IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL COMMITTEE, INC., ) Case No. 11-CV-562-RLW

 )

Plaintiff, )

 )

v. )

 )

FEDERAL ELECTION COMMISSION, )

 )

Defendant. )

 )

PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS

Comes now the Plaintiff, Libertarian National Committee, Inc. (“LNC”), by and through

undersigned counsel, and pursuant to 2 U.S.C. § 437h, moves this Court to adopt the proposed

findings of fact and certify the following question to the Court of Appeals for the District of

Columbia Circuit:

Does imposing annual contribution limits against testamentary bequests directed at, or

accepted or solicited by political party committees, violate First Amendment speech and

associational rights? 

This motion is based upon the attached memorandum of points and authorities in support

of the motion, attached declarations and exhibits, the Court’s file, matters of which the Court

may take judicial notice, and any argument the Court may wish to schedule. Plaintiffs reserve the

right to submit additional proposed facts as may be warranted in response to any response to this

motion, including proposed facts, by the Defendant.

Case 1:11-cv-00562-RLW Document 25 Filed 05/04/12 Page 1 of 2
Wherefore, Plaintiff respectfully requests that the motion be granted.

Dated: May 4, 2012 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)

Gura & Possessky, PLLC

101 N. Columbus Street, Suite 405

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

 By: /s/ Alan Gura 

Alan Gura

Attorney for Plaintiff

Case 1:11-cv-00562-RLW Document 25 Filed 05/04/12 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL COMMITTEE, INC., ) Case No. 11-CV-562-RLW

 )

Plaintiff, )

 )

v. )

 )

FEDERAL ELECTION COMMISSION, )

 )

Defendant. )

 )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS

Comes now the Plaintiff, Libertarian National Committee, Inc. (“LNC”), by and through

undersigned counsel, and submits its Memorandum of Points and Authorities in Support of its

Motion to Certify Facts and Questions to the Court of Appeals.

Dated: May 4, 2012 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)

Gura & Possessky, PLLC

101 N. Columbus Street, Suite 405

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

 By: /s/ Alan Gura 

Alan Gura

Attorney for Plaintiff

Case 1:11-cv-00562-RLW Document 25-1 Filed 05/04/12 Page 1 of 29
TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Proposed Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Parties to this Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Regulatory Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. The Burrington Bequest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Decedents’ Estates and Political Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. The Impact on LNC of Applying Contribution Limits 

Against Testamentary Bequests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Summary of Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. SECTION 437H CERTIFICATION STANDARDS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. THIS CASE IS NEITHER FRIVOLOUS, NOR DOES IT RAISE SETTLED QUESTIONS.. . . . . . . . 18

A. As-Applied Challenges to Federal Contribution Limits Are Available.. . . . . . . . 18

B. The Challenged Regulation Implicates Important Constitutional Concerns. . . . . 19

C. Limiting Testamentary Bequests to Political Parties Violates the

First Amendment Right of Free Speech.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. Limiting Testamentary Bequests to Political Parties Violates

First Amendment Associational Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Case 1:11-cv-00562-RLW Document 25-1 Filed 05/04/12 Page 2 of 29
TABLE OF AUTHORITIES

Cases

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,

131 S. Ct. 2806 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 23

Buckley v. Valeo, 

424 U.S. 1 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-21, 23, 24

Buckley v. Valeo, 

519 F.2d 817 (D.C. Cir. 1975) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ca. Med. Ass’n v. FEC, 

453 U.S. 182 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Citizens Against Rent Control,

454 U.S. 290 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Citizens United v. FEC, 

130 S.Ct. 876 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

City of Tacoma v. FERC, 

331 F.3d 106 (D.C. Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

FEC v. Wisc. Right to Life, Inc., 

551 U.S. 449 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Int’l Ass’n of Machinists and Aerospace Workers v. FEC, 

678 F.2d 1092 (D.C. Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McConnell v. FEC, 

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21

ii

Case 1:11-cv-00562-RLW Document 25-1 Filed 05/04/12 Page 3 of 29
NAACP v. Alabama, 

357 U.S. 449 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Preston v. Leake, 

660 F.3d 726 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Speechnow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Wolf Run Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 

659 F.3d 1197 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statutes

2 U.S.C. § 437h .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

2 U.S.C. § 441a(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

2 U.S.C. § 441a(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2 U.S.C. § 441i.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9, 18

Other Authorities

http://www.fec.gov/info/contriblimits1112.pdf (last visited May 4, 2012).. . . . . . . . . . . . . . . . . . 6

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Case 1:11-cv-00562-RLW Document 25-1 Filed 05/04/12 Page 4 of 29
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION TO CERTIFY FACTS AND QUESTIONS

PRELIMINARY STATEMENT

One day in 2007, Libertarian Party officials were surprised with the news that a

gentleman in Knox County, Tennessee, Raymond Burrington, had bequeathed the Libertarian

Party a portion of his estate. The bequest would eventually be valued at $217,734. Burrington

was unknown to party officials and employees. He had neither sought nor received any special

favors for his generosity, and the Party is legally entitled to the money regardless of whether it

would do Burrington or his heirs any favor today, which it cannot. 

