UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LIBERTARIAN NATIONAL )

COMMITTEE, Inc., )

)

Plaintiff, )

)

v. ) Civ. No. 11-462 (RLW)

)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

PLAINTIFF LIBERTARIAN NATIONAL COMMITTEE’S

OPPOSITION TO DEFENDANT’S MOTION TO ALTER OR AMEND.

I. The FEC bears a heavy burden in asserting that the Court’s certification,

following substantial discovery, briefing, and argument, was “clear error.

This case is roughly two years old, and has occupied a great deal of both the Parties’ and

this Court’s time and attention. The legal question has always been whether Plaintiff’s challenge

1

is frivolous or insubstantial. This Court found that, as regards the specific bequest of Raymond

Groves Burrington, it is not. Nevertheless, the FEC now asks this Court to reverse itself, because

it committed clear error in finding Plaintiff’s claim non-frivolous. The motion is without merit.

Under the law of the D.C. Circuit and this Court, a Rule 59(e) motion must meet a high

burden. “A Rule 59(e) motion is discretionary and need not be granted unless the district court

1

Plaintiff Libertarian National Committee (“LNC”) filed an amended complaint seeking review under 2 U.S.C.

§ 437h on May 27, 2011. (Docket No. 13). The parties conducted extensive discovery, which concluded in February

2012. (Docket No. 21). Then, between May and September of 2012, the parties extensively briefed proposed findings

of fact, and the FEC moved for summary judgment. (Docket Nos. 24-38). This Court held a three-hour hearing on the

merits of that briefing on February 25, 2013. In March 18, 2013, this Court certified facts and the following question

to the en banc Court of Appeals:

Does imposing annual contribution limits against the bequest of Raymond Groves Burrington violate

the First Amendment rights of the Libertarian National Committee? (Mem. Opp. at 28.)

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finds that there is an intervening change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d 661,

671 (D.C. Cir. 2004). A Rule 59(e) motion to reconsider is not “an opportunity to reargue facts

and theories upon which a court has already ruled. The motion must address new evidence or

errors of law or fact and cannot merely reargue previous factual and legal assertions.” Amoco

Prod. Co. v. Fry, 908 F. Supp. 991, 993 (D.D.C. 1995) (emphasis supplied). Indeed, a district

court may “grant a motion to reconsider only if the moving party can present new facts or clear

errors of law that compel a change in the court’s prior ruling.” Id. (internal citations and

quotations omitted) (emphasis supplied). Just last month, this Court noted that “[a]lthough

somewhat broader [than a Rule 60(d)(3) motion for a court to set aside judgment for fraud on the

court], motions to alter or amend under Rule 59(e) are similarly disfavored ‘and relief from

judgment is granted only when the moving party establishes extraordinary circumstances.’”

Montgomery v. Gotbaum, 2013 U.S. Dist. LEXIS 35944, at *4 (March 15, 2013) (quoting

Neidermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001)) (internal

citations omitted) (emphasis supplied). 

In this case, the burden on the Commission is still greater, as the FEC must demonstrate

this Court clearly erred on a question of frivolousness. “[T]he categories of cases that merit 2

U.S.C. § 437h certification a[re] those that are neither ‘insubstantial nor settled.’” Mem. Op. at

11 (quoting Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.4). Given this low bar to certification

under § 437h, if the Court committed clear error, it is far more likely that it did so by certifying

only a narrowed version of Plaintiff’s request.

The FEC’s briefing does not provide any new factual evidence. Nor does it show

alternative rationales under which this Court may reverse itself under Rule 59(e), such as

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“manifest injustice” or “extraordinary circumstances.” To the extent the Commission brings

forward new legal theories, they are inadequate to support the motion, which should be speedily 2

denied so that this case may proceed to the Court of Appeals, where Congress intended these

issues to be heard. 

II. The Commission’s concerns largely stem from a misunderstanding of as-applied

Constitutional challenges.

