UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

LAURA HOLMES, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 14-1243 (RMC)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

Response to Order to Show Cause

Plaintiffs Laura Holmes and Paul Jost hereby respond to this Court’s October 20, 2014

Order directing them to show cause “why the Court should not convert [its] Order denying 

Plaintiffs’ Motion for a Preliminary Injunction into a final appealable Order denying Plaintiffs’ 

request to certify the constitutional issues to the United States Court of Appeals for the District 

of Columbia Circuit for en banc consideration.” Order on Mot. Prelim. Inj. (ECF No. 16).

Notwithstanding its denial of Plaintiffs’ motion, this Court’s mandate is to certify 

constitutional questions to the en banc Court of Appeals under the procedure prescribed by 2 

U.S.C. § 437h (transferred to 52 U.S.C. § 30110).1 See Compl., ¶ 5 (ECF No. 1); Civil Cover 

Sheet, VI (invoking § 437h). Because the standard for certification is substantially lower than 

that for denial of a preliminary injunction, district courts will at times deny preliminary relief,

only to then certify constitutional questions to the Court of Appeals. See, e.g., SpeechNow.org v. 

FEC, 567 F.Supp. 2d 70 (D.D.C. 2008) (denying plaintiffs’ motion to enjoin enforcement of 

1 Effective September 1, 2014, the provisions codified at 2 U.S.C. §§ 431-57 were transferred to 

52 U.S.C. §§ 30101-30146. This case was filed before September 1, 2014, thus, Plaintiffs’

citations have been to Title 2. For clarity, this Court also cited to Title 2 in its Memorandum 

Opinion. Plaintiffs continue that convention here.

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Case 1:14-cv-01243-RMC Document 17 Filed 11/03/14 Page 1 of 11
certain contribution limits); 2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) (certifying 

constitutional questions to the en banc D.C. Circuit).

Under § 437h, this Court lacks jurisdiction to decide the merits of this dispute. Instead, 

“the plain text of section 437h grants exclusive merits jurisdiction to the en banc court of 

appeals.” Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013) (per curiam) (emphasis 

supplied). Despite the statute’s clear and commanding language, “[i]n a § 437h case, the district 

court need not certify legal issues that have been resolved by the Supreme Court.” Khachaturian 

v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en banc). That is, under § 437h, the district court 

certifies questions that are “neither frivolous nor so insubstantial as to warrant dismissal for 

failure to state a claim.” Int’l Ass’n of Machinists and Aerospace Workers v. FEC, 678 F.2d 

1092, 1096 (D.C. Cir. 1982) (en banc). 

This Court has not concluded that Plaintiffs’ constitutional questions are resolved by 

Supreme Court precedent, nor that they are “frivolous” or “so insubstantial as to warrant 

dismissal for failure to state a claim.” 2 It has instead concluded that Plaintiffs did not satisfy the 

rigorous test necessary to obtain the extraordinary remedy of a preliminary injunction.

Converting the denial of Plaintiffs’ motion for preliminary relief into a denial of their 

certification request will deny Plaintiffs their constitutional and statutory rights to litigate the 

merits of their claims. Neither denial of preliminary relief nor denial of certification is an 

adjudication of the as-applied challenge Plaintiffs are mounting to FECA. Section 437h reserves 

that task to the Court of Appeals sitting en banc. Thus, Plaintiffs renew their request that this 

Court certify the constitutional questions raised here pursuant to § 437h.

2 In Cal. Med. Ass’n v. FEC, Justice Marshall described the cases that merit certification under § 

437h as those that are “neither insubstantial nor settled,” 453 U.S. 182, 192 n.14 (1981). This 

suggests that, in the § 437h context, “frivolous” and “insubstantial” have the same meaning.

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ARGUMENT

I. Plaintiffs renew their request that this Court certify constitutional questions to the 

en banc D.C. Circuit pursuant to 2 U.S.C. § 437h.

A. Plaintiffs challenge FECA and its amendments.

In filing this case, Plaintiffs invoked jurisdiction under 2 U.S.C. § 437h (see, e.g., Compl. 

¶5; Civil Cover Sheet at VI.) Under that statute,

any individual eligible to vote in any election for the office of President may institute 

such actions in the appropriate district court of the United States, including actions for 

declaratory judgment, as may be appropriate to construe the constitutionality of any 

provision of this Act. The district court immediately shall certify all questions of 

constitutionality of this Act to the United States court of appeals for the circuit involved, 

which shall hear the matter sitting en banc.