The sudden infusion of Burrington’s bequest would have materially impacted the Party’s

ability to advance its ideals. Yet to this day, Plaintiff Libertarian National Committee, Inc.

(“LNC”) cannot access the bequest’s full amount, nor can it operate a fully-effective planned

giving program, as Defendant Federal Election Commission (“FEC”) subjects testamentary

bequests to federal contribution limits. The trust formed by Burrington’s estate and LNC to

parcel out the money per the government’s schedule specifically authorizes this lawsuit, which

relates to a significant Article III controversy: to what extent does the First Amendment protect

testamentary bequests?

People hold varying beliefs about death and what might follow it. Of these, arguably

among the most common is “you can’t take it with you.” People who hold fast to their

possessions throughout life freely leave instructions regarding their assets’ dispersal upon death,

and those instructions often serve expressive values. Charities, educational institutions, religious

organizations, and causes of every description benefit significantly from the generosity of those

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Case 1:11-cv-00562-RLW Document 25-1 Filed 05/04/12 Page 5 of 29
who remember them as they pass on. Gifts to individuals may also convey the decedent’s love or

appreciation. Testamentary bequests plainly constitute core First Amendment expressive activity. 

Yet when testamentary gifts take a political dimension, the federal government’s

imposition of contribution limits severely hampers the expression. The impact on speech is

significant: death is the time at which donors are least inhibited in their spending, as they have no

personal need to save and spend their money, and testamentary bequests represent the donor’s

final ability to speak. Limiting such gifts deprives political parties of substantial financial

resources, and hinder their ability to engage in political advocacy.

At the same time, the government’s interests in regulating testamentary bequests is, at

best, unclear. There is no practical way to guarantee that a promised bequest will materialize, or

materialize at any point in time, to the benefit of any particular candidate. People are frequently

disappointed upon the reading of a loved one’s will. It is also impossible for the donor to enforce

a quid-pro-quo arrangement once a gift has been made. Dead people voting may manifest

corruption, but dead people leaving behind money to support a political party does not. Neither

does it manifest corruption for a political party or its candidates to ingratiate themselves to

individuals in the hope that they might donate money, an axiom that is doubly true when the hope

is for a donation at some indeterminate time upon the prospective donor’s passing. 

And even if there were some valid concern regarding the corruption of the political

process by testamentary bequests, the government could draft laws specifically addressing such

possible corruption far short of applying strict contribution limits to all testamentary bequests,

regardless of their connection to any particular candidate. For example, the government could

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restrict the targeted solicitation of bequests from gravely-ill people, or require the passage of an

election cycle between the making of a testamentary bequest and its receipt by a political party.

In any event, this Court is not called upon to adjudicate the parties’ dispute—only to

discern that in fact, the constitutional question here is neither frivolous nor settled, and to act as

fact-finder for the D.C. Circuit. Both tasks are easy. The Supreme Court has expressly approved

of as-applied challenges to federal contribution limits, and the application of such limits to

testamentary bequests has not apparently been contemplated by either Congress or, to this point,

by the courts. Moreover, the Supreme Court’s approach to contribution limits is based largely on

factors that cannot apply to the dead—including a donor’s ability to associate with and otherwise

support the donee party. Even under the “less rigorous” heightened standard of review for

contribution limits, the peculiar application of contribution limits to testamentary bequests raises

serious questions. 

The salient facts are largely undisputed, and otherwise readily capable of resolution (even

if the parties might later disagree as to which facts are salient). Respectfully, the matter should be

certified for resolution by the Court of Appeals.

PROPOSED FACTS

Plaintiff’s proposed facts are listed on Exhibit A. They are recited here, with some

discussion. 

A. The Parties to this Litigation

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

Party of the United States. Redpath Decl., ¶ 2; Answer, ¶ 4. Defendant Federal Election

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Commission is the federal government agency charged with administrating and enforcing the

federal campaign finance laws, including the laws challenged in this action. Answer, ¶ 5.

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

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

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

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

register as Libertarians. Throughout the Nation, 154 officeholders (including holders of

non-partisan offices), are affiliated with the Libertarian Party. Redpath Decl., ¶ 2. LNC’s purpose

is to field national Presidential tickets, to support its state party affiliates in running candidates

for public office, and to conduct other political activities in furtherance of a libertarian public

policy agenda in the United States. Redpath Decl., ¶ 3. 

Founded in 1971, the party has yet to elect a federal office holder, and no current federal

office holder is affiliated with the Libertarian Party. Redpath Decl., ¶ 4. Unlike its two major

competitors, the Libertarian Party’s national committee is forced to spend the bulk of its

resources securing access to the ballot, leaving comparatively little for actual campaigning—an

expensive activity in and of itself. Redpath Decl., ¶ 5. For example, in the last presidential

election year, “ballot access” was LNC’s largest budgetary item, at $510,257, drawn against

available resources of $1,280,103. Id.; exh. B. Candidate support that year totaled a mere $500.

