IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL ) Case No. 11-CV-562-RLW

COMMITTEE, INC., ) 

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

 )

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REPLY TO

DEFENDANT’S OPPOSITION TO PLAINTIFF’S CERTIFICATION MOTION

Comes now the Plaintiff, Libertarian National Committee, Inc. (“LNC”), by

and through undersigned counsel, and submits its Memorandum of Points and

Authorities in Opposition to Defendant’s Motion for Summary Judgment and in

Reply to Defendant’s Opposition to Plaintiff’s Certification Motion.

Dated: August 13, 2012 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

Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 1 of 37
TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Relevant Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. The FEC Misstates the Standard of Review for Certification, 

Which Is Non-Frivolity—Not A Full Merits Determination. . . . . . . . . . . . . 6

II. Decedents' Constitutional Rights to Testate—Which the 

Supreme Court Has, In Fact, Recognized—Are Not Dispositive. . . . . . . . 10

III. McConnell Does Not Apply to the Facts of this Case, and 

Consequently Does Not Foreclose the LNC's Constitutional Challenge.. . 16

A. McConnell does not contemplate the deceased, and therefore

does not render this challenge frivolous.. . . . . . . . . . . . . . . . . . . . . . 17

B. McConnell was based on a substantial factual record, which has 

not been established here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. The FEC’s Application of Contribution Limits to Testamentary Bequests 

Is Not Closely Drawn to a Compelling Governmental Interest. . . . . . . . . . 19

A. Unlimited Bequeathed Contributions Do Not Present the Same

Concerns as Soft-Money Contributions. . . . . . . . . . . . . . . . . . . . . . . 19

B. Unlimited Bequeathed Contributions Do Not Provide a New 

Access Point for Donors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. The Commission has failed to assert facts showing a threat of

corruption or the appearance thereof. . . . . . . . . . . . . . . . . . . . . . . . . 21

i

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D. The Commission’s threat of preferential access is wholly

speculative.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

E. National party committees have no obligation to give access to

associates or relatives of a decedent.. . . . . . . . . . . . . . . . . . . . . . . . . 25

V. The LNC’s Minor Party Status, Having Never Elected a Federal

Candidate, is Relevant to the Novelty of its Constitutional Claims

and, Consequently, Helps Render Its Case Non-Frivolous. . . . . . . . . . . . . 26

VI. The Libertarian Party Is a Minor Party That, In Part Because of 

Its Inability to Receive the Bequest At Issue in this Case, Has

Been Unable to Amass the Resources Required for Effective 

Advocacy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ii

Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 3 of 37
TABLE OF AUTHORITIES

Cases

Athens Lumber Co. v. FEC, 

689 F.2d 1006 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Babbitt v. Youpee, 

519 U.S. 234 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15

Bread PAC v. FEC, 

455 U.S. 577 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

Buckley v. Valeo, 

424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 28

Ca. Med. Ass’n v. FEC, 

453 U.S. 182 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cao v. FEC, 

688 F. Supp. 498 (E.D. La. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dean v. Blumenthal, 

577 F.3d 60 (2d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Goland v. United States, 

903 F.2d 1247 (9 Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9

th

Hodel v. Irving, 

481 U.S. 704 (1987) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15

Irving Trust Co. v. Day, 

314 U.S. 556 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii

Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 4 of 37
McConnell v. FEC, 

540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . i, 16-19, 21, 22, 28, 30

Mott v. FEC, 

494 F. Supp. 131 (D.D.C. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Nat’l Fedn. of Fed. Employees-IAM v. Vilsack,

681 F.3d 483 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Nixon v. Shrink Missouri PAC, 

528 U.S. 377 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Randall v. Sorrell, 

548 U.S. 230 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-28

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SpeechNow.org v. FEC, No. 08-0248-JR, 

2009 U.S. Dist. LEXIS 89011 (D.D.C. 2009) . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. O’Brien, 

391 U.S. 367 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Wis. Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Wisconsin Right to Life v. FEC,

551 U.S. 449 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Statutes

17 U.S.C. § 302(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2 U.S.C. § 437h. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 5-7, 10

iv

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2 U.S.C. § 441a(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2 U.S.C. § 441a(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Other Authorities

David Horton, Testation and Speech, 101 GEORGETOWN L. J. ___

(forthcoming Nov. 2012), available at http://papers.ssrn.com/sol3/

papers.cfm?abstract_id=2037400&##

(last visited August 13, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC Advisory Opinion 1999-14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

FEC Advisory Opinion 2004-02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 6 of 37
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REPLY TO

DEFENDANT’S OPPOSITION TO PLAINTIFF’S CERTIFICATION MOTION

PRELIMINARY STATEMENT

The question before the Court is not whether Plaintiff Libertarian National

Committee, Inc. (“LNC”) or Defendant Federal Elections Commission (“FEC”)

correctly assesses the constitutionality, or lack thereof, of applying federal

campaign contribution limits to decedents’ estates. That decision is explicitly left

to the D.C. Circuit, acting en banc. 2 U.S.C. § 437h. Nor is the question whether

the deceased enjoy constitutional rights.

