EN BANC ARGUMENT SCHEDULED FOR OCTOBER 31, 2016

No. 16-5194

_______________________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

LAURA HOLMES, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

_______________________________________________

On Certification of Constitutional Question from the 

United States District Court for the District of Columbia

_______________________________________________

BRIEF FOR THE FEDERAL ELECTION COMMISSION

_______________________________________________

Lisa J. Stevenson 

Deputy General Counsel – Law

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Erin Chlopak 

Acting Assistant General Counsel

echlopak@fec.gov

September 15, 2016

Steve N. Hajjar

Attorney

shajjar@fec.gov

Charles Kitcher

Attorney

ckitcher@fec.gov

FEDERAL ELECTION 

COMMISSION

999 E Street, NW

Washington, DC 20463 

(202) 694-1650

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), the Federal Election Commission 

(“Commission” or “FEC”) submits its Certificate as to Parties, Rulings, and 

Related Cases.

(A) Parties and Amici. Laura Holmes and Paul Jost were the plaintiffs in the 

district court and are the plaintiffs in this en banc proceeding pursuant to 52 U.S.C. 

§ 30110. The Commission was the defendant in the district court and is the 

defendant in this Court. No parties participated as amici curiae in the district court. 

The Campaign Legal Center and Democracy 21 are participating as amici curiae in 

support of the Federal Election Commission in this Court.

(B) Rulings Under Review. Under 52 U.S.C. § 30110, a district court certifies 

non-frivolous constitutional questions and makes factual findings but does not rule 

on the merits; the en banc appellate court answers those questions in the first 

instance. On June 29, 2016, United States District Judge Rosemary Collyer

certified a First Amendment question together with the findings of fact made by 

the court in its decision of April 20, 2015. The certification appears in the Joint 

Appendix (“JA”) at 197; the factual findings referenced therein appear at JA 142-

59.

(C) Related Cases. This case was previously before the en banc Court of 

Appeals as No. 14-5281 and remanded back to the district court by order of 

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January 30, 2015 (JA 59). It was subsequently before a panel of the Court of 

Appeals as No. 15-5120. That panel affirmed the district court’s judgment 

declining to certify a Fifth Amendment question and reversed the district court’s 

decisions not to certify a First Amendment question and to grant summary 

judgment to the Commission on plaintiffs’ First Amendment claim.

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TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF ISSUES PRESENTED...................................... 1

APPLICABLE STATUTES AND REGULATIONS ......................................... 2

COUNTERSTATEMENT OF THE CASE......................................................... 2

I. STATUTORY AND REGULATORY BACKGROUND ........................ 2

A. Congress’s Original Enactment of Per-Year Limits on

Contributions to Candidates............................................................ 2

B. FECA’s Per-Election Limit on Contributions to 

 Candidates........................................................................................ 3

C. The Supreme Court’s Decision Affirming the Constitutionality of 

FECA’s Per-Election Contribution Limit ....................................... 4

D. FECA’s Current Per-Election Contribution Limit.......................... 5

II. FACTUAL AND PROCEDURAL BACKGROUND.............................. 6

A. The Parties....................................................................................... 6

B. Procedural History........................................................................... 9

1. Preliminary District Court Proceedings.................................. 9

2. Appeal of the District Court’s April 2015 

 Certification Decision............................................................ 11

SUMMARY OF ARGUMENT......................................................................... 14

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ARGUMENT..................................................................................................... 17

I. STANDARD OF REVIEW..................................................................... 17

II. THE PER-ELECTION CONTRIBUTION LIMIT SATISFIES 

FIRST AMENDMENT SCRUTINY ...................................................... 18

A. Contribution Limits Are Subject to Intermediate 

 Scrutiny......................................................................................... 18

B. The Government’s Important Anticorruption Interests

 Justify FECA’s Per-Election Contribution Limit......................... 20

C. FECA’s Per-Election Limit Is Closely Drawn ............................. 24

 1. FECA’s Limit Sensibly Distinguishes Between 

 Primary and General Elections........................................... 25

 2. FECA Effectively Accommodates State-by-State 

 Variations in Election Procedures...................................... 26

 3. Recent Examples Illustrate How FECA Closely 

 Adheres to Its Purpose by Permitting Resources 

 for Each Election Contest................................................... 29

 4. FECA Is Structured to Adapt When Special 

 Elections Are Called........................................................... 32

 5. FECA Is Well Matched to Its Purpose ............................... 33

D. FECA Contains No “Bifurcated” Election-Cycle Limit............... 37

E. The Supreme Court Has Upheld the Amount of FECA’s 

 Per-Election Contribution Limit................................................... 38

III. CONTRIBUTORS LACK ANY AUTHORITY IN SUPPORT 

OF THEIR ASSERTED CONSTITUTIONAL RIGHT TO 

MAKE DOUBLE-THE-LIMIT GENERAL ELECTION 

CONTRIBUTIONS ................................................................................. 40

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A. Neither Congress Nor the Courts Have Recognized 

 a First Amendment Right to Make a $5,200 Contribution 

 for a Single Election ..................................................................... 40

 1. McCutcheon Does Not Support Contributors’ 

 Imagined $5,200 Election-Cycle Contribution 

 Limit .................................................................................. 41

 2. This Court’s Certification Holding Is Not an 

 Endorsement of Contributors’ Constitutional 

 Arguments .......................................................................... 45

 3. FEC Regulations Are Not at Issue Here and Do 

 Not Support Contributors’ Claimed Right to Make 

 $5,200 Contributions for a Single Election........................ 46

B. This Is Not an As-Applied Challenge........................................... 48

IV. CONTRIBUTORS’ ALLEGED INJURIES WERE ENTIRELY 

SELF-IMPOSED ..................................................................................... 50

CONCLUSION.................................................................................................. 52

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TABLE OF AUTHORITIES

Cases

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740 (2000)................................... 18

*Buckley v. Valeo, 424 U.S. 1 (1976)............... 4, 5, 9, 14, 15, 17, 18, 19, 20, 21,

 22, 23, 24, 34, 36, 38, 39, 45

Citizens United v. FEC, 558 U.S. 310 (2010)........................................ 22, 23, 35

FEC v. Beaumont, 539 U.S. 146 (2003)............................................................ 18

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001).... 35, 39

Davis v. FEC, 554 U.S. 724 (2008)....................................................... 33, 36, 39

Doe v. Reed, 561 U.S. 186 (2010) ..................................................................... 49

Edwards v. Dist. of Columbia, 755 F.3d 996 (D.C. Cir. 2014)......................... 49

Holmes v. FEC, No. 14-5281 (D.C. Cir. 2015) ................................................. 10

Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 1999) ...................................... 47

Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ................................................. 36

Marks v. United States, 430 U.S. 188 (1977) .................................................... 19

*McCutcheon v. FEC, 134 S. Ct. 1434 (2014)............. 15, 19, 21, 35, 41, 42, 43,

 44, 45, 46

McConnell v. FEC, 540 U.S. 93 (2003)............................................................. 23

McDonnell v. United States, 136 S. Ct. 2355 (2016) .................................. 21, 22

 * Authorities upon which we chiefly rely are marked with an asterisk.

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Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)................................ 35, 39

Randall v. Sorrell, 548 U.S. 230 (2006).........................16, 24, 34, 35-36, 39, 40

Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1 (2000) ................ 41

Shapiro v. McManus, 136 S. Ct. 450 (2015) ................................... 12, 13, 45, 46

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013)........................ 1, 10, 11, 13, 18

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ... 50

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243 

 (D.C. Cir.1987) ....................................................................................... 47

Statutes and Regulations

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

 § 307(b), (d), 116 Stat. 102-103 (2002)..................................................... 5

Iowa Code § 43.52 ............................................................................................. 28

18 U.S.C. § 201.................................................................................................. 22

18 U.S.C. § 201(a)(3)......................................................................................... 22

28 U.S.C. § 2284................................................................................................ 12

*52 U.S.C. § 30101(1)............................................................................... 2, 4, 27

52 U.S.C. § 30101(1)(B).................................................................................... 28

52 U.S.C. § 30106(b)(1) ...................................................................................... 6

52 U.S.C. § 30107(a)(8)....................................................................................... 6

52 U.S.C. § 30109(a)(6)....................................................................................... 6

52 U.S.C. § 30110.................................................................... 1, 9, 10, 17, 46, 47

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52 U.S.C. § 30111(a)(8)....................................................................................... 6

52 U.S.C. § 30111(d)........................................................................................... 6

*52 U.S.C. § 30116(a)(1)(A)............................................................................... 4

52 U.S.C. § 30116(a)(1)(B)-(D) ........................................................................ 37

52 U.S.C. § 30116(a)(3)................................................................................. 5, 37

52 U.S.C. § 30116(a)(6)....................................................................................... 4

52 U.S.C. § 30116(c) ........................................................................................... 5

11 C.F.R. § 100.2(b)(2)...................................................................................... 25

11 C.F.R. § 100.2(c)(1)...................................................................................... 25

11 C.F.R. § 110.1(b)(5)(ii)(B) ........................................................................... 48

Miscellaneous

86 Cong. Rec. 2720 (1940) (statement of Sen. Bankhead) ................................. 3

Georgia Sec’y of State, Georgia Election Results Official Results of the

 Tuesday, July 15, 2008 General Primary Election,

 http://sos.ga.gov/elections/election_results/2008_0715/swfed.htm ........ 30

Georgia Sec’y of State, Georgia Election Results Official Results of the Tuesday, 

 Aug. 05, 2008 Primary Election Runoff, 

 http://sos.ga.gov/elections/election_results/2008_0805/swall.htm ......... 30

Georgia Sec’y of State, Georgia Election Results Official Results of the Tuesday, 

 Dec. 02, 2008 General Election Runoff,

 http://sos.ga.gov/elections/election_results/2008_1202/003.htm............ 30

Georgia Sec’y of State, Statewide Results General Primary and Nonpartisan 

 General Election, May 24, 2016, 

 http://results.enr.clarityelections.com/GA/60041/174358/

 en/summary.html...................................................................................... 31

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Georgia Sec’y of State, General Primary and Nonpartisan General Runoff, July 

 26, 2016, Georgia Secretary of State, 

 http://results.enr.clarityelections.com/GA/62848/174629/

 en/summary.html...................................................................................... 31

Oklahoma State Election Bd., Special Legislative Races Runoff Primary Election 

 — August 23, 2016, https://www.ok.gov/elections/support/

 20160823_seb.html.................................................................................. 31

Oklahoma State Election Bd., Special Legislative Races Statewide Primary 

 Election — June 28, 2016, https://www.ok.gov/elections/support/

 20160628_seb.html.................................................................................. 31

Texas Sec’y of State, 2016 Republican Party Primary Runoff, 

 http://elections.sos.state.tx.us/elchist316_state.htm ................................ 31

United States House of Representatives Elections in Texas, 2016, 

 https://ballotpedia.org/United_States_House_of_Representatives

 _elections_in_Texas,_2016...................................................................... 31

Jerold J. Duquette, Campaign Finance Reform in the Bay State: Is Cleanliness 

Really Next to Godliness?, in Money, Politics, and Campaign Finance 

Reform Law in the States (David Schultz ed., 2002).............................. 44

Matthew Mosk, Wicker’s Earmark Elicits Criticism, Wash. Post (Jan. 16, 2008), 

http://www.washingtonpost.com/wpdyn/content/article/2008/01/15/AR2008011503355.html....................... 44

Philip M. Stern, The Best Congress Money Can Buy (1988) ........................... 45

Statement of Reasons in Support of Repayment Determination After Admin. 

