Holmes v. Fed. Election Comm'n

• Citation: 823 F.3d 69
• Decision Date: 26 April 2016
• Docket Number: No. 15–5120.,15–5120.
• Parties: Laura HOLMES and Paul Jost, Appellants v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

823 F.3d 69

Laura HOLMES and Paul Jost, Appellants

v.FEDERAL ELECTION COMMISSION, Appellee.

No. 15–5120.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 21, 2016.

Decided April 26, 2016.

Allen Dickerson argued the cause for appellants. With him on the briefs was Tyler Martinez.

Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission, argued the cause for appellee. With her on the brief were Daniel A. Petalas, Acting General Counsel, Kevin Deeley, Acting Associate General Counsel, and Steve N. Hajjar and Charles Kitcher, Attorneys.

Before: GARLAND,^* Chief Judge, HENDERSON, Circuit Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH

.

RANDOLPH

, Senior Circuit Judge:

Anyone eligible to vote in a Presidential election may bring an action in “the appropriate district court” to determine whether “any provision” of the Federal Election Campaign Act is unconstitutional. 52 U.S.C. § 30110

. If the requirements of Article III of the Constitution are satisfied, the district court must “immediately” “certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved ... sitting en banc.” Id.

Laura Holmes and her husband, Paul Jost, are eligible voters residing in Florida. They sued the Federal Election Commission claiming that a provision of the Act violated the First and Fifth Amendments to the Constitution. The district court, after a thorough recital of facts not in dispute,¹ declined to certify any questions and granted the Commission's motion for summary judgment on the ground that plaintiffs' arguments were frivolous because they were inconsistent with “settled law.” Holmes v. Fed. Election Comm'n, 99 F.Supp.3d 123, 124, 149 (D.D.C.2015)

. The question on appeal is whether, instead, the district court should have certified the constitutional questions raised in the complaint to the en banc court of appeals.

I

The Federal Election Campaign Act prohibits people from making contributions “to any candidate” for “any election for Federal office which, in the aggregate, exceed [$2,600].”²

52 U.S.C. § 30116(a)(1)(A)

. The contribution limit applies “separately with respect to each election,” 52 U.S.C. § 30116(a)(6), as a result of which a person may contribute $2,600 to a candidate for each “general, special, primary, or runoff election” in which the candidate participates. 52 U.S.C. § 30101(1)(A). Plaintiffs believe that this “per-election” provision violates the First and Fifth Amendments.

In 2014, each plaintiff wanted to contribute $5,200 to a Congressional candidate during the general election campaign. Plaintiffs could not do so because that amount exceeded the $2,600 per-election limit. Neither plaintiff contributed to his or her candidate during the primary election campaign. Plaintiffs explain that they are “interested principally in supporting the ultimate nominee[s] from [their] party.”

Plaintiffs sought a declaratory judgment that the Act's per-election limit is unconstitutional as applied to their contributions, and an injunction forbidding the Commission from enforcing that limit. They argued that § 30116(a)(6) of the Act violates the First Amendment's protection of free speech because the per-election structure “serves no anti-corruption purpose....” They also claimed that § 30116(a)(6)

violates the Fifth Amendment's guarantee of equal protection when “a candidate who faces a primary challenge competes in the general election against a candidate who ran unopposed or virtually unopposed during the primary.”³

The district court ruled “that no constitutional questions warrant[ed] certification [under § 30110

] because the plaintiffs' claims involve questions of settled law.” Holmes, 99 F.Supp.3d at 149. In addition to declining to certify plaintiffs' constitutional issues to the en banc court of appeals, the district court granted the Commission's motion for summary judgment on the merits and dismissed plaintiffs' claims. Id.

Plaintiffs appeal only the district court's decision not to certify their constitutional questions.

II Under § 30110

, district courts do not certify “frivolous” constitutional questions to the en banc court of appeals. Cal. Med. Ass'n v. Fed. Election Comm'n, 453 U.S. 182, 192 n. 14, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981). The role of the district court is similar to that of “a single judge asked to seek convening of a three-judge court under 28 U.S.C. § 2284....” Clark v. Valeo, 559 F.2d 642, 645 n. 2 (D.C.Cir.1977) (per curiam), aff'd sub nom.

