UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

HOLMES, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 14-1243 (RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) RESPONSE BRIEF 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S BRIEF IN 

RESPONSE TO PLAINTIFFS’ OPENING BRIEF REGARDING CERTIFICATION 

Lisa Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

Steve N. Hajjar 

Charles Kitcher (D.C. Bar No. 986226) 

Benjamin A. Streeter III 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: March 20, 2015 (202) 694-1650

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 1 of 26
TABLE OF CONTENTS 

 Page 

I. PLAINTIFFS HAVE FAILED TO DEMONSTRATE A PROBABILITY THAT 

THEIR OWN PURPORTED INJURY WILL RECUR IN THE FUTURE ...................2 

II. THE QUESTIONS PRESENTED HERE ARE SETTLED AND INSUBSTANTIAL, 

AND MUST NOT BE CERTIFIED TO THE EN BANC COURT OF APPEALS .....2 

III. PLAINTIFFS’ CERTIFICATION BRIEF AND PROPOSED FACTS CONFIRM 

THAT THEIR FIRST AMENDMENT CHALLENGE IS INSUBSTANTIAL .........15 

 

IV. PLAINTIFFS HAVE FAILED TO IDENTIFY ANY SUBSTANTIAL FIFTH 

AMENDMENT QUESTION.......................................................................................18 

 

V. IF ANY QUESTIONS ARE CERTIFIED, SUCH QUESTIONS MUST BE 

ACCOMPANIED BY A COMPLETE FACTUAL RECORD ...................................20 

CONCLUSION ........................................................................................................................21 

 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 2 of 26
ii 

TABLE OF AUTHORITIES 

Page 

Cases 

Bread Political Action Comm. v. FEC, 455 U.S. 577 (1982) ....................................................2 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc) (per curiam) ...............................17 

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ...................................................5, 9, 10, 18 

*Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .........................................................3, 7, 17, 18 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010) ..................................................4, 7, 8, 9, 10 

Citizens United v. FEC, 558 U.S. 310 (2010) ..........................................................................14 

Clark v. Kimmitt, 431 U.S. 950 (1977) ....................................................................................18

Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (en banc) (per curiam) ............................................18 

Feinberg v. Federal Deposit Insurance Corporation, 522 F.2d 1335 (D.C. Cir. 1975) ...........4 

Gifford v. Congress, 452 F. Supp. 802 (E.D. Cal. 1978) .........................................................13 

Gifford v. Tiernan, 670 F.2d 882 (9th Cir. (1982?) .................................................................13 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) ...........................................................4 

*Holmes v. FEC, No. 14-1243 (RMC), 2014 WL 5316216 (D.D.C. Oct. 20, 2014) ...... passim 

In re Cao, 619 F.3d 410 (5th Cir. 2010) ................................................................................8, 9 

Independence Institute v. FEC, __ F. Supp. 3d __, No. 14-1500 (CKK), 2014 

WL 4959403 (D.D.C. Oct. 6, 2014), appeal docketed, No. 14-5249 

(D.C. Cir. Oct. 22, 2014) ...........................................................................13, 14, 15, 17 

Judd v. FEC, 304 Fed. App’x. 874 (D.C. Cir. 2008) (per curiam) ..........................................12 

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) (en banc) (per curiam) ................4, 10, 11 

Khachaturian v. FEC, No. 92-3232, slip op. (E.D. La. May 6, 1993) ..............................11, 12 

Libertarian National Committee v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) aff’d in part, 

 No. 13-5094, 2014 WL 509973 (D.C. Cir. 2014) ......................................................6, 7 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 3 of 26
iii 

Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C. Cir. 1980) ....................................................20

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................14 

*McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ....................................................................3, 10 

Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) ........................................................................13 

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

168 F.3d 360 (9th Cir. 1999) .......................................................................................12 

Randall v. Sorrell, 548 U.S. 230 (2006) ....................................................................................9 

Sykes v. FEC, 335 F. Supp. 2d 84 (D.D.C. 2004) ....................................................................13 

*Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) (per curiam) ...........................................2, 3 

Whitmore v. FEC, 68 F.3d 1212 (9th Cir. 1995) .....................................................................13 

Statutes and Regulations 

52 U.S.C. § 30110 ....................................................................................................................13 

52 U.S.C. § 30116(a)(2)(A) .....................................................................................................10 

28 U.S.C. § 2282 ........................................................................................................................4 

28 U.S.C. § 2284 ........................................................................................................................4 

11 C.F.R. § 110.3(c)(3) ......................................................................................................15, 16 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 4 of 26
The Federal Election Commission has demonstrated that plaintiffs’ claims are moot and 

that plaintiffs’ own dissatisfaction with the Federal Election Campaign Act’s (“FECA”) perelection contribution limit, which the Supreme Court has upheld, does not present any substantial 

constitutional question. Plaintiffs’ opening brief and proposed facts confirm both the mootness 

and insubstantiality of their constitutional claims, which plaintiffs now admit are actually 

premised on a federal regulation that they are not challenging in this case, not the statutory 

contribution limit they seek to have rewritten. Indeed, plaintiffs’ own recent submissions 

undermine the erroneous premise of their constitutional claims, i.e. that FECA contains a 

“bifurcated” $5,200 per-election-cycle contribution limit, which purportedly “allow[s] some 

contributors to give $5,200 for the general election.” (Pls.’ Br. at 29.) Not only is that assertion 

tellingly absent from plaintiffs’ proposed facts, plaintiffs affirmatively concede, as they must, 

that FECA’s per-election limit applies “separately with respect to each election,” and that “in 

2014, individual persons could contribute no more than $2,600 per candidate, per federal 

election.” (Pls.’ Proposed Facts ¶¶ 3, 5.) 

Plaintiffs’ request for certification hinges not only on their mischaracterizations of FECA 

but also on their erroneous assertion that this Court must certify any proposed constitutional 

question unless the Supreme Court has previously ruled on the same provision based on the same 

facts and the same legal theory. That exceedingly narrow interpretation of this Court’s 

gatekeeping role under 52 U.S.C. § 30110 is wrong, as even plaintiffs’ own authorities 

demonstrate. 

