United States Court of Appeals, District of Columbia Circuit
Certification of Constitutional Questions from the United
States District Court for the District of Columbia (No.
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.
Dickerson and Zac Morgan were on the brief for amicus curiae
Institute for Free Speech in support of appellant.
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.
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. [*]
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.
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.
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.
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
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.
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
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.
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.").
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
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?
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?
assuring ourselves of subject-matter jurisdiction, we address
each question in turn.
'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.
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.
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.
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
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.
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.
proceed to the first certified question: whether applying
FECA's annual contribution limits specifically to
Shaber's bequest violates the LNC's First Amendment
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).
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
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.
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)).
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.
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)
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.
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)).
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.
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.
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)).
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.
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.
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)
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
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 ...