Clark v. Kimmitt, 431 U.S. 950, 97 S.Ct. 2667, 53 L.Ed.2d 267 (1977). The single judge in such a case may refuse to convene a three-judge court if the plaintiff's claims are “wholly insubstantial,” “obviously frivolous,” and “obviously without merit.”

Shapiro v. McManus, ––– U.S. ––––, 136 S.Ct. 450, 456, 193 L.Ed.2d 279 (2015)

(quoting Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973) ). These phrases, the Court wrote in Shapiro, set a “low bar.” Id.; see, e.g., Indep. Inst. v.

Fed. Election Comm'n, 816 F.3d 113 (D.C.Cir.2016).⁴

This brings us to plaintiffs' contention that § 30116(a)(6)

violates the First Amendment. Their argument begins with the proposition that the “right to participate in democracy through political contributions is protected by the First Amendment....” McCutcheon v. Fed. Election Comm'n, –––U.S. ––––, 134 S.Ct. 1434, 1441, 188 L.Ed.2d 468 (2014) (plurality opinion). This “constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). To protect this First Amendment right, limitations on campaign contributions are unconstitutional unless they target “quid pro quo corruption or its appearance”; quid pro quo in this context “captures the notion of a direct exchange of an official act for money.” 134 S.Ct. at 1441 (internal quotation marks omitted). The linchpin of plaintiffs' argument is that contributing $5,200 to a candidate in a general election in one lump sum cannot be considered corrupting because Congress determined that contributing $5,200 to a candidate in two installments ($2,600 for a primary election and $2,600 for a general election) is not corrupting. In support, plaintiffs invoke the McCutcheon plurality's statement that “Congress's selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption.” Id. at 1452 ; see also

id. at 1442, 1448, 1451. The district court may be correct that McCutcheon 's repeated references to a “$5,200” contribution limit were just “shorthand ... dicta” to describe the combined limit “for the primary and general elections.” Holmes, 99 F.Supp.3d at 145. But then again, it may be that plaintiffs are correct in treating those references as support for their position. We do not take sides on the merits of the dispute. It is enough to say that plaintiffs' argument is not “obviously frivolous” or “obviously without merit.” Shapiro, 136 S.Ct. at 456.

The district court nevertheless declined to certify the First Amendment issue on the ground that plaintiffs' argument contradicted “settled law.” Holmes, 99 F.Supp.3d at 146, 149

. This standard derives from a footnote in Cal. Med., 453 U.S. at 192 n. 14, 101 S.Ct. 2712, a case arising under the predecessor to § 30110. But it is unclear whether the Supreme Court was referring to “settled” questions of constitutional law or statutory interpretation. Earlier in the footnote the Court spoke of cases in which “the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication.” Id. Toward the end of the footnote, the Court mentioned that the parties had not suggested that the statute at issue could be interpreted to avoid the constitutional issue, to which the Court added that the issues in the case were neither “insubstantial nor settled.” Id.⁵

The Court's footnote raises several problems. For instance, which court or courts must have “settled” the constitutional issue? Suppose a panel of the court of appeals has rendered a decision contrary to plaintiffs' claims. Would that constitute settled law? The district courts in the circuit would be bound to follow the appellate panel's decision, as would other three-judge panels in the circuit. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996)

(en banc). Yet district court certification under § 30110 is to the en banc court of appeals, which has the authority to overrule not only a panel's decision but also a previous en banc decision. See id.

Suppose instead that “settled law” refers only to decisions of the Supreme Court. See, e.g., Cal. Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938)

(per curiam) (“The lack of substantiality in a federal question may appear ... because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject.” (italics added)). This would make some sense, because the en banc court must adhere to a Supreme Court decision that is directly on point even if there are persuasive arguments against it. See Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). From this, one might conclude that under § 30110, a district court should decline to certify a question if the Supreme Court precedent is so “settled” that the plaintiff would surely lose in the en banc court. See, e.g.,

Khachaturian v. Fed. Election Comm'n, 980 F.2d 330 (5th Cir.1992) (en banc) (per curiam); Goland v. United States, 903 F.2d 1247, 1257–58 (9th Cir.1990).

But what may appear to be “settled” Supreme Court constitutional law sometimes turns out to be otherwise.⁶ McCutcheon and Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876,...