(emphasis supplied). Plaintiffs have standing under § 437h because they are eligible to vote in 

the 2016 Presidential election. See Holmes Decl., ¶ 5 (ECF 6-2); Jost Decl., ¶ 5 (ECF 6-3).

In Buckley v. Valeo, the D.C. Circuit outlined the district courts’ role in cases brought

under § 437h: (1) identify the constitutional issues raised by the complaint; (2) take evidence; (3) 

make factual findings; and (4) certify constitutional questions to the D.C. Circuit. 519 F.2d 817, 

818 (D.C. Cir. 1975). This procedure is neither novel nor extraordinary, and has been 

implemented as a matter of course throughout FECA’s lifespan. Indeed, in the D.C. Circuit, there 

is no other means of adjudicating novel challenges to FECA. Wagner, 717 F.3d at 1011.

B. The standard for certification under § 437h is substantially more permissive 

than the standard for entry of a preliminary injunction.

As the FEC has noted, “[a] preliminary injunction is ‘an extraordinary remedy that may 

only be awarded upon a clear showing that the plaintiff is entitled to such relief....[It is] never 

awarded as of right. A plaintiff seeking a preliminary injunction must establish that he is likely to 

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 

relief, that the balance of equities tips in his favor, and that an injunction is in the public 

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interest.’” Op. at 9 (ECF No. 12) (citing Winter v. NRDC, Inc., 555 U.S. 7, 22, 24, 20 (2008)). 

Given the exceptional nature of this remedy, “[t]he ‘movant has the burden to show that all four 

factors...weigh in favor of the injunction.’” Mem. Op. at 5 (ECF No. 15) (quoting Davis v. 

Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir 2009). 

By contrast, § 437h provides for review of certification requests under a much more 

permissive standard. Certification is required, with a limited exception for questions that are 

frivolous or matters of settled law. See, e.g., Cal. Med. Ass’n v. FEC, 453 U.S. at 192 n. 14. 

Thus, at this stage of this litigation, this Court need only make a threshold determination that 

Plaintiffs’ questions are neither frivolous nor already settled. See, e.g., Khachaturian v. FEC, 

980 F.2d at 331 (“the district court also must develop a record and make findings of fact 

sufficient to allow the en banc court to decide the constitutional issues”) (citation omitted); Int’l 

Ass’n of Machinists and Aerospace Workers v. FEC, 678 F.2d at 1096.

Consequently, the rigorous standard for preliminary relief at issue at the injunctive relief 

stage is distinct from this statutory path to en banc review. Certification is a matter of right 

established by Congress, not “an extraordinary remedy that may only be awarded upon a clear 

showing.” Winter, 555 U.S. at 22. It is not a multi-factor test, nor one that imposes a weighty 

burden on parties who seek it. By contrast, it is a presumption in favor of certification: “[o]nce a 

core provision of FECA has been reviewed and approved by the courts, unanticipated variations 

also may deserve the full attention of the appellate court.” Goland v. United States, 903 F.2d 

1247, 1257 (9th Cir. 1990). Moreover, “[a] preliminary injunction is just that—preliminary. It 

does not substitute for a trial, and its usual office is to hold the parties in place until a trial can 

take place; the proceedings are streamlined, intentionally, because the fuse is often so short.” 

Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (citations omitted)).

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Even if this Court does not conclude that Plaintiffs articulate a certifiable question, if the 

facts of their case present such a question, certification should still occur. Indeed, “[t]his Court 

has the power, and apparently the duty, to identify the constitutional issues and to reframe the 

question as necessary so that any proper non-frivolous question is certified to the en banc Court 

of Appeals.” Libertarian Nat’l. Comm. v. FEC, 930 F. Supp. 2d. 154, 169 (D.D.C. 2013)

(granting in part and denying in part plaintiff’s request to certify questions under § 437h). In 

LNC v. FEC, Judge Wilkins found that that the plaintiff’s proposed certified question was so 

broadly written as to be foreclosed by facial rulings of the Supreme Court. Nevertheless, the 

Court concluded that “on th[o]se facts, it appear[ed] that the anti-corruption interests that would 

be implicated by [the contribution limit challenged there] may be minimal.” 930 F. Supp. 2d at 

171. Thus, “[a]fter a careful review of the parties’ positions, the facts, and the current state of the 

law in this area, this Court conclude[ed] that although the question presented by the LNC for 

certification does not merit review by the en banc Court of Appeals, there is a valid, narrower 

constitutional question raised by the [facts of the case] that presents an as-applied challenge that 

should be certified.” Id. The Court reiterated that it “does not relish requiring our Court of 

Appeals to sit en banc, but at the same time it has a duty under 2 U.S.C. § 437h to certify 

appropriate constitutional issues.” Id.

