Stop R.E.I.D. v. Federal Election Commission , 814 F.3d 221 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1455
STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY DEMOCRATS,
(“Stop Reid”); TEA PARTY LEADERSHIP FUND; ALEXANDRIA
REPUBLICAN CITY COMMITTEE,
Plaintiffs - Appellants,
AMERICAN FUTURE PAC,
Intervenor/Plaintiff – Appellant,
and
NIGER INNIS; NIGER INNIS FOR CONGRESS,
Plaintiffs,
v.
FEDERAL ELECTION COMMISSION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:14-cv-00397-AJT-IDD)
Argued: December 8, 2015 Decided: February 23, 2016
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part with instructions
by published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Shedd and Judge Dillon joined.
ARGUED: Michael T. Morley, COOLIDGE-REAGAN FOUNDATION,
Washington, D.C., for Appellants. Kevin Paul Hancock, FEDERAL
ELECTION COMMISSION, Washington, D.C., for Appellee. ON BRIEF:
Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for
Appellants Stop Reckless Economic Instability Caused by
Democrats, Tea Party Leadership Fund, and Alexandria Republican
City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas,
for Intervenor-Appellant American Future PAC. Lisa J.
Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting
Associate General Counsel, Harry J. Summers, Assistant General
Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for
Appellee.
2
TRAXLER, Chief Judge:
Four political committees – “Stop Reckless Economic
Instability Caused By Democrats” (“Stop PAC”), “Tea Party
Leadership Fund” (“the Fund”), “Alexandria Republican City
Committee” (“ARCC”), and “American Future PAC” (“American
Future”) (collectively, “Appellants”) – appeal a district court
order granting summary judgment against them in their claims
challenging the constitutionality of certain contribution limits
established by the Federal Election Campaign Act of 1971
(“FECA”), see 52 U.S.C. §§ 30101–30146. We conclude that two of
the three claims became moot before the district court granted
summary judgment, and we therefore vacate the merits judgment on
those counts and remand to the district court with instructions
to dismiss them for lack of subject-matter jurisdiction.
Regarding the third claim, we affirm.
I.
FECA regulates many different types of donors and
recipients. See 52 U.S.C. §§ 30116, 30118-19, 30121 (formerly 2
U.S.C. §§ 441a, 441b-441c, 441e). To understand the issues
before us in this appeal, it is necessary to understand some of
FECA’s basic concepts and limits.
To begin, FECA defines a “political committee” as “any
committee, club, association, or other group of persons” that,
during a calendar year, received contributions or made
3
expenditures in excess of $1,000. 52 U.S.C. § 30101(4)(A)
(formerly 2 U.S.C. § 431(4)(A)); see The Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544, 555 (4th Cir. 2012). FECA
defines “expenditures” and “contributions” as encompassing
spending or fundraising “for the purpose of influencing any
election for Federal office.” 52 U.S.C. § 30101(8)(A)(i),
(9)(A)(i) (formerly 2 U.S.C. § 431(8)(A)(i), (9)(A)(i)); see
also Buckley v. Valeo, 424 U.S. 1, 79 (1976) (limiting FECA’s
political-committee requirements to organizations that are
controlled by a candidate or whose “major purpose” is to
nominate or elect a candidate); The Real Truth About Abortion,
Inc., 681 F.3d at 555. A group that has met the political-
committee criteria must register with the Federal Election
Commission (“FEC”). See 52 U.S.C. § 30103(a) (formerly 2 U.S.C.
§ 433(a)).
There are different types of political committees. Some
are associated with a particular candidate or entity. See,
e.g., 52 U.S.C. § 30101(14) (providing that a “national
committee” is a political committee responsible for the day-to-
day operation of a national political party); 52 U.S.C.
§ 30101(15) (providing that a “State committee” is a political
committee that is responsible for the day-to-day operation of a
political party at the state level); 52 U.S.C. § 30102(e)(1)
(providing that each candidate must designate a political
4
committee to serve as the candidate’s “principal campaign
committee”). And others are not associated with any candidate
or entity (“non-connected political committees”).
FECA sets different contribution limits for different
classes of donors and recipients. A contribution made by a non-
connected political committee to an individual candidate is
governed by the restriction limiting contributions by “persons”
generally. 52 U.S.C. § 30116(a)(1)(A). “Persons” include
“individual[s], partnership[s], committee[s], association[s],
corporation[s], labor organization[s], or any other
organization[s] or group[s]” other than the federal government.
