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Libertarian National Committee, Inc. v. Federal Election Commission

United States Court of Appeals, District of Columbia Circuit

May 21, 2019

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.

          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

          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.

         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 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. 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.

         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 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.

         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 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 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 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.

         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 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 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 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, 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 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 ...


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