No. 16-109 

In the Supreme Court of the United States

STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY 

DEMOCRATS, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION 

LISA J. STEVENSON

Deputy General Counsel—

Law 

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel 

KEVIN P. HANCOCK

Attorney 

Federal Election 

Commission 

Washington, D.C. 

IAN HEATH GERSHENGORN

Acting Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217 

 
(I) 

QUESTIONS PRESENTED 

1. Whether petitioners’ as-applied constitutional 

challenges to two federal election laws, which undisputedly no longer apply or could apply to petitioners, 

are moot. 

2. Whether the court of appeals correctly determined that multicandidate political committees are not 

subject to discrimination that would trigger a constitutional equal-protection inquiry when, as compared 

to other political committees, federal law permits 

them to contribute more to federal candidates but less 

to political parties. 
(III) 

TABLE OF CONTENTS 

Page 

Opinions below .............................................................................. 1 

Jurisdiction .................................................................................... 1 

Statement ...................................................................................... 1 

Argument ....................................................................................... 8 

Conclusion ................................................................................... 20 

TABLE OF AUTHORITIES 

Cases: 

Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013) .............. 15

American Party of Tex. v. White, 415 U.S. 767 (1974) ...... 12

Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................... 12 

Arizonans for Official English v. Arizona, 520 U.S. 

43 (1997) ................................................................................. 9 

Barilla v. Ervin, 886 F.2d 1514 (9th Cir. 1989) .................. 15

Barr v. Galvin, 626 F.3d 99 (1st Cir. 2010), 

cert. denied, 132 S. Ct. 368 (2011) ..................................... 12

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................ 2 

California Med. Ass’n v. FEC, 453 U.S. 182 

(1981) ............................................................... 6, 16, 17, 18, 19 

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) .......... 9

Caruso v. Yamhill Cnty., 422 F.3d 848 (9th Cir. 

2005), cert. denied, 547 U.S. 1071 (2006) .......................... 14

Catholic Leadership Coal. of Tex. v. Reisman, 

764 F.3d 409 (5th Cir. 2014) ............................................... 13

Center for Individual Freedom v. Carmouche, 

449 F.3d 655 (5th Cir. 2006), cert. denied, 542 U.S. 

1112 (2007) ........................................................................... 13

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ...... 16

Corrigan v. City of Newaygo, 55 F.3d 1211 (6th Cir.), 

cert. denied, 516 U.S. 943 (1995) ................................. 13, 14
IV 

Cases—Continued: Page 

Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983), 

cert. denied, 469 U.S. 825 (1984) ....................................... 14

Davis v. FEC, 554 U.S. 724 (2008) ................................... 7, 10 

Dunn v. Blumstein, 405 U.S. 330 (1972) ............................. 12

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007) ................................................................................ 7, 10 

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ............... 11

Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 

1523 (2013) ............................................................................. 9

Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988), 

cert. denied, 490 U.S. 1106 (1989) ..................................... 14

Honig v. Doe, 484 U.S. 305 (1988) .............................. 7, 11, 12 

Joyner v. Mofford, 706 F.2d 1523 (9th Cir.), 

cert. denied, 464 U.S. 1002 (1983) ..................................... 14

Kucinich v. Texas Democratic Party, 563 F.3d 161 

(5th Cir. 2009) ...................................................................... 14

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

cert. denied, 547 U.S. 1178 (2006) ..................................... 13

Lewis v. Casey, 518 U.S. 343 (1996) ..................................... 12

Libertarian Party of Mich. v. Johnson, 714 F.3d 929 

(6th Cir.), cert. denied, 134 S. Ct. 825 (2013) ................... 14

Majors v. Abell, 317 F.3d 719 (7th Cir. 2003) ..................... 14

Mandel v. Bradley, 432 U.S. 173 (1977) .............................. 12

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ................. 18, 19

Meyer v. Grant, 486 U.S. 414 (1988) .................................... 11 

Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009), 

cert. denied, 560 U.S. 904 (2010) ....................................... 14

Moore v. Ogilvie, 394 U.S. 814 (1969) .................................. 12

Rosario v. Rockefeller, 410 U.S. 752 (1973) ........................ 12

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

cert. denied, 532 U.S. 904 (2001) ....................................... 14
V 

Cases—Continued: Page 

Shalala v. Illinois Council on Long Term Care, Inc., 

529 U.S. 1 (2000) ................................................................. 11

Sosna v. Iowa, 419 U.S. 393 (1975) ...................................... 11

Spencer v. Kemna, 523 U.S. 1 (1998) ................................... 10 

Storer v. Brown, 415 U.S. 724 (1974) ................................... 12

United States Parole Comm’n v. Geraghty, 445 U.S. 

