ORAL ARGUMENT NOT YET SCHEDULED

No. 15-5120 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

LAURA HOLMES, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On appeal from the United States District Court 

for the District of Columbia, No. 14-1243 (RMC) 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Daniel A. Petalas 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson 

Deputy General Counsel – Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel

kdeeley@fec.gov 

Erin Chlopak 

Acting Assistant General Counsel 

echlopak@fec.gov 

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

Charles Kitcher 

Attorney 

ckitcher@fec.gov 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

September 16, 2015 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), the Federal Election Commission 

(“Commission”) submits its Certificate as to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. Laura Holmes and Paul Jost were the plaintiffs in the 

district court and are the appellants in this Court. The Commission was the 

defendant in the district court and is the appellee in this Court. No parties 

participated as amici curiae in the district court, and no parties have requested to 

participate as amici curiae before this Court. 

(B) Rulings Under Review. Holmes and Jost appeal the April 20, 2015 opinion 

and order of the United States District Court for the District of Columbia 

(Collyer, J.) holding that plaintiffs’ claims rest on issues of settled law and thus 

denying their motion for certification and granting summary judgment to the 

Commission in this suit brought under 52 U.S.C. § 30110. The district court’s 

opinion is available at ___ F. Supp. 3d ___, 2015 WL 1778778 (D.D.C. Apr. 20, 

2015). (J.A. 266-309.)

(C) Related Cases. This case was previously before the en banc Court of 

Appeals as No. 14-5281, where the Court remanded the case to the district court by 

order of January 30, 2015 (J.A. 59). 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF ISSUES PRESENTED ....................................... 1 

APPLICABLE STATUTES AND REGULATIONS ......................................... 2 

COUNTERSTATEMENT OF THE CASE ......................................................... 2 

I. STATUTORY AND REGULATORY BACKGROUND ........................ 2 

A. Congress’s Original Enactment of Per-Year Limits on 

Contributions to Candidates ............................................................ 2 

B. FECA’s Per-Election Limit on Contributions to Candidates .......... 3 

C. The Supreme Court’s Upholding of FECA’s Contribution Limit .. 4 

D. FECA’s Current Per-Election Contribution Limit and the 

Commission’s Implementing Regulations ...................................... 5 

II. FACTUAL AND PROCEDURAL BACKGROUND .............................. 9 

A. The Parties ....................................................................................... 9 

B. Procedural History ......................................................................... 11 

C. District Court Opinion ................................................................... 12 

SUMMARY OF ARGUMENT ......................................................................... 17 

ARGUMENT ..................................................................................................... 20 

I. STANDARDS OF REVIEW ................................................................... 20 

 

II. THE DISTRICT COURT PROPERLY REJECTED CONTRIBUTORS’ 

FIRST AMENDMENT CHALLENGE .................................................. 21 

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A. The District Court Correctly Accepted the Supreme Court’s 

Conclusion That the Government’s Important Anticorruption 

Interest Justifies FECA’s Per-Election Contribution Limit .......... 21 

B. Contributors’ Constitutional Challenge is Neither Novel 

Nor As Applied ............................................................................. 23 

1. There Is No “Bifurcated” Election-Cycle Contribution 

Limit .................................................................................... 23 

2. McCutcheon Does Not Support Contributors’ 

Imagined $5,200 Election-Cycle Contribution Limit ......... 27 

3. The District Court Correctly Concluded That This Is 

Not An As-Applied Challenge ............................................ 30 

C. The District Court Correctly Concluded That Supreme Court 

Precedent Forecloses Contributors’ Claimed Right to Make 

General-Election Contributions in Amounts That Are Double 

FECA’s Per-Election Limit ........................................................... 32 

D. Contributors’ Alleged Harm Was Not Caused by FECA ............ 34 

1. Contributors’ Choice Not to Make Primary-Election 

Contributions Is Not a Constitutional Injury ...................... 34 

2. An FEC Regulation That Permits General-Election 

Candidates to Spend Unused Primary Contributions on 

General-Election Expenses Did Not Unconstitutionally 

Burden Holmes or Jost ........................................................ 35 

III. THE DISTRICT COURT PROPERLY REJECTED CONTRIBUTORS’ 

FIFTH AMENDMENT EQUAL PROTECTION CHALLENGE ......... 37 

 

A. The District Court Correctly Held That Contributors’ Equal 

Protection Challenge Is Foreclosed by Buckley ............................ 37 

B. No Case Supports Contributors’ Equal Protection Claims ........... 43 

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C. The Per-Election Contribution Limit Easily Satisfies the 

Applicable Level of Constitutional Review .................................. 46 

IV. CERTIFICATION WAS CLEARLY UNWARRANTED ..................... 49 

CONCLUSION .................................................................................................. 63 

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TABLE OF AUTHORITIES

Cases 

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806 (2011) ............................................................................. 45 

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ................................... 47 

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740 (D.C. Cir. 2000) ................... 20 

Bread Political Action Comm. v. FEC, 455 U.S. 577 (1982) ............................ 51

Buckley v. Valeo, 387 F. Supp. 135 (D.D.C. 1975) ........................................... 51 

*Buckley v. Valeo, 424 U.S. 1 (1976) ...................................... 4, 5, 21, 38, 39, 48 

*Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981)..................................... 50, 52, 53 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010) ...................................... 58, 59 

Citizens United v. FEC, 558 U.S. 310 (2010).............................................. 22, 40 

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............... 42

Davis v. FEC, 554 U.S. 724 (2008) ....................................................... 22, 33, 44 

Edwards v. Dist. of Columbia, 755 F.3d 996 (D.C. Cir. 2014) ......................... 30

Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) ....................................... 38 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ........................................ 46 

FEC v. Colorado Republican Federal Campaign Committee, 

533 U.S. 431 (2001)........................................................................... 22, 33 

______________________ 

* Authorities upon which we chiefly rely are marked with asterisks. 

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Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975) .................................... 53, 54 

Gifford v. Congress, 452 F. Supp. 802 (E.D. Cal. 1978) ................................... 53 

Gifford v. Tiernan, 670 F.2d 882 (9th Cir. 1982) .............................................. 53 

Goland v. United States, 

 903 F.2d 1247 (9th Cir. 1990) ........................ 20, 22, 43, 50-51, 52, 55, 56 

Harris v. McRae, 448 U.S. 297 (1980) .............................................................. 42 

Heller v. Doe, 509 U.S. 312 (1993) ................................................................... 47 

In re Cao, 619 F.3d 410 (5th Cir. 2010) ...................................................... 20, 58 

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ................................................... 30 

Judd v. FEC, 304 F. App’x 874 (D.C. Cir. 2008) ............................................. 53 

Judicial Watch, Inc. v. United States Secret Serv., 

726 F.3d 208 (D.C. Cir. 2013) ................................................................. 21 

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) ............ 22, 51, 59-60, 60, 62 

Libertarian Nat’l Comm., Inc. v. FEC, 

 930 F. Supp. 2d 154 (D.D.C. 2013) ........................................ 31-32, 56, 57 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................ 36 

*McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ...................................... 22, 28, 29 

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ........................ 47

Nat’l Comm. of the Reform Party of the United States v. Democratic 

Nat’l Comm, 168 F.3d 360 (9th Cir. 1999) ............................................. 53 

Randall v. Sorrell, 548 U.S. 230 (2006) ............................................................ 33

Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014) .............................. 45, 46

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SpeechNow.org v. FEC, No. 08-0248, 2009 WL 3101036 (D.D.C. 

 Sept. 28, 2009) ........................................................................................ 62 

 

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 

 429 U.S. 252 (1977) ................................................................................. 42 

*Wagner v. FEC, 717 F.3d 1007 

 (D.C. Cir. 2013) (“Wagner I”) .......................................... 12, 49-50, 50, 51 

*Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (“Wagner II”) ......... 44-45, 48, 49 

Wash. State Grange v. Wash. State Republican Party, 

 552 U.S. 442 (2008) ................................................................................. 31 

Whitmore v. FEC, 68 F.3d 1212 (9th Cir. 1996) ...................................................51, 53 

Statutes and Regulations 

28 U.S.C. § 1331 .................................................................................................. 1 

28 U.S.C. §§ 1291, 1294(1) ................................................................................. 1 

Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, § 307(b), (d), 

116 Stat. 102-103 (2002) ........................................................................... 5 

Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101-30146: 

*52 U.S.C. § 30101(1) ............................................................................... 4 

52 U.S.C. § 30101(1)(A) ......................................................................... 26 

*52 U.S.C. § 30110........................................................................ 1, 37, 49 

52 U.S.C. § 30116(a) ............................................................................... 26 

52 U.S.C. § 30116(c) ................................................................................. 6 

*52 U.S.C. § 30116(a)(6) .......................................................................... 4 

*52 U.S.C. § 30116(a)(1)(A) ..................................................................... 4 

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Federal Election Commission Regulations: 

*11 C.F.R. § 100.2(b)(2) ......................................................................... 24 

*11 C.F.R. § 100.2(c)(1) .......................................................................... 24 

11 C.F.R. § 110.1(b)(2)(i) .......................................................................... 7 

*11 C.F.R. § 110.1(b)(2)(ii) ...................................................................... 7 

*11 C.F.R. § 110.1(b)(3)(i) ........................................................................ 7 

11 C.F.R. § 110.1(b)(3)(i)(A) & (C), (k)(3) ........................................... 7-8 

11 C.F.R. § 110.1(b)(3)(i)(C) .................................................................... 8 

*11 C.F.R. § 110.1(b)(3)(iv) ...................................................................... 8 

11 C.F.R. § 110.1(b)(5)(i)(B) .................................................................... 7 

*11 C.F.R. § 110.1(b)(5)(iii) ..................................................................... 8 

*11 C.F.R. § 110.1(b)(6) ............................................................. 33, 36, 39

*11 C.F.R. § 110.3(c)(3) ............................................................................ 8 

Fed. Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

 § 101(b)(3), 88 Stat. 1263 .......................................................................... 3 

Fed. Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

 § 208(A) ................................................................................................... 50 

 

FEC, Price Index Adjustments for Contribution and Expenditure Limitations 

 and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530, 8532 

 (Feb. 6, 2013) ............................................................................................ 6 

Miscellaneous 

86 Cong. Rec. 2720 (1940) (statement of Sen. Bankhead) ................................ 3 

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117 Cong. Rec. 43,410 (1971) (statement of Rep. Abzug) ................................. 3 

D.C. Cir. R. 32.1(b)(2) ....................................................................................... 61 

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GLOSSARY 

FEC = Federal Election Commission 

J.A. = Joint Appendix 

FECA = Federal Election Campaign Act 

BCRA = Bipartisan Campaign Reform Act 

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COUNTERSTATEMENT OF JURISDICTION 

 The district court had jurisdiction to review this action for eligibility for 

certification to the en banc Court of Appeals under 52 U.S.C. § 30110 and, in the 

absence of such jurisdiction, under 28 U.S.C. § 1331. On April 20, 2015, the court 

below entered a final decision denying the motion of appellants Holmes and Jost 

(“Holmes and Jost” or “Contributors”) to certify constitutional questions to the en 

banc Court of Appeals and granting summary judgment to the Federal Election 

Commission. (J.A. 266-310.) Contributors timely filed a notice of appeal on April 

24, 2015. (J.A. 311.) This Court has jurisdiction over the appeal under 28 U.S.C. 

§§ 1291, 1294(1). 

COUNTERSTATEMENT OF ISSUES PRESENTED 

(1) First Amendment. Where the Federal Election Campaign Act 

(“FECA” or “Act”) sets limits on the amount individuals may contribute to a 

particular federal candidate for a particular federal election, and where the 

Supreme Court has repeatedly upheld FECA’s per-election contribution limit 

against First Amendment challenges based on the government’s important 

anticorruption interest, did the district court properly reject as settled and 

insubstantial Contributors’ First Amendment challenge to FECA’s per-election 

limit? 

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(2) Equal Protection. Where FECA imposes the same per-election 

contribution limit on every individual wishing to contribute to a federal candidate, 

where the Supreme Court has upheld the per-election limit against a prior equal 

protection challenge, and where Contributors do not identify any classification by, 

or discriminatory purpose underlying, the per-election limit, did the district court 

properly reject as settled and insubstantial Contributors’ Fifth Amendment 

challenge to FECA’s per-election limit?

APPLICABLE STATUTES AND REGULATIONS

 The relevant provisions are included at ADD 1-22 of Appellants’ Brief and 

in a Supplemental Addendum to this brief. 

COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Congress’s Original Enactment of Per-Year Limits on 

Contributions to Candidates 

Candidate contribution limits have been a principal tool for preventing 

political corruption in this country for seventy-five years. (J.A. 270 ¶3.) In the 

first half of the twentieth century, Congress grew particularly concerned about 

corruption arising from contributions to candidate campaigns and political parties. 

In 1939, Congress passed S. 1871, officially titled “An Act to Prevent Pernicious 

Political Activities” and commonly referred to as the Hatch Act. (J.A. 270-71 ¶3 

(citing S. Rep. No. 101-165, at *18 (1939)).) Congress established individual 

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contribution limits in the 1940 amendments to the Hatch Act, which prohibited 

“any person, directly or indirectly” from making “contributions in an aggregate 

amount in excess of $5,000, during any calendar year” to any federal candidate. 

(J.A. 271 ¶3 (internal quotation marks omitted).) The limit was sponsored by 

Senator John H. Bankhead, who stated that “[w]e all know that large contributions 

to political campaigns . . . put the political party under obligation to the large 

contributors, who demand pay in the way of legislation.” 86 Cong. Rec. 2720 

(1940) (statement of Sen. Bankhead). 

B. FECA’s Per-Election Limit on Contributions to Candidates 

By 1971, when Congress enacted FECA, the $5,000 individual contribution 

limit was being “‘routinely circumvented.’” (J.A. 271 ¶4 (quoting 117 Cong. Rec. 

43,410 (1971) (statement of Rep. Abzug)); see J.A. 271-72 ¶5 (describing 

Congressional findings regarding such circumvention).) In 1974, shortly after the 

Watergate scandal, Congress substantially revised FECA, adding to it, inter alia, a 

$1,000 per-candidate, per-election limit on individual contributions to candidates 

and their authorized political committees. (J.A. 272 ¶6 (citing Fed. Election 

Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(b)(3), 88 Stat. 

1263.) 

The contribution limit challenged here applies on a per-candidate, perelection basis, with “election” defined to include, inter alia, general, primary, 

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runoff, and special elections, as well as political party conventions and caucuses. 

52 U.S.C. § 30101(1); J.A. 272 ¶8.1

 FECA’s individual contribution limit applies 

separately for each election, except that all elections held in any calendar year to 

elect the President (except a general election for such office) are considered a 

single election. (J.A. 272-73 ¶8 (citing 52 U.S.C. §§ 30116(a)(1)(A), 

30116(a)(6)).) 

C. The Supreme Court’s Upholding of FECA’s Contribution Limit 

Shortly after Congress passed the 1974 FECA amendments, the Supreme 

Court, in Buckley v. Valeo, affirmed the constitutionality of the per-election limit 

against both First Amendment and Fifth Amendment equal protection challenges. 

424 U.S. 1, 29, 35 (1976) (per curiam). The Court found that a contribution limit 

only “marginal[ly]” restricts a contributor’s First Amendment rights and therefore 

applied intermediate, or “closely drawn,” scrutiny. Id. at 20-21, 25. The Court 

upheld FECA’s per-election limit under the First Amendment, finding that it 

furthered the government’s important interests in limiting actual and apparent 

corruption, both of which threaten to undermine “the integrity of our system of 

representative democracy.” Id. at 23-29. The Buckley Court also rejected a Fifth 

Amendment equal protection challenge to the per-election limit. The Court 

 1

 Last year, FECA was moved from Title 2 to Title 52 of the United State 

Code. Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.ht

ml. 

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observed that FECA “applies the same limitations on contributions to all 

candidates” and stated that “[a]bsent record evidence of invidious discrimination 

. . . a court should generally be hesitant to invalidate legislation which on its face 

imposes evenhanded restrictions.” Id. at 31. The Court explained that “the danger 

of corruption and the appearance of corruption apply with equal force to 

challengers and to incumbents” and accordingly found that “Congress had ample 

justification for imposing the same fundraising constraints upon both.” Id. at 33. 

The Buckley Court also found that the then-$1,000 contribution limit was not 

unconstitutionally overbroad, rejecting an argument that the limit was 

“unrealistically low,” and holding that judicial review of the amount at which 

limits are set is very narrow. Id. at 30. The Court explained that if Congress 

decides that “some limit on contributions is necessary, a court has no scalpel to 

probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.” Id. 

(internal quotation marks omitted). 

D. FECA’s Current Per-Election Contribution Limit and the 

Commission’s Implementing Regulations 

The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 

Stat. 81 (“BCRA”), subsequently amended FECA to raise the per-election limit 

and index it for inflation. (J.A. 273 ¶9 (citing BCRA § 307(b), (d), 116 Stat. 102-

103 (codified at 52 U.S.C. § 30116(c))).) The indexed limit that applied to 

contributions made to federal candidates during the 2013-2014 election cycle, 

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including the contributions at issue in this case, was $2,600 per candidate, per 

election. (Id. ¶10 (citing FEC, Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8530, 8532 (Feb. 6, 2013).)2

 

 Because FECA defines “election” to include various types of electoral 

contests, the total amount that one may contribute to a particular candidate during a 

particular election cycle depends on how many separate elections that candidate 

must participate in to pursue the federal office being sought. (J.A. 273 ¶11.) As 

the district court explained, “[t]his means that an individual who supported a 

candidate who participated in one primary election and one general election during 

the 2013-2014 election cycle was permitted to contribute a total of $5,200 to that 

candidate — $2,600 for the candidate’s primary-election campaign and $2,600 for 

the candidate’s general-election campaign.” (J.A. 273-74 ¶11.) “In an election 

cycle in which a candidate competes in one or more runoffs, special elections, or a 

political party caucus or convention, in addition to a primary and general election, 

the total amount that an individual may contribute to that candidate is higher.” 

(J.A. 274 ¶12.) As the district court found, appellants’ own contributions to 

Congressman Mark Sanford in connection with three different elections for the 

same congressional seat in 2013 exemplify how the per-election limit enabled 

 2

 The limit for the 2015-2016 election cycle is $2,700 per candidate, per 

election. (J.A. 273 ¶10.) 

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individuals to contribute more than $5,200 to the same candidate during the 2013-

2014 election cycle. (J.A. 274-75 ¶¶13-16; see also J.A. 281-84 ¶¶40-58 (detailing 

frequency and identifying specific examples of electoral contests that included 

runoff and special elections over the past dozen years).) 

Commission regulations “encourage[]” contributors to designate in writing 

the particular election for which an individual contribution is intended. (J.A. 276 

¶20 (citing 11 C.F.R. § 110.1(b)(2)(i)).) Undesignated contributions count against 

the donor’s contribution limit for the candidate’s next election; designated 

contributions count against the donor’s contribution limit for the named election. 

(Id. ¶21 (citing 11 C.F.R. § 110.1(b)(2)(ii)).) 

When a candidate has net debts outstanding from a past election — 

including a primary election — a contributor may designate a contribution in 

writing for that past election. Such contributions may only be accepted for the 

purpose of retiring debt and only up to the extent of the debt. (J.A. 276 ¶22 (citing 

11 C.F.R. § 110.1(b)(3)(i), (b)(5)(i)(B)).) If a candidate’s net outstanding debts 

from a past election amount to less than the amount of a contribution designated 

for a previous election, Commission regulations permit the candidate (or his 

committee) to refund the contribution, redesignate it (with the donor’s written 

authorization) for a subsequent election, or reattribute the contribution as from a 

different person if it was intended to be a joint contribution. (Id. ¶23 (citing 11 

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C.F.R. § 110.1(b)(3)(i)(A) & (C), (k)(3)).) A primary contribution that is 

redesignated for use in the candidate’s general election counts against the 

contributor’s general-election limit. (Id. ¶24 (citing 11 C.F.R. § 110.1(b)(5)(iii) 

(“A contribution redesignated for another election shall not exceed the limitations 

on contributions made with respect to that election.”)).) If a primary candidate 

fails to qualify for the general election, then all general-election contributions 

received by that candidate must similarly be returned, redesignated, or reattributed. 

(J.A. 277 ¶25 (citing 11 C.F.R. § 110.1(b)(3)(i)(C)).) 

Commission regulations permit general-election candidates to use any 

unused primary contributions to pay for general-election expenses. (J.A. 277 ¶26 

(citing 11 C.F.R. § 110.3(c)(3)).) General-election candidates are similarly 

permitted to use general-election contributions to retire outstanding primaryelection debts. (Id. ¶27 (citing 11 C.F.R. § 110.1(b)(3)(iv)).) Candidates need not 

obtain contributor authorization to make such transfers between their primary, 

general, and any other election accounts, and such transfers by candidates do not 

change the per-election contribution limit for individual contributors. (Id.) Past 

FEC advisory opinions and enforcement matters illustrate the FEC’s application of 

these constraints on candidate campaign committees’ primary- and generalelection financing. (See J.A. 278-80 ¶¶30-34 (discussing FEC advisory opinions 

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and enforcement-matter conciliation agreements applying FEC regulations 

governing primary and general-election financing).) 

II. FACTUAL AND PROCEDURAL BACKGROUND 

 A. The Parties 

 The FEC is the independent agency of the United States with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of FECA. 

(J.A. 270 ¶2.) 

 Holmes and Jost are a married couple residing in Miami, Florida, who 

supported certain candidates running in the November 2014 general congressional 

elections. (J.A. 270 ¶1, 285 ¶61, 286 ¶70.) Holmes and Jost chose not to make 

any contributions to those candidates’ primary-election campaigns. (J.A. 270 ¶62, 

286 ¶71.) But Holmes and Jost wished to contribute the maximum amounts 

permitted for primary and general-election campaigns combined — $5,200 — 

“entirely for the general election.” (See J.A. 14 ¶26.) They thus sought to make 

general-election contributions in amounts that were double FECA’s per-election 

limit. (J.A. 302.) 

Holmes supported Carl DeMaio, a candidate who sought to represent 

California’s Congressional District 52. (J.A. 285 ¶61.) Under California’s “Top 

Two” primary system, all candidates for United States congressional offices are 

listed on the same primary ballot and the two candidates that receive the most 

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votes, regardless of party preference, proceed to compete in the general election. 

(J.A. 280 ¶36; J.A. 138-41.) Four candidates were listed on the ballot for 

California’s June 3, 2014 congressional primary election: Carl DeMaio, 

incumbent Representative Scott Peters, and two other candidates. (J.A. 285 ¶63.) 

DeMaio and Peters thus each faced three candidates in the primary, including each 

other. Ultimately, Peters and DeMaio received the most votes and were the “top 

two” finishers in the primary. (J.A. 285 ¶64; J.A. 146.) DeMaio later lost the 

general election to Peters. (J.A. 286 ¶69; J.A. 151.) 

Appellant Holmes chose not to make a primary-election contribution to 

DeMaio but contributed $2,600 to DeMaio’s general-election campaign. (J.A. 

285 ¶62; J.A. 286 ¶67.) Holmes sought to contribute an additional $2,600 to 

DeMaio’s general-election campaign, so that her total contributions in support of 

DeMaio’s general-election campaign would have amounted to $5,200, twice the 

statutory limit. (J.A. 286 ¶68.) 

 Appellant Jost supported Mariannette Miller-Meeks, a candidate who sought 

to represent Iowa’s Second Congressional District. (J.A. 286 ¶70.) Miller-Meeks 

won her 2014 primary election but lost in the general election to incumbent 

Representative David Loebsack. (J.A. 287 ¶¶72, 73, 76.) Jost chose not to make a 

primary contribution to Miller-Meeks, but contributed $2,600 to her generalelection campaign. (J.A. 286 ¶ 71; J.A. 287 ¶74.) Jost sought to contribute an 

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additional $2,600 to Miller-Meeks’s general-election campaign, so that his total 

contributions in support of Miller-Meeks’s general-election campaign would have 

amounted to $5,200, twice the statutory limit. (J.A. 287 ¶75.) 

 B. Procedural History 

Holmes and Jost filed their complaint challenging FECA’s per-election 

contribution limit on July 21, 2014 (J.A. 8), and subsequently moved to 

preliminarily enjoin the FEC from enforcing FECA’s $2,600 per-election limit “as 

applied” to their desired $5,200 general-election contributions. 

On October 20, 2014, the district court denied Contributors’ motion for a 

preliminary injunction, finding that they were unlikely to succeed on the merits. 

(J.A. 37-51.) The court explained that their “wish [was] to contribute $5,200 to the 

general election alone, as opposed to the $2,600 deemed appropriate by Congress,” 

and they therefore challenged “the specific base limit on how much an individual 

may contribute per election.” (J.A. 44 n.5.) The court concluded that such a 

challenge is foreclosed by Supreme Court precedent, and that the court did not 

have the “luxury” of overruling “Buckley v. Valeo and its progeny.” (J.A. 37.) 