52 U.S.C. § 30101(11). In 2014, the inflation-adjusted limit
for contributions by “persons” was $2,600 per election, with
primaries and general elections counting as separate elections. 1
However, non-connected political committees, unlike other types
of persons, qualified for an elevated per-election limit of
$5,000 on contributions to individual candidates if and when
152 U.S.C. § 30116(a)(1)(A) sets the per-election limit at
$2,000. However, that amount had been adjusted for inflation to
$2,600 by the time the parties filed their memoranda in the
district court regarding summary judgment, see Price Index
Adjustments for Contribution and Expenditure Limitations and
Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8,530-02,
8,532 (Feb. 6, 2013), and it was adjusted on February 3, 2015,
to $2,700, see Price Index Adjustments for Contribution and
Expenditure Limitations and Lobbyist Bundling Disclosure
Threshold, 80 Fed. Reg. 5,750-02, 5,752 (Feb. 3, 2015). See
also 52 U.S.C. § 30116(c) (providing for periodic inflation
adjustment of certain limits).
5
they satisfied three criteria: They must have “been registered
[with the FEC] for a period of not less than 6 months” (the
“waiting period”), “received contributions from more than 50
persons,” and “made contributions to 5 or more candidates for
Federal office.” 52 U.S.C. § 30116(a)(4); see 52 U.S.C. §
30116(a)(2)(A). A political committee satisfying these criteria
is referred to as a “multicandidate political committee”
(“MPC”). Id.
FECA also limits contributions that persons and political
committees can make to political party committees. See 52
U.S.C. § 30116(a)(1)(B), (D), (a)(2)(B)-(C). With regard to
contributions to these committees, the limits decrease when the
non-connected political committee becomes an MPC. When this
case was commenced in April 2014, persons (including non-
connected political committees that did not qualify as MPCs)
could contribute $32,400 per year to national party committees
and $10,000 combined to state political party committees and
their local affiliates, while the corresponding limits for MPCs
were $15,000 and $5,000. See id.; 11 C.F.R. § 110.3(a)(1);
Price Index Adjustments for Contribution and Expenditure
Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed.
Reg. 8,530-02, 8,532 (Feb. 6, 2013).
On December 16, 2014, Congress amended FECA to create a new
category of limits. Under the amended law, national party
6
committees can create up to three segregated accounts to fund
their presidential nominating convention, building headquarters,
and election-related legal expenses. See Consolidated and
Further Continuing Appropriations Act, 2015, Pub. L. 113-235,
Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified
as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).
The annual limits for contributions made to such segregated
accounts are three times the limits on other contributions to
national party committees. See id.
II.
The plaintiffs in this suit, Stop PAC, the Fund, and ARCC,
filed their initial complaint against the FEC on April 14, 2014,
and filed an amended complaint on July 7, 2014 (the “Amended
Complaint”). The Amended Complaint alleged the following facts
regarding the parties.
Plaintiff Stop PAC is a non-connected political committee
that registered with the FEC on March 11, 2014. As of April 14,
2014, Stop PAC had over 150 contributors and had made
contributions to five candidates for federal office. On or
around April 4, 2014, Stop PAC contributed the maximum $2,600 to
candidate Niger Innis in the Nevada Primary for the Republican
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nomination for a seat in the U.S. House of Representatives. 2 On
or around June 16, 2014, Stop PAC contributed the same amount to
candidate Dan Sullivan in the Alaska Primary for the Republican
nomination for the U.S. Senate. Stop PAC wished to contribute
more to each candidate — as it could have had it been an MPC —
but its waiting period would not expire until September 11,
2014, after the primaries were held.
Stop PAC also contributed $2,600 to Congressman Joe Heck,
Republican nominee for Congress from Nevada’s 3rd Congressional
District, in connection with his 2014 general election. Stop
PAC wished to contribute more to Heck immediately, but it was
prohibited from doing so until its waiting period expired.
The Fund is a non-connected MPC that registered with the
FEC in 2012, has over 100,000 contributors, and has contributed
to dozens of federal candidates. Because the Fund was an MPC,
the maximum amounts it could contribute annually to a state
political party committee and its local affiliates and to a
national party committee each year were $5,000 and $15,000,
respectively. See 52 U.S.C. § 30116(a)(2)(B)-(C); 11 C.F.R. §
110.3(a)(1).
