NO. 15-1455

In the

United States Court of Appeals

for the Fourth Circuit

STOP RECKLESS ECONOMIC INSTABILITY CAUSED

BY DEMOCRATS, TEA PARTY LEADERSHIP FUND,

and ALEXANDRIA REPUBLICAN CITY COMMITTEE,

Appellants, 

and

AMERICAN FUTURE PAC,

Intervenor-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA AT ALEXANDRIA

______________________________________________________________________________

APPELLANTS’ AND INTERVENOR-APPELLANT’S OPENING BRIEF

______________________________________________________________________________

Dan Backer, Esq. Jerad Najvar, Esq. Michael T. Morley, Esq.

DB CAPITOL STRATEGIES NAJVAR LAW FIRM COOLIDGE-REAGAN

203 S. Union Street 4151 S.W. Freeway FOUNDATION

Suite 300 Suite 625 1629 K St. NW #300 

Alexandria, VA 22314 Houston, TX 77027 Washington, DC 20013

(202) 210-5431 (281) 404-4696 (860) 778-3883

DBacker@DBCapitolStrategies.com jerad@najvarlaw.com Michaelmorleyesq@hotmail.com

Counsel for Appellants Stop Counsel for Lead Counsel for 

PAC, Tea Party Leadership Intervenor-Appellant Appellants & 

Fund, and Alexandria American Future PAC Intervenor-Appellant

Republican City Comm.

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER 

INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or 

mandamus case, except that a disclosure statement is not required from the United 

States, from an indigent party, or from a state or local government in a pro se case. 

In mandamus cases arising from a civil or bankruptcy action, all parties to the 

action in the district court are considered parties to the mandamus case. 

Corporate defendants in a criminal or post-conviction case and corporate amici 

curiae are required to file disclosure statements. 

If counsel is not a registered ECF filer and does not intend to file documents other 

than the required disclosure statement, counsel may file the disclosure statement in 

paper rather than electronic form. Counsel has a continuing duty to update this 

information. 

No. 15-1455 Caption: Stop Reckless Economic Instability Caused 

by Democrats v. FEC

Pursuant to FRAP 26.1 and Local Rule 26.1, 

Stop Reckless Economic Instability Caused by Democrats,

Tea Party Leadership Fund, 

Alexandria Republican City Committee, and

American Future PAC* 

who are Appellants (American Future PAC is Intervenor-Appellant), make the 

following disclosure: 

1. Is the party/amicus a publicly held corporation or 

other publicly held entity? ____YES X NO

2. Does party/amicus have any parent corporations? ____YES X NO

If yes, identify all parent corporations, including

grandparent and great-grandparent corporations:

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3. Is 10% or more of the stock of a party/amicus ____YES X NO

owned by a publicly held corporation or other

publicly held entity? 

If yes, identify all such owners: 

4. Is there any other publicly held corporation or ____YES X NO

other publicly held entity that has a direct 

financial interest in the outcome of the litigation

(Local Rule 26.1(b))? 

If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do ____YES X NO

not complete this question) If yes, identify any

publicly held member whose stock or equity 

value could be affected substantially by the 

outcome of the proceeding or whose claims the

trade association is pursuing in a representative

capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy ____YES X NO

proceeding? If yes, identify any trustee and the 

members of any creditors’ committee: 

Signature: /s/ Michael T. Morley Date: July 5, 2015

Counsel for: Appellants and Appellant-Intervenor

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i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................iii

JURISDICTIONAL STATEMENT ....................................................................... 1

ISSUES PRESENTED............................................................................................ 1

STATEMENT OF THE CASE............................................................................... 3

A. The Challenged Statutes..................................................................... 3

B. The Appellants and Appellant-Intervenor.......................................... 7

1. Stop PAC.................................................................................. 7

2. The Fund and the ARCC.......................................................... 9

3. American Future PAC............................................................ 11

C. Procedural History............................................................................ 12

D. District Court Ruling........................................................................ 14

1. Justiciability ........................................................................... 14

2. First Amendment claims........................................................ 16

3. Equal Protection claims ......................................................... 17

SUMMARY OF ARGUMENT............................................................................ 19

ARGUMENT........................................................................................................ 21

I. EQUAL PROTECTION PRINCIPLES PROHIBIT CONGRESS 

FROM IMPOSING LOWER LIMITS ON CONTRIBUTIONS 

TO POLITICAL PARTIES FROM PACS THAT HAVE BEEN

REGISTERED FOR SIX OR MORE MONTHS. .................................... 21

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ii

A. An Equal Protection Analysis Must Focus on the 

Statutorily Created Categories, Rather Than Other

Characteristics of the Particular Appellants in This Case................ 25

B. Allowing Established Political Committees to 

Contribute Less to Political Parties Than Newer 

Political Committees May Contribute Does Not 

Further a Valid Governmental Interest ............................................ 28

C. Distinguishing Among Committees Based on Whether 

They Have Been Registered for Six Months is a Poorly 

Tailored Means of Achieving the Government’s Goals .................. 30

II. STOP PAC AND AMERICAN FUTURE’S 

CLAIMS ARE JUSTICIABLE .................................................................. 33

A. Stop PAC and American Future Have Standing 

to Pursue Their Constitutional Challenges....................................... 33

B. Stop PAC’s and American Future’s Claims Remain Justiciable ..... 35

III. EQUAL PROTECTION PRINCIPLES PROHIBIT CONGRESS 

FROM IMPOSING LOWER LIMITS ON CONTRIBUTIONS 

TO CANDIDATES BASED ON WHETHER A PAC HAS 

BEEN REGISTERED FOR SIX MONTHS.............................................. 39

IV. THE SIX-MONTH WAITING PERIOD 

VIOLATES THE FIRST AMENDMENT................................................. 46

REQUEST FOR ORAL ARGUMENT ................................................................ 51

CONCLUSION..................................................................................................... 51

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) OR 32(a) ................ 52

ADDENDUM ...................................................................................................... 53

CERTIFICATE OF SERVICE ............................................................................ 56

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iii

TABLE OF AUTHORITIES

Cases

Arlington Cnty. Republican Comm. v. Arlington Cnty., 

790 F. Supp. 618 (E.D. Va. 1992).............................................................. 48

Att’y Gen. of N.Y. v. Soto-Lopez, 

476 U.S. 898 (1986).................................................................................... 22

Bolling v. Sharpe, 

347 U.S. 497 (1954).................................................................................... 22

Bostic v. Schaefer, 

760 F.3d 352 (4th Cir. 2014). ..................................................................... 21

Buckley v. Valeo, 

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

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)..................................................................23, 27, 28, 40

Califano v. Boles, 

443 U.S. 282 (1979).................................................................................... 26

Carroll v. Comm’rs of Princess Anne, 

393 U.S. 175 (1968).................................................................................... 47

Catholic Leadership Coalition of Texas v. Reisman, 

764 F.2d 409 (5th Cir. 2014).....................................................15, 37-38, 39

Citizens Against Rent Cont. / Coal. for Fair Hous. v. Berkeley, 

454 U.S. 290 (1981)................................................................................ 3, 50

Citizens United v. FEC, 

558 U.S. 310 (2010)...............................................................................30-31

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996).................................................................................... 30

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iv

Douglas v. Brownell, 

88 F.3d 1511 (8th Cir. 1996).................................................................47-48

Dunn v. Blumstein, 

405 U.S. 330 (1972).............................................................................. 37, 38

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

533 U.S. 431 (2001).................................................................................... 29

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985).................................................................................... 31

FEC v. Wisconsin Right to Life, 

551 U.S. 449 (2007).................................................................................... 15

FW/Pbs, Inc. v. Dallas, 

493 U.S. 215 (1990).................................................................................... 47

Grossman v. City of Portland, 

33 F.3d 1200 (9th Cir. 1994)...................................................................... 48

Honig v. Doe, 

484 U.S. 305 (1988).................................................................................... 36

Lawrence v. Blackwell, 

430 F.3d 368 (6th Cir. 2005)...................................................................... 38

Long Beach Area Peace Network v. City of Long Beach, 

574 F.3d 1011 (9th Cir. 2009).............................................................. 47, 48

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992).................................................................................... 34

Lux v. Judd, 

651 F.3d 396 (4th Cir. 2011)...................................................................... 38

Majors v. Abell, 

317 F.3d 719 (7th Cir. 2003)...................................................................... 37

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v

McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................................... 28

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014).........................................................................passim

Montana Right to Life Ass’n v. Eddleman, 

343 F.3d 1085 (9th Cir. 2003).................................................................... 18

Moore v. Ogilvie, 

394 U.S. 814, 816 (1969) ........................................................................... 37

Murphy v. Hunt, 

455 U.S. 478 (1982).................................................................................... 36

N.C. Right to Life Comm. Fund v. Leake, 

524 F.3d 427 (4th Cir. 2008)................................................................ 38, 39

NAACP v. Ala. ex rel. Patterson, 

357 U.S. 449 (1958).................................................................................... 22

NAACP, Western Region v. Richmond, 

743 F.2d 1346 (9th Cir. 1984).................................................................... 47

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000).................................................................................... 45

Police Dep’t of the City of Chicago v. Mosley, 

408 U.S. 92 (1972)...................................................................................... 24

Plyler v. Doe, 

457 U.S. 202 (1982).................................................................................... 22

Quaker Action Group v. Hickel, 

421 F.2d 1111 (D.C. Cir. 1999).................................................................. 34

Rosario v. Rockefeller, 

410 U.S. 752 (1973).............................................................................. 36, 38

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Rosen v. City of Portland, 

641 F.2d 1243 (9th Cir. 1981).............................................................. 47, 48

S. Pac. Term. Co. v. ICC, 

219 U.S. 498 (1911).................................................................................... 36

Santa Monica Food Not Bombs v. City of Santa Monica, 

450 F.3d 1022 (9th Cir. 2006).................................................................... 47

Schaefer v. Townsend, 

215 F.3d 1031 (9th Cir. 2000).................................................................... 38

Shuttlesworth v. City of Birmingham, 

394 U.S. 147 (1969).................................................................................... 46

Storer v. Brown, 

415 U.S. 724 (1974).............................................................................. 15, 36

Time Warner Cable, Inc. v. Hudson, 

667 F.3d 630 (5th Cir. 2012)...................................................................... 34

Wagner v. FEC, 

854 F. Supp. 2d 83 (D.D.C. 2012).............................................................. 23

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 

536 U.S. 150 (2002).............................................................................. 46, 47

Constitutional Provisions

U.S. Const., amend. I.............................................................................................. 1

U.S. Const., amend. V............................................................................................. 1

Statutory Provisions

2 U.S.C. § 431....................................................................................................... 27

2 U.S.C. § 441a ........................................................................................... 4, 27, 42

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2 U.S.C. § 441b..................................................................................................... 27

28 U.S.C. § 1291..................................................................................................... 1

28 U.S.C. § 1331..................................................................................................... 1

52 U.S.C. § 30101................................................................................................... 3

52 U.S.C. § 30116..........................................................................................passim

Consolidated and Further Continuing Appropriations Act of 2015, 

Pub. L. No. 113-235, 128 Stat. 2130 (Dec. 16, 2014)............................................ 4

Rules and Regulations

FEC, Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

78 FED. REG. 8,530 (Feb. 6, 2013)................................................................ 5

FEC, Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

80 FED. REG. 5,750 (Feb. 3, 2015) ..................................................... 5, 7, 10

Fed. R. App. P. 4..................................................................................................... 1

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1

JURISDICTIONAL STATEMENT

This case arises under the First and Fifth Amendments of the U.S. 

