No. ______ 

In The 

Supreme Court of the United States ____________________________ 

LAURA HOLMES AND PAUL JOST, 

 

 Petitioners,

v. 

FEDERAL ELECTION COMMISSION, 

 

 Respondent.

On Petition for Writ of Certiorari to the 

United States Court of Appeals for the D.C. Circuit

PETITION FOR WRIT OF CERTIORARI

ALLEN DICKERSON

Counsel of Record

OWEN YEATES

TYLER MARTINEZ

ZAC MORGAN

INSTITUTE FOR FREE SPEECH

124 S. West St., Ste. 201

Alexandria, VA 22314

adickerson@ifs.org

(703) 894-6800

February 26, 2018 Counsel for Petitioner

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
i

QUESTIONS PRESENTED

This Court has held that political contribution 

limits “operate in an area of the most fundamental 

First Amendment activities” and are “subject to the 

closest scrutiny.” Buckley v. Valeo, 424 U.S. 1, 14, 25 

(1976) (per curiam). But it has also required deference 

to Congress’s judgment in setting those limits, 

holding that courts have “no scalpel to probe” the 

specific caps selected. Id. at 30.

Congress, for its part, has determined that “it is 

perfectly fine”—that is, non-corrupting—“to

contribute $5,200 to” a candidate for federal office. 

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 

1451-52 (2014) (Roberts, C.J., controlling opinion). 

But the Federal Election Campaign Act (“FECA”) 

requires that non-corrupting amount to be 

contributed in two installments: $2,600 for the 

primary and $2,600 for the general election. 

In practice, this means that a candidate without a 

serious primary opponent can effectively receive, and 

the donor give, $5,200 for the general election. But 

where a donor, like Petitioners, wishes to forego a 

contested primary, and instead give solely to her 

party’s eventual general election candidate, she may 

contribute just $2,600. The questions presented are:

(1) Whether FECA’s per-election structure is 

subject to closely drawn scrutiny?

2) If so, does the First Amendment permit a rule 

requiring that Petitioners’ anticipated, noncorrupting contributions be divided on a per-election 

basis?
ii

PARTIES AND RULE 29.6 STATEMENT

Petitioners Laura Holmes and Paul Jost were the 

Plaintiffs-Appellants below. Because neither 

Petitioner is a corporation, a corporate disclosure 

statement is not required under Supreme Court Rule 

29.6.

Respondent Federal Election Commission was 

Defendant-Appellee below. 
iii

TABLE OF CONTENTS

Questions Presented ................................................... i

Parties and Rule 29.6 Statement .............................. ii

Table of Contents ......................................................iii

Table of Authorities .................................................. vi

Opinions and Orders Below....................................... 1

Jurisdiction................................................................. 1

Constitutional Provisions, Statutes, and Regulations 

Involved ........................................................... 2

Introduction................................................................ 2

Statement of the Case................................................ 8

Reasons for Granting the Writ................................ 12

I. This Case Implicates Fundamental First 

Amendment Liberties Meriting This Court’s 

Review. ....................................................... 12

II. Only This Court Can Clarify The 

Applicability Of The Closely Drawn 

Standard..................................................... 14

III. Had The Court Of Appeals Applied Closely 

Drawn Scrutiny To The Record Before It, 

Petitioners Would Have Prevailed............ 18

IV. This Case Presents An Excellent Vehicle For 

The Questions Presented........................... 25

Conclusion ................................................................ 27

Appendix.............................................................App. 1

A. Opinions, Orders, Findings of Fact, and 

Conclusions of Law..................................App. 1
iv

D.C. Circuit, en banc, Judgment, November 28, 

2017 ....................................................App. 1

D.C. Circuit, en banc, Opinion, November 28, 

2017 ....................................................App. 3

District Court Amended Order Certifying First 

Amendment Question, June 29, 

2016 ..................................................App. 33

D.C. Circuit Judgment Regarding 

Certification, April 26, 2016 ............App. 35

D.C. Circuit Opinion Regarding Certification, 

April 26, 2016...................................App. 37

District Court Order Denying Certification, 

April 20, 2015...................................App. 53

District Court Opinion with Findings of Fact 

and Denial of Certification, April 20, 

2015 ..................................................App. 55

D.C. Circuit, en banc, Order for Remand, Jan. 

30, 2015 ..........................................App. 113

District Court Certification of Questions of 

Constitutionality, Nov. 17, 2014 ...App. 115

District Court Opinion Denying Preliminary 

Injunction, Oct. 20, 2014................App. 124

B. Statutes and Regulations....................App. 143

52 U.S.C. § 30101(1)(A).......................App. 143

52 U.S.C. § 30110 ................................App. 143

52 U.S.C. § 30116(a)............................App. 143
v

11 C.F.R. § 110.1(b).............................App. 144

11 C.F.R. § 110.3(c)(3) .........................App. 146

C. Other Materials ........................................App. 146

78 Fed. Reg. 8530 ................................App. 146
vi

TABLE OF AUTHORITIES

CASES

Bread PAC v. Fed. Election Comm’n, 455 U.S. 577 

(1982)................................................................... 25

Buckley v. Valeo, 424 U.S. 1 (1976) 

(per curiam)..................................................passim

Citizens United v. Fed. Election Comm’n, 558 U.S. 310 

(2010)............................................................... 4, 19

Cohen v. Cal., 403 U.S. 15 (1971)............................ 12

Davis v. Fed. Election Comm’n, 554 U.S. 742 

(2008)................................................................... 23

Del. Strong Families v. Denn, 136 S. Ct. 2376 

(2016)............................................................... 5, 17

Elrod v. Burns, 427 U.S. 347 (1976)............ 17, 19, 25

Fed. Election Comm’n v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982)............................................. 19

Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 

U.S. 449 (2007).................................................... 22

Gregg v. Georgia, 428 U.S. 153 (1976)....................... 4

Holmes v. Fed. Election Comm’n, 875 F.3d 1153 (D.C. 

