UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

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

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) RESPONSES TO PLAINTIFF’S 

FEDERAL ELECTION COMMISSION, ) FACTS SUBMITTED FOR 

) CERTIFICATION 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

RESPONSES TO PLAINTIFF’S FACTS SUBMITTED FOR CERTIFICATION 

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 28-1 Filed 07/06/12 Page 1 of 25
1 

Defendant Federal Election Commission (“Commission” or “FEC”) hereby submits the 

following responses to plaintiff Libertarian National Committee’s Facts Submitted for 

Certification, filed on May 4, 2012 (Docket No. 25-3). Set forth below are each of plaintiff’s 

facts submitted for certification and the Commission’s specific responses and objections, 

including references to the relevant portions of the Commission’s Proposed Findings of Fact 

(“FEC Facts”) and supporting exhibits, filed on May 4, 2012 (Docket No. 24). 

1. Plaintiff Libertarian National Committee, Inc. is the national committee of the 

Libertarian Party of the United States. Redpath Decl., ¶ 2; Answer, ¶ 4. 

 FEC RESPONSE: None. 

2. Defendant Federal Election Commission is the federal government agency 

charged with administrating and enforcing the federal campaign finance laws, including the laws 

challenged in this action. Answer, ¶ 5. 

FEC RESPONSE: The Commission has exclusive civil enforcement authority over 

the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, and other statutes. (FEC 

Facts ¶ 1.) 

3. LNC is a not-for-profit organization incorporated under the laws of the District of 

Columbia, which maintains its headquarters in Washington, D.C. LNC has approximately 14,500 

current dues paying members, in all 50 states and the District of Columbia. Approximately 

278,446 registered voters identify with the Libertarian Party in the 25 states in which voters can 

register as Libertarians. Throughout the Nation, 154 officeholders (including holders of nonpartisan offices), are affiliated with the Libertarian Party. Redpath Decl., ¶ 2. 

FEC RESPONSE: None. 

4. LNC’s purpose is to field national Presidential tickets, to support its state party 

affiliates in running candidates for public office, and to conduct other political activities in 

furtherance of a libertarian public policy agenda in the United States. Redpath Decl., ¶ 3. 

FEC RESPONSE: None. 

5. Founded in 1971, the Libertarian Party has yet to elect a federal office holder, and 

no current federal office holder is affiliated with the Libertarian Party. Redpath Decl., ¶ 4. 

FEC RESPONSE: None. 

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6. Unlike its two major competitors, the Libertarian Party’s national committee is 

forced to spend the bulk of its resources securing access to the ballot, leaving comparatively little 

for actual campaigning—an expensive activity in and of itself. Redpath Decl., ¶ 5. 

FEC RESPONSE: The Commission objects to this fact as speculative and lacking 

foundation to the extent it characterizes how the LNC’s unspecified “two major competitors” 

spend their resources. The Commission further objects to this fact as contrary to the record to 

the extent it claims the LNC “spend[s] the bulk of its resources securing access to the ballot.” As 

reflected in the LNC’s proposed finding of fact number 7, infra, the record demonstrates that in 

the last presidential election year, 2008, the LNC spent only 39.9 % of its available resources on 

ballot access. (See Pl.’s Mot. to Certify Facts and Questions (“LNC Mot.”) (Docket No. 25), 

Decl. of William Redpath (“Redpath Decl.”) ¶ 5 (Docket No. 25-15); LNC Mot., Exh. B (Docket 

No. 25-4) (LNC budget showing $510,257 in ballot access spending out of an available 

$1,280,103 in 2008).) In other years, the LNC spent far less of its available resources on ballot 

access: 

 2007: 5.1 % ($62,808 out of an available $1,220,267) 

 2009: 0.6 % ($5,367 out of an available $857,465) 

 2010: 11.8 % ($132,635 out of an available $1,121,822) 

(See LNC Mot., Exh. B.) Moreover, the Commission objects to this fact as lacking foundation to 

the extent it suggests that the LNC’s spending on ballot access caused it to spend little on “actual 

campaigning.” In 2008, the LNC spent only $500 on candidate support despite the fact that 

$769,846 remained in the LNC’s available resources after it spent $510,257 on ballot access. 

(See id.) 

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7. In the last presidential election year, “ballot access” was LNC’s largest budgetary 

item, at $510,257, drawn against available resources of $1,280,103. Redpath Decl., ¶ 5; exh. B. 

Candidate support that year totaled a mere $500. Id. 

FEC RESPONSE: The Commission objects to this fact as lacking foundation to the 

extent it suggests that the LNC’s ballot access spending caused the LNC to spend little on 

candidate support. In 2008, the last presidential election year, the LNC spent only $500 on 

candidate support despite the fact that $769,846 remained in the LNC’s available resources after 

it spent $510,257 on ballot access. (See LNC Mot., Exh. B.) 

8. The Libertarian Party’s ballot access costs typically dwarf items such as candidate 

support, media relations, outreach, member communications, and voter registration — combined. 

Exh. B. 

FEC RESPONSE: The Commission objects to this fact as vague and ambiguous as to 

its use of “dwarf.” The Commission further objects to this fact as contrary to the record, which 

shows that sometimes the LNC spends nearly as much or more on candidate support, media 

relations, outreach, and member communications as it does on ballot access. In 2009, the LNC 

spent more on media relations ($5,745) and member communications ($33,092) than it did on 

ballot access ($5,367). (LNC Mot., Exh. B.) In 2007, the LNC spent nearly as much on member 

communications ($56,838) as it did on ballot access ($62,808), and spent far more on candidate 

support, media relations, member communications and outreach combined ($105,457) than it did 

on ballot access ($62,808). (See id.) 

