Libertarian National Committee v. FEC ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 30, 2018 Decided May 21, 2019
No. 18-5227
LIBERTARIAN NATIONAL COMMITTEE, INC.,
APPELLANT
v.
FEDERAL ELECTION COMMISSION,
APPELLEE
On Certification of Constitutional Questions
from the United States District Court
for the District of Columbia
(No. 1:16-cv-00121)
Alan Gura argued the cause and filed the briefs for
appellant.
Timothy Sandefur and Aditya Dynar were on the brief for
amicus curiae Goldwater Institute in support of appellant.
Allen Dickerson and Zac Morgan were on the brief for
amicus curiae Institute for Free Speech in support of appellant.
Jacob S. Siler, Attorney, Federal Election Commission,
argued the cause for appellee. With him on the brief were Kevin
A. Deeley, Associate General Counsel, and Harry J. Summers,
Assistant General Counsel.
2
Paul M. Smith, Tara Malloy, Megan P. McAllen, Fred
Wertheimer, and Donald J. Simon were on the brief for amici
curiae Campaign Legal Center, et al. in support of appellee.
Before: GARLAND, Chief Judge, and HENDERSON,
ROGERS, TATEL, GRIFFITH, SRINIVASAN, MILLETT, PILLARD,
WILKINS, and KATSAS, Circuit Judges.*
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by
Circuit Judge GRIFFITH.
Opinion concurring in part, concurring in the judgment in
part, and dissenting in part filed by Circuit Judge KATSAS, with
whom Circuit Judge HENDERSON joins.
TATEL, Circuit Judge: When Joseph Shaber passed away,
he left over $235,000 to the Libertarian National Committee
(LNC). This case is about when and how the LNC can spend
that money. The LNC argues that the Federal Election
Campaign Act (FECA), which imposes limits on both donors
and recipients of political contributions, violates its First
Amendment rights in two ways: first, by imposing any limits
on the LNC’s ability to accept Shaber’s contribution, given that
he is dead; and second, by permitting donors to triple the size
of their contributions, but only if the recipient party spends the
money on specified categories of expenses. Scrutinizing each
provision in turn, we find no constitutional defects and reject
the LNC’s challenges.
*
Circuit Judge Rao did not participate in this matter.
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I.
Over half a million voters have registered as Libertarians.
See Findings of Fact (“CF”) ¶ 3, Libertarian National
Committee, Inc. v. Federal Election Commission, 317 F. Supp.
3d 202 (D.D.C. 2018). The LNC, the national committee of the
Libertarian Party, has over 130,000 members and about 15,000
active donors. See CF ¶¶ 1, 3.
During his lifetime, Joseph Shaber was one of those
donors, contributing a total of $3,315 in a series of relatively
small donations over some twenty-five years. See CF ¶¶ 109–
10. Unbeknownst to the LNC, Shaber intended to be a donor in
death as well. See CF ¶ 115. In 2015, shortly after Shaber had
passed away, the LNC learned that Shaber left it the generous
sum of $235,575.20. See CF ¶¶ 117, 121.
But the LNC had a problem. Under FECA, “no person,”
52 U.S.C. § 30116(a)(1), may make a contribution to a national
political party committee above an inflation-adjusted annual
limit, see id. § 30116(c)—which, in 2015, capped contributions
at $33,400, see CF ¶ 119—and national party committees, in
turn, “may not solicit, receive, . . . or spend any funds” donated
in excess of that limit, 52 U.S.C. § 30125(a). Furthermore, the
Federal Election Commission (the “Commission”), the agency
charged with enforcing FECA, interprets “person” to include
the dead and their estates. See FEC Advisory Opinion 1999–14
(Council for a Livable World), 1999 WL 521238, at *1 (July
16, 1999) (“[A] testamentary estate is the successor legal entity
to the testator and qualifies as a person under the Act . . . .”).
Taken together, these restrictions prohibited the LNC from
accepting more than $33,400 of Shaber’s donation into the
LNC’s general fund in 2015.
But there was another way. Just the previous year, in 2014,
Congress had amended FECA to permit donors to contribute,
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over and above their general-purpose contributions, amounts
up to three times the base limit into each of three new kinds of
“separate, segregated” party-committee accounts.
Consolidated and Further Continuing Appropriations Act,
2015, Pub. L. No. 113-235, div. N, § 101, 128 Stat. 2130,
2772–73 (2014) (codified at 52 U.S.C. § 30116(a)(1)(B),
(a)(9)). Recipient parties may use these accounts to pay for
“presidential nominating convention[s],” party “headquarters
buildings,” and “election recounts . . . and other legal
proceedings.” 52 U.S.C. § 30116(a)(9). In 2015, then, the LNC
could have accepted up to $334,000 from Shaber’s bequest,
taking $33,400 into its general fund and $100,200 into each of
three segregated funds.
The LNC, however, preferred not to tie up the majority of
Shaber’s gift in segregated accounts, and the trustee in charge
of distributing Shaber’s gift concluded that she had no
authority to require the LNC to accept the full bequest into a
combination of general- and dedicated-purpose accounts
because she “could not impose restrictions on Mr. Shaber’s
bequest that Mr. Shaber did not himself place.” CF ¶¶ 126–27.
Accordingly, the LNC accepted only $33,400 of Shaber’s
donation, see CF ¶ 119, and the trustee asked the Commission
for an advisory opinion on what to do with the rest, see 52
U.S.C. § 30108(a) (requiring the Commission to issue written
advisory opinions upon request). In that request, the trustee
proposed to put the balance of Shaber’s bequest into an escrow
account that would disburse the maximum base-limit
contribution into the LNC’s general fund each year until the
entire gift had been depleted (about seven years in total). See
FEC Advisory Opinion 2015–05 (Shaber), 2015 WL 4978865,
at *1 (Aug. 11, 2015). The Commission approved this plan,
with the caveat that the escrow agreement must prevent the
LNC from “exercis[ing] control over the undisbursed funds.”
Id. at *3 n.4.
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In September 2015, the trustee and the LNC signed an
agreement under which the remaining $202,175.20 of Shaber’s
bequest would be deposited into an escrow account. See CF
¶ 128. Pursuant to the escrow agreement, in January of every
year the LNC receives a payment equal to the inflation-
adjusted contribution limit. See CF ¶ 128; see also Defendant
Federal Election Commission’s Memorandum in Support of its
Motion to Dismiss and in Opposition to Plaintiff’s Motion to
Certify Facts and Questions, Ex. 27 (“Escrow Agreement”) ¶ 3,
Libertarian National Committee, 317 F. Supp. 3d 202 (No. 16-
cv-00121), ECF No. 26-31. Although the escrow agreement
prohibits the LNC from requesting any money in excess of the
contribution limit, it does allow the committee to accept the
“entire balance of the Escrow Fund” if it successfully
“challenge[s] the legal validity of the [c]ontribution [l]imit in
federal court.” Escrow Agreement ¶ 3.
The LNC now seeks to do just that. On January 25, 2016,
it filed this action challenging both the application of FECA’s
contribution limits to Shaber’s bequest and FECA’s new two-
tiered limit on contributions to general and segregated
accounts. See Complaint ¶¶ 21–34, Libertarian National
Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121), ECF No.
1. Proceeding under FECA’s special judicial review provision,
the district court then certified factual findings and “non-
frivolous constitutional questions” to this en banc court.
Holmes v. Federal Election Commission, 875 F.3d 1153, 1157
(D.C. Cir. 2017) (en banc); see also 52 U.S.C. § 30110 (“The
district court immediately shall certify all questions of
constitutionality of [FECA] to the United States court of
appeals for the circuit involved, which shall hear the matter
sitting en banc.”).
With the benefit of the district court’s findings of fact and
certification order, we now consider the three legal questions
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articulated by the district court. See Order, Libertarian
National Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121),
ECF No. 34 (“Certification Order”). First:
Does imposing annual contribution limits against the
bequest of Joseph Shaber violate the First
Amendment rights of the Libertarian National
Committee?
Id. at 2. Second:
Do [FECA’s contribution limits], 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 [the] general purpose contribution limit to those
specialized purposes enumerated in § 30116(a)(9)?
Id. Or, put more simply, does FECA’s two-tiered contribution
limit, on its face, violate the First Amendment? And third:
Do [FECA’s contribution limits] 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 [the] general purpose
contribution limit to those specialized purposes
enumerated in § 30116(a)(9)?
Id. Again, put more simply, does FECA’s two-tiered
contribution limit, as applied to Shaber’s bequest, violate the
First Amendment?
After assuring ourselves of subject-matter jurisdiction, we
address each question in turn.
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II.
“[T]he ‘irreducible constitutional minimum’ of standing
consists of three elements. The plaintiff must have (1) suffered
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016) (internal citation omitted) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The
Commission sees three defects in the LNC’s standing. We see
none.
The Commission first argues that by electing to place the
balance of Shaber’s gift into escrow instead of accepting it into
segregated accounts, the LNC has inflicted its own injury. See
National Family Planning & Reproductive Health Ass’n v.
Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (explaining that
self-inflicted harm “does not amount to an ‘injury’ cognizable
under Article III,” nor is it “fairly traceable to the defendant’s
challenged conduct”). Of course the Commission is correct in
the most literal sense: the LNC did, indeed, put pen to paper
and sign the escrow agreement. But as the district court
explained in rejecting the Commission’s self-infliction
argument, the LNC’s injury stems not from its inability to
accept the entire bequest immediately (which it could have
done), but rather from the committee’s “inability to accept
[immediately] the entire bequest for general expressive
purposes” (which FECA prohibits). Libertarian National
Committee, Inc. v. Federal Election Commission, 228 F. Supp.
3d 19, 25 (D.D.C. 2017). The Commission forced the LNC to
choose between immediate access to the money and long-term
flexibility in spending it; that the committee chose the lesser of
two evils hardly transforms FECA’s limitation into a self-
imposed restriction.
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The Commission, however, has a response: because
“[m]oney is fungible,” a dollar contributed into a segregated
account “is an extra dollar from the . . . general account that
becomes available for [the LNC’s] general expressive
purposes.” Federal Election Commission’s Motion to Dismiss
for Lack of Subject-Matter Jurisdiction (“Motion”) at 14–15.
Perhaps so, but the arithmetic just does not work. In 2015, the
year the LNC first gained access to Shaber’s $235,575 bequest,
it spent only $341 on its 2016 presidential nominating
convention and $7,261 on legal proceedings. Therefore, even
assuming the LNC could have maxed out its headquarters
spending at $100,200 and accepted an additional $33,400 into
its general account, some $94,373 of Shaber’s bequest would
have remained unused as of December 31, 2015.
Contrary to the Commission’s argument, we have no need
to examine the LNC’s “2016 budget expectations and
expenditures.” Motion at 17. True, the LNC must demonstrate
standing “as of the time [its] suit commence[d]” in January
2016, Del Monte Fresh Produce Co. v. United States, 570 F.3d
316, 324 (D.C. Cir. 2009), and expense reports reveal that by
the end of 2016, the LNC had incurred enough convention,
headquarters, and legal costs to have fully absorbed what
remained of Shaber’s donation—assuming the money it spent
on those expenses was itself unrestricted and thus fully
fungible. But by January 2016, Shaber’s bequest sat locked in
an escrow account over which—at the Commission’s
direction—the LNC exercised “no control.” FEC Advisory
Opinion 2015–05 (Shaber), 2015 WL 4978865, at *3 (Aug. 11,
2015). The relevant date is therefore September 2015, when the
LNC committed itself to the escrow arrangement. At that time,
although the committee may have projected certain expenses,
it lacked perfect information about what costs it would incur
and what other donations it might receive in the new year. We
cannot rely on hindsight to fault the LNC for its failure of
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foresight, and in any event, our task is not to assess the
committee’s financial planning acumen. Rather, we must
determine only whether the LNC suffered a cognizable injury
in fact that is fairly traceable to the Commission’s conduct
(and, by extension, to FECA). The LNC easily clears that bar.
Next, the Commission argues that a favorable judicial
determination could not redress the LNC’s injury because this
suit, filed in 2016, seeks only injunctive and declaratory relief
for harm suffered a year earlier in 2015, when Shaber’s bequest
became available. To be sure, our Article III authority does not
include the power to turn back time. Nonetheless, much of the
money remains tied up in escrow, and we most certainly do
have authority to invalidate the challenged portions of FECA—
which, per the escrow agreement, would afford the LNC
immediate access to the remainder of the bequest for all
purposes. See Escrow Agreement ¶ 3. That is redress.
Finally, the Commission points out that the LNC “lacks
standing to the extent its claims” depend on the allegation that
the challenged contribution limits “place the Libertarian Party
at a competitive disadvantage vis-à-vis other political parties,”
which, the Commission argues, “is akin to the oft-rejected
argument that a party is harmed because it is at a fundraising
disadvantage to its competitors.” Motion at 20–21. But
according to the LNC, “that extent is zero.” Plaintiff’s
Opposition to Defendant’s Motion to Dismiss (“Opposition”)
at 15. Taking the LNC at its word, we conclude, as did the
district court, that the committee has alleged a cognizable harm
in its inability to accept immediately “the entire bequest for
general expressive purposes.” Libertarian National
Committee, Inc., 228 F. Supp. 3d at 25.
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III.
We proceed to the first certified question: whether
applying FECA’s annual contribution limits specifically to
Shaber’s bequest violates the LNC’s First Amendment rights.
A.