Constitution. U.S. Const. amend. I, V. It concerns the constitutionality of certain 

provisions of federal campaign finance law. See 52 U.S.C. § 30116. The U.S. 

District Court for the Eastern District of Virginia had original jurisdiction over this 

case under 28 U.S.C. § 1331. 

The district court entered final judgment in this case, disposing of all parties’ 

claims, on February 27, 2015. JA 521; DE 78 at 1. Appellants and AppellantIntervenor filed their Notice of Appeal from that final judgment on April 22, 2015. 

JA 523; DE 82 at 1. This Court has appellate jurisdiction over this case pursuant 

to 28 U.S.C. § 1291. This appeal is timely under Fed. R. App. P. 4(a)(1)(B)(ii). 

ISSUES PRESENTED

Political committees that meet certain statutory requirements, and have been 

registered with the FEC for less than six months, may contribute $10,000 annually 

to a state or local political party committee and $33,400 to a national party 

committee. Under 52 U.S.C. § 30116(a)(2), however, once such committees have 

been registered for six months, those limits drop to $5,000 and $15,000, 

respectively. 

1. Does 52 U.S.C. § 30116(a)(2) violate the Fifth Amendment’s Equal 

Protection guarantees by imposing different limits on such committees’ 

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contributions to political parties, based solely on whether they have been 

registered for six months, thereby halving the amount a committee may contribute 

once it reaches that six-month mark? 

52 U.S.C. § 30116(a) permits political committees that meet certain statutory 

requirements, but have been registered for less than six months, to contribute only 

$2,700/election to candidates. In contrast, political committees that meet those 

same requirements, but have been registered for six or more months, may 

contribute $5,000/election to candidates. 

2. May Appellant Stop PAC and Appellant-Intervenor American Future 

PAC maintain their challenges to the six-month waiting period, even though their 

waiting periods have expired, under the “capable of repetition, yet evading” 

review exception to the mootness doctrine, as it applies in election law cases?

3. Does § 30116(a)’s six-month waiting period violate the First 

Amendment, as applied to political committees that meet all other statutory 

requirements for fully exercising their First Amendment associational rights by 

contributing $5,000/election to candidates?

4. Does 52 U.S.C. § 30116(a) discriminate in violation of the Fifth 

Amendment’s Equal Protection guarantees, as applied to committees that satisfy 

those other statutory requirements, by imposing different candidate contribution 

limits based solely on whether a committee have been registered for six months? 

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STATEMENT OF THE CASE

A. The Challenged Statutes

“[T]he practice of persons sharing common views banding together to 

achieve a common end is deeply embedded in the American political process.” 

Citizens Against Rent Cont. / Coal. for Fair Hous. v. Berkeley, 454 U.S. 290, 294 

(1981). In the modern era, individuals who wish to get involved in the political 

process may form, join, or contribute to “political committees.” See 52 U.S.C. 

§ 30101(4). Political committees exist on all sides of the political spectrum, from 

the National Resources Defense Council Action Fund to the National Rifle 

Association Political Victory Fund. They allow individuals to group together to 

collectively associate with their favored candidates, demonstrate their support for 

those candidates, and attempt to assist in their election. Political committees that 

are not created or operated by a candidate, officeholder, or political party are often 

referred to as “political action committees” or “PACs.” 

Section 30116(a)(4) provides that a political committee which meets the 

following three requirements is a “multicandidate PAC”:

i. it received contributions from more than 50 persons [hereafter, 

“Receipt Requirement”]; 

ii. it made contributions “to 5 or more candidates for Federal office” 

[hereafter, “Contribution Requirement”]; and

iii. it has been registered with the FEC for six or more months. 

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52 U.S.C. § 30116(a)(4).1

Multicandidate PACs are subject to the following contribution limits:

● $5,000 per election limit on contributions to a candidate, 52 U.S.C. 

§ 30116(a)(2)(A);

● $15,000 annual limit on contributions to a national political party 

committee, id. § 30116(a)(2)(B);2

● $5,000 annual limit on contributions to a state or local political party 

committee, id. § 30116(a)(2)(C). 

 

1 At the time this lawsuit was filed, federal campaign finance law was codified in 

Title 2 of the U.S. Code. The challenged restrictions were set forth at 2 U.S.C. 

§ 441a. Federal campaign finance law has since been recodified in Title 52. This 

brief will use the new, currently applicable citations. 

2 After this lawsuit was filed, Congress amended the law to allow national political 

parties to create three special segregated funds, each of which may be used 

exclusively for a specific purpose: (i) presidential nominating conventions, 

(ii) purchase or upkeep of party headquarters buildings, and (iii) election recounts 

and contests. See Consolidated and Further Continuing Appropriations Act of 

2015, Pub. L. No. 113-235, Div. N, § 101(a), 128 Stat. 2130, 2772-73 (Dec. 16, 

2014), codified at 52 U.S.C. § 30116(a)(2)(B), (a)(9)(A)-(C). In addition to 

contributing $15,000 annually in unrestricted funds to a national party committee, 

a multicandidate PAC also may contribute $45,000 annually to each of the national 

party’s three segregated funds, as well. 52 U.S.C. § 30116(a)(2)(B). 

 These limits on contributions to national parties’ segregated funds are just as 

discriminatory as the general limit on contributions to national party committees. 

A multicandidate PAC may contribute $45,000 to each such segregated fund. Id. 

In contrast, a political committee that, like a multicandidate PAC, satisfies 

§ 30116(a)(4)’s Receipt and Contribution Requirements, but has been registered 

for less than six months, may contribute $100,200 annually to each such fund. 52 

U.S.C. § 30116(a)(1)(B). In other words, the amount a committee may contribute 

to a segregated fund is halved once that committee has been registered for six 

months. And materially identical committees are subject to dramatically different 

contribution limits based solely on whether they have been registered for six 

months. 

 

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Other political committees—including committees that satisfy 

§ 30116(a)(4)’s Receipt and Contribution Requirements, but have not yet been 

registered for six months—are treated as “persons” under campaign finance law. 

Such newer committees are subject to the following contribution limits: 

● $2,700 per election limit on contributions to candidates, 52 U.S.C. 

§ 30116(a)(1)(A); see also FEC, Price Index Adjustments for 

Contribution and Expenditure Limitations and Lobbyist Bundling 

Disclosure Threshold, 80 FED. REG. 5,750, 5,752 (Feb. 3, 2015) 

(adjusting statutory limit for inflation);3

● $33,400 annual limit on contributions to a national political party 

committee, 52 U.S.C. § 30116(a)(1)(B);4see also 80 FED. REG. at 

5,752 (adjusting statutory limit for inflation). 

● $10,000 annual limit on contributions to a state or local political party 

committee, 52 U.S.C. § 30116(a)(1)(D). 

 

3

Since the time this lawsuit was filed, the amounts that a “person” may contribute 

to a candidate and a national party committee have been adjusted for inflation. Cf. 

FEC, Price Index Adjustments for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 FED. REG. 8,530, 8,532 (Feb. 6, 2013) 

(specifying former limits). 

4 As noted earlier, in addition to the general contribution limit of $33,400 in 

unrestricted funds, a “person” also may contribute $100,200 annually to each of a 

national party committee’s three special segregated funds. 52 U.S.C. 

§ 30116(a)(1)(B); see also supra note 2. 

 

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As the chart below demonstrates, the contribution limits that apply to 

political committees that satisfy § 30116(a)(4)’s Receipt and Contribution 

Requirements depend exclusively on whether those committees have been 

registered with the FEC for six months:

Contribution Recipient

Identity of Contributor

Political committee has 

been registered for less 

than six (6) months

Political committee has 

been registered for six (6)

or more months

Candidate $2,700 per election $5,000 per election

State or Local Political 

Party Committee

$10,000 annually $5,000 annually

National Political Party 

Committee

$33,400 annually $15,000 annually

Special Segregated Fund 

of National Political Party5

$100,200 annually 

per fund

$45,000 annually 

per fund

This chart also demonstrates a puzzling feature of the current scheme: once 

a political committee that satisfies § 30116(a)(4)’s Receipt and Contribution 

Requirements has been registered for six months, the amount it may contribute to 

candidates nearly doubles, while the amount it may contribute to political parties

 

5 Because Congress did not establish separate contribution limits for national party 

committees’ segregated funds until after the litigants in this case cross-moved for 

summary judgment below, see supra note 2, this lawsuit does not directly 

challenge such limits. 

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is slashed by nearly half. Thus, the law does not even treat such committees 

consistently once they reach that six-month mark. 

B. The Appellants and Appellant-Intervenor

1. Stop PAC—Appellant Stop Reckless Economic Instability 

Caused by Democrats (“Stop PAC”) is a hybrid political committee based in 

Alexandria, Virginia, that was formed and registered with the FEC on March 11, 

2014. JA 504; DE 76 at 4. Within a month of its formation, Stop PAC had 

satisfied § 30116(a)(4)’s Receipt and Contribution Requirements by receiving over 

150 contributions and contributing to five candidates. Id. Nevertheless, until its 

six-month waiting period expired on September 11, 2014, Stop PAC was permitted 

to contribute a maximum of only $2,600 per election to each candidate. Id. (citing 

52 U.S.C. § 30116(a)(1)(A)).6 

Among its other contributions, in early April 2014, Stop PAC contributed 

the statutory maximum amount of $2,600 to Niger Innis, a candidate for the 

Republican nomination to the U.S. House of Representatives from Nevada. 

JA 504; D E76 at 4. Innis’ primary election was to be held on June 10, 2014, 

before the end of Stop PAC’s six-month waiting period. Id. Stop PAC wished to 

contribute an additional $2,400 to Innis in connection with that primary (for a total 

of $5,000), but § 30116(a)(1)(A) “prohibited it from doing so because Stop PAC 

 

6

The limit has since been adjusted for inflation to $2,700. 80 FED. REG. at 5,752. 