9. A party’s ability to solicit donations depends in part on having adequate financial 

resources on hand. Donors, 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. 

Redpath Decl., ¶ 6. 

FEC RESPONSE: The Commission objects to this fact as speculative and lacking 

foundation to the extent it states 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 

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its lack of resources.” The LNC was unable to identify any such donors, voters, or prospective 

political candidates in response to a Commission interrogatory, and the LNC merely asserted that 

“[i]t is common to encounter [such] people.” (FEC Facts, Exh. 5 at 3 (Interrogatory No. 9) 

(Docket No. 24-2).) 

10. Approximately 265,000 voters registered as Libertarians do not donate to the 

Party, and the Party reasonably believes that its ideology is attractive to many more than those 

Americans who are actual members. Redpath Decl., ¶ 6. 

FEC RESPONSE: The Commission objects to this fact as speculative and lacking 

foundation to the extent it claims that it is “reasonabl[e]” to believe that the LNC’s “ideology is 

attractive to many more than those Americans who are actual members.” The LNC was unable 

to name any “donors, voters, [or] prospective political candidates . . . who might be attracted to 

the Libertarian Party’s ideology but nonetheless were dissuaded from supporting the Libertarian 

Party due to its alleged lack of resources” in response to a Commission interrogatory, and merely 

asserted that “[i]t is common to encounter [such] people.” (FEC Facts, Exh. 5 at 3 (Interrogatory 

No. 9).) 

11. Numerous Americans donate money to various organizations and causes which 

share the Libertarian Party’s ideology, but do not find it effective to donate to the Party. It is 

common to encounter people who are sympathetic to the Party’s ideology but do not believe the 

Party has the resources to be viable and make an impact. Redpath Decl., ¶ 7. 

FEC RESPONSE: The Commission objects to this fact as vague, ambiguous, and 

lacking foundation to the extent it refers to unspecified “[n]umerous Americans” and “various 

organizations and causes.” The Commission further objects to this fact as speculative and 

lacking foundation to the extent it claims knowledge of the donating habits and motivations of 

such “[n]umerous Americans” and their opinions on whether it is “effective” to donate to the 

LNC. The LNC was unable to name any “donors, voters, [or] prospective political candidates 

. . . who might be attracted to the Libertarian Party’s ideology but nonetheless were dissuaded 

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from supporting the Libertarian Party due to its alleged lack of resources” in response to a 

Commission interrogatory. (FEC Facts, Exh. 5 at 3 (Interrogatory No. 9).) 

12. The Libertarian Party might achieve greater electoral success than it has 

historically achieved if it were to obtain greater financial resources. Exh. C, Response to Request 

for Admission No. 14. 

FEC RESPONSE: None. 

13. The Libertarian Party’s ability to influence elections is in some measure related to 

its ability to raise and expend money. Exh. C, Response to Request for Admission No. 15. 

FEC RESPONSE: None. 

14. National committees of political parties, candidates for federal office, and federal 

office holders, may grant preferential treatment and access to certain individuals. Exh. C, 

Response to Request for Admission No. 1. 

FEC RESPONSE: None. 

15. National committees of political parties, candidates for federal office, and federal 

office holders, may grant preferential treatment and access to potential donors in the unilateral 

hope that such preferential treatment and access would be remembered with a donation. Exh. C, 

Response to Request for Admission No. 2. 

FEC RESPONSE: None. 

16. Individuals may donate money to political parties, candidates for federal office, 

and federal office holders, because they appreciate the treatment and access they are afforded by 

federal office holders. Exh. C, Response to Request for Admission No. 3. 

FEC RESPONSE: None. 

17. “[N]o person shall make contributions — (B) to the political committees 

established and maintained by a national political party, which are not the authorized political 

committees of any candidate, in any calendar year which, in the aggregate, exceed $ 25,000.” 

2 U.S.C. § 441a(a)(1). 

FEC RESPONSE: None. 

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18. No political committee can “solicit, receive or direct to another person a 

contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that 

are not subject to the limitations, prohibitions, and reporting requirements” of 2 U.S.C. 

§ 441a(a)(1). 2 U.S.C. § 441i. 

FEC RESPONSE: The Commission objects to this fact on the ground that the quoted 

language is from 2 U.S.C. § 441i(a)(1), but that provision applies only to the “national 

committee[s] of a political party (including a national congressional campaign committee of a 

political party)[,]” not to other kinds of political committees. 

19. The contribution limits set forth in Section 441a(a)(1) are indexed for inflation. 

2 U.S.C. § 441a(c). 

FEC RESPONSE: The Commission objects to this fact on the ground that under 

2 U.S.C. § 441a(c), only the contribution limits set forth in subparagraphs (A) and (B) of section 

441a(a)(1) are indexed for inflation. 

20. The current annual limit on contributions to political parties is $30,800. 

http://www.fec.gov/info/contriblimits1112.pdf. 

FEC RESPONSE: The current annual limit on contributions to “the political 

committees established and maintained by a national political party” under 2 U.S.C. 

