ORAL ARGUMENT NOT YET SCHEDULED

No. 15-5120

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LAURA HOLMES AND PAUL JOST,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On appeal from the United States District Court

for the District of Columbia, No. 1:14-cv-1243 (RMC)

Reply Brief for Laura Holmes and Paul Jost

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

Tyler Martinez (D.C. Cir. No. 54964)

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiffs-Appellants

September 30, 2015

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 1 of 39
i

Table of Contents

Table of Contents.....................................................................................................i

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

Glossary of Abbreviations ....................................................................................vii

Introduction............................................................................................................. 1

Statutes and Regulations......................................................................................... 1

Summary of the Argument...................................................................................... 1

Argument................................................................................................................. 4

I. The Commission’s merits argument concerning FECA’s per-election 

contribution division is mistaken and irrelevant to the applicability of 

Section 30110 .......................................................................................... 4

a. Appellants’ view of the “base limit” is supported by the Supreme 

Court’s most recent examination of the federal candidate contribution 

limits................................................................................................... 7

b. FECA’s per-election limits, and the regulatory system based upon 

them, harm Appellants’ ability to associate with candidates of their 

choice.................................................................................................. 9

II. Buckley was a facial challenge that specifically reserved judgment 

concerning future, as-applied challenges to FECA. This is such a 

challenge................................................................................................11

III. The district court improperly failed to certify Appellants’ substantial 

Fifth Amendment claim.........................................................................13

a. FECA, as applied here, imposes unequal outcomes on similarly 

situated contributors.........................................................................13

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 2 of 39
ii

b. The applicable standard of review involving rights at “the foundation 

of a free society” is not rational basis .............................................. 16

IV. This constitutional challenge is substantial under the applicable law. The 

FECs interpretations are unavailing ...................................................... 18

a. Congress, the Supreme Court, and the Courts of Appeals mandate 

adherence to § 30110........................................................................18

b. The FEC’s string citation to other cases does nothing to illuminate 

the substantiality of Ms. Holmes and Mr. Jost’s claims .................. 24

c. The FEC’s use of the Khachaturian district court opinion was 

inapposite and contrary to this Court’s rules.................................... 27

Conclusion ............................................................................................................29

Certificate of Compliance .....................................................................................30

Certificate of Service ............................................................................................31

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 3 of 39
iii

Table of Authorities1

Cases

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,

564 U.S. ___, 131 S. Ct. 2806 (2011) ........................................................ 15

Bread Political Action Committee v. FEC, 

455 U.S. 577 (1982)....................................................................................19

* Buckley v. Valeo, 

424 U.S. 1 (1976)......................................................9, 11, 12, 16, 22, 25, 27

Buckley v. Valeo, 

519 F.2d 817 (D.C. Cir. 1975)....................................................................25

California Medical Association v. FEC, 

453 U.S. 182 (1981)..............................................................................19, 20

* Cao v. FEC,

688 F. Supp. 2d 498 (E.D. La. 2010) ...............................................3, 22, 23

Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 

569 F.3d 485 (D.C. Cir. 2009)....................................................................28

Davis v. FEC, 

554 U.S. 724 (2008)....................................................................................15

FEC v. Colorado Republican Federal Campaign Committee, 

533 U.S. 431 (2001)....................................................................................22

FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981) ........ 10

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007)....................................................................................12

 1 Authorities upon which Appellants chiefly rely are marked with asterisks.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 4 of 39
iv

Gifford v. Congress, 

452 F.Supp. 802 (E.D. Cal. 1978).............................................................. 26

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990)....................................................................21

Judd v. FEC, 

304 F. App’x 874 (D.C. Cir. 2008) ......................................................24, 25

Judd v. FEC, 

No. 08-1290, 2008 U.S. Dist. LEXIS 57495 (D.D.C. July 28, 2008)........ 24

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992)......................................................................27

Libertarian National Committee v. FEC, No. 13-5088, Order (D.C. Cir. Mar. 26, 

2014), ECF No. 1485531 (en banc)............................................................ 22

Libertarian National Committee v. FEC, 

930 F. Supp. 2d. 154 (D.D.C. 2013)....................................................... 3, 21

Mariani v. United States, 

212 F.3d 761 (3d Cir. 2000) .......................................................................20

* McCutcheon v. FEC, 

572 U.S. ___, 134 S. Ct. 1434 (2014) ..................................2, 7, 8, 9, 16, 17

National Committee of the Reform Party v. Democratic National Committee, 

168 F.3d 360 (9th Cir. 1990)................................................................25, 26

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 477 (2000)....................................................................................16

Republican National Committee v. FEC (In re Anh Cao), 

619 F.3d 410 (5th Cir. 2010)......................................................................23

* Riddle v. Hickenlooper, 

742 F.3d 922 (10th Cir. 2014)....................................................................15

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 5 of 39
v

SpeechNow.org v. FEC, No. 08-0248 (JR), 2009 U.S. Dist. LEXIS 89011 (D.D.C. 

Sept. 28, 2009)............................................................................................23

SpeechNow.org v. FEC, No. 08-0248 (JR), Order (D.D.C. July 29, 2008), ECF 

No. 40..........................................................................................................23

* Wagner v. FEC, 

717 F.3d 1007 (D.C. Cir. 2013)..................................................3, 18, 19, 20

* Wagner v. FEC, 

793 F.3d 1 (D.C. Cir. 2015)..................................................................17, 18

Whitmore v. FEC,

68 F.3d 1212 (9th Cir. 1995)......................................................................26

Wisconsin Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006)..............................................................................12, 13

Statutes

28 U.S.C. § 1915A................................................................................................25

52 U.S.C. § 30101 et seq......................................................................................... 1

52 U.S.C. § 30101(1)(A)......................................................................................... 6

52 U.S.C. § 30106(b).............................................................................................. 6

* 52 U.S.C. § 30110........................................3, 4, 7, 18, 19, 20, 21, 23, 24, 25, 29

52 U.S.C. § 30116................................................................................................... 6

52 U.S.C. § 30116(a)(1).......................................................................................... 4

52 U.S.C. § 30116(c) .............................................................................................. 4

52 U.S.C. § 30118(a) ............................................................................................20

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 6 of 39
vi

Rules

D.C. Cir. R. 32.1(b)(2)..........................................................................................28

11 C.F.R. § 110.1(b)(3)(i).....................................................................................10

11 C.F.R. § 110.1(b)(5)(ii)(B) ..........................................................................6, 10

Other Authorities

FEC, Notice 1987-1, Contribution and Expenditure Limitations and Prohibitions; 

Contributions by Persons and Multicandidate Political Committees, 

52 Fed. Reg. 760 (Jan. 9, 1987).................................................................... 6

FEC, “Khacaturian v. FEC” 

http://www.fec.gov/law/litigation_CCA_K.shtml#khachaturian............... 28

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 7 of 39
vii

Glossary of Abbreviations

BCRA – Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 

(2002).