2Innis and his campaign committee were plaintiffs in the
original complaint, but the district court granted a motion to
voluntarily dismiss them.
8
Plaintiff ARCC is a local political party committee
affiliated with the Virginia Republican State Committee, which
is a state political party committee. The Fund contributed the
statutory maximum of $5,000 to ARCC on April 4, 2014. For the
year 2014, the Fund wished to contribute an additional $5,000 to
ARCC and $32,400 to the National Republican Senatorial Committee
(“NRSC”), both of which FECA would have allowed had the Fund not
yet become an MPC. See 52 U.S.C. § 30116(a)(1)(B), (D),
(a)(2)(B)-(C); see 78 Fed. Reg. at 8,532.
The Amended Complaint contains three claims, each of which
seeks declaratory and injunctive relief. Counts I and II
pertain to FECA’s $2,600-per-election limit on contributions
made to individual candidates by political committees that have
not yet become MPCs. See 52 U.S.C. § 30116(a)(1)(A). In Count
I, Stop PAC alleges that that limit, as applied to Stop PAC,
violates the equal protection component of the Fifth Amendment’s
Due Process Clause because FECA applies a higher limit to MPCs
than it does to political committees that have not completed the
waiting period but have satisfied the other MPC criteria. In
Count II, Stop PAC alleges that the waiting period, as applied
to Stop PAC, violates its First Amendment rights to free speech
and free association. In Count III, ARCC and the Fund allege
that FECA’s annual limits on contributions made by MPCs to
national party committees ($15,000), see 52 U.S.C.
9
§ 30116(a)(2)(B), and to state party committees ($5,000), see 52
U.S.C. § 30116(a)(2)(C), violate the equal protection component
of the Fifth Amendment’s Due Process Clause insofar as political
committees that have not yet completed the waiting period but
that have satisfied the other MPC criteria enjoy the higher
limits of $32,400 and $10,000, respectively.
On August 27, 2014, the plaintiffs moved to join American
Future in the suit as an intervening plaintiff concerning Counts
I and II. American Future is a non-connected political
committee that registered with the FEC on August 11, 2014. As
of August 22, 2014, American Future had raised $5,473 from 54
contributors. It contributed $2,600 to candidate Tom Cotton’s
general election campaign in Arkansas for the U.S. Senate, and
$100 each to four other candidates. American Future wished to
contribute $2,000 more to Cotton for the 2014 general election,
but FECA prevented it from doing so since American Future’s
waiting period was not due to expire before the November 2014
election. American Future also wished to contribute more than
$2,600 to Cotton immediately but could not do so until he filed
paperwork concerning the 2016 primary election. Finally,
American Future desired to contribute more than $2,600 as soon
as possible to other candidates for their 2016 primaries. On
October 6, 2014, the district court entered an order allowing
10
American Future to intervene pursuant to Federal Rule 24. See
Fed. R. Civ. P. 24.
On September 19, 2014, before the district court ruled on
the plaintiffs’ joinder motion, the parties filed cross-motions
for summary judgment. In support of its motion, the FEC, in
addition to arguing that none of the challenged limitations were
unconstitutional, asserted that the district court lacked
subject-matter jurisdiction over Stop PAC’s claims (Counts I and
II). In particular, it argued that Stop PAC’s claims should be
dismissed for lack of standing since it caused its own injury by
not registering as early as November 2013, in time to become an
MPC before the three elections concerning which it wished to
make additional contributions. The FEC also argued that Stop
PAC’s claims were moot because it became an MPC on September 11,
2014, and was thus no longer subject to the limit that it
challenged, and never would be again.
In response, the plaintiffs contended that Stop PAC
established standing. In that regard, they objected to the
FEC’s attempt to “effectively blame Stop PAC for failing to
organize itself more than six months before the primaries,” when
in fact “[m]ost ordinary people are not especially interested in
becoming involved in the political process until shortly before
an election.” Memo. in Opp’n to FEC’s Mot. for Summ. J. 3. As
for the FEC’s suggestion that Stop PAC’s claims were moot, the
11
plaintiffs invoked the exception for claims that are “capable of
repetition, yet evading review.” Southern Pac. Term. Co. v.
ICC, 219 U.S. 498, 515 (1911). Although the plaintiffs
acknowledged that this exception is generally applied only when
the plaintiff itself faces a risk that it will be subject to the
same challenged provisions in the future, the plaintiffs argued
that the same-plaintiff requirement need not be met in election-
related cases.
