PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1455

STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY DEMOCRATS, 

(“Stop Reid”); TEA PARTY LEADERSHIP FUND; ALEXANDRIA 

REPUBLICAN CITY COMMITTEE,

Plaintiffs - Appellants,

AMERICAN FUTURE PAC,

Intervenor/Plaintiff – Appellant,

and

NIGER INNIS; NIGER INNIS FOR CONGRESS,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Anthony J. Trenga, 

District Judge. (1:14-cv-00397-AJT-IDD)

Argued: December 8, 2015 Decided: February 23, 2016

Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth 

K. DILLON, United States District Judge for the Western District 

of Virginia, sitting by designation.

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Affirmed in part; vacated and remanded in part with instructions 

by published opinion. Chief Judge Traxler wrote the opinion, in 

which Judge Shedd and Judge Dillon joined.

ARGUED: Michael T. Morley, COOLIDGE-REAGAN FOUNDATION, 

Washington, D.C., for Appellants. Kevin Paul Hancock, FEDERAL 

ELECTION COMMISSION, Washington, D.C., for Appellee. ON BRIEF: 

Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for 

Appellants Stop Reckless Economic Instability Caused by 

Democrats, Tea Party Leadership Fund, and Alexandria Republican 

City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas, 

for Intervenor-Appellant American Future PAC. Lisa J. 

Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting 

Associate General Counsel, Harry J. Summers, Assistant General 

Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for 

Appellee.

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TRAXLER, Chief Judge:

Four political committees – “Stop Reckless Economic 

Instability Caused By Democrats” (“Stop PAC”), “Tea Party 

Leadership Fund” (“the Fund”), “Alexandria Republican City 

Committee” (“ARCC”), and “American Future PAC” (“American 

Future”) (collectively, “Appellants”) – appeal a district court 

order granting summary judgment against them in their claims 

challenging the constitutionality of certain contribution limits 

established by the Federal Election Campaign Act of 1971 

(“FECA”), see 52 U.S.C. §§ 30101–30146. We conclude that two of 

the three claims became moot before the district court granted 

summary judgment, and we therefore vacate the merits judgment on 

those counts and remand to the district court with instructions 

to dismiss them for lack of subject-matter jurisdiction. 

Regarding the third claim, we affirm.

I.

FECA regulates many different types of donors and 

recipients. See 52 U.S.C. §§ 30116, 30118-19, 30121 (formerly 2 

U.S.C. §§ 441a, 441b-441c, 441e). To understand the issues 

before us in this appeal, it is necessary to understand some of 

FECA’s basic concepts and limits. 

To begin, FECA defines a “political committee” as “any 

committee, club, association, or other group of persons” that, 

during a calendar year, received contributions or made 

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expenditures in excess of $1,000. 52 U.S.C. § 30101(4)(A) 

(formerly 2 U.S.C. § 431(4)(A)); see The Real Truth About 

Abortion, Inc. v. FEC, 681 F.3d 544, 555 (4th Cir. 2012). FECA 

defines “expenditures” and “contributions” as encompassing 

spending or fundraising “for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i), 

(9)(A)(i) (formerly 2 U.S.C. § 431(8)(A)(i), (9)(A)(i)); see 

also Buckley v. Valeo, 424 U.S. 1, 79 (1976) (limiting FECA’s 

political-committee requirements to organizations that are

controlled by a candidate or whose “major purpose” is to 

nominate or elect a candidate); The Real Truth About Abortion, 

Inc., 681 F.3d at 555. A group that has met the politicalcommittee criteria must register with the Federal Election 

Commission (“FEC”). See 52 U.S.C. § 30103(a) (formerly 2 U.S.C. 

§ 433(a)). 

There are different types of political committees. Some 

are associated with a particular candidate or entity. See, 

e.g., 52 U.S.C. § 30101(14) (providing that a “national 

committee” is a political committee responsible for the day-today operation of a national political party); 52 U.S.C. 

§ 30101(15) (providing that a “State committee” is a political 

committee that is responsible for the day-to-day operation of a 

political party at the state level); 52 U.S.C. § 30102(e)(1) 

(providing that each candidate must designate a political 

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committee to serve as the candidate’s “principal campaign 

committee”). And others are not associated with any candidate 

or entity (“non-connected political committees”).

FECA sets different contribution limits for different 

classes of donors and recipients. A contribution made by a nonconnected political committee to an individual candidate is 

governed by the restriction limiting contributions by “persons” 

generally. 52 U.S.C. § 30116(a)(1)(A). “Persons” include 

“individual[s], partnership[s], committee[s], association[s], 

corporation[s], labor organization[s], or any other 

organization[s] or group[s]” other than the federal government. 