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had not been registered with the FEC for more than six months.” Id. It is 

undisputed that another political committee that was materially identical to Stop 

PAC in every way (i.e., same number of contributors, same assets, same number of 

employees, same mission, etc.), but that had been registered for six months or 

longer, would have been permitted to contribute a total of $5,000 per election to 

Innis or any other candidate at that time. 

Stop PAC filed the instant lawsuit in mid-April, shortly after satisfying 

§ 30116(a)(4)’s Receipt and Contribution Requirements, to challenge the sixmonth waiting period and discriminatory contribution limits. JA 13; DE 1 at 1. 

Innis’ primary election occurred before the trial court rendered judgment, however; 

see JA 504; DE 76 at 4. He lost. 

In mid-June 2014, while this lawsuit was pending, Stop PAC contributed the 

statutory maximum of $2,600 to Dan Sullivan, a candidate for the Republican 

nomination for U.S. Senate in Alaska. Id. Sullivan’s primary was to be held on 

August 19, 2014. Id. As the district court explained, “Stop PAC wished to 

contribute an additional $2,400 to Sullivan in connection with the Alaska Primary, 

but [§ 30116(a)(1)(A)] prohibited it from doing so because it had not been 

registered for more than six months . . . . The Alaska Primary occurred before 

Stop PAC’s six-month waiting period expired.” Id. Again, had Stop PAC been 

registered for six months at the time it contributed to Sullivan—even if everything 

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else about the committee were exactly the same—it would have been allowed to 

contribute $5,000 to him in connection with his primary. 

Finally, in early July 2014, Stop PAC contributed the statutory maximum of 

$2,600 to Congressman Joe Heck in connection with the November 2014 general 

election. JA 505; D 76 at 5. It wished to contribute an additional $1,800 to Heck 

at that time, but was prohibited from doing so until the end of its six-month waiting 

period. Id. Shortly after Stop PAC’s waiting period expired, on October 3, 2014, 

it contributed $1,800 more to Heck. Id.

7

 

2. The Fund and the ARCC—Appellant Tea Party Leadership 

Fund (“The Fund”) is a hybrid political committee that qualifies as a 

multicandidate PAC because it satisfied § 30116(a)(4)’s Receipt and Contribution 

requirements and has been registered with the FEC for more than six months. JA 

506, DE 76 at 6. In 2014, the Fund contributed the statutory maximum of $5,000 

 

7

In its summary judgment briefing, the FEC emphasized that Greg Campbell, 

Stop PAC’s founder and chairman, had contributed to Innis and performed work 

for the Innis campaign. The FEC pointed to deposition testimony that he acted as a 

“policy director” for the campaign, JA 271; DE 57-6 at 21, but the record also 

contained substantial evidence that he was a political consultant for the campaign 

who acted as a “scribe” or “writer,” assisting with speeches, op-eds, and other 

public statements, JA 216-19, 221; DE 57-6 at 28-31, 33. The district court made 

no factual findings on this issue, and it played no role in the court’s ruling. 

The FEC further pointed out that Stop PAC’s counsel in this case and 

treasurer, Dan Backer, also had served as counsel and treasurer for Innis’ campaign 

committee. JA 206; DE 57-6, at 10. Backer attended a fundraiser for Innis and 

helped Innis with his website. Again, the district court made no findings on these 

points and did not base its ruling upon them. 

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to Appellant Alexandria Republican City Committee (“ARCC”), a local political 

party committee affiliated with the Virginia State Republican Party.8 JA 506; 

DE 76 at 6 (citing 52 U.S.C. § 30116(a)(2)(C)). The Fund wished to contribute a 

total of $10,000 to the ARCC that year, but federal law prohibited it from doing so. 

“If the Fund had been registered with the FEC for less than six months,” however, 

“it would have . . . been permitted to contribute up to $10,000” to the ARCC and 

any other state or local party committees. Id. (citing 52 U.S.C. § 30116(a)(1)(D)). 

Similarly, a political committee that, like the Fund, had satisfied § 30116(a)(4)’s 

Receipt and Contribution Requirements, but had been registered for less than six 

months, also would have been permitted to contribute $10,000 to the ARCC. See

52 U.S.C. § 30116(a)(1)(D). 

Additionally, the Fund wishes to contribute $32,400 to the National 

Republican Senatorial Committee (“NRSC”), a national party committee. JA 506; 

DE 76 at 6. Under the 2014 contribution limits, a political committee that satisfied 

§ 30116(a)(4)’s Receipt and Contribution Requirements, but was registered for less 

than six months, would have been permitted to contribute $32,400 to a national 

party committee such as the NRSC. Id. (citing 52 U.S.C. § 30116(a)(1)(B)); that 

limit has since been adjusted for inflation to $33,400, 80 FED. REG. at 5,752. 

 

8 Appellants will be filing a motion to supplement the record with this Court, 

seeking leave to provide evidence that the Fund also made a $5,000 contribution to 

ARCC in 2015, well after the trial court entered final judgment. 

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Because the Fund has been registered for more than six months, however, it may 

contribute a maximum of only $15,000 annually to the NRSC. JA 506; DE 76 at 6. 

(citing 52 U.S.C. § 30116(a)(2)(B)). 

3. American Future PAC—Appellant-Intervenor American

Future PAC is a political committee that formed and registered with the FEC on 

August 11, 2014. JA 505; DE 76 at 5. “Its purpose is to ‘stand for veterans who 

have secured our freedom.’” Id. Within two weeks, American Future satisfied 

§ 30116(a)(4)’s Receipt and Contribution Requirements by receiving 54 

contributions and contributing to five candidates.9 Nevertheless, until its sixmonth waiting period expired on February 11, 2015, American Future was 

permitted to contribute only $2,600 per election to each candidate. Id. (citing 52 

U.S.C. § 30116(a)(1)(A)). 

In August 2014, American Future contributed $2,600 to Tom Cotton in 

connection with his November general election for U.S. Senate. Id. It wished to 

immediately contribute another $2,000 to him in connection with that election, but 

was prohibited from doing so “because it had not been registered with the FEC for 

six months.” Id. As discussed below, the district court granted American Future 

leave to intervene in this lawsuit and join in Stop PAC’s challenge to the six-month 

waiting period and discriminatory contribution limits. JA 461; DE 62 at 1. 

 

9 American Future received a total of $5,473 in contributions, including a single 

contribution of $5,000. JA 505; DE 76 at 5. 

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The November election occurred before American Future’s waiting period 

expired. On February 11, 2015, after the waiting period elapsed, American Future 

qualified as a multicandidate PAC. JA 505; DE 76 at 5. 

C. Procedural History

Appellants Stop PAC, the Fund, and ARCC commenced this lawsuit in the 

Eastern District of Virginia on April 4, 2014. JA 13; DE 1 at 1. Niger Innis and 

his campaign committee, Niger Innis for Congress (“NIFC”), also were among the 

original plaintiffs. The Complaint contained three counts:

● Count I (brought by Stop PAC, Innis, and NIFC)—Fifth Amendment 

equal protection challenge to the different candidate contribution 

limits that apply to political committees that satisfy § 30116(a)(4)’s 

Receipt and Contribution Requirements, based solely on whether they 

have been registered with the FEC for six months. 

● Count II (brought by Stop PAC, Innis, and NIFC)—First Amendment 

challenge to 52 U.S.C. § 30116(a)(4)’s six-month waiting period for 

political committees that satisfy § 30116(a)(4)’s Receipt and

Contribution requirements before they may contribute the maximum 

statutorily permitted amount of $5,000 per election to candidates. 

● Count III (brought by the Fund and ARCC)—Fifth Amendment 

equal protection challenge to the precipitous drop in limits on 

contributions to local, state, and national political parties that occurs 

once a political committee that satisfies § 30116(a)(4)’s Receipt and 

Contribution Requirements has been registered for six months. 

JA 22-25; DE 1 at 10-13. 

Stop PAC’s challenge to the six-month waiting period, by its very nature, 

was time-sensitive. And, among other things, Stop PAC wished to contribute a 

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total of $5,000 to Niger Innis in connection with his impending primary election. 

Arguing that this case presented pure questions of law, and that the FEC already 

had any pertinent evidence in its possession, Appellants moved for summary 

judgment in early May, approximately three weeks after filing and serving the 

Complaint. JA 29; DE 6 at 1. The district court denied that motion without 

prejudice and granted the FEC’s cross-motion under Rule 56(d) to allow time for 

discovery. JA 47; DE 33 at 1. 

 After Innis lost his primary, he and NIFC moved to voluntarily dismiss 

their claims without prejudice. The court granted their motion on July 24, 2014, 

and permitted Appellants to file an Amended Complaint containing just the claims 

of Stop PAC, the Fund, and ARCC. JA 79; DE 47 at 1. The Amended Complaint 

also alleged additional facts concerning contributions Stop PAC had made (to Dan 

Sullivan and Joe Heck) after the original complaint was filed. 

 In late August, as Stop PAC was nearing the end of its six-month waiting 

period, Appellant-Intervenor American Future moved to join or intervene in the 

lawsuit and adopt Stop PAC’s First Amendment and Equal Protection challenges 

(Counts I and II). American Future’s motion included as exhibits its proposed 

Rule 26(a) initial disclosures, as well as responses to all of the requests for 

admission, interrogatories, and document requests that the FEC had served upon 

Stop PAC, as they would apply to American Future. JA 95-96; DE 50 at 1-2. 

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American Future also agreed to immediately begin accepting discovery requests by 

e-mail and provide complete responses within six days. Id. The court allowed 

American Future to intervene in the lawsuit and allowed the FEC a few extra 

weeks to seek further discovery from it. JA 461; DE 62 at 1. 

 On September 19, 2014, Appellants and the FEC cross-moved for summary 

judgment. JA 117, 131; DE 56 at 1, 57 at 1. The court held oral argument on 

October 31, 2014, and permitted the parties to submit supplemental briefing 

concerning American Future, JA 463; DE 67 at 1, which had been permitted to 

“adopt[], join[] in, and incorporate[] by reference” Stop PAC’s arguments, JA 507; 

DE 76 at 7. On February 27, 2015, the court denied Appellants’ motion, and 

granted the FEC’s motion, JA 519; DE 77 at 1, entering final judgment in the 

FEC’s favor, JA 521; DE 78 at 1.

D. District Court Ruling

1. Justiciability—The court began by considering whether Stop 

PAC and American Future had standing to challenge the six-month waiting period 

and discriminatory limits on candidate contributions. It acknowledged that “there 

is no doubt that [they] have been affected by the challenged contribution limits.” 

