IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

LAURA HOLMES

and

PAUL JOST,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant.

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) Civil Action No. 1:14-cv-01243-RMC

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PLAINTIFFS’ REPLY MEMORANDUM ON MOTION FOR PRELIMINARY 

INJUNCTION

s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

September 15, 2014 Counsel for Plaintiffs

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i

Table of Contents 

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

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

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

Argument .........................................................................................................................................2

I. The Commission Fails to Offer Any Anti-Corruption Rationale for the Bifurcated 

Limit As Applied to Plaintiffs........................................................................................2

A. Plaintiffs do not dispute that Congress may impose contribution limits in order

to prevent actual or apparent quid pro quo corruption ............................................2

B. The Supreme Court requires the government to demonstrate that a restriction on

contributions—structural or otherwise—furthers an anti-corruption interest, and

that the restriction is narrowly drawn to that interest. The FEC has failed to do so 

here...........................................................................................................................5

C. While the Commission mounts a facial defense of the challenged statute,

Plaintiffs have brought an as-applied challenge ......................................................8

D. The recent decision in McCutcheon v. FEC provides strong authority for the

unconstitutionality of the bifurcated contribution limit at issue here ......................9

II. The Bifurcated Contribution Limits Do Not Apply Equally to Plaintiffs and Others

Similarly Situated, Denying Plaintiffs the Equal Protection of the Laws....................10

A. Because the bifurcated limits infringe upon Plaintiffs’ ability to contribute

similarly to those giving to candidates without a significant primary challenger,

they implicate a fundamental right. Therefore, rational basis review is 

inappropriate. .........................................................................................................12

B. FECA’s bifurcated limits restrict the associational rights of supporters of

candidates who faced significant primary opponents as opposed to supporters 

of unchallenged candidates....................................................................................14

C. The Commission misunderstands Plaintiffs’ case law. .........................................15

D. The Commission misunderstands Riddle v. Hickenlooper. ...................................16

III. Plaintiffs Have Demonstrated An Irreparable Harm, Which May Only Be Mitigated

By Entrance of an Injunction. ......................................................................................18

IV. Granting Plaintiffs’ Motion for a Preliminary Injunction is in the Public Interest......21

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ii

Conclusion ...................................................................................................................................... 22

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Table of Authorities

Cases

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

131 S. Ct. 2806 (2011).......................................................................................................15

Bates v. City of Little Rock,

361 U.S. 516 (1960)...........................................................................................................13

Bread PAC v. FEC,

455 U.S. 577 (1982)...........................................................................................................15

* Buckley v. Valeo,

424 U.S. 1 (1976)....................................................................................................... passim

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2007)..........................................................................................19

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985)...........................................................................................................12

Davis v. FEC, 

554 U.S. 724 (2008).......................................................................................................4, 15

Elrod v. Burns,

424 U.S. 347 (1976)...........................................................................................................20

Eu v. San Francisco County Democratic Central Comm., 

489 U.S. 214 (1989)..........................................................................................................19

FEC v. Colo. Republican Fed. Campaign Comm.,

533 U.S. 43 (2001)...............................................................................................................4

Gilmore v. Montgomery,

417 U.S. 556 (1974)...........................................................................................................10

Gordon v. Holder,

721 F. 3d 638 (D.C. Cir. 2013)..........................................................................................22

Holland v. Williams Mt. Coal Co.,

496 F.3d 670 (D.C. Cir. 2007)...........................................................................................16

Ill. State Bd. of Elections v. Socialist Workers Party,

440 U.S. 173 (1985)...........................................................................................................12

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Immigration and Natural. Serv. v. Chadha,

462 U.S. 919 ......................................................................................................................21

Lair v. Bullock,

697 F.3d 1200 (9th Cir. 2012) .............................................................................................7

McConnell v. FEC,

540 U.S. 93 (2003).........................................................................................................3, 13

* McCutcheon v. FEC,

572 U.S. ___, 134 S. Ct. 1434 (2014)........................................................................ passim

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971)...........................................................................................................12

NAACP v. Button,

371 U.S. 415 (1963)...........................................................................................................20

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000).......................................................................................................4, 12

Nordlinger v. Hahn,

505 U.S. 1 (1992)...............................................................................................................11

Randall v. Sorrell,

548 U.S. 230 (2006).....................................................................................................3, 6, 7

* Riddle v. Hickenlooper,

742 F.3d 922 (10th Cir. 2014) .........................................................................13, 16, 17, 18

Rufer v. FEC,

2014 U.S. Dist LEXIS 114762 (Aug. 19, 2014)..........................................................21, 22

United States v. Windsor,

570 U.S. ____, 133 S. Ct. 2675 (2013)..............................................................................18

Wagner v. FEC, 

717 F.3d 1007, 1017 (D.C. Cir. 2013)...............................................................................13

Wagner v. FEC,

854 F. Supp. 2d 83 (D.D.C. 2012).....................................................................................13

Wis. Gas Co. v. Fed. Energy Regulatory Comm’n,

758 F.2d 669 (D.C. Cir. 1985)...........................................................................................19

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Constitutions, Statutes, and Regulations

52 U.S.C. § 30110....................................................................................................................13, 15

11 C.F.R. § 110.1(b)(3)(i)(C).........................................................................................................20

COLO. REV. STAT. §§ 1-45-103.7(3)-(4)........................................................................................18

Other Authorities

120 CONG. REC. 10562 (1974) .........................................................................................................5

Congressional Candidates and Committees, FEDERAL ELECTION COMMISSION 

(June 2014),

http://www.fec.gov/pdf/candgui.pdf..................................................................................17

“Iowa Primary Results”, NEW YORK TIMES (June 4, 2014),

http://elections.nytimes.com/2014/results/primaries/iowa ................................................14

Maureen Straub Kordesh, 

Essay: Navigating the Dark Morass: A First-Year Student’s Guide to the Library,

19 CAMPBELL L. REV. 115 (1996)......................................................................................16

United States Representative in Congress by District, Statewide Direct Primary Election –

Statement of Vote, CALIFORNIA SECRETARY OF STATE (June 3, 2014)

http://www.sos.ca.gov/elections/sov/2014-primary/pdf/63-congress.pdf .........................14

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Introduction

Contribution limits, however understood, can only survive constitutional scrutiny if they 

are “closely drawn” to the prevention of real or apparent quid pro quo corruption. McCutcheon v. 

