UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) Civ. No. 11-562 (RLW) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM 

) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO 

CERTIFY FACTS AND QUESTIONS AND IN SUPPORT 

OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

Anthony Herman 

General Counsel 

 

David Kolker 

Associate General Counsel 

 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

 

Harry J. Summers 

Assistant General Counsel 

Kevin P. Hancock 

 Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

July 6, 2012 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 1 of 48
i 

 TABLE OF CONTENTS 

I. BACKGROUND ...........................................................................................................2 

II. STANDARD OF REVIEW ...........................................................................................5 

A. The Court May Certify Only Substantial Constitutional Questions 

 to the En Banc Court of Appeals under 2 U.S.C. § 437h .................................5 

B. If the LNC’s Constitutional Question Fails to Qualify for Certification, 

Summary Judgment Is Appropriate ...................................................................7 

III. THE LNC’S CONSTITUTIONAL QUESTION IS NOT SUBSTANTIAL 

AND SHOULD NOT BE CERTIFIED TO THE EN BANC COURT OF 

APPEALS ......................................................................................................................8 

A. The Contribution Limit Does Not Burden Any Cognizable First 

Amendment Rights ............................................................................................8 

1. The Deceased Have No Constitutional Rights, Let Alone Any 

 Particular First Amendment Right to Make Contributions ...................8 

2. The Contribution Limit As Applied to Bequeathed Contributions 

Does Not Burden National Party Committees’ First Amendment 

Rights ...................................................................................................12 

a. There Is No Constitutional Right to Receive a 

Contribution from the Deceased ..............................................12 

b. A First Amendment Analysis of the Contribution Limit 

Would Focus on the Burden on the Contributor and the 

Democratic Process, Not on the Recipient ..............................13 

B. The Contribution Limit as Applied to Bequeathed Contributions Is 

Closely Drawn to Match the Important Government Interest of 

Preventing Corruption and Its Appearance ......................................................15 

1. Intermediate Scrutiny Applies to Contribution Limits ........................15 

2. Unlimited Bequeathed Contributions to National Party Committees Would Pose a Threat of Corruption and Its Appearance ..............18 

a. McConnell Found that Unlimited Contributions to 

National Party Committees Pose a Threat of Corruption 

and Its Appearance ...................................................................20 

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b. Unlimited Bequeathed Contributions to National Party 

Committees Would Be Functionally Equivalent to 

Unlimited Soft-Money Contributions ......................................23 

i. Unlimited Bequeathed Contributions Would 

Allow Donors to Circumvent FECA’s Limits on 

Contributions to National Party Committees ...............24 

 

ii. Unlimited Bequeathed Contributions to National 

Party Committees Could Directly Benefit Federal 

Candidates, but Need Not in Order to Pose a 

Threat of Corruption and Its Appearance ....................26 

iii. National Party Committees Could Sell Preferential 

Access to Their Federal Candidates and Officeholders in Exchange for Recorded Bequests ...............28 

iv. National Party Committees Could Sell Preferential 

Access to Their Federal Candidates and Officeholders for the Family, Friends, or Associates of a 

Decedent Who Left a Large Bequest for 

the Party .......................................................................31 

 

v. The LNC’s Status as a Minor Party Does Not 

Alter the Potential for Corruption and Its Appearance 

If the LNC Could Accept Unlimited Bequests ............33 

3. The Contribution Limit as Applied to Bequeathed 

Contributions to National Party Committees Is Closely Drawn ..........35 

a. The Contribution Limit Is Closely Drawn to Serve an 

Anti-Corruption Interest...........................................................35 

b. The LNC Cannot Demonstrate that the Contribution 

Limit as Applied to Bequeathed Contributions Has 

Prevented It from Amassing the Resources Necessary 

for Effective Advocacy ............................................................37 

IV. CONCLUSION ............................................................................................................40 

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TABLE OF AUTHORITIES 

Cases Page

Bread Political Action Comm. v. FEC, 455 U.S. 577 (1982) ....................................................6 

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

Buckley v. Valeo, 387 F. Supp. 135 (D.D.C.), remanded on other grounds, 

519 F.2d 817 (D.C. Cir. 1975) .............................................................................................5 

Burson v. Freeman, 504 U.S. 191 (1992) ................................................................................19 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ................................................................. 5-6, 16 

Cal. Med. Ass’n v. FEC, 641 F.2d 619 (9th Cir. 1980) .............................................................5 

Cal. Water Service Co. v. City of Redding, 304 U.S. 252 (1938) ..............................................6 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010) ....................................................................6

Citizens United v. FEC, 130 S. Ct. 876 (2010) ....................................................................1, 23 

Competitive Enter. Inst. v. U.S. Dep’t of Transp., 

856 F.2d 1563 (D.C. Cir. 1988) .........................................................................................12 

Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009) .....................................................................14 

Estate of Gaither ex rel. Gaither v. District of Columbia, 

655 F. Supp. 2d 69 (D.D.C. 2009) .......................................................................................9 

FEC v. Beaumont, 539 U.S. 146 (2003) ..................................................................................16 

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

533 U.S. 431 (2001) (“Colorado II”)............................................................... 16, 19, 27-28 

FEC v. Lance, 635 F.2d 1132 (5th Cir. 1981) ...........................................................................5 

FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480 (1985) ....................................36 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) ......................................................16 

Ford v. Moore, 237 F.3d 156 (2d Cir. 2001) .............................................................................8 

Fox v. Leavitt, 572 F. Supp. 2d 135 (D.D.C. 2008) ...................................................................9 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 4 of 48
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Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) ....................................................... 6-7 

In re Cao, 619 F.3d 410 (5th Cir. 2010), cert. denied, 131 S. Ct. 1718 (2011) ......................15 

Irving Trust Co. v. Day, 314 U.S. 556 (1942) .........................................................................10 

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) ............................................................. 6-7 

Knowlton v. Moore, 178 U.S. 41 (1900) ..................................................................................10 

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) .............................................................6 

McConnell v. FEC, 540 U.S. 93 (2003), overruled in part on other grounds by 

Citizens United v. FEC, 130 S. Ct. 876 (2010) .......................................................... passim 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .........................................................31

Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) ..........................................................................5 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ................................................16, 37, 39 

Randall v. Sorrell, 548 U.S. 230 (2006) ................................................................ 14, 16, 37-38 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.) (“RNC”) 

(three-judge court), aff’d, 130 S. Ct. 3544 (2010) .................................................15, 23, 34 

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .........................................................................14 

Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir. 1980) ...............................................8 

United States v. Burnison, 339 U.S. 87 (1950) ........................................................................12 

United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir.), cert. denied, 

131 S. Ct. 673 (2010) ...........................................................................................................8 

United States v. Perkins, 163 U.S. 625 (1896) ........................................................................10 

Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979) ..................................................................8 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 

116 Stat. 81 (2002) ........................................................................................................... 1-2 

 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 5 of 48
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Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57 ..............................................1 

2 U.S.C. § 431(8)(A)(i) ........................................................................................................4 

2 U.S.C. § 437h ................................................................................................ 1, 3-7, 15, 40

2 U.S.C. § 437h(b) (1974) ...................................................................................................6 

2 U.S.C. § 437h(c) (1974) ................................................................................................ 6-7 

2 U.S.C. § 441a(a)(1)(B)..................................................................................................2, 4 

2 U.S.C. § 441a(c)(1) ...........................................................................................................2 

2 U.S.C. § 441i(a)(1)..........................................................................................4, 16, 34, 37 

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

§ 208(A), 88 Stat. 1263 (1974) ............................................................................................5 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

§ 112(2), 90 Stat. 475 (1976) ...............................................................................................2 

Pub. L. No. 98-620, § 402, 98 Stat. 3335 (1984) .......................................................................7 

Pub. L. No. 100-352, § 6(a), 102 Stat. 662 (1988) ....................................................................7 

11 C.F.R. § 110.1(b)(6) ..............................................................................................................9 

11 C.F.R. § 110.1(c)(3) ..............................................................................................................2 

Rules 

Federal Rule of Civil Procedure 11 ...........................................................................................6

Federal Rule of Civil Procedure 56(a) .......................................................................................7 

Administrative Materials 

FEC Advisory Op. 2004-02 ................................................................................................... 2-3 

FEC Advisory Op. 1999-14 .......................................................................................................9 

Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist 

Bundling Disclosure Threshold, 76 Fed. Reg. 8368-70 (Feb. 14, 2011) .............................2 

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Miscellaneous 

28 Am. Jur. Estates § 8 ............................................................................................................10 

79 Am. Jur. 2d Wills § 49 ........................................................................................................10 

79 Am. Jur. 2d Wills § 150 ......................................................................................................10 

120 Cong. Rec. 10562 (1974) ....................................................................................................5 

H.R. Rep. No. 98-985 (1984) .....................................................................................................7 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 7 of 48
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 As the Supreme Court has recognized, the “idea that large contributions to a national 

party can corrupt or, at the very least, create the appearance of corruption of federal candidates 

and officeholders is neither novel nor implausible.” McConnell v. FEC, 540 U.S. 93, 144 

(2003), overruled in part on other grounds by Citizens United v. FEC, 130 S. Ct. 876 (2010). 

Based on a record replete with “examples of national party committees peddling access to federal 

candidates and officeholders” in exchange for large “soft money” donations, the Court upheld 

the constitutionality of Congress’s effort to end those donations through the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 (2002), which amended the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57. McConnell, 540 U.S. at 142-89. 

Plaintiff Libertarian National Committee, Inc. (“LNC”) now seeks to partially reopen the 

floodgates closed by BCRA, claiming that the application of FECA’s contribution limits to 

bequests to political parties violates the First Amendment. Specifically, the LNC argues that it 

should be permissible for national political party committees to accept in a single calendar year 

unlimited bequeathed contributions to be spent on federal elections. 

The LNC’s argument fails. First, it is well-settled that the deceased have no First 

Amendment rights. Second, and in any event, FECA’s contribution limits are closely drawn to 

support important government interests in deterring corruption. And these important government 

interests are implicated equally for bequeathed contributions as they are for other contributions 

because donors could purchase preferential access to a party’s federal officeholders with 

promises of large bequests. 

Thus, the LNC has failed to raise a substantial question sufficient to qualify for en banc

review by the court of appeals pursuant to 2 U.S.C. § 437h, the extraordinary judicial review 

provision the LNC invokes. The Court should deny the LNC’s request for section 437h 

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certification, and the Federal Election Commission (“Commission” or “FEC”) should be granted 

summary judgment. 

I. BACKGROUND 

Plaintiff LNC is the national committee of the Libertarian Party. (Def. FEC’s Proposed 

Findings of Fact (“FEC Facts”) ¶ 2 (Docket No. 24).) Defendant FEC is an independent agency 

of the United States with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of FECA. (Id. ¶ 1.) 

