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Libertarian National Committee, Inc. v. Federal Election Commission

United States District Court, District of Columbia

June 29, 2018

LIBERTARIAN NATIONAL COMMITTEE, INC., Petitioner,
v.
FEDERAL ELECTION COMMISSION, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         The petitioner, the Libertarian National Committee, Inc. (“LNC”), has challenged for over seven years the constitutionality of certain contribution limits, under the Federal Election Campaign Act of 1971 (“FECA”), Pub. L. No. 92-225, 86 Stat. 3, as amended (codified at 52 U.S.C. § 30101 et seq.), that regulate how the LNC may accept and use testamentary bequests. In this latest round of litigation, the LNC raises one facial and two as-applied constitutional challenges to the statutory limits on the amount of money a person may contribute per year “to the political committees established and maintained by a national political party.” 52 U.S.C. § 30116(a)(1)(B); see also Id. § 30116(a)(9); Pet.'s Mot. Certify Facts & Questions (“Pet.'s Mot. Cert.”) at 1, ECF No. 24. The role of a district court under FECA's statutory scheme is not to resolve constitutional challenges to the statute in the first instance, but merely to certify to the U.S. Court of Appeals those challenges that are meritorious. See 52 U.S.C. § 30110. Now pending before the Court is the LNC's motion to certify for resolution by the U.S. Court of Appeals for the District of Columbia Circuit three questions: whether LNC's First Amendment rights are violated by (1) applying the annual contribution limits to “the bequest of Joseph Shaber, ” (2) “restricting the purposes for which the [LNC] may spend its money, ” in general, and (3) “restricting the purposes for which the [LNC] may spend the bequest of Joseph Shaber, ” in particular. Pet.'s Mot. Cert. at 1.[1] The defendant Federal Election Commission (“FEC”), in opposing certification, has moved to dismiss the case, pursuant Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction. Def.'s Mot. Dismiss (“Def.'s Mot.”) at 1, ECF No. 25. For the reasons that follow, the LNC's motion is granted in part and denied in part, and the FEC's motion is denied.

         I. BACKGROUND

         The LNC, a nonprofit organization incorporated under District of Columbia law, is the national committee of the Libertarian Party of the United States, which Party has 15, 031 active paid sustaining donors, and 137, 451 members, in all 50 states and the District of Columbia. App'x, Findings of Fact ¶¶ 1, 3. In addition, forty-eight partisan officeholders and 111 non-partisan officeholders are affiliated with the Libertarian Party nationwide, and over half a million registered voters identify with the Libertarian Party in the states in which voters can register as Libertarians. Id. ¶ 3. The LNC describes its purpose “to field national Presidential tickets, to support its state party affiliates in running candidates for public office, and to conduct other political activities in furtherance of a libertarian public policy agenda in the United States.” Id. ¶ 5. This is the second round of litigation brought by the LNC against the FEC regarding the constitutionality of the FECA's limits on monetary contributions to political parties. The details of the prior litigation bear directly on the present dispute and are recounted below, followed by an overview of the underlying facts.

         A. The Previous Litigation

         The FECA establishes limits on the amount of money a person may donate per year to national political party committees. See 52 U.S.C. § 30116(a)(1)(B). In Buckley v. Valeo, the Supreme Court rejected a facial challenge to the FECA's “limitation on total contributions by an individual during any calendar year, ” describing contribution limits as one of the FECA's “primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions.” 424 U.S. 1, 58 (1976). “The contribution ceilings . . . serve the basic governmental interest in safeguarding the integrity of the electoral process, ” Buckley held, “without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.” Id. Buckley did not address an as-applied challenge to the contribution limits.

         Ten years ago, Raymond Burrington died and left the LNC a residuary bequest of $217, 734. See Libertarian Nat'l Comm., Inc. v. FEC (“LNC I”), 930 F.Supp.2d 154, 156 (D.D.C. 2013) (Wilkins, J.). The FEC, consistent with longstanding policy, determined that the FECA's limits on contributions to national political party committees applied to Mr. Burrington's bequest, and thus, that the Burrington estate could contribute to the LNC, in any year, no more than the contribution limit amount. Id. The Burrington estate contributed to the LNC the amount of the annual contribution limit and, in agreement with the LNC, deposited the balance of Mr. Burrington's bequest “into an escrow account, from which the escrow agent . . . would distribute annual contributions from the Estate to the LNC in amounts equal to FECA's contribution limit.” Id. at 176.

         The LNC sued the FEC to “enjoin application of the Party Limit to the contribution, solicitation, acceptance, and spending of decedents' bequests, as said application violates the LNC's First Amendment speech and associational rights and those of its supporters.” Id. at 156. The LNC moved to certify to the D.C. Circuit the following question: “Does imposing annual contribution limits against testamentary bequests directed at, or accepted or solicited by political party committees, violate First Amendment speech and associational rights?” Id. The Court declined to certify the LNC's question as overbroad, reasoning that the LNC's challenge “would not apply solely to [the LNC], but would extend to other entities not before this Court.” Id. at 165. The Court further explained that under certain circumstances, “it is possible for a bequest to raise valid anti-corruption concerns.” Id. at 166. For example, the Court reasoned, “making one's bequest known before death could be treated just as a contribution is.” Id. Likewise, “[a] bequest may also help friends or family of the deceased have access to political officeholders and candidates.” Id. These examples were supported by witness testimony and other factual evidence of how political “groups treat such bequests.” Id. The Court thus recognized that even contributions by the dead may, in certain contexts, raise concerns about actual or apparent corruption justifying a contribution limit's application. Id. at 166-67.[2] Furthermore, with the testators being dead and their estates having no First Amendment rights of association or expression, the Court concluded that the LNC could challenge the contribution limits only as to its own First Amendment rights, not as to testators' rights. Id. at 169-171.[3] Given these legal conclusions, the Court then narrowed and certified the following question: “Does imposing annual contribution limits against the bequest of Raymond Groves Burrington violate the First Amendment rights of the Libertarian National Committee?” Id. at 171.

         The FEC moved, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend the Court's order, arguing, among other things, that while “as-applied First Amendment challenges seeking categorical exceptions to FECA's contribution limits are proper under the statute, ” a petitioner may not, as a matter of law, raise “a First Amendment challenge to an individual contribution” without identifying a categorical basis to exempt an entire class of contributions from the contribution limits' application. Libertarian Nat'l Comm., Inc. v. FEC (“LNC II”), 950 F.Supp.2d 58, 60 (D.D.C. 2013) (Wilkins, J.) (emphasis added). In denying the FEC's motion, the Court rejected this argument, concluding that § 30110 requires a district court to certify “individualized as-applied challenges to contribution limits.” Id. at 62.