Cir. 2017)............................................................... 1

Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014), 

cert. denied, 136 S. Ct. 1514 (2016)................ 6, 17

Khachaturian v. Fed. Election Comm’n, 980 F.2d 330 

(5th Cir. 1992)..................................................... 26

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 

(2014)............................................................passim
vii

NAACP v. Ala., 357 U.S. 449 (1958)........................ 13

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000)....................................................3, 20, 23, 24

Roth v. United States, 354 U.S. 476 (1957)............. 12

United States v. Nat’l Treasury Emps. Union, 513 

U.S. 454 (1995)...................................................... 6

Van Orden v. Perry, 545 U.S. 677 (2005) .................. 7

Wagner v. Fed. Election Comm’n, 717 F.3d 1007 (D.C. 

Cir. 2013)................................................... 1, 11, 25

Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 

2015), cert. denied, 136 S. Ct. 895 (2016)........... 20

Worley v. Cruz-Bustillo, 717 F.3d 1238 (11th Cir. 

2013), cert. denied, 134 S. Ct. 529 (2013)... 4, 7, 17

Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015), cert. 

denied, 136 S. Ct. 569 (2015).............................. 19

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 

2014)...................................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .................................................. 2

STATUTES

28 U.S.C. § 1254......................................................... 2

28 U.S.C. § 1331......................................................... 1

28 U.S.C. § 1343......................................................... 1

52 U.S.C. § 30101(1)(A).......................................... 2, 9

52 U.S.C. § 30101(2)(A)............................................ 18

52 U.S.C. § 30110................................1, 10, 11, 25, 26
viii

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

52 U.S.C. § 30116(a)(1)(A) ......................................... 9

52 U.S.C. § 30116(a)(6) .............................................. 9

52 U.S.C. § 30116(c)................................................... 9

RULES

78 Fed. Reg. 8530....................................................... 2

Sup. Ct. R. 13(1)......................................................... 2

Sup. Ct. R. 29.6 .......................................................... ii

REGULATIONS

11 C.F.R. § 110.1(b)(3)(i)............................................ 9

11 C.F.R. § 110.1(b)(5)(ii)(B)................................ 9, 18

11 C.F.R. § 110.3(c)(3)................................................ 9

OTHER AUTHORITIES

FEC Motion for Remand, Holmes v. FEC, No. 14-5281 

(D.C. Cir. Jan. 2, 2015), ECF No. 1529989........ 10

Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 

UCLA L. Rev. 1267 (2007).................................... 3
1

OPINIONS AND ORDERS BELOW

The D.C. Circuit’s judgment and opinion1 are 

reproduced in the appendix (“App.”) at 1-32. The 

district court’s amended order certifying Petitioners’ 

constitutional question to the D.C. Circuit is 

reproduced in the appendix at App. 33-34. 

JURISDICTION

The United States District Court for the District of 

Columbia had jurisdiction to certify Petitioners’ 

constitutional question under 28 U.S.C. §§ 1331 and 

1343 and 52 U.S.C. § 30110. Petitioners properly 

invoked 52 U.S.C. § 30110 because they are eligible to 

vote in an election for the office of President of the 

United States. The district court entered an amended 

order certifying the constitutional question to the 

D.C. Circuit on June 29, 2016. See App. 33-34.

The D.C. Circuit had exclusive jurisdiction to hear 

the merits of Petitioners’ constitutional question—in 

the first instance—under 52 U.S.C. § 30110. See 

Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 1011 

(D.C. Cir. 2013) (“Wagner I”). The D.C. Circuit 

entered its judgment and opinion in favor of the 

Federal Election Commission on November 28, 2017. 

App. 2; id. at 32.

Petitioners filed the petition for writ of certiorari

within 90 days of the D.C. Circuit’s judgment. See 

 

1 Holmes v. Fed. Election Comm’n, 875 F.3d 1153 (D.C. Cir. 

2017) (en banc).
2

Sup. Ct. R. 13(1). This Court has jurisdiction under 28 

U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS, STATUTES, 

AND REGULATIONS INVOLVED

The First Amendment to the United States 

Constitution states,

Congress shall make no law . . . abridging the 

freedom of speech . . . or the right of the people 

peaceably to assemble.

U.S. Const. amend. I. 

Section 30116(a), Title 52 of the United States 

Code, states that “no person shall make 

contributions . . . with respect to any election [that], 

in the aggregate, exceed $2,000,” adjusted for 

inflation. See 78 Fed. Reg. 8530, 8533; App. 143-44; 

id. at 146. 

Under 52 U.S.C. § 30101(1)(A), the term “election” 

refers to “a general, special, primary, or runoff 

election.” See App. 143.

Other relevant statutes and regulations are 

reproduced at App. 143-47.

INTRODUCTION

This petition asks the Court to provide a definitive 

ruling on the standard to be used in evaluating claims 

of unconstitutionality where political campaign 

contributions are concerned. As things stand now, it 

is unclear whether courts should closely scrutinize 
3

the government’s choice to impose a particular 

restriction, or instead broadly defer to legislative 

judgment. That confusion led the D.C. Circuit below 

to issue an opinion expanding judicial deference and 

approving a patently unreasonable result. 

When this Court decided the seminal campaign 

finance and political association case, Buckley v. 

Valeo, 424 U.S. 1 (1976) (per curiam), the standards 

for scrutinizing laws infringing on fundamental 

rights were still in flux. See Richard H. Fallon, Jr.,

Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1279-

81, 1284-85, 1297-98 (2007). So, while scrutinizing a 

law that burdened First Amendment rights, the 

Buckley Court imposed what it called “exacting 

scrutiny” rather than referring to strict scrutiny or its 

modern analogues.2 Buckley, 424 U.S. at 16. 