Rather, the question here is whether the LNC—a corporation that operates a

political party—presents a frivolous claim in asserting that its solicitation,

acceptance, and spending of political contributions from testamentary bequests

enjoys First Amendment protection from contribution limits aimed at curbing

corruption and the appearance thereof. Manifestly, if it takes the government forty

pages to explain why the case is frivolous—to say nothing of FEC’s request for

additional briefing on the topic of which facts would be certified, the FEC’s

massive volume of proposed exhibits it considers relevant to the case, and onehundred-thirty-nine proposed facts spanning forty-eight pages—the case is not

frivolous.

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Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 7 of 37
The substance of the government’s briefing confirms the signal indicated by

its sheer volume. After opening with a wholly irrelevant attack on the alleged nonrights of dead people not parties to the litigation, the FEC misstates the standard

for certification: the LNC’s questions should be certified to the Court of Appeals

unless they are “frivolous,” with frivolity understood to encompass cases that have

been legally foreclosed. The procedure found at 2 U.S.C. § 437h is not the familiar

one where district courts determine the merits of a claim, subject to appeal.

Even the Commission’s motion, read in its entirety, does not show that

issues involving the First Amendment rights of a testator to make, an estate to

contribute, and a political party to receive, bequests have ever been litigated. This

fact alone is sufficient to mandate certification.

But the Commission goes further. Despite claiming on one hand that the

LNC’s case is “not substantial,” the Commission then spends the bulk of its

motion on a parade of (hypothetical) horribles whereby this case will “partially

reopen the floodgates closed by BCRA.” FEC Mem. In Support of Summary

Judgment (“Mem”) 1. Such rhetoric is unhelpful, especially when uttered by a

Federal agency. Of course, only the Commission’s administrative orders, and not

FECA or BCRA themselves, ever considered bequests. 

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The Commission’s rhetoric also, on the whole, simply begs the question.

The very issue posed by this case is whether bequests are, or are not, as likely as

individual contributions to lead to corruption or its appearance. The Commission

has not proved that they will, merely that entirely different contributions were

once, on a different record found to justify the Commission’s restrictions. 

LNC plainly presents a case of first impression in the Federal courts. It

raises a serious and novel question of First Amendment law. That is precisely the

situation envisioned by Section 437h, and this case should and must be certified to

the Court of Appeals.

RELEVANT FACTUAL BACKGROUND

At this stage of litigation, both parties have submitted facts for certification

by the Court, and both parties have also objected to many of each-other’s facts.

The Court has yet to rule on which facts, if any, it will certify. In the interim, we

proceed under the well-worn presumption that disputed facts must be decided in

favor of the non-moving party when deciding dispositive motions. Nat’l Fedn. of

Fed. Employees-IAM v. Vilsack, 681 F.3d 483, 488 (D.C. Cir. 2012) (for summary

judgment, courts “must draw all justifiable inferences in favor of the non-moving

party”) (citation omitted). While Plaintiff has submitted its proposed facts for

3

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certification, as well as its objections to the Commission’s proposed facts, it here

recites certain facts it believes to be uncontested.

Plaintiff Libertarian National Committee, Inc. is the national committee of

the Libertarian Party of the United States. Answer, ¶ 4. Founded in 1971, the Party

has yet to elect a federal office holder, and no current federal office holder is

affiliated with the Libertarian Party. Redparth Decl., ¶ 4. Unlike the two major

party committees, the Libertarian party’s national committee is forced to spend the

bulk of its resources securing access to the ballot, leaving comparatively little for

actual campaigning. Redpath Decl., ¶ 5. 

Contributions to the national committees of political parties are limited

pursuant to 2 U.S.C. § 441a(a)(1). That statute does not mention testamentary

bequests, but the FEC has extended those limitations to such bequests by

administrative action. Response to Request for Admission No. 4; FEC Advisory

Opinions 2004-02 and 1999-14.

On April 26, 2007, Raymond Groves Burrington passed away, leaving a

Last Will and Testament in which the Libertarian Party was named as a legatee.

This bequest totaled $217,734.00. The Libertarian Party had no knowledge of this

bequest prior to Mr. Burrington’s passing. Apart from the bequest, Burrington had

only once donated to the Libertarian party, in the amount of $25, on May 19, 1998.

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Because the LNC could not accept the entirety of Mr. Burrington’s bequest in any

election cycle, but was constrained by the FEC’s regulations to accept only up to

the limit provided by Section 441a. This had a significant impact on the LNC’s

efforts during the 2008 and 2010 elections. An additional $160,734.00 would have

covered nearly the entirety of LNC’s operating deficit in 2008, and would have

more than sufficed to cover the Party’s ballot access costs in 2010. Redpath Decl.,

¶ 11.

Plaintiff seeks the certification of a single question to the U.S. Court of

Appeals for the District of Columbia Circuit: “Does imposing annual contribution

limits against testamentary bequests directed at, or accepted or solicited by

political party committees, violate First Amendment speech and associational

rights?”

Defendant seeks summary judgment, arguing that this question is

inappropriate for certification under 2 U.S.C. § 437h. Because the question is

novel, has not been determined by any court known to either party, and has not

been foreclosed by Supreme Court decisions, the Commission’s motion should be

denied.