52 U.S.C. § 30101(11). In 2014, the inflation-adjusted limit 

for contributions by “persons” was $2,600 per election, with 

primaries and general elections counting as separate elections.1 

However, non-connected political committees, unlike other types 

of persons, qualified for an elevated per-election limit of 

$5,000 on contributions to individual candidates if and when 

 1 52 U.S.C. § 30116(a)(1)(A) sets the per-election limit at 

$2,000. However, that amount had been adjusted for inflation to 

$2,600 by the time the parties filed their memoranda in the 

district court regarding summary judgment, see Price Index 

Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8,530-02, 

8,532 (Feb. 6, 2013), and it was adjusted on February 3, 2015, 

to $2,700, see Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 80 Fed. Reg. 5,750-02, 5,752 (Feb. 3, 2015). See 

also 52 U.S.C. § 30116(c) (providing for periodic inflation 

adjustment of certain limits). 

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they satisfied three criteria: They must have “been registered 

[with the FEC] for a period of not less than 6 months” (the 

“waiting period”), “received contributions from more than 50 

persons,” and “made contributions to 5 or more candidates for 

Federal office.” 52 U.S.C. § 30116(a)(4); see 52 U.S.C. § 

30116(a)(2)(A). A political committee satisfying these criteria 

is referred to as a “multicandidate political committee” 

(“MPC”). Id.

FECA also limits contributions that persons and political 

committees can make to political party committees. See 52 

U.S.C. § 30116(a)(1)(B), (D), (a)(2)(B)-(C). With regard to 

contributions to these committees, the limits decrease when the 

non-connected political committee becomes an MPC. When this 

case was commenced in April 2014, persons (including nonconnected political committees that did not qualify as MPCs) 

could contribute $32,400 per year to national party committees 

and $10,000 combined to state political party committees and 

their local affiliates, while the corresponding limits for MPCs 

were $15,000 and $5,000. See id.; 11 C.F.R. § 110.3(a)(1); 

Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8,530-02, 8,532 (Feb. 6, 2013). 

On December 16, 2014, Congress amended FECA to create a new 

category of limits. Under the amended law, national party 

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committees can create up to three segregated accounts to fund 

their presidential nominating convention, building headquarters, 

and election-related legal expenses. See Consolidated and 

Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 

Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified 

as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)). 

The annual limits for contributions made to such segregated 

accounts are three times the limits on other contributions to 

national party committees. See id. 

II.

The plaintiffs in this suit, Stop PAC, the Fund, and ARCC, 

filed their initial complaint against the FEC on April 14, 2014, 

and filed an amended complaint on July 7, 2014 (the “Amended 

Complaint”). The Amended Complaint alleged the following facts 

regarding the parties.

Plaintiff Stop PAC is a non-connected political committee 

that registered with the FEC on March 11, 2014. As of April 14, 

2014, Stop PAC had over 150 contributors and had made 

contributions to five candidates for federal office. On or 

around April 4, 2014, Stop PAC contributed the maximum $2,600 to 

candidate Niger Innis in the Nevada Primary for the Republican 

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nomination for a seat in the U.S. House of Representatives.2 On 

or around June 16, 2014, Stop PAC contributed the same amount to 

candidate Dan Sullivan in the Alaska Primary for the Republican 

nomination for the U.S. Senate. Stop PAC wished to contribute 

more to each candidate — as it could have had it been an MPC —

but its waiting period would not expire until September 11, 

2014, after the primaries were held.

Stop PAC also contributed $2,600 to Congressman Joe Heck, 

Republican nominee for Congress from Nevada’s 3rd Congressional 

District, in connection with his 2014 general election. Stop 

PAC wished to contribute more to Heck immediately, but it was 

prohibited from doing so until its waiting period expired.

The Fund is a non-connected MPC that registered with the 

FEC in 2012, has over 100,000 contributors, and has contributed 

to dozens of federal candidates. Because the Fund was an MPC, 

the maximum amounts it could contribute annually to a state 

political party committee and its local affiliates and to a 

national party committee each year were $5,000 and $15,000, 

respectively. See 52 U.S.C. § 30116(a)(2)(B)-(C); 11 C.F.R. § 

110.3(a)(1). 

 2 Innis and his campaign committee were plaintiffs in the 

original complaint, but the district court granted a motion to 

voluntarily dismiss them.

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Plaintiff ARCC is a local political party committee 

affiliated with the Virginia Republican State Committee, which 

is a state political party committee. The Fund contributed the 

statutory maximum of $5,000 to ARCC on April 4, 2014. For the 

year 2014, the Fund wished to contribute an additional $5,000 to 

ARCC and $32,400 to the National Republican Senatorial Committee 

(“NRSC”), both of which FECA would have allowed had the Fund not 

yet become an MPC. See 52 U.S.C. § 30116(a)(1)(B), (D), 

(a)(2)(B)-(C); see 78 Fed. Reg. at 8,532.