JA 508; DE 76 at 8. The court expressed concern, however, over “whether that 

injury satisfies the constitutional requirements for standing, given the ability of 

entities such as Stop PAC and American Future to control the timing of their 

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registrations relative to any particular election.” JA 508-09; DE 76 at 8-9. In other 

words, Stop PAC and American Future may lack standing to challenge the sixmonth waiting period, because each of them (or, more precisely, its founder) was 

able to determine when its particular waiting period would occur, based on when it 

registered with the FEC. Despite these concerns, the court “assume[d], without 

deciding,” that they possessed standing. JA 508; DE 76 at 9. 

The court went on to consider whether Stop PAC’s and American Future’s 

claims were moot, since their six-month waiting periods had expired and they were 

no longer subject to the $2,600 limit on candidate contributions. It recognized that 

an exception to the mootness doctrine exists where “the underlying dispute is 

capable of repetition, yet evading review.” JA 509; DE 76 at 9. But this exception 

generally applies only where “‘the same complaining party will be subject to the 

same action again.’” Id. (quoting FEC v. Wisconsin Right to Life, 551 U.S. 449, 

462 (2007)). Neither Stop PAC nor American Future can ever again be subject to 

the six-month waiting period, since it is triggered only when a political committee 

first registers with the FEC. 

The court then suggested, however, that under Storer v. Brown, 415 U.S. 

724, 737 n.8 (1974), and the Fifth Circuit’s ruling in a highly analogous case, 

Catholic Leadership Coalition of Texas v. Reisman, 764 F.2d 409, 422-23 (5th Cir. 

2014), this “same plaintiff” requirement might not apply in the context of an 

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election-related case such as this. JA 509-10; DE 76 at 9-10 (“[I]t is unclear under 

the existing election case law whether the ‘capable of repetition’ prong applies 

under the circumstances of this case.”). The court concluded, “Given the election 

law context, the Court assumes, without deciding, that the circumstances presented 

here satisfy both prongs of the mootness exception.” JA 510; DE 76 at 10. 

2. First Amendment claims—Turning to the merits of Stop PAC’s and 

American Future’s challenges, the Court rejected their First Amendment claim. It

began by holding that contribution limits impose only “‘marginal restrictions’” on 

First Amendment rights, because they “‘involve little restraint’ on contributors’ 

ability to express their own political views.” JA 511; D 76 at 11 (quoting Buckley, 

424 U.S. at 20-21). The court further opined that Stop PAC and American Future 

were not even entitled to full protection of their First Amendment rights, since they 

were not individuals. It explained that PACs “receive less First Amendment 

protection than direct contributions to candidates. Because this case does not 

involve an individual contributor, the First Amendment . . . provides Stop PAC and 

American Future with limited rights, not offended here, with regard to their ability 

to make political contributions.” JA 514; DE 76 at 14. 

Based on this cramped and misguided conception of the First Amendment 

interests at stake, the Court held that § 30116(a)(1)(A)’s $2,700 candidate 

contribution limit could not be unconstitutional, since it was higher than the limits 

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upheld in Buckley v. Valeo, 424 U.S. 1 (1976). JA 512; DE 76 at 12. Likewise, 

the six-month waiting period on contributing the full statutory amount of $5,000 to 

candidates did not raise First Amendment concerns, because numerous other ways 

existed for entities such as Stop PAC and American Future to engage in 

“independent political expression.” JA 513; DE 76 at 13. Thus, “Stop PAC and 

American Future cannot show that they have suffered a cognizable constitutional 

injury as a result of the waiting period, even if they would have made a higher 

contribution, had they been permitted to do so.” JA 512; DE 76 at 12. 

The district court’s First Amendment analysis did not subject the six-month 

waiting period to any form of heightened scrutiny. Even more remarkably, despite 

the Supreme Court’s admonition that “preventing corruption or the appearance of 

corruption” is the “only . . . legitimate governmental interest for restricting 

campaign finances,” McCutcheon v. FEC, 134 S. Ct. 1434, 1450 (2014), the 

district court’s First Amendment discussion completely fails to even mention 

“corruption.” To the contrary, the word does not appear in the court’s opinion 

until a fleeting reference in the penultimate paragraph. JA 517; DE 76 at 17. 

3. Equal Protection claims—The court also rejected all of the 

Appellants’ Equal Protection claims. It began by declaring that, because Stop PAC 

is a “‘grassroots organization,’” it “is precisely the type of instrumentality that 

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lends itself to a circumvention of the contribution limits applicable to individuals.” 

JA 515-16; DE 76 at 15-16. It did not cite any evidence to support this assertion. 

Then, rather than comparing the statutory categories the law creates, the 

court went on to compare Stop PAC itself with the Fund. Because Stop PAC had 

received only 150 contributions, with most of its resources coming from two 

contributors, while the Fund “had over 100,000 contributors,” the court concluded 

that the two committees were not “similarly situated” for Equal Protection 

purposes. JA 516; DE 76 at 16. 

The court further noted that, “[e]ven if the PACs were similarly situated,” it 

would reject Appellants’ Equal Protection claims “under either rational basis or 

intermediate scrutiny.” Id. It cited Montana Right to Life Ass’n v. Eddleman, 343 

F.3d 1085, 1091 (9th Cir. 2003), for the proposition that it “‘need not be overly 

concerned with the precise standard of scrutiny to be applied.’” JA 516-17; DE 76 

at 16-17. Combining its rational basis and intermediate scrutiny analyses, the court 

declared that the challenged contribution limits serve the government’s interest in 

reducing the risk of corruption and circumvention of other restrictions. JA 517; 

DE 76 at 17. The court did not address the second prong of an intermediate 

scrutiny analysis, by examining whether basing contribution limits on the length of 

time a committee has been registered with the FEC is an “appropriately tailored” 

means of achieving the Government’s goals. McCutcheon, 134 S. Ct. at 1457. 

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Most notably, as mentioned above, the court emphasized the purported 

threat of circumvention that new, small, grassroots organizations such as Stop PAC 

supposedly pose. JA 515-16; DE 76 at 15-16. It did not explain why, once a 

committee that satisfies § 30116(a)’s Receipt and Contribution Limits has been 

registered for six months, the Government has a valid interest in slashing the 

amount it may contribute to local, state, and national party committees in half. 

SUMMARY OF ARGUMENT

Political contributions are a protected form of association and speech under 

the First Amendment. This case concerns whether Congress constitutionally may 

impose different contribution limits on certain political committees (colloquially, 

“PACs”), based solely on whether they have been registered with the FEC for at 

least six months. 

Two different types of contribution limits are at issue here: limits on 

contributions to candidates, and limits on contributions to national, state, and local 

political party committees. The candidate contribution limits discriminate against 

newer political committees. Certain committees that have been registered for six 

months or more may contribute nearly twice as much to their favored candidates as 

identical committees that were created more recently. Yet the record below lacks 

any evidence that such newer committees categorically pose a greater risk of 

corruption than older ones. This discriminatory treatment also effectively imposes 

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a six-month waiting period on such newer committees before they may exercise 

their First Amendment rights to the maximum extent permitted by federal law. 

The limits on contributions to political parties, in contrast, discriminate 

against more established political committees. Once certain political committees 

have been registered for six months, the amount they may contribute to local, state, 

and national party committees is slashed by roughly half. Again, the record below 

lacks any evidence to suggest that a political committee that has existed for six 

months poses a greater risk of engaging in corruption with political parties (while 

simultaneously posing a reduced risk of engaging in corruption with candidates). 

Congress thus lacks a valid basis for reducing the amount such committees may 

contribute to political parties after six months. 

Each set of contribution limits, on its own, impermissibly discriminates 

among political committees based on whether they have been registered for six 

months. Considered together, the contradictory changes in contribution limits that 

occur at the six-month mark are incoherent and undermine the validity of the 

whole system. The law’s blunderbuss attempt to combat corruption through a 

blanket, six-month waiting period is completely untailored, particularly in light of 

the extensive particularized information about each individual political committee 

the FEC has at its disposal. Because the assumed—and unproven—correlation 

between the length of time a political committee has existed and the risk of

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corruption it poses cannot survive intermediate scrutiny, this Court should 

invalidate both sets of discriminatory restrictions. 

At the very least, this Court must invalidate one of the contradictory changes 

in contribution limits that occur at the six-month mark. A political committee 

cannot simultaneously pose both a greater risk of corruption and a reduced risk of 

corruption after six months. At least one of the challenged provisions must fall. 

ARGUMENT

I. EQUAL PROTECTION PRINCIPLES PROHIBIT CONGRESS 

FROM IMPOSING LOWER LIMITS ON CONTRIBUTIONS 

TO POLITICAL PARTIES FROM PACS THAT HAVE BEEN

REGISTERED FOR SIX OR MORE MONTHS. 

The district court erred in granting the FEC’s motion for summary judgment 

on Count III.10 The Fifth Amendment’s Equal Protection guarantee prohibits the 

Government from subjecting PACs to different limits on the amount they may 

contribute to political parties, based solely on whether those PACs have been 

registered for six months. In particular, the Government may not slash the amount 

a PAC may contribute to a political party, simply because it has been registered for 

six months. Thus, 52 U.S.C. § 30116(a)(2)(B)-(C)’s reduced contribution limits 

($5,000 to state parties and $15,000 to national parties) are unconstitutional as 

 

10 This court “review[s] the district court’s disposition of cross-motions for 

summary judgment—including its determinations regarding standing—de novo, 

viewing the facts in the light most favorable to the non-moving party.” Bostic v. 

Schaefer, 760 F.3d 352, 370 (4th Cir. 2014). 

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applied to committees that satisfy § 30116(a)(4)’s Receipt and Contribution 

Requirements, and have been registered for six or more months. 

The Fifth Amendment’s Due Process Clause imposes Equal Protection 

restrictions on the federal government equivalent to those the Fourteenth 

Amendment imposes on the states. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). 

Under Equal Protection principles, a court must “treat[] as presumptively invidious 

those classifications that . . . impinge upon the exercise of a fundamental right.” 

Plyler v. Doe, 457 U.S. 202, 216 (1982) (quotation marks omitted); Att’y Gen. of 

N.Y. v. Soto-Lopez, 476 U.S. 898, 906 n.6 (1986) (opinion of Brennan, J.) (holding 

that a law that disparately “infringes constitutionally protected rights” for different 

groups is subject to “heightened scrutiny”). 

In Buckley v. Valeo, 424 U.S. 1, 22, 24 (1976), the Supreme Court held that 

contributing to candidates and political parties is an important aspect of the 

freedom of association protected by the First Amendment. “The right to join 

together ‘for the advancement of beliefs and ideas’ is diluted if it does not include 

the right to pool money through contributions, for funds are often essential if 

‘advocacy’ is to be truly or optimally ‘effective.’” Id. at 65-66 (quoting NAACP v. 

Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958)). Moreover, “[m]aking a 

contribution, like joining a political party, serves to affiliate a person with a 

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candidate” and “enables like-minded persons to pool their resources in furtherance 

of common political goals.” Id. at 22. 