388 (1980) ............................................................................. 12

United States v. Juvenile Male, 564 U.S. 932 (2011) ..... 9, 10 

Weinstein v. Bradford, 423 U.S. 147 (1975) .................... 7, 11 

Wilson v. Birnberg, 667 F.3d 591 (5th Cir.), 

cert. denied, 133 S. Ct. 32 (2012) ....................................... 14 

Constitution, statutes and regulation:

U.S. Const.: 

Art. III .................................................................... 8, 15, 16 

Amend. I ......................................................... 3, 5, 8, 18, 19 

Federal Election Campaign Act of 1971, 52 U.S.C. 

30101 et seq. (Supp. II 2014) ................................................ 1 

52 U.S.C. 30101(4)(A) ........................................................ 2 

52 U.S.C. 30101(8)(A) ........................................................ 2 

52 U.S.C. 30101(9)(A) ........................................................ 2 

52 U.S.C. 30101(11) ........................................................... 2 

52 U.S.C. 30106(b)(1) ........................................................ 3 

52 U.S.C. 30107(a)(8) ......................................................... 3 

52 U.S.C. 30108 .................................................................. 3 

52 U.S.C. 30109 .................................................................. 3 

52 U.S.C. 30109(d) ............................................................. 3 

52 U.S.C. 30111(a)(8) ......................................................... 3 

52 U.S.C. 30111(d) ............................................................. 3 

52 U.S.C. 30116(a)(1) ......................................................... 2 
VI 

Statutes and regulation—Continued: Page 

52 U.S.C. 30116(a)(1)(A) ............................................. 2, 17 

52 U.S.C. 30116(a)(1)(B) ................................................... 2 

52 U.S.C. 30116(a)(1)(D) ................................................... 2 

52 U.S.C. 30116(a)(2) ..................................................... 2, 3 

52 U.S.C. 30116(a)(2)(A) ................................................. 17 

52 U.S.C. 30116(a)(4) ......................................................... 2 

11 C.F.R. 100.5(a) .................................................................... 2 

Miscellaneous: 

80 Fed. Reg. 5752 (Feb. 3, 2015) ...................................... 2, 17 

 
(1) 

In the Supreme Court of the United States 

No. 16-109 

STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY 

DEMOCRATS, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. A1-

A28) is reported at 814 F.3d 221. The opinion of the 

district court (Pet. App. A32-A53) is reported at 93 

F. Supp. 3d 466. 

JURISDICTION 

The judgment of the court of appeals was entered 

on February 23, 2016. A petition for rehearing was 

denied on April 22, 2016 (Pet. App. A56-A57). The 

petition for a writ of certiorari was filed on July 21, 

2016. The jurisdiction of this Court is invoked under 

28 U.S.C. 1254(1). 

STATEMENT 

1. In order to curb political corruption and the appearance of such corruption, the Federal Election 

Campaign Act of 1971 (FECA), 52 U.S.C. 30101 et seq. 
2 

(Supp. II 2014), limits the “contributions” (including 

donations to candidates or parties) that a “person” 

may make in connection with a federal election. 52 

U.S.C. 30116(a)(1); see Buckley v. Valeo, 424 U.S. 1, 26-

29 (1976) (per curiam); see also 52 U.S.C. 30101(8)(A) 

(definition of “contribution”). As adjusted for inflation, the FECA limits generally allow a person to 

contribute up to $2700 per election (counting primary 

and general elections separately) to a candidate. 52 

U.S.C. 30116(a)(1)(A); 80 Fed. Reg. 5752 (Feb. 3, 2015) 

(inflation adjustment). A person also may generally 

contribute up to $33,400 per year to the national committees of a political party, and up to $10,000 per year 

to the state and local committees of a political party. 52 

U.S.C. 30116(a)(1)(B) and (D); 80 Fed. Reg. at 5752. 

FECA’s definition of “person” generally includes 

political committees, which are defined as any “committee, club, association, or other group of persons” 

that receives more than $1000 in contributions or 

makes more than $1000 in “expenditures” (outlays of 

money, other than contributions, intended to influence 

an election) during a calendar year. 52 U.S.C. 

30101(4)(A); see 52 U.S.C. 30101(9)(A) and (11); 11 

C.F.R. 100.5(a). A political committee that is not controlled by a candidate or political party, has received 

contributions from more than 50 people, has contributed to five or more federal candidates, and has been 

registered for at least six months is considered a “multicandidate political committee.” 52 U.S.C. 30116(a)(4). 