As the Supreme Court recognized in Buckley v. Valeo—
its first and seminal case examining FECA’s
constitutionality—contribution limits “operate in an area of the
most fundamental First Amendment activities.” 424 U.S. 1, 14
(1976) (per curiam). “There is no right more basic in our
democracy,” the Chief Justice explained in his recent plurality
opinion in McCutcheon v. Federal Election Commission, “than
the right to participate in electing our political leaders.” 572
U.S. 185, 191 (2014) (plurality opinion).
In fact, political contributions implicate two distinct First
Amendment rights: freedom of speech and freedom of
association. “When an individual contributes money to a
candidate, he exercises both of those rights: The contribution
‘serves as a general expression of support for the candidate and
his views’ and ‘serves to affiliate a person with a candidate.’”
McCutcheon, 572 U.S. at 203 (plurality opinion) (quoting
Buckley, 424 U.S. at 21–22). The recipient, too, has First
Amendment interests in accepting campaign contributions.
“[V]irtually every means of communicating ideas in today’s
mass society requires the expenditure of money,” from
“distributi[ng] . . . the humblest handbill,” to “hiring a hall and
publicizing” rallies, to purchasing airtime on “television, radio,
and other mass media.” Buckley, 424 U.S. at 19. And, of
course, just as contributors associate with candidates and
parties by making donations, so, too, do recipients associate
with contributors by accepting donations. See id. at 18, 22(explaining that contributions “enable[] like-minded persons to
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pool their resources in furtherance of common political goals”
and that contribution limits therefore restrict “association by
persons, groups, candidates, and political parties”).
Altogether, then, in the world of political contributions,
the First Amendment protects two kinds of rights (speech and
association) belonging to two different rights-holders (donors
and recipients). As the parties argue this case, however, the
First Amendment interests at issue occupy only one box of the
rights/rights-holders two-by-two matrix. Because “Shaber’s
death ended his expression and association,” and because the
LNC “does not associate with the dead,” the committee admits
that “[t]his case concerns primarily the LNC’s speech rights
with respect to the Shaber bequest.” Appellant’s Br. 34–35. We
thus find ourselves in the speech-recipient box.
According to the Commission, contribution limits have
only minimal bearing on a recipient’s free-speech rights. On
the one hand, as the Commission observes, the Court held in
Buckley that “restriction[s] on the amount of money a . . . group
can spend on political communication during a campaign”—
that is, expenditure limits—“necessarily reduce[] the quantity
of expression” and therefore receive “the exacting scrutiny
applicable to limitations on core First Amendment rights.”
Buckley, 424 U.S. at 19, 44–45 (emphasis added). On the other
hand, restrictions on the amount of money someone can
donate—that is, contribution limits—“merely . . . require
candidates and political committees to raise funds from a
greater number of persons” “rather than . . . reduce the total
amount of money potentially available to promote political
expression.” Id. at 22. Therefore, as the Court explained in
Buckley and reiterated in McConnell v. Federal Election
Commission, “[b]ecause the communicative value of large
contributions inheres mainly in their ability to facilitate the
speech of their recipients, . . . contribution limits impose
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serious burdens on free speech only if they are so low as to
‘preven[t] candidates and political committees from amassing
the resources necessary for effective advocacy.’” McConnell v.
Federal Election Commission, 540 U.S. 93, 135 (2003) (third
alteration in original) (quoting Buckley, 424 U.S. at 21); see
also Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality
opinion) (explaining that contribution limits fail “to survive
First Amendment scrutiny” if they “prevent candidates from
‘amassing the resources necessary for effective [campaign]
advocacy’” or “magnify the advantages of incumbency to the
point where they put challengers to a significant disadvantage”
(alteration in original) (quoting Buckley, 424 U.S. at 21)).
If that is the test, then FECA’s contribution limit as applied
to Shaber’s bequest clearly passes. The LNC nowhere claims
that it needs Shaber’s money in order to “amass[] the resources
necessary for effective advocacy.” Buckley, 424 U.S. at 21.
Surely, Shaber’s gift hardly represents a make-or-break sum
for the committee’s ability to engage in political
communication. We doubt, moreover, that the LNC could
make such a showing given that FECA’s current contribution
limits are no lower than the ceilings the Court approved in
McConnell.
With respect to donors’ rights, by contrast, contribution
limits tread closer to core First Amendment activity. To be
sure, the speech embodied by a political contribution lacks
nuance: because a contribution “does not communicate the
underlying basis for the [donor’s] support,” “[a]t most, the size
of the contribution provides a very rough index of the intensity
of the contributor’s support for the candidate.” Buckley, 424
U.S. at 21. That said, the ability to express support through
monetary donations provides an “important means of
associating with a candidate or committee,” id. at 22—and a
particularly important means, at that, for “individuals who do
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not have ready access to alternative avenues for supporting
their preferred politicians,” such as volunteering in person,
McCutcheon, 572 U.S. at 205 (plurality opinion). To protect
contributors’ heterogeneous First Amendment interests in
making political donations, therefore, the Court has announced
a single unified test that applies an intermediate level of
scrutiny to contribution limits. See Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 388 (2000) (explaining that
“a contribution limitation surviving a claim of associational
abridgment would survive a speech challenge as well”).
“Closely drawn” scrutiny, as the Court now calls it, requires
that “the [government] demonstrate[] a sufficiently important
interest and employ[] means closely drawn to avoid
unnecessary abridgment” of First Amendment rights. Buckley,
424 U.S. at 25; see also McCutcheon, 572 U.S. at 197 (plurality
opinion) (same).
But these decisions have left open the question whether
closely drawn scrutiny—usually justified as a mechanism to
safeguard donors’ rights—also applies to a law limiting a
recipient’s right to receive a donation absent a corollary
restriction on a contributor’s right to contribute. Because the
typical donor is a living human being capable of both speaking
and associating, neither the Supreme Court nor we have had
occasion to untangle a recipient’s rights from its donors’. But
even though Shaber no longer speaks nor associates, Buckley
and its progeny hardly foreclose application of closely drawn
scrutiny to the contribution limit at issue in this case. We shall
therefore assume, without deciding, that closely drawn scrutiny
applies to the imposition of contribution limits on Shaber’s
bequest. And because we conclude that FECA’s limits survive
even that heightened standard of review, we have no need to
interrogate that assumption further.
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B.
“In a series of cases over the past 40 years,” the Supreme
Court has repeatedly recognized the government’s interest in
imposing contribution limits to combat “‘quid pro quo’
corruption [and] its appearance.” McCutcheon, 572 U.S. at 192
(plurality opinion) (emphasis omitted). The risk that candidates
might exchange political favors for money is far from
hypothetical. As the Court explained in McConnell, “[t]he idea
that large contributions to a national party can corrupt or, at the
very least, create the appearance of corruption of federal
candidates and officeholders is neither novel nor implausible.”
540 U.S. at 144. Indeed, both Buckley and McConnell cited
“deeply disturbing examples” of “pernicious practices” in then-
recent election cycles. Buckley, 424 U.S. at 27; see also
McConnell, 540 U.S. at 122 (noting “disturbing findings of a
Senate investigation into campaign practices related to the
1996 federal elections”). Therefore, given the threat posed by
actual and apparent corruption to “the integrity of our system
of representative democracy,” Buckley, 424 U.S. at 26–27, the
Court has long held that “the Government’s interest in
preventing quid pro quo corruption or its appearance . . . may
properly be labeled ‘compelling,’” McCutcheon, 572 U.S. at
199 (plurality opinion) (emphasis omitted) (quoting Federal
Election Commission v. National Conservative Political Action
Committee, 470 U.S. 480, 496 (1985)).
The risk of quid pro quo corruption does not disappear
merely because the transfer of money occurs after a donor’s
death. Individuals planning to bequeath a large sum to a
political party have two points of leverage during their
lifetimes: they may tell the party about their intentions, and
they may change their minds at any time. That latter possibility,
as the district court found, “creates an incentive for a national
party committee to limit the risk that a planned bequest will be
revoked” and could cause that party, “its candidates, or its
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office holders to grant political favors to the individual in the
hopes of preventing the individual from revoking his or her
promise.” CF ¶ 100 (first quoting Findings of Fact ¶ 92,
Libertarian National Committee, Inc. v. Federal Election
Commission (LNC I), 930 F. Supp. 2d 154, 186 (D.D.C. 2013),
aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014);
then quoting Defendant Federal Election Commission’s
Proposed Findings of Facts ¶ 80, Libertarian National
Committee, 317 F. Supp. 3d 202 (No. 16-cv-00121), ECF No.
26-3) (internal quotation marks omitted). In other words, a
donor’s death simply imposes a sequencing constraint on a
quid pro quo exchange. Instead of money for votes, the donor
requires votes for money—or, to be more precise, political
favors now for the promise of money later. And even that
constraint evaporates in the case of corrupt donors seeking
favors for their survivors. Although an individual’s death
terminates his ability to profit personally from a corrupt quo in
exchange for his bequeathed quid, the donor’s surviving
friends and family remain all too capable of accepting political
favors that their deceased benefactor may have pre-arranged
for their benefit.
What’s more, where the courts have observed a risk of
corruption, so too will the electorate. As the Court explained in
Buckley, “[o]f almost equal concern as the danger of actual
quid pro quo arrangements is the impact of the appearance of
corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large individual
financial contributions.” 424 U.S. at 27. Voters lack the means
to examine the intentions behind suspiciously sizable
contributions, a problem that becomes especially acute in the
case of a deceased donor who, of course, is forever unavailable
to answer inquiries. As a result, the corruptive potential of
unregulated contributions, including the unregulated
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contributions of the dead, inflicts almost as much harm on
public faith in electoral integrity as corruption itself.
The LNC acknowledges these risks. “Nobody here
disputes the theoretical corruption potential of bequests,”
declares the committee. Reply Br. 13. And as a result, the LNC
has declined, both before the district court and on appeal, to
“revisit” the conclusion that bequests “generally warrant[] . . .
subjection to FECA’s contribution limits.” Appellant’s Br. 35;
see also CF ¶ 93 (“‘[I]t is possible for a bequest to raise valid
anti-corruption concerns,’ as the LNC has ‘concede[d].’”
(alterations in original) (quoting LNC I, 930 F. Supp. 2d at
166)).
It is precisely because the LNC concedes “the theoretical
corruption potential of bequests,” Reply Br. 13, that we do not
share our dissenting colleague’s concern that “the
[Commission] points to nothing substantiating” the same, Op.
at 10 (Katsas, J.). The government may, just like any other
litigant in any other case, accept an opposing party’s
concession. Moreover, among the district court’s findings that
the LNC declines to dispute, see Oral Arg. Rec. 32:01–18
(conceding that this court is bound by the district court’s
findings of fact unless clearly erroneous), are several that
amount to substantial evidence demonstrating the
government’s anticorruption interest in regulating bequests.
To begin with, contrary to the dissent’s assertion that “bequests
are rarely used for political contributions,” Op. at 10 (Katsas,
J.), the district court found that since 1978 donors have
contributed “more than $3.7 million in bequeathed funds,” not
infrequently in five- and six-figure amounts. CF ¶ 102; see also
CF ¶¶ 103–08 (listing bequeathed contributions to national
political party committees). And that figure is “likely
underreported,” as “reporting entities are not required to inform
the [Commission] that a particular contribution they received
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came from a bequest.” CF ¶ 102. In fact, the LNC did not report
Shaber’s bequest as such. See CF ¶ 102. Furthermore, the
district court found that “nothing prevents a living person from
informing the beneficiary of a planned bequest about that
bequest,” CF ¶ 94; that “[p]olitical committees ‘could feel
pressure to . . . ensure that a (potential) donor is happy with the
committee’s actions lest [that donor] revoke the bequest,’” CF
¶ 100 (second and third alterations in original) (quoting LNC I,
930 F. Supp. 2d at 167); and that this pressure could cause a
“national party committee, its candidates, or officeholders . . .
[to] grant that individual political favors,” CF ¶ 99 (internal
quotation marks omitted). Altogether, the district court’s 178
paragraphs of findings amount to much more than “‘mere
conjecture,’” Op. at 11 (Katsas, J.) (quoting McCutcheon, 572
U.S. at 210 (plurality opinion)), that bequests pose a threat of
quid pro quo corruption.
Disclaiming any “categorical challenge to the limitation of
all bequests,” the LNC instead asks us to conduct an “as-
applied” inquiry “narrowly focused on one particular bequest”:
“whether Shaber’s bequest, specifically, warrants government
limitation.” Appellant’s Br. 30, 35. It does not, says the LNC,
because the bequest was not corrupt and the government
therefore has no legitimate interest in its restriction.
As to the first half of the LNC’s argument, we have no
trouble making the unremarkable assumption that Shaber’s
contribution was not, in fact, part of a corrupt quid pro quo
exchange. Buckley rested on precisely the same assumption—
that “most large contributors do not seek improper influence
over a candidate’s position or an officeholder’s action.”
Buckley, 424 U.S. at 29. Indeed, the LNC’s observation that
contribution limits restrict legitimate as well as corrupt
donations is wholly unsurprising. The Court has often “noted
that restrictions on direct contributions are preventative,
18
because few if any contributions to candidates will involve
quid pro quo arrangements.” Citizens United v. Federal
Election Commission, 558 U.S. 310, 357 (2010) (emphasis
omitted).
But that is precisely the point: it is “difficult to isolate
suspect contributions” in the sea of legitimate donations.