Review, In the Matter of Gary Johnson and Gary Johnson 2012, Inc., LRA 

905 (Apr. 5, 2016), 

http://www.fec.gov/audits/2012/Gary_Johnson_2012_Inc/GovernorGaryJoh

nsonandGaryJohnson2012IncMemorandum.pdf................................ 25-26

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GLOSSARY

BCRA = Bipartisan Campaign Reform Act

FEC = Federal Election Commission

FECA = Federal Election Campaign Act

JA = Joint Appendix

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COUNTERSTATEMENT OF JURISDICTION

The district court had jurisdiction to review this action for eligibility for 

certification to the en banc Court of Appeals under 52 U.S.C. § 30110. Wagner v. 

FEC, 717 F.3d 1007, 1009 (D.C. Cir. 2013) (per curiam) (“Wagner I”) (concluding 

that jurisdiction under the provision now codified at 52 U.S.C. § 30110 is 

mandatory for persons therein enumerated who seek to initiate constitutional 

challenges to the Federal Election Campaign Act as plaintiffs). On June 29, 2016, 

the district court certified a First Amendment question and findings of fact to this

en banc Court for its consideration in the first instance. (Joint Appendix (“JA”) 

197.) This Court has jurisdiction under 52 U.S.C. § 30110.

COUNTERSTATEMENT OF ISSUES PRESENTED

The district court certified one constitutional question: 

“When federal law limits individual contributors to giving $2,600 to a 

candidate for use in the primary election and $2,600 to a candidate for use in 

the general election and denies Plaintiffs the ability to give $5,200 to a 

candidate solely for use in the general election, does it violate Plaintiffs’ 

rights of freedom to associate guaranteed by the First Amendment, U.S. 

Const. amend. I?”

(JA 197.)1

 1 Although the parties agree that this Court has jurisdiction to decide the 

constitutional question certified by the district court (Pls.’ Br. at 1), and that “this 

case does not present a true appeal” (id. at ii), plaintiffs’ argumentative “Statement 

of Issues” (id. at 1) improperly departs from the question certified by the district 

court.

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APPLICABLE STATUTES AND REGULATIONS

Portions of the relevant provisions are included in Plaintiffs’ Opening Brief 

at pp. 1-5, and supplemented below.

52 U.S.C. § 30101(1)

When used in th[e] Act: 

(1) The term “election” means —

(A) a general, special, primary, or runoff election;

(B) a convention or caucus of a political party which has authority to 

nominate a candidate;

(C) a primary election held for the selection of delegates to a national 

nominating convention of a political party; and

(D) a primary election held for the expression of a preference for the 

nomination of individuals for election to the office of President.

COUNTERSTATEMENT OF THE CASE

I. STATUTORY AND REGULATORY BACKGROUND

A. Congress’s Original Enactment of Per-Year Limits on 

Contributions to Candidates

Limits on contributions to candidates have been a principal tool for 

preventing political corruption in this country for over seventy-five years. (See JA

142-43 ¶ 3.) In the first half of the twentieth century, Congress grew particularly 

concerned about corruption arising from contributions to candidate campaigns and 

political parties. In 1939, Congress passed S. 1871, officially titled “An Act to 

Prevent Pernicious Political Activities” and commonly referred to as the Hatch 

Act. (Id. (citing S. Rep. No. 101-165, at *18 (1939)).) Congress established 

individual contribution limits in the 1940 amendments to the Hatch Act, which

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prohibited “any person, directly or indirectly” from making “contributions in an 

aggregate amount in excess of $5,000, during any calendar year” to any federal 

candidate. (Id. (internal quotation marks omitted).) The limit was sponsored by 

Senator John H. Bankhead, who stated that “[w]e all know that large contributions 

to political campaigns . . . put the political party under obligation to the large 

contributors, who demand pay in the way of legislation.” 86 Cong. Rec. 2720 

(1940) (statement of Sen. Bankhead). 

B. FECA’s Per-Election Limit on Contributions to Candidates

By 1971, when Congress enacted the Federal Election Campaign Act 

(“FECA” or “Act”), the $5,000 individual contribution limit was being “‘routinely 

circumvented.’” (JA 143 ¶ 4 (quoting 117 Cong. Rec. 43,410 (1971) (statement of 

Rep. Abzug)); see JA 143-44 ¶ 5 (describing congressional findings regarding such 

circumvention).) In 1974, shortly after the Watergate scandal, Congress 

substantially revised FECA, adding to it, inter alia, a $1,000 per-candidate, perelection limit on individual contributions to candidates and their authorized 

political committees. (JA 144 ¶ 6 (citing Federal Election Campaign Act 

Amendments of 1974, Pub. L. No. 93-443, § 101(b)(3), 88 Stat. 1263).) 

The contribution limit challenged here applies on a per-candidate, perelection basis, with “election” defined to include, inter alia, general, primary, 

runoff, and special elections, as well as political party conventions and caucuses. 

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52 U.S.C. § 30101(1); JA 144 ¶ 8. FECA’s individual contribution limit applies 

separately for each election, except that the contests in various states when 

presidential candidates are seeking their party’s nomination are treated as a single 

election. (JA 144-45 ¶ 8 (citing 52 U.S.C. § 30116(a)(1)(A), (a)(6)).) 

C. The Supreme Court’s Decision Affirming the Constitutionality of 

FECA’s Per-Election Contribution Limit

Shortly after Congress passed the 1974 FECA amendments, the Supreme 

Court, in Buckley v. Valeo, affirmed the constitutionality of the individual, perelection limit against both First Amendment and Fifth Amendment equal 

protection challenges. 424 U.S. 1, 29, 35 (1976) (per curiam). Most relevant here, 

the Court found that a contribution limit only “marginal[ly]” restricts a 

contributor’s First Amendment rights and therefore applied intermediate, or

“closely drawn,” scrutiny. Id. at 20-21, 25. The Court upheld FECA’s perelection limit against the First Amendment challenge, finding that it furthered the 

government’s important interests in limiting actual and apparent corruption, both 

of which threaten to undermine “the integrity of our system of representative 

democracy.” Id. at 23-29. 

The Buckley Court also found that the then-$1,000 per-election contribution 

limit was not unconstitutionally overbroad, rejecting an argument that the limit was

“unrealistically low” and holding that judicial review of the amount at which limits 

are set is very narrow. Id. at 30. The Court explained that if Congress decides that 

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“some limit on contributions is necessary, a court has no scalpel to probe, whether, 

say, a $2,000 ceiling might not serve as well as $1,000.” Id. (internal quotation 

marks omitted).2

 

D. FECA’s Current Per-Election Contribution Limit

The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 

Stat. 81 (“BCRA”), subsequently amended FECA to raise the per-election limit 

and index it for inflation. (JA 145 ¶ 9 (citing BCRA § 307(b), (d), 116 Stat. 102-

103 (codified at 52 U.S.C. § 30116(a)(3), (c))).) The indexed limit that applied to 

contributions made to federal candidates during the 2013-2014 election cycle, 

including the contributions at issue in this case, was $2,600 per candidate, per

election. (JA 145 ¶ 10 (citing FEC, Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8530, 8532 (Feb. 6, 2013)).)

 2 In addition to these holdings, the Supreme Court in Buckley also rejected a 

Fifth Amendment equal protection challenge to FECA’s per-election contribution 

limit. The Court observed that FECA “applies the same limitations on 

contributions to all candidates” and stated that “[a]bsent record evidence of 

invidious discrimination . . . a court should generally be hesitant to invalidate 

legislation which on its face imposes evenhanded restrictions.” 424 U.S. at 31. 

The Court explained that “the danger of corruption and the appearance of 

corruption apply with equal force to challengers and to incumbents” and 

accordingly found that “Congress had ample justification for imposing the same 

fundraising constraints upon both.” Id. at 33.

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As the district court’s factual findings explain, “[b]ecause FECA defines 

‘election’ to include various types of electoral contests, the total amount that an 

individual may contribute to a particular candidate during a particular election 

cycle depends on the number of elections in which that candidate participates to 

pursue the federal office being sought.” (JA 145 ¶ 11.) “[A]n individual who 

supported a candidate who participated in one primary election and one general 

election during the 2013-2014 election cycle was permitted to contribute a total of 

$5,200 to that candidate — $2,600 for the candidate’s primary-election campaign 

and $2,600 for the candidate’s general-election campaign.” (Id. at 145-46 ¶ 11.) 

“In an election cycle in which a candidate competes in one or more runoffs, special 

elections, or a political party caucus or convention, in addition to a primary and 

general election, the total amount that an individual may contribute to that 

candidate is higher.” (Id. at 146 ¶ 12.) 

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

The FEC is the independent agency of the United States with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of FECA. 

52 U.S.C. §§ 30106(b)(1), 30107(a)(8), 30109(a)(6), 30111(a)(8), (d); see JA 142

¶ 2.

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Plaintiffs Laura Holmes and Paul Jost (“Contributors”) are a married couple 

residing in Miami, Florida, who supported certain candidates running in the 

November 2014 general congressional elections. (JA 142 ¶ 1, 157 ¶ 61, 158 ¶ 70.) 