In fact, the Buckley Court called for the “exacting 

scrutiny” of laws governing the full range of campaign 

finance regulation: expenditure limits, contribution 

limits, and disclosure requirements. Id. (contribution 

and independent expenditure limits), id. at 45

(independent expenditure limits), id. at 64 (disclosure 

requirements).

Applying this scrutiny, the Court struck down 

expenditure limits, id. at 21-23, upheld financial 

disclosure requirements triggered by a narrow class 

 

2 The Buckley Court “explicitly rejected” use of the 

intermediate scrutiny standard for contribution limits. Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 386 (2000) (citing Buckley, 

424 U.S. at 16).
4

of political advocacy, and generally upheld the 

contribution limits as “closely drawn to avoid 

abridgment of associational freedoms.” Id. at 25.

In more recent cases, however, Buckley’s 

application of exacting scrutiny against these three 

“buckets” of campaign finance regulation has 

transformed into three separate tests. Limits on 

independent expenditures are subject to what is now 

recognizable as strict scrutiny, requiring that a 

“regulation promote[] a compelling interest and [that 

it be] the least restrictive means to further the 

articulated interest.” McCutcheon v. Fed. Election 

Comm’n, 134 S. Ct. 1434, 1444 (2014).3 But the 

exacting scrutiny for contribution limits has been 

described as “a lesser” standard of review: “the ‘closely 

drawn’ test.” Id. at 1444, 1445.4

 

3 The Chief Justice authored an opinion for himself and three 

other justices; Justice Thomas concurred in the judgment, but 

wrote separately to argue that Buckley v. Valeo ought to be 

overruled and contribution limits declared unconstitutional. 

McCutcheon, 134 S. Ct. at 1462-63 (Thomas, J., concurring). The 

Chief Justice’s opinion is controlling because it provides the 

“narrowest grounds” for the judgment. Gregg v. Georgia, 428 

U.S. 153, 169 n. 15 (1976). All future citations to McCutcheon are 

to the controlling opinion, unless otherwise noted.

4 Only the exacting scrutiny applied to political disclosures 

has retained its original name, although there remains some 

dispute as to how strict that review is. See Citizens United v. Fed. 

Election Comm’n, 558 U.S. 310, 366 (2010); Worley v. CruzBustillo, 717 F.3d 1238, 1249 (11th Cir. 2013), cert. denied, 134 

S. Ct. 529 (2013) (“Though possibly less rigorous than strict 

scrutiny, exacting scrutiny is more than a rubber stamp” 

(citation omitted) (internal quotation marks omitted)); Del. 
5

This case is about contribution limits, which in 

and of themselves “impinge on protected associational 

freedoms” by “limit[ing] one important means of 

associating with a candidate” for public office. 

Buckley, 424 U.S. at 22. 

This Court has held that regulatory regimes 

imposing contribution limits are “subject to the 

closest scrutiny.” Buckley, 424 U.S. at 25. That test 

requires courts to “assess the fit between the stated 

governmental objective and the means selected to 

achieve that objective.” McCutcheon, 134 S. Ct. at 

1445. But this Court has simultaneously required

deference to Congress regarding contribution limits, 

holding that courts have “no scalpel to probe” the

dollar amounts selected. Buckley, 424 U.S. at 30

(internal quotation marks omitted). In those cases, 

the government need only demonstrate that its 

selected limits are not “wholly without rationality.” 

Id. at 83.

The distinction is not a semantic one, and is often 

outcome determinative. So it was here. Asked to pick 

which of these court-created forms of review applied 

to the per-election division of federal contribution 

limits, the D.C. Circuit held that, once this Court has 

generally upheld a contribution limit, there is “no 

scalpel to probe” the manner in which those limits are 

 

Strong Families v. Denn, 136 S. Ct. 2376, 2378 (2016) (Thomas, 

J., dissenting from denial of certiorari) (“By refusing to review 

the constitutionality of the Delaware law, the Court sends a 

strong message that ‘exacting scrutiny’ means no scrutiny at 

all.”).
6

applied during an election cycle. App. 21. It did so 

despite this Court’s most recent decision, McCutcheon 

v. FEC, which brought the full force of “closely drawn”

scrutiny to bear on the aggregate limits that had been 

facially upheld in Buckley. McCutcheon, 134 S. Ct. at 

1456.

The difference is important. While imposing a 

monetary limit on contributions to a particular 

candidate has been found to serve the government’s 

anti-corruption interest, additional hurdles—

whether the aggregate cap at issue in McCutcheon or 

the illogical structural prohibition at issue here—“do 

little, if anything, to address that concern, while 

seriously restricting participation in the democratic 

process.” Id. at 1442. That fact is dispositive under

heightened scrutiny because the government must

“demonstrate that the recited harms are real, not 

merely conjectural.” United States v. Nat’l Treasury 

Emps. Union, 513 U.S. 454, 475 (1995). 

But when a court picks mere inquiry into a law’s 

rationality, it is broadly deferential. In such cases, 

federal courts often, sua sponte, propose hypothetical 

situations—situations outside the record before the 

court, or involving relief other than what plaintiffs 

request—to hold that the government’s interests in 

those cases is enough to defeat the cause actually 

before them. See, e.g., App. 23-26 (positing that the 

“logic” of Petitioners’ position could justify giving tens 

of thousands of dollars to an incumbent that had 

previously run in multiple election cycles); Justice v. 

Hosemann, 771 F.3d 285, 293 (5th Cir. 2014), cert. 

denied, 136 S. Ct. 1514 (2016) (converting to facial 

challenge instead of ruling on constitutionality of 
7

requested relief because the court could not “find it 

plausible that” plaintiffs “would have capped their 

spending”); Worley, 717 F.3d at 1242 n.2 (ignoring 

relief requested and circumstances of case, and

converting as-applied case into facial challenge, 

because of hypothetical asked at oral argument).