Buckley, 424 U.S. at 30. As the LNC sees it, because the
government’s interest lies in preventing quid pro quo
corruption, the government may restrict only corrupt
contributions. The government, however, already has those
restrictions on the books: they are called bribery laws. But
bribery laws “deal with only the most blatant and specific
attempts of those with money to influence governmental
action,” id. at 28, and if those laws were sufficient to achieve
the government’s compelling interest in preventing quid pro
quo corruption and its appearance, then Congress would have
had no need in the first place to impose contribution limits to
combat prior decades’ “deeply disturbing” quid pro quo
arrangements, id. at 27. Accordingly, the problem with the
LNC’s proposed regime—one under which actually
noncorrupt contributions could exceed FECA’s limits—is that
corruption is notoriously difficult to ferret out, and “the scope
of . . . pernicious practices can never be reliably ascertained.”
Id. Because “the First Amendment does not require Congress
to ignore the fact that ‘candidates, donors, and parties test the
limits of the current law,’” McConnell, 540 U.S. at 144(quoting Federal Election Commission v. Colorado
Republican Federal Campaign Committee, 533 U.S. 431, 457
(2001)), “prophylactic” contribution limits, McCutcheon, 572
U.S. at 221 (plurality opinion), are permissible—even vital—
to forestall the worst forms of political corruption.
Critically, moreover, even if through some omniscient
power courts could separate the innocent contributions from
19
the nefarious, an appearance of corruption would remain.
Although “Congress may not regulate contributions simply to
reduce the amount of money in politics,” id. at 191 (plurality
opinion), it may certainly do more than ask the public to place
groundless faith in a bribery-prevention scheme that has failed
to thwart corruption in the past. “It is therefore reasonable,” the
Court explained in McConnell, “to require that all parties and
all candidates follow the same set of rules” in order to prevent
“‘both the actual corruption threatened by large financial
contributions and the eroding of public confidence in the
electoral process through the appearance of corruption.’” 540
U.S. at 136, 159 (quoting Federal Election Commission v.
National Right to Work Committee, 459 U.S. 197, 208 (1982)).
That is not to say as-applied challenges to FECA’s
contribution limits are impossible. Because restrictions that
strike a permissible balance between governmental and
individual interests may nonetheless “impose heavy burdens on
First Amendment rights in individual cases,” John Doe No. 1
v. Reed, 561 U.S. 186, 203 (2010) (Alito, J., concurring),
people may bring as-applied challenges to demonstrate that, in
their unique circumstances, the law in question works too
harshly. For example, “a nascent or struggling minor party can
bring an as-applied challenge” to a contribution limit that
“prevents [the party] from ‘amassing the resources necessary
for effective advocacy,’” McConnell, 540 U.S. at 159 (quoting
Buckley, 424 U.S. at 21), and, similarly, a group may bring an
as-applied challenge to a campaign-contribution disclosure
provision that subjects its donors to “‘threats, harassment, or
reprisals,’” Citizens United, 558 U.S. at 367 (quoting
McConnell, 540 U.S. at 198); see also Doe, 1 v. Federal
Election Commission, 920 F.3d 866, 871 (D.C. Cir. 2019)
(“Citizens United left open the possibility of an as-applied First
Amendment challenge, but only if the donor proved that
revealing its identity would probably bring about threats or
20
reprisals.”). But while an individual may demonstrate that, in
his particular case, a contribution limit imposes an
impermissibly high burden, donors and recipients may not use
the guise of an as-applied challenge merely to relitigate the
government’s settled interest in enforcing “preventative”
limits, Citizens United, 558 U.S. at 357, against all
contributions—corrupt and noncorrupt alike. “[A] plaintiff
cannot successfully bring an as-applied challenge to a statutory
provision based on the same factual and legal arguments the
Supreme Court expressly considered when rejecting a facial
challenge to that provision.” Republican National Committee
v. Federal Election Commission, 698 F. Supp. 2d 150, 157
(D.D.C.) (three-judge panel), aff’d, 561 U.S. 1040 (2010).
Unlike the LNC and the dissent, see Op. at 18 (Katsas, J.),
we see nothing to the contrary in SpeechNow.org v. Federal
Election Commission, 599 F.3d 686 (D.C. Cir. 2010) (en banc).
In that case, we sustained an as-applied challenge to a
contribution limit on the grounds that “the government ha[d]
no anti-corruption interest in limiting contributions to an
independent expenditure group,” id. at 695, but we did not do
so because of anything special about the government’s
anticorruption interest “in that case” in particular, Op. at 18
(Katsas, J.). Instead, we explained that because the Supreme
Court had recently held in Citizens United “as a matter of law
that independent expenditures do not corrupt or create the
appearance of quid pro quo corruption,” neither could
contributions to independent expenditure-only groups “corrupt
or create the appearance of corruption.” SpeechNow.org, 599
F.3d at 694 (emphasis omitted). In this case, by contrast, the
LNC raises no challenge to Buckley nor to the anticorruption
interest that case and its successors recognized. See Appellant’s
Br. 60 n.13 (“[T]his case does not challenge Buckley.”).
21
The dissent suggests that even if the government has an
interest in limiting bequests disclosed during donors’ lifetimes,
it lacks a similar interest in regulating the class of bequests kept
secret until donors’ deaths. See Op. at 12–14 (Katsas, J.). The
trouble, however, is that because the LNC states in no uncertain
terms that its “as-applied Shaber challenge . . . does not contest
any contribution limit’s general sweep,” Reply Br. 11, we are
limited to addressing only the matters raised and litigated by
the parties and certified to this court for review, see 52 U.S.C.
§ 30110—that is, whether “imposing annual contribution
limits against the bequest of Joseph Shaber” violates the LNC’s
First Amendment rights. Certification Order 2. Indeed, the
LNC expressly foreswears any broader challenge. See supra at
17. Perhaps, as the dissent proposes, the Commission might be
able to “police” bequest disclosures in the same manner it
distinguishes coordinated from independent expenditures. Op.
at 14 (Katsas, J.). But there are significant differences, both
practical and constitutional, between independent
expenditures, coordinated expenditures, and contributions. See
supra at 11–12; see also McConnell, 540 U.S. at 221(explaining that coordinated expenditures “may be regulated as
indirect contributions”). For now, then, we simply observe that
the task of distinguishing truly uncoordinated from covertly
disclosed bequests would seem to require the same sorts of
fact-intensive inquiries and give rise to the same sorts of
appearance-of-corruption concerns that prophylactic
contribution limits are designed to avoid. Without the parties
to guide us, we decline to venture into such challenging terrain.
See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)
(“The premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and
argued by the parties before them.”).
22
We thus return to the LNC’s bottom line: “[W]hat about
Shaber?” Reply Br. 14. By the LNC’s logic, the only
individuals who must keep their contributions under FECA’s
limits are those who intend to violate the bribery laws. That just
cannot be what the First Amendment requires. We therefore
answer the first certified question in the negative: imposing
FECA’s contribution limits on Shaber’s bequest does not
violate the LNC’s First Amendment rights.
IV.
This brings us to the second and third certified questions—
a facial and an as-applied challenge—which ask whether it
offends the First Amendment that donors may contribute above
the base limit only if they make their contributions into
segregated, dedicated-purpose accounts.
A.
The only portion of FECA at issue here is an amendment
contained in the Consolidated and Further Continuing
Appropriations Act—what we reluctantly assent to calling the
“cromnibus” amendment. The LNC assures us, as it must, that
it “would not have brought, and the District Court would not
have certified, a challenge to the sort of contribution limits that
the Supreme Court upheld in McConnell.” Appellant’s Br. 40.
Instead, the LNC contends that because the 2014 cromnibus
amendment “radically altered FECA’s nature and structure,”
id., we must now apply a heightened level of scrutiny. What
was constitutional before, the theory goes, is constitutional no
longer.
Accordingly, we begin by considering precisely what “sort
of contribution limits . . . the Supreme Court upheld in
McConnell.” Id. A little history will help.
23
In the FECA Amendments of 1976, Congress imposed a
$20,000 limit on “contributions” to national party committees.
Federal Election Campaign Act Amendments of 1976, Pub. L.
No. 94-283, § 112(2), 90 Stat. 475, 487 (codified as amended
at 52 U.S.C. § 30116(a)(1)(B)). But not all donations qualified
as contributions. Instead, FECA defined “contribution” as a gift
“made . . . for the purpose of influencing any election for
Federal office,” thus leaving unregulated any money ostensibly
donated for the purpose of influencing state and local elections.
Federal Election Campaign Act Amendments of 1979, Pub. L.
No. 96-187, § 101, 93 Stat. 1339, 1340 (1980) (codified as
amended at 52 U.S.C. § 30101(8)). And so “soft money” was
born. While FECA subjected contributions for the purpose of
influencing federal elections (so-called hard money) to its
limits, parties remained free to “raise [soft money] in massive
dollops from single contributors.” Shays v. Federal Election
Commission, 414 F.3d 76, 81 (D.C. Cir. 2005). “Over time,
political parties took increasing advantage of . . . soft money
opportunities,” id., causing, as the Senate Committee on
Governmental Affairs described it, “a ‘meltdown’ of the
campaign finance system,” McConnell, 540 U.S. at 129(quoting S. Rep. No. 105-167, vol. 4, at 4611 (1998); id., vol.
5, at 7515).
Seeking to close the “soft-money loophole,” McConnell,
540 U.S. at 133, Congress enacted the Bipartisan Campaign
Reform Act in 2002. See Bipartisan Campaign Reform Act of
2002, Pub. L. No. 107-155, 116 Stat. 81. Through that statute,
known as BCRA, Congress took a two-pronged approach to
purging federal elections of soft money: it prohibited national
political party committees from accepting or “spend[ing] any
funds” “not subject to” FECA, and it prohibited (with limited
exceptions) state, district, and local party committees from
“expend[ing] or disburs[ing] for Federal election activity” any
funds raised outside FECA’s limits. Id. § 101 (codified at 52
24
U.S.C. § 30125(a), (b)). Approving these soft-money
restrictions in McConnell, the Supreme Court rejected the
argument that BCRA imposes an impermissible expenditure
limit rather than a permissible contribution limit. According to
the Court, BCRA’s soft-money ban, though styled as a
restriction on party “spending,” “simply limit[s] the source and
individual amount of donations” without “limit[ing] the total
amount of money parties can spend.” McConnell, 540 U.S. at
139. “[I]t is irrelevant,” the Court explained, “that Congress
chose . . . to regulate contributions on the demand rather than
the supply side.” Id. at 138.
So what changed? The 2014 cromnibus amendment
introduced gradations into the political party contribution limit
where none had been before. As previously explained, see
supra at 3–4, FECA now permits donors to contribute up to
three times the inflation-adjusted base limit into any of three
new “separate, segregated account[s] . . . used . . . to defray
expenses incurred with respect to” presidential nominating
conventions, headquarters buildings, and recounts and other
legal proceedings. 52 U.S.C. § 30116(a)(9).
Insisting that this case differs meaningfully from Buckley
and McConnell, the LNC argues that we must apply strict
scrutiny to FECA’s new two-tiered scheme. We disagree.
The LNC first contends that because the statute now
restricts how certain funds may be “used,” 52 U.S.C.
§ 30116(a)(9), the cromnibus amendment “transformed”
FECA’s contribution limit into an expenditure limit,
Appellant’s Br. 41. But McConnell forecloses this argument.
That decision teaches that the difference between an
expenditure limit and a contribution limit hinges not on the
statute’s use of magic words such as “spend” (as in BCRA) or
“use” (as in the cromnibus amendment), but rather on a
25
functional test. “The relevant inquiry is whether the mechanism
adopted to implement the contribution limit, or to prevent
circumvention of that limit, burdens speech in a way that a
direct restriction on the contribution itself would not.”
McConnell, 540 U.S. at 138–39.
That test makes this an easy case. Neither the general-
purpose contribution ceiling nor the 300%-higher dedicated-
purpose contribution ceiling “in any way limits the total
amount of money parties can spend.” Id. at 139. The cromnibus
amendment says nothing about how much money political
party committees may expend on general purposes,
conventions, headquarters, and recounts. Instead, the two-
tiered scheme does nothing more than its single-tiered
predecessor: it “simply limit[s] the source and individual
amount of donations” for each category of expenses. Id. Or, as
the Court put it in Buckley, “[t]he overall effect of the Act’s
contribution ceilings is merely to require . . . political
committees to raise funds from a greater number of persons . . .
rather than to reduce the total amount of money potentially
available to promote political expression.” 424 U.S. at 21–22.
That is a contribution limit through and through.
The LNC’s second tack is somewhat more creative, albeit
no more successful. Consider, the LNC posits, a contribution
from Donor Doe that exceeds the base limit by $1, i.e., a
$33,401 donation. Under the cromnibus amendment’s two-
tiered contribution limit, the committee may use Doe’s extra
dollar to pay for a presidential nominating convention but not
a midterm convention, or for a sign on its headquarters but not
a billboard on the street. According to the LNC, then,
regardless of whether the two-tiered limit imposes a
permissible contribution ceiling on donors, with respect to
recipients, FECA’s “spending purpose restrictions directly
limit how the LNC may express itself” based on the content of
26
its speech. Appellant’s Br. 46; see also Reply Br. 20 (criticizing
the Commission’s “obsessive focus on contributors’ interests”
as “irrelevant, because the restrictions at issue target the
parties’ accounts” and because “[i]t is not the donors who are
barred from spending beyond the accounts’ segregated
purposes”). For this proposition, the LNC relies on Reed v.