Id. Indeed, ballot access typically dwarfs items such as candidate support, media relations,

outreach, member communications, and voter registration—combined. Id.

The situation is self-perpetuating, as a party’s ability to solicit donations depends in part

on having adequate financial resources on hand. Donors, voters, and prospective political

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candidates who might be attracted to the party’s ideology are nonetheless dissuaded from

supporting the party by its lack of resources. Redpath Decl., ¶ 6. Approximately 265,000 voters

registered as Libertarians do not donate to the Party, and the Party reasonably believes that its

ideology is attractive to many more than those Americans who are actual members. Id. Numerous

Americans donate money to various organizations and causes which share the Party’s libertarian

ideology, but do not find it effective to donate to the Party. It is common to encounter people

who are sympathetic to the Party’s ideology but do not believe the Party has the resources to be

viable and make an impact. Redpath Decl., ¶ 7.

This Court cannot be expected to pass judgment on the potential popular appeal of any

political party, and neither can the FEC. Accordingly, the FEC concedes, as it must, that the

Libertarian Party’s past performance does not guarantee future results—and that money is tied to

the Libertarian Party’s potential for success. The Libertarian Party might achieve greater electoral

success than it has historically achieved if it were to obtain greater financial resources. Exh. C,

Response to Request for Admission No. 14. The Libertarian Party’s ability to influence elections

is in some measure related to its ability to raise and expend money. Exh. C, Response to Request

for Admission No. 15.

B. The Regulatory Framework

Determining this case would require some baseline assessment of the FEC’s relevant

regulatory behavior. Plaintiff concedes some of these may be as much statements of law as they

are statements of fact, but they do describe the circumstances of the parties’ relationship and the 

manner in which FEC conducts itself to generate the present controversy. LNC thus submits

these legal facts for certification.

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

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

Request for Admission No. 1. National committees of political parties, candidates for federal

office, and federal office holders, may grant preferential treatment and access to potential donors

in the unilateral hope that such preferential treatment and access would be remembered with a

donation. Exh. C, Response to Request for Admission No. 2. Individuals may donate money to

political parties, candidates for federal office, and federal office holders, because they appreciate

the treatment and access they are afforded by federal office holders. Exh. C, Response to Request

for Admission No. 3.

Title 2 U.S.C. § 441a(a)(1) provides, in pertinent part, that “no person shall make

contributions– (B) to the political committees established and maintained by a national political

party, which are not the authorized political committees of any candidate, in any calendar year

which, in the aggregate, exceed $ 25,000.” Pursuant to 2 U.S.C. § 441i, enacted as part of the 1

“Bipartisan Campaign Reform Act of 2002,” no political committee can “solicit, receive or direct

to another person a contribution, donation, or transfer of funds or any other thing of value, or

spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements”

of 2 U.S.C. § 441a(a)(1).

Pursuant to Section 441a(c), the contribution limits set forth in Section 441a(a)(1) are

indexed for inflation. The current annual limit on contributions to political parties is $30,800. See

http://www.fec.gov/info/contriblimits1112.pdf (last visited May 4, 2012). Although the term

“person,” as used in Section 441a(a)(1), is not specifically defined to include an individual’s

All further statutory references are to Title 2, United States Code. 1

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testamentary estate, Defendant FEC extends this definition to include testamentary estates. Exh.

C, Response to Request for Admission No. 4; Exh. D, FEC Advisory Opinion 2004-02; Exh. E,

FEC Advisory Opinion 1999-14.

Accordingly, the national committees of political parties may not receive bequests

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

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

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

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

made in any particular year. Exhs. D, E.

It would also appear that Section 441i would prohibit parties from soliciting bequests that

exceed contribution limits, even where the bequest would be paid over a period of years so as to

comply with those limits. But FEC expressly denies this interpretation of Section 441i. Answer,

¶¶ 2, 25. Apparently, under FEC’s view, the term “funds, that are not subject to the limitations,

prohibitions, and reporting requirements of this Act,” refers not to an absolute sum of

money—money that is either within or without the limits, and thus can or cannot be

solicited—but only to money received in compliance with the Act. Under the literal view of

Section 441i, no amount exceeding the limits may be solicited. Under the FEC’s apparent view,

any amount can be solicited so long as its receipt is eventually “subject to . . . this Act.” 

“In matters of statutory interpretation, the court must give effect to the unambiguously

expressed intent of Congress. To determine whether the meaning of a statutory provision is plain,

the court’s analysis begins with the most traditional tool of statutory construction, reading the

text itself.” Wolf Run Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 659 F.3d 1197,

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1200 (D.C. Cir. 2011) (citations and internal punctuation omitted). Congress used the language

“funds, that are not subject” to the Act (emphasis added), not funds that “would not be subject” 

to the Act depending on how they are dispersed. Cf. City of Tacoma v. FERC, 331 F.3d 106, 114

n.11 (D.C. Cir. 2003). 