For the reasons below and those detailed in the FEC’s opening brief, no constitutional 

questions should be certified and this case should be dismissed as moot or summary judgment 

should be awarded to the Commission. 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 5 of 26
2 

I. PLAINTIFFS HAVE FAILED TO DEMONSTRATE A PROBABILITY THAT 

THEIR OWN PURPORTED INJURY WILL RECUR IN THE FUTURE 

 

As we have previously explained, plaintiffs’ moot claims cannot survive unless plaintiffs 

submit evidence of a “demonstrated probability” that “the same controversy will recur involving 

the same complaining party.” (FEC’s Br. Opposing Certification and in Support of Summ. J. in 

Favor of the Commission at 15 (Docket No. 27) (“FEC Br.”) (collecting cases) (emphasis 

added).) Plaintiffs have failed to meet that standard here: they have not even proposed a single 

fact concerning any future contributions plaintiffs intend to make, let alone submitted evidence 

of planned future contributions to general-election candidates whose opponents will have lacked 

“substantial primary opponents.” Plaintiffs rely instead on their erroneous claim that some 

contributors “could give $5,200 solely for use in the general election, while [plaintiffs] were 

denied that same ability” and the generalized prediction that “this . . . will continue to occur in 

future electoral cycles” (Pls.’ Opening Br. Regarding Certification at 20-21 (Docket No. 25) 

(“Pls.’ Br.”). Even setting aside plaintiffs’ false premise, which their own Proposed Facts for 

Certification ¶¶ 3, 5 (Docket No. 26) (“Proposed Facts”), contradict, their prediction fails to 

demonstrate that plaintiffs will likely face their alleged injury in the future. (See FEC Br. 15-16.) 

II. THE QUESTIONS PRESENTED HERE ARE SETTLED AND INSUBSTANTIAL, 

AND MUST NOT BE CERTIFIED TO THE EN BANC COURT OF APPEALS 

 The Court of Appeals has explained that in section 30110 cases, district courts “must 

determine whether the constitutional challenges are frivolous or involve settled legal questions.” 

Wagner v. FEC, 717 F.3d 1007, 1009 (D.C. Cir. 2013) (per curiam). This important gatekeeping 

function ensures that only legal questions that are unsettled and substantial are certified to the en 

banc courts of appeals. See Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982) 

(explaining that section 30110 cases “displac[e] existing caseloads and call[] court of appeals 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 6 of 26
3 

judges away from their normal duties”). FECA “is not an unlimited fountain of constitutional 

questions.” Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981). 

As the Commission has explained (FEC Br. at 13), constitutional challenges are only to 

be certified when the issues are “neither insubstantial nor settled.” Cal. Med. Ass’n, 453 U.S. at 

192 n.14. That is plainly the case here, where plaintiffs’ constitutional claims are both 

foreclosed by Supreme Court decisions and premised on completely erroneous characterizations 

of a federal statute and a Supreme Court decision. Holmes v. FEC, No. 14-1243 (RMC), 2014 

WL 5316216, at *1, *4 & n.5, *5 (D.D.C. Oct. 20, 2014) (explaining that plaintiffs’ claims are 

contrary to “the analysis and conclusions of the Supreme Court in Buckley v. Valeo and its 

progeny,” rejecting plaintiffs’ characterization of FECA’s per-election contribution limit as a 

$5,200 per-election-cycle limit, and rejecting plaintiffs’ suggestion that Congress or the Supreme 

Court in McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014), approved $5,200 contributions for a 

single election). 

Plaintiffs nevertheless urge certification by relying on their own relaxed interpretation of 

the certification standard that would require certification of virtually every case brought under 

section 30110: “whether a case challenging the same provision, under the same legal theory, 

premised upon the same or similar facts, has been presented to and decided by the Supreme 

Court.” (Pls.’ Br. at 8.) Plaintiffs’ microscopic interpretation of the scope of legal questions that 

would not be certified under section 30110 lacks support from any case and instead reflects only 

what plaintiffs believe should be “the heart of the inquiry.” (Id.) 

Various courts, including the D.C. Circuit, have construed section 30110 in a manner 

consistent with the district courts’ important gatekeeping function and contrary to the manner 

urged by plaintiffs. In Wagner, the D.C. Circuit explained that the question before the district 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 7 of 26
4 

court is whether the plaintiffs’ claims are “frivolous or involve settled legal questions,” 717 F.3d 

at 1009 (emphasis added). The Fifth Circuit has explained that only if a district court “concludes 

that colorable constitutional issues are raised from the facts” should it certify questions for en 

banc review. Khachaturian v. FEC, 980 F. 2d 330, 332 (5th Cir. 1992) (en banc) (per curiam); 

see also Cao v. FEC, 688 F. Supp. 2d 498, 502 (E.D. La. 2010) (quoting same). And in Goland 

v. United States, the Ninth Circuit affirmed the district court’s denial of certification of questions 

that “d[id] not fall outside the principles” established by Supreme Court precedent. 903 F.2d 

1247, 1253 (9th Cir. 1990). See infra pp. 12-13 (citing additional cases properly applying the 

standard for certification under section 30110).1

 

Plaintiffs’ invented certification standard is also contrary to the decisions it cites (Pls.’ 

Br. 6-14) as purported support for applying that standard here. In Goland, the plaintiff brought 

suit under section 30110 to challenge the constitutionality of FECA’s contributions limits and 

disclosure provisions, which he alleged infringed his First Amendment right to contribute 

anonymously. 903 F.2d at 1252. The district court concluded that the challenge was foreclosed 

by Buckley and declined to certify any constitutional question, and the plaintiff appealed. Id. at 

1249. 