The Amended Complaint contains three claims, each of which 

seeks declaratory and injunctive relief. Counts I and II 

pertain to FECA’s $2,600-per-election limit on contributions

made to individual candidates by political committees that have 

not yet become MPCs. See 52 U.S.C. § 30116(a)(1)(A). In Count 

I, Stop PAC alleges that that limit, as applied to Stop PAC,

violates the equal protection component of the Fifth Amendment’s

Due Process Clause because FECA applies a higher limit to MPCs 

than it does to political committees that have not completed the 

waiting period but have satisfied the other MPC criteria. In 

Count II, Stop PAC alleges that the waiting period, as applied 

to Stop PAC, violates its First Amendment rights to free speech 

and free association. In Count III, ARCC and the Fund allege 

that FECA’s annual limits on contributions made by MPCs to 

national party committees ($15,000), see 52 U.S.C. 

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§ 30116(a)(2)(B), and to state party committees ($5,000), see 52 

U.S.C. § 30116(a)(2)(C), violate the equal protection component 

of the Fifth Amendment’s Due Process Clause insofar as political 

committees that have not yet completed the waiting period but 

that have satisfied the other MPC criteria enjoy the higher 

limits of $32,400 and $10,000, respectively.

On August 27, 2014, the plaintiffs moved to join American 

Future in the suit as an intervening plaintiff concerning Counts 

I and II. American Future is a non-connected political 

committee that registered with the FEC on August 11, 2014. As 

of August 22, 2014, American Future had raised $5,473 from 54 

contributors. It contributed $2,600 to candidate Tom Cotton’s 

general election campaign in Arkansas for the U.S. Senate, and 

$100 each to four other candidates. American Future wished to 

contribute $2,000 more to Cotton for the 2014 general election, 

but FECA prevented it from doing so since American Future’s 

waiting period was not due to expire before the November 2014 

election. American Future also wished to contribute more than 

$2,600 to Cotton immediately but could not do so until he filed 

paperwork concerning the 2016 primary election. Finally, 

American Future desired to contribute more than $2,600 as soon 

as possible to other candidates for their 2016 primaries. On 

October 6, 2014, the district court entered an order allowing 

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American Future to intervene pursuant to Federal Rule 24. See

Fed. R. Civ. P. 24. 

On September 19, 2014, before the district court ruled on 

the plaintiffs’ joinder motion, the parties filed cross-motions 

for summary judgment. In support of its motion, the FEC, in 

addition to arguing that none of the challenged limitations were 

unconstitutional, asserted that the district court lacked 

subject-matter jurisdiction over Stop PAC’s claims (Counts I and 

II). In particular, it argued that Stop PAC’s claims should be 

dismissed for lack of standing since it caused its own injury by 

not registering as early as November 2013, in time to become an 

MPC before the three elections concerning which it wished to 

make additional contributions. The FEC also argued that Stop 

PAC’s claims were moot because it became an MPC on September 11, 

2014, and was thus no longer subject to the limit that it 

challenged, and never would be again.

In response, the plaintiffs contended that Stop PAC 

established standing. In that regard, they objected to the 

FEC’s attempt to “effectively blame Stop PAC for failing to 

organize itself more than six months before the primaries,” when 

in fact “[m]ost ordinary people are not especially interested in 

becoming involved in the political process until shortly before 

an election.” Memo. in Opp’n to FEC’s Mot. for Summ. J. 3. As 

for the FEC’s suggestion that Stop PAC’s claims were moot, the 

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plaintiffs invoked the exception for claims that are “capable of 

repetition, yet evading review.” Southern Pac. Term. Co. v. 

ICC, 219 U.S. 498, 515 (1911). Although the plaintiffs 

acknowledged that this exception is generally applied only when 

the plaintiff itself faces a risk that it will be subject to the 

same challenged provisions in the future, the plaintiffs argued 

that the same-plaintiff requirement need not be met in electionrelated cases.

On February 24, 2015, as the parties waited for the 

district court to rule on their summary judgment motions, the 

FEC filed a notice with the district court raising additional 

arguments regarding mootness. In the notice, the FEC informed 

the district court that on February 11, 2015, American Future 

had become an MPC. As it had argued regarding Stop PAC, the FEC 

contended that American Future, as an MPC, was no longer 

affected by the limit it was challenging and never would be 

again. The FEC’s filing also informed the court of the December 

16, 2014 change in the law allowing contributions to the 

specified segregated accounts of national parties of three times

the limits on other contributions to national party committees. 

