Libertarian National Committee, Inc. v. Federal Election Commission

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL COMMITTEE,

INC.,

Plaintiff, Civil Action No. 16-121 (BAH)

v. Chief Judge Beryl A. Howell

FEDERAL ELECTION COMMISSION,

Defendant.

MEMORANDUM OPINION

The plaintiff, the Libertarian National Committee (“LNC”), was left a testamentary

bequest by Joseph Shaber in 2015 in the amount of $235,575.20 but was allegedly unable to

accept the bequest in full due to restrictions imposed by the Federal Election Commission Act

(“FECA”), see 52 U.S.C. §§ 30116 and 30125. The LNC challenges certain aspects of the

statutory scheme as unconstitutional and seeks certification of the constitutional issues it raises to

the D.C. Circuit en banc, pursuant to 52 U.S.C. § 30110. 1 The defendant, the Federal Election

Commission (“FEC”), has moved to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(1) on the ground that LNC lacks standing to bring this suit. This potential Article III issue

must be addressed before certifying any question to the D.C. Circuit under § 30110. See Holmes,

823 F.3d at 70 (“If the requirements of Article III of the Constitution are satisfied, the district

court must ‘immediately’ ‘certify all questions of constitutionality of this Act to the United

1

Pursuant to 52 U.S.C. § 30110, “the national committee of any political party” may bring an action “in the

appropriate district court” challenging the constitutionality of a FECA provision. Section 30110 further provides

that the district court “immediately shall certify” any non-frivolous constitutional challenge to FECA to the court of

appeals en banc. Id.; see also Holmes v. FEC, 823 F.3d 69, 71 (D.C. Cir. 2016) (“[D]istrict courts do not certify

‘frivolous’ constitutional questions to the en banc court of appeals.” (quoting Cal. Med. Ass’n v. FEC, 453 U.S. 182,

192 n.4 (1981))).

1

States court of appeals for the circuit involved . . . sitting en banc.’”); see also Republican Party

of La. v. FEC, 146 F. Supp. 3d 1, 8 (D.D.C. 2015) (“This Court may properly dismiss [the

plaintiffs’] claims [under analogous Bipartisan Campaign Reform Act] without convening a

three-judge panel if [the plaintiffs] lack standing to bring those claims.”); Holistic Candlers &

Consumers Ass’n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012) (describing standing as a

“threshold jurisdictional question” (quoting Byrd v. EPA, 174 F.3d 239, 243 (D.C. Cir. 1999)).

For the reasons set out below, the FEC’s motion will be denied.

I. BACKGROUND

The challenged statutory framework is summarized before discussing the particular facts

underlying this suit and the LNC’s claims.

A. FECA’s Limits on Contributions to Political Committees

Under FECA, “no person,” including, inter alia, a testamentary estate,2 “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). FECA was amended in

2014 to allow individuals to make additional donations of up to three hundred percent of the

annual contribution limit set out in § 30116(a)(1) for each of three specified purposes:

(1) “expenses incurred with respect to a presidential nominating convention;” (2) “expenses

incurred with respect to the construction, purchase, renovation, operation, and furnishing of one

or more headquarters buildings of the party;” and (3) “expenses incurred with respect to the

2

The FEC has interpreted the word “person” as used in § 30116(a)(1) to include an individual’s testamentary

estate, see, e.g., Pl.’s Opp’n, Ex. C (“FEC Advisory Op. 2015-05”), ECF No. 12-3. The LNC does not challenge

this interpretation of the statute, and, in a recent case involving these same parties, this Court explained that the

FEC’s interpretation is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc.,

467 U.S. 837 (1984). See LNC v. FEC (“LNC I”), 930 F. Supp. 2d 154, 165 (D.D.C. 2013) (“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 . . . .”).

2

preparation for and the conduct of election recounts and contests and other legal proceedings.”

Id. § 30116(a)(9)(A)–(C). Donations accepted for the three enumerated purposes under

§ 30116(a)(9) must be funneled into a “separate, segregated account” and not comingled with

other funds. Id.