On February 24, 2015, as the parties waited for the
district court to rule on their summary judgment motions, the
FEC filed a notice with the district court raising additional
arguments regarding mootness. In the notice, the FEC informed
the district court that on February 11, 2015, American Future
had become an MPC. As it had argued regarding Stop PAC, the FEC
contended that American Future, as an MPC, was no longer
affected by the limit it was challenging and never would be
again. The FEC’s filing also informed the court of the December
16, 2014 change in the law allowing contributions to the
specified segregated accounts of national parties of three times
the limits on other contributions to national party committees.
The FEC maintained that that change mooted the Fund’s challenge
to the limits on an MPC’s contributions to national party
committees.
12
The district court subsequently granted summary judgment to
the FEC on all claims. See Stop Reckless Econ. Instability
Caused By Democrats v. FEC, 93 F. Supp. 3d 466 (E.D. Va. 2015)
(“Stop”). Regarding each of the three claims, the district
court assumed that the FEC’s arguments regarding standing and
mootness failed, see id. at 472-73, and ruled that the FEC was
entitled to summary judgment on the merits, see id. at 473-77.
As for Count II, alleging a First Amendment violation, the
district court concluded that “Stop PAC and American Future
cannot show that they have suffered a cognizable constitutional
injury as a result of the waiting period, even if they would
have made a higher contribution, had they been permitted to do
so.” Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1 (1976),
and California Med. Ass’n v. FEC, 453 U.S. 182 (1981)).
Regarding Counts I and III, alleging violation of the
plaintiffs’ equal protection rights under the Fifth Amendment,
the district court concluded that Stop PAC and the Fund were not
similarly situated to each other, and thus that “FECA does not
improperly discriminate among such committees” and “does not
violate the plaintiffs’ rights under the Fifth Amendment.” Id.
at 477. The district court alternatively ruled that any
discrimination was justified under either rational-basis or
intermediate scrutiny. See id.
13
III.
With regard to each of the three counts, Appellants argue
that the district court erred in granting summary judgment
against them. In response, the FEC maintains that the district
court should never have addressed the merits of the claims
because it lacked subject-matter jurisdiction over them. See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.”). Alternatively, the FEC argues that the
district court’s decision regarding the merits was correct.
“Without jurisdiction the court cannot proceed at all in
any cause. Jurisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.” Ex parte
McCardle, 74 U.S. 506, 514 (1868). Accordingly, the Supreme
Court has stated in no uncertain terms that federal courts are
not free to simply assume that they possess subject-matter
jurisdiction and then proceed to decide the merits of the issues
before them when their jurisdiction remains in doubt. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
Rather, federal courts must determine whether they have subject-
matter jurisdiction over a claim before proceeding to address
its merits. See id. The district court erred in failing to
follow this course in this case.
14
We therefore begin our analysis by addressing the FEC’s
contentions that the district court did not have subject-matter
jurisdiction when it granted summary judgment to the FEC.
Article III gives federal courts jurisdiction only over
“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2, cl.
1. “One essential aspect of this requirement is that any person
invoking the power of a federal court must demonstrate standing
to do so,” which “requires the litigant to prove that he has
suffered a concrete and particularized injury that is fairly
traceable to the challenged conduct, and is likely to be
redressed by a favorable judicial decision.” Hollingsworth v.
Perry, 133 S. Ct. 2652, 2661 (2013).
“To qualify as a case fit for federal-court adjudication,
an actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.” Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal
quotation marks omitted). Accordingly, a case is moot “when the
issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Chafin v. Chafin,
133 S. Ct. 1017, 1023 (2013) (some internal quotation marks
omitted).
A case that would otherwise be moot is not so if the
underlying dispute is “capable of repetition, yet evading
15
review.” Southern Pac. Term. Co., 219 U.S. at 515. The Supreme
Court has explained
that in the absence of a class action, the “capable of
repetition, yet evading review” doctrine was limited
to the situation where two elements combined: (1) the
challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration,
and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same
action again.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam);
see id. (holding that doctrine did not prevent the case from
being moot because the “case, not a class action, clearly does
not satisfy the latter element”).
A.
