UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 REPRESENTATIVE TED LIEU, et al., 

Plaintiffs, Civ. No. 16-2201 (EGS) 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant.

MEMORANDUM OPINION 

 This case involves the constitutionality of the Federal 

Election Campaign Act’s (“FECA”) limits on contributions to 

political action committees that make only independent 

expenditures. The Court of Appeals for the District of Columbia 

Circuit (“D.C. Circuit”) has held that contributions to such 

independent expenditure-only political action committees “cannot 

corrupt or create the appearance of corruption” and therefore 

limits on contributions to these groups are unconstitutional. 

SpeechNow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010)(en 

banc). The upshot of this holding is that certain political 

action committees, commonly known as “Super PACs” can “receive 

unlimited amounts of money from both individuals and 

corporations” and “engage in unlimited electioneering 

communications, so long as their activities are not made ‘in 

cooperation, consultation, or concert, with, or at the request 

or suggestion of’ a candidate, his or her authorized political 
2 

committee, or a national, State, or local committee of a 

political party.” Stop This Insanity, Inc. Employee Leadership 

Fund v. FEC, 902 F. Supp. 2d 23, 37 (D.D.C. 2012)(citation 

omitted). It is undisputed that this is the law of the Circuit. 

Notwithstanding the D.C. Circuit’s ruling in SpeechNow, 

Plaintiffs Representative Ted Lieu; Representative Walter Jones; 

Senator Jeff Merkley, State Senator (ret.); John Howe; Zephyr 

Teachout; and Michael Wager (collectively, “Plaintiffs”) brought 

an administrative complaint against several Super PACs alleging 

violations of FECA when the Super PACs knowingly accepted 

contributions in excess of monetary limits set by FECA. The 

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

explaining that under SpeechNow the Super PACs actions were 

lawful. Accordingly, the FEC dismissed the administrative 

complaint. 

Plaintiffs bring this action alleging the FEC acted 

“contrary to law” when it dismissed the administrative complaint 

against the Super PACs because the FEC relied on SpeechNow--an 

allegedly unlawful judicial ruling. Pending before the Court is 

FEC’s motion to dismiss plaintiffs’ complaint for failure to 

state a claim. Plaintiffs have the daunting task of persuading 

this Court to rule inconsistently with the D.C. Circuit’s en 

banc opinion in SpeechNow. This Court cannot do so, therefore 

defendant’s motion to dismiss is GRANTED. 
3 

I. Background 

 Because the claims in this case involve several provisions 

of FECA, and the D.C. Circuit’s interpretation of those 

provisions, the Court begins with an explanation of the statute 

and relevant case law.

A. FECA and SpeechNow 

 FECA was enacted to “limit spending in federal election 

campaigns and to eliminate the actual or perceived pernicious 

influence over candidates for elective office that wealthy 

individuals or corporations could achieve by financing the 

‘political warchests’ of those candidates.” Orloski v. FEC, 795 

F.2d 156, 163 (D.C. Cir. 1986)(citing Buckley v. Valeo, 424 U.S. 

1, 25–26 (1976)). To that end, there are several provisions in 

FECA that limit the amount of money a person can contribute to a 

federal campaign. These limits often depend on who or where the 

contribution is coming from, and the amount of the contribution. 

 Relevant to this case are the limits on contributions made 

to political action committees.1 FECA defines a “political 

committee” as “any committee, club, association, or other group 

of persons” that receives “contributions” or makes 

 

1 The term “political action committee or ‘PAC’ . . . normally 

refers to organizations that corporations or trade unions might 

establish for the purpose of making contributions or 

expenditures that [FECA] would otherwise prohibit.” FEC v. 

Atkins, 524 U.S. 11, 15 (1998)(citing 2 U.S.C. §§ 431(4)(B), 

411b). 
4 

“expenditures” “for the purpose of influencing any election for 

Federal Office” “aggregating in excess of $1,000 during a 

calendar year.” 52 U.S.C. § 30101(4)(A), (8)(A)(i),(9)(A)(i). 

This definition has been further tailored by the Supreme Court 

to “only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or 

election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 

(1976). Political action committees fall within the category of 

political committees as defined by the Act. 