FEC or Commission – Federal Election Commission

FECA – Federal Election Campaign Act of 1971, Pub. L. 92-225, 86 Stat. 3 (1972); 

the Federal Election Campaign Act Amendments of 1974, Pub. L. 93-443, 

88 Stat. 1263 (1974) and Federal Election Campaign Act Amendments of 

1976, Pub. L. 94-283, 90 Stat. 475 (1976).

JA – Joint Appendix

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 8 of 39
1

Introduction

The Appellants, Mr. Jost and Ms. Holmes, would like to contribute the full 

$5,200 allowed by campaign finance laws, no more. They wish to do so after the 

primary election settles who will challenge incumbent members of Congress with 

whom they disagree. If they give their money—in a single check—the day before 

the primary, there is no issue with the Federal Election Campaign Act (“FECA”), 52 

U.S.C. § 30101 et seq. If they give their money in the same, single check the day 

after the primary, however, they would violate FECA. The Federal Election 

Commission (“FEC” or “Commission”) has failed to and cannot justify this 

improper tailoring of FECA to their circumstances. The only issue before this Court 

is whether Appellants may challenge this improper tailoring under the certification 

procedure Congress directed for constitutional challenges to FECA. 

Statutes and Regulations

All applicable portions of the Federal Election Campaign Act (“FECA”) and 

the Commission’s interpretive regulations are reproduced in the Addendum to the 

Opening Brief for Plaintiffs-Appellants. 

Summary of the Argument

This case does not come to this Court on the merits, but rather on the narrow, 

procedural question of whether the district court erred in not certifying questions of 

law to this Court, sitting en banc. Ms. Holmes and Mr. Jost simply ask for the 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 9 of 39
2

certification procedure prescribed by Congress, which this Court has held is the 

“exclusive means” for resolving constitutional challenges to FECA. 

The FEC disagrees with Appellants on the merits, and its Answer Brief 

predominantly focuses on that disagreement. But that is not the issue before this 

panel. And even when the Commission addresses the issue before this panel—

certification—it mischaracterizes Appellants’ arguments and the case law.

The Commission reads FECA as emphasizing that each contribution limit is 

for each election. Ans. Br. 23-25. Appellants challenge that per-election division as 

not serving an appropriate governmental interest. In responding to Appellants’ 

constitutional point, the Commission refuses to carry its burden to justify the law. 

Instead, the FEC turns exacting scrutiny on its head by arguing that Appellants must 

demonstrate why application of the law to them is unconstitutional.

As detailed in the Opening Brief, the courts, the Commission, the regulated 

community, and the press all recognize that a candidate may raise $5,200 from a 

donor in an election cycle. Op. Br. at 31-33. The Supreme Court’s latest major 

campaign contribution case, McCutcheon v. FEC, 572 U.S. ___, 134 S. Ct. 1434 

(2014), based its reasoning on such combined “base limits” for contributions. See, 

e.g., id. at 1452. Even the dissents in McCutcheon understood the law to operate this 

way. See Op. Br. at 39-40. Thus at least eight of the Supreme Court justices 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 10 of 39
3

understand that Congress designed a system where a single contributor may give up 

to $5,200 to the candidate of their choice. 

But because FECA splits the $5,200 base limit between the primary and 

general elections, a contributor donating after the primary may only give half that 

amount—$2,600. This bifurcation applies to the majority of races, and in particular

to those at issue in this as-applied challenge. The question of whether Congress may 

divide the overall contribution limit on a per-election basis is a question of first 

impression, which necessitates en banc review under 52 U.S.C. § 30110, “the 

exclusive means of obtaining judicial review in those cases to which it applies.” 

Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013) (“Wagner I”) (internal 

citation omitted). In short, certification of valid constitutional questions is 

mandatory. 

Cases such as Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010), and 

Libertarian National Committee v. FEC, 930 F. Supp. 2d. 154 (D.D.C. 2013),

demonstrate that all non-trivial challenges under § 30110 ought to be certified—

even when the Supreme Court has had multiple opportunities to approve the 

challenged provision of FECA on other grounds. To these cases, the Commission 

has no substantive response. 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 11 of 39
4

This is a novel case about the right to contribute, a fundamental right that rests 

at the foundation of a self-governing, democratic state. It ought to be heard, on the 

merits, by this Court sitting en banc.

Argument

I. The Commission’s merits argument concerning FECA’s per-election 

contribution division is mistaken and irrelevant to the applicability of 

Section 30110.

The FEC’s Answer Brief relies upon a sophistic reading of FECA’s “perelection” candidate contribution limits to sidestep Appellant’s argument and confuse 

the procedural issue before this Court. Ans. Br. at 23. 

As detailed in the Opening Brief, the courts, the Commission, the regulated 

community, and the press all recognize that a candidate may raise $5,2002 from a 

donor in an election cycle. Op. Br. at 31-33. But under present law, FECA divides 

this amount: in the overwhelming majority of elections, contributors may give half 

the base limit in the primary election and half in the general election. So, while a 

contributor is entitled by statute to give $5,200 to a candidate, that contributor must 

bifurcate her giving based upon the timing of a particular state’s primary election. 

Once that election has passed, she may no longer donate $5,200 to a candidate. 

 2 Originally set at $2,000 ($1000 for the primary and $1,000 for the general election), 

the limit was doubled by Congress in 2002 and indexed for inflation. See Op. Br. at 

31 (detailing history and citing JA 272, ¶ 6; 52 U.S.C. §§ 30116(a)(1), (c); JA 273, 

¶ 9).