The contribution limits set forth in § 30116(a)(1) are adjusted for inflation in odd-

numbered years such that, at the time this Complaint was filed, the annual limit on a general

account contribution was $33,400, and the annual limit on a segregated account contribution for

each of the three segregated accounts was $100,200. See id. § 30116(c). Accordingly, in 2015,

the total amount that a party’s political committee could accept from any person, including a

testamentary estate, was $334,000.

B. Bequest to the LNC by Joseph Shaber

The LNC is “the national committee of the Libertarian Party of the United States.”

Compl. ¶ 1. Its mission is “to field national [p]residential 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. From 1988 to 2011,

Mr. Shaber made small, periodic donations to the LNC. Id. ¶ 15. “Unbeknown to the LNC, it

was made a beneficiary of the Joseph Shaber Revocable Living Trust U/T/D February 11, 2010.”

Id. ¶ 16. Upon his death on August 23, 2014, Mr. Shaber’s trust became irrevocable, with the

LNC’s share amounting to$235,575.20. Id. ¶ 17. No restrictions were placed on how the LNC

could utilize the bequest, and the trustee maintains that it is “entirely up to the LNC how it

wishes to apply the distribution.” See Def.’s Mot. Dismiss at 6–7, ECF No. 9 (quoting Letter

from Trustee’s Counsel to FEC (dated June 15, 2015), available online at http://saos.fec.gov/

aodocs/1317218.pdf (last visited Dec. 27, 2016)).

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On February 23, 2015, the trustee distributed $33,400 of the bequest to the LNC’s

general account. Id. ¶ 19. LNC asserts that it “would [have] accept[ed] and spen[t] the entire

amount of the Shaber bequest for its general expressive purposes” but for FECA’s contribution

limits. Id. ¶¶ 18–19. On May 6, 2015, the trustee requested an advisory opinion from the FEC

as to whether the remainder of the bequest could be placed in a third-party escrow account for

annual disbursements pursuant to § 30116(a)(1). The FEC approved the trustee’s request on

August 11, 2015. See generally FEC Advisory Op. 2015-05. In January 2016, the LNC

accepted another $33,400 of the Shaber bequest from escrow for deposit into the party’s general

purpose account. Compl. ¶ 20. Thus, as of the filing of the complaint, approximately

$168,775.20 of the bequest remained in escrow. See Def.’s Mot. Dismiss at 7; Pl.’s Opp’n

Def.’s Mot. Dismiss (“Pl.’s Opp’n”) at 20, ECF No. 12 (referencing $168,000 in escrow).

C. The LNC’s Claims

The LNC’s complaint alleges in three counts that application of the § 30116 contribution

limits to the Shaber bequest “violates the First Amendment speech and associational rights of the

LNC and its supporters,” id. ¶ 27 (Count I), and that the segregated accounts scheme, which

allows parties to accept larger donations for three specified purposes only, amounts to a content-

based restriction on speech, both on its face and as applied to the Shaber bequest id. ¶¶ 31, 34

(Counts II and III); see also Pl.’s Opp’n at 8 (“[P]rivileging large donations based on their

purposes—as if a party would be corrupted by a $33,401 donation for general purposes, but not a

$312,000 donation for conventions, buildings, and lawyers[—]is an irrational content-based

speech restriction.”). The LNC seeks “[a]n order permanently enjoining [the FEC] . . . from

enforcing 52 U.S.C. §§ 30116 and 30125, either generally or in relation to the Shaber [b]equest,”

in addition to “[d]eclaratory relief consistent with the injunction.” Id., Prayer for Relief ¶¶ 1–2.

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II. LEGAL STANDARD

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts

are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116,

120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the

constitutional and statutory authority exist for us to hear each dispute,’” James Madison Ltd. ex

rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)).

Federal Rule of Civil Procedure 12(b)(1) is the proper vehicle for moving to dismiss a

complaint due to lack of subject matter jurisdiction. Absent subject-matter jurisdiction over a

case, the court must dismiss it, Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500,

506–07 (2006), and the burden of establishing any jurisdictional facts to support the exercise of

the subject matter jurisdiction rests on the plaintiff, see Hertz Corp. v. Friend, 559 U.S. 77, 96–

97 (2010); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). A court “may

consider materials outside the pleadings” in determining whether jurisdiction exists. Jerome

Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya’Alon,

515 F.3d 1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a

Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).