 FECA sets several limitations on the contributions 

political committees may receive depending on the type of entity 

that receives the contribution. A political committee that is 

not authorized by a candidate or established by a national or 

state political party may not knowingly accept any contribution 

in excess of $5,000 per year from an individual. 52 U.S.C. 

§ 30116(f). And, of course, an individual shall not contribute 

more than $5,000 per year to this type of political committee. 

Id. § 30116(a)(1)(C). 

 The $5,000 limit on contributions to political committees 

does not apply, however, to political committees that solely 

engage in independent expenditures. See SpeechNow, 599 F.3d at 

694–95. Independent expenditures are defined by FECA as 

expenditures “that expressly advocate[] the election or 

defeat of a clearly identified candidate” and are “not made in 
5 

concert or cooperation with or at the request or suggestion of 

such candidate, the candidate’s authorized political committee, 

or their agents, or a political party committee or its agents.” 

52 U.S.C. § 30101(17). 

 The inability to put limitations on contributions to 

independent expenditure-only political committees has led to 

“the genesis of so-called ‘Super PACs.’” Stop this Insanity, 902 

F. Supp. 2d at 37. Super PACS were born from the union of the 

rulings in two First Amendment campaign finance cases. In the 

first case, Citizens United v. FEC, the Supreme Court 

“conclude[d] that independent expenditures, including those made 

by corporations, do not give rise to corruption or the 

appearance of corruption.” 558 U.S. 310, 357 (2010). Therefore, 

the Court held, the government did not have a sufficient anticorruption interest in restricting corporations from engaging in 

political speech funded from the corporation’s general treasury 

if that speech was in the form of an independent expenditure. 

Id. at 358. 

 In the second case, SpeechNow, the D.C. Circuit held that 

if under Citizens United there was no anti-corruption interest 

in limiting independent expenditures then there could not be an 

anti-corruption interest in regulating contributions to 

independent expenditure-only political action committees. 599 

F.3d at 694–95. The D.C. Circuit acknowledged that the only 
6 

interest recognized by the Supreme Court as sufficiently 

important to outweigh First Amendment interests implicated by 

contributions for political speech was the interest of 

“preventing corruption or the appearance of corruption.” 

SpeechNow, 599 F.3d at 692 (citations omitted). Applying the 

then-new precedent of Citizens United, the D.C. Circuit reasoned 

that if the Supreme Court ruled that limits on independent 

expenditures were unconstitutional, it necessarily follows that 

limits on contributions to political committees that engaged 

solely in independent expenditures are also unconstitutional. 

Id. This is because, like the independent expenditures in 

Citizens United, “contributions to groups that make only 

independent expenditures also cannot corrupt or create the 

appearance of corruption.” Id. at 694. In other words, the 

government “has no anti-corruption interest in limiting 

contributions to an independent expenditure group” and 

therefore, the D.C. Circuit held, any limits on such 

contributions are unconstitutional. Id. at 695.

 Enter Super PACs. Because these political action committees 

make solely independent expenditures, they are “permitted to 

receive unlimited amounts of money from both individuals and 

corporations.” Stop This Insanity, 902 F. Supp. 2d at 37. This 

allows for an “unlimited [amount of] money to flow into the 

electoral process for express advocacy” for particular 
7 

candidates so long as the expenditures are not coordinated with 

that candidate. Id. at 38. 

In light of Citizens United and SpeechNow, the FEC issued 

an advisory opinion explaining the SpeechNow ruling and its 

effects on the regulation of political action committees. FEC 

Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269 (July 

22, 2010). The advisory opinion explained that the FEC’s 

understanding was that it “necessarily follows” from Citizens

United and SpeechNow “that there is no basis to limit the amount 

of contributions to” an independent expenditure-only political 

committee “from individuals, political committees, corporations 

and labor organizations,” which are covered by 52 U.S.C. § 

30116(a)(1)(C). Id. at *2. The advisory opinion also triggered 

FECA’s safe harbor for “any person involved in any specific 

transaction or activity which is indistinguishable in all its 

material aspects” from the activity described in the opinion. 52 

U.S.C. § 30108(c)(1)(B). Additionally, anyone who relies on a 

finding in an advisory opinion and does so in good faith “shall 

not, as a result of any such act, be subject to any sanction 

provided” by FECA. Id. § 30108(c)(2). Since issuing the advisory 

opinion, the Commission has not enforced the limits in 52 U.S.C. 