Because contribution limits substantially burden a contributor’s right to 

associate with candidates and political parties while leaving the contributor free to 

associate with those candidates and parties in other ways, id. at 22, such limits are 

subject to heightened or “close[]” scrutiny, instead of strict scrutiny, id. at 25 

(quotation marks omitted). The district court’s assertion that contribution limits 

impose only “marginal restriction[s]” on First Amendment rights, JA 511; DE 76 

at 11, overlooks their impact on associational rights. 

A campaign finance law “violates the equal protection component of the 

Fifth Amendment,” if it “burdens the First Amendment rights of [some] 

persons . . . to a greater extent than it burdens the same rights” of other entities, and 

“such differential treatment is not justified.” Cal. Med. Ass’n v. FEC, 453 U.S. 

182, 200 (1981) (hereafter, “CalMed”). To survive heightened scrutiny, such 

differential treatment must further “a sufficiently important interest and employ[] 

means closely drawn to avoid unnecessary abridgement of associational 

freedoms.” Buckley, 424 U.S. at 25; accord Wagner v. FEC, 854 F. Supp. 2d 83, 

96 (D.D.C. 2012) (“[T]o survive an equal protection challenge, § 441c’s ban on 

contributions by federal contractors must be closely drawn to match a sufficiently 

important interest.”) (quotation marks omitted), vacated on jurisdictional grounds, 

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717 F.3d 1007 (D.C. Cir. 2013); see also Police Dep’t of the City of Chicago v. 

Mosley, 408 U.S. 92, 102 (1972) (holding that, under the Equal Protection Clause, 

a court must determine whether a “selective restriction on expressive conduct” is 

“far greater than is essential to the furtherance of [a substantial] interest”). The 

discriminatory limits on contributions to political parties fail this test. 

The district court, however, declined to subject any reduced contribution 

limits to heightened scrutiny on the grounds that people can express support for 

candidates in numerous ways other than making contributions, such as by 

“volunteering their time to work on candidates’ campaigns” and speaking 

“independently in favor of, or organizing volunteer efforts to support candidates of 

their choice.” JA 513; DE 76 at 13. Buckley expressly relied on such 

considerations, however, in deciding that limits on campaign contributions should 

be subject to intermediate or “close” scrutiny, rather than strict scrutiny. 

Buckley recognized that contribution limits constrain “one important means 

of associating with a candidate or committee, but leave the contributor free to 

become a member of any political association and to assist personally in the 

association's efforts on behalf of candidates.” 424 U.S. at 22; see also id. at 28 

(reiterating that contribution limits “leav[e] persons free to engage in independent 

political expression, to associate actively through volunteering their services, and 

to assist to a limited but nonetheless substantial extent in supporting candidates and 

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committees with financial resources”). Despite these numerous other ways in 

which people can get involved in political campaigns, Buckley still subjected limits 

on campaign contributions to heightened scrutiny. 424 U.S. at 25 (assessing 

whether contribution limits further a “sufficiently important interest” and 

“employ[] means closely drawn to avoid unnecessary abridgement of associational 

freedoms”). 

A. An Equal Protection Analysis Must Focus on the 

Statutorily Created Categories, Rather Than Other

Characteristics of the Particular Appellants in This Case

Federal law divides political committees that satisfy § 30116(a)’s Receipt 

and Contribution Requirements11 into two categories:

● those that have been registered for less than six months, and therefore 

may contribute $10,000 annually to state party committees and 

$33,400 annually to national party committees, 52 U.S.C. 

§ 30116(a)(1)(B), (D); and 

● those that have been registered for six or more months, and therefore 

may contribute only $5,000 annually to state party committees and 

$15,000 annually to national party committees, id. § 30116(a)(2)(B)-

(C). 

The only pertinent question is whether committees in the latter group categorically 

pose more of a threat of corruption or circumvention concerning contributions to 

political parties than those in the first group. 

 

11 In other words, committees that have received more than 50 contributions and 

contributed to five or more candidates. 52 U.S.C. § 30116(a)(4). 

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The district court’s approach to this issue was methodologically flawed. It 

held that an Equal Protection analysis was inapplicable because Stop PAC was 

very different from, and therefore not “similarly situated” with, the Fund. JA 516; 

DE 76 at 16. The court’s focus on these particular appellants, rather than the 

statutory classifications themselves, was erroneous. See Califano v. Boles, 443 

U.S. 282, 293-94 (1979) (holding that “equal protection analysis . . . must begin 

with the statutory classification itself”). 

Moreover, all of the differences between Stop PAC and the Fund upon 

which the district court fixated are statutorily irrelevant. For example, the court 

stated that Stop PAC “is comprised of approximately 150 contributors,” while the 

Fund “had over 100,000 contributors.” JA 516; DE 76 at 16. This distinction is 

statutorily irrelevant; once a political committee has received more than 50 

contributions, the law does not further consider the number of contributors it has. 

52 U.S.C. § 30116(a)(4). Likewise, the court noted that Stop PAC has 

“contributed to five candidates for federal office,” while the Fund has contributed 

to “dozens of federal candidates.” JA 516; DE 76 at 16. Again, so long as a 

political committee has made more than five contributions, the law does not further 

take the number of contributions it makes into account. 52 U.S.C. § 30116(a)(4). 

The court noted that two of Stop PAC’s “largest contributors provid[ed] a 

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significant portion of Stop PAC’s receipts,” while the Fund is more “broad-based.” 

JA 516; DE 76 at 16. The statutory scheme, however, ignores such considerations. 

In CalMed, 453 U.S. at 200, an unincorporated association brought an equal 

protection challenge against a provision that imposed lower contribution limits on 

such entities than on certain corporations. Unincorporated associations could 

contribute only $5,000 to their affiliated PACs, id. at 195 (citing 2 U.S.C. 

§ 441a(a)(1)(C)), whereas corporations could contribute an unlimited amount to 

their affiliated “segregated funds,” CalMed, 453 U.S. at 200 (citing 2 U.S.C. 

§§ 431(8)(B)(vi), 441b(b)(2)(C)). The Court held that these different limits were 

permissible under Equal Protection because unincorporated associations and 

corporations “have differing structures and purposes,” and therefore “may require 

different forms of regulation in order to protect the integrity of the electoral 

process.” Id. at 201. 

This case, in contrast, is an as-applied Equal Protection challenge to the 

disparate contribution limits the law imposes on political committees that satisfy 

§ 30116(a)(4)’s Receipt and Contribution Requirements, based solely on whether 

those committees have been registered for six months. Unlike in CalMed, it is 

impossible to contend that the two statutorily defined groups of committees “have 

differing structures and purposes” and therefore “require different forms of 

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regulation.” Id. “[D]ifferential treatment” of candidate contributions from 

materially identical political committees “is not justified.” Id.

In short, the district court is attempting to distinguish between Stop PAC and 

the Fund based on factors that Congress itself did not deem sufficiently pertinent to 

incorporate into federal law. Groups such as Stop PAC and groups such as the 

Fund are “similarly situated” in the manner Congress deemed relevant because 

they both satisfy § 30116(a)(4)’s Receipt and Contribution Requirements. For 

Equal Protection purposes, the issue is whether expiration of a group’s six-month 

waiting period is a constitutionally valid basis for substantially reducing the 

amount it may contribute to political parties. 

B. Allowing Established Political Committees to Contribute Less to 

Political Parties Than Newer Political Committees May 

Contribute Does Not Further a Valid Governmental Interest

For political committees that satisfy § 30116(a)(4)’s Receipt and 

Contribution Requirements, the precipitous drop in limits on contributions they 

experience at the six-month mark does not further a valid government interest. 

The Supreme Court has held that there are only three “constitutionally sufficient 

justification[s]” for contribution limits: preventing quid pro quo corruption, 

McConnell v. FEC, 540 U.S. 93, 297 (2003) (opinion of Kennedy, J.); avoiding the 

appearance of such quid pro quo corruption, Buckley, 424 U.S. at 26; and 

preventing circumvention of other constitutionally proper limits, FEC v. Colo. 

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Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001) (hereafter, 

“Colorado II”). 

Imposing discriminatorily low limits on the amount that established 

committees may contribute to political parties furthers none of these goals. To the 

contrary, the district court concluded that a newer “‘grassroots organization’” is 

“precisely the type of instrument that lends itself to a circumvention of the 

contribution limits applicable to individuals,” and that the “risk of circumvention is 

particularly great during the initial months of a PAC’s creation.” JA 515-16; DE 

76 at 15-16. Thus, even accepting the district court’s reasoning, multicandidate 

PACs categorically pose less of a circumvention risk than newer political 

committees, and therefore should not be subject to lower contribution limits.

Likewise, by permitting newer committees to contribute $10,000 annually to 

state and local parties, and $33,400 annually to national parties, Congress has 

effectively determined that contributions in those amounts do not give rise to a risk 

of actual or apparent quid pro quo corruption. Cf. McCutcheon, 134 S. Ct. at 1452 

(“Congress’s selection of a $5,200 base limit [for candidate contributions, 

including both primary and general elections] indicates its belief that contributions 

of that amount or less do not create a cognizable risk of corruption.”). There is no 

reason to believe that contributions in those same amounts from more established 

committees to political parties would somehow pose a greater risk of corruption. 

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Cf. id. (holding that, “[i]f there is no corruption concern” in allowing individuals to 

make $5,200 contributions to nine different candidates, “it is difficult to 

understand” how a tenth such contribution would be potentially corrupting). 

 C. Distinguishing Among Committees Based on Whether 

They Have Been Registered for Six Months is a Poorly 

Tailored Means of Achieving the Government’s Goals.

Distinguishing among political committees based on whether they have been 

registered for six months also is not a “closely drawn” means of furthering any 

valid interests the Government may have in preventing quid pro quo corruption, 

the appearance of quid pro quo corruption, or circumvention of contribution limits. 

Buckley, 424 U.S. at 25. Under Buckley’s “closely drawn” standard, the 

Government may not seek to advance its goals through overbroad means that 

“unnecessar[ily] abridg[e]” First Amendment rights. Buckley, 424 U.S. at 25. A 

campaign finance restriction must be invalidated when only an “attenuated” 

relationship exists between the actual or apparent quid pro quo corruption the 

Government constitutionally may prevent, and the specific conduct it wishes to 

prohibit. Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 616 

(1996) (“Colorado I”). 

Moreover, the Government may not prohibit a broad range of 

constitutionally protected conduct in order to reach a narrow sliver of conduct that 

raises the specter of quid pro quo corruption. See, e.g., Citizens United v. FEC, 

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558 U.S. 310, 362 (2010) (holding that the Government may not prohibit 

independent expenditures from all corporations as a means of “preventing foreign 

individuals or associations from influencing our Nation’s political process”); FEC 

v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 498 (1985) 

(“NCPAC”) (invalidating prohibition on independent expenditures by PACs 

because, “[e]ven were we to determine that the large pooling of financial resources 

[by PACs] did pose the potential for corruption or the appearance of corruption,” 

the challenged statute was “not limited to multimillion dollar war chests,” but 

rather “appl[ied] equally to informal discussion groups that solicit neighborhood 

contributions”). 