FEC, 572 U.S. ___, 134 S. Ct. 1434, 1444 (2014). In its opposition briefing, the Federal Election 

Commission (“FEC” or “Commission”) cites no case where the bifurcation of a base 

contribution limit was addressed and upheld, nor does it provide any explanation as to precisely 

how the bifurcation of the federal contribution limit fights corruption. As a result, the FEC has 

provided no evidence that the bifurcated limit is “closely drawn” to an appropriate interest, and 

Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment 

claim.

Furthermore, in this instance, the Federal Election Campaign Act (“FECA”) treats 

Plaintiffs differently from other contributors. Federal law allows individuals to give $5,200 to 

unchallenged candidates, who may use the entire sum for general election purposes. Yet, 

Plaintiffs are prohibited from doing this with respect to two candidates they support, both of 

whom did face primary opponents. Because it imposes this dissimilar treatment, the law deprives 

Plaintiffs of the equal protection of the laws. Accordingly, they have also demonstrated a 

likelihood of success on the merits of their as-applied Fifth Amendment challenge.

Plaintiffs wish to associate with particular candidates in a particular election. Limiting 

their ability to do so imposes a plainly irreparable injury. Moreover, there is no public interest 

whatsoever in the enforcement of an unconstitutional law. 

Consequently, this Court should grant Plaintiffs’ motion.

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Argument

I. The Commission fails to offer any anticorruption rationale for the bifurcated limit 

as applied to Plaintiffs. 

Much of the Commission’s brief recites precedent that, while correctly stated, does not 

resolve this motion. That is because the Commission fails to treat this case as an as-applied 

challenge, instead marshaling arguments and authority appropriate to a facial attack on 

contribution limits generally. Because the Commission cannot demonstrate that the bifurcated 

contribution limit furthers any anticorruption interest as applied to Plaintiffs, (or, indeed, at all) it 

fails to carry its burden and an injunction should issue.

Plaintiffs wish to give $5,200—the dollar amount at which Congress determined there is 

no threat of quid pro quo corruption—to their preferred candidates for purposes of the general 

election. They are prohibited from doing so by federal law. Meanwhile, these candidates’ 

opponents were permitted to receive that exact amount from each of their supporters, for the 

same general election. Whatever purpose this rule may serve, it is not tailored (or even rationally 

related) to the furtherance of an anti-corruption interest. 

A. Plaintiffs do not dispute that Congress may impose contribution limits in 

order to prevent actual or apparent quid pro quo corruption.

The Commission is correct that Congress may constitutionally impose contribution 

limits. It cites a number of cases that stand for this general proposition—which Plaintiffs do not 

dispute. What the FEC does not cite is any case that goes beyond this simple holding to consider 

the question presented here: once Congress says how much a citizen may contribute to a 

candidate, what is the anti-corruption rationale for dividing that amount on a per-election basis?

For instance, Buckley v. Valeo, 424 U.S. 1 (1976), “affirmed the constitutionality of 

FECA’s individual contribution limits” Opp. Br. at 5. This was because, on their face, those 

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limits “served the government’s important anti-corruption interests,” given that, “‘to the extent 

that large contributions are given to secure a political quid pro quo from current and potential 

officeholders, the integrity of our system of representative democracy is undermined.’” Opp. Br. 

at 5 (quoting Buckley, 424 U.S. at 26-27). In addition to preventing actual quid pro quo (dollars 

for official favors) transactions, the Buckley Court held that the base limits were constitutionally 

justified to the extent that they prevented the appearance of such corruption. Opp. Br. at 5 

(citations omitted). 

But this was a facial holding. Buckley nowhere reviewed the per-election element of the 

base contribution limits. Nor did McConnell v. FEC, 540 U.S. 93, 298 (2003) (Kennedy, J., 

concurring in the judgment in part and dissenting in part), another facial decision that merely 

reiterated that the government may limit contributions to prevent corruption, but did not rule on 

the constitutionality of bifurcating that limit—as the FEC’s parenthetical explanation makes 

clear. Opp. Br. at 12 (Justice Kennedy’s McConnell opinion “observ[ed] that Buckley recognized 

Congress’s ‘interest in regulating the appearance of corruption that is ‘inherent in a regime of 

large individual financial contributions’”) (quotation marks omitted). 

The Commission’s myriad examples of judicial deference to legislative determinations 

concerning the level of contribution limits fail for the same reason. See, e.g., Opp. Br. at 20 

(characterizing Buckley as establishing a “general rule that courts do not second-guess 

Congress’s decision regarding the exact dollar figure at which to set a contribution limit”) (citing 

Randall v. Sorrell, 548 U.S. 230, 248 (2006) (Breyer, J., plurality op.) (“In practice, the 

legislature is better equipped to make such empirical judgments, as legislators have particular 

expertise in matters related to the costs and nature of running for office. Thus ordinarily we have 

deferred to the legislature’s determination of such matters.”) (quotation marks and citation 

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omitted); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 446 (2001) (“[T]he 

dollar amount of the limit need not be ‘fine tun[ed]’ . . . .”) (quoting Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 387-88 (2000), alterations in original); cf. Davis v. FEC, 554 U.S. 724, 737 

(2008) (“When contribution limits are challenged as too restrictive, we have extended a measure 

of deference to the judgment of the legislative body that enacted the law.”) (citing Randall, 

Shrink Missouri, and Buckley)). 