Town of Gilbert, in which the Court recently held that laws
“defining regulated speech by particular subject matter, . . .
function[,] or purpose,” “are subject to strict scrutiny.” 135 S.
Ct. 2218, 2227 (2015); see also Appellant’s Br. 47–48 (arguing
that “[c]haracterizing FECA’s revised contribution limit as a
pure contribution limit does not alter the fact that it ‘target[s]
speech based on its communicative content,’ ‘by particular
subject matter, and . . . by its function or purpose’” (second and
third alterations in original) (citation omitted) (quoting Reed,
135 S. Ct. at 2226–27)).
But the LNC misses one crucial element in the “content-
based restriction on speech” inquiry: speech. Recall that
Buckley drew a clear distinction between spending money
(expenditures) and receiving money (contributions).
Restrictions on the former regulate speech, as “virtually all
meaningful political communications in the modern setting
involve the expenditure of money” so that an absolute limit on
a political party’s expenditures necessarily restricts its total
amount of expression. Buckley, 424 U.S. at 11. Restrictions on
the latter, however, are something different. Receiving money
facilitates speech, to be sure, but a bank account balance
becomes speech only when spent for expressive purposes. This
is why the Court has made clear “that contribution limits
impose serious burdens on free speech only if they are so low
as to ‘preven[t] . . . political committees from amassing the
resources necessary for effective advocacy.’” McConnell, 540
U.S. at 135 (quoting Buckley, 424 U.S. at 21).
27
So there lies the solution to the Donor Doe problem. The
LNC’s speech occurs when it spends Doe’s money on political
expression. That speech remains unencumbered by FECA
because, as discussed above, see supra at 24–25, the cromnibus
amendment’s two-tiered contribution limit imposes no
expenditure limit. True, the LNC may not spend Doe’s
additional dollar on a billboard. But it may spend as many
dollars from as many non-Does as it wants on billboards, so
long as it spends no more than $33,400 from any single donor.
The LNC’s speech is thus subject to no restriction, content-
based or otherwise.
We emphasize that this case implicates only the sort of
line-drawing exercises that inhere in a system of federal
campaign finance regulation—that is, lines that define in
evenhanded terms covered recipients, donors, and
contributions. This case, in other words, presents no plausible
claim that FECA’s two-tiered contribution limit restricts
contributions based on the donor’s identity or viewpoint.
And yet, the LNC argues that FECA’s two-tiered
contribution limit merits strict scrutiny. Consequently, by the
LNC’s logic, FECA would be rife with content-based
restrictions on recipients’ speech. For example, the McConnell-
approved BCRA prohibits national party committees from
“spend[ing] any funds,” 52 U.S.C. § 30125(a)(1), donated in
excess of FECA’s limits, which, in turn, apply to contributions
made “for the purpose of influencing any election for Federal
office,” id. § 30101(8)(A)(i). Likewise, BCRA’s soft-money
ban prohibits state party committees from spending non-FECA
contributions on “Federal election activity.” Id. § 30125(b). If,
as the LNC argues, a limit on contributions made to segregated
accounts dedicated to particular “uses” counts as a content-
based restriction on speech, then so, too, would restrictions on
spending donations “made . . . for the purpose of influencing
28
any election for Federal office” or on expending funds for
“Federal election activity.” But that, of course, is not the case:
as the Court explained in McConnell, BCRA does not
“burden[] speech in a way that a direct restriction on the
contribution itself would not.” 540 U.S. at 139.
Consequently, the LNC essentially asks us to conclude that
Reed’s application of strict scrutiny to laws that “defin[e]
regulated speech by particular subject matter, . . . function[,] or
purpose,” 135 S. Ct. at 2227, overruled, by implication alone,
McConnell’s application of closely drawn scrutiny to FECA’s
contribution limits. To put it mildly, we have our doubts. But
if the Supreme Court had intended to shake the constitutional
foundation of FECA’s contribution-limit architecture, then it is
the Supreme Court’s province to say so. See Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989) (“If a precedent of [the Supreme] Court has direct
application in a case, 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.”). Unless and until the Court expressly abrogates
McConnell, this “inferior court” lacks authority to “conclude
[that the Supreme Court’s] more recent case[]” has, “by
implication, overruled an earlier precedent.” Agostini v. Felton,
521 U.S. 203, 237 (1997).
B.
With no reason to apply strict scrutiny to the cromnibus
amendment’s two-tiered contribution limit, we again assume
that closely drawn scrutiny supplies the appropriate test. We
say “assume” because it remains unclear whether closely
drawn scrutiny applies to a recipient’s First Amendment
interests alone, see supra at 13, and the LNC declines to invoke
the rights of its donors, see supra at 11, 25–26. Nevertheless,
29
because we conclude that the cromnibus amendment’s two-
tiered contribution limit survives closely drawn scrutiny, we
have no need to determine whether a less stringent standard of
review may apply.
In applying closely drawn scrutiny, “we must assess the fit
between the stated governmental objective and the means
selected to achieve that objective.” McCutcheon, 572 U.S. at
199 (plurality opinion). “[I]f a law that restricts political speech
does not ‘avoid unnecessary abridgement’ of First Amendment
rights, it cannot survive ‘rigorous’” closely drawn review. Id.
(internal citation omitted) (quoting Buckley, 424 U.S. at 25,
29).
The LNC makes no attempt to challenge the government’s
significant anticorruption interest served by limiting the size of
contributions to political parties. Indeed, the LNC invokes the
district court’s factual finding on this point: “[T]he essential
truth,” says the committee, “is that ‘[a]ll contributions to
political parties can create the risk of corruption or its
appearance regardless of the way that money is ultimately
spent . . . .’” Appellant’s Br. 57 (alterations in original)
(quoting CF ¶ 36). Rather than contesting the need for
contribution limits, the LNC makes a more refined point. “It is
one thing to generalize that larger contributions pose a greater
risk, and for that reason, impose a simple contribution limit,”
argues the committee, but “[r]estricting how a party spends
90% of a contribution, in 30% tranches tied to presidential
nominating conventions, buildings, and litigation, cannot be
explained on a corruption-fighting rationale.” Id. at 56. In other
words, conceding the need for an overall contribution limit, and
taking no issue with drawing that line at either $33,400 or
$334,000, the LNC questions whether the government can
demonstrate an anticorruption interest in treating general- and
dedicated-purpose contributions differently.
30
Right out of the gate, the LNC’s argument faces a high
hurdle: the cromnibus amendment increased the total amount
individuals may contribute to a political party. Before 2014, the
LNC could accept only a base-limit sized contribution from
any one person; now it may accept ten times that amount.
Consequently, the LNC’s argument sounds very much like a
grievance with Congress’s decision to raise contribution limits.
But so long as contribution limits apply equally to all donors
and recipients, “[t]here is . . . no constitutional basis for
attacking contribution limits on the ground that they are too
high.” Davis v. Federal Election Commission, 554 U.S. 724,
737 (2008). If, as the LNC concedes, the government had a
legitimate anticorruption interest in keeping individual
contributions below $33,400, then, by simple mathematics, it
must also have an interest in keeping contributions below
$334,000.
We hasten to add a caveat. Although a law does not offend
the First Amendment merely because it “conceivably could
have restricted even greater amounts of speech in service of
[its] stated interests,” a law’s underinclusivity—in this case, the
fact that FECA restricts some contributions less than others—
nonetheless “can raise ‘doubts about whether the government
is in fact pursuing the interest it invokes.’” Williams-Yulee v.
Florida Bar, 135 S. Ct. 1656, 1668 (2015) (quoting Brown v.
Entertainment Merchants Ass’n, 564 U.S. 786, 802 (2011)).
But we see no reason for such skepticism in this case, as
allowing donors to make larger contributions into each of the
new dedicated-purpose accounts serves Congress’s legitimate
interest in relaxing restrictions on First Amendment activity
where, as it has concluded here, it can achieve its anticorruption
interest with less stringent limits.
Take the new, higher limit on contributions to pay for
presidential nominating conventions. In April 2014, Congress
31
ended public funding for such conventions, leaving parties on
their own. See Gabriella Miller Kids First Research Act, Pub.
L. No. 113-94, 128 Stat. 1085 (2014). The cromnibus
amendment gives parties a tool for making up for that shortfall,
ensuring, as Congress must, that parties remain capable of
“amassing the resources necessary for effective advocacy.”
Buckley, 424 U.S. at 21.
Equally benign are the other two new dedicated-purpose
accounts, one for party headquarters and the other for election
recounts and “other legal proceedings.” 52 U.S.C.
§ 30116(a)(9). As the Court explained in McConnell, the
donations “that pose the greatest risk of . . . corruption” are
“those contributions . . . that can be used to benefit federal
candidates directly.” 540 U.S. at 167. Congress could have
permissibly concluded that unlike contributions that can be
used for, say, television ads, billboards, or yard signs,
contributions that fund mortgage payments, utility bills, and
lawyers’ fees have a comparatively minimal impact on a
party’s ability to persuade voters and win elections. Indeed,
congressional leaders supporting the cromnibus amendment
emphasized that “many” of the “expenditures made from the
[dedicated-purpose] accounts” are “not for the purpose of
influencing federal elections.” 160 Cong. Rec. S6814 (daily ed.
Dec. 13, 2014) (statement of Sen. Reid); id. at H9286 (daily ed.
Dec. 11, 2014) (statement of Rep. Boehner). That makes good
sense: headquarters, once built, exist regardless of whether an
election is afoot, and recounts, by definition, can occur only
after votes have been cast. In fact, before BCRA, the
Commission entirely excluded donations for both party
headquarters and election recounts from the definition of
“contribution.” See 11 C.F.R. § 100.7(b)(12) (2002) (“A gift
. . . made to a national committee . . . of a political party is not
a contribution if it is specifically designated to defray any cost
incurred for construction or purchase of any office facility
32
which is not acquired for the purpose of influencing the
election of any candidate in any particular election for Federal
office.”); id. § 100.7(b)(20) (“A gift . . . made with respect to a
recount of the results of a Federal election, or an election
contest concerning a Federal election, is not a contribution
. . . .”).
We are untroubled in this case by the fact that, as the LNC
observes, the cromnibus amendment passed Congress without
the sort of robust record of congressional factfinding that
accompanied BCRA. In one sense this might be expected; after
all, BCRA imposed new contribution limits, so its additional
restriction on First Amendment rights required justification.
The cromnibus amendment, by contrast, did just the opposite:
it relaxed contribution limits. Had BCRA’s extensive
legislative history identified some troubling finding related
specifically to conventions, headquarters, or legal expenses, we
would perhaps harbor more concern about the cromnibus
amendment’s relatively stingy congressional record. But we
have discovered in that record no basis for any such concern,
leaving us without any reason to conclude that the Congress of
2014 committed constitutional error by determining that, a
dozen years after BCRA, times and circumstances had
sufficiently changed to permit it to deal more generously with
expense categories less directly tied to particular candidates or
elections. See Wagner v. Federal Election Commission, 793
F.3d 1, 30 (D.C. Cir. 2015) (en banc) (noting that contribution
restrictions need not address “speculative” concerns).
Our dissenting colleague worries that Congress may have
enacted the cromnibus amendment not to better tailor
contribution limits to serve the government’s anticorruption
interest, but rather to benefit the major parties that do the most
spending on segregated-account activities. See Op. at 7–9
(Griffith, J.). But the LNC itself, though displeased that
33
FECA’s two-tiered contribution limit more closely “align[s]
with the financial needs and goals of the incumbent parties,”
Appellant’s Br. 58 (internal quotation marks omitted),
expressly disclaims any argument that “the First Amendment
requires a level electoral playing field, free of the advantages
that speakers may have owing to their resources,” Opposition
at 26; see also id. at 27 (stating that the LNC’s “merits briefing
[is] bereft of even a molecule of competitive disadvantage
theory” and arguing that “it is absurd for the [Commission] to
insist” otherwise). And indeed, the First Amendment requires
no such thing. While Congress may not enact contribution
limits that “magnify the advantages of incumbency to the point
where they put challengers to a significant disadvantage,”
Randall, 548 U.S. at 248 (plurality opinion), neither is it “an
acceptable governmental objective,” “[n]o matter how
desirable it may seem,” “to ‘equaliz[e] the financial resources
of candidates,’” McCutcheon, 572 U.S. at 207 (plurality
opinion) (second alternation in original) (quoting Arizona Free
Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 748, 750 (2011)). Therefore, “if Congress concludes that
allowing contributions of a certain amount does not create an
undue risk of corruption or the appearance of corruption,” the
Court has explained, then “a candidate who wishes to restrict
an opponent’s fundraising cannot argue that the Constitution
demands that contributions be regulated more strictly.” Davis,
554 U.S. at 737. By the same token, the mere fact that
additional fundraising opportunities will benefit some political
parties over others does not itself render Congress’s relaxation
of contribution limits suspect under the First Amendment. See
Federal Election Commission v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238, 257 (1986) (“Political ‘free trade’ does
not necessarily require that all who participate in the political
marketplace do so with exactly equal resources.”). We thus see
no reason to “‘doubt[] . . . [that] the government is in fact
pursuing the interest it invokes,’” Williams-Yulee, 135 S. Ct. at
34
1668 (quoting Brown, 564 U.S. at 802), to justify FECA’s two-
tiered contribution limit: combatting quid pro quo corruption
and its appearance.