§ 441a(a)(1)(B) is $30,800. (FEC Facts ¶ 4.) This limit applies separately to each of a political 

party’s national party committees. 11 C.F.R. § 110.1(c)(3). This limit does not apply to state 

and local political parties; the limit on contributions to those political parties is governed by 

2 U.S.C. § 441a(a)(1)(D). 

21. Although the term “person,” as used in 2 U.S.C. § 441a(a)(1), is not specifically 

defined to include an individual’s testamentary estate, Defendant FEC extends this definition to 

include testamentary estates. Exh. C, Admission No. 4; Exh. D, FEC Advisory Opinion 2004-02; 

Exh. E, FEC Advisory Opinion 1999-14. 

FEC RESPONSE: FECA defines the term “person,” which is used in 2 U.S.C. 

§ 441a(a)(1), as including “an individual, partnership, committee, association, corporation, labor 

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organization, or any other organization or group of persons.” 2 U.S.C. § 431(11). In advisory 

opinions, “the Commission has concluded that the 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 and prohibitions applicable to the decedent in the decedent’s lifetime.” FEC 

Advisory Op. 2004-02 (citing FEC Advisory Op. 1999-14). 

22. The national committees of political parties may not receive bequests exceeding 

the federal contribution limits applicable to individuals. In the event such bequests are 

nonetheless made, defendant FEC does not permit national party committees to receive such 

bequests into escrow funds over which they exercise control, including control by the direction 

of the funds’ investment strategies or choice as to whether or in what amount withdrawals might 

be made in any particular year. 2 U.S.C. § 441i; Exhs. D, E. 

FEC RESPONSE: National party committees may not receive contributions of 

bequeathed funds exceeding the limits or prohibitions that would have been applicable to the 

decedent during his or her lifetime. FEC Advisory Op. 2004-02. If an individual dies and 

bequeaths an amount in excess of an applicable FECA contribution limit to a political 

committee, the individual’s estate may not make a contribution from those bequeathed funds to 

the political committee that exceeds the applicable FECA contribution limit. See id. 

A contribution is made “when the contributor relinquishes control over the contribution,” and 

that occurs when the contribution “is delivered by the contributor to the . . . political committee.” 

11 C.F.R. § 110.1(b)(6). An estate has relinquished control over a contribution and delivered it 

to a political committee if it deposits the contribution in a third-party account (such as an escrow 

account) over which the recipient political committee can exercise control. FEC Advisory Ops. 

2004-02, 1999-14. 

23. On April 26, 2007, Raymond Groves Burrington of Knox County, Tennessee, 

passed away, leaving a Last Will and Testament in which the Libertarian Party was named as a 

legatee. Exh. F. 

FEC RESPONSE: None. 

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24. Burrington’s bequest to the Libertarian Party totaled $217,734.00. Exh. G. 

FEC RESPONSE: Burrington’s will contained a residual bequest for the Libertarian 

Party of 25% of his estate remaining after the payment of his debts and specific bequests. (FEC 

Facts ¶ 10.) The estate later determined that this bequest would amount to $217,734. (Id. ¶¶ 9, 

11.) 

25. The Libertarian Party had no knowledge of Burrington’s bequest prior to Mr. 

Burrington’s passing. Kraus Decl., ¶ 2. 

FEC RESPONSE: None. 

26. Apart from the bequest, Burrington had only once donated to the Libertarian 

Party, in the amount of $25, on May 19, 1998. Kraus Decl. ¶ 3. 

FEC RESPONSE: None. 

27. Owing to Defendant FEC’s application of federal contribution limits, LNC could 

not accept Burrington’s entire bequest at once, as it would use at least some if not all of the 

money on federal election efforts. Rather, the LNC accepted annual distributions from the 

Burrington Estate in the amounts of $28,500.00 in 2007 and 2008, with the balance of 

$160,734.00 being deposited in an escrow account that complies with Defendant FEC’s 

restrictions. Kraus Decl., ¶ 5. 

FEC RESPONSE: The Commission objects to this fact to the extent it suggests that 

the LNC could not accept Burrington’s entire bequest at once because the LNC “would use at 

least some if not all of the money on federal election efforts.” The LNC could not legally accept 

a contribution made from Burrington’s bequest in an amount in excess of 2 U.S.C. 

§ 441a(a)(1)(B)’s limit regardless of whether the LNC would use the money for federal or nonfederal-election purposes. See 2 U.S.C. § 441i(a)(1). The Commission further objects to this 

fact to the extent it draws the legal conclusion that the escrow account containing the Burrington 

bequest “complies with Defendant FEC’s restrictions.” 

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28. The escrow account is established pursuant to an agreement among the Estate, the 

LNC, and the escrow agent, the Mercantile Bank of Michigan. The agreement provides, inter 

alia, that the Estate remains an escrowee, that the deposited funds may be invested only in the 

Bank’s money market or certificate of deposit products, and that the LNC must annually 

withdraw the maximum amount permitted by the individual contribution limits. The agreement 

explicitly provides, however, that the LNC may challenge the legal validity of the contribution 

limit in federal court, and demand payment of the full amount remaining in the account should 

its challenge succeed. Exh. G. 