FECA instructs that “no person shall make contributions . . . to the political committees 

established and maintained by a national political party . . . in any calendar year which, in the 

aggregate, exceed [$30,800].”1 2 U.S.C. § 441a(a)(1)(B) (“Contribution Limit”). There are 

three different types of national political party committees — national committees, House 

campaign committees, and Senate campaign committees — and political parties often maintain 

one of each. (FEC Facts ¶ 6.) The Contribution Limit applies independently to each of a 

political party’s national party committees. 11 C.F.R. § 110.1(c)(3). 

Construing the language of the Act, the Commission has determined that the Contribution 

Limit applies to funds contributed through bequests. “[T]he testamentary estate of a decedent is 

the successor legal entity to the testator and qualifies as a ‘person’ under the Act that is subject to 

the same limitations applicable to the decedent in the decedent’s lifetime.” (FEC Facts, Exh. 8 

(FEC Advisory Op. 2004-02) (Docket No. 24-2).) The Commission has also determined, 

 

1

 When 2 U.S.C. § 441a(a)(1)(B) was enacted in 1976, its limit was $20,000. See Federal 

Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 112(2), 90 Stat. 475, 487 

(1976). In 2003, it was increased to $25,000 and indexed for inflation. See BCRA, Pub. L. No. 

107-155, §§ 307(a)(2), 307(d), 116 Stat. 81 (2002) (codified as amended at 2 U.S.C. 

§§ 441a(a)(1)(B), 441a(c)(1)). Today, the inflation-adjusted limit stands at $30,800. See Price 

Index Adjustments for Contribution and Expenditure Limits and Lobbyist Bundling Disclosure 

Threshold, 76 Fed. Reg. 8368-70 (Feb. 14, 2011). 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 9 of 48
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however, that an estate is permitted to deposit a bequest that exceeds FECA’s applicable 

contribution limit into a third-party account, and then the estate may make annual FECAcompliant contributions from that account to the recipient committee, so long as the recipient 

does not exercise any control over the undistributed funds. (Id.) 

 In April 2007, Raymond Groves Burrington died, and his last will and testament 

contained a residuary bequest of 25% of his estate to the Libertarian Party. (FEC Facts ¶¶ 9-10.) 

In November 2008, Burrington’s estate informed the LNC that the bequest would amount to 

$217,734. (Id. ¶ 11.) The estate made contributions of $28,500 from the bequest to the LNC in 

December 2007 and March 2008, in compliance with the Contribution Limit as then adjusted for 

inflation. (Id. ¶ 16.) Attempting to comply with the FEC’s Advisory Opinions, the estate and 

the LNC agreed in 2008 to deposit the remaining $160,734 of the bequest into an escrow 

account, from which an escrow agent has since made annual contributions to the LNC in 

amounts complying with the Contribution Limit. (Id. ¶¶ 17-18.) The estates of other individuals 

who bequeathed funds to national party committees in excess of the Contribution Limit have 

similarly deposited the bequeathed funds into escrow accounts or trusts, and these estates have 

then made annual, FECA-compliant contributions from those accounts to national party 

committees. (Id. ¶ 19.) 

 In May 2011, the LNC filed its First Amended Complaint (“Complaint”) alleging that 

FECA, as applied to “the contribution, solicitation, acceptance, and spending of decedents’ 

bequests . . . violates the LNC’s First Amendment speech and associational rights and those of its 

supporters.” (First Am. Compl. (“Compl.”) ¶ 3 (Docket No. 13).) The Complaint also requested 

that the Court certify this matter to the en banc Court of Appeals for the District of Columbia 

Circuit pursuant to 2 U.S.C. § 437h. (Compl. ¶ 6.) The Commission requested that the parties 

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first be permitted to “create a factual record that is sufficient for th[e] court to determine which 

constitutional claims, if any, merit certification to the Court of Appeals.” (Def. FEC’s Answer 

and Affirmative Defense to the First Am. Compl. (“Answer”) ¶ 6 (Docket No. 15).) The parties 

completed discovery in February 2012 (Minute Order, Feb. 10, 2012), and on May 4, 2012, each 

party filed proposed findings of fact (Docket Nos. 24 & 25-3). The LNC also filed a motion 

requesting section 437h certification of the following question: 

Does imposing annual contribution limits against testamentary bequests 

directed at, or accepted or solicited by political party committees, violate 

First Amendment speech and associational rights? 

(Pl.’s Mot. to Certify Facts and Questions (“LNC Mot.”) at 1 (Docket No. 25).)2

 

2 The LNC’s Complaint also challenged BCRA’s new restrictions on “nonfederal” or 

“soft” money fundraising to the extent they apply to certain kinds of solicitations by the national 

parties for bequests. While section 441a(a)(1)(B) caps contributions to national party 

committees, it applies only to funds contributed “for the purpose of influencing any election for 

Federal office.” 2 U.S.C. § 431(8)(A)(i). These are known as “federal” or “hard” money 

contributions. See McConnell, 540 U.S. at 122. FECA’s hard money limits do not restrict 

donations given for nonfederal purposes, such as to influence state or local elections; those 

donations are known as “nonfederal” or “soft” money donations. Id. at 122-23. To eliminate the 

possibility that national party committees could, directly or indirectly, use soft-money donations 

to influence federal elections, BCRA amended FECA to bar national party committees from 

soliciting, receiving, or spending any funds not raised in accord with section 441a(a)(1)(B), 

regardless of the stated purpose of the donation. See 2 U.S.C. § 441i(a)(1) (“Soft-Money Ban”); 

McConnell, 540 U.S. at 133. The LNC has alleged that the Soft-Money Ban “forbids a political 

party from soliciting bequests that exceed annual contribution limits, even if that party would not 

draw funds from such bequests exceeding the contribution limits in any given year.” (Compl. 

¶ 2; see also id. ¶ 25.) The Commission denied this allegation (Answer ¶¶ 2, 25), and thus, the 

LNC has not requested certification of the issue (Mem. of Points and Authorities in Supp. of 

Pl.’s Mot. to Certify Facts and Questions (“LNC Mem.”) at 9 (Docket No. 25-1)). Because the 

Soft-Money Ban does not restrict such activity, plaintiff suffers no injury-in-fact that could 

satisfy its burden of demonstrating standing, so that claim should be dismissed for lack of 

jurisdiction. 

 As a practical matter, the effect of the Soft-Money Ban on the LNC’s activities is simply 

to ensure that the LNC cannot receive any donation above the Contribution Limit in any calendar 

year and to prohibit the LNC from soliciting any such excessive contribution that would be 

accepted in a single calendar year. Because the Soft-Money Ban thus reinforces the Contribution 

Limit and serves the same purposes, unless otherwise indicated, all arguments herein regarding 

the constitutionality of the Contribution Limit apply equally to the Soft-Money Ban.

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II. STANDARD OF REVIEW 

A. The Court May Certify Only Substantial Constitutional Questions to the 

En Banc Court of Appeals under 2 U.S.C. § 437h 

Section 437h provides that “the national committee of any political party,” among others, 

may bring a suit “to construe the constitutionality of any provision of [FECA],” and the “district 

court immediately shall certify all questions of constitutionality of [FECA]” to the appropriate 

court of appeals sitting en banc. 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 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 

93-443, § 208(A), 88 Stat. 1263, 1285-86 (1974). 

The Supreme Court has held that use of section 437h is subject to a number of restrictions 

and should be construed narrowly. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981). 

District courts may certify only questions that are “neither insubstantial nor settled.” Id.; see 

also FEC v. Lance, 635 F.2d 1132, 1137 (5th Cir. 1981) (en banc) (“We agree with the Ninth 

Circuit that ‘delicate questions’ such as those raised by section 437h ‘are to be decided only 

when necessary.’” (quoting Cal. Med. Ass’n v. FEC, 641 F.2d 619, 632 (9th Cir. 1980) (en 

banc))); Mott v. FEC, 494 F. Supp. 131, 134 (D.D.C. 1980) (section 437h available “only where 

a ‘serious’ constitutional question was presented” (quoting Senator James L. Buckley, the 

sponsor of the amendment that became section 437h, 120 Cong. Rec. 10562 (1974))); Buckley v. 

Valeo, 387 F. Supp. 135, 138 (D.D.C.) (section 437h 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).3

 

 

3 The standard for section 437h certification is not the “low threshold” the LNC claims. 

(LNC Mem. at 16.) When the Supreme Court used the term “frivolous” in the section 437h 

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“[T]he apparent impetus for” for section 437h was to expedite review of facial 

constitutional challenges to FECA, and thus, “questions arising under ‘blessed’ provisions 

understandably should meet a higher threshold” for certification. Goland v. United States, 

903 F.2d 1247, 1257 (9th Cir. 1990); see also Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 

1992) (en banc) (same). After a “‘core provision of FECA has been reviewed and approved by 

the courts,’” it is possible that a subsequent as-applied challenge could warrant certification, but 

“not every sophistic twist that arguably presents a ‘new’ question should be certified.’” Mariani 

v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (quoting Goland, 903 F.2d at 1257). 

Moreover, the Court has noted that section 437h should be construed narrowly, in part because it 

creates “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 for expedited en banc sittings.” Bread Political Action Comm. v. FEC, 455 U.S. 

577, 580 (1982).4

 

context, it cited a case stating that it is “the duty of a district judge . . . to scrutinize the bill of 

complaint to ascertain whether a substantial federal question is presented.” Cal. Water Service 

Co. v. City of Redding, 304 U.S. 252, 254 (1938) (per curiam) (emphasis added) (cited in Cal. 

Med. Ass’n, 453 U.S. at 192 n.14). Courts have at times used the term “frivolous” to refer to the 

sort of questions that should not be certified under Section 437h. See, e.g., Cal. Med. Ass’n, 453 

U.S. at 192 n.14 (“[W]e do not construe § 437h to require certification of constitutional claims 

that are frivolous.” (citations omitted)); Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) 

(en banc) (“A district court need not certify challenges to the Act that are frivolous or involve 

settled principles of law.”). However, the use of the term “frivolous” in this context is more akin 

to lacking a substantial federal question and thus differs sharply from the standard for frivolous 

claims under Federal Rule of Civil Procedure 11, which governs sanctionable filings by 

attorneys. See, e.g., Goland, 903 F.2d at 1257 (“For obvious reasons, the court should have a 

higher threshold for a ‘frivolous’ finding in the [Rule 11] context[] than in the case where the 

issue is certification to an en banc appellate court.”). 

