

(D.D.C. 2013) (granting in part and denying in part plaintiff’s request to certify 

questions under [§ 30110]). In LNC v. FEC, Judge Wilkins found that that the 

proposed certified question in a facial challenge was foreclosed by facial Supreme 

Court rulings. Id. at 165. Nevertheless, the court concluded that “on th[o]se facts, it 

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appear[ed] that the anti-corruption interests that would be implicated by [the 

contribution limit challenged there] may be minimal.” Id. at 171. Thus, “[a]fter a 

careful review of the parties’ positions, the facts, and the current state of the law in 

this area, this Court conclud[ed] that, although the question presented by the LNC 

for certification does not merit review by the en banc Court of Appeals, there is a 

valid, narrower constitutional question raised by the [facts of the case] that presents 

an as-applied challenge that should be certified.” Id. 

Finally, the mere fact that this case was remanded does not change the 

certification requirements or imply that this Court was incorrect to certify the 

constitutional questions presented. As the procedural trajectories of cases like 

Buckley v. Valeo and Khachaturian v. FEC illustrate, a remand declining to decide 

the merits of a case does not purport to resolve those merits on re-certification. 519 

F.2d 817; 980 F.2d 330. Consequently, Plaintiffs request recertification of the 

constitutional questions previously submitted to the Court of Appeals.

B. The Supreme Court has neither considered nor decided whether 

the bifurcated contribution limit furthers the government’s

interest in preventing quid pro quo corruption.

1. First Amendment Analysis

Plaintiffs concede that the government may limit individual political 

contributions. Indeed, as a general matter, “contribution limits impose a lesser 

restraint on political speech [than expenditures do] because they ‘permit[ ] the 

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symbolic expression of support evidenced by a contribution but do[ ] not in any 

way infringe the contributor’s freedom to discuss candidates and issues.’” 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014) (quoting Buckley, 424 U.S. at 

21) (Buckley alterations in McCutcheon). Plaintiffs further acknowledge that, 

although government “action which may have the effect of curtailing the freedom 

to associate is subject to the closest scrutiny,” strict scrutiny does not apply to 

individual to candidate contribution limits. Buckley, 424 U.S. at 25; FEC v. Nat’l 

Right to Work Comm., 459 U.S. 197, 207 (1982) (both citing NAACP v. Ala. ex rel. 

Patterson, 357 U.S. 449, 460-61 (1958)). 

Still, when First Amendment rights are at stake, the Supreme Court places

the burden of persuasion upon the government, holding that “even a significant 

interference with protected rights of political association [including contribution 

limits] 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 (citations and quotation marks 

omitted) (emphasis supplied); see also, e.g., Nixon v. Shrink Mo. G’vt. PAC, 528 

U.S. 377, 392 (2000) (referring to “government’s burden to justify limits on 

contributions”). That is, to survive a First Amendment challenge, an associationsuppressing law must target a sufficiently important and non-illusory interest, and 

be closely drawn thereto.

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2. No court anticipated the effect on associational rights 

suffered by Plaintiffs and those similarly situated.

The preeminent case in this area of law, Buckley v. Valeo, did not 

contemplate a situation like the Plaintiffs’ where (1) FECA itself creates an unfair 

advantage, and (2) that unfair advantage privileges certain contributors over others. 

Compare Buckley 424 U.S. at 31 (FECA “applies the same limitations on 

contributions to all candidates.”) What’s more, the redesignation provision which 

allows for this result in the first place, 11 C.F.R. § 110.3(c)(3), received not a 

single mention in the Buckley opinion. 

