1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL COMMITTEE, 

INC.,

Petitioner,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 16-cv-00121 (BAH)

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The petitioner, the Libertarian National Committee, Inc. (“LNC”), has challenged for 

over seven years the constitutionality of certain contribution limits, under the Federal Election 

Campaign Act of 1971 (“FECA”), Pub. L. No. 92-225, 86 Stat. 3, as amended (codified at 52 

U.S.C. § 30101 et seq.), that regulate how the LNC may accept and use testamentary bequests. 

In this latest round of litigation, the LNC raises one facial and two as-applied constitutional 

challenges to the statutory limits on the amount of money a person may contribute per year “to 

the political committees established and maintained by a national political party.” 52 U.S.C. §

30116(a)(1)(B); see also id. § 30116(a)(9); Pet.’s Mot. Certify Facts & Questions (“Pet.’s Mot. 

Cert.”) at 1, ECF No. 24. The role of a district court under FECA’s statutory scheme is not to 

resolve constitutional challenges to the statute in the first instance, but merely to certify to the 

U.S. Court of Appeals those challenges that are meritorious. See 52 U.S.C. § 30110. Now

pending before the Court is the LNC’s motion to certify for resolution by the U.S. Court of 

Appeals for the District of Columbia Circuit three questions: whether LNC’s First Amendment 

rights are violated by (1) applying the annual contribution limits to “the bequest of Joseph 
2

Shaber,” (2) “restricting the purposes for which the [LNC] may spend its money,” in general, and 

(3) “restricting the purposes for which the [LNC] may spend the bequest of Joseph Shaber,” in 

particular. Pet.’s Mot. Cert. at 1.1 The defendant Federal Election Commission (“FEC”), in 

opposing certification, has moved to dismiss the case, pursuant Rule 12(b)(1) of the Federal 

Rules of Civil Procedure, for lack of subject matter jurisdiction. Def.’s Mot. Dismiss (“Def.’s

Mot.”) at 1, ECF No. 25. For the reasons that follow, the LNC’s motion is granted in part and 

denied in part, and the FEC’s motion is denied.

I. BACKGROUND

The LNC, a nonprofit organization incorporated under District of Columbia law, is the 

national committee of the Libertarian Party of the United States, which Party has 15,031 active 

paid sustaining donors, and 137,451 members, in all 50 states and the District of Columbia. 

App’x, Findings of Fact ¶¶ 1, 3. In addition, forty-eight partisan officeholders and 111 nonpartisan officeholders are affiliated with the Libertarian Party nationwide, and over half a million 

registered voters identify with the Libertarian Party in the states in which voters can register as 

Libertarians. Id. ¶ 3. The LNC describes its purpose “to field national Presidential tickets, to 

support its state party affiliates in running candidates for public office, and to conduct other 

political activities in furtherance of a libertarian public policy agenda in the United States.” Id. ¶ 

5. This is the second round of litigation brought by the LNC against the FEC regarding the 

constitutionality of the FECA’s limits on monetary contributions to political parties. The details 

of the prior litigation bear directly on the present dispute and are recounted below, followed by 

an overview of the underlying facts.

 

1 The FECA imposes differing contribution limits depending on the source, recipient and use of the

contribution. Unless otherwise specified, the phrase “challenged contribution limits” as used in this Memorandum 

Opinion refers to the limits, under 52 U.S.C. § 30116(a)(1)(B), (a)(9), on the amounts of money that a person may 

donate per year to a national political party committee.
3

A. The Previous Litigation 

The FECA establishes limits on the amount of money a person may donate per year to 

national political party committees. See 52 U.S.C. § 30116(a)(1)(B). In Buckley v. Valeo, the 

Supreme Court rejected a facial challenge to the FECA’s “limitation on total contributions by an 

individual during any calendar year,” describing contribution limits as one of the FECA’s 

“primary weapons against the reality or appearance of improper influence stemming from the 

dependence of candidates on large campaign contributions.” 424 U.S. 1, 58 (1976). “The 

contribution ceilings . . . serve the basic governmental interest in safeguarding the integrity of the 

electoral process,” Buckley held, “without directly impinging upon the rights of individual 

citizens and candidates to engage in political debate and discussion.” Id. Buckley did not 

address an as-applied challenge to the contribution limits.

Ten years ago, Raymond Burrington died and left the LNC a residuary bequest of 

$217,734. See Libertarian Nat’l Comm., Inc. v. FEC (“LNC I”), 930 F. Supp. 2d 154, 156

(D.D.C. 2013) (Wilkins, J.). The FEC, consistent with longstanding policy, determined that the 

FECA’s limits on contributions to national political party committees applied to Mr. 

Burrington’s bequest, and thus, that the Burrington estate could contribute to the LNC, in any 

year, no more than the contribution limit amount. Id. The Burrington estate contributed to the 

LNC the amount of the annual contribution limit and, in agreement with the LNC, deposited the 

balance of Mr. Burrington’s bequest “into an escrow account, from which the escrow agent . . . 

would distribute annual contributions from the Estate to the LNC in amounts equal to FECA’s 

contribution limit.” Id. at 176.

The LNC sued the FEC to “enjoin application of the Party Limit to the contribution, 

solicitation, acceptance, and spending of decedents’ bequests, as said application violates the 
4

LNC’s First Amendment speech and associational rights and those of its supporters.” Id. at 156. 

The LNC moved to certify to the D.C. Circuit the following question: “Does imposing annual 

contribution limits against testamentary bequests directed at, or accepted or solicited by political 

party committees, violate First Amendment speech and associational rights?” Id. The Court 

declined to certify the LNC’s question as overbroad, reasoning that the LNC’s challenge “would 

not apply solely to [the LNC], but would extend to other entities not before this Court.” Id. at 

165. The Court further explained that under certain circumstances, “it is possible for a bequest to 

raise valid anti-corruption concerns.” Id. at 166. For example, the Court reasoned, “making 

one’s bequest known before death could be treated just as a contribution is.” Id. Likewise, “[a]

bequest may also help friends or family of the deceased have access to political officeholders and 

candidates.” Id. These examples were supported by witness testimony and other factual 

evidence of how political “groups treat such bequests.” Id. The Court thus recognized that even 

contributions by the dead may, in certain contexts, raise concerns about actual or apparent 

corruption justifying a contribution limit’s application. Id. at 166–67.

2 Furthermore, with the

testators being dead and their estates having no First Amendment rights of association or 

expression, the Court concluded that the LNC could challenge the contribution limits only as to 

its own First Amendment rights, not as to testators’ rights. Id. at 169–171.3 Given these legal 

conclusions, the Court then narrowed and certified the following question: “Does imposing 

 

2

Independent expenditures likewise might be thought capable of exerting corrupting influence on political 

officeholders under proper circumstances. In SpeechNow.org v. FEC, however, the D.C. Circuit concluded that 

“contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of 

corruption,” 599 F.3d 686, 694 (D.C. Cir. 2010), but without any apparent discussion or analysis of the myriad 

possible factual circumstances under which such contribution may be made. As explained further below, 

SpeechNow does not support a conclusion that testamentary contributions categorically cannot create actual or 

apparent corruption. See infra Part III.B.2.

3 The Court also determined that the LNC’s proposed question encompassed another issue, namely, whether 

a separate provision of the FECA prevented the LNC from “solicit[ing] bequests over the maximum even if they 

were parsed out annually at the legal limit,” but the parties’ briefs had mooted the issue. LNC I, 930 F. Supp. 2d at 

167–68. That issue is not relevant to the pending motion for certification.
5

annual contribution limits against the bequest of Raymond Groves Burrington violate the First 

Amendment rights of the Libertarian National Committee?” Id. at 171.

The FEC moved, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend the 

Court’s order, arguing, among other things, that while “as-applied First Amendment challenges 

seeking categorical exceptions to FECA’s contribution limits are proper under the statute,” a 

petitioner may not, as a matter of law, raise “a First Amendment challenge to an individual

contribution” without identifying a categorical basis to exempt an entire class of contributions 

from the contribution limits’ application. Libertarian Nat’l Comm., Inc. v. FEC (“LNC II”), 950 

F. Supp. 2d 58, 60 (D.D.C. 2013) (Wilkins, J.) (emphasis added). In denying the FEC’s motion, 

the Court rejected this argument, concluding that § 30110 requires a district court to certify 

“individualized as-applied challenges to contribution limits.” Id. at 62.

The D.C. Circuit summarily affirmed LNC I’s reformulation and certification of the 

LNC’s question, determining that “[t]he district court properly declined to certify the broad 

proposed question of law, as framed by appellant.” Libertarian Nat’l Comm., Inc. v. FEC, No. 

13-5094, 2014 WL 590973, at *1 (D.C. Cir. Feb 7, 2014). The escrow account fully distributed

Mr. Burrington’s bequest to the LNC before the D.C. Circuit could hear the certified question on 

the merits, however. See Pet.’s Mem. Supp. Pet.’s Mot. Certify Facts & Questions (“Pet.’s 

Mem.”) at 2, ECF No. 24-1; Def.’s Mem. Supp. Mot. Dismiss & Opp’n Pet.’s Mot. Certify Facts 

& Questions (“Def.’s Opp’n”) at 9, ECF No. 26. Consequently, the D.C. Circuit dismissed the 

certification as moot and vacated the district court’s order. Order, Libertarian Nat’l Comm., Inc. 

v. FEC (“LNC Dismissal Order”), No. 13-5088, 2014 U.S. App. LEXIS 25108, at *1 (D.C. Cir. 

Mar. 26, 2014).

B. Joseph Shaber’s Bequest
6

Joseph Shaber, a prior donor to the LNC, died in August 2014. Def.’s Opp’n at 9; 

Factual Findings ¶¶ 109–10, 117. Upon his death, Mr. Shaber bequeathed, with no restrictions,

the LNC an amount determined to be $235,575.20 from a living trust. Id. ¶¶ 115, 117, 121. The 

LNC accepted an amount from the bequest equal to the annual contribution limits, and placed the 

remainder of the bequest in an escrow account, to distribute the maximum allowable contribution

to the LNC on an annual basis. Id. ¶ 128. 

The LNC sued to enjoin the FEC from enforcing the contribution limits “either generally 

or in relation to the Shaber Bequest,” and to obtain declaratory relief, costs, attorney’s fees, and

other “just and appropriate” relief. Compl. at 10–11, ECF No. 1. The FEC moved to dismiss the 

LNC’s complaint for lack of subject matter jurisdiction, Def.’s Mot. Dismiss for Lack of Juris., 

ECF No. 9, which motion was denied, see Order Denying Def.’s Mot. Dismiss, ECF No. 20; 

Libertarian Nat’l Comm., Inc. v. FEC (“LNC III”), 228 F. Supp. 3d 19 (D.D.C. 2017) (Howell, 

C.J.). The LNC now seeks to certify the following three questions of law to the D.C. Circuit:

1. Does imposing annual contribution limits against the bequest of Joseph 

Shaber violate the First Amendment rights of the Libertarian National 

Committee?

2. Do 52 U.S.C. §§ 30116(a)(1)(B) and 30125, on their face, violate the First 

Amendment rights of the Libertarian National Committee by restricting the 

purposes for which the Committee may spend its money?

3. Does restricting the purposes for which the Libertarian National Committee 

may spend the bequest of Joseph Shaber violate the Committee’s First 

Amendment rights?

Pet.’s Mot. Cert. at 1. The FEC opposes the LNC’s motion, and has moved to dismiss for lack of 

jurisdiction, which motion parrots in substance the FEC’s opposition to LNC’s certification 

motion. See Def.’s Mot.

4

 The parties’ motions are now ripe for consideration.

 

4 This Memorandum Opinion references both the FEC’s opposition and motion to dismiss with citations 

exclusively to the FEC’s motion to dismiss, as these documents are identical in substance.
7

II. LEGAL STANDARD

Under the FECA, “the national committee of any political party . . . may institute such 

actions in the appropriate district court of the United States, including actions for declaratory 

judgment, as may be appropriate to construe the constitutionality of any provision of this Act.” 

52 U.S.C. § 30110.5 “The district court immediately shall certify all questions of 

constitutionality of this Act to the United States court of appeals for the circuit involved, which 

shall hear the matter sitting en banc.” Id. A district court’s role in the certification process is to 

(1) “[i]dentify constitutional issues in the complaint, (2) “[t]ake . . . evidence . . . to the extent not 

controverted in material and substantial degree,” (3) “[m]ake findings of fact with reference to 

those issues,” and (4) “[c]ertify to [the D.C. Circuit] constitutional questions arising from steps 1, 

2, and 3.” Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975). A district court does not certify 

questions under § 30110 that “are ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously 

without merit,’” which means that satisfying this standard is “a ‘low bar.’” Holmes v. FEC, 823 

F.3d 69, 71–72 (D.C. Cir. 2016) (quoting Shapiro v. McManus, 136 S. Ct. 450, 456 (2015)). In 

applying this standard, the fact that a proposed question presents a legal argument foreclosed by 

binding precedent does not, in and of itself, “make the question obviously frivolous, or wholly 

insubstantial, or obviously without merit,” at least “so long as the [petitioner] mounts a nonfrivolous argument in favor of overturning that precedent.” Id. at 74 (internal quotation marks 

omitted).6

 

5 The term “Act,” as used in § 30110, “means the Federal Election Campaign Act of 1971 as amended,” 52 

U.S.C. § 30101(19), and covers the specialized purpose contribution limit regime that came into existence in 2015.

6 The FEC cites Johnson v. Comm’n on Presidential Debates, 869 F.3d 976 (D.C. Cir. 2018), for the 

proposition that “claims ‘foreclosed by prior decisions of the Supreme Court deprive the lower courts of jurisdiction 

to hear the claim.” Def.’s Opp’n at 18 (quoting Johnson, 869 F.3d at 984 (alterations omitted)). Johnson did not, 

however, address a situation where a petitioner “mounts a non-frivolous argument in favor of overturning that 

precedent,” and so is reconcilable with Holmes’s holding that § 30110 allows certification of claims that existing 

precedent forecloses when a petitioner argues, on some non-frivolous basis, that the precedent should be overruled. 

823 F.3d at 74.
8

A district court’s discretion under § 30110 is not limited to certifying or dismissing a 

question exactly as formulated by a petitioner, but allows the court to reformulate a proposed 

question prior to certification. See LNC I, 930 F. Supp. 2d at 168 (“[L]ongstanding precedent 

supports this Court’s discretion in crafting and/or amending any questions certified to the Court 

of Appeals.”). Indeed, before Buckley v. Valeo reached the Supreme Court, the D.C. Circuit 

initially had remanded the case to the district court to “formulat[e] [the] constitutional questions 

to be certified.” LNC I, 930 F. Supp. 2d at 168 (citing Buckley, 387 F.2d at 835 (emphasis 

omitted)). “Buckley’s history strongly suggests the district court has an active, rather than 

passive, role in the certification process under [§ 30110].” Id. at 168–69; see also Khachaturian 

v. FEC, 980 F.2d 330, 332 (5th Cir. 1992) (“If [the district court] concludes that colorable 

constitutional issues are raised from the facts, it should certify those questions to us.”); Bread 

Political Action Comm. v. FEC, 635 F.2d 621, 625 n.4 (7th Cir. 1980) (noting with approval that 

“[t]he district court polished plaintiffs’ draft questions into their present form”); Cao v. FEC, 688

F. Supp. 2d 498, 542 (E.D. La. 2010) (“Although the Court finds the substance of Questions 

Three and Six non-frivolous, the plaintiffs, in their briefing, put a much finer point on the 

questions than those originally proposed in the motion to certify. As such, the Court will 

exercise its discretion in fashioning a question for the Fifth Circuit that more precisely captures 

the Constitutional difficulty raised by the plaintiffs’ arguments.”), dismissal order aff’d, certified 

questions answered, In re Cao, 619 F.3d 410, 414 (5th Cir. 2010) (“The district court, abiding by 

its proper role . . . identified the constitutional issues in the complaint . . . .”).

III. DISCUSSION

The LNC contends the challenged contribution limits violate this national political 

committee’s First Amendment rights by restricting how it may receive and spend the bequest of 
9

Mr. Shaber, in particular, and the purposes for which it may spend contributions generally. See 

Pet.’s Mot. Cert. at 1. As noted, the LNC challenges as unconstitutional, in the first question, the 

contribution limits as applied to Mr. Shaber’s bequest; in the second question, the FECA’s 

specialized purpose regime, which permits contributions to a national political party committee

over the maximum annual general purpose contribution limit, but only for one of three specific 

government-approved purposes; and, in the third question, the FECA’s specialized purpose 

regime as applied to Mr. Shaber’s bequest. Id. A brief overview of the governing statutory and 

regulatory framework is provided before turning to an analysis of each proposed question’s 

fitness for certification under § 30110.

A. Legal and Regulatory Framework

The FECA provides that “no person shall make contributions . . . 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.” 52 U.S.C. § 30116(a)(1)(B). This amount is indexed for inflation, id. § 30116(c), and 

now stands, under current regulations, at $33,900, see Price Index Adjustments for Contribution 

and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 82 Fed. Reg. 10,904, 

10,905–06 (Feb. 16, 2017). The FEC has long construed the term “person” in § 30116(a)(1) to 

encompass a testamentary estate, a construction not challenged here. See, e.g., FEC Advisory 

Op. 2015-05 (Shaber), 2015 WL 4978865, at *2 (Aug. 11, 2015) (citing advisory opinions dating 

back to 1983); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–

46 (1984) (holding that courts shall defer to agencies’ reasonable interpretations of ambiguities 

in statutes they administer); LNC I, 930 F. Supp. 2d at 165 (“The FEC’s interpretation of the 

statute to include a testamentary bequest appears reasonable, is not seriously challenged by the 

LNC in its briefs, and is entitled to deference under Chevron.”).
10

Notwithstanding the general limit on contributions to national political party committees,

the FECA, as amended, provides that “contributions made to” any “separate, segregated account 

of a national committee of a political party” established for one of three specialized purposes 

may “exceed 300 percent of the amount otherwise applicable” in any calendar year. 52 U.S.C. 

§§ 30116(a)(1), 30116(a)(9)(A)–(C). These specialized purposes are (1) “to defray expenses 

incurred with respect to a presidential nominating convention (including the payment of 

deposits) or to repay 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;” (2) “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;” and (3) “to defray 

expenses incurred with respect to the preparation for and the conduct of election recounts and 

contests and other legal proceedings.” Id. § 30116(a)(9)(A)–(C). In other words, while a person

may contribute only $33,900 per year to a national political party’s committee for unrestricted 

use, see 82 Fed. Reg. at 10,905–06, an individual may contribute up to $101,700 to each account 

established by a national political party committee to pay expenses incurred with respect to (1) a 

presidential nominating convention, (2) a party headquarters building, or (3) an election recount, 

see 52 U.S.C. § 30116(a)(9)(A)–(C). Altogether, then, an individual may contribute $339,000

per year to accounts established and maintained by national political parties—$101,700 to each 

of three specialized purpose accounts, plus $33,900 for general purposes. Id. § 30116(a)(1)(B).
11

Finally, the FECA provides that “[a] national committee of a political party . . . may not 

solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any 

other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and 

reporting requirements of this Act.” Id. § 30125(a)(1) (emphasis added).

B. The LNC’s Argument That The Contribution Limits Are Unconstitutional As 

Applied To Mr. Shaber’s Bequest Warrants Certification

The LNC’s first question—“Does imposing annual contribution limits against the bequest 

of Joseph Shaber violate the First Amendment rights of the Libertarian National Committee?”—

is identical in substance to the question that LNC I certified, merely substituting the name 

“Joseph Shaber” for “Raymond Burrington.” Pet.’s Mot. Cert. at 1; LNC I, 930 F. Supp. 2d at 

171. Collateral estoppel thus would seem to require the instant question’s certification. The 

FEC argues, however, that LNC I does not compel certification here, because LNC I did not have

the benefit of adequate briefing on whether the contribution limits were unconstitutional as 

applied to Mr. Burrington’s particular bequest, as the FEC had expected to litigate only whether 

the contribution limits constitutionally may apply to bequests in general. See Def.’s Opp’n at 30. 

