ORAL ARGUMENT NOT YET SCHEDULED 

No. 14-5281 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

LAURA HOLMES, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

_______________________________________________ 

Certified from the United States District Court for 

the District of Columbia pursuant to 52 U.S.C. § 30110 

_______________________________________________ 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR REMAND 

_______________________________________________ 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

Steve N. Hajjar 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

January 2, 2015

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Plaintiffs Laura Holmes and Paul Jost challenge the constitutionality of 

FECA’s $2,600 per-election limit on individual contributions to candidates as 

applied to certain general-election contributions they each wished to make. They 

invoked a special review provision of the Federal Election Campaign Act (“FECA” 

or “Act”), 52 U.S.C. § 30110 (formerly 2 U.S.C. § 437h),1 which allows voters and 

certain other parties to bring constitutional challenges to FECA in the district 

courts, which must make findings of fact, screen the case for nonfrivolous 

constitutional questions, and then certify any such questions to the en banc court of 

appeals. 

The Federal Election Commission (“FEC” or “Commission”) seeks an order 

remanding this case to the district court because that court failed to perform its 

mandatory functions under section 30110. That special review provision requires 

district courts in cases properly brought under its strictures to determine as a 

threshold matter whether the constitutional challenge is insubstantial or raises a 

settled legal question. The district court erred by failing to make that 

determination for this challenge to a longstanding contribution limit that the 

Supreme Court has repeatedly upheld. That error was particularly striking in light 

of the district court’s earlier conclusion, in denying the plaintiffs’ motion for a 

                                                      

1 Effective September 1, 2014, the provisions of FECA that were codified in 

Title 2 of the United States Code were recodified in a new title, Title 52. To avoid 

confusion, this submission will indicate in parentheses the former Title 2 citations.

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preliminary injunction, that plaintiffs were unlikely to succeed on the merits 

because their claims “challenge the analysis and conclusion of the Supreme Court 

in Buckley v. Valeo and its progeny” and the court “does not have that luxury.” 

Holmes v. FEC, No. 14-1243, __ F. Supp. 3d __, 2014 WL 5316216, at *1 (D.D.C. 

Oct. 20, 2014). In certifying questions of constitutionality to this Court, the district 

court acknowledged its holding that plaintiffs were unlikely to succeed on the 

merits of their constitutional claims, but appeared uncertain whether substantiality 

screening was appropriate and certified the questions “[i]n an abundance of 

caution.” Holmes v. FEC, No. 14-1243, __ F. Supp. 3d __, 2014 WL 6190937, at 

*1 (D.D.C. Nov. 17, 2014) (attached as Exh. 1). Courts are to construe the scope 

of matters appropriate for certification narrowly, and the court below did the 

opposite, erring on the side of certification. The district court also improperly 

deprived the Commission of any opportunity to address whether the constitutional 

issues here met the standard for certification. 

Another requirement of district courts in section 30110 cases is to develop a 

full record. Here, the district court did not allow for record development or the 

proposal of relevant facts by the parties. If this case did present any nonfrivolous 

constitutional questions, the district court would thus also have committed error 

and deprived this Court a complete factual record. 

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The district court’s failure to perform its mandatory functions under section 

30110 directly contravenes repeated admonishments from the Supreme Court and 

this Court. Left uncorrected, the district court’s actions here will likely lead to 

further improper certifications and needless diversions of this Court’s entire roster 

of active judges in future matters. This Court should provide guidance to lower 

courts and remand the case to the district court with instructions to fulfill its duties 

under section 30110. 

BACKGROUND 

I. FECA’S PER-ELECTION CONTRIBUTION LIMITS 

 The individual contribution limits challenged here apply on a per-candidate, 

per-election basis, with “election” defined to include, inter alia, general, special, 

primary, and runoff elections. 52 U.S.C. § 30101(1) (2 U.S.C. § 431(1)). 

