NO. 15-1455

In the

United States Court of Appeals

for the Fourth Circuit

STOP RECKLESS ECONOMIC INSTABILITY CAUSED

BY DEMOCRATS, TEA PARTY LEADERSHIP FUND,

and ALEXANDRIA REPUBLICAN CITY COMMITTEE,

Appellants, 

and

AMERICAN FUTURE PAC,

Intervenor-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA AT ALEXANDRIA

______________________________________________________________________________

APPELLANTS’ AND INTERVENOR-APPELLANT’S REPLY BRIEF

______________________________________________________________________________

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

DB CAPITOL STRATEGIES NAJVAR LAW FIRM COOLIDGE-REAGAN

203 S. Union Street 4151 S.W. Freeway FOUNDATION

Suite 300 Suite 625 1629 K St. NW #300 

Alexandria, VA 22314 Houston, TX 77027 Washington, DC 20013

(202) 210-5431 (281) 404-4696 (860) 778-3883

DBacker@DBCapitolStrategies.com jerad@najvarlaw.com Michaelmorleyesq@hotmail.com

Counsel for Appellants Stop Counsel for Lead Counsel for 

PAC, Tea Party Leadership Intervenor-Appellant Appellants & 

Fund, and Alexandria American Future PAC Intervenor-Appellant

Republican City Comm.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................ii

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

I. THE SIX-MONTH WAITING PERIOD AND DISCRIMINATORY

CONTRIBUTION LIMITS ARE UNCONSTITUTIONAL ....................... 1

A. At the Very Least, This Court Must Invalidate the 

Reduction in Limits on Contributions to Local, 

State, and National Parties to Which Committees 

are Subject After Being Registered for Six Months .......................... 4

B. The Length of Time a Committee Has Been Registered is a 

Poorly Tailored Proxy for the Risk of Corruption it Poses................ 7

C. The FEC Has Failed to Adduce Any Record Evidence 

Concerning the Risk of Corruption Associated 

with Newer Committees or Established Committees. ..................... 11

D. Buckley Supports, Rather Than 

Precludes, This As-Applied Challenge ............................................ 14

II. ALL CLAIMS IN THIS CASE REMAIN JUSTICIABLE....................... 15

A. Stop PAC and American Future PAC Have Standing 

to Challenge the Six-Month Waiting Period.................................... 15

B. Stop PAC’s and American Future PAC’s 

Claims Remain Justiciable Because They Are

“Capable of Repetition, Yet Evading Review.”............................... 16

C. The Fund’s and ARCC’s Claims Remains Justiciable..................... 21

CONCLUSION..................................................................................................... 23

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) OR 32(a)................ 25

CERTIFICATE OF SERVICE ............................................................................ 26

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TABLE OF AUTHORITIES

Cases

Brown v. Entm’t Merchs. Ass’n, 

131 S. Ct. 2729 (2011)................................................................................ 14

Buckley v. Valeo, 

424 U.S. 1 (1976)................................................................................ 1, 8, 14

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)...................................................................................... 8

Califano v. Boles, 

443 U.S. 282 (1979)...................................................................................... 6

Catholic Leadership Coalition of Tex. v. Reisman, 

764 F.3d 409 (5th Cir. 2014)...................................................................... 17

Davis v. FEC, 

554 U.S. 724 (2008).................................................................................... 17

Dunn v. Blumstein, 

405 U.S. 330 (1972).............................................................................. 17, 18

FEC v. Nat’l Conservative Pol. Action Comm., 

470 U.S. 480 (1985).................................................................................... 12

FEC v. Wisconsin Right to Life, 

551 U.S. 449 (2007).................................................................................... 17

Honig v. Doe, 

484 U.S. 305 (1988).................................................................................... 17

Lawrence v. Blackwell, 

430 F.3d 368 (6th Cir. 2005)...................................................................... 17

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992).................................................................................... 22

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Lux v. Judd, 

651 F.3d 396 (4th Cir. 2011)...................................................................... 18

Majors v. Abell, 

317 F.3d 719 (7th Cir. 2003)...................................................................... 17

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)....................................................................1, 5, 6, 15

Moore v. Ogilvie, 

394 U.S. 814 (1969).............................................................................. 17, 18

N.C. Right to Life Comm. Fund for 

Indep. Pol. Expenditures v. Leake, 

524 F.3d 427 (4th Cir. 2008)..........................................................18, 21, 22

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000).............................................................................. 11, 12

Police Dep’t of the City of Chicago v. Mosley, 

408 U.S. 92 (1972)........................................................................................ 8

Randall v. Sorrell, 

548 U.S. 230 (2006)...................................................................................... 6

Rosario v. Rockefeller, 

410 U.S. 752 (1973).........................................................................16-17, 18

Schaefer v. Townsend, 

215 F.3d 1031 (9th Cir. 2000).................................................................... 17

Storer v. Brown, 

415 U.S. 724 (1974).............................................................................. 16, 18

Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622 (1994).................................................................................... 11