But while the courts may lack a “scalpel to probe” the propriety of an exact dollar 

amount,1 Congress has already determined, in this particular election, that $5,200 is the amount 

that may be contributed consistent with preventing quid pro quo corruption. The problem here is 

not one of legal deference on that score. Because plaintiffs do not challenge “the exact dollar 

figure” of the contribution limit, these various judicial statements are beside the point. 

Contributors to David Loebsack and Scott Peters may give each of these candidates $5,200 to 

spend in the general election. Plaintiffs would like to give the same amount to those legislators’

opponents, for the same general election.

This is precisely why Plaintiff’s as-applied challenge to the structure of the base limits is 

novel. They do not challenge the amount they may give to candidates, merely when and how 

they must give it. Plaintiffs readily concede that, to prevent corruption, Congress may limit 

Plaintiffs’ total contributions to these candidates to $5,200.

 

1

See Buckley, 424 U.S. at 30.

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B. The Supreme Court requires the government to demonstrate that a 

restriction on contributions—structural or otherwise—furthers an anticorruption interest, and that the restriction is narrowly drawn to that 

interest. The FEC has failed to do so here.

If none of the Commission’s cases uphold the per-election bifurcation of the federal base 

limit, the question remains whether the bifurcation nonetheless furthers an anti-corruption 

interest.

The Parties agree on the applicable standard of review: in order to justify the bifurcated 

limit, the government must “‘demonstrate [] a sufficiently important interest and employ[] a 

means closely drawn to avoid unnecessary abridgement of associational freedoms.’” Opp. Br. at 

11-12 (quoting McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014)). They also appear to agree 

that the only relevant governmental interest is the prevention of actual or apparent quid pro quo 

corruption. McCutcheon v. FEC, 134 S. Ct. 1434, 1450 (2014) (“This Court has identified only 

one legitimate governmental interest in restricting campaign finances: preventing corruption or 

the appearance of corruption”).

How does the bifurcation of the federal contribution limit prevent corruption? How can 

the same $5,200 be more corrupting if given on the day after the primary election rather than the 

day before? We are never told. 

While the FEC’s brief states that “FECA’s Individual Contribution Limits Are Closely 

Drawn to Prevent Actual and Apparent Corruption,” that section of the brief is dedicated to 

proving that individual contributions limits, as such, are generally constitutional. Opp. Br. at 12. 

For the reasons already given, that effort is unnecessary: Plaintiffs concede this point. The same 

is true for the Commission’s efforts to demonstrate that Congress has the authority to set the 

precise amount of such limits. Opp. Br. at 19. 

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What on-topic authority the opposition brief does present is unpersuasive. Take the 

Commission’s characterization of the plurality opinion in Randall v. Sorrell: 

The Supreme Court has in fact indicated that a per-cycle limit on contributions to

candidates is a “danger sign[]” of potential unconstitutionality as compared to limits that 

are set per-election, precisely the opposite of plaintiffs’ contentions here. See Randall v. 

Sorrell, 548 U.S. 230, 249 (2006) (Breyer, J., plurality op.) (expressing concerns about a 

state election-cycle-based contribution limit).

Opp. Br. at 17 (citing 548 U.S. at 249 (2006)). 

At that page, Justice Breyer notes that: “The Act sets its limits per election cycle, which 

includes both a primary and a general election. Thus, in a gubernatorial race with both primary 

and final election contests, the Act’s contribution limit amounts to $200 per election per 

candidate...” Randall, 548 U.S. at 249. But he says this in order to simplify the math for his next 

point: “These limits are well below the limits th[e] Court upheld in Buckley.” Id. at 250. Because 

FECA has a per-election limit, and Vermont set a per-cycle limit, comparing the two cases 

required a lowest common denominator. Justice Breyer does not state that the per-election-cycle 

limit is itself a “warning sign.” His next paragraph, which compares Vermont’s limits to those in 

multiple other states, makes this clear. Id. at 250-51. As does his conclusion: “In sum, Act 64's 

contribution limits are substantially lower than both the limits we have previously upheld and 

comparable limits in other States.” Id. at 253. Justice Breyer is doing math—not making a 

constitutional claim about per-election limits per se.

The Commission also points to Justice Thomas’s concurrence in Randall. Opp. Br. at 17. 

It is true that Thomas considered the per-election-cycle limit to be one of the Plurality’s “danger 

signs.” Id.; Randall at 268. This is, as just stated, a difficult conclusion to draw from Justice 

Breyer’s text and may reflect a dissenter’s misunderstanding of the controlling opinion. But in 

any event, while the FEC notes that his opinion “discuss[es] inequities created by election-cycleCase 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 12 of 29
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based contribution limits and describe[es] election-cycle structure as ‘constitutionally 

problematic,’” Opp. Br. at 17, Justice Thomas does so because Vermont’s system “substantially 

advantages candidates in a general election who did not face a serious primary challenge.” 

Randall at 268. That is precisely Plaintiffs’ point.

Similarly, in Lair v. Bullock, cited at page 18 of the FEC’s brief, the Ninth Circuit cited 

Justice Thomas for the proposition that per-election-cycle limits were a “danger sign[].” 697 

F.3d 1200, 1208 (9th Cir. 2012) It then, in a cursory, two sentence-analysis, noted that 

“Montana[’s] contribution limits apply to each election in a campaign, so, the amount an 

individual may contribute to a candidate doubles when the candidate participates in a 

contested primary. Id. (quotation marks, brackets, and citation omitted; emphasis supplied). 