The FEC acknowledges that the opportunity to address this issue was presented through a postcertification motion to alter or amend, which LNC II denied. See id. at 30–31; see also 950 F. 

Supp. 2d 58. Nonetheless, the FEC posits that LNC II does not compel certification either, since 

this issue was resolved under the demanding clear error standard of review rather than de novo. 

See Def.’s Opp’n at 31; 950 F. Supp. 2d at 60 (reciting applicable standard of review for motions 

under Fed. R. Civ. P. 59(e), which “need not be granted unless the district court finds that there 

is an intervening change of controlling law, the availability of new evidence, or the need to 

correct a clear error or prevent manifest injustice.” (quoting Messina v. Krakower, 439 F.3d 755, 

758 (D.C. Cir. 2006))); see Def.’s Opp’n at 31. Even indulging the FEC’s contention that the 
12

collateral estoppel doctrine does not compel certification of the first question here after LNC I

and II, as discussed next, the Court reaches the same result as LNC I and II that certification of 

the first question is warranted.

As noted earlier, supra, a constitutional challenge to the FECA under § 30110 warrants 

certification unless the challenge is “‘wholly insubstantial,’ ‘obviously frivolous,’ [or] ‘obviously 

without merit,’” Holmes, 823 F.3d at 71 (quoting Shapiro, 136 S. Ct. at 456). The FEC makes a 

convoluted and barely comprehensible argument that the instant question flunks this test because

LNC I itself forecloses the LNC’s claim. See Def.’s Opp’n at 25–30.7 The gist of the FEC’s 

argument for why LNC I bars the first question’s certification seems reducible to three points. 

The FEC argues that (1) LNC I held “that it is []constitutional to apply campaign contribution 

limits to testamentary bequests as a general matter.” Id. at 24.8 The FEC further argues that (2)

the contribution limits may apply to Mr. Shaber’s bequest to combat the mere appearance, rather 

than only the reality, of corruption. See id. at 25, 28. Finally, the FEC argues that (3) Mr. 

Shaber’s bequest evinces sufficiently weighty concerns as to both the reality and appearance of 

 

7 The FEC in essence asks the Court simultaneously to conclude that LNC I (1) is binding insofar as LNC I

held that the contribution limits are constitutional as applied to bequests in general, and (2) must be ignored insofar 

as LNC I recognized that the contribution limits may be unconstitutional as to particular bequests that raise no 

corruption concerns—all this, despite that the instant question, which is limited to Mr. Shaber’s bequest, is more 

akin to the question LNC I did in fact certify than to the question LNC I declined to certify. The FEC seeks to have 

it both ways, citing those aspects of LNC I that are helpful to the FEC’s position while rejecting those aspects that 

are inconvenient. Such efforts to treat precedent like a buffet, picking out the tasty bits and ignoring the rest, are 

rightly viewed with healthy skepticism.

8 One response to this part of the FEC’s argument simply would be to assert that LNC I was wrongly decided 

and should be disregarded. A district court, after all, may not “decline to certify a constitutional question simply 

because the LNC is arguing against . . . precedent so long as the LNC mounts a non-frivolous argument in favor of 

overturning that precedent.” Holmes, 823 F.3d at 74. The LNC, however, concedes that collateral estoppel 

forecloses this argument. See Pet.’s Mem. at 11 (“The LNC unfortunately lost that battle in the previous 

litigation.”); Pet.’s Opp’n Def.’s Mot. Dismiss & Reply Supp. Mot. Certify Facts & Questions (“Pet.’s Reply”) at 

14, ECF No. 27 (“[T]he LNC acknowledges the reality of what has already been won and lost.”). The LNC also 

could go further and say that Buckley, which upheld contribution limits’ facial constitutionality, itself should be 

overturned. The LNC, however, declines to advance this argument. See Pet.’s Mem. at 17 (“[T]he LNC merely 

seeks to apply the current state of First Amendment precedent.”). Thus, the LNC must argue that LNC I does not 

control. 
13

corruption to justify the contribution limits’ application. See id. at 31–32. For the following

reasons, the FEC’s argument fails at every turn.9

1. LNC I Did Not Hold That Contribution Limits Constitutionally May Apply To 

Bequests As A General Matter.

Based on a fundamental misreading of LNC I, the FEC argues that the first question does 

not merit certification because LNC I held that the contribution limits generally may apply to 

bequests and the LNC has failed to distinguish Mr. Shaber’s bequest from any other bequest. 

See id. at 24–30. The FEC characterizes LNC I as having concluded that “it is []constitutional to 

apply contribution limits to bequeathed contributions.” Id. at 25; see also id. at 26 (“Of course, 

the LNC did lose its claim that the party contribution limit may not be constitutionally applied to 

testamentary bequests in general.”); id. at 28 (“[T]he LNC has lost the battle over whether it is 

unconstitutional to apply any campaign contribution to testamentary bequests.” (alterations and 

internal quotation marks omitted)). LNC I did not hold, as the FEC wrongly asserts, “that it is 

[]constitutional to apply campaign contribution limits to testamentary bequests as a general 

 

9 The FEC does not dispute that the instant question is distinguishable from the question that LNC I declined to 

certify insofar as the LNC challenges the contribution limits only as to the LNC’s own First Amendment rights, 

rather than as to Mr. Shaber’s rights as well. The FEC argues, however, that “[t]he LNC’s framing of its legal 

arguments around a supposed First Amendment right to receive campaign contributions cannot save its first 

proposed certified question” because “any First Amendment interest the LNC has in receiving contributions is 

already reflected in the constitutional test the Supreme Court has applied to uphold FECA’s contribution limits,” 

which “already accounts for the rights of individuals and entities on the receiving end of contributions by asking if 

contribution limits are so low that they prevent recipients from amassing the resources necessary for effective 

advocacy.” Def.’s Opp’n at 32 (citing Buckley, 424 U.S. at 21 (internal quotation marks omitted)). As an initial 

matter, the instant question requires no “sav[ing],” id., because, as explained further below, the FEC has failed to 

show that the instant question does not merit certification. More fundamentally, the FEC’s argument completely 

misses the point of the LNC’s claim, which is not that applying the contribution limits to Mr. Shaber’s bequest 

would burden the LNC’s ability to “amass[] the resources necessary for effective advocacy,” Buckley, 424 U.S. at 

21; see Pet.’s Mem. at 17 (“The LNC does not claim in this litigation that the current contribution limit . . . is too 

low.”), but rather, that Mr. Shaber’s bequest raises no corruption concerns necessary to justify the contribution 

limits’ application in the first place. Even a modest burden on one’s ability to raise funds may be undue if such 

burden serves no corruption concern whatsoever. See SpeechNow, 595 F.3d at 695 (concluding, in “weighing the 

First Amendment interests implicated by contributions . . . against the government’s interest in limiting such 

contributions,” that “something outweighs nothing every time.” (quoting Nat’l Ass’n of Retired Fed. Emps. v. 

Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) (alterations and internal quotation marks omitted))). That existing 

doctrine already prohibits contribution limits set too low to enable recipients to amass resources necessary for 

effective electioneering is simply irrelevant to the issue presented by the LNC.
14

matter.” Id. at 24. LNC I’s actual holding is much more limited: LNC I merely held “that it is 

possible for a bequest to raise valid anti-corruption concerns.” 930 F. Supp. 2d at 166. This is a 

far cry from holding that the contribution limits constitutionally may apply to most bequests or to 

bequests as a general matter, that a bequest must somehow be unusual for an as-applied 

challenge to lie, or that a petitioner challenging a contribution limit’s application to a particular 

bequest must identify a “categorical basis to differentiate” a particular contribution “from any 

other potential bequeathed contribution.” Def.’s Opp’n at 26, 30. Indeed, LNC I’s recognition of 

the mere “possib[ility]” that a bequest may “raise valid anti-corruption concerns,” 930 F. Supp. 

2d at 166, suggests if anything that most bequests do not raise valid corruption concerns, and that 

bequests only rarely raise the corruption concerns necessary to justify the contribution limits’ 

application. At the very least, LNC I did not hold that the contribution limits presumptively are 

constitutional as to individual bequests. The FEC’s argument to the contrary fails to understand 

what LNC I actually said.

2. The LNC Makes a Non-Frivolous Argument that Only Evidence of Actual 

Corruption, Rather Than the Appearance of Corruption, Can Justify the

Contribution Limits’ Application to Mr. Shaber’s Bequest.

The FEC argues that no evidence of actual corruption is needed to justify the contribution 

limits’ application to Mr. Shaber’s bequest because contribution limits are designed to combat 

the appearance as well as the reality of corruption. See Def.’s Opp’n at 25–28.10 The FEC is 

 

10 The parties spill much ink arguing over which side bears the burden “to show evidence of corruption,” or a 

lack thereof, as to a particular contribution to justify the contribution limits’ application. Def.’s Opp’n at 27. The 

FEC argues that the LNC must offer a “categorical” basis to “differentiate the Shaber bequest . . . . from any other 

potential beque[st],” to which the FEC presumes the contribution limits constitutionally may apply, id. at 26–27, 30, 

but this argument is flawed in at least two ways. First, as explained above, LNC I did not hold that the contribution 

limits are constitutional as to an ordinary bequest, only that the contribution limits can apply to some bequests, at 

least in theory. Second, the government bears the burden to show a contribution limit’s constitutionality. See

Buckley, 424 U.S. at 25 (holding that contribution limits “may be sustained if the State demonstrates a sufficiently 

important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms” 

(emphasis added)). Chief Justice Roberts’s opinion, joined by Justice Alito, in FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007), which held that the government bore the burden to show that a facially-valid expenditure limit 
15

correct that existing doctrine recognizes the prevention of apparent corruption, not just of actual 

corruption, as an interest that justifies contribution limits. See Citizens United v. FEC, 558 U.S. 

310, 357 (2010) (“[R]estrictions on direct contributions are preventative, because few if any 

contributions to candidates will involve quid pro quo arrangements . . . . The Buckley Court, 

nevertheless, sustained limits on direct contributions in order to ensure against the reality or 

appearance of corruption.”); Buckley, 424 U.S. at 29–30 (1976) (observing that “most large 

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

action,” but that this “does not undercut the validity of the $1,000 contribution limitation . . . . 

Congress was justified in concluding that the interest in safeguarding against the appearance of 

impropriety requires that the opportunity for abuse inherent in the process of raising large 

monetary contributions be eliminated.”).

The LNC responds that even if contribution limits may as a general matter “bar many 

contributions that are not, in fact, tainted by corruption, . . . . the dead are different, and thus raise 

different indicia of potential corruption and a different level of concern from that raised by the 

living.” Pet.’s Opp’n Def.’s Mot. Dismiss & Reply Supp. Mot. Certify Facts & Questions 

(“Pet.’s Reply”) at 16, ECF No. 27. This is so, the LNC asserts, because “[w]ith a bequest, the 

 

could apply to a particular expenditure, is instructive. An anti-abortion group raised an as-applied challenge to a 

statute criminalizing “broadcast, shortly before an election, [of] any communication that names a federal candidate 

for elected office and is targeted to the electorate.” Id. at 456. The government argued that because the statute in 

question had already been held “facially valid,” the anti-abortion group “should be required to demonstrate that [the 

statute] is unconstitutional as applied to the ads” in question. Id. at 464. Chief Justice Roberts rejected this 

argument, reasoning that whether the statute (1) was constitutional as a facial matter and (2) “may constitutionally 

be applied to these specific ads” were entirely “separate question[s].” Id. Chief Justice Roberts determined that 

“[b]ecause [the statute] burdens political speech, . . . . the Government must prove that applying [the statute] to [the 

anti-abortion group’s] ads furthers a compelling interest and is narrowly tailored to achieve that interest.” Id.

(emphasis in original). The same reasoning applies here. The FEC seeks to apply the contribution limits to Mr. 

Shaber’s specific bequest, and so must bear the burden of showing the contribution limits’ constitutionality as to that 

bequest. That Wisconsin Right to Life applied strict scrutiny, rather than “closely drawn” scrutiny, see Buckley, 424 

U.S. at 25, is of no moment, as the government bears the burden to show a law’s constitutionality under either 

standard. See id.; Wisc. Right to Life, 551 U.S. at 464. To the extent the FEC suggests that LNC I requires a 

different result, Def.’s Opp’n at 24–30, the FEC, as explained above, fundamentally misreads LNC I.
16

corruption inquiry is wholly retrospective, and barring supernatural intervention, the potential for 

quid pro quo activity is rather more limited, as is its enforcement.” Id. at 16–17. The LNC thus 

seeks to recognize a limited exception, applicable only to bequests, to the general rule that the 

government’s interest in preventing the appearance of corruption justifies contribution limits. 

Neither party identifies any authority either recognizing or rejecting such an exception. 

Thus, whether preventing the appearance, rather than the reality, of corruption may justify a 

contribution limit’s application to a bequest appears to be a question of first impression.11 The 

absence of any authority foreclosing the LNC’s argument persuades the Court that such 

argument is not frivolous.

3. The LNC Makes a Non-Frivolous Argument that Mr. Shaber’s Bequest Raises 

No Corruption Concerns.

 

11 In SpeechNow.org, the D.C. Circuit concluded that “contributions to groups that make only independent 

expenditures” as a matter of law “cannot corrupt or create the appearance of corruption,” regardless of the factual 

circumstances under which such contributions are made. 599 F.3d at 694 (emphasis added). The LNC does not 

argue that SpeechNow supports a conclusion that testamentary contributions, like contributions to independent 

expenditure organizations, categorically cannot corrupt or create the appearance of corruption, regardless of the 

factual circumstances under which such contributions are made, nor would such an argument be sound. SpeechNow

rested on Citizens United, which the D.C. Circuit read to have held “as a matter of law that independent 

expenditures do not corrupt or create the appearance of quid pro quo corruption.” 599 F.3d at 694. Citizens United, 

in turn, “conclude[d]” as a matter of law “that independent expenditures, including those made by corporations, do 

not give rise to corruption or the appearance of corruption,” reasoning that “[t]he absence of prearrangement and 

coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to 

the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper 

commitments from the candidate.” 558 U.S. at 345, 357. 

Citizens United’s legal conclusion, however, must be understood in the context of the judicial proceedings 

from which it emerged. In Citizens United, the government presented “only scant evidence that independent 

expenditures even ingratiate,” much less give rise to quid pro quo corruption or the appearance thereof. Id. at 360. 

As Justice Stevens observed, however, “Congress and outside experts” had in fact “generated significant evidence” 

that independent expenditures “give rise to quid pro quo corruption or the appearance of corruption.” Id. at 457 

(Stevens, J., dissenting). The “only reason” the Supreme Court did “not have any of the relevant materials before” it 

was “that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had 

abandoned” in the district court. Id. On appeal, however, the Supreme Court sua sponte directed the parties to 

litigate the independent expenditure limit’s constitutionality, without providing the government any opportunity to 

develop a factual record necessary to support the position that corporate independent expenditures can give rise to 

quid pro quo corruption or the appearance thereof. Id. Citizens United did not reject the relevance or value of 

factual evidence as to corporate independent expenditures’ corrupting effect; Citizens United simply had little such 

evidence available to it. Here, in contrast, LNC I’s recognition that testamentary contributions can, under certain 

conditions, create actual or apparent corruption rested on extensive record evidence of the sort unavailable in 

Citizens United. See LNC I, 930 F. Supp. 2d at 166–67. As such, SpeechNow and Citizens United do not support a 

conclusion that testamentary contributions cannot corrupt or create the appearance of corruption, at least where 

evidence that testamentary contributions have an actual or apparent corrupting effect exists. 
17

Finally, the FEC argues that even if the government bears the burden to show that the 

contribution limits are constitutional as applied to Mr. Shaber’s bequest, and regardless of 

whether evidence of only actual or also apparent corruption may justify the contribution limits’ 

application, Mr. Shaber’s bequest evinces sufficient “factual markers of the potential for 

apparent or actual corruption” to justify applying the contribution limits. Def.’s Opp’n at 31.12 

The LNC, however, raises non-frivolous arguments to the contrary.

LNC I identified two circumstances in which “the anti-corruption rationale for limiting 

contributions from bequests is” beyond “theoretical.” 930 F. Supp. 2d at 166 (alterations 

omitted). First, LNC I observed that “making one’s bequest known” to a recipient “before death 

could be treated just as a contribution is,” such that “a political committee could feel pressure to 

continue to ensure that a (potential) donor is happy with the committee’s actions lest they revoke 

the bequest.” Id. at 166–67. Second, LNC I observed that “[a] bequest may also help friends or 

family of the deceased have access to political officeholders and candidates,” such that “political 

committees could offer access to the donor’s heirs or representatives upon the production of a 

generous will.” Id. Bequests that do not arise under these circumstances, LNC I suggested, thus 

are unlikely to “raise the anti-corruption concerns that motivated the Buckley and McConnell [v. 

FEC, 540 U.S. 93 (2003)] Courts to dismiss a facial attack on contribution limits.” Id. at 166.

The LNC asserts that both of the above factors weigh toward concluding that Mr. 

Shaber’s bequest raises no corruption concerns. First, according to the LNC, Mr. Shaber did not 

make his bequest known to the LNC prior to death. Pet.’s Reply at 16 (citing Pet.’s Proposed 

Facts ¶ 70). Second, neither Mr. Shaber nor any of his associates and loved ones had any known 

 

12 These “factual markers” include that Mr. Shaber “gave 47 times and more than $3,000 to the LNC, was 

eligible to become a life member of the party, and received regular solicitations and invitations to events from the 

LNC, including a VIP reception.” Def.’s Opp’n at 31 (internal quotation marks omitted).
18

relationship to the LNC or its board members, officers, or candidates apart from Mr. Shaber’s 

donations themselves. Id. (citing Pet.’s Proposed Facts ¶ 84). Moreover, Mr. Shaber gave little 

to the LNC during his life—only $3,315 over the course of 24 years, an average of $138.13 per 

year—and the LNC has given nothing tangible of value to Mr. Shaber or his associates and loved 

ones. Id. (citing Pet.’s Proposed Facts ¶ 85; see Mot. Cert., Ex. E, Joseph Shaber Gift History, 

ECF No. 24-7). Thus, the LNC raises a non-frivolous argument that the government cannot meet 

the burden to show that Mr. Shaber’s bequest raises any concerns as to the appearance or reality 

of corruption to justify the contribution limits’ application.

LNC I supports the LNC’s argument.

13

 LNC I determined that the LNC had “ma[de] a

persuasive argument that the Burrington bequest does not implicate any valid anti-corruption 

concerns” given that “the only known interaction between Burrington and the LNC occurred in 

1998 when the former donated $25.00 to the Libertarian Party” and that “the LNC had no idea 

that Burrington planned to leave any money to the organization in his will.” 930 F. Supp. 2d at 

170. While the total $3,315 that Mr. Shaber contributed to the LNC in parts on 46 separate

occasions during his life, see Joseph Shaber Gift History, is nearly 133 times the $25 that Mr. 

Burrington contributed to the LNC during his life, see LNC I, 930 F. Supp. 2d at 170, neither the 

amount nor frequency of Mr. Shaber’s contributions are so great as to make frivolous the claim 

that Mr. Shaber’s contributions do not raise corruption concerns. The amount of $3,315 donated 

over 24 years is a drop in the bucket relative to current law’s annual limit of $33,900 for 

individuals to contribute for any purpose to national political party committees, and an even 

 

13 While, as discussed above, the Court presumes that LNC I has no collateral estoppel effect insofar as it 

certified a challenge to the contribution limits as to Mr. Burrington’s request, LNC I remains at least persuasive 

authority in this regard.
19

smaller drop relative to the limit of $339,000 that individuals may contribute for either general or 

specialized purposes. See 52 U.S.C. § 30116(a)(1)(B), (a)(9); 82 Fed. Reg. at 10,905–06.