§ 30116(a)(1)(C) when contributions are given to groups that 

make only independent expenditures. Def.’s Mot. to Dismiss, ECF 
8 

No. 39 at 11.2 

 FECA allows any person to file an administrative complaint 

with the FEC alleging a violation of the statute. 52 U.S.C. 

§ 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing the 

complaint, and relevant submissions made by the administrative 

respondents, the FEC must determine whether there is “reason to 

believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). 

If the Commission dismisses the complaint, FECA allows “[a]ny 

party aggrieved” by the dismissal to file suit to obtain 

judicial review.3 52 U.S.C. § 30109(a)(8)(A). If the reviewing 

court concludes that the Commission’s dismissal is “contrary to 

law,” the court can “direct the Commission to conform with 

[that] declaration within 30 days.” Id. § 30109(a)(8)(C). 

 B. Procedural History 

Plaintiffs filed an administrative complaint against ten 

political action committees, all Super PACs, alleging that they 

knowingly accepted contributions in excess of the $5,000 per 

person per year limit set by FECA. See Am. Compl. ECF No. 36 ¶ 

79 (citing 52 U.S.C. § 30116(a)(1)(C) and (f); 11 C.F.R. §§ 

110.1(d) and (n)). The complaint also cited over 39 specific 

 

2 When citing electronic filings throughout this opinion, the 

Court cites to the ECF header page number, not the page number 

of the filed document. 

3 All such lawsuits must be filed in this district. Id. 

(providing that aggrieved parties “may file a petition with the 

United States District Court for the District of Columbia”). 
9 

contributions to the Super PACs from over two-dozen contributors 

that were alleged to violate FECA’s contribution limits.4 Joint 

Appendix (J.A.), ECF No. 45 at 23–30; Id. ¶¶ 41–78. 

In their administrative complaint, Plaintiffs recognized 

that the FEC in its Advisory Opinion had declared its intent to 

follow SpeechNow’s holding that contribution limits as applied 

to contributions to independent expenditure-only political 

committees are unconstitutional. J.A. at 9. Plaintiffs, however, 

reminded the FEC that they were not bound to the SpeechNow

decision and could “still enforce FECA’s contribution limits in 

cases brought by or against other parties outside the D.C. 

Circuit.” J.A. at 10. Another way around SpeechNow, argued 

plaintiffs, was for the FEC to refuse to acquiesce to the 

SpeechNow ruling even in the D.C. Circuit “as long as the agency 

is ‘embarked on a rational litigation program designed to secure 

a reasonably prompt national resolution of the question in 

dispute.’” Id. (citing Samuel Estreicher & Richard L. Revesz, 

The Uneasy Case Against Intracircuit Nonacquiescence, 99 Yale 

L.J. 831, 832 (1990)). Therefore, plaintiffs invited the FEC “to 

reconsider, in light of later experience, its decision to 

acquiesce to SpeechNow.” Id. 

 

4 For example, the Freedom Partners Action Fund, Inc. was alleged 

to have received contributions from four individuals, the 

Charles G. Koch 1997 trust, and the Mountaire Corporation of 

Little Rock, of over $13,000,000,000 total. 
10 

The FEC declined the invitation. The Commission voted 

unanimously to find no reason to believe that the administrative 

respondents, (i.e., the Super PACs), had violated FECA. J.A. at 

213–14. The Commission acknowledged plaintiffs’ factual 

allegations and plaintiffs’ arguments that SpeechNow was wrongly 

decided, but found that “the D.C. Circuit’s decision in 

SpeechNow and the Commission’s [advisory opinion] plainly permit 

the contributions described in the [c]omplaint, and [plaintiffs] 

do not suggest otherwise.” Id. at 208. In light of plaintiffs’ 

concession that “SpeechNow and [the advisory opinion] permit the 

conduct described in the [c]omplaint” the Commission ruled that 

it would be inconsistent to find that there was a “reason to 

believe that respondents violated the law.” Id. at 210. 