At bottom, the cromnibus amendment represents just
another tweak in Congress’s decades-long project to fine-tune
FECA’s balance between speech and associational rights, on
the one hand, and the government’s anticorruption interest, on
the other. That balance, to be sure, remains imperfect. But
closely drawn scrutiny “require[s] ‘a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the
single best disposition but one whose scope is in proportion to
the interest served . . . .’” McCutcheon, 572 U.S. at 218
(plurality opinion) (internal quotation marks omitted) (quoting
Board of Trustees of the State University of New York v. Fox,
492 U.S. 469, 480 (1989)). And lacking any “‘scalpel to probe’
each possible contribution level,” we “defer[] to the
legislature’s” “empirical judgments” about “the precise
restriction necessary to carry out the statute’s legitimate
objectives.” Randall, 548 U.S. at 248 (plurality opinion)
(quoting Buckley, 424 U.S. at 30).
Here, Congress drew that line at $33,400 for general-
purpose spending and $100,200 for dedicated-purpose
spending. The LNC has given us no reason to think that this
two-tiered limit would offend the First Amendment. The
cromnibus amendment’s limits are closely drawn to the
government’s anticorruption interest, and, as compared to the
pre-2014 baseline, they certainly avoid unnecessary
infringement of associational and speech rights. We therefore
answer the second and third certified questions in the negative:
FECA’s two-tiered contribution limit, both on its face and as
applied to Shaber’s bequest, does not violate the LNC’s First
Amendment rights.
35
V.
The task of crafting campaign finance restrictions is, in
many ways, a zero-sum game. Make the regime too restrictive,
and you threaten “fundamental First Amendment interests” by
burdening citizens’ political expression. Buckley, 424 U.S. at
23. Make the regime too permissive, and you threaten “the
integrity of our system of representative democracy” by failing
to prevent quid pro quo corruption and its appearance. Id. at
26–27. Balancing these interests has turned out to be a difficult
and iterative task. For the reasons given above, we conclude
that the current version of FECA—both its application of
contribution limits to Shaber’s bequest and its use of a two-
tiered contribution limit—has achieved a constitutionally
permissible balance. Therefore, although we deny the
Commission’s motion to dismiss for lack of standing, we reject
each of the LNC’s three constitutional challenges on the merits.
So ordered.
GRIFFITH, Circuit Judge, concurring in part and dissenting
in part: When the government restricts First Amendment
freedoms, it “bears the burden of proving the constitutionality
of its actions.” McCutcheon v. FEC, 572 U.S. 185, 210 (2014)
(plurality opinion) (quoting United States v. Playboy Entm’t
Grp., 529 U.S. 803, 816 (2000)). Here, the government has not
justified the cromnibus amendments’ two-tiered scheme for
contributions to national political parties. I therefore part ways
with the majority on the second and third certified questions.
The appropriate standard of review is closely drawn
scrutiny, as the majority assumes and Judge Katsas explains.
See Maj. Op. at 28; Op. at 1-5 (Katsas, J.). Under this standard,
the government must “demonstrate[] a sufficiently important
interest and employ[] means closely drawn to avoid
unnecessary abridgment” of First Amendment freedoms.
Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). The only
qualifying interest is combating quid pro quo corruption and its
appearance, and we require the government to employ “a
means narrowly tailored to achieve the desired objective.”
McCutcheon, 572 U.S. at 192, 218 (quoting Bd. of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). This standard
is “rigorous,” and the government will not prevail if there is “a
substantial mismatch between [its] stated objective and the
means selected to achieve it.” Id. at 197, 199 (first quoting
Buckley, 424 U.S. at 29).
The Libertarian National Committee (LNC) would take no
issue with a single contribution limit set at $33,400 or
$334,000. Maj. Op. at 29. Indeed, a challenge to such a limit
would be foreclosed by McConnell v. FEC, 540 U.S. 93 (2003).
There, the Supreme Court held that the Federal Election
Campaign Act permissibly prohibited a donor from
contributing more than $25,000 to a national political party
because the government showed that the prohibition
substantially advanced, and was properly tailored to, the
2
government’s interests in preventing corruption or its
appearance. See McConnell, 540 U.S. at 142-61.
But McConnell does not resolve this case, because the
two-tiered scheme here differs in important ways from the limit
upheld in McConnell. Rather than limiting all contributions
above a certain level, the scheme prohibits contributions above
the general limit of $33,400 but makes exceptions to that
general limit by allowing additional contributions of up to
$100,200 to each of three segregated accounts for presidential
nominating conventions, party headquarters, and election
recounts and litigation. See 52 U.S.C. § 30116(a)(1)(B), (a)(9);
Maj. Op. at 3-4.1 This is a new scheme. McConnell did not
address the propriety of a regime with these exceptions, the
presence of which “can raise doubts about whether the
government is in fact pursuing the interest it invokes” or
“reveal that a law does not actually advance” that interest.
Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015)
(internal quotation marks omitted). Put differently, the
cromnibus amendments introduced a critical feature not
present in McConnell: “Congress’ judgment” that
contributions of $300,600 to segregated accounts “do not
unduly imperil anticorruption interests.” Davis v. FEC, 554
U.S. 724, 741 (2008). Given this judgment by Congress, it is
now “hard to imagine how” limiting general contributions to
$33,400 “serv[es] anticorruption goals sufficiently to justify
the resulting constitutional burden”—unless general and
segregated contributions differ in a constitutionally meaningful
way. Id. For these reasons, the government cannot justify
treating general contributions more restrictively than
segregated contributions based on McConnell’s approval of a
since-abandoned congressional judgment. Rather, the
1
Like the majority, I use the limits adjusted for inflation as of
2015. Maj. Op. at 3-4.
3
government must show that a new scheme that differentiates
between general and segregated contributions is closely drawn
to serve anticorruption interests.
To do so, the government argues that general and
segregated contributions raise different corruption concerns.
This is because general-account spending is more likely to be
for the purpose of influencing elections and thus raise
corruption concerns, while segregated-account spending is less
likely to be for the purpose of influencing elections and thus
does not raise comparable corruption concerns. See FEC Br.
46-50. The record does not support this distinction.
The government relies on identical statements from
Senator Reid and Representative Boehner, who both asserted
that “many” of the expenditures from segregated accounts are
“not for the purpose of influencing Federal elections.” 160
Cong. Rec. S6814 (daily ed. Dec. 13, 2014); id. at H9286 (daily
ed. Dec. 11, 2014). But these self-serving assertions by
representatives of the major parties do not tell us whether
segregated-account spending is any different from general-
account spending with respect to influencing elections or
raising corruption concerns. Without that information, we
simply do not know whether the cromnibus amendments are
justified in prohibiting all contributions above the general limit
except those made to segregated accounts. And an ambivalent
record is not enough to survive closely drawn scrutiny. See
McCutcheon, 572 U.S. at 217 (rejecting aggregate contribution
limits in part because the government did not provide “any
real-world examples” that they served anticorruption interests
by preventing donors from circumventing the base limits);
McConnell, 540 U.S. at 145-154 (upholding limits on soft-
money contributions only after identifying extensive evidence
connecting the limits to the government’s legitimate interests);
cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666-67
4
(1994) (in applying intermediate scrutiny to a speech
restriction, explaining that “we cannot determine” whether
Congress drew “reasonable inferences based on substantial
evidence” without “a more substantial elaboration in the
District Court of the predictive or historical evidence upon
which Congress relied, or the introduction of some additional
evidence”); Annex Books, Inc. v. City of Indianapolis, 581 F.3d
460, 463 (7th Cir. 2009) (Easterbrook, J.) (“[T]here must be
evidence” to carry a First Amendment burden.).
The government’s position does not fare any better when
we examine the segregated accounts more closely. As the
majority points out, the higher limits on contributions to pay
for presidential nominating conventions were prompted by the
end of public funding for such conventions in 2014. The
cromnibus amendments gave parties a “tool for making up for
that shortfall.” Maj. Op. at 31. That explanation is
understandable, but it does not establish that there are lesser
corruption concerns with contributions that help put on
nominating conventions. There can be no serious doubt that the
nominating conventions of the major parties are closely
connected to elections. Contributions to their staging therefore
appear to raise the same corruption risks as general
contributions, and the record provides no reason to think
otherwise.
The record is similarly slim as to the segregated accounts
for maintaining party headquarters and contesting election
results. The majority offers that “Congress could have
permissibly concluded that unlike contributions that can be
used for, say, television ads, billboards, or yard signs,
contributions that fund mortgage payments, utility bills, and
lawyers’ fees have a comparatively minimal impact on a
party’s ability to persuade voters and win elections.” Id.Perhaps, but that inference lacks record support. The record
5
gives no reason to think that spending on party headquarters or
election contests has a different influence on elections than
general-account spending, and the majority might just as
reasonably have said the opposite: that Congress “could have”
determined that elections are significantly influenced by a
party headquarters (where parties might host donors and
connect them to party leaders and candidates) and election
recounts and litigation (which resolve whether an actual
candidate wins or loses a particular election). My point is not
that either of these potential determinations is more reasonable
than the other; my point is that without record support they are
“too speculative” to carry a First Amendment burden.
McCutcheon, 572 U.S. at 210.
Finally, the factual findings made by the district court
provide no better support for the government. The district court
found that “unrestricted funds are more valuable to national
party committees and their candidates than funds that may only
be used for particular categories of expenses.” Findings of Fact
(“CF”) ¶ 50, Libertarian Nat’l Comm. v. FEC, 317 F. Supp. 3d
202 (D.D.C. 2018). And according to the government, “it is
simple common sense that the more a political party values a
contribution, the more likely that contribution will be or appear
to be part of a quid pro quo corruption scheme,” making it more
reasonable for the cromnibus amendments to treat general
contributions more restrictively than segregated contributions.
FEC Br. 47. The problem for the government, however, is that
the district court’s findings simultaneously point in the
opposite direction: “A political party may in some
circumstances value a contribution with use restrictions more
highly than a smaller contribution without such restrictions,”
particularly because money is generally fungible and every
dollar received through segregated accounts “potentially frees
up another dollar in the recipient’s general account for
unrestricted spending.” CF ¶¶ 38-39. The record does not
6
clarify whether such a “circumstance” is presented by this case;
again, we just don’t know. Moreover, even if a dollar donated
to a general account raised more corruption concerns than a
dollar given to a segregated account, the government
acknowledges that “larger 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.” CF ¶ 35 (alterations omitted). This further
highlights the poor fit of the cromnibus amendments, which
treat larger contributions to segregated accounts as if they were
less likely to raise corruption concerns than substantially
smaller contributions to a general account.
In the absence of any corruption-related difference
between general and segregated contributions, the government
has not carried its burden of showing that the two-tiered
scheme is closely drawn to serve anticorruption interests. This
conclusion does not rely on a “freestanding underinclusiveness
limitation,” as Judge Katsas fears. Op. at 20 (Katsas, J.)
(quoting Williams-Yulee, 135 S. Ct. at 1668). Although “the
First Amendment imposes no freestanding ‘underinclusiveness
limitation,’” underinclusivity still “creates a First Amendment
concern when the State regulates one aspect of a problem while
declining to regulate a different aspect of the problem that
affects its stated interest in a comparable way.” Williams-
Yulee, 135 S. Ct. at 1668, 1670 (first quoting R.A.V. v. City of
St. Paul, 505 U.S. 377, 387 (1992)). That’s the problem with
the two-tiered scheme in this case. On this record, segregated
and general contributions affect the government’s
anticorruption interests in the same way, yet the scheme
restricts general contributions while declining to restrict
segregated contributions. Thus, the scheme’s
underinclusiveness—its exceptions allowing some
contributions above the general limit—shows that the
government has not justified prohibiting other contributions
7
from exceeding the general limit. See id. at 1670; see also Reed
v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015) (rejecting a
speech restriction as “hopelessly underinclusive” under strict
scrutiny because it drew distinctions between prohibited and
permissible categories of speech in a way that was not justified
by the interests asserted by the government); id. at 2239(Kagan, J., concurring in the judgment) (rejecting the same
restriction under intermediate scrutiny due to its
underinclusivity); Edwards v. District of Columbia, 755 F.3d
996, 1007-08 (D.C. Cir. 2014) (rejecting a speech restriction as
“fatally underinclusive” under intermediate scrutiny).
That is enough to resolve the second and third certified
questions in the LNC’s favor, but in closing I note that there
are additional reasons to be skeptical of the government’s
position. The two-tiered scheme’s exceptions loosen
restrictions on the very contributions that are highly sought by
major parties but of little use to minor parties. In my view, this
further undercuts the government’s position that the scheme
pursues the only permissible government interest: combating
quid pro quo corruption and its appearance.
Under the scheme, a donor may contribute a total of
$334,000 to a political party: $33,400 to the general account
and $100,200 to each of the three segregated accounts. The
major parties benefit from this scheme because they spend
substantial sums on activities that can be paid for through
segregated accounts: They put on lavish nominating
conventions that are spectacles made for a national audience,
they maintain expensive headquarters, and they challenge and
defend in court the outcomes of numerous elections across the
country. Indeed, from December 2014 through December
2016, the Republican Party received more than $23 million for
its convention, $26 million for its headquarters, and $5 million
for election recounts and litigation; the Democratic Party
8
received more than $12 million for its convention, $3 million
for its headquarters, and $6 million for election recounts and
litigation. CF ¶¶ 45-46; J.A. 90. The cromnibus amendments
enable the major parties to raise such sums with individual
contributions of up to $334,000. What’s more, those
contributions are in effect no different from general
contributions. So long as a party has segregated-account
expenses, a dollar received in a segregated account frees up a
dollar in the general account that otherwise might have been
used to defray the segregated-account expenses. Therefore,
until a party receives enough money to cover its segregated-
account expenses, the two-tiered scheme establishes an
effective general contribution limit of $334,000.