FEC RESPONSE: The Commission objects to this fact as contrary to the record to the 

extent it states that “the Estate remains an escrowee” under the escrow agreement. An escrowee 

is the “third-party depositary of an escrow,” and is also known as an “escrow agent.” Black’s 

Law Dictionary 565 (7th ed. 1999). The escrow agreement, dated December 22, 2008, 

designates the Mercantile Bank of Michigan as the “Escrow Agent,” which shall “act as 

escrowee for the purposes and upon the conditions set forth in this Agreement.” (LNC Mot., 

Exh. G at 1, ¶ 1 (Docket No. 25-9).) Upon the estate’s delivery of the bequest to the Mercantile 

Bank of Michigan, “all duty, responsibility and liability of the Co-Executors [of the Estate] to the 

[Libertarian Party]” terminated. (Id. at 2, ¶ 2.) Furthermore, it appears that the estate may have 

ceased to exist after entering into the escrow agreement. On November 13, 2008, approximately 

one month before the execution of the escrow agreement, a Burrington estate co-executor wrote 

to an LNC attorney that he was “ready to close the estate,” and that he felt it was not “wise or 

prudent to keep the estate open for an indefinite time frame in order that the estate could serve as 

a prospective plaintiff in litigation contemplated by the Libertarian Party,” and that “the 

administration of the estate has already taken more time than anticipated and the estate needs to 

be closed.” (FEC Facts, Exh. 7 (Docket No. 24-2).) The Commission further objects to this fact 

as contrary to the record to the extent it states that “the deposited funds may be invested only in 

the Bank’s money market or certificate of deposit products.” Although the bequest may have 

been invested in the bank’s money market or certificate of deposit accounts at the time the 

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agreement was executed (see LNC Mot., Exh. G at 8), the escrow agreement appears to grant the 

Libertarian Party complete discretion to “alter[] or amend[] from time to time” how the funds are 

invested (id. at 2, ¶ 2). 

29. LNC does not knowingly associate with dead people. When LNC learns that a 

member has passed away, the deceased is removed from the Party’s membership rolls. Kraus 

Decl., ¶ 4; Redpath Decl., ¶ 8. 

FEC RESPONSE: The Commission objects to this fact to the extent it implies the 

legal proposition that it is possible to engage in First Amendment protected-association with a 

deceased person. See, e.g., 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 has no 

rights of which he may be deprived.”) 

30. Upon learning of the bequest, LNC removed Burrington from the membership 

rolls on which he had appeared owing to his 1998 $25 donation. Kraus Decl., ¶ 4. 

FEC RESPONSE: None. 

31. Leaving a bequest to a political party is a form of political expression. Redpath 

Decl., ¶ 8; Exh. C, Response to Request for Admission No. 5. 

FEC RESPONSE: The Commission objects to this fact as vague and ambiguous as to 

its use of “[l]eaving a bequest.” Moreover, as the Commission stated in response to the cited 

request for admission, to the extent “‘[l]eaving a bequest’ refers to the act of a living person 

causing his or her will to contain a provision that provides for a bequest to a political party upon 

his or her death,” leaving a bequest could be a form of political expression. (LNC Mot., Exh. C 

at 2 (Request for Admission No. 5) (Docket No. 25-5) (alteration in original).) In contrast, “to 

the extent ‘[l]eaving a bequest’ refers to a testamentary estate’s transfer, distribution, donation, 

or contribution of funds provided for in a bequest to a political party,” leaving a bequest is not a 

form of political expression. (Id. (alteration in original).) 

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32. “[T]he act of a living person causing his or her will to contain a provision that 

provides for a bequest to a political party upon his or her death” is expressive. Exh. C, Response 

to Request for Admission No. 5. 

FEC RESPONSE: None. 

33. FEC “views the testamentary estate of a decedent as the successor legal entity to 

the testator and thus will apply the Act and its limits to that entity as the alter ego of the living 

testator.” Exh. H, FEC Advisory Opinion 1983-13. 

FEC RESPONSE: None. 

34. Leaving a bequest to a political party is not necessarily a means of maintaining 

affiliation with the party after the donor’s passing. Exh. C, Response to Request for Admission 

No. 6. 

FEC RESPONSE: The Commission objects to this fact as vague and ambiguous as to 

its use of “[l]eaving a bequest” and “maintaining affiliation.” See FEC Response to ¶ 31 supra. 

35. FEC can neither admit nor deny that political parties do not generally count the 

deceased among their membership, Exh. C, Response to Request for Admission No. 7. 

FEC RESPONSE: None. 

36. The Libertarian Party does not associate with the dead and does not maintain 

deceased members. Redpath Decl., ¶ 8; Kraus Decl., ¶ 4. 

FEC RESPONSE: The Commission objects to this fact to the extent it implies the 

legal proposition that it is possible to engage in First Amendment protected-association with a 

deceased person. See, e.g., 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 has no 

rights of which he may be deprived.”). 

37. Individuals who leave testamentary bequests for political parties often have no 

idea which candidates might benefit from the contribution. People cannot always predict their 

death, they cannot predict who will run in future political campaigns, and bequests are often 

disbursed many years after they are first recorded. For example, the bequest at issue in this case 

was made October 13, 2000, Exh. F, nearly seven years before the donor’s death. Sometimes, 

multiple contingencies must occur before a bequest is received by a political party. For example, 

the Libertarian Party received a $19,331.40 bequest from a donor’s trust only after the trust’s 

initial beneficiary passed away. Exh. I. At least one individual who presently intends to bequeath 

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LNC significant assets cannot predict when that gift might come to pass, or which candidates 

would benefit from it. Redpath Decl., ¶ 9; see also Exh. C, Response to Request for Admission 

No. 8. 

FEC RESPONSE: The Commission objects to this fact as vague and ambiguous to the 

extent it refers to unnamed “[i]ndividuals who leave testamentary bequests for political parties.” 