What the Supreme Court has made clear is that the only constitutionally 

cognizable justification for contribution limits is the prevention of actual or 

apparent quid pro quo corruption. McCutcheon, 134 S. Ct. at 1450; Buckley, 424 

U.S. at 25; see also Nixon v. Shrink Mo., 528 U.S. at 388. As Chief Justice Roberts 

explained

In a series of cases over the past 40 years, we have spelled out how to 

draw the constitutional line between the permissible goal of avoiding 

corruption in the political process and the impermissible desire simply 

to limit political speech. We have said that government regulation 

may not target the general gratitude a candidate may feel toward those 

who support him or his allies, or the political access such support may 

afford. Ingratiation and access...are not corruption. They embody a 

central feature of democracy—that constituents support candidates 

who share their beliefs and interests, and candidates who are elected 

can be expected to be responsive to those concerns.

Any regulation must instead target what we have called quid pro quo

corruption or its appearance. That Latin phrase captures the notion of 

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a direct exchange of an official act for money. The hallmark of 

corruption is the financial quid pro quo: dollars for political favors. 

Campaign finance restrictions that pursue other objectives, we have 

explained, impermissibly inject the Government into the debate over 

who should govern. And those who govern should be the last people 

to help decide who should govern.

McCutcheon, 134 S. Ct. at 1441-42 (citations and quotation marks omitted) 

(emphasis original).

Consequently, it is beyond dispute that contribution limits must target this 

understanding of quid pro quo corruption. It follows, then, that the government 

must offer more than a naked assertion of a “corruption” interest to justify a burden 

on the right to associate via political contributions. Nixon v. Shrink Mo., 528 U.S. 

at 392 (citing and discussing Colo. Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604, 616 (1996) (opinion of Breyer, J.)). “In the First Amendment context, fit 

matters.” McCutcheon, 134 S. Ct. at 1456. This is where closely drawn scrutiny 

comes in: a contribution limit must be closely drawn to the government’s interest 

in preventing actual or apparent quid pro quo arrangements—dollars for favors. 

Otherwise, it is unconstitutional. McCutcheon, 134 S. Ct. at 1462.

No court has considered the constitutionality of bifurcating the individual

limit on candidate contributions, either facially or as applied, under this standard. 

Further, the FEC has not suggested a justification, except to baldly (and without 

evidence) assert a vague anticorruption interest. 

One cannot corrupt an abstract concept such as an election. What may be 

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corrupted is a candidate. From that standpoint, a limit on how much money may be 

given to candidates may well further Congress’s legitimate interest. But the FEC 

has never shown what additional work is being done by bifurcating that limit. This 

is especially so where, in the not-uncommon instance of a candidate facing little or 

no primary opposition, that bifurcation is itself illusory. Cf. Nixon v. Shrink Mo., 

528 U.S. at 392 (the Supreme Court “[has] never accepted mere conjecture as 

adequate to carry a First Amendment burden.”). 

3. No court has considered the bifurcated limit under the 

Supreme Court’s most recent pronouncement on closely 

drawn scrutiny, McCutcheon v. FEC. 

McCutcheon refined the contours of the required First Amendment analysis, 

but it is only the latest in the series of cases explaining the scope of the 

government’s interest in combating quid pro quo corruption. See McCutcheon, 134 

S. Ct. at 1441 (“In a series of cases over the past 40 years...”). Consequently, even 

if the bifurcated limit had, on similar facts, been subject to First Amendment 

scrutiny in the past (which it has not), it could not have been evaluated under 

McCutcheon. This is important because McCutcheon strengthened the exacting

scrutiny standard in the contribution context, making quite clear that the 

government must show a particular type of anticorruption rationale—quid pro quo

corruption, narrowly understood. What’s more, it must do so without resorting to

unsubstantiated hypotheticals; in invalidating the aggregate contribution limits,

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McCutcheon noted a dearth of “real-world examples of circumvention of the base 

limits” that the aggregate limits were designed to prevent. Id. at 1456. “This sort of 

speculation,” the Court concluded, “cannot justify the substantial intrusion on First 

Amendment rights at issue in this case.” Id.