                                                           

1

 Plaintiffs also cite (Pls.’ Br. at 8) as analogous the substantiality standard for determining 

whether a case should be certified to a three-judge court. The Commission agrees that the 

standard articulated in Feinberg v. Federal Deposit Insurance Corporation, 522 F.2d 1335, 1339 

(D.C. Cir. 1975), for certification to a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284, 

is instructive in the similar context of certification to the en banc court of appeals under FECA. 

But plaintiffs’ selective quotation of the Court of Appeals decision in Feinberg underscores their 

distortion of the relevant standard. Compare Pls.’ Br. at 8 (quoting portions of standard 

articulated in Feinberg), with Feinberg, 522 F.2d at 1339 (explaining that “[c]onstitutional 

claims may be regarded as insubstantial if they are ‘obviously without merit,’ or if their 

‘unsoundness so clearly results from the previous decisions of (the Supreme Court) as to 

foreclose the subject and leave no room for the inference that the question sought to be raised 

can be the subject of controversy’”) (citations omitted, emphasis added to highlight language 

omitted by plaintiffs). 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 8 of 26
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A three-judge panel of the Ninth Circuit Court of Appeals affirmed, notwithstanding the 

fact that the proposed constitutional questions were “in a sense . . . novel” and based on “unusual 

facts,” because “they d[id] not fall outside the principles established in the cases upholding 

FECA’s contribution limits and disclosure requirements.” Id. at 1253. The court rejected the 

plaintiff’s argument that the Supreme Court in Buckley did not consider questions concerning 

anonymous contributions to minor party candidates. “The issues Goland raises,” the court 

explained, “were resolved by the Court in Buckley, and no feature of his admittedly distinctive 

factual situation distinguishes his case.” Id. at 1258. Specifically, the court explained that 

Buckley had approved the application of contribution limits to minor party candidates and those 

limits served to deter corruption even where contributions were made anonymously. Id. at 1259. 

The importance of protecting anonymous political activity, the court continued, provided no 

reason to revisit the Supreme Court’s conclusion in Buckley that FECA’s reporting and 

disclosure requirements “justified the indirect burden imposed on first amendment interests.” Id.

at 1260. Thus, even though the Supreme Court in Buckley had not considered the same legal 

theory or facts presented in Goland, a three-judge panel of the Ninth Circuit upheld the district 

court’s refusal to certify the constitutional questions presented in that case. 

Goland thus plainly does not support plaintiffs’ suggestion that certification is required 

unless the Supreme Court has ruled on the same facts and legal theory. (Contra Pls.’ Br. at 9 

(discussing Goland as a purported example of plaintiffs’ broad interpretation of the certification 

standard).) Indeed, plaintiffs here are no more able to escape the dispositive effect of Buckley

than Goland was, notwithstanding his “distinctive” factual scenario. It is not necessary for the 

Supreme Court to have considered and rejected the exact same legal theory and the exact same or 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 9 of 26
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similar facts for a district court to conclude that a proposed section 30110 challenge is not 

appropriate for certification in light of more generally governing Supreme Court precedent. 

Judge Wilkins’s decision in Libertarian National Committee v. FEC, 930 F. Supp. 2d 154 

(D.D.C. 2013) (“LNC”), aff’d in part, No. 13-5094, 2014 WL 509973 (D.C. Cir. 2014), stands 

for the same proposition. In LNC, the plaintiffs sought certification under section 30110 of the 

question whether FECA’s annual contribution limits to political party committees as applied to 

testamentary bequests violated the First Amendment. Id. at 156. The district court found that 

plaintiffs’ broad question was foreclosed by Buckley, even though the Supreme Court had not 

squarely addressed bequests in that decision (or any other). Id. at 165-66 (explaining that the 

Supreme Court had upheld contribution limits in Buckley and “the as-applied challenge brought 

by the LNC . . . impermissibl[y] . . . raises issues that the Supreme Court has already 

addressed”). The court explained that bequests generally “may very well raise the anticorruption concerns that motivated the Buckley and McConnell Court to dismiss a facial attack 

on contribution limits,” notwithstanding the fact that neither of those cases analyzed contribution 

limits in the specific context of bequests. Id. Thus, in LNC too, the absence of a Supreme Court 

decision that considered and rejected the exact same legal theory and facts did not preclude the 

court from declining to certify a proposed section 30110 challenge given broadly governing 

Supreme Court authority. 

 It is true, as plaintiffs observe, that the court in LNC reframed the constitutional question 

plaintiffs had proposed in order to certify a “valid, narrower” question regarding the specific 

bequest at issue in that case. Id. at 171. The district court noted that the specific factual 

circumstances of the case suggested that the anticorruption interests in that particular case may 

have been minimal. Id. at 170-71. Those circumstances included not only that the bequestor had 

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died, but also that the recipient had virtually no contact with the bequestor before he died or with 

his heirs or representatives after his passing. Id. Assuming that certification was correct,2

 here 

there is no “valid, narrower” question the Court could certify (and plaintiffs have not even 

attempted to identify one). The question certified in LNC concerned the constitutionality of 

limits on a particular contribution in completely aberrant circumstances, a question that neither 

the Supreme Court nor any other court had specifically addressed. Here, however, plaintiffs 

pose no unique circumstances whatsoever with respect to reducing the danger of corruption and 

its appearance. The double-the-limit general-election contributions plaintiffs sought to make 

would implicate precisely the same corruption concerns as excessive contributions made by any 

other contributors, including contributors who did make primary contributions. (See FEC Br. at 

20.)3 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010), also supports the Commission’s 

position, not plaintiffs’. In Cao, the district court declined to certify several proposed 

constitutional questions because such questions failed to satisfy the threshold substantiality 

inquiry. The plaintiffs in Cao brought suit under section 30110 challenging various contribution 

and coordinated expenditure limits applicable to political parties. The district court declined to 

                                                           

2

 The matter became moot and the en banc Court of Appeals did not review the 

certification. Order, Libertarian National Committee v. FEC, No. 13-5094 (D.C. Cir. Mar. 26, 

2014) (Document #1485531). 

