UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________

)

LIBERTARIAN NATIONAL )

COMMITTEE, INC., )

) No. 13-5094

Plaintiff-Appellant, )

)

v. )

)

FEDERAL ELECTION ) MOTION FOR 

COMMISSION, ) SUMMARY AFFIRMANCE

)

Defendant-Appellee. )

_________________________________ )

APPELLEE FEDERAL ELECTION COMMISSION’S

MOTION FOR SUMMARY AFFIRMANCE

Appellee Federal Election Commission (“FEC” or “Commission”) 

respectfully moves for summary affirmance of the district court’s decision that the 

claim of appellant Libertarian National Committee, Inc. (“LNC”) is frivolous. 

(Memorandum Opinion (“Mem. Op.”) and Order, Civ. No. 11-0562 (RLW) 

(D.D.C. Mar. 18, 2013) (Docket Nos. 41 and 42) (copy attached as Exhibit 1).) 

The LNC asserts that the contribution limit that applies under the Federal Election 

Campaign Act (“FECA”) to bequests made to national party committees, currently 

$32,400 per year, violates the First Amendment. Pursuant to a special judicial 

review provision in FECA, 2 U.S.C. § 437h, the LNC asked the district court to 

certify this claim directly to the Court of Appeals sitting en banc. 

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The district court properly found the LNC’s claim frivolous and granted 

partial summary judgment to the Commission. The Supreme Court has repeatedly

held that large contributions to political parties can cause corruption or appear 

corrupt, and that FECA’s limits on such contributions are thus constitutionally 

sound. Given those landmark rulings, the LNC’s claim plainly fails. Because no 

benefit would be gained from further briefing and argument on these issues, this 

Court should summarily affirm the district court’s dismissal. 

LEGAL AND FACTUAL BACKGROUND

A. The FEC and the Federal Election Campaign Act

The FEC is an independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement 

of FECA. 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Congress enacted FECA 

primarily “to limit the actuality and appearance of corruption resulting from large 

individual financial contributions[.]” Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per 

curiam). 

B. FECA’s Limit on Contributions to National Political Parties

FECA has placed dollar limitations on contributions to federal candidates 

and national political party committees for nearly forty years. See 2 U.S.C. 

§ 441a(a)(1)(A)-(B); Buckley, 424 U.S. at 12-13, 38. While FECA currently limits 

contributions to candidates to $2,600 per election, 2 U.S.C. § 441a(a)(1)(A), it 

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allows individuals to contribute up to $32,400 per calendar year to national 

political party committees such as the LNC, id. §§ 441a(a)(1)(B), 441i(a)(1).

1

 This 

$32,400 limit also applies to contributions made by an individual’s estate to a 

political party. FEC Advisory Op. 2004-02, 2004 WL 1402536, at *2 (Feb. 26, 

2004). Therefore, when an individual dies and leaves money to a political party in 

his or her will, the party may receive the full amount from the decedent’s estate, 

but only in annual amounts that comply with FECA’s $32,400 limit. Id.

C. Appellant Libertarian National Committee, Inc.

Appellant LNC is the national committee of the Libertarian Party. (Mem. 

Op. at 2.) In April 2007, an individual named Raymond Groves Burrington died, 

and his will contained a $217,734 bequest to the LNC. (Id.) The Burrington estate 

has since made annual contributions from the bequest to the LNC in amounts that 

comply with FECA’s limit. (See id. at 34-35, ¶¶ 36-37, 39-40.)

D. Proceedings Before the District Court

The LNC alleges that FECA’s limits on contributions to national party 

committees violate the First Amendment when applied to decedents’ bequests to 

parties. (Mem. Op. at 3.) The LNC invoked a special judicial review provision

that applies to certain constitutional challenges to FECA. See 2 U.S.C. § 437h. 

 1 See also Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530, 8532 

(Feb. 6, 2013) (adjusting section 441a(a)’s limits for inflation). 