Slashing the amount a political committee may contribute to a political party 

simply because it has been registered for six months is a poorly tailored means of 

furthering the Government’s anti-corruption goals. The district court opinion itself 

reveals that the six-month mark is not intrinsically important, but rather serves as a 

highly attenuated and unreliable proxy for the factors the district court really

deems relevant, including the size of a political committee, the number of 

contributors it has, the amount of assets it has, whether most of its income comes 

from only a few contributors, and the number of different candidates it has 

supported. JA 516; DE 76 at 16. 

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If Congress or the FEC believe that political committees with certain 

characteristics pose an increased risk of corruption or circumvention, the 

constitutionally valid solution is to craft provisions that at least attempt to focus on 

such problematic committees. Congress may not categorically reduce limits on 

contributions to political parties after six months for all committees, on the grounds 

that some bad apples inevitably will get caught up in the dragnet. Such a 

blunderbuss approach is particularly inappropriate because, by the time a 

committee hits the six month mark, it will have submitted six months’ worth of 

filings to the FEC, disclosing virtually everything about its finances, income, and 

expenditures. Rather than reflexively reducing all committees’ contribution limits, 

the FEC is in a uniquely advantageous position to identify and target just those 

committees that have engaged in suspicious behavior. 

Indeed, under the current system, the most concerning political committees 

that raise the biggest potential risk of corruption and circumvention will not have 

their limits on contributions to political parties reduced after six months. As 

explained earlier, to qualify as a multicandidate PAC (which is subject to reduced 

party contribution limits, see 52 U.S.C. § 30116(a)(2)(B)-(C)), a committee must 

satisfy § 30116(a)(4)’s Receipt and Contribution Limits and be registered for six 

months. Even if a political committee has been registered for six months, if it has 

received less than 50 contributions, or contributed to less than 5 candidates, it still 

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qualifies as a “person” rather than a “multicandidate PAC,” and therefore may 

contribute $10,000 annually to state and local parties, and $33,400 annually to 

national parties. Thus, party contribution limits for true multicandidate PACs are 

cut after six months, while committees with only a handful of contributors, or that 

are focused exclusively on one or two candidates—the very committees the district 

court suggests pose the greatest risk of corruption—may take advantage of 

§ 30116(a)(1)(B), (D)’s higher party contribution limits indefinitely. This Court 

cannot put its constitutional imprimatur on such a fundamentally backwards 

system. 

II. STOP PAC AND AMERICAN FUTURE’S 

CLAIMS ARE JUSTICIABLE

The district court expressed doubt over whether Stop PAC and American 

Future had standing to assert their constitutional challenges, and whether their 

claims remained justiciable following the expiration of their respective six-month 

waiting periods. JA 509-10; DE 76 at 9-10. Section A confirms their standing, 

while Section B shows their claims fall within an exception to the mootness 

doctrine as it applied to election law cases such as this. 

A. Stop PAC and American Future Have Standing 

to Pursue Their Constitutional Challenges 

Temporarily setting aside potential mootness concerns, Stop PAC and 

American Future had standing to challenge the six-month waiting period for 

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contributing the maximum statutorily authorized amount of $5,000 to candidates. 

As the district court explained, to establish standing, a plaintiff must show “(1) it 

has suffered an ‘injury in fact,’ (2) the injury is ‘fairly traceable’ to the actions of 

the defendant, and (3) the injury will likely be redressed by a favorable decision.” 

JA 508; DE 76 at 8 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992)). Stop PAC and American Future satisfy each of these requirements. 

First, they suffered two constitutionally cognizable injuries-in-fact: 

(i) they were unconstitutionally subjected to different candidate 

contribution limits than materially identical PACs that had been registered for six 

months or more, see Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 636 (5th 

Cir. 2012) (“Discriminatory treatment at the hands of the government is an injury 

long recognized as judicially cognizable.”) (quotation marks omitted); and 

(ii) they were forced to wait six months before being permitted to exercise 

their First Amendment right to associate with candidates through their 

contributions to the fullest extent permitted by federal law, see Quaker Action 

Group v. Hickel, 421 F.2d 1111, 1116 (D.C. Cir. 1999) (adopting district court’s 

ruling that “‘any delay in the exercise of First Amendment rights constitutes an 

irreparable injury to those seeking such exercise’”).

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Second, these injuries were clearly traceable to the six-month waiting period 

and discriminatory contribution limits. And third, removing those limits would 

adequately redress Stop PAC’s and American Future’s injuries. 

The district court nevertheless expressed doubt over their standing, because 

they could “control the timing of their registrations relative to any particular 

election.” JA 508-09; DE 76 at 8-9. The court is correct that the six-month 

waiting period has a much greater practical effect on committees that register 

within six months of a primary or general election. The fact remains, however, 

that Stop PAC and American Future would have been subject to the challenged 

six-month waiting period, and the concomitant discriminatory contribution limits, 

regardless of when they registered. Even if no elections were scheduled within the 

six months following their registration, they reasonably could have wished to 

exercise their First Amendment rights by contributing the maximum permitted 

amount of $5,000 to candidates immediately upon satisfying § 30116(a)’s Receipt 

and Contribution Requirements, rather than having to wait a half-year. Thus, Stop 

PAC and American Future are not complaining about a self-inflicted injury, and 

they have standing to maintain their claims. 

B. Stop PAC’s and American Future’s Claims Remain Justiciable

Although Stop PAC’s and American Future’s six-month waiting periods 

have expired, their claims remain justiciable because the underlying issues are 

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“capable of repetition, yet evading review.” S. Pac. Term. Co. v. ICC, 219 U.S. 

498, 515 (1911). In general, a plaintiff cannot invoke this exception to the 

mootness doctrine unless it faces a risk of being subject to the same challenged 

provisions in the future. Murphy v. Hunt, 455 U.S. 478, 482 (1982). As Justices 

Scalia and O’Connor recognized, however, several of the Supreme Court’s 

“election law decisions differ from the body of [its] mootness jurisprudence . . . in 

dispensing with the same-party requirement entirely, focusing instead upon the 

great likelihood that the issue will recur between the defendant and the other 

members of the public at large without ever reaching [the Supreme Court].” Honig 

v. Doe, 484 U.S. 305, 335 (1988) (Scalia, J., dissenting). 

Honig properly recognized that the Supreme Court repeatedly has reached 

the merits of election-law cases, even though the plaintiffs’ claims had become 

moot and there was no indication that the plaintiffs would again be subject to the 

challenged legal provisions. See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 

(1974) (holding that a challenge to a waiting period that prevented former political 

party members from running as independent candidates remained justiciable, even 

though the election had occurred, and “no effective relief can be provided to the 

candidates or voters,” since “the issues properly presented, and their effects on 

independent candidacies, will persist as the California statutes are applied in future 

elections”); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (“Although the 

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June primary election has been completed and the petitioners will be eligible to 

vote in the next scheduled New York primary, this case is not moot, since the 

question the petitioners raise is ‘capable of repetition, yet evading review.’”); Dunn 

v. Blumstein, 405 U.S. 330, 333 n.2 (1972) (adjudicating challenge to a “threemonth residency requirement” for voting, even though “appellee can now vote,” 

because “the problems to voters posed by the Tennessee residence requirements is 

“capable of repetition yet evading review”); Moore v. Ogilvie, 394 U.S. 814, 816 

(1969).

Numerous circuits, following these cases, have likewise held that election 

law cases can be capable of repetition, yet evading review, even if the presumptive 

“same plaintiff” requirement of the “capable of repetition” standard is not satisfied. 

As the Seventh Circuit explained in Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 

2003) (citations omitted):

[W]hile canonical statements of the exception to mootness for cases 

capable of repetition but evading review require that the dispute 

giving rise to the case be capable of repetition by the same plaintiff, 

the courts, perhaps to avoid complicating lawsuits with incessant 

interruptions to assure the continued existence of a live controversy, 

do not interpret the requirement literally, at least in abortion and 

election cases . . . . 

Perhaps the most striking example of this approach is Catholic Leadership 

Coalition of Tex. v. Reisman, 764 F.3d 409 (5th Cir. 2014), in which the plaintiffs 

challenged a state law imposing waiting periods on certain political committees 

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that wished to make political contributions and expenditures. Despite the fact that 

the plaintiff’s waiting period had elapsed, and the plaintiff could never again be 

subject to it, the Fifth Circuit reached the merits of its claim. 

Following Supreme Court precedent, the Fifth Circuit “dispense[d] with the 

same party requirement” because the plaintiffs’ challenge to campaign finance

laws was deemed to be an “election case[].” Id. at 423. The court “focus[ed] 

instead upon the great likelihood that the issue will recur between the defendant 

and the other members of the public at large.” Id. (quotation marks omitted). The 

court explained, “[I]n election law cases such as this one, where (1) the state plans 

on continuing to enforce the challenged provision, and (2) that provision will affect 

other members of the public, the exception [to the same-party requirement] is 

met.” Id. at 424; see also Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 

2005) (citing and following Rosario, 410 U.S. at 756 n.5, and Dunn, 405 U.S. at 

333 n.2); Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000) (quoting and 

following Dunn, 405 U.S. at 333 n.2).

In Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011) (quoting N.C. Right to Life 

Comm. Fund v. Leake, 524 F.3d 427, 435 (4th Cir. 2008)), this Court stated, 

“Election-related disputes qualify as ‘capable of repetition’ when ‘there is a 

reasonable expectation that the challenged provisions will be applied against the 

plaintiffs again during future election cycles.’” In both Lux, 651 F.3d at 401, and 

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Leake, 524 F.3d at 435, however, the plaintiffs made a sufficient showing that they 

might again be subject to the challenged statutes, so there was no need to consider 

whether to recognize an exception to the same-plaintiff requirement for election 

law cases. Perhaps more importantly, nothing in this Court’s opinions suggests 

that the litigants asked this Court to recognize or apply such an exception to the 

same-plaintiff requirement, or that this Court has yet considered the implications of 

the binding Supreme Court authorities above (as well as other persuasive 

precedents) in this context. 

 Thus, despite language in Lux and Leake, it does not appear that the Fourth 

Circuit has ever considered and ruled on the existence of an exception to the sameplaintiff requirement in election law cases. This Court should follow the lead of 

the Supreme Court and other circuits—particularly the Fifth Circuit’s remarkably 

analogous ruling in Reisman, 764 F.3d at 423-24—and hold that Stop PAC’s and 

American Future’s claims remain justiciable, even though their six-month waiting 

periods have expired. 