Shortly after they were enacted, the Supreme Court affirmed the 

constitutionality of FECA’s individual contribution limits in Buckley v. Valeo, 424 

U.S. 1 (1976) (per curiam), holding that the limits were consistent with both the 

First and Fifth Amendments. Id. at 35. The Court found that the limits serve the 

government’s important anti-corruption interests, explaining that “[t]o the extent 

that large contributions are given to secure a political quid pro quo from current 

and potential office holders, the integrity of our system of representative 

democracy is undermined.” Id. at 26-27. The Court also explained that the limits 

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were further justified by the “almost equal[ly] concern[ing] . . . impact of the 

appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial contributions.” Id. at 27. 

 The Buckley Court also rejected an equal protection challenge to FECA’s 

individual contribution limits. The Court observed that FECA “applies the same 

limitations on contributions to all candidates” and rejected arguments that the 

limits discriminate against major-party challengers to incumbents, explaining that 

“[c]hallengers can and often do defeat incumbents in federal elections.” Id. at 31, 

32. “[T]he danger of corruption and the appearance of corruption apply with equal 

force to challengers and to incumbents,” the Court explained, concluding that 

“Congress had ample justification for imposing the same fundraising constraints 

upon both.” Id. at 33. Observing that courts should not second-guess Congress’s 

decisions regarding the exact dollar figure at which to set a contribution limit, the 

Court also concluded that FECA’s then-$1,000 contribution limit was neither 

unconstitutionally overbroad nor unreasonably low. Id. at 30. 

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

Stat. 81 (“BCRA”), amended FECA to raise the individual limit and index it for 

inflation. See BCRA § 307(b), 116 Stat. 102-103 (codified at 52 U.S.C. 

§ 30116(a)(3) (2 U.S.C. § 441a(a)(3))); BCRA § 307(d), 116 Stat. 103 (codified at 

52 U.S.C. § 30116(c) (2 U.S.C. § 441a(c)(1))). The limit that applied to 

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

$2,600 per candidate, per election.2

 Because FECA defines “election” to include 

various types of electoral contests, the total amount that one may contribute to a 

particular candidate during a particular election cycle depends on the number of 

elections in which that candidate participates in pursuit of federal office. 

Commission regulations explain the rules for determining to which election 

a particular candidate contribution is attributed. Contributors “are encouraged” to 

designate in writing the particular election for which an individual contribution is 

intended. 11 C.F.R. § 110.1(b)(2)(i). If a contributor does not make a written 

designation, his contribution is treated as if intended for “the next election for that 

Federal office after the contribution is made.” Id. § 110.1(b)(2)(ii). 

A contributor may designate his contribution in writing for a particular 

election even after that election has occurred, but in such cases the contribution 

must not exceed the candidate’s net debts outstanding from the designated election. 

11 C.F.R. § 110.1(b)(3)(i). In the event that a candidate’s net outstanding debts 

amount to less than the amount of a contribution designated for a previous election, 

FEC regulations permit the candidate (or his committee) to refund the contribution, 

                                                      

2 FEC, Price Index Adjustments for Contribution and Expenditure Limitations 

and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530, 8532 (Feb. 6, 

2013). 

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reattribute it from a different person, or redesignate it for a different election. Id. 

§ 110.1(b)(3)(i)(A)-(C). 

II. SECTION 30110 PROCEDURE 

Section 30110, the special judicial-review provision plaintiffs invoke, was 

added to FECA in 1974 to provide expedited consideration of anticipated 

constitutional challenges to the extensive amendments to FECA that year. See

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

§ 208(a), 88 Stat. 1263, 1285-1286 (1974). Section 30110 provides that voters and 

certain other parties “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.” 

52 U.S.C. § 30110 (2 U.S.C. § 437h). 

The Supreme Court has held that use of section 30110 is subject to a number 

of restrictions and should be construed narrowly, in part because it creates “a class 

of cases that command the immediate attention of . . . the courts of appeals sitting 

en banc.” See Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982). If 

a section 30110 claim passes other threshold inquiries, a district court “should 

perform three functions. First, it must develop a record for appellate review by 

making findings of fact. Second, [it] must determine whether the constitutional 

challenges are frivolous or involve settled legal questions.” Wagner v. FEC, 717 

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F.3d 1007, 1009 (D.C. Cir. 2013) (per curiam) (internal citations omitted). The 

Supreme Court has described the frivolousness inquiry in this context as a 

determination whether the issues are “insubstantial.” Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 192 n.14 (1981) (“Cal. Med.”). And third, only then should it “certify 

the record and all non-frivolous constitutional questions” to the en banc court of 

appeals. Wagner, 717 F.3d at 1009; see 52 U.S.C. § 30110 (2 U.S.C. § 437h). 