United Food & Commer. Workers 

Union Local 751 v. Brown Group, 

517 U.S. 544 (1996).................................................................................... 21

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Wagner v. FEC, 

854 F. Supp. 2d 83 (D.D.C. 2012)................................................................ 8

Warth v. Seldin, 

422 U.S. 490 (1975).................................................................................... 21

Statutes

52 U.S.C. § 30104............................................................................................. 3, 10

52 U.S.C. § 30109............................................................................................. 3, 10

52 U.S.C. § 30116..........................................................................................passim

Regulations

FEC, Price Index Adjustments for Contribution 

and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 

80 FED. REG. 5,750 (Feb. 3, 2015) ............................................................... 2

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ARGUMENT

I. THE SIX-MONTH WAITING PERIOD AND DISCRIMINATORY 

CONTRIBUTION LIMITS ARE UNCONSTITUTIONAL

The Supreme Court repeatedly has held that laws limiting the amount a 

person or group may contribute to political candidates are constitutional only if 

they are “closely drawn” to combatting actual or apparent quid pro quo corruption. 

McCutcheon v. FEC, 134 S. Ct. 1434, 1450-51 (2014); see also Buckley v. Valeo, 

424 U.S. 1, 25 (1976). In this case, the FEC has tied itself into knots attempting to 

defend an irrational, and ultimately incoherent, system that creates two statutory 

groups of materially identical entities:

● those that satisfy § 30116(a)(4)’s Receipt and Contribution 

Requirements,1but have been registered with the FEC for less than six 

months (hereafter, “Newer Committees”); and

● those that satisfy § 30116(a)(4)’s Receipt and Contribution 

Requirements, and have been registered with the FEC for six or more 

months (hereafter, “Established Committees”). 

Newer Committees are permitted to contribute only $2,700 to candidates 

throughout their first six months of existence. 52 U.S.C. § 30116(a)(1)(A).2 After 

 

1

52 U.S.C. § 30116(a)(4) establishes three requirements a political committee 

must satisfy to qualify as a multicandidate PAC. First, it must have “receipted 

contributions from more than 50 persons” (hereafter, “Receipt Requirement”). 

Second, it must have “made contributions to 5 or more candidates for federal 

office” (hereafter, “Contribution Requirement”). Finally, it must have been 

registered with the FEC “for a period of not less than 6 months” (hereafter, “SixMonth Requirement”). 52 U.S.C. § 30116(a)(4). 

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that six-month waiting period has expired, they may contribute the full statutory 

maximum of $5,000 per election to each candidate. Id. § 30116(a)(2)(A). This 

limit nearly doubles at the end of the committee’s six-month waiting period, even 

if the committee did not make contributions to any other candidates after satisfying 

the Contribution Requirement, receive contributions from any other people after 

satisfying the Receipt Requirement, or engage in any other activity at all 

throughout that time. Indeed, the limit increases to $5,000 regardless of how 

suspicious or objectionable the FEC finds the committee’s operations to be. 

At the very same time, after a Newer Committee hits the six-month mark—

and the law deems it sufficiently trustworthy to contribute nearly twice as much to 

federal candidates—the amount the committee may contribute to political parties is 

slashed roughly in half. During its six-month waiting period, a Newer Committee 

may contribute $10,000 annually to state and local political parties, id. 

§ 30116(a)(1)(D), and $33,400 in unrestricted funds to national political parties, id. 

§ 30116(a)(1)(B); see also 80 FED. REG. at 5,752, as well as an additional $102,200 

to each of the national party’s three special segregated funds, see 52 U.S.C. 

§ 30116(a)(1)(B), (a)(9). Throughout that time, the committee is required to file 

numerous reports with the FEC detailing nearly all of the committee’s 

 

2

See also FEC, Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 80 FED. REG. 5,750, 

5,752 (Feb. 3, 2015) (adjusting statutory limit for inflation).

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contributions and expenditures, see generally 52 U.S.C. § 30104; any person who 

suspects the committee of wrongdoing may file a complaint against it with the 

FEC, see generally id. § 30109(a); and the FEC can observe its track record of 

operations. 

Nevertheless, even if a committee’s reports are pristine, its conduct above 

reproach, and its operations completely innocent, after six months the amount it 

may contribute to political parties gets slashed to $5,000 for state and local parties, 

id. § 30116(a)(2)(C), and §15,000 in unrestricted funds to national parties, id. 

§ 30116(a)(2)(D) (as well as an additional $45,000 to each of the national party’s 

three special segregated funds, see 52 U.S.C. § 30116(a)(2)(B), (a)(9)). 

This statutory scheme fails for four main reasons. First, because 

contribution limits are constitutionally permissible only to combat actual or 

apparent quid pro quo corruption, the FEC cannot argue that, once an entity 

reaches the six-month mark, it simultaneously presents both a higher and lower 

risk of corruption, warranting concurrent increases and decreases in various 

contribution limits. 