With regard to standing, Article III of the Constitution restricts the power of federal

courts to hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “The doctrine

of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which

are appropriately resolved through the judicial process.”’ Susan B. Anthony List v. Drie haus,

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134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992)); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (“‘One

element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they

have standing to sue.”’ (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997))). As the Supreme

Court has explained, “the irreducible constitutional minimum of standing contains three

elements.” Defs. of Wildlife, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in

fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation

marks omitted). Second, there must be “a causal connection between the injury and the conduct

complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the

defendant. Id. Finally, it must be likely that the injury will be redressed by a favorable

decision. Id. at 561. In analyzing whether a party has standing, the Court “must be ‘careful not

to decide the questions on the merits for or against the plaintiff, and must therefore assume that

on the merits the plaintiff[] would be successful in [its] claims.’” In re Navy Chaplaincy, 534

F.3d 756, 760 (D.C. Cir. 2008) (quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.

2003)).

III. DISCUSSION

In considering the FEC’s motion to dismiss the LNC’s complaint for lack of standing, a

recent case in this Court involving the same parties is instructive since, in that case, the LNC was

found to have standing to challenge the predecessor provision to § 30116(a). See LNC v. FEC

(“LNC I”), 930 F. Supp. 2d 154, 163 (D.D.C. 2013) (Wilkins, J.). 3 The LNC I Court explained

that “[t]he LNC satisfies the core elements of Article III’s case-or-controversy requirement,

3

FECA was transferred from Title 2 to Title 52 on September 1, 2014. Thus, LNC I refers to 2 U.S.C.

§ 441a(a)(1), which is currently codified at 52 U.S.C. § 30116(a)(1).

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because it alleges an injury connected to the FEC’s conduct—the prevention of obtaining

immediate control of the entire . . . bequest—that would be redressed by a favorable decision.”

Id.

The FEC advances two arguments in an apparent effort to show why LNC I’s standing

analysis does not apply here, but neither argument is persuasive. 4 First, relying on the 2014

amendment to § 30116, which established the segregated accounts scheme and therefore

increased the total amount a person may donate to a political committee in a given year, the FEC

asserts that the LNC’s injury is self-inflicted because the LNC could accept the full bequest but

has chosen not to. Second, and in the alternative, the FEC argues that even if not self-inflicted,

the alleged injury, which the FEC construes as a competitive disadvantage vis-à-vis the two

major political parties, is not a valid injury in fact under binding precedent, that actors in the

political marketplace, not FECA, caused LNC’s claimed competitive disadvantage, and that a

favorable decision from this Court is not likely to redress the claimed injury. The FEC’s

arguments are addressed seriatim.

A. Self-Inflicted Injury

“[S]elf-inflicted harm doesn’t satisfy the basic requirements for standing” since it is

neither a “cognizable” injury nor “fairly traceable to the defendant’s challenged conduct.” Nat’l

Family Planning & Reproductive Health Ass’n, Inc. v. Gonzalez, 468 F.3d 826, 831 (D.C. Cir.

2006); accord Afifi v. Lynch, 101 F. Supp. 3d 90, 110 (D.D.C. 2015); Ellis v. Comm’r of IRS, 67

F. Supp. 3d 325, 336–37 (D.D.C. 2014), aff’d sub nom. Ellis v. C.I.R., 622 Fed. App’x 2 (D.C.

Cir. 2015). According to the FEC, the LNC has chosen not to accept the entire Shaber bequest

even though it could and, consequently, any injury suffered by the LNC is self-inflicted and

4

Notably, while referencing LNC I for various propositions, the FEC fails to engage with LNC I’s most

pertinent holding that the LNC had standing to challenge the contribution limits applicable to testamentary estates.

