ORAL ARGUMENT SCHEDULED: MARCH 30, 2015 AT 9:30 AM

No. 14-5281

___________

In the

United States Court of Appeals 

for the District of Columbia Circuit 

LAURA HOLMES, ET. AL,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

On questions certified by the United States District Court

for the District of Columbia under 52 U.S.C. § 30110

Plaintiffs’ Opposition to Defendant FEC’s Motion for Remand

Allen Dickerson 

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

Counsel for Plaintiffs

January 12, 2015

USCA Case #14-5281 Document #1531459 Filed: 01/12/2015 Page 1 of 22
INTRODUCTION

This is a straightforward, narrow constitutional challenge, which Plaintiffs 

pursue under a compulsory statutory procedure. 52 U.S.C. § 30110.

1 This Court 

recently held that “Congress’s objective when it enacted [§ 30110]... was, and is, 

speed.” Wagner v. FEC, 717 F.3d 1007, 1013 n. 6 (D.C. Cir. 2013). It went on to 

note, quoting the Supreme Court, that “[t]he most obvious advantage of direct review 

by a court of appeals is the time saved compared to review by a district court, 

followed by a second review on appeal.” Id. at 1014 (quoting Harrison v. PPG 

Indus., Inc., 446 U.S. 578, 593 (1980)).

Nevertheless, by seeking a remand, the Federal Election Commission (“FEC” 

or “Commission”) essentially seeks “first review” by the district court. This is 

improper, as § 30110 “continues to pretermit review by district courts and panels of

courts of appeals.” Id. at 1015. Moreover, the FEC’s approach would add months, if 

not years, to a process Congress deliberately singled out for expedition.

District courts are required by 52 U.S.C. § 30110 to “immediately certify”

questions of BCRA’s constitutionality “to the en banc [C]ourt of [A]ppeals.” Id. at

1009 (emphasis supplied). In doing so, lower courts are required to find the facts

necessary to determine the merits of the case, and certify such facts to the Court of 

1 This statute was previously codified at 2 U.S.C. § 437h. To avoid confusion, 

parties referred to it as such below. Plaintiffs now adopt the new codification.

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Appeals along with all constitutional questions. Id. This is a direct, compulsory 

procedure, which the district court appropriately performed. The FEC has not argued

(let alone demonstrated) that the facts certified are insufficient to decide the 

questions before this Court under § 30110. It has also failed to cite a single decision 

that would render the specific questions Plaintiffs present “insubstantial” or 

“frivolous.” Thus, its motion for remand should be denied, and the merits of this 

case heard in this Court, as Congress unambiguously commanded.

ARGUMENT

I. Section 30110 is clear, is not discretionary, and was properly invoked 

here.

Section 30110 is brief, and deserves to be read in its entirety:

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.

52 U.S.C. § 30110.

This language is not ambiguous. It requires district courts to “immediately” 

certify “all question of constitutionality.” The command is forceful and clear. The 

Supreme Court “ha[s] stated time and again that courts must presume that a 

legislature says in a statute what it means and means in a statute what it says there.” 

2

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Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992) (collecting cases). 

Having noted and given effect to unambiguous statutory language, “judicial inquiry 

is complete.” Id. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).

Nevertheless, the Commission states that “[t]he Supreme Court has held that 

use of section 30110 is subject to a number of restrictions and should be construed 

narrowly.” FEC Mot. at 6. Its support for this position comes from two footnotes in 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) (“Cal. Med.”), and a short passage in 

Bread PAC v. FEC, 455 U.S. 577 (1982).

The Commission’s first error is to claim—three times—that “[c]ourts are to 

construe the availability of section 30110 narrowly.” FEC Mot. at 2, 6, 16. Its support 

for this proposition is Bread PAC v. FEC. There, a PAC sought to invoke § 30110’s 

“unique system of expedited review” even though, as a corporation, it was plainly 

not one of the “three carefully chosen classes of persons” named in the statute: the 

FEC itself, national party committees, and natural persons eligible to vote for 

President. 455 U.S. at 581. The Court rejected the PAC’s “expansive construction” 

in favor of the statute’s “obvious meaning.” Id. In doing so, the Court noted the 

potential burden Congress placed upon the judiciary, and concluded that in such 

cases “close construction of statutory language takes on added importance” because 

“[j]urisdictional statutes are to be constructed with precision and with fidelity to the 

terms by which Congress has expressed its wishes.” Id. (quotation marks and citation 

3

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omitted). Bread PAC simply cannot be read as requiring § 30110 to be construed 

“narrowly”—a characterization the Court never used, and one at odds with the text 

of the opinion.