III. EQUAL PROTECTION PRINCIPLES PROHIBIT CONGRESS 

FROM IMPOSING LOWER LIMITS ON CONTRIBUTIONS 

TO CANDIDATES BASED ON WHETHER A PAC HAS BEEN 

REGISTERED FOR SIX MONTHS

The district court erred in granting summary judgment to the FEC on Stop 

PAC’s and American Future’s Equal Protection challenge, for many of the same 

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reasons that apply to the Fund’s challenge. Federal law imposes different 

candidate contribution limits on political committees that satisfy § 30116(a)(4)’s 

Receipt and Contribution Requirements, based solely on whether those committees 

have been registered for six months. Newer committees may contribute only 

$2,700 per election to each candidate, 52 U.S.C. § 30116(a)(1)(A), while older 

committees may contribute $5,000 per election to each candidate, id. 

§ 30116(a)(2)(A). 

The Supreme Court has held that contribution limits burden the contributor’s 

fundamental First Amendment right of association. Buckley, 424 U.S. at 22, 25. 

Thus, by definition, these discriminatory limits “burden[] the First Amendment 

rights of [some] persons . . . to a greater extent than [they] burden[] the same 

rights” of others. CalMed, 453 U.S. at 200. Thus, this Court must consider 

whether “such differential treatment is justified.” Id. 

The district court concluded that newer political committees pose a 

categorically greater risk of circumventing campaign finance laws than more 

established committees. JA 515-16; DE 76 at 15-16. It explained that Stop PAC 

had 150 contributors, but received “a significant portion” of its funding from only 

two of them and had contributed to only five candidates. JA 516; DE 76 at 16. 

The Fund, in contrast, “had over 100,000 contributors and had contributed to 

dozens of candidates.” Id.

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The district court thus distinguished between committees which receive most 

of their support from only a few contributors and contribute to only a few 

candidates, and committees with more extensive support that contribute to many 

more candidates. That is not the distinction 52 U.S.C. § 30116(a)(4) creates, 

however, and therefore is not the distinction at issue here. Under 52 U.S.C. 

§ 30116, newer committees are prohibited from contributing more than $2,700 per 

election to a candidate throughout the first six months of their existence, regardless

of how many contributions they’ve received or how many other candidates they 

support. Likewise, once a committee reaches the six-month mark, it is permitted to 

contribute $5,000 per election to each candidate, even if it maintains only 51 

contributors and contributes to only 5 candidates. Indeed, Stop PAC itself may 

now take advantage of this higher contribution limit, even though it still has 

approximately the same number of contributors and has contributed to the same 

number of candidates as before it achieved multicandidate PAC status. 

Thus, the six-month waiting period is not an “appropriately tailored” basis 

for distinguishing among political committees. McCutcheon, 134 S. Ct. at 1457. 

At best, it is a grossly overbroad and highly attenuated proxy for attempting to 

identify other characteristics of political committees that are believed to be more 

directly tied to a potential risk of corruption or circumvention—the type of 

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“‘prophylaxis-upon-prophylaxis approach’” that this court must be “particularly 

diligent in scrutinizing.” McCutcheon, 134 S. Ct. at 1458. 

Despite the FEC’s argument to the contrary below, Plaintiffs’ claim is 

entirely consistent with Buckley v. Valeo. In Buckley, 424 U.S. at 35-36, the 

plaintiffs had raised a much broader, generalized equal protection challenge to 

various limits on contributions from different types of entities. They argued that 

§ 441a(a)(4)’s12 requirements for qualifying as a multicandidate PAC—including 

the Receipt Requirement, Contribution Requirement, and six-month waiting 

period—“unconstitutionally discriminate[d]” against unspecified “ad hoc 

organizations in favor of established interest groups and impermissibly burden free 

association.” Id. at 35. The Court rejected this argument in a single sentence in its 

144-page opinion, stating, “Rather than undermining freedom of association, the 

basic provision enhances the opportunity of bona fide groups to participate in the 

election process, and the registration, contribution, and candidate conditions serve 

the permissible purpose of preventing individuals from evading the applicable 

contribution limitations by labeling themselves committees.” Id. at 35-36. 

The facial Equal Protection challenge in Buckley involved an attempted 

comparison between an entity that qualified as a multicandidate PAC under 

§ 441a(a)(4) and other unspecified “ad hoc organizations,” Buckley, 424 U.S. at 35, 

 

12 52 U.S.C. § 30116 was previously codified as 2 U.S.C. § 441a.

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including groups that might have been a front for a single contributor or sought to 

funnel all of their funds to a single candidate. The instant suit, in contrast, involves 

a narrower, as-applied challenge to § 30116(a)(4)’s six-month waiting period, 

specifically as it applies to political committees that satisfy § 30116(a)(4)’s other 

requirements for being recognized as multicandidate PACs. 

Not only is the instant case easily distinguishable from the Equal Protection 

claim in Buckley, but the Buckley Court’s reasoning is patently inapplicable to this 

suit. A group that has more than 50 contributors, by definition, cannot be a façade 

through which a single individual is attempting to evade other contribution limits. 

Cf. Buckley, 424 U.S. at 35-36. Moreover, there is no reason to believe that a 

recently formed group with more than 50 contributors that has contributed to five 

or more candidates is any less “bona fide” than a materially identical group that 

has existed for more than six months. Cf. id. at 35. 

Additionally, as the Supreme Court recently recognized in McCutcheon,

campaign finance law has changed dramatically since Buckley in ways that already 

ensure that individuals cannot use PACs to evade contribution limits, making 

§ 30116(a)(4)’s six-month waiting period “particularly heavy-handed.” 

McCutcheon, 2014 U.S. LEXIS 2391, at *28 (“[S]tatutory safeguards against 

circumvention have been considerably strengthened since Buckley was decided, 

through both statutory additions and the introduction of a comprehensive 

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regulatory scheme” that establish “more targeted anticircumvention measures”). 

Unlike pre-Buckley FECA, the law now limits the amount that an individual may 

contribute to a political committee (including multicandidate PAC), 52 U.S.C. 

§ 30116(a)(1)(C), as well as to local, state, and national political party committees, 

id. § 30116(a)(1)(B), (D). “Because a donor’s contributions to a political 

committee are now limited, a donor cannot flood the committee with ‘huge’ 

amounts of money so that each contribution the committee makes is perceived as a 

contribution from him.” McCutcheon, 134 S. Ct. at 1446. 

The law also now limits the amount that political committees can contribute 

to each other, 52 U.S.C. § 30116(a)(2)(C), thereby preventing people from 

circumventing the new limits on contributions to a particular PAC by funneling 

money through other such entities. Additionally, anti-proliferation restrictions 

ensure that a person cannot circumvent these limits by simply creating a series of 

committees that will, in turn, contribute to a particular candidate. McCutcheon, 

134 S. Ct. at 1438. All contributions from political committees that are 

established, financed, or controlled by the same corporation, union, or person—

including an entity’s parents, subsidiaries, branches, divisions, departments, or 

local units—are now “considered to have been made by a single political 

committee.” Id. § 30116(a)(5). 

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Finally, anti-earmarking rules prohibit a person from evading contribution 

limits by channeling contributions through a PAC or party committee to a specific 

candidate. All contributions that a person makes “either directly or indirectly, on 

behalf of a particular candidate, including contributions which are in any way 

earmarked or otherwise directed through an intermediary or conduit to such 

candidate” are “treated as contributions from such person to such candidate.” Id. 

§ 30116(a)(8). The intermediary is required to report to the FEC both the 

contributor and the intended recipient of the contribution. Id. “Although the 

earmarking provision. . . . was in place when Buckley was decided, the FEC has 

since added regulations that define earmarking broadly.” McCutcheon, 134 S. Ct. 

at 1447. Thus, the Supreme Court’s cursory rejection of the plaintiffs’ poorly 

crafted facial challenge in Buckley does not foreclose Stop PAC’s and American 

Future’s claims here. 

The Fifth Amendment’s Equal Protection guarantee bars the Government 

from discriminating among political committees concerning their First Amendment

rights based on broad, unproven assumptions. See Nixon v. Shrink Missouri Gov’t 

PAC, 528 U.S. 377, 392 (2000) (noting that Supreme Court has “never accepted 

mere conjecture as adequate to carry a First Amendment burden”). While a more 

reasonably crafted scheme for distinguishing among political committees and 

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subjecting potentially problematic ones to lower contribution limits could be 

permissible, discriminating based on a six-month waiting period is not. 

IV. THE SIX-MONTH WAITING PERIOD 

VIOLATES THE FIRST AMENDMENT

Finally, § 30116(a)(4)’s six-month waiting period violates the First 

Amendment as applied to political committees that satisfy § 30116(a)(4)’s Receipt 

and Contribution Requirements. That waiting period forces such committees to 

wait a half-year before being able to fully exercise their First Amendment 

associational rights by contributing the maximum statutorily permissible amount of 

$5,000 per election to the candidates they support. See Buckley, 424 U.S. at 21, 

24-25 (recognizing that political contributions are an important means of 

associating with a candidate). 

The courts have repeatedly recognized that delays and waiting periods 

impose substantial burden on First Amendment rights, particularly in the political 

realm. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 

U.S. 150, 167 (2002) (invalidating ordinance that “effectively banned” a 

“significant amount of spontaneous speech”). “Timing is of the essence in 

politics. . . . When an event occurs, it is often necessary to have one’s voice heard 

promptly, if it is to be considered at all.” Shuttlesworth v. City of Birmingham, 394 

U.S. 147, 163 (1969) (Harlan, J., concurring). “A delay ‘of even a day or two’ 

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may be intolerable when applied to ‘political speech in which the element of 

timeliness may be important.’” NAACP, Western Region v. Richmond, 743 F.2d 

1346, 1356 (9th Cir. 1984) (quoting Carroll v. Comm’rs of Princess Anne, 393 

U.S. 175, 182 (1968)). 

In some cases, delay may “stifle spontaneous expression,” Rosen v. City of 

Portland, 641 F.2d 1243, 1247-48 (9th Cir. 1981), and “permanently vitiate the 

expressive content” of First Amendment activity, NAACP, 743 F.2d at 1356; in 

other cases, “the change in timing will alter the potential impact of the[] speech,” 

Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1046 (9th 

Cir. 2006). Thus, “undue delay results in the unconstitutional suppression of 

protected speech.” FW/Pbs, Inc. v. Dallas, 493 U.S. 215, 228 (1990) (opinion of 

O’Connor, J.)