By contrast, minor parties gain little from this scheme
because they do not have much use for segregated-account
contributions. The LNC, for example, holds more modest
conventions and maintains a less expensive headquarters than
the major parties, and the LNC has never spent money on
election recounts and is unlikely to do so in the future. See LNC
Br. 13-15. In most years, its expenses for these purposes are
less than $500,000. See id.; CF ¶¶ 25-29. Lacking further
segregated-account expenses, the LNC and similar minor
parties do not benefit much from the higher limit for
segregated-account contributions. Instead, they seek
contributions that can be used for other purposes, and those
contributions are limited to $33,400.
In this way, the scheme’s exceptions loosen restrictions on
those contributions that are useful to major parties but not to
minor parties. Of course, this effect is in part attributable to the
various levels of support for different parties and the parties’
decisions on how to raise and spend contributions. And as the
majority notes, this effect alone does not render the scheme
unconstitutional. See Maj. Op. at 33. Even so, it raises further
9
doubts that the scheme is tailored to serve anticorruption
interests rather than an impermissible interest, such as
disadvantaging minor parties. See Williams-Yulee, 135 S. Ct.
at 1668. This concern overlaps with those that motivate
comparative-disadvantage cases, see, e.g., Randall v. Sorrell
548 U.S. 230, 248 (2006) (a statute regulating contributions
must not “magnify the advantages of incumbency to the point
where [it] put[s] challengers to a significant disadvantage”),
but it is not an attempt to raise a comparative-disadvantage
claim on the LNC’s behalf, Maj. Op. at 32-33. It simply
provides further record-based reasons to be skeptical that the
two-tiered scheme is tailored to serve anticorruption interests.
Because the government has not carried its burden of
showing that the scheme is closely drawn to combat corruption
or its appearance, I would hold that the scheme violates the
First Amendment. Having reached a different decision on the
merits, the majority has no occasion to address the appropriate
remedy. I therefore do not reach the issue either.2 But on the
merits of the second and third certified questions, I respectfully
dissent.
2
The appropriate remedy, i.e., the “upshot” of holding that the
scheme violates the First Amendment, Op. at 23 (Katsas, J.), is
disputed by the parties. The LNC argues that the appropriate remedy
is excising the use restrictions while leaving the increased overall
limit, allowing a donor to contribute $334,000 for general use. LNC
Br. 62-63; accord Amicus Br. of the Goldwater Inst. 8. The
government urges the pre-cromnibus status quo, which would allow
a donor to contribute $33,400 for general use and nothing more. FEC
Br. 54-56. Alternatively, the court could remand this matter for
further record development. See Order, Holmes v. FEC, No. 14-5281
(D.C. Cir. Jan. 30, 2015) (en banc) (per curiam); Buckley v. Valeo,
519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (per curiam); see also
Turner, 512 U.S. at 668.
KATSAS, Circuit Judge, with whom Circuit Judge
HENDERSON joins, concurring in part, concurring in the
judgment in part, and dissenting in part: This case involves
statutory limits on contributions that individuals may make to
political parties. In McConnell v. FEC, 540 U.S. 93 (2003), the
Supreme Court held that these contribution limits are not
facially unconstitutional. Here, we consider whether the limits
are unconstitutional as applied to contributions made through
bequests. We also consider whether the limits became
unconstitutional when Congress amended them in 2014.
I
To frame the relevant inquiries, we must first decide the
appropriate level of First Amendment scrutiny. The majority
reserves this question, ante at 13, 28, but I would decide it.
In 1976, the Supreme Court fixed the level of scrutiny for
limits on contributions to candidates for federal elective
offices. Those limits “may be sustained if the State
demonstrates a sufficiently important interest and employs
means closely drawn to avoid unnecessary abridgment” of
speech and associational freedoms. Buckley v. Valeo, 424 U.S.
1, 25 (1976) (per curiam). Subsequently, the Court has applied
this same level of scrutiny to assess the constitutionality of
contribution limits imposed on all kinds of donors and
recipients, including candidates for federal and state offices;
national, state, and local political parties; and political action
committees. See, e.g., McCutcheon v. FEC, 572 U.S. 185,
196–99 (2014) (plurality opinion); Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721, 734–35 (2011);
Davis v. FEC, 554 U.S. 724, 736–37 (2008); Randall v. Sorrell,
548 U.S. 230, 246–48 (2006) (plurality opinion); McConnell,
540 U.S. at 134–41; FEC v. Beaumont, 539 U.S. 146, 161–62
(2003); FEC v. Colo. Republican Fed. Campaign Comm., 533
U.S. 431, 446–56 (2001); Nixon v. Shrink Mo. Gov’t PAC, 528
2
U.S. 377, 387–88 (2000). For shorthand, this level of scrutiny
is now referred to (rather clumsily) as “closely drawn scrutiny.”
Despite this long line of precedent, the Federal Election
Commission urges us to lower the bar, at least with respect to
bequests. The FEC asks us to consider only whether the
challenged contribution limits prevent the Libertarian National
Committee, which received the bequest at issue here, from
“amassing the resources necessary for effective advocacy.”
The FEC plucks that phrase out of Buckley, which observed
that contribution limits “could have a severe impact” if they
prevented recipients from amassing such resources. 424 U.S.
at 21. The FEC reasons that bequests implicate neither the
donor’s speech interests nor anyone’s associational interests,
and the recipient’s speech interests are impaired only if it is
prevented from mounting, in the aggregate, some quantum of
“effective” advocacy.
This analysis is flawed at every turn. To begin, “effective
advocacy” is not a reduced, free-floating level of First
Amendment scrutiny. If a contribution limit prevents effective
advocacy, then it is insufficiently tailored to satisfy closely
drawn scrutiny. See Randall, 548 U.S. at 246–62 (plurality
opinion); id. at 267–73 (Thomas, J., concurring in the
judgment). But contribution limits may be insufficiently
tailored for other reasons, such as “a substantial mismatch
between the Government’s stated objective and the means
selected to achieve it.” McCutcheon, 572 U.S. at 199 (plurality
opinion). And regardless of any tailoring problems,
contribution limits are unconstitutional if the asserted
government interest is insufficiently important. See, e.g.,
Davis, 554 U.S. at 740 n.7; SpeechNow.org v. FEC, 599 F.3d
686, 695 (D.C. Cir. 2010) (en banc).
3
Likewise, the Supreme Court has never attempted “to
parse distinctions between the speech and association standards
of scrutiny for contribution limits.” Shrink Mo. Gov’t, 528 U.S.
at 388. Rather, it has fashioned what the majority aptly
describes as a “single unified test that applies an intermediate
level of scrutiny to contribution limits.” Ante at 13. Thus, in
reaffirming the appropriateness of closely drawn scrutiny in
McConnell, the Court held it immaterial that the challenged
provisions restricted the acceptance of contributions by parties
rather than the giving of contributions by donors. See 540 U.S.
at 138. Applying closely drawn scrutiny in SpeechNow, this
Court held that the challenged contribution limits violated the
First Amendment rights of both the donors and the recipient,
without hinting at any distinction between the two. See 599
F.3d at 690–96. And the three-judge district court in
Republican National Committee v. FEC, 698 F. Supp. 2d 150(D.D.C.) (Kavanaugh, J.), aff’d, 561 U.S. 1040 (2010) (mem.),
applied closely drawn scrutiny to assess contribution limits
challenged only by recipients. See id. at 153, 156. Of course,
different contribution limits may impact speech and
associational interests in different ways, but “we account for
[those impacts] in the application, rather than the choice, of the
appropriate level of scrutiny.” McConnell, 540 U.S. at 141.
The FEC’s plea for less-than-intermediate scrutiny is also
radical. For over four decades, various justices have urged that
because contribution limits “operate in an area of the most
fundamental First Amendment activities,” Buckley, 424 U.S. at
14, they should be subjected to strict rather than closely drawn
scrutiny. See, e.g., Shrink Mo. Gov’t, 528 U.S. at 405–10
(Kennedy, J., dissenting); id. at 410–30 (Thomas, J., joined by
Scalia, J., dissenting); Colo. Republican Fed. Campaign
Comm. v. FEC, 518 U.S. 604, 635–44 (1996) (Colorado I)
(Thomas, J., dissenting in part); Buckley, 424 U.S. at 241–46
(Burger, C.J., dissenting in part); id. at 290 (Blackmun, J.,
4
dissenting in part). McConnell acknowledged this “significant
criticism.” 540 U.S. at 137. And in McCutcheon—the Court’s
most recent decision in this area—the plurality sought to
minimize the differences between strict and closely drawn
scrutiny, see 572 U.S. at 196–99, in the face of a continuing
call for strict scrutiny, see id. at 228–32 (Thomas, J.,
concurring in the judgment). Given this longstanding debate
over whether closely drawn scrutiny sets the bar too low, it is
quite a stretch to posit that, here, it sets the bar too high.
The FEC’s proposal would create anomalies in First
Amendment law more generally. Effective speech often
requires multiple parties—speakers, listeners, and, in the
context of mass markets, patrons. The Supreme Court
generally treats the rights of these parties as “reciprocal.” Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 756–57 (1976) (“the protection afforded is to the
communication, to its source and to its recipients both”). So,
the right of one party to speak implies the right of another party
to listen. See id. Likewise, the right of one party to fund speech
implies the right of another party to accept the funds. Cf.
McConnell, 540 U.S. at 138 (“it is irrelevant that Congress
chose … to regulate contributions on the demand rather than
the supply side”). It would be odd enough to isolate one from
the other in deciding the merits, much less to do so in fixing an
appropriate level of scrutiny.
Finally, in fixing the level of scrutiny, death should make
no difference. Of course, living donors have substantial speech
and associational interests in contributing money to political
parties of their choice. See, e.g., McCutcheon, 572 U.S. at 191–
92 (plurality opinion); id. at 228 (Thomas, J., concurring in the
judgment). Yet a contribution is no less speech and expressive
association if the donor makes it through a bequest rather than
a lifetime transfer. Either way, the donor intends to support the
5
political views of the party, and an observer would reasonably
understand as much. See Buckley, 424 U.S. at 16–17; cf.
Spence v. Washington, 418 U.S. 405, 410–11 (1974) (per
curiam). Likewise, the speech and associational interests of
recipients—in using all available resources to fund political
speech—do not vary depending on whether contributions come
from living or deceased donors.
In sum, the FEC’s attempt to ratchet down the level of
scrutiny by separating speech from expressive association,
donors from recipients, and the living from the dead is
unsupported by precedent and unsound in principle. I would
hold what the majority only assumes—that closely drawn
scrutiny governs this case.
II
Under closely drawn scrutiny, limits on political
contributions are constitutional “if the State demonstrates a
sufficiently important interest and employs means closely
drawn to avoid unnecessary abridgment” of speech and
associational freedoms. Buckley, 424 U.S. at 25. In this
sensitive area, the only sufficiently important government
interests are the prevention of quid pro quo corruption—“a
direct exchange of an official act for money”—and its
appearance. McCutcheon, 572 U.S. at 192 (plurality opinion).
Interests in equalizing “electoral opportunities,” and in
preventing donors from acquiring “influence over or access to
elected officials or political parties,” are insufficient. Id. at
207–08 (quotation marks omitted). Moreover, “the
Government bears the burden of proving the constitutionality
of its actions,” id. at 210 (quotation marks omitted), consistent
with how intermediate scrutiny works in other First
Amendment contexts. See, e.g., United States v. Nat’l
Treasury Emps. Union, 513 U.S. 454, 475 (1995) (“the
6
Government … must demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way” (quotation
marks omitted)) (speech restrictions on government
employees); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
664–68 (1994) (plurality opinion) (same for content-neutral
speech restrictions); Edenfield v. Fane, 507 U.S. 761, 770–71
(1993) (same for commercial speech restrictions).
In Buckley, the Supreme Court applied these principles to
reject a facial challenge to limits on contributions made to
candidates for federal elective offices. The Court noted
“deeply disturbing examples” of “quid pro quo” corruption,
which proved that the government’s asserted interest was “not
an illusory one.” 424 U.S. at 26–27. The Court cited “a
number of the abuses” discussed in our Buckley opinion, id. at
27 n.28, which explained that the record before Congress was
“replete with specific examples of improper attempts to obtain
governmental favor in return for large campaign
contributions,” 519 F.2d 821, 839 n.37 (D.C. Cir. 1975) (en
banc). The Supreme Court further reasoned that, even if most
contributors do not improperly seek quid pro quo exchanges,
“suspect contributions” are “difficult to isolate.” 424 U.S. at
30. So, to prevent actual and apparent corruption, the
government may eliminate the “opportunity for abuse” from
large contributions. Id.In McConnell, the Court rejected a facial challenge to
limits on contributions to political parties. Given what it
described as the “unity of interest” between parties and elected
officials, the Court found “neither novel nor implausible” the
supposition that large contributions to a party could corrupt its
elected officials. 540 U.S. at 144–45. The Court also discussed
at length the supporting evidence: the major political parties
annually had been raising hundreds of millions of dollars in
7
previously unregulated soft money, id. at 124; these
contributions often were solicited by, and used to help,
individual candidates, id. at 146; wealthy donors made large
contributions to both major parties, id. at 148; and these
contributions impacted a wide range of legislation, id. at 150.