The court of appeals did this, not out of resistance 

to Court precedents, but rather because the relevant 

“cases, Januslike, point in two directions.” Van Orden 

v. Perry, 545 U.S. 677, 683 (2005). Given the 

ramifications of a court’s “pick” in contribution limit 

cases, this Court ought to provide a clear and final 

answer.

Another, related, source of confusion is the level of 

generality at which the scrutiny should take place. 

For example, should as-applied challenges always be 

tested against the interests served by the entire law, 

as in a facial challenge, or just against the interests 

served by a particular provision? Under the form of 

strict scrutiny established by the Religious Freedom 

Restoration Act, a court must examine the state’s 

interests and the burdens on a party’s rights at “the 

same case-specific level of generality: asking whether 

the government’s particular interest in burdening 

this plaintiff’s particular religious exercise is justified 

in light of the record in this case.” Yellowbear v. 

Lampert, 741 F.3d 48, 57 (10th Cir. 2014) (Gorsuch, 

J., writing for the court).

Here, however, the D.C. Circuit refused to 

consider FECA’s provisions at the level of Petitioners’ 

injury: Whether requiring an installment plan for a 

non-corrupting contribution “itself advanced the anti-
8

corruption interest under the closely drawn test.” 

App. 21. Rather, the court asked whether the 

government has an interest in having a “time period” 

at all. Id. at 20 (holding that it “is enough if that base 

limit as a whole (of which its time period is an integral 

element) prevents the appearance or actuality of 

corruption”). 

Confusion in the standards of scrutiny applied to 

laws controlling campaign contributions only serves 

to chill protected rights of political speech and 

association. Only this court can clarify and thus 

secure those rights.

STATEMENT OF THE CASE

Petitioners Laura Holmes and Paul Jost are a 

married couple residing in Miami, Florida. App. 60, 

¶ 1. To defeat the Democratic incumbents in two 

specific races, Ms. Holmes and Mr. Jost wanted to 

associate with and support their Republican 

challengers in the 2014 general election. App. 80, 

¶ 61; App. 82, ¶ 70; see McCutcheon, 134 S. Ct. at 1448

(noting that contributions implicate both 

associational and expressive rights). In both races,

FECA would permit a donor to give up to $5,200 to a 

candidate by the end of the general election, if and 

only if the donor contributed in the primary election.

Ms. Holmes contributed $2,600 to Carl DeMaio, 

the Republican general election candidate for 

California’s 52nd Congressional district. App. 81, 

¶ 67. Mr. Jost contributed $2,600 to Dr. Mariannette 

Miller-Meeks, his party’s general election nominee for 

Iowa’s 2nd Congressional district. App. 82-83, ¶ 74. 
9

But, because Ms. Holmes and Mr. Jost wanted to 

associate only with their party’s general election 

nominees, and could not know who those candidates 

would be until after the primary election, they could 

not give the full amount that is non-corrupting to 

those general election candidates. App. 81, ¶ 68; id. at 

83, ¶ 75. Federal law required them to give half that 

amount during the primary. See 52 U.S.C. 

§ 30101(1)(A) (defining each part of the election cycle 

as a separate election); 52 U.S.C. § 30116(a)(6)

(imposing contribution limits “separately with respect 

to each election”).5

Neither Ms. Holmes nor Mr. Jost disputes 

Congress’s authority to set contribution limits to 

prevent quid pro quo corruption or its appearance. 

Both defer to Congress’s determination that total 

contributions up to $5,200 to a general election 

candidate in an election cycle do “not create a 

cognizable risk of corruption.” McCutcheon, 134 S. Ct. 

at 1452.6 Petitioners challenged only the manner in 

 

5 Respondent Federal Election Commission (“FEC” or 

“Commission”) allows individuals to write a single check for 

$5,200 during the primary season—where the entire amount 

may be used for the general election. 11 C.F.R. 

§ 110.1(b)(5)(ii)(B). Additionally, the FEC allows individuals to 

write a single check for $5,200 during the general election season 

if part is specifically earmarked for primary election debts. See

11 C.F.R. § 110.1(b)(3)(i). And the Commission allows unused 

primary election funds to be used in the general election. 11 

C.F.R. § 110.3(c)(3). 

6 Originally set at $1,000 for each election period, for a total 

of $2,000 for the primary and general elections, the per-election 

limit was doubled by Congress in 2002 and indexed for inflation.

App. 63, ¶ 6; 52 U.S.C. § 30116(a)(1)(A), (c); App. 64, ¶ 9. When 
10

which an individual must give this total, noncorrupting amount—specifically, the requirement 

that a donor give at least half during the primary or 

forego giving it altogether.

Petitioners brought suit on July 21, 2014, seeking 

to give $5,200 during the general election to both Mr. 

DeMaio and Dr. Miller-Meeks. The district court 

denied Petitioners’ motion for a preliminary 

injunction, but it nonetheless certified facts and 

questions of constitutionality to the D.C. Circuit on 

November 17, 2014. App. 115-42. The FEC moved to 

remand the case on January 2, 2015, arguing that the 

district court had provided the Government 

insufficient opportunity to develop a factual record. 

FEC Motion for Remand at 17-20, Holmes v. FEC, No. 

14-5281 (D.C. Cir. Jan. 2, 2015), ECF No. 1529989. 

The D.C. Circuit granted that motion on January 30, 

2015. App. 113-14. 

On remand, the district court made findings of 

fact, App. 60-83, but this time declined to certify the 

questions of constitutionality, App. 53-54. A panel of 

the D.C. Circuit reversed that decision, as to 

Petitioners’ First Amendment question, on April 26, 

2016. App. 35-36. Accordingly, on June 29, 2016, the 

district court certified Petitioners’ First Amendment 

 

this case was filed, for the 2014 election, the per-election limits 

were $2,600 (total $5,200). Although Congress intended § 30110

cases to be heard quickly, inflation over the years has caused the 

per-election limit to increase to $2,700 (total $5,400). App. 64,

¶ 10. To maintain consistency with the record and prior briefing, 

Petitioners will use the amounts for the 2014 election.
11

question to the D.C. Circuit, sitting en banc. App. 33-

34.