Multicandidate political committees are subject to 

different contribution limits: they may contribute up 

to $5000 per election to a candidate, up to $15,000 per 

year to the national committees of a political party, 
3 

and up to $5000 per year to the state and local committees of a political party. 52 U.S.C. 30116(a)(2). 

The Federal Election Commission (FEC or Commission) is vested with statutory authority over the 

administration, interpretation, and civil enforcement 

of FECA and other federal campaign-finance statutes. 

The Commission is empowered to “formulate policy” 

with respect to FECA, 52 U.S.C. 30106(b)(1); “to make, 

amend, and repeal such rules * * * as are necessary 

to carry out the provisions of [FECA],” 52 U.S.C. 

30107(a)(8); see 52 U.S.C. 30111(a)(8) and (d); to issue 

written advisory opinions concerning the application 

of FECA and Commission regulations to any specific 

proposed transaction or activity, 52 U.S.C. 30108; and 

to civilly enforce FECA, 52 U.S.C. 30109. The Department of Justice prosecutes criminal violations of 

FECA. See 52 U.S.C. 30109(d). 

2. Petitioner Stop Reckless Economic Instability 

Caused by Democrats (Stop PAC) is a political committee. Pet. App. A7. Its founders first discussed its 

formation as early as November 2013, but did not 

register it until March 2014. C.A. App. 163; Pet. App. 

A7. By April 2014, Stop PAC had more than 50 contributors and had contributed to five federal candidates. Pet. App. A7. 

In April 2014, Stop PAC, along with other plaintiffs, filed suit against the FEC to challenge certain 

contribution limits. Pet. App. A7-A9. In the first two 

counts, Stop PAC asserted First Amendment and 

equal-protection challenges to the limit on contributions to a candidate by a person, as applied to entities 

that would otherwise qualify as multicandidate political committees but that had not yet been registered 

for six months. Ibid. In the third count, petitioners 
4 

Tea Party Leadership Fund (a multicandidate political 

committee)*

 and Alexandria Republican City Committee (a local political-party committee) brought an 

equal-protection challenge to the $15,000 limit on 

contributions by a multicandidate political committee 

to a national political party committee and the $5000 

limit on contributions to state and local party committees. Id. at A9. 

The district court determined that “an adequate 

factual record [wa]s necessary for proper consideration of [petitioners’] constitutional claims.” D. Ct. 

Doc. 33, at 1 (June 18, 2014). It set a schedule under 

which discovery would conclude in September 2014, 

one day after Stop PAC would satisfy the six-month 

registration requirement and qualify as a multicandidate political committee. Pet. App. A7; D. Ct. Doc. 32 

(June 18, 2014). In late August 2014, petitioners filed 

a motion for petitioner American Future PAC—a 

political committee that had more than 50 contributors, had contributed to five candidates, and had registered earlier that month—to join the suit as an additional plaintiff. Pet. App. A9-A10, A37-A38. In early 

 

*

 Petitioner Tea Party Leadership Fund had itself previously 

sued to enjoin the FEC from enforcing the statutory requirement 

that a political committee that has 50 contributors and contributes 

to at least five candidates must be registered for six months in 

order to qualify for the increased ($5000) limit on contributions to 

candidates. See 12-cv-01707 Docket entry No. 1 (D.D.C. Oct. 18, 

2012). The district court, citing “delay in filing [the] motion,” 

declined to entertain a request for emergency pre-election relief. 

Docket entry No. 10, at 3 (Nov. 2, 2012). Tea Party Leadership 

Fund, which qualified as a multicandidate political committee 

three days after the 2012 election, later voluntarily dismissed its 

lawsuit. Docket entry No. 50 (Nov. 7, 2013). 
5 

October 2014, after Stop PAC had already qualified as 

a multicandidate political committee, the district court 

permitted American Future PAC, which had not yet 

qualified as a multicandidate political committee, to 

intervene. Id. at A10. In February 2015, while crossmotions for summary judgment filed in September 

2014 were still pending, American Future PAC itself 

qualified as a multicandidate political committee. Id.

at A11. Petitioners did not attempt to join any additional plaintiffs. 

The district court granted summary judgment to 

the FEC. Pet. App. A32-A53. As a threshold matter, 

the court expressed skepticism about whether it had 

jurisdiction to entertain Stop PAC’s and American 

Future PAC’s challenge to the requirement that an 

otherwise-qualified political committee must be registered for six months before it can contribute $5000 to 

a federal candidate. Id. at A40-A44. The court noted 

“substantial issues” with respect to standing, “given 

the ability of [such] entities * * * to control the 

timing of their registrations relative to any particular 

election.” Id. at A42. The court also noted that both 

Stop PAC and American Future PAC had already 

satisfied the six-month requirement that they were 

challenging, and found it “unclear” whether any exception to usual mootness principles would apply. Id.

at A43; see id. at A41. Nevertheless, the court “assume[d], without deciding,” that those petitioners had 

standing and that their claims were not moot. Id. at 

A42; see id. at A44. 