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Section 437h requires a district court to (1) make findings of fact; (2) determine 

whether the constitutional challenge is “frivolous or involve[s] settled legal 

questions”; and (3) “immediately certify the record and all non-frivolous

constitutional questions to the en banc court of appeals.” Wagner v. FEC, 717 

F.3d 1007, 1009 (D.C. Cir. 2013) (emphasis added). 

After the parties compiled a record in the district court (Mem. Op. at 3), the 

LNC moved to certify the following constitutional question to the en banc Court

under section 437h:

Does imposing annual contribution limits against testamentary 

bequests directed at, or accepted or solicited by political party 

committees, violate First Amendment speech and associational 

rights?

(Id.) The Commission opposed and sought summary judgment (id. at 1), pointing

out that the Supreme Court, in Buckley and McConnell v. FEC, 540 U.S. 93, 142-

61 (2003), had already upheld the facial validity of FECA’s limits on contributions

and found that limits on contributions to national parties are valid methods of 

preventing corruption and its appearance. See infra pp. 8-9. The FEC then 

demonstrated that unlimited bequeathed contributions to political parties would 

present the same threats of corruption. See infra p. 10.

The district court agreed with the Commission that the LNC’s question, as 

stated, is frivolous and therefore does not warrant section 437h certification. 

(Mem. Op. at 18-22.) The district court also granted in part the Commission’s 

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motion for summary judgment.2

 (Id. at 29.) The district court held that the LNC’s 

question was frivolous because it “raises issues that the Supreme Court has already 

addressed.” (Id. at 19.) Specifically, bequests to political parties “may very well 

raise the anti-corruption concerns that motivated the Buckley and McConnell

Courts to dismiss a facial attack on contribution limits.” (Id. at 20.) The district 

court further rejected certification of the LNC’s proposed question because it 

encompassed not simply the Burrington bequest to the LNC, but “all bequests to 

all political parties,” and therefore it presented “hypothetical questions about 

parties not involved in this litigation.” (Id. at 18-19 (emphases added).) 

The district court also denied in part the FEC’s motion, made findings of 

fact (Mem. Op. at 29-48), and certified a narrowed question to the en banc Court 

that addresses only the Burrington bequest to the LNC (id. at 23-28):

Does imposing annual contribution limits against the bequest of 

Raymond Groves Burrington violate the First Amendment 

rights of the Libertarian National Committee?

 2 The district court’s determination that the LNC’s question is frivolous 

required the court to grant the FEC’s motion for summary judgment. The standard 

of review for determining whether a question is frivolous under section 437h lies 

“somewhere between a motion to dismiss . . . and a motion for summary 

judgment’” — therefore, it “‘follows that any question that the Court finds 

‘frivolous’ is also appropriate for summary judgment.’” (Mem. Op. at 12 (quoting 

Cao v. FEC, 688 F. Supp. 2d 498, 503 (E.D. La. 2010), aff’d sub nom. In re Cao, 

619 F.3d 410 (5th Cir. 2010), cert. denied, 131 S. Ct. 1718 (2011)).)

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(Id. at 28.) The certified question is pending before the en banc Court in a separate 

matter numbered 13-5088. 

E. Proceedings Before This Court 

On April 22, 2013, the LNC moved to consolidate this appeal with matter

number 13-5088 before the en banc Court. (See LNC’s Pet. for Initial Hr’g En 

Banc and Mot. to Consolidate Related Appeals (Doc. No. 1432045).) The FEC

opposed that motion, arguing that consolidation would amount to a summary 

reversal of the district court’s ruling that the LNC’s broader question is frivolous 

and therefore unworthy of en banc consideration. (See Appellee FEC’s Resp. in 

Opp’n to Appellant LNC’s Mot. to Consolidate Related Appeals (Doc. No. 

1445147).) The LNC’s motion was denied on September 23, 2013 by this Court, 

sitting en banc. (Per Curiam Order (en banc) at 2 (Doc. No. 1457785).) The en 

banc Court also granted the LNC’s request that, in the event consolidation was 

denied, this matter (No. 13-5094) be set for briefing, argument, and decision prior 

to scheduling of the en banc matter (No. 13-5088). (Id.)

