Libertarian Nat'l Comm., Inc. v. Fed. Election Comm'n, No. 18-5227

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Tatel, Circuit Judge
• Citation: 924 F.3d 533
• Decision Date: 21 May 2019
• Docket Number: No. 18-5227
• Parties: LIBERTARIAN NATIONAL COMMITTEE, INC., Appellant v. FEDERAL ELECTION COMMISSION, Appellee

924 F.3d 533

LIBERTARIAN NATIONAL COMMITTEE, INC., Appellant
v.
FEDERAL ELECTION COMMISSION, Appellee

No. 18-5227

United States Court of Appeals, District of Columbia Circuit.

Argued November 30, 2018
Decided May 21, 2019

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.

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 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.

924 F.3d 536

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, 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

924 F.3d 537

must prevent the LNC from "exercis[ing] control over the undisbursed funds." Id. at *3 n.4.

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 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.

II.

"[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.

924 F.3d 538

The plaintiff...