Again, this concern is central to Plaintiffs’ claims; the case does not help the FEC.

Of course, each of these cases claimed that a particular contribution limit was too low. 

Randall, 548 U.S. at 248 (“Following Buckley, we must determine whether Act 64’s contribution 

limits prevent candidates from amassing the resources necessary for effective [campaign] 

advocacy; whether they magnify the advantages of incumbency to the point where they put 

challengers to a significant disadvantage; in a word, whether they are too low and too strict to 

survive First Amendment scrutiny”) (citation, quotation marks omitted). In Randall, they were—

but that is not Plaintiffs’ specific claim here, and these cases are beside the point.

In addition to these brief and unhelpful citations, the Commission offers a number of 

reasons why the per-election bifurcation is “sensible” and “equitable.” Opp. Br. at 15, 19. This 

belief seems based upon the FEC’s desire to “account[] for the lack of uniformity in federal 

electoral contests,” specifically the presence of “primary runoff elections” in some states. Id. at 

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15. The Commission makes much of a recent primary runoff in Mississippi. Id. at 16-17. What 

any of this has to do with anti-corruption efforts is never stated.

In sum, the FEC argues that Congress has the authority to set contribution limits, that 

courts should defer to the amount of such limits, and that the current system provides some 

flexibility when dealing with different electoral systems. But it nowhere identifies an anticorruption interest served by bifurcating the federal limit, explains how that interest is served, or 

otherwise carries its burden. 

C. While the Commission mounts a facial defense of the challenged statute, 

Petitioners have brought an as-applied challenge.

Plaintiffs do not request an overhaul of Federal law, or argue for a sweeping remedy that 

will upend election financing. Instead, they seek meaningful review of the facts of their case, 

since there is no precedent resolving the constitutional issue they raise.

The FEC does not meaningfully engage with the facts of Plaintiffs’ as-applied challenge. 

For instance, as mentioned supra, the Commission focuses on a runoff election in Mississippi. 

This is puzzling as neither election in this case involves a runoff, or ever presented the possibility 

of one. Rather, they involve the familiar, two-step election process as it is practiced in Iowa and 

California. In fact, states with runoff elections—like Mississippi—are a distinct minority. As the 

Commission points out, “nine states currently provide for primary runoff elections in federal 

electoral contests under varying circumstances.” (Opp. Br. at 15 n. 4). It never explains why a 

rare situation that may occur in nine states justifies a constitutional violation in the other 41.

Similarly, neither of the candidates Miller-Meeks and DeMaio challenge faced opposition

from within their party in the primary election. Compl. ¶ 40. This is a fact. It is also a fact that

Plaintiffs “can give only half the money as many contributors who have already supported the 

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opposing party candidate.” Id. ¶ 67. That is the crux of their Complaint. But the Commission 

sidesteps these facts in order to focus upon alternate, dissimilar (and rare) examples like

Mississippi’s recent runoff.

Plaintiffs ask for a narrow remedy. Having given nothing to their preferred candidates in 

the primary election, they would now like to contribute the full $5,200 Congress has found to be 

non-corrupting. They ask for this in the routine and familiar context of a two-election contest. 

That the FEC felt the need to make its point with the far less routine example of a primary runoff 

is telling.2

D. The recent decision in McCutcheon v. FEC provides strong authority for the 

unconstitutionality of the bifurcated contribution limit at issue here.

Of the authorities the Commission cites, McCutcheon v. FEC is arguably the most 

analogous. There, the Court took as a given that the base limit on contributions to candidates was

$5,200. McCutcheon v. FEC, 134 S. Ct. 1434, 1448 (2014) (plurality opinion) (“to put it in the 

simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary 

and general election campaigns of ten or more candidates, even if all contributions fall within the 

base limits Congress views as adequate to protect against corruption.”). The Court found that an

additional limit on the number of candidates with whom a donor could associate did not further 

an anticorruption interest, in part because the underlying $5,200 limit already prevents 

corruption. Id. at 1452.

 

2

Plaintiffs do not ask for any relief involving runoff elections. But if they, or another litigant, 

were to do so, there is no reason the FEC could not simply revise the base contribution limit to 

account for the number of elections a candidate has participated in. If, in the case of the cited 

Mississippi primary runoff, Congress has determined that a contribution of $7,800 to those 

candidates is noncorrupting, that is the base limit. Obviously, contributions given earlier in the 

cycle would count against that limit. Equally clearly, the limit would adjust once the runoff 

election became certain. This approach is no more unworkable than applying a distinct limit to 

each of the separate elections.

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In fact, the McCutcheon Court never discusses bifurcation, except to quote FECA. 

FECA’s bifurcation of the base limit was not at issue in that case. But the Court nonetheless 

explicitly stated that “Congress’s selection of a $5,200 base limit indicates its belief that 

contributions of that amount or less do not create a cognizable risk of corruption.” Id. at 1452.

Plaintiffs seek to make that non-corrupting contribution. Other contributors have been 

permitted to make it. Unsurprisingly, given McCutcheon’s clear statement on the subject, the 

Commission has been unable to explain how Plaintiffs’ contributions will lead to quid pro quo 

corruption or its appearance. Without such an explanation, this application of FECA cannot 

survive the heightened scrutiny applicable in contribution limit cases.

II. The Bifurcated Contribution Limits Do Not Apply Equally to Plaintiffs 

and Others Similarly Situated, Denying Plaintiffs the Equal Protection of 

the Laws.

“The Equal Protection Clause of the Fourteenth Amendment...proscribe[s]” against 

“state action of every kind that operates to deny any citizen the equal protection of the laws.” 

