UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA 

___________________________________

)

LIBERTARIAN NATIONAL )

COMMITTEE, INC., ) Civ. No. 1:11-cv-00562-RLW

)

Plaintiff, )

)

v. )

) REPLY IN SUPPORT OF MOTION

FEDERAL ELECTION COMMISSION, ) FOR SUMMARY JUDGMENT

)

Defendant. )

___________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY

MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Anthony Herman

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

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

Special Counsel to the General Counsel

Harry J. Summers

Assistant General Counsel

Kevin P. Hancock

Attorney

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463

September 14, 2012 (202) 694-1650

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TABLE OF CONTENTS

ARGUMENT.............................................................................................................................2

I. THE COURT MUST EVALUATE THE MERITS OF THE LNC’S CLAIM 

TO ADDRESS THE PENDING MOTIONS ................................................................2

A. The Court Must Evaluate the Merits of the LNC’s Proposed Question 

for Certification to Determine Whether It Is Substantial...................................2

B. The LNC Is Required to Put Forth Competent Evidence Demonstrating 

a Genuine Issue of Material Fact to Avoid Summary Judgment.......................5

II. THE LNC’S QUESTION IS INSUBSTANTIAL BECAUSE THE 

LIMIT ON CONTRIBUTIONS TO NATIONAL PARTY COMMITTEES 

DOES NOT BURDEN ANY FIRST AMENDMENT RIGHTS AS

APPLIED TO BEQUESTS ...........................................................................................6

A. The Authorities on Which the LNC Relies Actually Confirm That 

There Is No First Amendment Right to Bequeath a Contribution.....................6

B. The Principle That There Is No First Amendment Right to 

Bequeath a Contribution Is Fatal to the LNC’s Claim.......................................9

III. THE LNC’S QUESTION IS INSUBSTANTIAL BECAUSE THE 

CONTRIBUTION LIMIT AS APPLIED TO BEQUESTS IS CLOSELY 

DRAWN TO MATCH THE GOVERNMENT’S IMPORTANT 

ANTI-CORRUPTION INTERESTS...........................................................................11

A. McConnell Is Directly Relevant to This Case..................................................12

B. The LNC Has Failed to Rebut the FEC’s Evidence Showing That 

Bequeathed Contributions Threaten Corruption and Its Appearance ..............14

IV. THE LNC HAS NOT DEMONSTRATED THAT THE CONTRIBUTION 

LIMIT IS SO LOW THAT IT PREVENTS EFFECTIVE ADVOCACY ..................17

CONCLUSION........................................................................................................................20

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As defendant Federal Election Commission (“Commission” or “FEC”) explained in its 

opening memorandum, the question that plaintiff Libertarian National Committee, Inc. (“LNC”) 

proposes under 2 U.S.C. § 437h — whether contribution limits on bequests to national political 

party committees violate the First Amendment — is insubstantial, and therefore the question 

should not be certified to the en banc court of appeals. Instead, this Court should grant summary 

judgment to the Commission. First, the LNC has not stated a valid First Amendment claim since 

it again fails to demonstrate that bequeathed contributions, which are made by contributors who 

by definition are already deceased, are protected by the First Amendment. Second, the 

Commission’s evidence clearly shows that the government’s interest in reducing the risk of 

corruption and the appearance of corruption arising from unlimited bequeathed contributions to 

national political party committees is strong enough to justify any First Amendment burden that 

may exist. 

In response, the LNC offers no evidence that rebuts the Commission’s showing, but 

instead presents a series of incorrect factual and legal assertions that are insufficient to prevent 

summary judgment. The LNC incorrectly claims that this Court should automatically certify its 

proposed question — no matter how insubstantial — to the en banc court of appeals merely 

because the question is novel. The LNC relies on a law review article that clearly confirms that 

bequests are not protected by the First Amendment. The LNC continues to wrongly claim that 

McConnell v. FEC, 540 U.S. 93 (2003), overruled in part on other grounds by Citizens United v. 

FEC, 130 S. Ct. 876 (2010) — which comprehensively addressed the corruption caused by 

unlimited contributions to national party committees — has nothing to do with this case, which 

seeks unlimited contributions to national party committees from bequests. And the LNC largely 

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ignores the Commission’s substantial evidence showing that unlimited bequeathed contributions 

can lead to corruption even though a testator cannot receive preferential access after death. 

Thus, the LNC’s has failed to show that its question is worthy of review by the en banc

court of appeals. Accordingly, the FEC’s motion for summary judgment should be granted.

ARGUMENT

I. THE COURT MUST EVALUATE THE MERITS OF THE LNC’S CLAIM TO 

ADDRESS THE PENDING MOTIONS

A. The Court Must Evaluate the Merits of the LNC’s Proposed Question for 

Certification to Determine Whether It Is Substantial

The LNC does not contest that it must demonstrate that its proposed question concerning 

the constitutionality of the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, is 

“substantial” in order to qualify for review by the en banc court of appeals under 2 U.S.C. 

