RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0150p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

TENNESSEE REPUBLICAN PARTY (16-3360); GEORGIA 

REPUBLICAN PARTY and NEW YORK REPUBLICAN 

STATE COMMITTEE (16-3732), 

Petitioners, 

v. 

SECURITIES AND EXCHANGE COMMISSION; MUNICIPAL 

SECURITIES RULEMAKING BOARD, 

Respondents. 

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Nos. 16-3360/3732 

On Petition for Review to the Securities and Exchange Commission; 

No. MSRB-2016-06. 

Argued: May 4, 2017 

Decided and Filed: July 13, 2017 

 Before: DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Jason Torchinsky, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY, Warrenton, 

Virginia, for Petitioners. Daniel Staroselsky, SECURITIES AND EXCHANGE 

COMMISSION, Washington, D.C., for Respondent Securities and Exchange Commission. 

Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Respondent Municipal 

Securities Rulemaking Board. ON BRIEF: Jason Torchinsky, HOLTZMAN VOGEL 

JOSEFIAK TORCHINSKY, Warrenton, Virginia, H. Christopher Bartolomucci, Edmund G. 

LaCour Jr., KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioners. Daniel Staroselsky, 

Jeffrey A. Berger, SECURITIES AND EXCHANGE COMMISSION, Washington, D.C., for 

Respondent Securities and Exchange Commission. Joseph R. Guerra, Eric D. McArthur, 

SIDLEY AUSTIN LLP, Washington, D.C., Michael L. Post, MUNICIPAL SECURITIES 

RULEMAKING BOARD, Washington, D.C., for Respondent Municipal Securities Rulemaking 

>
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 2

Board. Allen Dickerson, CENTER FOR COMPETITIVE POLITICS, Alexandria, Virginia, 

Tara Malloy, THE CAMPAIGN LEGAL CENTER, Washington, D.C., for Amici Curiae. 

_________________ 

OPINION 

_________________ 

 KAREN NELSON MOORE, Circuit Judge. Petitioners, the Tennessee Republican Party, 

the Georgia Republican Party, and the New York Republican State Committee, have challenged 

the legality of amendments to rules (“2016 Amendments”) proposed by Respondent Municipal 

Securities Rulemaking Board (“MSRB”) and that are “deemed to have been approved by 

[Respondent Securities and Exchange] Commission” (“SEC”). 15 U.S.C. § 78s(b)(2)(D) (2012). 

The amendments limit the campaign activities of persons who advise city and state governments 

on issuing municipal securities. Ultimately, however, we do not reach the merits of this case 

because Petitioners have failed to establish that they have standing to challenge these 

amendments. Therefore, we DISMISS the petitions for review of the final rule for lack of 

jurisdiction. We DENY AS MOOT the SEC’s motion to dismiss and DENY AS MOOT the 

MSRB’s motion to be designated as an intervenor. 

I. BACKGROUND 

A. Municipal Securities Terminology 

Because key terms in this case tend to be arcane, we begin with a brief primer on 

municipal securities markets and their participants. Put simply, a municipal security is “[a] bond 

issued by a nonfederal government or governmental unit, such as a state bond to finance local 

improvements.” Municipal Security & Municipal Bond, Black’s Law Dictionary (10th ed. 

2014); see also 15 U.S.C. § 78c(a)(29) (similarly defining municipal security under the 

Exchange Act). On either end of the creation of securities are issuers and dealers. An issuer is 

“any person who issues or proposes to issue any security.”1

 15 U.S.C. § 78c(a)(8); MSRB Rule 

Book Rule G-37(g)(vii), at 271 (Apr. 1, 2017). Those who are “engaged in the business of 

buying and selling securities” for their “own account[s] through a broker or otherwise” are called 

dealers, 15 U.S.C. § 78c(a)(5); municipal securities dealers are those “engaged in the business of 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 3

buying and selling municipal securities for [their] own account[s],” 15 U.S.C. § 78c(a)(30). 

Dealers do not always buy and sell securities on their own, however. They often operate through 

brokers, persons who “engage[] in the business of effecting transactions in securities for the 

account[s] of others.” 15 U.S.C. § 78c(a)(4). Brokers and dealers often operate with the 

assistance of municipal finance professionals, a catchall category of persons loosely defined as 

being associated with brokers and dealers.2 MSRB Rule Book Rule G-37(g)(ii), at 269–70 (Apr. 

1, 2017); see also Blount v. SEC, 61 F.3d 938, 939–40 (D.C. Cir. 1995). 

To aid municipal entities and those “committed by contract or other arrangement to 

support the payment of all or part of the obligations on the municipal securities,” 15 U.S.C. 

§ 78o-4(e)(10), in participating in municipal securities markets, municipal advisors “provide[] 

advice . . . with respect to municipal financial products or the issuance of municipal securities, 

including advice with respect to the structure, timing, terms, and other similar matters concerning 

such financial products or issues.” 15 U.S.C. § 78o-4(e)(4)(A)(i). Municipal advisors also 

solicit business from municipal entities “on behalf of a broker, dealer, municipal securities 

dealer, municipal advisor, or investment adviser . . . that does not control, is not controlled by, or 

is not under common control with the person undertaking such solicitation.” Id. § 78o4(e)(4)(A)(ii), (9). It is possible for an entity to be registered as both a dealer and a municipal 

advisor; these entities are called dealer-municipal advisors. MSRB Rule Book Rule G37(b)(i)(D), at 266 (Apr. 1, 2017). Certain persons associated with municipal advisors, 

analogous to municipal financial professionals, are called municipal advisor professionals.