Regarding Counts I and II, the FEC repeats its argument
presented below that Stop PAC lacked standing to prosecute
Counts I and II. The FEC also repeats its alternative
contention that Counts I and II became moot once Stop PAC and
Intervenor American Future became MPCs, since that change in
status ensured that they would never again be bound by the limit
they are challenging. We agree with this latter argument. See
United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011)
(per curiam) (holding that exception’s same-complaining-party
requirement was not met when plaintiff challenging special
conditions of juvenile supervision had turned 21 and thus would
“never again be subject to an order imposing [such] special
16
conditions”). Because we conclude that Counts I and II became
moot before the district court granted summary judgment, we do
not address the FEC’s contention that Stop PAC never established
standing to assert these claims in the first place. See
Arizonans for Official English, 520 U.S. at 66-67 (declining to
decide standing issue when claim was moot).
Appellants do not deny that once Stop PAC and American
Future became MPCs and the contribution limit they are
challenging therefore ceased to apply to them, the district
court was no longer in position to prevent any threatened injury
(or provide redress for any past injury). Nevertheless,
Appellants argue that the “capable of repetition, yet evading
review” doctrine applied to prevent Counts I and II from
becoming moot. In this regard, Appellants do not dispute the
fact that there was no longer any reasonable expectation that
they would be subject to the same limit again. Rather, they
maintain that in election-related cases, the same-complaining-
party element need not be satisfied. We disagree.
In support of their argument, Appellants rely primarily on
Justice Scalia’s dissent in Honig v. Doe, 484 U.S. 305, 335-36
(1988) (Scalia, J., dissenting). In the dissent, Justice
Scalia cited abortion and election cases in which he argued the
Court had “dispens[ed] with the same-party requirement” and
“focus[ed] instead upon the great likelihood that the issue will
17
recur between the defendant and the other members of the public
at large.” Id. (emphasis in original). 3
Since Honig was decided, courts have taken different views
regarding whether the cases cited in Justice Scalia’s dissent
indicated a deliberate decision by the Supreme Court not to
apply the same-complaining-party requirement in election cases.
Partially as a result of this disagreement, courts have reached
different results when considering arguments like the ones
Appellants now raise. Compare Van Wie v. Pataki, 267 F.3d 109,
114-15 (2d Cir. 2001) (applying same-plaintiff requirement in an
election case), and Barilla v. Ervin, 886 F.2d 1514, 1519-20 &
n.3 (9th Cir. 1989) (same), with Catholic Leadership Coal. of
Tex. v. Reisman, 764 F.3d 409, 423-24 (5th Cir. 2014)
(concluding that same-plaintiff requirement need not be met in
election cases), Lawrence v. Blackwell, 430 F.3d 368, 372 (6th
3
Justice Scalia acknowledged that those cases may “have
been limited to their facts, or to the narrow areas of abortion
and election rights, by [the Court’s] more recent insistence
that, at least in the absence of a class action, the ‘capable of
repetition’ doctrine applies only where ‘there [is] a
“reasonable expectation”’ that the ‘same complaining party’
would be subjected to the same action again.” Honig v. Doe, 484
U.S. 305, 336 (1988) (Scalia, J., dissenting) (emphasis in
original). In class actions, at least when the class is
certified while the case remains live for the named plaintiff, a
reasonable expectation that someone in the represented class
will be subject to the same action may be sufficient to satisfy
the “capable of repetition” prong of the exception. See Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530-31 (2013);
Sosna v. Iowa, 419 U.S. 393, 401-02 (1975).
18
Cir. 2005) (same), and Majors v. Abell, 317 F.3d 719, 723 (7th
Cir. 2003) (same).
In the end, we need not decide whether we believe the
Supreme Court has sub silentio limited, or created an exception
to, the requirements of the “capable of repetition, yet evading
review” doctrine. That is so because even were we to conclude
that the Supreme Court has actually sub silentio excused
compliance with the rule in some election cases, we would be
obligated to follow the rule that the Court has actually
articulated. See, e.g., Shalala v. Illinois Council on Long
Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not
normally overturn, or so dramatically limit, earlier authority
sub silentio.”); Hohn v. United States, 524 U.S. 236, 252–53
(1998) (“Our decisions remain binding precedent until we see fit
to reconsider them, regardless of whether subsequent cases have
raised doubts about their continuing vitality.”); Agostini v.
Felton, 521 U.S. 203, 237 (1997) (explaining that if a Supreme
Court precedent directly controls, “yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own
decisions” (internal quotation marks omitted)); id. (explaining
that lower courts should not conclude that the Supreme Court’s
“more recent cases have, by implication, overruled [its] earlier
19
precedent”); Mackall v. Angelone, 131 F.3d 442, 445–49 (4th Cir.