§ 437h.1 (Def. FEC’s Mem. in Opp’n to Pl.’s Mot. to Certify Facts and Questions and in Support 

of Def.’s Mot. for Summ. J. (“FEC MSJ”) at 5-7 & n.3 (Docket No. 29).) However, in its 

opposition, the LNC attempts to functionally eliminate this requirement and to minimize this 

Court’s gatekeeper role under section 437h by asserting that the Court cannot examine the merits 

of the LNC’s claim. (Pl. LNC’s Mem. of Points and Authorities in Opp’n to Def.’s Mot. for 

Summ. J. and Reply to Def.’s Opp’n to Pl.’s Certification Mot. (“Pl.’s Opp’n”) at 6-10 (Docket 

No. 34).) The LNC’s argument is contrary to the law and must be rejected.

The LNC’s claim is belied by its own reliance on the district court’s ruling in Cao v. 

FEC, which explained that when determining whether an as-applied challenge is substantial, the 

 1 Despite its frequent use of the term “frivolous” to describe the section 437h standard, the 

LNC does not dispute that in this context it must present a substantial constitutional question to 

warrant review by the en banc court of appeals. (See, e.g., Pl. LNC’s Mem. of Points and 

Authorities in Opp’n to Def.’s Mot. for Summ. J. and Reply to Def.’s Opp’n to Pl.’s Certification 

Mot. at 14 (correctly referring to “frivolous or substantial” as the section 437h standard) (Docket 

No. 34).) 

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standard of review lies “‘somewhere between a motion to dismiss . . . and a motion for summary 

judgment.’” (Pl.’s Opp’n at 7 (quoting 688 F. Supp. 2d 498, 503 (E.D. La.), aff’d and remanded 

sub nom. In re Cao, 619 F.3d 410 (5th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1718 

(2011)).) The Cao court further explained that, under this standard, “some ‘merits’ review is 

appropriate,” since a court “could not effectively assess the ‘frivolousness’ of the claims in [a] 

motion to certify without undertaking a thorough review of the controlling law.” 688 F. Supp. 

2d at 502. And in an as-applied challenge, “some review of the facts is inherently necessary to 

determine if a colorable claim has been raised” that warrants certification. Id. Accordingly, the 

Cao court rejected the plaintiffs’ contentions “that the FEC ha[d] inappropriately argued the 

merits” while opposing certification. Id.

The LNC repeats the Cao plaintiffs’ error and seeks to reduce the section 437h inquiry 

simply to a question of whether the LNC raises an issue that “remains unconsidered by the 

Supreme Court.” (Pl.’s Opp’n at 7.) However, because frivolous claims are often novel, such a 

permissive section 437h standard would functionally eliminate the Supreme Court’s requirement 

that certified questions be substantial in addition to being unsettled. Cal. Med. Ass’n v. FEC, 

453 U.S. 182, 192 n.14 (1981) (explaining that section 437h certification is appropriate when the 

issues “are neither insubstantial nor settled”). Because certified questions must be both unsettled 

and substantial, not every as-applied challenge to FECA that raises a novel issue automatically 

qualifies for certification. Mariani v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (“‘[N]ot 

every sophistic twist that arguably presents a ‘new’ question should be certified.’” (quoting 

Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990))). 

For example, in Goland, the plaintiff challenged FECA’s contribution limits as applied to 

anonymous donations to minor party candidates and argued, just as the LNC does here, that his 

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claim should be certified simply because the Supreme Court had not squarely addressed this 

particular scenario when upholding the contribution limits in Buckley v. Valeo, 424 U.S. 1 

(1976). See Goland, 903 F.2d at 1252-53. The Ninth Circuit acknowledged that the challenge 

“involve[d] a ‘unique set of facts’ and [was] ‘unlike any other considered in the reported 

decisions of the federal courts,’” but the court nevertheless affirmed the district court’s ruling 

denying certification because the claim, though novel, was insubstantial under the principles of 

Buckley. Id. at 1253, 1258.

By reserving access to the en banc court of appeals only for constitutional questions that 

are both new and substantial, the district courts prevent plaintiffs from abusing the section 437h 

process and from unnecessarily burdening the courts of appeals. See Bread Political Action 

Comm. v. FEC, 455 U.S. 577, 580 (1982); Cal. Med. Ass’n, 453 U.S. at 192 n.14. The LNC 

argues that concerns of abuse are misplaced because only a “limited class of parties” may utilize 

section 437h; however, as the LNC also points out, one of those classes includes “any qualified 

voter.” Pl.’s Opp’n at 10; see 2 U.S.C. § 437h (allowing “any individual eligible to vote” in a 

Presidential election to bring claim). Given that 131 million people voted in the 2008 

presidential election, this is hardly a limiting feature of section 437h.2 

Finally, even if this Court were to find that the LNC’s claim is insubstantial and grant 

summary judgment to the Commission, the LNC would still have its day in court — it could

appeal that merits determination to a panel of the D.C. Circuit in the ordinary course. See, e.g., 

In re Cao, 619 F.3d at 415, 417-20 (affirming district court’s dismissal of four questions found to 

be insubstantial under section 437h, in appeal consolidated with review of certified questions); 

Goland, 903 F.2d at 1252, 1262 (denying appeal of district court’s dismissal of four questions

 2 See Thom File and Sarah Crissey, Voting and Registration in the Election of November 

2008, U.S. Census Bureau, 1 (July 2012), http://www.census.gov/prod/2010pubs/p20-562.pdf.

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found to be insubstantial under section 437h). Such a ruling, however, would properly reserve to 

the en banc court of appeals the most serious questions of FECA’s constitutionality. 