The D.C. Circuit, sitting en banc, had exclusive 

jurisdiction to hear the merits of the constitutional 

question in the first instance. See 52 U.S.C. § 30110; 

Wagner I, 717 F.3d at 1014 (noting that “section 

[30110] vests exclusive jurisdiction in the en banc

courts of appeals”).7

The D.C. Circuit held “that the analysis in Buckley

ultimately governs—and compels rejecting—

plaintiffs’ challenge.” App. 11. In particular, the court 

held that “[t]he contribution ceilings’ per-election 

structure . . . is an integral part of the base limits 

themselves.” App. 18. Accordingly, the court 

concluded that “it is enough if that base limit as a 

whole . . . prevents the appearance or actuality of 

corruption in a manner satisfying the closely drawn 

standard.” App. 20. Consequently, the court held that 

there was no reason to consider whether the perelection structure “itself advanced the anti-corruption 

interest under the closely drawn test.” App 21.

 

7 Effective September 1, 2014, the provisions of FECA 

codified at 2 U.S.C. §§ 431-57 were recodified and transferred to 

52 U.S.C. §§ 30101-30146. 
12

REASONS FOR GRANTING THE WRIT

I. This Case Implicates Fundamental First 

Amendment Liberties Meriting This 

Court’s Review.

“The First Amendment ‘is designed and intended 

to remove governmental restraints from the arena of 

public discussion, putting the decision as to what 

views shall be voiced largely into the hands of each of 

us.’” McCutcheon, 134 S. Ct. at 1448 (quoting Cohen 

v. Cal., 403 U.S. 15, 24, (1971)). By safeguarding 

“individual dignity and choice,” it ultimately defends 

the foundations “upon which our political system 

rests.” Id. (internal quotation marks omitted). 

Thus, FECA’s “contribution . . . limitations 

operate” to restrict “the most fundamental” of those 

protected activities. Buckley, 424 U.S. at 14. That is 

because “[d]iscussion of public issues and debate on 

the qualifications of candidates are integral to the 

operation of the system of government established by 

our Constitution.” Id. In that sphere, “[t]he First 

Amendment affords the broadest protection to such 

political expression in order ‘to assure [the] 

unfettered interchange of ideas for the bringing about 

of political and social changes desired by the people.’” 

Id. (quoting Roth v. United States, 354 U.S. 476, 484 

(1957)) (brackets in original).

That protection extends to “political association as 

well as political expression,” because “[e]ffective 

advocacy of both public and private points of view, 

particular1y controversial ones, is undeniably 

enhanced by group association.” Id. at 15 (quoting 
13

NAACP v. Ala., 357 U.S. 449, 460 (1958)) (brackets in 

original); see also id. at 25 (noting “that the right of 

association is a basic constitutional freedom, that . . . 

like free speech, lies at the foundation of a free 

society” (citation omitted) (internal quotation marks 

omitted)). Nor does it matter that the associational 

rights surrounding campaign contributions involve 

money: “this Court has never suggested that the 

dependence [on] money . . . reduce[s] the exacting 

scrutiny required by the First Amendment.” Id. at 16. 

To protect the First Amendment’s political rights, 

this Court created a distinct system of constitutional 

review for campaign finance laws. That system, 

however, is beset by internal contradictions and 

confusing similarities to the traditional tiers of 

scrutiny. Since Buckley, this muddled approach has

failed to guide the lower courts, and in particular has 

failed to adequately safeguard the First Amendment 

interests inherent in the regulation of political speech 

and association. The exacting scrutiny—indeed, the 

judicial skepticism—Buckley required is often 

difficult to glean from the formulaic, deferential 

campaign finance opinions that now fill the federal 

reports.

This case presents a case of exceptional 

importance because only this Court can reconcile the 

conflicting elements in Buckley’s standards and 

explain how they relate to constitutional scrutiny in 

general. And only clarity on that point can restore the 

“closest scrutiny” that this court has required for the 

associational rights “at the foundation of a free 

society.” Buckley, 424 U.S. at 25 (internal quotation 

marks omitted). 
14

As the Buckley decision made clear, those 

standards may often result in the government’s 

victory. The government’s burden is heavy, but not 

insurmountable. But the importance of the rights at 

stake require that the courts put the government to 

that task, and they can only do that when this Court 

clearly articulates the relevant standards. 

II. Only This Court Can Clarify The 

Applicability Of The Closely Drawn 

Standard.

1. Tension in Buckley has led to two completely 

different standards for resolving challenges to 

campaign contribution restrictions. One, seemingly 

applicable to the monetary levels chosen, is 

deferential. The other, applicable to everything else, 

is not. As this case demonstrates, however, novel 

questions concerning the structure of campaign 

contribution limits do not fit easily into either 

standard. Only this Court can clarify whether lower 

courts are to closely scrutinize contribution statutes 

or instead defer to the legislative branch.

2. The Buckley Court held that restrictions on 

contributions are “subject to the closest scrutiny.” 424

U.S. at 25 (internal quotation marks omitted). 

Nonetheless, it established two contradictory

standards for reviewing such restrictions. 

Once a court has determined that a contribution 

scheme is constitutional, “a court has no scalpel to 

probe” the “fine tuning” of the contribution caps—that 

is, the specific dollar amount Congress has chosen. Id. 

at 30 (internal quotation marks omitted). The 
15

remaining restrictions, however, are to be sustained 

only “if the State demonstrates a sufficiently 

important interest and employs means closely drawn 

to avoid unnecessary abridgement of associational 

freedoms.” Id. at 25.