Holmes and Jost chose not to make any contributions to those candidates’ primaryelection campaigns. (Id. at 157 ¶ 62, 158 ¶ 71.) But Holmes and Jost wished to 

contribute the maximum amounts then permitted for primary and general-election 

campaigns combined — $5,200 — “entirely for the general election.” (See id. at 

14 (Compl. ¶ 26).) In other words, they sought to make general-election 

contributions in amounts that were double FECA’s per-election limit. (Id. at 158 

¶¶ 67-68, 159 ¶¶ 74-75.) 

Holmes supported Carl DeMaio, a candidate who sought to represent 

California’s Congressional District 52. (JA 157 ¶ 61.) Under California’s “Top 

Two” primary system, all candidates for United States congressional offices are 

listed on the same primary ballot and the two candidates that receive the most 

votes, regardless of party preference, proceed to compete in the general election. 

(Id. at 152 ¶ 36.) Four candidates were listed on the ballot for California’s June 3, 

2014 congressional primary election: Carl DeMaio, incumbent Representative 

Scott Peters, and two other candidates. (Id. at 157 ¶ 63.) DeMaio and Peters thus 

each faced three candidates in the primary, including each other. (Id.) Ultimately, 

Peters and DeMaio received the most votes and were the “top two” finishers in the 

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primary. (Id. ¶¶ 64-65) DeMaio later lost the general election to Peters. (Id. at 

158 ¶ 69.)

Holmes chose not to make a primary-election contribution to DeMaio but 

contributed $2,600 to DeMaio’s general-election campaign. (JA 157 ¶ 62; id at 

158 ¶ 67.) Holmes sought to contribute an additional $2,600 to DeMaio’s generalelection campaign, so that her total contributions in support of DeMaio’s generalelection campaign would have amounted to $5,200, twice the statutory limit at the 

time. (Id. ¶ 68.)

Jost supported Mariannette Miller-Meeks, a candidate who sought to 

represent Iowa’s Second Congressional District. (JA 158 ¶ 70.) Miller-Meeks 

won her 2014 primary election but lost in the general election to incumbent 

Representative David Loebsack. (Id. at 159 ¶¶ 72, 73, 76.) Jost chose not to make 

a primary contribution to Miller-Meeks, but contributed $2,600 to that candidate’s

general-election campaign. (Id. 158 ¶ 71; id. at 159 ¶ 74.) Jost sought to 

contribute an additional $2,600 to Miller-Meeks’s general-election campaign, so 

that his total contributions in support of Miller-Meeks’s general-election campaign 

would have amounted to $5,200, twice the statutory limit at the time. (Id. 159 

¶ 75.) 

Contributors have previously averred that they plan to make similar 

contributions in future election cycles. (JA 163.)

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B. Procedural History

1. Preliminary District Court Proceedings

Contributors filed their complaint challenging FECA’s per-election 

contribution limit on July 21, 2014 (JA 8-26), and subsequently moved to 

preliminarily enjoin the FEC from enforcing FECA’s $2,600 per-election limit “asapplied” to their desired $5,200 general-election contributions. 

On October 20, 2014, the district court denied Contributors’ motion for a 

preliminary injunction, finding that they were unlikely to succeed on the merits. 

(JA 38-52.) The court explained that their “wish [was] to contribute $5,200 to the 

general election alone, as opposed to the $2,600 deemed appropriate by Congress,”

and they therefore challenged “the specific base limit on how much an individual 

may contribute per election.” (Id. at 45 n.5.) The court concluded that such a 

challenge is foreclosed by Supreme Court precedent, and that the court did not 

have the “luxury” of overruling “Buckley v. Valeo and its progeny.” (Id. at 38.) 

Contributors did not appeal the district court’s denial of their preliminary 

injunction motion. 

On November 12, 2014, the district court issued its initial decision on 

Contributors’ request for certification of constitutional questions to the en banc 

Court of Appeals pursuant to 52 U.S.C. § 30110. The court indicated some 

uncertainty at that time about whether district courts possess a screening role in 

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cases brought under 52 U.S.C. § 30110 and so, “in an abundance of caution,” it

certified two constitutional questions for en banc consideration, along with two 

dozen findings of fact. (JA 53-59.) The Commission filed a motion in this Court 

for remand so that a record could be developed, the Commission could have an 

opportunity to be heard on the district court’s findings of fact, and the district court 

could perform its gatekeeping role of determining whether a constitutional 

question should be certified to this Court sitting en banc. See FEC’s Mot. For 

Remand at 9-16, Holmes v. FEC, No. 14-5281 (D.C. Cir. Jan. 2, 2015), Doc.

# 1529989.

3

 

On January 30, 2015, in an en banc order, this Court remanded the case to 

the district court with instructions to “provide the parties an opportunity to 

develop, by expedited discovery or otherwise, the factual record” and “complete 

the functions mandated by section 30110 and described [by this Court] in Wagner 

[I, 717 F.3d at 1009].” (JA 60.) The three mandated functions are to “develop a 

record for appellate review by making findings of fact,” “determine whether the 

constitutional challenges are frivolous or involve settled legal questions,” and 

 3 Contributors’ opening brief mischaracterizes the Commission’s arguments in 

support of the agency’s remand request by omitting the third reason listed above. 

(Pls.’ Br. at 7-8, 10 n.6.)

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“certify the record and any non-frivolous constitutional questions to the en banc 

court of appeals.” Wagner I, 717 F.3d at 1009.4

On remand, the parties each proposed findings of fact and submitted briefs 

regarding whether any questions should be certified for en banc consideration. On 

April 20, 2015, the district court issued its order and opinion setting forth 76 

findings of fact, declining to certify any constitutional questions, and granting 

summary judgment to the Commission. (JA 138-182.) The district court 

concluded that Contributors’ First and Fifth Amendment claims both challenged 

issues of settled law and rejected what the court described as Contributors’ “veiled 

attack on the contribution limit set by Congress and upheld by the Supreme Court 

as a legitimate means to combat corruption.” (Id. at 139.) 

2. Appeal of the District Court’s April 2015 Certification Decision

On April 26, 2016, a two-judge panel of this Court reversed the district 

court’s decisions not to certify the question related to Contributors’ First 

Amendment claim and to award summary judgment to the Commission on that 

claim (id. at 184-96), and it affirmed the portion of the decision below declining to 

certify Contributors’ Fifth Amendment equal protection question (JA 194-96).

 4 By omitting the order to complete the functions described in Wagner, 

Contributors’ description of this Court’s remand order is also incomplete. (See 

Pls.’ Br. at 10 n.6 (referencing only the court’s order to develop a factual record).)

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12

Chief Judge Garland was a member of the panel for the appellate argument but did 

not participate in the panel’s opinion. (Id. at 184.)

The panel’s opinion, written by Senior Circuit Judge Randolph and joined 

by Judge Henderson, relied on Shapiro v. McManus, 136 S. Ct. 450 (2015), a 

decision the Supreme Court had handed down after the district court issued its 

decision not to certify constitutional questions in this case. Shapiro clarified the 

analogous standard that district courts must apply in determining whether a threejudge court must be convened under 28 U.S.C. § 2284. The panel opinion here

concluded that the role of a district court under section 30110 is similar to the 

single-judge district court’s role under 28 U.S.C. § 2284 — i.e., the court may 

decline to certify a constitutional question that is “‘wholly insubstantial,’

‘obviously frivolous,’ and ‘obviously without merit.’” (JA 188 (quoting Shapiro, 

136 S. Ct. at 456).) 

The panel concluded that Contributors’ First Amendment challenge cleared 

that “‘low bar’” and thus should have been certified for a determination on the 

merits by this en banc Court. (JA 188-89.) The Court expressly declined to “take 

sides on the merits of the dispute.” (JA 189.)

In reaching its conclusion that Contributors’ First Amendment question 

should have been certified, the panel viewed as “dicta” this Court’s mandate in 

Wagner I, that in performing the district court’s screening function under section 

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13

30110, a “‘district court must determine whether the constitutional challenges are 

frivolous or involve settled legal questions.’” JA 189 n.5 (discussing Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981) and quoting Wagner I, 717 F.3d at 

1009); see supra pp. 10-11. The panel found that the district court in this case had 

erred by declining to certify constitutional questions on the basis that the questions 

presented had been settled by the Supreme Court. (JA 192 ( “We therefore do not 

think a district court may decline to certify a constitutional question simply 

because the plaintiff is arguing against Supreme Court precedent so long as the 

plaintiff mounts a non-frivolous argument in favor of overturning that 

precedent.”).) The panel opinion did not explicitly explain how that holding is 

consistent with Wagner I and this en banc Court’s remand order, see JA 60; supra

pp.10-11. In any event, the panel also concluded that the “per-election structure” 

of FECA’s contribution limit received too little attention by the Supreme Court to 

render the First Amendment question here sufficiently “settled” so as to preclude 

certification. (JA 193.)

With respect to Contributors’ Fifth Amendment claim, however, the panel 

found that claim to be “so clearly a challenge to [FEC] regulations, and therefore 

outside the scope of § 30110, that it ‘fail[s] to raise a substantial federal question 

for jurisdictional purposes.’” (JA 194 (quoting Shapiro, 136 S. Ct. at 455); see id.

195 (explaining that section 30110 provides only for certification of “questions of 

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constitutionality of this Act”).) The Court of Appeals explained that although 

Holmes and Jost “frame their Fifth Amendment contention as a ‘challenge to the 

. . . timing of [the Act’s] contribution limits,” and they “focus on the timing of 

contributions and on candidates’ ability to transfer campaign funds,” “the Act is 

silent on both subjects.” (JA 195 (alterations by the Court).) The panel clarified 

that FECA “merely sets contribution limits and applies those limits on a perelection basis.” (Id.)

SUMMARY OF ARGUMENT

For decades, FECA has imposed limits on the amount of money an 

individual may contribute to a federal candidate in connection with each election in 

which that candidate participates. During the 2013-2014 election cycle, the Act 

permitted individuals to contribute up to $2,600 per candidate, per election. Thus, 

an individual who sought to contribute to a candidate who ran in one primary and 

one general election during that election cycle could legally contribute $2,600 to 

that candidate for each of those elections, for a combined total of $5,200. For a 

candidate who also competed in one or more special elections or runoff contests, 

the combined total amount that an individual could contribute over the course of a 

single election cycle was higher.

As the Supreme Court determined more than forty years ago in Buckley,

contribution limits are subject to “closely drawn” intermediate scrutiny because 

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15

they impose only a “marginal restriction” on contributors’ First Amendment rights. 

Under that standard, contribution limits must further important government

interests and employ means proportionate to the asserted interests to be upheld. 