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ARGUMENT

I. THE FEC MISSTATES THE STANDARD OF REVIEW FOR CERTIFICATION,

WHICH IS NON-FRIVOLITY—NOT A FULL MERITS DETERMINATION.

The Federal Election Campaign Act (FECA) contains an extraordinary

judicial review provision designed to ensure that “serious question[s] as to the

constitutionality of th[e] legislation” are resolved “at the earliest possible time.” 

Bread PAC v. FEC, 455 U.S. 577, 582 (1982). This provision, 2 U.S.C. § 437(h)

reads in full:

The Commission, the national committee of any political party, or 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.

“Despite the mandatory phrasing of the certification provision, district

courts presented with complaints brought under section 437h need not

automatically certify every constitutional question raised to the en banc court of

appeals.” Mott v. FEC, 494 F. Supp. 131, 133 (D.D.C. 1980). The Supreme Court

has stated questions which are frivolous or “involve purely hypothetical

applications of the statute” need not be certified to the court of appeals. Ca. Med.

Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981). Some courts have viewed the

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district court’s role in a § 437h case as “similar to that of a single judge presented

with a motion to convene a three judge court to hear constitutional challenges.”

Mott, 494 F. Supp. at 134 (citation omitted). 

Thus, the “‘frivolousness’ standard . . is somewhere between a motion to

dismiss . . . and a motion for summary judgment.” Cao v. FEC, 688 F. Supp. 498,

503 (E.D. La. 2010). To find whether or not a constitutional challenge is frivolous

or not, a district court “must . . . determine if the Supreme Court’s previous rulings

have foreclosed the challenges before it, if such a window remains open.” Id. at

547; see also Goland v. United States, 903 F.2d 1247, 1258 (9 Cir. 1990). This

th

Court is not called upon to determine the actual merits of any claim; courts may

certify questions to the appropriate court of appeals that the district court may find

dubious. Cao, 688 F. Supp.2d at 541-42; SpeechNow.org v. FEC, No. 08-0248-JR,

2009 U.S. Dist. LEXIS 89011, at *2 (D.D.C. 2009) (“The task before me is not to

answer any constitutional questions, or to render a judgment of any kind.”). The

standard is simply that the issue remains unconsidered by the Supreme Court.

In its motion, the Commission slyly suggests that as-applied challenges

were not initially covered by § 437h, and posits that the Court ought to look

askance at the LNC’s case because it is an as-applied challenge to the statute.

Mem. at 6. Yet, as-applied challenges are routine under § 437h; which is perhaps

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unsurprising given that most facial challenges to FECA were disposed of nearly

four decades ago in Buckley v. Valeo, 424 U.S. 1 (1976). Most recently, this Court

certified an as-applied challenge in SpeechNow.org v. FEC, 599 F.3d 686 (D.C.

Cir. 2010) (en banc).

The Commission further suggests that some form of a higher threshold is

demanded for as-applied challenges. While the Commission’s case citations are

1

correct, the Commission reads them out of context. The standard remains whether

or not a claim is frivolous; courts must simply look closer at as-applied challenges

to make certain that the challenge was not foreclosed by a facial challenge.

There is good reason for the Commission’s desire to dilute the standard for

review. Despite citing 37 cases in its motion for summary judgment, the

Commission proffers not a single case discussing the constitutional relationship

between bequests and contribution limits. This is not surprising, as FECA—and

the United States’ scheme of campaign finance regulation generally—is aimed

directly at transactions and activities that usually can only be performed by the

living. It is only because of the FEC’s own interpretations of FECA as applying to

 Mem. at 6 (citing Goland; Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1

1992)). (In Khatchaturian, the Fifth Circuit found that the district court had simply

failed entirely to either certify facts or conduct a frivolousness analysis.)

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both living and dead contributors that the statute now covers bequests. This is the 2

first time that this issue has ever been litigated in the courts, and therefore has

not—by definition—been foreclosed by a previous ruling of the Supreme Court.

The Commission maintains that the LNC’s challenge is simply a “sophistic

twist.” This is false. In Goland—a case cited by the Commission for the

proposition that as-applied challenges must be reviewed under “a higher

threshold”—a challenge was deemed “sophistic” when a contributor attempted to

argue that Buckley did not dispose of his challenge because only named

contributors to campaigns were affected by the $1,000 contribution limit. The

Goland court properly found this suggestion “creative”, but entirely without merit

(for extremely obvious reasons). Goland, 903 F.2d at 1258-59. Buckley did, after

all, flatly uphold the contribution limit as well as FECA’s disclosure and reporting

provisions. Meanwhile, in this case, the Commission is attempting to apply

contribution limits to the deceased; something that has never been litigated.

This is not a trivial matter—expressive rights are at risk, and so is a

significant amount of money. The remainder of Mr. Burrington’s bequest would

provide the Libertarian Party with vital resources necessary to maintaining ballot

access. Redpath Decl., ¶ 5. It is possible that, but for Mr. Burrington’s bequest,

 FEC Advisory Opinion, Council for a Livable World (AO 1999-14).

2

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voters in some parts of the country will not be given the option to cast a ballot for

Libertarian nominees for office.