3

   LNC is also distinguishable because it is not possible for this Court to reframe and limit 

plaintiffs’ broad constitutional questions to apply only to the specific contributions plaintiffs 

sought to make here. The only question this Court can certify is based on a hypothetical 

application of FECA, because the only actual facts plaintiffs have alleged are now moot. See 

supra p. 2; infra p. 17-18; FEC Br. 15-16. As Judge Wilkins explained, “the Supreme Court has 

repeatedly cautioned that, in campaign finance cases in particular, it may not be appropriate to 

decide an as-applied challenge based on facts not before the court.” LNC, 930 F. Supp. 2d at 

166. The Supreme Court in California Medical similarly explained that it “do[es] not construe 

[section 30110] to require certification of constitutional claims . . . that involve purely 

hypothetical applications of the statute.” 453 U.S. at 192 n.14 (internal citations omitted). 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 11 of 26
8 

certify half of the plaintiffs’ proposed questions, and the lines the court drew further show why 

this Court should decline to certify any constitutional questions here. 

Specifically, the court rejected as frivolous two proposed constitutional questions that 

were premised on erroneous interpretations of law. Cao, 688 F. Supp. 2d at 535-39 (rejecting as 

frivolous proposed questions “premised on the [erroneous] idea that all campaign finance 

regulations are subject to an ‘unambiguously campaign related’ requirement”). Because the 

district court determined that the plaintiffs’ legal theory was meritless, it concluded that their 

proposed constitutional questions premised on that flawed theory were frivolous and refused to 

certify such questions to the en banc court of appeals. Id. at 538-39. The Fifth Circuit affirmed 

those decisions. In re Cao, 619 F.3d 410, 418-19 (5th Cir. 2010). 

The constitutional issues plaintiffs purport to raise here are similarly premised on 

erroneous legal interpretations, including (a) plaintiffs’ mischaracterization of FECA’s perelection contribution limit as a “bifurcated” $5,200 per-election-cycle “overall limit” (e.g., Pls.’ 

Br. 6, 13, 19), and (b) plaintiffs’ suggestion that the Supreme Court has indicated that a $5,200 

per-election contribution is “non-corrupting” and constitutionally permissible (id. at 19, 32). As 

plaintiffs’ own Proposed Facts make clear (Pls.’ Proposed Facts ¶¶ 4-6), the text of FECA flatly 

contradicts their assertion that the Act imposes a “bifurcated” “overall limit” on individual 

contributions to candidates. See infra p. 16-17. And as this Court previously recognized, 

“contrary to Plaintiffs’ suggestion, neither Congress nor [the Supreme Court in] McCutcheon 

approved contributions of $5,200 for a single election.” Holmes, 2014 WL 5316216, at *4. 

Also supporting the Commission’s position here is the Cao court’s refusal to certify 

several issues due to the discretion legislatures have in setting contribution limits. Plaintiffs 

sought to challenge FECA’s coordinated expenditure limits, which are regulated in the same 

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9 

manner as contributions and calculated based on the size of a jurisdiction’s voting-age 

population and accordingly apply different limits in different districts, as well as a provision that 

permits national party committees to make additional contributions to Senate candidates, above 

the limit applicable for other congressional candidates. Cao, 688 F. Supp. 2d at 543-44, 548. 

The Cao plaintiffs argued, inter alia, that (1) certain of these limits could not be justified by an 

anticorruption rationale; and (2) certain limits were too low. Though the Supreme Court had not 

earlier addressed the same precise arguments, the district court declined certification of these 

questions in light of guidance in Buckley that “Supreme Court held that the judiciary has ‘no 

scalpel to probe’ each possible contribution level,” id. at 544 (quoting Buckley, 424 U.S. 1, 30 

(1976) (per curiam)), and “[c]omplex line drawing regarding the anti-corruption interest is 

‘necessarily a judgmental decision’ best left to congressional discretion,” id. at 548 (quoting 

Buckley, 424 U.S. at 83). The court also relied on Randall v. Sorrell, 548 U.S. 230 (2006), in 

which the Supreme Court struck down Vermont’s very low per-election-cycle limits on 

contributions in state races, concluding that the “danger signs” identified in Randall, 548 U.S. at 

253, were absent with respect to the limits on coordinated expenditures. Cao, 688 F. Supp. 2d at 

544-45; see FEC Br. at 24-25 (discussing Randall’s “danger signs”). 

The Fifth Circuit affirmed the district court with respect to the coordinated expenditure 

limit and found that plaintiffs waived their right to appeal the national party/Senate contribution 

limit. In re Cao, 619 F.3d at 419-20. As this Court previously recognized, precisely the same 

Supreme Court analyses and conclusions in Buckley and Randall make the legal issues plaintiffs 

raise here unsuitable for certification, as Congress’s line drawing with respect to the per-election 

limit is due the same deference. Holmes, 2014 WL 5316216, at *4 (explaining that Congress’s 

establishment of “[t]he per-election limit was designed to restrict financial contributions while 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 13 of 26
10 

allowing expression of First Amendment associational rights in every election in which a 

candidate runs” and “is a quintessential political decision made by politicians who understand 

the process far better than the courts and is deserving of deference”). 

Contrary to plaintiffs’ suggestion (Pls.’ Br. at 10-12), the Cao court’s certification of a 

question related to the $5,000 limit on contributions from political committees to candidates, 52 

U.S.C. § 30116(a)(2)(A), does not support certification of any constitutional questions here. 

The district court found that earlier Supreme Court decisions had not dealt directly with 

contributions from political parties, and in particular a claim that limits on contributions from 

party committees need be higher than limits from other persons. Cao 688 F. Supp. 2d at 547. 