The FEC maintained that that change mooted the Fund’s challenge 

to the limits on an MPC’s contributions to national party 

committees.

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The district court subsequently granted summary judgment to 

the FEC on all claims. See Stop Reckless Econ. Instability 

Caused By Democrats v. FEC, 93 F. Supp. 3d 466 (E.D. Va. 2015) 

(“Stop”). Regarding each of the three claims, the district 

court assumed that the FEC’s arguments regarding standing and 

mootness failed, see id. at 472-73, and ruled that the FEC was 

entitled to summary judgment on the merits, see id. at 473-77. 

As for Count II, alleging a First Amendment violation, the 

district court concluded that “Stop PAC and American Future 

cannot show that they have suffered a cognizable constitutional 

injury as a result of the waiting period, even if they would 

have made a higher contribution, had they been permitted to do 

so.” Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1 (1976), 

and California Med. Ass’n v. FEC, 453 U.S. 182 (1981)). 

Regarding Counts I and III, alleging violation of the 

plaintiffs’ equal protection rights under the Fifth Amendment, 

the district court concluded that Stop PAC and the Fund were not 

similarly situated to each other, and thus that “FECA does not 

improperly discriminate among such committees” and “does not 

violate the plaintiffs’ rights under the Fifth Amendment.” Id.

at 477. The district court alternatively ruled that any 

discrimination was justified under either rational-basis or 

intermediate scrutiny. See id.

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III.

With regard to each of the three counts, Appellants argue 

that the district court erred in granting summary judgment 

against them. In response, the FEC maintains that the district 

court should never have addressed the merits of the claims 

because it lacked subject-matter jurisdiction over them. See

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time 

that it lacks subject-matter jurisdiction, the court must 

dismiss the action.”). Alternatively, the FEC argues that the 

district court’s decision regarding the merits was correct. 

“Without jurisdiction the court cannot proceed at all in 

any cause. Jurisdiction is power to declare the law, and when 

it ceases to exist, the only function remaining to the court is 

that of announcing the fact and dismissing the cause.” Ex parte 

McCardle, 74 U.S. 506, 514 (1868). Accordingly, the Supreme 

Court has stated in no uncertain terms that federal courts are 

not free to simply assume that they possess subject-matter 

jurisdiction and then proceed to decide the merits of the issues 

before them when their jurisdiction remains in doubt. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). 

Rather, federal courts must determine whether they have subjectmatter jurisdiction over a claim before proceeding to address 

its merits. See id. The district court erred in failing to 

follow this course in this case.

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We therefore begin our analysis by addressing the FEC’s 

contentions that the district court did not have subject-matter 

jurisdiction when it granted summary judgment to the FEC. 

Article III gives federal courts jurisdiction only over 

“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2, cl. 

1. “One essential aspect of this requirement is that any person 

invoking the power of a federal court must demonstrate standing 

to do so,” which “requires the litigant to prove that he has 

suffered a concrete and particularized injury that is fairly 

traceable to the challenged conduct, and is likely to be 

redressed by a favorable judicial decision.” Hollingsworth v. 

Perry, 133 S. Ct. 2652, 2661 (2013).

“To qualify as a case fit for federal-court adjudication, 

an actual controversy must be extant at all stages of review, 

not merely at the time the complaint is filed.” Arizonans for 

Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal 

quotation marks omitted). Accordingly, a case is moot “when the 

issues presented are no longer ‘live’ or the parties lack a 

legally cognizable interest in the outcome.” Chafin v. Chafin, 

133 S. Ct. 1017, 1023 (2013) (some internal quotation marks 

omitted).

A case that would otherwise be moot is not so if the 

underlying dispute is “capable of repetition, yet evading 

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review.” Southern Pac. Term. Co., 219 U.S. at 515. The Supreme 

Court has explained

that in the absence of a class action, the “capable of 

repetition, yet evading review” doctrine was limited 

to the situation where two elements combined: (1) the 

challenged action was in its duration too short to be 

fully litigated prior to its cessation or expiration, 

and (2) there was a reasonable expectation that the 

same complaining party would be subjected to the same 

action again. 

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam); 

see id. (holding that doctrine did not prevent the case from 

being moot because the “case, not a class action, clearly does 

not satisfy the latter element”). 

A.

Regarding Counts I and II, the FEC repeats its argument 

presented below that Stop PAC lacked standing to prosecute 

Counts I and II. The FEC also repeats its alternative 

contention that Counts I and II became moot once Stop PAC and 

Intervenor American Future became MPCs, since that change in 

status ensured that they would never again be bound by the limit 

they are challenging. We agree with this latter argument. See

United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011) 

(per curiam) (holding that exception’s same-complaining-party 

requirement was not met when plaintiff challenging special 

conditions of juvenile supervision had turned 21 and thus would 

“never again be subject to an order imposing [such] special 

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conditions”). Because we conclude that Counts I and II became 

moot before the district court granted summary judgment, we do 

not address the FEC’s contention that Stop PAC never established 

standing to assert these claims in the first place. See

Arizonans for Official English, 520 U.S. at 66-67 (declining to 

decide standing issue when claim was moot). 