Second, the FEC is attempting to use the time that a committee has been 

registered as a proxy for its risk of corruption. Basing contribution limits on such a 

categorical, blanket standard is not at all “closely tailored” to preventing 

corruption. Third, the changes in limits that occur at the six-month period are 

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completely arbitrary; the FEC has not presented any record evidence to show that 

Newer Committees pose a categorically greater risk of corruption than Established 

Committees, or vice versa. Finally, the holding in Buckley upon which the FEC 

primarily relies underscores the fact that, as applied to committees that satisfy the 

Receipt Requirement and Contribution Requirement, the six-month waiting period 

is unconstitutional. 

A. At the Very Least, This Court Must Invalidate the 

Reduction in Limits on Contributions to Local, 

State, and National Parties to Which Committees 

are Subject After Being Registered for Six Months

Most basically, the FEC cannot have it both ways. Either Newer 

Committees raise a higher risk of actual or apparent quid pro quo corruption than 

Established Committees, or they do not. The FEC spends the bulk of its brief 

arguing that the six-month waiting period is necessary to prevent nefarious 

wrongdoers bent on bribing federal officials from forming new political action 

committees (“PACs”) to circumvent contribution limits. See, e.g., FEC Br. at 36-

37. In effect, the FEC contends that, notwithstanding the First Amendment, the 

Government may treat Newer Committees as suspect, and prevent them from 

exercising their First Amendment rights to the statutorily maximum extent until 

they have “proven” that they are not shams or fronts (which they apparently can do 

simply by existing for six months).

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Should this Court accept the FEC’s reasoning, these arguments underscore 

the invalidity of the reduction in limits on contributions to local, state, and national 

parties that occurs at the six-month mark. After committees have existed for six 

months, thereby somehow establishing they are not “shams,” there is no basis for 

arguing that they nevertheless pose an increased risk of corruption with regard to 

political parties that warrants slashing their contribution limits in half. See FEC 

Br. at 38 (“[A] PAC that has existed for at least six months is more likely to be a 

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

to donors and donees.”). 

The FEC’s primary response is that it is free to impose reduced limits on 

Established Committees’ contributions to political parties at the six-month mark as 

a kind of tradeoff for their receipt of increased limits on contributions to 

candidates. FEC Br. at 50. But the Government may not seek to limit the total 

amount of First Amendment activity in which an entity engaged by reducing some 

limits in “exchange” for increased in other limits. Cf. McCutcheon, 134 S. Ct. at 

1448-49 (holding that a person who contributes the maximum statutory amount to 

nine candidates may not be subject to a lower limit on contributions to a tenth 

candidate). The only constitutionally valid basis for reducing contributions from 

Established Committees to political parties once they have been registered for six 

months is demonstrating that such a reduction is necessary to combat actual or 

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apparent quid pro quo corruption. Id. at 1550-51. And the FEC has made no such 

showing.3 

The FEC also argues that the current statutory scheme is motivated by the 

Government’s interest in enhancing the role of political parties by allowing them to 

accept large amounts of money from individuals and Newer Committees in order 

to amass the resources “‘necessary for effective advocacy.’” FEC Br. at 55 

(quoting Randall v. Sorrell, 548 U.S. 230, 247 (2006)); see also id. at 56 (“The 

differences at issue in this case were also created by Congress to enhance the 

functioning of the parties.”); id. at 58 (“Congress’s increase of the limits on what a 

person could give to party committees was the most effective way to ensure the 

parties could continue to amass the necessary funds.”). 

The FEC’s argument is exactly backwards. The challenged statutory 

provision slashes roughly in half the amount that certain PACs may contribute to 

political parties once those PACs have been registered for six months. It is literally 

 

3

The FEC continues to emphasize the differences between Appellant Stop PAC 

(which had been a Newer Committee) and Appellant Tea Party Leadership Fund 

(an Established Committee) to argue that Newer and Established Committees are 

different types of entities that should be treated differently. FEC Br. at 51-53. As 

Appellants’ Opening Brief points out, the issue here is not whether those particular 

Appellants are similarly situated, but rather the two groups created by statute—

Newer Committees and Established Committees—which differ only in the length 

of time they have been registered with the FEC, are sufficiently similarly situated 

for Equal Protection purposes. See Califano v. Boles, 443 U.S. 282, 293-94 (1979) 

(holding that “equal protection analysis . . . must begin with the statutory 

classification itself”). 

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impossible to argue that Congress was promoting its interest in helping political 

parties raise funds by precipitously cutting the amount a PAC may contribute once 

it has been registered for six months. In the course of this very discussion, the 

FEC declares, “[D]emocracy benefits from PACs that have grown into broad-based 

interest groups that can represent the views of citizens during elections.” FEC Br. 

at 60. Yet it is precisely when a group reaches that point—becomes an Established 

PAC—that federal law slashes its limit on contributions to political parties. Thus, 

even if one embraces the FEC’s argument that Congress has an important interest 

in promoting political parties and helping them amass resources, the drop in PACs’ 

contribution limits to political parties that occurs at the six-month mark actively 

undermines that interest. Even from the FEC’s perspective, this Court would be 

further promoting Congress’ goals by invalidating the restriction. 