On November 12, 2014, the district court issued its initial decision on 

Contributors’ certification request. The court initially perceived some uncertainty 

about whether district courts possess a screening role in cases brought under 52 

U.S.C. § 30110 and so, “in an abundance of caution,” the court not only made two 

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dozen findings of fact but also certified two constitutional questions for en banc

consideration. (J.A. 53.) The Commission filed a motion in this Court for remand, 

and on January 30, 2015, the en banc Court of Appeals remanded the case to the 

district court to “complete the functions mandated by section 30110 and described 

[by this Court] in Wagner v. FEC, 717 F.3d [1007, 1009 (D.C. Cir. 2013) (per 

curiam) (“Wagner I”)],” i.e., to find facts, determine if any of Contributors’ claims 

were insubstantial, frivolous, or posed settled questions of law; and certify only 

any unsettled, substantial questions to the en banc Court of Appeals. J.A. 59; see 

Wagner I, 717 F.3d at 1009.

On remand, the parties proposed findings of fact and submitted briefs 

regarding each others’ proposed facts and whether any questions should be 

certified for en banc consideration. 

C. District Court Opinion 

On April 20, 2015, the district court issued its order and opinion setting forth 

its findings of fact, declining to certify any constitutional questions, and granting 

summary judgment to the Commission. (J.A. 266, 310.) 

 First, the district court made 76 findings of fact. (J.A. 269-287.) The court 

overruled most of Contributors’ relevance and admissibility objections, including 

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their objections to certain legislative facts, which “‘help the tribunal decide 

questions of law and policy.’” (J.A. 269.)3

 

 The court then concluded that Contributors’ First and Fifth Amendment 

claims challenged issues of settled law and rejected as insubstantial their “veiled 

attack on the contribution limit set by Congress and upheld by the Supreme Court 

as a legitimate means to combat corruption.” (J.A. 266-310.) 

 The district court explained that section 30110 does not require certification 

of constitutional questions that are frivolous, insubstantial, or settled. (J.A. 295.) 

The court further explained that when some factual review is necessary to 

determine whether a claim is colorable, summary judgment is appropriate 

regarding any question that is settled or insubstantial. (J.A. 296.) 

 The district court explained that Buckley upheld the then-$1,000 limit on 

individual contributions to candidates, finding that the limit advanced the 

sufficiently important state interest of reducing corruption and its appearance. 

(J.A. 297-98.) The court also explained that the Supreme Court had repeatedly 

reaffirmed that holding in Davis v. FEC, 554 U.S. 724 (2008), FEC v. Colorado 

Republican Federal Campaign Committee, 533 U.S. 431 (2001), and, most 

 3

 The district court rejected the Commission’s arguments and proposed facts 

concerning the mootness of appellants’ claims in light of the passing of the 2014 

election. Although Contributors sought to make above-the-limit contributions to 

certain candidates’ 2014 general-election campaigns, the court concluded that their 

claims were capable of repetition yet evading review. (J.A. 290-94.) 

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recently, in McCutcheon v. FEC, 134 S. Ct. 1434 (2014). (J.A. 298-99.) In light 

of those cases, the court held that Contributors’ First Amendment claims involved 

an issue of settled law: “The Supreme Court has held that FECA’s individual 

limits on base contributions are permissible and Congress set such a limit — at 

$2,600.” (J.A. 304-05.) 

 The district court rejected as a “false construct” Contributors’ contention 

that their First Amendment claims were novel because the Supreme Court had 

never addressed the constitutionality of what they “incorrect[ly]” characterized as a 

“bifurcated” $5,200 election-cycle limit. (J.A. 300.) The court explained: 

FECA does not dictate a maximum contribution limit of $5,200 that 

may be split between the primary and general elections. Rather, 

FECA sets a per-election base limit of $2,600: an individual may 

contribute $2,600 to one candidate for each “election,” as defined, in 

which he participates. Donating $2,600 to a candidate for his 

primary-election campaign and $2,600 to that same candidate for his 

general-election campaign is not the same as donating $5,200 solely 

to his general election campaign. Congress simply does not allow any

contributor to give $5,200 for a general election. 

(Id. (citation omitted).) 

 The court concluded that by seeking to combine the separate $2,600 primary 

and general election limits into a single $5,200 limit that could be contributed 

solely for a candidate’s general-election campaign, Contributors were “effectively 

challenging Congress’s decision to set a base dollar limit for individual perelection contributions to federal candidates — a decision that is contemplated and 

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approved by Buckley.” (J.A. 301.) Contributors’ desire to “double the scope” of 

association with their preferred candidates by contributing $5,200 to those 

candidates’ general-election campaigns was precluded by Buckley’s holding that 

“‘the weighty interests served by restricting the size of financial contributions to 

political candidates are sufficient to justify the limited effect on upon First 

Amendment freedoms caused by the $1,000 contribution ceiling.’” (Id. at 302-03 

(quoting Buckley, 424 U.S. at 29).) 

 The court also distinguished the rights of general-election candidates, 

pursuant to an FEC regulation, to spend unused primary contributions on their 

general-election expenses, from appellants’ allegation that certain contributors are 

able to make $5,200 general-election contributions to candidates who faced little or 

no primary opposition. (J.A. 302.) The court explained that “[n]either FECA nor 

any Supreme Court opinion authorizes an individual contribution of $5,200 for a 

general election.” (Id.) It further explained that Holmes and Jost had not even 

challenged 11 C.F.R. § 110.3(c)(3), the FEC regulation that permits generalelection candidates to spend their unused primary contributions on their generalelection expenses, and that it is not clear that they would have standing as 

contributors to do so. (Id.) 

 The district court also rejected Contributors’ purported reliance on 

McCutcheon, explaining that they had placed “too much weight” on “shorthand” 

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comments delivered by the Court in dicta, particularly in light of the Court’s 

“explicit recognition” elsewhere in the opinion that the base limit is $2,600 per 

election. (J.A. 303.) McCutcheon did not involve a challenge to the base limit, the 

court clarified, and it did not “alter Buckley’s finding that congressionally-selected 

base limits on individual contributions advance an anti-corruption interest.” (J.A. 

304.) 

 Finally, the district court concluded that Contributors’ Fifth Amendment 

equal protection claim raised a settled legal question that did not warrant 

certification. (J.A. 305-08.) The court cited Buckley’s rejection of a facial Fifth 

Amendment challenge to the per-election limit, and the Supreme Court’s 

admonition that “a court should generally be hesitant to invalidate legislation 

which on its face imposes evenhanded restrictions” in the absence of “record 

evidence of invidious discrimination.” (J.A. 305-06.) Contributors concede that 

FECA “‘on its face’” treats all contributors the same, and the district court found 

“no evidence of invidious discrimination against [them] or any purported class of 

individual contributors” by FECA, and concluded that “Buckley’s reasoning 

applies with equal force” to their Fifth Amendment challenge. (J.A. 306-08.) 

 The district court further explained that even if it had not found 

Contributors’ claims to be settled, it would have nonetheless found them 

“insubstantial and undeserving of certification” because “[t]he facts here make 

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clear that [Contributors’] perceived inequality in contribution limits is not imposed 

by FECA or its regulations, but the vagaries of the election process.” (J.A. 308 

n.15 (internal quotation marks omitted).) 

SUMMARY OF ARGUMENT 

 The decision below is correct and should be affirmed. The district court 

correctly concluded that Contributors’ constitutional challenges to FECA’s perelection contribution limit are nothing more than a “veiled attack” on the same 

“evenhanded” contribution limit that applies to all contributors and candidates and 

has been repeatedly upheld by the Supreme Court as a legitimate means to combat 

corruption. 

 In Buckley, the Supreme Court held that FECA’s per-election limit satisfies 

the closely drawn scrutiny that applies to contribution limits, by furthering the 

government’s important interests in preventing actual and apparent corruption 

while imposing only a “marginal restriction” on the contributor’s First Amendment 

rights. The Supreme Court has reaffirmed that holding a number of times, 

including in its recent McCutcheon decision. The court below correctly relied on 

those multiple Supreme Court holdings in concluding that Contributors’ First 

Amendment claims are foreclosed. 

 The court was right to reject Contributors’ attempts to escape the dispositive 

effect of Supreme Court precedent by characterizing their challenges as novel or as 

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applied. They are neither. Holmes and Jost merely invent a new, factually 

inaccurate, characterization of FECA’s per-election contribution limit, which they 

call a $5,200 “bifurcated” election-cycle limit. But no such election-cycle limit 

exists and FECA, which applies to a variety of electoral contests beyond primary 

and general elections, does not have a single “bifurcated” limit. Contributors’ 

mischaracterization of the provision they challenge does not render these latest 

constitutional challenges to the statue “novel.” Nor are their constitutional 

challenges as applied, as the district court properly held, because the relief Holmes 

and Jost request necessarily reaches beyond their own alleged circumstances. 

 The district court was also correct in its determination that Buckley and other 

Supreme Court decisions preclude Contributors from claiming a right to make 

general-election contributions in amounts that are double FECA’s per-election 

limit. Indeed, Holmes and Jost themselves recognize the general rule that courts 

lack a “scalpel to probe” the amount of a particular contribution limit where 

Congress has determined that a limit is needed. And they offer no explanation why 

that general rule does not apply here. 

 Contributors’ constitutional challenges fail for the additional reason, as the 

district court found, that their alleged injury is entirely self-imposed. Their 

admitted efforts to prevent their money from being spent on primary-election 

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campaigning demonstrate that they chose not to exercise their First Amendment 

rights, and that such rights were not infringed by FECA. 

 Finally, the district court’s rejection of Contributors’ attempt to challenge 

the same statute under the guise of the Fifth Amendment was sound. FECA’s perelection contribution limit applies equally to all persons, creates no classification, 

and does not invidiously discriminate against anyone. The court below rightly held 

that Contributors’ equal protection claims are foreclosed by Buckley and, in any 

event, are insubstantial because FECA’s per-election limit applies to Holmes and 

Jost in the same way it applies to other contributors. The perceived inequality 

Holmes and Jost allege is plainly not a result of FECA or even an FEC regulation 

but rather “the vagaries of the election process.” 

 The district court fulfilled its assigned role under 52 U.S.C. § 30110 of 

making findings of fact and determining whether any constitutional questions 

presented are frivolous, insubstantial, or settled. Contributors’ challenges here are 

both insubstantial and pose settled legal questions. The district court correctly 

declined to certify questions and granted summary judgment to the FEC; its 

decision should be affirmed. 

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ARGUMENT 

I. STANDARDS OF REVIEW 

Contributors do not challenge the district court’s factual findings or related 

evidentiary rulings. (Appellants’ Br. 2, 10, 11.) Even if they had, however, the 

district court’s findings of fact “may not be set aside unless clearly erroneous.”

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740, 743 (D.C. Cir. 2000). 

This Court has not addressed the standard of review that applies to a district 

court’s denial of a request to certify constitutional questions to the en banc Court 

of Appeals under section 30110. The Ninth Circuit Court of Appeals has applied a 

de novo standard of review to that determination. Goland v. United States, 903 

F.2d 1247, 1252 (9th Cir. 1990) (explaining that where question presented is 

“whether the caselaw reviewing and interpreting Federal Election Campaign Act 

amendments disposes of this [section 30110] constitutional challenge,” the Court’s 

“review is de novo”). The Fifth Circuit, by contrast, has reviewed a district court’s 

dismissal of claims brought pursuant to section 30110 under an abuse of discretion 

standard. In re Cao, 619 F.3d 410, 415 (5th Cir. 2010) (en banc). Because the 

district court’s decision should be affirmed under either standard, this Court need 

not resolve which standard applies here. 

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This Court reviews the district court’s summary judgment ruling de novo. 

Judicial Watch, Inc. v. United States Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 

2013). 

II. THE DISTRICT COURT PROPERLY REJECTED 

CONTRIBUTORS’ FIRST AMENDMENT CHALLENGE 

A. The District Court Correctly Accepted the Supreme Court’s 

Conclusion That the Government’s Important Anticorruption 

Interest Justifies FECA’s Per-Election Contribution Limit 

As both the Supreme Court and the court below recognized, contribution 

limits “entail[] only a marginal restriction upon the contributor’s ability to engage 

in free communication” and “may be sustained if the State demonstrates a 

sufficiently important interest and employs means closely drawn to avoid 

unnecessary abridgment of associational freedoms.” Buckley, 424 U.S. at 20-21, 

25; J.A. 32 (quoting Buckley). Applying that intermediate level of scrutiny, the 

Supreme Court in Buckley upheld FECA’s per-election limit, explaining that “the 

weighty interests served by restricting the size of financial contributions to political 

candidates are sufficient to justify the limited effect upon First Amendment 

freedoms caused by the $1,000 contribution ceiling.” 424 U.S. at 23-29. “The 

Court held that the limits further the important governmental interests of 

preventing “the actuality and appearance of corruption resulting from large 

individual financial contributions.” Id. at 26. 