Appellants do not deny that once Stop PAC and American 

Future became MPCs and the contribution limit they are 

challenging therefore ceased to apply to them, the district 

court was no longer in position to prevent any threatened injury 

(or provide redress for any past injury). Nevertheless, 

Appellants argue that the “capable of repetition, yet evading 

review” doctrine applied to prevent Counts I and II from 

becoming moot. In this regard, Appellants do not dispute the 

fact that there was no longer any reasonable expectation that 

they would be subject to the same limit again. Rather, they 

maintain that in election-related cases, the same-complainingparty element need not be satisfied. We disagree.

In support of their argument, Appellants rely primarily on 

Justice Scalia’s dissent in Honig v. Doe, 484 U.S. 305, 335-36 

(1988) (Scalia, J., dissenting). In the dissent, Justice 

Scalia cited abortion and election cases in which he argued the 

Court had “dispens[ed] with the same-party requirement” and 

“focus[ed] instead upon the great likelihood that the issue will 

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recur between the defendant and the other members of the public 

at large.” Id. (emphasis in original).3

Since Honig was decided, courts have taken different views 

regarding whether the cases cited in Justice Scalia’s dissent 

indicated a deliberate decision by the Supreme Court not to 

apply the same-complaining-party requirement in election cases. 

Partially as a result of this disagreement, courts have reached 

different results when considering arguments like the ones 

Appellants now raise. Compare Van Wie v. Pataki, 267 F.3d 109, 

114-15 (2d Cir. 2001) (applying same-plaintiff requirement in an 

election case), and Barilla v. Ervin, 886 F.2d 1514, 1519-20 &

n.3 (9th Cir. 1989) (same), with Catholic Leadership Coal. of 

Tex. v. Reisman, 764 F.3d 409, 423-24 (5th Cir. 2014) 

(concluding that same-plaintiff requirement need not be met in 

election cases), Lawrence v. Blackwell, 430 F.3d 368, 372 (6th 

 3 Justice Scalia acknowledged that those cases may “have 

been limited to their facts, or to the narrow areas of abortion 

and election rights, by [the Court’s] more recent insistence 

that, at least in the absence of a class action, the ‘capable of 

repetition’ doctrine applies only where ‘there [is] a 

“reasonable expectation”’ that the ‘same complaining party’ 

would be subjected to the same action again.” Honig v. Doe, 484 

U.S. 305, 336 (1988) (Scalia, J., dissenting) (emphasis in 

original). In class actions, at least when the class is 

certified while the case remains live for the named plaintiff, a 

reasonable expectation that someone in the represented class 

will be subject to the same action may be sufficient to satisfy 

the “capable of repetition” prong of the exception. See Genesis 

Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530-31 (2013); 

Sosna v. Iowa, 419 U.S. 393, 401-02 (1975).

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Cir. 2005) (same), and Majors v. Abell, 317 F.3d 719, 723 (7th 

Cir. 2003) (same). 

In the end, we need not decide whether we believe the 

Supreme Court has sub silentio limited, or created an exception 

to, the requirements of the “capable of repetition, yet evading 

review” doctrine. That is so because even were we to conclude

that the Supreme Court has actually sub silentio excused 

compliance with the rule in some election cases, we would be 

obligated to follow the rule that the Court has actually 

articulated. See, e.g., Shalala v. Illinois Council on Long 

Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not 

normally overturn, or so dramatically limit, earlier authority 

sub silentio.”); Hohn v. United States, 524 U.S. 236, 252–53 

(1998) (“Our decisions remain binding precedent until we see fit 

to reconsider them, regardless of whether subsequent cases have 

raised doubts about their continuing vitality.”); Agostini v. 

Felton, 521 U.S. 203, 237 (1997) (explaining that if a Supreme 

Court precedent directly controls, “yet appears to rest on 

reasons rejected in some other line of decisions, the Court of 

Appeals should follow the case which directly controls, leaving 

to [the Supreme] Court the prerogative of overruling its own 

decisions” (internal quotation marks omitted)); id. (explaining 

that lower courts should not conclude that the Supreme Court’s 

“more recent cases have, by implication, overruled [its] earlier 

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precedent”); Mackall v. Angelone, 131 F.3d 442, 445–49 (4th Cir. 