* * *

For the reasons explained above, (1) LNC I did not hold that the contribution limits 

constitutionally may apply to bequests as a general matter, and the LNC has raised non-frivolous 

arguments that (2) the FEC’s only interest in applying the contribution limits to Mr. Shaber’s 

bequest is an interest in combatting the reality, as opposed to the mere appearance, of corruption, 

and (3) Mr. Shaber’s bequest does not raise corruption concerns so as to justify the contribution 

limits’ application. As such, the LNC’s first question—“Does imposing annual contribution 

limits against the bequest of Joseph Shaber violate the First Amendment rights of the Libertarian 

National Committee?,” Pet.’s Mot. Cert. at 1—warrants certification under § 30110.

C. The LNC’s Arguments that the FECA’s Specialized Purpose Regime 

Impermissibly Limits Speech On the Basis of Content is Not Frivolous

The LNC’s second question—“Do 52 U.S.C. §§ 30116(a)(1)(B) and 30125, on their face, 

violate the First Amendment rights of the Libertarian National Committee by restricting the 

purposes for which the Committee may spend its money?,” id.—asserts that the FECA’s 

specialized purpose regime “directly limit[s] how the LNC may express itself, in preparation for 

and during political campaigns, based on the subject matter, function, or purpose of the LNC’s 

speech,” in violation of the First Amendment. Pet.’s Mem. at 16. The LNC argues that once a

donor has contributed to the LNC $33,900, the maximum annual legally-allowed generalpurpose contribution, 52 U.S.C. § 20116(a)(1)(B); 82 Fed. Reg. at 10,905–06, any further 

contributions to the LNC by that donor, and the LNC’s use of such contributions, are lawful only 

if made or used “towards the purposes and in the amounts ordained by Congress.” Pet.’s Mem. 

at 16. These government-approved purposes are presidential nominating conventions, party 
20

headquarters buildings, and recount expenses, see 52 U.S.C. § 30116(a)(9), “all [of which]

convey or enable expression in some way or to some degree.” Pet.’s Mem. at 16. Thus, the 

LNC argues, “the amount of speech a political party may exercise turns on the content of that 

speech,” creating an impermissible content-based restriction on speech. Id.14

“[A]bove all else, the First Amendment means that government has no power to restrict 

expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of 

City of Chi. v. Mosley, 408 U.S. 92, 95 (1972); accord Act Now to Stop War & End Racism Coal.

v. District of Columbia, 846 F.3d 391, 403 (D.C. Cir. 2017). “[T]he First Amendment ‘has its 

fullest and most urgent application’ to speech uttered during a campaign for political office,”

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (quoting Eu v. 

S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989), as “‘[d]iscussion of public issues 

and debate on the qualifications of candidates are integral to the operation’ of our system of 

government,” id. (quoting Buckley, 424 U.S. at 14).

“Content-based laws—those that target speech based on its communicative content—are 

presumptively unconstitutional and may be justified only if the government proves that they are 

narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 135 S. Ct. 

2218, 2226 (2015). “Government regulation of speech is content based if a law applies to 

particular speech because of the topic discussed or the idea or message expressed,” meaning that 

a court must “consider whether a regulation of speech ‘on its face’ draws distinctions based on 

the message a speaker conveys.” Id. at 2227 (quoting Sorrell v. IMS Health, Inc., 131 S. Ct. 

 

14 The LNC asserts that the contribution limits “are especially problematic, because they largely, if not only, 

disable minor parties,” in that larger parties tend to need more money than smaller parties to fund presidential 

nominating conventions, party headquarter buildings, and recount proceedings. Pet.’s Mem. at 18. The LNC 

emphasizes that “[t]his is not to say that the LNC’ claims sound in equal protection, or are based on some yardstick 

of competitive ability,” but merely to show that the contribution limits are “irrational” and cannot “meet the rigors of 

strict scrutiny.” Id.
21

2653, 2663–2664 (2011)). “Some facial distinctions based on a message are obvious, defining 

regulated speech by particular subject matter, and others are more subtle, defining regulated 

speech by its function or purpose.” Id. However, “[b]oth are distinctions drawn based on the 

message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id.

1. The Specialized Purpose Regime Should Be Reviewed as a Contribution Limit 

Rather Than as an Expenditure Limit.

As a threshold matter, the parties dispute whether the specialized purpose regime should 

be reviewed as a contribution limit or expenditure limit. Compare Pet.’s Mem. at 17 (“[T]he 

[]omnibus expressive purpose restrictions are expenditure limits—content-based restrictions on 

speech.”), with Def.’s Opp’n at 15 (“[T]here is no credible argument that the segregated account 

limits at issue here restrict expenditures.”). The distinction between contribution limits and 

expenditure limits is legally significant, given the more demanding constitutional test to which 

expenditure limits are subject. See, e.g., Randall v. Sorrell, 548 U.S. 230, 242 (recognizing that 

expenditure limits generally are “constitutionally invalid”). The specialized purpose regime is 

neither a pure contribution limit nor a pure expenditure limit, but contains elements of both, 

establishing higher limits on contributions directed toward one of three government-approved

purposes than on contributions directed toward other purposes, see 52 U.S.C. § 30116(a)(1)(B), 

(9), and directing that national political parties “may not . . . spend any funds, that are not subject 

to the limits [and] prohibitions . . . of this Act,” id. § 30125(a)(1). 

Binding precedent forecloses the LNC’s argument that the specialized purpose regime 

should be reviewed as an expenditure limit rather than as a contribution limit. McConnell held 

that provisions of the Bipartisan Campaign Reform Act (“BCRA”) prohibiting “national parties 

from receiving or spending [soft] money” and state parties “from spending [soft] money on 

federal election activities,” in addition to prohibiting persons from making such contributions, 
22

were akin to contribution limits rather than expenditure limits because “neither provision in any 

way limits the total amount of money parties can spend,” but “simply limit the source and 

individual amount of donations.” 540 U.S. at 139. “That they do so by prohibiting the spending 

of soft money,” McConnell reasoned, “does not render them expenditure limitations.” Id. The 

same reasoning applies here.

The specialized purpose regime’s characterization as a contribution limit, however, does 

not necessarily mean that mere “closely drawn,” rather than strict, scrutiny applies to the LNC’s 

challenge here. Typically, a challenge to a contribution limit asserts that the limit prevents a 

person from contributing as much money as the person would like to give, see, e.g., Buckley, 424 

U.S. at 20, but Congress’s discretion to set contribution limits’ specific dollar amounts is wellestablished, see, e.g., Randall, 548 U.S. at 248 (“[T]he legislature is better equipped to make 

such empirical judgments, . . . . [t]hus ordinarily we have deferred to the legislature’s

determination of such matters.” (quoting McConnell, 540 U.S. at 137)), FEC v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 433 (2001) (“[T]he limit’s dollar amount need not be fine

tuned.”); Buckley, 424 U.S. at 30 (“Congress’ failure to engage in such fine tuning does not 

invalidate the legislation.”). The LNC’s argument here is different.

The LNC asserts not “that the current contribution limit . . . to political parties is too 

low,” Pet.’s Mem. at 17; see also id. (“This is not a challenge to any contribution limit.”), but 

rather, that the specialized purpose regime unconstitutionally conditions the lawfulness of a 

contribution on the content of the speech for which the contribution is used, id. at 18 (“When a 

political party can have money, and use it for some expression, but not other expression, that is 

an expression-restriction, not merely a contribution limit.”). In this way, the LNC’s second 

question raises an issue less akin to a traditional challenge to a contribution limit than to a 
23

challenge to a statute alleged to restrict speech on the basis of content. See, e.g., Reed, 135 S. Ct. 

at 2226. As such, the appropriate framework for review is that governing content-based 

restrictions on speech, requiring narrow tailoring to serve a compelling state interest, see id.,

rather than the contribution limit framework.

2. Whether the Specialized Purpose Regime Unconstitutionally Restricts Speech 

Based On Content.

The FEC makes several arguments as to why the specialized purpose regime does not 

impermissibly restrict speech on the basis of content. First, the FEC denies that the specialized 

purpose regime imposes a content-imposed restriction at all. See Def.’s Reply Mem. Supp. Mot. 

Dismiss (“Def.’s Reply”) at 7, ECF No. 29. Second, even if the specialized purpose regime

amounts to a content-based restriction, the FEC contends this regime is sufficiently tailored to 

achieve a sufficiently important governmental interest. See Def.’s Opp’n at 18-22. Third, the 

FEC argues that existing authority establishes that Congress may allow contributions to 

particular recipients and those recipients’ expenditure of such contributions for certain purposes 

but not for others. See id. at 20. Each of these arguments are addressed in turn.

i. Whether The Specialized Purpose Regime Imposes Content-Based Restrictions

The FEC argues that the specialized purpose regime does not constitute a content-based 

restriction on speech because “the ability of a national political party committee to use funds 

contributed to the segregated accounts depends not on the content of any message but rather the 

category of expenses at issue.” Def.’s Reply at 7. This, however, is not so. As the LNC

correctly observes, the LNC cannot lawfully spend the entirety of a contribution in an amount 

above $33,900 “distributing pamphlets about the party’s ideology or supporting a nonpresidential candidate,” but must spend at least some portion of that contribution, if at all, 

“broadcasting its presidential nominating convention, hanging a sign on its building, or litigating 
24

an election contest.” Pet.’s Mem. at 16. Thus, the lawfulness of a particular expenditure by the 

LNC may indeed turn on the message that the expenditure conveys. The FEC argues that the 

LNC can spend specialized purpose account funds for any purpose so long as the LNC does so at

the LNC’s presidential nominating convention, see Def.’s Reply at 7, but to condition an 

expenditure’s lawfulness on whether the expenditure is made in connection with a convention 

itself arguably constitutes a content-based restriction on speech. See Reed, 135 S. Ct. at 2227 

(identifying laws that “defin[e] regulated speech by its function or purpose” as imposing contentbased restrictions. At the very least, the LNC’s argument to this effect is not frivolous.

ii. Whether the Specialized Purpose Regime Is Sufficiently Tailored To Serve A 

Sufficiently Important Government Interest

The FEC next argues that any disparate treatment of general purpose and specialized 

purpose contributions passes constitutional muster given that (1) Congress, having ended public 

funding of presidential nominating conventions in 2014, sought “to ensure that national parties 

would maintain access to sufficient funds to continue their [convention] operations after one 

source of funds was no longer available,” (2) party headquarters and recount expenses “tend to 

be less directly connected to most candidates or campaigns for federal office,” and thus to raise 

lesser corruption concerns than contributions toward expenses more directly connected to 

individual candidates and campaigns, and (3) “political parties and their candidates tend to place 

more value on unrestricted contributions than those that may only be used for certain expenses,” 

meaning that general purpose contributions “create a higher risk of corruption or its appearance 

than” specialized purpose contributions, requiring more restrictive limits to prevent corruption or 

the appearance thereof. See Def.’s Opp’n at 18–20, 22.

The LNC counters, somewhat ironically, that specialized purpose contributions raise

corruption concerns at least equal to those that general purpose contributions raise, and thus, that
25

setting higher limits on specialized purpose contributions undermines the anti-corruption 

rationale used to justify the general purpose contribution limits. See Pet.’s Mem. at 5. 

“[D]onations received for a segregated purpose potentially free up other money that would have 

been spent out of a party’s general account, to be used for unrestricted purposes,” the LNC

observes, given that “money is fungible.” Id. Thus, the LNC posits, “[s]o long as a party would 

have spent a sufficient amount on a segregated purpose, a segregated purpose donation is 

effectively an unrestricted donation.” Id. 

Whether the specialized purpose regime is sufficiently tailored, under the circumstances,

to achieve a sufficiently important interest under the applicable standard of scrutiny is a question 

for the D.C. Circuit to resolve in the first instance. At this stage, the LNC’s arguments are not so 

clearly frivolous, and the merits of the FEC’s argument so overwhelmingly obvious, as to make 

certification unwarranted.

iii. Whether Existing Authority Establishes that Congress May Allow 

Contributions to Particular Recipients, and Those Recipients’ Expenditure of 

Such Contributions, For Certain Purposes But Not For Others

The FEC further argues that binding precedent establishes “that differing contribution 

limits may apply to distinct categories of expenses.” Def.’s Opp’n at 20. The FEC cites

McConnell, which upheld a BCRA provision, currently codified at 52 U.S.C. § 30125(b)(1), that 

prohibits state, district, and local political party committees from using “soft-money . . . funds for 

activities that affect federal elections,” while allowing soft money “[d]onations made solely for 

the purpose of influencing state or local elections,” as support. 540 U.S. at 122, 133–34, 173.15 

 

15 Section 30125(b)(1) provides that “an amount that is expended or disbursed for Federal election activity by 

a State, district, or local committee of a political party . . . shall be made from funds subject to the limitations, 

prohibitions, and reporting requirements of this Act.” 52 U.S.C. § 30125(b)(1). Although § 30125(b)(1) is framed 

as a limitation on state and local party “expend[itures] or disburse[ments] for Federal election activity,” McConnell

characterized the law as a contribution limit rather than an expenditure limit because the statute does not “limit[] the 

total amount of money parties can spend,” but “simply limit[s] the source and individual amount of donations.” 540 

U.S. at 139. “That [§ 30125(b)(1)] do[es] so by prohibiting the spending of soft money,” McConnell said, “does not 
26

The FEC thus construes McConnell to hold that Congress generally may allow contributions to 

be made for certain purposes but not for others. See Def.’s Opp’n at 20–21.

This reading of McConnell is too broad. There, the plaintiffs challenged § 30125(b)(1) 

on the ground that the statute “will prevent them from engaging in effective advocacy.” 540 

U.S. at 173. The plaintiffs did not raise the argument that § 30125(b)(1) unconstitutionally 

conditioned a contribution’s lawfulness on the purpose for which the contribution was made, see 

id., which is the argument the LNC raises here, see Pet.’s Mem. at 16. As such, McConnell

cannot be read to foreclose the LNC’s claim. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 

U.S. 157, 170 (2004) (“Questions which merely lurk in the record, neither brought to the 

attention of the court nor ruled upon, are not to be considered as having been so decided as to 

constitute precedents.” (internal quotation marks omitted)). 

Moreover, even if McConnell had expressly held that § 30125(b)(1)’s distinction between 

contributions to fund “Federal election activity” and contributions to fund state and local election 

activities were constitutional, such a holding would not foreclose the LNC’s claim. Contentbased restrictions on speech must be “narrowly tailored to serve compelling state interests.” 

Reed, 135 S. Ct. at 2226. Section 30125(b)(1)’s distinction between contributions to fund federal 

election activities and contributions to fund state and local activities may be said to (1) reflect 

Congress’s judgment that the federal government has a compelling interest in preventing the 

reality or appearance of corruption as to federal elections but not as to state or local elections, 

and (2) be narrowly tailored to serve only the former interest. In other words, § 30125(b)(1) 

might be understood to reflect the view that any corruption, in fact or appearance, of state and 

 

render [it an] expenditure limitation[.]” Id. Section 30125(b)(1) also applies to expenditures or disbursements for 

the purpose of “Federal election activity . . . by an association or similar group of candidates for State or local office 

or of individuals holding State or local office.” 52 U.S.C. § 30125(b)(1). For ease of reference, § 30125(b)(1) is 

described simply as a limitation on federal electioneering by state, district, or local political committees.
27

local political processes just is not the federal government’s business, not that soft money 

contributions to fund state and local election activity give rise to no real or apparent corruption.

The FEC also argues that prior to the BCRA, federal law allowed national political 

parties to accept unlimited soft money contributions to fund state and local election activities, 

notwithstanding that such activity “could simultaneously influence federal elections.” Def.’s 

Opp’n at 21 (quoting Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 153 (D.D.C. 2010)). 

The FEC cites no decision of any court affirming this aspect of the pre-BCRA regime’s

constitutionality, however, id.; the issue apparently never arose.16 The pre-BCRA soft money 

regime simply does not establish that the FECA’s current specialized purpose regime passes 

constitutional muster. Moreover, as with § 30125(b), the pre-BCRA rules allowing national 

parties to accept unlimited soft money contributions to fund state and local, but not federal, 

election activities, might be said to be reflect a proper congressional judgment that corruption of 

state or local elections is not the federal government’s concern. As such, any conclusion that the 

pre-BCRA soft money regime were constitutional would not foreclose the LNC’s claim.

The parties debate the relative corruption concerns that various types of contributions

raise, but keeping score to determine this debate’s winner is a job for the D.C. Circuit, not this

Court. For example, pointing to the fact that “an individual may give $2,700 to any candidate 

 

16 The FEC cites FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 458 (2001), for 

the proposition that “the pre-BCRA contribution limits applicable to funds raised by national political parties for use 

in federal elections remained constitutional even though different rules applied to funds raised for use in those state 

and local elections.” Def.’s Opp’n at 21. The FEC’s reliance on Colorado Republican is baffling. That decision 

upheld the constitutionality of limits on the amount of money a national political party may expend in coordination 

with a political candidate, but did not address any disparity in treatment of funds intended for use in federal or state 

and local election activity. See generally Colo. Republican, 533 U.S. 431. The FEC further argues that Colorado 

Republican shows that restrictions on “how parties may use funds” merit “closely drawn” rather than strict scrutiny. 

Def.’s Reply at 5. The FEC reads Colorado Republican far too broadly. Colorado Republican stands for nothing 

more than the unremarkable proposition that contribution limits are subject to mere closely drawn scrutiny, and that 

coordinated expenditures, as functional equivalents to contributions, constitutionally may be subject to contribution 

limits. 533 U.S. at 447, 456. Colorado Republican certainly did not hold that Congress may limit the amount that 

political parties spend toward particular purposes outside the narrow set of circumstances where such spending 

effectively amounts to a contribution to a political candidate.
28

committee for each election, $5,000 annually to any political action committee, and $10,000 

annually to any state or local party committee,” Def.’s Reply at 4 (citing 52 U.S.C. § 

30116(a)(1)(A)-(D); 82 Fed. Reg. at 10,905), the FEC argues that “[f]rom such an individual’s 

perspective, those contribution limits apply ‘depending on how’ the individual wishes to spend 

money,” id. Such restrictions on “how much money a donor may contribute to a particular 

candidate or committee” have been upheld to “serv[e] the permissible objective of combatting 

corruption.” McCutcheon v. FEC, 134 S. Ct. 1434, 1442 (2014). Nevertheless, the LNC argues 

that limiting the purposes toward which a person may contribute to a political committee serves 

no anti-corruption interest because money is fungible, meaning that the more specialized purpose

funds available to a committee, the less general purpose funds the committee will need to spend 

toward specialized purposes, and thus, will have available to spend toward other purposes. See 

Pet.’s Mem. at 20–21. The FEC counters that restricted contributions pose less corruption 

concern than unrestricted contributions, justifying higher contribution limits for restricted 

contributions, because “political parties and their candidates tend to place more value on 

unrestricted contributions than those that may only be used for certain expenses.” Def.’s Opp’n 

at 22. The LNC, in turn, asserts that restricted and unrestricted contributions are more fungible 

to large parties with large specialized purpose expenses, but less fungible to small parties that 

spend less toward specialized purposes. See Pet.’s Mem. at 20–21. The LNC’s argument that 

the specialized purpose regime serves no anti-corruption interest given money’s fungibility, 

whether correct or not on the merits, plainly is not so frivolous or insubstantial as to be unworthy 

of certification under § 30110.

* * *
29

For the reasons given above, the LNC’s claim in the second question that the specialized 

purpose regime unconstitutionally conditions certain speech’s lawfulness on that speech’s 

content is not “wholly insubstantial, obviously frivolous, [or] obviously without merit,” and so 

satisfies § 30110’s “low bar.” Holmes, 823 F.3d at 71–72 (quoting Shapiro, 136 S. Ct. at 456). 