3. The controlling opinion in McCutcheon v. FEC

reaffirmed and clarified these standards. The 

McCutcheon Court faced no question about the 

specific amount of the contribution caps. The parties 

and the Court accepted as given both the total 

contribution limit of $5,200 for general election 

candidates and the total amount of the aggregate 

limits. Accordingly, with no controversy about the 

specific dollar amounts involved, the Court did not 

invoke the “no scalpel to probe” standard. 

In looking at other restrictions on contributions, 

however, the Court stated that “fit matters,” and that 

such restrictions must be “in proportion to the 

interest served,” using a “means narrowly tailored to 

achieve the desired objective.” McCutcheon, 134 S. Ct. 

at 1456-57 (internal quotation marks omitted); see 

also id. at 1445 (noting need to “assess the fit”). In 

other words, the Court required that “the State 

demonstrate[] a sufficiently important interest and 

employ[] means closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Id. at 1444

(internal quotation marks omitted). 

4. As discussed below, Petitioners approached the 

D.C. Circuit with a brand new question, one never 

contemplated in Buckley or any other case. 

Petitioners do not challenge the limit Congress has 

determined at which total contributions in an election 
16

cycle may become corrupting. They simply ask, given 

the total amount that is non-corrupting at the general 

election stage, that they be permitted to give that

total amount at that stage. They challenge only the 

structure of FECA forcing them to divide a 

contribution that would be non-corrupting. 

The D.C. Circuit was faced with a choice: either to

apply the closely drawn standard or take the

deferential, “no scalpel to probe” approach. The court 

chose the latter road, holding that, once the overall 

contribution limits regime is upheld under the closely 

drawn standard, all the constituent parts of that 

regime—defined as parts necessary for that 

particular regime to function—must be evaluated 

with complete deference to Congress. Here, that 

meant not only extending the no scalpel to probe 

approach from dollar amounts to the length of 

temporal periods, but also to the ways that the 

temporal periods are structured. 

5. There is a mismatch between the D.C. Circuit’s 

deferential approach to the structure of contribution 

limits here, and this Court’s application of closely 

drawn scrutiny in McCutcheon, a case involving 

another limitation on non-corrupting contributions. 

Put another way, the D.C. Circuit has taken the 

tension between Buckley’s closely drawn and no 

scalpel to probe standards and torn it wide open. 

When faced with a challenge to a contribution 

restriction, deference will no longer be limited to the 

dollar amounts selected. Instead of closely 

scrutinizing the limitation actually challenged in the 

context of the plaintiff’s actual anticipated conduct, 
17

courts will instead ask if the relevant provisions have 

previously been upheld facially, and then defer. That 

approach undermines the closely drawn standard 

generally, and makes it largely unavailable to asapplied challengers.8

But this Court established the “closely drawn” 

standard’s “closest scrutiny” for a reason. Restrictions 

on contributions affect “the most fundamental [of] 

First Amendment activities,” Buckley, 424 U.S. at 14, 

and “[t]he loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes 

irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 

(1976). Thus, it is a question of exceptional

importance whether the closely drawn standard 

 

8 The circuit courts of appeal have struggled to apply 

Buckley’s heightened scrutiny to as-applied challenges involving 

other aspects of campaign finance law—particularly in PAC 

status and disclosure cases. For example, in Worley, the 

Eleventh Circuit disregarded the as-applied challenge to 

Florida’s “political committee” statutes, and instead converted 

the case to a facial challenge based on a hypothetical presented 

at oral argument. 717 F.3d at 1242 n.2. Recently, the Fifth 

Circuit went to great lengths to convert an as-applied challenge 

to a facial one, and then found that the challengers could not 

meet the more-stringent standard. Justice, 771 F.3d at 292-295; 

id. at 300 (“[W]e conclude that Mississippi’s” disclosure laws 

“survive First Amendment scrutiny at most levels . . . .” 

(emphasis added)). 

As Justice Thomas recently noted, this Court’s failure to 

grant certiorari and clarify the standards of review in campaign 

finance cases “sends a strong message that ‘exacting scrutiny’ 

means no scrutiny at all.” Del. Strong Families, 136 S. Ct. at 

2378 (Thomas, J., dissenting from denial of certiorari). This case 

provides an opportunity to arrest that broader trend.
18

remains a tool of judicial review after a federal or 

state restriction has survived a facial challenge, or 

whether it is a one-dose vaccination against 

government overreach.

III. Had The Court Of Appeals Applied 

Closely Drawn Scrutiny To The Record 

Before It, Petitioners Would Have 

Prevailed.

1. The D.C. Circuit’s failure to apply closely 

drawn scrutiny resulted in a diminution of 

Petitioners’ constitutional rights to speech and 

association. Buckley, 424 U.S. at 14-15, 22. As a 

plurality of this Court has recognized, “Congress’s 

selection of a $5,200 base limit indicates its belief that 

contributions of that amount or less do not create a 

cognizable risk of corruption.” McCutcheon, 134 S. Ct. 

at 1452.9 Nevertheless, Petitioners were denied the 

ability to contribute that amount to candidates of 

their choice. 11 C.F.R. § 110.1(b)(5)(ii)(B) (permitting 

 

9 Of course, when the Chief Justice provided this 

explanation, the reference may have been “shorthand for the 

total contributions permitted across a primary and general 

election together.” App. 16. But Congress has nonetheless 

determined that contributing a total of $5,200 does “not create a 

cognizable risk of corruption.” McCutcheon, 134 S. Ct. at 1452.

This conclusion is simply the common-sense recognition that 

it is the total amount given to a candidate that triggers a 

corruption concern. To take another example, FECA only 

considers someone a federal candidate once her cumulative 

contributions or expenditures hit a certain ceiling. 52 U.S.C. 

§ 30101(2)(A) (person becomes a candidate once she “has 

received contributions aggregating in excess of $5,000”).
19

$5,200 contribution that covers two elections during 

the same cycle, so long as it is given during the 

primary); cf. Citizens United, 558 U.S. at 334 (noting 

that election in which petitioner sought to engage had 

come and gone by the time the Court ruled against the 

FEC).