Gilmore v. Montgomery, 417 U.S. 556, 565 (1974) (citation and quotation marks omitted). The 

“[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth 

Amendment.” Buckley, 424 U.S. at 93 (citation omitted). 

In conducting its Fifth Amendment equal protection analysis, however, the FEC errs by 

suggesting this case deals with “statutory provisions that do not create any classifications 

whatsoever [and therefore] do not implicate equal protection concerns.” Opp. Br. at 22 (brackets 

supplied). Thus, the Commission argues that “the Act’s per-election limit...does not treat any 

group of persons differently” and therefore “does not classify anyone.” Opp. Br. at 22. The FEC 

also notes that the Supreme Court has previously declined a Fifth Amendment challenge. Opp. 

Br. at 22-23.

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But the FEC’s positions are all related to a facial challenge against contribution limits. Its 

citations to Buckley relate to a challenge positing “that the [FECA] contribution limitations work 

such invidious discrimination between incumbents and challengers that the statutory provisions 

must be declared unconstitutional on their face.” 424 U.S. at 31 (emphasis supplied). This is 

inapposite for two reasons. First, Plaintiffs bring a challenge as applied to a specific set of 

circumstances. Second, that set of circumstances 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.3Buckley itself recognized that FECA could pose significant equal protection concerns. 

Buckley, 424 U.S. at 31, n. 33 (“The appearance of fairness, however, may not reflect political 

reality”).

Indeed, one could be forgiven for reading the FEC’s brief and believing that Plaintiffs 

posed such a challenge. But Plaintiffs do not believe the contribution limits are facially invalid—

Buckley forecloses that possibility—but, rather, that the bifurcated limits prevent Plaintiffs from 

fully associating with their preferred candidates in the same matter as contributors who would 

have given $5,200 to the opponents of Mr. DeMaio and Dr. Miller-Meeks on June 2, 2014. 

The Constitution’s guarantee of equal protection is designed to “keep[] governmental 

decisionmakers from treating differently persons who are in all relevant respects alike.” 

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citation omitted). In this case, the government has 

implicitly classified contributors giving certain amounts to candidates on the basis of whether 

that candidate faces a primary challenger or not. It also classifies contributors based upon 

whether they give for the general election by a certain, arbitrary date.

 

3 It is true that such candidates are often likely to be incumbents, but that fact is not necessary to 

Plaintiffs’ claims.

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Plaintiffs may prevail under an as-applied equal protection challenge to an otherwise 

proper statute. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (city’s zoning 

ordinance invalid under equal protection insofar as it necessitated a special permit for a particular 

group home for the mentally handicapped); Ill. State Bd. of Elections v. Socialist Workers Party, 

440 U.S. 173, 187 (1985) (striking down, under equal protection, the “Illinois Election 

Code...insofar as it requires independent candidates and new political parties to obtain more than 

25,000 signatures in Chicago”). Indeed, in the equal protection context, determining if a law is 

unconstitutional “in the circumstances here...is the preferred course of adjudication.” City of 

Cleburne, 473 U.S. at 447. Simply because “the distinction between [primary and 

general]...elections undoubtedly is valid for some purposes does not resolve whether it is valid 

as applied here.” Ill. State B.d of Elections, 440 U.S. at 184.

A. Because the bifurcated limits infringe upon Plaintiffs’ ability to contribute 

similarly to those giving to candidates without a significant primary 

challenger, they implicate a fundamental right. Therefore, rational basis 

review is inappropriate.

The Commission argues that asymmetric contribution limits do not impinge upon a 

fundamental constitutional right. But this is belied by the Supreme Court’s ruling just last Term 

that “[t]here is no right more basic in our democracy that the right to participate in electing our 

political leaders.” McCutcheon v. FEC, 134 S. Ct. at 1440. The McCutcheon Court explicitly 

determined that one the methods of “exercis[ing] that right” was by “contribut[ing] to a 

candidate’s campaign.” Id. at 1441. 

Nor is McCutcheon an outlier—even cases which have determined that contribution 

limits were constitutionally drawn to deter against corruption or the appearance thereof have 

recognized the foundational nature of the freedom to contribute. Shrink Missouri, 528 U.S. at

386 (contribution limits implicate “the constitutional guarantee” of free association and “has its 

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fullest and most urgent application precisely to the conduct of campaigns for political office”) 

(citing Buckley, 424 U.S. at 15, quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).

The Commission’s suggestion that there is no “fundamental right to structure candidate 

contributions” misses the point. Opp. Br. at 25 (quotation marks omitted, emphasis removed)

The right to contribute is a fundamental one—it “lies at the foundation of a free society.” 

Buckley, 424 U.S at 25 (quotation marks and citations omitted). This fundamental liberty may 

unconstitutionally be impinged directly, such as by extinguishing the right of certain contributors 

to give at all. McConnell v. FEC, 540 U.S. at 231-232 (finding prohibition on contributions by 

persons “17 years old or younger” unconstitutional under the First Amendment). 

But the right to make political contributions, like all First Amendment guarantees, is 

“protected not only against heavy-handed frontal attack, but also from being stifled by more 

subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) 

(citations omitted). And the two most recent courts to consider equal protection challenges to 

contribution limit regimes have agreed that heightened scrutiny is required. In the Wagner case,

4

this court determined that rational basis review was inappropriate given that “Plaintiffs do 

contend that the challenged provision improperly burdens their fundamental right to associate.” 

Wagner, 854 F. Supp. 2d at 96. Meanwhile, the Tenth Circuit in Riddle v. Hickenlooper actually 

gave serious consideration to the fact that strict scrutiny might apply in the equal protection 

context before simply “assum[ing] that” First Amendment scrutiny “applies when contributors 

challenge contribution limits based on the Fourteenth Amendment’s Equal Protection Clause 

rather than the First Amendment.” 742 F.3d 922, 928 (10th Cir. 2014).