With respect to plaintiffs’ constitutional challenge here, however, the Supreme Court in Buckley

did squarely uphold the per-election limits on individual contributions to candidates. Holmes, 

2014 WL 5316216, at *1; see FEC Br. at 17-18. And plaintiffs’ only basis for distinguishing 

Buckley here is its erroneous characterization of FECA and the Supreme Court’s decision in 

McCutcheon. See supra p. 8; infra p. 16-17.4

 

The Fifth Circuit’s decision in Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992), which 

plaintiffs acknowledge (Pls.’ Br. at 8) is “instructive,” is also closely on point, both procedurally 

and substantively. Khachaturian, an independent candidate in the 1992 senatorial election in 

Louisiana, brought a lawsuit challenging FECA’s then-$1,000 individual contribution limit “as 

                                                           

4 Plaintiffs also attempt to distinguish this case from Buckley (Pls’ Br. at 22-23) by 

emphasizing the Supreme Court’s focus on candidates and parties, but the Court also explicitly 

considered the First Amendment rights of contributors when it upheld the individual per-election 

limit. See Buckley, 424 U.S. at 24-25 (evaluating FECA’s then-$1,000 limit on contributions by 

individuals to candidates by noting that “the primary First Amendment problem raised by the 

Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom of 

political association” (emphasis added)); see id. at 28-29 (concluding that “the Act’s contribution 

limitations in themselves do not undermine to any material degree the potential for robust and 

effective discussion of candidates and campaign issues” by, among others, “individual citizens”). 

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applied” to his independent candidacy. Id. at 331. After the district court denied his motion for 

a preliminary injunction and then certified constitutional questions pursuant to section 30110, the 

FEC moved for a remand. The Fifth Circuit granted the FEC’s remand motion, instructing the 

district court to perform the frivolousness screening and, if necessary, the record-building 

functions required in section 30110 cases. Id. at 332. 

On remand, the district court dismissed the case. See Khachaturian v. FEC, No. 92-3232, 

slip op. (E.D. La. May 6, 1993) (attached hereto as Exhibit 1). Recognizing that frivolous 

questions must not be certified and that dismissal was warranted if the complaint failed to state a 

claim, the court considered Khachaturian’s contention that FECA’s individual contribution limit 

“‘had a serious adverse effect on the initiation and scope of his candidacy.’” Id. at 4-5. 

Khachaturian had identified eleven contributors prepared to give him more than $200,000. Id. at 

5. The district court explained that Buckley had already upheld FECA’s individual contribution 

limit, “that the statute imposes evenhanded restrictions,” and that “‘the impact of the Act’s 

$1,000 contribution limitation on major-party challengers and minor party candidates does not 

render the provision unconstitutional on its face.’” Id. at 4-5 (quoting Buckley, 424 U.S. at 31, 

35). Because “[t]he law is clear . . . that the $1,000 . . . limit applies to minor party candidates,” 

and because Khachaturian could “not point to any facts regarding ‘the utility of these additional 

accounts’ regarding the election outcome,” i.e., “why a “$200,000 campaign . . . would be any 

more successful than a $75,000 campaign,” the district court held that Khachaturian failed “to 

come even close to the Rule 12(b)(6) test for considering constitutional claims.” Id. at 5-6. 

Here, plaintiffs’ claim likewise fails to come even close to passing 

frivolousness/substantiality screening, for the identical reason that Buckley already “‘blessed’” 

(Khachaturian, 980 F.2d at 331) the very same per-election individual contribution limit they 

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12 

challenge. As the district court in Khachaturian explained, “‘[i]t is unnecessary to look beyond 

[FECA’s] primary purpose — to limit the actuality and appearance of corruption resulting from 

large individual financial contributions — in order to find a constitutionally sufficient 

justification for the [per-election] contribution limitation.’” Exh. 1 at 5 (quoting Buckley, 424 

U.S. at 26); accord Pls. Br. at 14 (“conced[ing] that the government may limit individual 

political contributions”). Plaintiffs’ purported “as-applied” twist on the same stale challenge 

rejected in Buckley and Khachaturian, based upon the invention of a “bifurcated” $5,200 

contribution limit, is frivolous, just as the independent candidacy twist Khachaturian attempted 

over twenty years ago was frivolous. The district court in Khachaturian refused to recertify the 

constitutional question Buckley had settled. This Court should do the same. 

 In sum, none of the cases cited by plaintiffs supports their position that this case presents 

a substantial constitutional question warranting certification under section 30110. On the 

contrary, as the foregoing cases illustrate, federal courts have routinely and consistently refused 

to certify frivolous constitutional claims pursuant to section 30110. And the cases cited above 

stand in the company of numerous others. See, e.g., Judd v. FEC, 304 F. App’x 874, 875 (D.C. 

Cir. 2008) (per curiam) (affirming district court’s dismissal because “[t]he special judicial review 

provisions under [52 U.S.C. § 30110] and its accompanying note do not apply where, as here, the 

constitutional challenge to [FECA] is frivolous”); Nat’l Comm. of the Reform Party of the United 

States v. Democratic Nat’l Comm, 168 F.3d 360, 367 (9th Cir. 1999) (affirming district court’s 

decision denying certification: “Because plaintiffs lack standing to challenge FECA’s 

appointment provision, the district court was correct to dismiss that claim without certifying it. 

The Reform Party’s other constitutional challenge to FECA — that it unconstitutionally 

preempts common law remedies — was frivolous because plaintiffs had no common law 

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13 

remedies for FECA to preempt.”); Whitmore v. FEC, 68 F.3d 1212, 1215-16 (9th Cir. 1995) 

(affirming denial of certification where “plaintiffs sought an injunction commanding competing 

congressional candidates not to accept out-of-state contributions”; the “claims are frivolous, so 

they were properly dismissed”); Gifford v. Congress, 452 F. Supp. 802, 810 (E.D. Cal. 1978) 

(refusing to certify constitutional questions and dismissing FECA challenge on the “ground that 

it is frivolous”) (cited with approval in the Supreme Court’s opinion in California Medical

construing section 30110, see 453 U.S. at 192 n.14), aff’d sub nom. Gifford v. Tiernan, 670 F.2d 

882 (9th Cir. 1982); Mott v. FEC, 494 F. Supp. 131, 135-37 (D.D.C. 1980) (finding that 

“Stahlman’s claims in essence present three identifiable constitutional questions” that “[t]he 

Buckley decision answers . . . in the negative” and concluding that Buckley and the Ninth 

Circuit’s decision in California Medical “foreclose any challenge to the $5,000 contribution 

limits and require that plaintiff Stahlman’s claims be dismissed”); see also Sykes v. FEC, 335 F. 