4

 Under the original statutory scheme, certified constitutional questions could be appealed 

directly from the en banc court of appeals to the Supreme Court, and both courts were required 

“to advance on the docket and to expedite to the greatest possible extent the disposition of any 

matter certified.” 2 U.S.C. § 437h(b), (c) (1974). In 1984, the expedition requirement and 

similar provisions in other statutes were repealed because “[t]he courts are, in general, in the best 

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7 

 In considering the factual record, the standard for section 437h certification is 

“somewhere between a motion to dismiss — where no factual review is appropriate — and a 

motion for summary judgment — where the Court must review for genuine issues of material 

fact.” Cao v. FEC, 688 F. Supp. 2d 498, 503 (E.D. La. 2010). A question is insubstantial, and 

improper, for purposes of section 437h if it fails to state a claim upon which relief may be 

granted. Goland, 903 F.2d at 1257-58; Cao, 688 F. Supp. 2d at 501-02 & n.1. But even when a 

constitutional challenge is not foreclosed as a matter of law, the district court undertaking section 

437h review may go beyond the complaint and review the facts, and only if it “concludes that 

colorable constitutional issues are raised from the facts” should it certify those questions. Cao, 

688 F. Supp. 2d at 502 (emphasis omitted) (quoting Khachaturian, 980 F.2d at 331)). 

B. If the LNC’s Constitutional Question Fails to Qualify for Certification, 

Summary Judgment Is Appropriate 

 This Court may grant summary judgment if there is “no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

In view of the standard for certification to the court of appeals under section 437h, “it follows 

that any question that the Court finds [insubstantial] is also appropriate for summary judgment.” 

Cao, 688 F. Supp. 2d at 503. Thus, if this Court determines that the LNC has failed to present a 

question warranting certification, as it should, the Court should grant summary judgment to the 

Commission.5

 

 

position to determine the need for expedition in the circumstances of any particular case, to 

weigh the relative needs of various cases on their dockets, and to establish an order of hearing 

that treats all litigants most fairly.” H.R. Rep. No. 98-985, at 4 (1984). See Pub. L. No. 98-620, 

§ 402, 98 Stat. 3335 (1984) (repealing section 437h(c)). The provision for direct appeal was 

removed in 1988. Pub. L. No. 100-352, § 6(a), 102 Stat. 662 (1988). 

5

 The LNC would retain a right of appeal to a three-judge panel of the D.C. Circuit, but not 

to mandatory review by the en banc court of appeals. 

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8 

III. THE LNC’S CONSTITUTIONAL QUESTION IS NOT SUBSTANTIAL AND 

SHOULD NOT BE CERTIFIED TO THE EN BANC COURT OF APPEALS 

The LNC’s challenge to the Contribution Limit as applied to bequests fails to raise a 

substantial constitutional question sufficient to qualify for en banc review. As discussed in 

Section A, the Contribution Limit does not implicate any cognizable First Amendment rights. 

Even if it did, however, the Contribution Limit is closely drawn to meet the important 

government interest of preventing corruption and its appearance, as explained in Section B. 

A. The Contribution Limit Does Not Burden Any Cognizable First 

Amendment Rights 

When an estate makes a contribution as a result of a bequest, the person making the 

bequest is by necessity deceased. It is well-settled that the deceased do not have constitutional 

rights. Thus, as applied to bequests, FECA’s contribution limits cannot burden the First 

Amendment rights of any contributors. 

1. The Deceased Have No Constitutional Rights, Let Alone Any 

Particular First Amendment Right to Make Contributions 

FECA cannot infringe a testator’s First Amendment rights after death because the 

deceased have no constitutional rights. See, e.g., United States v. Maciel-Alcala, 612 F.3d 1092, 

1098 (9th Cir.) (“[O]ne cannot violate a deceased person’s civil or constitutional rights.”), cert. 

denied, 131 S. Ct. 673 (2010); Ford v. Moore, 237 F.3d 156, 165 (2d Cir. 2001) (“Even if there 

were a viable [constitutional] claim against Moore for conduct after Ford’s death, the death 

would have extinguished any claim of Ford’s.”); Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 

745, 749 (10th Cir. 1980) (stating that “the civil rights of a person cannot be violated once that 

person has died,” and rejecting a Bivens claim alleging that post-death conduct violated the 

decedent’s First Amendment rights); Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979) 

(“After death, one is no longer a person within our constitutional and statutory framework, and 

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9 

has no rights of which he may be deprived.”); Fox v. Leavitt, 572 F. Supp. 2d 135, 144 (D.D.C. 

2008) (“Because Mr. Samp is no longer living, there is no reasonable expectation that the alleged 

violation of his First Amendment rights could be repeated.”).6

 

For living persons, FECA’s contribution limits may implicate the ability of contributors 

to engage in First Amendment-protected speech and association. In Buckley v. Valeo, 424 U.S. 1 

(1976) (per curiam), the Supreme Court upheld the constitutionality of FECA’s contribution 

limits against a challenge brought by, among others, federal candidates and political parties, 

including the Libertarian Party. Id. at 7-8, 23-38. The Court found the contribution limits 

imposed only “a marginal restriction upon the contributor’s ability to engage in free 

communication,” since a contribution “serves as a general expression of support” for the 

recipient. Id. at 20-21. And contribution limits “impinge on protected associational freedoms” 

because “[m]aking a contribution, like joining a political party, serves to affiliate a person with a 

candidate.” Id. at 22. But as the LNC rightly concedes, “the Supreme Court’s analysis in 

Buckley and its progeny was based entirely upon the assumption that the donors whose 

contributions were being limited are alive,” and did not “manifest any consideration for the very 

different circumstances presented by donations by testamentary bequest.” (Mem. of Points and 

 

6 Although constitutional rights do not survive death, a cause of action for a constitutional 

injury that occurred before death does survive where permitted by statute, and may be brought by 

a decedent’s estate. See, e.g., Estate of Gaither ex rel. Gaither v. District of Columbia, 655 F. 

Supp. 2d 69, 73-74 (D.D.C. 2009). But under FECA, any “contribution” from an estate would 

always take place after the donor’s death. A contribution is “considered to be made when the 

contributor relinquishes control over the contribution” by “deliver[ing it] to the candidate, [or] to 

the political committee.” 11 C.F.R. § 110.1(b)(6). In the case of a bequest, a contribution is thus 

made “at the time the funds [are] distributed by the estate” to the recipient candidate or political 

committee. See FEC Advisory Op. 1999-14, 1999 WL 521238, at *2 (applying 11 C.F.R. § 

110.1(b)(6)). 

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10 

Authorities in Supp. of Pl.’s Mot. to Certify Facts and Questions (“LNC Mem.”) at 18-19 

(Docket No. 25-1).) 7 

The conclusion that the First Amendment does not protect a person’s ability to bequeath a 

contribution is consistent with long-standing precedent holding that a person’s ability to 

bequeath property is not protected under the Constitution. The ability to dispose of property by 

will is not a constitutional right, but instead “has always been considered purely a creature of 

statute, and within legislative control.” United States v. Perkins, 163 U.S. 625, 627 (1896). As 

the Supreme Court has explained, “[n]othing in the Federal Constitution forbids the legislature of 

a state to limit, condition or even abolish the power of testamentary disposition over property 

within its jurisdiction.” Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942) (upholding law 

allowing surviving spouse to elect to take a pre-determined share of estate, regardless of will’s 

instructions). Congress may also freely regulate testamentary disposition when acting pursuant 

to one of its enumerated powers. See, e.g., Knowlton v. Moore, 178 U.S. 41, 56-61 (1900) 

(upholding Congress’s power to tax legacies using its taxing power).8

 Thus, bequeathed 

contributions not only lack First Amendment protection, but also, like other distributions of 

property by will, lack general constitutional protection. In sum, in exercising its power to 

 

7 The LNC so characterizes Buckley in a strained effort to support its incorrect theory that 

bequeathed contributions carry no threat of corruption or its appearance that could justify a First 

Amendment burden (LNC Mem. at 18-19), which we address infra pp. 18-35. 

8 See also 28 Am. Jur. Estates § 8 (“The power of the legislature over the right of 

individuals to make a will or exercise testamentary control over property is recognized in 

practically all jurisdictions.”); 79 Am. Jur. 2d Wills § 49 (“A person must devise or bequeath his 

property in accordance with and subject to the conditions and limitations provided by statute; 

otherwise he cannot bequeath it at all.”); id. § 150 (“The right to take and receive property under 

a will is neither a natural and inalienable right nor one guaranteed by the state or federal 

constitutions, but is a privilege granted by the state upon such conditions as it may impose, and 

subject to regulation and control by the state and to the power of taxation.” (footnotes omitted)). 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 17 of 48
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regulate federal elections, see Buckley, 424 U.S. at 13 & n.16, Congress did not infringe any 

constitutional rights by subjecting bequests to FECA’s contribution limits. 

In particular — as the LNC itself concedes — the First Amendment does not protect 

bequeathed contributions as acts of association. (LNC Mem. at 24 (“The parties apparently 

agree that associational rights are not implicated when individuals remember political parties in 

their wills. The act of leaving a testamentary bequest to a political party is . . . not 

associational.”). This concession is consistent with the LNC’s recognition that the deceased 

cannot engage in association generally. (Id. at 3 (“[T]he Supreme Court’s approach to 

contribution limits is based largely on factors that cannot apply to the dead — including a 

donor’s ability to associate with . . . the donee party.”), 21 (“The deceased cannot . . . volunteer 

on campaigns”). 

The LNC also recognizes, as it must, that the deceased cannot engage in speech 

generally. (Id. at 12 (“But apart from leaving bequests[] . . . decedents are not in a position to 

engage in independent political expression.”).) Instead, the LNC argues that “the conduct at 

issue here is expressive,” because “[l]eaving a bequest,” “remembering a political party in one’s 

will,” and a bequest’s “instructions” are allegedly expressive. (Id. at 1-2, 10-11, 19.) 

The LNC’s logic is flawed. The act of recording a bequest is temporally distinct from the 

making of a contribution. Burrington may have engaged in speech when he recorded a bequest 

instructing that the LNC receive 25% of his residual estate. (See LNC Mot., Exh. C (Def. FEC’s 

Resps. to Pl.’s Disc. Reqs.) at 2 (Req. for Admis. (“RFA”) 5) (Docket No. 25-5).) Nothing in 

FECA, of course, prevented him from expressing whatever he wanted in his last will and 

testament. FECA is concerned only with the contribution that takes place later, after his death, 

when the funds are distributed. Contrary to the LNC’s suggestion (see LNC Mem. at 10-11), a 

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post-death contribution does not become First Amendment-protected speech just because a 

separate act expressing support for a political party might have occurred when the decedent was 

alive. 