B. The Length of Time a Committee Has Been Registered is a 

Poorly Tailored Proxy for the Risk of Corruption it Poses

For committees that satisfy § 30116(a)(4)’s Receipt Requirement and 

Contribution Requirement, see supra note 1, the amount it may contribute to a 

candidate or political party rests exclusively on whether it has been registered for 

six months. The length of time a PAC has existed and been registered, in essence, 

is used as a proxy for the risk of actual or apparent quid pro quo corruption 

(including circumvention of other base limits) that PAC purportedly poses. The 

length of time a PAC has been registered, however, is a terrible proxy for 

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determining the risk of corruption it poses. The six-month waiting period is 

therefore not a “closely drawn” restriction and must be invalidated. See Buckley, 

424 U.S. at 25; see also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) 

(hereafter, “CalMed”); Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 

102 (1972) (same in Equal Protection context); see, e.g., Wagner v. FEC, 854 F. 

Supp. 2d 83, 96 (D.D.C. 2012) (“[T]o survive an equal protection challenge, 

§ 441c’s ban on contributions by federal contractors must be closely drawn to 

match a sufficiently important interest.”) (quotation marks omitted), vacated on 

jurisdictional grounds, 717 F.3d 1007 (D.C. Cir. 2013). 

The length of time a committee has been registered with the FEC tells the 

Government very little about that committee. The FEC emphasizes that Newer 

Committees that satisfy § 30116(a)(4)’s Receipt Requirement and Contribution 

Requirement might not have received contributions from more than the bare 

statutory minimum number of people (that is, 51), and might not have contributed 

to more than the mere statutory minimum number of candidates (that is, 5). See 

FEC Br. at 36-37. The FEC also points out that such committees might receive the 

bulk of their contributions from only one or two people, and might make large 

contributions to only one or two candidates. The same is true, however, of 

Established Committees. As both Stop PAC and American Future PAC 

themselves demonstrate, even after a committee has existed for six months and 

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qualifies for increased limits on contributions to candidates, it need not have raised 

funds from more people, decided to contribute to more candidates, or reduce its 

dependence on a few main contributors. 

In short, the FEC is using length of time a committee has been registered as 

a blanket and overbroad proxy for the factors about committees it really cares 

about: number of contributors, size of the staff, staff affiliations, dependence on 

only a few contributors, focus on only a few candidates, relationship to candidates, 

etc. See FEC Br. at 38 (“A six-month old PAC is also likely to have more 

members, more contributors, more contributions to candidates, and as discussed 

below, will have publicly disclosed information to the FEC about itself.”). It is 

those other factors that are actually thought to suggest a committee’s risk of 

corruption. And the FEC has not shown that those other underlying factors are 

reliably correlated to a PAC’s length-of-registration.4 

 

4

To the extent the FEC seeks to justify the six-month waiting period on the 

grounds that there is information about the PAC that has not yet been made public, 

see FEC Br. at 38, 44-45, a far more reasonably tailored solution would be to 

increase the reporting requirements on PACs that satisfy the Receipt Requirement 

and Contribution Requirement and wish to contribute the statutory maximum of 

$5,000 per election to each candidate, rather than flatly prohibiting all such PACs 

from taking advantage of that increased contribution limit. PACs already must file 

pre-election reports, post-election reports, quarterly or monthly reports, and annual 

reports, 52 U.S.C. § 30104(a)(4), and candidate committees—in addition to their 

numerous other reporting requirements, id. § 30104(a)(2), must publicly report 

within 48 hours any contributions received within 20 days of an election, id. 

§ 30104(a)(6). 

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The FEC emphasizes that various features of Appellant Stop PAC—

including the identities of the people who run it, its pattern of contributions, and 

the candidates it supports—confirm the need for the six-month waiting period. See 

FEC Br. at 40-43. Yet, the blanket six-month waiting period does not target 

groups with such characteristics, but rather applies across-the-board to all Newer 

Committees. Rather than categorically reducing all Newer Committees’ 

contribution limits throughout the first six months of their existence, the “closely 

tailored” solution would be to focus on entities that actually have characteristics 

the FEC finds troubling. Indeed, even though Stop PAC retains the features that 

the FEC claims to find objectionable, now that its six-month waiting period has 

expired, it is permitted to contribute the maximum statutory amount of $5,000 per 

election to each candidate. 

Thus, almost by definition, basing contribution limits on the length of time a 

committee has been registered with the FEC is a poorly tailored solution, because 

the law instead could focus on the underlying factors for which length-ofregistration is acting as a highly inaccurate proxy. 