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 12 of 39
5

The relevant merits question is whether this system serves to prevent 

corruption or its appearance, and the relevant question here is whether that specific 

question has been previously answered. The FEC prefers to avoid both. Instead, it

takes a highly technical view of FECA, emphasizing that each contribution limit is 

for each election. Ans. Br. at 23-25. While superficially true, this approach ignores 

political reality: a donation to an unchallenged candidate during the primary season 

will inevitably be used to further that candidate’s general election ambitions.

More importantly, the FEC’s reading ignores the manner in which the statute 

functions as a whole, and it consequently produces an absurd result. Under the FEC’s 

view, there can be no judicial review of FECA’s decision to subdivide a noncorrupting contribution on a per-election basis precisely because it is subdivided. 

This approach is akin to avoiding judicial review of a minor’s life sentence by 

instead imposing one-hundred consecutive one-year sentences. The better method,

and the one adopted by the Supreme Court when it reviewed contribution limits just 

last year in McCutcheon v. FEC, is to read the statute as a whole in determining the 

noncorrupting contribution level announced by Congress.

That approach is consistent with the FEC’s own long-standing regulations, 

which have always recognized that a candidate may raise combined contributions 

(primary and general) from a donor in an election cycle. That is, a donor may give 

$5,200 in one day, in a single check, to be split between the primary and general 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 13 of 39
6

elections—so long as it is done up to the day of the primary. See 11 C.F.R. 

§ 110.1(b)(5)(ii)(B). Such regulation was promulgated pursuant to the per-election 

construction of FECA. See, e.g., FEC, Notice 1987-1, Contribution and Expenditure 

Limitations and Prohibitions; Contributions by Persons and Multicandidate Political 

Committees, 52 Fed. Reg. 760, 763 (Jan. 9, 1987), available at

http://www.fec.gov/law/cfr/ej_compilation/1987/1987-1.pdf (interpreting 52 U.S.C. 

§ 30116 and providing guidance on counting pre-primary contributions toward the 

general election as well). 

To bolster its myopic view of the “per-election” contribution limits, the FEC 

implies that primary and general elections are fundamentally different. Ans. Br. at 

24 (noting that “primaries serve the purpose of determining, in accordance with State 

law, which candidates are nominated,” while “[g]eneral elections, by contrast, are 

held to fill a vacancy in a Federal office”) (internal quotation marks omitted) 

(emphasis in Answer Brief). As a statutory matter, this difference in purposes is 

irrelevant; FECA regulates all elections, irrespective of their effect. 52 U.S.C. 

§ 30101(1)(A) (defining “election” as “a general, special, primary, or runoff 

election”); 52 U.S.C. § 30106(b) (“[t]he Commission shall administer, seek to obtain 

compliance with, and formulate policy with respect to, this Act”).

But, more importantly, the fact that primaries nominate candidates for office 

and general elections seat candidates in office is irrelevant to the government’s 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 14 of 39
7

interest in combatting corruption and its appearance. The question here is simple: 

we know that candidates may accept $5,200 from individuals without implicating 

the corruption interest—so why does it matter if a candidate receives that check the 

day before the primary election or the day after?

Finally, the FEC attempts to avoid the obvious fact that the overwhelming 

majority of races, and in particular the ones involved in this as-applied challenge, 

involve primary and general election contests. The Answer Brief dismisses this fact

in a footnote, Ans. Br. at 26 n.4, and cites a handful of special elections conducted 

over a span of thirteen years, id. at 24-25. None of these rare occasions is relevant.

Appellants seek as-applied relief concerning contributions to traditional campaigns

where special elections are not a consideration. See Op. Br. at 33 n.9. 

The Commission cannot point to a single decision addressing FECA’s 

decision to bifurcate and thus limit a noncorrupting contribution. That fact is 

dispositive. Its argument that no bifurcation exists is incorrect and, more 

importantly, irrelevant. Those arguments should be addressed to this Court, sitting 

en banc, pursuant to 52 U.S.C. § 30110. 

a. Appellants’ view of the “base limit” is supported by the Supreme 

Court’s most recent examination of the federal candidate 

contribution limits.

As discussed supra, FECA establishes a “base limit” that is $5,200 per 

candidate per election cycle. See Op. Br. at 37-42 (discussing McCutcheon v. FEC, 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 15 of 39
8

572 U.S. ___, 134 S. Ct. 1434 (2014)). Indeed, as explored in the Opening Brief,

McCutcheon’s analysis only makes sense if there is a total “base limit” of $5,200. 

The Opening Brief explained how integral this understanding of the “base 

limit” was to the Court. Eight justices joined opinions that discussed the combined 

primary and general contributions as the “base limits” Congress set under which, by 

definition, the contributions do not implicate the anticorruption interest. See Op. Br. 

at 38-39. The Answer Brief was dismissive of these extensive quotations from 

McCutcheon, calling them “shorthand” and “dicta.” Ans. Br. at 28-29. This 

characterization, also found in the district court opinion, JA 303, ignores the 

fundamental role the base limits played in the McCutcheon opinion. 

Writing for the plurality, Chief Justice John Roberts wrote: “[i]f there is no 

corruption concern in giving nine candidates up to $5,200 each, it is difficult to 

understand how a tenth candidate can be regarded as corruptible if given $1,801.” 

McCutcheon, 134 S. Ct. at 1452 (emphasis added). This statement presupposes, as 

Appellants do here, that Congress has blessed contributions of $5,200 for purposes 

of the anticorruption interest. That is, the Court has held that once Congress has set 

the level at which a contribution is noncorrupting, no governmental interest justifies 

additional contribution limits. Id. at 1448 (“The individual may give up to $5,200

each to nine candidates, but the aggregate limits constitute an outright ban on further 

contributions to any other candidate” (emphasis added)). 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 16 of 39
9

The existence of the combined primary and general election limits was at the 

core of the Court’s holding, and therefore not dicta. This was fully explored in the 

Opening Brief at pages 40-41, and it is simply ignored by the Commission’s Answer. 