Section §437h does not give courts the option of certifying a case after

determining that the issue has not been foreclosed. Rather, it must certify the case.

Doing otherwise would entirely contradict the statute, and usurp the authority and

jurisdiction Congress specifically bestowed upon the Court of Appeals.

Finally, any concern that the §437h process is subject to abuse is simply

misplaced. Only three types of plaintiffs are permitted to bring a challenge under

this expedited review provision: the FEC itself, any political party’s national

committee, and any qualified voter. Bread, 455 U.S. at 581; Athens Lumber Co. v.

FEC, 689 F.2d 1006, 1010 n.4 (11th Cir. 1982). All “[o]thers, evidently, are

remitted to the usual remedies.” Bread, 455 U.S. at 584. Section 437h is an

extraordinary provision, designed to permit a limited class of parties, including the

LNC, to quickly focus judicial scrutiny on unsettled constitutional questions

concerning the national electoral process.

II. DECEDENTS’ CONSTITUTIONAL RIGHTS TO TESTATE—WHICH THE SUPREME

COURT HAS, IN FACT, RECOGNIZED—ARE NOT DISPOSITIVE.

As noted in LNC’s opening brief, the Supreme Court has only upheld

contribution limits against First Amendment scrutiny in the context where political

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contributions were considered a form of association. But the dead do not associate

with political parties (nor does LNC purport to associate with the dead, removing

them immediately from its membership rolls). And however much speech figures

into the equation when the living make political donations intended to be received

in their lifetime, testation is, plainly, expressive activity.

The unavoidable implication of these facts is that LNC’s case is one of first

impression. Since the Supreme Court has only spoken of contribution limits in a

context that is inapplicable to the present circumstances, and as the Supreme Court

has expressly recognized the potential for as-applied challenges to federal

contribution limits, this as-applied challenge is one for the D.C. Circuit to

determine.

FEC nonetheless opens with an interesting argument: “FECA cannot

infringe a testator’s First Amendment rights after death because the deceased have

no constitutional rights.” Mem. at 8 (citations omitted). However, none of the

cases cited for this proposition have anything to do with testation. And the FEC

errs in offering that “a person’s ability to bequeath property is not protected under

the Constitution.” Id. at 10. 

Directly to the contrary: the Supreme Court struck down—as a violation of

the Fifth Amendment’s Takings Clause—that provision of the Indian Lands

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Consolidation Act which barred decedents from devising land parcels falling

below a certain size or value threshold, stating:

In holding that complete abolition of both the descent and devise of a

particular class of property may be a taking, we reaffirm the continuing

vitality of the long line of cases recognizing the States’, and where

appropriate, the United States’, broad authority to adjust the rules governing

the descent and devise of property without implicating the guarantees of the

Just Compensation Clause. The difference in this case is the fact that both

descent and devise are completely abolished . . .

Hodel v. Irving, 481 U.S. 704, 717 (1987) (citing and limiting, inter alia, Irving

Trust Co. v. Day, 314 U.S. 556 (1942), relied upon by FEC). Indeed,

Hodel rejected the government’s prudential standing challenge to the case on

account that it was brought by heirs, who “do not assert that their own property

rights have been taken unconstitutionally, but rather that their decedents’ right to

pass the property at death has been taken.” Id. at 711.

When Congress amended the provision without curing its basic

constitutional defect, in that it denied the right to devise property without

compensation, the Supreme Court again struck down the act. Babbitt v. Youpee,

519 U.S. 234 (1997).

Hodel and Babbitt are clear: decedents have the constitutional right to

devise property. While, as the cases cited by FEC correctly indicate, property

rights are largely creatures of state law, and states enjoy a police power to regulate

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Case 1:11-cv-00562-RLW Document 34 Filed 08/13/12 Page 18 of 37
testation, property rights retain constitutional protection even in death. A different

result would be absurd. If the FEC were correct that “a person’s ability to bequeath

property is not protected under the Constitution,” Mem. at 10, the government

could simply seize any property from any estate, and estates could be barred from

litigating their property interests on behalf of putative heirs, as they routinely do

today.

3

And if, as the Supreme Court twice confirmed, the Fifth Amendment’s

Takings Clause protects testation’s property aspects, it stands to reason that the

First Amendment would protect testation’s expressive aspects. That argument is

comprehensively—and compellingly—addressed in David Horton, Testation and

Speech, 101 GEORGETOWN L. J. ___ (forthcoming Nov. 2012), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2037400&## (last visited

August 13, 2012).

4

Indeed, much of the property routinely devised and controlled by estates is

3

intellectual and, inherently, expressive in nature, such as copyrights, trademarks,

and rights of publicity. On this score, even Congress extends “expressive” rights

by statute to heirs long after death. See, e.g. 17 U.S.C. § 302(a) (copyright terms

for life of the author plus seventy years).