3

 Id.

Rule G-37(g)(iii), at 270. 

B. The Original Rules 

The municipal securities market is large. As of 1993, around the time when the rules that 

the 2016 Amendments modify first came into effect, the total value of the market was 

$1.2 trillion. Jon B. Jordan, The Regulation of ‘Pay-to-Play’ and the Influence of Political 

Contributions in the Municipal Securities Industry, 1999 Colum. Bus. L. Rev. 489, 493. 

Concerned “that brokers and dealers were engaging in a variety of ethically questionable 

practices in order to secure underwriting contracts,” the MSRB drafted, and the SEC approved, 

several new rules that regulated pay-to-play practices in the municipal securities markets. 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 4

Blount, 61 F.3d at 939; Jordan, supra, at 496–501 (observing that “[t]he initial movement against 

pay-to-play came from the private sector, which was incurring its own expenses, in the form of 

political contributions, to play under the system”). Chief among these regulations was Rule G37. 

Just before the 2016 Amendments came into effect, Rule G-37 was “composed of several 

separate and mutually reinforcing requirements for dealers” and brokers. See Notice of Filing of 

a Proposed Rule Change Consisting of Proposed Amendments to Rule G-37, on Political 

Contributions and Prohibitions on Municipal Securities Business, Rule G-8, on Books and 

Records, Rule G-9, on Preservation of Records, and Forms G-37 and G-37x (“2015 SEC 

Notice”), 80 Fed. Reg. 81710, 81711 (Dec. 23, 2015) (Pet’rs’ App’x at 54) (emphasis added). 

The rule imposed “[l]imitations on business activities that are triggered by the making of certain 

political contributions; limitations on solicitation and coordination of political contributions; and 

disclosure and recordkeeping regarding political contributions and municipal securities 

business.” Id.

Specifically, Rule G-37 prohibited brokers, dealers, and municipal securities dealers from 

“engag[ing] in municipal securities business with an issuer within two years after any 

contribution to an official of such issuer made by . . . the broker, dealer or municipal securities 

dealer; . . . any municipal finance professional associated with such broker, dealer or municipal 

securities dealer; or . . . any political action committee controlled by the broker, dealer or 

municipal securities dealer or by any municipal finance professional.” MSRB Rule Book Rule 

G-37(b)(i), at 269 (July 1, 2016). There was one exception to this prohibition: municipal 

finance professionals could contribute up to $250 per election to an official of an issuer for 

whom they were entitled to vote without triggering the above prohibition. Id. For instance, a 

municipal finance professional associated with a dealer could contribute a maximum of $250 to a 

gubernatorial candidate in their state without affecting the dealer’s ability to engage in municipal 

securities business with that state. 

In addition to prohibiting contributions, Rule G-37 also prohibited the solicitation of 

other persons for contributions and payments.4

 Brokers, dealers, municipal securities dealers, 

and their municipal finance professionals were prohibited from “solicit[ing] any person . . . to 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 5

make any contribution, or [to] coordinate any contributions, to an official of an issuer with which 

the broker, dealer or municipal securities dealer is engaging or is seeking to engage in municipal 

securities business.” Id. Rule G-37(c)(i), at 269 (emphasis added). They were also prohibited 

from “solicit[ing] any person . . . to make any payment, or . . . coordinate any payments, to a 

political party of a state or locality where the broker, dealer or municipal securities dealer is 

engaging or is seeking to engage in municipal securities business.” Id. Rule G-37(c)(ii), at 269 

(emphasis added). 

Finally, Rule G-37 imposed disclosure requirements for brokers, dealers, and municipal 

securities dealers. Id. Rule G-37(e), at 269–71. Rules G-8 and G-9 and Forms G-37 and G-37x 

complemented these disclosure requirements: Rules G-8 and G-9 “specify the books and records 

that must be made and kept current by dealers,” MSRB Reg. Notice 2016-06, at 24 (Feb. 17, 

2016) (Pet’rs’ App’x at 24), and regulated entities submit Forms G-37 and G-37x to comply with 

disclosure requirements, id. at 25 (Pet’rs’ App’x at 25). 

C. The 2016 Amendments 

Although Rule G-37 had historically been limited to dealers and brokers, the Dodd-Frank 

Wall Street Reform and Consumer Protection Act of 2010 expanded the MSRB’s regulatory 

authority to include municipal advisors in addition to brokers and dealers. 2015 SEC Notice, 80 

Fed. Reg. at 81710 (Pet’rs’ App’x at 53); see also 15 U.S.C. §§ 78o-4(a)(5), (b)(2). Granted this 

new authority, the MSRB proposed amendments to Rules G-8, G-9, and G-37 and Forms G-37 

and G-37x (the 2016 Amendments), which were “deemed to have been approved by the 

[Securities and Exchange] Commission.” See MSRB Reg. Notice 2016-06, at 1 n.1 (Feb. 17, 

2016) (quoting 15 U.S.C. § 78s(b)(2)(D)) (Pet’rs’ App’x at 1). The 2016 amendments became 

effective on August 17, 2016.5

 Id. 

