UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) Civ. No. 16-121 (BAH) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) REPLY IN SUPPORT 

FEDERAL ELECTION COMMISSION ) OF MOTION TO DISMISS 

 ) 

 Defendant. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM IN 

SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF JURISDICTION 

Daniel A. Petalas (dpetalas@fec.gov) 

Acting General Counsel 

Lisa J. Stevenson (lstevenson@fec.gov) 

Deputy General Counsel – Law 

Kevin Deeley (kdeeley@fec.gov) 

Acting Associate General Counsel 

Harry J. Summers (hsummers@fec.gov) 

Assistant General Counsel 

Kevin P. Hancock (khancock@fec.gov) 

Attorney 

Jacob S. Siler (jsiler@fec.gov) 

Attorney 

 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

May 19, 2016 (202) 694-1650 

Case 1:16-cv-00121-BAH Document 14 Filed 05/19/16 Page 1 of 16
i

TABLE OF CONTENTS 

 Page

ARGUMENT ............................................................................................................................2 

A. The LNC Lacks Standing Because Its Injuries Are Self-Inflicted .....................2 

1. The LNC Cannot Show That FECA Prevents It From 

Immediately Accepting the Entire Shaber Bequest ...............................2 

2. The LNC’s Motivations for Declining to Accept the Entire, 

Fungible Shaber Bequest into Permitted Accounts Provide 

No Grounds for Standing .......................................................................6 

3. The Self-Inflicted Nature of the LNC’s Alleged Injuries Defeats 

All of the LNC’s Claims Including Its Facial Challenge ....................10 

B. The LNC Does Not Even Try to Show That Its Claimed 

Competitive Disadvantage Is an Injury in Fact That 

Is Fairly Traceable to FECA and Can Be Redressed Here ..............................12 

CONCLUSION ........................................................................................................................14 

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Plaintiff Libertarian National Committee, Inc. (“LNC”) has failed to show that it has 

standing to challenge the Federal Election Campaign Act’s (“FECA”) annual limit on 

contributions from an individual (including an estate) to the General Account of a national party 

committee. The LNC’s claimed injury was self-inflicted because the LNC can actually do what 

it seeks to do here: As the complaint admits, a 2014 amendment to FECA allows the LNC to 

immediately accept what remains of its deceased donor’s $235,000 bequest. In fact, the trustee 

of the donor’s estate attempted to contribute the entire bequest to the LNC. Instead of accepting 

it, the LNC filed this lawsuit seeking the invalidation of part of FECA. Even though the trustee 

stated that the donor’s will allows the LNC to accept the bequest “how it wishes,” the LNC 

incorrectly claims that it cannot receive the entire bequest because of the will, which does not 

constitute government action in any event. A Federal Election Commission (“Commission” or 

“FEC”) advisory opinion that the trustee obtained regarding the bequest also does not prevent the 

LNC from accepting the entire amount, because the opinion is explicitly premised on the LNC’s 

choice to “decline[] to accept any of the remaining distribution.” 

The LNC’s injury is no less self-inflicted merely because the LNC believes it had good 

reasons to choose not to accept the entire bequest. The LNC’s preference to spend the bequest 

on advocacy and elections (and not its conventions, headquarters, or election-related legal 

expenses) also fails to qualify as a cognizable injury here. The LNC does not dispute that it has 

spent significant sums on its new headquarters and its conventions, including the presidential 

nominating convention it will hold later this month in Orlando, Florida. Those expenses exceed 

the Shaber bequest, and money is fungible. The LNC could thus accept the entire bequest into 

its Segregated Accounts and thereby free an equal amount in its General Account to be used for 

advocacy and elections. Even though the standing inquiry centers on whether jurisdiction 

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existed at the time the plaintiff filed suit — in this case 2016 — the LNC improperly analyzes its 

Segregated Account expenses only for 2015, while avoiding stating anything about its 2016 

expenses. Yet the LNC’s website is currently soliciting an additional half-million dollars in 

Segregated Account funds to help pay off the mortgage on its headquarters. The LNC has thus 

failed to carry its burden of proving it had standing when it filed the complaint, and its assertions 

regarding mootness are beside the point. The self-inflicted nature of the LNC’s alleged injuries 

defeat all of its claims, including its facial challenge. 