The district court rejected all of petitioners’ claims 

on the merits. Pet. App. A45-A53. First, the court 

concluded that Stop PAC’s and American Future 

PAC’s First Amendment as-applied challenges to the 
6 

limit on contributions to a political candidate by a 

person were foreclosed by this Court’s decisions in 

Buckley v. Valeo and California Medical Association 

v. FEC, 453 U.S. 182 (1981). Pet. App. A45-A49. Second, the court rejected petitioners’ equal-protection 

challenges to that limit and to the limits on contributions by multicandidate political committees to 

political-party committees. Id. at A49-A53. Citing evidence obtained by the FEC during discovery, the 

district court explained, inter alia, that newer political committees are not similarly situated to more 

“entrenched” multicandidate political committees. Id.

at A51. 

3. The court of appeals directed a jurisdictional 

dismissal of two counts and affirmed the merits dismissal of the third. Pet. App. A1-A28. 

a. The court of appeals concluded that, whether or 

not petitioners originally had standing to bring their 

as-applied challenges to the FECA limit on contributions to candidates by persons, those challenges had 

become moot. Pet. App. A12-A20. The court noted 

that petitioners “do not deny that once Stop PAC and 

American Future [PAC] became [multicandidate political committees] and the contribution limit they are 

challenging therefore ceased to apply to them, the 

district court was no longer in position to prevent any 

threatened injury (or provide redress for any past 

injury).” Id. at A15. The court also determined that, 

because it was impossible for the challenged law to 

again affect these petitioners, the case did not fall 

within the exception to mootness doctrine for injuries 

that are “capable of repetition, yet evading review.” 

Ibid.; see id. at A14-A20. The court observed that this 

Court has described that doctrine (outside the class-
7 

action context) as “limited to” circumstances that 

involve, inter alia, “a reasonable expectation that the

same complaining party would be subjected to the 

same action again.” Id. at A14 (quoting Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam)). 

The court of appeals rejected petitioners’ contention 

that, “in election-related cases, the same-complainingparty element need not be satisfied.” Pet. App. A15. 

The court noted petitioners’ reliance on a dissent by 

Justice Scalia, in which he had cited election-related 

cases in which this Court had not expressly applied 

that requirement, and statements by some circuits 

that the requirement does not apply to challenges to 

election laws. Id. at A16-A17 (citing, inter alia, Honig

v. Doe, 484 U.S. 305, 335-336 (1988) (Scalia, J., dissenting)). The court of appeals observed, however, 

that this Court “has actually applied the samecomplaining-plaintiff rule in two relatively recent election cases.” Id. at A18; see id. at A18-A19 (discussing 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007), and Davis v. FEC, 554 U.S. 724 (2008)). The 

court of appeals concluded that it should “follow the 

rule that [this] Court has actually articulated,” id. at 

A17, and to which its own precedents had adhered, id.

at A19. 

b. The court of appeals also rejected petitioners’ 

equal-protection challenge to the limits on contributions to a political party by a multicandidate political 

committee. Pet. App. A23-A28. The court found “no 

discrimination” against multicandidate political committees that would need “to be justified.” Id. at A27. 

The court of appeals explained that, under this 

Court’s decision in California Medical Association, 

“determining whether actionable discrimination has 
8 

occurred” requires “compar[ing] the treatment the 

relevant respective groups receive under FECA overall, not just the treatment the groups receive under 

the specific provision of FECA being challenged.” 

Pet. App. A26-A27. It found that petitioners “cannot 

show that FECA overall burdens the First Amendment rights of political committees that have become 

[multicandidate political committees] more than it 

burdens the rights of political committees that have 

satisfied all [multicandidate political committee] requirements” but have not yet been registered for six 

months. Id. at A27. 

The court of appeals determined that the lower limits on contributions to a political party by a multicandidate political committee are “more than counteracted” by the higher limits on contributions to candidates. Pet. App. A27. “To the extent that there is a 

difference in treatment,” the court continued, “it appears to us to favor the [multicandidate political committees] in that the total amount of money [multicandidate political committees] can contribute overall will 

be substantially greater since there are so many different individual candidates to which the respective 

entities can contribute.” Ibid. 

ARGUMENT 

The court of appeals correctly held that petitioners’ 

as-applied challenges to the FECA limit on contributions to a candidate by a person are moot. The court 

of appeals also correctly rejected petitioners’ equalprotection challenge to the limits on contributions by a 

multicandidate political committee to a political party. 