The terms of Rule G-37 have essentially remained unchanged following the 2016 

Amendments. The central difference is that Rule G-37 now applies to municipal advisors and 

municipal advisor third-party solicitors in addition to brokers, dealers, and municipal securities 

dealers. Brokers, dealers, and municipal securities dealers are still prohibited from “engag[ing] 

in municipal securities business with a municipal entity within two years after a contribution to 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 6

an official of such municipal entity with dealer selection influence . . . made by the dealer; a 

municipal finance professional of the dealer; or a political action committee controlled by either 

the dealer or a municipal finance professional of the dealer.” MSRB Rule Book Rule G37(b)(i)(A), at 266 (Apr. 1, 2017) (emphasis added). In addition, now, “[n]o municipal advisor 

(excluding a municipal advisor third-party solicitor) shall engage in municipal advisory business

with a municipal entity within two years after a contribution to an official of such municipal 

entity with municipal advisor selection influence . . . made by the municipal advisor; a municipal 

advisor professional of the municipal advisor; or a political action committee controlled by either 

the municipal advisor or a municipal advisor professional of the municipal advisor.” Id. Rule G37(b)(i)(B), at 266 (emphasis added). A similar rule also applies to municipal advisor third-party 

solicitors. See id. Rule G-37(b)(i)(C), at 266. 

Consistent with the old rule, municipal finance professionals may contribute up to 

$250 to an official of a municipal entity for whom they are entitled to vote without triggering the 

two-year ban on municipal securities business for any associated brokers, dealers, and municipal 

securities dealers. Id. Rule G-37(b)(ii)(A), at 267. And now, municipal advisor professionals

may contribute up to $250 per election to an official of a municipal entity for whom they are 

entitled to vote without triggering the two-year ban on municipal advisory business for any 

associated municipal advisors. Id.

Following the 2016 Amendments, Rule G-37 also contains the same prohibitions on 

solicitation for contributions and payments: “No dealer or municipal finance professional of the 

dealer shall solicit any person . . . or political action committee to make any contribution, or 

coordinate any contributions, to an official of a municipal entity with dealer selection influence 

with which municipal entity the dealer is engaging, or is seeking to engage in municipal 

securities business” and “[n]o dealer, . . . municipal finance representative, . . . dealer solicitor, 

[or] . . . municipal finance principal . . . shall solicit any person . . . or political action committee 

to make any payment, or coordinate any payments, to a political party of a state or locality where 

the dealer . . . is engaging, or is seeking to engage in municipal securities business.”6

 Id. Rule G37(c), at 267. Now, however, these prohibitions extend to municipal advisors, municipal advisor 

professionals, municipal advisor third-party solicitors, and dealer-municipal advisors. See id.
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 7

Finally, the post-amendment versions of Rules G-8, G-9 and G-37 and Forms G-37 and 

G-37x impose nearly identical disclosure requirements as the pre-amendment versions. See id.

Rule G-37(e), at 267–68; 2015 SEC Notice, 80 Fed. Reg. at 81724–25 (Pet’rs’ App’x at 67–68) 

(describing the amendments to Rules G-8 and G-9 and Forms G-37 and G-37x). Like other 

sections of Rule G-37, these rules and forms extend disclosure requirements to “municipal 

advisors and their associated persons.” 2015 SEC Notice, 80 Fed. Reg. at 81724 (Pet’rs’ App’x 

at 67). 

D. The Petitions & Procedural History 

Concerned that the 2016 Amendments were unlawful, the Tennessee Republican Party 

filed a petition for review of the final rule in this court on April 12, 2016. Tenn. Republican 

Party’s Pet. (Pet’rs’ App’x at 80–86). The Georgia Republican Party and the New York 

Republican State Committee filed a nearly identical petition in the Eleventh Circuit on April 13, 

2016. Ga. Republican Party & N.Y. Republican State Comm.’s Pet. (Pet’rs’ App’x at 87–92). 

The Eleventh Circuit transferred the Georgia Republican Party and New York Republican State 

Committee’s petition to this Court, see June 24, 2016 Order, and we subsequently consolidated 

the cases, see July 18, 2016 Order. 

Petitioners attached affidavits of three individuals in support of their petitions: Frederick 

Brent Leatherwood, the executive director of the Tennessee Republican Party, J. Adam Pipkin, 

the executive director of the Georgia Republican Party, and Jason Weingartner, the executive 

director of the New York Republican State Committee. See Leatherwood Aff. (Pet’rs’ App’x at 

304–10); Pipkin Aff. (Pet’rs’ App’x at 311–14); Weingartner Aff. (Pet’rs’ App’x at 315–20). 

Leatherwood and Weingartner claimed that “the Municipal Securities Rulemaking Board’s 

Political Contribution Rule, codified in Rule G-37, . . . limits the ability of municipal securities 

dealers, financial professionals, and now municipal advisors and municipal advisor professionals 

to make political contributions.” Leatherwood Aff. ¶ 6 (Pet’rs’ App’x at 305); Weingartner Aff. 