Moreover, because the LNC’s second question merits certification, it logically follows that the 

LNC’s third question—“Does restricting the purposes for which the Libertarian National 

Committee may spend the bequest of Joseph Shaber violate the Committee’s First Amendment 

rights?,” Pet.’s Mot. Cert. at 1—challenging the specialized purpose regime as to Mr. Shaber’s 

particular bequest, also warrants certification.

D. Reformulating The LNC’s Proposed Questions

The FEC argues that should the LNC’s second and third proposed questions be certified, 

these questions should be reformulated because, in their current form, they are phrased in 

argumentative, question-begging, and overbroad terms. See Def.’s Opp’n at 33. While the Court 

declines to adopt the FEC’s proposed formulations of these questions, which themselves are 

argumentative and question-begging, for the reasons that follow, the LNC’s questions two and 

three are reformulated to address the FEC’s concerns. 

At the outset, the FEC contends that the LNC’s second and third proposed questions “go 

far beyond the claims asserted in the LNC’s complaint.” Id. According to the FEC, “Counts II 

and III of the LNC’s complaint focused on the constitutionality of the segregated account limits,” 

which “appeared to be the only aspect of the limit on contributions to political parties that the 

[LNC] challenged in its complaint.” Id. Yet, the FEC continues, “the LNC’s proposed questions 

two and three are not expressly targeted at the segregated account structure, but instead broadly 

assert that the contribution limits applicable to national committees ‘restrict the purposes for 
30

which the LNC may spend’ its money.” Id. at 34 (quoting Pet.’s Mem. at 3 (alterations 

omitted)). Contrary to the FEC’s description, Counts II and III of the LNC’s complaint clearly 

allege that § 30125, which prohibits “[a] national committee of a political party” from 

“spend[ing] any funds, that are not subject to the limitations [and] prohibitions . . . of this Act,”

52 U.S.C. § 30125(a)(1), “violate[s] the First Amendment speech and associational rights of the 

LNC and its supporters,” Compl. ¶ 31; accord id. ¶ 34. In short, the FEC’s criticism of questions 

two and three for lack of notice is baseless, as the LNC’s complaint targets § 30125’s restriction 

on the LNC’s ability to spend specialized purpose account funds.

As to the framing of questions two and three, the FEC deems these questions to be 

“argumentative because [they] beg[] the question [of] whether the segregated account limits 

actually restrict the LNC’s spending.” Def.’s Opp’n at 34. The second question asks whether 

the specialized purpose regime facially “violate[s] the First Amendment rights of the [LNC] by 

restricting the purposes for which the [LNC] may spend its money.” Pet.’s Mot. Cert. at 1. This 

question can be understood to ask not only whether restricting the purposes for which the LNC

may spend its money violates the First Amendment, but also whether the specialized purpose 

regime in fact imposes such a restriction. The second question thus requires no reformulation. 

The third question asks whether “restricting the purposes for which the [LNC] may spend 

the bequest of Joseph Shaber violates the [LNC’s] First Amendment Rights.” Id. The third 

question, unlike the second question, seemingly presumes that the specialized purpose regime 

does in fact restrict the purposes for which the LNC may spend its money. The third question’s 

phrasing thus is argumentative and question-begging: whether the specialized purpose regime, in 

fact, restricts the purposes for which the LNC may spend its money is an issue that must be 

decided, and may not be presumed. As such, the Court reformulates the third question to mirror 
31

the second question, a reformulation to which the LNC hardly can take issue given that the LNC

itself formulated the second question’s phrasing.

Finally, the FEC argues that the second and third questions “are not limited to the 

segregated account structure,” Def.’s Opp’n at 34, but rather, “implicate whether national party 

committees may be subject to contribution limits at all,” Def.’s Reply at 13. To the extent any 

ambiguity exists as to which aspects of the FECA are subject to challenge here, the second and 

third questions are reformulated to clarify that only the specialized purpose regime created by § 

30116(a)(1)(B), (a)(9), and § 30125(a)(1) are subject to challenge, and only on the ground that 

the specialized purpose regime conditions the lawfulness of contributions above § 

30116(a)(1)(B)’s general purpose contribution limit on whether the contribution is directed 

toward one of § 30116(a)(9)’s three enumerated specialized purposes.

Accordingly, the second question is reformulated as follows: “Do 52 U.S.C. §§ 

30116(a)(1)(B), (a)(9), and 30125(a)(1), on their face, violate the First Amendment rights of the 

Libertarian National Committee by restricting the purposes for which the Committee may spend 

its contributions above § 30116(a)(1)(B)’s general purpose contribution limit to those specialized

purposes enumerated in § 30116(a)(9)?” The third question is reformulated as follows: “Do 52 

U.S.C. §§ 30116(a)(1)(B), (a)(9), and 30125(a)(1) violate the First Amendment rights of the 

Libertarian National Committee by restricting the purposes for which the Committee may spend 

that portion of the bequest of Joseph Shaber that exceeds § 30116(a)(1)(B)’s general purpose 

contribution limit to those specialized purposes enumerated in § 30116(a)(9)?”

At the same time, the Court declines to adopt the FEC’s proposed formulations of the 

second and third questions. The FEC would reformulate the these questions as follows: 

Question 2: “Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment 

rights of the Libertarian National Committee by permitting it to accept 300% of the 
32

otherwise applicable contribution limit into segregated accounts used to defray 

expenses with respect to its presidential nominating conventions, headquarters 

buildings, and election recounts and contests and other legal proceedings?” Def.’s 

Opp’n at 34–35; 

Question 3: “Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment 

rights of the Libertarian National Committee by permitting it to accept 300% of the 

otherwise applicable contribution limit from the bequest of Joseph Shaber into 

segregated accounts used to defray expenses with respect to its presidential 

nominating conventions, headquarters buildings, and election recounts and contests 

and other legal proceedings?” Id. at 35. 

Framing the specialized purpose regime as one that “permit[s]” the LNC “to accept 300% of the 

otherwise applicable contribution limit” is argumentative and question-begging. As discussed 

earlier, the crux of the LNC’s challenge is not that the specialized purpose regime restricts the 

LNC from raising or spending sufficient funds, but that the specialized purpose regime imposes a 

content-based restriction on speech by conditioning the lawfulness of certain contributions, and 

of the LNC’s acceptance and expenditure of such contributions, on whether the contribution was 

made for a particular enumerated government-approved purpose.

IV. CONCLUSION

For the reasons given above, the FEC’s motion to dismiss is denied and the LNC’s 

motion to certify is granted in part and denied in part. An appropriate Order accompanies this 

Memorandum Opinion. Findings of fact are set out in the Appendix.

Date: June 29, 2018

__________________________

BERYL A. HOWELL

Chief Judge
33

APPENDIX

FINDINGS OF FACT17

I. The Parties

1. The Plaintiff, Libertarian National Committee, Inc. (“LNC”), is the national 

committee of the Libertarian Party of the United States. Pet.’s Mot. Cert., Decl. 

of Nicholas Sarwark, Chair, LNC, Inc. (“Sarwark Decl.”) ¶ 1, ECF No. 24-17; 

Def.’s Answer & Affirmative Defenses (“Def.’s Answer”) ¶ 1, ECF No. 22.

2. The Defendant, Federal Election Committee (“FEC”), is the federal government 

agency charged with the administration and enforcement of the Federal Election 

Campaign Act (“FECA”), 52 U.S.C. § 30101 et seq. Pet.’s Complaint (“Compl.”)

at 3, ECF No. 1. The FEC has exclusive jurisdiction with respect to the civil 

enforcement of such provisions. Id. §§ 30106(b)(1), 30109. The FEC also has 

the authority to make rules and regulations necessary to carry out the FECA, id. 

§§ 30107(a)(8), 30111(a)(8), 30111(d), and to issue advisory opinions concerning 

the application of FECA and prescribed regulations, id. §§ 30107(a)(7), 30108.

3. The LNC is a “not-for-profit organization incorporated under the laws of the 

District of Columbia.” Sarwark Decl. ¶ 1. “The LNC has 15,031 active paid 

sustaining donors, and 137,451 members, in all 50 states and the District of

Columbia.” Id. at ¶ 2. “Over half a million registered voters identify with the 

Libertarian Party in the states in which voters can register as Libertarians.” Id. 

 

17 The Court’s findings of fact are taken from the parties’ proposed findings of fact and responses thereto. 

See Pet.’s Mot. Cert., Ex. A, Pet.’s Facts Submitted for Cert. (“Pet.’s Proposed Facts”), ECF No. 24-3; Def.’s Opp’n, 

Attach. 2, Def.’s Resps. Pet.’s Proposed Facts, ECF No. 26-2; Def.’s Opp’n, Attach. 3, Def.’s Proposed Findings of 

Fact (“Def.’s Proposed Facts”), ECF No. 26-3; Pet.’s Reply, Attach. 1, Pet.’s Resps. Def.’s Proposed Facts, ECF 

No. 27-1. To the extent that objections were lodged to any proposed factual finding, those objections are sustained, 

denied, or resolved as reflected in the factual findings included in this Appendix.
34

“[Forty-eight] partisan officeholders and 111 non-partisan officeholders across the 

country are affiliated with the Libertarian Party.” Id.

4. “Founded in 1971, the Libertarian Party has yet to elect a federal office holder, 

and no current federal office holder is affiliated with the Libertarian Party.” 

Libertarian Nat’l Comm., Inc. v. FEC (“LNC I”), 930 F. Supp. 2d 154, 172 

(D.D.C. 2013) (Wilkins, J.) (citation omitted).

5. “The LNC’s purpose is to field national Presidential tickets, to support its state 

party affiliates in running candidates for public office, and to conduct other 

political activities in furtherance of a libertarian public policy agenda in the 

United States.” LNC I, 930 F. Supp. 2d at 172 (citation omitted); Sarwark Decl. ¶ 

3.

6. The LNC “facilitates mutual contacts between contributors and federal 

candidates,” and “assists candidates in their efforts to win federal office.” Def.’s

Opp’n, Ex. 2, Pet.’s Resps. Def.’s First Set Requests for Admissions at 10, ECF 

No. 26-6.

7. To achieve its political goals, the LNC organizes affiliate parties in all fifty states 

and runs candidates for public office “with the goal of reducing government 

control over individuals’ lives.” Def.’s Opp’n, Ex. 6, Dep. of Nicholas Sarwark 

(“Sarwark Dep.”) at 28:4–10, ECF No. 26-10. The LNC nominates candidates for 

president and vice president on behalf of the Libertarian Party every four years. 

Id. at 48:2–7, 49:8–11.

8. “Even if a Libertarian Party candidate does not win a federal election, the LNC 

generally views it as positive if its candidate gets more votes than the margin of 
35

victory between the two major-party candidates and thus affects the outcome of 

the election.” LNC I, 930 F. Supp. 2d. at 173 (citation omitted). That is because 

such a result might cause a candidate of a major party to listen to the Libertarian 

Party’s position in the future or reconsider his or her own position, “since the 

party would have demonstrated that a sizeable percentage of the electorate agrees 

with the Libertarian Party and wants to see more Libertarian public policies.” Id. 

(internal quotations omitted). 

9. In a 2006 letter to prospective donors, the LNC stated that 

[o]ne of the most significant achievements of the year was our 

candidates being identified as the deciding factor in control of the 

U.S. Senate. This led to positive press coverage in the Washington 

Post and many other news outlets. Our impact in these important 

elections even led to an article in The Economist titled “Libertarians 

Emerge as a Force.” Clearly, it was a good year for our party. 

Id. at (citation omitted).

II. The LNC’s Fundraising and Spending On Segregated Account Expenses

10. In some of its fundraising solicitations, the LNC has told potential contributors 

that their contributions will only be used for specific expenses. Sarwark Dep. at 

13:8–14:6, 40:11–21. Some donors have informed the LNC that they will only 

give money if they are told what the money will be used for. Id. at 21:18–22:3. 

Such project-based fundraising is often more effective for the LNC than asking 

for “unearmarked” money. Id. at 22:18–23:4. 

11. The LNC “earmarks” certain contributions to specify that those contributions are 

only to be used for particular categories of expenses. Id. at 13:20–14:6. Those 

earmarks include funds for “ballot access.” Id. at 14:14–15:19. This may include 
36

litigation over whether the Libertarian candidate will appear on a ballot in a 

particular election. See id. at 15:7–19.

12. The LNC maintains a “Legal Offense Fund” that is used to finance “proactive 

litigation” on behalf of the LNC. Id. at 40:11–14; see also Def.’s Opp’n, Ex. 8, 

LNC Legal Offense Fund Email, ECF No. 26-12. To raise money for this fund, 

the LNC has sent solicitations to potential contributors asking them specifically to 

donate to finance proactive litigation. LNC Legal Offense Fund Email at 2. In 

one such solicitation, LNC Chair Nicholas Sarwark wrote: “I promise you that 

every dollar we receive from this fundraiser will be spent on legal offense.” Id. at 

3.

13. The LNC also maintains a segregated account for a “building fund,” which it 

operates pursuant to 52 U.S.C. § 30116(a)(9)(B). Sarwark Dep. at 14:14–15; 

Sarwark Decl. ¶ 29.

14. The LNC does not place donations into its segregated purpose building account 

unless the donors specifically earmark their donations for building purposes. Id. 

“Of course, mortgage payments and payments for other expenses related to the 

building may be made from LNC’s general account as circumstances warrant.” 

Id.

15. “The Libertarian Party’s headquarters building makes an architectural statement 

that is consistent with the party’s mission. LNC would not occupy a headquarters 

building that would make an unsuitable architectural statement.” Id. ¶ 30.
37

16. “The Libertarian Party occasionally places political signs in its headquarters 

windows, or on the lawn in front of the building, but is prohibited by city 

ordinance from placing outdoor signage on its building.” Id. ¶ 31.

17. News reports indicate that major cities typically bid to host the presidential 

nominating conventions of the two major legacy parties. See, e.g., Chris Brennan, 

Democrats to Convene in Philly in 2016, PHILADELPHIA INQUIRER (Feb. 13, 

2015),

http://www.philly.com/philly/news/politics/20150213_Source__Philadelphia_to_

host_2016_Democratic_Convention.html; Andrew J. Tobias, Cleveland Chosen 

to Host 2016 Republican National Convention, CLEVELAND PLAIN DEALER (July 

8, 2014), 

https://www.cleveland.com/open/index.ssf/2014/07/cleveland_gop_convention_a

nnou.html. 

18. The LNC solicits directly for the building fund. Def.’s Opp’n, Ex. 30, LNC 

Building Fund Solicitation Letter, ECF No. 26-34. On April 26, 2014, the LNC 

sent a solicitation to contributors asking for contributions to this fund, which the 

LNC has also referred to as the David F. Nolan Memorial Headquarters Office 

Fund. Id. at 1. The solicitation explained that “[a]ll funds raised go into a 

separate account and are dedicated to the Nolan Memorial Headquarters Office, 

and will be restricted for use toward the associated purchase, furnishing, 

renovation, and moving expenses.” Id. at 3. 

19. On April 4, 2013, the LNC sent an email to potential contributors soliciting 

contributions to its building fund that explained that “every dollar contributed to 
38

the David F. Nolan Memorial Building Fund must, by law, be spent on buying an 

office or associated expenses – or it must be returned to you, the donor.” Def.’s 

Opp’n, Ex. 32, LNC Building Fund Email at 2, ECF No. 26-36. The email noted 

“that means your donation is guaranteed to be used only for the Building Fund.” 

Id. (emphasis in original).

20. The LNC has offered recognition for people who contributed to the building fund 

at certain levels. Sarwark Dep. at 20:1–11. Specifically, the LNC offered to 

allow contributors to the building fund to name certain rooms in the LNC’s 

headquarters or place their name on plaques to be displayed in those rooms. Id. at 

18:15–19:1.

21. The LNC has accepted money into an account authorized by 52 U.S.C. § 

30116(a)(1)(B) and (a)(9) that it could not have accepted prior to the specialized 

purpose regime’s creation because the donor had already contributed the 

maximum amount in unrestricted funds. See, e.g., Sarwark Dep. at 12:10–13:1; 

Pet.’s Proposed Facts.

22. As of December 31, 2016, the LNC accepted a total of $31,508 in contributions to 

a segregated account for its headquarters. Def.’s Opp’n, Ex. 1, Decl. of Paul C. 

Clark II, Federal Election Commission (“Clark Decl.”) ¶ 13 tbl.2, ECF No. 26-5;

Pet.’s Mot. Cert., Attach. 22, Decl. of Paul C. Clark II ¶ 13 tbl.2, ECF No. 24-22. 

One donor, Michael Chastain, donated $26,410.01 into the LNC’s segregated 

building fund in 2017. Pet.’s Mot. Cert., Attach. 20, Decl. of Michael Chastain 

(“Chastain Decl.”) ¶ 4, ECF No. 24-20.
39

23. The purpose of the LNC’s headquarters “is to provide full-time, professional 

support for the on-going political activities of the [p]arty.” Def.’s Opp’n, Ex. 11, 

LNC Policy Manual at 48, ECF No. 26-15. The activities of the LNC’s 

headquarters include record keeping, member services, development activities, 

external communications, and political action. Id. at 48–49.

24. In 2014, the LNC purchased a building to serve as its headquarters. LNC 

Building Fund Solicitation Letter at 1. The purchase price was $825,000. Id. at 2.

25. “Among the LNC’s goals is to completely pay off the headquarters building as 

quickly as possible, and in any case prior to the 2024 due date of a balloon 

payment. [To] that end, the LNC budgets at least $60,000 in . . . odd-numbered 

year[s] to pay down the principal, and undertakes fundraising efforts dedicated 

specifically towards that purpose. Accordingly, LNC expects that it would pay 

off the mortgage well before 2024. However, the LNC’s goals at times exceed its 

budget, and budget targets are not always met.” Sarwark Decl. ¶ 28. 

26. The LNC holds a presidential nominating convention once every four years 

immediately preceding a presidential election. Sarwark Dep. at 48:2–4. The 

purpose of these conventions is to conduct party business, including hearing 

reports from various LNC committees regarding changes to the national party 

bylaws, changes to the national party platform, election of officers and at-large 

members of the LNC, the election of the judicial committee, and occasional 

adoption of public policy resolutions. See id. at 48:12–49:7. In addition, 

Libertarian candidates for president and vice president are nominated at 

presidential nominating conventions. Id. at 49:8–11.
40

27. The LNC engages in fundraising specific to expenses that would be incurred for 

presidential nominating conventions. Id. at 49:12–50:13.

28. “All, or very nearly all, of the Libertarian Party’s expenses for holding its 

presidential nominating conventions are incurred and paid for in the year in which 

the convention is held. Occasionally . . . minor expenses related to presidential 

nominating conventions . . . are pre-paid in the year preceding the presidential 

nominating conventions. No expenses related to holding presidential nominating 

conventions are incurred in the two years following a year in which the [LNC]

holds a presidential nominating convention.” Sarwark Decl. ¶ 34. 

29. During discovery, the LNC provided an expense report for years 2013 through 

2016. Def.’s Opp’n, Ex. 7, LNC Account QuickReport, ECF No. 26-11. While 

the description of costs were not specifically tailored to the exact language of the

segregated account provision in FECA, in general, the LNC spent roughly 

$467,251.58 on 52 U.S.C. § 30116(a)(9)-sanctioned expenses in 2016. Id. at 30.

30. The LNC’s total budget for program expenses and cost of support and revenue, 

including fundraising, was $1,406,400 in 2014, Def.’s Opp’n, Ex. 22, LNC 2014 

Budget, ECF No. 26-26, $1,304,246.33 in 2015, Def.’s Opp’n, Ex. 9, LNC 2015 

Budget, ECF No. 26-13, and $2,263,183 in 2016, Def.’s Opp’n, Ex. 10, LNC 

2016 Budget, ECF No. 26-14.

31. Between December 16, 2014, and December 31, 2016, national party committees 

have accepted a total of $129,997,590 into their specialized purpose accounts. 