In sum, the LNC is correct that “[f]or constitutional purposes, the difference between 

donations made by living donors, and donations made by estates on behalf of the deceased, [is] 

quite stark” (LNC Mem. at 16), but that is because, as a matter of well-settled law, FECA’s 

contribution limits cannot infringe deceased contributors’ First Amendment rights. 

2. The Contribution Limit As Applied to Bequeathed Contributions 

Does Not Burden National Party Committees’ First Amendment 

Rights 

a. There Is No Constitutional Right to Receive a Contribution from 

the Deceased 

Because deceased persons have no constitutional right to make a contribution, it follows 

as a correlative matter that no one has a First Amendment right to receive such a contribution. 

Otherwise, the well-established principle that deceased persons have no constitutional rights 

would be nullified. 

Just as any First Amendment right to receive information and ideas requires the existence 

of a speaker with the right to speak in the first place, see Competitive Enter. Inst. v. U.S. Dep’t of 

Transp., 856 F.2d 1563, 1566 (D.C. Cir. 1988), any claimed right to receive a bequest is subject 

to any limitation that a state may impose on the ability of a person to make that bequest in the 

first place, United States v. Burnison, 339 U.S. 87, 91 (1950). In Burnison, the United States 

argued that a California law that barred Californians from bequeathing property to the federal 

government violated its power to receive bequeathed property under the Supremacy Clause. Id.

at 89-90. The Court rejected this argument because it “fail[ed] to recognize that the state acts 

upon the power of its domiciliary to give and not on the United States’ power to receive.” Id. at 

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13 

91. The state’s regulation limiting the power to will was valid, the Court held, as an exercise of 

the state’s plenary power to regulate the ability to bequeath property after death. Id. at 91-92 & 

n.10. Therefore, the right of the United States to receive the bequest was subject to, and not 

violated by, the limits imposed by the state’s valid regulation. Id. at 92-93. If a right to receive a 

bequest were permitted to trump the power to regulate the ability to make a bequest in the first 

place, the Court explained, no law regulating wills could restrict a bequest to a party claiming a 

constitutional right to receive it — including laws requiring the competency of the testator, a 

properly witnessed and attested will, and a portion of an estate to go to a surviving spouse. Id. at 

92. 

Thus, because the Contribution Limit as applied to bequests burdens no First Amendment 

right of the deceased, it likewise burdens no First Amendment right of anyone who might receive 

a contribution through a bequest. 

b. A First Amendment Analysis of the Contribution Limit Would 

Focus on the Burden on the Contributor and the Democratic 

Process, Not on the Recipient 

When analyzing contribution limits through a First Amendment lens, the Supreme Court 

has considered the burdens such limits may place on the rights of contributors, not recipients, as 

LNC contends. In Buckley, the Court discussed the associational burdens that contribution limits 

place on the ability of contributors to associate, not on the rights of recipients. See, e.g., 424 

U.S. at 24 (“[T]he primary First Amendment problem raised by [FECA’s] contribution 

limitations is their restriction of one aspect of the contributor’s freedom of political association.” 

(emphasis added)). But even if contribution limits, on their face, could be construed to burden 

recipients’ associational rights, no such burden could exist when those limits are applied to 

bequeathed contributions, since the contributor is deceased. The freedom of association protects 

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the ability to “associate with others” and to engage in a “group effort” in pursuit of ends 

otherwise protected by the First Amendment, such as speech and worship. See Roberts v. U.S. 

Jaycees, 468 U.S. 609, 622 (1984) (emphases added). Consistent with this protection, Buckley’s 

discussion of FECA’s contribution limits assumes there is a living contributor who can associate 

with the recipient. See 424 U.S. at 22 (a contribution “serves to affiliate a person with a 

candidate” (emphasis added)); LNC Mem. at 18-19 (Buckley assumes a living contributor). In 

the case of a bequeathed contribution, however, there is no longer anyone for the party to 

associate with at the time of the contribution. (See LNC Mem. at 3 (the deceased have no ability 

to associate with a “donee party”).) Indeed, “[w]hen LNC learns that a member has passed 

away, the deceased is removed from the Party’s membership rolls.” (Id. at 10.) 

 Moreover, to the extent contribution limits impose burdens on the ability to speak (rather 

than to associate), the Supreme Court has likewise focused on the contributor, not the recipient. 

The Court in Buckley explained that a contribution limit “entails only a marginal restriction upon 

the contributor’s ability to engage in free communication.” 424 U.S. at 20 (emphasis added). 

Indeed, we are not aware of any decision holding that the passive act of receiving a contribution, 

bequeathed or otherwise, is a form of protected speech. See Dean v. Blumenthal, 577 F.3d 60, 

68-69 (2d Cir. 2009) (noting the absence of “any decision . . . in which either this Court or the 

Supreme Court specifically held that a candidate has a First Amendment right to receive 

campaign contributions”).9

 

9

 Although Buckley noted the potential for contribution restrictions to “have a severe 

impact on political dialogue if the limitations prevented candidates and political committees from 

amassing resources necessary for effective advocacy,” this analysis did not create specific rights 

for individual candidates or political committees to receive particular contributions. 424 U.S. 

at 21. As the Court later elaborated in Randall v. Sorrell, its concern was potential harm to the 

democratic process itself, not to the interests of individual candidates or other recipients of 

contributions. 548 U.S. 230, 248-49 (2006) (plurality) (“[C]ontribution limits that are too low 

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15 

Because the deceased have no First Amendment right to make contributions, and because 

there is no constitutional right to receive a contribution from the deceased, the Contribution 

Limit does not burden any First Amendment rights when applied to bequests. 

B. The Contribution Limit as Applied to Bequeathed Contributions Is Closely 

Drawn to Match the Important Government Interest of Preventing 

Corruption and Its Appearance 

Even if the Contribution Limit as applied to bequeathed contributions implicates First 

Amendment rights, the LNC would still fail to present a substantial constitutional question 

meriting en banc review pursuant to section 437h. Contribution limits need satisfy only 

intermediate scrutiny, and limits on bequeathed contributions easily pass muster — they are 

closely drawn to match the important government interest of preventing corruption and its 

appearance. 

1. Intermediate Scrutiny Applies to Contribution Limits

 “Under the Supreme Court’s precedents, limits on campaign expenditures are subject to 

strict scrutiny. But limits on contributions to candidates and political parties are subject to ‘less 

rigorous scrutiny’ and are valid if they are ‘closely drawn’ to meet a ‘sufficiently important’ 

governmental interest.” Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 156 (D.D.C.) 

(“RNC”) (three-judge court) (quoting McConnell, 540 U.S. at 134-38 & n.40), aff’d, 130 S. Ct. 

3544 (2010); see also In re Cao, 619 F.3d 410, 427 (5th Cir. 2010) (describing the “closely 

drawn” standard as “intermediate scrutiny”), cert. denied, 131 S. Ct. 1718 (2011). As Buckley

explained, while expenditure limits “impose direct and substantial restraints” on speech, 

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

 

can . . . harm the electoral process by preventing challengers from mounting effective campaigns 

against incumbent officeholders, thereby reducing democratic accountability.” (emphases 

added)). 

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free communication.” 424 U.S. at 20, 39.10 For more than 35 years, the Court has strictly 

adhered to Buckley’s fundamental distinction between contributions and expenditures by 

applying only intermediate scrutiny to contribution limits. See Randall, 548 U.S. at 241-42; 

McConnell, 540 U.S. at 135-42; FEC v. Beaumont, 539 U.S. 146, 161-62 (2003); FEC v. Colo. 

Republican Fed. Campaign Comm., 533 U.S. 431, 437-38, 456 (2001) (“Colorado II”); Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 386-88 (2000); FEC v. Nat’l Right to Work Comm., 459 

U.S. 197, 208-11 (1982); Cal. Med. Ass’n, 453 U.S. at 195-97; Buckley, 424 U.S. at 23-36, 38. 

The LNC incorrectly claims that strict scrutiny applies here because, unlike regular 

contributions, bequeathed contributions are allegedly “purely expressive, not associational.” 

(LNC Mem. at 19-21, 24; see also Compl ¶ 21.) But, if true, that would mean that FECA’s 

contribution limits place lesser, not greater, burdens on First Amendment rights when applied to 

bequeathed contributions. Buckley held “that contribution limits burden both protected speech 

and association, though they generally have more significant impacts on the latter.” McConnell, 

540 U.S. at 142 n.42 (emphases added). In the absence of the latter associational burden, all that 

would remain is the “marginal restriction” contribution limits impose on speech, which Buckley 

found did not justify strict scrutiny even when combined with the more significant associational 

burden. See 424 U.S. at 20-23. 

The LNC claims that recording a bequest in a will constitutes “core First Amendment 

expressive activity” because a bequest’s “instructions often serve expressive values” and can 

 

10 McConnell held that the Soft-Money Ban is also subject only to intermediate scrutiny. 

540 U.S. at 138-42. The Court explained that the Soft-Money Ban places identical burdens on 

contributors’ speech and association rights as the contribution limits in Buckley, since it “simply 

effect[ed] a return to the scheme that was approved in Buckley.” Id. Although section 441i(a)(1) 

prohibits, inter alia, the spending and solicitation of soft money, those restrictions simply 

“implement” and “prevent circumvention” of the Contribution Limit, and thus do not place any 

burdens on speech in addition to those already imposed by the Contribution Limit. Id. at 138-39. 

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convey “the decedent’s love or appreciation.” (LNC Mem. at 1-2.) But as explained supra pp. 

11-12, writing a bequest, which FECA does not regulate, is not the same thing as making a 

contribution, which FECA does impose limits upon. And, more fundamentally, the LNC’s 

contention fails to distinguish bequeathed contributions from contributions generally. 

Buckley recognized that the “quantity of communication by the contributor does not 

increase perceptibly with the size of his contribution, since the expression rests solely on the 

undifferentiated, symbolic act of contributing.” 424 U.S. at 21. Thus, even very large bequests 

contain little communicative expression above and beyond a modest contribution, and any 

additional “instructions” expressing the “decedent’s love or appreciation” (LNC Mem. at 1-2) 

that a will may contain would exist apart from the dollar value of the bequest. The LNC 

repeatedly states that bequests are “expressive,” as if that alone called for strict scrutiny (LNC 

Mem. at 1-2, 10-11, 19, 24), but Buckley instructed that contributions are not subject to strict 

scrutiny even though they “serve[] as a general expression of support,” 424 U.S. at 21 (emphasis 

added); see also McConnell, 540 U.S. at 140 n.42 (Buckley found that “contribution limits 

burden both protected speech and association,” and thus, it “is thus simply untrue in the 

campaign finance context that all burdens on speech necessitate strict scrutiny review” (internal 

quotation marks omitted)). Nor does the LNC explain, and it cannot, how a bequest is any less 

“expressive” simply because it is accepted by the recipient in annual installments, in compliance 

with the Contribution Limit, rather than in a lump sum as the LNC demands. 