Further review is not warranted. 

1. a. Article III requires that, in order “[t]o qualify as a case fit for federal-court adjudication, an actual 
9 

controversy must be extant at all stages of review.” 

Arizonans for Official English v. Arizona, 520 U.S. 

43, 67 (1997) (internal quotation marks and citation 

omitted). If the plaintiff ceases to have a “personal 

stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and 

must be dismissed as moot.” Campbell-Ewald Co. v. 

Gomez, 136 S. Ct. 663, 669 (2016) (internal quotation 

marks and citation omitted) (quoting Genesis Healthcare 

Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013)). 

It is undisputed that petitioners lack any personal 

stake, either now or in the future, in the contribution 

limit applicable to a political committee that would 

otherwise qualify as a multicandidate political committee, but that has not been registered for six months. 

Although Stop PAC and American Future PAC were 

subject to that limit earlier in this litigation, the limit 

long ago ceased to apply to them. They are now multicandidate political committees that can lawfully 

contribute up to $5000, rather than $2700, to a federal 

candidate. See Pet. App. A15; see also 52 U.S.C. 

30116(a)(1)(A) and (2); 80 Fed. Reg. at 5752. 

Notwithstanding their current and prospective legal status, petitioners seek to avoid a jurisdictional 

dismissal by relying (Pet. 21-34) on the “exception to 

mootness for disputes that are capable of repetition, 

yet evading review.” United States v. Juvenile Male, 

564 U.S. 932, 938 (2011) (per curiam) (internal quotation marks and citations omitted). “This exception, 

however, applies only where ‘(1) the challenged action 

is in its duration too short to be fully litigated prior to 

cessation or expiration, and (2) there is a reasonable 

expectation that the same complaining party will be 

subject to the same action again.’” Ibid. (brackets omit-
10 

ted) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). 

It is undisputed that the second condition is not satisfied here. Because neither Stop PAC nor American 

Future PAC will ever revert to its pre-multicandidate 

political committee status, it is impossible that “the 

same complaining party will be subject to the same 

action again.” Ibid. Petitioners’ jurisdictional argument thus rests on the contention (Pet. 21) that the 

second requirement should not apply in “election law 

cases.” 

That contention is unsound. Petitioners do not suggest that any decision of this Court has announced 

such a categorical rule, whereby disputes could and 

would be litigated by parties with no actual or prospective stake in the outcome. And such a rule would 

be inconsistent with this Court’s recent election-law 

decisions in Davis v. FEC, 554 U.S. 724 (2008), and 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007) (WRTL), in which the Court, in applying the 

capable-of-repetition exception, has examined whether 

the same-plaintiff requirement was satisfied. See 

Davis, 554 U.S. at 735-736 (holding that the requirement of “a reasonable expectation that the same complaining party will be subject to the same action 

again” was satisfied where the plaintiff had announced 

his intention to run for office again) (citation omitted); 

WRTL, 551 U.S. at 463-464 (“hold[ing] that there 

exists a reasonable expectation that the same controversy involving the same party will recur,” when the 

plaintiff alleged its intent to engage in “materially 

similar” conduct in future elections) (internal quotation marks and citation omitted). 

The Court has previously applied the same-plaintiff 

requirement in other election-law cases as well. See 
11 

First Nat’l Bank v. Bellotti, 435 U.S. 765, 774-775 

(1978) (noting same-plaintiff requirement and finding 

“reasonable expectation that appellants again will be 

subject to the threat of prosecution under” challenged 

election law) (internal quotation marks and citation 

omitted); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) 

(noting requirement and finding it “reasonable to 

expect that the same controversy will recur between 

these two parties”). “This Court does not normally 

overturn * * * earlier authority sub silentio,” Shalala v. Illinois Council on Long Term Care, Inc., 529 

U.S. 1, 18 (2000), and petitioners’ suggestion (Pet. 22-

26) that it has done so here cannot be squared with 

either recent or past practice. 

Most of the decisions on which petitioners rely 

(Pet. 22-26)—and all of the decisions that Justice 

Scalia identified in his dissent in Honig v. Doe, 484 

U.S. 305, 335 (1988) (Scalia, J., dissenting), as applying a relaxed version of the capable-of-repetition 

doctrine—pre-date 1975. That is the year in which 

the Court first recognized the same-plaintiff requirement, explaining in Weinstein v. Bradford, 423 U.S. 

147 (1975) (per curiam), that Sosna v. Iowa, 419 U.S. 

