# Libertarian National Committee, Inc. v. Federal Election Commission

> District Court, District of Columbia · June 29, 2018

URL: https://www.frixlaw.com/law-library/cases/4290333

## Case

- **Court:** District Court, District of Columbia
- **Decided:** June 29, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Chief Judge Beryl A. Howell
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting with approval that “[t]he district court polished plaintiffs’ draft questions into their present form”
- holding that courts shall defer to agencies’ reasonable interpretations of ambiguities in statutes they administer

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LIBERTARIAN NATIONAL COMMITTEE,
INC.,

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

v. Chief Judge Beryl A. Howell

FEDERAL ELECTION COMMISSION,

Defendant.

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

1
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 non-

partisan 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.

2
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

3
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.

4
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

5
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.

6
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 non-

frivolous 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.

7
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

8
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.”).
9
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).

10
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 post-

certification 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

11
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.

12
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.

13
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

14
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.

15
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.

16
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).

17
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.

18
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 general-

purpose 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

19
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.

20
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,

21
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 well-

established, 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

22
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 non-

presidential 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

23
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 content-

based 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

24
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

25
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. Content-

based 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.

26
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.

27
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.

***

28
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

29
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

30
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

31
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

32
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.

33
“[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

34
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

35
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.

36
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

37
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.

38
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.

39
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

40
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

41
‘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.

42
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.

43
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

44
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.

45
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.

46
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.

47
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/cgi-

bin/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/cgi-

bin/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).

48
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/cgi-

bin/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

49
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

50
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

51
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

52
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.

53
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-resurrecting-

ghosts-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-pardon-

for-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

54
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

55
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 i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4290333. Public record. Not legal advice.