Worse, this deprivation would not have occurred 

had the court of appeals exactingly scrutinized 

Petitioners’ claim and the Government’s assembled 

record. McCutcheon, 134 S. Ct. at 1456 (“In the First 

Amendment context, fit matters.”); Fed. Election 

Comm’n v. Nat’l Right to Work Comm., 459 U.S. 197, 

207 (1982) (“[A]ction which may have the effect of 

curtailing the freedom to associate is subject to the 

closest scrutiny” (internal quotation marks omitted)). 

Under closely drawn scrutiny, the Commission 

bears the burden of proving a statute’s 

constitutionality. Elrod, 427 U.S. at 362-63 (“The 

interest advanced must be paramount . . . and the 

burden is on the government to show the existence of 

such an interest. . . . Moreover, . . . the government 

must ‘emplo[y] means closely drawn to avoid 

unnecessary abridgment.’” (quoting Buckley, 424 U.S. 

at 25) (brackets in original)). It must prove that, asapplied to Petitioners’ requested conduct, FECA’s 

contribution limits serve the anti-corruption interest. 

McCutcheon, 134 S. Ct. at 1441, 1450 (noting “only 

one legitimate governmental interest for restricting 

campaign finances” has been identified, namely 

avoiding “‘quid pro quo’ corruption or its 

appearance.”); Yamada v. Snipes, 786 F.3d 1182, 1207 

(9th Cir. 2015), cert. denied, 136 S. Ct. 569 (2015)

(applying closely drawn scrutiny in as-applied 
20

challenge to government contractor contribution ban); 

Wagner v. Fed. Election Comm’n, 793 F.3d 1, 8 (D.C. 

Cir. 2015) (en banc), cert. denied, 136 S. Ct. 895 (2016)

(“Wagner II”) (requiring that the “FEC show[] that 

[the challenged statute] furthers the interest in 

combating quid pro quo corruption or its appearance

. . . to clear the ‘closely drawn’ standard’s first 

hurdle”).

Closely drawn scrutiny would not permit the 

Commission to rely on “mere conjecture” to “carry a 

First Amendment burden.” Shrink Mo. Gov’t PAC, 

528 U.S. at 392. Rather, the Commission should only 

have prevailed if it could prove that the statute 

“employs means closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Buckley, 424 

U.S. at 25. After all, “[t]he quantum of empirical 

evidence needed to satisfy heightened judicial 

scrutiny” increases “with the novelty and plausibility 

of” the challenge. Shrink Mo. Gov’t PAC, 528 U.S. at 

391.

Petitioners’ claim regarding FECA’s contribution 

limit structure is entirely novel. As the D.C. Circuit 

acknowledged, Buckley involved “more than 200 

pages [in its] majority opinion and dissents,” “nearly 

800 pages of briefs,” and “28 constitutional questions” 

presented, but “none touched upon this subject.” App. 

47-48 (Randolph, J.). Neither has any case heard 

since.

2. The Commission was unable to make such a 

showing. The record it assembled contains no support 

for its proposition that the per-election limit combats 

corruption. Instead, it submitted summary materials, 
21

and requested certified facts, consisting almost 

entirely of election results, state election procedures, 

and a rote recitation of the FEC’s history and 

regulations. App. 60-83 (Findings of Fact). The FEC 

especially focused on the differences among state 

election procedures (e.g., the fact that Louisiana does 

not have primary elections) and the rare instances in 

which run-off elections are conducted, subject to an 

additional contribution limit. App. 65-68, 73-80. Of 

the 76 facts in the record, 30—or 39%—involved 

either state election procedures or run-off elections. 

Id. (Facts 12, 15, 16, 19, 35-60). Put differently, the 

FEC relied almost entirely on the unusual 

circumstances where either one or three elections, 

rather than two, selected the eventual officeholder.

This record provided no evidence of actual or 

apparent corruption regarding Petitioners’ requested 

relief, which was limited to the plain-vanilla situation 

where there is a primary and then a general election. 

Nor was there any evidence of actual or apparent 

corruption in a situation where contributors sought to 

give only in a general election that would select the 

eventual officeholder. Put differently, Petitioners 

sought only to associate with specific candidates 

seeking specific federal office in a specific Congress, 

but the FEC ignored that non-corrupting 

circumstance—a set of facts covering the 

overwhelming majority of federal election contests—

and sought to instead prove its case using exotic 

outliers.

The Government’s failure is particularly striking 

in light of Petitioners’ modest request. Petitioners 

were not challenging the limit on total contributions
22

of $5,200 itself, but merely the temporal division 

“layered on top.” McCutcheon, 134 S. Ct. at 1458. 

Under closely drawn scrutiny, “[t]his ‘prophylaxisupon-prophylaxis approach” required the court to “be 

particularly diligent in scrutinizing the law’s fit.” Id.

(quoting Fed. Election Comm’n v. Wis. Right to Life, 

Inc., 551 U.S. 449, 479 (2007) (Roberts, C.J., 

controlling op.)). The record before the district court 

simply missed the mark. Perhaps a different record 

could have shown that what Petitioners planned 

would have raised the risk of corruption or its 

appearance. But the record actually offered did not do 

so.10

3. Mistakenly deferring to Congress’s structural 

choices, however, the court of appeals did not require 

the FEC to prove the statute’s constitutionality. 