The Court in Buckley also established a general rule, which it has since reaffirmed, 

that it is not the role of courts to second-guess Congress’s judgment regarding the 

appropriate dollar figure at which to set a contribution limit.

FECA’s per-election contribution limit furthers the government’s important 

interests in preventing actual and apparent corruption. That was another 

conclusion in Buckley that the Court has continually reiterated. It has even 

observed that these anticorruption interests may be viewed as compelling. 

FECA’s contribution limit is also closely drawn. By applying separately to 

each election within a particular election cycle, the limit sensibly accounts for 

distinctions between primary and general elections, as well as variations in election 

procedures among the states. It minimizes the risk and appearance of corruption 

while at the same time ensuring that candidates have sufficient resources for 

advocacy in each election contest in which they participate. The conclusion that 

FECA’s per-election limit is closely drawn is, yet again, a holding in Buckley that

the Supreme Court has reaffirmed a number of times, including in its 2014

decision in McCutcheon v. FEC, 134 S. Ct. 1434 (2014). In fact, a per-election 

basis is a positive indicator that a legislature has closely drawn a contribution limit. 

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In contrast, the Supreme Court noted in Randall v. Sorrell, 548 U.S. 230 (2006),

that limiting contributions per election cycle, as Contributors prefer, is a danger 

sign that a limit may not be closely drawn. 

This case is a thinly veiled attempt to relitigate these well-settled holdings. 

Contributors are two individuals who wished to make double-the-limit generalelection contributions to certain federal candidates, while at the same time seeking 

to prevent those candidates from using the contributions in a way the Contributors

considered to be “wasted” on those candidates’ primary elections (Pls.’ Br. at 25). 

Contributors attempt to escape the dispositive effect of Supreme Court precedent

on their legal arguments by characterizing this case as a novel, as-applied

challenge to the supposed “bifurcated structure” of FECA’s per-election limit. 

(E.g., Pls.’ Br. at 22 n.11.) But no such bifurcation exists and Contributors’ 

factually inaccurate characterization of FECA’s unambiguous provisions does not 

demonstrate otherwise. The Act applies to a variety of electoral contests beyond 

primary and general elections and plainly does not set a single, “bifurcated” limit, 

as the district court’s undisputed factual findings illustrate. Contributors’ 

mischaracterization of the provision they challenge does not render their First 

Amendment claim “novel.” 

Nor is Contributors’ challenge “as applied,” because the relief they request

necessarily reaches beyond their own alleged circumstances. As the district court 

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correctly determined when it denied Contributors’ preliminary injunction motion, 

Holmes and Jost “challenge the analysis and conclusion of the Supreme Court in 

Buckley v. Valeo and its progeny,” which preclude Contributors from claiming a

right to make general-election contributions in amounts that are double FECA’s 

per-election limit. (JA 38, 44-46.) 

Contributors’ First Amendment challenge fails for the additional and 

independent reason that their alleged injuries are entirely self-imposed. Holmes 

and Jost admit that they chose not to exercise their First Amendment rights to the 

full extent permitted by FECA, because they preferred not to associate with their 

favored candidates until after those candidates’ primary elections (Pls.’ Br. at 25). 

That personal choice is not a constitutional injury.

Contributors’ request for a court-ordered modification of the structure and 

amount of FECA’s longstanding per-election limit on individual contributions to 

candidates presents no ground for departing from well-settled, binding precedents 

and must be rejected.

ARGUMENT

I. STANDARD OF REVIEW 

In this case, Contributors ask the Court to answer a constitutional question 

certified pursuant to 52 U.S.C. § 30110. Under that provision, the Court decides 

the merits in the first instance; no judgment of the district court is under review. 

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See Wagner I, 717 F.3d at 1011. The district court’s findings of fact “may not be 

set aside unless clearly erroneous.” Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 

740, 743 (D.C. Cir. 2000). Contributors have not challenged any of the district 

court’s factual findings. 

II. THE PER-ELECTION CONTRIBUTION LIMIT STATISFIES FIRST 

AMENDMENT SCRUTINY

A. Contribution Limits Are Subject to Intermediate Scrutiny

Contribution limits are subject to a lesser standard of constitutional scrutiny 

than restrictions on expenditures, as Contributors themselves recognize. (Pls.’ Br.

11.) Contribution limits “‘entail[] only a marginal restriction upon the

contributor’s ability to engage in free communication’” and “‘may be sustained if 

the State demonstrates a sufficiently important interest and employs means closely 

drawn to avoid unnecessary abridgment of associational freedoms.’” JA 43

(denying preliminary injunction and quoting Buckley, 424 U.S. at 20-21, 25).

The Supreme Court applies this more deferential standard of review because 

contributions “lie closer to the edges than to the core of political expression,” FEC 

v. Beaumont, 539 U.S. 146, 161 (2003), in contrast to laws limiting campaign 

expenditures, which “impose significantly more severe restrictions on protected 

freedoms of political expression and association,” Buckley, 424 U.S. at 23. As the 

Court has explained, “[t]he quantity of communication by the contributor does not 

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

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solely on the undifferentiated, symbolic act of contributing.” Buckley, 424 U.S. at 

21. “A limitation on the amount of money a person may give to a candidate or 

campaign organization thus involves little direct restraint on his political 

communication.” Id. Contribution limits “‘permit[] the symbolic expression of 

support evidenced by a contribution but do[] not in any way infringe the 

contributor’s freedom to discuss candidates and issues.’” McCutcheon, 134 S. Ct.

at 1444 (quoting Buckley, 424 U.S. at 21; alterations in McCutcheon).5 A 

contribution limit thus need not pass the strict scrutiny test of being upheld only if 

it “promotes a compelling interest and is the least restrictive means to further the 

articulated interest.” McCutcheon, 134 S. Ct. at 1444; accord Pls.’ Br. 11. “‘Even 

a significant interference with protected rights of political association may be 

sustained if the State demonstrates a sufficiently important interest and employs 

means closely drawn to avoid unnecessary abridgment of associational freedoms.’” 

McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at 25; internal 

quotations marks from Buckley omitted).

 5 The plurality opinion authored by Chief Justice Roberts is “the holding of 

the Court” because it rests on narrower grounds than Justice Thomas’s opinion 

concurring in the judgment. Marks v. United States, 430 U.S. 188, 193 (1977) 

(citation and internal quotation marks omitted).

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B. The Government’s Important Anticorruption Interests Justify

FECA’s Per-Election Contribution Limit 

The Supreme Court in Buckley found that the then-$1,000 per-election 

contribution limit that is the subject of this litigation furthers the important 

governmental interests of preventing “the actuality and appearance of corruption 

resulting from large individual financial contributions.” 424 U.S. at 26. 

More specifically, the Court identified two “weighty interests” that justify 

the per-election limit on individual contributions to candidates. Id. at 29. First, the 

limit reduces the opportunity to use large contributions “to secure a political quid 

pro quo from current and potential office holders.” Id. at 26. Although “the scope 

of such pernicious practices can never be reliably ascertained,” the Court observed 

that “the deeply disturbing examples surfacing after the 1972 election demonstrate 

that the problem is not an illusory one.” Id. at 27. The Court also recognized that 

“the integrity of our system of representative democracy is undermined” by such 

corrupt arrangements. Id. at 26-27.

Second, and “[o]f almost equal concern,” the individual limit reduces “the 

appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial contributions.” Buckley, 

424 U.S. at 27. “Congress,” the Court reasoned, “could legitimately conclude that 

the avoidance of the appearance of improper influence is . . . critical, if confidence 

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in the system of representative Government is not to be eroded to a disastrous 

extent.” Id. (internal quotation marks, ellipsis, and citation omitted).

Contributors appear to suggest (Pls.’ Br. at 14-16) that the Supreme Court’s 

decisions in McCutcheon and McDonnell v. United States, 136 S. Ct. 2355 (2016), 

have narrowed which government interests are permissible in order for

contribution limits to satisfy constitutional scrutiny — i.e., that a contribution limit 

may be upheld only if it “‘target[s] [the] direct exchange of an official act for 

money.’” (Pls.’ Br. at 15 (relying on an incomplete quotation from McCutcheon, 

134 S. Ct. at 1441).) Those decisions say no such thing. Indeed, the very 

sentences that Contributors quote from McCutcheon include language, which 

Contributors omitted, making clear that contribution limits may validly target not 

only “‘quid pro quo’ corruption” itself, but also “its appearance.” 134 S. Ct. at 

1441. The Court later reiterated that “[i[n addition to ‘actual quid pro quo

arrangements,’ Congress may permissibly limit ‘the appearance of corruption 

stemming from public awareness of the opportunities for abuse inherent in a 

regime of large individual financial contributions’ to particular candidates.” Id. at 

1450 (quoting Buckley, 424 U.S. at 27). Indeed, the McCutcheon plurality 

observed that the interests in limiting actual and apparent corruption served by the 

Act’s contribution limits are not only substantial but “may properly be labeled 

compelling.” Id. at 1445 (internal quotation marks omitted). 

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Nor does the Supreme Court’s decision in McDonnell, an inapposite case 

concerning a criminal bribery statute, not FECA, alter the scope of anticorruption 

interests that undergird FECA’s contribution limits, including the per-election limit 

obliquely challenged here. McDonnell involved “the proper interpretation of the 

term ‘official act’” in 18 U.S.C. § 201(a)(3), the federal criminal bribery statute 

that the parties had agreed would define elements of the government’s criminal 

charges against former Virginia Governor Bob McDonnell. 136 S. Ct. at 2361, 

2367. The context of that decision — interpretation of a different statute, in a 

criminal prosecution requiring proof beyond a reasonable doubt, and in which the 

jury received erroneous instructions — is readily distinguishable from the instant 

constitutional challenge to a civil contribution limit. Tellingly, the McDonnell

opinion did not cite a single campaign finance decision. 

As the Supreme Court has consistently explained, the corruption concerns 

addressed by FECA’s contribution limits extend beyond the criminal quid pro quos

of the type at issue in McDonnell. E.g., Citizens United v. FEC, 558 U.S. 310, 

356-57 (2010) (observing that the actual “practices Buckley noted would be 

covered by bribery laws,” citing 18 U.S.C. § 201, and explaining that “restrictions 

on direct contributions are preventative . . . in order to ensure against the reality or 

appearance of corruption”) (internal citations omitted); Buckley, 424 U.S. at 27-28

(“Congress was surely entitled to conclude . . . that contribution ceilings were a 

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necessary legislative concomitant to deal with the reality or appearance of 

corruption” (emphasis added)). 