Supp. 2d 84, 94 (D.D.C. 2004) (dismissing claims for lack of standing and observing that 

plaintiff’s claim “may well be frivolous” because it was “nearly impossible to distinguish from 

Whitmore, [supra,] and the Ninth Circuit’s holding of frivolousness is persuasive”). 

Moreover, in the analogous context of the Bipartisan Campaign Reform Act’s (“BCRA”) 

special judicial-review provision, 52 U.S.C. § 30110 note, which requires district courts to make 

a similar threshold substantiality determination before convening a three-judge court to consider 

a constitutional challenge to a BCRA provision, another court in this district recently rejected as 

too insubstantial claims that are “foreclosed by clear United States Supreme Court precedent.” 

Independence Institute v. FEC, __ F. Supp. 3d __, No. 14-1500 (CKK), 2014 WL 4959403, at *1 

(D.D.C. Oct. 6, 2014), appeal docketed, No. 14-5249 (D.C. Cir. Oct. 22, 2014). In Independence 

Institute, the court rejected the plaintiff’s request to convene a three-judge court in a case 

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challenging certain disclosure requirements that the Supreme Court had previously upheld, and 

granted summary judgment to the FEC. The plaintiff had challenged BCRA provisions defining 

and requiring disclosures for “electioneering communications” as applied to their proposed 

advertisement, a radio ad that urged listeners to contact their senators (one of whom was up for 

reelection) and ask them to support a piece of legislation, but which lacked any express candidate 

advocacy. Id. at *1-*2. The Supreme Court had upheld the challenged provisions on their face 

in McConnell v. FEC, 540 U.S. 93 (2003), and as applied to certain advertisements promoting a 

movie about Hillary Clinton in Citizens United v. FEC, 558 U.S. 310 (2010). But Independence 

Institute argued that its claims were not foreclosed by those decisions based on, inter alia, 

substantive differences between the advertisement Independence Institute sought to run and the 

movie ads at issue in Citizens United, as well as distinctions between Independence Institute’s 

tax status and the tax status of Citizens United. Independence Institute, 2014 WL 4959403, at 

*5-*7. Specifically, Independence Institute claimed that Citizens United’s movie ads contained 

pejorative references to Mrs. Clinton, while its proposed radio ad was “genuine issue speech” 

that lacked any pejorative candidate references. Id. at *1, *6. In other words, Independence 

Institute made the same argument that plaintiffs make here, i.e., that its case was not foreclosed 

by a Supreme Court decision upholding the same challenged provision because its challenge did 

not rely on “the same legal theory” and was not “premised upon the same or similar facts.” 

Compare id. at *5-*7, with Pls.’ Br. at 8. 

The court in Independence Institute rejected that argument and concluded that 

Independence Institute’s constitutional challenge was “squarely foreclosed” by the analysis and 

conclusions of the Supreme Court in Citizens United. Independence Institute, 2014 WL 

4959403, at *10. The court acknowledged that Independence Institute and Citizens United were 

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respectively organized under different sections of the tax code but explained that the 

organizations’ tax status was “immaterial” in analyzing the constitutionality of FECA’s 

disclosure requirements and thus rejected Independence Institute’s tax-status argument as 

emphasizing “a distinction without a difference.” Id. at *5. The court also did “not disagree” 

with Independence Institute’s assertion that the movie ads at issue in Citizens United “could be 

considered critical of then-candidate Hillary Clinton,” whereas Independence Institute’s 

proposed radio ad “on its face, sa[id] nothing positive or negative about a candidate for Federal 

office.” Id. at *6. But the court found that this too was “a distinction without a difference,” 

because the scope of the Supreme Court’s holding in Citizens United clearly foreclosed the 

slightly different facts and arguments presented in Independence Institute. Id. at *6-*7. 

Following Independence Institute, this Court’s similar conclusion that plaintiffs’ claims 

here “challenge the analysis and conclusion of the Supreme Court in Buckley v. Valeo and its 

progeny,” likewise justifies dismissal, not certification. Holmes, 2014 WL 5316216, at *1. 

III. PLAINTIFFS’ CERTIFICATION BRIEF AND PROPOSED FACTS CONFIRM 

THAT THEIR FIRST AMENDMENT CHALLENGE IS INSUBSTANTIAL 

 

The Commission has previously explained (FEC Br. 16-26) the various reasons why 

plaintiffs’ First Amendment challenge to FECA’s per-election contribution limit is insubstantial 

and does not qualify for certification under section 30110. Plaintiffs’ efforts to escape the 

dispositive effect of “Buckley and its progeny” underscore the insubstantiality of their claims. 

For example, plaintiffs argue (Pls.’ Br. 16) that Buckley never considered a situation 

where “FECA itself creates an unfair advantage” that favors “certain contributors over others,” 

but then admit that it is not FECA but actually an FEC regulation, 11 C.F.R. § 110.3(c)(3), 

“which allows for th[e] result [to which plaintiffs object] in the first place.” (See also Pls.’ 

Proposed Facts ¶¶ 3, 9-11 (acknowledging that “in 2014, individual persons could contribute no 

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more than $2,600 per candidate, per federal election” and that plaintiffs’ constitutional claims are 

brought “on the basis of” 11 C.F.R. § 110.3(c)(3), which permits a general-election candidate to 

spend unused primary contributions for general election expenses).) Plaintiffs erroneously 

contend that a rule permitting all general-election candidates to spend contributions they already 

have received in a particular way creates an advantage for contributors. Even setting that aside, 

however, plaintiffs’ own argument confirms that it is not “FECA itself” that permits the 

circumstances about which plaintiffs complain. This Court previously observed that even if 

plaintiffs may object to that regulation, they “have not brought [a] challenge [to it] here.” 