The invalidity of the current statutory scheme is most glaringly apparent 

with regard to the reduced limits on contributions to political parties by Established 

Committees. As discussed earlier, an Established Committee must file detailed 

reports with the FEC concerning nearly all of its contributions and expenditures, 

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see generally 52 U.S.C. § 30104, and anyone who suspects it of wrongdoing may 

file a complaint against it with the FEC, see generally id. § 30109(a). Thus, every 

Established Committee has a half-year track record, and the FEC has voluminous 

information about each Established Committee it could scrutinize to develop 

individualized suspicion about particular entities. 

Rather than attempting to identify some sub-group of Established 

Committees that appear to pose an increased risk of corruption, however, the law 

categorically slashes roughly in half the amount that all such committees may 

contribute to national, state, and local parties. Again, such a blunderbuss 

categorical approach is the very antithesis of “careful tailoring.” 

C. The FEC Has Failed to Adduce Any Record Evidence 

Concerning the Risk of Corruption Associated 

with Newer Committees or Established Committees.

The FEC defends the statutory scheme based on overbroad assumptions 

about the supposed risk of corruption that a committee which has satisfied 

§ 30116(a)(4)’s Receipt Requirement and Contribution Requirement poses 

throughout the first six months of its existence, and the apparently different risk of 

corruption that Established Committees pose. The Supreme Court, however, has 

“never accepted mere conjecture as adequate to carry a First Amendment burden,” 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000); see also Turner 

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (“When the Government 

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defends a regulation on speech as a means to . . . prevent anticipated harms, it must 

do more than simply posit the existence of the disease sought to be cured.”) 

(internal citation and quotation marks omitted). 

A burden on First Amendment rights cannot rest on “a hypothetical 

possibility and nothing more.” FEC v. Nat’l Conservative Pol. Action Comm., 470 

U.S. 480, 498 (1985) (“NCPAC”) (invalidating limit on PACs’ expenditures where 

the Government failed to introduce any evidence suggesting that “an exchange of 

political favors for uncoordinated expenditures” was likely to occur). “The 

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.” Shrink Missouri, 528 U.S. at 391. The Court has excused the 

Government from presenting actual evidence to meet this burden only where “there 

is little reason to doubt” that the targeted act involves “the evil of potential 

corruption.” NCPAC, 470 U.S. at 500; Shrink Missouri, 528 U.S. at 395. 

The convoluted statutory scheme at issue here, in which various contribution 

limits soar or plummet in different directions once a committee hits the six-month 

mark, surely requires at least some evidence to support those inexplicably disparate 

and contradictory changes. The FEC, as the entity responsible for enforcing 

federal campaign finance law, is uniquely situated to reveal its experience in 

dealing with different types of PACs over the past half-century, and share the 

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evidence of different types of corruption it has uncovered. Nevertheless, the 

record completely lacks any evidence to suggest that:

● Newer Committees pose a greater risk of actual or apparent quid pro 

quo corruption concerning contributions to candidates than 

Established Committees (thereby justifying higher limits for the 

latter); 

● Newer Committees’ contributions to candidates (for which Newer 

Committees must wait six months before being permitted to 

contribute the statutory maximum amount) pose a greater risk of 

corruption than their contributions to local, state, or national parties 

(for which Newer Committees may immediately contribute the 

statutory maximum amount); 

● Established Committees pose a greater risk of actual or apparent quid 

pro quo corruption concerning contributions to parties than Newer 

Committees (thereby justifying higher limits for the latter); 

● Established Committees’ contributions to political parties (for which 

the limit is reduced once the committee reaches the six-month mark) 

pose a greater risk of corruption than their contributions to candidates 

(for which the limit is nearly doubled once the committee reaches the 

six-month mark). 

This kind of arbitrary give-and-take is unlikely to survive even rational-basis 

scrutiny. Examined under a heightened standard, however, it becomes clear there 

is no evidentiary basis for this scheme. 

Tellingly, the FEC itself does not even contend that the scheme of increasing 

and decreasing contribution limits is the product of a deliberate congressional 

decision. It does not provide a shred of evidence from anywhere in the legislative 

history to suggest that Congress expressly intended that, just as a PAC’s six-month 

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waiting period elapsed and its limit on contributions to candidates was increasing, 

its limit on contributions to political parties should be slashed. Cf. FEC Br. at 55-

57 (discussing legislative history). Rather, the FEC relies on post hoc 

rationalizations for a dubious statutory scheme that abridges First Amendment 

rights in ways that, by all appearances, are at least somewhat accidental. 

D. Buckley Supports, Rather Than 

Precludes, This As-Applied Challenge

Finally, the FEC renews its argument that Buckley precludes Appellants’ 

challenge. As Appellants’ Opening Brief pointed out, Buckley involved a broad, 

facial Equal Protection challenge to all of the requirements for qualifying as a 

multicandidate PAC. Buckley, 424 U.S. at 35-36. The plaintiffs argued that the 

law impermissibly discriminated between multicandidate PACs and “ad hoc 

organizations.” Id. at 35. The Buckley Court rightly pointed out that some limits 

on multicandidate PAC status were necessary to “prevent[] individuals from 

evading the applicable contribution limits by labeling themselves committees.” Id. 

at 35-36. The narrow as-applied Equal Protection challenge at issue here, in 

contrast, is fundamentally different. Cf. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 

2729, 2771 (2011) (Breyer, J., dissenting) (“California’s statute is consequently 

constitutional on its face--though litigants remain free to challenge the statute as 

applied in particular instances.”). Appellants here challenge a legal provision that 

distinguishes between two different groups of entities that have satisfied 

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§ 30116(a)(4)’s Contribution and Receipt Requirements—that is, committees that 

have received 51 or more contributions, and that have contributed to five or more 

candidates—based solely on whether they have been registered for six months. 