The Commission’s other Supreme Court authority is Cal. Med., where the 

FEC attempted—unsuccessfully—to narrow the scope of § 30110 review. 

Specifically, the Commission asked the Court to “preclude the use of [§ 30110] 

actions to litigate constitutional challenges to the Act that have been or might be 

raised as defenses to ongoing or contemplated Commission enforcement 

proceedings.” Cal. Med., 453 U.S. at 189. The Court declined to adopt this “cramped 

construction of the statute,” noting the “all-encompassing language” of § 30110. Id. 

at 190, 191; see also id. at 190 ([§ 30110] expressly requires a district court to 

‘immediately...certify all questions of the constitutionality of this Act’ to the court 

of appeals.” (emphasis original)). Furthermore, it stated that the Commission’s 

interpretation would “undermine the very purpose” of the statute, which is “to 

provide a mechanism for the rapid resolution of constitutional challenges to the Act.”

Id. at 191.

The two footnotes the Commission cites are not to the contrary. Both dealt 

with the burdens § 30110 imposes upon the judiciary, burdens that were far heavier 

when Cal. Med. was decided, as they included since-repealed provisions providing 

for direct Supreme Court review and requiring that cases be “expedited to the 

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greatest possible extent.” FEC Mot. at 7 (noting the repeal of the “greatest possible 

extent” provision); Cal. Med., 453 U.S. at 192 nn. 13-14. Despite those burdens, the 

very passages the Commission cites chide the Cal. Med. dissent for “exaggerat[ing] 

the burden [§ 30110] actions have placed on the federal courts.” Id. at 192 n. 13. In 

particular, the Court noted that “only a handful” of such cases had been heard, 

including six cases during the two-year period from 1979-1980. Id.

Moreover, the Court opined that any “concerns about the potential abuse of 

[§ 30110] are in large part answered by other restrictions on the use of that section.”

Id. at 192 n. 14. Importantly, the restrictions the Court refers to are principally “the 

constitutional limitations on the jurisdiction of the federal courts,” including 

standing. Id. They also include the ability to avoid constitutional issues through 

“resolution of unsettled questions of statutory interpretation,” and the ability to 

dismiss “frivolous” or “purely hypothetical” claims. Id. The FEC would interpret 

this paragraph by reference solely to the use of the word “insubstantial,” shorn of

the context demonstrating that word to be merely a synonym for “frivolous” as that 

term is generally used by the courts.

Taken together (or even reading only the few paragraphs and footnotes upon 

which the FEC relies), both Bread PAC and Cal. Med. evidence a determination to 

give effect to § 30110’s provisions as Congress enacted them. They cannot be fairly 

read to create a judicially imposed exemption from the district court’s duty to 

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“immediately” certify “all” constitutional questions raised by a party with standing. 

That is precisely what the district court, with fidelity to the commands of the statute 

and the Supreme Court, did here. 

A. As the district court’s decision to certify questions demonstrates, 

Plaintiffs’ claims are not frivolous. Thus, Congress’s clear grant of 

exclusive jurisdiction to this Court should be heeded.

Plaintiffs pose narrow constitutional questions. They concede that Buckley v. 

Valeo foreclosed challenges to the general existence of FECA’s individual 

contribution limits. 424 U.S. 1, 28-29 (1976) (upholding the individual contribution 

limits as targeted to “the narrow aspect of political association where the actuality 

and potential for corruption have been identified”). But the Supreme Court has 

clearly stated that the only constitutionally cognizable reason for limiting 

contribution limits is to “target what [it has] called ‘quid pro quo’ corruption or its 

appearance...the notion of a direct exchange of an official act for money.” 

McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014).

For that reason, and under that rubric, Plaintiffs challenge only the bifurcation 

of the individual contribution limit into primary and general elections, as applied to 

their circumstances. 