1997) (en banc) (applying Agostini and refusing to create an 

exception to a general rule articulated by the Supreme Court 

even though a subsequent Supreme Court case had noted that in a 

future case the Court might adopt the exception we were 

considering). 

Moreover, the Supreme Court has actually applied the samecomplaining-plaintiff rule in two relatively recent election 

cases. FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 

(2007), concerned an as-applied challenge to a federal 

prohibition on the use of corporate funds to finance 

“electioneering communications” during a 60-day pre-election 

black-out period. See id. at 457-60. With the black-out period 

long over, the Supreme Court considered whether the case met the 

requirements of the “capable of repetition, yet evading review” 

doctrine. The Court explained that “[t]he second prong . . .

requires a ‘reasonable expectation’ or a ‘demonstrated 

probability’ that ‘the same controversy will recur involving the 

same complaining party.’” Id. at 463 (emphasis added). The 

Court concluded that the requirement was met in that case 

because the plaintiff “credibly claimed that it planned on 

running materially similar future targeted broadcast ads 

mentioning a candidate within the blackout period, and there is 

no reason to believe that the FEC will refrain from prosecuting 

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violations of” the challenged statute. Id. (citation and 

internal quotation marks omitted).

In Davis v. FEC, 554 U.S. 724 (2008), the Supreme Court 

reviewed a challenge from a self-financed candidate to certain 

campaign-finance-disclosure requirements to which he was 

subject. See id. at 731-32. With the litigation having 

continued after the election occurred, the Court again 

considered whether the “capable of repetition, yet evading 

review” doctrine applied. The Court again applied the samecomplaining-party requirement, and determined it was satisfied

because the candidate had publicly announced that he intended to 

run again as a self-financed candidate. See id. at 735-36.

Like the Supreme Court, we have also applied the samecomplaining-plaintiff requirement in recent election cases. 

Most recently, in Lux v. Judd, 651 F.3d 396 (4th Cir. 2011), we 

reviewed a constitutional challenge to a state’s requirement 

that each signature on a petition for ballot placement by an 

independent candidate for Congress be witnessed by a district 

resident. See id. at 398. In considering whether the case 

satisfied the requirements of the “capable of repetition, yet 

evading review” doctrine, we noted that “[e]lection-related 

disputes qualify as ‘capable of repetition’ when ‘there is a 

reasonable expectation that the challenged provisions will be 

applied against the plaintiffs again during future election 

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cycles.’” Id. at 401. We concluded that that requirement was 

satisfied in that case. See id.

For all of these reasons, we conclude that we are bound to

apply the doctrine that we and the Supreme Court have 

articulated — and recently applied — and we must leave to the 

Supreme Court the decision of whether it wishes to create an 

exception to, or otherwise limit, that rule. Accordingly, 

because Appellants cannot satisfy the same-complaining-party 

requirement, the “capable of repetition, yet evading review” 

doctrine does not apply, and the district court erred in not 

dismissing Counts I and II for lack of subject-matter 

jurisdiction. We therefore vacate the district court’s merits 

ruling regarding the claims and remand them to the district 

court for dismissal in accordance with Rule 12(h)(3). 

B.

The FEC contends that the district court erred in declining 

to dismiss Count III on mootness grounds as well. We disagree. 

In Count III the Fund and ARCC challenge the 

constitutionality of the annual $5,000 limit that applies to 

contributions from MPCs to state political party committees and 

their local affiliates, and the Fund challenges the 

constitutionality of the annual $15,000 limit on contributions 

from MPCs to national party committees. See 52 U.S.C. 

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§ 30116(a)(2)(B)-(C). The FEC advances distinct mootness 

arguments concerning each of these two challenges.

Regarding the challenge to the limit on contributions to 

state party committees and their local affiliates, the FEC notes 

that the Amended Complaint alleges that the Fund wished to 

“immediately contribute an additional $5,000 to . . . ARCC, 

which would bring its total contributions to . . . ARCC for the 

year 2014 to $10,000.” J.A. 59. The FEC argues that, once 

2014 ended, this challenge was moot because the district court 

could not grant the Fund the right to contribute additional 

amounts to ARCC in 2014. 