         The D.C. Circuit summarily affirmed LNC I's reformulation and certification of the LNC's question, determining that “[t]he district court properly declined to certify the broad proposed question of law, as framed by appellant.” Libertarian Nat'l Comm., Inc. v. FEC, No. 13-5094, 2014 WL 590973, at *1 (D.C. Cir. Feb 7, 2014). The escrow account fully distributed Mr. Burrington's bequest to the LNC before the D.C. Circuit could hear the certified question on the merits, however. See Pet.'s Mem. Supp. Pet.'s Mot. Certify Facts & Questions (“Pet.'s Mem.”) at 2, ECF No. 24-1; Def.'s Mem. Supp. Mot. Dismiss & Opp'n Pet.'s Mot. Certify Facts & Questions (“Def.'s Opp'n”) at 9, ECF No. 26. Consequently, the D.C. Circuit dismissed the certification as moot and vacated the district court's order. Order, Libertarian Nat'l Comm., Inc. v. FEC (“LNC Dismissal Order”), No. 13-5088, 2014 U.S. App. LEXIS 25108, at *1 (D.C. Cir. Mar. 26, 2014).

         B. Joseph Shaber's Bequest

         Joseph Shaber, a prior donor to the LNC, died in August 2014. Def.'s Opp'n at 9; Factual Findings ¶¶ 109-10, 117. Upon his death, Mr. Shaber bequeathed, with no restrictions, the LNC an amount determined to be $235, 575.20 from a living trust. Id. ¶¶ 115, 117, 121. The LNC accepted an amount from the bequest equal to the annual contribution limits, and placed the remainder of the bequest in an escrow account, to distribute the maximum allowable contribution to the LNC on an annual basis. Id. ¶ 128.

         The LNC sued to enjoin the FEC from enforcing the contribution limits “either generally or in relation to the Shaber Bequest, ” and to obtain declaratory relief, costs, attorney's fees, and other “just and appropriate” relief. Compl. at 10-11, ECF No. 1. The FEC moved to dismiss the LNC's complaint for lack of subject matter jurisdiction, Def.'s Mot. Dismiss for Lack of Juris., ECF No. 9, which motion was denied, see Order Denying Def.'s Mot. Dismiss, ECF No. 20; Libertarian Nat'l Comm., Inc. v. FEC (“LNC III”), 228 F.Supp.3d 19 (D.D.C. 2017) (Howell, C.J.). The LNC now seeks to certify the following three questions of law to the D.C. Circuit:

1. Does imposing annual contribution limits against the bequest of Joseph Shaber violate the First Amendment rights of the Libertarian National Committee?
2. Do 52 U.S.C. §§ 30116(a)(1)(B) and 30125, on their face, violate the First Amendment rights of the Libertarian National Committee by restricting the purposes for which the Committee may spend its money?
3. Does restricting the purposes for which the Libertarian National Committee may spend the bequest of Joseph Shaber violate the Committee's First Amendment rights?

Pet.'s Mot. Cert. at 1. The FEC opposes the LNC's motion, and has moved to dismiss for lack of jurisdiction, which motion parrots in substance the FEC's opposition to LNC's certification motion. See Def.'s Mot.[4] The parties' motions are now ripe for consideration.

         II. LEGAL STANDARD

         Under the FECA, “the national committee of any political party . . . may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act.” 52 U.S.C. § 30110.[5] “The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.” Id. A district court's role in the certification process is to (1) “[i]dentify constitutional issues in the complaint, (2) “[t]ake . . . evidence . . . to the extent not controverted in material and substantial degree, ” (3) “[m]ake findings of fact with reference to those issues, ” and (4) “[c]ertify to [the D.C. Circuit] constitutional questions arising from steps 1, 2, and 3.” Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975). A district court does not certify questions under § 30110 that “are ‘wholly insubstantial,' ‘obviously frivolous,' and ‘obviously without merit, '” which means that satisfying this standard is “a ‘low bar.'” Holmes v. FEC, 823 F.3d 69, 71-72 (D.C. Cir. 2016) (quoting Shapiro v. McManus, 136 S.Ct. 450, 456 (2015)). In applying this standard, the fact that a proposed question presents a legal argument foreclosed by binding precedent does not, in and of itself, “make the question obviously frivolous, or wholly insubstantial, or obviously without merit, ” at least “so long as the [petitioner] mounts a non-frivolous argument in favor of overturning that precedent.” Id. at 74 (internal quotation marks omitted).[6]

         A district court's discretion under § 30110 is not limited to certifying or dismissing a question exactly as formulated by a petitioner, but allows the court to reformulate a proposed question prior to certification. See LNC I, 930 F.Supp.2d at 168 (“[L]ongstanding precedent supports this Court's discretion in crafting and/or amending any questions certified to the Court of Appeals.”). Indeed, before Buckley v. Valeo reached the Supreme Court, the D.C. Circuit initially had remanded the case to the district court to “formulat[e] [the] constitutional questions to be certified.” LNC I, 930 F.Supp.2d at 168 (citing Buckley, 387 F.2d at 835 (emphasis omitted)). “Buckley's history strongly suggests the district court has an active, rather than passive, role in the certification process under [§ 30110].” Id. at 168-69; see also Khachaturian v. FEC, 980 F.2d 330, 332 (5th Cir. 1992) (“If [the district court] concludes that colorable constitutional issues are raised from the facts, it should certify those questions to us.”); Bread Political Action Comm. v. FEC, 635 F.2d 621, 625 n.4 (7th Cir. 1980) (noting with approval that “[t]he district court polished plaintiffs' draft questions into their present form”); Cao v. FEC, 688 F.Supp.2d 498, 542 (E.D. La. 2010) (“Although the Court finds the substance of Questions Three and Six non-frivolous, the plaintiffs, in their briefing, put a much finer point on the questions than those originally proposed in the motion to certify. As such, the Court will exercise its discretion in fashioning a question for the Fifth Circuit that more precisely captures the Constitutional difficulty raised by the plaintiffs' arguments.”), dismissal order aff'd, certified questions answered, In re Cao, 619 F.3d 410, 414 (5th Cir. 2010) (“The district court, abiding by its proper role . . . identified the constitutional issues in the complaint . . . .”).