FEC’s more elastic view of “funds” is plausible, although it must be remembered that a

testamentary estate is just another “person” under Section 441a(a)(1). Were FEC’s construction

of Section 441i correct, there would be no reason to suppose that political parties could not also

solicit unlimited donations to be irrevocably-dispersed during the donors’ lifetime, so long as the

donations would be paid over a period of years within annual contribution limits. In other words,

so long as the party can legally solicit donations that would take a particular form—irrevocable,

but dispersed within annual limits—it should not matter, and under the text of the Act, it does not

matter, that the donations are solicited from dead or living “persons.” But FEC refused to admit 2

this application of its view of Section 441i, suggesting it would apply the provision differently to

different “persons.” Exh. C, Response to Admission Request 13. FEC’s response added further

ambiguity, in that it would apply the statute differently to different types of political committees

covered by the provision. Id. And asked directly what effect Section 441i’s prohibition on

solicitation has that the section’s prohibition on receipt of over-limit funds already accomplishes,

FEC objected. Exh. C, Response to Interrogatory 3.

Congress might determine that donations by testamentary estates are different in kind 2

from donations by living individuals, but then, it is not apparent that Congress ever considered

issues relating to donations by testamentary estates, and the statutory text reflects no such

distinction.

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Alas, while FEC’s shifting, multiple-choice application of Section 441i’s solicitation ban

is troubling in other contexts, that is a matter for another day. This case is narrowed by FEC’s

concession that the ban does not extend to testamentary bequests exceeding contribution limits in

toto but collected pursuant to FECA limits. LNC thus does not require certification of the second

question raised in its complaint, whether it may solicit testamentary bequests in any amount

whose receipt is spread out over time to comply with FECA limits. However, it remains clear

that FEC enforces Section 441i to prohibit the solicitation of testamentary bequests that would be

accepted without limits completely upon the donor’s death, and this much, LNC contests as a

First Amendment violation.

C. The Burrington Bequest

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

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

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

Libertarian Party had no knowledge of this bequest prior to Mr. Burrington’s passing. Kraus

Decl., ¶ 2. Apart from the bequest, Burrington had only once donated to the Libertarian Party, in

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

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

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

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

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

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

restrictions. Kraus Decl., ¶ 5.

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

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

the Estate remains an escrowee, that the deposited funds may be invested only in the Bank’s

money market or certificate of deposit products, and that the LNC must annually withdraw the

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

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

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

challenge succeed. Exh. G.

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

has passed away, the deceased is removed from the Party’s membership rolls. Upon learning of

the bequest, LNC removed Burrington from the membership rolls on which he had appeared

owing to his 1998 $25 donation. Kraus Decl., ¶ 4; Redpath Decl., ¶ 8.

D. Decedents’ Estates and Political Parties

Notwithstanding the fact that living individuals and testamentary estates are both

considered “persons” under FECA (and notwithstanding that the FEC might at times wish to treat

these “persons” differently), very substantial differences exist between donors who donate in the

course of their life, and donors planning to disperse their assets at life’s end, with respect to their

relationship to donee political parties.

Leaving a bequest to a political party is a form of political expression. Redpath Decl., ¶ 8;

Exh. C, Response to Request for Admission No. 5. FEC concedes that “the act of a living person

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

his or her death” is expressive, but argues the mechanistic “transfer, distribution, donation, or

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contribution of funds” by the estate is not expressive. Id. This is akin to claiming that writing a

check to charity is expressive, but the act of donating to charity may not be expressive because

the bank clerk’s function in processing the check is ministerial. In any event, FEC’s argument is

foreclosed by its longstanding approach to testamentary estates: “The Commission views the

testamentary estate of a decedent as the successor legal entity to the testator and thus will apply

the Act and its limits to that entity as the alter ego of the living testator.” Exh. H, FEC Advisory

Opinion 1983-13.

Beyond conceding that remembering a political party in one’s will is expressive activity,

FEC further concedes that leaving a bequest to a political party is not necessarily a means of

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

Admission No. 6. FEC can neither admit nor deny that political parties do not generally count the

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

evidence on this point is unchallenged. Redpath Decl., ¶ 8; Kraus Decl., ¶ 4. At the very least, the

Libertarian Party does not associate with the dead and does not maintain deceased members. Id.

Nor can the FEC deny that individuals who leave testamentary bequests for political

parties often have no idea which candidates might benefit from the contribution. Exh. C,

Response to Request for Admission No. 8. This much is self-evident. People cannot always

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

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

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

Burrington could not have predicted which candidates would run for office in 2007, let alone the

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topical issues in the campaign. Sometimes, multiple contingencies must occur before a bequest 3

is received by a political party. For example, the Libertarian Party received a $19,331.40 bequest

from a donor’s trust only after the trust’s initial beneficiary passed away. Exh. I. At least one

individual who presently intends to bequeath LNC significant assets cannot predict when that gift

might come to pass, or which candidates would benefit from it. Redpath Decl., ¶ 9.

In part for the same reasons, a political party’s federal office candidates cannot reliably

count on receiving money from particular bequests in many cases. A prospective donor might

defy the odds and outlast actuarial or medical predictions—or change his or her mind. Redpath

Decl., ¶ 10. Of course, once a political party receives a testamentary bequest, neither it, nor its

candidates, risk offending the deceased donors. Exh. C, Response to Request for Admission No.