B. The LNC Is Required to Put Forth Competent Evidence Demonstrating a 

Genuine Issue of Material Fact to Avoid Summary Judgment

The LNC does not dispute that if the Court finds that its proposed question of FECA’s 

constitutionality fails to qualify for certification under 2 U.S.C. § 437h, the Commission is 

entitled to summary judgment. (FEC MSJ at 7 (citing Cao, 688 F. Supp. 2d at 503).) 

The LNC incorrectly claims, however, that on a motion for summary judgment “disputed 

facts must be decided in favor of the non-moving party.” (Pl.’s Opp’n at 3 (emphasis added).) 

To the contrary, the Court need only “draw all justifiable inferences in favor of the non-moving 

party.” Nat’l Fed’n of Fed. Emps.-IAM v. Vilsack, 681 F.3d 483, 488 (D.C. Cir. 2012). Once the 

moving party has met its initial burden of demonstrating the absence of a genuine issue of 

material fact, “the non-movant’s opposition must contain more than unsupported allegations or 

denials and must be supported by affidavits or other competent evidence setting forth specific 

facts showing that there is a genuine issue for trial” in order to avoid summary judgment. Banks 

v. District of Columbia, 377 F. Supp. 2d 85, 88-89 (D.D.C. 2005) (internal quotation marks 

omitted). Even if a genuine issue of material fact exists, “the movant is entitled to summary 

judgment against ‘a party who fails to make a showing sufficient to establish the existence of an 

essential element to that party’s case, and on which that party will bear the burden of proof at 

trial.’” Id. at 88 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

The material adjudicative facts of this case are largely undisputed, notwithstanding minor 

objections by both parties. (See generally Def. FEC’s Resps. to Pl.’s Facts Submitted for 

Certification (Docket 28-1); Pl.’s Objections to Def.’s Facts Submitted for Certification (Docket 

No. 30); see also Def. FEC’s Reply Mem. in Supp’t of its Proposed Findings of Fact (“FEC Fact 

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Reply”) at 3 n.2 (Docket No. 37).) The material legislative facts the FEC has submitted are also 

undisputed, despite the LNC’s meritless hearsay objections. (See FEC Fact Reply at 1, 3-6.) 

Even if the LNC disputed the Commission’s legislative facts, such disputes would not preclude 

summary judgment because legislative facts, unlike adjudicative facts, lie “outside the domain of 

the clearly indisputable” and thus are not subject to the Federal Rules of Evidence. Fed. R. Evid. 

201(a), Advisory Comm. Notes (1972) (internal quotation marks omitted); see FEC Fact Reply 

at 3-6. Thus, the Court is free to find the Commission’s legislative facts persuasive, and on that 

basis, to deny certification and grant summary judgment to the FEC. 

II. THE LNC’S QUESTION IS INSUBSTANTIAL BECAUSE THE LIMIT ON 

CONTRIBUTIONS TO NATIONAL PARTY COMMITTEES DOES NOT 

BURDEN ANY FIRST AMENDMENT RIGHTS AS APPLIED TO BEQUESTS

A. The Authorities on Which the LNC Relies Actually Confirm That There Is 

No First Amendment Right to Bequeath a Contribution

The LNC’s proposed question is insubstantial because it fails to state a valid First

Amendment claim. When the contribution limit that the LNC challenges, 2 U.S.C. § 

441a(a)(1)(B) (“Contribution Limit”), is applied to a bequest, it does not burden any First 

Amendment rights because, in contrast to living donors, the deceased have no constitutional 

rights. (FEC MSJ at 8-15.) In its opposition, the LNC does not dispute that when FECA limits a 

bequeathed contribution, the donor is by definition already deceased. (FEC MSJ at 9 n.6, 11.) 

Nevertheless, despite the overwhelming authority stating that the deceased do not have 

constitutional rights that FECA could violate (FEC MSJ at 8-9), the LNC continues to 

incorrectly maintain that “testation is, plainly, expressive activity” and thus protected by the First 

Amendment (Pl.’s Opp’n at 11). 

The LNC’s argument relies on a law review article (Pl.’s Opp’n at 13-14) that recognizes 

— on its first page — that “there has long been consensus that the Constitution does not apply to 

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limits on testamentary freedom.” David Horton, Testation and Speech, 101 Geo. L.J. 

(forthcoming 2012) (manuscript at 1), available at http://ssrn.com/abstract=2037400 (emphasis 

omitted). As the article further explains, and as the FEC itself has argued (cf. FEC MSJ at 10)), 

it is “widely-accepted” that “testation is a posthumous transfer of property — no different than 

other decisions about using, conveying, or investing assets,” Horton, supra at 46, and involves 

no exercise of Constitutional rights, id. at 27 & n.212 (citing Daniel J. Kornstein, Inheritance: A 

Constitutional Right?, 36 Rutgers L. Rev. 741, 787 (1984) (“There is no right of inheritance in 

the United States Constitution.”); Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist 

Theory of Testamentary, Restraints on Conjugal and Religious Choices, 1999 U. Ill. L. Rev. 

1273, 1289 (1999) (“[W]e can approach the question of testation . . . as a purely normative one 

without concerning ourselves with any constitutional objections to restricting testation.”). To be 

sure, the author of the forthcoming law review article on which the LNC relies advocates a 

change in the law, see Horton, supra at 27 (“I challenge the conventional wisdom and argue that 

some limits on testamentary freedom violate the First Amendment.”), but this Court, of course, 

must follow the law as established. 