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i. Because the Supreme Court has not foreclosed Plaintiffs’ asapplied challenge, certification to this Court under § 30110 was 

proper.

For the FEC’s motion for remand to succeed, the Supreme Court must have 

directly ruled on the certified question so as to foreclose relief.

2 Khachaturian v. 

FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en banc) (“In a § [30110] case, the district 

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

If the Court has not done so, then Plaintiffs’ case merits certification, and remand is 

inappropriate. Int’l Ass’n of Machinists and Aerospace Workers v. FEC, 678 F.2d 

1092, 1096 (D.C. Cir. 1982) (en banc) (under § 30110, the district court certifies 

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

failure to state a claim”); Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335, 1339

(D.C. Cir. 1975) (constitutional question is “substantial” unless Supreme Court has

“foreclose[d] the subject” and left “no room for the inference that the question sought 

to be raised can be the subject of controversy”).

Consequently, in the § 30110 context, courts have found that narrow, asapplied challenges are sufficiently “substantial” and certification is appropriate, even 

2 Plaintiffs’ challenge is clearly not a “sophistic twist” within the meaning of Goland 

v. United States, 903 F.2d 1247 (9th Cir. 1990) (dismissing as “creative” and 

“sophistic” contributor’s suggestion that, because he contributed anonymously, the 

individual contribution limit upheld in Buckley was inapplicable to him).

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in cases concerning contribution limits upheld facially by the Supreme Court.

3 Cao 

v. FEC, 688 F. Supp. 2d 498, 533 (E.D. La. 2010) aff'd som. nom. Republican Nat’l 

Comm. v. FEC (In re Anh Cao), 619 F.3d 410 (5th Cir. 2010) (certified question 

concerning $5,000 contribution limit as applied to a political party’s PAC giving to 

a candidate); Buckley, 424 U.S. at 35-36 (upholding the $5,000 contribution limit 

for PACs giving to candidates) .

ii. There exists no authority foreclosing a challenge to the 

bifurcated contribution limit as it applies to Plaintiffs and those 

similarly situated.

The FEC suggeststhat Buckley forecloses this case because it held that “FECA 

‘applies the same limitations on contributions to all candidates’” and rejected 

arguments that the law discriminates against major-party challengers to incumbents, 

explaining that ‘[c]hallengers can and often do defeat incumbents in federal 

elections.’” FEC Mot. at 4 (quoting Buckley at 31, 32.) The Commission 

misunderstands Plaintiffs’ equal protection argument. As Plaintiffs noted below, its 

3 In its briefing, the FEC accords talismanic importance to whether a provision has 

been “blessed”—that is, facially reviewed and upheld by the Supreme Court. FEC 

Mot. at 14 (“[A] party challenging a statute that has previously been upheld bears a 

greater burden than a party challenging a statute for the first time”). The FEC’s sole 

support for this “blessed” standard is Khachaturian v. FEC, which, as discussed in 

some detail infra, challenged whether contribution limits ought to apply to 

independent candidates—a question upon which the Buckley Court squarely ruled. 

Such a case was obviously “frivolous” or “insubstantial.” The question is whether 

the case is novel, not whether a statute has been previously upheld against a different 

legal challenge espousing a different legal theory.

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challenge “is not based on an incumbent/challenger distinction, but rather the 

asymmetry posed whenever a candidate who faces a primary challenge competes in 

the general election against a candidate who ran virtually unopposed during the 

primary.” Pl. Reply Mem. on Mot. for Prelim. Injunction (Dkt. 13) at 11.

The FEC also suggests that it was inappropriate for the district court to certify

questions because Buckley found that “courts should not second-guess Congress’s 

decisions regarding the exact dollar figure at which to set a contribution limit.” FEC 

Mot. at 4 (citing 424 U.S. at 30). But the bifurcated limit allows supporters of 

candidates without primary challengers to contribute twice as much money for the 

general election. This is not simply an exercise in legislative discretion in setting 

dollar amounts. Compare Buckley, 424 U.S. at 30. It doubles the scope of association 

that certain contributors enjoy, and does so as a matter of statutory and regulatory 

design. Moreover, the FEC’s redesignation provision merits not a single mention in 

the Buckley opinion. Finally, the bifurcation of the individual contribution limit has 

never been directly challenged, so the FEC has never offered an anti-corruption 

rationale for that portion of the federal statute.

