UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) No. 13-5094 

 Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION ) REPLY IN SUPPORT OF 

COMMISSION, ) SUMMARY AFFIRMANCE 

 ) 

 Defendant-Appellee. ) 

_________________________________ )

APPELLEE FEDERAL ELECTION COMMISSION’S REPLY IN 

SUPPORT OF ITS MOTION FOR SUMMARY AFFIRMANCE 

 

 Lisa J. Stevenson 

 Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Kevin P. Hancock 

Attorneys

 FOR THE APPELLEE 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

December 2, 2013 (202) 694-1650 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 1 of 14
1 

Appellant Libertarian National Committee, Inc. (“LNC”) fails to explain, as 

it must, why its challenge to the Federal Election Campaign Act’s (“FECA”) limit 

on bequests to national parties presents a non-frivolous question about FECA’s 

constitutionality that would merit hearing by the en banc Court of Appeals under 

2 U.S.C. § 437h. The LNC argues repeatedly that its claim is novel, but frivolous 

claims are often novel. A claim must also present a substantial, non-frivolous 

question to warrant section 437h certification and survive summary judgment. The 

LNC fails to refute the district court’s analysis of the record, which shows that 

unlimited bequests to national parties would pose a risk of corruption of federal 

officeholders. As a result, in light of Supreme Court precedents upholding limits 

on contributions to national parties where the threat of corruption or its appearance 

is presented, the LNC’s claim is frivolous. And the LNC has given no indication 

that it would be able to show otherwise through plenary briefing and argument. 

Thus, this Court should grant appellee Federal Election Commission’s (“FEC” or 

“Commission”) motion for summary affirmance. 

ARGUMENT 

A. The LNC’s Claim So Clearly Lacks Merit That Further Briefing 

and Argument Would Not Benefit the Court 

Instead of responding to the FEC’s showing that the actual summary 

affirmance standard is met here, the LNC instead attempts to distort that standard. 

As the FEC demonstrated, summary affirmance is appropriate where “[t]he merits 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 2 of 14
2 

of the parties’ positions are so clear as to warrant summary action.” Hassan v. 

FEC, No. 12-5335, 2013 WL 1164506, at *1 (D.C. Cir. Mar 11, 2003) (per 

curiam). Where a “sound basis” exists for summary disposition, parties are 

“particularly encouraged to file dispositive motions,” since the “result can be a 

major savings of time, effort, and resources for the parties, counsel, and the Court.” 

D.C. Circuit Handbook of Practice and Internal Procedures 28 (Nov. 12, 2013). 

The LNC incorrectly claims that the Commission’s burden is “compounded” 

by what the LNC describes as section 437h’s “low standard.” (Appellant LNC’s 

Reply in Opp’n to Appellee’s Mot. for Summ. Affirmance (“LNC Opp’n”) at 8-9 

(Doc. No. 1467285).) On the contrary, the LNC’s failure to meet even that 

standard shows why this case is ripe for summary disposition. Just as the district 

court was correct not to burden the en banc Court with the LNC’s frivolous claim, 

this Court does not need further briefing and argument to affirm. 

The LNC also wrongly states that the summary affirmance standard cannot 

be satisfied here because the district court found briefing and argument “helpful.” 

(LNC Opp’n at 8 n.3.) But every district court ruling that is summarily affirmed is 

likely the product of helpful briefing or argument. The question here is whether 

this Court would find helpful “further briefing and argument.” Taxpayers 

Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987). The LNC’s 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 3 of 14
3 

opposition brief shows that further briefing would not affect the Court’s decision. 

See infra Parts B-C. 

The LNC also suggests that summary affirmance would deny it appellate 

review and due process of law. (LNC Opp’n at 8.) But summary disposition is

appellate review by this Court. See, e.g., Cascade Broad. Grp. Ltd. v. FCC, 822 

F.2d 1172, 1174 (D.C. Cir. 1987) (per curiam). And summary affirmance would 

not deny the LNC due process. Cf. United States v. Pajooh, 143 F.3d 203, 204 

(5th Cir. 1998) (determining on a “case by case basis” whether to grant some 

“form of summary disposition” does not deny due process). 