 

4 Wagner v. FEC, 854 F. Supp. 2d 83 (D.D.C. 2012). The D.C. Circuit, on appeal, determined 

that the Wagner plaintiffs claims should have been heard under the expedited review procedure 

of 2 U.S.C. § 437h (now 52 U.S.C. § 30110). Wagner v. FEC, 717 F.3d 1007, 1017 (D.C. Cir. 

2013).

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 19 of 29
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B. FECA’s bifurcated limits restrict the associational rights of supporters of 

candidates who faced significant primary opponents as opponents to 

supporters of unchallenged candidates.

The FEC argues that “Plaintiffs have failed to present any...[constitutionally relevant] 

evidence of discrimination.” Opp. Br. at 28. But it is an uncontested fact that any contributor 

could give $5,200 to an unchallenged candidate, such as Rep. Dave Loebsack, during the 

primary election, with the full and reasonable expectation that the full contribution would be 

used for the purpose of succeeding in the forthcoming general election. After all, that is the only 

election in which he is actually participating in any real sense.

In this vein, the Commission notes that “[b]ecause FECA defines ‘election’ to include 

various types of electoral contests, the total amount that one may contribute to a particular 

candidate during a particular election cycle depends on how many elections that candidate must 

participate in to successfully pursue the federal office being sought.” Opp. Br. at 6. The problem 

is that candidates who are unopposed before the general election have not “participated” in two 

elections, but can collect money as if they have. The fact that one’s name is on the ballot—for 

example, in an unopposed primary election, in the case of David Loebsack,5or as the only 

Democrat on a “top two” ballot, in the case of Scott Peters6—does not require “participation” in 

that election.

 

5

“Iowa Primary Results”, NEW YORK TIMES (June 4, 2014), 

http://elections.nytimes.com/2014/results/primaries/iowa.

6

Four candidates sought to advance to the general election for the 52nd Congressional district: 

Democratic incumbent Scott Peters, and three Republican candidates. United States 

Representative in Congress by District, Statewide Direct Primary Election – Statement of Vote, 

CALIFORNIA SECRETARY OF STATE (June 3, 2014), http://www.sos.ca.gov/elections/sov/2014-

primary/pdf/63-congress.pdf.

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But one could not say the same for supporters of Dr. Miller-Meeks, who did have to face

other candidates in order to secure the Republican nomination. The bifurcation is particularly 

troublesome for those, such as Plaintiffs, who wish to give only to party nominees. While there 

are certainly unchallenged candidates that Plaintiffs could also give a full $5,200 to, those 

candidates are not Mr. DeMaio and Dr. Miller-Meeks. Thus, FECA’s provisions are not 

“evenhanded contribution restrictions on all candidates and contributors.” Opp. Br. at 27

(capitalization omitted). That is the core of Plaintiffs’ equal protection challenge.

C. The Commission misunderstands Plaintiffs’ case law.

The FEC’s briefing spends a number of pages arguing that Plaintiff inappropriately cited 

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

Bennett, 564 U.S. ___, 131 S. Ct. 2806 (2011). Opp. Br. at 28-31. But the Commission’s grounds 

are nothing more than the fact that Davis and Arizona Free Enterprise are not precisely on point. 

Opp. Br. at 30 (distinguishing BCRA provision challenged in Davis from the bifurcated limits, 

and arguing that “Arizona Free Enterprise thus fails to support plaintiffs’ arguments largely for 

the same reasons”). But the mere fact that the Millionaire’s Amendment and Arizona’s matching 

funds scheme are distinct from the statute at issue here does not render the Supreme Court’s 

holdings irrelevant. Rather, as discussed in Plaintiffs’ Opening Brief, these cases “can only be 

read as expressing the Court’s concern, explicitly raised in both Buckley and Davis, that 

governments might impermissibly burden political association and expression by providing some 

with advantages over others.” Pl. Opening Br. at 22-23.

Indeed, the FEC’s inability to discover a case that is precisely on point redounds to 

Plaintiffs’ benefit. The purpose of expedited 52 U.S.C. § 30110 review is to ensure that cases 

which have not been necessarily decided are rapidly certified to the en banc Court. Bread PAC v. 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 21 of 29
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FEC, 455 U.S. 577, 584 (1982) (§ 30110 review necessitated to ensure that that “serious 

question[s] as to the constitutionality [of a provision]” may be resolved “at the earliest possible 

time.”) (citing Senator James F. Buckley’s comments at 120 CONG. REC. 10562 (1974)).

D. The Commission misunderstands Riddle v. Hickenlooper.

Furthermore, the Opposition Brief asserts that “Riddle v. Hickenlooper, 742 F.3d 922 

(10th Cir. 2014), does not provide any support for plaintiffs’ claims.” Opp. Br. at 31. But “[a]ny 

judicial opinion...is precedent if it involves the same or similar facts and the same or similar 

question of law.” Maureen Straub Kordesh, Essay: Navigating the Dark Morass: A First-Year 

Student’s Guide to the Library, 19 CAMPBELL L. REV. 115, 120 (1996) (emphasis supplied). 

Courts routinely look to previously decided cases with similar facts and questions of law to guide 

their resolution of active cases. Guidance can even be found from sister courts or other circuit 

courts of appeal, which—while non-binding—may “influence [the applying court’s] decisions 

because of their persuasive force.” Holland v. Williams Mt. Coal Co., 496 F.3d 670, 674 (D.C. 

Cir. 2007). 