Simply put, Plaintiffs bring a novel, yet straightforward, case of substantial 

constitutional importance. Consequently, the district court appropriately certified 

Plaintiffs’ two constitutional questions.

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iii. The FEC’s suggestions that the district court was somehow 

“uncertain” about certification, or failed to find that Plaintiffs’ 

case was novel, are meritless.

The FEC’s next complaint is a procedural argument that the district court 

“clearly failed to make th[e] threshold determination” that Plaintiffs’ case was not 

foreclosed by Supreme Court precedent. FEC Mot. at 13. The Commission 

predicates this argument—for which it accuses the district court of committing 

“reversible error,” a phrase usually reserved for appeals—on the district court’s use 

of the words “abundance of caution.” Id. But the district court’s order plainly used 

that phrase to modify its earlier statement “that Plaintiffs were unlikely to succeed 

on the merits of their constitutional challenge to FECA.” Cert. Order at 1. The district 

court explicitly and correctly recognized that it did not have jurisdiction to decide 

the merits. Id. at 1-2 (citing 52 U.S.C. § 30110); Wagner, 717 F.3d at 1011 (§ 30110 

“grants exclusive merits jurisdiction to the en banc court of appeals”). The court also 

did not “find[] the questions presented” to be “‘frivolous’ or ‘settled principles of 

law,’” given that it certified questions to this Court. Cert. Order at 2 (citing 

Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 154, 165 (D.D.C. 2013) (quoting 

Khachaturian, 980 F.2d at 331)). The district court recognized that while it might 

not agree with the merits of Plaintiffs’ claims, that question was a decision for this 

Court. Indeed, if nothing else, the district court’s “caution” demonstrates that it 

approached the certification issue with requisite seriousness.

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iv. The district court’s denial of Plaintiffs’ motion for a preliminary 

injunction has no bearing on this Court’s jurisdiction under § 

30110.

The FEC suggests that the district court, in denying Plaintiffs’ motion for a 

preliminary injunction, “conclude[ed] that plaintiffs’ claims appear to lack merit and 

are contradicted by multiple Supreme Court decisions.” FEC Mot. at 15. It also 

considers the district court’s certification “particularly troubling because its 

opinion...found that plaintiffs challenge[d] a settled legal question.” Id.

Plaintiffs reiterate that the district court considered the merits of this case only 

insofar as it was asked to grant the extraordinary remedy of preliminary relief. The 

standard for certifying questions under § 30110 and the standard for granting a 

preliminary injunction are vastly different. See, e.g., SpeechNow.org v. FEC, 567 

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

certain contribution limits); 2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) 

(certifying constitutional questions to this en banc Court)). The showing required to 

certify questions is minimal, akin to that required to survive a motion to dismiss 

under FED. R. CIV. P. 12(b)(6). Goland, 903 F.2d at 1257-58 (comparing § 30110

certification standard to three judge court provision of 28 U.S.C. § 2284, and 

describing the showing required as “closely resembl[ing] that applied under Rule 

12(b)(6)”).

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Moreover, with respect to certifying questions, whether a district court finds 

a § 30110 plaintiff’s arguments compelling on the merits is irrelevant—§ 30110 

“grants exclusive merits jurisdiction to the en banc court of appeals.” Wagner, 717 

F.3d 1011; compare FEC Mot. at 15 (suggesting remand is appropriate because the 

district court believed “‘Plaintiffs challenge the analysis and conclusion of the 

Supreme Court in Buckley v. Valeo and its progeny’”) (quoting Holmes v. FEC, 2014 

U.S. Dist. LEXIS 148826 at 1-2 (D.D.C. Oct. 20, 2014)).

But Judge Collyer’s denial of a preliminary injunction never suggested that 

Plaintiffs raised a “frivolous,” “insubstantial,” “foreclosed,” or obviously “settled” 

case. Rather, on the merits, Judge Collyer decided that establishing “[t]he perelection limit...is a quintessential political decision made by politicians who 

understand the process far better than the courts and is deserving of deference.” 