Holmes, 2014 WL 5316216, at *6 n.8. Indeed, as the FEC previously explained (FEC Br. 29-

30), plaintiffs could not obtain section 30110 certification of a challenge to a regulatory 

provision. And plaintiffs appear to lack standing to challenge section 110.3(c)(3) in any case, 

because the provision does not regulate any activities by contributors, 11 C.F.R. § 110.3(c)(3), 

and plaintiffs have failed to explain how a regulation that permits candidates to spend 

contributions they already have received in a particular manner creates any injury in fact for 

contributors. 

Plaintiffs’ submissions also confirm the erroneous premise of their legal arguments — 

i.e., that FECA establishes a “bifurcated” $5,200 per-election-cycle contribution limit, (Pls.’ Br. 

at 6, 13, 14, 17, 18, 19, 20, 22, 24, 26, 28, 29, 30, 31, 32). See supra pp. 8, 12. Plaintiffs’ 

Proposed Facts omit any reference to the supposed “bifurcated” $5,200 limit, while admitting 

that the individual contribution limit applies “separately with respect to each election,” that “in 

2014, individual persons could contribute no more than $2,600 per candidate per federal 

election,” and that FECA defines election to include “a general, special, primary, or runoff 

election.” (Pls.’ Proposed Facts ¶¶ 3-5.) Plaintiffs further acknowledge that “[t]he total amount 

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that an individual may contribute to a particular candidate during a full election cycle depends on 

the number of elections in which that candidate runs,” and that in some circumstances, such as 

where a candidate participates in a runoff election, the total amount an individual may contribute 

to that candidate during a particular election cycle is higher than the combined total for one 

primary and one general election. (Id. ¶ 6.) Plaintiffs’ Proposed Facts thus confirm FECA’s 

establishment of separate contribution limits “with respect to each election” and the 

corresponding absence of any “bifurcated” election-cycle limit in the Act. It is thus unsurprising 

that plaintiffs have found no decisions “consider[ing] the constitutionality of bifurcating the 

individual limit on candidate contributions” (Br. 17), because the limit is not “bifurcated.” See 

Holmes, 2014 WL 5316216, at *4 n.5 (“Plaintiffs’ attempt to reframe the issue” by 

mischaracterizing FECA “falls short.”). 

In addition to confirming the insubstantiality of the legal issues in this case, plaintiffs’ 

submissions demonstrate that their claims are inappropriately hypothetical. In California 

Medical, the Supreme Court held that section 30110 does not require certification of 

constitutional claims “that involve purely hypothetical applications of the statute.” 453 U.S. at 

192 n.14. Section 30110 “does not entitle the eligible plaintiffs to raise any conceivable 

constitutional issue with respect to the Act and the relevant criminal sections, no matter how 

remote or speculative.” Buckley v. Valeo, 519 F.2d 821, 850 (D.C. Cir. 1975) (en banc) (per 

curiam), aff’d in relevant part, 424 U.S. 1 (1976). 

Although plaintiffs’ claims do not even involve “the statute” because they turn on a 

regulation, they are still inappropriately based on plaintiffs’ “hypothetical application[]” of that 

regulation. Plaintiffs have failed to offer any evidence that any campaign, let alone the 2014 

campaigns of Scott Peters and David Loebsack, used a contributor’s separate $2,600 primary and 

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general-election contributions solely on general-election expenses. Indeed, the FEC served 

discovery asking plaintiffs to state the factual basis for their assertion that contributors to Peters 

or Loebsack actually made $2,600 primary- and general-election contributions which were then 

used, by those candidates, solely on general election expenses. Plaintiffs could not do so. 

(Declaration of Jayci A. Sadio (Docket No. 27-1) Exhs. 1-2 (Holmes/Jost Interrog. Resp. ¶ 1) 

(“Sadio Decl.”).) Plaintiffs’ claims are thus improperly hypothetical and should be dismissed on 

that basis alone. Cal. Med., 453 U.S. at 192 n.14 (section 30110 does not require certification of 

questions concerning hypothetical applications of FECA); see also Clark v. Valeo, 559 F.2d 642, 

650 (D.C. Cir.) (en banc) (per curiam) (“Neither plaintiff nor intervening plaintiff has presented 

a ripe justiciable ‘case or controversy’ which would permit this court to reach and decide the 

merits of the constitutional questions . . . . The certified questions are returned to the District 

Court unanswered, and the District Court is instructed to dismiss the case.” (footnote omitted)), 

aff’d sub nom. Clark v. Kimmitt, 431 U.S. 950 (1977). 

And finally, plaintiffs’ suggestion (Pls.’ Br. at 32) that FECA’s per-election contribution 

limit somehow “doubles” the “scope of association that certain contributors enjoy” not only is 

factually flawed, it ignores the contrary holding in Buckley that the “quantity of communication 

by the contributor does not increase perceptibly with the size of his contribution” and that in the 

associational context, it is in the “[m]aking of a contribution,” which, “like joining a political 

party, serves to affiliate a person with a candidate.” Buckley, 424 U.S. at 21-22.

IV. PLAINTIFFS HAVE FAILED TO IDENTIFY ANY SUBSTANTIAL FIFTH 

AMENDMENT QUESTION 

The Commission has also previously explained (FEC Br. 30-39) why plaintiffs’ 

subjective dissatisfaction with FECA’s per-election contribution limit, which applies equally to 

all persons and does not deny plaintiffs or anyone else equal protection of the law, fails to 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 22 of 26
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identify any constitutional question that warrants certification. See Holmes, 2014 WL 5316216, 

at *5 (“Plaintiffs have not been treated differently than any other contributor.”) 

Plaintiffs’ latest submissions still fail to identify any separate classes of contributors 

created by FECA, or even to allege (let alone demonstrate) that FECA’s per-election limit was 

enacted specifically to further a discriminatory purpose. (See FEC Br. at 30-33.) On the 

contrary, plaintiffs admit that FECA’s per-election limit “‘on its face’ . . . does not appear 

discriminatory” (Pls.’ Br. 29). For that reason alone, plaintiffs’ equal protection claim is not 

cognizable and thus is clearly insubstantial. 