Finally, Contributors’ insistence that the Commission must “demonstrate 

that FECA’s bifurcated system of contribution limits is targeted toward a risk of 

corruption that is not already addressed by the contribution limits in general” (Pls.’ 

Br. at 16) makes no sense. FECA does not have any “bifurcated system of 

contribution limits” and the Act’s per-election limits are not separate from the 

statute’s “contribution limits in general.” See infra Part II.D. The supposedly 

separate categories of contribution limits that Contributors pretend to compare are 

one and the same.

The Supreme Court has repeatedly found that FECA’s limit on contributions 

from individuals to candidates deters “the actuality and appearance of corruption 

resulting from large individual financial contributions.” Buckley, 424 U.S. at 26;

see also Citizens United, 558 U.S. at 359 (noting that contribution limits “have 

been an accepted means to prevent quid pro quo corruption”); McConnell v. FEC, 

540 U.S. 93, 298 (2003) (Kennedy, J. concurring in the judgment in part and 

dissenting in part) (observing that Buckley recognized Congress’s “interest in 

regulating the appearance of corruption that is ‘inherent in a regime of large 

individual financial contributions’” (quoting Buckley, 424 U.S. at 27)), overruled 

in part on other grounds by Citizens United, 558 U.S. 310 (2010). Focusing in on 

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the limit’s operation per election does not alter the important government interest 

that is furthered. 

C. FECA’s Per-Election Limit Is Closely Drawn 

FECA’s establishment of separate contribution limits for each election 

within an election cycle is a practical, reasonable, and fair means of furthering the 

government’s important anticorruption interests. Far from demonstrating 

overbreadth or a departure from the stated purpose, it is one of the ways in which

Congress drew the provision so that it closely serves the governmental objective. 

Setting contribution limits on a per-election basis, as FECA does, fights 

corruption while also taking a targeted approach regarding the extent to which the 

limits restrict contributors’ freedom of political association and ensuring that 

candidates are able to “‘amass[] the resources necessary for effective advocacy.’” 

Randall, 548 U.S. at 247 (Breyer, J., plurality op.) (quoting Buckley, 424 U.S. at 

21). The per-election limit allows individuals to make independent decisions 

whether to associate with a candidate in connection with each electoral contest in 

which the candidate participates, just as Holmes and Jost have done here. (See JA 

44.) The separate contribution limits also account for the lack of uniformity in 

federal electoral contests — including the races in different political parties for the 

same particular office — and tie the amount of money that a particular candidate 

can receive (and that the candidate’s supporters may contribute) to the number of 

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elections in which that candidate participates. Congress clearly recognized that 

being elected to a federal office may be the result of multiple, separate elections, 

including primary elections, which are, as the district court noted, “a necessary part 

of the election process.” (JA 46.) “Intimately aware of the financial demands of a 

modern election campaign,” as the district court further explained, “Congress has 

. . . maintained a per-person, per election contribution limitation.” Id.

1. FECA’s Limit Sensibly Distinguishes Between Primary and 

General Elections

FEC regulations and the district court’s undisputed factual findings describe 

the distinct purposes of primary and general elections: primaries “serve the 

purpose of determining, in accordance with State law, which candidates are 

‘nominated . . . for election to Federal office in a subsequent election.’” (JA 147 

¶ 17 (quoting 11 C.F.R. § 100.2(c)(1)) (emphasis added).) General elections, by 

contrast, are held to “‘fill a vacancy in a Federal office . . . and . . . [are] intended to 

result in the final selection’” of the individual to serve in that office. (Id. ¶ 18 

(quoting 11 C.F.R. § 100.2(b)(2).) Far from being essentially meaningless, as 

Contributors contend (see, e.g., JA 12, 14 (Compl. ¶¶ 18, 26)), the Commission has 

enforced the separation between primary and general election financing on a 

number of occasions. JA 150-52 ¶¶ 29-34; see also Statement of Reasons in 

Support of Repayment Determination After Admin. Review, In the Matter of Gary 

Johnson and Gary Johnson 2012, Inc., LRA 905, at 3, 15 (Apr. 5, 2016),

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http://www.fec.gov/audits/2012/Gary_Johnson_2012_Inc/GovernorGaryJohnsonan

dGaryJohnson2012IncMemorandum.pdf (requiring repayment to the United States 

Treasury of $332,191 in public funds for primary election due to improper 

incurring of expenses in connection with general election). 

Contributors’ own stated intentions highlight the distinctions between 

primary and general elections: their claims arise out of their desire to associate 

with certain candidates only in connection with those candidates’ general-election

campaigns, and their corresponding desire not to associate with those candidates 

during their primary-election campaigns. (Pls.’ Br. at 25 (“Plaintiffs have no 

desire to see their contributions wasted [on primary elections], preferring to 

support their party’s ultimate nominees.”).) Contributors’ own actions thus 

directly undermine their repeated assertions that FECA’s “distinction between 

primary and general elections” is “artificial.” (JA 12, 14, 16, 17, 18 (Compl. ¶¶ 18, 

26, 37, 40, 41).) 

2. FECA Effectively Accommodates State-by-State Variations in 

Election Procedures

In addition to recognizing these distinctions between primary and general 

elections, FECA’s per-election limits also “account for the lack of uniformity in 

federal electoral contests — including the races within different political parties for 

the same particular office,” as the district court’s factual findings demonstrate. (JA

152 ¶ 35.) Congress clearly recognized that being elected to a federal office may 

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be the result of multiple, separate elections, possibly including special and runoff 

elections, that are a necessary part of the election process. FECA thus defines 

“election” to include the various types of electoral contests, including “a general, 

special, primary, or runoff election,” and a political party convention or caucus,

that “has authority to nominate a candidate.” 52 U.S.C. § 30101(1). By 

establishing separate limits for each of these contests, FECA imposes the same perelection limit on all candidates in each electoral contest in which they participate.

The lack of uniformity in states’ electoral procedures is amply demonstrated 

in the district court’s factual findings, which describe, inter alia, the regular 

occurrence of primary runoff elections in ten states under varying circumstances, 

open primary elections in other states, and special elections when necessary to fill 

a seat vacated by an incumbent who left office before completing his or her full 

term. (See JA 152-56 ¶¶ 35-58 (detailing frequency and identifying specific 

examples of electoral contests that included runoff and special elections over the 

past dozen years).) 

In Louisiana, for example, no congressional primary election is held; the 

first election for candidates seeking federal office is the November general 

election. (JA 152-53 ¶ 37.) Only if no candidate wins a majority of the vote in the 

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November election does Louisiana hold a second, “runoff,” election in December 

of the same year. (Id.)6

 

In Iowa, which is where one of Contributors’ preferred candidates was 

running (JA 158 ¶ 70), if a party candidate fails to win his primary election by at 

least 35 percent of the vote, the primary election is deemed “inconclusive” and the 

candidates are selected by a political party convention, i.e., a separate electoral 

contest for which the candidates can receive contributions. JA 154 ¶ 45; Iowa

Code § 43.52; see 52 U.S.C. § 30101(1)(B). This scenario occurred in 2014, when 

no Republican primary candidate for Iowa’s Third Congressional District attained 

the required 35 percent of the vote and the party nominee was selected by the Iowa 

Republican Convention. (JA 120-21, 154 ¶ 45.) 

FECA’s per-election contribution limit thus sensibly permits a candidate 

who must participate in a primary, runoff, and general election within a single 

election cycle to receive a greater number of contributions from a particular 

contributor during that election cycle than candidates who participate only in one

primary and one general election. (See JA 146 ¶ 12.) 

 6 In 2014 no candidate won a majority of the vote in Louisiana’s November 

2014 election for U.S. Senate. The state thus held a second election on December 

6, 2014. (JA 153 ¶ 38.) 

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3. Recent Examples Illustrate How FECA Closely Adheres to Its 

Purpose by Permitting Resources for Each Election Contest 

A number of recent examples demonstrate how FECA’s limit deters 

corruption while at the same time ensuring that candidate campaigns maintain 

sufficient resources to run effective campaigns.

During the 2013-2014 election cycle in Mississippi, six-term incumbent 

Mississippi Senator Thad Cochran failed to receive enough votes in the Mississippi 

Republican Senate primary election to avoid a runoff election against his primary 

opponent, Chris McDaniel. (JA 154 ¶ 44; see also JA 124-26, 129-31.) Travis 

Childers, on the other hand, won the Democratic primary by a sweeping margin 

and so avoided having to participate in a runoff. (JA 154 ¶ 44.) Uniform perelection-cycle limits such as those Contributors propose would have meant Senator 

Cochran and challenger Childers would have been permitted to receive the same 

amounts from contributors over the course of the election cycle. An election-cycle 

limit would have been less suited to those circumstances than a per-election limit 

given that Senator Cochran, but not challenger Childers, participated in an 

additional election — an expensive runoff race (see JA 124-25 (discussing 

spending on Republican senate primary)) — before proceeding to the general 

election. 

Uniform election-cycle limits would have had a similarly disparate effect on 

the candidates competing in the United States Senate race in Georgia in 2008. 

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Whereas Democrat Jim Martin competed in both a primary and a primary runoff 

election before proceeding to the general election, the incumbent, Republican 

Senator Saxby Chambliss, did not have to participate in a runoff election after his 

primary.

7

 Neither Martin nor Chambliss received a majority of the vote in the 

general election, and both then competed in a post-general-election runoff.8

 Perelection-cycle limits would have deprived Martin of the ability to receive 

additional contributions for his primary runoff campaign, and would have deprived 

both Martin and Chambliss of the ability to receive additional contributions to help 

finance their general-election runoff campaigns.

The single election-cycle limit proposed by Holmes and Jost would have 

similarly posed increased hardships on certain candidates in the current 2015-2016 

election cycle. In Oklahoma’s Fifth Congressional District, Democrat Al

McAffrey had to win a primary runoff election to proceed to the general election. 

 7 Georgia Sec’y of State, Georgia Election Results Official Results of the 

Tuesday, July 15, 2008 General Primary Election,

http://sos.ga.gov/elections/election_results/2008_0715/swfed.htm (last updated 

Sept. 25, 2008); Georgia Sec’y of State, Georgia Election Results Official Results 

of the Tuesday, Aug. 05, 2008 Primary Election Runoff,

http://sos.ga.gov/elections/election_results/2008_0805/swall.htm (last updated 

Aug. 19, 2008).