III
A
This case presents a challenge to limits on contributions to
political parties made through bequests. In a prior case, the
LNC unsuccessfully sought to enjoin application of the
contribution limits to all bequests. Libertarian Nat’l Comm.,
Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) (LNC I). Here,
the LNC seeks to enjoin application of the limits only to a
bequest made by Joseph Shaber.
The facts surrounding this bequest are undisputed. Shaber
neither coordinated with the LNC regarding his decision to
include the party in his will nor even informed the party of that
decision. Libertarian Nat’l Comm., Inc. v. FEC, 317 F. Supp.
3d 202, 249 (D.D.C. 2018) (LNC II). “Aside from pursuing its
ideological and political mission, the LNC has provided
nothing of value to Mr. Shaber, or to anyone else, in exchange
for his bequest.” Id. at 251. The bequest imposed no
conditions and made no requests, but instead provided for the
LNC to take “outright” a contribution ultimately valued at
about $235,000. Id. at 250 (quotation marks omitted). Over
the course of his lifetime, Shaber donated a total of $3,315 to
the LNC, made in 46 separate gifts spread out over 24 years.
Id. at 248–49. Besides making these contributions, Shaber had
no other relationship with the LNC. Id. at 251.
In its prior cases on contribution limits, the Supreme Court
considered no issues specific to bequests. Because the LNC
8
does not rest its claim on “the same factual and legal arguments
the Supreme Court expressly considered” in Buckley and
McConnell, those precedents do not foreclose the LNC’s as-
applied challenge here. Republican Nat’l Comm., 698 F. Supp.
2d at 157 (“McConnell permits as-applied challenges”); see
also Doe v. Reed, 561 U.S. 186, 201 (2010) (“upholding the
law against a broad-based challenge does not foreclose a
litigant’s success in a narrower one”). Indeed, the Supreme
Court has sustained an as-applied challenge to corporate-
expenditure limits previously held facially constitutional, FEC
v. Wis. Right to Life, Inc., 551 U.S. 449, 476–82 (2007) (WRTL)
(plurality opinion), and this Court has sustained an as-applied
challenge to contribution limits previously held facially
constitutional, SpeechNow, 599 F.3d at 692–96. Moreover,
because the LNC’s challenge raises issues not addressed in
Buckley or McConnell, the government retains its burden of
proof under heightened scrutiny. See WRTL, 551 U.S. at 464–
65 (plurality opinion). Of course, we must determine which
facts, if any, distinguish this case from Buckley and McConnell,
and the breadth of our reasoning will impact the law going
forward. See Citizens United v. FEC, 558 U.S. 310, 331 (2010)
(“no general categorical line bars a court from making broader
pronouncements of invalidity in properly ‘as applied’ cases”
(quotation marks omitted)). But regardless of the breadth of
our reasoning, the LNC’s first claim seeks relief only as to
Shaber’s individual bequest.
Under these rules for assessing as-applied challenges, I
would hold that the challenged contribution limits are
unconstitutional as applied to any of three nested categories:
bequests, uncoordinated bequests, and Shaber’s bequest. I will
address the categories from broadest to narrowest.
9
1
“The quantum of empirical evidence needed to satisfy
heightened judicial scrutiny of legislative judgments will vary
up or down with the novelty and plausibility of the justification
raised.” McConnell, 540 U.S. at 144 (quotation marks
omitted). Here, that means requiring more evidence rather than
less, for there are strong reasons to think that bequests—in
contrast to contributions from living donors—do not pose a
significant risk of actual or apparent quid pro quo corruption.
For one thing, politics operates on notoriously “short
timeframes,” Citizens United, 558 U.S. at 334, so gifts deferred
until death—perhaps many election cycles down the road—
will have relatively little value to political parties or their
candidates. For another, there is no easy means for deceased
donors or their beneficiaries to enforce any corrupt bargains.
In the context of contributions from living donors, such
bargains are managed through winks and nods over time, as
money flows one way and political favors flow the other. See
McConnell, 540 U.S. at 147 (quoting lobbyist’s testimony that
“overt words are rarely exchanged about contributions, but
people do have understandings”). Bequests cannot work like
that, because the money flows only once, and at death. So, if a
corrupt donor seeks political favors during his lifetime, when
the bequest is nothing more than a revocable promise, the
recipient will have no way to prevent the donor from accepting
the favors but then reneging on the promise. Or, if the donor
seeks favors for survivors, he will have no way to ensure
delivery after death makes the bequest irrevocable and removes
him from the picture. Either way, inherent constraints limit the
feasibility of any contemplated exchange. Bequests are thus
generally “less susceptible … to misuse,” Beaumont, 539 U.S.
at 160, than contributions from living donors.
10
The evidence confirms this point. To justify its concerns
about possible corruption through bequests, the FEC could
have pointed to anything in any of four records: the legislative
record of a select committee established by Congress to
investigate fundraising for the 1972 presidential election, see
Buckley, 519 F.2d at 839 n.35; the 100,000-page record
compiled for the three-judge district court in McConnell, see
251 F. Supp. 2d 176, 209 (D.D.C. 2003); the district-court
record in LNC I, where all bequests were at issue; or the
district-court record in this case. Yet, despite the massive
records in Buckley and McConnell, and the two records made
in the bequest-specific LNC cases, the FEC points to nothing
substantiating its concerns. In fact, these records undercut its
position in three critical respects.
First, bequests are rarely used for political contributions.
From 1978 through August 2017, bequests accounted for only
about $3.7 million in contributions to federal candidates,
political parties, and all other entities required to file reports
with the FEC. LNC II, 317 F. Supp. 3d at 247. To put that
number in perspective, the same group of recipients spent $7
billion in the 2012 election cycle alone, McCutcheon, 572 U.S.
at 219 (plurality opinion), and the major political parties spent
nearly $1.2 billion in 2000 alone, see McConnell, 540 U.S. at
124. Of course, bequests to political parties might increase if
the relevant contribution limits were invalidated. But, from
1978 to 2002, donors could have made unlimited soft-money
bequests to political parties. See id. at 122–24. And if
McConnell correctly understood the “unity of interest”
between political parties and elected officials, such bequests
would have been almost as enticing as ones made directly to
the officials. See id. at 144–45. In sum, despite decades of
little or no relevant regulation, contributions through bequests
have remained a drop in the proverbial bucket.
11
Second, and perhaps most striking, the FEC does not point
to even a single quid pro quo exchange—at any time in
American history—allegedly effected through a bequest. Nor
do the careful, extensive findings made by the district courts in
the LNC cases. See LNC I, 930 F. Supp. 2d at 171–90; LNC II,
317 F. Supp. 3d at 225–57. In developing the records for those
cases, all the FEC could muster up was more evidence of
corruption involving contributions from living donors. See id.
at 236–42. In striking down limits on independent
expenditures by corporations, the Supreme Court stressed that
“[t]he McConnell record was over 100,000 pages long, yet it
does not have any direct examples of votes being exchanged
for expenditures.” Citizens United, 558 U.S. at 360 (cleaned
up). The FEC’s failure of proof here is no less dramatic.
Third, there is no evidence of testators trying to play both
sides. In McConnell, the Court found it “[p]articularly telling”
that wealthy individuals “gave substantial sums to both major
national parties, leaving room for no other conclusion but that
these donors were seeking influence, or avoiding retaliation,
rather than promoting any particular ideology.” 540 U.S. at
148. The FEC alleges nothing comparable as to bequests. This
should hardly be surprising, for the possibility of a corrupt
donor securing political favors, not by giving large sums to
both parties during his lifetime, but by simultaneously
remembering both parties in his will, seems almost fantastic.
Against this evidence (or lack thereof), and despite the
practical problems with effectuating any quid pro quo through
a bequest, the majority posits that a corrupt bequest might be
possible—in theory—if the donor and the party worked out the
exchange in advance. Ante at 14–15. With respect, I find that
possibility insufficient to discharge the FEC’s significant
burden of proof under closely drawn scrutiny. The Supreme
Court has “‘never accepted mere conjecture as adequate to
12
carry a First Amendment burden,’” McCutcheon, 572 U.S. at
210 (plurality opinion) (quoting Shrink Mo. Gov’t, 528 U.S. at
392), and so neither should we.
2
In any event, contribution limits are unconstitutional as
applied to uncoordinated bequests. To reiterate, the majority
posits that bequests could be corrupt if the testator bargained
with the intended beneficiary before his death. Ante at 14–15;
see also LNC I, 930 F. Supp. 2d at 166 (“making one’s bequest
known before death could be treated just as a contribution is”).
But this cannot happen if the testator does not even tell the
recipient about the planned bequest during his lifetime. In that
circumstance, a quid pro quo exchange is impossible.
The only response is that coordinated and uncoordinated
bequests may be difficult to distinguish, so both must be
regulated together. But this reasoning runs counter to perhaps
the most fundamental distinction in campaign-finance law—
between contributions and independent expenditures.
In Buckley, the Court invalidated a limit on the
expenditures that any person could make “relative to a clearly
identified candidate.” See 424 U.S. at 39–51 (quotation marks
omitted). The government defended the expenditure limit as
necessary to prevent evasion of the limits on contributions to
candidates. But the governing statute already treated
“controlled or coordinated expenditures” as “contributions
rather than expenditures.” Id. at 46 & n.53. And the Court held
that this distinction between coordinated and independent
spending also marked a critical constitutional line. Thus, the
treatment of “prearranged or coordinated expenditures” as
contributions permissibly addressed the government’s concern
about evading contribution limits. Id. at 47. But the limit on
independent expenditures did not. As the Court explained:
13
“The 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.”
Id. Later decisions have reinforced this “fundamental
constitutional difference” between independent expenditures,
which are fully protected, and coordinated expenditures, which
may be and are regulated as contributions. FEC v. Nat’l
Conservative Political Action Comm., 470 U.S. 480, 497
(1985); see, e.g., McConnell, 540 U.S. at 202–03, 219–22;
Colorado I, 518 U.S. at 613–16 (plurality opinion); FEC v.
Mass. Citizens for Life, Inc., 479 U.S. 238, 251–63 (1986).
Most recently, in Citizens United, the Court applied this
reasoning to invalidate limits on independent expenditures by
corporations and unions. 558 U.S. at 356–60, 365–66.
In SpeechNow, this Court recognized that the protection
for independent expenditures also constrains the government’s
ability to regulate contributions. We held that contribution
limits are unconstitutional as applied to recipients that engage
only in independent expenditures. We noted that, after Citizens
United, “the government has no anti-corruption interest in
limiting independent expenditures.” 599 F.3d at 693. Then,
we reasoned: “In light of the Court’s holding as a matter of law
that independent expenditures do not corrupt or create the
appearance of quid pro quo corruption, contributions to groups
that make only independent expenditures also cannot corrupt
or create the appearance of corruption.” Id. at 694. Because
no legitimate government interest was implicated, even a
modest impairment of speech and associational rights would be
unconstitutional. See id. at 695 (“something … outweighs
nothing every time” (quotation marks omitted)).
14
The line between coordinated and uncoordinated spending
thus runs throughout campaign-finance law, and the FEC
routinely must police it. Congress has long defined an
expenditure “independent” of a candidate as one that, in
pertinent part, was “not made in concert or cooperation with or
at the request or suggestion of such candidate, the candidate’s
authorized political committee, or their agents, or a political
party committee or its agents.” 52 U.S.C. § 30101(17)(B); see
also id. § 30116(a)(7)(B)(i) (treating expenditures not
independent of a candidate as “a contribution to such
candidate”); McConnell, 540 U.S. at 221–22 & n.99. A parallel
definition now distinguishes expenditures “independent” of
political parties from contributions to those parties. See id. at
219–20 & n.97. The Supreme Court has held that this
definition is not impermissibly vague, id. at 222–23; the FEC
has promulgated a swath of regulations implementing it, see
generally 11 C.F.R. pt. 109; and the Commission or the courts
frequently apply it to determine whether disputed expenditures
were in fact independent, see, e.g., Colorado I, 518 U.S. at619–23 (plurality opinion); AFL-CIO v. FEC, 333 F.3d 168,
171 (D.C. Cir. 2003). Likewise, other decisions assess whether
specific entities make only independent expenditures and thus
have a First Amendment right to receive unrestricted
contributions under SpeechNow. See, e.g., Vt. Right to Life
Comm., Inc. v. Sorrell, 758 F.3d 118, 140–41 (2d Cir. 2014).
Armed with extensive disclosure requirements and
enforcement powers, the FEC routinely determines whether
disputed expenditures were coordinated or independent. The
FEC offers no reason why it cannot make the same
determination as to bequests. Because coordinated and
uncoordinated bequests can be manageably distinguished, and
because uncoordinated bequests are not even alleged to present
any corruption risk, the contribution limits are unconstitutional
at least as applied to them.
15
3
Finally, the contribution limits are unconstitutional as
applied to Shaber’s individual bequest. Not only was his
bequest uncoordinated, but several additional facts make the
LNC’s challenge even stronger.
First, far from coordinating with the LNC, Shaber never
even told the LNC of the bequest before his death. LNC II, 317
F. Supp. 3d at 249. With the LNC unaware that a testamentary
quid might be forthcoming, there could be no quid pro quo
agreement—nor even any debate about whether to infer such
an agreement based on winks, implicit understandings, or other
ambiguous circumstances.