393 (1975), had “decided that in the absence of a class 

action, the ‘capable of repetition, yet evading review’ 

doctrine was limited to the situation where two elements combined: (1) the challenged action was in its 

duration too short to be fully litigated prior to its 

cessation or expiration, and (2) there was a reasonable 

expectation that the same complaining party would be 

subjected to the same action again.” Weinstein, 423 

U.S. at 149. Justice Scalia accordingly noted the possibility that pre-1975 election-law capable-of-repetition 
12 

cases were “limited to their facts” by later decisions. 

Doe, 484 U.S. at 336 (Scalia, J., dissenting). 

In any event, the normal requirements of the capableof-repetition exception either were satisfied, or presumably could have been satisfied, in each of the cases 

cited by petitioners. See Barr v. Galvin, 626 F.3d 99, 

105 (1st Cir. 2010) (observing that in some of this 

Court’s cases, “the ‘same complaining party’ requirement, though satisfied, is not always explicitly stated”), cert. denied, 132 S. Ct. 368 (2011). Two of the 

cases were class actions, a specialized context in which 

the Court has held that a class’s claims may remain 

capable of repetition even when the lead plaintiff’s 

claims are not. United States Parole Comm’n v.

Geraghty, 445 U.S. 388, 398 (1980); see Rosario v.

Rockefeller, 410 U.S. 752, 755 n.4 (1973); Dunn v.

Blumstein, 405 U.S. 330, 333 n.2 (1972). And in the 

other cases, the plaintiffs included candidates who 

would again be subject to the challenged ballot-access 

laws if they ran for office in a future election. See 

Anderson v. Celebrezze, 460 U.S. 780, 782 (1983); 

Mandel v. Bradley, 432 U.S. 173, 173-174 (1977) (per 

curiam); American Party of Tex. v. White, 415 U.S. 

767, 770-771 (1974); Storer v. Brown, 415 U.S. 724, 

726-728 (1974); Moore v. Ogilvie, 394 U.S. 814, 815-816 

(1969). Although the Court may not have expressly 

required those candidates to allege that they intended 

to run again, see, e.g., Moore, 394 U.S. at 819 (Stewart, J., dissenting) (noting absence of such allegation), 

any inconsistencies in that regard cannot be understood as implicit deviations from usual mootness principles. See, e.g., Lewis v. Casey, 518 U.S. 343, 351 

(1996) (decision that “made no mention of an actualinjury requirement * * * can hardly be thought to 
13 

have eliminated that constitutional prerequisite”). 

Petitioners identify no election-law case in which the 

Court found the capable-of-repetition exception to be 

satisfied even though the challenged law could not 

possibly affect the same plaintiff in the future. 

 b. Although courts of appeals have expressed differing views on whether the same-plaintiff requirement applies in election-law cases, the issue is rarely 

outcome-determinative and does not warrant this 

Court’s intervention. 

Because the same-plaintiff requirement is easily 

satisfied in many election-law cases, some of the circuit decisions cited by petitioners as dispensing with 

that requirement (including the one they assert to 

present a situation “materially identical” to this case, 

Pet. 31) do so only after explicitly finding the requirement to be met. See, e.g., Catholic Leadership 

Coal. of Tex. v. Reisman, 764 F.3d 409, 423-423 (5th 

Cir. 2014) (finding that challenged law imposed a 

“continuing limitation” that “these Plaintiffs will again 

be subjected to”); Center for Individual Freedom v.

Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (finding 

that the plaintiff “may again feel the need to censor 

itself to avoid possible application of௘௘” the challenged 

law), cert. denied, 549 U.S. 1112 (2007); Lawrence v.

Blackwell, 430 F.3d 368, 371-372 (6th Cir. 2005) (finding that, “[a]lthough [the plaintiff] has not specifically 

stated that he plans to run in a future election, he is 

certainly capable of doing so, and under the circumstances it is reasonable to expect that he will do so”), 

cert. denied, 547 U.S. 1178 (2006); Corrigan v. City of 

Newaygo, 55 F.3d 1211, 1214 (6th Cir.) (finding “reasonable expectation that future candidates for whom 

[the plaintiff voters] wish to vote will be denied a place 
14 

on the ballot under the [challenged] ordinance”), cert. 

denied, 516 U.S. 943 (1995); Hatten v. Rains, 854 F.2d 

687, 690 n.4 (5th Cir. 1988) (finding that the plaintiff 

“retains an interest in the litigation generally, because 

he remains permanently barred from future judicial 

elections in Texas”), cert. denied, 490 U.S. 1106 (1989). 