The Commission also noted that Super PACs were entitled to 

rely on the advisory opinion in which the Commission adopted the 

holding in SpeechNow. J.A. at 208. The Commission explained that 

individuals may rely on an advisory opinion as long as the 

person is “involved in the specific transaction or activity with 

respect to which such advisory opinion is rendered” or if the 

person is involved in a specific transaction or activity “which 

is indistinguishable in all its material aspects from the 

transaction or activity with respect to which such advisory 

opinion is rendered.” Id. (citing 52 U.S.C. § 

30108(c)(1)(A),(B)). The Commission further noted that FECA and 
11 

the Commission’s regulation prohibit the Commission from 

sanctioning any person who acts in good-faith reliance on an 

advisory opinion. Id. (citing 52 U.S.C. § 30108(c)(2)). 

The Commission also explicitly addressed its decision to 

acquiesce to SpeechNow. The Commission began by explaining that 

the doctrine of nonacquiesence “refers to an agency’s conscious 

decision to disregard the law of one or more circuits to 

generate a circuit split that will result in judicial finality 

through Supreme Court review.” Id. at 210 (citation omitted). 

The Commission reasoned that acquiescence therefore “assumes 

that the law forming the basis for the obligation to acquiesce 

remains in flux.” Id. (citing Johnson v. U.S.R.R. Ret. Bd., 969 

F.2d 1082, 1092 (D.C. Cir. 1992)). The Commission explained that 

because “seven federal courts of appeals” have addressed the 

constitutionality of imposing limits on contributions to Super 

PACs and have all ruled that such limits are unconstitutional, 

“there is simply no basis to conclude that the law remains 

unsettled in a way that would begin to justify Commission 

nonacquiescence . . . even if the Commission had not already 

adopted the holding of SpeechNow in [the advisory opinion].” Id.

at 210–11. Accordingly, the Commission dismissed the complaint. 

Plaintiffs sought review of the Commission’s decision by 

filing this law suit. In their amended complaint, plaintiffs 

allege that because the FEC’s dismissal of the administrative 
12 

complaint “rested on legally erroneous conclusions about the 

constitutionality of [FECA]” the dismissal was “’contrary to 

law’ under 52 U.S.C. § 3019(a)(8)(C).” See Am. Compl., ECF No. 

36 ¶¶ 85–88.5 Defendant’s moved to dismiss the complaint for 

failure to state a claim. See Def.’s Mot. to Dismiss, ECF No. 

39. Plaintiffs filed their opposition to the motion to dismiss 

and defendants have filed a reply. This case is now ripe for 

adjudication. 

II. Legal Standard 

The FEC has moved to dismiss plaintiffs’ amended complaint 

for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6). However, because this case requires the 

Court to review an agency’s final action, the traditional Rule 

12(b)(6) standard of review does not apply. Marshall Cnty. 

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 

1993). Rather, when agency action is challenged, “[t]he entire 

case on review is a question of law, and only a question of law. 

And because a court can fully resolve any purely legal question 

on a motion to dismiss, there is no inherent barrier to reaching 

 

5 Plaintiffs also alleged a violation of the Administrative 

Procedure Act, 5 U.S.C. § 706(2), in Count II of their Amended 

Complaint, but have since dropped that claim. See Pls.’ Opp’n., 

ECF No. 42 at 13 n.1 (“Plaintiffs do not oppose dismissal of 

Count II, alleging that the FEC’S dismissal of plaintiffs’ 

complaint violated the Administrative Procedure Act.”). 

Accordingly, Count II of the complaint is DISMISSED. 
13 

the merits at the 12(b)(6) stage.” Id. Accordingly, in reviewing 

agency action, “the district judge sits as an appellate 

tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 

(D.C. Cir. 2001). 

A party challenging an FEC dismissal decision under FECA’s 

judicial review provision, 52 U.S.C. § 30109(a)(8)(A), is 

entitled to relief if the dismissal decision is “contrary to 

law.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “The 

FEC's decision is ‘contrary to law’ if (1) the FEC dismissed the 

complaint as a result of an impermissible interpretation of the 

Act, . . . or (2) if the FEC's dismissal of the complaint, under 

a permissible interpretation of the statute, was arbitrary or 

capricious, or an abuse of discretion.” Id. (citations omitted). 

III. Analysis 

The Court begins by addressing the threshold issue of the 

appropriate standard of review for the FEC’s decision to dismiss 

a plaintiffs’ administrative complaint when that dismissal is 

based on an interpretation of judicial precedent. The Court then 

turns to the merits and discusses whether the FEC’s decision was 

“contrary to law” under FECA. 