Clark Decl. ¶ 13 tbl.2. The national party committees affiliated with the 

Democratic Party have accepted a total of $41,510,551; the national party 
41

committees affiliated with the Republican Party have accepted a total of 

$88,455,532; and the LNC has accepted $31,508. Id. No other national 

committee of any political party reported segregated account contributions as of 

December 31, 2016. Id. ¶ 14.

III. The FECA’s Specialized Purpose Regime

32. Potential donors may forego making a contribution to the national committee of a 

political party, or reduce the amount of their contribution, if the uses of that 

contribution are restricted. See Sarwark Decl. ¶ 10; see, e.g., Pet.’s Mot. Cert., 

Attach. 19, Decl. of Chris Rufer (“Rufer Decl.”) ¶¶ 5–7, ECF No. 24-19; Chastain 

Decl. ¶¶ 5–7; Pet.’s Mot. Cert., Attach. 21, Decl. of William Redpath (“Redpath 

Decl.”) ¶ 5, ECF No. 24-21.

33. “LNC is unaware of any documentary evidence comparing the corrupting 

potential of restricted, [specialized-purpose] contributions with the corrupting 

potential of unrestricted, general purpose contributions.” Sarwark Decl. ¶ 11.

34. During discovery in this litigation, the LNC posed the following interrogatory to 

the FEC: “[P]lease describe in detail all evidence tending to support the 

proposition that a maximum allowable contribution to one of the separate, 

segregated accounts provided for in 52 U.S.C. § 30116(a)(9) is less corrupting 

than a contribution that exceeds the unrestricted, general purpose contribution 

limits by one dollar.” Pet.’s Mot. Cert., Ex. B, Def.’s Objections & Resps. Pet. 

LNC’s First Discovery Requests (“Def.’s First Objections & Resps.”) at 15, ECF 

24-4. The FEC responded: “The FEC cannot respond to this interrogatory 

because it rejects the premise that a contribution of any particular dollar value is 
42

‘corrupting’ but that lower values are not ‘corrupting.’ Moreover, the FEC cannot 

completely answer this interrogatory, as discovery is ongoing. Nevertheless, the 

FEC is aware of case law, publicly available secondary material, and simple logic 

which dictates that parties may prefer unrestricted contributions to those that may 

only be used in connection with particular expenses. The FEC is also aware of 

LNC’s allegations that ‘the LNC has comparatively less use for funds intended to 

support national conventions, a headquarters building, or attorney fees’ and 

therefore ‘needs’ unrestricted funds ‘in order to directly speak to the electorate.’ 

Compl. ¶ 13. Additional evidence may be uncovered through continuing 

discovery in this case.” Id. at 15–16.18

35. During discovery in this litigation, the LNC posed the following interrogatory to 

the FEC: “Please describe the likelihood that an individual’s contribution of 

$101,700 to the national committee of a political party, restricted for the purpose 

of funding a headquarters building, election contests, or a presidential nominating 

convention, would create the same or greater appearance of corruption as an 

unrestricted contribution in the amount of $33,901 by that individual to the same 

national committee of a political party.” Pet.’s Mot. Cert., Ex. C, Def.’s

Objections & Resps. Pet.’s Second Discovery Requests (“Def.’s Second 

Objections & Resps.”) at 6, ECF 24-5. The FEC responded: “[L]arger 

contributions [to political parties] are generally more likely to lead to actual or 

 

18 The LNC proposed to certify only the following fact: “The FEC . . . rejects the premise that a contribution 

of any particular dollar value is ‘corrupting’ but that lower values are not ‘corrupting.’” Pet.’s Proposed Facts ¶ 30 

(citation omitted). The FEC noted that the LNC’s proposed fact excerpted from a longer interrogatory response, and 

argued that “[t]o the extent this proposed fact is certified . . . the FEC’s full response should in fairness be included. 

See FED. R. EVID. 106.” Def.’s Resps. Pet.’s Proposed Facts at 15.
43

apparent quid pro quo arrangements and can do so regardless of how the funds are 

ultimately used, but unrestricted funds contributed to a political party may be used 

for activities that maximally benefit federal candidates and thus may pose a 

relatively more acute danger of actual and apparent corruption.” Id. at 7.19

36. During discovery in this litigation, the LNC posed the following interrogatory to 

the FEC: “Please explain why a maximum allowable contribution to one of the 

separate, segregated accounts provided for in 52 U.S.C. § 30116(a)(9) may be less 

corrupting than a contribution that exceeds the unrestricted, general purpose 

contribution limits by one dollar.” Def.’s First Objections & Resps. at 17. The 

FEC responded in part: “Although all contributions to political parties can create 

the risk of corruption or its appearance regardless of the way that money is 

ultimately spent, Congress could have permissibly concluded that contributions to 

a political party that directly benefit a particular candidate or can be spent directly 

on a particular election contest pose an especially acute risk warranting a lower 

dollar limit.” Id.

20

37. The FEC takes the position that “Congress could have permissibly concluded” 

that unrestricted donations to a political party pose greater risk than restricted 

donations, Def.’s First Objections & Resps. at 17, as it believes that “unrestricted 

 

19 The LNC proposed to certify only the following fact: “‘[L]arger contributions [to political parties] are 

generally more likely to lead to actual or apparent quid pro quo arrangements and can do so regardless of how the 

funds are ultimately used . . . .” Pet.’s Proposed Facts ¶ 31 (alteration in original) (citation omitted). The FEC 

objected that the proposed fact “omits the context of the FEC’s interrogatory response,” and argued that “[t]o the 

extent this proposed fact is certified, the FEC’s full response should in fairness be included. See FED. R. EVID. 106.” 

Def.’s Resps. Pet.’s Proposed Facts at 15–16.

20 The LNC proposed to certify only the following fact: “[A]ll contributions to political parties can create the 

risk of corruption or its appearance regardless of the way that money is ultimately spent.” Pet.’s Proposed Facts ¶

32 (emphasis in original) (citation omitted). The FEC objected that the proposed fact “omits the context of the 

FEC’s interrogatory response,” and argued that “[t]o the extent this proposed fact is certified, the FEC’s full 

response should in fairness be included. See FED. R. EVID. 106.” Def.’s Resps. Pet.’s Proposed Facts at 16.
44

funds contributed to a political party may be used for activities that maximally 

benefit federal candidates and thus may pose a relatively more acute danger of 

actual and apparent corruption,” Def.’s Second Objections & Resps. at 7.

38. “Every dollar received through the separate, segregated accounts provided for in 

52 U.S.C. § 30116(a)(9) potentially frees up another dollar in the recipient’s 

general account for unrestricted spending.” Def.’s First Objections & Resps. at 

12; Sarwark Decl. ¶ 12.

39. “[A] political party may in some circumstances value a contribution with use 

restrictions more highly than a smaller contribution without such restrictions.” 

Sarwark Decl. ¶ 13; see also Def.’s Second Objections & Resps. at 4.

40. During discovery in this litigation, the LNC posed the following interrogatory to 

the FEC: “Please describe the likelihood that a political party would value a 

contribution with use restrictions more highly than a smaller contribution without 

such restrictions.” Def.’s Second Objections & Resps. at 7. The FEC responded 

in part: “[U]nrestricted funds contributed to a political party may be used for 

activities that maximally benefit federal candidates and thus will generally be 

more highly valued. A political party may value a higher contribution with use 

restrictions in some circumstances, however, such as in the case of a contribution 

that the party may use to defray expenses for which it knows it must pay and for 

which it would otherwise have trouble raising funds. The party may value that 

contribution more than a smaller contribution that comes with no use restrictions 

but is easier to replicate through other fundraising efforts.”21 Id. at 8.

 

21 The LNC proposed to certify only the following fact: “A political party may value a higher contribution 

with use restrictions in some circumstances . . . such as in the case of a contribution that the party may use to defray 
45

41. During discovery in this litigation, the LNC requested that the FEC admit the 

following: “An individual’s contribution of $101,700 to the national committee of 

a political party, even if restricted for the purpose of funding a headquarters 

building, election contests, or a presidential nominating convention, may create 

the same or greater appearance of corruption as an unrestricted contribution in the 

amount of $33,901 by that individual to the same national committee of a political 

party.” Def.’s Second Objections & Resps. at 5. The FEC “denie[d] that the 

requested admission is true as a general matter but admit[ted] that the hypothetical 

scenario described in the request may occur in some circumstances, for the 

reasons provided and subject to the general caveats in the response to Request 

27.” Id. In responding to the LNC’s Request 27, the FEC asserted: 

Given the close connection and alignment of interests between 

national party committees and federal officeholders, larger 

contributions are generally more likely to lead to actual or apparent 

quid pro quo arrangements and can do so regardless of how the 

funds are ultimately used. See, e.g., Republican Party of La. v. FEC, 

219 F. Supp. 3d 86, 97 (2016) (citing McConnell v. FEC, 540 U.S. 

93, 154-55 (2003)), aff’d 137 S. Ct. 2178 (2017). The danger of 

actual and apparent quid pro quo corruption can, however, be 

relatively more acute when funds are used for activities that provide 

direct benefits to federal candidates. Id. at 96 (citing McConnell, 

540 U.S. at 166–71). Because unrestricted funds contributed to a 

political party may be used for activities that maximally benefit 

federal candidates, including campaign advertisements in 

coordination with candidate campaigns, political parties will 

generally value them higher and such contributions pose a relatively 

more acute danger of quid pro quo corruption. Subject to those 

general caveats, the Commission admits that a political party may in 

 

expenses for which it knows it must pay and for which it would otherwise have trouble raising funds. The party may 

value that contribution more than a smaller contribution that comes with no use restrictions but is easier to replicate 

through other fundraising efforts.” Pet.’s Proposed Facts ¶ 39 (alteration in original) (citation omitted). The FEC 

“object[ed] to this proposed fact to the extent that it omits the full context of the FEC’s interrogatory response,” and 

argued that “[t]o the extent this proposed fact is certified, the FEC’s full response should in fairness be included. 

See FED. R. EVID. 106.” Def.’s Resps. Pet.’s Proposed Facts at 20.
46

some circumstances value a contribution with use restrictions more 

highly than a smaller contribution without such restrictions.” 

Def.’s Second Objections & Resps. at 3−4.22

42. During discovery in this litigation, the LNC requested that the FEC admit the 

following: “Were a national committee of a political party planning to spend at 

least $101,700 from its general account in a given year for any of the purposes for 

which separate, segregated accounts are provided in 52 U.S.C. § 30116(a)(9), a 

$101,700 contribution received in one of the separate, segregated accounts would 

have the same effect as an unrestricted $101,700 contribution.” Def.’s Second 

Objections & Resps. at 5. The FEC “object[ed] to this request for admission as 

vague and ambiguous insofar as it does not define the ‘effect’ to which the request 

alludes.” Id.

43. During discovery in this litigation, the LNC posed the following interrogatories to 

the FEC: (1) “Please describe the likelihood that an individual’s contribution of 

$101,700 to the national committee of a political party, restricted for the purpose 

of funding a headquarters building, election contests, or a presidential nominating 

convention, would create the same or greater appearance of corruption as an 

unrestricted contribution in the amount of $33,901 by that individual to the same 

national committee of a political party,” Def.’s Second Objections & Resps. at 6;

and (2) “Please describe the circumstances under which an individual’s 

 

22 The LNC proposed to certify only the following fact: “An individual’s contribution of $101,700 to the 

national committee of a political party, even if restricted for the purpose of funding a headquarters building, election 

contests, or a presidential nominating convention, may create the same or greater appearance of corruption as an 

unrestricted contribution in the amount of $33,901 by that individual to the same national committee of a political 

party.” Pet.’s Proposed Facts ¶ 40. The FEC objected that the proposed fact “omits the full context of the FEC’s [] 

response,” and argued that “[t]o the extent this proposed fact is certified, the FEC’s full response should in fairness 

be included. See FED. R. EVID. 106.” Def.’s Resps. Pet.’s Proposed Facts at 20.
47

contribution of $101,700 to the national committee of a political party, restricted 

for the purpose of funding a headquarters building, election contests, or a 

presidential nominating convention, would create the same or greater appearance 

of corruption as an unrestricted contribution in the amount of $33,901 by that 

individual to the same national committee of a political party.” Id. at 8. The FEC 

responded to both interrogatories, in part, “that a particular within-limit 

contribution to the segregated account of a national committee of a political party 

could appear as corrupt as or more corrupt than a lower contribution to that 

committee’s general account that exceeds the general account limit, depending on 

circumstances such as the identity of the contributor and the receiver, the policy 

interests of the contributor, the current status of relevant policies, the financial 

needs and goals of the receiver including as to the types of spending for which 

segregated account funds might be used and the public knowledge of those 

matters, the receiver’s relative ability to raise funds for different proposed uses, 

and whether any relevant policy changes happen close in time to the 

contribution.” Id. at 7, 9.

23

44. No parties, apart from the Libertarian, Democratic, and Republican Parties, have 

reported any segregated purpose accounts to the FEC. Clark Decl. ¶ 14.

45. Between 2014 and 2016, the Democratic National Committee (“DNC”) reported 

receiving $12,255,964 for its segregated convention account, $3,901,490 for its 

 

23 The LNC proposed to certify only the following facts: (1) “[A] particular within-limit contribution to the 

segregated account of a national committee of a political party could appear as corrupt as or more corrupt than a 

lower contribution to that committee’s general account that exceeds the general account limit,” and (2) “[I]t is . . . 

possible that a particular contribution below the general account limit may have an appearance of corruption that 

exceeds that of a higher contribution to a segregated account.” Pet.’s Proposed Facts ¶¶ 42, 43 (alterations in 

original) (citations omitted). The FEC objected to both proposed facts on the ground that they “omit[] needed 

context from the cited FEC discovery response.” Def.’s Resps. Pet.’s Proposed Facts at 21,22.
48

segregated headquarters account, and $6,764,189 for its segregated recount 

account. Clark Decl. at 5 tbl.2.

46. Between 2014 and 2016, the Republican National Committee (“RNC”) reported 

receiving $23,817,038 for its segregated convention account, $26,367,459 for its 

segregated headquarters account, and $5,992,015 for its segregated recount 

account. Clark Decl. at 5 tbl.2.

47. Between 2014 and 2016, the DNC’s individual contributions, not including many 

contributions accepted in the segregated purpose accounts, totaled 

$189,112,962.62. See DNC Year-End FEC Reports at 3, line 11(a)(iii), 

http://docquery.fec.gov/cgi-bin/fecimg/?_15951133010+0 (last visited June 28, 

2018) (for 2014), http://docquery.fec.gov/cgibin/fecimg/?_201601299004933424+0 (last visited June 28, 2018) (for 2015),

http://docquery.fec.gov/cgi-bin/fecimg/ ?_201706019055202873+0 (last visited 

June 28, 2018) (for 2016).

48. Between 2014 and 2016, the RNC’s individual contributions, not including many 

contributions accepted in the segregated purpose accounts, see supra ¶ 46, totaled 

$266,758,900.34. RNC Year-End FEC Reports at 3, line 11(a)(iii), 

http://docquery.fec.gov/cgi-bin/fecimg/?_15970244221+0 (last visited June 28, 

2018) (for 2014), http://docquery.fec.gov/cgibin/fecimg/?_201603229011936493+0 (last visited June 28, 2018) (for 2015); 

http://docquery.fec.gov/cgi-bin/fecimg/ ?_201701319042260933+0 (last visited 

June 28, 2018) (for 2016).
49

49. In 2016, the RNC’s individual contributions, not including many contributions 

accepted in the segregated purpose accounts, supra ¶ 46, totaled $89,643,729.23. 

2016 RNC Year-End FEC Report at 3, line 11(a)(iii), http://docquery.fec.gov/cgibin/fecimg/?_201701319042260933+0 (last visited June 28, 2018).

50. “Unrestricted funds are more valuable to national party committees and their 

candidates than funds that may only be used for particular categories of 

expenses.” FEC’s Proposed Facts at 9.

51. The RNC and Donald J. Trump for President, Inc., entered a joint fundraising 

agreement during the 2016 presidential election. See Def.’s Opp’n, Ex. 34, 

Excerpt of Production from Republican National Committee to the Def.’s

Subpoena to Produce Documents, ECF No. 26-38. According to that agreement, 

any donations to the joint fundraising committee that exceeded the maximum that 

could be donated to Trump’s campaign would be allocated first to RNC’s general 

operating account up to the General Party Limit. Id. at 8. Only after the 

contributor reached the General Party Limit would contributions be allocated to 

RNC’s segregated accounts pursuant to the Segregated Account Limit. Id.

52. The specialized purpose limit applicable to national party committees’ legal 

expenses allows parties to engage in litigation without having to reduce their 

general political advocacy. For example, RNC spokeswoman Cassie Smedile 

recently explained that paying for legal expenses “with funds from a pre-existing 

legal proceedings account [] [did] not reduce by a dime the resources we can put 

towards our political work.” Def.’s Opp’n, Ex. 35, Matea Gold, RNC Taps Legal 
50

Account to Help Pay for Lawyers for President Trump and Son Donald Jr. in 

Russia Probes, WASH. POST. (Sept. 20, 2017), ECF No. 26-39. 

IV. Political Parties and Quid Pro Quo Corruption

53. Because of the close relationship between parties and candidates, contributions to 

parties can lead to the actuality and appearance of quid pro quo corruption. 

National political parties are “inextricably intertwined” with their federal 

officeholders and candidates, with whom they “enjoy a special relationship and 

unity of interest.” McConnell v. FEC, 540 U.S. 93, 145, 155 (2003) (internal 

quotation marks and citation omitted), overruled by Citizens United v. FEC, 558 

U.S. 310 (2010). In fact, “[t]here is no meaningful separation between the 

national party committees and the public officials who control them.” Id. at 155 

(citations omitted).

54. “Once elected to legislative office, public officials enter an environment in which 

political parties-in-government control the resources crucial to subsequent 

electoral success and legislative power. Political parties organize the legislative 

caucuses that make committee assignments.” Id. at 156 (internal quotation marks 

and citation omitted). Thus, “officeholders’ reelection prospects are significantly 

influenced by attitudes of party leadership,” id. (citing Krasno & Sorauf Expert 

Report), and an individual Member’s stature and responsibilities vary 

dramatically depending on whether his party is in the majority or in the minority.

55. Parties are not like regular political committees. Non-connected committees “do 

not select slates of candidates for elections,” “determine who will serve on 

legislative committees, elect congressional leadership, or organize legislative 
51

caucuses,” but these activities count among the parties’ core responsibilities. Id.

at 188 (“Political parties have influence and power in the Legislature that vastly 

exceeds that of any interest group. . . . [P]arty affiliation is the primary way . . . 

voters identify candidates,” and therefore parties have special relationships with 

those who hold public office.). “A primary goal of all the major political parties 

is to win elections.” Cao v. FEC, 688 F. Supp. 2d 498, 527 (E.D. La.), aff’d sub 

nom. In re Cao, 619 F.3d 410 (5th Cir. 2010); see also id. (“The ultimate goal of a 

political party is to get as many party members as possible into elective office, 

and in doing so to increase voting and party activity by average party members.” 

(quoting declaration of former Representative Meehan)).

56. This overriding purpose makes political parties particularly susceptible to 

contributors who want to create a quid pro quo relationship with an officeholder. 

As the Supreme Court has explained: 

Parties are []necessarily the instruments of some contributors whose 

object is not to support the party’s message or to elect party 

candidates across the board, but ratherto support a specific candidate 

for the sake of a position on one narrow issue, or even to support any 

candidate who will be obliged to the contributors.