Finally, the LNC does not dispute the FEC’s showing that the competitive disadvantage 

the LNC claims to suffer and wishes to remedy by spending the bequest does not satisfy standing 

requirements. Instead, the LNC claims that the complaint’s focus is on advocacy and that the 

LNC’s stated desire to spend the bequest to address its competitive disadvantage is irrelevant to 

its claims of injury. But those assertions are inconsistent with the LNC’s simultaneous claim that 

FECA has injured it by not allowing it to accept the bequest and spend the bequest as it wishes to 

achieve electoral success. The LNC’s contortions cannot change the complaint. 

The Court should dismiss the complaint for lack of jurisdiction. 

ARGUMENT 

A. The LNC Lacks Standing Because Its Injuries Are Self-Inflicted 

1. The LNC Cannot Show That FECA Prevents It from Immediately 

Accepting the Entire Shaber Bequest 

The LNC has caused its own alleged injuries by choosing not to immediately accept the 

Shaber bequest, as FECA allows (see FEC’s Mem. in Supp. of Its Mot. to Dismiss for Lack of 

Jurisdiction (“FEC Br.”) at 10-14 (Docket No. 9)), and the LNC has failed to show otherwise in 

its opposition. The LNC does not dispute that “any harm allegedly arising from a political 

actor’s voluntary choice not to accept contributions that FECA allows it to accept is a selfCase 1:16-cv-00121-BAH Document 14 Filed 05/19/16 Page 4 of 16
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inflicted injury.” (FEC Br. at 10 (citing McConnell v. FEC, 540 U.S. 93, 226-28 (2003); Sykes v. 

FEC, 335 F. Supp. 2d 84, 88-94 (D.D.C. 2004)).) And the LNC’s complaint acknowledges that 

FECA allows the LNC to use its General Account and new Segregated Accounts to “‘accept the 

entire balance of the Shaber bequest immediately.’” (Id. at 11 (quoting Compl. ¶ 33 (Docket No. 

1); see also Compl. pp. 1-2 (acknowledging that “the Government would allow the Party to 

accept as much as $100,200 per year from Shaber’s bequest” into each of its three segregated 

accounts), ¶¶ 19, 29 (stating that the “LNC could even accept any combination of these $100,200 

donations” into its three segregated accounts, “in addition to the $33,400 limit for general 

expressive purposes”).) 

Congress created the new Segregated Accounts in December 2014, and so they did not 

yet exist at the time of the LNC’s previous lawsuit in 2011 unsuccessfully challenging the 

$33,400 General Account limit, in which the LNC alleged it wanted to accept a $217,734 

bequest in one year. FEC Br. at 4-6; see LNC v. FEC, 930 F. Supp. 2d 154, 155-57 (D.D.C. 

2013) (“LNC I”), summarily aff’d in part, No. 13-5094, 2014 WL 590973, at *1 (D.C. Cir. Feb. 

7, 2014) (per curiam), and vacating as moot in part, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en 

banc) (Doc. No. 1485531).1

 And so contrary to the LNC’s assertions, the district court’s holding 

that the LNC had standing in that case has no bearing on this one, in which the LNC can in fact 

accept the bequest at issue in one year because of the new Segregated Accounts. (See LNC’s 

Mem. in Opp’n to FEC’s Mot. to Dismiss (“LNC Opp’n”) at 1-2 (Docket No. 12).) The LNC 

therefore lacks standing, since its claimed injuries stem not from the operation of FECA’s limits, 

but from the LNC’s voluntary choice not to accept the entire Shaber bequest. See McConnell, 

540 U.S. at 228; Sykes, 335 F. Supp. 2d at 88-94. 

 

1

 http://www.fec.gov/law/litigation/lnc_ac_per_curiam_order_dismissal.pdf (last viewed 

May 19, 2016). 