B. The LNC Must Show That Its Claim Is Not Just Novel but Also 

Non-Frivolous 

The LNC’s opposition hinges mainly on a single, incorrect assertion: that 

the district court was required to certify the LNC’s claim simply because no court 

has ever previously addressed the exact question the claim presents. (LNC Opp’n 

at 2-3, 5, 9, 12-13, 15; see, e.g., id. at 15 (claiming that the district court should 

have “merely determin[ed] if the LNC’s question was a novel one”).) Under 

section 437h, however, the LNC is required to show more than just that its claim is 

novel — the merits of that claim must also be “non-frivolous” or “substantial.”1

 

 

1

 Courts have used the terms “frivolous” and “insubstantial” interchangeably 

to describe claims that should not be certified. See, e.g., Cal. Med. Ass’n v. FEC, 

453 U.S. 182, 192 n.14 (1981). The term “frivolous” in the section 437h context is 

more akin to lacking a substantial federal question and thus differs sharply from 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 4 of 14
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See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981) (directing district 

courts to certify only questions that are “neither insubstantial nor settled”).2

 

Frivolous claims are often novel. Thus, the permissive standard for which 

the LNC advocates under section 437h would functionally eliminate the Supreme 

Court’s requirement that certified questions be non-frivolous or substantial in 

addition to being unsettled. See Cal. Med. Ass’n, 453 U.S. at 192 n.14. Because 

certified questions must be both unsettled and substantial, not every as-applied 

challenge to FECA that raises a novel issue automatically qualifies for 

certification. Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (“‘[N]ot 

every sophistic twist that arguably presents a ‘new’ question should be certified.’” 

(quoting Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990))). 

 

the standard for frivolous claims under Federal Rule of Civil Procedure 11, which 

governs sanctionable filings by attorneys. See, e.g., Goland v. United States, 903 

F.2d 1247, 1257 (9th Cir. 1990) (“For obvious reasons, the court should have a 

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

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

2

 See also Wagner v. FEC, 717 F.3d 1007, 1009 (D.C. Cir. 2013) (“[T]he 

district court must determine whether the constitutional challenges are frivolous or 

involve settled legal questions.”); Mott v. FEC, 494 F. Supp. 131, 134 (D.D.C. 

1980) (finding section 437h available “only where a ‘serious’ constitutional 

question was presented” (quoting Senator James L. Buckley, the sponsor of the 

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

Valeo, 387 F. Supp. 135, 138 (D.D.C.) (holding that section 437h certification is 

appropriate where “a substantial constitutional question is raised by a complaint”), 

remanded on other grounds, 519 F.2d 817 (D.C. Cir. 1975). 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 5 of 14
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For example, in Goland, the plaintiff challenged FECA’s contribution limits 

as applied to anonymous donations to minor party candidates and argued — just as 

the LNC does here — that his claim should be certified because the Supreme Court 

had not squarely addressed that particular scenario when facially upholding the 

contribution limits in Buckley v. Valeo, 424 U.S. 1 (1976). Goland, 903 F.2d at 

1252-53. The Ninth Circuit acknowledged that the challenge “involve[d] a ‘unique 

set of facts’ and [was] ‘unlike any other considered in the reported decisions of the 

federal courts,’” but still affirmed the district court’s ruling denying certification 

because the claim was insubstantial under Buckley. Id. at 1253, 1258. 

By determining whether the LNC’s claim is frivolous, the district court did 

not “improperly rule[] on the merits” of the LNC’s claim, as the LNC contends. 

(LNC Opp’n at 8, 15.) On the contrary, “some ‘merits’ review is appropriate,” 

since a district court performing its gatekeeper role under section 437h “could not 

effectively assess the ‘frivolousness’ of the claims in [a] motion to certify without 

undertaking a thorough review of the controlling law.” Cao v. FEC, 688 F. Supp. 

2d 498, 502 (E.D. La.), aff’d and remanded sub nom. In re Cao, 619 F.3d 410 (5th 

Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1718 (2011). 

This Court’s recent ruling in Wagner v. FEC reaffirmed that a district court 

must examine even an unsettled question of FECA’s constitutionality before it can 

be certified. The Court explained that under section 437h, “the district court must 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 6 of 14
6 

determine whether the constitutional challenges are frivolous or involve settled 

legal questions,” and “immediately certify the record and all non-frivolous

constitutional questions to the en banc court of appeals.” Wagner v. FEC, 717 

F.3d 1007, 1009 (D.C. Cir. 2013) (first emphasis added).3

 

C. The LNC’s Claim Is Frivolous and the LNC Fails to Demonstrate 

Otherwise 

While the LNC admits that its repetition of the novel-claim argument 

presents a risk of “landing blows the horse can no longer feel” (LNC Opp’n at 14) 

— indeed, the LNC’s novelty argument quickly becomes less than novel — the 

LNC makes little effort to demonstrate that its claim, even if novel, presents a nonfrivolous question. Nor could it, in light of Supreme Court precedent and the 

factual record in this case. The Supreme Court has determined, twice, that 

 