Finally, the LNC argues that the Contribution Limit imposes a “severe” burden on speech 

because “once people pass away, they have no ability to engage in any alternative forms of 

‘direct political expression’” besides bequests. (LNC Mem. at 17, 20-21.) To be sure, Buckley

found that contribution limits impose only marginal restrictions on expression in part because 

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they leave contributors free to engage in direct political expression. 424 U.S. at 20-21. But here 

it is death, not FECA’s contribution limits, that renders decedents unable to engage in direct 

political expression — just as the LNC recognizes that death has eliminated decedents’ ability to 

engage in association. (See LNC Mem. at 3.) Moreover, if the deceased are capable of First 

Amendment speech as the LNC claims they are through bequests, then the dead might also be 

deemed to engage in other forms of posthumous “speech” and “association” as alternatives to 

bequeathing contributions. A person could “arrang[e] for the posthumous publication or other 

dissemination of his or her political views,” as the LNC concedes (LNC Mem. at 12) — options 

which would seem to be far more “expressive” than the “undifferentiated, symbolic act of 

contributing,” Buckley, 424 U.S. at 21. FECA does not affect these alternative options for 

expression.

2. Unlimited Bequeathed Contributions to National Party Committees 

Would Pose a Threat of Corruption and Its Appearance 

The Supreme Court has recognized important government interests “in preventing both 

the actual corruption threatened by large financial contributions and the eroding of public 

confidence in the electoral process through the appearance of corruption.” McConnell, 540 U.S. 

at 136 (internal quotation marks omitted). These interests “have been sufficient to justify not 

only contribution limits themselves, but laws preventing circumvention of such limits.” Id.

at 144. As a result, the Court has held that FECA’s contribution limits and Soft-Money Ban 

facially serve these important interests. See Buckley, 424 U.S. at 23-38; McConnell, 540 U.S. at 

143-61. When applied to bequeathed contributions, those FECA limits likewise deter corruption 

and its appearance. 

In Buckley, the Court upheld FECA’s limit on individual contributions to candidates in 

light of the “deeply disturbing examples” of corruption relating to contributions found in the 

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record, and concluded that FECA’s purpose of “limit[ing] the actuality and appearance of 

corruption resulting from large individual financial contributions” was a “constitutionally 

sufficient justification” for that contribution limit. 424 U.S. at 26-29. The Court also upheld 

FECA’s annual $25,000 aggregate contribution limit, explaining that it prevents individuals from 

circumventing the limit on contributions to candidates with “huge contributions to the 

candidate’s political party.” Id. at 38. 

Subsequently, in McConnell, the Court upheld the constitutionality of the Soft-Money 

Ban, finding that “there [was] substantial evidence to support Congress’ determination that large 

soft-money contributions to national political parties give rise to corruption and the appearance 

of corruption.” 540 U.S. at 150. As the Supreme Court observed in upholding the ban, the 

“quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative 

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

the “idea that large contributions to a national party can corrupt or, at the very least, create the 

appearance of corruption of federal candidates and officeholders is neither novel nor 

implausible.” McConnell, 540 U.S. at 144 (internal quotation marks omitted). 

Of course, FECA has limited contributions, including those resulting from bequests, for 

more than 35 years. “Since there is no recent experience with unlimited [bequeathed 

contributions], the question is whether experience under the present law confirms a serious threat 

of abuse from the unlimited [bequeathed contributions].” Colorado II, 533 U.S. at 457 (citing 

Burson v. Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) (noting difficulty of 

mustering evidence to support long-enforced statutes)). 

Recent experience with unlimited soft-money contributions, prior to the enactment of the 

Soft-Money Ban in BCRA, confirms a serious threat of abuse from equivalent unlimited 

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bequeathed contributions. McConnell and its record amply demonstrate that national party 

committees sold preferential access to their federal candidates and officeholders in exchange for 

unlimited contributions of soft money. Here, the record shows that national parties could 

similarly sell preferential access to federal candidates and officeholders in exchange for promises 

of large bequests, and that parties could also grant such access to the family, friends, and 

associates of a decedent who bequeathed the party a large amount. 

a. McConnell Found that Unlimited Contributions to National Party 

Committees Pose a Threat of Corruption and Its Appearance 

 The record in McConnell — which is “replete with . . . examples of national party 

committees peddling access to federal candidates and officeholders in exchange for large softmoney donations,” 540 U.S. at 150 — illustrates the danger of corruption and its appearance that 

would be posed if national parties were again permitted to accept unlimited contributions 

through bequests.11 Based on that extensive record, McConnell held that “soft-money 

contributions to national party committees have a corrupting influence or give rise to the 

appearance of corruption.” Id. at 145 (emphasis omitted); see also FEC Facts ¶¶ 33-35. 

The McConnell record demonstrates that the national parties are “inextricably 

intertwined” with their federal candidates and officeholders, with whom they “enjoy a special 

relationship and unity of interest.” (FEC Facts ¶ 20.) The national party committees of the two 

major parties are primarily concerned with electing their candidates to office, and are “both run 

by, and largely composed of, federal officeholders and candidates.” (Id. ¶¶ 21, 23.) The “close 

connection and alignment of interests” between parties and candidates put the parties in a 

 

11 The McConnell record is discussed in further detail in section III of the FEC’s Proposed 

Findings of Fact. (FEC Facts ¶¶ 20-75.) With its Proposed Findings of Fact, the Commission 

submitted to the Court a DVD containing the McConnell Defendants’ Exhibit Volumes, upon 

which the three-judge district court and the Supreme Court relied heavily. 

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position to “sell access to federal officeholders in exchange for soft-money contributions that the 

party [could] then use for its own purposes.” (Id. ¶ 73.) Federal candidates and donors also 

willingly “exploited the soft-money loophole, the former to increase their prospects of election 

and the latter to create debt on the part of officeholders, with the national parties serving as 

willing intermediaries.” (Id. ¶ 41.) Because soft money was unlimited, the national parties put a 

premium on raising and spending soft-money donations, which tended to be “dramatically larger 

than the contributions of hard money permitted by FECA.” (Id. ¶¶ 29-30.) Some of these softmoney donations consisted of bequeathed donations, which were also unlimited and which also 

were much larger than hard-money bequeathed contributions. (Id. ¶¶ 89-92.) 

Federal candidates and officeholders solicited soft-money donations for their national 

party committees. (FEC Facts ¶¶ 36-37.) Often at their parties’ urging, candidates would target 

donors who had already given them the maximum amount of hard money allowed by FECA, and 

ask for additional soft-money donations to their parties. (Id. ¶ 37.) In return, the national party 

committees often used soft-money to benefit their federal candidates’ campaigns, and donors 

gave soft money with at least an implicit understanding that their donation would benefit specific 

candidates. (Id. ¶¶ 69-72.) Donors were often made aware that their soft-money donation could 

be “credited” to their favored candidate. (Id. ¶ 71.) Even when candidates did not directly solicit 

soft money, they were nevertheless made aware of who the large soft money donors were by the 

parties and the donors themselves. (Id. ¶¶ 38-40.) 

 Based on the record before the Court, McConnell stressed that “[g]iven th[e] close 

connection and alignment of interests[]” the parties and their candidates share, “large soft-money 

contributions to national parties are likely to create actual or apparent indebtedness on the part of 

federal officeholders, regardless of how those funds are ultimately used.” 540 U.S. at 155 

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22 

(emphasis added); see FEC Facts ¶ 74. The fact that candidates and officeholders donated their 

valuable time to granting access to large soft-money donors thus “indicate[d] either that 

officeholders place substantial value on the soft-money contribution themselves, without regard 

to their end use, or that national committees are able to exert considerable control over federal 

officeholders.” McConnell, 540 U.S. at 155-56; see FEC Facts ¶¶ 74-75. 

Many individuals donated large amounts of soft money to national parties in order to gain 

access to federal candidates and officeholders “for the express purpose of securing influence 

over federal officials.” (FEC Facts ¶¶ 41-51.) Soft money was particularly effective for 

obtaining access because it was unlimited, and soft-money donors were able to purchase access 

to Members of Congress and the President, who made time to listen to their views. (Id. ¶¶ 42, 

46-48.) Such access resulted in actual influence over officeholders and legislation. (Id. ¶ 45.) 

The national party committees took advantage of donors’ desire for access by creating 

major-donor programs that offered menus of increasing levels of access to federal candidates and 

officeholders in exchange for increasingly large donations of soft money. (FEC Facts ¶¶ 49-51.) 

For instance, the Democratic Congressional Campaign Committee offered “a range of donor 

options, starting with the $10,000-per-year Business Forum program, and going up to the 

$100,000-per-year National Finance Board program.” (Id. ¶ 50.) National Finance Board 

members were entitled to conference calls, private dinners, and retreats with Democratic 

Members of Congress and other party leaders. (Id. ¶ 50.) Similarly, the Republican National 

Committee (“RNC”) offered its donors membership in major-donor groups, which promised, for 

example, “special access to high-ranking Republican elected officials, including governors, 

senators, and representatives.” (Id. ¶ 51.) 

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The national party committees and their candidates and officeholders granted their largest 

soft-money donors access not only to reward past contributions, but also to encourage future 

ones. (FEC Facts ¶¶ 63-68.) As Senator John McCain noted, “legislators have been in situations 

where they would rather fit in an appointment with a soft money contributor than risk losing his 

or her donation to the party.” (Id. ¶ 64.) Indeed, “most federal elected officials recognize that 

continued financial support from the donor often may be contingent upon the donor feeling that 

he or she has received a fair hearing and some degree of consideration or support.” (Id.) 

 On the basis of this record, the Supreme Court concluded that “there [was] substantial 

evidence to support Congress’ determination that large soft-money contributions to national 

political parties give rise to corruption and the appearance of corruption.” McConnell, 540 U.S. 

at 154.12 

b. Unlimited Bequeathed Contributions to National Party Committees 

Would Be Functionally Equivalent to Unlimited Soft-Money 

Contributions 

 Unlimited bequeathed contributions to national party committees would partially reopen 

the soft-money loophole and thus renew the threat of corruption and its appearance. The national 

parties, including the LNC, remain closely linked to their federal candidates and officeholders, 

and those parties continue to sell access to major donors. If bequeathed contributions were 

unlimited, individuals looking to purchase preferential access could plan their estates to 

circumvent the limits applicable to living donors. The parties could also provide such purchased 

access to the family, friends, and associates of deceased donors. The bequeathed nature of the 

 

12 Contrary to the LNC’s suggestion (LNC Mem. at 22), Citizens United v. FEC, 130 S. Ct. 

876, 910 (2010), which involved corporate independent expenditures, did not disturb 

McConnell’s determination that the selling of preferential access to federal officeholders and 

candidates by national party committees in exchange for unlimited soft-money donations led to 

corruption and its appearance. See RNC, 698 F. Supp. 2d at 158, aff’d, 130 S. Ct. 3544 (2010). 