The LNC also argues that a Fifth Amendment Takings Clause case, Hodel v. Irving, 481 

U.S. 704 (1987), somehow supports its assertion that the deceased have First Amendment rights. 

(Pl.’s Opp’n at 12 (also citing Babbitt v. Youpee, 519 U.S. 234 (1997).) But as the law review 

article upon which the LNC relies correctly explains, Hodel does no such thing: “[S]cholars 

unanimously” agree that “Hodel only bars the government from stripping owners of their ability 

to transmit an asset after death by any means — will, trust, or intestacy — without providing just 

compensation. Other than prohibiting this extreme measure, the Constitution supposedly gives 

the government carte blanche to regulate testation.” Horton, supra at 27. Thus, Hodel did not 

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(as the LNC claims, Pl.’s Opp’n at 12) limit Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942), 

which held that “[n]othing in the Federal Constitution forbids the legislature of a state to limit, 

condition, or even abolish the power of testamentary disposition over property within its 

jurisdiction.” To the contrary, Hodel explicitly “reaffirm[ed] the continuing vitality of the long 

line of cases” — including Irving Trust — “recognizing the States’, and where appropriate, the 

United States’, broad authority to adjust the rules governing the descent and devise of property 

without implicating the guarantees of the Just Compensation Clause.” Hodel, 481 U.S. at 717 

(emphasis added). 

Even if Hodel stood for the proposition that “decedents have the constitutional right to 

devise property,” as the LNC erroneously claims (Pl.’s Opp’n at 12), such a right would be 

implicated under Hodel only when “both descent and devise are completely abolished,” 481 U.S. 

at 717 (emphasis added). Here, the LNC will receive every cent Raymond Groves Burrington 

bequeathed to it; FECA does not “abolish” any right to devise but rather merely limits the 

amount that can be contributed annually from that bequest.3 

Finally, the LNC alleges that even if testation is “not considered a form of expression,” 

applying the Contribution Limit to bequests would still violate the First Amendment under 

United States v. O’Brien, 391 U.S. 367 (1967). (Pl.’s Opp’n at 13 n.4.) However, O’Brien’s 

well-known constitutional test for evaluating content-neutral laws is inapplicable here because 

that test only applies to expressive conduct recognized under the First Amendment. Id. at 

 3

 Thus, the conclusion that the Contribution Limit does not burden any First Amendment 

rights of the deceased does not mean that the “government could simply seize any property from 

any estate,” nor would it prevent estates from enforcing statutorily created descendible property 

interests, such as a copyright, as the LNC argues. (See Pl.’s Opp’n at 13 & n.3 (citing 17 U.S.C. 

§ 302(a)).) In fact, the LNC’s allusion to federal copyright law proves the Commission’s point: 

Congress must statutorily create posthumous “expressive” rights, like copyrights, for the very 

reason that such potential rights are not protected by the Constitution. 

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376-82. In O’Brien, the Supreme Court proceeded “on the assumption that the alleged 

communicative element in O’Brien’s conduct” — the burning of a draft card — “is sufficient to 

bring into play the First Amendment.” 391 U.S. at 376 (emphasis added). In contrast, the 

transfer of money through bequests has no protection under the First Amendment as expressive

conduct, so the O’Brien test does not apply. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 

697, 707 (1986) (“O’Brien, . . . has no relevance to a statute directed at [limiting] nonexpressive 

activity.”). Instead, no constitutional scrutiny applies, since there is no burden on the First 

Amendment. See, e.g., id. (applying no scrutiny after concluding that “the First Amendment is 

not implicated by the enforcement of a public health regulation of general application against” 

a book store).

B. The Principle That There Is No First Amendment Right to Bequeath a 

Contribution Is Fatal to the LNC’s Claim

The conclusion that, because the contributor is deceased, there is no First Amendment 

element to a bequeathed contribution is fatal to the LNC’s claim. Simply stated, that principle

means that the LNC cannot have suffered a First Amendment injury. While the Supreme Court 

has held that contribution limits on their face may burden the First Amendment rights of living 

contributors, no court has held the same for contribution recipients. (FEC MSJ at 13-14.) The 

LNC identifies no case to the contrary. (See, e.g., Pl.’s Opp’n at 26-27.)4 But even assuming 

arguendo that a general right to receive contributions from living donors exists, the Contribution 

Limit could not burden this right when applied to bequests. That is because any claimed right to 

receive a bequest must be subject to the state’s plenary authority to regulate a testator’s ability to 

 4

 Contrary to the LNC’s assertion (Pl.’s Opp’n at 27), simply because it is an open question 

whether there is a general, First Amendment right to receive contributions from living donors 

does not mean that the LNC’s current claim applying this unestablished right in a context 

involving deceased donors (who have no First Amendment rights) is substantial. 

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make that bequest in the first place. FEC MSJ at 12-13; cf. 28 Am. Jur. Estates § 9 (“A mere 

expectation of property in the future is not a vested right and may be changed, modified, or 

abolished by legislative action.”). Moreover, the receipt of a contribution via bequest cannot be 

considered a First Amendment-protected act of association or speech by the recipient because the 

contributor is by necessity deceased and thus incapable of engaging in association or speech with 

that recipient. (FEC MSJ at 13-14.) 