¶ 5 (Pet’rs’ App’x at 316). Pipkin also claimed that “the MSRB’s Political Contribution Rule” 

harmed his party. See, e.g., Pipkin Aff. ¶ 6 (Pet’rs’ App’x at 312). 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 8

Although the executive directors did not identify persons affected by the 2016 

Amendments in particular, they did identify individuals who were generally affected by “the 

MSRB’s Political Contribution Rule.” Specifically, Leatherwood identified an individual named 

Steve McManus, “a covered associate of a registered investment advisor” who “works for FTB 

Advisors which is a registered broker-dealer with the MSRB.” Leatherwood Aff. ¶ 16 (Pet’rs’ 

App’x at 307–08). Leatherwood claims that “[t]he MSRB’s Political Contribution Rule’s twoyear ban applies to Mr. McManus’s political contributions to officials who have broker dealer 

and/or advisor selection influence,” but that McManus “would contribute more than $250 to a 

covered official in a future election if the MSRB’s Political Contribution Rule no longer applied 

to limit such contributions.” Id. ¶¶ 16–17 (Pet’rs’ App’x at 308). In addition, although 

“McManus has declined to solicit contributions to the Tennessee Republican Party,” he has 

“informed party officials that he would be willing to solicit contributions for the Tennessee 

Republican Party in the future if the MSRB’s Political Contribution Rule no longer applied to 

limit such activities.” Id. ¶¶ 18–19 (Pet’rs’ App’x at 308). The only other individuals identified 

in the record were “three [New York] Republican officeholders who ran for U.S. Congress that 

were hindered by the MSRB’s Political Contribution Rule”: State Senator Jack Martins, Town 

of Gates Supervisor Mark Assini, and State Assemblywoman Claudia Tenney. Weingartner Aff. 

¶ 10 (Pet’rs’ App’x at 317–18). 

II. DISCUSSION 

A threshold issue in this case is whether Petitioners have standing to challenge the 

2016 Amendments, either in their individual capacity or in their capacity as representatives of 

their members. We hold that Petitioners lack standing under either theory. 

A. Legal Standard 

There are three elements of Article III standing that those invoking federal jurisdiction 

must establish. Our focus today is whether each petitioner has established the first element, 

injury in fact, which requires a petitioner to “show that he or she suffered ‘an invasion of a 

legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 9

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. ——, 136 S. Ct. 1540, 1548 

(2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 

The burden of proof for each element operates “in the same way as any other matter on 

which [a] plaintiff bears the burden of proof, i.e., with the manner and degree of evidence 

required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. So, on review of a 

final agency action, “the petitioner [must] present specific facts supporting standing through 

citations to the administrative record or ‘affidavits or other evidence’ attached to its opening 

brief, unless standing is self-evident.” Sierra Club v. EPA (“Sierra Club 2015”), 793 F.3d 656, 

662 (6th Cir. 2015) (quoting Sierra Club v. EPA (“Sierra Club 2002”), 292 F.3d 895, 900 (D.C. 

Cir. 2002)). 

1. Self-Evident Injury 

We decline to hold that Petitioners’ injury is self-evident. On occasion, we have found it 

“reasonable to infer actual and imminent . . . injuries” despite the lack of definitive proof. Id. at 

664–65. For instance, we have excused definitive proof where the injury was impossible to 

prove with absolute certainty, id. at 664, or where the injury could not be “specifically identified 

in advance,” Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004). 

Neither of these circumstances exists here; there is no reason why Petitioners could not have put 

forth an affidavit from a particular municipal advisor professional who would have contributed 

more than $250 were it not for the 2016 Amendments. 

Moreover, the record is devoid of information that would permit us “reasonabl[y] to 

infer” that the 2016 Amendments would injure Petitioners. See Sierra Club 2015, 793 F.3d at 

664. Crucially, we have only limited information on the number of persons possibly affected by 

the amendments. At most, we are told that as of August 18, 2014, there were approximately 713 

registered non-dealer municipal advisory firms in the United States that would be affected by the 

2016 Amendments.7

 See Request for Comment on Draft Amendments to MSRB Rule G-37 to 

Extend its Provisions to Municipal Advisors at 29 (Pet’rs’ App’x at 121). However, we do not 

know how many municipal advisor professionals are associated with these firms, let alone the 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 10

likelihood that they or their firms would donate to Petitioners were it not for the 

2016 Amendments. 

Petitioners do identify one participant in the municipal securities market who, at first 

blush, appears to be affected by the 2016 Amendments. The Leatherwood affidavit identifies an 

individual named Steve McManus, “a covered associate of a registered investment advis[e]r” and 

employee of a broker-dealer, who “has stated that he would contribute more than $250 to a 

covered official in a future election if the MSRB’s Political Contribution Rule no longer applied 

to limit such contributions.” Leatherwood Aff. ¶¶ 16–17 (Pet’rs’ App’x at 307–08). 

“Additionally, Mr. McManus has declined to solicit contributions to the Tennessee Republican 

Party because of the MSRB’s Political Contribution Rule,” but has stated “that he would be 

willing to solicit contributions for the Tennessee Republican Party in the future if the MSRB’s 

Political Contribution Rule no longer applied to limit such activities.” Id. ¶¶ 18–19 (Pet’rs’ 

App’x at 308). 