A. Because as-applied rulings apply to similarly situated litigants, concerns that

“most large contributors will seek individual exemptions” are overblown.

The FEC presents its motion as a defense of the Court of Appeals’s valuable time. It

argues that this “Court’s ruling conflicts with the Supreme Court’s command that the availability

of section 437h review should be carefully limited, since...[this Court’s] ruling opens the door

for most large contributors to seek individual exemptions from FECA’s limits in separate en

banc Court of Appeals proceedings on the ground that their specific contributions will not cause

corruption.” Mot. to Alt. at 2. But this alarming statement is fundamentally incorrect. 

On the first point, the danger posed to the Court of Appeals’s schedule is overstated.

Since § 437h became law nearly forty years ago, just thirteen cases have ever been certified

under that provision to any Court of Appeals. This limited use of § 437h review should not be 3

2

For example, in a footnote on the last page of its briefing, the Commission suggests that “[b]ecause

we are in a new calendar year and the certified case is narrower, all that is at stake before the Court

of Appeals is whether the LNC can receive approximately $7,000 now or must wait until the end

of this year, an off year in the election cycle.” Mot. to Alt. at 13, n. 7. The Commission’s concern

is easily disposed of under the “capable of repetition, yet evading review” exception to mootness.

See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 895 (2010), Davis v. FEC, 554 U.S. 724, 735

(2008); FEC v. Wisconsin Right to Life, 551 U.S. 449, 462 (2007), Bellotti v. First Nat’l Bank of

Boston, 435 U.S. 765, 774 (1978). 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010); Republican Nat’l Comm. v. FEC (In re 3

Anh Cao), 619 F.3d 410 (5th Cir. 2010) (hearing certified questions with appeal of dismissal of

other claims); Mariani v. United States, 212 F.3d 761, 767 (3d Cir. 2000); FEC. v. International

Funding Inst., Inc., 969 F.2d 1110 (D.C. Cir. 1992); Khachaturian v. FEC, 980 F.2d 330 (5th

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surprising. Congress has already appropriately limited the availability of such review by the very

terms of the statute. Bread PAC v. FEC, 455 U.S. at 583 (“[T]he structure of the Act suggests

that Congress knew how to specify that ‘all’ constitutional questions about ‘any’ provision of the

Act may be raised, and therefore could as easily have directed that ‘any’ person might invoke the

unique procedures of §437h. But Congress did not do so...”); Cal. Med. Ass’n v. FEC, 453 U.S.

at 192, n. 14 (finding that §437h’s statutory “restrictions...enable a district court to prevent the

abuses of §437h envisioned by the Commission.”). Furthermore, the district courts are forbidden

from allowing cases that are mere “sophistic twist[s]” from reaching the en banc Court. Goland

v. FEC, 903 F.2d 1247, 1257 (9th Cir. 1990). “Moreover, the Federal Election Campaign Act is

not an unlimited fountain of constitutional questions, and it is thus reasonable to assume that

resort to §437h will decrease in the future.” Cal. Med. Ass’n, 453 U.S. at 192 n. 13.

Indeed, the Commission’s warning of a tsunami of new §437h challenges only makes any

sense in light of their misunderstanding of this Court’s certified question. The Commission

argues that it is “unaware of a court ever holding, as this Court did, that a contribution limit

could be struck down as applied to one contribution due to a lack of evidence showing that the

isolated contribution was actually or apparently corrupting.” Mot. to Alt. at 7 (emphasis in

original). The Commission goes on to postulate that “[i]f contributors were permitted to seek

Cir. 1992); International Ass'n of Machinists & Aerospace Workers v. FEC, 678 F.2d 1092 (D.C.