Therefore, it is beside the point that Burrington and his estate are not parties to this case, 

as the LNC stresses. (Pl.’s Opp’n at 14.) For the LNC to state a valid First Amendment claim, it 

must at least be possible for the LNC to have suffered a First Amendment injury, and in this 

case, it is not. The Commission does not challenge the LNC’s standing, as plaintiff implies (Pl.’s 

Opp’n at 15), because the LNC’s claimed financial injury is likely sufficient to qualify as an 

injury-in-fact, see, e.g., First Am. Compl. (“Compl.”) ¶ 15 (Docket No. 13); cf. Dean v. 

Blumenthal, 577 F.3d 60, 66 n.4 (2d Cir. 2009). But whether the LNC has standing has nothing 

to do with whether it has managed to state a valid First Amendment claim. Dean, 577 F.3d at 66 

n.4 (warning against “erroneously conflat[ing] the requirement for an injury-in-fact with the 

constitutional validity of [a] claim”). The LNC suggests that its claim asserts the First 

Amendment injuries of its deceased donors in a survival action. (Pl.’s Opp’n at 15 (citing Hodel, 

481 U.S. at 711).) However, the LNC overlooks the fact that normally survival actions can be 

prosecuted only by a decedent’s estate or other entity with statutory authority to do so, see 

Hodel, 481 U.S. at 711, and the LNC does not even allege that it meets either of these criteria. In 

any event, no LNC donor suffered a First Amendment injury while living that could be the 

subject of a survival action since, as the LNC does not dispute, FECA only limits bequests after a 

testator has died. (See FEC MSJ at 9 n.6.)

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The LNC’s question is insubstantial because it fails to state a valid First Amendment 

claim. Thus, the LNC’s request for certification should be denied, and the FEC’s motion for 

summary judgment should be granted. 

III. THE LNC’S QUESTION IS INSUBSTANTIAL BECAUSE THE

CONTRIBUTION LIMIT AS APPLIED TO BEQUESTS IS CLOSELY DRAWN 

TO MATCH THE GOVERNMENT’S IMPORTANT ANTI-CORRUPTION 

INTERESTS 

Even if the Contribution Limit burdened First Amendment rights when applied to 

bequests, the LNC’s question would still be insubstantial and thus unworthy of section 437h 

certification because it is clear that any purported First Amendment burden would be justified by 

the government’s important interest in preventing corruption and the appearance of corruption. 

(FEC MSJ at 15-40.) 

In its opposition, the LNC does not contest the Commission’s showing that if the 

Contribution Limit were subject to constitutional scrutiny, that scrutiny would be intermediate, 

not strict. (FEC MSJ at 15-18.) Nor does the LNC dispute that the Supreme Court in Buckley

and McConnell already squarely rejected the LNC’s contention that it cannot engage in 

corruption simply because it is a minor party lacking federal officeholders. (FEC MSJ at 33-34 

& n.16.)5 Finally, the LNC does not dispute, nor could it, that under the facts and law of 

 5

 The LNC continues to stress its minor-party status and its lack of federal officeholders 

when those facts might appear to support the party’s position here. (See, e.g., Pl.’s Opp’n at 26-

30.) But as the Commission has pointed out (FEC Fact Reply at 7-8), the LNC does not seek 

relief only as to the Burrington bequest or only as to bequests the LNC might receive. The 

LNC’s proposed question for certification asks whether FECA may constitutionally limit any

bequest to any national party committee. (LNC’s Mot. to Certify Facts and Questions at 1 

(“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?” (emphasis omitted)) (Docket No. 25); see also Pl.’s Opp’n at 5.) 

Moreover, the LNC’s complaint seeks a broad permanent injunction banning the FEC from 

enforcing FECA’s contribution limits as to contributions resulting from any bequests to any

national party committee. (See Compl., Prayer for Relief 1-2.) Thus, the issue of whether 

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McConnell, national party committees selling preferential access to their candidates or 

officeholders in exchange for unlimited contributions can create corruption and the appearance 

of corruption. 

Nevertheless, the LNC contends with a straight face that McConnell has no relevance to 

this case and claims, and, without support, that unlimited contributions through bequests to 

national party committees cannot cause corruption or its appearance. 

A. McConnell Is Directly Relevant to This Case

In its opposition (Pl.’s Opp’n at 16-19), the LNC continues its efforts to distance itself 

and this case from McConnell, despite McConnell’s clear relevance here. (See also FEC Fact 

Reply at 1-2 (pointing out the LNC’s false representation to the Court that it was not a party to 

McConnell).) As the Commission explained in its Reply Memorandum in Support of its 

Proposed Findings of Fact, McConnell is directly relevant because it held that unlimited 

contributions to national party committees threaten corruption and the appearance of corruption. 

(FEC Fact Reply at 7-8.) The fact that this case involves the added element of bequests does not 

render McConnell “wholly unhelpful,” as the LNC argues (Pl.’s Opp’n at 16-17); instead, 

McConnell sets a helpful baseline for this Court’s consideration of whether the rampant troubles 

the Supreme Court described therein would be avoided merely because an unlimited contribution 

is bequeathed (see FEC Fact Reply at 8; FEC MSJ at 23-35). To further aid the Court’s 

consideration of that question, the Commission has offered many additional facts relating to 

 

corruption and its appearance would result if the major political parties could accept unlimited 

bequests is central to this case. 