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Even though the LNC admits in its complaint that FECA allows it to immediately accept 

the Shaber bequest, the LNC now backtracks and asserts that it cannot after all. Both of the 

reasons the LNC gives for this claim lack merit. 

First, the terms of Shaber’s will do not preserve the LNC’s standing. The LNC contends 

incorrectly that Shaber’s will bars it from taking the entire bequest into its Segregated Accounts. 

(LNC Opp’n at 3, 5, 9.) But the LNC’s reading of Shaber’s will conflicts with that of Shaber’s 

own trustee, Alexina Shaber. In her advisory opinion request to the FEC, Ms. Shaber explained 

that because Mr. Shaber directed that his bequest be made to the LNC “outright,” it is therefore 

“entirely up to the LNC how it wishes to apply the distribution.” Letter from Michelle M. Lauer, 

John C. Lincoln Law Offices, to FEC Office of General Counsel at AOR002 (June 15, 2015) 

(“Trustee Letter”).2

 Ms. Shaber even tried to contribute the entire bequest to the LNC’s 

Segregated Accounts, and the LNC declined. Id.; see also FEC Br. at 6-7. Nevertheless, the 

LNC claims that Mr. Shaber “would have wanted” and “would have doubtless wished” for the 

LNC not to accept his bequest into its Segregated Accounts. (LNC Opp’n at 3, 14.) But Mr. 

Shaber executed his will in 2010 and died in August 2014. See Trustee Letter at AOR001-2. 

The LNC never explains how he could have intended at those junctures that the LNC not accept 

his bequest into Segregated Accounts that Congress did not create until December 2014. (See

FEC Br. at 5.) In any case, the LNC’s claim about the will terms fails to show an injury that is 

fairly traceable to FECA, as it must to support standing. See Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560 (1992). 

Second, no FEC advisory opinion prevents the LNC from immediately accepting or 

otherwise controlling the entire escrowed Shaber bequest, contrary to the LNC’s claims. (LNC 

 

2

 See http://saos.fec.gov/aodocs/1317218.pdf (last visited May 19, 2016). 

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Opp’n at 3-5, 7, 9-10, 14.) As the LNC acknowledges, the Commission’s opinions state that the 

recipient of a bequest may not exercise control over an amount of a “bequest exceeding

contribution limits.” (Id. at 4 (emphasis added).) A contribution is made when the contributor 

“relinquishes control” over the contribution, 11 C.F.R. § 110.1(b)(6), and so a bequest recipient 

cannot legally exercise control over the undistributed portions of a bequest when doing so would 

result in an “excessive contribution,” FEC Advisory Op. (“AO”) 2004-02 (Nat’l Comm. for an 

Effective Congress), 2004 WL 1402536, at *2 (Feb. 26, 2004); see also AO 1999-14 (Council 

for a Livable World), 1999 WL 521238, at *2 (July 16, 1999) (stating that a committee could 

control an escrowed bequest it solicited but “only to the extent that the solicitee’s bequest is no 

more than $5,000,” the applicable FECA limit). 

Because the restrictions above apply only to excessive contributions, no advisory opinion 

would be violated if the LNC were to immediately accept or otherwise control the entire Shaber 

bequest remaining in escrow (about $168,775.20) using its Segregated Accounts. (FEC Br. at 7.) 

FECA’s Segregated and General Account Limits combined currently allow any one individual or 

estate to contribute up to $334,000 in one calendar year to a national party committee like the 

LNC. (Id. at 11.) The LNC refused the Shaber trustee’s offer to contribute the entire bequest 

with portions going to the LNC’s Segregated Accounts. See Trustee Letter at AOR002. As a 

result, to avoid further costs to the trust, the Shaber trustee asked the FEC if she could place the 

bequest in an independent escrow account that would then contribute to the LNC annual amounts 

that comply with only the Party General Account Limit (currently $33,400 per calendar year). 