Moreover, in evaluating the government’s anticorruption claims, 

McCutcheon considered the total limit on any one individual’s contributions to any 

one candidate without respect to the distinction between primary and general 

elections. Id. at 1448 (“if all contributions fall within the base limits Congress 

views as adequate to protect against corruption. The individual may give up to 

$5,200 each to nine candidates”); Id. at 1451 (“under the dissent’s view, it is 

perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give 

the same amount to a tenth”). Thus, the Court clarified that “Congress’s selection 

of a $5,200 base limit indicates its belief that contributions of that amount or less 

do not create a cognizable risk of corruption.” Id. at 1452. Consequently,

preventing Plaintiffs’ desired contributions—a total of $5,200 to any given 

candidate during a general election—does not further an anti-corruption interest. 

The FEC’s defense of the bifurcated limit suffers from the same infirmities 

that were fatal in McCutcheon. Bifurcation prevents Plaintiffs and those similarly 

situated from giving the full, non-corrupting contribution amount at the time they 

feel is most critical in the electoral cycle. If a contributor wishes to fully associate

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with a candidate who must run in a competitive primary, the bifurcated limit forces 

that contributor to associate with the candidate during a primary election. This is so 

even for contributors who simply wish to support candidates in the general election 

(when, after all, one’s representatives are actually elected) along party lines. As the 

Supreme Court has noted, also in the contribution limit context, “[s]uch 

distinctions in degree become significant...when they can be said to amount to 

differences in kind.” Buckley, 424 U.S. at 30 (citations omitted). Like the aggregate 

limit on individual contributions considered in McCutcheon, “[a]t that point, the 

limits deny the individual all ability to exercise his expressive and associational 

rights by contributing to someone who will advocate for his policy preferences,” a 

“clear First Amendment harm[].” Id. at 1448-49. 

Thus, it is appropriate for this Court to certify Plaintiffs’ First Amendment 

challenge to the Court of Appeals.

C. The Supreme Court has neither considered nor decided whether 

the bifurcated limit denies some contributors equal protection of 

the law. 

As Plaintiffs have noted throughout this litigation, their challenge is not 

based on an incumbent/challenger distinction, but rather on the asymmetry posed 

when a candidate who faces a primary challenge competes in the general election 

against a candidate who ran virtually unopposed during the primary. In 2014, the 

only difference between the Plaintiffs and contributors to their preferred 

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candidates’ general election opponents was that a contributor to Congressman 

Loebsack or Congressman Peters could give $5,200 solely for use in the general 

election, while Mr. Jost and Ms. Holmes were denied that same ability. Certainly, 

this also occurred in other races, and will continue to occur in future electoral 

cycles. See, e.g., Certification of Questions of Constitutionality of Federal Election 

Campaign Act at 6 (Dkt. 18) (“Plaintiffs’ complaint is not mooted by the 

November 4, 2014 election inasmuch as the same limitations would apply to their 

contributions in the next federal election in which they wish to contribute to a 

candidate.”)

Plaintiffs challenge this result under the doctrine of equal protection.

1. Equal Protection Analysis

This unequal treatment infringes upon the “liberty protected by the Fifth 

Amendment’s Due Process Clause...against denying to any person the equal 

protection of the laws.” United States v. Windsor, 133 S. Ct. 2675, 2695 (2013); 

News Am. Publ’g, Inc. v. FCC, 844 F.2d 800, 804 (D.C. Cir. 1988) (“Although the 

Equal Protection Clause appears only in the [Fourteenth] Amendment, which 

applies only to the states, the Supreme Court has found its essential mandate 

inherent in the Due Process Clause of the Fifth Amendment[,] and therefore 

applicable to the federal government”). The equal protection doctrine’s “broad and 

benign provisions” render invalid any law which may “itself be fair on its face and 

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impartial in appearance, yet...is applied...so as practically to make unjust and 

illegal discriminations between persons in similar circumstances, material to their 

rights.” Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886).

The First Amendment’s protective scope encompasses the freedom to 

associate, which the Supreme Court has long considered a “basic constitutional 

freedom” that “lies at the foundation of a free society.” Buckley, 424 U.S. at 25 

(citation and quotation marks omitted). This is black letter law. E.g., Nixon v.