1997) (en banc) (applying Agostini and refusing to create an
exception to a general rule articulated by the Supreme Court
even though a subsequent Supreme Court case had noted that in a
future case the Court might adopt the exception we were
considering).
Moreover, the Supreme Court has actually applied the same-
complaining-plaintiff rule in two relatively recent election
cases. FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449
(2007), concerned an as-applied challenge to a federal
prohibition on the use of corporate funds to finance
“electioneering communications” during a 60-day pre-election
black-out period. See id. at 457-60. With the black-out period
long over, the Supreme Court considered whether the case met the
requirements of the “capable of repetition, yet evading review”
doctrine. The Court explained that “[t]he second prong . . .
requires a ‘reasonable expectation’ or a ‘demonstrated
probability’ that ‘the same controversy will recur involving the
same complaining party.’” Id. at 463 (emphasis added). The
Court concluded that the requirement was met in that case
because the plaintiff “credibly claimed that it planned on
running materially similar future targeted broadcast ads
mentioning a candidate within the blackout period, and there is
no reason to believe that the FEC will refrain from prosecuting
20
violations of” the challenged statute. Id. (citation and
internal quotation marks omitted).
In Davis v. FEC, 554 U.S. 724 (2008), the Supreme Court
reviewed a challenge from a self-financed candidate to certain
campaign-finance-disclosure requirements to which he was
subject. See id. at 731-32. With the litigation having
continued after the election occurred, the Court again
considered whether the “capable of repetition, yet evading
review” doctrine applied. The Court again applied the same-
complaining-party requirement, and determined it was satisfied
because the candidate had publicly announced that he intended to
run again as a self-financed candidate. See id. at 735-36.
Like the Supreme Court, we have also applied the same-
complaining-plaintiff requirement in recent election cases.
Most recently, in Lux v. Judd, 651 F.3d 396 (4th Cir. 2011), we
reviewed a constitutional challenge to a state’s requirement
that each signature on a petition for ballot placement by an
independent candidate for Congress be witnessed by a district
resident. See id. at 398. In considering whether the case
satisfied the requirements of the “capable of repetition, yet
evading review” doctrine, we noted that “[e]lection-related
disputes qualify as ‘capable of repetition’ when ‘there is a
reasonable expectation that the challenged provisions will be
applied against the plaintiffs again during future election
21
cycles.’” Id. at 401. We concluded that that requirement was
satisfied in that case. See id.
For all of these reasons, we conclude that we are bound to
apply the doctrine that we and the Supreme Court have
articulated — and recently applied — and we must leave to the
Supreme Court the decision of whether it wishes to create an
exception to, or otherwise limit, that rule. Accordingly,
because Appellants cannot satisfy the same-complaining-party
requirement, the “capable of repetition, yet evading review”
doctrine does not apply, and the district court erred in not
dismissing Counts I and II for lack of subject-matter
jurisdiction. We therefore vacate the district court’s merits
ruling regarding the claims and remand them to the district
court for dismissal in accordance with Rule 12(h)(3).
B.
The FEC contends that the district court erred in declining
to dismiss Count III on mootness grounds as well. We disagree.
In Count III the Fund and ARCC challenge the
constitutionality of the annual $5,000 limit that applies to
contributions from MPCs to state political party committees and
their local affiliates, and the Fund challenges the
constitutionality of the annual $15,000 limit on contributions
from MPCs to national party committees. See 52 U.S.C.
22
§ 30116(a)(2)(B)-(C). The FEC advances distinct mootness
arguments concerning each of these two challenges.
Regarding the challenge to the limit on contributions to
state party committees and their local affiliates, the FEC notes
that the Amended Complaint alleges that the Fund wished to
“immediately contribute an additional $5,000 to . . . ARCC,
which would bring its total contributions to . . . ARCC for the
year 2014 to $10,000.” J.A. 59. The FEC argues that, once
2014 ended, this challenge was moot because the district court
could not grant the Fund the right to contribute additional
amounts to ARCC in 2014.