         III. DISCUSSION

         The LNC contends the challenged contribution limits violate this national political committee's First Amendment rights by restricting how it may receive and spend the bequest of Mr. Shaber, in particular, and the purposes for which it may spend contributions generally. See Pet.'s Mot. Cert. at 1. As noted, the LNC challenges as unconstitutional, in the first question, the contribution limits as applied to Mr. Shaber's bequest; in the second question, the FECA's specialized purpose regime, which permits contributions to a national political party committee over the maximum annual general purpose contribution limit, but only for one of three specific government-approved purposes; and, in the third question, the FECA's specialized purpose regime as applied to Mr. Shaber's bequest. Id. A brief overview of the governing statutory and regulatory framework is provided before turning to an analysis of each proposed question's fitness for certification under § 30110.

         A. Legal and Regulatory Framework

         The FECA provides that “no person shall make contributions . . . to the political committees established and maintained by a national political party, which are not the authorized political committees of any candidate, in any calendar year which, in the aggregate, exceed $25, 000.” 52 U.S.C. § 30116(a)(1)(B). This amount is indexed for inflation, id. § 30116(c), and now stands, under current regulations, at $33, 900, see Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 82 Fed. Reg. 10, 904, 10, 905-06 (Feb. 16, 2017). The FEC has long construed the term “person” in § 30116(a)(1) to encompass a testamentary estate, a construction not challenged here. See, e.g., FEC Advisory Op. 2015-05 (Shaber), 2015 WL 4978865, at *2 (Aug. 11, 2015) (citing advisory opinions dating back to 1983); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843- 46 (1984) (holding that courts shall defer to agencies' reasonable interpretations of ambiguities in statutes they administer); LNC I, 930 F.Supp.2d at 165 (“The FEC's interpretation of the statute to include a testamentary bequest appears reasonable, is not seriously challenged by the LNC in its briefs, and is entitled to deference under Chevron.”).

         Notwithstanding the general limit on contributions to national political party committees, the FECA, as amended, provides that “contributions made to” any “separate, segregated account of a national committee of a political party” established for one of three specialized purposes may “exceed 300 percent of the amount otherwise applicable” in any calendar year. 52 U.S.C. §§ 30116(a)(1), 30116(a)(9)(A)-(C). These specialized purposes are (1) “to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) or to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds used to defray such expenses, except that the aggregate amount of expenditures the national committee of a political party may make from such account may not exceed $20, 000, 000 with respect to any single convention;” (2) “to defray expenses incurred with respect to the construction, purchase, renovation, operation, and furnishing of one or more headquarters buildings of the party or to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds used to defray such expenses;” and (3) “to defray expenses incurred with respect to the preparation for and the conduct of election recounts and contests and other legal proceedings.” Id. § 30116(a)(9)(A)-(C). In other words, while a person may contribute only $33, 900 per year to a national political party's committee for unrestricted use, see 82 Fed. Reg. at 10, 905-06, an individual may contribute up to $101, 700 to each account established by a national political party committee to pay expenses incurred with respect to (1) a presidential nominating convention, (2) a party headquarters building, or (3) an election recount, see 52 U.S.C. § 30116(a)(9)(A)-(C). Altogether, then, an individual may contribute $339, 000 per year to accounts established and maintained by national political parties-$101, 700 to each of three specialized purpose accounts, plus $33, 900 for general purposes. Id. § 30116(a)(1)(B).

         Finally, the FECA provides that “[a] national committee of a political party . . . may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” Id. § 30125(a)(1) (emphasis added).

         B. The LNC's Argument That The Contribution Limits Are Unconstitutional As Applied To Mr. Shaber's Bequest Warrants Certification

         The LNC's first question-“Does imposing annual contribution limits against the bequest of Joseph Shaber violate the First Amendment rights of the Libertarian National Committee?”- is identical in substance to the question that LNC I certified, merely substituting the name “Joseph Shaber” for “Raymond Burrington.” Pet.'s Mot. Cert. at 1; LNC I, 930 F.Supp.2d at 171. Collateral estoppel thus would seem to require the instant question's certification. The FEC argues, however, that LNC I does not compel certification here, because LNC I did not have the benefit of adequate briefing on whether the contribution limits were unconstitutional as applied to Mr. Burrington's particular bequest, as the FEC had expected to litigate only whether the contribution limits constitutionally may apply to bequests in general. See Def.'s Opp'n at 30. The FEC acknowledges that the opportunity to address this issue was presented through a post-certification motion to alter or amend, which LNC II denied. See Id. at 30-31; see also 950 F.Supp.2d 58. Nonetheless, the FEC posits that LNC II does not compel certification either, since this issue was resolved under the demanding clear error standard of review rather than de novo. See Def.'s Opp'n at 31; 950 F.Supp.2d at 60 (reciting applicable standard of review for motions under Fed.R.Civ.P. 59(e), which “need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” (quoting Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006))); see Def.'s Opp'n at 31. Even indulging the FEC's contention that the collateral estoppel doctrine does not compel certification of the first question here after LNC I and II, as discussed next, the Court reaches the same result as LNC I and II that certification of the first question is warranted.

         As noted earlier, supra, a constitutional challenge to the FECA under § 30110 warrants certification unless the challenge is “‘wholly insubstantial,' ‘obviously frivolous,' [or] ‘obviously without merit, '” Holmes, 823 F.3d at 71 (quoting Shapiro, 136 S.Ct. at 456). The FEC makes a convoluted and barely comprehensible argument that the instant question flunks this test because LNC I itself forecloses the LNC's claim. See Def.'s Opp'n at 25-30.[7] The gist of the FEC's argument for why LNC I bars the first question's certification seems reducible to three points. The FEC argues that (1) LNC I held “that it is []constitutional to apply campaign contribution limits to testamentary bequests as a general matter.” Id. at 24.[8] The FEC further argues that (2) the contribution limits may apply to Mr. Shaber's bequest to combat the mere appearance, rather than only the reality, of corruption. See Id. at 25, 28. Finally, the FEC argues that (3) Mr. Shaber's bequest evinces sufficiently weighty concerns as to both the reality and appearance of corruption to justify the contribution limits' application. See Id. at 31-32. For the following reasons, the FEC's argument fails at every turn.[9]