Shrink Mo., 528 U.S. at 386 (limits on the right to contribute implicate “the 

constitutional guarantee” of associational liberty, which “has its fullest and most 

urgent application precisely to the conduct of campaigns for political office”) 

(citing Buckley, 424 U.S. at 15-16, (quoting Monitor Patriot Co. v. Roy, 401 U.S. 

265, 272 (1971))). Indeed, just last Term, the Supreme Court noted that “[t]here is 

no right more basic in our democracy than the right to participate in electing 

political leaders...[such as by] contribut[ing] to a candidate’s campaign.” 

McCutcheon, 134 S. Ct. at 1440-41.

2. No court has considered whether bifurcating FECA’s base 

limit can subject some contributors to asymmetric 

treatment violating the Constitution—but the Supreme 

Court has suggested that it might.

In reviewing contribution limits, the Supreme Court has largely considered 

challenges by candidates or political committees from the perspective of a 

contribution’s recipient, not that of the contributor herself. The Buckley Court’s 

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decision to uphold the individual contribution limits in FECA, for instance, was 

grounded in a record that focused on the candidates and parties involved. 424 U.S. 

at 33. It did not specifically address the right to equal protection at issue here: the 

one held by contributors. Moreover, the Buckley Court only considered a facial 

challenge to the contribution limits, and did not consider the effects of separate 

limits for primary and general elections. 

Indeed, the principal cases discussing contribution limits tend consider 

whether the limits create “restraint[s] on the right of association...[by] hobbl[ing] 

the collective expressions of a group.” Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290, 296 (1981). Even when contributors have themselves 

brought suit, these contributor-plaintiffs generally have mounted a wholesale 

challenge to the limits themselves—not the asymmetric classification of different 

types of contributors. E.g. Randall v. Sorrell, 548 U.S. 230, 239-40 (2006). 

Moreover, as this Court itself has noted, the Supreme Court “has not 

addressed the scrutiny applicable to a challenge to restrictions on political 

contributions under an equal protection rubric.” Memorandum Opinion Denying 

Preliminary Injunction at 10 (Dkt. 15). This alone suggests that Plaintiffs’ equal 

protection challenge has not been ruled upon by the Court; presumably such a 

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ruling would have mentioned the level of scrutiny it was applying.5 Moreover, “the 

preferred course of adjudication” is to strike down a law only as it applies to those 

unconstitutionally burdened. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 

432, 448 (1985). Thus, it is unsurprising when a court declines to reach the merits 

of a Fifth Amendment claim where other grounds for decision are available.

Nevertheless, the Supreme Court has consistently looked askance at 

asymmetric campaign finance regulations. In Davis v. FEC, for example, a selffinanced congressional candidate brought First and Fifth Amendment challenges to 

BCRA’s “millionaire’s amendment.” 554 U.S. 724, 729 (2008) (discussing BCRA 

§ 319(a), formerly 2 U.S.C. § 441a-1(a)). That provision of BCRA allowed 

congressional candidates who were opposed by self-financed candidates to receive 

individual contributions at three times the statutory level. The Court found in 

Plaintiff’s favor on First Amendment grounds and, as a result, did not reach his 

Fifth Amendment claim. Nevertheless, the Court’s analysis is instructive, as it 

 

5 In 2002, Congress amended FECA by passing the Bipartisan Campaign Reform 

Act (“BCRA”). BCRA § 307 doubled the individual contribution limits, and 

indexed the limits to the consumer price index. 52 U.S.C. § 30116(c) (formerly 2 

U.S.C. § 441a(c)). BCRA left FECA’s distinction between primary and general 

elections undisturbed. 52 U.S.C. § 30116(a)(6) (formerly 2 U.S.C. § 411a(a)(6)). 

Like FECA, BCRA was quickly challenged facially by a number of plaintiffs. 