Section 30110 was enacted in 1974 and proposed by Senator Buckley to 

ensure that constitutional questions regarding FECA were expeditiously resolved. 

Wagner, 717 F.3d at 1013. It originally provided “for direct appeal to the Supreme 

Court” and required “both the courts of appeals and the Supreme Court ‘to advance 

on the docket and to expedite to the greatest possible extent’ any matter certified,” 

but Congress deleted those provisions in 1984 and 1988. Id. at 1010. Any person 

in the enumerated classes of persons in section 30110 — which includes voters 

such as plaintiffs here — wishing to file constitutional challenges to FECA in this 

Circuit must use the procedures of section 30110. Id. at 1012-15. 

III. PROCEDURAL BACKGROUND 

Plaintiffs Laura Holmes and Paul Jost, American citizens who are married to 

each other, brought this suit in July 2014 alleging that FECA’s per-election limits 

on contributions to candidates violate their First Amendment right of association 

and their Fifth Amendment right to equal protection of the laws. Holmes, 2014 

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WL 5316216. Both plaintiffs contributed the maximum permitted $2,600 to their 

preferred candidates for those candidates’ general-election campaigns, and 

refrained from contributing to such candidates before their primaries out of a belief 

that their contributions would otherwise have been “‘wasted in an intraparty 

squabble.’” Id. at *4. Both plaintiffs wished to make an additional $2,600 

contribution to their preferred candidates’ general-election campaigns, which 

would bring their total general-election contributions to those candidates to $5,200, 

twice the per-election limit. Id. at *2. 

 Plaintiffs moved for a preliminary injunction alleging that FECA’s $2,600 

per-election limit is unconstitutional as applied to plaintiffs’ desired $5,200 

general-election contributions. Id. at *2. The district court denied plaintiffs’ 

motion, explaining that it did not have the “luxury” of overruling Buckley v. Valeo, 

which upheld the then-$1,000 per-election limit on contributions, and its progeny. 

Id. at *1. The district court further explained that “the Supreme Court has long ago 

concluded that restrictions on the amount of money one can contribute per election 

prevent corruption and the appearance of corruption by allowing candidates to 

compete fairly in each stage of the political process.” Id. at *4 (citing Buckley, 424 

U.S. at 26-27). And it quoted the Supreme Court’s recognition in Buckley that 

“‘the danger of corruption and the appearance of corruption apply with equal force 

to challengers and to incumbents,’” as well as the Court’s corresponding 

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conclusion that “there is ‘ample justification for imposing the same fundraising 

constraints upon both.’” Id. (quoting Buckley, 424 U.S. at 33). 

The district court found that plaintiffs’ equal protection claims were 

similarly unlikely to succeed on the merits. Again relying on Buckley, the court 

explained that “[p]laintiffs have not been treated differently than any other 

contributor because [FECA] ‘applies the same limitations on contributions to all 

candidates regardless of their present occupations, ideological views, or party 

affiliations.’” Id. at *5 (quoting Buckley, 424 U.S. at 31). The court further found 

that none of the other preliminary-injunction factors weighed in favor of granting 

plaintiffs’ motion. Id. at *6-7. 

 Having concluded that plaintiffs’ claims appeared to lack any merit, the 

district court ordered plaintiffs to show cause why the court should not convert the 

order denying their preliminary-injunction motion into a final appealable order that 

denied their request to certify constitutional issues to this Court for en banc 

consideration. (Dist. Ct. Docket No. 16.) Plaintiffs responded by arguing that 

their challenge did not raise settled legal questions. (Dist. Ct. Docket No. 17.) 