Id. The FEC approved the trustee’s request in an advisory opinion that is explicitly premised on 

the LNC’s choice to not accept the bequest into its Segregated Accounts. AO 2015-05 (Shaber),

2015 WL 4978865, *1 (Aug. 11, 2015) (“The [LNC] has declined to accept any of the remaining 

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distribution into a segregated account.”). Nevertheless, the LNC now incorrectly asserts that its 

hands are tied by this advisory opinion — which exists only due to its refusal to take the bequest 

in the first place. The opinion presents no obstacle to accepting the bequest using Segregated 

Accounts because it states only that the LNC may not exercise control over the escrowed Shaber 

bequest to avoid violating the $33,400 limit to which the LNC voluntarily subjected itself. Id. at 

*1-3. The opinion does not say that the LNC could no longer decide to use its Segregated 

Accounts and their much higher limits to accept the bequest, as FECA permits. See id.

 The LNC alleges that it wants to immediately accept the entire Shaber bequest and it can 

do so. It therefore lacks standing. 

2. The LNC’s Motivations for Declining to Accept the Entire, Fungible 

Shaber Bequest into Permitted Accounts Provide No Grounds for 

Standing 

In addition to incorrectly asserting that it cannot not immediately accept the entire Shaber 

bequest, the LNC also repeatedly claims that it cannot spend that money as it wishes. (See, e.g., 

LNC Opp’n at 1.) It is not clear whether these assertions are meant to justify the LNC’s choice 

not to access the entire Shaber bequest or to allege a standalone injury in fact. (Compare id. at 

19 (“The LNC’s explanations for why it needs money, and what it would like to do with that 

money, do not alter the fact that it complains of specific injuries in being unable to access money 

that it wishes to access.”), with id. at 8 (“LNC’s injury is that it cannot accept money . . . for 

spending as it wishes.”).) Either way, the LNC’s preference to accept the Shaber bequest into a 

particular bank account does not provide it with standing. 

In the circumstances presented here, it does not matter why the LNC does not want to 

accept the Shaber bequest; it only matters that it can legally accept it. (See FEC Br. at 11-12.) 

As the Commission explained in its opening brief, the LNC’s claimed injuries stemming from its 

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refusal to accept the bequest are materially the same as those claimed by the third-party 

candidate found to not have standing in Sykes v. FEC. (Id. at 12.) In Sykes, the plaintiff was a 

candidate from a minor political party, like the LNC, who refused to accept contributions that 

FECA allowed him to accept from individuals living in other states during his race for U.S. 

Senate in Alaska. 335 F. Supp. 2d at 87. The plaintiff claimed he was injured because without 

the ability to spend such contributions on his campaign, he could not compete with his major 

party opponents, who were accepting out-of-state contributions. Id. at 88. The court held, 

however, that the plaintiff’s claimed injuries were self inflicted, observing that his “‘alleged 

inability to compete stems not from the operation of [the Act], but from [his] own personal 

‘wish’ not to solicit or accept [out-of-state] contributions, i.e., [his] personal choice.’” Id. at 92 

(quoting McConnell, 540 U.S. at 228) (alternations in original). The reasons he made his choice 

were beside the point. See id. Tellingly, the LNC’s brief does not address Sykes or McConnell, 

even though the FEC discussed those cases extensively in its opening brief. (See FEC Br. at 4-5, 

10-12, 15, 17-18.) 

 The LNC’s motivations are particularly irrelevant here because the LNC has expenses 

permitted by the special accounts that would exhaust the Shaber bequest and money is fungible. 

The LNC could immediately accept the Shaber bequest and effectively spend that same amount 

on advocacy and elections as it desires. (See FEC Br. at 12-14.) As the LNC admits, it could 

“have accepted the bequest, received it through the segregated purpose accounts and thereby 

freed an equal amount of money for general purposes,” including advocacy and election uses. 