We conclude, however, that this challenge, unlike those 

presented in Counts I and II, easily fits into the “capable of 

repetition, yet evading review” exception. It is undisputed 

that the election cycle is too short in duration for election 

disputes to be fully litigated within a single cycle. See Moore 

v. Ogilvie, 394 U.S. 814, 816 (1969). And the Fund very well 

may wish to contribute more than $5,000 to the ARCC in future 

years. To invoke the exception, Appellants are not required to 

forecast evidence that they were so inclined. See North 

Carolina Right to Life Comm. Fund for Indep. Political 

Expenditures v. Leake, 524 F.3d 427, 435 (4th Cir. 2008)

(holding that constitutional challenges to system of public 

financing for judicial elections, brought by two political 

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committees and a candidate, were not mooted by the election even 

though neither the political committees nor the candidate had 

specifically alleged an intent to participate in future election 

cycles; concluding that “there is a reasonable expectation that 

the challenged provisions will be applied against the plaintiffs 

again during future election cycles”; rejecting “the argument 

that an ex-candidate’s claims may be ‘capable of repetition yet 

evading review’ only if the ex-candidate specifically alleges an 

intent to run again in a future election”); see also Honig, 484 

U.S. at 318-19 n.6 (“Our concern in these cases, as in all 

others involving potentially moot claims, was whether the 

controversy was capable of repetition and not . . . whether the 

claimant had demonstrated that a recurrence of the dispute was 

more probable than not.” (emphasis in original)).

As for the Fund’s challenge to the annual $15,000 limit on 

contributions from MPCs to national party committees, the FEC 

contends that that challenge was mooted by the December 2014 

change in the law referenced earlier. The Fund had alleged in 

its 2014 Amended Complaint that it wanted to “immediately 

contribute $32,400 to the” NRSC. J.A. 59. The December 2014 

amendment authorized the NRSC to create a segregated account to 

fund their building-headquarters expenses and another to fund 

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their election-related legal expenses.4 See Consolidated and 

Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 

Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified 

as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)). 

Under the new law, donors may make contributions to each of 

these new accounts in amounts up to three times the amounts they 

could previously contribute to a national party committee. See

id. In this way, if the NRSC created such segregated accounts, 

the Fund would have been free to contribute $32,400 to the 

building-fund account or legal-fund account were it so inclined. 

We conclude, however, that the possible availability of this new 

option did not moot the challenge here. Nothing in the record 

indicates that the Fund had or has any interest in donating to 

such specialized accounts. Because the $15,000 limit that the 

Fund is challenging remains in place, we conclude that this 

challenge, like the challenge to the $5,000 annual limit on MPC 

contributions to state and local political committees, fits into 

the “capable of repetition, yet evading review” exception.

IV.

Having determined that the district court possessed 

subject-matter jurisdiction over Count III, and that we continue 

 4 The provision pertaining to accounts for the expenses 

concerning presidential nominating conventions does not apply to 

national congressional campaign committees. See 52 U.S.C. 

§ 30116(a)(9)(A).

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to possess jurisdiction as well, we turn to Appellants’ 

contention that the district court erred in granting summary 

judgment to the FEC on the merits on that claim. We conclude 

that the district court was correct to grant summary judgment.

“We review a district court’s decision to grant summary 

judgment de novo, applying the same legal standards as the 

district court, and viewing all facts and reasonable inferences 

therefrom in the light most favorable to the nonmoving party.” 

T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380, 

384–85 (4th Cir. 2012) (internal quotation marks omitted). 

Summary judgment is appropriate “if the movant shows that there 

is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a).

Although the Fourteenth Amendment’s Equal Protection Clause 

does not apply to the federal government, the Fifth Amendment’s 

Due Process Clause contains an equal protection component. See

Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Indeed, the 

Supreme Court has explained that “the equal protection 

obligations imposed by the Fifth and the Fourteenth Amendments 

[are] indistinguishable.” Adarand Constructors, Inc. v. Pena, 

515 U.S. 200, 217 (1995). 

“To succeed on an equal protection claim, a plaintiff must 

first demonstrate that he has been treated differently from 

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others with whom he is similarly situated and that the unequal 

treatment was the result of intentional or purposeful 

discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th 

Cir. 2001). “Once this showing is made, the court proceeds to 

determine whether the disparity in treatment can be justified 

under the requisite level of scrutiny.” Id. 

Count III alleges that the challenged limits violate the 

Fifth Amendment’s equal protection component by discriminating 

against MPCs and in favor of political committees that have 

satisfied the other MPC criteria but have yet to complete the 

waiting period. The critical case governing this claim is 

California Medical Ass’n v. FEC, 453 U.S. 182 (1981) (“CMA”). 

In that case, an unincorporated association of California 

doctors, along with other plaintiffs, brought a declaratory 

judgment action challenging the constitutionality of a FECA 

provision prohibiting individuals and unincorporated 

associations from contributing more than $5,000 to any MPC in a 

calendar year. See id. at 185-86. One basis for the challenge 

was that the provision violated the equal protection component 

of the Fifth Amendment’s Due Process Clause. See id. at 200. 

The plaintiffs’ position was that even though unincorporated 

associations were similarly situated to corporations and labor 

unions, the provision treated unincorporated associations more 

harshly since corporations and labor unions were not subject to 

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a similar limit.5 See id. The district court certified the 

constitutional questions in the case to the Ninth Circuit, which 

upheld the provision. See id. at 186. The plaintiffs then 

sought review of that decision in the Supreme Court. See id. at 

186-87.