The facts in the Plaintiff’s case and the facts in Riddle are rather similar, and raise 

parallel constitutional claims. One of the claims presented by both of these cases involves equal 

protection of the laws. As discussed in Plaintiffs’ opening brief, the Tenth Circuit ruled in favor 

of an equal protection claim brought by contributors. Pl. Opening Br. at 23 (citing and discussing 

Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014)). 

Riddle involved a statutory scheme which permitted uncontested major party candidates 

to receive contributions for both the primary and general elections. Id. at 924. The Riddle Court 

noted that the additional money raised by the major parties was available “even when there is 

only one candidate seeking the nomination.” Id. But a non-major party candidate could receive 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 22 of 29
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primary contributions “only when multiple candidates vie for the nomination.” Id. Combined, the 

primary and general election contributions could be spent on the general election. Id. at 926.

Like Riddle, this case presents an as-applied challenge to the application of a particular 

statutory scheme to a particular set of facts. The Plaintiffs’ preferred candidates face incumbents 

who faced no practical opposition in earning their spots in the general election. Compl. at ¶¶ 20, 

23; Pl. Opening Br. at 4. The incumbents were nonetheless permitted to raise funds for their 

qualifying “election.” Pl. Opening Br.. at 4 n.1. Such funds could then be spent in the general 

election. CONGRESSIONAL CANDIDATES AND COMMITTEES, FEDERAL ELECTION COMMISSION at 

21 (June 2014), http://www.fec.gov/pdf/candgui.pdf (“Nevertheless, the campaign of a candidate 

running in the general election may spend unused primary contributions for general election 

expenses”). 

In both cases, the statutory schemes favored one group of contributors over another. 

Riddle, 742 F.3d at 926; Pl. Opening Br. at 25. What was done by express statutory provision in 

Riddle is, in practice, being done by operation of the bifurcated limit here. In both Colorado and 

in this case, incumbents ran in what amounted to pro forma primary “elections” (where they did 

not need to expend any resources in order to win) as a means of raising money for the general 

election. 

Thus, the Riddle Court’s equal protection analysis is useful. The Tenth Circuit demanded 

“a link between the differing contribution limits and the battle against corruption.” Id. at 928. 

When the state could provide no such link, the Tenth Circuit found “the statutory classification is 

unconstitutional because it [was] not closely drawn to the State's anticorruption goal.” Id. at 930. 

This Court, under McCutcheon, should require the FEC to demonstrate a similar nexus between 

the bifurcation of campaign donations under the base limits and the federal government’s 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 23 of 29
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anticorruption interest. This is consistent with the proper use of precedent to inform and guide 

judicial decision-making. 

In passing, the Opposition Brief cites Judge Neil Gorsuch’s concurrence “suggesting that 

‘[p]erhaps the State might follow th[e federal] model.’” Opp. Br. at 32 (quoting Riddle, 924 U.S. 

at 933) (brackets in original). That quote, however, is an offhand statement in a concurrence 

which largely concerned the level of scrutiny to apply in a campaign finance case. See Riddle, 

742 F.3d at 933 (Gorsuch, J., concurring). Federal contribution limits were not before the Tenth 

Circuit in Riddle. The Court of Appeals examined a Colorado law that favored “major party” 

contributors over “minor party” contributors. Id. at 924 (examining COLO. REV. STAT. §§ 1-45-

103.7(3)-(4)). In this context, Judge Gorsuch doubted that Colorado’s statute could survive any 

standard of scrutiny: 

Whatever level of scrutiny one might reasonably apply here — even spotting 

(without in any way granting) Colorado its wish that we lift Buckley's somewhat 

more relaxed level of scrutiny from its First Amendment home and plunk it down 

into this Fourteenth Amendment equal protection setting — the State's statutory 

scheme still pretty clearly flunks.

Id. at 932 (Gorsuch, J., concurring) (emphasis in original).

The case before this Court simply challenges the bifurcation of the federal base limits 

between primary and general elections, because that division works to unconstitutionally favor 

some contributors over others and, being poorly tailored, works a violation of the Fifth 

Amendment’s equal protection guarantee. 

III. Plaintiffs Have Demonstrated An Irreparable Harm, Which May Only Be 

Mitigated By Entrance of an Injunction.

Political speech and association “lie[] at the foundation of a free society.” 

Buckley, 424 U.S. at 25 (quotation marks and citation omitted). Likewise, the equal protection of 

the laws is fundamental to the American system of government. United States v. Windsor, 570 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 24 of 29
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U.S. ___, 133 S. Ct. 2675, 2695 (2013) (Congress “cannot deny the liberty protected by the Due 

Process Clause of the Fifth Amendment...[which] contains within it the prohibition against 

denying to any person the equal protection of the laws”). This suit does not concern peripheral or 

incidental liberties.

While it is true that the “mere[] alleg[ation of] a violation” of constitutional freedoms is 

insufficient for the entrance of a preliminary injunction, Opp. Br. at 33 (citation and quotation 

marks omitted), Plaintiffs have demonstrated that the federal bifurcation of contribution limits 

works a direct and concrete harm. 

The First and Fifth Amendment injuries posed to plaintiffs are “of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Chaplaincy of 

Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2007) (internal punctuation and 

emphasis removed) (citation omitted). Given that Plaintiffs wish to associate with specific 

candidates in this specific election, it is impossible for a court to make them whole at a later date. 

Cf. Id. (“[t]he possibility that adequate...corrective relief will be available at a later date, in the 

ordinary course of litigation weighs heavily against a claim of irreparable harm.”) (citation 

omitted). Further, the harm presented is both “certain and great.” Wis. Gas Co. v. Fed. Energy 

Regulatory Comm’n., 758 F.2d 669, 674 (D.C. Cir. 1985). The harm is certain: the bifurcated 

limits unquestionably prevent Plaintiffs from contributing $5,200 in the general election to their 

preferred candidates, and unquestionably allowed others to contribute $5,200 to the campaigns of 

those candidates’ opponents for that same election. And this harm is great because it erodes 

association and speech in the context of electoral politics, where First Amendment rights are 

most directly at stake. See Eu v. San Francisco County Democratic Central Comm., 489 U.S. 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 25 of 29
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214, 223 (1989) (citation and quotation marks omitted) (“[T]he First Amendment has its fullest 

and most urgent application...during a campaign for political office”).