10. And the Libertarian Party, for its part, offers no benefits in exchange for being remembered in

an individual’s will. Redpath Decl., ¶ 10.

Additionally, living individuals can engage in many forms of political activity to help

their favorite party, other than donating money. But apart from leaving bequests, and perhaps

arranging for the posthumous publication or other dissemination of his or her political views,

decedents are not in a position to engage in independent political expression, to associate actively

through volunteering their services to political campaigns, or to support candidates and

committees with financial resources. Exh. C, Response to Request for Admission No. 12.

Testamentary bequests are also likely to be more generous than donations made in one’s

lifetime. Redpath Decl., ¶ 8; see also discussion of FEC records survey, infra. Again, the

Burrington could not have foreseen that his gift would be made available just ahead of an 3

election in which Barack Obama, then an Illinois legislator who had just lost his primary bid for a

House candidacy, would be elected President.

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Burrington bequest proves as much. Burrington gave the Libertarian Party only $25 throughout

his life—but $217,734 upon his death, a staggering 870,936% increase. Kraus Decl., ¶ 3; Exhs.

F, G. James Kelleher bequeathed the Libertarian Party $10,000, Exh. J, although during his life

he had given the party only $100. Kraus Decl., ¶ 6. And Joseph Reitano bequeathed the

Libertarian Party $19,331.40, Exh. I, although there is no record that he ever donated to the Party

while alive. Kraus Decl., ¶ 7.

Helpfully, the FEC subpoenaed thousands of pages of Democratic, Republican, and

Green Party records relating as much. At least at this time, it does not appear necessary to burden

the Court with excessive documentation, as the FEC’s excerpted review of these records, as well

as its internal records review, prove that other parties have also received substantial support from

their deceased donors, and have likewise been hampered by the contribution limits at issue here.

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

Decl., ¶ 2. Attempts to search FEC’s database for such records produce underinclusive results.

Clark Decl., ¶¶ 3, 4. For example, the FEC’s largest bequeathed political party donation, Martha

Huges’ $250,000 gift to the Democratic Party, Clark Decl., Table 2, is eclipsed by Eleanor

Schwartz’s $574,332.33 bequest to the Republican Party, discovered in this case. Clark Decl., ¶

3. The Burrington bequest, which would be second on the FEC’s table of all-time highest

bequests to political parties, does not appear in FEC’s search-generated top five list. 

The imposition of contribution limits to political parties—BCRA’s prohibition of socalled soft-money—makes it difficult for FEC to identify oversized bequests since 2002. Clark

Decl., ¶ 9. Nonetheless, FEC identified $2,260,799.70 in funds bequeathed to national political

party committees since the inception of its database in 1978. Clark Decl., Table 3. FEC submits 

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the average hard-money contribution made by estates to national political party

committees from bequeathed funds was approximately $9,041.09. In contrast, the average 

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

bequeathed funds was $62,117.23.

Clark Decl., ¶ 11. But surely the disparity is even greater than that, since some of the donations

classified as “hard money” are maximum annual withdrawals against what would otherwise be

“soft money” donations. For example, averaged in to the $9,041.09 “hard money” figure are

annual withdrawals from the Burrington trust in amounts of $28,500 and $30,800 dollars, while

the “soft money” average should include, but does not, the total of Burrington’s $217,734 gift.

FEC does not reveal which portion of pre-BCRA “soft money” contributions exceeding

FECA’s limits came from living as opposed to dead people. Nor does FEC reveal the average

size of bequests to political parties, relative to the average size of donations from living people.

A rough approximation of average size of bequests to political parties, however, can be

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

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

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

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

But LNC’s average contribution is only $45.98, Kraus Decl., ¶ 9, and there is no reason to

suppose that LNC’s donors are poorer or less generous with their party than are supporters of

other political parties. Dividing amounts contributed or donated, by the number of bequeathed

contributions and donations by party as supplied by FEC’s survey, Clark Decl., Table 4, yields

the following average bequest per party:

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Libertarian: $16,255.39

Republican: $10, 531.93

Democratic: $18,824.06

Green: $20,303.84

At least in terms of average bequest size, per the FEC’s survey, Libertarian donors lie

comfortably in the middle between Republicans and Greens.

E. The Impact on LNC of Applying Contribution Limits 

Against Testamentary Bequests.

As noted supra, application of the contribution limits to the Burrington bequest prevented

LNC from having the entire amount of the bequest available for use during the 2008 election

cycle. An additional $160,734.00 would have had a material impact on LNC’s ability to advocate

for and elect its candidates, covering nearly the entirety of LNC’s operating deficit that year. Exh.

B; Redpath Decl., ¶ 11. That same amount of money in 2010 would have more than sufficed to

cover the Party’s ballot access costs. Id.