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thereby insufficient to establish standing. Def.’s Mot. Dismiss at 10–14. As support, the FEC

points out that § 30116(a) permits the LNC to accept immediately the entire balance of the

bequest by funneling funds beyond the general spending account into the special-purpose

segregated accounts. See id. at 11. Indeed, FECA allows a committee of a national party to

accept, in addition to $33,400 for general spending, $100,200 for the party’s presidential

nominating convention, $100,200 for work on the party headquarters, and $100,200 for legal

fees, which, when combined, far exceeds the balance in the escrow account. See id. (“FECA

allows the LNC in 2016 to receive a total of $334,000 from any one donor.”). Accordingly, the

FEC contends that the alleged harm flows from the LNC’s choice not to deposit the funds into

segregated accounts. 5

The FEC’s argument papers over the nuance in the LNC’s claims. The LNC does not

argue that the amended statutory scheme allowing a party to accept a contribution as large as

$334,000 prohibits the LNC from accepting the entire Shaber bequest in one lump sum. Rather,

the LNC alleges that the harm is due to the restriction on the political committee’s inability to

accept the entire bequest for general expressive purposes when the bequest became available in

2015. See Compl. ¶¶ 18–19; Pl.’s Opp’n at 8 (“LNC’s injury is that it cannot accept money—

from Shaber’s bequest and from other donors—for spending as it wishes.”) (emphasis in

5

The FEC’s reliance on Sykes v. FEC, 335 F. Supp. 2d 84, 87 (D.D.C. 2004), see Def.’s Mot. Dismiss at 10–

11; Def.’s Reply at 7, is misplaced. According to the FEC, “[i]n the campaign finance context, any harm allegedly

arising from a political actor’s voluntary choice not to accept contributions that FECA allows it to accept is a self-

inflicted injury that cannot support standing.” Def.’s Mot. Dismiss at 10. In Sykes, the plaintiff, a Green Party

candidate for Senate, challenged FECA’s tacit authorization of out-of-state campaign contributions. Sykes, 335 F.

Supp. 2d at 85. He argued that FECA’s silence as to out-of-state contributions injured his opportunity to compete in

the Senate race, id. at 88–89, even though he had not actually received any out-of-state contributions, id. at 87. This

Court held, inter alia, that the plaintiff had not established an injury in fact and therefore lacked standing to sue

because he had challenged FECA’s “failure to restrict out-of-state contributions” as opposed to “[a] portion[] of

FECA which directly restricted his own campaign activity.” Id. at 89 (emphasis in original). Here, § 30116

“directly restrict[s]” the LNC’s ability to accept the Shaber bequest. Accordingly, the discussion in Sykes about the

standard for asserting an injury in fact does not support the FEC’s position.

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original). Thus, the fact that the LNC could accept the entire bequest by utilizing its segregated

accounts does not eliminate the alleged harm. The precise harm alleged confers a sufficient

injury in fact to sustain standing. See Wagner v. FEC, 717 F.3d 1007, 1010 n.1 (D.C. Cir. 2013)

(“Our constitutional jurisdiction is clear. Because Appellants declare that they would make

political contributions but for section 441c [52 U.S.C. § 30119’s predecessor provision], they

have Article III standing. Section 441c allegedly deprives them of a legally protected interest

(making a political contribution) that an order of this court declaring section 441c unenforceable

would remedy.”); Republican Party of La. v. FEC, ___ F. Supp. 3d ___, No. 15-cv-1241, 2016

WL 6601420, at *4 (D.D.C. Nov. 7, 2016) (three-judge panel) (“The state party’s inability to use

corporate funds in its possession for additional [federal election activity] in which it would like

to engage qualifies as a concrete injury.”).

The FEC, however, advances an additional theory as to why the LNC’s injury is self-

inflicted. See Def.’s Mot. Dismiss at 12. The FEC suggests that “LNC’s public disclosure

reports show that it actually spends significant amounts on expenses for which Segregated

Account funds may be used” and, therefore, the LNC “could have spent the entire bequest during

this election cycle had it chosen to do so.” Id. According to the FEC, “the LNC spent in excess

of $940,000 on its Alexandria building headquarters” during the 2014 election cycle, id., and

spent $120,000 on its 2014 national convention, id. at 12–13. At the time the FEC moved to

dismiss this case, “the LNC has spent approximately $63,000 on its headquarters” during the

2016 election cycle. Id. at 13; see also Def.’s Notice Supplemental Jurisdictional Facts at 2, ECF

No. 18 (“Since the parties completed briefing, the LNC has filed public disclosure reports with

the FEC confirming that it has in fact spent at least as much money on segregated account

purposes in 2016 as it would have received from the bequest.”). Based on these spending sums,

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the FEC posits that “[i]f the LNC were to accept the remaining $168,775.20 of the Shaber

bequest into its Segregated Accounts and spend it on its convention, building, or legal expenses,

that same amount from the LNC’s General Account would become available for other

purposes—including advocacy and elections.” Id. at 13–14. The FEC thus contends that the

LNC’s alleged injury “is not an injury in fact but a mere ‘self-inflicted budgetary choice.’” Id. at

14 (quoting Envtl. Integrity Project v. McCarthy, 13-cv-1306, 2015 WL 5730427, at *8 (D.D.C.