(LNC Opp’n at 9; see also id. at 12 (conceding that there “is something to the [FEC’s] logic”).)3

 

 

3

 A party’s receipt of a contribution into its Segregated Accounts would immediately

liberate any funds in its General Account that the party had budgeted to pay for Segregated 

Account uses — presidential conventions, building headquarters, and election-related legal 

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 The LNC does not dispute that it solicits contributions for its Segregated Accounts and 

spends significant amounts on Segregated Account uses, as the FEC pointed out. (See FEC Br. 

at 12-13.) The LNC does not contest that during the 2014 election cycle, it spent nearly $1 

million on its building headquarters and $120,000 on its national convention. (See id.) The 

LNC also does not dispute that from January 1, 2015 through April 5, 2016 it spent at least 

$63,000 on its headquarters (id. at 13), and the LNC even adds that it actually spent $80,087.72 

on Segregated Account uses in 2015 alone (LNC Opp’n at 6-7 (citing Decl. of Robert Kraus ¶¶ 

5-6 (Docket No. 12-4))). Although the LNC is notably silent about its 2016 and future expenses 

— including the cost of its 2016 national convention which it will hold later this month in 

Orlando — it does not dispute that it has spent in excess of $100,000 on each of its recent 

conventions, as the FEC stated. (See FEC Br. at 13.) Additionally, the front page of the 

Libertarian Party’s website is currently soliciting $500,000 in Segregated Account funds (in 

addition to the approximately $325,000 already raised) to “Help Us Pay Off The Mortgage On 

Our New Office!” See Libertarian Party, http://www.lp.org (last viewed May 19, 2016) 

(emphasis omitted) (relevant graphic located halfway down right side of the page and attached 

here as exhibit A). The LNC protests that the “Government cannot force the LNC to buy a fancy 

headquarters building [and] spend lavishly on a presidential nominating convention” (LNC 

Opp’n at 8), but these figures show that the LNC is already engaged in such spending and could 

easily use the Shaber bequest for it. 

 The LNC faults the Commission for “suggesting but not proving” that the LNC spent a 

sufficient amount on Segregated Account uses in 2015 (LNC Opp’n at 6-8, 13), but that is not 

the only year at issue because this suit was filed in 2016 (see Docket No. 1). The standing 

 

expenses. Thus, the party receiving that contribution would not be deprived of “the present 

value of unrestricted funds,” as the LNC claims. (LNC Opp’n at 12-13.) 

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inquiry centers “on whether the party invoking jurisdiction had the requisite stake in the outcome 

when the suit was filed.” Davis v. FEC, 554 U.S. 724, 734 (2008) (emphasis added). The 

complaint states that the LNC wants to accept the entire Shaber bequest “immediately,” not 

exclusively in 2015. (Compl. ¶¶ 26, 33.) The LNC has thus failed to carry its burden of proving 

that it has not spent and will not spend funds in the amount of the Shaber bequest on Segregated 

Account uses over the course of both last year, when it began receiving distributions from the 

estate and declined to accept the funds immediately, and this year, 2016, when the LNC 

continued to receive disbursements and initiated this action. 

 The LNC admits that it would lack standing if it spent more than the amount of the 

Shaber bequest on Segregated Account uses in what it contends is the relevant time period. 

(LNC Opp’n at 9, 12.) Earlier this year, when the LNC filed the complaint, $202,175.20 of the 

Shaber bequest remained in escrow. (See FEC Br. at 7.) As the FEC has highlighted, the LNC’s 

recent spending history and the fact that it is currently soliciting a half-million dollars to pay off 

its new headquarters building show that it will likely have more than $202,175.20 in Segregated 

Account expenses this year. In its response, the LNC details its 2015 spending but fails to say 

anything about its known or anticipated 2016 building and convention expenses. (LNC Opp’n at 

10; Kraus Decl. ¶¶ 1-7.) The LNC does apparently believe, however, that its 2016 expenses will 

at least be significant enough to moot its as-applied claims if combined with its approximately 

$80,000 in 2015 expenses. (See LNC Opp’n at 15 (incorrectly arguing that those claims would 

be capable of repetition yet evading review).) The LNC’s failure to otherwise respond to the 

Commission’s showing regarding the party’s upcoming expenses should be treated as a 

concession; plaintiff has failed to carry its burden of demonstrating standing.4

 

4

 Because the LNC lacks standing, its assertion that its claims are capable of repetition yet 

evading review is beside the point. (See LNC Opp’n at 10, 16-17.) Claims falling into that 

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3. The Self-Inflicted Nature of the LNC’s Alleged Injuries Defeats All of 

the LNC’s Claims Including Its Facial Challenge 

 The LNC lacks standing to assert its facial challenge (Count II) for the same reasons it 

lacks standing for all of its claims. Even for its facial claim, the LNC must demonstrate a valid 

injury in fact. Just last month, the D.C. Circuit dismissed a facial challenge because the plaintiff 

had failed to allege a cognizable injury, stating that it “know[s] of no case stating that a facial 

challenge to the constitutionality of a statute itself suffices to establish standing.” Williams v. 