FEC v. Colo. Republican Fed. Campaign Comm’n, 533 U.S. 431, 451–52 (2001); 

see also id. at 452 (“[W]hether they like it or not, [parties] act as agents for 

spending on behalf of those who seek to produce obligated officeholders.”); id. at 

455 (“In reality, parties . . . function for the benefit of donors whose object is to 

place candidates under obligation, a fact that parties cannot escape. Indeed, 

parties’ capacity to concentrate power to elect is the very capacity that apparently 
52

opens them to exploitation as channels for circumventing contribution and 

coordinated spending limits binding on other political players.”).

57. The national committees of the two major parties—the Democratic Party and the 

Republican Party—are “both run by, and largely composed of, federal 

officeholders and candidates.” McConnell, 540 U.S. at 155. “The President 

typically controls his party’s national committee, and once a favorite has emerged 

for the presidential nomination of the other party, that candidate and his party’s 

national committee typically work closely together.” McConnell v. FEC, 251 F. 

Supp. 2d 176, 697 (D.D.C. 2003) (Kollar-Kotelly, J.). The leaders of the two 

major parties are also the parties’ federal candidates, officeholders, and important

Congressional leaders. Id. at 469 (“[T]he internal structure of parties permits, for 

example, former U.S. Senator D’Amato, who chaired the [RSCC] from 1995–97, 

to at the same time serve as chair of the Senate Banking, Housing, and Urban 

Affairs Committee.”) (alterations in original) (citation omitted). 

58. Similarly, LNC officials have run for federal office as Libertarian Party 

candidates while holding their offices with the LNC. For example, William 

Redpath is currently an at-large member of the LNC, and he previously served as 

the LNC’s national chair from July 2006 through May 2010 and as the LNC’s 

treasurer three times. Redpath Decl. ¶ 1. Redpath ran as a Libertarian Party 

candidate for United States Senate in 2008 and for United States House of 

Representatives in 2010 and 2014. Id. As national chair, Redpath was the LNC’s 

“chief executive officer . . . with full authority to direct [the LNC’s] business and 
53

affairs.” LNC I, 930 F. Supp. 2d at 178 (citation omitted). The LNC’s rules do 

not bar its leaders from also running for federal office. Id.

59. The public record contains significant evidence of actual and apparent quid pro 

quos involving contributions to national, state, and local parties. In the 1930s, 

Congress enacted restrictions on contributions to national political parties in light 

of the notorious “Democratic campaign book” scandal, in which federal 

contractors were forced to buy books at hyper-inflated prices from the Democratic 

party to assure that they would continue to receive government business. 84 

CONG. REC. 9598-99 (1939) (statement of Rep. Taylor); see also Wagner v. FEC, 

793 F.3d 1, 11–12 (D.C. Cir. 2015) (en banc) (“Congressman J. Will Taylor 

pointed to the coercion of contractors in the celebrated Democratic campaign 

book scandal as a prime example of political immorality and skullduggery that 

should not be tolerated. 84 CONG. REC. 9598-99 (1939). Representative Taylor 

recounted that, at the behest of the Democratic National Committee, party 

representatives paid visits to government contractors, reminding each one of the 

business he had received from the Government and explaining that the contractor 

was expected to buy a number of the party’s souvenir convention books—at $250 

each—in proportion to the amount of Government business he had enjoyed.” 

(internal quotation marks omitted)).

60. In 1976, Armand Hammer was fined and placed on probation after pleading guilty 

to making an illegal contribution to President Nixon’s reelection campaign. 

David Rampe, Armand Hammer Pardoned by Bush, N.Y. TIMES (Aug. 15, 1989), 

http://www.nytimes.com/1989/08/15/us/armand-hammer-pardoned-by-bush.html. 
54

Mr. Hammer contributed $54,000 to the Nixon re-election campaign in the names 

of others, friends of a subordinate at Occidental Petroleum. Id. The subordinate 

was convicted of concealing the source of the contribution. Id. In 1989, Mr. 

Hammer made contributions exceeding $100,000 to the Republican Party and 

another $100,000 to the Bush-Quayle Inaugural Committee. Marc Lacey, 

Political Memo; Resurrecting Ghosts of Pardons Past, N.Y. TIMES (Mar. 4, 

2001), http://www.nytimes.com/2001/03/04/us/political-memo-resurrectingghosts-of-pardons-past.html. Shortly afterward, on August 14, 1989, President 

George H.W. Bush pardoned Mr. Hammer for his illegal contribution to President 

Nixon’s reelection campaign. Id.; David Hoffman, Bush Signs Pardon for 

Armand Hammer, WASH. POST (Aug. 15, 1989), 

https://www.washingtonpost.com/archive/politics/1989/08/15/bush-signs-pardonfor-armand-hammer/b6cb4260-bbb1-40ae-a9d6-7f67ef4a7226/. In comparing the 

pardon to President Bill Clinton’s later pardon of Marc Rich, Representative 

Henry Waxman observed that “‘[t]he appearance of a quid pro quo is just as 

strong in the Hammer case as in the Rich case, if not stronger, since Mr. Hammer 

himself gave the contribution.’” Lacey, supra.

61. In 1988, Edwin Cox, Jr. pled guilty to bank fraud by falsifying collateral on an 

$80 million loan. Bank Fraud Guilty Plea, N.Y. TIMES (June 17, 1988), 

http://www.nytimes.com/1988/06/17/business/bank-fraud-guilty-plea.html. 

According to CNN’s matching of Cox family members with contribution records, 

from 1980 to 2000 that family contributed approximately $200,000 to campaigns 

of President George H.W. Bush, his relatives, and Republican campaign 
55

committees. Kelly Wallace, Former President Bush Granted Last Minute Pardon 

to Contributor’s Son, CNN (Mar. 7, 2001, 1:57 PM), 

http://www.cnn.com/2001/ALLPOLITICS/03/07/bush.pardon/. In addition to 

contributing to these various campaigns, Cox’s father, Texas oilman Edwin L. 

Cox, Sr., coordinated political support for the pardon. See id. On November 24,

1992, former White House chief of staff James Baker wrote to the White House 

counsel, copying the president, that “[f]ormer Texas Gov. Bill Clements called me 

and asked me whether or not the president would consider a pardon for Edwin 

Cox, son of Ed Cox, who is a longtime supporter of the president’s.” Id. On 

January 18, 1993, two days before leaving the White House, President Bush 

pardoned Mr. Cox for his bank fraud conviction. Id. After the pardon, Edwin 

Cox, Sr. donated at least $100,000 to the George Bush Presidential Library. Id.; 

Michael Weisskopf, A Pardon, a Presidential Library, a Big Donation, TIME

(Mar. 6, 2001), http://content.time.com/time/nation/article/0,8599,101652,00.html 

(noting that Edwin Cox, Sr.’s “name is etched in gold as a ‘benefactor,’ those 

whose donations amount to between $100,000 to $250,000”).

62. In McConnell, the record documented that, as one former senator described, 

“‘[l]arge soft money contributions in fact distort the legislative process. They 

affect what gets done and how it gets done. . . . [M]ake no mistake about it—this 

money affects outcomes.’” 251 F. Supp. 2d at 496 (quoting Sen. Rudman).

63. As another Senator testified: 

It is not unusual for large contributors to seek legislative favors in 

exchange for their contributions. A good example of that which 

stands out in my mind because it was so stark and recent occurred 

on the next to last day of the 1995-96 legislative session. Federal 
56

Express wanted to amend a bill being considered by a Conference 

Committee . . . . This was clearly of benefit to Federal Express, 

which according to published reports had contributed $1.4 million 

in the last 2-year cycle to incumbent Members of Congress and 

almost $1 million in soft money to the political parties. I opposed 

this in the Democratic Caucus, arguing that even if it was good 

legislation, it should not be approved without holding a hearing, we 

should not cave in to special interests. One of my senior colleagues 

got up and said, ‘I’m tired of Paul always talking about special

interests; we’ve got to pay attention to who is buttering our bread.’ 

I will never forget that. This was a clear example of donors getting 

their way, not on the merits of the legislation, but just because they 

had been big contributors. I do not think there is any question that 

this is the reason it passed. 

McConnell, 251 F. Supp. 2d at 482 (quoting former Sen. Simon); see also Colo. 

Republican, 533 U.S. at 451 n.12 (quoting Senator Simon’s statement that “I 

believe people contribute to party committees on both sides of the aisle for the 

same reason that Federal Express does, because they want favors. There is an 

expectation that giving to party committees helps you legislatively.”).

64. In July 1995, the Department of Interior denied an application by three bands of 

Wisconsin Indian tribes to open a casino in Hudson, Wisconsin. S. REP. NO. 105-

167, pt. 1, at 44–45 (1998). Initially, the application was approved by a branch 

office of the Bureau of Indian Affairs (“BIA”). Id. at 44. A wealthy group of 

neighboring tribes in Minnesota, who operated a competing casino, hired a 

prominent lobbyist and former DNC treasurer, who spoke personally with 

President Clinton and officials of the DNC. Id. Following their meeting, DNC 

officials promised to talk to the White House and have them contact Secretary of 

the Interior Bruce Babbitt. Id. at 45. Meanwhile, a career BIA employee had 

drafted “a 17-page analysis recommending approval of the Hudson application.” 

Id. According to testimony provided to a Senate Committee, Secretary Babbitt 
57

felt pressure from the White House to make a determination quickly on the 

application and was aware of tribal “political contributions” to the DNC and state 

Democratic parties. Id. (recalling that Secretary Babbitt remarked to the applicant 

tribes’ attorney, “Do you have any idea how much these Indians, Indians with 

gaming contracts . . . have given to Democrats? . . . [H]alf a million dollars.”). 

Ultimately, the application was denied. Id. In the four months following the 

application’s denial, “the opposition tribes contributed $53,000 to the DNC and 

the DSCC . . . an additional $230,000 to the DNC and the DSCC during 1996, 

and . . . more than $50,000 in additional money to the Minnesota Democratic 

Party.” Id. “There is strong circumstantial evidence that the Interior 

Department’s decision to deny the Hudson application was caused in large part by 

improper political considerations, including the promise of political contributions 

from opposition tribes.” Id., pt. 2, at 3168; see also id. at 3193 (“From all the 

circumstances, there appears to be a direct relationship between the activities of 

the Department of the Interior and contributions received by the DNC and DSCC 

from the opposition tribes.”). Political donations to the DNC and the Minnesota 

Democratic Party “apparently succeeded in purchasing government policy 

concessions.” Id., pt. 1, at 45 (emphasis in original); see also McConnell, 540 

U.S. at 164–65,165 n.61 (discussing the episode in connection with of the 

governmental interests underlying § 30125(b)).

65. Between 1995 and 1996, Roger Tamraz contributed approximately $300,000 to 

the DNC and various state Democratic parties to gain support for an oil-pipeline 

project in the Caucuses, which was opposed by the National Security Council 
58

(“NSC”) and other executive branch agencies. See generally S. REP. NO. 105-

167, pt. 2, at 2907–31. NSC staff developed a policy of denying Mr. Tamraz 

“high-level U.S. Government access” to discuss the pipeline. Id. at 2911. To 

circumvent this policy, Mr. Tamraz met with DNC officials and began 

contributing to the DNC and state Democratic parties. See id. at 2912–13. All 

told, “by the end of March 1996 Tamraz had made contributions totaling 

$100,000 to the Virginia Democratic Party, $25,000 to the Virginia Legislative 

Conference, $20,000 to [Richard] Molpus[’s] campaign [for governor of 

Mississippi], $25,000 to the Louisiana Democratic Party, and $130,000 to the 

DNC.” Id. at 2913–14. In addition, Mr. Tamraz contributed “‘10 [or] 20’ 

thousand dollars either to Senator [Ted] Kennedy’s campaign or to the 

Massachusetts Democratic Party.” Id. at 2915. DNC officials “went to great 

lengths in an attempt to provide Tamraz the ‘political leverage’ he sought in his 

Caspian ventures.” Id. at 2913. Their efforts included providing pressure from 

White House and Department of Energy officials to change the U.S. 

Government’s position on the pipeline. See id. at 2928–30. While Mr. Tamraz 

was not ultimately successful “in persuading the U.S. Government to support his 

pipeline,” the Committee Report notes he “succeeded through his political 

contributions, and apparently the promise of additional donations, in enlisting 

senior United States officials in his attempt to change the working group’s policy 

on Caspian energy issues.” Id. at 2930. Undeterred by his White House rebuke, 

Mr. Tamraz also approached officials at the Overseas Private Investment 

Corporation, an independent U.S. Government agency whose president was Ruth 
59

Harkin. Id. at 2929. Mr. Tamraz contributed “$35,000 to the Iowa Democratic 

Party at the request of Ruth Harkin’s husband, Senator Tom Harkin of Iowa.” Id.

66. As explained by the D.C. Circuit in Wagner v. FEC, there were a “series of quid 

pro quos” made by the former lobbyist Jack Abramoff and former Representative 

Bob Ney. 793 F.3d 1, 15 (D.C. Cir. 2015).

67. Abramoff, who pled guilty in 2006 to corruption charges and served time in 

prison, has written a book about how he and fellow lobbyists made campaign 

contributions to a range of political committees as part of a strategy to obtain 

political favors. See generally JACK ABRAMOFF, CAPITOL PUNISHMENT: THE 

HARD TRUTH ABOUT WASHINGTON CORRUPTION FROM AMERICA’S MOST 

NOTORIOUS LOBBYIST (2011).

68. Abramoff’s book describes a 1995 meeting involving former House Majority 

Whip Tom DeLay and executives from Microsoft. Id. at 64−65. The issue being 

discussed was “software program encryption export.” Id. Once “DeLay 

expressed his general support for their positions and reminded [the executives] 

that it was likely to be the Republicans who would defend the freedom they 

required to develop their company,” he made a “soft appeal for political 

contributions from the company.” Id. at 65. When one of the executives “firmly 

brushed off” the solicitation, DeLay delivered a “stern message”: he told the 

executives a story about an earlier time when Walmart had suffered by refusing to 

“‘sully their hands’” by making a contribution. Id. That refusal backfired a year 

later when Walmart could not get DeLay to “‘sully his hands’” with a request to 

get a highway ramp near one of their stores. Id. Once DeLay related this story, 
60

the “quivering executives” “finally got the joke.” Id. “A $100,000 check was 

soon delivered to the [National] Republican Congressional Committee, and 

Microsoft’s relationship with the American right commenced.” Id. 

69. In 2002, in exchange for former Representative Ney’s commitment to add to the 

Help America Vote Act (“HAVA”) language to reopen a casino owned by the 

Tiguas, a Texas Indian tribe that Abramoff represented, Abramoff arranged for 

lavish contributions to be made by tribal officials to or on Ney’s behalf, including 

at least $32,000 in contributions “to Ney’s campaign and political . . . 

committees.” James V. Grimaldi & Susan Schmidt, Lawmaker From Ohio 

Subpoenaed in Abramoff Case, WASH. POST (Nov. 5, 2005), 

http://www.washingtonpost.com/wpdyn/content/article/2005/11/04/AR2005110401197.html; FEC Opp’n, Ex. 38, 

Factual Basis for Plea of Robert W. Ney (“Ney Factual Proffer”) ¶ 10(a)(ii), ECF 

No. 26-42; see FEC Opp’n, Ex. 37, Factual Basis for Plea of Jack A. Abramoff

(“Abramoff Factual Proffer”) ¶¶ 20, 22, ECF No. 26-41. On March 20, 2002, 

Ney agreed to “move forward” with the plan to slip into the HAVA an “abstruse” 

sentence drafted by Abramoff’s office that “would magically open the doors to 

the Tigua casino.” ABRAMOFF, supra, at 197–198, 205–06; id. at 198 (referencing 

the abstruse sentence: “Public Law 100-89 is amended by striking section 207 

(101 Stat. 668, 672)”); see also Ney Factual Proffer ¶ 10(a)(ii). Abramoff had the 

Tiguas make “substantial campaign contributions.” Ney Factual Proffer ¶ 9(d) 

(admitting receipt of substantial campaign contributions from Abramoff’s clients 

in exchange for performing official acts). Furthermore, on March 22, 2002, two 
61

days after the agreement, the Tiguas donated another $30,000 to the National

Republic Senatorial Committee (“NRSC”). NRSC Report of Receipts and 

Disbursements at 871, http://docquery.fec.gov/cgi-bin/fecimg/?22020272668 (last 

visited June 28, 2018); see also ABRAMOFF, supra, at 197 (noting a strategy to 

prepare for a “backlash” through a strategy of “Tigua contributions to the 

Republican Party,” which would help “construct a cadre of supporters”). 

According to Abramoff, Senator Christopher Dodd gave his “assent” in mid-April 

2002 to the plan “and a request for a $50,000 contribution to the Democrats in 

Dodd’s name.” ABRAMOFF, supra, at 206; see also id. at 206, 210 (explaining 

that Abramoff’s associate assured Abramoff that he would cover the requested 

contribution “from the budget the Tiguas had provided him,” and that neither of 

them considered that this “‘contribution’ was, in fact, merely a bribe;” according 

to Abramoff, Senator Dodd reneged when he later got “cold feet”). 

70. In his book, Abramoff described his approach to lobbying: 

As a lobbyist, I thought it only natural and right that my clients 

should reward those members who saved them such substantial 

sums with generous contributions. This quid pro quo became one 

of the hallmarks of our lobbying efforts. . . . Since the tribes I 

represented lived and died by what the Congress did to and for them, 

and since they had comparatively unlimited funds, we were in the 

position to deliver millions of dollars in legal political contributions, 

and did. 

ABRAMOFF, supra, at 90; see also McConnell, 251 F. Supp. 2d at 495 (quoting an 

affidavit of the lobbyist Daniel Murray: “I advise my clients as to which federal 

office-holders (or candidates) they should contribute and in what amounts, in 

order to best use the resources they are able to allocate to such efforts to advance 

their legislative agenda. Such plans also would include soft money contributions 
62

to political parties and interest groups associated with political issues.”); id. (“To 

have true political clout, the giving and raising of campaign money for candidates 

and political parties is often critically important.” (quoting lobbyist Wright 

Andrews)).

71. Abramoff also explained:

The regularity with which my staff would return from congressional 

offices with request for funds, on the heels of our asking for help 

should have disturbed me, but it didn’t. It was illegal and wrong, 

but it didn’t register as abnormal in any way. I was so used to 

hearing senator so-and-so wants $25,000 for his charity, or 

representative X wants $50,000 for the Congressional Campaign 

Committee, that I would actually double check with my staff when 

they didn’t request lucre for the legislators. The whole process 

became so perfunctory it actually seemed natural. 

ABRAMOFF, supra, at 206.

V. The LNC’s Major Donor Network

72. “Just like the major parties, the LNC offers its donors membership in various 

major-donor groups that provide ‘certain perks’ and benefits. For example, an 

LNC donor can become a member of the ‘Chairman’s Circle’ for $25,000 

annually or $2,500 monthly, and in return, receive ‘[d]irect contact with [the] 

National Chair, POTUS [President of the United States] nominee, or significant 

L[ibertarian] P[arty] candidate during [the] campaign season.’ Chairman’s Circle 

members also receive ‘VIP Seating . . . with [the] National Chair, LNC officer, 

special guest, or POTUS nominee at [the] National Convention banquet or other 

events.’ The LNC also offers membership in major-donor groups for annual 

donors of $15,000 (‘Select Benefactor’), $5,000 (‘Beacon of Liberty’), $2,500 

(‘Pioneer of Freedom’), or $1,500 (‘Lifetime Founder’). In addition to 
63

predetermined benefits, LNC staff has the ‘discretion to create and bestow 

additional benefits’ upon its major-donor group members.” LNC I, 930 F. Supp. 

2d at 179–80 (citations omitted); see also LNC Policy Manual at 36–38. 

73. “The LNC offers a monthly pledge program in which donors can agree to give a 

recurring monthly contribution to the LNC, and the LNC will automatically 

charge the donor’s credit card or checking account. The monthly pledges 

continue indefinitely until the donor decides to end the donations.” LNC I, 930 F. 

Supp. 2d at 180 (citations omitted).