In any event, as argued in the Opening Brief and unrefuted by the Answer Brief, 

“[e]ven assuming the McCutcheon passages are ‘dicta,’ . . . the district court was 

still bound by the Supreme Court’s reasoning.” Op. Br. at 39 n.13 (collecting cases 

from this Court and other Circuits from 1963 through 2013). 

b. FECA’s per-election limits, and the regulatory system based upon 

them, harm Appellants’ ability to associate with candidates of their 

choice. 

Contrary to the FEC’s claims, Ans. Br. at 34, it is FECA’s per-election limit 

that causes Appellants’ injury. FECA’s per-election structure allows some 

contributors to give $5,200 for general election purposes but restricts others—like 

Ms. Holmes and Mr. Jost—to only $2,600. That limitation is real and serves no 

relevant governmental interest. As discussed at length in the Opening Brief, it has 

always been recognized that a candidate may raise $5,200 (originally $2,000) from 

a donor in an election cycle pursuant to Congress’s judgment that $5,200 from a 

single contributor does not pose a danger of corruption. Op. Br. at 31-32; Buckley v. 

Valeo, 424 U.S. 1, 30 (1976); McCutcheon, 134 S. Ct. at 1452.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 17 of 39
10

The FEC, as a creature of statute, has written regulations appropriately 

premised upon Congress’s bifurcation of this limit.

3 And while not themselves the

cause of Appellants’ injury, the Commission’s regulations loyally implement the 

statute that does cause it.

Contributions given for a primary can be carried over to a general election. 11 

C.F.R. § 110.1(b)(5)(ii)(B). Thus, a contributor who gives $5,200 in earmarked 

contributions the day before a primary election may functionally give $5,200 for 

general election purposes. And, as outlined in the Opening Brief, the FEC has 

demonstrated that there is no anticorruption interest preventing a $5,200 contribution 

after the primary election by permitting such donations in very limited 

circumstances. 11 C.F.R. § 110.1(b)(3)(i) (limiting use of the “primary” portion of 

the funds to retiring outstanding debts from that specific, prior election); Op. Br. at 

32-33. But, barring the limited circumstance of outstanding campaign debts, the 

contributor is limited to a single $2,600 contribution for the general election. This 

per-election division thus favors certain contributors by doubling the scope of their 

 3 Obviously, the FEC cannot write a regulation contrary to statute. The Supreme 

Court has repeatedly held that courts “must reject administrative constructions of the 

statute, whether reached by adjudication or by rulemaking, that are inconsistent with 

the statutory mandate or that frustrate the policy that Congress sought to implement.” 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981). No such 

rejection has taken place for the Commission’s regulations on the bifurcation of 

candidate contribution limits between the primary and general elections.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 18 of 39
11

association rights, doing so as a matter of both regulatory and statutory design, while 

restricting that right for others. 

The FEC repeatedly suggests that Appellants’ “injury is entirely selfimposed” because Appellants made a “choice” not to give in the primary. See, e.g.,

Ans. Br. at 18-19. That choice was made, and Appellants have explained why. See 

Op. Br. at 7-8. But the burden is not on Appellants to show that their preferred means 

of giving is prudent, beneficial, or sound (although it is all of those things). The 

burden is on the FEC to demonstrate, under exacting scrutiny, that legally 

prohibiting their preferred means of contributing serves the government’s 

anticorruption interest.

Even were this appeal addressed to the merits of Appellants’ claims, the FEC 

could not carry this burden. But here, that burden is substantially heavier: because 

this Court—sitting en banc—has sole jurisdiction over Appellants’ claims, the 

Commission must show that those claims are not merely mistaken but already

considered and foreclosed by binding precedent. This it cannot do.

II. Buckley was a facial challenge that specifically reserved judgement 

concerning future, as-applied challenges to FECA. This is such a 

challenge.

The Buckley Court encountered a facial challenge to FECA’s contribution 

limits. Buckley, 424 U.S. 29 (First Amendment facial overbreadth challenge); id. at 

30-31 (Fifth Amendment challenge noting that “appellants argue that the . . . 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 19 of 39
12

statutory provisions must be declared unconstitutional on their face”). The Buckley

Court’s rejection of a facial challenge cannot foreclose all future as-applied 

challenges. Indeed, the Buckley Court recognized the possibility of future challenges 

that would raise “more serious argument[s] that [FECA’s] limitations . . . invidiously 

discriminate.” Id. at 31 n.33; see also Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 

411-412 (2006) (“WRTL I”) (noting that the Supreme Court, “[i]n upholding [a 

statute] against a facial challenge, [does] not purport to resolve future as-applied 

challenges”). This case raises such an as-applied challenge. 

The FEC argues that the district court correctly rejected Appellants arguments 

because the Buckley Court rejected a facial challenge to “FECA’s per-election limit.” 

Answer Br. at 21. This argument is inapposite, however, because Appellants raise 

an as-applied challenge, not the facial challenge brought in Buckley. 

Furthermore, the difference in the standards applied in as-applied as opposed 

to facial challenges diminishes the persuasive value of the Buckley Court’s ruling. 

First Amendment facial claims, like those addressed in Buckley, face a “heavy 

burden.” See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 456 (2007) (“WRTL 

II”); Buckley, 424 U.S. at 31 (“a court should generally be hesitant to invalidate 

legislation which on its face imposes evenhanded restrictions”). In contrast, where, 

as here, a party seeks narrower relief, as-applied challenges are appropriate even 

where the Supreme Court has upheld the relevant statute against a facial challenge. 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 20 of 39
13

See WRTL I, 546 U.S. at 411-12 (directing district court to consider as-applied 

challenge to BCRA regarding particular type of advertisement plaintiff wished to 

run, even though the Supreme Court had upheld the statute against a facial 

challenge). 

Moreover, despite its insistence that Appellants’ as-applied claims are

“foreclose[d]” (Ans. Br. at 32, 37, 43), the FEC fails to cite to any as-applied 

challenge involving similar facts and legal arguments. Indeed, even if Buckley had 

involved an as-applied challenge, Buckley still could not control because it addressed 

the facial claims of a minor party candidate concerned about loss of funding, 

whereas this case addresses the associational rights of contributors whose rights are

arbitrarily halved based upon the timing of a contribution. See Opening Brief at 42-

43, 44 n. 15, 45-46.