         1. LNC I Did Not Hold That Contribution Limits Constitutionally May Apply To Bequests As A General Matter.

         Based on a fundamental misreading of LNC I, the FEC argues that the first question does not merit certification because LNC I held that the contribution limits generally may apply to bequests and the LNC has failed to distinguish Mr. Shaber's bequest from any other bequest. See Id. at 24-30. The FEC characterizes LNC I as having concluded that “it is []constitutional to apply contribution limits to bequeathed contributions.” Id. at 25; see also Id. at 26 (“Of course, the LNC did lose its claim that the party contribution limit may not be constitutionally applied to testamentary bequests in general.”); id. at 28 (“[T]he LNC has lost the battle over whether it is unconstitutional to apply any campaign contribution to testamentary bequests.” (alterations and internal quotation marks omitted)). LNC I did not hold, as the FEC wrongly asserts, “that it is []constitutional to apply campaign contribution limits to testamentary bequests as a general matter.” Id. at 24. LNC I's actual holding is much more limited: LNC I merely held “that it is possible for a bequest to raise valid anti-corruption concerns.” 930 F.Supp.2d at 166. This is a far cry from holding that the contribution limits constitutionally may apply to most bequests or to bequests as a general matter, that a bequest must somehow be unusual for an as-applied challenge to lie, or that a petitioner challenging a contribution limit's application to a particular bequest must identify a “categorical basis to differentiate” a particular contribution “from any other potential bequeathed contribution.” Def.'s Opp'n at 26, 30. Indeed, LNC I's recognition of the mere “possib[ility]” that a bequest may “raise valid anti-corruption concerns, ” 930 F.Supp.2d at 166, suggests if anything that most bequests do not raise valid corruption concerns, and that bequests only rarely raise the corruption concerns necessary to justify the contribution limits' application. At the very least, LNC I did not hold that the contribution limits presumptively are constitutional as to individual bequests. The FEC's argument to the contrary fails to understand what LNC I actually said.

         2. The LNC Makes a Non-Frivolous Argument that Only Evidence of Actual Corruption, Rather Than the Appearance of Corruption, Can Justify the Contribution Limits' Application to Mr. Shaber's Bequest.

         The FEC argues that no evidence of actual corruption is needed to justify the contribution limits' application to Mr. Shaber's bequest because contribution limits are designed to combat the appearance as well as the reality of corruption. See Def.'s Opp'n at 25-28.[10] The FEC is correct that existing doctrine recognizes the prevention of apparent corruption, not just of actual corruption, as an interest that justifies contribution limits. See Citizens United v. FEC, 558 U.S. 310, 357 (2010) (“[R]estrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements . . . . The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption.”); Buckley, 424 U.S. at 29-30 (1976) (observing that “most large contributors do not seek improper influence over a candidate's position or an officeholder's action, ” but that this “does not undercut the validity of the $1, 000 contribution limitation . . . . Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.”).

         The LNC responds that even if contribution limits may as a general matter “bar many contributions that are not, in fact, tainted by corruption, . . . . the dead are different, and thus raise different indicia of potential corruption and a different level of concern from that raised by the living.” Pet.'s Opp'n Def.'s Mot. Dismiss & Reply Supp. Mot. Certify Facts & Questions (“Pet.'s Reply”) at 16, ECF No. 27. This is so, the LNC asserts, because “[w]ith a bequest, the corruption inquiry is wholly retrospective, and barring supernatural intervention, the potential for quid pro quo activity is rather more limited, as is its enforcement.” Id. at 16-17. The LNC thus seeks to recognize a limited exception, applicable only to bequests, to the general rule that the government's interest in preventing the appearance of corruption justifies contribution limits.

         Neither party identifies any authority either recognizing or rejecting such an exception. Thus, whether preventing the appearance, rather than the reality, of corruption may justify a contribution limit's application to a bequest appears to be a question of first impression.[11] The absence of any authority foreclosing the LNC's argument persuades the Court that such argument is not frivolous.

         3. The LNC Makes a Non-Frivolous Argument that Mr. Shaber's Bequest Raises No. Corruption Concerns.

         Finally, the FEC argues that even if the government bears the burden to show that the contribution limits are constitutional as applied to Mr. Shaber's bequest, and regardless of whether evidence of only actual or also apparent corruption may justify the contribution limits' application, Mr. Shaber's bequest evinces sufficient “factual markers of the potential for apparent or actual corruption” to justify applying the contribution limits. Def.'s Opp'n at 31.[12]The LNC, however, raises non-frivolous arguments to the contrary.

         LNC I identified two circumstances in which “the anti-corruption rationale for limiting contributions from bequests is” beyond “theoretical.” 930 F.Supp.2d at 166 (alterations omitted). First, LNC I observed that “making one's bequest known” to a recipient “before death could be treated just as a contribution is, ” such that “a political committee could feel pressure to continue to ensure that a (potential) donor is happy with the committee's actions lest they revoke the bequest.” Id. at 166-67. Second, LNC I observed that “[a] bequest may also help friends or family of the deceased have access to political officeholders and candidates, ” such that “political committees could offer access to the donor's heirs or representatives upon the production of a generous will.” Id. Bequests that do not arise under these circumstances, LNC I suggested, thus are unlikely to “raise the anti-corruption concerns that motivated the Buckley and McConnell [v. FEC, 540 U.S. 93 (2003)] Courts to dismiss a facial attack on contribution limits.” Id. at 166.

         The LNC asserts that both of the above factors weigh toward concluding that Mr. Shaber's bequest raises no corruption concerns. First, according to the LNC, Mr. Shaber did not make his bequest known to the LNC prior to death. Pet.'s Reply at 16 (citing Pet.'s Proposed Facts ¶ 70). Second, neither Mr. Shaber nor any of his associates and loved ones had any known relationship to the LNC or its board members, officers, or candidates apart from Mr. Shaber's donations themselves. Id. (citing Pet.'s Proposed Facts ¶ 84). Moreover, Mr. Shaber gave little to the LNC during his life-only $3, 315 over the course of 24 years, an average of $138.13 per year-and the LNC has given nothing tangible of value to Mr. Shaber or his associates and loved ones. Id. (citing Pet.'s Proposed Facts ¶ 85; see Mot. Cert., Ex. E, Joseph Shaber Gift History, ECF No. 24-7). Thus, the LNC raises a non-frivolous argument that the government cannot meet the burden to show that Mr. Shaber's bequest raises any concerns as to the appearance or reality of corruption to justify the contribution limits' application.

         LNC I supports the LNC's argument.[13] LNC I determined that the LNC had “ma[de] a persuasive argument that the Burrington bequest does not implicate any valid anti-corruption concerns” given that “the only known interaction between Burrington and the LNC occurred in 1998 when the former donated $25.00 to the Libertarian Party” and that “the LNC had no idea that Burrington planned to leave any money to the organization in his will.” 930 F.Supp.2d at 170. While the total $3, 315 that Mr. Shaber contributed to the LNC in parts on 46 separate occasions during his life, see Joseph Shaber Gift History, is nearly 133 times the $25 that Mr. Burrington contributed to the LNC during his life, see LNC I, 930 F.Supp.2d at 170, neither the amount nor frequency of Mr. Shaber's contributions are so great as to make frivolous the claim that Mr. Shaber's contributions do not raise corruption concerns. The amount of $3, 315 donated 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. See 52 U.S.C. § 30116(a)(1)(B), (a)(9); 82 Fed. Reg. at 10, 905-06.