74. “Members of the LNC’s top five major-donor groups are also granted 

membership in the LNC’s ‘Torch Club,’ which entitles members to attend a 

special Torch Club event at the LNC’s national convention. The Libertarian 

Party’s federal candidates can attend this special event so long as they are also 

Torch Club members, and William Redpath attended the event while serving as 

the LNC’s national chair and running as a Libertarian Party candidate for federal 

office.” LNC I, 930 F. Supp. 2d at 180 (citations omitted); see also LNC Policy 

Manual at 38.

75. “The LNC offers the benefits of major-donor-group membership as an 

inducement to hopefully have people increase their contributions. And the 

inducement has worked, as the groups have been effective in attracting larger 

donations for the LNC. Donations from the relatively small group of donors who 

are members of the LNC’s major-donor groups account for a substantial 

percentage of LNC revenue.” LNC I, F. Supp. 2d at 181 (internal quotations and 

citations omitted).
64

76. “The LNC could potentially grant someone membership in one of its major-donor 

groups, such as the Chairman’s Circle, if the person showed the LNC his or her 

will providing for a bequest large enough to qualify for membership or if the 

person threatened to revoke such a bequest.” Id. at 187 (citation omitted).

77. “If individuals informed the LNC that they intended to leave the LNC a bequest 

upon death, the LNC would be thankful to them for possibly leaving a gift for the 

LNC someday, since the LNC needs more money. And the LNC would be 

grateful to these potential future donors for the possible contributions even though 

the donors could revoke their bequests before death.” Id. (internal quotations 

omitted and citation omitted).

78. “[I]ndividuals have bequeathed very large amounts of money to non-profit 

organizations. For example, in 2005, the National Rifle Association received a $1 

million bequest from a member and donor. And in 2003, philanthropist Joan 

Kroc bequeathed more than $200 million to National Public Radio, an amount 

almost double its then-annual budget.” Id.at 182 (citations omitted). 

79. “Philanthropists recognize that there is potential to raise great sums of money via 

bequests. For example, in 2009, Bill Gates and Warren Buffet started an effort to

convince the 400 wealthiest Americans to pledge ‘at least 50% of their net worth 

to charity during their lifetimes or at death.’” Id. (citation omitted). In 2015, 

Facebook founder Mark Zuckerberg and his wife committed to giving 99% of 

their Facebook shares—then valued at more than $45 billion—to charity during 

their lives. Vindu Goel & Nick Wingfield, Mark Zuckerberg Vows to Donate 

99% of His Facebook Shares for Charity, N.Y. TIMES (Dec. 1, 2015), 
65

https://www.nytimes.com/2015/12/02/technology/mark-zuckerberg-facebookcharity.html.

80. “Many non-profit organizations have sophisticated planned-giving programs that 

solicit bequests and other forms of planned giving, such as the National Rifle 

Association, the Nature Conservancy, the American Civil Liberties Union, and 

the NAACP Legal Defense Fund. Planned-giving consultants advise groups 

looking to increase their fundraising on how to more effectively solicit bequests.” 

LNC I, F. Supp. 2d at 182–83 (citations omitted). 

81. “Political parties are ‘primarily concerned with electing their candidates’ to 

office.” Id. at 178 (quoting McConnell, 251 F. Supp. 2d at 469 (Kollar-Kotelly, 

J.)). “They have no economic interests apart from this ultimate goal, and thus ‘the 

money they raise is spent assisting their candidates’ campaigns.’” Id. (quoting 

McConnell, 251 F. Supp. 2d at 469−70 (Kollar-Kotelly, J.)). As a former member 

of Congress explained: 

The ultimate goal of a political party such as the Democratic Party 

is to get as many Party members as possible into elective office, and 

in doing so to increase voting and Party activity by average Party 

members. The Party does this by developing principles on public 

policy matters the Party stands for, and then by finding candidates 

to run for the various political offices who represent those principles 

for the Party. When the Party finds its candidates, it tries to raise 

money to help get like-minded people to participate in the elections, 

and to try to get the Party’s candidates the resources they need to get 

their message out to voters.

Id. at 178–79.

82. “Similarly, it is the LNC’s mission to move public policy in a Libertarian 

direction by . . . nominating candidates for political office that are Libertarian and 

trying to get them elected. It is the LNC’s goal to have a Libertarian president 
66

and a Libertarian Congress and Libertarians elected to governorships and state 

general assemblies, state legislatures. As the LNC told a donor in 2003, the LNC 

is in the business of winning elections and the donor’s gift goes towards making 

that happen.” LNC I, 530 F. Supp. 2d at 179 (internal quotations and citations 

omitted).

83. “The LNC spends the bulk of its resources on obtaining access to the ballot for its 

candidates. Obtaining ballot access is probably the most important thing the 

[LNC] does, since the LNC’s role in this electoral system is to field as many 

candidates . . . as possible for federal and state and local offices[.]” Id. (internal 

quotations and citations omitted). “Thus, the LNC funds petition drives for the 

party’s federal candidates and works closely with its presidential candidate’s 

campaign on ballot-access issues.” Id. (citations omitted).

84. “In order to receive financial support from the LNC, Libertarian Party candidates 

must be certified as Libertarian candidates by the governing board of the party in 

their state and must not support any Presidential ticket other than the Libertarian 

Party’s presidential ticket. The LNC has the power to take the Libertarian Party 

nomination away from a presidential ticket that fails to conduct its campaign in 

accordance with the party’s platform.” LNC I, 930 F. Supp. 2d at 179 (citations 

omitted); see also LNC Policy Manual at 43.

85. “Individuals have bequeathed contributions directly to federal candidates and 

their authorized political committees.” LNC I, 930 F. Supp. 2d at 190 (citation 

omitted). “Such contributions are subject to FECA’s limit on contributions to 
67

‘any candidate and his authorized political committees.’” Id. (quoting 52 U.S.C. 

§ 30116(a)(1)(A)).

86. For example, the Estate of Louise Welch made a $2,600 contribution to Yarmuth 

for Congress in 2013. Clark Decl., Ex. B, FEC Form 3X, ECF No. 24-22. In 

2007, the Estate of Shirley Bogs made a $2,100 contribution to Kucinich for 

President 2008. Clark Decl. ¶ 15, tbl.6. And in 2006, the Estate of William G. 

Helis made a $2,100 contribution to Committee to Re-Elect Bobby Jindal. Id.

87. “Before BCRA banned soft-money donations to national party committees in 

2002, the committees could accept the full amount of a bequest from an estate so 

long as the committees designated the amount in excess of FECA’s contribution 

limit as soft money—that is, funds purportedly to be used for non-federal-election 

purposes.” LNC I, 930 F. Supp. 2d at 183.

88. “As a result, when soft-money donations to national party committees were legal, 

estates were able to donate the entire amount of a large bequest in one lump sum. 

For example, in 2002, the Estate of Martha Huges donated $390,000 from a 

bequest to the DNC. In 1999, the Estate of Lola Cameron donated $141,988 from 

a bequest to the RNC. In 1997, the Estate of Gwendolyn Williams donated 

$133,829 from a bequest to the DNC. And in 2002, the Estate of Joan Shepard 

donated $80,000 to the RNC.” Id. at 183 (citations omitted).

VI. The Specialized Purpose Regime’s Impact on the LNC

89. “The Libertarian Party’s ability to influence elections is in some measure related 

to its ability to raise and expend money.” Sarwark Decl. ¶ 53. “The LNC needs, 

and would prefer, to spend its funds in order to directly speak to the electorate 
68

about its ideology and political mission, to support its candidates, and to build its 

institutional capability, including its ability to regularly qualify for the ballot in 

various states.” Id.

90. “LNC’s ability to solicit donations depends in part on having adequate financial 

resources on hand.” Id. at ¶ 54. “Donors, voters, and prospective political 

candidates who might be attracted to the party’s ideology are nonetheless 

dissuaded from supporting the party by its lack of resources.” Id.

91. Absent the annual contribution limit, the LNC would utilize donations exceeding 

such limit for political expression, including improving the party’s access to 

ballots, promoting awareness of the party and its ideology, and supporting 

candidates for state and federal office. Id. ¶ 56.

92. “The LNC is confident that it could identify and develop additional donors who 

would give beyond the base annual contribution limit (currently $33,900), but 

refrain from doing so because it is illegal to give larger amounts without 

restriction and they do not perceive sufficient value in donations that carry the 

government’s purpose restrictions.” Id. ¶ 58. “The LNC would also be better 

able to attract larger testamentary bequests if the donors would know that a larger 

portion of their bequest would be immediately effective.” Id.

VII. Testamentary Contributions

93. “[I]t is possible for a bequest to raise valid anti-corruption concerns,” as the LNC 

has “concede[d].” LNC I, 930 F. Supp. 2d at 166.

94. As a general matter, nothing prevents a living person from informing the 

beneficiary of a planned bequest about that bequest. FEC’s Proposed Facts at 8. 
69

95. In the past, “associates of a decedent who has left a bequest for a national party 

committee [have] inform[ed] specific federal officeholders or candidates of the 

bequest.” LNC I, 930 F. Supp. 2d at 188. “In 2009, an attorney representing the 

co-trustees of a trust holding a bequest of over $100,000 for the Democratic Party 

wrote a letter to United States Senator Frank Lautenberg informing him of the 

bequest.” Id. “The attorney stated that his ‘good friend and accountant’ who ‘had 

interactions with [the Senator] in his role as a director of Holy Name Hospital’ 

suggested that he alert the Senator to the bequest.” Id. at 189 (alteration in 

original) (citations omitted). “The attorney sent Senator Lautenberg a copy of the 

trust documents and in doing so highlighted the fact that the bequest was for more 

than $100,000.” Id.

96. “In April 2009, the LNC learned that it was to receive a $10,000 bequest from the 

estate of James Kelleher.” Id. “Upon learning of the bequest in an e-mail, the 

LNC’s then-national chair asked, ‘Whom do we thank?,’ even though Kelleher 

was deceased.” Id. (citations omitted). “According to the LNC, in the case of a 

bequest it ‘would be reasonable to thank anybody who was helping to [e]ffect the 

donation’ to the LNC, including ‘[p]ossibly the executor. Possibly the estate 

administrator or the estate attorney.’” Id. (alterations in original) (citations 

omitted). “As the LNC sees it, ‘[s]omebody is doing something to give $10,000 

to the [LNC], even if a penny is not coming out of their pocket, it is not 

inappropriate and mighty inexpensive to say thank you.’” Id. (alterations in 

original) (citations omitted). “For the Kelleher bequest, the LNC's director of 
70

operations directed a colleague to send a thank you note to the executor of the 

Kelleher estate.” Id. (citations omitted). 

97. The LNC has been informed by living persons that those persons planned to make 

large bequests to the LNC. Those persons include Michael Chastain (value of 

bequest estimated to be between $500,000 and $1,000,000) and Dominick Frollini 

(value of bequest estimated to be between $25,000 and $75,000). Chastain Decl. 

¶ 8; Def.’s Opp’n, Ex. 12, Frollini LNC Estate Planning Email, ECF No. 26-16. 

98. Another living person, William Redpath, has informed the LNC that he would 

leave a large bequest, with a value estimated at $1.1 million, to fund a trust 

charged with furthering ballot access and electoral reform, but that he would 

prefer to leave an unrestricted contribution if it would not be subject to the current 

FECA contribution limits. Redpath Decl. ¶¶ 3–5.

99. “If a national party committee discovered that an individual planned to bequeath it 

a contribution or donation, the national party committee, its candidates, or 

officeholders could, in exchange, grant that individual political favors.” LNC I, 

930 F. Supp. 2d at 186. “A bequest may also help friends or family of the 

deceased in securing meetings with federal officeholders and candidates.” Id. at 

166.

100.“An individual can revoke a request before death, and . . . this possibility creates 

an incentive for a national party committee to limit the risk that a planned bequest 

will be revoked.” Id. at 186. “An individual’s revocable promise to bequeath a 

contribution” in the future “could cause that political party, its candidates, or its 

office holders to grant political favors to the individual in the hopes of preventing 
71

the individual from revoking his or her promise.” FEC’s Proposed Facts at 7. 

Political committees “could feel pressure to . . . ensure that a (potential) donor is 

happy with the committee’s actions lest [that donor] revoke the bequest.” LNC I, 

930 F. Supp. 2d at 167.

101.“A living person may alter his or her estate planning documents at any time 

before death for any reason, including that a candidate, office holder, or political 

party votes or takes a political position contrary to the person’s wishes.” FEC’s 

Proposed Facts at 8. 

102.Estates have contributed more than $3.7 million in bequeathed funds to recipients 

that must file reports with the FEC, according to FEC records dating from 1978 

through August 2, 2017. Clark Decl. ¶¶ 1–4. The actual amount of bequeathed 

funds is likely even higher, because reporting entities are not required to inform 

the FEC that a particular contribution they received came from a bequest, and if 

they choose to do so anyway, they are not required to report this information in 

any standardized manner. Id. ¶ 5. For example, the LNC’s disclosures regarding 

the Shaber bequest at issue in this litigation do not indicate that the contributions 

are the result of a bequest. Id. “As a result, Shaber’s bequest to the LNC is not 

reflected in the totals described above.” Id. Bequests, therefore, are likely 

underreported to the FEC. See id.

103.National political party committees have reported bequeathed contributions that 

exceeded the General Party Limit. Clark Decl. ¶ 6 & tbl.1. For example, the 

Democratic Congressional Campaign Committee (“DCCC”) received 

$206,955.46 between 2014 and 2016 in bequeathed contributions from Robert 
72

Bohna. Id. at tbl.1. The DCCC “accepted $167,992.06 of the total bequest on 

December 31, 2014, with $32,400 of that amount going to the DCCC’s general 

account, and the remainder going to the type of segregated accounts described in 

52 U.S.C. § 30116(a)(9): $38,392.06 of the contribution went into the DCCC’s 

building fund, and $97,200 went to the DCCC’s recount fund.” Id. ¶ 7. “In 2015, 

the DCCC accepted an additional $32,400 of the bequest into its general fund.” 

Id. “In 2016, the DCCC accepted an additional $6,563.40 into its general fund.” 

Id.

104.“On January 13, 2017, the [RNC] accepted a total of $100,000 from the Estate of 

Richard Peter Belden by accepting $33,400 into its general account and $66,600 

into its headquarters account.” Clark Decl. ¶ 8.

105.“The [DNC] accepted $32,400 from the Ronald L. Gabriel Trust in 2013 and 

again in 2014.” Clark Decl. ¶ 9. “In 2015, DNC accepted $45,243.96 from the 

same trust by accepting $32,400 into its general account and an additional 

$12,843.96 into its convention account.” Id.

106.The “DNC also accepted $50,000 from the Sarah Weatherbee Trust on April 4, 

2015, with $33,400 of that amount going to the DNC’s general account and 

$16,600 going to its convention account.” Id. ¶ 10. “The next year, DNC 

accepted an additional $9,723.30 into its convention account.” Id.

107.The “LNC accepted $30,800 from the Estate of Raymond Groves Burrington in 

2012 and again 2013. In 2014, the LNC accepted $15,744.75 from the same 

estate.” Id. ¶ 11.
73

108.In 2010, the trustee of a trust holding a $200,000 bequest to the DNC wrote a 

letter to the then-chair of the DNC stating:

Due to the fact that mid-term elections are upon us, I [am] working 

to get this [contribution from the decedent’s bequest] out to you as 

quickly as possible. I know it would be important to my friend, 

Michael Buckley, who we called “Buckley.” Of course I cannot 

speak with him, as he is deceased, but both of us were kindred spirits 

with regard to our political views and had many, many discussions

on politics. As you can see by the fact that he left the [DNC] 25% 

of his estate, it was a very important thing to him. While I believe 

he would want you to use the money in the way you think best, it is 

my heartfelt belief that he would want this year’s money going 

towards defeating Carly Fiorina and Meg Whitman in California. 

Buckley was a former employee of Hewlett Packard under the reigns 

of Carly Fiorina and he was not silent with regard to how he felt 

about her. I think he would be actively campaigning against her and 

Meg Whitman, if he were alive today.

LNC I, 930 F. Supp. 2d at 188 (alteration in the original) (citation omitted). “The 

trustee then asked the DNC to let her know if the money would in fact be used to 

help defeat Fiorina and Whitman, because the decedent’s ‘friends would be 

pleased to know.’” Id.

VIII. Joseph Shaber’s Bequest

109.Between 1988 and 2011, Joseph Shaber made donations to the LNC in amounts 

ranging from $10 to $300. Pet.’s Mot. Cert., Ex. E, Joseph Shaber Gift History, 

ECF 24-7. The most that Mr. Shaber donated to the LNC at any time during that 

period was $300 in March 1997. Id. Between June 2011 and November 2012, 

Shaber donated $100 per month to the LNC. Id. In May 2012, he donated an 

additional $100. Id.

110.In total, Mr. Shaber made 46 donations totaling $3,315 to the LNC. Id.

111.Mr. Shaber’s contributions to the LNC made him eligible to be a life member of 

the LNC in 2012. Sarwark Dep. at 78:12–18.
74

112.“On May 20, 2013, LNC sent Joseph Shaber an invitation to attend a VIP 

reception to be held on July 12, 2013, to raise money for the David F. Nolan 

Building Fund.” Def.’s Opp’n, Ex. 5, Joint Stipulation ¶ 3, ECF No. 26-9; see 

also Def.’s Opp’n, Ex. 14, LNC Invitation, ECF No. 26-18. This event was held 

in conjunction with FreedomFest, a large, annual convention for conservatives 

and libertarians. See Sarwark Dep. at 81:11−19; LNC Invitation at 3. The LNC 

typically participates in FreedomFest by having a table at the event and 

organizing breakout sessions to attempt to recruit and solicit donors. Sarwark 

Dep. at 82:1–10. Libertarian candidates frequently attend the event. Id. at 82:11–

13.

113.Mr. Shaber was included on LNC in-house mailing lists, Def.’s Opp’n, Ex. 3, 

Pet.’s Resps. Def.’s Interrogatories at 1, ECF No. 26-7, to which the LNC sends 

communications soliciting contributions, Sarwark Dep. at 17:7–21, 70:14–73:12. 

Mr. Shaber responded to some of these solicitations with contributions to the 

LNC. See Joseph Shaber Gift History.

114.By April 2012, Mr. Shaber had contributed $750 to Ron Paul’s campaign in the 

Republican presidential primary. See Def.’s Opp’n, Ex. 21, Shaber Contribution 

Receipt, ECF No. 26-25. Although Ron Paul was then running for the Republican 

nomination, he later switched to the Libertarian Party after leaving federal office. 

LNC I, 930 F. Supp. 2d at 173.

115.Without the LNC’s knowledge, the LNC was made a beneficiary of the Joseph 

Shaber Revocable Trust under a trust dated February 11, 2010. Sarwark Decl. ¶ 

35.
75

116.The size of Mr. Shaber’s gift to the LNC was contingent upon a variety of factors, 

including the value of Mr. Shaber’s property and whether he would have 

grandchildren at the time of his passing. See Pet.’s Mot. Cert., Ex. G, Notice of 

Irrevocable Trust, ECF No. 24-9.

117.Mr. Shaber died on August 23, 2014, rendering the trust irrevocable. Id.; Pet.’s 

Mot. Cert., Ex. F, Escrow Agreement at 1, ECF No. 24-8; Pet,’s Mot. Cert., Ex. 

H, FEC Advisory Opinion 2015-05, ECF No. 24-10.

118.Mr. Shaber’s death prevents him from engaging in political expression, 

association, or support. Def.’s First Objections & Resps. at 4; Sarwark Decl. ¶ 

43.

119.The LNC first had access to money from Shaber’s bequest in 2015, and took the 

maximum $33,400 allowed for unrestricted purposes, in compliance with the 

FECA’s general purpose limit, in February of that year. Decl. of Robert Kraus, 

Operations Director, LNC (“Kraus Decl.”) ¶¶ 2, 4, ECF No. 12-4; FEC Advisory 

Opinion 2015-05 at 1–2.