8 Georgia Sec’y of State, Georgia Election Results Official Results of the 

Tuesday, Dec. 02, 2008 General Election Runoff,

http://sos.ga.gov/elections/election_results/2008_1202/003.htm (last updated Dec.

16, 2008).

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His general-election opponent, incumbent Steve Russell, did not.9 In Georgia’s 

Third Congressional District, Republican Drew Ferguson had to participate in a 

primary runoff contest, while his general-election opponent, Democrat Angela 

Pendley, avoided a similar fate.

10 And in Texas’s 18th Congressional District,

Democratic incumbent Shelia Jackson Lee won her primary contest comfortably

enough to avoid a primary runoff while Republican Lori Bartley did not.11 If 

candidates who had to participate in an entire additional election contest to qualify 

for the general election — like Bartley, Ferguson, and McAffrey — were unable to 

 9 Oklahoma State Election Bd., Special Legislative Races Runoff Primary 

Election — August 23, 2016,

https://www.ok.gov/elections/support/20160823_seb.html (last visited Sept. 13, 

2016); Oklahoma State Election Bd., Special Legislative Races Statewide Primary 

Election — June 28, 2016, 

https://www.ok.gov/elections/support/20160628_seb.html (last visited Sept. 13, 

2016).

10 Georgia Sec’y of State, Statewide Results General Primary and Nonpartisan 

General Election, May 24, 2016, 

http://results.enr.clarityelections.com/GA/60041/174358/en/summary.html (last 

updated Jul. 29, 2016); Georgia Sec’y of State, General Primary and Nonpartisan 

General Runoff, July 26, 2016, Georgia Secretary of State, 

http://results.enr.clarityelections.com/GA/62848/174629/en/summary.html (last 

updated Aug. 5, 2016).

11 Texas Sec’y of State, 2016 Republican Party Primary Runoff, 

http://elections.sos.state.tx.us/elchist316_state.htm (last visited Sept. 13, 2016); 

United States House of Representatives Elections in Texas, 2016, 

https://ballotpedia.org/United_States_House_of_Representatives_elections_in_Tex

as,_2016 (last visited Sept. 13, 2016).

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32

fund each election campaign separately, FECA would less effectively ensure the 

availability of sufficient resources while deterring corruption. 

4. FECA Is Structured to Adapt When Special Elections Are Called

FECA’s separate contribution limits for each election within a particular 

election cycle further account for the occurrence of special elections — including 

special primary, runoff, and general elections — which are held throughout the 

country, in accordance with state-specific procedures, in special circumstances 

such as when necessary to fill a seat prematurely vacated by an incumbent. (JA 

155 ¶ 51.) Over the course of the last six election cycles, from the 2003-04 cycle 

through the 2013-14 cycle, there have been 126 special elections, averaging more 

than 21 per election cycle. (JA 155 ¶ 52.)

Notably, Contributors themselves have donated to candidates’ special and 

runoff election campaigns. Between 2013 and 2014, for example, Contributors 

used FECA’s per-election limits to maximize their election-cycle contributions to 

South Carolina Representative Marshall Sanford. (See JA 146-47 ¶¶ 13-16; JA 74 

(Holmes Interrog. Resp. ¶ 5); JA 81 (Jost Interrog. Resp. ¶ 5).) Between March 

and November 2013, Holmes made contributions to Sanford for Congress, 

Sanford’s authorized campaign committee, totaling $7,800. (JA 146-47 ¶ 15.) The 

$7,800 total consisted of $2,600 designated for each of Sanford’s special runoff 

and special general election campaigns in 2013, and another $2,600 designated for 

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Sanford’s 2014 primary election campaign. (Id.) Jost contributed the same 

amounts to the Sanford campaign committee in connection with each of those three 

elections. (JA 146-47 ¶¶ 15-16.) More recently, on June 9, 2014, Holmes and Jost 

each contributed $2,600 to each of Chris McDaniel’s Mississippi Senate primary 

and primary runoff campaigns.

12

5. FECA Is Well Matched to Its Purpose

The examples above, as well as data reflecting similar circumstances in 

numerous other electoral contests over the past dozen years (JA 152-56 ¶¶ 35-58), 

demonstrate that FECA’s per-election limits operate in a manner that is wellmatched to the congressional purpose and generally better matched than the 

uniform election-cycle limits Contributors advocate. Per-election limits, as the 

district court found, “allow[] candidates to compete fairly in each stage of the 

political process.” JA 45 (denying motion for preliminary injunction); compare 

Davis v. FEC, 554 U.S. 724, 738 (2008) (stating that the Court has “never upheld 

the constitutionality of a law that imposes different contribution limits for 

 12 See Friends of Chris McDaniel Second Quarter Report of Receipts and 

Disbursements, Schedule A (FEC Form 3), available at, 

http://docquery.fec.gov/cgi-bin/fecimg/?14020600949 (disclosing Contributors’ 

contributions for McDaniel’s primary runoff campaign); Friends of Chris 

McDaniel First Quarter Report of Receipts and Disbursements, Schedule A (FEC 

Form 3), available at, http://docquery.fec.gov/cgi-bin/fecimg/?15020094836

(disclosing Contributors’ contributions for McDaniel’s primary campaign); see 

also JA 125-26, 129-31 (describing 2014 Mississippi Senate primary runoff).

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34

candidates who are competing against each other”). Like the determination as to 

the proper amount at which to set FECA’s individual contribution limit, see infra

pp. 38-40, the per-election structure of that limit reflects Congress’s “particular 

expertise in matters related to the costs and nature of running for office.” Randall, 

548 U.S. at 248 (Breyer, J., plurality op.) (internal quotation marks omitted).

13 As 

the district court concluded in denying Contributors’ preliminary injunction 

motion, Congress’s establishment of separate contribution limits for each election 

“allow[s] expression of First Amendment associational rights in every election in 

which a candidate runs” and reflects “a quintessential political decision made by 

politicians who understand the process far better than the courts and is deserving of 

deference.” (JA 45 (citing Buckley, 424 U.S. at 29-30).)

The Supreme Court in Buckley found that the then-$1,000 per-election 

contribution limit was “closely drawn” to the anticorruption purpose, explaining 

that “the weighty interests served by restricting the size of financial contributions 

to political candidates are sufficient to justify the limited effect upon First 

Amendment freedoms caused by the $1,000 contribution ceiling.” Id. at 23-29. 

The Supreme Court has consistently reaffirmed Buckley’s holding that FECA’s 

per-election contribution limit satisfies constitutional scrutiny. See, e.g., 

 13 The plurality opinion authored by Chief Justice Breyer is the holding of the 

Court because it rests on narrower grounds than the other opinions concurring in 

the judgment. See supra p. 19 n.5.

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McCutcheon, 134 S. Ct. at 1451 (invalidating FECA’s aggregate limits on 

contributions to candidates while emphasizing that the statute’s individual, perelection limit on candidate contributions remains “undisturbed” and that the limit is 

“the primary means of regulating campaign contributions”); Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 397-398 (2000) (upholding Missouri’s individual 

contribution limits, ranging from $250 to $1,000, and noting that “[t]here is no 

reason in logic or evidence to doubt the sufficiency of Buckley to govern this case 

in support of the Missouri statute”); cf. Citizens United, 558 U.S. 310 at 359 

(distinguishing independent expenditure restrictions from contribution limits, the 

latter of which, the Court explained, “have been an accepted means to prevent quid 

pro quo corruption”); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S.

431, 437-38, 465 (2001) (explaining the holding in Buckley that “the Act’s 

limitations on contributions to a candidate’s election campaign were generally 

constitutional” and upholding limits on party coordinated expenditures that are 

treated as contributions under FECA).

The per-election operation of the contribution limit offers no reason to 

deviate from these holdings. Indeed, rather than being preferred, the Supreme 

Court has indicated that a per-cycle limit on contributions to candidates is a 

“danger sign[]” of potential unconstitutionality as compared to limits that are set 

per election, precisely the opposite of plaintiffs’ contentions here. See Randall,

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548 U.S. at 249 (Breyer, J., plurality op.) (expressing concerns about a state 

election-cycle-based contribution limit); see also id. at 268 (Thomas, J., 

concurring) (discussing inequities created by election-cycle-based contribution 

limits and describing election-cycle structure as “constitutionally problematic”);

Lair v. Bullock, 697 F.3d 1200, 1208 (9th Cir. 2012) (citing Justice Breyer’s 

concern in Randall about “limits [that] are set per election cycle, rather than 

divided between primary and general elections” and upholding state limit partly 

because the challenged limits “apply to ‘each election in a campaign’”); cf. Davis,

554 U.S. at 738 (stating that the Court has “never upheld the constitutionality of a 

law that imposes different contribution limits for candidates who are competing 

against each other”). 

Congress permissibly established contribution limits to deter corruption and 

its choice to impose the limit per election demonstrates that FECA is closely 

drawn. The per-election basis helps to ensure that the limit does not prevent 

candidates from “‘amassing the resources necessary for effective advocacy’” in

each election in which they participate, Randall, 548 U.S. at 247 (quoting Buckley, 

424 U.S. at 21), while “allowing candidates to compete fairly in each stage of the 

political process.” (JA 45.) 

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D. FECA Contains No “Bifurcated” Election-Cycle Limit

As described above, FECA’s unambiguous statutory language, the district 

court’s undisputed factual findings, and Contributors’ own first-hand experience 

with making contributions to candidates’ special and runoff election campaigns 

collectively highlight the falsity of Contributors’ basic premise. Despite 

Contributors’ repetitious insistence to the contrary (e.g., JA 12, 14, 16, 17, 18 

(Compl. ¶¶ 18, 26, 37, 40, 41); Pls.’ Br. at 12, 13, 16, 17, 18, 20, 21, 22, 23, 24), 

FECA plainly does not establish a single, election-cycle limit that is “artificially 

bifurcated” or “divided” between primary and general elections.14 In denying 

Contributors’ motion for preliminary relief, the district court thus flatly rejected 

Contributors’ “bifurcation” argument, explaining that FECA’s “limit is not $5,200, 

as Plaintiffs would have it. The limit is $2,600 per election which might, if a runoff occurs, result in an authorized contribution of $7,800.” (JA 45 n.5.)