Holmes, 2014 U.S. Dist. LEXIS at 12. But this Court might well disagree—and the 

district court has, again, no jurisdiction to reach the merits.

B. The factual record the district court certified is sufficient to resolve

Plaintiffs’ constitutional questions.

i. The district court need only certify facts necessary and 

sufficient for this Court to decide a § 30110 challenge.

The FEC objects that “the district court’s immediate certification order 

deprived this Court of a full factual record” because the parties had no opportunity 

to conduct trial-length discovery, or to extensively brief proposed findings of fact. 

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FEC Mot. at 20. The Commission believes that the district court’s decision to 

“ma[k]e findings of fact culled from plaintiffs’ multiple court filings and the single 

brief (opposing plaintiffs’ preliminary-injunction motion) that the Commission has 

filed” failed to provide this Court with “a complete factual record that reflects input 

from both parties.” Id. (emphasis FEC’s). But § 30110 does not require that a district 

court engage in intensive, trial-like discovery and factfinding before certifying 

questions to the Court of Appeals. In fact, this Court has explicitly contemplated—

and accepted—that § 30110 “results in a less-focused record than ordinary 

litigation.” Wagner, 717 F.3d at 1015. 

District courts are merely required to certify such facts as are necessary to

resolve the constitutional questions a certified case presents. Cal. Med., 453 U.S. at

192 n. 14 (immediate certification improper only “where the resolution of such 

questions require[s] a fully developed factual record”); Wagner, 717 F.3d at 1017

(district court need only “make appropriate findings of facts, as necessary, and to 

certify those facts...”) (emphasis supplied); Khachaturian v. FEC, 980 F. 2d at 332 

(“As the Supreme Court has made clear, the district court also must develop a record 

and make findings of fact sufficient to allow the en banc court to decide the 

constitutional issues”) (emphasis supplied); Buckley v. Valeo, 519 F.2d 817, 819 

(D.C. Cir. 1975) (en banc) (ordering district court to “[t]ake whatever may be 

necessary in the form of evidence” and “[m]ake findings of fact”) (emphasis 

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supplied). Here, the district court did certify those facts that are necessary and 

sufficient to decide the questions it certified. It had the option to request briefing or 

proposed facts, or to order discovery. It chose, pointedly, not to do so. This decision 

was sound, given Plaintiffs’ narrow challenge. The facts that the district court 

certified regarding the FEC, the Plaintiffs and their preferred candidates in 2014, the 

statutory scheme, and the procedural background are enough for this Court to 

speedily resolve this case under § 30110.

4 Wagner, 717 F.3d at 1011 (§ 30110 

“grants exclusive merits jurisdiction to the en banc court of appeals”).

Nonetheless, the Commission complains that it was never given “any 

opportunity to respond to plaintiffs’ arguments, to otherwise urge the court not to 

certify questions, or, alternatively, to present the Commission’s views regarding 

what questions should be certified and what facts should be included in the record.” 

FEC Mot. at 10-11 (citing Khachaturian, 980 F.2d at 331-332) (5th Circuit found 

the district court had “premature[ly]” certified constitutional questions “on an ex 

parte order without giving the FEC an opportunity to respond,” depriving itself of 

“the benefit of briefing” from the parties). 

But the district court did hear the Commission’s arguments—as well as what 

facts it considered necessary to evaluate the merits of this case—when the FEC 

4 In fact, as regards this Motion, the FEC has not actually suggested any missing 

facts that render this Court incapable of resolving this case.

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briefed its successful opposition to Plaintiffs’ preliminary injunction motion. Opp’n 

to Mot. for Prelim. Injunction (discussing the parties, relevant statutes, and 

arguments against Plaintiffs’ constitutional claims). The situation in Khachaturian

was very different: there, the district court considered no briefing and made no

factual findings. 980 F.2d at 332. In fact, Khachaturian filed his complaint and 

motion to expedite on September 29, 1992—and that complaint constituted the 

entirety of the record sent to the en banc Court of Appeals. Khachaturian, No. 92-

3232 (E.D. La. 1992) (Dkts. 1 and 2). The FEC was not even given time to answer 

Khachaturian’s complaint. 980 F.2d at 332 (“The district court made no such 

findings [of fact] in this case. In fact, it certified the case to this court on an ex parte

order, without giving the FEC an opportunity to respond”). 