Cir. 1982); Bread PAC v. FEC, 635 F.2d 621 (7th Cir. 1980); Cal. Medical Ass'n v. FEC, 641

F.2d 619 (9th Cir. 1980); Anderson v. FEC, 634 F.2d 3 (1st Cir. 1980); FEC v. Central Long

Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980); Republican Nat'l

Committee v. FEC, 616 F.2d 1 (2d Cir. 1979); Buckley v. Valeo, 519 F.2d 821 (D.C.Cir.1975);

Clark v. Valeo, 559 F.2d 642 (D.C. Cir. 1977) (Clark v. Valeo returned questions certified under

§ 437h to district court unanswered because en banc panel found that ripe “case and

controversy” requirement was not satisfied. We give the benefit of the doubt to the FEC's

argument that the en banc Courts of Appeal will be flooded with § 437h cases in counting Clark

v. Valeo in this tally, even though the Court did not answer certified questions.)

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individual as-applied exemptions from the contribution limits, it would undermine the clarity and

dependability that prophylactic contribution limits provide.” Id. at 8, n. 4. 

This argument ignores the well-established rule that as-applied challenges, whether

successful or otherwise, apply to the plaintiff and those “similarly situated.” See Long Beach

Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 698 (“However...our holding

today extends only to the LBCRA as applied to the Chamber PACs and similarly situated

entities”); N.C. Right to Life v. Leake, 525 F.3 274, 337 (Michael, J., dissenting) (“I conclude

that §163-278.13 is constitutional as applied to NCRL-FIPE and similarly situated groups.”)

Separating an as-applied challenge from a facial challenge is part of the routine work of

the courts. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2665 (2011) (“Having found 4

that the plaintiff could not raise a facial challenge, the Court remanded for consideration of an as

-applied challenge.”); Gonzales v. Carhart, 550 U.S. 124, 167 (2007) (“The considerations we

have discussed support our further determination that these facial attacks should have not have

been entertained in the first instance. In these circumstances the proper means to consider

exceptions is by as-applied challenge...In an as-applied challenge the nature of the medical risk

can be better quantified and balanced than in a facial attack.”). The courts are well qualified to

handle follow-on litigation, and determine if the new plaintiffs are similarly situated.5

 In fact, courts often vindicate as-applied challenges to the most stringent of prophylactic rules. 4

See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); New York v. Quarles, 467 U.S. 649 (1984).

E.g. Dobbert v. Florida, 432 U.S. 282, 301 (1977) (“But petitioner is simply not similarly 5

situated to those whose sentences were commuted. He was neither tried nor sentenced prior to

Furman...”); Jackson v. Thornburgh, 907 F.2d 194, 203 (D.C. Cir. 1990) (“We know that there

are large numbers of D.C. Code offenders who are serving time in the federal system. We also

know that prisoners who are convicted of exactly the same crimes, even under like

circumstances, may be assigned to either a federal or D.C. correctional facility. In addition, we

know that these similarly-situated persons will receive different sentences solely on the basis of

whether they serve their time in a federal or D.C. institution.”); United States v. Jones, 480 Fed.

Appx. 969, 971 (11th Cir. 2012) (“We also conclude that it was not unconstitutional as applied,

because Jones’s codefendant was not convicted of violating § 924(c)(1)(C) and was not similarly

situated to him.”)

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Indeed, were LNC to lose this case before the D.C. Circuit, and a subsequent suit were

brought involving a different bequest that is nonetheless similarly situated to the LNC here, that

case would likely be frivolous within the meaning of §437h. Goland, 903 F.2d at 1258 (“Under

[§437h]...a single judge could dismiss constitutional claims which already ha[ve] been

decided.”). But LNC has not lost this case, nor has any remotely similar case involving any

bequest been decided by the Court of Appeals. And were LNC to prevail before the D.C.

Circuit, presumably no materially similar cases would arise, as the Commission would conform

its conduct to the Court’s decision and implement rules for similar, non-corrupting bequests. 

B. Contrary to the Commission’s assertion, the mere fact that a regulation is

“prophylactic” in nature does not immunize it from as-applied constitutional

challenge.