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bequests and the LNC and has described in detail how those facts show that bequests present the 

same threat of corruption as soft-money donations. (FEC MSJ at 23-35.)6

The LNC repeatedly criticizes the Commission for allegedly not compiling a record in 

this case relating to bequests as voluminous as the record in McConnell.

7

 (Pl.’s Opp’n at 17-19, 

24.) But that argument completely ignores the fact that McConnell addressed a challenge to a 

soft-money restriction that had just been enacted, and that unlimited soft money had been legal 

for years before the case, allowing the government to build an extensive record of corruption. 

See, e.g., 540 U.S. at 114, 146-52. In contrast, here, the LNC seeks to overturn a Contribution 

Limit that has applied to bequests for the last 35 years. To the extent there is less evidence of 

corruption relating to bequests, as the LNC complains, that difference strongly suggests that the 

Contribution Limit works, not that bequests do not corrupt. See Burson v. Freeman, 504 U.S. 

191, 208 (1992) (opinion of Blackmun, J.) (noting the difficulty of mustering evidence to support 

long-enforced statutes). “Since there is no recent experience with unlimited [bequeathed 

contributions], the question is whether experience under the present law confirms a serious threat 

of abuse from the unlimited [bequeathed contributions].” FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 457 (2001) (“Colorado II”). The recent experience of 

 6 The FEC’s proposed findings of fact offer 43 legislative facts from McConnell (Def. 

FEC’s Proposed Findings of Fact ¶¶ 20-21, 23, 28-31, 33-51, 63-64, 66, 69-71, 73-75, 80-82, 

118-119, 123, 129, 136 (Docket No. 24)), as well as at least 71 facts relating directly to bequests 

or the LNC (id. ¶¶ 2-19, 32, 83-114, 117-22, 124-28, 130-35, 137-39). Thus, the LNC’s 

suggestion (Pl.’s Opp’n at 17-18) that the Commission relies solely on McConnell is wrong.

7 Ironically, a great deal of the extensive factual record in McConnell that the LNC extols 

here was composed of legislative facts of the sort that the LNC has recently argued are based on 

inadmissable hearsay. (See generally Pl.’s Objections to Def.’s Facts Submitted for Cert. 

(Docket No. 30).) Moreover, the LNC’s assertion that the Commission “neglect[ed]” the fact 

that McConnell’s conclusions were “based on an extensive factual record” is puzzling (Pl.’s 

Opp’n at 21-22) in light of the fact that the Commission filed and sent to plaintiff a DVD 

containing every unsealed exhibit from McConnell with the Commission’s proposed findings of 

fact. (Docket No. 24-7.)

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McConnell, together with the FEC’s substantial, unrebutted additional evidence relating to 

bequests, confirms that this threat is serious and that the LNC’s claim is insubstantial. 

B. The LNC Has Failed to Rebut the FEC’s Evidence Showing That 

Bequeathed Contributions Threaten Corruption and Its Appearance

The evidence the Commission has assembled clearly shows that unlimited bequests 

would pose the same threat of corruption arising from unlimited contributions to national party 

committees that was described in McConnell. The record shows that, if bequeathed 

contributions were unlimited, donors could exploit the new loophole by contributing vast 

amounts to the parties through their wills.8 (FEC MSJ at 24-26.) Donors and the parties could 

arrange for such contributions to directly benefit particular federal candidates and officeholders, 

but in any event, the money need not actually benefit any particular officeholder to result in 

corruption. (Id. at 26-28.) To encourage large bequests, the national party committees could sell 

preferential access to their federal candidates and officeholders (via major donor programs or 

otherwise) in exchange for donors recording or otherwise promising large bequests, just as the 

parties once sold access for soft money. (Id. at 28-31.) Alternatively, the national party 

committees could, upon receiving a large bequest, grant the access the deceased donor purchased 

and would have received to his or her friends, family, or associates. (Id. at 31-33.)

 8 It is very unlikely that donors seeking to influence a candidate’s election would “not 

bother” with unlimited bequeathed contributions in lieu of giving money to a so-called 

“Super PAC,” as the LNC contends. (Pl.’s Opp’n at 21.) Party and candidate contributions are 

inherently more valuable to candidates and thus more effective for obtaining preferential access 

and legislative favors than are a Super PAC’s independent expenditures, which cannot be 

coordinated with any federal candidates. See Citizens United, 130 S. Ct. at 908 (“The absence of 

prearrangement and coordination of an expenditure with the candidate or his agent not only 

undermines the value of the expenditure to the candidate, but also alleviates the danger that 

expenditures will be given as a quid pro quo for improper commitments from the candidate.” 

(internal quotation marks omitted)). 