We conclude, however, that this challenge, unlike those
presented in Counts I and II, easily fits into the “capable of
repetition, yet evading review” exception. It is undisputed
that the election cycle is too short in duration for election
disputes to be fully litigated within a single cycle. See Moore
v. Ogilvie, 394 U.S. 814, 816 (1969). And the Fund very well
may wish to contribute more than $5,000 to the ARCC in future
years. To invoke the exception, Appellants are not required to
forecast evidence that they were so inclined. See North
Carolina Right to Life Comm. Fund for Indep. Political
Expenditures v. Leake, 524 F.3d 427, 435 (4th Cir. 2008)
(holding that constitutional challenges to system of public
financing for judicial elections, brought by two political
23
committees and a candidate, were not mooted by the election even
though neither the political committees nor the candidate had
specifically alleged an intent to participate in future election
cycles; concluding that “there is a reasonable expectation that
the challenged provisions will be applied against the plaintiffs
again during future election cycles”; rejecting “the argument
that an ex-candidate’s claims may be ‘capable of repetition yet
evading review’ only if the ex-candidate specifically alleges an
intent to run again in a future election”); see also Honig, 484
U.S. at 318-19 n.6 (“Our concern in these cases, as in all
others involving potentially moot claims, was whether the
controversy was capable of repetition and not . . . whether the
claimant had demonstrated that a recurrence of the dispute was
more probable than not.” (emphasis in original)).
As for the Fund’s challenge to the annual $15,000 limit on
contributions from MPCs to national party committees, the FEC
contends that that challenge was mooted by the December 2014
change in the law referenced earlier. The Fund had alleged in
its 2014 Amended Complaint that it wanted to “immediately
contribute $32,400 to the” NRSC. J.A. 59. The December 2014
amendment authorized the NRSC to create a segregated account to
fund their building-headquarters expenses and another to fund
24
their election-related legal expenses. 4 See Consolidated and
Further Continuing Appropriations Act, 2015, Pub. L. 113-235,
Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified
as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).
Under the new law, donors may make contributions to each of
these new accounts in amounts up to three times the amounts they
could previously contribute to a national party committee. See
id. In this way, if the NRSC created such segregated accounts,
the Fund would have been free to contribute $32,400 to the
building-fund account or legal-fund account were it so inclined.
We conclude, however, that the possible availability of this new
option did not moot the challenge here. Nothing in the record
indicates that the Fund had or has any interest in donating to
such specialized accounts. Because the $15,000 limit that the
Fund is challenging remains in place, we conclude that this
challenge, like the challenge to the $5,000 annual limit on MPC
contributions to state and local political committees, fits into
the “capable of repetition, yet evading review” exception.
IV.
Having determined that the district court possessed
subject-matter jurisdiction over Count III, and that we continue
4
The provision pertaining to accounts for the expenses
concerning presidential nominating conventions does not apply to
national congressional campaign committees. See 52 U.S.C.
§ 30116(a)(9)(A).
25
to possess jurisdiction as well, we turn to Appellants’
contention that the district court erred in granting summary
judgment to the FEC on the merits on that claim. We conclude
that the district court was correct to grant summary judgment.
“We review a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court, and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,
384–85 (4th Cir. 2012) (internal quotation marks omitted).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
Although the Fourteenth Amendment’s Equal Protection Clause
does not apply to the federal government, the Fifth Amendment’s
Due Process Clause contains an equal protection component. See
Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Indeed, the
Supreme Court has explained that “the equal protection
obligations imposed by the Fifth and the Fourteenth Amendments
[are] indistinguishable.” Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 217 (1995).
“To succeed on an equal protection claim, a plaintiff must
first demonstrate that he has been treated differently from
26
others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful
discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001). “Once this showing is made, the court proceeds to
determine whether the disparity in treatment can be justified
under the requisite level of scrutiny.” Id.
Count III alleges that the challenged limits violate the
Fifth Amendment’s equal protection component by discriminating
against MPCs and in favor of political committees that have
satisfied the other MPC criteria but have yet to complete the
waiting period. The critical case governing this claim is
California Medical Ass’n v. FEC, 453 U.S. 182 (1981) (“CMA”).
In that case, an unincorporated association of California
doctors, along with other plaintiffs, brought a declaratory
judgment action challenging the constitutionality of a FECA
provision prohibiting individuals and unincorporated
associations from contributing more than $5,000 to any MPC in a
calendar year. See id. at 185-86. One basis for the challenge
was that the provision violated the equal protection component
of the Fifth Amendment’s Due Process Clause. See id. at 200.
The plaintiffs’ position was that even though unincorporated
associations were similarly situated to corporations and labor
unions, the provision treated unincorporated associations more
harshly since corporations and labor unions were not subject to
27
a similar limit. 5 See id. The district court certified the
constitutional questions in the case to the Ninth Circuit, which
upheld the provision. See id. at 186. The plaintiffs then
sought review of that decision in the Supreme Court. See id. at
186-87.