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As the court below recognized (J.A. 298-99), “the Supreme Court has 

consistently reaffirmed Buckley’s finding” that FECA’s per-election contribution 

limit satisfies constitutional scrutiny. See, e.g., McCutcheon, 134 S. Ct. at 1451 

(invalidating FECA’s aggregate limits on contributions to candidates while 

emphasizing that the statute’s individual, per-election limit on candidate 

contributions remains “undisturbed” and that the limit is “the primary means of 

regulating campaign contributions”); Davis, 554 U.S. at 737; Colo. Republican 

Fed. Campaign Comm., 533 U.S. at 437, 465; cf. Citizens United v. FEC, 558 U.S. 

310, 359 (2010) (distinguishing independent expenditure restrictions from 

contribution limits, the latter of which “have been an accepted means to prevent 

quid pro quo corruption”). 

The district court correctly relied on the Supreme Court’s repeated 

affirmations of the constitutionality of FECA’s per-election contribution limit in 

holding that Contributors’ First Amendment claims are foreclosed. See, e.g., 

Goland, 903 F.2d at 1257 (explaining that “[o]nce a core provision of FECA has 

been reviewed and approved by the courts, . . . questions arising under [such] 

‘blessed’ provisions understandably should meet a higher threshold” to 

demonstrate that the challenge is not merely a “sophistic twist” on settled law but 

rather pose substantial questions warranting certification); Khachaturian v. FEC, 

980 F.2d 330, 331 (5th Cir. 1992) (en banc) (per curiam) (same). 

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B. Contributors’ Constitutional Challenge is Neither Novel Nor As 

Applied 

As the court below observed, Contributors have conceded that “Buckley 

forecloses challenges to ‘the general imposition of individual contribution limits.’” 

(J.A. 299-300.) Holmes and Jost thus attempt to escape the dispositive impact of 

the Supreme Court’s holdings by labeling their claims “novel” and “as applied.” 

(See, e.g., Appellants’ Br. 13, 27, 29, 30, 52.) As the district court’s factual 

findings and legal analysis make clear, such characterizations are completely 

misplaced. 

1. There Is No “Bifurcated” Election-Cycle Contribution Limit

Contributors’ “factually incorrect” characterization of the per-election limit 

as a “bifurcated” election-cycle limit may be “novel,” but their legal challenge is 

not. (J.A. 300.) As the court below explained, Holmes and Jost “claim their case 

is novel because the Supreme Court has not addressed the effect of FECA’s 

‘bifurcated’ per-election campaign contribution limit.” (Id.) But Contributors’ 

“repeated description of FECA’s per-election structure as ‘bifurcated’ is factually 

incorrect.” (Id. (emphasis added); see, e.g., Appellants’ Br. 2, 4, 7, 14, 15, 31, 36, 

38, 40 (referencing supposed “bifurcated” per-election limit).) As the district court 

clarified, “FECA does not dictate a maximum contribution limit of $5,200 that 

may be split between the primary and general elections. Rather, FECA sets a perUSCA Case #15-5120 Document #1573473 Filed: 09/16/2015 Page 34 of 86
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election base-limit of $2,600: an individual may contribute $2,600 to one 

candidate for each ‘election,’ as defined, in which he participates.” (J.A. 300.) 

As a preliminary matter, FEC regulations and the district court’s undisputed 

factual findings describe the distinct purposes of primary and general elections: 

primaries “serve the purpose of determining, in accordance with State law, which 

candidates are ‘nominated . . . for election to Federal office in a subsequent 

election.’” (J.A. 275 ¶17 (quoting 11 C.F.R. § 100.2(c)(1)) (emphasis added).) 

General elections, by contrast, are held to “‘fill a vacancy in a Federal office . . . 

and . . . [are] intended to result in the final selection’” of the individual to serve in 

that office. (J.A. 275 ¶18 (quoting 11 C.F.R. § 100.2(b)(2).) FECA’s per-election 

contribution limit logically accounts for these distinctions. 

Moreover, and as the district court’s detailed factual findings also 

demonstrate, “FECA’s separate contribution limits for each election within a 

particular election cycle account for the lack of uniformity in federal electoral 

contests — including the races within different political parties for the same 

particular office.” (J.A. 280 ¶35.) The lack of such electoral uniformity is amply 

demonstrated in the district court’s factual findings, including, inter alia, the 

regular occurrence of primary runoff elections in ten states under varying 

circumstances, open primary elections in other states, and special elections in 

various special circumstances including when necessary to fill a seat vacated by an 

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incumbent who left office before completing his or her full term. (See J.A. 280-84 

¶¶35-58 (detailing frequency and identifying specific examples of electoral 

contests that included runoff and special elections over the past dozen years).) 

FECA’s per-election contribution limit thus sensibly permits a candidate 

who must participate in a primary, runoff, and general election within a single 

election cycle to receive a greater number of contributions from a particular 

contributor during that election cycle than candidates who participate only in a 

primary and general election. (See J.A. 274 ¶12.) As the district court explained 

when it denied Contributors’ preliminary injunction motion, FECA’s imposition of 

limits on a per-election basis “allow[] candidates to compete fairly in each stage of 

the political process.” (J.A. 44 (citing Buckley, 424 U.S. at 26-27).) 

The per-election limit also allows individuals to associate with a particular 

candidate in each of the elections in which the candidate competes, while at the 

same time permitting individuals like Holmes and Jost to choose not to associate 

with a candidate in connection with a particular election. J.A. 285 ¶62, 286 ¶71; 

see J.A. 43 (denying preliminary injunction and explaining that Contributors’ 

choice “not to exercise their right of free expression before the primary election 

does not render the law unconstitutional as applied”); infra pp. 34-35. 

Contributors’ persistent characterization of FECA’s per-election 

contribution limit as “bifurcated” is contrary not only to the plain language of the 

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challenged statutory provision, but also to the detailed, undisputed factual record in 

this case, as described above, and even to Contributors’ own arguments and 

actions. 

Contributors themselves proposed factual findings acknowledging that 

“[u]nder the text of FECA as amended, the individual contribution limits apply 

separately with respect to each election,” and that “in 2014, individual persons 

could contribute no more than $2,600 per candidate, per federal election,” with 

election defined to include “‘a general, special, primary, or runoff election.’” J.A. 

61-62 ¶¶3-5; see 52 U.S.C. §§ 30101(1)(A), 30116(a). In addition, during the 

2013-2014 election cycle, Holmes and Jost each contributed the maximum 

permissible $2,600 to Congressman Mark Sanford in connection with three 

separate elections for the same office, including two special elections and one 

primary election in which Sanford competed unopposed. (J.A. 274-75 ¶¶13-16.) 

Appellants’ respective total contributions of $7,200 each to Congressman Sanford 

during the 2013-2014 election cycle would have been illegal under their own 

interpretation of FECA as imposing a $5,200 ceiling on contributions during that 

election cycle.4

 

 4

 The closest Holmes and Jost come to even acknowledging this fundamental 

flaw in their “bifurcation” argument is their observation (Appellants’ Br. 6) that 

“the majority of such races” are primary and general elections. But merely 

dismissing the broader statutory definition of “election,” the district court’s 

detailed factual findings regarding the regular occurrence of other types of election 

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The district court correctly rejected Contributors’ “assertion that there is a 

$5,200 [election-cycle] cap that is ‘bifurcated’ between the primary and general[] 

elections,” because that characterization is “a false construct.” (J.A. 300.) “The 

base limit is not $5,200. Congress has decided that the base limit . . . is $2,600, 

and Buckley mandates deference to that limit.” (J.A. 301.) 

A newly contrived mischaracterization of a provision that the Supreme 

Court has repeatedly upheld does not render this legal challenge novel. “[S]tripped 

to the bare facts of their case, [Holmes and Jost] are seeking simply to contribute 

more than Congress authorized,” so the district court properly rejected their 

specious attempt to escape Buckley and its progeny. (J.A. 302.) 

2. McCutcheon Does Not Support Contributors’ Imagined $5,200 

Election-Cycle Contribution Limit 

The Supreme Court’s McCutcheon decision reaffirmed the constitutionality 

of FECA’s per-election contribution limit and explicitly distinguished that limit 

 

contests, and even their own contributions does not fix their deficient legal 

argument. 

Holmes and Jost employ a similarly dismissive approach in characterizing as 

a “legal fiction” the notion that a candidate who lacks “a significant primary 

challenge[r]” or who is “virtually unopposed” still “participates in a primary 

election.” (Id. at 4, 6, 15.) That assertion disregards the district court’s factual 

finding that even when a ballot reflects only one candidate, that candidate is “still 

subject to challenge in most states by potential write-in candidates.” (J.A. 284 ¶59; 

see J.A. 162-65.) And it is inconsistent with appellants’ own allegations in their 

complaint invoking the fundraising rights of write-in candidates. (J.A. 21-22 ¶¶58, 

60.) 

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from the aggregate contribution limits at issue in that case. 134 S. Ct. at 1451. 

Indeed, although the Court ultimately struck down FECA’s aggregate limits on the 

total amounts that individuals can contribute to all candidates or committees within 

a particular time period, the Court explicitly left “undisturbed” the per-election

limit at issue here, and emphasized that FECA’s per-election “limits remain the 

primary means of regulating campaign contributions.” Id. at 1451. 

McCutcheon expressly recognized that FECA’s individual “base” limits 

apply on a per-candidate, per-election basis. Id. at 1442 (“For the 2013-2014 

election cycle, the base limits in the Federal Election Campaign Act . . . permit an 

individual to contribute up to $2600 per election to a candidate ($5,200 total for 

the primary and general elections).” (emphases added)); see id. at 1448 

(explaining that FECA’s aggregate limits prevented “an individual from fully 

contributing to the primary and general election campaigns of ten or more 

candidates” (emphasis added)). Having calculated that the “total” limit on 

contributions to a candidate’s primary and general election campaigns for the 

2013-2014 election cycle was $5,200, the Court then proceeded throughout its 

opinion to refer collectively to FECA’s separate limits for primary and general 

election contributions as the Act’s “base” limit. 

As the district court explained, these were not constitutional findings about 

what level of a per-election limit is “noncorrupting” but merely “shorthand” 

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references to the combined per-election limits in the Court’s “dicta” upon which 

Contributors place “too much weight.” (J.A. 303.) Nothing in the opinion even 

hints that Congress or the Court has found that a $5,200 contribution to a single 

candidate in connection with a single election is “noncorrupting,” as Holmes and 

Jost incorrectly claim (Appellants’ Br. 14). 

On the contrary, in making clear that McCutcheon did “not involve any 

challenge to the base limits,” the Supreme Court stated that it “ha[d] previously 

upheld [such limits] as serving the permissible objective of combating corruption.” 

134 S. Ct. at 1442. The Court thus emphasized, in responding to criticism from the 

dissenting justices, that the individual, per-election limit remains “undisturbed” 

and “the primary means of regulating campaign contributions.” Id. at 1451. The 

Supreme Court’s actual discussion of FECA’s individual per-election limit in 

McCutcheon thus belies Contributors’ assertions (Appellants’ Br. 14) that the 

Supreme Court “assumed that Congress had imposed a single contribution limit of 

$5,200,” determined that $5,200 per-election contributions to a single candidate are 

“noncorrupting,” or implied that “there was no justification for preventing an 

individual from giving that . . . amount” to any candidate for a single election. 

McCutcheon plainly does not support Contributors’ arguments, as the 

district court correctly recognized: instead, the decision “confirm[s] that FECA’s 

base individual contribution limit is $2,600 per-election.” (J.A. 304.) 

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3. The District Court Correctly Concluded That This Is Not An 

As-Applied Challenge 

Holmes and Jost also cannot escape binding precedent by arguing that their 

challenge is as applied. In John Doe No. 1 v. Reed, the Supreme Court explained 

that whether a challenge is facial or as-applied depends on the requested relief: 

“The label is not what matters. The important point is that plaintiffs’ claim and the 

relief that would follow . . . reach beyond the particular circumstances of these 

plaintiffs. They must therefore satisfy our standards for a facial challenge to the 

extent of that reach.” 561 U.S. 186, 194 (2010); see also Edwards v. Dist. of 

Columbia, 755 F.3d 996, 1001 (D.C. Cir. 2014) (explaining that “the breadth of the 

remedy” is whether a challenge is facial or as applied). 