McConnell v. FEC, 540 U.S. 93 (2003). Nevertheless, no McConnell plaintiff 

challenged the bifurcation of those limits. A number of plaintiffs challenged 

BCRA’s increase in individual contribution limits, but did not challenge the limit’s 

bifurcation between the primary and general elections. The McConnell Court 

declined to reach that issue for want of jurisdiction. 540 U.S. at 227-29 (plaintiffs 

challenging increase failed to demonstrate Article III standing).

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noted the provision’s “effect of enabling [plaintiff’s] opponent to raise more 

money and to use that money to finance speech that counteracts and thus 

diminishes the effectiveness of” other candidate speech. Davis, 554 U.S. at 750. 

This holding is further instructive insofar as it recognized that “[w]e have never 

upheld the constitutionality of a law that imposes different contributions for 

candidates who are competing against each other, and we agree with Davis that 

this scheme impermissibly burdens his First Amendment right to spend his own 

money for campaign speech.” Id. at 738.

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

Supreme Court struck down an Arizona public financing regime based, in part, on 

its asymmetric effect (although not specifically under the Equal Protection Clause). 

131. S. Ct. 2806, 2819 (2011). Arizona’s system provided that “a publicly financed 

candidate would receive roughly one dollar for every dollar spent by an opposing 

privately financed candidate” or an independent group supporting such a candidate. 

Id. at 2813. In rejecting that state’s approach, the Court relied upon Davis. Id. at 

2818 (“The logic of Davis largely controls our approach to this case”). But it also 

noted an asymmetry problem: some Arizona districts, including its state House 

districts, elected more than one candidate.6

 Consequently, “each dollar spent by the 

 

6 Id. at 2815 (“Arizona is divided into 30 districts for purposes of electing members 

to the State’s House of Representatives. Each district elects two representatives to 

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privately funded candidate would result in an additional dollar of campaign 

funding to each of that candidate’s publically financed opponents.” Id. at 2819 

(emphasis supplied). The Court stated that, in such circumstances, candidates 

would be required “to fight a political hydra of sorts.” Id.

This was equally, if not especially, true for independent groups who, in 

speaking for or against a candidate, would trigger direct cash payments to their 

opponents. Id. (“spending one dollar can result in the flow of dollars to multiple 

candidates the group disapproves of”). These passages can only be read as 

expressing the Court’s concern, explicitly raised in both Buckley and Davis, that 

governments might impermissibly violate constitutionally safeguarded political

rights by providing some with advantages over others. 

Thus, the Supreme Court has determined that where contribution limits work 

asymmetrical effects, they threaten fundamental freedoms and may be 

unconstitutional. Because it has never reached the merits of an equal protection 

challenge to contribution limits—but has suggested, in Davis and Ariz. Free 

Enterprise Club PAC, that such a challenge might be appropriate—Plaintiffs’ equal 

protection challenge to the bifurcated limit should be certified. See, Cao v. FEC, 

688 F. Supp. 2d at 547 (“acknowledgment by the high court that parties may 

 

the House biannually. In the last general election, the number of candidates 

competing for the two available seats in each district ranged from two to seven”).

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possess uniquely protected associational rights is sufficient for this Court to hold 

that [the question was] non-frivolous”). 

3. The only court to consider an analogous contribution 

regime concluded that it violated the equal protection rights 

of the contributor-plaintiffs there.

While the Supreme Court has never reached the merits of any contributor’s 

equal protection challenge to an asymmetrical contribution limit, the Tenth Circuit 

has. Riddle v. Hickenlooper, 742 F.3d 922, 930 (2014). Riddle contemplated a 

slightly different factual posture, but addressed a parallel constitutional claim: that 

a contribution limit operated asymmetrically, in violation of equal protection. The 

case involved a Colorado law permitting uncontested major party candidates to 

receive contributions for the primary and general elections—just as federal law 

permits now. Id. at 924 (Contributions for both elections allowed “even when there 

is only one candidate seeking the nomination” of a major party). These primary 

and general election contributions could—as in the federal system—all be spent in 