The other decisions cited by petitioners involved 

circumstances that were potentially capable of recurring if, for example, the plaintiff candidate or political 

party sought to participate in a similar way in a future 

election. See Libertarian Party of Mich. v. Johnson, 

714 F.3d 929, 930-932 (6th Cir.) (candidate), cert. denied, 134 S. Ct. 825 (2013); Wilson v. Birnberg, 667 F.3d 

591, 594-597 (5th Cir.) (candidate), cert. denied, 133 

S. Ct. 32 (2012); Moore v. Hosemann, 591 F.3d 741, 742-

745 (5th Cir. 2009) (candidate), cert. denied, 560 U.S. 

904 (2010); Kucinich v. Texas Democratic Party, 563 

F.3d 161, 163-165 (5th Cir. 2009) (candidate); Caruso v.

Yamhill Cnty., 422 F.3d 848, 851, 853-854 (9th Cir. 

2005) (petition circulator), cert. denied, 547 U.S. 1071 

(2006); Majors v. Abell, 317 F.3d 719, 722-723 (7th Cir. 

2003) (candidate); Schaefer v. Townsend, 215 F.3d 1031, 

1032-1033 (9th Cir. 2000) (candidate), cert. denied, 532 

U.S. 904 (2001); Dart v. Brown, 717 F.2d 1491, 1492-

1493 & n.3 (5th Cir. 1983) (candidate and political party), cert. denied, 469 U.S. 825 (1984); Joyner v. Mofford, 

706 F.2d 1523, 1526-1527 (9th Cir.) (candidate), cert. 

denied, 464 U.S. 1002 (1983); see also Corrigan, 55 F.3d 

at 1212 (candidates). At least in some circumstances, 

courts may construe a plaintiff’s continued pursuit of 

a challenge to an election law, even after the election 

has already occurred, as implicitly indicating that the 

plaintiff expects again to be affected by the law. 
15 

Elections of course recur at regular intervals, and 

many candidates, voters, and advocacy groups repeat 

substantially the same conduct during each election 

cycle. It therefore may be that plaintiffs who establish an initial injury from a challenged election law will 

usually be able to satisfy the same-plaintiff requirement of the capable-of-repetition exception, by showing that the law’s application to a future election will 

cause them the same injury. But sometimes, as in this 

case, recurrence of the controversy between the same 

parties will be either legally impossible or demonstrably unlikely. See, e.g., Barilla v. Ervin, 886 F.2d 1514, 

1519-1521 (9th Cir. 1989) (finding challenge to law 

moot where election had occurred and law had been 

amended). 

When that occurs, dismissal of the suit on mootness 

grounds accords with bedrock Article III principles. 

“In our system of government, courts have no business deciding legal disputes or expounding on law in 

the absence of [an Article III] case or controversy.” 

Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) 

(internal quotation marks and citation omitted). As 

one aspect of its Article III jurisprudence, the Court 

has “repeatedly held that an actual controversy must 

exist not only at the time the complaint is filed, but 

through all stages of the litigation.” Ibid. (internal 

quotation marks and citation omitted). “No matter 

how vehemently the parties continue to dispute the 

lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ 

particular legal rights.” Id. at 727 (internal quotation 

marks and citation omitted). Petitioners make no 

meaningful effort to explain why elimination of the 
16 

same-plaintiff requirement in election-law cases, so as 

to allow continuing litigation at the behest of a plaintiff who lacks any continuing or prospective stake in 

the outcome, would be consistent with the appropriate 

role of Article III courts. 

c. In any event, this case would be an unsuitable 

vehicle for addressing the mootness question because 

the lower courts have also questioned petitioners’ 

standing. The district court perceived “substantial 

issues” about whether a cognizable injury-in-fact 

exists in this case, given the ability of political committees “to control the timing of their registrations 

relative to any particular election.” Pet. App. A42; 

see, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 

1138, 1152-1153 (2013) (finding “self-inflicted injuries” 

insufficient to provide standing). Although neither 

court below decided the case on standing grounds, the 

potential for finding a jurisdictional defect on that 

basis could impede consideration of the question presented. 

2. The Court should also deny certiorari on the 

second question presented. 

a. In California Medical Association v. FEC, 453 

U.S. 182 (1981), this Court rejected an equal-protection 

challenge to certain contribution limits on the ground 

that the limits were imposed on entities that, overall, 

received favorable treatment under FECA. Id. at 

200-201. The plaintiff in that case, an unincorporated 

association, claimed that limits on its contributions to 

political committees were unjustifiably discriminatory 

because corporations and labor unions could form 

attached political committees and contribute unlimited 

amounts to those attached committees. Id. at 200. The 

Court reasoned, however, that it “need not consider 
17 

* * * whether the discrimination alleged by appellants is justified” because it “f[ound] no such discrimination.” Ibid. “Appellants’ claim of unfair treatment,” the Court explained, “ignores the plain fact 

that the statute as a whole imposes far fewer restrictions on individuals and unincorporated associations than it does on corporations and unions.” Ibid.; 

see id. at 200-201 (discussing differences in regulation). “The differing restrictions placed on individuals 

and unincorporated associations, on the one hand, and 

on unions and corporations, on the other,” the Court 

continued, “reflect a judgment by Congress that these 

entities have differing structures and purposes, and 

that they therefore may require different forms of 

regulation in order to protect the integrity of the 

electoral process.” Id. at 201. 