Sept. 29, 2015)).

The FEC’s argument has some surface-level appeal, but does not stand up to scrutiny.

The LNC’s precise injury is that it was not permitted to accept the Shaber bequest in full, when it

became available, to spend on federal election activities. See Compl. ¶ 18 (“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.”). Since the bequest became available in 2015,

the LNC’s 2014 and 2016 expenditures are of no moment. 6 Likewise, as the LNC points out,

“FECA’s limits apply per annum,” Pl.’s Opp’n at 13, so the LNC’s total spending in a given

election cycle is a red herring. What matters is that in 2015, LNC spent no money on a

presidential nominating convention, $72,827.11 on its headquarters, and $7,260.61 on legal

proceedings, totaling $80,872.72 in segregated purpose spending. Decl. of Robert Kraus,

Operations Director, Libertarian National Committee, Inc. ¶¶ 5–7, ECF No. 13. On these

undisputed attestations, if the LNC had accepted the entire bequest when it became available by

6

The LNC contends that even if the entire bequest has been accepted into segregated accounts, it still would

not have freed up the same amount of money for expressive purposes. See Pl.’s Resp. Notice of Supplemental

Jurisdictional Facts at 2, ECF No. 19 (“Worse still, the FEC’s math doesn’t add up.”). The Court need not resolve

this factual dispute given that the LNC’s 2016 expenditures are irrelevant for standing purposes. The Court also

need not address the LNC’s argument that “the FEC bars political parties from making strategic withdrawals from

testamentary bequest trusts,” Pl.’s Opp’n at 9, and thus would not permit the LNC to accept the bequest into

segregated accounts in order to free up funds in the general account for other purposes. Even if the FEC did prohibit

this, the dispositive and undisputed allegation here is that the LNC did not spend an amount equivalent to the

remaining bequest funds on segregated account purposes in 2015.

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taking $33,400 of the bequest into its general account and the remainder (approximately

$168,000, see Def.’s Mot. Dismiss at 7; Pl.’s Opp’n at 20) into segregated purpose accounts, the

LNC would have accepted more into its segregated purpose accounts than it spent on its

building, presidential nominating convention, and legal expenses in 2015. Due to this overage,

accepting the entire bequest would not have freed up the full value of the Shaber bequest for

engaging in federal election activities and resulted in the alleged injury in 2015. See Elrod v.

Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.”). The FEC’s argument that the

LNC’s injury was self-inflicted thus fails.

B. Competitive Disadvantage

The FEC argues that “[e]ven if the LNC’s choice to forego [sic] immediate acceptance of

the Shaber bequest is not to blame for its claimed competitive injury, that alleged injury cannot

support the LNC’s standing for three independent reasons.” Def.’s Mot. Dismiss at 15. First,

under Buckley v. Valeo, 424 U.S. 1, 48 (1976) and McConnell v. FEC, 540 U.S. 93, 227 (2003),

“LNC’s claim that it is competitively disadvantaged and so must use the Shaber bequest to

achieve electoral success fails to allege a valid injury in fact.” See Def.’s Mot. Dismiss at 15.

Second, the LNC’s alleged competitive disadvantage is not caused by FECA but by decisions of

private actors in the political marketplace. Id. at 15–17. Finally, a favorable decision by this

Court would not remedy the alleged injury but instead would exacerbate the injury by giving the

major parties access to more money. Id. at 17–19.

These arguments are predicated on the FEC’s characterization of the LNC’s alleged

injury as stemming from a “competitive disadvantage . . . against its major party rivals.” Id. at 2.