The Commission further objects to this fact as speculative and lacking foundation as to its claim 

that these unnamed individuals “have no idea which candidates might benefit from the[ir] 

contribution.” Furthermore, the Commission objects to this fact as contrary to the record to the 

extent it claims that people cannot predict who will be a federal candidate at the time of their 

death. The record demonstrates that individuals have named specific federal candidates and 

officeholders in their bequests. (FEC Facts ¶ 128.) Finally, the Commission objects to this fact 

to the extent it suggests that it is legally relevant whether a testator can identify what federal 

candidates or officeholders might benefit from his or her bequest to a political party, given that 

candidates and officeholders place substantial value on contributions to their political parties 

without regard to how the party uses the contributions. (See id. ¶¶ 73-75.) 

38. A political party’s federal office candidates cannot reliably count on receiving 

money from particular bequests in many cases. A prospective donor might defy the odds and 

outlast actuarial or medical predictions — or change his or her mind. Redpath Decl., ¶ 10. 

FEC RESPONSE: The Commission objects to this fact as vague, ambiguous, 

speculative and lacking foundation to the extent it claims that unnamed “federal office 

candidates cannot reliably count on receiving money from particular bequests in many cases.” 

The record demonstrates that individuals have named specific federal candidates and 

officeholders in their bequests. (FEC Facts ¶ 128.) Finally, the Commission objects to this fact 

to the extent it suggests that it is legally relevant whether a federal candidate or officeholder 

could count on receiving money from a particular bequest, given that candidates and 

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officeholders place substantial value on contributions to their political parties without regard to 

how the party uses the contributions. (See id. ¶¶ 73-75.) 

39. The Libertarian Party does not offer any benefits in exchange for being 

remembered in an individual’s will, apart from perhaps a simple expression of gratitude. 

FEC RESPONSE: The Commission objects to this fact as lacking foundation to the 

extent it suggests that the LNC has rules barring it from offering benefits in exchange for a 

bequest or would never offer benefits in exchange for a bequest. The LNC’s representative 

testified that the LNC could grant someone membership in one of its major-donor groups, which 

could offer preferential access to federal candidates, in exchange for the person showing the 

LNC his or her will providing for a bequest in an amount large enough to qualify for 

membership, or in exchange for a person not revoking such a bequest. (FEC Facts ¶¶ 54, 109.) 

Furthermore, the LNC’s representative testified that if the LNC received a bequest in an amount 

large enough to qualify for membership in one of its major-donor groups, the LNC could allow a 

family member of the decedent-contributor to take the decedent’s place in the major-donor 

group, and the LNC has no rules that barring such a substitution. (Id. ¶ 122.) Moreover, the 

record reflects that the LNC is planning to implement a planned-giving program to solicit 

bequests exceeding FECA’s current limits if it obtains the relief it seeks in this litigation. (Id. ¶ 

104.) While the details of the LNC’s potential planned-giving program have not “been totally 

thought through at this point” (id., Exh. 20 at 69:9-15 (Docket No. 24-3)), the LNC does know 

that it would solicit people who are “well-to-do” for large bequests, including at events involving 

federal candidates (id. ¶ 104), which would provide opportunities to offer preferential access to 

federal candidates in exchange for bequests. 

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40. Once a political party receives a testamentary bequest, neither it, nor its 

candidates, risk offending the deceased donors. Exh. C, Response to Request for Admission 

No. 10. 

FEC RESPONSE: None. 

41. Apart from leaving bequests, and perhaps arranging for the posthumous 

publication or other dissemination of his or her political views, decedents are not in a position to 

engage in independent political expression, to associate actively through volunteering their 

services to political campaigns, or to support candidates and committees with financial resources. 

Exh. C, Response to Request for Admission No. 12. 

FEC RESPONSE: The Commission objects to this fact as vague and ambiguous as to 

its use of “leaving bequests.” See FEC Response to ¶ 31 supra. The Commission further objects 

to this fact to the extent it implies the legal proposition that decedents can engage in any First 

Amendment-protected activity. See, e.g., 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 has no rights of which he may be deprived.”) 

42. Testamentary bequests are likely to be more generous than donations made in 

one’s lifetime. Redpath Decl., ¶ 8; see also discussion of FEC records survey, infra. For example, 

Burrington gave the Libertarian Party only $25 throughout his life — but $217,734 upon his 

death, a staggering 870,936% increase. Kraus Decl., ¶ 3; Exhs. F, G. James Kelleher bequeathed 

the Libertarian Party $10,000, Exh. J, although during his life he had given the party only $100. 

Kraus Decl., ¶ 6. And Joseph Reitano bequeathed the Libertarian Party $19,331.40, Exh. I, 

although there is no record that he ever donated to the Party while alive. Kraus Decl., ¶ 7. 

FEC RESPONSE: None. 

43. FEC does not track political contributions received from testamentary bequests. 

Clark Decl., ¶ 2. 

FEC RESPONSE: The Commission objects to this fact as contrary to the record. The 

Commission tracks contributions and donations regardless of whether they consist of bequeathed 

funds. (See FEC Facts, Exh. 2, ¶ 1.) However, the Commission does not require recipients of 

contributions or donations to report that a contribution or donation came from bequeathed funds. 

(Id. ¶ 2.) If a recipient chooses to indicate that a contribution or donation came from bequeathed 

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15 

funds, the recipient is not required to use any standardized method of reporting that fact. (Id.) 

Thus, the Commission is able to ascertain some information about which contributions came 

from bequeathed funds, but that information likely does not capture all contributions that have 

been made pursuant to bequests. (Id. ¶¶ 3-4.) 