         * * *

         For the reasons explained above, (1) LNC I did not hold that the contribution limits constitutionally may apply to bequests as a general matter, and the LNC has raised non-frivolous arguments that (2) the FEC's only interest in applying the contribution limits to Mr. Shaber's bequest is an interest in combatting the reality, as opposed to the mere appearance, of corruption, and (3) Mr. Shaber's bequest does not raise corruption concerns so as to justify the contribution limits' application. As such, the LNC's first question-“Does imposing annual contribution limits against the bequest of Joseph Shaber violate the First Amendment rights of the Libertarian National Committee?, ” Pet.'s Mot. Cert. at 1-warrants certification under § 30110.

         C. The LNC's Arguments that the FECA's Specialized Purpose Regime Impermissibly Limits Speech On the Basis of Content is Not Frivolous

         The LNC's second question-“Do 52 U.S.C. §§ 30116(a)(1)(B) and 30125, on their face, violate the First Amendment rights of the Libertarian National Committee by restricting the purposes for which the Committee may spend its money?, ” id.-asserts that the FECA's specialized purpose regime “directly limit[s] how the LNC may express itself, in preparation for and during political campaigns, based on the subject matter, function, or purpose of the LNC's speech, ” in violation of the First Amendment. Pet.'s Mem. at 16. The LNC argues that once a donor has contributed to the LNC $33, 900, the maximum annual legally-allowed general-purpose contribution, 52 U.S.C. § 20116(a)(1)(B); 82 Fed. Reg. at 10, 905-06, any further contributions to the LNC by that donor, and the LNC's use of such contributions, are lawful only if made or used “towards the purposes and in the amounts ordained by Congress.” Pet.'s Mem. at 16. These government-approved purposes are presidential nominating conventions, party headquarters buildings, and recount expenses, see 52 U.S.C. § 30116(a)(9), “all [of which] convey or enable expression in some way or to some degree.” Pet.'s Mem. at 16. Thus, the LNC argues, “the amount of speech a political party may exercise turns on the content of that speech, ” creating an impermissible content-based restriction on speech. Id.[14]

         “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep't of City of Chi. v. Mosley, 408 U.S. 92, 95 (1972); accord Act Now to Stop War & End Racism Coal. v. District of Columbia, 846 F.3d 391, 403 (D.C. Cir. 2017). “[T]he First Amendment ‘has its fullest and most urgent application' to speech uttered during a campaign for political office, ” Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989), as “‘[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation' of our system of government, ” id. (quoting Buckley, 424 U.S. at 14).

         “Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2226 (2015). “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed, ” meaning that a court must “consider whether a regulation of speech ‘on its face' draws distinctions based on the message a speaker conveys.” Id. at 2227 (quoting Sorrell v. IMS Health, Inc., 131 S.Ct. 2653, 2663-2664 (2011)). “Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” Id. However, “[b]oth are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id.

         1. The Specialized Purpose Regime Should Be Reviewed as a Contribution Limit Rather Than as an Expenditure Limit.

         As a threshold matter, the parties dispute whether the specialized purpose regime should be reviewed as a contribution limit or expenditure limit. Compare Pet.'s Mem. at 17 (“[T]he []omnibus expressive purpose restrictions are expenditure limits-content-based restrictions on speech.”), with Def.'s Opp'n at 15 (“[T]here is no credible argument that the segregated account limits at issue here restrict expenditures.”). The distinction between contribution limits and expenditure limits is legally significant, given the more demanding constitutional test to which expenditure limits are subject. See, e.g., Randall v. Sorrell, 548 U.S. 230, 242 (recognizing that expenditure limits generally are “constitutionally invalid”). The specialized purpose regime is neither a pure contribution limit nor a pure expenditure limit, but contains elements of both, establishing higher limits on contributions directed toward one of three government-approved purposes than on contributions directed toward other purposes, see 52 U.S.C. § 30116(a)(1)(B), (9), and directing that national political parties “may not . . . spend any funds, that are not subject to the limits [and] prohibitions . . . of this Act, ” id. § 30125(a)(1).

         Binding precedent forecloses the LNC's argument that the specialized purpose regime should be reviewed as an expenditure limit rather than as a contribution limit. McConnell held that provisions of the Bipartisan Campaign Reform Act (“BCRA”) prohibiting “national parties from receiving or spending [soft] money” and state parties “from spending [soft] money on federal election activities, ” in addition to prohibiting persons from making such contributions, were akin to contribution limits rather than expenditure limits because “neither provision in any way limits the total amount of money parties can spend, ” but “simply limit the source and individual amount of donations.” 540 U.S. at 139. “That they do so by prohibiting the spending of soft money, ” McConnell reasoned, “does not render them expenditure limitations.” Id. The same reasoning applies here.

         The specialized purpose regime's characterization as a contribution limit, however, does not necessarily mean that mere “closely drawn, ” rather than strict, scrutiny applies to the LNC's challenge here. Typically, a challenge to a contribution limit asserts that the limit prevents a person from contributing as much money as the person would like to give, see, e.g., Buckley, 424 U.S. at 20, but Congress's discretion to set contribution limits' specific dollar amounts is well-established, see, e.g., Randall, 548 U.S. at 248 (“[T]he legislature is better equipped to make such empirical judgments, . . . . [t]hus ordinarily we have deferred to the legislature's determination of such matters.” (quoting McConnell, 540 U.S. at 137)), FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 433 (2001) (“[T]he limit's dollar amount need not be fine tuned.”); Buckley, 424 U.S. at 30 (“Congress' failure to engage in such fine tuning does not invalidate the legislation.”). The LNC's argument here is different.

         The LNC asserts not “that the current contribution limit . . . to political parties is too low, ” Pet.'s Mem. at 17; see also Id. (“This is not a challenge to any contribution limit.”), but rather, that the specialized purpose regime unconstitutionally conditions the lawfulness of a contribution on the content of the speech for which the contribution is used, id. at 18 (“When a political party can have money, and use it for some expression, but not other expression, that is an expression-restriction, not merely a contribution limit.”). In this way, the LNC's second question raises an issue less akin to a traditional challenge to a contribution limit than to a challenge to a statute alleged to restrict speech on the basis of content. See, e.g., Reed, 135 S.Ct. at 2226. As such, the appropriate framework for review is that governing content-based restrictions on speech, requiring narrow tailoring to serve a compelling state interest, see id., rather than the contribution limit framework.