F. Standards of Review 

This Court’s review of the district court’s ruling is de novo. Judicial Watch, 

Inc. v. United States Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (summary 

judgment reviewed de novo); Goland v. United States, 903 F.2d 1247, 1252 (9th 

Cir. 1990) (section 437h ruling reviewed de novo). 

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Summary affirmance is appropriate where “[t]he merits of the parties’ 

positions are so clear as to warrant summary action,” Hassan v. FEC, No. 12-5335, 

2013 WL 1164506, at *1 (D.C. Cir. Mar. 11, 2013) (per curiam), and “no benefit 

will be gained from further briefing and argument of the issues presented,” 

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987) (granting 

summary affirmance).

ARGUMENT

The LNC’s broad question is frivolous because the general merits of the 

national-party contribution limit have been addressed in previous Supreme Court 

rulings, and the district court correctly dismissed the LNC’s question on this basis. 

(See Mem. Op. at 19-22.) Generally, a “plaintiff cannot successfully bring an asapplied challenge to a statutory provision based on the same factual and legal 

arguments the Supreme Court expressly considered when rejecting a facial 

challenge to that provision. Doing so is not so much an as-applied challenge as it 

is an argument for overruling a precedent.” Republican Nat’l Comm. v. FEC, 698 

F. Supp. 2d 150, 157 (D.D.C.) (three-judge court), aff’d, 130 S. Ct. 3544 (2010). 

In Republican National Committee, a three-judge district court rejected an asapplied challenge to FECA’s limits on contributions to political parties on the basis 

of the Supreme Court’s facial upholding of that limit in McConnell. Id. at 153, 

156-62. The Supreme Court affirmed that ruling. 130 S. Ct. at 3544. 

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Here, as in Republican National Committee, the district court correctly 

dismissed the as-applied challenge presented “because it raises issues that the 

Supreme Court has already addressed” in Buckley and McConnell. (Mem. Op. at 

19.) In those cases, the Supreme Court rejected challenges by, among others, the 

Libertarian Party and upheld the facial validity of FECA’s contribution limits on 

the basis of the same corruption concerns that the district court here found would 

be raised by unlimited bequeathed contributions to political parties. (Id. at 19-22.) 

In Buckley, after the Libertarian Party and others brought suit, the Supreme 

Court upheld the facial constitutionality of FECA’s limits on contributions to 

candidates in light of the “deeply disturbing examples” of corruption relating to 

contributions found in the record, and the Court concluded that FECA’s purpose of 

“limit[ing] the actuality and appearance of corruption resulting from large 

individual financial contributions” was a “constitutionally sufficient justification” 

for the limits. 424 U.S. at 26-29. The Court also upheld FECA’s annual $25,000 

aggregate contribution limit, explaining that it prevents individuals from

circumventing the limit on contributions to candidates with “huge contributions to 

the candidate’s political party.” Id. at 38.

Subsequently, in McConnell, after the Act’s limits had begun to be 

circumvented through the use of funds given in unlimited amounts and ostensibly 

used for nonfederal elections, the Court upheld the facial constitutionality of 

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Congress’s 2002 ban on such “soft money” contributions to national political 

parties. 540 U.S. at 142-61. On the basis of a voluminous record, the Court found 

that “there [was] substantial evidence to support Congress’ determination that large

soft-money contributions to national political parties give rise to corruption and the 

appearance of corruption.” Id. at 154. Further, the Court emphasized that the 

“idea that large contributions to a national party can corrupt or, at the very least, 

create the appearance of corruption of federal candidates and officeholders is 

neither novel nor implausible.” Id. at 144.