Lew, --- F.3d ---, No. 15-5065, 2016 WL 1612804, at *8 (D.C. Cir. Apr. 22, 2016); see also, e.g., 

PETA v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002) (“While the rules for standing are less 

stringent for a facial challenge to a statute, a plaintiff must still satisfy the injury-in-fact 

requirement.”). 

 In particular, to establish standing in “a pre-enforcement facial challenge to a statute 

allegedly infringing on the freedom of speech,” the plaintiff must show an “imminent threat[]” of 

future injury. A.N.S.W.E.R. v. District of Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009). To 

meet this standard, the plaintiff must allege not only (1) “an intention to engage in a course of 

conduct arguably affected with a constitutional interest” and (2) that “the threat of future 

enforcement” is “substantial,” but also (3) that the plaintiff’s “intended future conduct is 

arguably . . . proscribed by [the] statute.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 

 

category are an exception to mootness, not standing. In any event, the LNC’s failure to even 

allege anything regarding its current and anticipated future Segregated Account expenses also 

defeats its claim to that mootness exception. To prove that its claims are capable of repetition, it 

is not enough, as the LNC claims, for it to assert that it could receive a future bequest in excess 

of the $33,400 limit. (See id. at 16.) That scenario itself is uncommon given that Shaber’s 

bequest is apparently only the second bequest the LNC has received in excess of $33,400 in its 

45-year history. See LNC I, 930 F. Supp. 2d at 175 (Findings of Fact ¶ 34). The LNC must also 

show, however, that it is unlikely to have Segregated Account expenses on which any future 

bequest exceeding $33,400 could effectively be spent. Otherwise, that future bequest would fail 

to provide standing, just as Shaber’s bequest does here. 

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2343-45 (2014) (internal quotation marks omitted; alterations in original); see also Am. Library 

Ass’n v. Barr, 956 F.2d 1178, 1194 (D.C. Cir. 1992) (holding that “a litigant bringing a preenforcement facial challenge” must “demonstrate a credible threat of prosecution under a statute 

that appears to render the litigant’s arguably protected speech illegal”). 

 The LNC cannot demonstrate that its intended future conduct is proscribed by the FECA 

provisions it challenges. As explained above, the LNC’s alleged future injury is self-inflicted; 

FECA allows any one estate or contributor to give the LNC up to $334,000 in a calendar year. 

See supra p. 5. And the LNC could effectively gain the amount of such future contributions for 

advocacy and electoral spending by accepting them into its Segregated Accounts, for which it 

has substantial periodic expenses, thus freeing up General Account funds. Id. at 7-9. Because 

FECA does not bar that conduct, the LNC does not face any credible threat of future prosecution 

for it. See, e.g., PETA, 298 F.3d at 1203 (finding no standing for plaintiffs’ pre-enforcement 

facial challenge against a law barring interference with the peaceful conduct of a school because 

the government admitted that the law did not bar plaintiffs’ planned protest); Schirmer v. 

Nagode, 621 F.3d 581, 587 (7th Cir. 2010) (holding that plaintiffs lacked standing for a preenforcement facial attack on a law barring disorderly conduct when “[o]ur reading of the 

provision’s language . . . indicates that [the law] cannot fairly be read to prohibit peaceful 

protests of the sort engaged in by the plaintiffs”).5 

 

5

 The LNC cannot claim standing to assert its facial challenge on the theory that in the 

future it might receive a bequest or contribution in an amount in excess of the combined General 

Account and Segregated Account limits (currently $334,000), since the LNC’s complaint limits 

its alleged prospective injury to “sums in amounts that are otherwise within the limits it could 

accept and spend for the segregated account purposes of 52 U.S.C. § 30116(a)(9).” (Compl. ¶ 

14.) 