Instead, it perversely forced Petitioners to prove that 

they did not wish to undo contribution limits 

generally. App. 30 (“But the logic of plaintiffs’ theory 

goes further still. Their rationale . . . has no necessary 

stopping point with a given election cycle.”); see also 

App. 23 (shifting the burden and stating that 

Petitioners made “no attempt to suggest that a percycle approach bears some inherent structural 

advantage”). And while the court of appeals conceded 

 

10 Even on its own terms, the fact that some districts involve 

exotic circumstances where a contributor would, under current 

law, be permitted to give only $2,700, or as much as $8,100, says 

little about why giving those Congressionally-approved amounts 

in the last election—the one which actually selects the member 

of Congress—raises any additional risk of corruption or its 

appearance compared to giving it as part of a per-election 

installment plan.
23

that Petitioners did “not claim [such] an entitlement,” 

App. 25, that court’s conjecture that Petitioners’ 

request might arc in that direction was enough for the

court to scuttle their case. See App. 25 (stating that 

“their theory could support doing so” (emphasis 

added)); compare Shrink Mo. Gov’t, 528 U.S. at 391

(rejecting “mere conjecture”).

Petitioners merely sought to write a single check, 

made out in an amount they could legally give in 

identical circumstances so long as the check was 

delivered during the primary,11 and instead deliver 

that check to the general election nominee. And they 

explained why: to support their party’s challengers to 

incumbent members of the opposing party.12 They did 

not ask to amalgamate contributions across election 

cycles,13 and the court of appeals should not have 

refashioned their case into a facial challenge to

contribution limits per se. But see App. 30-31 (“[T]he 

same rationale . . . could even encompass a single 

 

11 See supra n. 5.

12 Compare Davis v. Fed. Election Comm’n, 554 U.S. 742, 738 

(2008) (“We have never upheld the constitutionality of a law that 

imposes different contribution limits for candidates who are 

competing against each other, and we agree . . . that this scheme 

impermissibly burdens [the candidate’s] First Amendment right

to spend his own money for campaign speech.”).

13 Indeed, Petitioners would find such relief undesirable. 

Aggregation across election cycles would be more likely to assist 

incumbents—generally only incumbents have been candidates 

over many election cycles. Petitioners’ goal is to defeat members 

of the opposing party who have built campaign war chests across 

elections.
24

contribution of many tens of thousands of dollars to a 

candidate when taking into account the total amounts 

that could be donated to her over the course of her 

(potentially decades-long) political career.”);14 cf. 

Buckley, 424 U.S. at 12-16 (connection to money does 

not “reduce the exacting scrutiny required by the 

First Amendment”).

Put simply, because Petitioners’ requested relief 

so obviously fails to raise anti-corruption concerns, 

the Commission and court of appeals were forced to 

engage with hypotheticals outside that request. This 

conjectural, reductio ad absurdum approach cannot 

be squared with heightened constitutional scrutiny. 

Shrink Mo. Gov’t PAC, 528 U.S. at 392 (holding that 

“mere conjecture” is inadequate “to carry a First 

Amendment burden”).

Had the D.C. Circuit applied closely drawn 

scrutiny, and required the Commission to prove that 

the statute employs a “means closely drawn to avoid 

unnecessary abridgement of associational freedoms,” 

legislative deference would not have swallowed the 

State’s evidentiary burden nor the narrow contours of 

the certified question. Buckley, 424 U.S. at 25. 

Because the result is a diminution of First 

 

14 This overwrought hypothetical fails for two reasons. Most 

importantly, it bears no resemblance to what Petitioners 

actually wanted to do. But it also ignores common sense. 

Evaluating a non-corrupting contribution over the full two-year 

election cycle makes sense in part because it is subject to an 

obvious temporal limit: the term of office, and the period between 

general elections.
25

Amendment liberties,15 and because this procedural 

approach was adopted by the en banc D.C. Circuit and 

will inevitably be applied in future First Amendment 

litigation, this case raises exceptionally important 

questions justifying this Court’s review.

IV. This Case Presents An Excellent Vehicle 

For The Questions Presented.

This case presents a narrow, straightforward, and 

novel claim with a manageable and agreed-upon 

record. There are no hurdles to this Court’s review.

The unusual section 30110 procedure has several 

features. One is that the en banc court of appeals has 

exclusive merits jurisdiction, meaning that only a 

single court has ruled upon these claims, and it has 

issued a final judgment. Wagner I, 717 F.3d at 1011

(“[T]he plain text of section [30110] grants exclusive 

merits jurisdiction to the en banc court of appeals.”). 

Another feature is the district court’s 

responsibility to review the case and develop findings 

of fact to guide the appellate court’s decision. Bread 

PAC v. Fed. Election Comm’n, 455 U.S. 577, 580 

(1982) (noting that “the District Court, as required by 

§ [30110], first made findings of fact and then certified 

the case”). Without such findings, certification is 

inappropriate because the record lacks the clarity 

required to resolve a constitutional challenge. 

 

15 Elrod, 427 U.S. at 373 (“The loss of First Amendment 

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” (emphasis added)).
26

Khachaturian v. Fed. Election Comm’n, 980 F.2d 330, 

331-32 (5th Cir. 1992). Consequently, since § 30110 is 

the only method by which a challenge to FECA’s 

contribution limits may be heard, the district court’s 

76 factual findings, comprising only 24 pages of text, 

are the full factual universe. And because Petitioners 

presented an as-applied challenge, there is no reason 

to revisit that record.

Finally, as discussed above, the standard of review 

this Court imposes will resolve this case. Application 

of closely drawn scrutiny will vindicate Petitioners’ 

First Amendment rights; deference to Congress will 

merely affirm the decision below.

For these reasons, this petition presents an 

excellent vehicle with which to resolve important 

questions of First Amendment law.
27

CONCLUSION

Accordingly, the petition for a writ of certiorari 

should be granted. 

Dated: February 26, 2018

Respectfully submitted,

ALLEN DICKERSON

Counsel of Record

OWEN YEATES

TYLER MARTINEZ

ZAC MORGAN

INSTITUTE FOR FREE 

SPEECH

124 S. West St., Ste. 201

Alexandria,VA 22314

adickerson@ifs.org

(703) 894-6800

Counsel for Petitioner