The Commission asserts that “prophylactic contribution limits validly apply to all

contributions, including those with no actual corrupt practice or effect;” thus immunizing the

limits at issue here from the as-applied question certified by this Court. Mot. to Alt. at 7. As a

preliminary matter, this case is not the first time that the Commission has declared campaign

finance rules immune to as-applied challenge as a result of a facial ruling. After the Supreme

Court handed down McConnell v. FEC, the Commission argued that the Bipartisan Campaign

Reform Act’s “electioneering communication” definition, having been upheld against a facial

challenge, was no longer subject to serious as-applied challenges. FEC Mem. in Opp., Wisconsin

Right to Life v. FEC (D.D.C. 2004) (“McConnell upheld the primary definition of ‘electioneering

communication’ as to all communications it reached, not just ‘sham issue ads,’ as plaintiff

contends. The Court thus precluded a flood of as-applied challenges based on any supposedly

‘genuine’ issue ad that a claimant like WRTL could engineer, an eventuality that could wholly

undermine the bright-line objective test BCRA employs.”) But this argument was ultimately

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rejected by the U.S. Supreme Court in a unanimous per curiam opinion. Wisconsin Right to Life

v. FEC, 546 U.S. 410 (2006) (“WRTL I”). The plaintiffs prevailed in their as-applied challenge

one year later. FEC v. Wisconsin Right to Life, 554 U.S. 449 (2007) (“WRTL II”).

The WRTL cases were not a unique phenomenon. In Massachusetts Citizens for Life v. FEC,

479 U.S. 238 (1986) (“MCFL”), the High Court found an as-applied exception allowing

qualified nonprofit groups to issue independent expenditures from their general treasury funds.

MCFL, 479 U.S. at 263. The MCFL Court noted that the law’s broad sweep—a prophylactic rule

banning all corporate independent expenditures was designed to counter “the prospect that

resources amassed in the economic marketplace may be used to provide an unfair advantage in

the political marketplace.” Id., at 257. But the Court also noted that “[t]he resources available to

this fund [MCFL], as opposed to the corporate treasury, in fact reflect popular support for the

political positions of the committee.” Id. at 258. The FEC presented numerous challenges to

MCFL’s ability to conduct independent expenditures, but the Court squarely rejected them all.

Id. at 256-265. After thorough analysis of the organization’s structure, internal rules on

contributions, and activities, Justice Brennan, writing for the Court, concluded that “[i]t is not

the case...that MCFL merely poses less of a threat of the danger that has prompted regulation [of

corporate independent expenditures]. Rather it does not pose such a threat at all.” Id. at 268. 

Such is the case here. The FEC argues that the complete ban on all bequests over a certain

number is a prophylactic rule that fights “the danger of actual quid pro quo arrangements and the

appearance of corruption stemming from public awareness of the opportunities for abuse.” Mot.

to Alt. at 7. But this Court correctly found that, on the record developed by the parties here, “the

Burrington bequest does not implicate any valid anti-corruption concerns.” Mem. Op. at 27. Put

differently, because there was no possibility of corruption surrounding the Burrington bequest,

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the usual arguments supporting a prophylactic rule are inapplicable. The state may not create a

prophylactic rule, in support of a state interest, when the rule ensnares entities posing no risk to

that interest.

Such an approach is not unworkable. MCFL’s victory created a class of corporate entities

permitted to issue independent expenditures. This so-called “MCFL exception” was routinely

applied by the courts, until Citizens United v. FEC, 130 S. Ct. 876 (2010) held that all

corporations could make independent expenditures from their general treasuries. The MCFL 6

exception was applied without trouble at the state level as well. In fact, from 1986 until 2010,

7

only one case went before the U.S. Supreme Court with any question as to whether the plaintiff

qualified for the MCFL exception, and the Court found it did not. Austin v. Mich. Chamber of

Commerce, 439 U.S. 652, 665 (1990).