 A. Proper Standard of Review under FECA 

The parties agree that the standard of review for a 

Commission’s dismissal of an administrative complaint is whether 

the dismissal is “contrary to law” under FECA. 52 U.S.C. 
14 

§ 30109(a)(8)(C); see Def.’s Mot. to Dismiss, ECF No. 39 at 17; 

Pls.’ Opp’n, ECF No. 42 at 14. The parties similarly agree that 

courts need not give binding deference to an administrative 

agency’s interpretation of judicial precedent or the 

Constitution. Def.’s Mot. to Dismiss, ECF No. 39 at 17; Pls.’ 

Opp’n, ECF No. 42 at 14. Where the parties part ways, however, 

is on the question of whether the “contrary to law” standard 

under FECA requires the Court to give any deference to the 

Commission’s enforcement decisions, even if the deference is not 

conclusive. 

Plaintiffs argue that review in this case should be de 

novo. Pls.’ Opp’n., ECF No. 42 at 15. Plaintiffs acknowledge 

that in the typical case in which the FEC is interpreting a 

statute that it administers the Court is required to defer to 

the agency’s interpretation. Id. at 14 (citing Chevron, U.S.A., 

Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)). 

Plaintiffs further acknowledge that a Court must defer to an 

agency’s dismissal which rests on a factual determination as 

long as that determination is supported by substantial evidence. 

Id. (citing Hagelin v. FEC, 411 F.3d 237, 242-43 (D.C. Cir. 

2005)). Plaintiffs argue, however, that neither circumstance 

applies to this case because the FEC’s dismissal was based on 

its interpretation of SpeechNow, and courts need not defer to an 

agency’s interpretation of judicial precedent. Id. 
15 

The FEC argues that the Court should defer to the dismissal 

decision. Def.’s Mot. to Dismiss, ECF No. 39 at 18. The FEC 

recognizes that “courts are not obligated to give binding 

deference to an agency’s interpretation of judicial precedent or 

the Constitution.” Id. at 18 (citing Univ. of Great Falls v. 

NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002)). The FEC argues, 

however, that in the context of a decision to not enforce FECA, 

an agency engages in a complicated balance of factors 

particularly in the agency’s expertise including whether the 

agency is likely to succeed if it acts and whether the 

enforcement action best fits the agency’s overall policy goals. 

Id. (citing Heckler v. Cheney, 470 U.S. 821, 831 (1985)). 

Defendants argue that because there are discretionary factors 

involved in a decision about whether to bring an enforcement 

action, the Court should defer to the agency’s decision 

notwithstanding the fact that the decision turned on the 

interpretation of judicial precedent. Id.

The Court is persuaded that plaintiffs have the better 

argument. This is not the typical case of administrative review: 

the FEC’s decision to dismiss the complaint was based 

exclusively on its interpretation of the D.C. Circuit’s opinion 

in SpeechNow. The precedent in this Circuit is clear that 

“courts need not, and should not, defer to agency 

interpretations of opinions written by courts.” Citizens for 
16 

Responsible Ethics in Washington v. FEC, 209 F. Supp. 3d 77, 87 

(D.D.C. 2016)(collecting cases). This principle is “especially 

true where, as here, . . . the . . . precedent is based on 

constitutional concerns, which is an area of presumed judicial 

competence.’” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996), 

vacated on other grounds, 524 U.S. 11 (1998). 

The FEC invokes Heckler v. Cheney, but that case is 

inapposite. 470 U.S. 821, 831 (1985). Although Heckler does 

stand for the proposition that there is a presumption that 

agency decisions not to enforce are unreviewable, FECA’s express 

provision for the judicial review of FEC dismissal decisions 

rebuts that presumption. See FEC v. Akins, 524 U.S. 11, 26 

(1998) (“In Heckler, this Court noted that agency enforcement 

decisions have traditionally been committed to agency 

discretion, and concluded that Congress did not intend to alter 

that tradition in enacting the APA . . . We deal here with a 

statute [FECA] that explicitly indicates the 

contrary.”)(internal quotation marks omitted). Moreover, here, 

the dismissal decision was not rooted in a judgment call such as 

exercising prosecutorial discretion or policy-based 

justifications, but rather an interpretation of judicial 

precedent. In other words, the decision was not based on 

discretionary factors that would require the Court to defer to 

the judgment and expertise of the agency. Accordingly, the Court 
17 

will not afford deference to the FEC's interpretation of 

judicial precedent defining the protections of the First 

Amendment as it relates to the issues in this case. 