 On November 12, 2014, the district court — without having provided the 

Commission any opportunity to respond to plaintiffs’ show-cause response or to 

otherwise take a position regarding the relevant record in this case and what if any 

constitutional questions merited certification — issued an order listing two dozen 

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findings of fact and certifying two constitutional questions to this Court for en banc

consideration. Dist. Ct. Docket No. 18; see Holmes 2014 WL 6190937 (reissued 

certification order with minor revisions). After expressing apparent uncertainty 

regarding whether it should screen the questions presented to determine whether 

they are frivolous or settled questions, the court made findings of fact and certified 

questions to this Court “[i]n an abundance of caution.” 2014 WL 6190937, at *1.3

ARGUMENT 

I. THE DISTRICT COURT’S CERTIFICATION ORDER VIOLATED 

DUE PROCESS 

 No “lawsuit[] can[] be resolved with due process of law unless both parties 

have had a fair opportunity to present their cases.” Pernell v. Southall Realty, 416 

U.S. 363, 385 (1974) (emphasis added). The district court failed to provide the 

Commission this opportunity. Upon denying plaintiffs’ preliminary-injunction 

motion, the court ordered the plaintiffs to show cause why it should not also deny 

the request in their complaint to certify constitutional questions. Plaintiffs filed a 

response and nine days later the district court issued its certification order. But it 

never gave the Commission any opportunity to respond to plaintiffs’ arguments, to 

otherwise urge the court not to certify any questions, or, alternatively, to present 

the Commission’s views regarding what questions should be certified and what 

                                                      

3

 On December 2, 2014, this Court ordered that merits briefing commence 

with a brief by plaintiffs on January 9, 2015. Unless the Court orders otherwise, 

that briefing is deferred pending resolution of this motion. D.C. Cir. R. 27(g)(3). 

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facts should be included in the record. This alone marks a fundamental departure 

from the adversarial process and merits a remand. See Khachaturian v. FEC, 980 

F.2d 330, 331-32 (5th Cir. 1992) (remanding section 30110 case where district 

court had “premature[ly]” certified constitutional questions “on an ex parte order, 

without giving the FEC an opportunity to respond,” and thus deprived itself of “the 

benefit of briefing” from the parties).

II. THE DISTRICT COURT FAILED TO DETERMINE WHETHER 

PLAINTIFFS’ CHALLENGE RAISES A FRIVOLOUS OR SETTLED 

LEGAL QUESTION 

The Supreme Court has made clear that district courts play an important 

gatekeeping role in determining whether to certify constitutional questions to the 

circuit courts, explaining that district courts should only certify questions under 

section 30110 when the issues presented are “neither insubstantial nor settled.” 

Cal. Med., 453 U.S. at 192 n.14. Recently, in Wagner, this Court reiterated that 

only after a district court determined whether the constitutional challenge is 

frivolous or involves settled legal questions could the court “certify the record and 

all non-frivolous constitutional questions.” 717 F.3d at 1009. 

The Supreme Court construed section 30110 in this manner for good reason. 

Certification of questions to courts of appeals sitting en banc necessarily disrupts 

their dockets. Section 30110 creates “a class of cases that command the immediate 

attention of . . . the courts of appeals sitting en banc, displacing existing caseloads 

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and calling court of appeals judges away from their normal duties.” Bread 

Political Action Comm., 455 U.S. at 580.4

 Screening for settled questions reduces 

“the burden [the special review procedure places] on the federal courts” and 

prevents its “potential abuse.” Cal. Med., 453 U.S. at 192 nn.13-14. FECA “is not 

an unlimited fountain of constitutional questions”; the Court expected resort to the 

provision “will decrease in the future” and that the special review procedures 

would thus not pose “any significant threat to the effective functioning of the 

federal courts.” Id. at 192 n.13. Substantiality screening was one of the 

“restrictions on the use of” the special procedure that led the Court to conclude that 

the provision would not be subject to “abuse” and would not so “burden” the 

courts of appeals as to impede “the sound functioning of the federal courts.” Id. at 

192-94 nn.13-14. 

Lower courts have generally been faithful to the Supreme Court’s command. 

In Khachaturian, however, the Fifth Circuit was forced to remand a section 30110 

challenge that had been certified by a district court to the en banc appellate court, 

explaining that the district court “did not make the requisite threshold inquiry . . . 