Furthermore, the FEC suggests that all contribution limits are exempt from as-applied

challenges by the mere virtue that they are contribution limits. The Commission claims that

“[c]ourts have almost universally rejected such as-applied challenges to FECA’s contribution

limits—even in cases where the threat of corruption was concededly somewhat diminished—and

have sometimes explicitly relied on the interest in maintaining clear, bright-line prophylactic

E.g. Day v. Holahan, 34 F.3d 1356, 1363-1364 (8th Cir. 1994) (“The analysis in MCFL...is an 6

application, in three parts, of First Amendment jurisprudence to the facts in MCFL...Should

these facts change, however, particularly as to the amount of revenue MCCL [Minnesota

Citizens Concerned for Life] receives from its business activities, the business activities that

produce the revenue, or the amount of contributions it receives from for-profit corporations or

labor unions, the state may wish to revisit MCCL's qualification for the exemption.”); FEC v.

NRA of Am., 254 F.3d 173, 188 (D.C. Cir. 2001) (“In support of this conclusion, the Court

pointed to several characteristics of the MCFL that made it look more like a ‘voluntary political

association’ than a traditional business corporation” and found the NRA applied for the MCFL

exemption in 1980, but not in 1978 or 1982).

See State of Alaska v. Alaska Civil Liberties Union, 978 P.2d 597, 612 (Ak. 1999) (“We 7

therefore read Alaska Stat. 15.13.135 in accordance with the three conditions Austin discussed in

describing the MCFL exception.”).

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rules.” But no court may uphold a prophylactic rule just to save the prophylaxis. Such 8

jurisprudence would do great harm to our Constitution. 

The strongest case the FEC cites in its favor is FEC v. Beaumont. 539 U.S. 146, 160

(2003). In that case, the Court rejected an effort by a nonprofit corporation to obtain an MCFLlike exception to the ban on direct corporate contributions. But the Court did not uphold the

corporate ban merely to protect a prophylactic rule. Other facts precluded an as-applied

challenge. The Court recognized that “[n]ot all corporations that qualify for favorable tax

treatment under §501(c)(4)...lack substantial resources, and the category covers some of the

Nation’s most politically powerful organizations.” Id. at 160. Only after finding that nonprofits,

by their nature, still maintained the “state-created advantages” underlying the rationale for the

general corporate contribution ban, the Court decided against an exception. Id.

But Beaumont is inapposite here. The en banc Court of Appeals could easily find that

the Burrington bequest and other “similarly situated” bequests pose no risk of corruption. After

all, Mr. Burrington is dead, and had little to no interaction with the LNC before his death. This is

precisely the sort of as-applied question reserved for the en banc Court of Appeals, with its

particular depth of expertise in matters of constitutional significance, under 2 U.S.C. §437h.

Furthermore, the FEC’s citation to FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 8

480, 500 (1985) is simply odd. The full two sentences it selectively cites read: “In NRWC we

rightly concluded that Congress might include, along with labor unions and corporations

traditionally prohibited from making contributions to political candidates, membership

corporations, though contributions by the latter might not exhibit all of the evil that contributions

by traditional economically organized corporations exhibit. But this proper deference to a

congressional determination of the need for a prophylactic rule where the evil of potential

corruption had long been recognized does not suffice to establish the validity of § 9012(f), which

indiscriminately lumps with corporations any ‘committee, association or organization.’”

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III. The FEC’s reading of the “closely drawn” constraint collapses all standards of

constitutional scrutiny, effectively eviscerating the requirement of any tailoring

whatsoever.

The FEC’s discussion of the tailoring required in constitutional challenges to contribution

limits misreads and muddies the law. The Supreme Court articulated the applicable standard in

its seminal Buckley v. Valeo decision: “[e]ven a significant interference with protected rights of

political association may be sustained if the State demonstrates a sufficiently important interest

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

424 U.S. at 25. The Court reaffirmed the requirement that contribution limits be “closely drawn

to serve a sufficiently important interest” in Ariz. Free Enter. Club's Freedom Club PAC v.