C. This case is neither frivolous, nor does it raise settled questions.

1. As-applied challenges to federal contribution limits are appropriate.

The Supreme Court’s holding in Doe v. Reed reiterates the importance of the as-applied 

path to constitutional litigation, particularly in the election law context. 561 U.S. 186 (2010). The 

Court “note[ed]—as we have in other election law disclosure cases—that upholding the law 

against a broad-based challenge does not foreclose a litigant's success in a narrower one.” Id. at 

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201 (citation omitted). See also, e.g., Wisc. Right to Life v. FEC, 546 U.S. 410, 411-12 (2006) (in 

upholding a BCRA provision against a facial attack, the Court “did not purport to resolve future 

as-applied challenges.”) Here, the fact that the individual contribution limits have been upheld in 

previous cases does not mean that the limits’ bifurcation is constitutional as applied to Plaintiffs.

Nor does it mean that the bifurcation itself has been upheld in previous cases.

2. When federal law allows some contributors to give $5,200 to a 

candidate for use in the general election, but denies other contributors 

that same ability, it violates the First Amendment in a manner that 

has not been addressed by the Supreme Court.

Facially, FECA’s contribution limits only “marginally restrict[] Plaintiffs’ freedom of 

association,” Mem. Op. at 7; Buckley v. Valeo, 424 U.S. 1, 20-21 (1976) (per curiam). Plaintiffs 

do not dispute that “[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 abridgement of associational freedoms.” Mem. Op. at 6 

(quoting Buckley, 424 U.S. at 25). But the bifurcated limit is not closely drawn to avoid 

unnecessary abridgment of associational freedoms in Plaintiffs’ case. That is because “if a party 

candidate has no opposition in the primary election, one may contribute $2,600 to the primary 

and $2,600 to the general election and the candidate can use both amounts ($5,200) in the 

general election alone.” Mem. Op. at 3. The Plaintiffs, however, cannot contribute $5,200 for 

their preferred candidates to use in the general election alone. This result alone demonstrates a 

lack of tailoring.

As this Court noted, “there is certainly no rule requiring that all candidates have equal 

funding. To the contrary, inequity in campaign finances is an inherent part of elections.” Mem. 

Op. at 9 (citing Davis v. FEC, 554 U.S. 724, 742 (2008)). But here that inequity results from the 

operation of a federal statute. This Court stated that because “FECA simply makes uniform the 

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amount a person can contribute to a candidate on a per-election basis”, “[t]his restriction is 

closely drawn to match a sufficiently important state interest and does not overly burden 

Plaintiffs’ freedom to associate.” Mem. Op. at 9. But, as applied here, the bifurcated limit does 

the opposite: it allows supporters of candidates without primary challengers to give twice as 

much money for the general election. This is not simply an exercise in legislative discretion with 

respect to setting dollar amounts, which courts lack a “scalpel to probe.” Buckley, 424 U.S. at 30; 

Randall v. Sorrell, 548 U.S. 230, 247, 248 (2006). It doubles the scope of association that certain 

contributors enjoy, wholly by virtue of government design.

The Supreme Court has not considered this result: “neither Congress nor McCutcheon 

approved contributions of $5,200 in a single election” Mem. Op. at 8. Yet, precisely those 

contributions are taking place here—although only for one side of a two-candidate contest. As 

this Court notes, “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.” Mem Op. at 8 

(citing Buckley, 424 U.S. at 26-27). If anything, this demonstrates that Buckley did not 

contemplate a situation like the Plaintiffs’—where it is FECA itself that is creating an unfair 

advantage for certain candidates. Thus, Plaintiffs’ as-applied First Amendment challenge does 

not raise a settled question.

3. When federal law allows some contributors to give $5200 to a 

candidate for use in the general election, but denies other contributors 

that same ability, it denies those disfavored contributors equal 

protection of the laws, and does so in a way that has not been 

addressed by the Supreme Court.

First, the Supreme Court “has not addressed the scrutiny applicable to a challenge to 

restrictions on political contributions under an equal protection rubric.” Mem. Op. at 10. This in 

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and of itself suggests that Plaintiffs’ equal protection challenge is not a matter of settled law.