Even if testation were merely the transfer of property and was not considered a 4

form of expression, application of the contribution limits to testamentary bequests

would violate the rule of United States v. O’Brien, 391 U.S. 367 (1967). Assuming

that FECA is within the government’s constitutional power, its application to

bequests does not further any important or substantial governmental interests, is

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To be sure, as Prof. Horton notes, some commentators view testation purely

as a transaction of property, but the matter has not been squarely addressed by the

Supreme (or, apparently, any other) Court. And while LNC would not argue that

law review publication, per se, is the benchmark for non-frivolity, Prof. Horton’s

is a serious academic work. The FEC’s declaration that all aspects of testation are

beyond constitutional scrutiny is demonstrably wrong in view of existing

precedent such as Hodel and Babbitt, and its argument that the First Amendment,

specifically, would not be implicated by restrictions on testation would plainly be

in substantial dispute.

Alas, there is no need for this Court to contemplate whether a First

Amendment claim to decedents’ expression is frivolous or substantial, nor would

the D.C. Circuit need to determine the question on the merits upon certification,

because neither Raymond Burrington nor his Estate are plaintiffs here. The only

plaintiff here is the LNC—a corporation that operates a political party, and enjoys

substantial First Amendment rights in so doing. Of course, the FEC’s conduct

violates the rights of Burrington and his Estate, but

[t]his lawsuit seeks to enjoin application of the Party Limit to the

contribution, solicitation, acceptance, and spending of decedents’ bequests,

related directly to the suppression of speech, and its impact is much greater than

necessary to vindicate any anti-corruption motive.

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as said application violates the LNC’s First Amendment speech and

associational rights and those of its supporters.

First Am. Complaint, ¶ 3 (emphasis added); Mem. at 3.

The First Amendment indisputably protects the LNC’s ability to solicit,

accept, and spend money. The primary question here is whether limits on the

LNC’s abilities to solicit, accept, and spend money are constitutional when that

money comes from decedents’ estates. LNC does, in fact, have standing to

represent the expressive First Amendment interests of its deceased donors, just as

the heirs in Hodel and Babbitt had standing to assert the testational rights of those

who bequeathed them real property. “For obvious reasons, it has long been

recognized that the surviving claims of a decedent must be pursued by a third

party.” Hodel, 481 U.S. at 711.

In any event, the question of whether Burrington’s rights to give LNC

money are being violated is inextricable from the question of whether LNC’s

rights to receive Burrington’s money are being violated. And even if Burrington’s

First Amendment rights are extinguished by death, the LNC’s First Amendment

(and other) rights in the bequest are very much alive.

Of course, the FEC’s “death” argument is self-defeating. If this case is

merely about the non-existent rights of the deceased, what is it, exactly, that the

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FEC is regulating, if not the relationship of the deceased to the political process? It

is odd to conceptualize of the situation as one where death has terminated the

deceased’s ability to enjoy First Amendment expressive interests, but not their

ability to corrupt the political process, or to give that appearance to the American

public. It is theoretically possible to express oneself without corrupting, and LNC

submits that this is the natural order of things under the First Amendment; but it is

difficult if not impossible, as the FEC suggests, to corrupt without expressing.

III. MCCONNELL DOES NOT APPLY TO THE FACTS OF THIS CASE, AND

CONSEQUENTLY DOES NOT FORECLOSE THE LNC’S CONSTITUTIONAL

CHALLENGE.

The Commission relies, in too great part, on McConnell v. FEC, 540 U.S.

93 (2003). For the reasons already stated in the LNC’s opposition to the

Commission’s Proposed Facts, McConnell’s factual findings are inadmissible. The

Commission is required by the laws of evidence to rely upon the record it

developed over the course of its (substantial) taking of discovery in this case.

Moreover, McConnell is not the silver bullet the Commission appears to

believe. McConnell was decided on a specific and lengthy factual record, dealt

with a facial challenge to BCRA, did not foreclose subsequent as-applied

challenges and—most importantly—at no point contemplated testamentary

bequests or the facts presented by this case. 

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A. McConnell does not contemplate the deceased, and therefore does not

render this challenge frivolous.

While the Commission’s three-page reiteration of McConnell’s holding,

Mem. at 20-23, is in large measure correct, it is wholly unhelpful here. The FEC’s

discussion of McConnell does not address at least one substantial distinguishing

factor in this case: those supposedly engaged in corrupting behavior in McConnell

were alive. McConnell “did not purport to resolve future as-applied challenges.”

Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) (“WRTL I”).

Indeed, for all of the Commission’s (and McConnell’s) discussion of the

constitutionality of contribution limits, the LNC does not challenge these limits as

upheld in McConnell (and subsequently modified by Congress to guard even more

vigilantly against actual or apparent corruption). Instead, the LNC seeks only to

receive contributions from an estate in accordance with 2 U.S.C. § 441a(a)(1)(B).

B. McConnell was based on a substantial factual record, which has not

been established here.

For as much as the Commission seeks to rely on McConnell—whose

applicability is limited—it has failed to satisfy one of McConnell’s necessary

preconditions: the establishment of a sufficient factual record. Indeed, since the

LNC has not yet been allowed its day in court, the record is scant. Moreover, the

Commission adds insult to injury by attempting to rely on its own proposed

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“facts”—many of which the LNC has objected to as inconsistent with the Federal

Rules of Evidence —as a sufficient record for assessing this constitutional claim.