Nothing in Buckley precludes this claim. Cf. McCutcheon, 134 S. Ct. at 1446-47

(holding that “three sentences” in Buckley that briefly addressed aggregate 

contribution limits “do[] not control” because “appellants’ challenge raises distinct 

legal arguments that Buckley did not consider” and BCRA dramatically changed 

the “legal backdrop” for campaign finance restrictions). 

II. ALL CLAIMS IN THIS CASE REMAIN JUSTICIABLE

All claims in this case remain justiciable. Section A confirms that Stop PAC 

and American Future PAC have standing to challenge the six-month waiting 

period. Section B demonstrates that their claims remain justiciable and should not 

be deemed moot. Section C similarly shows that Appellant Tea Party Leadership 

Fund’s (“The Fund”) and Alexandria Republican City Committee’s (“ARCC”) 

challenges to the discriminatorily low limits on contributions to political party 

committees remain live, as well. 

A. Stop PAC and American Future PAC Have Standing 

to Challenge the Six-Month Waiting Period

First, the FEC claims that Stop PAC lacks standing to challenge the sixmonth waiting period on the grounds that its “claimed injury was ‘self-inflicted.’” 

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FEC Br. at 19. The FEC contends that Stop PAC’s founders should have created it 

more than six months before the 2014 elections. In the FEC’s view, entities that 

wish to fully exercise their constitutional rights to the maximum extent permitted 

by law must plan at least a half-year in advance. 

As Appellants pointed out in their opening brief, the issue in this case is 

whether the First Amendment and Equal Protection Clause permit the Government 

to require entities such as Stop PAC (i.e., political committees that satisfy the 

Receipt and Contributor Requirements) to wait six months before being permitted 

to contribute the statutory maximum amount to candidates. The delay and 

discrimination are the alleged injuries-in-fact, and they exist regardless of when the 

entity is created. And that delay and discrimination stem from federal law, 52 

U.S.C. § 30116(a)(4), not Stop PAC’s actions. 

B. Stop PAC’s and American Future PAC’s 

Claims Remain Justiciable Because They Are

“Capable of Repetition, Yet Evading Review.” 

Second, the FEC contends that Stop PAC’s and American Future PAC’s 

claims have become moot, because their six-month waiting periods have expired. 

As Stop PAC and American Future PAC explained in their opening brief, the 

Supreme Court repeatedly has adjudicated constitutional challenges to electionrelated laws that would apply to other entities in the future, despite mootness 

concerns, regardless of whether the same plaintiffs would again be subject to them. 

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See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 

410 U.S. 752, 756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972); 

Moore v. Ogilvie, 394 U.S. 814, 816 (1969). 

Two Justices of the Supreme Court have expressly recognized this doctrine. 

Honig v. Doe, 484 U.S. 305, 335 (1988) (Scalia, J., dissenting) (“[E]lection law 

decisions differ from the body of [its] mootness jurisprudence . . . in dispensing 

with the same-party requirement entirely, focusing instead upon the great 

likelihood that the issue will recur between the defendant and the other members of 

the public at large without ever reaching [the Supreme Court].”). 

And several circuits, applying these precedents, have likewise held that a 

challenge to an election-related statute remains justiciable, so long as the 

challenged provision may be applied to other people or entities in future elections. 

Catholic Leadership Coalition of Tex. v. Reisman, 764 F.3d 409, 422-24 (5th Cir. 

2014) (affirming justiciability of challenge to waiting period on political 

contributions and expenditures, even after it expired, despite the fact that the 

plaintiffs could never be subject to it again); Majors v. Abell, 317 F.3d 719, 723 

(7th Cir. 2003); Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005); 

Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000). 

The FEC points out that, in Davis v. FEC, 554 U.S. 724, 735 (2008), and 

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007), the Supreme Court held that 

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the case remained justiciable, despite mootness concerns, if the issue is capable of 

repetition with “the same complaining party.” FEC Br. at 22-23. The FEC does 

not suggest, however, that any party or amicus argued that the general “same 

party” requirement of the “capable of repetition, yet evading review” standard was 

inapplicable to constitutional challenges to election laws. And the Supreme Court 

did not need to reach the issue in Davis or Wisconsin Right to Life, because it 

concluded that the plaintiff in those cases could again be subject to the challenged 

provisions. Moreover, nothing in Davis or Wisconsin Right to Life suggested that 

the Court was overturning or repudiating the practice or doctrine set forth in 

Storer, 415 U.S. at 737 n.8; Rosario, 410 U.S. at 756 n.5; Dunn, 405 U.S. at 333

n.2; or Moore, 394 U.S. at 816. Nor does the FEC suggest that this Court actually 

grappled with the issue in Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011), or N.C. 