The issue regarding McManus is that we do not know whether he was constrained from 

contributing to candidates or soliciting contributions for the Tennessee Republican Party before 

the 2016 Amendments became effective. This detail matters. Petitioners challenge only the 

2016 Amendments; they do not challenge Rule G-37 as a whole. See Tenn. Republican Party’s 

Pet. at 2 (Pet’rs’ App’x at 81); Ga. Republican Party & N.Y. Republican State Comm.’s Pet. at 

1–2 (Pet’rs’ App’x at 87–88). Therefore, if Rule G-37 already prohibited McManus from 

contributing more than $250 to an official of an issuer or soliciting contributions for the 

Tennessee Republican Party without triggering the two-year ban, the same limits in the 

2016 Amendments do not injure him. And because McManus is the only participant in the 

municipal securities market identified in the record, Petitioners must show that he was affected 

by the 2016 Amendments in particular if they want to show that even one person limited their 

contributions or solicitation. They have not made such a showing. 

Leatherwood’s affidavit states that “[t]he MSRB’s Political Contribution Rule’s two-year 

ban applies to Mr. McManus’s political contributions to officials who have broker dealer and/or 

advisor selection influence.” Leatherwood Aff. ¶ 16 (Pet’rs’ App’x at 308). However, both 

before and after the 2016 Amendments, Rule G-37 prohibited brokers, dealers, and municipal 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 11

securities dealers from contributing to “any person . . . who was, at the time of the contribution, 

an incumbent, candidate or successful candidate . . . for elective office of the issuer which office 

is directly or indirectly responsible for, or can influence the outcome of, the hiring of a broker, 

dealer or municipal securities dealer for municipal securities business by the issuer,” MSRB Rule 

Book Rule G-37(g)(vi), at 272 (July 1, 2016) (emphasis added); see also MSRB Rule Book Rule 

G-37(g)(xvi), at 271–72 (Apr. 1, 2017). Compare MSRB Rule Book Rule G-37(b)(i), at 269 

(July 1, 2016), with MSRB Rule G-37(b)(i)(A), at 266 (Apr. 1, 2017). Therefore, Leatherwood’s 

affidavit sheds no light upon whether the 2016 Amendments in particular affect McManus. We 

are thus left with a record that does not identify a single individual whom the 2016 Amendments 

have prevented from donating to Petitioners or contributing to the Petitioners’ candidates. 

Without any further basis upon which we could assume that such an individual exists, we decline 

to hold that Petitioners’ injuries are self-evident. 

2. Injury Based on the Administrative Record, Affidavits, or Other Evidence 

Because their injuries are not self-evident, Petitioners bear the burden to “present specific 

facts supporting standing through citations to the administrative record or ‘affidavits or other 

evidence’ attached to [their] opening brief.” Sierra Club 2015, 793 F.3d at 662 (quoting Sierra 

Club 2002, 292 F.3d at 900). As a general matter, an injury in fact is not difficult to prove in the 

fundraising context. “If . . . a political party can marshal its forces more effectively by winning 

its lawsuit, that ought to be enough for Article III.” Fair Elections Ohio v. Husted, 770 F.3d 456, 

460 (6th Cir. 2014); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) 

(recognizing a “drain on the organization’s resources” as a “concrete and demonstrable injury”); 

Taxation with Representation of Washington v. Regan, 676 F.2d 715, 723 (D.C. Cir. 1982) (en 

banc) (recognizing the standing of an organization whose fundraising efforts would be impaired 

by an IRS tax-deductible-contribution rule because the organization would “be harmed if its 

contributors cease[d] giving it money”), rev’d on other grounds, 461 U.S. 540 (1983). 

As referenced above, a key feature of this case is that Petitioners challenge the 2016 

Amendments, rather than the original rules. See Tenn. Republican Party’s Pet. at 2 (Pet’rs’ 

App’x at 81); Ga. Republican Party & N.Y. Republican State Comm.’s Pet. at 1–2 (Pet’rs’ App’x 

at 87–88). Therefore, a showing that the original rules diminish Petitioners’ ability to “marshal 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 12

[their] forces more effectively,” Fair Elections Ohio, 770 F.3d at 460, is insufficient to establish 

standing; Petitioners must show that the 2016 Amendments diminish this ability. 

a. Standing in Petitioners’ Individual Capacity 

The sole pieces of evidence that Petitioners have introduced in support of standing are the 

three affidavits of their executive directors. None of these affidavits provide any such support. 

First, and centrally, each executive director conflates the original rules with the 2016 

Amendments. Leatherwood and Weingartner claim that “the Municipal Securities Rulemaking 

Board’s Political Contribution Rule, codified in Rule G-37, . . . limits the ability of municipal 

securities dealers, financial professionals, and now municipal advisors and municipal advisor 

professionals to make political contributions.” Leatherwood Aff. ¶ 6 (Pet’rs’ App’x at 305); 

Weingartner Aff. ¶ 5 (Pet’rs’ App’x at 316). Pipkin never even defines “the MSRB’s Political 

Contribution Rule.” See Pipkin Aff. ¶ 6 (Pet’rs’ App’x at 312). 

The pre-amendment version of Rule G-37, which Petitioners do not challenge, regulated 

brokers, dealers, and municipal securities dealers no differently than the post-amendment 

version. Therefore, to show injury-in-fact, the affidavits would have had to show that the 

2016 Amendments alone, which newly regulate municipal advisors and municipal advisor 

professionals, diminish Petitioners’ ability to marshal their forces. By conflating the original 

rule, which covers brokers, dealers, and municipal securities dealers, with the 

2016 Amendments, which additionally cover municipal advisors and municipal advisor 

professionals, the affidavits do not support such a showing. Instead, they leave ambiguity 

whether the rules harm the political parties because brokers, dealers, and municipal securities 

dealers are not contributing and soliciting or whether the rules harm the parties because 

municipal advisors and municipal advisor professionals are not contributing and soliciting. 