 14 In addition to making clear that FECA’s individual contribution limit applies 

to a variety of electoral contests besides regular primary and general elections, the 

plain language of the Act demonstrates that Congress can create an election-cycle 

(or calendar year) limit when that is what it intends. The aggregate limits that the 

Supreme Court struck down in McCutcheon were election-cycle limits. See 52 

U.S.C. § 30116(a)(3) (“During the period which begins on January 1 of an oddnumbered year and ends on December 31 of the next even-numbered year, no 

individual may make contributions aggregating . . .”); see also 52 U.S.C. 

§ 30116(a)(1)(B)-(D) (setting calendar-year limits on contributions by persons to 

national party committees, state party committees, and other political committees). 

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Contributors do not even attempt to reconcile their “bifurcation” argument

with the actual statutory language, the district court’s factual findings, or even their 

own political contributions. 

E. The Supreme Court Has Upheld the Amount of FECA’s PerElection Contribution Limit 

Contributors claim that they “do not challenge the specific dollar amount 

Congress has chosen,” and concede that “the Supreme Court has already 

addressed” that question when it upheld FECA’s per-election limit. (Pls.’ Br. at 12 

& n.8.) But regardless of how Contributors chose to label their challenge, they 

brought this case claiming a right “to give $5,200 to their party’s general-election 

nominee” exclusively for the candidate’s general-election campaign — i.e., to 

make a contribution in an amount that was double the per-election limit. (Id. at 6.) 

The district court, in denying Contributors’ preliminary injunction motion, thus 

recognized that Contributors “are indeed objecting to the specific base limit on 

how much an individual may contribute per election.” (JA 45 n.5.) This challenge

is clearly contrary to Buckley and its progeny. 

The Buckley Court held that FECA’s then-$1,000 limit was not 

unconstitutionally overbroad and rejected an argument that the limit was 

“unrealistically low because much more than that amount would still not be 

enough to enable an unscrupulous contributor to exercise improper influence over 

a candidate or officeholder, especially in campaigns for statewide or national 

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office.” 424 U.S. at 30. The Court explained that even if Congress could have 

done more “fine tuning” in setting the amount of the limit, its failure to do so did 

not render the limit unconstitutional. Id. Courts lack a “scalpel to probe, whether, 

say, a $2,000 ceiling might not serve as well as $1,000. Such distinctions in degree 

become significant only when they can be said to amount to differences in kind.” 

Id. (internal quotation marks and citation omitted). Contributors themselves 

concede that “greater judicial deference may be appropriate when reviewing the 

dollar amount of contribution limits.” (Pls.’ Br. at 12 n.8 (citing Randall, 548 U.S. 

at 248 (Breyer, J., plurality op.)).) 

The Supreme Court has repeatedly reaffirmed Buckley’s general rule that 

courts do not second-guess Congress’s decision regarding the exact dollar figure at 

which to set a contribution limit. See Randall, 548 U.S. at 248 (Breyer, J., 

plurality op.) (“In practice, the legislature is better equipped to make such 

empirical judgments, as legislators have particular expertise in matters related to 

the costs and nature of running for office. Thus ordinarily we have deferred to the 

legislature’s determination of such matters.” (internal quotation marks and citation 

omitted)); Colo. Republican Fed. Campaign Comm., 533 U.S. at 446 (“[T]he dollar 

amount of the limit need not be ‘fine tun[ed]’ . . . .” (quoting Shrink Missouri, 528 

U.S. at 387-88, alterations in original)); cf. Davis, 554 U.S. at 737 (“When 

contribution limits are challenged as too restrictive, we have extended a measure of 

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deference to the judgment of the legislative body that enacted the law.” (citing 

Randall, Shrink Missouri, and Buckley)). In the lone instance where the Supreme 

Court invalidated a base contribution limit, the Court did so largely because the 

state contribution limits in question were so low it appeared they would 

“significantly restrict the amount of funding available for challengers to run 

competitive campaigns.” See Randall, 548 U.S. at 253. Contributors have made 

no such allegation here and their desire to avoid what they call “wast[ing]” 

contributions on their preferred candidates’ primary contests (Pls.’ Br. 25) fails to

demonstrate that the amount of FECA’s per-election limits is constitutionally 

infirm.

III. CONTRIBUTORS LACK ANY AUTHORITY IN SUPPORT OF 

THEIR ASSERTED CONSTITUTIONAL RIGHT TO MAKE 

DOUBLE-THE-LIMIT GENERAL ELECTION CONTRIBUTIONS

A. Neither Congress Nor the Courts Have Recognized a First 

Amendment Right to Make a $5,200 Contribution for a Single 

Election

Contributors wrongly assert that because combined contributions up to 

$5,200 could constitutionally be donated over the course of the 2013-2014 election 

cycle, they must also have a constitutional right to contribute the combined $5,200 

amount in connection with a single election within that cycle, and that both 

Congress and the Supreme Court have recognized that such a double-the-limit 

contribution would be “non-corrupting.” (Pls.’ Br. at 1, 6, 7, 8, 9, 12, 13, 18, 19.) 

USCA Case #16-5194 Document #1636017 Filed: 09/15/2016 Page 51 of 65
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There is no factual or legal basis for those arguments. Neither Congress nor the 

Supreme Court has ever recognized an individual right to contribute $5,200 to a 

candidate for a single election. Nor has either ever suggested that such a 

contribution would not risk actual or apparent corruption. 

1. McCutcheon Does Not Support Contributors’ Imagined $5,200 

Election-Cycle Contribution Limit

The Supreme Court’s McCutcheon decision reaffirmed the constitutionality 

of FECA’s per-election contribution limit and explicitly distinguished that limit 

from the aggregate contribution limits at issue in that case. 134 S. Ct. at 1451. 

McCutcheon supports the Commission’s position, not Contributors’. Indeed, 

although the Court ultimately struck down FECA’s aggregate limits on the total 

amounts that individuals can contribute to all candidates or committees within a 

particular time period, the Court explicitly left “undisturbed” the per-election limit 

at issue here, and emphasized that FECA’s per-election “limits remain the primary 

means of regulating campaign contributions.” Id. at 1451. In light of these explicit 

statements, Contributors’ suggestion that McCutcheon undermined the heretofore 

constitutional limits recognized in Buckley and its progeny contravenes the 

principle that Courts do not strike down Congressional enactments or overrule 

precedent impliedly: “[T]h[e Supreme Court] does not normally overturn, or so 

dramatically limit, earlier authority sub silentio.” Shalala v. Ill. Council on Long 

Term Care, Inc., 529 U.S. 1, 18 (2000).

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There is simply nothing in the McCutcheon opinion that supports

Contributors’ false characterization (Pls.’ Br. 19) that “the Supreme Court has 

acknowledged[] that the relevant base limit here is $5,200.” McCutcheon

expressly recognized that FECA’s individual “base” limits apply on a percandidate, per-election basis. 134 S. Ct. at 1442 (“For the 2013-2014 election 

cycle, the base limits in the Federal Election Campaign Act . . . permit an 

individual to contribute up to $2,600 per-election to a candidate ($5,200 total for 

the primary and general elections).” (emphases added)); see id. at 1448 

(explaining that FECA’s aggregate limits prevented “an individual from fully 

contributing to the primary and general election campaigns of ten or more 

candidates” (emphasis added)). 

Having calculated that the “total” limit on contributions to a candidate’s 

primary and general election campaigns for the 2013-2014 election cycle was 

$5,200, the Court then proceeded throughout its opinion to refer collectively to 

FECA’s separate limits for primary and general election contributions as the Act’s 

“base” limit. That approach made sense in McCutcheon, which concerned the 

Act’s aggregate limits on the total amount an individual could contribute to 

candidates and political committees during a particular election cycle. 

Contributors’ assumption (Pls.’ Br. at 20) that “[i]f . . . the individual, per-election 

limits . . . were relevant to the anticorruption interest, the McCutcheon court 

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would have conducted its analysis at the per-election level” is entirely unfounded 

and disregards the distinct issue that was before the Court in that case.

As the district court explained when it denied Contributors’ motion for a 

preliminary injunction, “[t]he base limit of $5,200 imposed by Congress and 

upheld by the Court is the total allowable contribution limit for both primary and 

general elections, i.e., $2,600 each.” (JA 45.) Nothing in the McCutcheon opinion 

even hints that Congress or the Court has determined that a higher, $5,200 generalelection contribution would be “non-corrupting.” (Pls.’ Br. 19.) On the contrary, 

in making clear that McCutcheon did “not involve any challenge to the base 

limits,” the Supreme Court stated that it “ha[d] previously upheld [such limits] as 

serving the permissible objective of combating corruption.” 134 S. Ct. at 1442. 

The Court thus emphasized, in responding to criticism from the dissenting justices, 

that the individual, per-election limit remains “undisturbed” and “the primary 

means of regulating campaign contributions.” Id. at 1451. The Supreme Court’s 

actual discussion of FECA’s individual per-election limit in McCutcheon thus 

belies Contributors’ assertions (Pls.’ Br. 19) that the Supreme Court recognized a 

single base contribution limit of $5,200, or that such an imagined base limit “was 

central” to its holding.

Indeed, Contributors try to have it both ways, arguing at one point that “the 

relevant base limit is $5,200” (Pls.’ Br. 19), and at another point comparing the 

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combined per-election limits to “the unconstitutional aggregate limits at issue in 

McCutcheon” (id at 24 (emphasis added)). But the per-election limit is neither a 

$5,200 limit nor an aggregate limit. And because it is not the latter, the 

Commission is not required to make the absurd showing, suggested by 

Contributors (Pls.’ Br. 24 n.12), that the per-election limit “help[s] fight 

circumvention” of itself.

Nor can Contributors establish that the danger of quid pro quos is removed 

entirely when contributions are made at or below FECA’s limit. The limit serves

to greatly reduce that danger but does not necessarily eliminate it. And 

Contributors have not demonstrated otherwise. Indeed, commentators have 

documented apparent quid pro quos involving contributions within limits, 

particularly on issues that are of low salience to voters. See, e.g., Matthew Mosk, 

Wicker’s Earmark Elicits Criticism, Wash. Post (Jan. 16, 2008), 

http://www.washingtonpost.com/wpdyn/content/article/2008/01/15/AR2008011503355.html (describing circumstances 

in which a United States Senator “obtained a $6 million earmark for a defense 

contractor whose executives were among his top campaign contributors”); Jerold J. 