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24 

contributions may increase the risk of corruption and its appearance, both because bequests are 

often larger than inter vivos donations and because of the risk that the testator could revoke the 

bequest before death if not satisfied. 

i. Unlimited Bequeathed Contributions Would Allow Donors to 

Circumvent FECA’s Limits on Contributions to National Party 

Committees 

 If bequeathed contributions were no longer limited by FECA, individuals looking to buy 

preferential access could exploit this new loophole and contribute vast amounts of money to 

national party committees through their wills, unhindered by FECA’s $30,800 limit on 

contributions to parties. 

 When permitted, individuals have historically exploited the ability to make unlimited 

contributions to influence federal elections. (FEC Facts ¶¶ 76-79.) In the current election cycle, 

individuals may for the first time contribute unlimited sums to political committees that only 

make independent expenditures supporting federal candidates (commonly known as “super 

PACs”). (Id. ¶ 76.) Older donors with vast resources have donated tens of millions of dollars to 

super PACs to influence the outcome of the 2012 presidential election. For instance, Harold 

Clark Simmons, an 80-year-old businessman with a net worth of $10 billion, had donated more 

than $18 million to super PACs as of March 2012 to prevent President Obama’s reelection, and 

stated that he was planning to double that amount by the November election. (Id. ¶ 76.) 

Simmons explained: “I have lots of money, and can give it legally now.” (Id.) 

As the soft-money era illustrates, the ability to bequeath unlimited sums to parties would 

be an attractive vehicle for donors looking to purchase preferential access, because a single, large 

contribution to a political party is “more effective for obtaining access to federal officials than 

several small . . . contributions” adding up to the same amount of money. (FEC Facts ¶¶ 80-82.) 

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The fact that a contribution would be bequeathed would increase the chance that it could be very 

large, and thus capable of purchasing greater preferential access and influence. (Id. ¶¶ 83-86.) 

As the LNC points out, “bequests are . . . likely to be more generous than donations made in 

one’s lifetime” because “death is the time at which donors are least inhibited in their spending, as 

they have no personal need to save and spend their money.” (LNC Mem. at 2, 12.) In fact, the 

three bequests the LNC has received, including the Burrington bequest, were each significantly 

larger than the LNC’s median donation and any amount those donors had contributed to the LNC 

during their lifetimes. (Id. at 12-13; FEC Facts ¶ 84.) 

Similarly, before BCRA, the two major political parties were permitted to accept the full 

amount of soft-money bequests and thus received donations much greater than the Contribution 

Limit. (FEC Facts ¶ 90.) For example, the Democratic National Committee (“DNC”) accepted a 

$390,000 bequeathed soft-money donation in 2002, and the RNC accepted a bequeathed softmoney donation in excess of $141,000 in 1999. (Id.) Once the Soft-Money Ban went into 

effect, large bequeathed contributions to the national party committees continued, but they were 

capped by the Contribution Limit. (Id. ¶¶ 93-101.) For example, one individual bequeathed 

more than $574,000 to the RNC in 2008, but to comply with FECA, the estate and the RNC 

created an irrevocable trust to hold the bequest and contribute FECA-compliant amounts to the 

RNC annually. (Id. ¶ 95; see also id. ¶¶ 96-98 (showing that in 2008, decedents left bequests of 

$200,000, $267,595.41, and more than $216,000 for the DNC, which were all limited by 

FECA).) Due to the Contribution Limit, the average bequeathed hard-money contribution to the 

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26 

national party committees is far less than the average bequeathed soft-money donation had 

been.13 (Id. ¶¶ 91-92.) 

Against this backdrop, it is unsurprising that the LNC intends to direct more effort into 

soliciting bequests if they are no longer subject to the Contribution Limit. (FEC Facts ¶ 104.) 

This plan is reminiscent of the extra effort made by the national party committees when softmoney donations were unlimited, given the potential for raising large sums. (See id. ¶ 82.) The 

LNC candidly admits that it would implement a planned-giving program that would target 

“people that [the LNC] ha[s] reason to believe are well-to-do or reasonably so” and that it would 

do so at events involving federal candidates. (Id. ¶ 104.) Moreover, the LNC would accept a 

bequest of any size, and the party believes it “would be wonderful” if it received a million dollar 

bequest — which would be nearly the size of the LNC’s entire 2010 operating budget. (Id.

¶ 103.) If a $500,000 donation to the DNC could purchase time with the President of the United 

States (id. ¶ 47), a $1 million party donation seems likely to buy even more preferential access 

and influence. Cf. McConnell, 540 U.S. at 149 (quoting a former U.S. Senator: “Who, after all, 

can seriously contend that a $100,000 donation does not alter the way one thinks about — and 

quite possibly votes on — an issue?” (internal quotation marks omitted)). 

ii. Unlimited Bequeathed Contributions to National Party 

Committees Could Directly Benefit Federal Candidates, but 

Need Not in Order to Pose a Threat of Corruption and Its 

Appearance 

 Unlimited bequeathed contributions to national party committees could directly benefit 

particular federal officeholders, but the threat of corruption and its appearance would likely arise 

 

13 Individuals have bequeathed many millions of dollars to organizations they support, and 

organizations looking to raise funds, including politically active groups, have instituted 

sophisticated planned-giving programs aimed at soliciting bequests and other forms of planned 

giving. (FEC Facts ¶¶ 85-86.) Moreover, an industry of consultants focuses on advising 

organizations about how to more effectively solicit bequests. (Id. ¶ 86.) 

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even without such direct candidate benefits. As explained supra pp. 21-22, McConnell held that 

“large soft-money contributions to national parties are likely to create actual or apparent 

indebtedness on the part of federal officeholders, regardless of how those funds are ultimately 

used.” 540 U.S. at 155 (emphasis added); see FEC Facts ¶¶ 73-75. Donors cared more about 

responding favorably to the solicitations of officeholders and party officials than about how the 

parties actually spent the donations. (FEC Facts ¶ 43.) 

 Thus, the federal candidates of the LNC and other national party committees would value 

a large bequest regardless of whether it ever benefited them personally, given their unity of 

interest with the party (see, e.g., FEC Facts ¶¶ 22, 24-27 (detailing close relationship between the 

LNC and its federal candidates)) and the considerable control parties have over their candidates 

and officeholders (see, e.g., id. ¶ 27 (indicating that the LNC can rescind the party’s presidential 

nomination from a candidate that fails to follow the party’s platform)). It is therefore beside the 

point that, as the LNC stresses, a donor recording a bequest might not be able to determine which 

federal candidates would eventually benefit from the bequest. (See LNC Mem. at 2, 11-12, 17, 

23.) Nor does it matter that candidates might not know for certain that they would benefit 

directly from a recorded bequest. (See id. at 2, 12, 22.) As explained in RNC, 698 F. Supp. 2d at 

158-60, the threat of corruption from unlimited donations to political parties would persist even 

if a party did not use any of the donations it received to benefit its federal officeholders. 

Nevertheless, national party committees and donors could informally steer bequeathed 

contributions to benefit particular federal officeholders and candidates.14 See Colorado II, 533 

 

14 Even the LNC appears to recognize this. (See LNC Mem. at 11 (“Nor can the FEC deny 

that individuals who leave testamentary bequests for political parties often have no idea which 

candidates might benefit from the contribution.” (emphasis added)); at 12 (“In part for the same 

reasons, a political party’s federal office candidates cannot reliably count on receiving money 

from particular bequests in many cases.” (emphasis added)); at 22 (“[N]or is there any lawful 

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28 

U.S. at 459. The parties could, as some have in the past, keep informal tallies of how many 

recorded bequests a candidate or officeholder solicited, and bestow a financial benefit on that 

candidate either immediately with other funds, or later upon receipt of the testator’s bequest. 

(See FEC Facts ¶¶ 69-72 (discussing the former soft-money fundraising tally system).) Indeed, a 

testator could indicate in the bequest itself which candidate or officeholder should benefit, and 

some testators have already done so (see id. ¶ 128 (reflecting wills with bequests for the “Hillary 

Clinton Election Committee” and “Barack Obama’s campaign fund”)). Since many Members of 

Congress have “safe” seats which they may keep for a very long time, donors could often be 

reasonably certain that a bequest would end up benefiting a particular officeholder, and an 

officeholder would have the same kind of incentive to please such potential donors that Members 

had when large soft-money donations could be lawfully solicited. 

 Finally, after a testator dies, the testator’s family, friends, or associates could inform the 

national party committee which federal candidates the decedent would have wanted to benefit 

from the bequest. For example, in 2010, a trustee in charge of a $200,000 bequest left for the 

DNC asked the DNC’s then-chair to use a portion of those funds to defeat a particular Senate 

candidate because it would have reflected the decedent’s wishes. (FEC Facts ¶ 124.) 

iii. National Party Committees Could Sell Preferential Access to 

Their Federal Candidates and Officeholders in Exchange for 

Recorded Bequests 

 National party committees could exploit a bequeathed-contribution loophole by selling 

preferential access to their federal candidates and officeholders in exchange for donors recording 

or otherwise promising large bequests — just as the parties sold access for soft money. For 

example, a national party committee or its candidates could approach wealthy individuals known 

 

way for political candidates to ensure that memorialized gifts to their parties are reaped in time 

for election day.” (emphasis added)).) 

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to be interested in influencing federal elections (see, e.g., FEC Facts ¶¶ 76-79) and inform them 

that while inter vivos contributions are limited, a bequeathed contribution could be for any 

amount and could have an enormous impact on future federal elections (cf. id. ¶¶ 36-37 

(explaining how parties and candidates solicited soft-money donations from donors who had 

already contributed the maximum allowed by FECA)). In exchange for some reasonable 

assurance that the donor had recorded the bequest, such as receiving a copy of the will, the party 

could then arrange high-level access to candidates and officeholders for the donor so that he or 

she could make a personal pitch regarding an important policy issue. (Cf. id. ¶¶ 46-48 

(describing how six-figure donations got donors meetings with high level officials, including the 

President, to talk about legislation and other policy issues)). Because the donor could revoke the 

recorded bequest at any time before death, the candidates and lawmakers would be under 

pressure to comply with the donor’s policy preferences and perhaps offer further preferential 

access in the future. (Cf. id. ¶ 45 (describing how soft-money donations influenced legislative 

decisions).) 