Although Leatherwood and Weingartner never clearly refer to the 2016 Amendments, 

there is one occasion in which Pipkin appears to refer to the 2016 Amendments. However, this 

reference fails to establish standing for different reasons. Pipkin states that he “expect[s] that the 

expanded coverage of the MSRB’s Political Contribution Rule will now cause more individuals 

to . . . refrain from contributing.” Id. ¶ 10 (Pet’rs’ App’x at 313). Even assuming that “the 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 13

expanded coverage of the MSRB’s Political Contribution Rule” refers to the 2016 Amendments, 

“[s]uch ‘some day’ intentions” are precisely the sort of speculation that does not establish 

standing. See Lujan, 504 U.S. at 564 (holding that “the affiants’ profession of an ‘inten[t]’ to 

return to the places they had visited before—where they will presumably, this time, be deprived 

of the opportunity to observe animals of the endangered species—is simply not enough” to 

establish standing). Rather, Pipkin must attest that the amendments have caused or will 

imminently cause injury to his party. Because he does not do so, his affidavit does not support 

standing for his party. 

b. Organizational Standing 

Petitioners argue in the alternative that they have organizational standing because their 

members have been injured. In addition to establishing standing because of a direct injury to the 

association, “[a]n association has standing to bring suit on behalf of its members when its 

members would otherwise have standing to sue in their own right, the interests at stake are 

germane to the organization’s purpose, and neither the claim asserted nor the relief requested 

requires the participation of individual members in the lawsuit.” Sierra Club 2015, 793 F.3d at 

661 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 

(2000)). To establish organizational standing, “plaintiff-organizations [must] make specific 

allegations establishing that at least one identified member had suffered or would suffer harm.” 

Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Such specificity requires that the 

plaintiff-organization “name the individuals who were harmed” unless “all the members of the 

organization are affected by the challenged activity.” Id. at 498–99. 

Pipkin fails to identify any members of the Georgia Republican Party who are affected by 

the amendments, so the Georgia Republican Party does not have standing on behalf of its 

members. Leatherwood identifies McManus, Leatherwood Aff. ¶¶ 17–19 (Pet’rs’ App’x at 308), 

but as explained above, Leatherwood’s conflation of the 2016 Amendments and Rule G-37 as a 

whole fails to show that the 2016 Amendments in particular injured McManus. 

Weingartner’s affidavit fares no better. Weingartner identifies three Republican 

candidates who claim to be “hindered by the MSRB’s Political Contribution Rule.” Weingartner 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 14

Aff. ¶ 10 (Pet’rs’ App’x at 317–18). The “Political Contribution Rule” that allegedly hinders the 

three New York officeholders, by Weingartner’s account, “limits the ability of municipal 

securities dealers, financial professionals, and now municipal advisors and municipal advisor 

professionals to make political contributions.” Id. ¶ 5 (Pet’rs’ App’x at 316). Weingartner’s 

description of the “Political Contribution Rule” thus encompasses the entirety of Rule G-37: the 

2016 Amendments, which “now” regulate municipal advisors and municipal advisor 

professionals, and the regulations that preexisted those amendments, which regulated municipal 

securities dealers and municipal finance professionals. We do not know whether the 2016 

Amendments in particular have hindered these three candidates, which is what the New York 

Republican State Committee needed to prove. See Sierra Club 2015, 793 F.3d at 662. 

Therefore, and because the Tennessee Republican Party and Georgia Republican Party have 

likewise failed to meet this burden, we hold that Petitioners have not established standing on 

behalf of their members. 

III. CONCLUSION 

 Because Petitioners’ injuries are not self-evident and because Petitioners have failed to 

put forth evidence that supports the alleged injury in fact, we hold that Petitioners lack standing. 

Therefore, we DENY the petitions for review of the final rule for lack of jurisdiction. We 

DENY AS MOOT the SEC’s motion to dismiss and DENY AS MOOT the MSRB’s motion to 

be designated as an intervenor. 

 

1. The Exchange Act defines person as “a natural person, company, government, or 

political subdivision, agency, or instrumentality of a government.” 15 U.S.C. § 78c(a)(9). 

2. Specifically, a municipal finance professional is any municipal finance representative, 

dealer solicitor, municipal finance principal, dealer supervisory chain person, or dealer executive 

officer. MSRB Rule Book Rule G-37(g)(ii), at 269–70 (Apr. 1, 2017). 

A) A municipal finance representative is “any associated person primarily engaged in 

municipal securities representative activities . . . other than sales activities with natural 

persons.” Id. Rule G-37(g)(ii)(A), at 269. Municipal securities representative activities

include “underwriting, trading or sales of municipal securities,” “financial advisory or 

consultant services for issuers in connection with the issuance of municipal securities,” 

“research or investment advice with respect to municipal securities,” or “any other 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 15

 

activities which involve communication, directly or indirectly, with public investors in 

municipal securities.” Id. Rule G-3(a)(i)(A), at 5. 