         2. Whether the Specialized Purpose Regime Unconstitutionally Restricts Speech Based On Content.

         The FEC makes several arguments as to why the specialized purpose regime does not impermissibly restrict speech on the basis of content. First, the FEC denies that the specialized purpose regime imposes a content-imposed restriction at all. See Def.'s Reply Mem. Supp. Mot. Dismiss (“Def.'s Reply”) at 7, ECF No. 29. Second, even if the specialized purpose regime amounts to a content-based restriction, the FEC contends this regime is sufficiently tailored to achieve a sufficiently important governmental interest. See Def.'s Opp'n at 18-22. Third, the FEC argues that existing authority establishes that Congress may allow contributions to particular recipients and those recipients' expenditure of such contributions for certain purposes but not for others. See Id. at 20. Each of these arguments are addressed in turn.

         i. Whether The Specialized Purpose Regime Imposes Content-Based Restrictions

         The FEC argues that the specialized purpose regime does not constitute a content-based restriction on speech because “the ability of a national political party committee to use funds contributed to the segregated accounts depends not on the content of any message but rather the category of expenses at issue.” Def.'s Reply at 7. This, however, is not so. As the LNC correctly observes, the LNC cannot lawfully spend the entirety of a contribution in an amount above $33, 900 “distributing pamphlets about the party's ideology or supporting a non-presidential candidate, ” but must spend at least some portion of that contribution, if at all, “broadcasting its presidential nominating convention, hanging a sign on its building, or litigating an election contest.” Pet.'s Mem. at 16. Thus, the lawfulness of a particular expenditure by the LNC may indeed turn on the message that the expenditure conveys. The FEC argues that the LNC can spend specialized purpose account funds for any purpose so long as the LNC does so at the LNC's presidential nominating convention, see Def.'s Reply at 7, but to condition an expenditure's lawfulness on whether the expenditure is made in connection with a convention itself arguably constitutes a content-based restriction on speech. See Reed, 135 S.Ct. at 2227 (identifying laws that “defin[e] regulated speech by its function or purpose” as imposing content-based restrictions. At the very least, the LNC's argument to this effect is not frivolous.

         ii. Whether the Specialized Purpose Regime Is Sufficiently Tailored To Serve A Sufficiently Important Government Interest

         The FEC next argues that any disparate treatment of general purpose and specialized purpose contributions passes constitutional muster given that (1) Congress, having ended public funding of presidential nominating conventions in 2014, sought “to ensure that national parties would maintain access to sufficient funds to continue their [convention] operations after one source of funds was no longer available, ” (2) party headquarters and recount expenses “tend to be less directly connected to most candidates or campaigns for federal office, ” and thus to raise lesser corruption concerns than contributions toward expenses more directly connected to individual candidates and campaigns, and (3) “political parties and their candidates tend to place more value on unrestricted contributions than those that may only be used for certain expenses, ” meaning that general purpose contributions “create a higher risk of corruption or its appearance than” specialized purpose contributions, requiring more restrictive limits to prevent corruption or the appearance thereof. See Def.'s Opp'n at 18-20, 22.

         The LNC counters, somewhat ironically, that specialized purpose contributions raise corruption concerns at least equal to those that general purpose contributions raise, and thus, that setting higher limits on specialized purpose contributions undermines the anti-corruption rationale used to justify the general purpose contribution limits. See Pet.'s Mem. At 5. “[D]onations received for a segregated purpose potentially free up other money that would have been spent out of a party's general account, to be used for unrestricted purposes, ” the LNC observes, given that “money is fungible.” Id. Thus, the LNC posits, “[s]o long as a party would have spent a sufficient amount on a segregated purpose, a segregated purpose donation is effectively an unrestricted donation.” Id.

         Whether the specialized purpose regime is sufficiently tailored, under the circumstances, to achieve a sufficiently important interest under the applicable standard of scrutiny is a question for the D.C. Circuit to resolve in the first instance. At this stage, the LNC's arguments are not so clearly frivolous, and the merits of the FEC's argument so overwhelmingly obvious, as to make certification unwarranted.

         Iii. Whether Existing Authority Establishes that Congress May Allow Contributions to Particular Recipients, and Those Recipients' Expenditure of Such Contributions, For Certain Purposes But Not For Others

         The FEC further argues that binding precedent establishes “that differing contribution limits may apply to distinct categories of expenses.” Def.'s Opp'n at 20. The FEC cites McConnell, which upheld a BCRA provision, currently codified at 52 U.S.C. § 30125(b)(1), that prohibits state, district, and local political party committees from using “soft-money . . . funds for activities that affect federal elections, ” while allowing soft money “[d]onations made solely for the purpose of influencing state or local elections, ” as support. 540 U.S. at 122, 133-34, 173.[15] The FEC thus construes McConnell to hold that Congress generally may allow contributions to be made for certain purposes but not for others. See Def.'s Opp'n at 20-21.

         This reading of McConnell is too broad. There, the plaintiffs challenged § 30125(b)(1) on the ground that the statute “will prevent them from engaging in effective advocacy.” 540 U.S. at 173. The plaintiffs did not raise the argument that § 30125(b)(1) unconstitutionally conditioned a contribution's lawfulness on the purpose for which the contribution was made, see id., which is the argument the LNC raises here, see Pet.'s Mem. at 16. As such, McConnell cannot be read to foreclose the LNC's claim. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (internal quotation marks omitted)).

         Moreover, even if McConnell had expressly held that § 30125(b)(1)'s distinction between contributions to fund “Federal election activity” and contributions to fund state and local election activities were constitutional, such a holding would not foreclose the LNC's claim. Content-based restrictions on speech must be “narrowly tailored to serve compelling state interests.” Reed, 135 S.Ct. at 2226. Section 30125(b)(1)'s distinction between contributions to fund federal election activities and contributions to fund state and local activities may be said to (1) reflect Congress's judgment that the federal government has a compelling interest in preventing the reality or appearance of corruption as to federal elections but not as to state or local elections, and (2) be narrowly tailored to serve only the former interest. In other words, § 30125(b)(1) might be understood to reflect the view that any corruption, in fact or appearance, of state and local political processes just is not the federal government's business, not that soft money contributions to fund state and local election activity give rise to no real or apparent corruption.