The court below correctly concluded that the relief sought here demonstrates 

that this challenge is not “as applied.” (J.A. 300 n.8; J.A. 306.) Holmes and Jost 

seek to “invalidat[e] FECA’s per-election individual contribution limit” and such 

relief would necessarily “‘reach beyond the particular circumstances’” alleged 

here. (J.A. 306 (quoting Reed, 561 U.S. at 194).) Holmes and Jost fail to explain 

how a court could enjoin enforcement of FECA’s per-election limit as applied only 

to their proposed 2014 general-election contributions, or to some unspecified 

future contributions to some “candidate who [will] face[] a primary challenge [and 

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then] compete[] in the general election against a candidate who ran unopposed or 

virtually unopposed during the primary.” (Appellants’ Br. 42.)5

 

The Supreme Court has made clear that “a facial challenge must fail where 

the statute has a plainly legitimate sweep.” See Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 (2008) (internal quotation marks omitted). 

Buckley and subsequent Supreme Court decisions establish that FECA’s perelection limit has such a “sweep.” The district court correctly found that 

Contributors’ attempt to relitigate the same constitutional question here is 

foreclosed by the Supreme Court’s clear decisions upholding the limit as closely 

drawn to prevent actual and apparent corruption. J.A. 267; see Libertarian Nat’l 

Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 166 (D.D.C. 2013) (explaining that a 

constitutional challenge that “raises issues that the Supreme Court has already 

 5

 Holmes and Jost also fail to explain how a court could tailor relief to the 

limited circumstances upon which their claims are purportedly based, i.e., “when a 

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

candidate who ran unopposed or virtually unopposed during the primary.” 

(Appellants’ Br. 42; see J.A. 288 n.4 (referencing appellants’ former focus on 

candidates lacking a “substantial primary opponent” rather than one “who ran 

unopposed or virtually unopposed”).) In the proceedings below, appellants failed 

to define what circumstances render a candidate “substantially” or, as appellants 

now define their challenge, “virtually” unopposed. (J.A. 288 n.4 (finding 

appellants’ attempted categorization irrelevant).) Appellants’ only answer here is 

to suggest that the FEC should expand its regulatory authority to include 

determinations regarding the significance of electoral opposition that candidates 

face in their primary elections. (Appellants’ Br. 42-43 n.14.) They do not identify 

any legal basis for such an expansion of the FEC’s authority. See infra p. 40 & 

n.6. 

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addressed . . . is not so much an as-applied challenge as it is an argument for 

overruling a precedent” (internal citation and quotation marks omitted)), aff’d in 

part, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014). 

C. The District Court Correctly Concluded That Supreme Court 

Precedent Forecloses Contributors’ Claimed Right to Make 

General-Election Contributions in Amounts That Are Double 

FECA’s Per-Election Limit 

The district court properly held that Buckley and other Supreme Court 

decisions foreclose Contributors’ desire to “double the scope” of their association 

with, and contributions to, their preferred candidates. (J.A. 302.) Contributors’ 

“First Amendment claim challenges FECA’s monetary restrictions” — a challenge 

“precluded by Buckley’s finding that ‘the weighty interests served by restricting the 

size of financial contributions to political candidates are sufficient to justify the 

limited effect upon First Amendment freedoms caused by the [then-]$1,000 

contribution ceiling.’” (J.A. 302-03 (quoting Buckley, 424 U.S. at 29).) 

As Buckley explained, courts lack a “scalpel to probe, whether, say, a $2,000 

ceiling might not serve as well as $1,000. Such distinctions in degree become 

significant only when they can be said to amount to differences in kind.” 424 U.S. 

at 30 (internal quotation marks and citation omitted). Even Holmes and Jost 

recognize this general rule. (See Appellants’ Br. 1 (“Lacking ‘a scalpel to probe,’ 

. . . courts will generally defer to the legislature’s judgment of the permitted 

contribution amount.” (quoting Buckley)).) The Supreme Court has repeatedly 

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reaffirmed it. See, e.g., Randall v. Sorrell, 548 U.S. 230, 248 (2006) (Breyer, J., 

plurality) (explaining that courts defer to the legislature on the appropriate amount 

of contribution limits because courts “cannot determine with any degree of 

exactitude the precise restriction necessary to carry out the statute’s legitimate 

objectives” and “the legislature is better equipped to make such empirical 

judgments, as legislators have particular expertise in matters related to the costs 

and nature of running for office” (internal quotation marks omitted)); Colo. 

Republican Fed. Campaign Comm., 533 U.S. at 446 (“[T]he dollar amount of the 

limit need not be fine tun[ed] . . . .” (citation and internal quotation marks 

omitted)); cf. Davis, 554 U.S. at 737 (“When contribution limits are challenged as 

too restrictive, we have extended a measure of deference to the judgment of the 

legislative body that enacted the law.”). 

The only time the Court invalidated an individual, base contribution limit, it 

did so largely because the state limits were so low they would “significantly 

restrict the amount of funding available for challengers to run competitive 

campaigns.” See Randall, 548 U.S. at 253. Holmes and Jost have not alleged such 

circumstances here. Indeed, they are reluctant to fully “relinquish[] control” over 

money that they donate to a candidate, and to allow the recipient candidate to 

spend such contributions “however [his] campaign chooses.” Compare J.A. 277 

¶28 (citing 11 C.F.R. § 110.1(b)(6)), with Appellants’ Br. 1; J.A. 285 ¶62, 286 

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¶71). That reluctance does not demonstrate any constitutional deficiency with the 

amount of FECA’s per-election limit. See infra pp. 34-37. 

D. Contributors’ Alleged Harm Was Not Caused by FECA 

Contributors’ claims are not only foreclosed by Supreme Court precedent 

and premised on a “factually incorrect” characterization of the statutory provision 

they challenge. Their claims are also insubstantial for the additional reason that 

Holmes and Jost have not identified any harm resulting from the statutory 

contribution limit they purport to challenge. 

1. Contributors’ Choice Not to Make Primary-Election 

Contributions Is Not a Constitutional Injury 

As the district court found, Holmes and Jost both could have contributed 

$5,200 to their preferred candidates — for those candidates’ primary and general 

election campaigns — but they chose not to do so. (J.A. 43, 285 ¶62, 286 ¶71.) 

Indeed, Holmes and Jost acknowledge in their opening brief that they each elected 

not to make contributions in primary elections because that is when candidates of 

the same party ordinarily compete against one another. (Appellants’ Br. 1 

(explaining the view that such money would be “wasted in an intraparty 

squabble”); see id. at 7 (explaining that Holmes supported candidate Carl DeMaio 

and contributed the maximum permissible $2,600 to him for his general election 

campaign but “did not make any contributions [for DeMaio’s primary election 

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campaign] because [Holmes] was interested principally in supporting the ultimate 

nominee from her party against the incumbent”).) 

As the district court correctly explained when it denied Contributors’ motion 

for a preliminary injunction, their alleged injuries are thus entirely self-inflicted: 

Holmes and Jost “could have contributed $2,600 to any candidate before the 

primaries, but chose not to do so because of their belief that the money would be 

‘wasted in an intraparty squabble’ as opposed to being used to fight the incumbent 

in the general election.” (J.A. 43.) Contributors’ affirmative choice “not to 

exercise their right of free expression” by declining to associate with their 

preferred candidates during those candidates’ primary-election campaigns “does 

not render the law unconstitutional as applied.” (Id.) 

2. An FEC Regulation That Permits General-Election Candidates 

to Spend Unused Primary Contributions on General-Election 

Expenses Did Not Unconstitutionally Burden Holmes or Jost 

The district court sensed Contributors’ “frustration” that an FEC regulation 

permits a general-election candidate to transfer unused primary funds for use in 

that candidate’s general-election campaign. (J.A. 304.) But their disagreement 

with the Commission’s regulation of how candidates may spend their money does 

not demonstrate any constitutional flaw in the statutory provision governing the 

amount all individuals may contribute to a particular candidate for a particular 

election. (Id.) As the district court explained, “[n]either Congress nor the 

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Supreme Court has ever authorized individual contributors to give $5,200 to one 

candidate solely for use in a general election,” and “[n]o contributor has control 

over how a candidate ultimately uses his contribution.” (J.A. 304 & n.10 (citing 11 

C.F.R. § 110.1(b)(6); emphasis added)).) 

In the district court, Holmes and Jost proposed factual findings establishing 

that their constitutional claims are brought “on the basis of” the FEC regulation 

authorizing general-election candidates to transfer unused primary funds for use in 

their general-election campaign. (J.A. 64 ¶11.) But as the court below found, 

Holmes and Jost “have not [in fact] challenged the regulation in this case, and it is 

not clear that they have standing to do so” in any case. (J.A. 302 n.11 (citation 

omitted).) 

To demonstrate standing to challenge section 110.3(c)(3), Holmes and Jost 

would have to show that as contributors they have suffered “concrete and 

particularized” injury “fairly traceable” to those rules, which govern how 

candidates use contributions they have already received. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). But as the district court correctly noted, an 

individual contributor “relinquishes control over the contribution” once the 

contribution is made, and “[g]enerally, a recipient candidate and her campaign may 

spend contributions to the campaign however the campaign chooses.” (J.A. 277 

¶28 (citing 11 C.F.R. § 110.1(b)(6)).) 

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In any event, even if Holmes and Jost had attempted to assert a challenge to 

this FEC regulation, such a challenge could not be brought under the special 

judicial review provision they have invoked here, a provision limited to questions 

concerning the “constitutionality of any provision of [FECA].” 52 U.S.C. § 30110. 

* * * 

In sum, Contributors’ First Amendment challenge to a provision of law long 

ago blessed by the Supreme Court is in all aspects insubstantial, and the district 

court correctly declined to certify it to the en banc Court.

III. THE DISTRICT COURT PROPERLY REJECTED 

CONTRIBUTORS’ FIFTH AMENDMENT EQUAL PROTECTION 

CHALLENGE 

 

The district court also correctly concluded that Contributors’ Fifth 

Amendment challenge to FECA’s per-election contribution limit is both foreclosed 

by Supreme Court precedent and too insubstantial to warrant certification to the en 

banc Court. The limit applies equally to all persons and creates no classifications, 

does not invidiously discriminate against anyone, and does not deny Holmes, Jost, 

or anyone else equal protection of the law. 

A. The District Court Correctly Held That Contributors’ Equal 

Protection Challenge Is Foreclosed by Buckley

FECA’s per-election contribution limit applies equally to all contributors 

and candidates; it does not establish any separate classes of contributors or 

candidates. Nor does it invidiously discriminate, as the Supreme Court held in 

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Buckley. 424 U.S. at 31. The district court thus rightly concluded that Buckley

applies with equal force to Contributors’ challenge and that their Fifth Amendment 

claims were settled. (J.A. 306-08.) 

The “core concern” of the Constitution’s equal protection guarantee is 

“shield[ing] against arbitrary [government] classifications.” Engquist v. Or. Dep’t 

of Agric., 553 U.S. 591, 598 (2008) (describing scope of Fourteenth Amendment 

equal protection guarantee); see Buckley, 424 U.S. at 93 (“Equal protection 

analysis in the Fifth Amendment area is the same as that under the Fourteenth 

Amendment.”). By contrast, statutory provisions that do not create any 

classifications whatsoever do not implicate equal protection concerns. 

In Buckley, the Court rejected an equal protection challenge alleging that 

FECA’s per-election contribution limit invidiously discriminated between 

incumbents and challengers, explaining “at the outset” that “the Act applies the 

same limitations on contributions to all candidates.” 424 U.S. at 31. The court

stressed the importance of FECA’s application of “the same limitations on 

contributions to all candidates regardless of their present occupations, ideological 

views, or party affiliations.” Id. at 31. Because such restrictions are 

“evenhanded,” the Buckley Court turned aside the plaintiffs’ Fifth Amendment 

claim, explaining its reluctance to strike down a facially neutral statute “[a]bsent 

record evidence of invidious discrimination against challengers as a class.” Id. 

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“[T]he danger of corruption and the appearance of corruption,” the Court reasoned, 

“apply with equal force to challengers and to incumbents.” Id. at 33. The Court 

consequently found that “Congress had ample justification for imposing the same 

fundraising constraints upon both.” Id.

This case concerns the same “evenhanded” per-election contribution limit 

that the Court in Buckley found imposes “the same limitations on contributions to 

all candidates.” The district court thus correctly recognized that “FECA treats all 

individual contributors equally by imposing uniform per-candidate, per election 

contribution limits.” (J.A. 306.) Holmes and Jost are simply wrong in suggesting 

(Appellants’ Br. 46) that some contributors can make a $5,200 contribution to a 

candidate, combining their primary and general-election contributions, “knowing 

that it will all be used” for the candidate’s general-election expenses. As the 

district court explained, “[n]o contributor has control over how a candidate 

ultimately uses his contribution.” (J.A. 302 n.10 (citing 11 C.F.R. § 110.1(b)(6)).) 