44. Attempts to search FEC’s database for records of testamentary bequests produce 

underinclusive results. Clark Decl., ¶¶ 3, 4. For example, the FEC’s largest bequeathed political 

party donation, Martha Huges’ $250,000 gift to the Democratic Party, Clark Decl., Table 2, is 

eclipsed by Eleanor Schwartz’s $574,332.33 bequest to the Republican Party, discovered in this 

case. Clark Decl., ¶ 3. The Burrington bequest, which would be second on the FEC’s table of 

alltime highest bequests to political parties, does not appear in FEC’s search generated top five 

list. 

FEC RESPONSE: The Commission objects to this fact as contrary to the record to the 

extent it confuses bequests with contributions or donations made from bequests. The FEC’s 

database contains records of contributions and donations, not testamentary bequests. (FEC 

Facts, Exh. 2 ¶ 1.) Those records sometimes reflect that a contribution or donation was made 

from bequeathed funds, i.e., when contribution recipients choose to report that information. (Id.

¶ 2.) But because recipients do not always report that a contribution or donation was made from 

bequeathed funds, the number of records reflecting contributions and donations made from 

bequeathed funds most likely does not reflect the actual number of contributions and donations 

that have in fact been made from bequeathed funds. (Id. ¶¶ 3-4.) 

The underinclusive nature of the FEC’s records, however, is not the reason that the full 

amount of the Schwartz and Burrington bequests do not appear on the FEC’s table of the “Five 

Largest Contributions or Donations Made By an Estate from Bequeathed Funds to a National 

Political Party Committee” (see id. at 5, Table 2), which the LNC incorrectly refers to as a “table 

of alltime highest bequests to political parties” (emphasis added). That table, like all of the 

FEC’s records, reflects contributions or donations made from bequests, and not the size of the 

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16 

underlying bequest itself. Thus, even where a report does clearly indicate that a contribution was 

made from bequeathed funds, that record (if it post-dates 2002) would still not indicate the entire 

amount of the underlying bequest from which the contribution was made. (See id. ¶ 9.) For 

example, Burrington bequeathed the LNC $217,734 in 2007. (First Amended Compl. 

(“Compl.”) ¶ 14 (Docket No. 13).) Yet the LNC’s reports to the FEC only indicate the size of 

the contributions made from that bequest, since the FEC only requires reporting of contributions. 

(See, e.g., FEC Facts, Exh. 15 (indicating a $30,400 contribution from the Burrington estate to 

the LNC in 2010) (Docket No. 25-2).) And even though the LNC clearly indicated in that report 

that the contribution was made from bequeathed funds, that report still does not indicate the 

overall size of the Burrington bequest. (Id.) Thus, the Burrington bequest does not appear in the 

“FEC’s search generated top five list” in Table 2 of the Clark Declaration. (Id., Exh. 2 at 5, 

Table 2.) In contrast, Martha Huges’ $250,000 bequeathed donation to the Democratic National 

Committee (“DNC”) in 2002 does appear in the FEC’s records because at that time, before the 

Soft-Money Ban was enacted, national party committees could accept an entire bequest as one 

donation so long as it was designated as soft money. (Id. ¶ 8-9 & Table 2.) 

45. BCRA’s prohibition of so-called soft-money makes it difficult for FEC to identify 

oversized bequests made since 2002. Clark Decl., ¶ 9. Nonetheless, FEC identified 

$2,260,799.70 in funds bequeathed to national political party committees since the inception of 

its database in 1978. Clark Decl., Table 3. 

FEC RESPONSE: None. 

46. FEC estimates that “the average hard-money contribution made by estates to 

national political party committees from bequeathed funds was approximately $9,041.09, [and] 

the average soft-money donation made by estates to national political party committees from 

bequeathed funds was $62,117.23,” Clark Decl., ¶ 11, understate the true disparity between the 

two variables, as some of the donations classified as “hard money” are maximum annual 

withdrawals against what would otherwise be “soft money” donations. For example, averaged in 

to the $9,041.09 “hard money” figure are annual withdrawals from the Burrington trust in 

amounts of $28,500 and $30,800 dollars, while the “soft money” average should include, but 

does not, the total of Burrington’s $217,734 gift. 

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FEC RESPONSE: The Commission objects to this fact as contrary to the record to the 

extent it confuses bequests with contributions or donations made from bequests. The “average 

soft-money donation” figure of $62,117.23 correctly does not include the total of Burrington’s 

$217,734 bequest, because the total amount of that bequest was never contributed or donated to 

the LNC. (FEC Facts ¶¶ 16-18.) The FEC’s records track contributions and donations, not 

bequests. (See id., Exh. 2, ¶ 1.) Bequeathed funds do not become a contribution or donation 

until an estate relinquishes control over the funds by transferring them to the recipient. See FEC 

Advisory Op. 2004-02. BCRA banned soft-money donations in 2002, and thus, Burrington’s 

entire $217,734 bequest in 2007 could not become a soft-money donation that would be 

averaged into the $62,117.23 figure in Table 3 of the Clark Declaration. (FEC Facts, Exh. 2 

¶¶ 8-9, 11 & Table 3.) 

47. A rough approximation of average size of bequests to political parties can be 

determined by dividing FEC’s “Total Amount of Bequeathed Funds Contributed or Donated,” 

$2,260,799.70, by the “Total Number of Contributions or Donations Made From Bequeathed 

Funds,” 162: $13,955.55. Of course this number is too low, as post-BCRA bequests that exceed 

contribution limits are broken down into smaller “hard money” donations. 