Like the Ninth Circuit, the Supreme Court concluded that 

the challenged limit did not violate the Fifth Amendment. The 

Court reasoned as follows:

In order to conclude that [the restriction] . . . 

violates the equal protection component of the Fifth 

Amendment, we would have to find that because of this 

provision [FECA] burdens the First Amendment rights of 

persons subject to [the challenged restriction] to a 

greater extent than it burdens the same rights of 

corporations and unions, and that such differential 

treatment is not justified. We need not consider this 

second question — whether the discrimination alleged 

by appellants is justified — because we find no such 

discrimination. Appellants’ claim of unfair treatment 

ignores the plain fact that the statute as a whole 

imposes far fewer restrictions on individuals and 

unincorporated associations than it does on 

corporations and unions. Persons subject to the 

[challenged restriction] may make unlimited 

expenditures on political speech; corporations and 

unions, however, may make only the limited 

 5 FECA allowed corporations and labor unions to pay for the 

establishment, administration, and solicitation of a “‘separate 

segregated fund to be utilized for political purposes.’” 

California Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (quoting 

2 U.S.C. § 441b(b)(2)(C) (now 52 U.S.C. § 30118(b)(2)(C))). 

There was no statutory limitation on the amount these groups 

could spend on such funds. See id. And, the plaintiffs claimed 

that the contributions of a corporation or labor union to its 

segregated political fund should be considered to be directly 

analogous to the contributions of an unincorporated association 

to an MPC. See id.

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contributions authorized by § 441b(b)(2) [now 52 

U.S.C. § 30118(b)(2)]. Furthermore, individuals and 

unincorporated associations may contribute to 

candidates, to candidates’ committees, to national 

party committees, and to all other political 

committees while corporations and unions are 

absolutely barred from making any such contributions. 

In addition, [MPCs] are generally unrestricted in the 

manner and scope of their solicitations; the 

segregated funds that unions and corporations may 

establish pursuant to §441b(b)(2)(C) [now 52 U.S.C. 

§ 30118(b)(2)(C)] are carefully limited in this 

regard.

Id. at 200-01 (emphasis in original). 

The FEC argues that the claims here fail for similar

reasons in that political committees overall clearly receive 

more favorable treatment under FECA than do other groups. For 

that reason, the FEC argues, there is no discrimination by FECA 

against MPCs that must be justified. We largely agree with the 

FEC’s position, but with one caveat. We believe the FEC is 

correct to the extent it argues that CMA requires us, in 

determining whether actionable discrimination has occurred, to

compare the treatment the relevant respective groups receive 

under FECA overall, not just the treatment the groups receive 

under the specific provision of FECA that is being challenged. 

We conclude, however, that the proper comparison is between 

political committees that have become MPCs and political 

committees that have not completed the waiting period but have 

satisfied the other MPC conditions. It is those two groups, 

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after all, that Appellants maintain are similarly situated yet 

treated differently under FECA. 

Nevertheless, in our estimation, Appellants cannot show 

that FECA overall burdens the First Amendment rights of 

political committees that have become MPCs more than it burdens 

the rights of political committees that have satisfied all MPC

requirements but the waiting period. That is so because the 

decrease in the amount of contributions that political 

committees, once they become MPCs, can make annually to state 

party committees or their local affiliates (from $10,000 to 

$5,000) and to national party committees (from $32,400 to 

$15,000) is more than counteracted by the increase in the limits 

in the amount of contributions that MPCs can make to individual

candidates (from $2,600 to $5,000). To the extent that there is 

a difference in treatment, it appears to us to favor the MPCs in 

that the total amount of money MPCs can contribute overall will 

be substantially greater since there are so many different 

individual candidates to which the respective entities can 

contribute. Because Appellants cannot demonstrate that FECA 

discriminates against MPCs, there is no discrimination to be 

justified, and we conclude that the FEC was entitled to summary 

judgment on Count III. 

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V.

In sum, we conclude that the district court erred in 

adjudicating the merits of Counts I and II, as those claims 

became moot once the political committees challenging them 

became MPCs and were no longer subject to the limitations they 

were challenging. Accordingly, we vacate the merits judgment on 

those claims and remand to the district court with instructions 

to dismiss them for lack of subject-matter jurisdiction. On the 

other hand, we conclude the district court properly granted 

summary judgment to the FEC on Count III, and we therefore 

affirm the judgment on that claim. 

AFFIRMED IN PART;

VACATED AND REMANDED IN PART 

WITH INSTRUCTIONS TO DISMISS

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