Like the Ninth Circuit, the Supreme Court concluded that
the challenged limit did not violate the Fifth Amendment. The
Court reasoned as follows:
In order to conclude that [the restriction] . . .
violates the equal protection component of the Fifth
Amendment, we would have to find that because of this
provision [FECA] burdens the First Amendment rights of
persons subject to [the challenged restriction] to a
greater extent than it burdens the same rights of
corporations and unions, and that such differential
treatment is not justified. We need not consider this
second question — whether the discrimination alleged
by appellants is justified — because we find no such
discrimination. Appellants’ claim of unfair treatment
ignores the plain fact that the statute as a whole
imposes far fewer restrictions on individuals and
unincorporated associations than it does on
corporations and unions. Persons subject to the
[challenged restriction] may make unlimited
expenditures on political speech; corporations and
unions, however, may make only the limited
5 FECA allowed corporations and labor unions to pay for the
establishment, administration, and solicitation of a “‘separate
segregated fund to be utilized for political purposes.’”
California Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (quoting
2 U.S.C. § 441b(b)(2)(C) (now 52 U.S.C. § 30118(b)(2)(C))).
There was no statutory limitation on the amount these groups
could spend on such funds. See id. And, the plaintiffs claimed
that the contributions of a corporation or labor union to its
segregated political fund should be considered to be directly
analogous to the contributions of an unincorporated association
to an MPC. See id.
28
contributions authorized by § 441b(b)(2) [now 52
U.S.C. § 30118(b)(2)]. Furthermore, individuals and
unincorporated associations may contribute to
candidates, to candidates’ committees, to national
party committees, and to all other political
committees while corporations and unions are
absolutely barred from making any such contributions.
In addition, [MPCs] are generally unrestricted in the
manner and scope of their solicitations; the
segregated funds that unions and corporations may
establish pursuant to §441b(b)(2)(C) [now 52 U.S.C.
§ 30118(b)(2)(C)] are carefully limited in this
regard.
Id. at 200-01 (emphasis in original).
The FEC argues that the claims here fail for similar
reasons in that political committees overall clearly receive
more favorable treatment under FECA than do other groups. For
that reason, the FEC argues, there is no discrimination by FECA
against MPCs that must be justified. We largely agree with the
FEC’s position, but with one caveat. We believe the FEC is
correct to the extent it argues that CMA requires us, in
determining whether actionable discrimination has occurred, to
compare the treatment the relevant respective groups receive
under FECA overall, not just the treatment the groups receive
under the specific provision of FECA that is being challenged.
We conclude, however, that the proper comparison is between
political committees that have become MPCs and political
committees that have not completed the waiting period but have
satisfied the other MPC conditions. It is those two groups,
29
after all, that Appellants maintain are similarly situated yet
treated differently under FECA.
Nevertheless, in our estimation, Appellants cannot show
that FECA overall burdens the First Amendment rights of
political committees that have become MPCs more than it burdens
the rights of political committees that have satisfied all MPC
requirements but the waiting period. That is so because the
decrease in the amount of contributions that political
committees, once they become MPCs, can make annually to state
party committees or their local affiliates (from $10,000 to
$5,000) and to national party committees (from $32,400 to
$15,000) is more than counteracted by the increase in the limits
in the amount of contributions that MPCs can make to individual
candidates (from $2,600 to $5,000). To the extent that there is
a difference in treatment, it appears to us to favor the MPCs in
that the total amount of money MPCs can contribute overall will
be substantially greater since there are so many different
individual candidates to which the respective entities can
contribute. Because Appellants cannot demonstrate that FECA
discriminates against MPCs, there is no discrimination to be
justified, and we conclude that the FEC was entitled to summary
judgment on Count III.
30
V.
In sum, we conclude that the district court erred in
adjudicating the merits of Counts I and II, as those claims
became moot once the political committees challenging them
became MPCs and were no longer subject to the limitations they
were challenging. Accordingly, we vacate the merits judgment on
those claims and remand to the district court with instructions
to dismiss them for lack of subject-matter jurisdiction. On the
other hand, we conclude the district court properly granted
summary judgment to the FEC on Count III, and we therefore
affirm the judgment on that claim.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
WITH INSTRUCTIONS TO DISMISS
31