The Court in McConnell relied “not only on the selling of access in 

exchange for soft-money contributions, . . . but also on ‘the close relationship 

between federal officeholders and the national parties.’” Republican National 

Committee, 698 F. Supp. 2d at 159 (quoting McConnell, 540 U.S. at 154). Indeed, 

“there was ‘no meaningful separation between the national party committees and 

the public officials who control them,’” and “contributions to national parties have 

much the same tendency as contributions to federal candidates to result in quid pro 

quo corruption or at least the appearance of quid pro quo corruption.” Id. (quoting 

McConnell, 540 U.S. at 155). The Court thus rejected the challenge by the LNC

and others to the fortification of the national-party contribution limit through 

elimination of the soft-money loophole. 

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Despite Buckley and McConnell, the LNC contends here that a large 

contribution to a national party is no longer potentially corrupting and will no 

longer look corrupt simply because it is bequeathed. (See Mem. Op. at 20-21.) 

The district court rejected that contention, however, and correctly concluded that

“bequests . . . may very well raise the anti-corruption concerns that motivated the 

Buckley and McConnell Courts to dismiss a facial attack on contribution limits.” 

(Id. at 20.) If bequeathed contributions were no longer limited by FECA, national 

party committees could sell access to their candidates and officeholders in 

exchange for donors recording or otherwise promising large bequests in their wills, 

just as the parties once sold access for unlimited soft-money contributions before 

that practice was banned (as detailed in McConnell, 540 U.S. at 146-54). (See

Mem. Op. at 21.) Alternatively, the national party committees could, upon 

receiving a large bequest, grant the access to officeholders that the deceased donor 

purchased and would have received to his or her friends, family, or associates. 

(See id. at 20.)

Indeed, even the LNC conceded that in certain cases (involving soliciting 

bequests from “terminally-ill individual[s]”) bequeathed contributions could raise 

valid anti-corruption concerns that justify FECA’s limits. (Mem. Op. at 20.) The 

district court therefore concluded that the risk of corruption “should be the same 

for bequests as for other contributions.” (Id. at 21.) 

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The LNC’s broad claim thus “raises issues that the Supreme Court has 

already addressed,” and the Court “already closed this door in Buckley, McConnell, 

and other cases by rejecting facial attacks to contribution limits.” (Mem. Op. at 19, 

21.) Congress is permitted to enact “preventative” contribution limits, Citizens 

United v. FEC, 558 U.S. 310, 357 (2010), even though “most large contributors do 

not seek improper influence over a candidate’s position or an officeholder’s 

action,” Buckley, 424 U.S. at 29. The Supreme Court’s rejection of the Libertarian 

Party’s challenge to contribution limits in Buckley “remains good law” (Mem. Op. 

at 18), as does its rejection of the LNC’s challenge in McConnell ten years ago and 

its summary affirmance of Republican National Committee three years ago. 

Though now narrowed to the context of bequests, there is no reason for this Court 

to provide full briefing and oral argument on the LNC’s attempted additional bite 

at the apple. 

CONCLUSION

This Court should summarily affirm the grant of partial summary judgment 

to the Commission because, as the district court held, the LNC’s claim is frivolous. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel

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12

Harry J. Summers

Assistant General Counsel

Holly J. Baker

Attorney

/s/ Kevin P. Hancock

Kevin P. Hancock 

Attorney

November 8, 2013 FOR THE APPELLEE

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

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UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________

)

LIBERTARIAN NATIONAL )

COMMITTEE, INC. )

) No. 13-5094

Plaintiff-Appellant, )

)

v. )

)

FEDERAL ELECTION ) CERTIFICATE OF SERVICE

COMMISSION, )

)

Defendant-Appellee. )

_________________________________)

CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2013, I electronically filed the 

Commission’s Motion for Summary Affirmance with the Clerk of the Court of 

United States Court of Appeals for the District of Columbia Circuit by using the 

Court’s CM/ECF system.

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

Alan Gura 

GURA & POSSESSKY, PLLC 

101 North Columbus Street 

Suite 405 

Alexandria, VA 22314 

(703) 835-9085 

alan@gurapossessky.com

USCA Case #13-5094 Document #1465546 Filed: 11/08/2013 Page 13 of 14
2

Allen Joseph Dickerson 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

adickerson@campaignfreedom.org

/s/ Kevin P. Hancock

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

khancock@fec.gov

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