Under the First Amendment, the Government may not require entities to 

wait or delay before engaging in constitutionally protected expression and 

association. See, e.g., Watchtower Bible, 536 U.S. at 167-68 (invalidating 

ordinance that required people to wait until a license was issued before they 

engaged in door-to-door solicitations, including for political or religious reasons);

Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1038 (9th 

Cir. 2009) (invalidating ordinance that required groups to wait at least 24 hours 

after notifying municipality before holding a “spontaneous” gathering); Douglas v. 

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Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (invalidating ordinance requiring 

people to provide at least 5 days’ notice before holding a parade); Rosen, 641 F.2d 

at 1244 (invalidating ordinance that required groups to wait at least 24 hours after 

notifying municipality before distributing literature); see also Arlington Cnty. 

Republican Comm. v. Arlington Cnty., 790 F. Supp. 618, 629-30 (E.D. Va. 1992) 

(holding that a thirty-day waiting period for posting political signs violated the 

First Amendment), vacated in part as moot, 983 F.2d 587, 595 (4th Cir. 1993). 

The constitutional infirmities of delays on First Amendment activities are 

exacerbated when they “burden[] substantially more speech than is necessary to 

further the government’s legitimate interests.” Grossman v. City of Portland, 33 

F.3d 1200, 1205 (9th Cir. 1994) (quotation marks omitted). In Rosen, 641 F.2d at 

1247-48, the court invalidated a one-day waiting period on the distribution of 

literature at airports, because the challenged ordinance “regulates far more than 

mass conduct that necessarily interferes with the use of public facilities.” See also 

Douglas, 88 F.3d at 1524 (invalidating ordinance requiring people to provide at 

least five days’ notice before holding a parade, because it “restrict[ed] a substantial 

amount of speech that does not interfere with the city’s asserted goals of protecting 

pedestrian and vehicle traffic, and minimizing inconvenience to the public”); Long 

Beach Area Peace Network, 574 F.3d at 1038 (invalidating restriction on 

“spontaneous” assemblies, in part because it “is not narrowly tailored to regulate 

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only events in which there is a substantial governmental interest in requiring such 

advance notice,” extending to “places where there is no threat of disruption of the 

flow of pedestrian or vehicular traffic”). 

Again, Congress already has determined that contributions from 

multicandidate PACs to candidates of $5,000 per election do not pose a risk of 

corruption or circumvention. 52 U.S.C. § 30116(a)(2)(A); cf. McCutcheon, 134 S. 

Ct. at 1452 (holding that Congress’s selection of a particular contribution limit 

“indicates its belief that contributions of that amount or less do not create a 

cognizable risk of corruption”). The district court pointed to no record evidence to 

suggest that such a contribution poses a greater risk of corruption or 

circumvention, simply because it is made by a committee that (like a 

multicandidate PAC) satisfies § 30116(a)’s Receipt and Contribution 

Requirements, but has been registered for less than six months. 

The Supreme Court has recognized that, although making a contribution is 

only one way of associating with a candidate, Buckley, 424 U.S. at 22, the First 

Amendment burden of contribution limits “is especially great for individuals who 

do not have ready access to alternative avenues for supporting their preferred 

politicians and policies,” McCutcheon, 134 S. Ct. at 1449. For small committees 

such as Stop PAC and American Future, means of association other than making 

contributions generally will be impractical. The whole point of associating 

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through a PAC is to allow people to join together to collectively further a political 

cause. Citizens Against Rent Cont., 454 U.S. at 294. Many PACs’ contributors are 

spread across the country, far from most of the candidates their PACs support. It 

would be prohibitively expensive and impractical for a PAC’s contributors to 

travel together to associate with a candidate by personally working on her 

campaign. McCutcheon, 134 S. Ct. at 1449 (“[P]ersonal volunteering is not a 

realistic alternative for those who wish to support a wide variety of candidates or 

causes.”). 

Other traditional methods of association—wearing pins or other apparel, 

displaying bumper stickers, erecting lawn signs—will be effectively meaningless 

for most PAC members, who live far from the supported candidate, where most 

people are unfamiliar with the referenced race. Committees that lack substantial 

staffs and war chests will also generally be unable to fund independent 

expenditures on the radio or television. Thus, contributions to candidates are a 

crucial means through which most political committees associate with them. This 

Court should invalidate § 30116(a)’s six-month waiting period on such 

contributions.

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REQUEST FOR ORAL ARGUMENT

Appellants and Appellant-Intervenor respectfully request oral argument in 

this case, as it presents numerous important issues of constitutional law and may 

have a substantial impact on the upcoming 2016 election cycle. 

CONCLUSION

For these reasons, Appellants and Appellant-Intervenor respectfully request 

that this Court REVERSE the district court’s judgment in favor of the FEC and 

REMAND for entry of judgment in their favor and an injunction. 

Respectfully submitted,

/s/ Michael T Morley 

Dan Backer, Esq. Michael T. Morley, Esq.

DB Capitol Strategies Coolidge-Reagan Foundation

203 S. Union Street 1629 K Street, N.W.

Suite 300 Suite 300

Alexandria, VA 22314 Washington, DC 20013

(202) 210-5431 (860) 778-3883

DBacker@DBCapitolStrategies.com Michaelmorleyesq@hotmail.com

Counsel for Appellants Stop Reckless Lead Counsel for Appellants

Economic Instability Caused by Democrats, and Appellant-Intervenor

Tea Party Leadership Fund, and 

Alexandria Republican City Committee

Jerad Najvar

NAJVAR LAW FIRM

4151 S.W. Freeway

Suite 625

Houston, TX 77027

(281) 404-4696

Jerad@najvarlaw.com

Counsel for IntervenorAppellant American 

Future PAC

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CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. Type-Volume Limitation: Appellant’s Opening Brief, Appellee’s 

Response Brief, and Appellant’s Response/Reply Brief may not exceed 14,000 

words or 1,300 lines. Any Reply or Amicus Brief may not exceed 7,000 words or 

650 lines. Counsel may rely on the word or line count of the word processing 

program used to prepare the document. The word-processing program must be set 

to include footnotes in the count. Line count is used only with monospaced type. 

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) 

or 32(a)(7)(B) because:

 X this brief contains 11,639 words, excluding the parts of the brief 

exempted by Fed. R. Civ. P. 32(a)(7)(B)(iii), or

____ this brief uses a monospaced typeface and contains _____________ lines of 

text, excluding the parts of the brief exempted from Fed. R App. P. 

(a)(7)(B)(iii). 

2 Typeface and Type Style Requirements: A proportionally spaced 

typeface (such as Times New Roman) must include series and must be 14-point or 

larger. A monospaced typeface (such as Courier New) must be 12-point or larger 

(at least 101⁄2 characters per inch). 

This brief complies with the typeface requirements of Fed. R. App P. 32(a)(5) and 

the type style requirements of Fed. R. App. P. 32(a)(6) because:

 X this brief has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Times New Roman font; or 

____ this brief has been prepared in a monospaced typeface using 

___________________________ in __________________.

/s/ Michael T. Morley

Attorney for: Appellants and Appellant-Intervenor

Dated: July 8, 2015

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ADDENDUM

U.S. Const., amend. I

Congress shall make no law . . . abridging the freedom of speech . . . .

U.S. Const., amend. V

No person shall . . . be deprived of life, liberty, or property, without 

due process of law . . . .

52 U.S.C. § 30116

(a) Dollar limits on contributions.

(1) Except as provided in subsection (i) and section 315A [52 USCS 

§ 30117], no person shall make contributions—

(A) to any candidate and his authorized political committees 

with respect to any election for Federal office which, in the 

aggregate, exceed $ 2,000;

 (B) to the political committees established and maintained by a 

national political party, which are not the authorized political 

committees of any candidate, in any calendar year which, in the 

aggregate, exceed $ 25,000, or, in the case of contributions 

made to any of the accounts described in paragraph (9), exceed 

300 percent of the amount otherwise applicable under this 

subparagraph with respect to such calendar year;

(C) to any other political committee (other than a committee 

described in subparagraph (D)) in any calendar year which, in 

the aggregate, exceed $ 5,000; or

(D) to a political committee established and maintained by a 

State committee of a political party in any calendar year which, 

in the aggregate, exceed $ 10,000.

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(2) No multicandidate political committee shall make contributions--

(A) to any candidate and his authorized political committees 

with respect to any election for Federal office which, in the 

aggregate, exceed $5,000;

(B) to the political committees established and maintained by a 

national political party, which are not the authorized political 

committees of any candidate, in any calendar year, which, in 

the aggregate, exceed $ 15,000, or, in the case of contributions 

made to any of the accounts described in paragraph (9), exceed 

300 percent of the amount otherwise applicable under this 

subparagraph with respect to such calendar year; or

(C) to any other political committee in any calendar year 

which, in the aggregate, exceed $ 5,000.

* * *

(4) The limitations on contributions contained in paragraphs (1) and 

(2) do not apply to transfers between and among political committees 

which are national, State, district, or local committees (including any 

subordinate committee thereof) of the same political party. For 

purposes of paragraph (2), the term "multicandidate political 

committee" means a political committee which has been registered 

under section 303 [52 USCS § 30103] for a period of not less than 6 

months, which has received contributions from more than 50 persons, 

and, except for any State political party organization, has made 

contributions to 5 or more candidates for Federal office.

* * *

(9) An account described in this paragraph is any of the following 

accounts:

(A) A separate, segregated account of a national committee of 

a political party (other than a national congressional campaign 

committee of a political party) which is used solely to defray 

expenses incurred with respect to a presidential nominating 

convention (including the payment of deposits) or to repay 

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loans the proceeds of which were used to defray such expenses, 

or otherwise to restore funds used to defray such expenses, 

except that the aggregate amount of expenditures the national 

committee of a political party may make from such account 

may not exceed $ 20,000,000 with respect to any single 

convention.

(B) A separate, segregated account of a national committee of a 

political party (including a national congressional campaign 

committee of a political party) which is used solely to defray 

expenses incurred with respect to the construction, purchase, 

renovation, operation, and furnishing of one or more 

headquarters buildings of the party or to repay loans the 

proceeds of which were used to defray such expenses, or 

otherwise to restore funds used to defray such expenses 

(including expenses for obligations incurred during the 2-year 

period which ends on the date of the enactment of this 

paragraph).

(C) A separate, segregated account of a national committee of a 

political party (including a national congressional campaign 

committee of a political party) which is used to defray expenses 

incurred with respect to the preparation for and the conduct of 

election recounts and contests and other legal proceedings.

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CERTIFICATE OF SERVICE

I certify that on July 8, 2015, the foregoing document was served on all 

parties or their counsel of record through the CM/ECF system if they are registered 

users or, if they are not, by serving a true and correct copy at the addresses listed 

below:

Harry Summers

Kevin Hancock

Federal Election Commission

999 E. St. NW. #910

Washington, D.C. 20463

Counsel for Defendant 

/s/ Michael T. Morley July 8, 2015

 Signature date

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