                                                      

4

 Part of the Supreme Court’s concern in Bread Political Action Committee

was the requirement in the statute at that time that section 30110 proceedings be 

expedited. 455 U.S. at 580. Though the expedition provision has been repealed, 

section 30110 “continues to pretermit review by district courts and panels of courts 

of appeals and that pretermission undoubtedly serves the Congress’s goal of 

expedition.” Wagner, 717 F.3d at 1014 (noting that expedition repeal changed 

only section 30110’s “volume, not its tune”). It thus continues to pose a danger of 

docket disruption.

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whether this challenge is frivolous.” 980 F.2d at 331. “[T]he district court should 

first determine whether Khachaturian’s claim is frivolous in light of Buckley,” the 

Fifth Circuit explained, and “[i]f no colorable constitutional claims are presented 

on the facts as found by the district court, it should dismiss the complaint.” Id. at 

332.5

The court below clearly failed to make that threshold determination. 

Instead, it simply certified constitutional questions and factual findings “[i]n an 

abundance of caution.” Holmes, 2014 WL 6190937, at *1. This was reversible 

error. This Court has held that district courts “must determine whether the 

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

717 F.3d at 1009 (emphasis added), and the district court failed to do so here. 

                                                      

5

 See also, e.g., Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 154, 161 

(D.D.C. 2013) (explaining that section 30110 “does not require certification of 

frivolous or settled principles of law”) (internal quotations marks omitted); 

Mariani v. United States, 80 F. Supp. 2d 352, 354 (M.D. Pa. 1999) (same); Cao v. 

FEC, 688 F. Supp. 2d 498, 501 (E.D. La 2010) (“The district court’s task is to 

determine whether the constitutional challenge is frivolous.”) (internal quotations 

marks omitted); Mott v. FEC, 494 F. Supp. 131, 134 (D.D.C. 1980) (dismissing 

claims in case invoking section 30110 procedure and explaining that certification 

was intended to be available “only where a ‘serious’ constitutional question was 

presented” (quoting Senator James L. Buckley, sponsor of the amendment that 

became Section 30110, 120 Cong. Rec. 10562 (1974))); Buckley v. Valeo, 387 

F. Supp. 135, 138 (D.D.C. 1975) (indicating that section 30110 certification is 

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

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

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Like a single judge who is asked to convene a three-judge court to hear a 

constitutional challenge, a district court may decline to certify a question under 

Section 30110. See Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990); 

Mott v. FEC, 494 F. Supp. 131, 133 (D.D.C. 1980). And even if a question differs 

slightly from settled law it may still decline to certify. See Mariani v. United 

States, 212 F.3d 761, 769 (3d Cir. 2000) (en banc) (“[N]ot every sophistic twist 

that arguably presents a ‘new’ question should be certified.”) (quoting Goland, 

903 F.2d at 1257). 

Accordingly, a challenge does not merit certification merely because it 

purports to be “as applied.” Khachaturian, like the instant case, involved an asapplied challenge to a contribution limit that had earlier been facially upheld in 

Buckley. The Fifth Circuit noted that a party challenging a statute that has 

previously been upheld bears a greater burden than a party challenging a statute for 

the first time. Khachaturian, 980 F.2d at 331 (explaining that “‘questions arising 

under ‘blessed’ provisions [of FECA] understandably should meet a higher 

threshold’ of frivolousness” (quoting Goland, 903 F.2d at 1257)). The district 

court failed to make even a basic frivolousness determination, let alone apply the 

higher standard appropriate for this challenge to a longstanding contribution limit 

repeatedly upheld by the Supreme Court. See Holmes v. FEC, 2014 WL 5316216, 

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at *3-*6 (concluding that plaintiffs’ claims appear to lack merit and are 

contradicted by multiple Supreme Court decisions). 

The district court’s error is particularly troubling here because its opinion 

denying plaintiffs’ motion for a preliminary injunction found that plaintiffs 

challenge a settled legal question. The district court explained that plaintiffs were 

unlikely to prevail on the merits of their claims because their challenge is 

foreclosed by Supreme Court precedent: “Plaintiffs challenge the analysis and 

conclusion of the Supreme Court in Buckley v. Valeo and its progeny. This Court 

does not have that luxury.” Holmes, 2014 WL 5316216, at *1. The district court’s 

prior holding and its improper application of an “abundance of caution” standard 

make clear that the court neither explicitly nor implicitly determined that this case 

presents a substantial constitutional question warranting consideration by the full 

Court of Appeals. 