Duquette, Campaign Finance Reform in the Bay State: Is Cleanliness Really Next 

to Godliness?, in Money, Politics, and Campaign Finance Reform Law in the 

States 160 (David Schultz ed., 2002) (describing a state commission’s “particularly 

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45

disturbing” findings of a connection between lawful campaign contributions and 

the awarding of government contracts); Philip M. Stern, The Best Congress Money 

Can Buy 148-49 (1988) (describing circumstances in which a congressman who 

had initially “vigorously protested” a law that compensated billboard owners for 

signs that had been torn down pursuant to local laws later came to support the 

provision after receiving campaign contributions totaling over $12,000 from “the 

billboard industry and from individuals connected to it”). Contributors repeatedly 

quote the McCutcheon opinion’s reference to contributions below base limits “not 

creat[ing] a cognizable risk of corruption,” 134 S. Ct. at 1452, but that shorthand 

for Congress’s linedrawing only spoke of “risk” and whether the “risk” was 

“cognizable.” Though Congress sensibly drew the general line for permissible 

contributions where there was a more clearly identifiable risk, it does not follow 

that there is zero possibility of quid pro quos at lower amounts. 

2. This Court’s Certification Holding Is Not an Endorsement of 

Contributors’ Constitutional Arguments

Contributors emphasize (Pls.’ Br. at 13) that a panel of this Court, in 

reversing the district court’s decision declining to certify Contributors’ First 

Amendment question, found that the Supreme Court’s discussion of the perelection structure of FECA’s individual contribution limit in Buckley was too 

limited to preclude Contributors’ First Amendment question from being certified 

under the “low bar” recognized in Shapiro, 136 S. Ct. at 456. (JA at 188, 192-93.) 

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In that decision, the panel explained that “[e]ven if the Supreme Court had 

‘contemplated and approved’ the per-election contribution limit, as the district 

court thought, that is not the proper standard under § 30110.”) (JA at 193 

(emphasis added).) The Court’s determination that Contributors’ First Amendment 

claim is “not ‘obviously frivolous’ or ‘obviously without merit’” is a far cry from 

an indication that Contributors’ legal arguments have any merit. (Id. at 189 

(quoting Shapiro, 136 S. Ct. at 456).) Indeed, the Court explicitly declined to 

evaluate the merits the parties’ legal arguments, (id. (“We do not take sides on the 

merits of the dispute.”)), and thus did not directly consider the legitimacy of 

Contributors’ “bifurcation” argument or evaluate the merit of their unfounded 

interpretation of McCutcheon. As detailed throughout this memorandum, both 

arguments are factually inaccurate and legally baseless.

3. FEC Regulations Are Not at Issue Here and Do Not Support 

Contributors’ Claimed Right to Make $5,200 Contributions for 

a Single Election

Contributors suggest (Pls.’ Br. at 6-7) that the Court must recognize a 

constitutional right of individuals to make a $5,200 general-election contribution to 

a candidate because an FEC regulation permits a general-election candidate to 

spend unused primary contributions on his general-election campaign. This Court 

has already recognized, however, that Contributors’ Fifth Amendment arguments, 

which were premised on the exact same FEC regulation, are not properly before 

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this en banc Court in this special proceeding pursuant to 52 U.S.C. § 30110. (JA 

194-95.) As the Court of Appeals panel explained in affirming the district court’s 

refusal to certify Contributors’ Fifth Amendment question, although Holmes and 

Jost “frame their Fifth Amendment contention as a ‘challenge to the . . . timing of 

[the Act’s] contribution limits,” and their court papers “do focus on the timing of 

contributions and on candidates’ ability to transfer campaign funds,” “the Act is 

silent on both subjects.” (JA 195 (alterations by the Court).) The panel clarified 

that FECA “merely sets contribution limits and applies those limits on a perelection basis,” and accordingly concluded that Contributors’ objections based on 

the timing of contributions and candidates’ ability to transfer campaign funds are 

in fact a challenge to “the Commission’s regulations” and thus beyond the scope of 

this section 30110 action. (Id.)

Contributors did not seek further review of that determination, and it is now 

law of the case. See, e.g., Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 

1999) (explaining that under the law-of-the-case doctrine, a “‘legal decision made 

at one stage of litigation, unchallenged in a subsequent appeal when the 

opportunity to do so existed, becomes the law of the case for future stages of the 

same litigation”); Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 

F.2d 243, 250 (D.C. Cir. 1987) (same). As such, it may not be challenged before 

this Court.

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In any event, Contributors’ suggestion (Pls.’ Br. at 6-7, 20) that FEC 

regulations recognize a $5,200 individual contribution limit is plainly belied by the 

text of the regulatory provisions they cite, which implement the Act’s per-election 

limit. Commission regulations do not authorize individuals to contribute $5,200 

during the primary for the purpose of “covering general election expenses,” as 

Holmes and Jost imply (Pls.’ Br. 20). The regulation Contributors cite for this 

erroneous proposition, 11 C.F.R. § 110.1(b)(5)(ii)(B), permits authorized 

committees to accept $5,200 checks before the primary and redesignate part of that 

contribution to the general election account provided, inter alia, “[s]uch 

redesignation would not cause the contributor to exceed” any other limitation. 

In addition, agency regulations permitting a general-election candidate some 

flexibility in deciding how to spend unused primary contributions clearly are not 

evidence that Congress or the Supreme Court has determined that allowing an 

individual to contribute $5,200 to a candidate for a single election campaign poses

no risk of actual or apparent corruption.

B. This Is Not an As-Applied Challenge

Contributors seek to avoid the dispositive impact of Buckley and the 

Supreme Court’s more recent decisions reaffirming the constitutionality of FECA’s 

per-election contribution limit by labeling their challenge “as-applied.” (E.g., Pls.’ 

Br. 11, 13, 21, 22 n.11.) That characterization is, however, plainly inaccurate. In 

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Doe v. Reed, the Supreme Court explained that whether a challenge is facial or asapplied depends on the requested relief: “The label is not what matters. The 

important point is that plaintiffs’ claim and the relief that would follow . . . reach 

beyond the particular circumstances of these plaintiffs. They must therefore satisfy 

our standards for a facial challenge to the extent of that reach.” 561 U.S. 186, 194 

(2010); see also Edwards v. Dist. of Columbia, 755 F.3d 996, 1001 (D.C. Cir. 

2014) (explaining that “the breadth of the remedy” determines whether a challenge 

is facial or as applied). 

The relief Contributors seek here makes clear that this challenge is not an as 

applied one. They have requested “[a]n injunction barring enforcement of 

[FECA’s] artificial bifurcation of individual candidate contributions.” (JA 25 ¶ C.) 

Setting aside the factual inaccuracy of Contributors’ characterization, such relief 

would necessarily “reach beyond the particular circumstances” alleged here. Reed, 

561 U.S. at 194. Holmes and Jost fail to explain how a court could enjoin 

enforcement of FECA’s per-election limit as applied only to their proposed 2014 

general-election contributions, or to some unspecified future general-election 

contributions. They also fail to explain how this Court can provide the legislative 

type of remedy they claim to seek — the Court lacks the legislative authority to 

rewrite FECA’s contribution limit provision in a manner that permits the combined 

election-cycle limits Contributors seek to make.

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The Supreme Court has made clear that “a facial challenge must fail where 

the statute has a plainly legitimate sweep.” See Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 (2008) (internal quotation marks omitted). 

Buckley and subsequent Supreme Court decisions establish that FECA’s perelection limit has such a “sweep.” Contributors’ invention of a “novel” but 

factually inaccurate characterization of the same statutory provision the Supreme 

Court has already upheld is no basis for this Court to question the Supreme Court’s 

directly applicable holdings. 

In any event, even if this Court finds that Contributors’ claims are “as 

applied,” their arguments are still unavailing, for all the reasons detailed above. 

General-election contributions in amounts that are double the statutory limit, 

regardless of whether Contributors refrained from making primary contributions,

raise the same concerns as similar contributions made by any other individuals in 

any campaign, including, for example, from individuals who did make primaryelection contributions. 

IV. CONTRIBUTORS’ ALLEGED INJURIES WERE ENTIRELY SELFIMPOSED

 

Contributors’ First Amendment challenge is independently and fatally 

flawed for the additional reason that the alleged injury they claim resulted not from 

FECA’s contribution limit but, instead, from their own voluntary choices. Holmes 

and Jost protest that “[t]hey simply want[ed] to associate fully with their preferred 

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candidate[s]” (Pls.’ Br. 18), but they admit that, in fact, they voluntarily chose not 

to do so because they did not want “to see their contributions wasted” on those 

candidates’ primary election campaigns (id. at 25). As the district court explained 

when it denied Contributors’ preliminary injunction motion, Holmes and Jost 

“chose not to” support their preferred candidates to the full extent permitted by 

FECA “because of their belief that the money would be ‘wasted in an intraparty 

squabble’ as opposed to being used to fight the incumbent in the general election. 

That Plaintiffs elected not to exercise their right of free expression before the 

primary election does not render the law unconstitutional as applied.” (J.A. 44

(quoting Pls.’ Prelim. Inj. Mem. at 1).) Contrary to their assertion (Pls.’ Br. 26), 

Contributors are “free to associate with candidates at a time of their own 

choosing,” and, indeed, that is precisely what Holmes and Jost have done. 

USCA Case #16-5194 Document #1636017 Filed: 09/15/2016 Page 62 of 65
52

CONCLUSION

For the foregoing reasons, the Court should answer the certified question in 

the negative and reaffirm the constitutionality of the Act’s individual per-election 

contribution limit. 

Respectfully submitted,

Lisa J. Stevenson

Deputy General Counsel - Law

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Erin Chlopak

Acting Assistant General Counsel

echlopak@fec.gov

September 15, 2016

/s/ Steve N. Hajjar 

Steve N. Hajjar

Attorney

shajjar@fec.gov

Charles Kitcher

Attorney

ckitcher@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

USCA Case #16-5194 Document #1636017 Filed: 09/15/2016 Page 63 of 65
CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 11,422 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman.

/s/ Steve N. Hajjar 

Steve N. Hajjar

Attorney

Federal Election Commission

USCA Case #16-5194 Document #1636017 Filed: 09/15/2016 Page 64 of 65
CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of September, 2016, I electronically 

filed the Brief for Federal Election Commission with the Clerk of the United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through CM/ECF:

Allen Dickerson, Esq.

Tyler Martinez, Esq.

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, VA 22314

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk.

/s/ Steve N. Hajjar 

Steve N. Hajjar

Attorney

Federal Election Commission

USCA Case #16-5194 Document #1636017 Filed: 09/15/2016 Page 65 of 65