 This process could easily be integrated into national party committees’ major-donor 

programs. As discussed supra p. 22, the national party committees “furnish[ed] their own menus 

of opportunities for access to would-be soft-money donors, with increased prices reflecting an 

increased level of access.” McConnell, 540 U.S. at 151; see FEC Facts ¶¶ 49-51. The practice 

of selling increasing levels of access has continued even after BRCA was enacted (FEC Facts ¶ 

52), including by the LNC (id. ¶¶ 54-62). For example, an LNC contributor can become a 

member of the “Chairman’s Circle” major-donor group for $25,000 annually or $2,500 monthly, 

and in return, receive “[d]irect contact with [the] National Chair, POTUS [(President of the 

United States)] nominee, or significant L[ibertarian ]P[arty] candidate during [the] campaign 

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season.” (Id. ¶ 54.) The parties could offer membership in such major-donor programs — and 

programs with far higher admission prices — in exchange for recording a bequest of a sufficient 

size or simply for not revoking an already recorded bequest. (See id. ¶ 109.) Indeed, the LNC 

could not rule out that it would grant membership into its Chairman’s Circle on this basis. (Id.) 

 It is not uncommon for organizations that accept bequests to reward their future donors in 

exchange for some assurance that the bequest was recorded. (FEC Facts ¶¶ 111-14.) For 

example, the National Rifle Association (“NRA”) recognizes people who plan to leave it 

bequests through a recognition society. (Id. ¶ 112.) The NRA encourages future donors to 

notify the NRA of their bequest, and those who provide the NRA with a copy of their will 

demonstrating their future gift to the NRA are “awarded Ambassador Membership in the 

Heritage Society and receive a special gift and invitations to members only events.” (Id.) 

National party committees could easily adopt a similar program involving “members only 

events” with federal officeholders. 

 The LNC concedes that a national party committee could solicit individuals to leave 

bequests of unlimited amounts in exchange for preferential access to one or more of its federal 

officeholders or candidates. (FEC Facts ¶¶ 106-07.) The LNC nevertheless argues that it does 

not “manifest corruption for a political party or its candidates to ingratiate themselves to 

individuals in the hope that they might donate money.” (LNC Mem. at 2; see also id. at 22). But 

parties have been willing to sell preferential access on the basis of a promise of a future 

contribution. For example, during the soft-money era, donors could join the RNC’s Team 100 

major-donor group and enjoy special benefits on the basis of an immediate $100,000 donation 

and a commitment to donate $25,000 annually for three years in the future. (FEC Facts ¶ 66.) 

Today, the RNC continues to permit major-donor group membership on the basis of pledges to 

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donate in the future (id. ¶¶ 66-67), as does the LNC (id. ¶ 68). As McConnell illustrates, national 

parties and federal candidates do not grant preferential access to major donors only in exchange 

for past contributions; they also seek to encourage future contributions. (Id. ¶¶ 63-64.) Indeed, 

even the LNC acknowledges that corruption based on the promise of a future bequest is possible 

if the bequest is sufficiently imminent. (See LNC Mem. at 23-24 (suggesting corruption could 

arise from “soliciting a bequest from a terminally-ill individual”).) 

Of course, a testator could revoke a recorded bequest before death, as the LNC notes 

(LNC Mem. at 2, 22), but this uncertainty could in fact increase a national party’s incentive to 

cater to the wishes of the potential donor in exchange for a recorded bequest, particularly if a 

large amount of money were at stake. Otherwise, the party might lose the bequest. See

McConnell v. FEC, 251 F. Supp. 2d 176, 481 (D.D.C. 2003) (Kollar-Kotelly, J.) (quoting former 

Senator Alan Simpson: “When you don’t pay the piper that finances your campaigns, you will 

never get any more money from that piper.”), 489-90 (quoting lobbyist Wright H. Andrews: 

“[M]ost federal elected officials recognize that continued financial support from the donor often 

may be contingent upon the donor feeling that he or she has received a fair hearing and some 

degree of consideration or support.”). 

iv. National Party Committees Could Sell Preferential Access to 

Their Federal Candidates and Officeholders for the Family, 

Friends, or Associates of a Decedent Who Left a Large 

Bequest for the Party 

 After death, a donor can no longer receive access to federal candidates and officeholders, 

but the donor could be survived by like-minded associates and family members who could 

receive preferential access in the decedent’s place. Indeed, wealthy individuals who donate 

substantial sums to influence federal election often have family, friends, and associates with 

similar political interests. (FEC Facts ¶¶ 115-16.) For example, George Soros, 81, stated in 

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2003 that if he could have traded his entire $7 billion fortune to defeat then-President George W. 

Bush, he would have if someone had “guaranteed” it would work. (Id. ¶¶ 115.) In 2012, Soros’s 

son Alexander donated $200,000 to a super PAC supporting President Obama. (Id.) 

 The like-minded friends, family, and associates of a decedent can take a strong interest in 

the decedent’s bequest — sometimes to the point where they act as a living representative of the 

decedent’s preferences. (See id. ¶¶ 117-18.) For example, in 2010, the trustee of a trust holding 

a $200,000 bequest from her deceased friend to the DNC wrote to the DNC’s then-chair: 

Due to the fact that mid-term elections are upon us, I [am] working to get 

this [contribution from the decedent’s bequest] out to you as quickly as 

possible. I know it would be important to my friend, Michael Buckley, 

who we called “Buckley.” Of course I cannot speak with him, as he is 

deceased, but both of us were kindred spirits with regard to our political 

views and had many, many discussions on politics. As you can see by the 

fact that he left the [DNC] 25% of his estate, it was a very important thing 

to him. While I believe he would want you to use the money in the way 

you think best, it is my heartfelt belief that he would want this year’s 

money going towards defeating Carly Fiorina and Meg Whitman in 

California. 

(Id. ¶ 117.) The trustee then asked the DNC to let her know if the money would in fact be used 

to help defeat Fiorina and Whitman, because the decedent’s “friends would be pleased to know.” 

(Id.) Thus, the LNC is incorrect that “once a donee has passed away, nothing but a party’s 

conscience obligates it to honor any promise to the deceased, whose money the party already 

has, and who can neither donate more nor retaliate.” (LNC Mem. at 22.) To the contrary, the 

donee could have family or friends, like Buckley’s friend, who would be very interested in 

whether the party honored promises made to the deceased and, if those promises were not 

honored, might decline to donate to the party themselves, or might be in a position to retaliate, 

particularly if they had a role in effecting the bequest to the party. A national party committee 

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would clearly have an incentive to please such people, and could grant them the preferential 

access the decedent would have been entitled to were he or she still alive.15 

v. The LNC’s Status as a Minor Party Does Not Alter the 

Potential for Corruption and Its Appearance If the LNC Could 

Accept Unlimited Bequests 

 The threat of corruption and its appearance that could arise from unlimited bequeathed 

contributions is no less real in the case of a minor party like the LNC. As the Supreme Court 

recognized, “the relevance of the interest in avoiding actual or apparent corruption is not a 

function of the number of legislators a given party manages to elect,” and thus it is “reasonable 

to require that all parties and all candidates follow the same set of rules designed to protect the 

integrity of the electoral process.” McConnell, 540 U.S. at 159 (emphasis added). 

 In Buckley, the Supreme Court rejected a claim by the Libertarian Party, among others, 

that FECA’s contribution limits invidiously discriminate against minor-party candidates. 424 

U.S. at 33-35 & n.40. The Court explained that “any attempt to exclude minor parties and 

independents en masse from the Act’s contribution limitations overlooks the fact that minorparty candidates may win elective office or have a substantial impact on the outcome of an 

election.” Id. at 34-35. In McConnell, the Court addressed a similar argument by the LNC and 

others who claimed that the Soft-Money Ban was overbroad because it applied to minor parties, 

“which, owing to their slim prospects for electoral success and the fact that they receive few 

large soft-money contributions from corporate sources, pose no threat of corruption comparable 

 

15 For example, in February 2010, the LNC learned that it was to receive a bequest from 

Joseph A. Reitano that eventually amounted to more than $19,000. (FEC Facts ¶¶ 121-22.) 

LNC officials later discovered that Reitano’s son was a former LNC donor. (Id.) If Reitano had 

contributed $19,000 to the LNC while alive, he would have qualified for membership in the 

Chairman’s Circle major-donor group, which today offers preferential access to the LNC’s 

presidential candidate, among others. (Id.) Had Reitano’s son asked, the LNC could have 

allowed him to become a member of the Chairman’s Circle in his father’s place; the LNC has no 

rules that would bar such a substitution. (Id.) 

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to that posed by the RNC and DNC.” 540 U.S. at 158-59. Rejecting that claim, McConnell

reiterated Buckley’s observation that minor-party candidates may win or substantially affect 

elections and held that the corruption rationale applies fully to minor parties. Id. at 159. 

 In this case, the LNC similarly argues that because it “has never seen one of its 

candidates elected to federal office,” it is “not in any position to deliver political favors in 

exchange for promises of future bequests.” (Compl. ¶ 20; see also LNC Mem. at 4.) But 

Buckley and McConnell preclude the LNC’s attempt to relitigate this issue.

16 And the record 

shows that the LNC exemplifies the very factors upon which Buckley and McConnell relied in 

upholding the application to minor parties of the same contributions limits that apply to major 

parties. 

First, the LNC’s candidates have won many elections for state and local office, and they 

may well win an election for federal office. (See FEC Facts ¶¶ 130-35; LNC Mot., Redpath 

Decl. ¶ 2 (Docket No. 25-15).) The LNC considers itself the “number one . . . minor party in the 

United States,” and it aspires to be a major party, as well as to “have a Libertarian president and 

a Libertarian Congress.” (FEC Facts ¶¶ 130-31.) In any one election cycle, the LNC typically 

fields “[n]orth of 200” candidates for federal office, and in five of the last six federal elections, 

its candidates for the House of Representatives collectively earned more than one million votes, 

which no minor party has done since 1912. (Id. ¶ 132-33.) 

 

16 See RNC, 698 F. Supp. 2d at 157 (“[A] plaintiff cannot successfully bring an as-applied 

challenge to a statutory provision based on the same factual and legal arguments the Supreme 

Court expressly considered when rejecting a facial challenge to that provision.”). As the LNC 

notes, McConnell left the door open for a minor party to bring an as-applied challenge against 

the Soft-Money Ban, but only if “[section 441i(a)] prevents it from ‘amassing the resources 

necessary for effective advocacy.’” 540 U.S. at 159 (quoting Buckley, 424 U.S. at 21). We 

address this argument infra pp. 37-40. McConnell closed the door, however, on an as-applied 

challenge based on the claim that a minor party lacking federal officeholders cannot raise 

corruption concerns. 