5

Indeed, the FEC cites to the voluminous factual record established by the

District Court in McConnell, as if to suggest that these same findings of fact

should be sufficient to assess the LNC’s wholly distinct challenge. Mem. at 20

n.11. Indeed, it appears that under the FEC’s view, McConnell effectively repealed

Section 437h altogether, resolving finally and forever all facts necessary to

adjudicate any challenges to campaign finance regulations. Instead, the

6

Commission’s argument merely highlights the contrast between the extensive

findings of fact that were necessary for constitutional adjudication of the facial

challenge in McConnell. It thereby emphasizes the lack of a record in this case.

The Chief Justice made a similar point for the Court in Wisconsin Right to

Life v. FEC, 551 U.S. 449 (2007) (“WRTL II”). There, he rejected the suggestion

that the Court in McConnell had “established the constitutional test for

See Plaintiff’s Objections to Defendant’s Facts Submitted for Certification at 1 5

(“Despite this Court’s clearly limited role, Defendant seeks to certify ‘facts’ that

are argumentative, conclusory, inadmissible and – in many cases – conclusions of

law reserved to the Court of Appeals.”).

The FEC apparently took the same approach, unsuccessfully, in Speechnow,

6

submitting the McConnell record there as purportedly controlling the outcome of

that as-applied challenge.

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determining if an ad is the functional equivalent of express advocacy.” Id. at 465.

Rather, he pointed out that the FEC had read too much into McConnell by failing

to note that its “analysis was grounded in the evidentiary record before the Court”

and, consequently, that the standards and statements announced in that case were

heavily fact-dependent. This was because, again, McConnell was a facial

challenge and, consequently, the Court needed only find some circumstances in

which the challenged statutes were valid.

The LNC’s question is novel. It was not addressed by McConnell, nor was

any record developed on which the McConnell court could have made such a

ruling in any event. McConnell does not foreclose the LNC’s suit.

IV. THE FEC’S APPLICATION OF CONTRIBUTION LIMITS TO TESTAMENTARY

BEQUESTS IS NOT CLOSELY DRAWN TO A COMPELLING GOVERNMENTAL

INTEREST.

A. Unlimited Bequeathed Contributions Do Not Present the Same

Concerns as Soft-Money Contributions.

Unlimited bequeathed contributions to national party committees have no

resemblance to the soft-money loophole and further present no threat of corruption

and its appearance. The essence of corruption is a quid pro quo arrangement, in

which a donor gives money in exchange for some sort of benefit or access to a

political party or candidate. Testamentary gifts fundamentally differ from soft19

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money contributions in the simple fact that testators are, by definition, not alive to

receive the benefits of a quid pro quo. This distinction is substantial enough that

the Commission’s comparison to soft money is inappropriate, and its motion for

summary judgment must be denied.

In a motion for summary judgment, all facts must be taken in the light most

favorable to the non-moving party. While the Commission has presented several

hypothetical scenarios and anecdotes under which one could possibly find some

possibility of corruption, mere speculation is simply not enough for a motion for

summary judgment. Indeed, even if the court accepts the factual assertions of the

Commission, these assertions simply do not command the conclusions that the

Commission reaches.

B. Unlimited Bequeathed Contributions Do Not Provide a New Access

Point for Donors

In its motion to dismiss, the Commission makes note of the rise of so-called

“Super PACs” in the recent election cycle and the fact that such organizations can

receive unlimited individual funds. Mem. at 24. The Commission correctly notes 

that Super PACs are a recent creation, a consequence of SpeechNow. The

Commission also contends that Super PACs provide a new avenue for individuals

to contribute vast sums to defeat or support candidates. Mem. at 24. 

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The Commission notes that “individuals have historically exploited the

ability to make unlimited contributions to influence federal elections.” Id. (internal

citations omitted). It then discusses massive individual donations to Super PACs

that have occurred during the current election cycle. Id. Of course, no court can

accept this assertion as an example of a loophole being “exploited,” because as a

matter of law no corruption can be present when funds are given for independent

expenditures. The Commission’s point merely begs this case’s central question:

what possible threat does the testamentary bequest contribution present?

But even under the Commission’s theory, an individual seeking to influence

or corrupt an election would not bother with a bequest when the option of

contributing to an independent-expenditure-only PAC is available and, more

importantly, gives the individual some form of access before he dies. A bequest

will necessarily appear less corrupt than an inter vivos gift because the

bequeathing donor will necessarily have difficulty reaping the rewards of his gift. 

C. The Commission has failed to assert facts showing a threat of

corruption or the appearance thereof.

The Commission suggests that large soft-money contributions created actual

or apparent indebtedness. Mem. at 27 (citing McConnell, 540 U.S. at 155).

Significantly and without explanation, the Commission neglects the internal

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citations of McConnell which show that this conclusion by the Court was based on

an extensive factual record. McConnell, 540 U.S. at 128, 132, 146, 148 n. 47, 150,

151, etc. The FEC then simply asserts that, because soft-money contributions

posed a threat in McConnell, unlimited bequests therefore also fall under the

McConnell rationale. This assertion fails for two reasons. First, the court does not

have a factual record before it which establishes that unlimited bequests present

the same threat of corruption as soft-money contributions. Without any such

factual record, the court is missing one of the legs on which McConnell stands,

and therefore there is no reason to bring unlimited bequests under the same

umbrella as soft-money. Additionally, on summary judgment, this court assumes

all contested facts in the light most favorable to the non-moving party, and so the

Commission’s assertion of a threat of corruption is simply not adequate to

overcome the presumption against summary judgment.