Indeed, as explained above, supra p. 36, the district court’s undisputed factual 

findings establish that an individual contributor “relinquishes control” of his 

contribution once the contribution is made, and that candidates are generally free to 

“spend contributions to the campaign however [they] choose[].” (J.A. 277 ¶28 

(citing 11 C.F.R. § 110.1(b)(6)).) 

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Moreover, the vague “implicit[] classifi[cation]” (Appellants’ Br. 45) of 

contributors to which Holmes and Jost claim membership does not implicate equal 

protection concerns. Holmes and Jost assert that their challenge is based on the 

alleged “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.” (Id. at 42 (emphasis added).) But as the 

Commission explained above, supra p. 31 n.5, Holmes and Jost admit their 

inability to define the class to which they purport to belong, suggesting that it is up 

to the FEC to promulgate regulations that define what circumstances render a 

candidate “‘virtually unopposed.’” (Appellants’ Br. 42-43 n.14.) Holmes and Jost 

fail to explain their bizarre suggestion (id.) that the FEC’s promulgation of a 

regulation regarding whether certain communications were functionally equivalent 

to campaign advertisements demonstrates that the FEC has the legal authority or 

technical ability to predict a particular candidate’s likely degree of opposition in an 

upcoming election.6

 And Contributors’ characterization of their “class” disregards 

the fact that Scott Peters, the general-election opponent of appellant Holmes’s 

preferred candidate, was opposed, under any standard, in his primary election: he 

 6

 The Supreme Court criticized the previous Commission regulation to which 

plaintiffs refer as a “two-part, 11-factor balancing test” that chilled speech to such 

an extent that the facial validity of FECA’s corporate expenditure ban needed to be 

reconsidered. Citizens United, 558 U.S. at 335-36. The Constitution does not 

compel this Court to accept appellants’ attempt to put the Act’s contribution limits 

on a similar path. 

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faced three primary opponents in the 2014 California congressional primary under 

California’s “Top-Two” system. J.A. 285-86 ¶¶63-66; see supra p. 10. 

Since the statute creates no classification, Holmes and Jost cannot show an 

equal protection violation unless they can show that the law was enacted 

specifically to further a discriminatory purpose — a task Holmes and Jost do not 

even purport to undertake. Instead, they posit “asymmetric” effects and outcomes. 

(Appellants’ Br. 47-48.) But that claim is both factually inaccurate and legally 

insufficient to demonstrate an equal protection violation. 

First, as Buckley makes clear, FECA’s per-election contribution limit 

“‘applies the same limitations on contributions to all candidates.’” (J.A. 307 

(quoting Buckley, 424 U.S. at 31).) Contributors’ “asymmetric” effects argument 

appears to be based on their misleading comparison of groups that are not similarly 

situated — contributors, on the one hand, and candidates, on the other — and on 

different legal provisions. Holmes and Jost erroneously compare (Appellants’ Br. 

1) a general-election candidate’s right, pursuant to an FEC regulation, to spend 

primary contributions “for general election purposes,” with a contributor’s right, 

under FECA, to contribute only up to $2,600 to a candidate for a particular 

election. Equally erroneous is Contributors’ comparison of their voluntary choice 

not to associate with their favored candidates in connection with those candidates’ 

primary-election campaigns (Appellants’ Br. 1, 7; J.A. 43, 285 ¶62, 286 ¶71), with 

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the choice of other individuals to exercise their right to make primary contributions 

(Appellants’ Br. 46). “The Equal Protection Clause of the Fourteenth Amendment 

. . . is essentially a direction that all persons similarly situated should be treated 

alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 

Contributors’ false comparisons of individuals that are not “similarly situated” do 

not demonstrate any statutory violation of their equal protection rights, nor even 

the “asymmetric” outcomes Holmes and Jost allege. 

Second, even if Holmes and Jost could demonstrate such disparate 

outcomes, such a demonstration would still be insufficient to assert an equal 

protection claim. “The equal protection component of the Fifth Amendment 

prohibits only purposeful discrimination,” so “when a facially neutral federal 

statute is challenged on equal protection grounds, it is incumbent upon the 

challenger to prove that Congress selected or reaffirmed a particular course of 

action at least in part because of, not merely in spite of, its adverse effects upon an 

identifiable group.” Harris v. McRae, 448 U.S. 297, 323 n.26 (1980) (internal 

quotation marks and citation omitted) (emphasis added); Vill. of Arlington Heights 

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (requiring evidence of 

“discriminatory intent or purpose . . . to show a violation of the Equal 

Protection Clause”). The district court thus correctly rejected as insufficient 

Contributors’ “disparate impact” argument. (J.A. 308.) 

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The statute creates no classifications and there are no allegations, let alone 

any factual findings, even suggesting any discriminatory purpose. The district 

court thus correctly concluded that “Buckley’s reasoning applies with equal force 

here,” and forecloses Contributors’ similar attempt to bring an equal protection to 

FECA’s “‘evenhanded’” per-election contribution limit. J.A. 306-08; see 

Goland, 903 F.2d at 1253, 1258 (explaining that constitutional questions are 

“settled” if they “do not fall outside the principles” established by the Supreme 

Court, even if the Court “did not have in mind” the plaintiffs’ exact 

circumstances). 

Contributors’ argument (Appellants’ Br. 43-44) that Buckley is not 

dispositive because no court has considered an equal protection challenge to the 

“bifurcated” limit is unavailing for all of the same reasons that their reliance on 

that “factually incorrect” characterization of the statute is fatal to their First 

Amendment claims: as explained in detail above, there is no “bifurcated” limit. 

B. No Case Supports Contributors’ Equal Protection Claims

None of the cases cited by Holmes and Jost (Appellants’ Br. 47-51) 

demonstrate that their equal protection claim is substantial. Davis v. FEC, Arizona 

Free Enterprise Club PAC v. Bennett, and Riddle v. Hickenlooper are all 

inapposite because the provisions at issue in those cases actually created separate 

contributions limits for similarly situated persons or burdened the free speech of 

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privately funded candidates for the purpose of leveling the financial playing field. 

The per-election limit challenged here does neither of those things. 

In Davis, the Court considered First and Fifth Amendment challenges to 

BCRA’s Millionaires’ Amendment, which allowed the opponents of candidates 

who personally spent more than $350,000 to receive individual contributions at 

three times the usual limit. The Court viewed the provision as an expenditure 

limitation and held that it violated the First Amendment by “impos[ing] an 

unprecedented penalty on any candidate who robustly exercises that First 

Amendment right [by spending personal funds, and] requir[ing] a candidate to 

choose between the First Amendment right to engage in unfettered political speech 

and subjection to discriminatory fundraising limitations.” 554 U.S. at 739. The 

Court further explained that, even viewed as a contribution limit, the purpose of the 

provision to level electoral opportunities was impermissible. Id. at 740 n.7. But 

FECA’s per-election contribution limit at issue here does not suffer from such 

constitutional infirmities: it is not asymmetrical, does not burden any candidate’s 

right to expend personal funds, and is based on the permissible justification of 

preventing the risk and appearance of corruption. Further, the Court in Davis 

declined to reach the equal protection issue in light of its First Amendment 

analysis. Id. at 744 n.9; accord Wagner v. FEC, 793 F.3d 1, 32-33 (D.C. Cir. 

2015) (en banc) (“Wagner II”) (rejecting equal protection challenge for the same 

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reasons used in rejecting the same basic claim brought as a First Amendment 

challenge).

Arizona Free Enterprise is similarly inapposite. That case concerned an 

Arizona statute providing that when a privately financed candidate raised or spent 

more than the state’s initial grant, his or her opponent would receive almost dollarfor-dollar matching funds. Explaining that “the logic of Davis largely control[ed]” 

the result, the Court held that Arizona’s provision violated the First Amendment by 

penalizing candidates who “‘robustly exercise[d]’” their First Amendment rights, 

131 S. Ct. at 2818-19, and by attempting to level the playing field impermissibly, 

id. at 2825. Arizona Free Enterprise hardly casts constitutional doubt on the 

$2,600 per-election limit at issue here, since, again, FECA’s per-election limit was 

not enacted to (and does not) impermissibly level the playing field; it does not treat 

any contributors or candidates differently from others. 

Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014), also fails to support 

Contributors’ claims. In Riddle, the Court of Appeals for the Tenth Circuit 

considered a Colorado statute that, as a result of the state’s procedure for 

determining which candidates may appear on the general election ballot, allowed 

major-party candidates to “obtain $400 from a single contributor and spend all of 

the money in the general election,” while restricting minor-party nominees and 

others to obtaining “only $200 from a single contributor.” 742 F.3d at 924-27. 

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Importantly, the challenged Colorado provision did “not set contribution limits 

based on who has a primary and who doesn’t.” Id. at 926. The Tenth Circuit 

found that the law “created different contribution limits for candidates running 

against each other, and these differences have little to do with fighting corruption.” 

Id. at 930. It thus invalidated the Colorado provision on equal protection grounds. 

Id. That holding is inapposite here. As Judge Gorsuch noted in his concurring 

opinion, “[t]he federal government regulates campaign contributions on a perelection basis and manages to do so without any of the discrimination found in 

Colorado statutory law.” Id. at 933 (Gorsuch, J., concurring); see id. (suggesting 

that “[p]erhaps the State might follow th[e federal] model” to cure the 

constitutional deficiencies of the Colorado provision).

C. The Per-Election Contribution Limit Easily Satisfies the 

Applicable Level of Constitutional Review 

Even if the limit could be deemed to create some sort of de facto “class” of 

contributors — and as explained above, it cannot — such a classification would be 

subject to nothing more than the most deferential standard of review. Under Fifth 

or Fourteenth Amendment equal protection standards, “a statutory classification 

that neither proceeds along suspect lines nor infringes fundamental constitutional 

rights must be upheld against [an] equal protection challenge if there is any 

reasonably conceivable state of facts that could provide a rational basis for the 

classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-15 (1993); see 

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also, e.g., Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (“This 

Court has long held that a classification neither involving fundamental rights nor 

proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause 

if there is a rational relationship between the disparity of treatment and some 

legitimate governmental purpose.” (internal quotation marks omitted)); Heller v. 

Doe, 509 U.S. 312, 319-20 (1993) (same); Minnesota v. Clover Leaf Creamery 

Co., 449 U.S. 456, 461 (1981) (same). 

The amorphous classification Holmes and Jost have posited is neither 

suspect nor quasi-suspect, and they have offered nothing suggesting otherwise. 

Indeed, whether a contributor falls within appellants’ vaguely defined class 

depends wholly on the affirmative choices of individuals — about which

candidates to support, when to support them, and in which races — that are 

beyond the control of the government and do not implicate equal protection 

guarantees. 

Holmes and Jost are also incorrect in suggesting (Appellants’ Br. 46) that 

their claims implicate a “fundamental right” meriting heightened review. They 

purport to seek only to “structure” certain candidate contributions in a manner that 

allows them to associate only with their preferred candidates during those 

candidates’ primary-election campaigns, while increasing their general-election 

contributions to such candidates to an amount that is double the statutory limit for 

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a single election. But no case has recognized a “fundamental right” to structure 

candidate contributions in whatever manner a contributor desires, and the Supreme 

Court has made clear that there is no fundamental right to make contributions in 

whatever amount a contributor desires. E.g., Buckley, 424 U.S. at 23-29; see supra

p. 22. 

This Court recently confirmed, en banc, that plaintiffs cannot obtain more 

scrutiny for a constitutional challenge to a statutory contribution limit by “dressing 

their [First Amendment] argument as an equal protection claim.” See Wagner II, 

793 F.3d at 32. In Wagner II, the Court relied on its First Amendment analysis 

upholding the challenged contribution limits — which did impose restrictions on a 

particular class of contributors — and declined to reach a different result under the 

Fifth Amendment. Id. at 33 (explaining that “[a]lthough equal protection analysis 

focuses upon the validity of the classification rather than the speech restriction, the 

critical questions asked are the same” (internal quotation marks omitted)). As the 

Court explained, “in a case like this one, in which there is no doubt that the 

interests invoked in support of the challenged [provision] are legitimate, and no 

doubt that the [statute] was designed to vindicate those interests rather than 

disfavor a particular speaker or viewpoint, the challengers ‘can fare no better under 

the Equal Protection Clause than under the First Amendment itself.’” Id. (quoting 

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 55 n.4 (1986)). Holmes and 

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Jost are correct that Wagner II is distinguishable (Appellants’ Br. 51-52), but not 

for the reasons they suggest. In Wagner II, unlike here, the challenged 

contribution limit actually created a classification — government contractors — 

and it prohibited (and still prohibits) individuals within that class from making any 

contributions. Wagner II, 793 F.3d at 3. The fact that the Court in Wagner II 

nevertheless unanimously rejected an equal protection challenge to FECA’s ban on 

any contributions by government contractors only further suggests the 

insubstantiality of Contributors’ attempt to relitigate FECA’s evenhanded perelection contribution limit here. 