Accordingly, the FEC has failed to demonstrate that Appellants’ case is 

foreclosed by Supreme Court precedent. 

III. The district court improperly failed to certify Appellants’ substantial 

Fifth Amendment claim. 

a. FECA, as applied here, imposes unequal outcomes on similarly 

situated contributors.

The Commission’s Answer Brief notes that “the core concern of the 

Constitution’s equal protection guarantee is shielding against arbitrary government 

classifications.” Ans. Br. at 38 (punctuation altered) (internal quotation marks 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 21 of 39
14

omitted). Quite so. Here, Appellants maintain that FECA’s per-election division of 

the contribution limits works arbitrary and unequal results. No court has stated 

otherwise.

Despite the FEC’s protestations to the contrary, any person giving $5,200 to 

an unopposed Republican candidate for U.S. Senate in Iowa before the primary 

election knows that these funds will not be used during the primary campaign to

defeat other Republican candidates. Rather, that person knows that the full $5,200 

will go to advance the general election prospects of the (assured) Republican 

nominee. But, if the Democratic Party has a contested primary race for that same 

Senate seat, no Democratic donor can similarly give a full $5,200 for the general 

election campaign. 

Nevertheless, the FEC insists that classifying different contributors based on

when they contribute does not impose a Fifth Amendment harm. Whether this 

classification, which treats contributors differently and hinders some from the full 

exercise of their associational liberties, is constitutional is a merits question for 

another day. But it is clear that no court, and certainly no decision of the Supreme 

Court, has addressed and foreclosed that question.

Forgetting that this is not an appeal on the merits, the FEC attempts to turn 

this judicial silence to its advantage. Hence it claims that that “no case supports”—

at least directly—Appellants’ “equal protection claims.” Ans. Br. at 43

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 22 of 39
15

(capitalization altered). But the Commission goes further, suggesting that Davis v. 

FEC, 554 U.S. 724 (2008), Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 564 U.S. ___, 131 S. Ct. 2806 (2011), and Riddle v. Hickenlooper, 742 F.3d 

922 (10th Cir. 2014), indicate that the Supreme Court has closed the door on equal 

protection challenges to FECA. Ans. Br. at 43. This is incorrect.

Davis struck down a law requiring certain candidates to “remain[] subject to 

the [contribution] limitations,” but permitting “the candidate’s opponent . . . [to] 

receive individual contributions at treble the normal limit.” Davis, 554 U.S. at 729, 

744-45. Arizona Free Enterprise struck a statute with similar asymmetric effects for 

campaign treasuries. 131 S. Ct. at 2818-19, 2828-29. And Riddle struck a state 

statute—under the Fifth Amendment—that allowed some general election 

candidates to receive, for the general election, twice as much money from individual 

donors as other candidates. 742 F.3d at 924-25, 929-30.

It is true that none of these cases directly control the matter at hand, because 

it is quite literally unprecedented. But it does not follow that Davis, Arizona Free 

Enterprise, and Riddle have no persuasive value. Rather, they suggest that—given 

the Supreme Court and lower courts’ prior treatment of contribution limits having 

an asymmetric effect—Appellants’ Fifth Amendment challenge deserves a hearing 

on the merits.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 23 of 39
16

b. The applicable standard of review involving rights at “the 

foundation of a free society” is not rational basis.

Having argued that FECA’s per-election classification is not a classification, 

the Commission suggests that “the per-election contribution limit easily satisfies the 

applicable level of constitutional review.” Ans. Br. at 46 (capitalization altered). 

Leaving aside that this statement concerns the merits of Appellants’ claim, it also 

contains a significant legal error. Specifically, the FEC argues that the per-election 

contribution limit “would be subject to nothing more than the most deferential 

standard of review” because it does not “infringe[] fundamental constitutional 

rights.” Id. (internal quotation marks omitted). 

The right to contribute is “a basic constitutional freedom that . . . lies at the 

foundation of a free society.” Buckley, 424 U.S. at 25 (citation omitted) (internal 

quotation marks omitted). As with all fundamental liberties, the Government may 

constitutionally infringe the right to contribute, under the proper circumstances. See, 

e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 381, 397-98 (2000) (upholding 

state $1,075 limit on contributions to candidates). This does not make that right any 

less fundamental, or minimize the need to scrutinize that infringing activity. Just two

Terms ago, the Supreme Court stated that the ability to “contribute to a candidate’s 

campaign” was part and parcel of the “right to participate in electing our political 

leaders,” which the Court characterized as the most basic right that Americans enjoy.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 24 of 39
17

McCutcheon, 134 S. Ct. at 1440-1441. Here, Appellants seek only to fully embrace 

that right to the exact same level enjoyed by others, and for the same purposes. The 

Commission’s suggestion that contribution limits are subject to “the most deferential 

standard of review” is not and has never been the law.

The Commission compounds its error by suggesting that this Court’s recent 

ruling in Wagner v. FEC, 793 F.3d 1, 32 (D.C. Cir. 2015) (“Wagner II”), supports 

the application of a rational basis standard. Ans. Br. at 48 (“This Court recently 

confirmed, en banc, that plaintiffs cannot obtain more scrutiny for a constitutional 

challenge to a statutory contribution limit” by seeking review under the equal 

protection doctrine). But, unlike Appellants in their Opening Brief, the Commission 

neglects to note that the Wagner II Court nevertheless applied heightened scrutiny, 

not rational basis review. Op. Br. at 51.

Regardless, Appellants reiterate that Wagner is inapplicable to this case. 

Wagner was resolved upon consideration of “the state’s interest in ‘allowing 

governmental entities to perform their functions,’” an interest not implicated by 

Appellants. Op. Br. at 52 (quoting Wagner II, 793 F.3d at 8). This is because the 

Wagner plaintiffs were government contractors, not general members of the public, 

and so were subject to special restrictions on their political contributions. Wagner II, 

793 F.3d at 6-7 (collecting cases approving special regulation of government 

employees). Moreover, unlike in Wagner—a merits determination wherein plaintiffs 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 25 of 39
18

acknowledged no instance of an equal protection challenge succeeding where a First 

Amendment challenge had failed—“the Riddle case provides ample evidence that 

Fifth Amendment remedies are available when contribution limits violate the equal 

protection of the laws.” Op. Br. at 52.