Moreover, Mr. Khachaturian, unlike Plaintiffs here, sought to bring a claim 

squarely foreclosed by Buckley. He “contend[ed] that the Federal Election Campaign 

Act’s $1,000 limit on campaign contributions [wa]s unconstitutional as applied to 

his candidacy.” Khachaturian, 980 F.2d at 330. Since Buckley had already 

“considered, and rejected, claims that the contribution limit invidiously 

discriminates against independent and minor-party candidates as a class,” the Court 

of Appeals determined that “Khachaturian must demonstrate that the $1,000 limit 

had a serious adverse effect on the initiation and scope of his candidacy.” Id. at 331. 

Because the complaint had not done so, the Fifth Circuit remanded to the district 

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court to consider whether Mr. Khachaturian’s case was frivolous. Id. at 332. In this

context, the Fifth Circuit noted that “immediate adjudication” by the Court of 

Appeals “would be improper...where the resolution of such questions required a 

fully developed factual record.” Id. at 331 (citing Cal. Med., 453 U.S. at 192)

(quotation marks omitted). But a factual record both necessary and sufficient to 

determine the outcome of this case has already been developed and certified.

The FEC may be correct that § 30110 motions have “frequently 

involved...allowing the parties to conduct discovery and submit proposed findings 

of fact.” FEC Mot. at 19. Nevertheless, deciding how facts are to be determined and 

certified remains well within the discretion of the district court, should it consider 

additional facts necessary to resolve a constitutional issue. Moreover, all of the cases 

the FEC cites in attacking the sufficiency of the facts certified here were decided

before this Court’s ruling in Wagner. This is important because Wagner deprived 

district court of jurisdiction to hear the merits of Plaintiffs’ case, and reaffirmed § 

30110’s purpose as ensuring “the public’s interest in having questions of FECA’s 

constitutionality speedily resolved.” 717 F.3d at 1013. Plaintiffs submit that the 

practice of allowing multiple years of extensive discovery, dueling factual

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submissions, and—effectively—summary judgment briefing contradicts the clear 

language of § 30110.5

Here, there is no need for the district court to conduct additional discovery 

and briefing. Wagner, 717 F.3d at 1013. Further delay would only frustrate the 

public interest and legislative intent undergirding § 30110.

ii. A remand to district court would create substantial delay, 

burdening both Plaintiffs’ constitutionally protected 

expression, and the sound functioning of the federal courts.

The FEC’s central concern is “burden[ing] the court of appeals [so] as to 

impede the sound functioning of the federal courts.” FEC Mot. at 12 (citation and 

quotation marks omitted). Plaintiffs are surprised that the Commission raises such 

concerns, given its insistence upon protracting this litigation with this motion, its

demand for further discovery, and its belief that the district court must consider

additional, extensive, unnecessary factors before certification. This case isscheduled 

for oral argument, and Plaintiffs file their opening brief on the merits 

5 See SpeechNow.org v. FEC, No. 08-248 (D.D.C. 2009) (district court, after

deciding that certifying questions was appropriate, spent July 29, 2008-September 

29, 2009 overseeing discovery and competing briefing on findings of fact) (Dkt. 40, 

Dkt. 73); Libertarian Nat’l Comm. v. FEC, No. 11-562 (D.D.C.), 13-5094 (D.C. 

Cir.) (after two years of extensive discovery, briefing on findings of fact and oral 

argument in district court, and full briefing and a written opinion concerning FEC’s 

FED. R. CIV. P. 59e motion, certified question about constitutionality of contribution 

limits as applied to bequests was ultimately mooted because so much time had 

passed that the bequest’s res dropped below the contribution limit); Mariani v. FEC, 

80 F. Supp. 2d 352, 354 (M.D. Pa. 1999) (district court spent 216 days between 

finding questions non-frivolous and issuing findings of fact).

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contemporaneously with this brief. For all its concern about “assuring that section 

30110 does not disrupt the dockets of the courts of appeals,” granting the FEC’s 

motion would be disruptive to both this Court and the district court. FEC Mot. at 16.