FEC RESPONSE: The Commission objects to this fact as contrary to the record to the 

extent it confuses bequests with contributions or donations made from bequests. The FEC’s 

database tracks contributions and donations, and not the size of the bequests from which those 

contributions and donations were made. (FEC Facts, Exh. 2 ¶¶ 1, 9.) Thus, an “approximation 

of [the] average size of bequests to political parties” (emphasis added) cannot be made by 

dividing the total amount of bequeathed funds contributed or donated by the total number of 

contributions or donations made from bequeathed funds. For example, Burrington bequeathed 

the LNC $217,734 in 2007. (Compl. ¶ 14.) Yet the LNC’s reports to the FEC only indicate the 

size of the contributions made from that bequest, since the FEC only requires reporting of 

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18 

contributions. (See, e.g., FEC Facts, Exh. 15 (indicating a $30,400 contribution from the 

Burrington estate to the LNC in 2010).) That record does not indicate the overall size of the 

Burrington bequest. (Id.) Thus, the LNC’s arithmetic does not give a “rough approximation of 

[the] average size of bequests to political parties” (emphasis added), but instead it indicates the 

average size of contributions or donations made to political parties from bequeathed funds. 

(FEC Facts, Exh. 2, Table 3.) 

48. LNC’s average contribution is $45.98. Kraus Decl., ¶ 9. 

FEC RESPONSE: None. 

49. There is no reason to suppose that LNC’s donors are poorer or less generous with 

their party than are supporters of other political parties. Dividing amounts contributed or 

donated, by the number of bequeathed contributions and donations by party as supplied by 

FEC’s survey, Clark Decl., Table 4, yields the following average bequest per party: 

Libertarian: $16,255.39 

Republican: $10, 531.93 

Democratic: $18,824.06 

Green: $20,303.84 

FEC RESPONSE: The Commission objects to this fact as contrary to the record to the 

extent it confuses bequests with contributions or donations made from bequests. The size of the 

“average bequest per party” (emphasis added) cannot be determined from the FEC’s records, 

since the FEC’s records track contributions and donations, and not the size of the bequests from 

which those contributions and donations were made. (See FEC Facts, Exh. 2 ¶¶ 1, 9.) For 

example, Burrington bequeathed the LNC $217,734 in 2007. (Compl. ¶ 14.) Yet the LNC’s 

reports to the FEC only indicate the size of the contributions made from that bequest, since the 

FEC only requires reporting of contributions. (See, e.g., FEC Facts, Exh. 15 (indicating a 

$30,400 contribution from the Burrington estate to the LNC in 2010).) That record does not 

indicate the overall size of the Burrington bequest. (Id.) Thus, the LNC’s arithmetic does not 

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19 

yield an “average bequest per party” (emphasis added), but rather the average contribution or 

donation made to political parties from bequeathed funds. (FEC Facts, Exh. 2, Table 4.) 

50. An additional $160,734.00 in 2008 would have had a material impact on LNC’s 

ability to advocate for and elect its candidates, covering nearly the entirety of LNC’s operating 

deficit that year. Exh. B; Redpath Decl., ¶ 11. That same amount of money in 2010 would have 

more than sufficed to cover the Party’s ballot access costs. Id. 

FEC RESPONSE: The Commission objects to this fact as vague, ambiguous, 

speculative, and lacking foundation as to its prediction that “$160,734.00 in 2008 would have 

had a material impact on LNC’s ability to advocate for and elect its candidates.” Assuming the 

“material impact” the LNC refers to is an improved ability to advocate for and elect candidates, 

the record does not support the LNC’s assertion. First, in 2008, the LNC spent only $500 on 

candidate support despite the fact that $769,846 remained in the LNC’s available resources after 

it spent $510,257 on ballot access. (See LNC Mot., Exh. B.) There is no evidence that an 

additional $160,734 would have caused the LNC to spend more on candidate support that year. 

Second, the record reflects that the LNC’s ability to “elect its candidates” would likely be 

harmed, not improved, were it able to accept unlimited bequeathed contributions, such as 

Burrington’s bequest. The LNC claims that FECA violates the First Amendment rights of all

national party committees, and thus if the LNC prevails in this litigation, all national parties, 

including its major-party rivals, would be able to accept unlimited bequeathed contributions, 

putting the LNC at a further competitive disadvantage in elections. Cf. Buckley v. Valeo, 424 

U.S. 1, 33 (1976) (per curiam) (explaining that the contribution limits “would appear to benefit 

minor-party and independent candidates relative to their major-party opponents because majorparty candidates receive far more money in large contributions”). The record shows that while 

the LNC has only been bequeathed $247,065.40 in its entire history (FEC Facts ¶ 84), the DNC 

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20 

was bequeathed more than $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). 

51. The Libertarian Party’s ability to advocate for and elect its candidates would still 

be improved if today the Party could take possession of the remainder of the Burrington bequest. 

Redpath Decl., ¶ 12. 

FEC RESPONSE: The Commission objects to this fact as speculative and lacking 

foundation. The record does not support the LNC’s assertion that its “ability to advocate for and 

elect its candidates would . . . be improved” if it could accept unlimited bequeathed 

contributions, such as Burrington’s bequest. First, in 2008, the LNC spent only $500 on 

candidate support despite the fact that $769,846 remained in the LNC’s available resources after 

it spent $510,257 on ballot access. (See LNC Mot., Exh. B.) There is no evidence that an 

additional $160,734 would have caused the LNC to spend more on candidate support that year. 