The court cited the determination by another district court in SpeechNow.org 

v. FEC, Civ. No. 08-0248, 2009 WL 3101036, at *1 (D.D.C. Sept. 28, 2008) 

(“SpeechNow”), that a district court’s only “prerogative under section [30110]” 

was to certify constitutional questions, rather than to render judgment of any kind. 

Holmes, 2014 WL 6190937, at *1. The court also cited a more recent decision 

from another district court, in Libertarian National Committee, Inc. v. FEC, 930 F. 

Supp. 2d 154, 165 (D.D.C. 2013), aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. 

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Feb. 7, 2014) (per curiam), in which that court explained that it could not certify 

“frivolous” or “settled” questions to the Court of Appeals. Holmes, 2014 WL 

6190937, at *1. The court’s certification out of “caution” thus appears to stem 

from uncertainty whether it was within its “prerogative” to decline to certify 

frivolous or settled questions. The court may have misunderstood the quoted 

language from SpeechNow, as the district court judge in that case had earlier 

reviewed the proposed questions for substantiality.6

 In any event, the court was 

not only permitted to decline to certify such questions, it was required to do so. 

Courts are to construe the availability of section 30110 narrowly, Bread 

Political Action Comm., 455 U.S. at 580, and the district court did precisely the 

opposite here. The district court’s gatekeeping role is critical in assuring that 

section 30110 does not disrupt the dockets of courts of appeals. The district 

court’s certification here portends just such a disruption. If district courts 

reflexively certified all section 30110 cases “in an abundance of caution” — even 

those in which the court has found the challenge foreclosed by Supreme Court 

precedent — these interferences with the functioning of courts of appeals would 

soon follow. 

                                                      

6

 SpeechNow, 2009 WL 3101036, at *1 (referencing that the court had 

“agreed to certify five . . . questions”); see also Order, SpeechNow.org v. FEC, No. 

08-0248 (JR) (D.D.C. July 29, 2008) (Docket No. 40) (certifying questions 

following briefing by the parties regarding frivolousness). 

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III. THE DISTRICT COURT FAILED TO DEVELOP A FULL RECORD 

AS REQUIRED IN SECTION 30110 CASES

 The district court denied plaintiffs’ preliminary-injunction motion based 

primarily on its conclusion that plaintiffs are unlikely to prevail on the merits 

because their constitutional challenge to FECA’s per-election contribution limits is 

foreclosed by Buckley and other Supreme Court decisions. Holmes v. FEC, 2014 

WL 5316216, at *3-*6. The Commission agrees with that conclusion, which 

suggests that the court would have denied certification if it had actually fulfilled its 

duty to determine whether plaintiffs’ legal challenge is frivolous or involves settled 

legal questions. See Wagner, 717 F.3d at 1009. But if constitutional questions are 

to be certified to this Court, it is vital that the Court have before it a complete 

factual record that reflects input from both parties. Indeed, this Court has 

explained that in section 30110 cases, district courts “must [first] develop a record 

for appellate review by making findings of fact.” Wagner, 717 F.3d at 1009 

(internal citations omitted). The Supreme Court and this Court have long 

emphasized the importance of developing a full factual record in section 30110 

cases, notwithstanding its provision for “immediate[]” certification. 

In Cal. Med., for example, the Court rejected Justice Stewart’s concern that 

“[s]ection [30110] litigation will often occur . . . without the fully developed record 

which should characterize all litigation.” 453 U.S. at 208 (Stewart, J., dissenting). 

The majority explained that, “as a practical matter, immediate adjudication of 

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constitutional claims through a § [30110] proceeding would be improper in cases 

where the resolution of such questions required a fully developed factual record.” 

Id. at 192 n.14 (emphases added). 

Even before Cal. Med., this Court recognized the importance of thorough 

factual records compiled with the assistance of the parties in section 30110 cases. 