 B. Review of the FEC’s Dismissal Decision 

Plaintiffs argue that the FEC acted contrary to law in its 

interpretation of SpeechNow because its decision to dismiss the 

administrative complaint rested on a judicial ruling that was 

contrary to law. Pls.’ Opp’n., ECF No. 42 at 17. Plaintiffs 

concede that the D.C. Circuit’s ruling in SpeechNow “voided the 

long-established statutory limits for contributions to any 

political committee that restricts its spending to independent 

expenditures.” Am. Compl., ECF No. 36 ¶ 2 (emphasis in 

original). However, plaintiffs argue that SpeechNow does not 

stop the FEC from declaring the Super PACs’ actions as unlawful. 

Pls.’ Opp’n., ECF No. 42 at 19. 

In SpeechNow, the D.C. Circuit sitting en banc determined 

that FECA limits on contributions could not be constitutionally 

applied to independent expenditure-only political action 

committees. 599 F.3d at 694–96. The D.C. Circuit began by 

recognizing that “although contribution limits do encroach upon 

First Amendment interests, they do not encroach upon First 

Amendment interests to as great a degree as expenditure limits.” 

Id. at 692. The Court explained that expenditures and 

contributions are treated differently because, “in ‘contrast 
18 

with a limitation upon expenditures for political expression, a 

limitation upon the amount that any one person or group may 

contribute to a candidate or political committee entails only a 

marginal restriction upon the contributor's ability to engage in 

free communication.’” Id. (quoting Buckley, 424 U.S. at 20–21). 

The D.C. Circuit held that although the standard for 

restrictions on contributions is less stringent than the 

standard for expenditures, the Act’s contribution limit was 

unconstitutional under either standard because the government 

has no valid “interest in limiting contributions to independent 

expenditure-only organizations.” Id. at 696. The Court explained 

that the only interest recognized by the Supreme Court as 

sufficiently important to outweigh the First Amendment interests 

implicated by contributions for political speech is the interest 

in “preventing corruption or the appearance of corruption.” Id.

(citations omitted). However, in light of the Supreme Court’s 

ruling in Citizens United that independent expenditures could 

not corrupt or create the appearance of corruption, the D.C. 

Circuit held that it “must conclude” that “the government has no 

anti-corruption interest in limiting contributions to an 

independent expenditure group.” Id. at 695. Since the government 

had zero interest in limiting contributions to groups that make 

only independent expenditures, the D.C. Circuit reasoned that 

the implicated First Amendment interests outweighed the 
19 

government’s non-existent interests. Id. As the D.C. Circuit put 

it, “something . . . outweighs nothing every time.” Id.

(citation omitted). 

Plaintiffs point out several alleged flaws in the D.C. 

Circuit’s decision. Plaintiffs argue that SpeechNow: (1) failed 

to appreciate the distinction between contributions and 

expenditures; (2) rested on a logical fallacy that if 

expenditures cannot corrupt then contributions cannot corrupt 

either; (3) failed to appreciate a regulatory interest in 

limiting contributions; (4) misinterpreted the holding in 

Citizens United; and (5) developments since SpeechNow require 

its reconsideration. Pls.’ Opp’n, ECF No. 42 at 23–38; see also 

id. at 26 (“The bottom line of the SpeechNow opinion--that 

contributions to super PACs cannot corrupt--is plainly wrong.”). 

Plaintiffs’ acknowledge that the D.C. Circuit’s 

interpretation of Citizens United in SpeechNow binds this Court 

unless SpeechNow has been overruled by either the D.C. Circuit 

sitting en banc, or the Supreme Court. Pls.’ Opp’n, ECF No. 42 

at 23. There is no D.C. Circuit case that purports to overrule 

SpeechNow. The only Supreme Court case the Plaintiffs cite that 

postdates SpeechNow and therefore could have possibly overruled 

it is McCutcheon v. FEC, 572 U.S. 185 (2014)(plurality opinion). 