the general election. Id. at 926; FEC, CAMPAIGN GUIDE: CONGRESSIONAL 

CANDIDATES AND COMMITTEES (June 2014) at 21, available at

http://www.fec.gov/pdf/campaigngui.pdf (“Nevertheless, the campaign of a 

candidate running in the general election may spend unused primary contributions 

for general election expenses”). But candidates seeking the nomination of other, 

non-major parties, could receive primary contributions “only when multiple 

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candidates vie for the nomination.” Id. at 926. Other candidates who did not run in 

a primary—such as independent or write-in candidates—were also barred from 

accepting primary election money. Id. at 927. 

The Riddle plaintiffs, like Ms. Holmes and Mr. Jost, sought to contribute the 

full primary and general election amount to a general election candidate (in Riddle, 

a write-in candidate). The Tenth Circuit found no cognizable anti-corruption 

interest in “creat[ing] a basic favoritism between candidates vying for the same 

office,” and determined that Colorado’s asymmetric scheme violated the U.S. 

Constitution’s requirement that citizens be treated equally under the law. Id. at 929, 

930. Specifically, the Tenth Circuit determined that because “[a]fter the primary, a 

supporter of [the write-in candidate] could give” half as much money for the 

general election, “the statute treated contributors differently based on the political 

affiliation of the candidate being supported. And by treating the contributors 

differently, the statute impinged on the right to political expression.” Id. at 927.

Plaintiffs challenge a statute that in operation causes a Fifth Amendment 

harm comparable to the one identified in Riddle. As in Riddle—where the 

contribution limit distinguished between two types of candidates—the 

primary/general election bifurcation works a similar effect. Colorado’s statute 

created different contribution limits for those who ran in a primary election and 

those who did not. Likewise, the federal scheme does not distinguish between 

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those candidates who must face significant primary challengers and those who do 

not. While “on its face” this scheme does not appear discriminatory, the disparate 

impact in favor of contributors to candidates who do not face a primary 

challenge—and their supporters—is clear “political reality.” Buckley, 424 U.S. at 

31 n.33. 

Thus, a “fundamental principle: [that] the State must govern impartially” is 

at risk. New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979). Unless 

the government has a constitutionally sufficient justification for allowing some 

contributors to give $5,200 for the general election, while prohibiting others from 

doing the same, the bifurcated limit must fall as applied. At minimum, given the 

Supreme Court’s lack of a ruling on this constitutionally sensitive question, 

Plaintiffs’ due process question ought to be certified to the Court of Appeals.

D. Plaintiffs do not challenge the dollar amount of the individual

contribution limit, so any deference traditionally afforded the 

legislature in that context is not relevant here. 

It bears repeating that Plaintiffs do not challenge the dollar amount of the 

individual contribution limit. Instead, they challenge its structure, and the effects of 

that structure on Plaintiffs and those similarly situated. It is true that courts lack “a 

scalpel to probe” legislative judgments setting the precise dollar amounts of 

contributions, and thus, generally defer to legislative determinations on that point. 

Buckley v. Valeo, 424 U.S. at 30. It is another matter entirely, however, to defer to

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an artificial bifurcation that treats a particular class of contributors unfairly, or to 

defer to a contribution regime that is not tailored to the prevention of quid pro quo 

corruption. Such schemes violate, respectively, the Fifth and First Amendments.

For example, in upholding state the contribution limits at issue there, Nixon 

v. Shrink Mo. observed that “[w]hile Buckley's evidentiary showing exemplifies a 

sufficient justification for contribution limits, it does not speak to what may be 

necessary as a minimum.” 528 U.S. at 391. The Court further noted that “Buckley

upheld contribution limits as constitutional...noting the Court's ‘deference to a 

congressional determination of the need for a prophylactic rule where the evil of 

potential corruption had long been recognized.’” Id. at 393 n.5 (quoting FEC v. 

Nat’l Conservative Political Action Comm., 470 U.S. 480, 500 (1985)).