B) A dealer solicitor is “any associated person who is a municipal solicitor.” Id. Rule G37(g)(ii)(B), at 269. A municipal solicitor is “an associated person of a dealer who 

solicits a municipal entity for municipal securities business on behalf of the dealer,” “an 

associated person of a municipal advisor who solicits a municipal entity for municipal 

advisory business on behalf of the municipal advisor,” or “an associated person of a 

municipal advisor third-party solicitor who solicits a municipal entity on behalf of a 

dealer, municipal advisor or investment adviser . . . that does not control, is not controlled 

by, or is not under common control with such municipal advisor third-party solicitor.” 

Id. Rule G-37(g)(xiii), at 271–72. An investment adviser is “any person who, for 

compensation, engages in the business of advising others, either directly or through 

publications or writings, as to the value of securities or as to the advisability of investing 

in, purchasing, or selling securities, or who, for compensation and as part of a regular 

business, issues or promulgates analyses or reports concerning securities,” subject to 

some exceptions. See 15 U.S.C. § 80b-2(a)(11), cited in 15 U.S.C. § 78c(a)(20). Rule G37 defines solicit as “making . . . a direct or indirect communication with a municipal 

entity for the purposes of obtaining or retaining an engagement by the municipal entity of 

a dealer, municipal advisor or investment adviser . . . for municipal securities business, 

municipal advisory business or investment advisory services; provided, however, that it 

does not include advertising by a dealer, municipal advisor or investment adviser.” Id.

G-37(g)(xix), at 272. A municipal advisor third-party solicitor is “a municipal advisor 

that is currently soliciting a municipal entity, is engaged to solicit a municipal entity, or is 

seeking to be engaged to solicit a municipal entity for direct or indirect compensation, on 

behalf of a dealer, municipal advisor or investment adviser . . . that does not control, is 

not controlled by, or is not under common control with the municipal advisor undertaking 

such solicitation.” Id. Rule G-37(g)(x), at 271. “[A] municipal advisor[, defined infra,] 

may at one point in time also be a municipal advisor third-party solicitor and at another 

point in time may no longer fall within the proposed definition. For example, in one 

engagement, a municipal advisor’s role may be limited to that of a municipal advisor 

third-party solicitor and the municipal advisor would solicit a municipal entity on behalf 

of a third-party dealer, municipal advisor, or investment adviser.” Notice of Filing of a 

Proposed Rule Change Consisting of Proposed Amendments to Rule G-37, on Political 

Contributions and Prohibitions on Municipal Securities Business, Rule G-8, on Books 

and Records, Rule G-9, on Preservation of Records, and Forms G-37 and G-37x, 80 Fed. 

Reg. 81710, 81714 (Dec. 23, 2015) (Pet’rs’ App’x at 57). Municipal securities business

“encompass[es] certain activities of dealers, such as acting as negotiated underwriters (as 

managing underwriter or as syndicate member), financial advisors and consultants, 

placement agents, and negotiated remarketing agents.” Id. Rule G-37 Interpretations II.3, 

at 273. Municipal advisory business consists of “those activities that would cause a 

person to be a municipal advisor.” Id. Rule G-37(g)(ix), at 271. This includes “(A) the 

provision of advice to or on behalf of a municipal entity or an obligated person with 

respect to municipal financial products or the issuance of municipal securities, including 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 16

 

advice with respect to the structure, timing, terms, and other similar matters concerning 

such financial products or issues and (B) the solicitation of a municipal entity or 

obligated person.” Id.

C) A municipal finance principal is “any associated person who is both (1) a municipal 

securities principal or a municipal securities sales principal; and (2) a supervisor of any 

municipal finance representative . . . or dealer solicitor.” Id. Rule G-37(g)(ii)(C), at 270. 

A municipal securities principal is “a natural person (other than a municipal securities 

sales principal), associated with a broker, dealer or municipal securities dealer who is 

directly engaged in the management, direction or supervision of . . . underwriting, trading 

or sales of municipal securities; . . . financial advisory or consultant services for issuers in 

connection with the issuance of municipal securities; . . . processing, clearance, and, in 

the case of brokers, dealers and municipal securities dealers other than bank dealers, 

safekeeping of municipal securities; . . . research or investment advice with respect to 

municipal securities; . . . any other activities which involve communication, directly or 

indirectly, with public investors in municipal securities; . . . maintenance of records with 

respect to [these] activities[; or] . . . training of municipal securities principals or 

municipal securities representatives.” Id. Rule G-3(b)(i), at 5–6. A municipal securities 

sales principal is “a natural person (other than a municipal securities principal) associated 

with a broker, dealer or municipal securities dealer (other than a bank dealer) whose 

supervisory activities with respect to municipal securities are limited exclusively to 

supervising sales to and purchases from customers of municipal securities.” Id. Rule G3(c)(i), at 7. 

D) A dealer supervisory chain person is “any associated person who is a supervisor of any 

municipal finance principal up through and including, in the case of a dealer other than a 

bank dealer, the Chief Executive Officer or similarly situated official and in the case of a 

bank dealer, the officer or officers designated by the board of directors of the bank as 

responsible for the day-to-day conduct of the bank’s municipal securities dealer 

activities.” Id. Rule G-37(g)(ii)(D), at 270. 