Bennett, 131 S.Ct. 2806, 2817 (2011) (quotations omitted), and this Court recognized and

articulated this requirement in its Memorandum Opinion. Mem. Op. at 15.

A. It is true that a degree of flexibility inheres in the “closely drawn” requirement,

but this is the essence of tailoring, and is inevitable in all analyses requiring

proportionality.

Any meaningful assessment of the constitutionality of a government action that burdens

constitutional freedoms, particularly in an as-applied context, requires a degree of flexibility to

allow reviewing courts to balance competing interests. Campaign finance cases are no exception.

Indeed, even the Supreme Court has characterized the scrutiny applicable to burdens upon

associational freedoms—and contribution limits in particular—in multiple, somewhat

ambiguous, ways. In McConnell, for example, the Court noted, “[w]hen the Government burdens

the right to contribute, we apply heightened scrutiny.” 540 U.S. at 231 (emphasis supplied). In

Randall v. Sorrell, the Court invalidated Vermont’s contribution limits because “they fail to

satisfy the First Amendment's requirement of careful tailoring.” 548 U.S. at 237 (citing Buckley,

at 25-30) (emphasis supplied). And an important First Amendment ruling, NAACP v. Alabama,

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noted that "[s]tate action which may have the effect of curtailing the freedom to associate is

subject to the closest scrutiny." 357 U.S. 449, 460-61 (1958) (emphasis supplied). Thus, the

standard for constitutionality is fact-bound and not a bright-line test.

The Supreme Court noted as much in the specific context of Buckley’s “closely drawn”

requirement, recognizing that “[p]recision about the relative rigor of the standard to review

contribution limits was not a pretense of the Buckley per curiam opinion...Under Buckley's

standard of scrutiny, a contribution limit involving significant interference with associational

rights could survive if the Government demonstrated that contribution regulation was closely

drawn to match a sufficiently important interest, though the dollar amount of the limit need not

be fine tuned.” Nixon v. Shrink Mo. Gov't Pac, 528 U.S. 377, 386 (2000) (quotations and

citations omitted) (emphasis supplied).

B. The presence of such flexibility does not eliminate the tailoring requirement, but

rather, reinforces it.

Not in spite of, but because of, a flexible approach to intermediate constitutional scrutiny,

courts should be vigilant in considering the contours of a particular as-applied challenge. Kovacs

v. Cooper, 336 U.S. 77, 96 (1949) (Frankfurter, J., concurring) (objecting, in the First

Amendment context, to “mechanical jurisprudence through the use of oversimplified formulas”).

Thus, a requirement of proportionality between the government’s anti-corruption interest and the

extent to which contribution limits burden First Amendment rights pervades the Court’s

construction and application of the “closely drawn” requirement. 

For example, in the disclosure context, the Buckley Court noted that “[t]hese are not

insignificant burdens on individual rights, and they must be weighed carefully against the

interests which Congress has sought to promote by this legislation.” 424 U.S. at 68. Similarly,

Randall v. Sorrell’s invalidation of Vermont’s contribution limits turned on the fact that “they

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impose burdens upon First Amendment interests that (when viewed in light of the statute's

legitimate objectives) are disproportionately severe.” Id. at 236-237 (2006) (parenthesis in

original). See also Davis v. FEC, 554 U.S. 724, 744 (2008) (in applying exacting scrutiny to

disclosure requirements, “the strength of the governmental interest must reflect the seriousness

of the actual burden on First Amendment rights.”)