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

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

Redpath Decl., ¶ 12. LNC’s inability to raise large sums from bequests has contributed to the

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

impacted by the application of contribution limits to bequests to political parties. Id. ¶ 13. LNC’s

ability to raise and accept at once and without limitations, bequests the size of that left by

Burrington to the Libertarian Party, would have a profoundly positive impact on the Libertarian

Party’s ability to compete. Id. ¶ 14. 

The LNC refrains from taking immediate possession of the entirety of the Burrington

bequest, and refrains from actively soliciting and accepting testamentary bequests without

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limitation, owing to the FEC’s application of federal contribution limits against testamentary

bequests. Id., ¶ 15. The LNC has placed advertisements in its newsletter, LP News, seeking

testamentary bequests. Representative copies are attached as Exhibit K. The option of

remembering the LNC in one’s will has also been conveyed to delegates at the Party’s

conventions, and indeed, the LNC intends on soliciting bequests from time to time. Redpath

Decl., ¶ 16.

Were the Court to enjoin enforcement of federal contribution limits against testamentary

bequests to LNC, LNC would immediately launch a comprehensive planned giving program.

LNC would establish a planned giving page for its website, address planned giving through direct

mail solicitations, emails, personal solicitations, stories in the LNC’s newspaper for members, LP

News, and through announcements at its National Conventions by the National Chair. The LNC

would also solicit bequests at its presidential nominating convention banquets. Id. ¶ 17.

SUMMARY OF ARGUMENT

LNC’s complaint plainly passes the low threshold for certification under Section 437h.

The claim is neither frivolous, nor has it been previously adjudicated.

Although the Supreme Court has previously upheld contribution limits to political parties

against a facial challenge, the Court has expressly authorized the pursuit of as-applied challenges.

For constitutional purposes, the difference between donations made by living donors, and

donations made by estates on behalf of the deceased, are quite stark. None of the arguments 

advanced to sustain contribution limits to political parties are applicable to the situation

presented by testamentary bequests.

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The imposition on speech here is severe, as the deceased have few options to speak other

than through testamentary bequests. Because such bequests are likely to be unusually generous

relative to normal contributions, and owing to their size in proportion to the budget of nascent

and struggling political parties, the limitation’s impact on recipient parties is also relatively high. 

On the other side of the equation, the regulatory rationales for such limitations on speech

are non-existent. The anti-corruption rationale for limiting contributions is, at best, theoretical,

where a decedent would rarely suspect the identity of candidates he or she might be supporting.

Many years often pass between the time that a bequest is recorded in an estate document, and the

time that the party would actually receive the money. For that and other obvious reasons, the

deceased are also unable to engage in a quid pro quo transaction with a party or its candidates

and elected officials.

If the regulation is still to be viewed as an associational restriction, it still fails

constitutional scrutiny for much the same reasons that it fails scrutiny as a regulation of speech.

ARGUMENT

I. SECTION 437H CERTIFICATION STANDARDS.

Title 2 United States Code § 437h provides:

[T]he national committee of any political party . . . may institute such actions in the

appropriate district court of the United States, including actions for declaratory judgment,

as may be appropriate to construe the constitutionality of any provision of this Act. The

district court immediately shall certify all questions of constitutionality of this Act to the

United States court of appeals for the circuit involved, which shall hear the matter sitting

enbanc.

Pursuant to Section 437h, the District Court should (1) identify the constitutional issues

raised by the complaint; (2) take evidence; (3) make factual findings; and (4) certify

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constitutional questions to the D.C. Circuit. Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir.

1975) (en banc). As Section 437h does not require certification of questions that are frivolous or

purely hypothetical, Ca. Med. Ass’n v. FEC, 453 U.S. 182, 192 n. 14 (1981), this Court need

only make a threshold determination that Plaintiff’s question for certification is neither frivolous

nor already settled by precedent. See, e.g., Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir.

1992) (en banc); Goland v. United States, 903 F.2d 1247, 1257-58 (9th Cir. 1990); see also Int’l

Ass’n of Machinists and Aerospace Workers v. FEC, 678 F.2d 1092, 1096 (D.C. Cir. 1982)

(district court certified questions under Section 437h after finding the claims “neither frivolous

nor so insubstantial as to warrant dismissal for failure to state a claim.”).

II. THIS CASE IS NEITHER FRIVOLOUS, NOR DOES IT RAISE SETTLED QUESTIONS.

LNC’s case plainly bears further briefing and consideration by the Court of Appeals.

A. As-Applied Challenges to Federal Contribution Limits Are Available.

Although limits on contributions to political parties have been upheld against facial

challenge, Buckley v. Valeo, 424 U.S. 1 (1976), that does not mean such laws are immune from

as-applied challenges. Indeed, the Supreme Court specifically offered that “a nascent or

struggling minor party can bring an as-applied challenge if [Section 441i(a)] prevents it from

‘amassing the resources necessary for effective advocacy.’” McConnell v. FEC, 540 U.S. 93, 159

(2003) (citing Buckley, 424 U.S. at 21).