In suggesting that the LNC’s alleged injury is a competitive disadvantage, the FEC cherry-picks

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certain phrases from the LNC’s complaint referencing the party’s interest in competing with

other parties. See Def.’s Mot. Dismiss at 8 (citing Compl. ¶¶ 12–14, 26). The Complaint does

allege that, “[u]nlike its two major competitors, the Libertarian Party’s national committee is

forced to spend the bulk of its resources securing access to the ballot, leaving comparatively little

for actual campaigning—an expensive activity in and of itself.” Compl. ¶ 12; see also id. ¶ 13

(“[T]he LNC has comparatively less use for funds intended to support national conventions, a

headquarters building, or attorney fees.”). Further, the Complaint alleges that “[i]n the absence

of the Party Limit’s application to the Shaber bequest, the LNC would substantially improve its

ability to advocate and achieve electoral success by taking immediate control over the balance of

the Shaber funds.” Id. ¶ 26.

The Court agrees with the LNC that “the Commission does not afford the Complaint a

fair reading.” Pl.’s Opp’n at 18; see also id. at 19 (“The Libertarian Party certainly does not

argue that the First Amendment requires a level electoral playing field, free of the advantages

that speakers may have owing to their resources.” (emphasis in original)). The phrases the FEC

relies on are included in the Complaint to explain why the LNC sought to accept the entire

bequest into its general purpose account when the bequest became available and why accepting

the bequest into the segregated accounts was not an adequate substitute. See id. at 19. As noted

above, the LNC clearly articulates the injury suffered to be the inability to accept the entire

Shaber bequest, when it became available in 2015 to engage in election activities, including

various forms of expressive conduct. See Compl. ¶¶ 14, 18–19. Accordingly, the FEC’s

arguments that the LNC’s alleged injury is not cognizable, not caused by the FEC, and not

redressable are premised on a mischaracterization of the alleged injury and therefore fail. 7

7

The LNC suggests that the FEC’s arguments sound more in mootness than standing and then proceeds to

argue that the claims asserted here fall within the “capable of repetition, yet evading review” exception to mootness.

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IV. CONCLUSION

The LNC has standing to challenge FECA provisions that restricted immediate access to

the full amount of a bequest for expressive activities. That the LNC could accept the entire

bequest by depositing the funds into segregated accounts does not alter this analysis because the

LNC alleges that it wishes to use the funds for expressive activities. Accordingly, the FEC’s

motion to dismiss is denied. The parties shall submit jointly, within twenty days, a schedule to

govern further proceedings in this matter.

Digitally signed by Hon. Beryl A. Howell

Date: January 3, 2017 DN: cn=Hon. Beryl A. Howell, o, ou=Chief

Judge, U.S. District Court for the District of

Columbia,

email=Howell_Chambers@dcd.uscourts.gov,

c=US

Date: 2017.01.03 10:36:43 -05'00'

__________________________

BERYL A. HOWELL

Chief Judge

See id. at 14–18 (citing Honeywell Int’l v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010)). The FEC argues in reply that

“[b]ecause the LNC lacks standing, its assertion that its claims are capable of repetition yet evading review is beside

the point.” Def.’s Reply at 9 n.4. Mootness has been an issue in past litigation between these two parties

concerning FECA’s contribution limits. See generally LNC v. FEC, No. 13-5088, Order (D.C. Cir. Mar. 26, 2014),

ECF No. 1485531 (en banc) (unpublished). In the earlier case, however, the LNC had accepted or was able to

accept the entire bequest—into its general account—by the time the case reached the D.C. Circuit. See FEC’s

Suggestion of Mootness at 1, LNC I, No. 13-5088 (D.C. Cir. Feb. 3, 2014) (“As of January 1, 2014, however, the

LNC has either already received, or can immediately accept the entire bequest.”). Here, thousands of dollars remain

in escrow, waiting to be distributed into the LNC’s general account. Accordingly, the LNC’s claims are not moot,

see Judicial Watch, Inc. v. Kerry, No. 16-5015, 2016 WL 7439010, at *2 (D.C. Cir. Dec. 27, 2016) (reversing the

district court’s dismissal on mootness grounds because the plaintiff “ha[d] not ‘been given everything [they] asked

for’” (quoting Noble v. Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008))), and the Court need not address the

LNC’s arguments concerning the capable of repetition yet evading review exception to mootness.

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