Moreover, remand would likely impose additional First Amendment injury.

“A constitutional challenge to FECA’s provisions clouds the rights and 

obligations of all Americans in the area of utmost constitutional protection. Th[is] 

uncertainty was precisely what the Congress sought to remove by commanding 

expedited resolution of challenges to FECA.” Wagner, 717 F.3d at 1014. The entire 

purpose of § 30110 is to ensure that First Amendment challenges are resolved with 

dispatch, so as to prevent this harm. Buckley, 519 F.2d at 819 (observing the 

“intention of Congress for expedition in appellate disposition”). 

As Chief Justice Roberts observed in a controlling opinion, litigation 

involving fundamental First Amendment freedoms “must entail minimal if any

discovery, to allow parties to resolve disputes quickly without chilling speech 

through the threat of burdensome litigation.” FEC v. Wisconsin Right to Life, 551 

U.S. 449, 469 (2007) (emphasis supplied). “[E]xtensive discovery,” on the other 

hand, inevitably creates “litigation [which] constitutes a severe burden on political 

speech” and association. Id. at 468 n. 5. This Court has, in the past, taken pains to 

avoid such extensive proceedings. In Wagner, for example, this Court allowed just

“five days” for “the district court to make appropriate findings of fact, as necessary, 

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and to certify those facts and the constitutional questions to the en banc court of 

appeals.” 717 F.3d at 1017. Here, the necessary facts and the constitutional questions 

are already before this Court. There is no need for further delay.

III. Because certification of questions pursuant to § 30110 does not 

dispose of or resolve a case, the Commission’s due process 

objection is misplaced. 

The FEC suggests that the district court’s decision to certify constitutional 

questions amounts to a violation of the fundamental equitable principle that “[n]o 

‘lawsuit[] can[] be resolved with due process of law unless both parties have had a 

fair opportunity to present their cases.’” FEC Mot. at 10 (quoting Pernell v. Southall 

Realty, 416 U.S. 363, 385 (1974)) (emphasis FEC’s).

This assertion is deeply flawed. In certifying questions, the district court was 

not purporting to “resolve” any lawsuit—a position the FEC has itself taken in 

another case. Libertarian Nat’l Comm. v. FEC, No. 11-562, Order on Mot. for 

Taxation of Costs (Dkt. 72) at 2 (D.D.C., Dec. 12, 2014) (denying LNC’s bill of 

costs on the grounds that obtaining certification of a constitutional question is not a 

“favorable judgment” or a “court-ordered change in the legal relationship of the 

parties...accompanied by judicial relief”) (citation and quotation marks omitted).

There is no due process right to avoid certification to this Court. The Commission 

has a full opportunity to defend the constitutionality of the challenged statute before 

this Court, precisely as Congress intended.

19

USCA Case #14-5281 Document #1531459 Filed: 01/12/2015 Page 20 of 22
CONCLUSION

The Commission’s motion for remand should be denied.

Respectfully submitted this 12th day of January, 2015,

/s/ Allen Dickerson 

Allen Dickerson (D.C. Cir. No. 54137) 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

adickerson@campaignfreedom.org

Counsel for Plaintiffs

20

USCA Case #14-5281 Document #1531459 Filed: 01/12/2015 Page 21 of 22
CERTIFICATE OF SERVICE

I hereby certify that on January 12, 2014, I electronically filed Plaintiffs’ 

foregoing Opposition to the FEC’s Motion for Remand with the Clerk of the United 

States Court of Appeals for the District of Columbia Circuit by using the Court’s 

CM/ECF system. I further certify that the requisite number of paper copies were 

hand delivered to the Clerk’s office.

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

Erin Rebecca Chlopak 

echlopak@fec.gov 

Kevin Andrew Deeley, Esq. 

kdeeley@fec.gov 

Steve Nicholas Hajjar, Esq. 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650

s/ Allen Dickerson 

Allen Dickerson (D.C. Cir. No. 54137) 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

adickerson@campaignfreedom.org

USCA Case #14-5281 Document #1531459 Filed: 01/12/2015 Page 22 of 22