That is precisely the sort of case at issue before the Court. And even if the Libertarian

Party were not “struggling” owing, in part, to federal contribution limits, the various

considerations offered by the Supreme Court to generally uphold contribution limits are

inapplicable on the peculiar facts of this case. Right or wrong, the Supreme Court’s analysis in

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Buckley and its progeny was based entirely upon the assumption that the donors whose

contributions were being limited are alive. Like FECA’s text itself, Buckley’s words do not

manifest any consideration for the very different circumstances presented by donations by

testamentary bequest.

B. The Challenged Regulation Implicates Important Constitutional Concerns.

“[T]he First Amendment has its fullest and most urgent application to speech uttered

during a campaign for political office.” Arizona Free Enterprise Club’s Freedom Club PAC v.

Bennett, 131 S. Ct. 2806, 2827 (2011) (quotation and internal punctuation omitted). The First

Amendment guarantees freedom of political speech to “ensure the unfettered interchange of ideas

for the bringing about of political and social change desired by the people.” Buckley, 424 U.S. at

14. Moreover, the First Amendment guarantees the right of association, as “effective advocacy of

both public and private points of view, particularly controversial ones, is undeniably enhanced by

group association.” NAACP v. Alabama, 357 U.S. 449, 460 (1958). Associating with others

“enables individuals [to] make their views known, when, individually, their voices would be faint

or lost.” Citizens Against Rent Control, 454 U.S. 290, 294 (1981); Buckley, 424 U.S. at 22.

Contributions to political parties ordinarily implicate both speech and associational rights.

Buckley, 424 U.S. at 14-15.

C. Limiting Testamentary Bequests to Political Parties Violates the

First Amendment Right of Free Speech.

FEC concedes that the conduct at issue here is expressive. Because limiting testamentary

bequests to political parties “burdens political speech, it is subject to strict scrutiny.” FEC v.

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Wisc. Right to Life, Inc., 551 U.S. 449, 464 (2007); Arizona, 131 S.Ct. at 2817; Citizens United

v. FEC, 130 S.Ct. 876, 882 (2010). 

Contribution limitations have been upheld under a “‘lesser demand’ of being ‘closely

drawn’ to match a ‘sufficiently important interest,’” McConnell, 540 U.S. at 136 (citations

omitted), but this standard of review is based on findings that contribution limits only have a

minimal burden upon expressive conduct, and are primarily viewed as restrictions on

“associational rights.” Id. “[W]e have subjected strictures on campaign-related speech that we

have found less onerous to a lower level of scrutiny.” Arizona, 131 S.Ct. at 2817. Contribution

limits to political parties were previously upheld, facially, on the theory that such limits “entai[l]

only a marginal restriction upon the contributor’s ability to engage in free communication.”

Buckley, 424 U.S. at 20; McConnell, 540 U.S. at 134-35. 

To determine the standard of review, if not the case, it is necessary to examine some of

the Supreme Court’s observations about political speech, and consider whether these

observations hold equally true of political speech by testamentary bequest as by living, breathing

individuals. They do not. 

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, for it

permits the symbolic expression of support evidenced by a contribution but does not in

any way infringe the contributor’s freedom to discuss candidates and issues.

Buckley, 424 U.S. at 21 (emphasis added); McConnell, 540 U.S. at 135. 

The overall effect of the Act’s contribution ceilings is merely . . . to compel people who

would otherwise contribute amounts greater than the statutory limits to expend such funds

on direct political expression, rather than to reduce the total amount of money potentially

available to promote political expression.

Buckley, 424 U.S. at 21-22 (emphasis added); see also Preston v. Leake, 660 F.3d 726, 734 (4th

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Cir. 2011) (upholding a ban on campaign contributions by lobbyists as “less onerous because of

the numerous other ways in which would-be contributors can associate with particular candidates

and express their political viewpoints.”).

Even so, contribution limits impose serious burdens on free speech only if they are so low

as to “preven[t] candidates and political committees from amassing the resources necessary for

effective advocacy.” Buckley, 424 U.S. at 21; McConnell, 540 U.S. at 135.

But once people pass away, they have no ability to engage in any alternative forms of

“direct political expression.” The limitation on an estate’s contribution absolutely “reduce[s] the

total amount of money potentially available to promote political expression” in a given period of

time. The deceased cannot give to other organizations, select individual candidates to support,

volunteer on campaigns, or write letters to the editor. And the impact extends beyond depriving a

party of support for a particular year in which the limitation is in effect. The difference between

collecting $30,800, and collecting $217,734 or $574,332.33 in a given year, plainly constricts a

party’s options for strategic spending. Moreover, the ineffectiveness of bequeathing money to

political parties, owing to annual contribution limits, may reduce the overall money donated to

parties. An individual wishing to have a million dollars’ worth of ideological, expressive impact 

may seek alternative recipients for that money if the putative party donee could only accept that

sum over the course of 33 years.

Even were strict scrutiny inapplicable, limiting testamentary bequests to political parties 

fails the “less rigorous” yet still heightened review applicable to some restrictions on campaign

contributions. “The Supreme Court has recognized only one interest sufficiently important to

outweigh the First Amendment interests implicated by contributions for political speech:

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preventing corruption or the appearance of corruption.” Speechnow.org v. FEC, 599 F.3d 686,

692 (D.C. Cir. 2010) (en banc).