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B. The LNC Does Not Even Try to Show That Its Claimed Competitive 

Disadvantage Is an Injury in Fact That Is Fairly Traceable to FECA and 

Can Be Redressed Here 

 The LNC does not even attempt to counter the FEC’s showing that the competitive 

disadvantage the LNC claims to suffer does not satisfy all three standing requirements. (See

LNC Opp’n at 18-20.) Thus, even if that claimed injury was not caused by the LNC’s refusal to 

accept the Shaber bequest, it would still fail to support standing. (See FEC Br. at 15-19.) 

 The complaint alleges that the LNC has “comparatively little” to spend on campaigning 

relative to “its two major competitors” (Compl. ¶ 12); that it has “comparatively less use” for the 

Segregated Accounts, which it points out were enacted by the “two major political parties” (id. ¶ 

13); and that it wants to immediately accept the Shaber bequest to “substantially improve its 

ability to advocate and achieve electoral success” (id. ¶ 26). The FEC explained that there is no 

legal right to compete equally against electoral opponents with more money (FEC Br. at 15), and 

the LNC has not disputed this in response. Nor does the LNC dispute that its claimed 

competitive injury results from the decisions of private actors in the political marketplace, not 

FECA. (Id. at 15-16.) 

 The LNC has also failed to refute the FEC’s showing that a favorable decision of this 

Court would worsen, not redress, its claimed competitive disadvantage. (See FEC Br. at 17-19.) 

As the Supreme Court has said, FECA 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.’” (Id. at 17-18 (quoting Buckley v. 

Valeo, 424 U.S. 1, 33 (1976) (per curiam)).) In response, the LNC calls this Supreme Court 

precedent “mere speculation” (LNC Opp’n at 20), even though the LNC’s own complaint states 

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that its fundraising lags behind that of the major parties (Compl. ¶ 12), as current fundraising 

statistics and the record in LNC I show (FEC Br. at 18-19). 

 Instead of attempting to demonstrate its alleged competitive injury, the LNC spends 

several pages trying to show that the focus of its complaint was really more on advocacy rather 

than competition. (See LNC Opp’n at 18-20.) In this section of its brief, the LNC urges the 

court to disregard its “explanations for why it needs money, and what it would like to do with 

that money” (id. at 19), even though in the rest of its brief the LNC strenuously argues that its 

“injury is that it cannot accept money . . . for spending as it wishes” (id. at 8). The LNC’s 

contortions cannot change its complaint, however, since a plaintiff’s alleged injury “[a]s pled” 

determines whether standing exists, not a later “shifting characterization” of that injury in 

briefing or argument. Doe v. Va. Dep’t of State Police, 713 F.3d 745, 755 (4th Cir. 2013), cert. 

denied, 134 S. Ct. 1538 (2014). The complaint plainly alleged comparative disadvantage relative 

to the two major political parties (Compl. ¶¶ 12-13, 26), and those allegations do not provide the 

LNC standing. 

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CONCLUSION 

 For the foregoing reasons, the Court should grant the Commission’s motion to dismiss 

under Rule 12(b)(1) because the LNC lacks standing. 

Respectfully submitted, 

Daniel A. Petalas (dpetalas@fec.gov) 

Acting General Counsel 

(D.C. Bar No. 467908) 

Lisa J. Stevenson (lstevenson@fec.gov) 

Deputy General Counsel – Law 

(D.C. Bar No. 457628) 

Kevin Deeley (kdeeley@fec.gov) 

Acting Associate General Counsel 

May 19, 2016 

Harry J. Summers (hsummers@fec.gov) 

Assistant General Counsel 

Kevin P. Hancock (khancock@fec.gov) 

Attorney 

Jacob S. Siler (jsiler@fec.gov) 

Attorney 

 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-00121-BAH Document 14 Filed 05/19/16 Page 16 of 16