The reasoning of California Medical Association 

forecloses petitioners’ equal-protection challenge to 

FECA’s limit on the contributions a multicandidate 

political committee can make to a political party. Pet. 

App. A23-A28. Petitioners “cannot show” that the 

“overall” restrictions on multicandidate political committees are more burdensome than the restrictions on 

political committees that have not been registered for 

six months but would otherwise qualify as multicandidate political committees. Id. at A27. Rather, FECA 

as a whole “appears * * * to favor” multicandidate 

political committees, which may contribute $5000 per 

election, rather than $2700 per election, to a candidate. Ibid.; see 52 U.S.C. 30116(a)(1)(A) and (2)(A); 80 

Fed. Reg. at 5752. That higher limit “more than counteract[s]” the lower limits on contributions to political 

parties because “there are so many different individual candidates to which the respective entities can 
18 

contribute.” Pet. App. A27. Accordingly, as in California Medical Association, “there is no discrimination to be justified.” Ibid. 

b. Petitioners identify no court of appeals decision 

that has reached a different conclusion with respect to 

the FECA provision that petitioners challenge (or any 

similar provision in a state law). And, contrary to 

petitioners’ assertion (Pet. 35-40), the court of appeals’ decision does not conflict with this Court’s decisions in Davis and McCutcheon v. FEC, 134 S. Ct. 

1434 (2014). 

Neither Davis nor McCutcheon involved either an 

equal-protection claim or the particular FECA provision at issue here. In Davis, the Court held that the 

First Amendment precluded Congress from creating a 

scheme in which candidates who faced self-funded 

opponents could receive extra contributions. 554 U.S. 

at 736-745. And in McCutcheon, the Court held that 

the First Amendment precluded Congress from imposing an aggregate limit on the total amount that 

individuals may contribute to candidates in an election 

cycle. 134 S. Ct. at 1442 (opinion of Roberts, C.J.); id.

at 1462-1464 (Thomas, J., concurring in the judgment). 

Petitioners rely (Pet. 35-38) on those decisions to 

argue that the court of appeals failed to identify a 

sufficient anticorruption interest, of the sort that this 

Court requires under the First Amendment, to support the contribution limit that they have challenged 

here. But in the context of an equal-protection challenge, a court “need not consider * * * whether the 

discrimination alleged * * * is justified” if it “find[s] 

no such discrimination.” California Med. Ass’n, 453 

U.S. at 200. Here, as in California Medical Association, an examination of FECA’s provisions “as a whole,” 
19 

ibid., illustrates that the entity allegedly discriminated against in fact receives more favorable treatment 

under FECA. See Pet. App. A27. 

The court of appeals’ focus on how FECA treats 

multicandidate political committees “overall” (Pet. 

App. A27), and its corresponding rejection of a piecemeal limit-by-limit approach to equal-protection analysis, accords with California Medical Association. It 

does not, as petitioners suggest (Pet. 38), contravene 

McCutcheon by approving a “tradeoff[] among First 

Amendment rights.” This case differs from McCutcheon with respect to both the constitutional basis for 

the claim (here, equal protection; there, the First 

Amendment) and the operation of the challenged 

provision (here, base limits on contributions to political parties; there, an aggregate limit on contributions 

to all candidates). While the aggregate cap at issue in 

McCutcheon effectively required an individual to 

“limit the number of candidates he support[ed],” potentially forcing him “to choose which of several policy 

concerns he will advance,” 134 S. Ct. at 1448 (opinion 

of Roberts, C.J.), the provisions at issue here permit a 

multicandidate political committee to contribute up to 

the limits to as many political party committees as it 

chooses. The fact that the aggregate cap violated the 

First Amendment does not imply that the provisions 

here violate equal-protection principles. 
20 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

LISA J. STEVENSON

Deputy General Counsel—

Law 

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel 

KEVIN P. HANCOCK

Attorney 

Federal Election 

Commission 

IAN HEATH GERSHENGORN

Acting Solicitor General 

SEPTEMBER 2016