Corruption is a subversion of the political process. Elected officials are influenced to act

contrary to their obligations of office by the prospect of financial gain to themselves or

infusions of money into their campaigns. The hallmark of corruption is the financial quid

pro quo: dollars for political favors.

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985) (“NCPAC”). In

Citizens United, the Supreme Court confirmed that “[t]he fact that speakers may have influence

over or access to elected officials does not mean that these officials are corrupt.” 130 S.Ct. at

910. “The Court returned to its older definition of corruption that focused on quid pro quo,

saying that ‘[i]ngratiation and access . . . are not corruption.’” Speechnow, 599 F.3d at 694

(quoting Citizens United, 130 S.Ct. at 910).

Thus, it does not matter that political parties and their candidates might “be nice to old

people” in the hopes of someday being remembered with a bequest. Probate courts routinely

disappoint putative heirs. There is simply no way for political parties to ensure that a promised or

hoped-for bequest comes through, nor is there any lawful way for political candidates to ensure

that memorialized gifts to their parties are reaped in time for election day. Indeed, on the

evidence before the Court, there is even less than “‘scant evidence’ that [testamentary bequests]

even ingratiate,” id., as LNC had no knowledge of Burrington, Kelleher, or Reitano, nor does

LNC offer anything of value to individuals in exchange for mere promises to someday leave

behind money for the party upon their death. And once a donee has passed away, nothing but a

party’s conscience obligates it to honor any promise to the deceased, whose money the party

already has, and who can neither donate more nor retaliate.

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Indeed, a testator to a political party has no way of knowing which candidate might

benefit from the bequest. “The candidate-funding circuit is broken.” Arizona ,131 S.Ct. at 2826.

And speech unconnected to candidates cannot raise corruption concerns. NCPAC, 470 U.S. at

496-97; Buckley, 424 U.S. at 47. The regulatory rationale for upholding FECA’s restrictions on

contributions to political parties, presumptively by living individuals, thus fails.

[T]his quite modest restraint upon protected political activity serves to prevent evasion of

[the campaign contribution] limitation by a person who might otherwise contribute

massive amounts of money to a particular candidate through the use of unearmarked

contributions to political committees likely to contribute to that candidate, or huge

contributions to the candidate’s political party.

Buckley, 424 U.S. at 38. But if the testator can assume nothing about the identity of candidates

upon the bequest’s dispersal, there is obviously no limit to circumvent.

Perhaps, under some circumstances, a party could heighten the odds of effectuating a

testamentary quid pro quo by soliciting a bequest from a terminally-ill individual. But there is no

evidence that this has ever occurred, nor is it necessary to effectuate sweeping limitations on all

testamentary bequests to deal with this far-fetched hypothetical. The government could easily

remedy this circumvention scenario by applying contribution limits to testamentary bequests

received within a short time of being made, perhaps within one election cycle (to eliminate the

prospect that the donee knows the identity of the candidates who might benefit from the bequest).

Or the government could restrict the ability to solicit donations from gravely-ill people, perhaps

imposing contribution limits where the party reasonably should have known that the donor’s

bequest would be effectuated in the immediate future. Such rules would clearly alleviate much of

the burden currently imposed by blanket application of contribution limits to testamentary

bequests, while targeting the hypothetical evil of a quid pro bequest. The government may have

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other narrow tailoring options. As currently applied against all testamentary bequests, however,

the restrictions reach too much conduct that cannot raise legitimate regulatory anti-corruption

interests.

D. Limiting Testamentary Bequests to Political Parties Violates

First Amendment Associational Rights.

The parties apparently agree that associational rights are not implicated when individuals

remember political parties in their wills. The act of leaving a testamentary bequest to a political

party is purely expressive, not associational.

However, should the Court discern some associational relationship in the transaction,

application of contribution limits to such “associational” activity would be unconstitutional for

many of the same reasons noted with respect to the application of contribution limits upon the

expressive aspects of testamentary bequests. “[T]he primary First Amendment problem raised by

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

political association.” Buckley, 424 U.S. at 24 (emphasis added). But donors remain “free to

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

services, and to assist to a limited but nonetheless substantial extent in supporting candidates and

committees with financial resources.” Id. at 28 (footnote omitted).

If a testamentary bequest to a political party is a manifestation of associational freedom, it

is not merely “one aspect” of that freedom—it is likely the only possible manifestation. The other

options for political association are, obviously at best, quite limited. Moreover, the lack of an

anti-corruption rationale, and the availability of less restrictive regulatory measures, is no

different than as considered in the speech context.

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CONCLUSION

LNC’s claim raises non-frivolous issues of first impression. It warrants certification to the

Court of Appeals.

Dated: May 4, 2012 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)

Gura & Possessky, PLLC

101 N. Columbus Street, Suite 405

Alexandria, VA 22314

703.835.9085/Fax 703.997.7665

 By: /s/ Alan Gura 

Alan Gura

Attorney for Plaintiff

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