The FEC’s effort to invoke Elrod v. Burns, 424 U.S. 347 (1976) is unavailing. Opp. Br. at 

33. It is true that “Elrod did not eliminate a First Amendment plaintiff’s burden to show that its 

interests are actually threatened or being impaired.” Opp. Br. at 33. But Plaintiffs have 

demonstrated that FECA’s per-election limit prevents them from fully associating with the 

candidates of their choosing. If Mr. Jost and Mrs. Holmes were to simply ignore the law and 

contribute an additional $2,600 to the DeMaio and Miller-Meeks campaigns, they would be 

prosecuted under federal law. That is an actual threat, and that threat actually impairs their rights. 

Naturally, as of today, there has been “no governmental action against [Plaintiffs] whatsoever.” 

Opp. Br. at 34. This is unremarkable: the government is not permitted to bring anticipatory 

charges. The Supreme Court has long recognized that “[t]he threat of sanctions may deter the[] 

exercise” of First Amendment liberties “almost as potently as the actual application of 

sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963) (citations omitted). Such is the case 

here.

As regarding the FEC’s concerns with the timing of this suit, Plaintiffs note that it would 

have been impossible to contribute general election funds to either Mr. DeMaio or Dr. MillerMeeks had they lost their primary elections on the 3rd of June this year. See Opp. Br. at 7, (citing 

11 C.F.R. § 110.1(b)(3)(i)(C) for proposition that “[i]f a candidate fails to qualify for the general 

election, then all general-election contributions received by that candidate must...be returned, 

redesignated, or reattributed.”).

Absent preliminary relief, Plaintiffs will “be required to adhere to the regulatory regime 

that has governed campaign finance for decades.” Opp. Br. at 35 (citation and quotation marks 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 26 of 29
21

omitted). But that is, in fact, Plaintiffs’ point. The contribution limits scheme imposed by FECA 

is unconstitutional as applied here. Plaintiffs’ submission to that regime would work significant 

First and Fifth Amendment harms, and those harms would be irreparable.

IV. Granting Plaintiffs’ Motion for a Preliminary Injunction is in the Public 

Interest.

The FEC asserts that denying Plaintiffs’ motion would serve the public interest due to the 

antiquity of FECA’s contribution limits and the fact that the Act was constitutionally enacted. 

Opp. Br. at 35 (“In fact, the statutory provisions plaintiffs ask this Court to amend have been on 

the books for 40 years”; “The public has a strong interest in the enforcement of laws passed by 

Congress and signed by the President”) (citation and quotation marks omitted). But if a law is 

unconstitutional, its age and method of enactment is irrelevant. See Immigration and 

Naturalization Serv. v. Chadha, 462 U.S. 919, 968 (White, J., dissenting) (noting that duly 

enacted laws providing for a legislative veto were found unconstitutional despite having “been 

placed in nearly 200 statutes...in every field of governmental concern” over a period of “five 

decades”).

Nor would granting Plaintiffs injunctive relief “upset the entire federal campaign finance 

framework only months prior to the next federal election.” Opp. Br. at 36, citing Rufer v. FEC, 

2014 U.S. Dist. LEXIS 114762 at *23 (Aug. 19, 2014). This is overstated. Congress anticipated 

and intended that candidates competing in primary and general elections would be able to receive 

$5,200 in contributions. Indeed, under current law, this $5,200 may be contributed to a candidate 

all at once—provided that the donor gives the day before the primary election has passed. 

Permitting Plaintiffs to contribute that same amount now does not pose an existential threat to 

the current campaign finance system. 

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 27 of 29
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Rufer, on the other hand, involves a claim that no contribution limits may be applied to 

political party committees, such as the Republican National Committee (RNC) and Democratic 

National Committee (DNC), for the purpose of funding non-coordinated expenditures. Plaintiffs 

make no representations as to the constitutionality of the political party limitations, but it is plain 

that the relief requested in Rufer—unlimited contributions to party committees—is several 

degrees greater than the remedy suggested here.

The FEC’s remaining argument—that “enjoining the FEC from performing its statutory 

duty constitutes a substantial injury to the FEC” which infringes the public interest—presupposes 

the constitutionality of the Commission’s statutory duties. Opp. Br. at 36 (citation and quotation 

marks omitted). But where the statute likely conflicts with the Constitution, the statute must 

yield. There is no public interest—none—in the enforcement of an unconstitutional law. Gordon 

v. Holder, 721 F. 3d 638, 653 (D.C. Cir. 2013). 

Conclusion

For the foregoing reasons, the Court should grant Plaintiffs’ motion for a preliminary 

injunction.

Respectfully submitted this 15th day of September, 2014. 

/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

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

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 28 of 29
CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of September, 2014, I caused a copy of the foregoing 

Plaintiff’s Reply Memorandum on Motion for Preliminary Injunction to be filed electronically 

using the CM/ECF system, causing notice to be sent to the parties listed below:

Erin R. Chlopak echlopak@fec.gov

Steve Nicholas Hajjar shajjar@fec.gov

Benjamin A. Streeter, III bstreeter@fec.gov

Kevin Deeley kdeeley@fec.gov

s/ Allen Dickerson

 Allen Dickerson

Case 1:14-cv-01243-RMC Document 13 Filed 09/15/14 Page 29 of 29