         The FEC also argues that prior to the BCRA, federal law allowed national political parties to accept unlimited soft money contributions to fund state and local election activities, notwithstanding that such activity “could simultaneously influence federal elections.” Def.'s Opp'n at 21 (quoting Republican Nat'l Comm. v. FEC, 698 F.Supp.2d 150, 153 (D.D.C. 2010)). The FEC cites no decision of any court affirming this aspect of the pre-BCRA regime's constitutionality, however, id.; the issue apparently never arose.[16] The pre-BCRA soft money regime simply does not establish that the FECA's current specialized purpose regime passes constitutional muster. Moreover, as with § 30125(b), the pre-BCRA rules allowing national parties to accept unlimited soft money contributions to fund state and local, but not federal, election activities, might be said to be reflect a proper congressional judgment that corruption of state or local elections is not the federal government's concern. As such, any conclusion that the pre-BCRA soft money regime were constitutional would not foreclose the LNC's claim.

         The parties debate the relative corruption concerns that various types of contributions raise, but keeping score to determine this debate's winner is a job for the D.C. Circuit, not this Court. For example, pointing to the fact that “an individual may give $2, 700 to any candidate committee for each election, $5, 000 annually to any political action committee, and $10, 000 annually to any state or local party committee, ” Def.'s Reply at 4 (citing 52 U.S.C. § 30116(a)(1)(A)-(D); 82 Fed. Reg. at 10, 905), the FEC argues that “[f]rom such an individual's perspective, those contribution limits apply ‘depending on how' the individual wishes to spend money, ” id. Such restrictions on “how much money a donor may contribute to a particular candidate or committee” have been upheld to “serv[e] the permissible objective of combatting corruption.” McCutcheon v. FEC, 134 S.Ct. 1434, 1442 (2014). Nevertheless, the LNC argues that limiting the purposes toward which a person may contribute to a political committee serves no anti-corruption interest because money is fungible, meaning that the more specialized purpose funds available to a committee, the less general purpose funds the committee will need to spend toward specialized purposes, and thus, will have available to spend toward other purposes. See Pet.'s Mem. at 20-21. The FEC counters that restricted contributions pose less corruption concern than unrestricted contributions, justifying higher contribution limits for restricted contributions, because “political parties and their candidates tend to place more value on unrestricted contributions than those that may only be used for certain expenses.” Def.'s Opp'n at 22. The LNC, in turn, asserts that restricted and unrestricted contributions are more fungible to large parties with large specialized purpose expenses, but less fungible to small parties that spend less toward specialized purposes. See Pet.'s Mem. at 20-21. The LNC's argument that the specialized purpose regime serves no anti-corruption interest given money's fungibility, whether correct or not on the merits, plainly is not so frivolous or insubstantial as to be unworthy of certification under § 30110.

         * * *

         For the reasons given above, the LNC's claim in the second question that the specialized purpose regime unconstitutionally conditions certain speech's lawfulness on that speech's content is not “wholly insubstantial, obviously frivolous, [or] obviously without merit, ” and so satisfies § 30110's “low bar.” Holmes, 823 F.3d at 71-72 (quoting Shapiro, 136 S.Ct. at 456). Moreover, because the LNC's second question merits certification, it logically follows that the LNC's third question-“Does restricting the purposes for which the Libertarian National Committee may spend the bequest of Joseph Shaber violate the Committee's First Amendment rights?, ” Pet.'s Mot. Cert. at 1-challenging the specialized purpose regime as to Mr. Shaber's particular bequest, also warrants certification.

         D. Reformulating The LNC's Proposed Questions

         The FEC argues that should the LNC's second and third proposed questions be certified, these questions should be reformulated because, in their current form, they are phrased in argumentative, question-begging, and overbroad terms. See Def.'s Opp'n at 33. While the Court declines to adopt the FEC's proposed formulations of these questions, which themselves are argumentative and question-begging, for the reasons that follow, the LNC's questions two and three are reformulated to address the FEC's concerns.

         At the outset, the FEC contends that the LNC's second and third proposed questions “go far beyond the claims asserted in the LNC's complaint.” Id. According to the FEC, “Counts II and III of the LNC's complaint focused on the constitutionality of the segregated account limits, ” which “appeared to be the only aspect of the limit on contributions to political parties that the [LNC] challenged in its complaint.” Id. Yet, the FEC continues, “the LNC's proposed questions two and three are not expressly targeted at the segregated account structure, but instead broadly assert that the contribution limits applicable to national committees ‘restrict the purposes for which the LNC may spend' its money.” Id. at 34 (quoting Pet.'s Mem. at 3 (alterations omitted)). Contrary to the FEC's description, Counts II and III of the LNC's complaint clearly allege that § 30125, which prohibits “[a] national committee of a political party” from “spend[ing] any funds, that are not subject to the limitations [and] prohibitions . . . of this Act, ” 52 U.S.C. § 30125(a)(1), “violate[s] the First Amendment speech and associational rights of the LNC and its supporters, ” Compl. ¶ 31; accord Id. ¶ 34. In short, the FEC's criticism of questions two and three for lack of notice is baseless, as the LNC's complaint targets § 30125's restriction on the LNC's ability to spend specialized purpose account funds.

         As to the framing of questions two and three, the FEC deems these questions to be “argumentative because [they] beg[] the question [of] whether the segregated account limits actually restrict the LNC's spending.” Def.'s Opp'n at 34. The second question asks whether the specialized purpose regime facially “violate[s] the First Amendment rights of the [LNC] by restricting the purposes for which the [LNC] may spend its money.” Pet.'s Mot. Cert. at 1. This question can be understood to ask not only whether restricting the purposes for which the LNC may spend its money violates the First Amendment, but also whether the specialized purpose regime in fact imposes such a restriction. The second question thus requires no reformulation.

         The third question asks whether “restricting the purposes for which the [LNC] may spend the bequest of Joseph Shaber violates the [LNC's] First Amendment Rights.” Id. The third question, unlike the second question, seemingly presumes that the specialized purpose regime does in fact restrict the purposes for which the LNC may spend its money. The third question's phrasing thus is argumentative and question-begging: whether the specialized purpose regime, in fact, restricts the purposes for which the LNC may spend its money is an issue that must be decided, and may not be presumed. As such, the Court reformulates the third question to mirror the second question, a reformulation to which the LNC hardly can take issue given that the LNC itself formulated the second question's phrasing.