3

 The LNC quotes the Wagner ruling out of context to improperly suggest that 

the district court here was not permitted to determine whether the LNC’s claim is 

frivolous. (LNC Opp’n at 8; see also id. at 2, 4, 9.) Wagner held that when certain 

plaintiffs (the FEC, national parties, and individual voters) bring constitutional 

challenges against FECA, they must use section 437h, and cannot instead elect 

ordinary district court review by invoking federal question jurisdiction under 28 

U.S.C. § 1331. 717 F.3d at 1009-12. Thus, when Wagner stated that section 437h 

was intended “to deprive district courts and panels of the circuit courts of appeals 

of jurisdiction to consider the constitutionality of the FECA,” id. at 1011-12 

(internal quotation marks omitted), the Court was stating that plaintiffs cannot 

invoke section 1331 instead of section 437h. The Court was not stating that a 

district court can no longer evaluate whether a claim properly brought under 

section 437h is frivolous, as the LNC implies. (LNC Opp’n at 2, 4, 8-9.) Indeed, 

Wagner confirmed that district courts must still decline to certify frivolous claims 

under section 437h, see 717 F.3d at 1009, as the LNC recognizes elsewhere in its 

brief (see LNC Opp’n at 4). 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 7 of 14
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unlimited contributions to national party committees can corrupt, or at the very 

least, create the appearance of corruption of federal candidates and officeholders. 

(See FEC’s Mot. for Summ. Affirmance at 8-9 (citing Buckley, 424 U.S. at 26-29, 

38; McConnell, 540 U.S. 93, 142-61 (2003)) (Doc. No. 1465546).) Candidates and 

their parties share such a close relationship that “contributions to national parties 

have much the same tendency as contributions to federal candidates to result in 

quid pro quo corruption or at least the appearance of quid pro quo corruption.” 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 159 (D.D.C.) (three-judge 

court) (citing McConnell, 540 U.S. at 154-55), aff’d, 130 S. Ct. 3544 (2010). 

The record in this case — which the LNC does not even address — 

demonstrates that an unlimited contribution to a national party committee would 

not cease being potentially corrupting just because it is bequeathed. (See Mem. 

Op. at 20, Civ. No. 11-0562 (RLW) (D.D.C. Mar. 18, 2013) (Docket No. 41) (copy 

attached as Exhibit 1 to FEC’s motion).) As the district court explained after 

reviewing the evidence, “making one’s bequest known before death could be 

treated just as a contribution is,” since “a political committee could feel pressure to 

continue to ensure that a (potential) donor is happy with the committee’s actions 

lest [the donor] revoke[s] the bequest.” (Id.) Furthermore, a bequest may “help 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 8 of 14
8 

friends or family of the deceased have access to political officeholders and 

candidates.” 4 (Id.) The LNC gives no indication that it could refute this evidence. 

 Given the evidence, the district court concluded that bequests “may very 

well raise the anti-corruption concerns that motivated the Buckley and McConnell

Courts to dismiss a facial attack on contribution limits.” (Mem. Op. at 20.) And 

on that basis, the district court correctly held that the LNC’s challenge is frivolous 

“because it raises issues that the Supreme Court has already addressed.” (Id. at 19 

(citing Republican Nat’l Comm., 698 F. Supp. 2d at 157).) 

 Instead of addressing the record and rebutting the district court’s analysis, 

the LNC makes meritless attempts to distort the FEC’s arguments. First, the LNC 

claims that the Commission’s reliance on Buckley and McConnell is “bizarre” 

because the Commission took discovery in this case. (LNC Opp’n at 15.) But the 

discovery confirmed that bequests to parties can lead to the same risks of 

corruption that caused the Supreme Court to facially uphold limits on contributions 

to parties in those cases. (Mem. Op. at 20.) At no point has the Commission 

 

4

 For example, a witness for the LNC testified that the LNC could have 

rewarded the son of a donor who left the LNC a large bequest with membership in 

a major donor group, which provides access to LNC candidates. (Mem. Op. at 20.) 

Also, the record showed, inter alia, that testators leaving bequests to parties have 

directed which candidates should benefit from their bequest, and on one occasion, 

“an estate trustee . . . contacted the Democratic National Committee about a 

$200,000 bequest to ask that it be used to defeat a particular candidate.” (Id.) 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 9 of 14
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suggested that Buckley and McConnell involved bequests, as the LNC repeatedly 

and inaccurately states. (See, e.g., LNC Opp’n at 11, 15.) 