Second, the bequest came with no strings attached. LNC
II, 317 F. Supp. 3d at 250. It neither demanded nor even asked
that the LNC do anything in return. The district court noted
that, in one other instance, a trustee had requested that the LNC
use the bequest to help defeat specific candidates. See id. at
248. There would be nothing wrong with such an agreement,
for that quo would not involve any “official act” of the
government. See McCutcheon, 572 U.S. at 192 (plurality
opinion). But, here, Shaber never sought any quo at all.
Third, the LNC “provided nothing of value” in exchange
for the bequest, except perhaps for continuing to “pursu[e] its
ideological and political mission.” LNC II, 317 F. Supp. 3d at
251. In LNC I, the FEC expressed concern that a political party
could grant “preferential access” to testators who (unlike
Shaber) tell the party of the intended gift during their lifetime.
930 F. Supp. 2d at 186. However, “[i]ngratiation and access
… are not corruption.” Citizens United, 558 U.S. at 360. And,
here, Shaber did not seek even that.
16
Fourth, Shaber made only modest contributions to the
LNC during his lifetime. As the district court explained,
Shaber’s total lifetime donation of $3,315, made in 46 separate
contributions spread out 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 smaller drop relative to the limit of
$339,000 that individuals may contribute for either general or
specialized purposes.” LNC II, 317 F. Supp. 3d at 216.
Likewise, Shaber’s contribution history did not qualify him for
any of the benefits that the LNC affords to its major donors.
See id. at 242. So, there is no reason to think that the LNC
might have even identified Shaber as someone likely to make
a large bequest, much less used that possibility to engineer a
secret quid pro quo before his death.
Finally, besides making his modest gifts, Shaber had no
other relationship with the LNC during his lifetime, LNC II,
317 F. Supp. 3d at 251, thus making the prospect of corruption
even more unlikely.
B
The majority views the LNC’s as-applied claim as resting
on nothing more than a factual contention that Shaber’s
individual bequest was not corrupt. Ante at 16–17. It then
rejects the claim as inconsistent with Buckley’s holding that,
because corrupt and legitimate contributions are hard to
distinguish, “prophylactic” limits may be applied to both. Ante
at 17–19 (quotation marks omitted). But there is more to the
LNC’s claim.
As noted above, the fact that the LNC sought relief only as
to Shaber’s bequest did not prevent it from making substantive
arguments that sweep more broadly. See Bucklew v. Precythe,
139 S. Ct. 1112, 1127–28 (2019); Citizens United, 558 U.S. at
17
331. Although the LNC asks us to assess Shaber’s bequest
based on a totality of the circumstances, it also makes broader
arguments keyed to the general nature of bequests and
uncoordinated bequests. See, e.g., LNC Opening Br. at 37
(“[B]arring supernatural intervention, the potential for quid pro
quo activity is rather more limited than in the case of a living
donor, as are prospects for its enforcement. Regardless of what
the LNC might do for Shaber now, he will give it nothing more
or less than his bequest.”); LNC Reply Br. at 14 (“Bequests are
different. Until death, they are merely a revocable promise.
After death, they are irrevocable, and cannot be policed by the
dead for quid pro quo compliance.”). In my judgment, that was
enough to preserve the broader arguments—and, as to them, to
trigger the FEC’s burden of proof under closely drawn scrutiny.
The FEC did not misapprehend this point; to the contrary, it
argued both that Buckley forecloses as-applied challenges
based on the facts of individual cases, FEC Br. at 25–28, and
that bequests as a category raise the same corruption concerns
as other kinds of political contributions, id. at 29–32.
On the merits, the LNC’s substantive arguments do not
threaten the general justification for prophylactic contribution
limits. As explained above, contributions made through
bequests may be safely distinguished as a category—just like
contributions to groups that make only independent
expenditures. See SpeechNow, 599 F.3d at 692–96. The same
is true for the narrower category of contributions made through
uncoordinated bequests. And to the extent that additional facts
strengthen the LNC’s challenge, there is nothing inappropriate
about considering them. Successful as-applied challenges
often turn on the facts of individual cases. See, e.g., WRTL,
551 U.S. at 469–81 (plurality opinion) (expenditure limit
impermissibly extended beyond functional equivalent of
express advocacy); Brown v. Socialist Workers ’74 Campaign
Comm., 459 U.S. 87, 88 (1982) (disclosure requirement
18
impermissibly subjected party to threats or harassment).
Likewise, case-specific facts would be necessary to determine
whether contribution limits prevent individual recipients from
“amassing the resources necessary for effective advocacy”—a
type of as-applied challenge that McConnell repeatedly invited.
540 U.S. at 159 (quotation marks omitted); see id. at 173.
The majority also suggests that as-applied challenges to
contribution limits may be appropriate in cases where the
burdens imposed on speakers are particularly harsh, but not in
cases where the relevant government interests are particularly
weak. Ante at 19–20. There is no conceptual reason why that
should be so, for closely drawn scrutiny requires proof both
that an important government interest is implicated and that the
challenged restriction does not infringe speech or associational
interests unnecessarily. SpeechNow confirms this point.
There, in striking down contribution limits as applied to
recipients that make only independent expenditures, we rested
squarely on the premise that “the government ha[d] no anti-
corruption interest” in that case, without reaching the question
of how severely the challenged limits infringed speech and
associational interests. 599 F.3d at 694–95.
Finally, it is worth remembering that Buckley and
McConnell are themselves exceptions to an overarching First
Amendment principle. “Broad prophylactic rules in the area of
free expression are suspect,” and “[p]recision of regulation
must be the touchstone” in this area. NAACP v. Button, 371
U.S. 415, 438 (1963). Buckley and McConnell qualify that
principle, by approving “prophylactic” restrictions extending
to some non-corrupt contributions. McCutcheon, 572 U.S. at
221 (plurality opinion). But the “prophylaxis” must also have
limits. See id. Under closely drawn scrutiny, it cannot properly
be extended to bequests that, as a group and individually, may
reliably be determined to be legitimate.
19
IV
Beyond any question about bequests, the LNC challenges
the contribution limits as amended in 2014. The LNC contends
that the current limits are unconstitutional, both on their face
and as applied. On this point, the LNC does not highlight any
facts about Shaber’s individual contribution, but instead
attacks the statutory scheme itself.
The provisions at issue are structured as one old rule
subject to three new exceptions. The rule is that no person may
contribute over $25,000 per year to a national political party,
52 U.S.C. § 30116(a)(1)(B), subject to adjustment for inflation,
id. § 30116(c). It is contained in the Federal Election
Campaign Act of 1971 (FECA), as amended by the Bipartisan
Campaign Finance Reform Act of 2002 (BCRA), and it was
upheld by McConnell. See Pub. L. No. 107-155, § 307(a)(2),
(d), 116 Stat. 81, 102–03; 540 U.S. at 142–61. The exceptions
permit individuals to make additional annual contributions of
up to $75,000 for presidential nominating conventions,
$75,000 for party headquarters, and $75,000 for recounts and
other legal proceedings, all subject to the same inflation
adjustment. 52 U.S.C. § 30116(a)(1)(B), (a)(9). They were
created by a 2014 amendment to FECA. Pub. L. No. 113-235,
div. N, § 101, 128 Stat. 2130, 2772–73. The LNC’s challenge
to this scheme mixes attacks on the new exceptions, attacks on
the old rule, and attacks on how the two treat different
categories of speech differently. The LNC also combines
arguments based on overbreadth and underbreadth. But once
these various arguments are unpacked, none of them succeeds.
Most obviously, the new contribution limits do not
themselves restrict too much speech. On this point, McConnell
controls. If a prohibition on contributing more than $25,000 to
a political party for any purpose does not restrict too much
20
speech, then neither do exceptions that permit additional
contributions of up to three times that amount. The majority
correctly concludes that this much is a matter of “simple
mathematics,” ante at 30, and Judge Griffith agrees, ante at 1.
The LNC further attacks the statutory distinction between
contributions for nominating conventions, headquarters, and
legal proceedings (now governed by the higher 2014 limits)
and contributions for all other purposes (still governed by the
lower BCRA limit). It contends that there is no anti-corruption
justification for treating these categories differently. The
majority concludes that there are such justifications, ante at 30–
32, while Judge Griffith concludes that there may not be, ante
at 3–7. In my view, Judge Griffith has the better of this
argument, so I would join his dissent if the First Amendment
required proof of a corruption-based justification for the
differential treatment of these speech categories. But I do not
think that such proof is necessary in this case.
As a general matter, “the First Amendment imposes no
freestanding ‘underinclusiveness limitation.’” Williams-Yulee
v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015) (quoting R.A.V. v.
City of St. Paul, 505 U.S. 377, 387 (1992)). So, for example,
if a state may prohibit obscenity across the board, then it may
prohibit obscene telephone calls but not obscene telegrams—
even if the two raise comparable concerns. See R.A.V., 505
U.S. at 387. Otherwise, laws might “violate[] the First
Amendment by abridging too little speech”—which is highly
“counterintuitive.” Williams-Yulee, 135 S. Ct. at 1668.
In my view, that principle governs this case. Under closely
drawn scrutiny, Congress needed an anti-corruption
justification both to impose BCRA’s original contribution limit
and to limit the additional categories of spending permitted by
the 2014 amendment. As noted above, McConnell found
21
sufficient justification for the former, and the latter follows
from it. But Congress did not need a further, corruption-related
justification to restrict contributions for nominating
conventions, headquarters, and legal expenses less severely
than it restricts other contributions. Rather, Congress could
have chosen to restrict those contributions less severely for
other reasons, such as a desire to make up for the loss of public
funds for nominating conventions, or simply to permit more
speech rather than less. The First Amendment demands a
strong anti-corruption justification when Congress chooses to
restrict campaign contributions, not when it chooses to loosen
the restrictions.
There are two important qualifications to this analysis, but
neither affects the bottom line here.
First, distinctions among categories of speech may violate
the First Amendment if they are based on content. See R.A.V.,
505 U.S. at 387 (“the First Amendment imposes not an
‘underinclusiveness’ limitation but a ‘content discrimination’
limitation”). Here, the LNC contends that the more favorable
treatment of contributions for nominating conventions,
headquarters, and legal expenses is content-based, because it
targets speech based on its “function or purpose.” Reed v.
Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Moreover, if a
distinction between “political” and other speech is content-
based, see id. at 2224–30, then so are the distinctions among
the types of political-speech contributions at issue here.
Whatever the force of this argument in the abstract, it
cannot carry the day. Reed did not involve campaign
contribution limits, which the Supreme Court has long treated
as content-neutral restrictions subject to intermediate scrutiny.
So, while I disagree with the majority’s suggestion that Reed is
inapposite because this case does not involve speech
22
restrictions, ante at 26, I agree with its ultimate conclusion,
ante at 27–28, that a lower court cannot follow the implications
of Reed as against the holdings of the campaign-finance cases.
See Agostini v. Felton, 521 U.S. 203, 237 (1997).
Second, underinclusiveness can raise First Amendment
concerns for another reason, by suggesting that the government
is not pursuing its asserted interests or that the challenged
speech restriction will not substantially advance them. See
Williams-Yulee, 135 S. Ct. at 1668. The majority concludes
that the 2014 scheme does not raise these concerns, ante at 30–
32, while Judge Griffith concludes that it does, ante at 3–9.
Were we free to engage this question, I would agree with Judge
Griffith. But I believe that McConnell forecloses the debate.
An underinclusiveness argument along these lines uses
speech-enabling exceptions to attack a speech-restricting rule.
If the government allows the sale of violent movies, that casts
doubt on its asserted need to restrict the sale of violent video
games. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 801–02
(2011). If the government permits newspapers to be distributed
through newsracks, that casts doubt on its asserted need to
prohibit commercial publications from being similarly
distributed. City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 416–28 (1993). If the government permits electronic
media to release names of juvenile offenders, that casts doubt
on its asserted need to prohibit newspapers from doing so.
Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104–05 (1979).
Here, the analogous argument amounts to a direct attack
on BCRA itself: If Congress permits annual contributions to
political parties of $225,000 (or $300,600, adjusted for
inflation) for three specified categories of activity, that casts
doubt on its asserted need to prohibit all other annual
contributions over $25,000 (or $33,400, adjusted for inflation).
23
As Judge Griffith explains, the argument is compelling: money
is fungible, the exceptions dwarf the rule, and there is no
plausible anti-corruption rationale to explain the disparate
treatment. Nonetheless, McConnell held that BCRA’s $25,000
contribution limit substantially advances, and is narrowly
tailored to, the important government interest in combatting
actual or apparent quid pro quo corruption. If we may not
revisit that conclusion based on intervening Supreme Court
decisions that undermine McConnell’s reasoning, see Agostini,
521 U.S. at 237, then neither may we revisit it based on
intervening statutes that do likewise. On this point, any course
correction must come from the Supreme Court itself.
Judge Griffith concludes that McConnell is not binding on
this point because it did not involve a “regime” with the three
new exceptions. Ante at 2. True enough, but the upshot of his
argument is that “limiting general contributions to $33,400” is
now unconstitutional. Id. And that general limit, created by
section 307(a)(2) of BCRA, and currently codified at 52 U.S.C.
§ 30116(a)(1)(B), is precisely the one that McConnell upheld.
* * * *
I join Part II of the majority opinion, which holds that the
LNC has standing to raise its various challenges. For the
reasons given above, I respectfully dissent from Part III of the
opinion, and I concur in the judgment as to Part IV.