In McCutcheon, a Supreme Court plurality held that an aggregate 

limit on the amount an individual can contribute to a candidate 
20 

or national party was unconstitutional.6 McCutcheon, 572 U.S. at 

194. The Court held that the aggregate limit on contributions 

was more than a “modest restraint upon protected political 

activity” because the limit functionally prohibited an 

individual from fully contributing to primary and general 

elections campaigns of ten or more candidates.7 Id. at 204. In 

balancing the First Amendment interest with the government’s 

burden of showing that the aggregate limits further the 

permissible objective of preventing quid pro quo corruption, the 

Court stated “there is not the same risk of quid pro quo 

corruption or its appearance when money flows through 

independent actors to a candidate, as when a donor contributes 

to a candidate directly.” Id. at 210. The Court also noted 

“[t]he absence of prearrangement and coordination of an 

expenditure with the candidate or his agent . . . undermines the 

value of the expenditure to the candidate[,] but probably not by 

95 percent.” Id. at 214. 

Plaintiffs point to the McCutcheon decision and argue that 

the Court recognized that “the lack of coordination may make an 

 

6 The base limit, which restricted how much money a donor may 

contribute to any particular candidate or committee, was not 

challenged. 

7 The base limits were such that an individual would reach the 

aggregate limit after contributing the max base amount, $5,200 

each, to nine candidates. Therefore, the aggregate limit 

functioned as an outright ban on further contributions to any 

more candidates. McCutcheon, 572 U.S. at 204. 
21 

expenditure worth less but not worthless.” Pls.’ Opp’n., ECF No. 

42 at 33. And therefore, plaintiffs argue, independent 

expenditures cannot be wholly non-corrupting since they retain 

some value. Id. McCutcheon, however was not about independent 

expenditures but rather contributions directed to a particular 

candidate or party committee. Id. at 193–94. In any event, 

McCutcheon did not purport to overturn SpeechNow or Citizens 

United. 

The Court recognizes that there is some tension between 

SpeechNow and other Supreme Court decisions. But that tension 

flows from inconsistencies between Citizens United and prior 

Supreme Court campaign finance decisions. See McCutcheon, 572 

U.S. at 240–45 (Breyer, J., dissenting)(explaining statements in 

Citizens United about proper contours of corruption “conflict 

not just with the language of [prior precedent] but with . . . 

the very holding[s]” of prior Supreme Court cases). 

Nevertheless, the D.C. Circuit has spoken on the issue--limits 

on contributions to Super PACs are unconstitutional--and the 

D.C. Circuit’s reasoning is binding on this Court. Plaintiffs 

point to no Supreme Court cases which show that SpeechNow has 

been overruled. 

Plaintiff’s allegations about the violations of the Super 

PACs fall squarely within the holding of SpeechNow. It cannot be 

said that the FEC’s determination, which was based on SpeechNow, 
22 

was contrary to law. To do so would be tantamount to a 

declaration that binding precedent of the D.C. Circuit was 

unlawful. And that is not something this Court is prepared to 

say.8 

IV. Conclusion 

This case centers on the balance of two competing 

interests. On one hand, “[t]here is no right more basic in our 

democracy than the right to participate in electing our 

political leaders . . . [which includes] contribut[ing] to a 

candidate’s campaign.” McCutcheon, 572 U.S. at 191. On the other 

hand, “[t]o say that Congress is without power to pass 

appropriate legislation to safeguard an election from the 

improper use of money to influence the result is to deny to the 

nation in a vital particular the power of self protection.” 

McConnell v. FEC, 540 U.S. 93, 223–24 (2003)(alterations and 

citation omitted). In SpeechNow, the D.C. Circuit struck that 

balance and ruled that any contribution limits to independent 

expenditure-only groups (i.e., Super PACs) were unconstitutional 

because the government has absolutely no anti-corruption 

interest in stopping contributions to such groups. 599 F.3d at 

695. The FEC followed that opinion in deciding to dismiss the 

 

8 Because the FEC correctly applied SpeechNow in dismissing the 

administrative complaint, the Court need not decide whether the 

Commission erroneously acquiesced to SpeechNow or whether the 

FEC’S reliance on its advisory opinion was contrary to law. 
23 

administrative complaint against the Super PACs in this case. 

Accordingly, the FEC did not act contrary to law, and 

defendant’s motion to dismiss is GRANTED. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

United States District Judge 

February 28, 2019