Second, the Commission does not argue that Buckley and McConnell bar 

certification of all as-applied challenges to FECA’s contribution limits, as the LNC 

claims. (LNC Opp’n at 9, 11-12, 15.) The LNC’s particular as-applied challenge, 

however, is frivolous in light of Buckley’s and McConnell’s holdings and the 

record in this case. (See Mem. Op. at 20.) The LNC’s as-applied claim thus stands 

in stark contrast to other cases where parties have brought successful, nonfrivolous as-applied challenges to FECA’s contribution limits in different contexts 

where courts found corruption risks were not demonstrated through evidence or 

otherwise present. See, e.g., SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C. 

Cir. 2010) (en banc) (invalidating contribution limit as applied to political 

committees that make only independent expenditures); N.C. Right to Life, Inc. v. 

Leake, 525 F.3d 274, 293-95 (4th Cir. 2008) (same); see also McConnell, 540 U.S. 

at 231-32 (invalidating limit on contributions by minors).5

 

 

5

 Similarly, in FEC v. Wisconsin Right to Life, Inc. (“WRTL”), the Supreme 

Court carved out a categorical exemption to a FECA spending restriction on the 

basis of its conclusion that there was no corruption danger presented in that 

particular as-applied challenge (unlike in the LNC’s as-applied challenge here). 

551 U.S. 449, 476-82 (2007). Thus, the LNC’s comparison of this case to WRTL is 

inapt. (LNC Opp’n at 11.) WRTL is also distinguishable because it involved a 

spending limit, not a contribution limit as in this case. 551 U.S. 449, 476-82. As a 

result, the Supreme Court applied strict scrutiny, id., not the intermediate scrutiny 

that applies to contribution limits like the one at issue here. 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 10 of 14
10 

Third, the LNC erroneously claims that the Commission’s Rule 59(e) motion 

before the district court is relevant here. (LNC Opp’n at 10.) In that motion, the 

Commission challenged the district court’s decision to certify a narrowed 

constitutional question to the en banc Court (now pending as matter number 13-

5088). (See Mem. in Supp’t of FEC’s Mot. to Alter or Amend the J., Civ. No. 11-

0562 (RLW) (D.D.C. Apr. 15, 2013) (Docket No. 48).) The Commission argued 

the district court holding that the contribution limit could be invalid as applied to a 

single bequeathed contribution was inconsistent with the court’s simultaneous 

ruling that bequeathed contributions in general can cause corruption. (Id. at 1-2.) 

The Commission acknowledged in its briefing on that motion (see Reply Mem. in 

Supp’t of FEC’s Mot. to Alter or Amend the J. at 8, Civ. No. 11-0562 (RLW) 

(D.D.C. May 9, 2013) (Docket No. 54)), as it has here, supra at 9, that as-applied 

challenges to contribution limits have been successful — but only where the record 

shows that a category of contributions presents no risk of corruption (unlike this 

case, see Mem. Op. at 18-22). In any event, there is a separate en banc proceeding 

regarding that single contribution; it presents no cause for full briefing here. 

CONCLUSION 

 Because the parties’ positions are clear and further proceedings would not 

benefit the Court, the district court’s ruling should be summarily affirmed. 

Respectfully submitted, 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 11 of 14
11 

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

Deputy General Counsel – Law 

 Holly J. Baker

Kevin Deeley Attorney 

Acting Associate General Counsel 

 /s/ Kevin P. Hancock 

Harry J. Summers Kevin P. Hancock 

Assistant General Counsel Attorney

 FOR THE APPELLEE 

FEDERAL ELECTION 

 COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

December 2, 2013 (202) 694-1650 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 12 of 14
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC. ) 

 ) No. 13-5094 

 Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION ) CERTIFICATE OF SERVICE 

COMMISSION, ) 

 ) 

 Defendant-Appellee. ) 

_________________________________)

CERTIFICATE OF SERVICE

I hereby certify that on December 2, 2013, I electronically filed the 

Commission’s Reply in Support of Its Motion for Summary Affirmance with the 

Clerk of the Court of United States Court of Appeals for the District of Columbia 

Circuit by using the Court’s CM/ECF system. 

 Service was made on the following through the CM/ECF system: 

Alan Gura 

GURA & POSSESSKY, PLLC 

101 North Columbus Street 

Suite 405 

Alexandria, VA 22314 

(703) 835-9085 

alan@gurapossessky.com 

USCA Case #13-5094 Document #1468494 Filed: 12/02/2013 Page 13 of 14
2 

Allen Joseph Dickerson 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

adickerson@campaignfreedom.org 

 

/s/ Kevin P. Hancock 

 FEDERAL ELECTION COMMISSION 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 khancock@fec.gov 

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