More pointedly, Plaintiffs’ equal protection argument, like their First Amendment argument, was 

not anticipated by the Buckley Court. In fact, the Court’s assessment that FECA “applies the 

same limitations on contributions to all candidates regardless of their present occupations, 

ideological views, or party affiliations” illustrates that it has not considered the factual scenario 

here, where party affiliations in part determine with how much contributors may (or may not) 

give. Buckley, 424 U.S. at 31. Tellingly, the 11 C.F.R. § 110.3(c)(3) provision allowing for 

transfer of funds from primary to general election campaigns under was not even added to the 

Federal Register until 1989, more than a decade after the Buckley decision was handed down.

Thus, like its First Amendment challenge, Plaintiffs’ as-applied due process challenge 

does not raise a settled question.

D. There is ample support for certification of Plaintiffs’ questions. 

The recent SpeechNow.org v. FEC case—which, like this one, challenged the as-applied 

enforcement of certain contribution limits—is instructive. In SpeechNow, this Court was asked to 

impose a preliminary injunction, but “found that the contribution limits on independent 

expenditure groups [the subject of that challenge] supported a substantial state interest, and that 

the plaintiffs were unlikely to succeed on the merits.” 2009 U.S. Dist. LEXIS 89011 at *2.

Initially, the SpeechNow district court noted that “[b]ecause the denial of a preliminary 

injunction is appealable as of right...plaintiffs’ certification motion will also be denied. Plaintiffs 

should take up their request directly with the Court of Appeals.” 567 F. Supp. 2d at 82. But after 

the plaintiffs submitted a motion to reconsider, emphasizing the mandatory and jurisdictional

nature of § 437h, the Court certified the questions presented. In so doing, Judge Robertson noted: 

“[t]he task before me is not to answer any constitutional questions, or to render a judgment of 

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any kind. Instead, I am to make findings of fact that will allow the Court of Appeals to answer 

the constitutional questions I certify.” 2009 U.S. Dist. LEXIS 89011 at *2. SpeechNow is 

instructive here. Although this Court denied Plaintiffs’ request for a preliminary injunction, the 

Supreme Court has not addressed the questions Plaintiffs present. 

This Court’s own doubts about its merits jurisdiction highlight the importance of the §

437h process. The Memorandum Opinion noted that Plaintiffs moved for a preliminary 

injunction, but “the Court’s jurisdiction over the Complaint is based on 2 U.S.C. § 437h, which 

provides that the district court should certify all questions of FECA’s constitutionality to the 

Court of Appeals for en banc review. According to the D.C. Circuit, it remains an open question 

whether ‘section 437h deprives the district court of authority to grant [preliminary injunctive] 

relief based on a constitutional challenge to FECA.’” Mem. Op. at 4-5, n. 3 (quoting Wagner, 

717 F.3d at 1017 n.9 (D.C. Cir. 2013). This Court continued that it “does not address this issue 

given its denial of Plaintiffs’ motion for a preliminary injunction.” Id. (citation omitted). But that

is precisely Plaintiffs’ point. If this Court lacks merits jurisdiction, certification is all the more 

important. It is the only avenue for review of the constitutional questions presented. What’s 

more, it is the specific procedure Congress provided to streamline review of questions it 

recognized as exceptionally important.

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CONCLUSION

Plaintiffs’ case raises nonfrivolous issues of first impression. Thus, this Court should not 

convert its October 20th Order to one denying their motion to certify questions under 2 U.S.C. § 

437h. Instead, it should to certify the constitutional questions presented here.

Dated this 3rd day of November, 2014.

Respectfully Submitted,

s/Allen Dickerson

Allen Dickerson, DC Bar No. 1003781 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314 

Phone: 703.894.6800 

Facsimile: 703.894.6811 

adickerson@campaignfreedom.org 

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of November, 2014, I filed the foregoing Plaintiffs’ 

Response to Order to Show Cause in the above-captioned action via this Court’s ECF system, 

causing notice to be served upon the following:

Kevin Deeley 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

kdeeley@fec.gov 

Counsel for Defendant 

/s/ Allen Dickerson 

Allen Dickerson, DC Bar No. 1003781 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

Phone: 703.894.6800 

Facsimile: 703.894.6811 

adickerson@campaignfreedom.org 

Counsel for Plaintiffs

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