In any event, plaintiffs’ latest submissions undermine their Fifth Amendment claims in 

much the same way that those filings undercut plaintiffs’ First Amendment claims. Plaintiffs’ 

equal protection argument necessarily depends on plaintiffs’ erroneous assertion (Pls.’ Br. at 29) 

that FECA’s per-election limit “favor[s] . . . contributors to candidates who do not face a primary 

challenge.” But plaintiffs simultaneously contradict that assertion (1) by acknowledging that 

FECA applies the same per-election contribution limit to all “individual persons” (Pls.’ Proposed 

Facts ¶ 3) and (2) by admitting that the real “basis” of their complaint is not the statutory perelection limit but an FEC regulatory provision that permits (but does not require) any generalelection candidate that has not used all of his primary-election contributions to use such funds to 

pay for general-election expenses (id. ¶¶ 10-11; Pls.’ Br. at 16). Plaintiffs’ argument (Pls.’ Br. at 

24) that the Supreme Court has “consistently looked askance at asymmetric campaign finance 

regulations” is thus clearly misplaced; there are no asymmetric provisions at issue here. All of 

the cases plaintiffs cite in support of their equal protection claim are thus inapposite, as this 

Court previously found. Holmes, 2014 WL 5316216 at *5-*6; see also FEC Opp’n to Pls.’ Mot. 

for Prelim. Inj. at 28-32 (Docket No. 12). 

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V. IF ANY QUESTIONS ARE CERTIFIED, SUCH QUESTIONS MUST BE 

ACCOMPANIED BY A COMPLETE FACTUAL RECORD 

For the many independent reasons detailed above and in the Commission’s opening brief, 

the Court should not certify any constitutional questions or make any factual findings as part of a 

certification process. But if the Court concludes otherwise, it should include with any certified 

questions a complete and thorough factual record, rather than the “less-focused,” “succinct,” or 

“limited” factual record plaintiffs urge. (Pls.’ Br. 5, 6.) Indeed, to the extent plaintiffs’ 

insistence on the acceptability of an incomplete record here is based on plaintiffs’ concerns (id.

at 3, 4) about “the speed with which this Court must act” or avoiding “a substantial period of 

discovery,” such concerns are entirely unwarranted here. The Court of Appeals established a 

prompt deadline for this Court’s submission of any questions it finds to be appropriate for 

certification, along with the factual record, and the Court adopted the parties’ agreed proposal 

regarding discovery and briefing more than a month ago. (See Joint Proposal and Order to 

Govern Proceedings (Docket No. 24), Feb. 10, 2015.) The extremely brief discovery period, to 

which plaintiffs agreed, has already concluded and plaintiffs responded to the Commission’s 

limited discovery requests without lodging a single objection. (See id.; FEC Br., Sadio Decl. 

Exhs. 1 & 2.) There is thus no reason for a compromised factual record here, to the extent the 

Court determines certification is warranted. 

Plaintiffs themselves underscore the importance of a complete and thorough factual 

record here by emphasizing the “FEC’s burden to show that its anticorruption interests are 

served” by the per-election limits Congress has established (Pls.’ Br. at 6), as well as lodging an 

anticipatory objection that a “naked assertion of a ‘corruption’ interest” (id. at 17) is inadequate. 

Such arguments are irreconcilable with plaintiffs’ insistence that a “less-focused” factual record 

is sufficient. Plaintiffs cannot demand, on the one hand, that the FEC must satisfy its burden of 

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21 

defending the statute by demonstrating the governmental interests served by the provision, while 

at the same time justifying exclusion from the record of the very facts that demonstrate the 

various ways in which the provision serves the government’s interests. If the Court of Appeals is 

to review the constitutionality of an Act of Congress, the record must fully reflect the facts 

demonstrating the governmental and public interests served by the provision. “Because of the 

great gravity and delicacy of (the courts’) function in passing upon the validity of an act of 

Congress, the need is manifest for a full-bodied record in such adjudication.” Martin Tractor Co. 

v. FEC, 627 F.2d 375, 380 (D.C. Cir. 1980) (section 30110 case) (footnotes and internal 

quotation marks omitted). 

Should the Court decline to certify questions, no formal findings of fact would be 

required, but the Commission’s more complete statement of facts further demonstrates why 

summary judgment should be awarded to the Commission.

CONCLUSION 

 There are at least half a dozen reasons why this case cannot be certified to the en banc 

Court of Appeals, each of which is wholly and independently dispositive: 

(1) plaintiffs’ claims are moot; 

(2) plaintiffs’ claims raise questions that Buckley answered nearly forty years ago, 

rendering such questions settled and insubstantial; 

(3) plaintiffs’ claims are based upon an invented $5,200 per-election-cycle 

contribution limit that does not exist, as this Court has already found; 

(4) plaintiffs’ claims depend on their erroneous contention that FECA allows 

some contributors to make general-election contributions in amounts that are 

double the statutory per-election limit; 

(5) plaintiffs do not actually challenge FECA, but rather a Commission 

regulation, which plaintiffs have neither put in controversy nor shown they have 

standing to challenge, and for which plaintiffs could not obtain section 30110 

certification; and 

Case 1:14-cv-01243-RMC Document 29 Filed 03/20/15 Page 25 of 26
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(6) plaintiffs’ claims are based purely on a hypothetical application of the law, not 

actual evidence, which the Supreme Court has held is insufficient. 

For all of the foregoing reasons and those in the FEC’s Opening Brief, no constitutional 

questions should be certified and this case should be dismissed as moot or summary judgment 

should be awarded to the Commission. 

Respectfully submitted, 

Lisa Stevenson (D.C. Bar No. 457628)

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

/s/ Erin Chlopak 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

Steve N. Hajjar 

Charles Kitcher (D.C. Bar No. 986226) 

Benjamin A. Streeter III 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

 (202) 694-1650 

March 20, 2015 

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