Nevertheless, Nixon v. Shrink Mo. clarified that, while it had found sufficient 

evidence to uphold the base limits at issue there, “[t]he quantum of empirical 

evidence needed to satisfy heightened judicial scrutiny of legislative judgments 

will vary up or down with the novelty and plausibility of the justification raised.” 

Id. at 391. This ratcheted scale is illuminating when it comes to scrutinizing the

bifurcated limit. Indeed, Nixon v. Shrink Mo. considered whether a state’s limit on 

contributions to candidates was too low.7

 In other words, that case involved the 

 

7

 Missouri’s contribution limit was, like the federal limit, calculated on a perelection basis. 528 U.S. at 382-83 (citation omitted). But it was the existence and 

dollar amount of the limit that was challenged there—not, as here, its bifurcation.

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mere existence of contribution limits as such, and whether they were set at an 

appropriate level, neither of which were “novel” questions. On the other hand, the 

issue here—the bifurcation of a total contribution to a single candidate between the 

primary and general portions of an election cycle, as applied to contributors like 

the Plaintiffs—does not merely reflect Congress’s judgment that there should be 

some contribution limit set at some amount. Rather, it regulates the manner in 

which such contribution must be given. This question is novel. 

Moreover, any applicable legislative deference is not without limit. In 

Randall v. Sorrell, for example, the Supreme Court considered Vermont’s limit on 

individual contributions during an entire election cycle. 548 U.S. at 249 (noting 

that Vermont law “sets its limits per election cycle, which includes both a primary 

and a general election”). To ensure the limit was closely drawn to a sufficiently 

important governmental interest, Randall applied a two part test, first determining 

whether the statute showed “danger signs” of putting challengers at a significant 

disadvantage, and second “review[ing] the record independently and carefully with 

an eye toward assessing the statute’s tailoring [and]...proportionality.” 548 U.S. at 

249 (quotation marks and citation omitted). The Court there did not defer to the 

legislature, because it determined that the limit in question was “too low and too 

strict to survive First Amendment scrutiny.” Id. at 248.

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Here, Congress has conditioned the noncorrupting nature of a $5,200 general 

election contribution on the timing of the gift: at least half must be given before the 

primary election, even if only by a day, and even if the entire $5,200 is used for the 

general election. Conversely, the entire $5,200 may not be given after the primary 

election, even if only by a day, and even though the same $5,200 will be used for 

the same general election. The bifurcated limit allows supporters of candidates 

without primary challengers to contribute twice as much money for the general 

election. This is not simply an exercise in legislative discretion with respect to 

setting dollar amounts, which courts lack a “scalpel to probe.” Buckley, 424 U.S. at 

30; Randall, 548 U.S. at 247, 248. It doubles the scope of association that certain 

contributors enjoy, and does so as a matter of government design. 

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CONCLUSION

For the forgoing reasons, Plaintiffs’ constitutional questions were properly 

certified to the Court of Appeals, and should be recertified. 

Respectfully submitted this 13th day of March, 2015, 

/s/ Allen Dickerson

Allen Dickerson (D.C. Bar No. 1003781) 

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, VA 22314

Tel: (703) 894-6800

Fax: (703) 894-6811

Counsel for Plaintiffs

Case 1:14-cv-01243-RMC Document 25 Filed 03/13/15 Page 40 of 41
CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of March, 2015, I filed the foregoing 

Plaintiff’s Opening Brief Regarding Certification in the above-captioned action via 

this Court’s ECF system, causing notice to be served upon the following: 

Kevin Deeley 

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak

Acting Assistant General Counsel

echlopak@fec.gov

Benjamin R. Streeter, III

Attorney

bstreeter@fec.gov

Steve Hajjar

Attorney

shajjar@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463 

(202) 694-1650

Counsel for Defendant

/s/ Allen Dickerson

 Allen Dickerson

 Counsel for Plaintiffs

Case 1:14-cv-01243-RMC Document 25 Filed 03/13/15 Page 41 of 41