IV. CERTIFICATION WAS CLEARLY UNWARRANTED 

The analysis above demonstrates that the district court correctly determined 

that Contributors’ constitutional claims seek to relitigate settled questions of law, 

necessarily depend on a “factually incorrect” premise, and fail to identify any 

substantial and unsettled legal questions that warrant consideration by the en banc 

Court.

FECA’s special judicial review provision, 52 U.S.C. § 30110, provides 

special procedures for certain plaintiffs to bring suits “to construe the 

constitutionality of any provision of [FECA],” and for the district court to make 

findings of fact and certify substantial, unsettled questions of constitutionality of 

the Act to the appropriate court of appeals sitting en banc. See Wagner I, 717 F.3d 

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at 1009. This certification procedure was enacted in 1974 to provide expedited 

consideration of anticipated constitutional challenges to the extensive amendments 

made to FECA that year. See Fed. Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, § 208(A), 88 Stat. at 1285-86 (1974). 

The district court in section 30110 cases plays an important gatekeeping role 

of preventing insubstantial, frivolous question from unnecessarily disrupting the 

work of the en banc federal courts of appeals. Section 30110 claims are 

“circumscribed by the constitutional limitations on the jurisdiction of the federal 

courts.” Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981) (“Cal. Med.”). 

This Court has explained that a district court under section 30110 “should perform 

three functions. First, it must develop a record for appellate review by making 

findings of fact.” Wagner I, 717 F.3d at 1009. “Second, [it] must determine 

whether the constitutional challenges are frivolous or involve settled legal 

questions,” id. (internal citations omitted), or as the Supreme Court phrased it, 

whether the issues presented are “neither insubstantial nor settled,” Cal. Med., 453 

U.S. at 192 n.14. And third, only then should it certify the record and any nonfrivolous, unsettled constitutional questions to the en banc Court. Wagner I, 717 

F.3d at 1009. 

The court below thus correctly recognized that certification is not required 

for claims that “are either ‘insubstantial’ or ‘settled.’” J.A. 295; see also Goland, 

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903 F.2d at 1258 (“[W]here the legal issue has been resolved by the Supreme 

Court, the district court need not certify the constitutional challenge[s].”); Buckley 

v. Valeo, 387 F. Supp. 135, 138 (D.D.C. 1975) (section 30110 certification 

appropriate where “a substantial constitutional question is raised by a complaint” 

(emphasis added)), remanded on other grounds, 519 F.2d 817 (D.C. Cir. 1975); 

Khachaturian v. FEC, 980 F.2d 330, 332 (5th Cir. 1992) (en banc) (per curiam) 

(explaining that only “colorable constitutional issues” should be certified). 

The Supreme Court has narrowly construed section 30110 and assigned the 

district court this gatekeeping function for good reason: Certifying constitutional 

questions to en banc courts necessarily disrupts their dockets by creating “a class 

of cases that command the immediate attention of . . . the courts of appeals sitting 

en banc, displacing existing caseloads and calling court of appeals judges away 

from their normal duties.” Bread Political Action Comm. v. FEC, 455 U.S. 577, 

580 (1982).7

 

Screening for insubstantial, frivolous, and settled questions reduces “the 

burden [that the special review procedure places] on the federal courts” and 

 7

 Part of the Supreme Court’s concern in Bread Political Action Committee

was the requirement in the statute at that time that section 30110 proceedings be 

expedited. 455 U.S. at 580. Though the expedition provision has been repealed, 

section 30110 “continues to pretermit review by district courts and panels of courts 

of appeals and that pretermission undoubtedly serves the Congress’s goal of 

expedition.” Wagner I, 717 F.3d at 1014 (noting that expedition repeal changed 

only section 30110’s “volume, not its tune”). It thus continues to pose a danger of 

docket disruption. 

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prevents its “potential abuse.” Cal. Med., 453 U.S. at 192 nn.13-14. Substantiality 

screening was one of the “restrictions on the use of” the special procedure that led 

the Court to conclude that the provision would not so “burden” the courts of 

appeals as to impede “the sound functioning of the federal courts.” Id. at 192-94 

nn.13-14. FECA “is not an unlimited fountain of constitutional questions.” Id. at 

192 n.13. 

 Courts have offered significant guidance about what constitutes a frivolous, 

insubstantial, or settled question of law that does not merit certification under 

section 30110. Settled questions “do not fall outside the principles” established by 

the Supreme Court, even if the Court “did not have in mind” the plaintiffs’ exact 

circumstances. Goland, 903 F.2d at 1253, 1257-58. “Constitutional challenges to 

FECA are frivolous for purposes of certification if none of the legal points are 

arguable on their merits.” Whitmore v. FEC, 68 F.3d 1212, 1215-16 (9th Cir. 

1996) (internal quotation marks omitted); id. (finding challenge frivolous where 

“[p]laintiffs have . . . found no published precedent in any judicial decision for 

their novel propositions”); see also J.A. 295-96 (collecting cases). In the 

analogous context of the substantiality standard for determining whether a threejudge court should be convened under 28 U.S.C. §§ 2282 and 2284, this Court has 

explained that “[c]onstitutional claims may be regarded as insubstantial if they are 

‘obviously without merit,’ or if their ‘unsoundness so clearly results from the 

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previous decisions of (the Supreme Court).” Feinberg v. FDIC, 522 F.2d 1335, 

1339 (D.C. Cir. 1975); accord Appellants’ Br. 12. 

Federal courts have routinely refused to certify frivolous or settled 

constitutional claims pursuant to section 30110. See, e.g., Judd v. FEC, 304 F. 

App’x 874, 875 (D.C. Cir. 2008) (per curiam) (affirming district court’s dismissal 

because “the constitutional challenge to [FECA] is frivolous”); Nat’l Comm. of the 

Reform Party of the United States v. Democratic Nat’l Comm, 168 F.3d 360, 367 

(9th Cir. 1999) (affirming district court’s decision denying certification of claims 

that FECA “unconstitutionally preempts common law remedies . . . because 

plaintiffs had no common law remedies for FECA to preempt”); Whitmore, 68 

F.3d at 1215-16 (affirming denial of certification for frivolousness where 

“plaintiffs sought an injunction commanding competing congressional candidates 

not to accept out-of-state contributions”); Gifford v. Congress, 452 F. Supp. 802, 

810 (E.D. Cal. 1978) (refusing to certify constitutional questions and dismissing 

FECA challenge on the “ground that it is frivolous” (cited with approval in Cal. 

Med., 453 U.S. at 192 n.14), approved, Gifford v. Tiernan, 670 F.2d 882 (9th Cir. 

1982)). The district court’s decision not to certify any of Contributors’ claims 

finds robust support in these numerous cases. 

Holmes and Jost acknowledge that the district court’s gatekeeping functions 

are “important,” but they nevertheless attempt to minimize the scope of the district 

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court’s screening role by reinterpreting the admittedly “straightforward” test that 

provides for dismissal of cases that are “‘frivolous or involve settled legal 

questions.’” (Appellants’ Br. 18 (quoting Wagner I, 717 F.3d at 1009) (emphasis 

added); see id. at 12, 23 (invoking three-judge court standard described in 

Feinberg but omitting portion of that standard excluding from three-judge court 

jurisdiction “[c]onstitutional claims . . . that are ‘obviously without merit,’” 522 

F.2d at 1339).) According to Holmes and Jost, despite the “straightforward” 

language in this Court’s and other courts’ opinions describing the district court’s 

duty to screen out such cases, the standard is actually much narrower, requiring 

certification unless a case is both frivolous and raises settled legal issues, and only 

where “a case has already been definitively decided.” (Appellants’ Br. 18-19.) 

Contributors’ reinterpretation of the relevant inquiry under section 30110 — 

“whether the specific facts and legal claims . . . present a novel application of law 

that has not been ruled upon by the Supreme Court” (Id. at 29) — would require 

certification of virtually every case brought under that provision. But Holmes and 

Jost have no authority for their expansive interpretation of the scope of questions 

that would merit en banc review, and the body of caselaw interpreting and 

applying section 30110, upon which the district court appropriately relied (J.A. 

294-96), belies their argument. 

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For example, in Goland, the plaintiff challenged the constitutionality of 

FECA’s contributions limits and disclosure provisions, alleging that they violated 

his First Amendment right to contribute anonymously. 903 F.2d at 1252. The 

Ninth Circuit Court of Appeals concluded that the proposed constitutional 

questions “d[id] not fall outside the principles established in the cases upholding 

FECA’s contribution limits and disclosure requirements,” and thus affirmed the 

district court’s denial of certification — even though the proposed constitutional 

questions were “in a sense . . . novel” and based on “unusual facts.” Id. at 1253. 

The court rejected the argument that the Supreme Court in Buckley did not 

consider questions concerning anonymous contributions to minor party candidates. 

“The issues Goland raises,” the court explained, “were resolved by the Court in 

Buckley, and no feature of his admittedly distinctive factual situation distinguishes 

his case.” Id. at 1258. The court explained that Buckley had approved the 

application of contribution limits to minor party candidates and those limits served 

to deter corruption even as applied to anonymous contributions. Id. at 1259. 

Though Buckley had not explicitly considered the precise issue of anonymous 

contributions, the Ninth Circuit nevertheless affirmed. 

Goland demonstrates the propriety of the district court’s dismissal here of 

Contributors’ similar attempt to challenge settled legal questions. If anything, 

dismissal here was even more clearly warranted because the only novelty in 

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Contributors’ case is their “factually incorrect” characterization of FECA’s perelection contribution limit as a “bifurcated” election-cycle limit. In any event, 

Goland makes clear that it is not necessary for the Supreme Court to have 

considered and ruled upon the exact same “specific facts and legal claims” for a 

district court to properly decline certification in light of “principles established” by 

the Court. 903 F.2d at 1253. 

The district court’s decision in Libertarian National Committee v. FEC, 930 

F. Supp. 2d 154 (D.D.C. 2013) (“LNC”), aff’d in part, No. 13-5094, 2014 WL 

590973 (D.C. Cir. Feb. 7, 2014), stands for the same proposition. In LNC, the 

district court found that plaintiffs’ broad First Amendment challenge to annual 

limits on contributions to political party committees, as applied specifically to 

testamentary bequests, was foreclosed by Buckley, even though the Supreme Court 

had not squarely addressed bequests in that decision (or any other). Id. at 165-66. 

The court explained that bequests generally “may very well raise the anticorruption concerns that motivated the Buckley and McConnell Courts to dismiss a 

facial attack on contribution limits.” Id. at 166. Even though neither of those 

cases analyzed contribution limits in the specific context of bequests, the court 

declined to certify given broadly governing Supreme Court authority. 

It is true, as Holmes and Jost observe (Appellants’ Br. 28-29), that the court 

in LNC reframed the constitutional question plaintiffs had proposed in order to 

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certify a “valid, narrower” question regarding the specific bequest at issue in that 

case. LNC, 930 F. Supp. 2d at 171. The district court noted that specific factual 

circumstances in that particular case suggested that the anticorruption interests may 

have been minimal, including not only that the bequestor had died, but also that the 

recipient had virtually no contact with the bequestor before he died or with his 

heirs or representatives after his passing. Id. at 170-71. Assuming that 

certification was correct,8

 here there is no “valid, narrower” question the district 

court could have certified (and Holmes and Jost have yet to identify one). 

The question certified in LNC concerned the constitutionality of limits on a 

particular contribution in completely aberrant circumstances, a question that 

neither the Supreme Court nor any other court had specifically addressed. Here, 

however, Holmes and Jost pose no unique circumstances whatsoever with respect 

to reducing the danger of corruption and its appearance. The double-the-limit 

general-election contributions Holmes and Jost sought to make in 2014 would 

implicate precisely the same corruption concerns as excessive contributions made 

by any other contributors, including contributors who did make primary 

contributions. 

 8

 The matter became moot and the en banc Court of Appeals did not review 

the certified question. Order, Libertarian National Committee v. FEC, No. 13-

5094 (D.C. Cir. Mar. 26, 2014) (Document #1485531). 