There is a more fundamental reason why the Commission’s reliance on

McConnell is inappropriate: soft money contributions are fundamentally different

from bequests. Specifically, a donor who bequests money necessarily cannot

benefit because he is deceased. Surely this fact precludes the Commission’s

uncritical application of McConnell to the present case.

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The Commission makes two additional assertions that undermine the casual

comparison to McConnell. First, the Commission notes that many members of

Congress have “safe” seats, and so contributors can often be reasonably certain

that they may end up benefitting a particular office holder. Mem. at 28. LNC does

not dispute the existence of relatively “safe” seats, but these particular candidates

seem to present the smallest threat of corruption or the appearance of corruption. 

An incumbent with a secure seat is likely less beholden to any individual

contributor, and indeed a donor should be far less likely to contribute to a

candidate who has a secure reelection. But regardless of how “safe” candidates

behave, the Commission does not and cannot contend that the LNC has ever had a

“safe” candidate because the Libertarian Party has never elected a candidate to

Federal office.

The Commission further claims that a testator’s family, friends, or

associates could “inform the national party committee which federal candidates

the decedent would have wanted to benefit from the request.” Id. Yet the only

factual support that the Commission presents for this assertion is an anecdote that

a trustee made such a request of the Democratic National Committee in 2010. Id.

at 32. Yet a trustee is merely a fiduciary of the estate, not a benefactor nor even

necessarily a relative or friend of the decedent. A national party committee is

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unlikely to engage in a quid pro quo with a trustee who is merely fulfilling his

fiduciary obligation to the estate. Nor would there be any mechanism by which a

national party committee would be forced to honor such a hypothetical request.

D. The Commission’s threat of preferential access is wholly speculative

The Commission asserts that a national party could set up a structure in

which potential donors receive access in exchange for assurances of their

bequests. Yet the system which the Commission envisions does no such thing. 

The Commission notes that the contributor would simply provide “some

reasonable assurance that the donor had recorded the bequest” but then also notes

that “the donor could revoke the recorded bequest at any time before death.” Mem.

at 29. The Commission seems to believe that this theoretical system has potential

problems, but proffers no real evidence of such problems. To support the existence

of this hypothetical threat, the Commission asserts that preferred-access systems

existed for soft money contributions, and also notes that the Republican National

Committee maintains a system which gives access for a promise of a future

contribution plus a down payment. Mem. at 30-31. Again, the LNC notes the

significance of the fact that the Commission is unable to produce anything more

than mere speculation about what could happen rather than what has happened.

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There is little better proof than that fact to demonstrate that the LNC’s case

is novel and outside the experience of the Commission or the courts.

E. National party committees have no obligation to give access to

associates or relatives of a decedent.

Once again, the Commission has chosen to rest its case entirely on

speculative grounds, absent any real evidence. In its motion to dismiss, the

Commission references an instance where a trustee of a decedent’s estate wrote to

the Democratic National Committee and stated that “while I [the trustee] believe

he [decedent] would want you to use the money in the way you think best, it is my

heartfelt belief that he would want this year’s money going towards defeating

Carly Fiorina and Meg Whitman in California.” Mem. at 32 (internal citations

omitted). The Commission contends that this is evidence that, contrary to the

LNC’s earlier assertion, that national party committees are under some obligation

to enact the wishes of the deceased. 

This argument is unpersuasive, and finds no support in the facts as asserted

by the Commission. The trustee in question specifically acquiesces that the

Democratic National Committee may spend the money “in the way [it] think[s]

best.” Id. It is unclear from the plain language how this amounts to any sort of

obligation other than, at best, a non-binding amorphous moral duty. The only

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“obligation” that the Commission asserts is that friends of decedent may decline to

donate in the future. Id. at 32-33. This stretches the meaning of an “obligation”

beyond what the word can tolerate.

Moreover, the Commission’s example fails to address a central point in the

LNC’s argument. Corruption is based on a fear of quid pro quo corruption, but

once the testator has died, he is incapable of receiving his quo. The hypothetical

trustee or family member has broken the alleged chain of corruption.

V. THE LNC’S MINOR PARTY STATUS, HAVING NEVER ELECTED A FEDERAL

CANDIDATE, IS RELEVANT TO THE NOVELTY OF ITS CONSTITUTIONAL

CLAIMS AND, CONSEQUENTLY, HELPS RENDER ITS CASE NON-FRIVOLOUS.

The Commission makes much of the supposed lack of a First Amendment

right to receive contributions. For this purpose it cites a Second Circuit case, Dean

v. Blumenthal, 577 F.3d 60 (2d Cir. 2009), to show that there is no “decision [that]

specifically held that a candidate has a First Amendment right to receive campaign

contributions.” Mem. at 14. But it neglects to add that the Second Circuit made

this point in the context of activity arising years before Randall v. Sorrell, 548

U.S. 230 (2006); see Dean, 577 F.3d at 63 (“From 1995 to October 2002, Attorney

General Richard Blumenthal included and enforced the following provision in

contracts with outside counsel”). Moreover, the Court wrote to

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emphasize that, although [it did] not consider the right to receive campaign

contributions to have been well-established during the relevant time period,

we do not agree with the district court’s conclusion that such a right is

“inconsistent with the structure of the [Supreme Court's] opinion in

Randall.”