Accordingly, Appellants’ novel, substantial claim ought to be certified for 

merits review by the en banc Court.

IV. This constitutional challenge is substantial under the applicable law. 

The FECs interpretations are unavailing.

Contrary to the FEC’s arguments, see, e.g., Ans. Br. at 49-62, applicable 

precedent demonstrates that this case presents questions of unsettled law and,

consequently, a substantial constitutional challenge. 

a. Congress, the Supreme Court, and the Courts of Appeals mandate 

adherence to § 30110. 

As Appellants discussed before, see Op. Br. at 9, Congress mandated 

expedited review of constitutional challenges to FECA. See 52 U.S.C. § 30110; 

Wagner I, 717 F.3d at 1011 (holding that § 30110 provides “the exclusive means of 

obtaining judicial review”); see also id. (noting that Congress’s intent was to deprive 

district courts and circuit court panels of jurisdiction and that the statute “grant[ed] 

exclusive merits jurisdiction to the en banc court of appeals”).4 Appellants and 

 4 This Court, en banc, decided the merits of the Wagner challenge in Wagner II, 793 

F.3d 1.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 26 of 39
19

Appellee disagree, however, whether the exception to § 30110 for “frivolous or . . . 

settled legal questions” applies. Wagner I, 717 F.3d at 1009; see Op. Br. at 19-20; 

Ans. Br. at 50-51.

The FEC has consistently argued that the district courts must serve a 

“gatekeeping function” for the sake of judicial economy See, e.g., Ans. Br. at 51 

(citing Bread Political Action Comm. v. FEC, 455 U.S. 577 (1982)). But as noted in 

the Opening Brief, see Op. Br. at 18, 20-21, this point is overstated. The Supreme 

Court in Bread PAC recognized the potential burden imposed by § 30110’s 

expedited review provision, but nonetheless emphasized that “[j]urisdictional 

statutes [like § 30110] are to be construed with precision and with fidelity to the 

terms by which Congress has expressed its wishes.” Bread PAC, 455 U.S. at 580

(internal quotation marks omitted). Unlike the claimant at issue in Bread PAC, there 

is no doubt that Appellants are within the class entitled by statute to that expedited 

provision, and fidelity to Congress’s wishes requires that this case be heard en banc. 

The Supreme Court’s decision in California Medical Ass’n v. FEC, 453 U.S. 

182 (1981) (“Cal. Med.”), similarly undercuts the FEC’s judicial economy 

argument. See Ans. Br. at 51-52. The Cal. Med. Court considered similar arguments 

and cautioned against “exaggerat[ing] the burden [§ 30110] actions have placed on 

the federal courts.” 453 U.S. at 192 n.13. In short, the Supreme Court has 

unambiguously rejected attempts to second-guess Congress’s judgment in enacting 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 27 of 39
20

§ 30110 or to circumscribe that provision’s clear language. Therefore, the relevant 

test under FECA is straightforward: constitutional challenges must proceed under 

§ 30110’s special review provisions unless they “are frivolous or involve settled 

legal questions.” Wagner I, 717 F.3d at 1009. 

As noted in the Opening Brief, the tests for “frivolousness” and “settled legal 

questions” is the same: whether a party raises an issue that has already been 

definitively decided. Op. Br. at 18-19 (citing Cal. Med. 453 U.S. at 192 n. 14 and 

Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (en banc)). The FEC took 

exception to this characterization, saying, “Holmes and Jost have no authority for 

their expansive interpretation.” Ans. Br. at 54. This is incorrect.

In Mariani, the Third Circuit determined that a question was not “frivolous” 

by examining whether it was settled law. Mariani, 212 F.3d at 769 (“Mariani’s claim 

is not frivolous . . . Mariani’s challenge to [52 U.S.C] § [30118](a) is not simply a 

sophistic twist, but can fairly be characterized as a new challenge” (citations 

omitted) (internal quotation marks omitted)). The Cal. Med. Court similarly linked 

a claim’s weight to the novelty of the legal question it presented. Cal. Med. 453 U.S. 

at 192 n.14 (“as evidenced by the divided en banc court below, the issues here are 

neither insubstantial nor settled. We therefore conclude that this case is properly 

before us pursuant to § [30110]”).

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 28 of 39
21

The Court of Appeals decisions cited by the FEC either fail to support its 

arguments or support certification here. For example, while the Ninth Circuit 

ultimately rejected a challenge in Goland v. United States, 903 F.2d 1247 (9th Cir. 

1990), the court nonetheless held that “[o]nce a core provision of FECA has been 

reviewed and approved by the courts, unanticipated variations also may deserve the 

full attention of the appellate court.” Goland, 903 F.2d at 1257; compare Ans. Br. at 

55. Thus, while “not every sophistic twist that arguably presents a ‘new’ question 

should be certified,” Goland, 903 F.2d at 1257, district courts ought to certify 

questions that pose genuinely new questions. Because the Supreme Court has never 

considered the constitutionality of the per-election limitation on contributions as it 

applies here, Goland supports Appellants’ argument. See Op. Br. at 19-20. 

Likewise, the FEC’s discussion of Libertarian National Committee v. FEC, 

930 F. Supp. 2d. 154 (D.D.C. 2013) (“LNC”), largely avoids the Opening Brief’s 

discussion of the case. See Ans. Br. at 56-57; Op. Br. at 28-29. Both the Opening 

Brief and Answer Brief acknowledged that some questions—namely, the facial 

challenge in LNC—were found inappropriate for certification. Compare Op. Br. at 

28-29, with Ans. Br. at 56. The importance of the LNC ruling, however, lies in its

recognition that the § 30110 procedure is jurisdictional and requires a judge to

reframe a plaintiff’s claims in order to preserve any viable challenge. See LNC, 930 

F.Supp. 2d at 171. The Answer Brief disregards LNC as involving “completely 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 29 of 39
22

aberrant circumstances.” Ans. Br. at 57. But bequests happen with some regularity, 

and the question remains whether a political party may take an unsolicited

contribution in one lump sum.5

The Commission claims that “Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 

2010), also supports the Commission’s position, not Contributors’.” Ans. Br. at 58. 