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The LNC makes little effort to dispute this scenario and offers no evidence to refute the 

Commission’s evidence. Instead, the LNC repeatedly asserts that corruption cannot result from 

bequests because the donors are “not alive to receive the benefits of a quid pro quo.” (Pl.’s 

Opp’n at 20; see also id. at 22, 26-27.) But the FEC does not argue that the deceased can receive 

benefits, and more importantly, there is simply no requirement that a party must grant benefits to 

a contributor after it receives his or her contribution in order for corruption to result. (FEC MSJ 

at 30-31.) As the Commission’s evidence demonstrates, the national party committees, including 

the LNC, already grant preferential access to encourage future donations. (Def. FEC’s Proposed 

Findings of Fact (“FEC Facts”) ¶¶ 64-65 (Docket No. 24).) The national party committees have 

in fact sold preferential access based on contributors’ promises to donate in the future. (Id. at ¶¶ 

66-68.) For example, during the soft-money era, donors could join the Republican National 

Committee’s “Team 100” major-donor group and enjoy preferential-access benefits on the basis 

of an immediate $100,000 donation and a commitment to donate another $75,000 over the next 

three years. (Id. at ¶ 66.) The LNC permits donors to become a member of its “Chairman’s 

Circle” major-donor group — which offers access to its presidential candidate among others —

before they finish paying the full required annual donation amount. (Id. at ¶ 68.) Groups other 

than political parties — such as the National Rifle Association — already offer immediate 

benefits to their future donors who promise to leave a bequest. (FEC MSJ at 30; FEC Facts ¶¶ 

111-14.) And finally, the LNC admits that it could grant someone membership in one of its 

major-donor groups if the person merely showed the LNC his or her will providing for a bequest 

large enough to qualify for membership (FEC Facts ¶¶ 109-10); admits that other national party 

committees could do the same (id. at ¶¶ 106-07); and admits that corruption based on the 

promise of a future bequest is possible if the bequest is sufficiently imminent (Mem. of Points 

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and Authorities in Supp’t of Pl.’s Mot. to Certify Facts and Questions at 23-24 (suggesting 

corruption could arise from “soliciting a bequest from a terminally-ill individual”) (Docket 

No. 25-1). 

In response to this evidence, the LNC offers no evidence of its own — instead, it merely 

dismisses the Commission’s position as “speculative” and “hypothetical.” (Pl.’s Opp’n 24-25.) 

But again, the LNC’s claims ignore the fact that, because FECA has limited bequeathed 

contributions for decades, it is neither possible nor required that the FEC produce a voluminous 

record of corruption on par with that compiled in McConnell in order to defend the Contribution 

Limit. See supra pp. 13-14. Congress is not required to wait until rampant corruption results 

before it can limit contributions; indeed, the Supreme Court reviews contribution limits with 

lesser scrutiny in order to “provide[] Congress with sufficient room to anticipate and respond to 

concerns about circumvention of regulations designed to protect the integrity of the political 

process.” McConnell, 540 U.S. at 137. The LNC’s unsupported allegations and denials are 

insufficient to survive summary judgment. Banks, 377 F. Supp. 2d at 89. 

The Commission’s evidence also demonstrates that unlimited bequests to national party 

committees could result in corruption and its appearance in another way: A national party 

committee could sell a testator preferential access for his or her friends, family, or associates 

upon the party’s receipt of the testator’s bequest. (FEC MSJ at 31-33.) Instead of offering 

evidence in response, the LNC essentially invents a new requirement for corruption, suggesting 

that a national party committee must be under a binding obligation to grant preferential access in 

exchange for a bequest for corruption to result and that the FEC’s evidence does not reach that 

level. (Pl.’s Opp’n at 25-26.) But this is a textbook straw man. No court has ever held that quid 

pro quo corruption requires a binding obligation between donor and recipient. To the contrary, 

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the Supreme Court has explained that the premise behind limits on contributions to national party 

committees is that they “threaten to create . . . a sense of obligation.” McConnell, 540 U.S. at 

144 (emphasis added).

9

 Moreover, the LNC appears to contend (Pl.’s Opp’n at 26) that the 

recipient of preferential access must be the same person who purchased that access in order for 

corruption to exist, but the LNC cites no authority to support that view. So long as an 

officeholder’s official actions are unduly influenced by contributions instead of the public 

interest, it is irrelevant that a testator’s friends, family, or associates are the beneficiaries of the 

testator’s largess. 

In sum, the Commission’s evidence demonstrates that “experience under the present law 

confirms a serious threat of abuse” from unlimited bequests to national political parties. See

Colorado II, 533 U.S. at 457. In response, the LNC offers only incorrect or irrelevant assertions. 

Because “no colorable constitutional claims are presented on the facts,” the Court should grant 

the FEC’s motion for summary judgment and deny certification for the LNC’s insubstantial 

question of constitutionality under section 437h. See Cao, 688 F. Supp. 2d at 502 (internal 

quotation marks omitted). 

IV. THE LNC HAS NOT DEMONSTRATED THAT THE CONTRIBUTION LIMIT 

IS SO LOW THAT IT PREVENTS EFFECTIVE ADVOCACY

The LNC argues (Pl.’s Opp’n at 28-30) that the Contribution Limit as applied to bequests 

has somehow prevented the LNC from engaging in effective advocacy, but the limit is plainly 

 9 See also McConnell, 540 U.S. at 154-55 (“[I]t is the close relationship between federal 

officeholders and the national parties, as well as the means by which parties have traded on that 

relationship, that have made all large soft-money contributions to national parties suspect.”);

FEC v. Christian Coalition, 52 F. Supp. 2d 45, 91 (D.D.C. 1999) (“The [anti-corruption] interest 

arises from the recognition that as the magnitude of a contribution grows, so grows the likelihood 

that the candidate will feel beholden to the source of those contributio[n]s. And, once elected, 

the candidate may feel obliged to take official action that is not in the public interest to meet the 

demands of the contributor.” (emphases added)). 