120.By the terms of the trust, the LNC was named as the specific beneficiary of a 

$50,000 monetary gift, plus a residual beneficiary of 25% of the remaining trust 

estate after specific distributions were made. Notice of Irrevocable Trust at 4–5. 

The LNC was also a contingent beneficiary of an additional 25% of the residue of 

Mr. Shaber’s trust estate, which it would receive if Mr. Shaber died with no 

grandchildren. Id. Mr. Shaber did not have any grandchildren at the time of his 

death. Def.’s Opp’n, Ex. 29, Email from Michelle Lauer to William Hall at 1, 

ECF No. 26-33.
76

121.It was finally determined in September 2015, that The LNC’s share of the Shaber 

trust was $235,575.20. Escrow Agreement at 1.24

122.The LNC had sent Mr. Shaber a fundraising appeal related directly to its 

headquarters building. Sarwark Decl. ¶ 36.

123.Mr. Shaber specified that the LNC should take his bequest “outright.” Notice of 

Irrevocable Trust at 5.

124.The FEC is unaware of any condition or limitation attached by Mr. Shaber to his 

bequest to the LNC. Def.’s First Objections & Resps. at 5. 

125.The FEC is unaware at this time of any quid pro quo arrangement related to Mr.

Shaber’s bequest to the LNC. Def.’s First Objections & Resps. at 3.

126.The Trustee of Shaber’s Trust could not impose restrictions on Mr. Shaber’s 

bequest that Mr. Shaber did not himself place. FEC Advisory Opinion 2015-05 at 

2.25

127.The LNC would accept and spend the entire amount of the Shaber bequest for its 

general expressive purposes, including expression in aid of its federal election 

efforts. Sarwark Decl. ¶ 38.

128.On September 15, 2015, the Trust and the LNC agreed to deposit the remaining 

$202,175.20 due to the LNC into an escrow account. Def.’s Opp’n, Ex. 27, 

Escrow Agreement at 10, ECF No. 26-31. The escrow agent, First International 

Bank & Trust, has control over the annual distributions to the LNC in amounts 

 

24 Other aspects of the record suggest that the LNC’s share of the Shaber trust was $225,000. See FEC 

Advisory Opinion 2015-05 at 1–2. The parties seem to agree that the LNC’s share of the trust was $235,575.20, 

however, see Def.’s Resps. Pet.’s Proposed Facts at 33, and thus the Court so finds.

25 The FEC Advisory Opinion notes that “[t]he request [for an advisory opinion] states that Ms. Shaber, as 

trustee, has no power to require that the [LNC] accept its share in a way not required by the Settlor,” though does 

not present this assertion as a fact. FEC Advisory Opinion 2015-05 at 2 (alterations omitted).
77

equal to the limitations of federal campaign finance law, 52 U.S.C § 

30116(a)(1)(B). Id. at 1. The Escrow Agreement instructs the Escrow Agent to 

invest the funds in the escrow account in bank accounts or certificates of deposit, 

with all interest accruing to the benefit of the national Libertarian Party, and to 

annually disburse the funds to LP at the maximum allowed permitted by 

contribution limits. Id.; Sarwark Dep. at 93:15-19. The agreement explicitly 

provides that LP may challenge the legal validity of the contribution limit, and 

demand payment of the full amount remaining in the account should its challenge 

succeed. Escrow Agreement at 2.

129.To LNC’s knowledge, neither Mr. Shaber nor anyone related to him or acting on 

his behalf has had any relationship with the LNC, its officers, board members, or 

candidates, apart from Mr. Shaber’s contribution history. Sarwark Decl. ¶ 41.

130.The LNC received a contribution of $33,400 on behalf of Mr. Shaber from the 

escrow account on January 29, 2016. Def.’s Opp’n, Ex. 19, 2016 Itemized 

Receipts, ECF No. 26-23.

131.The LNC has also received its maximum contribution from the Shaber trust for 

2017. Def.’s Opp’n, Ex. 18, 2017 Itemized Receipts, ECF No. 26-22.

132.The LNC is prohibited from pledging, assigning, or otherwise obligating the 

anticipated contributions before they are disbursed. FEC Advisory Opinion 2015-

05 at 4 n.5 (citing FEC Advisory Opinion 2004-02).

133.Aside from pursuing its ideological and political mission, the LNC has provided 

nothing of value to Mr. Shaber, or to anyone else, in exchange for his bequest to 

the LNC. Sarwark Decl. ¶ 42.
78

134.Upon learning of the Shaber bequest, the LNC removed Mr. Shaber from the 

membership rolls. Sarwark Decl. ¶ 44.

IX. Other Potential Donors To The LNC

135.The LNC solicits potential contributors to include the LNC as a beneficiary in 

donors’ estate planning materials. See Def.’s Opp’n, Ex. 25, LNC Legacy 

Libertarians Email, ECF No. 26-29. On March 27, 2017, the LNC sent an email 

to 140,322 people on its contact list informing them that the party had started a 

planned giving program for people who want to designate the Libertarian Party as 

a beneficiary in their will. Pet.’s Resps. Def.’s Interrogatories at 4. The email 

noted that the “Libertarian Party will honor these generous supporters by listing 

their names on a permanent plaque at our headquarters.” Id.

136.In response to this email, Nick Frollini wrote to the LNC to explain that he had 

designated the LNC as a beneficiary in his will and that he estimated his bequest 

would be worth “between $25,000 and $75,000 at the time of [his] passing.” 

Frollini LNC Estate Planning Email at 1. The LNC’s Head of Development, 

Lauren Daugherty, responded to the email with an invitation to have dinner with 

the LNC’s national chair. Id. Frollini did not ultimately attend the dinner. 

Sarwark Dep. at 68:2−4.

137.“If contribution limits did not apply to bequests, the LNC would increase its 

outreach about its planned giving program to its members who have a high 

capacity for giving.” Pet.’s Resps. Def.’s Interrogatories at 4. “Planned giving 

would take a more prominent place in the LNC’s donor cultivation via in person 

meetings, online correspondence, and traditional mail.” Id.
79

138.“Among the donations that the LNC would solicit and accept in excess of the base 

annual contribution limit (currently $33,900) would be donations from donors 

who have already given the base annual contribution limit but stand ready to give 

more for unrestricted purposes if it were legal to do so, including Chris Rufer, 

Michael Chastain, the Shaber escrow, the forthcoming Clinard escrow, and, at 

some point, the Redpath and Chastain estates.” Sarwark Decl. ¶ 57.

a. Chris Rufer

139.Chris Rufer is a Libertarian who desires “to maximize the ideals of the Libertarian 

Party and to see them implemented through political action.” Rufer Decl. ¶ 1.

140.Rufer believes that “the Libertarian Party is the only organization that seeks to 

directly participate in and control the government, with the aim of steering its 

functions according to libertarian principles.” Id. ¶ 1. Therefore, he “regularly 

donate[s] money to the [LNC], and to Libertarian candidates.” Id. In 2016 alone, 

Rufer “donated over $900,000 to directly support the election of the LNC’s 

candidates.” Id.

141.Rufer “trust[s] the LNC to effectively spend funds advancing its mission, which 

[he] support[s].” Id. ¶ 2. He wishes to “maximize LNC’s unrestrained ability to 

advocate its message, and further [his] participation in the LNC’s mission, by 

donating as much as [he is] comfortably able to the LNC to be spent freely in the 

LNC’s judgment.” Id. “The government’s contribution limitations are below the 

amount [Rufer] would freely give the LNC this year, and in future years, to be 

spent as the LNC sees fit.” Id.
80

142.Rufer says he wishes “to donate money to the [LNC] to advance its mission, not 

to obtain access to or the gratitude of any candidates or officeholders.” Id. ¶ 3. 

Rufer has “no expectation of receiving any special access to candidates or 

officeholders if [he] were to donate over $33,900 to the [LNC] in any given year, 

to be spent for a particular purpose or without restriction.” Id.

143.Rufer has “donated over $280,000 directly to the LNC over the years, including 

the maximum amounts allowed by law for unrestricted purposes this year, and in 

2012, 2013, and 2016.” Id. ¶ 4. 

144.Rufer “understand[s] that the government now allows [him] to donate up to 

$339,000 to the LNC per year, but not if the money would be spent as the LNC 

wishes.” Id. ¶ 5. “Any additional money [Rufer] would donate this year beyond 

the $33,900 he has already donated would come with government-imposed 

strings.” Id. Accordingly, Rufer is “not giving the LNC any additional money for 

the year.” Id.

145.Rufer does “not want any part of [his] contribution this year restricted to spending 

on a headquarters building, fees for election contests and other legal proceedings, 

and presidential nominating conventions.” Id. Rufer does “not believe that the 

LNC has much use for those spending purposes this year, and any money spent 

for those purposes may not communicate the same messages that the LNC would 

otherwise communicate with [his] donation.” Id.

146.Rufer “would donate funds to the [LNC] in excess of the annual contribution 

limits for general, non-segregated purposes and the party’s spending for 

segregated account purposes, this year and . . . in future years, but refrain[s] from 
81

doing so owing to the contribution limits and restrictions imposed by the 

government.” Id. ¶ 6. Rufer understands that he “face[s] a real threat of 

prosecution if [he] were to violate the federal laws restricting [his] ability to 

donate money to the [LNC], and [he is] not willing to risk prosecution.” Id.

147.“If it is determined that the [LNC] is not subject to the limitation for general, 

non-segregated purposes, currently $33,900 per year, such that donations 

exceeding that amount per year need not be dedicated to the segregated purpose 

accounts, [Rufer] would expect to donate to the Libertarian National Committee 

in excess of that amount, this year and in future years.” Id. ¶ 7.

b. Michael Chastain

148.Michael Chastain is a Libertarian who “desire[s] to maximize the ideals of the 

Libertarian Party and see them implemented through political action.” Chastain 

Decl. ¶ 1.

149.Chastain believes that the “Libertarian Party is the only organization that seeks to 

directly participate in and control the government, with the aim of steering its 

functions according to libertarian principles.” Id. ¶ 1. Therefore, Chastain 

“regularly donate[s] money to the [LNC] and to Libertarian candidates.” Id.

150.Chastain “trust[s] the LNC to effectively spend funds advancing its mission, 

which [he] support[s].” Id. ¶ 2. He “wish[es] to maximize LNC’s unrestrained 

ability to advocate its message, and further [his] participation in the LNC’s 

mission, by donating as much as [he is] comfortably able to the LNC to be spent 

freely in the LNC’s judgment.” Id. “The government’s contribution limitations 
82

are below the amount [Chastain] would freely give the LNC this year, and in 

future years, to be spent as the LNC sees fit.” Id.

151.Chastain “wish[es] to donate money to the [LNC] to advance its mission, not to 

obtain access to or the gratitude of any candidates or officeholders.” Id. ¶ 3. 

Chastain has “no expectation of receiving any special access to candidates or 

officeholders if [he] were to donate over $33,900 to the [LNC] in any given year, 

to be spent for a particular purpose or without restriction.” Id.

152.“Thus far in 2017, [Chastain has] donated a total of $60,310.01 to the [LNC].” 

Id. ¶ 4. Chastain has “donated the maximum $33,900 in unrestricted funds, and 

an additional $26,410.01 to the building fund.” Id.

153.Chastain “understand[s] that the government now allows him to donate up to 

$339,000 to the LNC per year, but not if the money would be spent as the LNC 

wishes.” Id. ¶ 5. “Any additional money [Chastain] would donate this year 

beyond the $33,900 he has already donated for unrestricted purposes would come 

with government-imposed strings.” Id. Accordingly, Chastain is “not giving the 

LNC any additional money for the year.” Id.

154.Chastain does “not want any additional part of his contribution this year restricted 

to spending on a headquarters building, fees for election contests and other legal 

proceedings, and presidential nominating conventions.” Id. Chastain does “not 

believe that the LNC has much use for those spending purposes this year, and any 

money spent for those purposes may not communicate the same messages that the 

LNC would otherwise communicate with [his] donation.” Id.
83

155.Chastain “would donate funds to the [LNC] in excess of the annual contribution 

limits for general, non-segregated purposes and the party’s spending for 

segregated account purposes, this year and in future years, but refrain[s] from 

doing so owing to the contribution limits and restrictions imposed by the 

government.” Id. ¶ 6. Chastain “understand[s] that he face[s] a real threat of 

prosecution if [he] were to violate the federal laws restricting [his] ability to 

donate money to the [LNC], and [he is] not willing to risk prosecution.” Id.

156.“If it is determined that the [LNC]is not subject to the limitation for general, nonsegregated purposes, currently $33,900 per year, such that donations exceeding 

that amount per year need not be dedicated to the segregated purpose accounts, 

[Chastain] would donate to the [LNC] in excess of that amount, this year and in 

future years. Id. ¶ 7.

157.Chastain is “in the process of revising [his] estate plan,” and “plan[s] to make the 

LNC a contingent beneficiary in the amount of $500,000-$1,000,000.” Id. ¶ 8.

158.Chastain “would not want the government to impose any strings on how the LNC 

would spend [his] bequest.” Id. Chastain “would not want any part of his bequest 

to LNC restricted to spending on a headquarters building, fees for election 

contests and other legal proceedings, and presidential nominating conventions.” 

Id. Chastain “would want the LNC to have [his] bequest entirely without 

restriction.” Id.

159.Chastain “would not bequeath money to LNC in an attempt to remain affiliated 

with the party after [he is] dead.” Id. ¶ 9. “The party does not have deceased 

members.” Id.
84

160.Chastain has “no idea who would be running as a Libertarian Party candidate for 

any office at the time [his] estate would disburse his assets to the Libertarian 

Party.” Id. ¶ 10. Chastain “cannot predict who will run for office under the 

Libertarian banner in the future, and [he] hope[s] and expects to live beyond the 

time through which the party’s candidates, and the likely issues they would 

espouse, may be currently foreseen.” Id.

161.Chastain has “not received any sort of benefit whatsoever for promising to 

remember the Libertarian Party in [his] will should the contribution limits 

change.” Id. ¶ 11. “The Party does not offer any benefits in exchange for being 

remembered in an individual’s will, apart from perhaps a simple expression of 

gratitude.” Id.

c. William Redpath

162.William Redpath is “currently an at-large member of the [LNC].” Redpath Decl. 

¶ 1. He has “served as the Treasurer of the Libertarian Party three times, and 

served as the National Chair of the Libertarian Party from July, 2006 through 

May, 2010.” Id. He has also repeatedly “run for public office as a Libertarian.” 

Id.

163.Redpath is a Libertarian who “desire[s] to maximize the ideals of the Libertarian 

Party and see them implemented through political action.” Id. ¶ 2. Redpath 

believes that “the Libertarian Party is the only organization that seeks to directly 

participate in and control the government, with the aim of steering its functions 

according to libertarian principles.” Id. “Therefore, [Redpath] regularly 
85

donate[s] money to the [LNC] and to Libertarian candidates.” Id. “Apart from 

[his] time, over the years, [he has] contributed over $100,000 to the LNC.” Id.

164.Redpath’s “last will and testament provides that upon [his] death, 40% of his 

estate—a portion of his anticipated estate that is currently valued at over $1.1 

million—would fund a trust charged with furthering ballot access and electoral 

reform to benefit the Libertarian Party.” Id. ¶ 3.

165.Redpath “would prefer, however, to leave this seven-figure amount to the LNC as 

an unrestricted bequest.” Id. ¶ 4. Redpath “would want [his] death to give 

expression to the LNC cause that [he has] so steadfastly endorsed and advocated 

throughout [his] life, and to assist in the LNC’s expression of its ideals and 

political program.” Id. Redpath “trust[s] the LNC to effectively use [his] bequest 

for these expressive purposes, and want[s] to maximize the LNC’s expression by 

seeing that [his] bequest is given to the LNC without restriction.” Id.

166.“But for the current contribution limits, which limit the purposes for which the 

LNC could spend [Redpath’s] bequest, [Redpath] would immediately alter [his] 

last will and testament to replace the current ballot access and electoral reform 

trust with an unrestricted donation of that same 40% of [his] estate to the LNC.” 

Id. ¶ 5. Redpath “do[es] not want any part of his bequest restricted to spending on 

a headquarters building, fees for election contests and other legal proceedings, 

and presidential nominating conventions, and [he] will not leave a sizable gift to 

the LNC so long as these strings are attached to the LNC’s ability to access [his]

gift.” Id. Redpath “do[es] not believe that the LNC has much use for those 

spending purposes in any given year, and any money spent for those purposes 
86

may not communicate the same messages that the LNC might otherwise 

communicate with [his] donation.” Id.

167.Redpath “would not bequeath money to LNC in an attempt to remain affiliated 

with the party after he is dead.” Id. ¶ 6. “The party does not have deceased 

members.” Id.

168.Redpath has “no idea who would be running as a Libertarian Party candidate for 

any office at the time his estate would disburse assets to the Libertarian Party.” 

Id. ¶ 7. Redpath “cannot predict who will run for office under the Libertarian 

banner in the future, and [he] hope[s] and expect[s] to live beyond the time 

through which the party’s candidates, and the likely issues they would espouse, 

may be currently foreseen.” Id.

169.Redpath has “not received any sort of benefit whatsoever for promising to 

remember the Libertarian Party in [his] will should the contribution limits 

change.” Id. ¶ 8. “The Party does not offer any benefits in exchange for being 

remembered in an individual’s will, apart from perhaps a simple expression of 

gratitude.” Id.

d. Frank Welch Clinard, Jr.

170. “LNC has been left a testamentary bequest by one Frank Welch Clinard, Jr. The 

bequest does not specify any use restriction. Sarwark Decl. ¶ 45; see also Pet.’s 

Mot. Cert., Ex. L, Last Will and Testament of Frank Welch Clinard, Jr. at 3–4, 

ECF No. 24-14.

171.Between 1988 and 2008, Clinard had sporadically donated to the LNC, in small 

amounts that totaled $1,625.30 throughout the time period. See Pet.’s Mot. Cert., 
87

Ex. M, Donor Clinard Gift History, ECF No. 24-15. Only three times did his 

donations meet or exceed $100, with the highest donation amounting to $159. 

See id.26

172.“To LNC’s knowledge, neither Clinard nor anyone related to him or acting on his 

behalf has had any relationship with the LNC, its officers, board members, or 

candidates, apart from Clinard’s contribution history.” Sarwark Decl. ¶ 47.

173.Clinard’s bequest to LNC totals $111,863.52. Pet.’s Mot. Cert., Ex. N, Estate of 

Frank W. Clinard, Jr. at 12, ECF No. 24-16.

174.“LNC would accept and spend the entire amount of the Clinard bequest for its 

general expressive purposes, including expression in aid of its federal election 

efforts.” Sarwark Decl. ¶ 48.

175.“LNC is in the process of establishing an escrow account so that it may receive 

the entirety of Clinard’s bequest for general expressive purposes, without 

restriction.” Id. ¶ 49.

176.“Aside from pursuing its ideological and political mission, LNC has provided 

nothing of value to Frank Clinard, or to anyone else, in exchange for his bequest 

to the LNC.” Id. ¶ 50.

177.“Frank Clinard’s death prevents him from engaging in political expression, 

association, or support.” Id. ¶ 51.

178.“The LNC has removed Frank Clinard from its membership rolls on account of 

his death.” Id. ¶ 52.

 

26 The Sarwark Declaration asserts that Clinard donated $1,625.30 to the petitioner between 1996 (rather than 

1988) and 2008. Sarwark Decl. ¶ 46. This appears to be a typographical error, which the parties inadvertently 

repeat, see Def.’s Resps. Pet.’s Proposed Facts at 49, as Exhibit M to the petitioner’s memorandum shows that 

Clinard donated $1,625.30 to the petitioner between 1988 and 2008. See Donor Clinard Gift History.