The Commission points to the two rejected claims in that case while avoiding the 

fact that other claims were in fact certified. In fact, as was mentioned in the Opening 

Brief, the Cao court certified a question that, arguably, had been passed on by two

major Supreme Court decisions: whether the $5,000 contribution limit on PAC-tocandidate contributions was unconstitutional as applied to a political party’s PAC. 

Op. Br. at 24-25. This PAC-to-candidate contribution limit had been upheld in prior 

Supreme Court cases, including Buckley, 424 U.S. at 35-36, and FEC v. Colorado 

Republican Federal Campaign Committee, 533 U.S. 431, 438-39, 465 (2001) 

(“Colorado II”). 

Nevertheless, the Cao district court concluded that this question was 

appropriate for certification because the Supreme Court had never directly 

considered Cao’s argument in either Buckley or Colorado II. Cao, 688 F. Supp. 2d

 5 Because the bequest was exhausted following certification, this Court ruled the 

matter moot. Libertarian National Committee v. FEC, No. 13-5088, Order (D.C. Cir. 

Mar. 26, 2014), ECF No. 1485531 (en banc). 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 30 of 39
23

at 547. The en banc Fifth Circuit determined that this certification was appropriate, 

and considered the challenge on its merits. Republican Nat’l Comm. v. FEC (In re 

Anh Cao), 619 F.3d 410, 420-21 (5th Cir. 2010) (en banc). Buckley’s relative silence 

concerning the claims in this case bear comparison to the Court’s multiple pages of 

analysis concerning PAC contributions. The Cao decisions consequently highlight 

that Appellants’ claims on the bifurcated contribution limits are substantial and do 

not involve settled law—especially as the arguments raised here have simply never 

been considered by the courts of appeals, much less the Supreme Court.

In a footnote, the FEC tries to distinguish the Appellants’ use of 

SpeechNow.org v. FEC, No. 08-0248 (JR), 2009 U.S. Dist. LEXIS 89011 (D.D.C. 

Sept. 28, 2009). Ans. Br. at 62 n.10. Citing an unpublished order, the Answer Brief 

counters that “the district court [in SpeechNow.org] had earlier reviewed briefing 

from the parties and determined whether the questions” were substantial. Id. The 

order, however, exemplifies Judge Robertson’s restraint, because he found that

“[t]he motion . . . appears on its face to state questions certifiable under [52 U.S.C. 

§ 30110].” SpeechNow.org v. FEC, No. 08-0248 (JR), Order at 1 (D.D.C. July 29, 

2008), ECF No. 40 (emphasis added). Far from extensive inquiry, the SpeechNow

court performed its duty to certify constitutional questions without deciding their 

merits.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 31 of 39
24

Thus, the cases discussed by the FEC fail to demonstrate that Buckley, or any 

other decision, has considered either the claims raised here or the arguments in 

support of those claims. Consequently, certification is appropriate. 

b. The FEC’s string citation to other cases does nothing to illuminate 

the substantiality of Ms. Holmes and Mr. Jost’s claims. 

The FEC’s string citation to cases where some courts have “refused to certify 

frivolous or settled constitutional claims,” while lengthy, does not alter the 

conclusion that certification is appropriate here. Ans. Br. at 53. Whether a claimant 

brings a substantial constitutional claim is highly dependent on facts and the legal 

challenge presented. 

For example, the Commission’s citation to Judd v. FEC, 304 F. App’x 874, 

875 (D.C. Cir. 2008) (per curiam) is unhelpful. Mr. Judd was a prisoner in Texas, 

whose challenge was characterized by the district court as “fantastic or delusional” 

because he sought, inter alia, “a declaratory judgment that [FECA] [was]

unconstitutional insofar as it . . . require[d] him to file monthly finance reports . . . 

[and] violate[d] the Takings Clause.’” Judd v. FEC, No. 08-1290, 2008 U.S. Dist. 

LEXIS 57495 at *3-4 (D.D.C. July 28, 2008) (citation omitted). As the Court of 

Appeals noted, many of Mr. Judd’s claims were already settled questions. Indeed, 

the challenge was not only frivolous for purposes of the § 30110 procedure, but also 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 32 of 39
25

under the screening procedure for prisoner complaints. Judd, 304 F. App’x at 875-

76 (dismissing under 28 U.S.C. § 1915A, as well as 52 U.S.C. § 30110). 

The FEC’s other cases are equally inapposite. In National Committee of the 

Reform Party of the United States v. Democratic National Committee (“Reform 

Party”), 168 F.3d 360 (9th Cir. 1999), the Reform Party sought to challenge the very 

structure of the FEC itself—twenty five years after the agency’s creation—based on 

the Appointments Clause. Id. at 364-65. The structure of the FEC was a major focal 

point of the Buckley challenge, both in this Court and before the Supreme Court. See

Buckley v. Valeo, 519 F.2d 821, 889-93, 896 (D.C. Cir. 1975); id. at 920-921 (Tamm, 

J., dissenting in part and concurring in part); id. at 923-934 (MacKinnon, J., 

dissenting); see also Buckley, 424 U.S. at 124-143; id. at 267-286 (White, J., 

dissenting in part and concurring in part) (discussing appointment procedures). 

The Reform Party also claimed that the public financing provisions 

discriminated against minor parties. Reform Party, 168 F.3d at 365-66. But that too 

was fully examined in Buckley—which included minor party plaintiffs bringing the 

very same argument based on substantively similar facts. Id.; id. at 367 (“[t]he 

effects about which the Reform Party now complains were understood and taken 

into account by the Supreme Court when it rejected the challenges presented in 

Buckley”); Buckley, 424 U.S. at 93-97. 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 33 of 39
26

The FEC also notes that the Reform Party sought to privatize FECA through 

state common law remedies. Ans. Br. at 53. Those claims were based on state tort 

law, and they sought to privatize FECA to create a private enforcement mechanism. 