Dean, 577 F.3d at 69. Indeed, while noting (in dicta) that it did not believe

Randall established a right to receive contributions, the Second Circuit noted that

Randall’s “analysis did not foreclose such recognition.” Id. In short, the position

of the court cited by the Commission is this: the Supreme Court has not foreclosed

a right to receive contributions – meaning, of course, that a suit claiming such a

right is not frivolous.

This is that suit. Randall reiterated that “contribution limits might

sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify.” Randall, 548 U.S. at 247-48 (emphasis in

original). The LNC’s suit presents just such a case, and does so in two ways. First,

as noted above, there is no anti-corruption objective vindicated by limiting

bequests, because—short of a séance— there can be no corrupt agreement with the

dead. Consequently, there can be no basis for the Commission’s regulation

surviving even rational basis scrutiny, let alone the heightened scrutiny required

here.

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But secondly, individual Members of the Court have expressed concern lest

too low a limit magnify the “reputation-related or media-related advantages of

incumbency and thereby insulat[e] legislators from effective electoral challenge.”

Id. (citing the concurrence of Justices Breyer and Ginsburg in Nixon v. Shrink

Missouri PAC, 528 U.S. 377, 403-404 (2000)). That was one lesson of Randall,

whose reasoning was not so crabbed that it cannot be applied in this instance to

invalidate limitations on bequeathed gifts to the Libertarian National Committee.

And where the LNC’s argument is not foreclosed, and has not been decided, it is

not frivolous and should be certified to the Court of Appeals.

VI. THE LIBERTARIAN PARTY IS A MINOR PARTY THAT, IN PART BECAUSE OF

ITS INABILITY TO RECEIVE THE BEQUEST AT ISSUE IN THIS CASE, HAS BEEN

UNABLE TO AMASS THE RESOURCES REQUIRED FOR EFFECTIVE ADVOCACY.

The Commission correctly walks through a series of Supreme Court

decisions, including language in Randall, Buckley, and McConnell, noting that a

“nascent or struggling minor party” may bring an as-applied challenge to

contribution limits. Mem. at 36-37. But in applying those cases, the Commission

makes two serious errors. First, it claims that the Libertarian Party is not “nascent

or struggling.” Second, it again assumes that holdings concerning contributions by

live contributors apply to bequests.

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The Commission states that the Libertarian Party is not “struggling” because

it is “on the ballot in more states, runs more candidates, and raises more funds than

the other minor parties.” Mem. at 38 (emphasis added). The Commission also

touts the LNC’s ability to field “over 800... candidates for federal, state, and local

offices.” Id. The Commission goes on to say, without evident irony, that “the LNC

has achieved this success while subject to FECA’s contributions limits.” Id.

But, of course, the Party’s candidates seldom win, and it has never elected a

federal candidate. And the purpose of the LNC—like those of all political

parties—is to actually elect its candidates. 

The FEC compounds its errors by suggesting that the LNC cannot be treated

as a minor party because it wishes (emphasis in the original)—“to become a major

party.” Id. The Commission goes on to cite statements by the LNC and its officers,

with a triumphant flourish of italicization, that the Libertarian Party “might

achieve greater electoral success” and its ability to advocate “would still be

improved” through the assistance of this bequest. Id. (emphasis supplied by the

Commission).

Of course, the LNC would enjoy “greater electoral success” and an

“improved” ability to advocate if it manages to elect a single Federal candidate.

The Commission’s hysterics aside, it attempts to define minor parties out of

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existence. A party is to be treated at a major party, in the Commission’s view, if it

aspires to be one. Even if it has failed to elect a single candidate, it can be lumped

in with parties that successfully contend for control of the elected government of

the United States. And, of course, it is no party at all if it does not have such

ambitions.

The Supreme Court has stated that as-applied challenges may be brought by

minor parties. McConnell at 159. The LNC is doing precisely that. 

The LNC has explained how the Burrington bequest would help it along the

path of electing its first Federal candidate. It would have erased much of its

operating deficit in the last election year. It would have allowed the Party to

qualify for more ballot access. Redpath Decl., ¶ 5. These are not activities that

threaten corruption. Simply put, the LNC is the national party committee of a

minor party, and its ambitions do not – in an as-applied challenge, with no 

developed record, and with facts assumed in favor of the nonmoving party –

transform it into a major party. 

Similarly, just as no case has determined the constitutional rights of any

party to receive unlimited bequests under the First Amendment, there certainly has

been no similar ruling for a minor party. Indeed, as noted above, the Supreme

Court has suggested that as-applied challenges by minor parties are appropriate. 

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CONCLUSION

The LNC’s claims are not frivolous or otherwise foreclosed, and its question

should be certified to the Court of Appeals.

Dated: August 13, 2012 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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