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not so low that it prevents the LNC or any other national party committee from engaging in such 

advocacy. A contribution limit prevents effective advocacy only when the limit is “so radical in 

effect as to render political association ineffective, drive the sound of a candidate’s voice below 

the level of notice, and render contributions pointless.” Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377, 397 (2000). In Buckley v. Valeo, the Supreme Court upheld the constitutionality of 

FECA’s then-$25,000 limitation on total contributions during a calendar year, which, like the 

Contribution Limit here, was meant to prevent donors from circumventing the candidate 

contribution limit through “huge contributions to the candidate’s political party.” 424 U.S. at 38. 

The Court found “no indication” that “the contribution limitations imposed by the Act would 

have any dramatic adverse effect on the funding of campaigns and political associations.” Id.

at 21. In a subsequent case, the Supreme Court held that contribution limits bearing a “striking 

resemblance to the limitations sustained in Buckley,” did not prevent effective advocacy, 

Shrink Mo., 528 U.S. at 395, and indeed, has only once struck down limits, which it found to be 

“suspiciously low,” Randall v. Sorrell, 548 U.S. 230, 238, 261 (2006) ($200-$400 for candidates 

in state races). The annual Contribution Limit the LNC attacks stands today at $30,800 —

higher than the aggregate limit on all contributions upheld in Buckley. The LNC has offered no 

evidence that contributions to national party committees have been rendered “pointless” because 

the parties are unable to accept bequests of more than $30,800 in one calendar year. Thus, the 

LNC’s effective advocacy claim fails. 

In its opposition, the LNC continues to narrowly describe its claim as if it were an 

as-applied challenge involving only bequests to the LNC. (Pl.’s Opp’n at 28-30.) But as 

explained supra p. 11 n.5, the relief the LNC seeks and its proposed question make clear that it is 

challenging the Contribution Limit as it applies to all bequests to all national political parties. 

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(See also FEC Fact Reply at 7-8.) Thus, the LNC’s arguments that the LNC itself has been 

prevented from engaging in effective advocacy are per se insufficient to sustain its claim. See 

Doe v. Reed, 130 S. Ct. 2811, 2817 (2010) (explaining that where the “claim and the relief that 

would follow . . . reach beyond the particular circumstances of the[] plaintiffs,” “[t]hey must . . . 

satisfy [the] standards for a facial challenge to the extent of that reach.”). 

In any event, the Contribution Limit as it applies to bequests has not prevented the LNC 

from engaging in effective advocacy. The Commission put forth evidence demonstrating that the 

LNC is, in fact, able to engage in effective advocacy and is not a “nascent or struggling minor 

party,” as McConnell, 540 U.S. at 159, noted would be required as part of a valid as-applied 

challenge. (FEC MSJ at 38.) On the contrary, the Commission showed that the LNC is more 

than 40 years old and describes itself as the “number one . . . minor party in the United States.” 

(FEC Facts ¶ 131 (emphasis added).) In response, the LNC offers no evidence, but instead 

argues, in effect, that because it has been unable to elect a federal officeholder yet, it is per se 

unable to engage in effective advocacy. (Pl.’s Opp’n at 29-30.) Not only does this claim 

wrongly conflate advocacy with electoral success, but, if true, it would effectively create an 

across-the-board exemption from FECA’s contribution limits for all minor parties that had no 

federal officeholder. The Supreme Court, however, has repeatedly rejected similar attempts by 

the Libertarian Party and the LNC to achieve such an exemption. See Buckley, 424 U.S. at 33-35 

& n.40; McConnell, 540 U.S. at 158-59.

The LNC makes no effort to explain how its inability to immediately accept the full 

amount of the Burrington bequest — the only bequest in excess of the Contribution Limit it has 

ever received — caused its alleged inability to advocate effectively. (FEC MSJ at 39.) Instead, 

it claims only that the money would have partially eliminated its operating deficit and helped its 

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ballot access operations. (Pl.’s Opp’n at 30.) In any event, the Contribution Limit does not 

prevent the LNC from receiving the entirety of the Burrington bequest; it only requires that it be 

disbursed over several years.

Finally, the LNC has no response to the Commission’s observation that the LNC would 

likely be put at a competitive disadvantage in elections were it to win this case, since all national 

party committees, including those of the Democratic and Republican parties, would be permitted 

to accept unlimited bequeathed contributions. As the evidence demonstrates, donors have 

bequeathed far more money to the Democrats and Republicans than to the LNC. (FEC MSJ at 

39-40.) 

CONCLUSION

The LNC has failed to show that bequests are protected by the First Amendment and thus 

has failed to state a valid First Amendment claim. It has also failed to rebut the Commission’s 

showing that unlimited bequeathed contributions to national party committees threaten to cause 

corruption and the appearance of corruption, so the Contribution Limit easily satisfies 

intermediate scrutiny. For either of these reasons, the Court should deny certification of the 

LNC’s proposed question under 2 U.S.C. § 437h and grant the Commission’s motion for 

summary judgment. 

Respectfully submitted,

Anthony Herman

General Counsel

aherman@fec.gov

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

dkolker@fec.gov

Case 1:11-cv-00562-RLW Document 38 Filed 09/14/12 Page 22 of 23
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Lisa J. Stevenson (D.C. Bar No. 457628)

Special Counsel to the General Counsel

lstevenson@fec.gov

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

/s/ Kevin P. Hancock 

Kevin P. Hancock

Attorney

khancock@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463

September 14, 2012 (202) 694-1650

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