Reform Party, 168 F.3d at 364. To compare that claim—a tort claim not cognized 

by FECA—with Appellants’ constitutional argument is unpersuasive. In fact, it 

demonstrates just how far afield a claim must be to merit dismissal rather than 

certification.

The FEC’s remaining cases are equally inapposite. Gifford v. Congress, 452 

F. Supp. 802, 805 (E.D. Cal. 1978) (“plaintiff’s sole constitutional claim [is] that 

Congress does not have the authority to regulate the election campaigns of unofficial 

candidates”); Whitmore v. FEC, 68 F.3d 1212, 1215-16 (9th Cir. 1995) (challenge 

by third-party candidate, based upon political theory as opposed to law, against the 

legality of out-of-state contributions).

In contrast to Whitmore, Gifford, and Reform Party, Appellants in this case 

are not asking the court to bless a political theory, or define “candidate,” or adopt 

state tort law. Instead, Ms. Holmes and Mr. Jost wish to give to the candidates of 

their choice, at the time when the contribution matters most. FECA specifically 

prohibits them from making that contribution just one day after the primary election, 

even though it would be lawful the day before. The Commission’s string of irrelevant 

citations does not change the fact that this circumstance has never been considered.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 34 of 39
27

c. The FEC’s use of the Khachaturian district court opinion was 

inapposite and contrary to this Court’s rules. 

Contrary to the FEC’s assertion, Ans. Br. at 61 n. 9, Appellants correctly 

described and applied Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992). 

First, in their Opening Brief, Appellants described the Fifth Circuit’s 

application of “the extremely high standard for declaring a case insubstantial.” Op. 

Br. at 26. The Opening Brief noted that Mr. “Khachaturian argued[d] that the 

[individual contribution] limit [was] unconstitutional as applied to his independent 

candidacy.” Id. (quoting Khachaturian, 980 F.2d at 331) (brackets in Op. Br.). But, 

as described in the Opening Brief, Buckley had considered the precise claim Mr. 

Khachaturian raised. Id. (citing Khachaturian, 980 F.2d at 331, and Buckley, 424 

U.S. at 33-35). It was thus an instructive case showing the level of specificity needed 

to declare a case “insubstantial.” Appellants acknowledged the outcome in

Khachaturian. Op. Br. at 27 (noting that “unlike in Cao, certification was properly 

declined” in Khachaturian). Thus, Appellants properly used Khachaturian to 

illustrate when a case should not be certified, and contrasted that decision with the 

certified questions in Cao. As both cases are decisions of the Fifth Circuit, the 

contrast is enlightening and helps demonstrate that Appellants’ claims far more 

closely resemble the questions that were certified.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 35 of 39
28

Furthermore, the FEC’s use of an unpublished opinion—not readily available 

anywhere—to describe the end result of the Khachaturian litigation is both improper 

and irrelevant.6 As Appellee admits, citation to the decision contravenes this Court’s 

rules. Ans. Br. at 61 n.9; D.C. Cir. R. 32.1(b)(2). 

But, even if the FEC could properly use the case, it never attempted to show 

that Khachaturian has preclusive effect.7 Neither the Fifth Circuit nor the Eastern 

District of Louisiana examined Appellants’ claims, which are based on different 

facts and legal theories. Thus the Khachaturian opinion has neither res judicata nor 

preclusive effect upon Appellants’ challenge in this Circuit. Instead, the FEC cites 

the unpublished opinion merely to describe the irrelevant end result of the 

Khachaturian litigation.

The FEC’s production of the unpublished order does nothing to counter the 

description of the Fifth Circuit ruling offered by Appellants. As the Opening Brief 

readily acknowledged, certification in Khachaturian was not appropriate because 

 6 The decision is not reported in the West Reporter system, not catalogued in 

LexisNexis, and not downloadable from PACER. Even the FEC’s website, which

often includes the filings and court decisions of cases to which it is a party, has not 

made the Khachaturian district court opinion available. See FEC, “Khachaturian v. 

FEC,” http://www.fec.gov/law/litigation_CCA_K.shtml#khachaturian (reproducing 

only selected phrases from the opinion).

7 See, e.g., Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 

485, 490 (D.C. Cir. 2009) (listing elements for res judicata). 

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 36 of 39
29

Buckley specifically ruled on the precise issue and facts in that case. At this stage, 

that is all that is relevant.

Thus, the FEC’s use of the Khachaturian district court order and its extensive 

but unpersuasive string citations do not change the central fact governing this appeal: 

Appellants’ case presents novel, substantial claims for review by this Court, 

questions that have never been considered, much less passed upon, by any court in 

the country. 

Conclusion

For the foregoing reasons the judgment of the district court should be reversed 

and the merits of Appellants’ constitutional claims certified to this Court, sitting en 

banc, pursuant to 52 U.S.C. § 30110.

Respectfully Submitted,

s/ Allen Dickerson

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

Tyler Martinez (D.C. Cir. No. 54964)

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiffs-Appellants

Dated: September 30, 2015.

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 37 of 39
30

Certificate of Compliance

I hereby certify that this brief complies with the type-volume limitation set 

forth in Federal Rule of Appellate Procedure 32(a)(7)(B)(ii) because it contains 

6,661 words, excluding the parts of the brief exempted by Federal Rule of Appellate 

Procedure 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rules of 

Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a 

proportionally-spaced typeface using Microsoft Word 2010 in Times New Roman

14-point font.

Dated: September 30, 2015 s/ Allen Dickerson

Allen Dickerson

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 38 of 39
31

Certificate of Service

I hereby certify that I electronically filed the foregoing Reply Brief for 

Plaintiffs-Appellants using the court’s CM/ECF system which will automatically 

generate and send by email a Notice of Docket Activity to all registered attorneys 

currently participating in this case, constituting service on those attorneys. D.C. Cir. 

R. 25(d).

Steve Nicholas Hajjar shajjar@fec.gov

Charles P. Kitcher ckitcher@fec.gov

Erin Rebecca Chlopak echlopak@fec.gov

Kevin Andrew Deeley kdeeley@fec.gov

Dated: September 30, 2015 s/ Allen Dickerson

Allen Dickerson

USCA Case #15-5120 Document #1575705 Filed: 09/30/2015 Page 39 of 39