Right to Life Comm. Fund for Indep. Pol. Expenditures v. Leake, 524 F.3d 427, 

435 (4th Cir. 2008). See FEC Br. at 23. 

This Court should not allow the FEC to repeatedly delay adjudication of 

challenges to the six-month waiting period in order to have them dismissed for lack 

of justiciability. The FEC points out that, prior to this case, Appellant Tea Party 

Leadership Fund (“The Fund”) had previous challenged the constitutionality of the 

six-month waiting period for making candidate contributions in the U.S. District 

Court for the District of Columbia. See FEC Br. at 14; Tea Party Leadership Fund 

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v. FEC, No. 12-1707 (D.D.C.). Shortly after satisfying the Recipient Requirement 

and Contribution Requirement, The Fund immediately moved for a preliminary 

injunction to allow it to begin contributing $5,000 to the candidates it supported. 

The FEC argued that a preliminary injunction was a “particularly inappropriate” 

vehicle in which to raise these issues because it would “upend the status quo by 

preventing the Commission from enforcing statutory provisions that have been in 

place for almost 40 years.” FEC Opposition to Plaintiffs’ Motion for Preliminary 

Injunction, Tea Party Leadership Fund v. FEC, No. 12-1707, Doc. #8 (D.D.C. 

filed Nov. 1, 2012). On November 2, the district court decided to consolidate the 

preliminary injunction motion with cross-motions for summary judgment, and set a 

briefing deadline that would end five months later, on March 29, 2013, after The 

Fund’s waiting period expired. Tea Party Leadership Fund v. FEC, No. 12-1707, 

Doc. #10 (D.D.C. Nov. 2, 2012). 

In light of the FEC’s objections in that case concerning interim relief, 

Appellants filed the instant case on April 14, 2014, and filed a Motion for 

Summary Judgment a few weeks later, on May 6, 2014. The FEC opposed, 

arguing that rapid summary judgment was inappropriate because it needed 

discovery in order to demonstrate the constitutionality of the law it has been 

enforcing for the past half-century. See Docket #26, at 3 (May 23, 2014). Later, 

as Stop PAC neared the end of its six-month waiting period, and sought to allow 

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American Future PAC to join this lawsuit to alleviate potential justiciability 

concerns, the FEC opposed the motion, claiming at one point that it would need to 

extend the discovery schedule by 128 days to take discovery from this newlyformed entity. See Docket #50, at 2 (discussing meet-and-confer with FEC 

concerning joinder motion).5 In its proposed scheduling order to the district court, 

filed on July 2, 2014, the FEC argued that dispositive briefing should not conclude 

until mid-November—after the expiration of Stop PAC’s waiting period. Joint 

Proposed Discovery Plan, Docket #34, at 17 (setting forth FEC’s position). 

This case presents pure questions of law that turn on legislative facts. The 

FEC has affirmatively opposed rapid adjudication of this issue on the merits at 

every turn, regardless of the procedural posture—preliminary injunction or 

summary judgment—in which it has arisen. Since First Amendment rights are at 

stake in the fundamentally important area of federal elections, this Court should 

apply the election exception to the “same party” requirement, and hold that this 

case is justiciable because the waiting period will continue to apply to other 

entities, yet—in large part due to the FEC’s intransigence—will evade review. In 

 

5

Indeed, the FEC’s proposed briefing schedules in both The Fund’s previous case 

and the instant case were calculated to have dispositive briefing complete at, or 

after, the expiration of the plaintiffs’ or intervenors’ six-month waiting periods. 

See Tea Party Leadership Fund v. FEC, Doc. #7, at 3-4 (suggesting, on Oct. 25, 

2012, that summary judgment briefing be complete more than five months later, on 

Mar. 29, 2013); on July 2, 2014, that summary judgment briefing be complete in 

mid-November). 

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the alternative, Stop PAC may have associational standing to litigate this issue on 

behalf of its Treasurer and contributors. See United Food & Commer. Workers 

Union Local 751 v. Brown Group, 517 U.S. 544, 552 (1996) (discussing “the 

modern doctrine of associational standing, under which an organization may sue to 

redress its members’ injuries, even without a showing of injury to the association 

itself”); see also Warth v. Seldin, 422 U.S. 490, 511 (1975). It is reasonably 

possible that at least one of those individuals will face this issue again, as another 

Newer Committee which they form, join, or contribute to is subject to the sixmonth waiting period. The fact that none of these individuals has affirmatively 

expressed a present intention to do so does not bar such a claim. See N.C. Right to 

Life Comm. Fund v. Leake, 524 F.3d 427, 435 (“[W]e reject, as other circuits have, 

the argument that an ex-candidate's claims may be ‘capable of repetition, yet 

evading review’ only if the ex-candidate specifically alleges an intent to run again 

in a future election.”). 