Appellate courts hearing as-applied challenges to contribution limits further illustrate that

tailoring is required to survive a “closely drawn” analysis. For example, the Fourth Circuit

recently found a $4,000 contribution limit unconstitutional as applied to an independent

expenditure committee because the limit was improperly tailored. The court noted, “[a]s one

moves away from the case in which a donor gives money directly to a candidate...the state's

interest in preventing corruption necessarily decreases. This is because the danger that

contributions will be given ‘as a quid pro quo for improper commitments from the candidate’ is

simply not as real when the candidate himself is removed from the process.” N.C. Right to Life,

Inc. v. Leake, 525 F.3d 274, 291-292 (4th Cir. 2008) (quoting Buckley, 424 U.S. at 47). 

Thus, although there is some ambiguity in the standard, that ambiguity exists precisely to

allow courts to review a law that burdens a First Amendment right in the particular context of

both that law’s severity and the proximity of the abridged right to “the state’s interest in

preventing corruption.” N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 291-292 (4th Cir. 2008).

Nevertheless, there is no way to grant the FEC’s motion without eliminating the

requirement of any tailoring whatsoever, despite the clear recognition that government action in

furtherance of its anti-corruption interest must not be “disproportionately severe” in light of the

First Amendment rights at stake. Randall v. Sorrell at 236-237. The Commission cannot

demonstrate the requisite proportionality, as it has provided no evidence of tailoring. In the

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words of the Supreme Court, while it is true that “[t]he quantum of empirical evidence needed to

satisfy heightened judicial scrutiny...will vary up or down with the novelty and plausibility of

the justification raised...[w]e have never accepted mere conjecture as adequate to carry a First

Amendment burden.” Nixon v. Shrink Mo., 528 U.S. at 391-393. Yet that is all the FEC offers

here.

C. The FEC further mangles the “closely drawn” analysis by alleging that this

Court engaged in “something akin to narrow tailoring.”

The FEC devotes considerable space in its Motion to arguing that this Court applied

“something akin to narrow tailoring” to its review of 2 U.S.C. § 431-57. Mot. to Alt. at 11. This

argument misreads the pleadings, the law, and the opinion of this Court. 

i. Neither the parties nor this Court argued for or applied

“something akin to narrow tailoring.”

Neither the LNC nor this Court’s Memorandum Opinion argues for or applies

“something akin to narrow tailoring.” The LNC recognizes that the challenged statute is not

subject to strict scrutiny, and this Court noted that “limits on campaign expenditures are subject

to strict scrutiny. But limits on contributions to candidates and political parties are subject to less

rigorous scrutiny and are valid if they are closely drawn to meet a sufficiently important

governmental interest.” Mem. Op. at 15 (internal citations and quotation marks omitted) 9

(emphasis in original). 

The FEC offers two points to support its argument that this Court applied “something

akin to narrow tailoring.” First, it alleges that “this Court’s ruling would require the Commission

 Indeed, this Court suggested that the applicable standard is “intermediate scrutiny,” Mem. Op. 9

at 15, though it is not at all clear from the campaign finance jurisprudence whether the “closely

drawn to a sufficiently important government interest” requirement is akin to “intermediate

scrutiny” as conventionally understood. See infra (noting the myriad ways the Supreme Court

has characterized the constitutional scrutiny applicable to contribution limits). This is

particularly so in the context of both as applied challenges and the unique nature of bequests.

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to prove an actual quid pro quo arrangement, or special access or benefits that make such an

arrangement more likely, to justify applying the Contribution Limit to Burrington’s bequest.”

Mot. to Alt. at 11. This is not so. This Court instead found that the “LNC makes a persuasive

argument that the Burrington bequest does not implicate any valid anti-corruption concerns, and

the FEC did not really respond to this argument.” Id. In this as-applied challenge, certification

was not clear error, given that the FEC failed to allege any facts to indicate that the anticorruption interest would be furthered by prohibiting the LNC from receiving the entire

Burrington bequest at once. Mem. Op. at 27-28. This, again, suggests that there may be no

possibility that the Burrington request would further valid anti-corruption concerns.

ii. The FEC’s badly misstates the law in claiming that, if a

court even considers the existence of “less restrictive means

to address the government interest at issue,” it engages in

narrow tailoring.