When Buckley v. Valeo first came before this Court, it did so without a record. 

This Court, en banc, remanded the case with instructions to the district court to 

“[t]ake whatever may be necessary in the form of evidence over and above

submissions that may suitably be handled through judicial notice.” 519 F.2d 817, 

818 (D.C. Cir. 1975) (en banc) (per curiam) (emphases added); compare id. at 821 

(Bazelon, J. dissenting) (emphasizing section 30110’s “use of the word 

‘immediately’”). Following proceedings in which the parties conducted discovery 

and proposed factual findings, the case returned with an “augmented” record. 

Buckley v. Valeo, 519 F.2d 821, 903 (D.C. Cir. 1975) (en banc) (per curiam). 

 “Because of the great gravity and delicacy of (the courts’) function in 

passing upon the validity of an act of Congress, the need is manifest for a fullbodied record in such adjudication.” Martin Tractor Co. v. FEC, 627 F.2d 375, 

380 (D.C. Cir. 1980) (section 30110 case) (footnotes and internal quotation marks 

omitted). 

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Moreover, in developing those facts, district courts must allow the parties to 

participate. See Buckley, 519 F.2d at 818 (remanding section 30110 case with 

instructions to the district court to “[t]ake whatever may be necessary in the form 

of evidence over and above submissions that may suitably be handled through 

judicial notice”); Khachaturian, 980 F.2d at 332 (remanding with the same 

instructions as in Buckley and suggesting that district court conduct an evidentiary 

hearing). Such participation has frequently involved, at a minimum, allowing 

parties to conduct discovery and submit proposed findings of fact. See, e.g., 

Scheduling Order, LNC v. FEC, No. 11-562 (D.D.C. July 27, 2011) (Docket No. 

20) (attached as Exh. 2) (setting deadlines for discovery and the filing of proposed 

findings of fact and responses to proposed findings of fact); Minute Order, Cao v. 

FEC, No. 08-4887 (E.D. La. Feb. 26, 2009) (Docket No. 41) (attached as Exh. 3) 

(same); Mariani v. United States, 80 F. Supp. 2d 352, 355 (M.D. Pa. 1999) 

(“[P]arties were directed to submit proposed findings of fact following the 

completion of pertinent discovery.”). 

Even in SpeechNow.org v. FEC, the only case cited as purported support for 

the decision below, the court certified questions under “the unique procedure” in 

section 30110 “following discovery” and the submission of proposed findings of 

fact by the parties. SpeechNow.org, 2009 WL 3101036, at *1. 

USCA Case #14-5281 Document #1529989 Filed: 01/02/2015 Page 20 of 22
20

 Here, the district court’s immediate certification order deprived this Court of 

a full factual record. The parties had no opportunity to conduct any discovery, to 

submit proposed findings of fact, or to respond to the other party’s proposed 

findings of fact. Instead, the district court appears to have made findings of fact 

culled from plaintiffs’ multiple court filings and the single brief (opposing 

plaintiffs’ preliminary-injunction motion) that the Commission has filed thus far in 

the underlying proceedings. To the extent any constitutional questions are to be 

certified to this Court, such certified questions must be accompanied by a complete

factual record that reflects input from both parties. 

CONCLUSION 

 For the foregoing reasons, this Court should remand this case to the district 

court. 

 Respectfully submitted,

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

 

Erin Chlopak 

Acting Assistant General Counsel 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

 

January 2, 2015 

USCA Case #14-5281 Document #1529989 Filed: 01/02/2015 Page 21 of 22
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

___________________________________ 

 ) 

HOLMES, et al. ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) No. 14-5281 

 ) 

FEDERAL ELECTION COMMISSION, ) CERTIFICATE OF SERVICE 

 ) 

 Defendant. ) 

____________________________________)

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of January, 2015, I electronically filed 

the Commission’s Motion for Remand with the Clerk of the Court of United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

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

Allen Dickerson 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

 /s/ Steve N. Hajjar

 Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 shajjar@fec.gov 

USCA Case #14-5281 Document #1529989 Filed: 01/02/2015 Page 22 of 22