Second, the record reflects that the LNC’s ability to “elect its candidates” would likely be 

harmed, not improved, were it able to accept unlimited bequeathed contributions, such as 

Burrington’s bequest. The LNC claims that FECA violates the First Amendment rights of all

national party committees, and thus if the LNC prevails in this litigation, all national parties, 

including its major-party rivals, would be able to accept unlimited bequeathed contributions, 

putting the LNC at a further competitive disadvantage in elections. 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”). The record shows that while the LNC has only been 

bequeathed $247,065.40 in its entire history (FEC Facts ¶ 84), the DNC was bequeathed more 

than $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). 

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52. LNC’s inability to raise large sums from bequests has contributed to the LNC 

being unable to amass the resources necessary for effective advocacy in every election impacted 

by the application of contribution limits to bequests to political parties. Redpath Decl., ¶ 13. 

FEC RESPONSE: The Commission objects to this fact to the extent it draws a legal 

conclusion. The Commission further objects to this fact as lacking foundation and contrary to 

the record as to its claim that the LNC is unable to amass the resources necessary for effective 

advocacy. The record shows that the Libertarian Party, which is more than 40-years old, is 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.) Currently, the LNC has 154 

officeholders nationwide. (LNC Mot., Redpath Decl. ¶ 2.) 

The Commission further objects to this fact as lacking foundation and contrary to the 

record to the extent it claims that the “LNC’s inability to raise large sums from bequests has 

contributed” to the LNC’s alleged inability to amass the resources necessary for effective 

advocacy “in every election impacted by the application of contribution limits to bequests to 

political parties.” Burrington is the only person to ever bequeath the LNC an amount of money 

in excess of FECA’s contribution limit. (FEC Facts ¶ 14.) There is no evidence that the 

$189,234 of that bequest that the LNC could not immediately accept in 2007 (id. ¶ 16) is all that 

stands between the LNC and effective advocacy. Cf. Buckley, 424 U.S. at 33-34 & n. 40 (FECA 

did not prevent the Libertarian Party from engaging in effective advocacy since the party had 

only ever received 10 contributions in excess of the limits). Had the LNC been able to accept the 

entire Burrington bequest in 2007, there is no indication in the record that the LNC would have 

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22 

spent the funds on advocacy. For example, in 2008, the LNC spent only $500 on candidate 

support despite the fact that $769,846 remained in the LNC’s available resources after it spent 

$510,257 on ballot access. (See LNC Mot., Exh. B.) There is no evidence that an additional 

$160,734 would have caused the LNC to spend more on candidate support that year. 

53. LNC’s ability to raise and accept at once and without limitations, bequests the 

size of that left by Burrington to the Libertarian Party, would have a profoundly positive impact 

on the Libertarian Party’s ability to compete. Redpath Decl., ¶ 14. 

FEC RESPONSE: The Commission objects to this fact as vague, ambiguous, 

speculative, lacking foundation, and contrary to the record. The record reflects that the LNC’s 

“ability to compete” would likely be harmed, not improved, were it able to accept unlimited 

bequeathed contributions, such as Burrington’s bequest. The LNC claims that FECA violates the 

First Amendment rights of all national party committees, and thus if the LNC prevails in this 

litigation, all national parties, including its major-party rivals, would be able to accept unlimited 

bequeathed contributions, putting the LNC at a further competitive disadvantage in elections. Cf. 

Buckley, 424 U.S. at 33 (explaining that the contribution limits “would appear to benefit minorparty and independent candidates relative to their major-party opponents because major-party 

candidates receive far more money in large contributions”). The record shows that while the 

LNC has only been bequeathed $247,065.40 in its entire history (FEC Facts ¶ 84), the DNC was 

bequeathed more than $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). 

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23 

54. The LNC refrains from taking immediate possession of the entirety of the 

Burrington bequest, and refrains from actively soliciting and accepting testamentary bequests 

without limitation, owing to the FEC’s application of federal contribution limits against 

testamentary bequests. Redpath Decl., ¶ 15. 

FEC RESPONSE: The Commission objects to this fact to the extent it suggests 

incorrectly that 2 U.S.C. § 441i(a)(1) bars the LNC from soliciting funds that are to be received 

in accord with the limitations of FECA. 

55. The LNC has placed advertisements in its newsletter, LP News, seeking 

testamentary bequests. Exhibit K. 

FEC RESPONSE: None. 

56. The option of remembering the LNC in one’s will has also been conveyed to 

delegates at the Party’s conventions, and indeed, the LNC intends on soliciting bequests from 

time to time. Redpath Decl., ¶ 16. 

FEC RESPONSE: None. 

57. Were the Court to enjoin enforcement of federal contribution limits against 

testamentary bequests to LNC, LNC would immediately launch a comprehensive planned giving 

program. LNC would establish a planned giving page for its website, address planned giving 

through direct mail solicitations, emails, personal solicitations, stories in the LNC’s newspaper 

for members, LP News, and through announcements at its National Conventions by the National 

Chair. The LNC would also solicit bequests at its presidential nominating convention banquets. 

Redpath Decl., ¶ 17. 

FEC RESPONSE: None. 

 Respectfully submitted, 

Anthony Herman 

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 

Case 1:11-cv-00562-RLW Document 28-1 Filed 07/06/12 Page 24 of 25
24 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/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 

 

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