In support of its contention that this Court applied the incorrect standard of review, the

FEC also asserts that a “search for less restrictive means to address the government interest at

issue is...a hallmark of narrow tailoring.” Mot. to Alt. at 12. The Commission then concludes

that it was clear error for this Court to even consider such alternatives, since, “[n]either Congress

nor the Commission was required to explore alternative methods for combating corruption and

its appearance.” Id. But mere consideration of less restrictive alternatives does not transform a

“closely drawn” analysis, or any other type of non-strict-scrutiny review, into narrow tailoring

analysis.

It is true that a “least restrictive means” test pervades strict scrutiny jurisprudence. But

courts have also considered the less restrictive means available to further a particular

government interest in assessing constitutionality in various contexts that do not implicate strict

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scrutiny. Indeed, this can prove crucial in determining whether any measure of

tailoring—narrow or otherwise—is present.

For example, in the Fourth Circuit’s N.C. Right to Life, Inc. v. Leake “closely drawn”

analysis, the court considered that “the state neglected the use of a more narrowly tailored

regulatory option: applying contribution limits to independent expenditure committees shown to

have abused their corporate form.” 525 F.3d at 306. This was one factor in reaching a ruling that

a particular contribution limit was unconstitutional as applied to an independent expenditure

committee. See also, e.g., McConnell v. FEC, 540 U.S. 93, 231-232 (2003) (in facial challenge

invalidating certain limits on contributions by minors, the Court considered, inter alia, that

“[s]tates have adopted a variety of more tailored approaches--e.g., counting contributions by

minors against the total permitted for a parent or family unit, imposing a lower cap on

contributions by minors, and prohibiting contributions by very young children. Without deciding

whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps

too broadly.”); United States v. Alvarez, 132 S. Ct. 2537, 2540 (2012) (invalidating the Stolen

Valor Act under the First Amendment exacting scrutiny, holding, “when the Government seeks

to regulate protected speech, the restriction must be the least restrictive means among available,

effective alternatives.”) (internal citations and quotation marks omitted).

Finally, the FEC’s cavalier attitude toward tailoring is particularly problematic in a

constitutional context which Congress took pains to recognize as exceptionally important.

Indeed, the very existence of § 437h’s provision for certifying questions to the en banc Court of

Appeals demonstrates the importance of the issues within the statute’s reach. See, e.g.;

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).

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Conclusion

For the foregoing reasons, the Commission’s motion to alter or amend should be denied.

Dated: April 29, 2013 Respectfully submitted,

Allen Dickerson Alan Gura

Center for Competitive Politics Gura & Possessky, PLLC

124 S. West Street, Suite 201 101 N. Columbus Street, Suite 405

Alexandria, Virginia 22314 Alexandria, Virginia 22314

703.894.6800/Fax: 703.894.6811 703.835.9085/Fax: 703.997.7665

adickerson@campaignfreedom.org alan@gurapossessky.com

 By: /s/ Allen Dickerson By: /s/ Alan Gura 

Allen Dickerson Alan Gura

 Attorneys for Plaintiff

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Case 1:11-cv-00562-RLW Document 51 Filed 04/29/13 Page 16 of 17
CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of April 2013, I caused the foregoing documents to

be filed electronically using the CM/ECF system, causing notice to be sent to the parties listed

below:

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

aherman@fec.gov 

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

Deputy General Counsel – Law 

lstevenson@fec.gov 

Kevin Deeley

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Kevin P. Hancock 

Attorney

khancock@fec.gov 

Attorneys for Defendant. 

/s/ Alan Gura 

Alan Gura

Attorney for Plaintiff

Case 1:11-cv-00562-RLW Document 51 Filed 04/29/13 Page 17 of 17