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Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010), also supports the 

Commission’s position, not Contributors’. In Cao, the district court declined to 

certify several proposed constitutional questions involving various contribution 

and coordinated expenditure limits applicable to political parties that failed to 

satisfy the threshold substantiality inquiry. The court rejected as frivolous two 

proposed constitutional questions that were premised on an erroneous theory that 

“all campaign finance regulations are subject to an ‘unambiguously campaign 

related’ requirement.” Cao, 688 F. Supp. 2d at 535-39. Because the district court 

determined that the plaintiffs’ legal theory was meritless, it concluded that their 

proposed constitutional questions premised on that theory were frivolous and 

refused to certify such questions. Id. at 538-39. The Fifth Circuit affirmed those 

decisions. In re Cao, 619 F.3d 410, 418-19 (5th Cir. 2010) (en banc). 

The constitutional challenges in this case are even more fundamentally 

flawed, including (a) Contributors’ mischaracterization of FECA’s per-election 

contribution limit as a “bifurcated” election-cycle limit, see supra pp. 23-27, 

(b) Contributors’ attempt to transform McCutcheon’s shorthand description of the 

combined primary and general-election contribution “base limit” as a constitutional 

holding that a $5,200 per-election contribution is “non-corrupting” and 

constitutionally permissible, see supra pp. 27-29, (c) Contributors’ self-inflicted 

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harm, and (d) their false comparisons of individuals that are not similarly situated, 

see supra pp. 41-42. 

Moreover, contrary to Contributors’ suggestion (Appellants’ Br. 24-25), the 

Cao court’s certification of a question related to the $5,000 limit on contributions 

from political committees to candidates, 52 U.S.C. § 30116(a)(2)(A), does not 

support certification of any constitutional questions here. In Cao, the district court 

found that earlier Supreme Court decisions had not dealt directly with 

contributions from political parties, and in particular a claim that limits on 

contributions from party committees should be higher than limits from other 

persons. 688 F. Supp. 2d at 547. Here, by contrast, Holmes and Jost challenge 

FECA’s per-election contribution limit based on their desire to make double-thelimit general-election contributions, and the Supreme Court in Buckley did 

squarely uphold the per-election limit on contributions from individuals to 

candidates. (J.A. 267.) 

The Fifth Circuit’s decision in Khachaturian, which Holmes and Jost 

acknowledge (Appellants’ Br. 26) is “instructive,” further confirms that the district 

court was correct to dismiss Contributors’ constitutional challenges here. 

Khachaturian, an independent candidate in the 1992 senatorial election in 

Louisiana, brought a lawsuit challenging FECA’s then-$1,000 individual 

contribution limit “as applied” to his independent candidacy. Khachaturian, 980 

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F.2d at 331. After the district court denied his motion for a preliminary injunction 

and then certified constitutional questions pursuant to section 30110, the FEC 

moved for a remand. The Fifth Circuit granted the FEC’s remand motion, 

instructing the district court to perform the frivolousness screening and, if 

necessary, the record-building functions required in section 30110 cases. Id. at 

332. 

Holmes and Jost conflate (Appellants’ Br. 26) the Fifth Circuit’s decision 

concluding that the district court’s initial certification order was premature and 

remanding the case to the lower court, Khachaturian, 980 F.2d at 331, with the 

district court’s unpublished decision, on remand, dismissing the case as frivolous. 

Compare Appellants’ Br. 26 (suggesting that the Fifth Circuit determined, in the 

absence of any record, that Khachaturian failed to distinguish his claims from the 

claims rejected in Buckley and that “[a]s a result . . . certification was properly 

declined”), with Khachaturian, 980 F.2d at 332 (remanding the case for briefing on 

the certification question and a possible evidentiary hearing so that the district 

court may determine “whether Khachaturian’s claim is frivolous in light of 

Buckley”). 

Holmes and Jost agree (Appellants’ Br. 27) that “certification was properly 

declined” in Khachaturian. In the district court decision making that 

determination, the court recognized that frivolous questions must not be certified 

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and thus considered Khachaturian’s contention that FECA’s individual 

contribution limit “‘had a serious adverse effect on the initiation and scope of his 

candidacy.’” See Khachaturian v. FEC, No. 92-3232, slip op. at 4-5 (E.D. La. 

May 6, 1993) (unpublished) (Supplemental Addendum at Supp. Add. 7-8.)9

 

Khachaturian had identified eleven contributors prepared to give him more than 

$200,000. (Id. at 8.) The district court explained that Buckley had already upheld 

FECA’s individual contribution limit, “that the statute imposes evenhanded 

restrictions,” and that “‘the impact of the Act’s $1,000 contribution limitation on 

major-party challengers and minor party candidates does not render the provision 

unconstitutional on its face.’” (Id. at 7-8 (quoting Buckley, 424 U.S. at 31, 35).) 

Because “[t]he law is clear . . . that the $1,000 . . . limit applies to minor party 

candidates,” and because Khachaturian could “not point to any facts regarding ‘the 

utility of these additional amounts regarding the election outcome,” i.e., “why a 

“$200,000 campaign . . . would be any more successful than a $75,000 campaign,” 

the district court held that Khachaturian failed “to come even close” to stating a 

valid constitutional claim. (Id. at 8-9.) 

Here, the district court correctly dismissed Contributors’ constitutional 

challenges for the identical reason that Buckley already “‘blessed’” the very same 

 9

 Although this Court’s Rules generally do not permit citations to unpublished 

district court decisions entered before 2007, D.C. Cir. R. 32.1(b)(2), in this 

instance, clarification of the Khachaturian district court’s unpublished decision on 

remand is necessary in light of appellants’ misleading discussion of that case. 

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per-election contribution limit that Holmes and Jost seek to relitigate. 

Khachaturian, 980 F.2d at 331. As the district court in Khachaturian explained, 

“‘[i]t is unnecessary to look beyond [FECA’s] primary purpose — to limit the 

actuality and appearance of corruption resulting from large individual financial 

contributions — in order to find a constitutionally sufficient justification for the 

$1,000 contribution limitation.’” (Supp. Add. 8 (quoting Buckley, 424 U.S. at 26).) 

The district court’s similar conclusion here was correct. (J.A. 302-03.) 

In addition, Contributors’ purported “as-applied” twist on the same stale 

challenge rejected in Buckley and its progeny, based upon the “factually incorrect” 

characterization of FECA’s per-election contribution limit as a “bifurcated” $5,200 

election-cycle limit, is frivolous, just as the independent candidacy twist 

Khachaturian attempted over twenty years ago was frivolous. The district court in 

Khachaturian refused to recertify the constitutional question Buckley had settled, 

and the court below correctly refused to do the same.10

 10 SpeechNow.org v. FEC, which Appellants cite (Appellants’ Br. 28), also 

does not advance their argument. Holmes and Jost cite the district court’s order 

making findings of fact and issuing the court’s final determination regarding the 

certification of constitutional questions, in which the court stated that its 

prerogative was “not to answer any constitutional questions, or to render a 

judgment of any kind.” SpeechNow.org v. FEC, No. 08-0248, 2009 WL 3101036, 

at *1 (D.D.C. Sept. 28, 2009). But the district court had earlier reviewed briefing 

from the parties and determined whether the questions plaintiffs sought to have 

certified were frivolous or insubstantial, as discussed in an unpublished order. See 

Order, SpeechNow.org v. FEC, No. 08-0248 (D.D.C. July 29, 2008) (Docket No. 

40). 

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CONCLUSION 

 For the foregoing reasons, the decision below should be affirmed. 

Respectfully submitted, 

Daniel A. Petalas 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson 

Deputy General Counsel - Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak 

Acting Assistant General Counsel 

echlopak@fec.gov 

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher 

Attorney 

ckitcher@fec.gov 

FEDERAL ELECTION COMMISSION

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

September 16, 2015 

 

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 13,968 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Charles Kitcher 

Charles Kitcher 

Attorney 

Federal Election Commission 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 16th day of September, 2015, I electronically 

filed the Brief for Federal Election Commission with the Clerk of the United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through CM/ECF: 

Allen Dickerson, Esq. 

Tyler Martinez, Esq. 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

adickerson@campaignfreedom.org 

tmartinez@campaignfreedom.org 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Charles Kitcher 

Charles Kitcher 

Attorney 

Federal Election Commission 

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SUPPLEMENTAL ADDENDUM 

TABLE OF CONTENTS 

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

52 U.S.C. § 30116(c) ........................................................................ Supp. Add. 1 

11 C.F.R. § 110.1(k)(3) ..................................................................... Supp. Add. 2 

Khachaturian v. FEC, No. 92-3232, 

 slip op. (E.D. La. May 6, 1993) .............................................. Supp. Add. 4 

 

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Supp. Add. 1 

52 U.S.C. § 30116(a)(6). 

The limitation on contributions to a candidate imposed by paragraphs (1) 

and (2) of this subsection shall apply separately with respect to each election, 

except that all elections held in any calendar year for the office of President of the 

United States (except a general election for such office) shall be considered to be 

one election. 

52 U.S.C. § 30116(c). Increases on limits based on increases in price index.

(1) (A) At the beginning of each calendar year (commencing in 1976), as 

there become available necessary data from the Bureau of Labor Statistics of 

the Department of Labor, the Secretary of Labor shall certify to the 

Commission and publish in the Federal Register the percent difference 

between the price index for the 12 months preceding the beginning of such 

calendar year and the price index for the base period. 

(B) Except as provided in subparagraph (c), in any calendar year after 

2002 — 

(i) a limitation established by subsections (a)(1)(A), (a)(1)(B), 

(a)(3), (b), (d), or (h) shall be increased by the percent difference 

determined under subparagraph (A); 

(ii) each amount so increased shall remain in effect for the 

calendar year; and 

(iii) if any amount after adjustment under clause (i) is not a 

multiple of $100, such amount shall be rounded to the nearest multiple 

of $100. 

(C) In the case of limitations under subsections (a)(1)(A), (a)(10(B), 

(a)(3), and (h), increases shall only be made in odd-numbered years and such 

increases shall remain in effect for the 2-year period beginning on the first 

day following the date of the last general election in the year preceding the 

year in which the amount is increased and ending on the date of the next 

general election. 

(2) For purposes of paragraph (1) — 

(A) the term “price index” means an average over a calendar year of 

the Consumer Price Index (all items — United States city average) published 

monthly by the Bureau of Labor Statistics; and 

(B) the term “base period” means — 

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Supp. Add. 2 

(i) for purposes of subsections (b) and (d), calendar year 1974; 

and 

(ii) for purposes of subsections (a)(1)(A), (a)(1)(B), (a)(3), and 

(h), calendar year 2001. 

11 C.F.R. § 110.1(k)(3). 

 (i) If a contribution to a candidate or political committee, either on its 

face or when aggregated with other contributions from the same contributor, 

exceeds the limitations on contributions set forth in 11 CFR 110.1(b), (c), or (d), as 

appropriate, the treasurer of the recipient political committee may ask the 

contributor whether the contribution was intended to be a join contribution by 

more than one person. 

 (ii) (A) A contribution shall be considered to be reattributed to another 

contributor if — 

 (1) The treasurer of the recipient political committee asks 

the contributor whether the contribution is intended to be a joint 

contribution by more than one person, and informs the contributor that 

he or she may request the return of the excessive portion of the 

contribution if it is not intended to be a joint contribution; and 

 (2) Within sixty days from the date of the treasurer’s receipt 

of the contribution. The contributor provides the treasurer with a 

written reattribution of the contribution, which is signed by each 

contributor, and which indicates the amount to be attributed to each 

contributor if equal attribution is not intended. 

 (B) (1) Notwithstanding paragraph (k)(3)(ii)(A) of this section or 

any other provision of this section, any excessive portion of a 

contribution described in paragraph (k)(3)(i) of this section that was 

made by a written instrument that is imprinted with the names of more 

than one individual may be attributed among the individuals listed 

unless a different instruction is on the instrument or in a separate 

writing signed by the contributor(s), provided that such attribution 

would not cause any contributor to exceed any of the limitations on 

contributions set forth in paragraph (b)(1). 

 (2) The treasurer of the recipient political committee shall 

notify each contributor of how the contribution was attributed and that 

the contributor may request the refund of the excessive portion of the 

contribution if is not intended to be a joint contribution. 

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Supp. Add. 3 

 (3) Within sixty days from the date of the treasurer’s receipt of 

the contribution, the treasurer shall provide such notification to each 

contributor by any written method, including electronic mail. 

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Supp. Add. 4

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Supp. Add. 5

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Supp. Add. 6

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Supp. Add. 7

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Supp. Add. 8

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Supp. Add. 9

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