         Finally, the FEC argues that the second and third questions “are not limited to the segregated account structure, ” Def.'s Opp'n at 34, but rather, “implicate whether national party committees may be subject to contribution limits at all, ” Def.'s Reply at 13. To the extent any ambiguity exists as to which aspects of the FECA are subject to challenge here, the second and third questions are reformulated to clarify that only the specialized purpose regime created by § 30116(a)(1)(B), (a)(9), and § 30125(a)(1) are subject to challenge, and only on the ground that the specialized purpose regime conditions the lawfulness of contributions above § 30116(a)(1)(B)'s general purpose contribution limit on whether the contribution is directed toward one of § 30116(a)(9)'s three enumerated specialized purposes.

         Accordingly, the second question is reformulated as follows: “Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9), and 30125(a)(1), 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 § 30116(a)(1)(B)'s general purpose contribution limit to those specialized purposes enumerated in § 30116(a)(9)?” The third question is reformulated as follows: “Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9), and 30125(a)(1) 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 § 30116(a)(1)(B)'s general purpose contribution limit to those specialized purposes enumerated in § 30116(a)(9)?”

         At the same time, the Court declines to adopt the FEC's proposed formulations of the second and third questions. The FEC would reformulate the these questions as follows:

Question 2: “Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment rights of the Libertarian National Committee by permitting it to accept 300% of the otherwise applicable contribution limit into segregated accounts used to defray expenses with respect to its presidential nominating conventions, headquarters buildings, and election recounts and contests and other legal proceedings?” Def.'s Opp'n at 34-35;
Question 3: “Do 52 U.S.C. § 30116(a)(1)(B) and (9) violate the First Amendment rights of the Libertarian National Committee by permitting it to accept 300% of the otherwise applicable contribution limit from the bequest of Joseph Shaber into segregated accounts used to defray expenses with respect to its presidential nominating conventions, headquarters buildings, and election recounts and contests and other legal proceedings?” Id. at 35.

         Framing the specialized purpose regime as one that “permit[s]” the LNC “to accept 300% of the otherwise applicable contribution limit” is argumentative and question-begging. As discussed earlier, the crux of the LNC's challenge is not that the specialized purpose regime restricts the LNC from raising or spending sufficient funds, but that the specialized purpose regime imposes a content-based restriction on speech by conditioning the lawfulness of certain contributions, and of the LNC's acceptance and expenditure of such contributions, on whether the contribution was made for a particular enumerated government-approved purpose.

         IV. CONCLUSION

         For the reasons given above, the FEC's motion to dismiss is denied and the LNC's motion to certify is granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion. Findings of fact are set out in the Appendix.

         APPENDIX FINDINGS OF FACT[17]

         I. The Parties

         1. The Plaintiff, Libertarian National Committee, Inc. (“LNC”), is the national committee of the Libertarian Party of the United States. Pet.'s Mot. Cert., Decl. of Nicholas Sarwark, Chair, LNC, Inc. (“Sarwark Decl.”) ¶ 1, ECF No. 24-17; Def.'s Answer & Affirmative Defenses (“Def.'s Answer”) ¶ 1, ECF No. 22.

         2. The Defendant, Federal Election Committee (“FEC”), is the federal government agency charged with the administration and enforcement of the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30101 et seq. Pet.'s Complaint (“Compl.”) at 3, ECF No. 1. The FEC has exclusive jurisdiction with respect to the civil enforcement of such provisions. Id. §§ 30106(b)(1), 30109. The FEC also has the authority to make rules and regulations necessary to carry out the FECA, id. §§ 30107(a)(8), 30111(a)(8), 30111(d), and to issue advisory opinions concerning the application of FECA and prescribed regulations, id. §§ 30107(a)(7), 30108.

         3. The LNC is a “not-for-profit organization incorporated under the laws of the District of Columbia.” Sarwark Decl. ¶ 1. “The LNC has 15, 031 active paid sustaining donors, and 137, 451 members, in all 50 states and the District of Columbia.” Id. at ¶ 2. “Over half a million registered voters identify with the Libertarian Party in the states in which voters can register as Libertarians.” Id. “[Forty-eight] partisan officeholders and 111 non-partisan officeholders across the country are affiliated with the Libertarian Party.” Id.

         4. “Founded in 1971, the Libertarian Party has yet to elect a federal office holder, and no current federal office holder is affiliated with the Libertarian Party.” Libertarian Nat'l Comm., Inc. v. FEC (“LNC I”), 930 F.Supp.2d 154, 172 (D.D.C. 2013) (Wilkins, J.) (citation omitted).

         5. “The LNC's purpose is to field national Presidential tickets, to support its state party affiliates in running candidates for public office, and to conduct other political activities in furtherance of a libertarian public policy agenda in the United States.” LNC I, 930 F.Supp.2d at 172 (citation omitted); Sarwark Decl. ¶ 3.

         6. The LNC “facilitates mutual contacts between contributors and federal candidates, ” and “assists candidates in their efforts to win federal office.” Def.'s Opp'n, Ex. 2, Pet.'s Resps. Def.'s First Set Requests for Admissions at 10, ECF No. 26-6.

         7. To achieve its political goals, the LNC organizes affiliate parties in all fifty states and runs candidates for public office “with the goal of reducing government control over individuals' lives.” Def.'s Opp'n, Ex. 6, Dep. of Nicholas Sarwark (“Sarwark Dep.”) at 28:4-10, ECF No. 26-10. The LNC nominates candidates for president and vice president on behalf of the Libertarian Party every four years. Id. at 48:2-7, 49:8-11.

         8. “Even if a Libertarian Party candidate does not win a federal election, the LNC generally views it as positive if its candidate gets more votes than the margin of victory between the two major-party candidates and thus affects the outcome of the election.” LNC I, 930 F.Supp. 2d. at 173 (citation omitted). That is because such a result might cause a candidate of a major party to listen to the Libertarian Party's position in the future or reconsider his or her own position, “since the party would have demonstrated that a sizeable percentage of the electorate agrees with the Libertarian Party and wants to see more Libertarian public policies.” Id. (internal quotations omitted).

         9. In a 2006 letter to prospective donors, the LNC stated that

[o]ne of the most significant achievements of the year was our candidates being identified as the deciding factor in control of the U.S. Senate. This led to positive press coverage in the Washington Post and many other news outlets. Our impact in these important elections even led to an article in The Economist titled “Libertarians Emerge as a Force.” Clearly, it was a good year for our party.

Id. at (citation omitted).

         II. The LNC's Fundraising and Spending On Segregated Account Expenses

         10. In some of its fundraising solicitations, the LNC has told potential contributors that their contributions will only be used for specific expenses. Sarwark Dep. at 13:8-14:6, 40:11-21. Some donors have informed the LNC that they will only give money if they are told what the money will be used for. Id. at 21:18-22:3. Such project-based fundraising is ...


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