E) A dealer executive officer is “any associated person who is a member of an executive or 

management committee (or similarly situated official) of a dealer.” Id. Rule G37(g)(ii)(E), at 270. 

3. Specifically, a municipal advisor professional is any municipal advisor representative, 

municipal advisor solicitor, municipal advisor principal, municipal advisor supervisory chain 

person, and municipal advisor executive officer. MSRB Rule Book Rule G-37(g)(iii), at 270 

(Apr. 1, 2017). 

A) A municipal advisor representative is “a natural person associated with a municipal 

advisor who engages in municipal advisory activities on the municipal advisor’s behalf, 

other than a person performing only clerical, administrative, support or similar 

functions.” Id. Rule G-3(d)(i)(A), at 7; id. Rule G-37(g)(iii)(A), at 270. 

B) A municipal advisor solicitor is “any associated person who is a municipal solicitor.” Id.

Rule G-37(d)(iii)(B), at 270. 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 17

 

C) A municipal advisor principal is “any associated person who is both,” id. Rule G37(g)(iii)(C), at 270, (1) “a natural person associated with a municipal advisor who is 

qualified as a municipal advisor representative and is directly engaged in the 

management, direction or supervision of the municipal advisory activities of the 

municipal advisor and its associated persons,” id. Rule G-3(e)(i), at 7, and (2) “a 

supervisor of any municipal advisor representative . . . or municipal advisor solicitor.” 

Id. Rule G-37(g)(iii)(C), at 270. 

D) A municipal advisor supervisory chain person is “any associated person who is a 

supervisor of any municipal advisor principal up through and including, in the case of a 

municipal advisor other than a bank municipal advisor, the Chief Executive Officer or 

similarly situated official, and, in the case of a bank municipal advisor, the officer or 

officers designated by the board of directors of the bank as responsible for the day-to-day 

conduct of the bank’s municipal advisory activities.” Id. Rule G-37(g)(iii)(D), at 270. 

E) A municipal advisor executive officer is “any associated person who is a member of the 

executive or management committee (or similarly situated official) of a municipal 

advisor (or, in the case of a bank municipal advisor, the separately identifiable 

department or division of the bank.” Id. Rule G-37(g)(iii)(E), at 270. 

4. Rule G-37 defines contribution as follows: 

(vi) “Contribution” means any gift, subscription, loan, advance, or deposit of money or 

anything of value made: 

(A) to an official of a municipal entity: 

(1) for the purpose of influencing any election for federal, state or local 

office; 

(2) for payment of debt incurred in connection with any such election; or 

(3) for transition or inaugural expenses incurred by the successful 

candidate for state or local office; or 

(B) to a bond ballot campaign: 

(1) for the purpose of influencing (whether in support of or opposition to) 

any ballot initiative seeking authorization for the issuance of municipal 

securities through public approval obtained by popular vote; 

(2) for payment of debt incurred in connection with any such ballot 

initiative; or 

(3) for payment of the costs of conducting any such ballot initiative. 

MSRB Rule Book Rule G-37(g)(vi), at 270 (Apr. 1, 2017). The rule defines payment as “any 

gift, subscription, loan, advance, or deposit of money or anything of value.” Id. Rule G37(g)(xvii), at 272. These definitions are identical to the pre-amendment definitions. See MSRB 

Rule Book Rule G-37(g)(i), (viii), at 271–72 (July 1, 2016). 

5. We reference the July 1, 2016 version of the MSRB Rule Book to refer to the rules before 

the 2016 Amendments became effective because this was the last published rulebook before 
Nos. 16-3360/3732 Tenn. Republican Party et al. v. SEC et al. Page 18

 

August 17, 2016. We reference the April 1, 2017 version of the MSRB Rule Book to refer to the 

rules after the 2016 Amendments became effective because that is the version of the rulebook as 

of the date of oral argument. 

6. An official of a municipal entity with dealer selection influence is “any person (including 

any election committee for such person) who was, at the time of the contribution, an incumbent, 

candidate or successful candidate: (1) for elective office of the municipal entity which office is 

directly or indirectly responsible for, or can influence the outcome of, the hiring by the municipal 

entity of a dealer for municipal securities business; or (2) for any elective office of a state or of 

any political subdivision, which office has authority to appoint any person who is directly or 

indirectly responsible for, or can influence the outcome of, the hiring by a municipal entity of a 

dealer for municipal securities business.” MSRB Rule Book Rule G-37 (g)(xvi)(A), at 271–72 

(Apr. 1, 2017). 

7. Counsel for the MSRB also indicated at oral argument that there are four-thousand 

registered municipal advisors. Oral Argument at 23:22, http:// 

www.opn.ca6.uscourts.gov/internet/court_audio/audSearch.html (last visited May 16, 2017). In 

addition, one comment on the amendments indicates that “[a]s of 2013, . . . there were 1,130 

registered municipal advisors.” Public Citizen et al., Comment on Draft Amendments to MSRB 

Rule G-37 to Extend its Provisions to Municipal Advisors (MSRB Regulatory Notice 2014-15), 

at 4 (Oct. 1, 2014) (MSRB’s App’x at 324). Although these figures are helpful, “[w]e do not 

rely on [counsel’s] representations at argument as ‘the necessary factual predicate may not be 

gleaned from the briefs and arguments themselves.’” See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 

235 (1990).