C. The Fund’s and ARCC’s Claims Remain Justiciable

The FEC’s desperation to avoid adjudication of this issue on the merits is 

particularly clear with regard to its argument that The Fund’s and ARCC’s 

challenge to the discriminatorily lower limits on contributions to political parties—

limits to which The Fund is permanently subject—has somehow become moot. 

FEC Br. at 25-26. This argument fails for three reasons. First, the FEC complains 

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that the “allegations of the complaint” do not show that the Fund ever intends to 

contribute the statutory maximum amount to a political party again. Id. at 25. 

Since the district court resolved this case on cross-motions for summary judgment, 

however, the allegations of the complaint are irrelevant for standing purposes. See 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). To determine the 

justiciability of The Fund’s claim, this Court must consider the evidence before it. 

In light of the FEC’s justiciability argument, the Fund will proceed with its motion 

to supplement the record to prove that it contributed the statutory maximum 

amount of $5,000 to Appellant ARCC in calendar year 2015, and that it continues 

to wish to contribute a total of $10,000 to ARCC, as well as $33,400 in 

unrestricted funds to the National Republican Senatorial Committee, a national 

political party committee. 

Second, even if this Court denies The Fund’s motion to supplement the 

record, at a minimum its claim is “capable of repetition, yet evading review.” The 

Fund is an Established Committee that has hundreds of thousands of contributors 

and has actively participated in several elections. As in Leake, 524 F.3d at 435, 

even in the absence of a specific, express allegation in the record that The Fund 

intends to contribute the statutory maximum amount to a political party in the 

future, there remains a “reasonable expectation that the challenged provisions will 

be applied against [The Fund] during future election cycles.” Thus, even if this 

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Court applies the “same party” requirement for the “capable of repetition, yet 

evading review” test, The Fund’s claims fall comfortably within that exception. 

Finally, regardless of The Fund’s standing, currently law makes it 

permanently illegal for ARCC to accept contributions in excess of $5,000 from 

Established Committees. This Court therefore should adjudicate the Fund’s and 

ARCC’s challenges on their merits. 

CONCLUSION

For these reasons, Appellants and Appellant-Intervenor respectfully request 

that this Court REVERSE the district court’s judgment in favor of the FEC and 

REMAND for entry of judgment in their favor and an injunction. 

Respectfully submitted,

/s/ Michael T Morley 

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

DB Capitol Strategies Coolidge-Reagan Foundation

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

Suite 300 Suite 300

Alexandria, VA 22314 Washington, DC 20013

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

DBacker@DBCapitolStrategies.com Michaelmorleyesq@hotmail.com

Counsel for Appellants Stop Reckless Lead Counsel for Appellants

Economic Instability Caused by Democrats, and Appellant-Intervenor

Tea Party Leadership Fund, and 

Alexandria Republican City Committee

Jerad Najvar

NAJVAR LAW FIRM

4151 S.W. Freeway

Suite 625

Houston, TX 77027

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(281) 404-4696

Jerad@najvarlaw.com

Counsel for IntervenorAppellant American 

Future PAC

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CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. Type-Volume Limitation: Appellant’s Opening Brief, Appellee’s 

Response Brief, and Appellant’s Response/Reply Brief may not exceed 14,000 

words or 1,300 lines. Any Reply or Amicus Brief may not exceed 7,000 words or 

650 lines. Counsel may rely on the word or line count of the word processing 

program used to prepare the document. The word-processing program must be set 

to include footnotes in the count. Line count is used only with monospaced type. 

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) 

or 32(a)(7)(B) because:

 X this brief contains 5,524 words, excluding the parts of the brief 

exempted by Fed. R. Civ. P. 32(a)(7)(B)(iii), or

____ this brief uses a monospaced typeface and contains _____________ lines of 

text, excluding the parts of the brief exempted from Fed. R App. P. 

(a)(7)(B)(iii). 

2 Typeface and Type Style Requirements: A proportionally spaced 

typeface (such as Times New Roman) must include series and must be 14-point or 

larger. A monospaced typeface (such as Courier New) must be 12-point or larger 

(at least 101⁄2 characters per inch). 

This brief complies with the typeface requirements of Fed. R. App P. 32(a)(5) and 

the type style requirements of Fed. R. App. P. 32(a)(6) because:

 X this brief has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Times New Roman font; or 

____ this brief has been prepared in a monospaced typeface using 

___________________________ in __________________.

/s/ Michael T. Morley

Attorney for: Appellants and Appellant-Intervenor

Dated: August 24, 2015

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CERTIFICATE OF SERVICE

I certify that on August 24, 2015, the foregoing document was served on all 

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

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

below:

Harry Summers

Kevin Hancock

Federal Election Commission

999 E. St. NW. #910

Washington, D.C. 20463

Counsel for Defendant 

/s/ Michael T. Morley August 24, 2015

 Signature date

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