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 Second, the LNC’s candidates have had a substantial impact on the outcome of federal 

elections, which the party values, since it results in attention from the media, voters, and other 

candidates. (FEC Facts ¶¶ 137-39.) As the LNC wrote in a solicitation in 2006: “One of the 

most significant achievements of the year was our candidates being identified as the deciding 

factor in control of the U.S. Senate.” (Id. ¶ 139.) The letter continued, “Our impact in these 

important elections even led to an article in The Economist titled ‘Libertarians Emerge as a 

Force.’” (Id.) 

3. The Contribution Limit as Applied to Bequeathed Contributions to 

National Party Committees Is Closely Drawn 

 Finally, the Contribution Limit as applied to bequeathed contributions is closely drawn to 

address the important government interests of preventing corruption and its appearance. First, 

Buckley and McConnell have already held that the limit at issue here is closely drawn to match 

the anti-corruption interest, and it need not be narrowly tailored as the LNC suggests. Second, 

the Contribution Limit as applied to bequeathed contributions has not prevented the LNC or any 

other national party committee from amassing the resources necessary for effective advocacy. 

a. The Contribution Limit Is Closely Drawn to Serve an 

Anti-Corruption Interest 

 To be constitutional, a contribution limit must be closely drawn to match a sufficiently 

important interest. McConnell, 540 U.S. at 136. Unlike strict scrutiny, which requires narrow 

tailoring, the “lesser demand” of intermediate scrutiny, id., does not require that a contribution 

limit be the least restrictive means of preventing corruption and its appearance, see, e.g., Buckley, 

424 U.S. at 27-28 (rejecting argument that contribution limits are invalid because bribery laws 

and disclosure requirements are “less restrictive means” of addressing corruption). Accordingly, 

Buckley rejected the argument that FECA’s contribution limits are overbroad even though most 

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large contributors do not seek improper influence. Id. at 29-30. The Court explained that it is 

“difficult to isolate suspect contributions,” and “the interest in safeguarding against the 

appearance of impropriety requires that the opportunity for abuse inherent in the process of 

raising large monetary contributions be eliminated.” Id. at 30; see also McConnell, 540 U.S. at 

156 (“The Government’s strong interests in preventing corruption, and in particular the 

appearance of corruption, are thus sufficient to justify subjecting all donations to national parties 

to the source, amount, and disclosure limitations of FECA.”); FEC v. Nat’l Conservative Pol. 

Action Comm., 470 U.S. 480, 500 (1985) (noting the Court’s “deference to a congressional 

determination of the need for a prophylactic rule where the evil of potential corruption had long 

been recognized”). 

 The LNC similarly argues that the Contribution Limit, as applied to bequeathed 

contributions, is not sufficiently tailored because “the government could draft laws specifically 

addressing . . . possible corruption” involving bequests “far short of applying strict contribution 

limits to all testamentary bequests.” (LNC Mem. at 2-3; see also id. 23-24.) The LNC suggests, 

for example, that “the government could restrict the ability to solicit donations from gravely-ill 

people.” (Id. at 23.) It is far from clear how such a test would be administered, but, in any 

event, the LNC is attempting to apply a narrow-tailoring standard that the Contribution Limit 

need not meet. Under “closely drawn” scrutiny, “Congress’ failure to engage in such fine tuning 

does not invalidate the legislation,” and Congress was entitled to conclude that stopping 

corruption and its appearance required preventive limits that eliminate the “opportunity for abuse 

inherent” in large campaign contributions. Buckley, 424 U.S. at 30. 

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b. The LNC Cannot Demonstrate that the Contribution Limit as 

Applied to Bequeathed Contributions Has Prevented It from 

Amassing the Resources Necessary for Effective Advocacy 

The Contribution Limit has not prevented the LNC from amassing the resources it needs 

for effective advocacy. 

In determining whether contribution limits are closely drawn, the Supreme Court has 

recognized that “‘contribution restrictions could have a severe impact on political dialogue if the 

limitations prevented candidates and political committees from amassing the resources necessary 

for effective advocacy.’” Randall, 548 U.S. at 247 (quoting Buckley, 424 U.S. at 21). The Court 

has “asked, in other words, whether the contribution limitation was so radical in effect as to 

render political association ineffective, drive the sound of a candidate’s voice below the level of 

notice, and render contributions pointless.” Shrink Mo., 528 U.S. at 397. McConnell noted that 

“a nascent or struggling minor party” could bring an as-applied challenge against section 441i(a) 

on this basis. 540 U.S. at 159. But the Court has also emphasized that it has “no scalpel to 

probe, whether, say, a $2,000 ceiling might not serve as well as $1,000” — “distinctions in 

degree become significant only when they can be said to amount to differences in kind.” 

Buckley, 424 U.S. at 30 (internal quotation marks omitted). And Buckley concluded that there 

was “no indication” that FECA’s then-$1,000 contribution limit would have “any dramatic 

adverse effect on the funding of campaigns” generally, id. at 21; and more specifically, found no 

evidence that the limit “will have a serious effect on the initiation and scope of minor-party and 

independent candidacies,” id. at 34; see also Shrink Mo., 528 U.S. at 395 (upholding state 

contribution limits alleged to prevent effective advocacy, noting “their striking resemblance to 

the limitations sustained in Buckley”). Indeed, in Randall, the only case in which the Court 

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actually struck down contribution limits on this basis, the Court reviewed “suspiciously low” 

limits of $200-400 for candidates in state races. 548 U.S. at 238, 261. 

 In this case, the LNC claims that FECA’s current $30,800 annual contribution limit, as 

applied to bequeathed contributions, prevents the party from amassing the resources necessary 

for effective advocacy. (LNC Mem. at 15-16.) But that limit is a far cry from the limits struck 

down in Randall, and the record shows no causal relationship between the effectiveness of the 

LNC’s advocacy and the bequests it has or has not received. Moreover, the LNC is not a 

“nascent or struggling minor party.” McConnell, 540 U.S. at 159. Founded more than 40 years 

ago (see LNC Mem. at 4), the LNC considers itself the “number one . . . minor party in the 

United States” (FEC Facts ¶ 131). It is on the ballot in more states, runs more candidates, and 

raises more funds than the other minor parties. (Id.) Overall, it is the third largest political party, 

and it is active in all 50 states with more than 250,000 registered voters. (Id.) In November 

2010, the party fielded over 800 Libertarian candidates for federal, state, and local offices. (Id. ¶ 

132.) And the LNC has achieved this success while subject to FECA’s contribution limits, 

which have been in place since 1974. See Buckley, 424 U.S. at 6-7. 

Consistent with this history, the record contains no evidence demonstrating that the LNC 

cannot engage in effective advocacy. Instead, the LNC offers argument and a declaration 

reflecting its efforts to become a major party. (See LNC Mem. at 5, 15.) For example, the LNC 

argues that the “Libertarian Party might achieve greater electoral success than it has historically 

achieved if it were to obtain greater financial resources.” (Id. at 5 (emphasis added).) And its 

Treasurer, William Redpath, who testified regarding the LNC’s political successes (FEC Facts 

¶¶ 130-35), declares that the “Libertarian Party’s ability to advocate for and elect its candidates 

would still be improved today if the Party could take possession of the remainder of the 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 45 of 48
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Burrington bequest.” (LNC Mem. at 15 (emphasis added).) But a contribution limit has 

prevented effective advocacy only where it has “render[ed] political association ineffective, 

drive[n] the sound of a candidate’s voice below the level of notice, and render[ed] contributions 

pointless.” Shrink Mo., 528 U.S. at 397 (emphasis added). None of the LNC’s evidence begins 

to rise to this level. 

 Even if the LNC’s ability to engage in effective advocacy were limited, the Contribution 

Limit as applied to bequeathed contributions would not be the cause. Burrington is the only 

person to ever bequeath the LNC an amount of money in excess of the Contribution Limit. (FEC 

Facts ¶ 14.) And there is no evidence that the $189,234 of that bequest that the LNC could not 

immediately accept in 2007 (see id. ¶ 16) is all that stands between the LNC and what it 

considers effective advocacy. Cf. Buckley, 424 U.S. at 34 & n.40 (FECA did not prevent the 

Libertarian Party from engaging in effective advocacy since the party had only ever received ten 

contributions in excess of the limits); see also Shrink Mo., 528 U.S. at 395-96 (rejecting effective 

advocacy claim by candidate who only identified one contributor who would have donated more 

than the limit allowed).17

 Finally, even if the LNC’s “ability to compete” (LNC Mem. at 15) were equated with 

effective advocacy — an equation never articulated by the Supreme Court — the LNC’s 

competitive status would likely be harmed, not improved, if unlimited bequeathed contributions 

were legal. The LNC claims that the Contribution Limit violates the First Amendment rights of 

 

17 Moreover, there are other potential explanations for any financial restraints on the LNC’s 

activities. The LNC claims that “[d]onors, voters, and prospective political candidates who 

might be attracted to the party’s ideology are nonetheless dissuaded from supporting the party by 

its lack of resources,” and that “[i]t is common to encounter [such] people.” (LNC Mem. at 4-5.) 

Yet the LNC could not name one such person. (See FEC Facts, Exh. 5 (Resp. to Def.’s 

Interrogatories) at 3 (Interrogatory No. 9) (Docket No. 24-2).) Some potential donors may not 

donate to the LNC simply because they believe other libertarian groups will more effectively 

spend their money. 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 46 of 48
40 

all national party committees (FEC Facts ¶ 8; LNC Mot. at 1); it follows that, if the LNC 

prevails here on that theory, all parties — including its major-party rivals — would be able to 

accept unlimited bequeathed contributions, likely putting the LNC at a further competitive 

disadvantage. Cf. Buckley, 424 U.S. at 33 (explaining that the contribution limits “would appear 

to benefit minor-party and independent candidates relative to their major-party opponents 

because major-party candidates receive far more money in large contributions”). It is telling 

that, while the LNC has been bequeathed only $247,065 in its entire history (see FEC Facts 

¶ 84), the DNC was bequeathed over $1.2 million from just 2005 to 2009 (see id. ¶¶ 94, 96-100), 

and the RNC was bequeathed in excess of $574,000 in just one 2008 bequest (id. ¶ 95). 

 In sum, the LNC cannot demonstrate that the Contribution Limit’s application to bequests 

renders its advocacy ineffective. 

IV. CONCLUSION 

 For the foregoing reasons, the Court should deny the LNC’s motion for section 437h 

certification and grant the Commission’s motion for summary judgment. 

 Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

aherman@fec.gov 

 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

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

Special Counsel to the General Counsel 

lstevenson@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 47 of 48
41 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

 Attorney 

 khancock@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

July 6, 2012 (202) 694-1650 

Case 1:11-cv-00562-RLW Document 28 Filed 07/06/12 Page 48 of 48